Known sources of Income under Prevention of Corruption Act

May 3, 2012

By Dr. Ashok Dhamija

[This Article was originally published in the Criminal Law Journal in 1995, with the citation of 1995 Cri LJ (Journal) 68.]

“INTERPRETATION OF KNOWN SOURCES OF INCOME IN PREVENTION OF CORRUPTION ACT, 1988”^[1]

By : Ashok Dhamija, IPS, Supdt. of Police, Central Bureau of Investigation, White House, 91-Walkeshwar Road, Bombay-400006.

Clause (e) of the Sub-section 13(1) of the Prevention of Corruption Act, 1988 defines an offence what is popularly called possession of disproportionate assets in the following words–

“A public servant commits the offence of criminal misconduct if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.”

It may be pertinent here to mention that the said offence was for the first time included in the statute books by introduction of clause (e) in sub-section 5(1) of the erstwhile Prevention of Corruption Act, 1947 through the Criminal Law Amendment Act, 1964 (No. 40 of 1964) on the basis of the recommendation of the Santhanam Committee appointed by the Govt. of India. It may be further mentioned that prior to its becoming a substantive offence for the first time in 1964, the possession of disproportionate assets by a public servant was merely a rule of evidence defined in sub-section 5(3) of the Prevention of Corruption Act, 1947, providing for an alternative method of proving the offence of criminal misconduct as it then existed. The erstwhile Prevention of Corruption Act 1947, has since been repealed and replaced by the Prevention of Corruption Act, 1988.

The aforesaid definition makes it abundantly clear that the commission of the said offence becomes complete only when the possession of pecuniary resources or property is disproportionate to the known sources of income. This expression known source of income was not defined in the earlier Prevention of corruption Act, 1947, or in the Criminal Law Amendment Act, 1964 which created this offence for the first time. However, case law was available on this point. It was held in C.S.D. Swamy v. The State,^[2] that:

“The expression known sources of income must have reference to sources known to the prosecution on a thorough investigation of the case. It was not, and it could not be, contended that known sources of income means sources known to the accused. The prosecution cannot, in the very nature of things, be expected to known the affairs of an accused person. Those will be matters specially within the knowledge of the accused within the meaning of S. 106 of the Evidence Act ……, and if the prosecution has failed to disclose all the sources of income of an accused person, it is always open to him to prove those other sources of income which have not been taken into account or brought into evidence by the prosecution.”

The aforesaid interpretation of the expression ‘known sources of income’ was reiterated by the Supreme Court in the case of Sajjan Singh v. State of Punjab^[3], andHemant Kumar Mohanti v. State of Orissa.^[4]

However, it is important to mention that the new Prevention of Corruption Act of 1988 has defined the expression known sources of income in the Act itself by way of an Explanation attached to clause (e) of sub-section 13(1) of the Prevention of Corruption Act, 1988, in the following words:-

“Explanation:- ‘Known sources of income’ means income received from any lawful source, and such receipt has been intimated in accordance with the provisions of any law, rules or orders for he time being applicable to a public servant.”

Thus, it is seen that, now for a source of income to qualify as a known sources of income for the purposes of S. 13(1)(e) of the Prevention of Corruption Act, 1988, it is essential that it should satisfy the following two conditions, namely:-

(i) it should be a lawful source of income, and

(ii) the receipt of income from such a source should have been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to the concerned public servant.

As a natural corollary, it immediately follows that:-

(i) any income received from a source which is not lawful cannot be considered for inclusion in the expression known sources of income for the purposes of S. 13(1)(e) of the said Act, even if such an income was actually received by the concerned public servant.

(iii) any income, even though received from a lawful source, cannot likewise be considered for inclusion in the expression known sources of income for the aforesaid purposes, if the receipt of such income has not been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to the concerned public servant.

Thus, it is obvious that even if the existence of a particular source of income is proved by a public servant, unless it satisfies the aforesaid both essential conditions of lawful source and receipt of income having been intimated, it cannot be considered as a known source of income while ascertaining whether or not, an offence of possession of pecuniary resources or property disproportionate to known sources of income, under Sec. 13(1) (e) of the Prevention of Corruption Act, 1988 has been made out.

There have been some misgivings in some corners to the effect that the above-said definition of known sources of income causes hardship or inconvenience or injustice to the accused public servant and places a heavy burden on him to ensure that not only his sources of income be lawful, but also that receipt of any income of such sources be intimated in accordance with the provisions of any law, rules or orders for the time being applicable to him. Any non-compliance with either of these two essential ingredients in respect of a particular source of income by a public servant will render that source of income to be ineligible for inclusion in the expression known sources of income for the purpose of ascertaining as to whether or not an offence under S. 13(1)(e) of the Prevention of Corruption Act, 1988 is made out. This is definitely bound to weaken the defence of an accused public servant.

In view of this, arguments of causing of hardship, inconvenience or injustice to an accused public servant due to the said definition of known sources of income are sometimes raised in some corners and it is doubted whether the said definition will be able to stand the test before a court of law. An attempt has been made to dispel these doubts and fears in this article.

In early days, the relationship between the State and the individual was regarded as nothing more than that of a superior and an inferior, and as such the sovereign will, expressed in the form of a legislation, could even be arbitrary and despotic. In modern democratic societies, however, there exists a mutuality of rights and duties between the State and the individual, and as such the doctrine of superior and inferior plays a very insignificant role in the process of modern legislation. As Allen has observed^[5]:

“The spirit which dominates modern doctrine is observable in the trend of legislation. At least in democratic countries, it is not a process solely of command and obedience, but of action and reaction between constitutionally authorized initiative on the one hand, and social forces on the other. Which creates the other, where one begins and the other ends, it is often very difficult to say. It is, however, certain that the great mass of ‘inferiors or subject’ are not now a days simply passive recipients of orders.”

Sir Henry Maine has observed that the three instrumentalities by which the gulf between social necessities and social option on the one hand, and the law on the other, is narrowed down are legal fictions, equity and legislation. When law becomes fixed, it is adapted to the new wants of the society, first by legal fictions, next by the growth of a fresh body of the rules by the side of the original law, founded on distinct principles and claiming to supersede the law in virtue of a superior sanctity inherent in those principles (that is equity), and finally by legislation.

Likewise, Dicey also observes:

“There exists at any given time a body of beliefs, convictions, sentiments, accepted principles, or firmly-rooted prejudices, which taken together make up the public opinion of a particular era, or what we may call the reigning or predominant current of opinion, and as regards at any rate the last three or four centuries, and specially the 19^thcentury, the influence of this dominant current of opinion has, in England, if we look at the matter broadly, determined, directly or indirectly, the course of legislation.”

Thus, in a modern democratic state, legislation reflects the public opinion or the will of the people and no legislature worth its salt, can ignore public opinion which has trickled through various channels. Legislation narrows down the gulf between the social necessities and social opinion on the one hand, and the law on the other, as observed by Henry Maine (supra).

Based upon the public or social opinion and the social necessities, legislation in a modern democratic state is actuated with some policy to curb some public evil or to give effect to some public benefit. And, the duty to so legislate on matters of public interest, with the said objectives of curbing some public evil or of giving effect to some policy of public benefit is cast on the legislature. While performing this sacred duty of legislation, a legislature is accordingly guided by the social necessities and public opinion, is influenced by the past and the present experience on the problems which have actuated the proposed legislation, and is directed to meet the future expectations of the people.

It is in the light of these observations, that we should view the said definition of the expression ‘known sources of income’ in the form of ‘Explanation’ to clause (e) of sub-section 13(1) of the Prevention of Corruption Act, 1988, through which the legislature has intended to curb the public evil of corruption, which has engulfed the whole of the Indian society and against which immense public opinion exists in the country. Corruption is a social evil, which due to its all-pervasive nature, has diffused in most walks of life in the society with catastrophic consequences. Corruption is one of the root causes of many a problem facing the society. And, to root out corruption from the Society is evidently one of the foremost and biggest social necessities. The enactment of a strict definition of the expression ‘known sources of income’ must be viewed accordingly, actuated by the social necessities and the public opinion to root out corruption from the society.

This leads us to the refutation of the arguments of hardship, inconvenience or injustice supposedly caused to a public servant due to the said definition. Contents of above paras immediately show that these arguments are perfunctory, misleading and baseless, and are of no avail against a validly enacted provision of law, duly made by the legislature in the performance of its sacred duty on the basis of the social necessity of rooting out corruption from the society. Moreover, presuming that the said definition of the expression ‘known sources of income’ does cause some amount of hardship or inconvenience to some persons (read some public servants), the same can easily be justified on the additional grounds mentioned as under.

It is common knowledge that most laws enacted by any legislature cause at least some amount of hardship or inconvenience to at least some sections of the society. Every law creates certain rights and liabilities for the society as a whole or for some particular sections thereof. More the severity of the public evil sought to be curbed by a proposed law, more the severity of liabilities imposed by that law. In fact, even a law meant for extending some public benefit to the society as a whole or some sections thereof, will also normally impose at least some liabilities on some particular sections of the society. Liabilities so imposed by a law on some sections of the society would mean hardship or inconvenience for the same. For example, a penal law may cause hardship or inconvenience to an accused person, a tax law may do so to a tax-evader or defaulter, a law of limitation may cause such a hardship or inconvenience to a party delaying filing of an appeal, and so on and so forth. Thus, hardship or inconvenience caused to some persons due to a law is not an abnormal phenomenon.

In fact, the amount of hardship or inconvenience caused to some persons by a statute needs to be considered vis-à-vis the immense benefits that may accrue to the Society as a whole from the same statute. For the general benefit of the society as a whole, hardship or inconvenience to some people may well be justified and even desirable.

Thus the arguments of hardship, inconvenience etc. caused by the said definition of known sources of income do not hold water.

At this juncture, we may like to see as to what sort of hardship or inconvenience etc., if at all, is caused to a public servant due to said definition of the expression known sources of income.

It will immediately become clear that what a public servant is expected to do is just to ensure that his sources of income are lawful and the receipt of any income therefrom is intimated in accordance with any law, rules or orders, as the case may be, for the time being applicable to a public servant. As such these requirements do not cause hardship or inconvenience. As the law provides for those two requirements to be satisfied, every public servant is expected to comply with the same.

As for the first requirement, it is crystal clear that no public servant, as of a divine right, can lay a claim that even his unlawful sources of income should be considered for the said purpose, more so when the said definition of known sources of income specifically prohibits it. And, for the second requirement, at the most a public servant may take the plea that he was not aware of the requirement of intimation of a particular income under a particular law or rule or order. It may also be argued by a public servant that non-consideration of some particular receipt of income by him just because the same has not been intimated in accordance with some law, rules, or orders because of his ignorance or otherwise, even though the source of that income be lawful is not just. However such an ignorance of the provisions of the law, rules, orders will be covered within the meaning of “mistake of law”. It is a well known maxim of law that ignorantia juris non excusat which means that ignorance of law is no excuse.

It has been held that mistake in point of law in a criminal case is no defence. Mistake of Law ordinarily means mistake as to the existence or otherwise of any law on a relevant subject as well as mistake as to what the law is^[6]. It is also held that ignorance of the municipal law of the Kingdom, or of the penalty thereby inflicted upon offenders, doth not excuse any, that is of the age of discretion and compos mentis, from the penalty of the breach of it; because every person of the age of discretion and compos mentis is bound to know the law and presumed so to do^[7]. If any individual should infringe the statute law of the country through ignorance or carelessness, he must abide by the consequences of his error, it is not competent to him to aver in a Court of Justice that he was ignorant of the law of the land, and no Court of Justice is at liberty to receive such a plea^[8].

The said maxim ignorantia juris non excusat, in its application to criminal offences, admits of no exception, not even in the case of a foreigner who cannot reasonably be supposed in fact to know the law of the lands ^[9].

It has further been laid down in respect of the plea of ignorance of a statute which has been newly passed, that, although a person commits an act which is made an offence for the first time by a statute so recently passed as to render it impossible that any notice of the passing of the statute could have reached the place where the offence has been committed, yet his ignorance of the statute will not save him from punishment^[10].

Thus it may be seen that the plea of ignorance of law is not available even to a foreigner and also even in respect of a statute passed recently. Accordingly a public servant cannot plead that he was ignorant of the definition of known sources of income as also that he was ignorant about any law, rules or orders providing for intimation to be given to some authority about receipt of income fro a particular source.

At this stage, we may examine the matter in the context of presuming that some amount of hardship/inconvenience/injustice is caused to a public servant by way of the said definition of known sources of income, what will be the fate of the said definition and what interpretation will be given to it by the Courts. In order to examine this we may examine the abundant case law available in this connection laying down the rules of interpretation of statutes.

It has been held that a statute is an edict of the legislature^[11]. A statute is to be construed according to the intention of them that make it^[12]. The duty of judicature is to act upon the true intention of he legislature – the mens or sententia legis^[13].

It has been held that courts are not entitled to usurp legislature function under the disguise of interpretation^[14]. The courts must avoid the danger of an a priori determination of the meaning of provision based on their own preconceived notions of ideological structure or scheme into which the provision to be interpreted is somehow fitted^[15]. Caution is all the more necessary is dealing with a legislation enacted to give effect to policies that are subject to bitter public and parliamentary controversy for in controversial matters there is room for differences of opinion as to what is expedient, what is just and what is morally justifiable, it is the Parliament’s opinion in these matters that is paramount^[16].

The next rule of construction is “to intend the legislature to have meant what they have actually expressed”^[17]. The object of all interpretation is to discover the intention of Parliament, but the intention of Parliament must be deduced from the language used^[18].

The aforesaid judgments make it manifestly clear that a statute is to be enacted by the legislature and the duty of the courts is to give effect to the intention of the legislature through the words expressed therein.

It has further been laid down that, where by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be^[19]. Similarly in respect of the decision in Short v, McCarthy^[20], it is noted in the well known authoritative work of Maxwell on the Interpretation of Statutes^[21] that the hardship of such decision was obvious, but the language was susceptible of no other interpretation. The interpretation of a statute is not to be collected from any notions which may be entertained by the court as to what is just and expedient^[22]. The duty of the court is to expound the law as it stands, and to have the remedy (if one be resolved upon) to others^[23]. Similarly it is held that a sense of the possible injustice of an interpretation ought not to induce judges to do violence to well settled rules of construction. ….^[24].

When the words of a statute are clear, plain or unambiguous, i.e., they are reasonably susceptible to only one meaning, the courts are bound to give effect to that meaning irrespective of consequences^[25]. It is further held that in construing words the courts are not concerned with the policy involved or with the results, injurious or otherwise, which may follow from giving effect to the language used^[26].

It is often found that laws enacted for the general advantage do result in individual hardship; for example Laws of Limitation, Registration, attestation although enacted for the public benefit, may work injustice in particular cases, but that is hardly any reason to depart from he normal rule to relieve the supposed hardship or injustice in such cases^[27]. It is the duty of all courts of justice to take care for the general good of the community, that hard cases do not make bad law^[28]. The function of the court is to find out what is legal and not what is right^[29].

The aforesaid case law makes it clear that when the language of a statute is clear and unambiguous, no arguments of hardship, inconvenience, absurdity, injustice etc. could be sustained and he courts are duty bound to interpret the statute accordingly. As the aforesaid definition of known sources of income is clear and unambiguous, therefore its interpretation by the courts has to be in accordance with the specific words used in the said definition.

For the sake of argument, even if it be presumed that the language used in the said definition of known sources of income is ambiguous or has got more than one meanings, the interpretation of the same will have to be done in accordance with what is known as mischief rule of interpretation. This rule was first laid down in the famous Heydon’s case^[30] in 1584 and thereafter it has been applied consistently by various courts including the Supreme Court of India. This principle is explained in detail by S.R. Das, C.J., in the case of Bengal Immunity Co. v. State of Bihar^[31]. As per this mischief rule the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy according to the true intent of the makers of the Act, pro bono publico. Thus, as per this rule, the mischief or the defect existing before making of an Act has to be identified, the remedy for which is provided by the new Act, and thereafter the construction has to be in such manner that the mischief is suppressed and the remedy is advanced. This rule has been applied by the Supreme Court in the Bengal Immunity Company’s case^[32]; RMD Chamarbaugwalla v. Union Bank of India^[33]; CIT, MP and Bhopal v. Sodradevi^[34]; Dr. Waliram Waman Hiray v. Mr. Justice B. Lentin^[35], and many other cases.

In case the said mischief rule is to be applied for the purpose of interpretation of the said definition of known sources of income, it is evident that corruption in the society is evil and is a mischief which was intended to be removed by providing a remedy in the form of the said definition of the known sources of income. Therefore even it is presumed that the said definition admits of ambiguity, its interpretation has to be made in such a manner that the mischief of corruption is avoided and the remedy of detection of corruption cases provided for the said mischief is advanced. Therefore in this manner also, it may immediately be concluded that the said definition of known sources of income will stand the test of interpretation in a court of Law.

The discussion in the preceding paras immediately leads us to the conclusion that there is nothing wrong in he said definition of known sources of income as introduced in the Prevention of Corruption Act, 1988, in the form of Explanation to Clause (e) of sub-section 13(1). It is nothing but a manifestation of the intention of the Parliament aimed at rooting out the corruption from the Indian society. Accordingly, in order to ensure that the intention of the Parliament to root out corruption in introducing the said definition of known sources of income is honoured, these provisions are required to be implemented scrupulously.

^[1] This Article was originally published in the Criminal Law Journal in 1995, with the citation of 1995 Cri LJ (Journal) 68.

^[2] AIR 1960 SC 7.

^[3] AIR 1964 SC 464.

^[4] 1973 (1) SLR 1121.

^[5] Allen: Law in the Making, 5^th Ed., p. 405.

^[6] Tustipada Mandal (1950) Cut 75..

^[7] 1 Hale P.C. 42.

^[8] Fischer, (1891) 14 Mad 342, 354, F.B.

^[9] Esop, (1836) 7 C. & P. 456.

^[10] Bailey’s case, 1800- Russ & Ry. 1.

^[11] Vishnu Pratap Sugar Works Pvt. Ltd. v. Chief Inspector of Stamp, U.P. , AIR 1968 SC 102.

^[12] RMD Chamarbaugwalla v. Union of India, AIR 1957 SC 628.

^[13] Salmond on Jurisprudence, 12^th Ed., p. 132.

^[14] Magor and St. Mellons Rural District Council v. Newport Corporation, (1951) 1 All ER 539 (HL)

^[15] DA Venkatachalam v. Dy. Transport Commissioner, AIR 1977 SC 842.

^[16] Duport Steels Ltd. v. Sirs, (1980) 1 All ER 529 (HL)

^[17] R. v. Banbury (Inhabitants) (1834) 1 A. & E. 136.

^[18] Maxwell on the Interpretation of Statutes, 12^th Ed., p. 28; Capper v. Baldwin (1965) 2 QB 53.

^[19] Cartledge v. E, Jopling & Sons Ltd., (1963) AC 758.

^[20] (1820) 3 B. & Ald. 626.

^[21] 12^th Ed., p. 29.

^[22] Gwynne v. Burnell (1840) 7 Cl. & F. 572.

^[23] Sutters v. Briggs (1922) 1 A.C. 1.

^[24] Arrow Shiping Co. Ltd. v. Tyne Improvement Commissioners (1894) AC 508.

^[25] Principles of Statutory Interpretation, by Justice G.P. Singh. 5^th Ed., p. 32.

^[26] Emperor v. Benoarial Sarma, AIR 1945 PC 48.

^[27] Principles of Statutory Interpretation, by Justice G.P. Singh, supra. P. 91; also see – Lucy v. Henleys Telegraph Works, (1969) 3 All ER 456 (CA).

^[28] East India Co. v. Odichurn Paul, 7 Moo PC 85.

^[29] Chandavarkar Sita Ratan Rao v. Ashalata S. Guram, AIR 1987 SC 117.

^[30] (1584) 3 Co. Rep. 7a, p. 7b : 76 ER 637.

^[31] AIR 1955 SC 661.

^[32] Ibid.

^[33] AIR 1957 SC 628.

^[34] AIR 1957 SC 82

^[35] AIR 1988 SC 2267.

Freedom to fix par value of shares — Pros and cons

Dr. Ashok Dhamija

May 3, 2012

By Dr. Ashok Dhamija

[This article was originally published on June 21, 1999 in the leading financial daily, Financial Express. See the link below.]

In the case of a limited company having share capital, the Companies Act, 1956, [sub-section 13(4)] provides that the memorandum of association shall state the amount of share capital and the division thereof into shares of a fixed amount.

This fixed amount of each share, i.e., its denomination, represents the par value of a share. Secondly, this requires that the denomination of each share or the fixed amount must be stated in the memorandum in a monetary form. The Companies Act thus gives liberty to companies to fix the denomination of their shares. However, as per guidelines contained in a circular of 1983 issued by the Union government, the only denomination in which shares could be issued by a company was limited to Rs. 10 or Rs. 100. The Securities & Exchange Board of India (SEBI) has now modified these guidelines on June 11, 1999, imparting flexibility to firms to fix any denomination of the par value of its equity shares. This means that the companies are now free to issue shares of any denomination, e.g., Rs. 2 or Rs. 5,000. The only restriction as per the new SEBI guidelines now is that the denomination of shares cannot be less than Re 1 and that thereafter in multiples of Re 1. Moreover, at any given time there shall be only one denomination for all the shares of a company.

Read the full article in Financial Express.

Public servants must declare their assets

Dr. Ashok Dhamija

May 3, 2012

By Dr. Ashok Dhamija

[This article was originally published on September 17, 1999 in the leading financial daily, Financial Express. See the link below.]

Corruption by politicians holding high posts such as ministers, MPs, MLAs is a common knowledge, figuring in media and other fora on regular basis. Several cases relating to corruption or possession of disproportionate assets have been registered recently against politicians holding high posts.

Who has not heard of hawala and Bofors today? Cases of disproportionate assets have been registered against former Chief Ministers of Tamil Nadu, Sikkim, Himachal Pradesh, Bihar etc. Even a former Prime Minister is involved in a case of corruption of offering bribes to some MPs. The list is unending. And yet, there definitely are innumerable other cases of corruption by politicians which could never see the light of the day.

MPs and MLAs have now been confirmed to be public servants in the recent judgment of the Supreme Court in the Jharkhand Mukti Morcha case, implying that they are amenable to the offences defined in the Prevention of Corruption Act, 1988.

One major offence defined in this Act relates to the possession of assets by a public servant which are disproportionate to his known sources of income.

Read the full article in Financial Express.

Lesson from Nithari – system needs to be changed

Dr. Ashok Dhamija

May 3, 2012

By Dr. Ashok Dhamija

[Originally written in January, 2007]

There are inherent weaknesses in the system that need to be addressed immediately if incidents like Nithari-killings are to be prevented in future. This is the lesson that is writ large in the Nithari killings. Here, I am not referring to the police reforms prescribed by the Supreme Court recently. I am referring to some deeper failures in the policing system as well as in the criminal justice system.

The origin of the Nithari killings lies at the “missing” children. Children become “missing” in the beginning. The police fails to take cognizance of such incidents. Such children then become the target of subsequent offences, such as sexual offences, murder, or may even be those relating to organ-sale racket.

So, at the root of the problem is the question of “missing” children and failure of the police machinery to take its cognizance and the lack of follow-up action.

The first issue is about “missing” children. How can a child become “missing”? The possible reasons could broadly be classified into following three categories-

The child being kidnapped or abducted, which is an offence. This may be due to various motives such as ransom, sexual offences, prostitution racket, bagging racket, enmity, organ-sale racket, sale of children to foreigners, etc.

The child is genuinely missing due to having been lost in crowds, lack of senses, lack of knowledge of the terrain, lack of intelligence, lack of care by parents or by others accompanying them, etc.

The child genuinely runs away from home due to various reasons such as differences with parents, having been scolded or beaten by parents, sudden emotional outbursts, failure in examinations, desire to try some new career such as in films, love-affairs, etc.

The second issue is how the law deals with the question of a “missing” child. There is a serious lacuna in the system here which, though unintentional and worthy of explanation on the principles of legal jurisprudence, leads to practical difficulties. The first category of the reasons mentioned above are covered in the definitions of various offences listed (mainly) in the Indian Penal Code; these are cognizable offences and therefore the police action starts immediately. However, in the second and the third categories of reasons mentioned above, the penal law is silent as for obvious reasons no offence could be made out in such cases unless somebody is instigating such behaviour. And, it is important to note that there is no other law which deals with such situations. Hence, such cases are left to be handled under the administrative instructions detailed in various police manuals which are usually confidential documents and are not in the public domain. It leads to problems as such administrative instructions, framed decades ago, are not effective in the modern era with crime scenario becoming much more complex and complicated due to various reasons. The end-result is that there is hardly any serious or systematic investigation in such cases.

The third issue (inter-connected with the second issue) is: what happens when the incident of “missing” child is reported to the police. It is here that the failure in the system becomes more prominent. In some incidents reported to the police, kidnapping or abduction is clear, e.g., recent NOIDA kidnapping incident of three-year old Anant, the son of the Adobe executive Naresh Gupta. So, the police will register FIR straightaway in such a case and will start investigating the case. But, in majority of cases, the report lodged speaks of the “missing” child but it is not known to the complainant himself as to what is the cause of the child becoming “missing”, i.e., whether the child has been kidnapped, or he has genuinely become missing or he has intentionally left his home. It is in these large number of cases that the system failures play havoc. In these cases, the police does not register FIR, but records the incident in either the General Diary (or Station Diary) or the Missing Persons Register (or some like name) or in both. And, in most of such cases, that’s the end of it! Means, either no further investigation / enquiry or a perfunctory / nominal enquiry. The incident is then lost in the records and is usually not taken to the logical end.

The most crucial question that needs to be looked at freshly is – when an incident of a “missing” child is reported to the police, how do you make out at that instance as to what could be the reason for the child becoming “missing”? In many of such incidents reported to the police, the complainants are not aware of the exact reason behind the child becoming “missing”. They are also not aware about the legal complexities as to how to report the matter to the police so as to make the police conduct a proper investigation into the matter. They may not be aware of the fact that unless the report is presented with such facts that it could be recorded in the form of FIR, the police would not even be conducting a detailed investigation or enquiry. Thus, in many such matters, the complainants would simply report the matter of the “missing” child mentioning that they are not aware of the reasons of the child becoming “missing”. In many such matters, the police record the statement themselves but to a similar effect. All this helps to record the incident merely in the General Diary / Station Diary and/or the Missing Persons Register, instead of registering a regular FIR. In the case of FIR being registered into an incident, a regular full-fledged investigation follows wherein one can hope for at least some serious effort to solve the case and trace the missing child. But, in the case of a mere General Diary entry or an entry in the Missing Persons Register, there is hardly a detailed follow-up enquiry or investigation.

In the Nithari killings, what is more shocking (may be, in the hindsight) is the fact that police officials at the police station level and at the district level failed to see a pattern of several children becoming missing from a small area, as it was not the case of one or two solitary instances. It also makes a mockery of the claims of Government and the senior police officials of using Information Technology tools in the policing work.

It has to be understood that the exact reasons for a child becoming “missing” can be found only through a proper investigation or enquiry. More than that, it is also necessary to trace a missing child and to prevent any further offence against the missing child. It is in this context that there is a need to make changes to the existing system so that a proper investigation or enquiry is conducted in every complaint of a missing person.

At this juncture, it is pertinent to mention that there is a system of regular inspections and frequent surprise visits of/to police stations by the superior police officers. Moreover, the officer-in-charge of a police station is supposed to regularly peruse the General Diary and other registers such as the Missing Persons Register. However, with changing priorities in the police organisations, such systems exist more on paper than in practice. In any case, instead of depending upon a system of regular inspections and surprise visits to the police stations, there is a need to make changes in the basic system itself, i.e., at the reporting stage and the enquiry / investigation stage. The need for such basic changes in the system becomes more prominent when we consider the fact that with increasing attention being paid by the police agencies to the law & order and matters such as VIP security, even the regular crime-investigation often takes a back-seat, what to speak of non-FIR matters such as enquiries in the missing persons’ complaints.

It is also important to mention that while individuals responsible for not taking proper cognizance of the incidents need to be penalised, we have to realise that the message from the Nithari killings is more about a system failure than the individual failures. Therefore, instead of wasting too much time in blame game, there is an urgent need to revamp the system where it is needed the most. And, it is here that the Governments at the Centre and State levels, as well as the senior leaders of the police organisations, have to play a vital role.

I am submitting the following few suggestions for making changes in the system dealing with the missing persons:

Whenever there is a doubt about the reason for a person becoming missing, it may be advisable to register the missing report under Section 154 of the Criminal Procedure Code as FIR so that a proper investigation could follow in the matter. This is as against the practice of simply making a General Diary entry or making an entry in the Missing Persons Register and then not following it up. There is a need for specific instructions or guidelines in this regard. After registration of FIR and the follow-up investigation, if it found that the reason behind the person becoming missing was not a crime, such investigation may be terminated with a closure report. But, a proper investigation will ensure justice in several cases of missing persons, which are now buried in the Missing Persons Registers or the General Diaries in the respective police stations.

Alternatively, there is a need to enact a legal provision requiring the police to conduct a full-fledged investigation in all cases of missing persons. Why I am insisting for a legal provision in this regard, in contrast with administrative instructions, is for the simple reason that after a lapse of time many of such administrative instructions are forgotten and not fully complied with; on the other hand, a legal provision becomes binding and offers legal remedies in case of a casual approach by the concerned agencies. As there are reports of a new law being enacted to ensure that incidents like Nithari killings are not repeated, the aforesaid legal provision can be considered as a part of such new law. With reports quoting the National Human Rights Commission (NHRC) showing that 45000 children go missing every year inIndia, it is all the more necessary to have a proper legal framework for conducting a full-fledged investigation in cases of missing persons.

There is a need to have a national online database of the missing persons, with regular updates whenever a missing person is located somewhere. It should not be a very difficult exercise given the kind of information technologies available today in the country at nominal costs. Such a database can be made functional under some central police agency such as NCRB, BPR&D or CBI. The data about the missing and found persons has to come regularly from the district or the police station level on day to day basis. It may also be desirable to directly enter details of a missing person in such national database at the request of a complainant (with due verification, if necessary) if the concerned local unit fails to update the database for that particular missing person. Some trained personnel at the central agency, entrusted with the maintenance of such national database, should continuously keep matching the physical / scientific features of the persons missing and persons found.

Possibilities of making use of scientific methods such as fingerprinting, DNA profiling, photographic superimposition, etc., wherever possible, need to be explored. For this purpose, at the time of receipt of a report about a missing person, efforts must be made to collect maximum information (such as chance fingerprints, photographs, etc. of the missing person) so as to facilitate subsequent scientific investigation.

It is important that all reports of missing persons are properly and fairly recorded, with no burking.

The field level and supervisory police officers have to apply their mind to the reported cases to look for a trend. Periodic reviews of the pending cases of the missing persons could also be useful tools.

Above all, there is a need for a basic change in the approach of the police officials, especially at the police station level, of looking at most cases of missing persons with sarcasm as if the missing person has run away or eloped on his / her own. The approach should be to suspect a foul play in such incidents wherever there is the slightest doubt about the reason of the person becoming missing. This attitudinal change is required more in cases of missing persons reported by complainants of poor background, in contrast with those with rich background such as the Adobe executive from Noida, as mentioned above. It is pertinent to mention that there is a tendency to look mainly for the demand of a ransom in a case of a missing person for the purpose of categorising it as a crime. Ransom is only one of the motives for persons becoming missing and this a harsh lesson from the Nithari killings. There could be other motives and the police should not ignore them and write off the missing persons’ cases at the very outset itself.

Let’s hope that the matter relating to Nithari killings is used for making some basic changes in the policing system and the criminal justice system so as to improve it for the common good of the society.

Illegal Bangladeshis migrants in India

Dr. Ashok Dhamija

May 3, 2012

By Dr. Ashok Dhamija

[Originally written on 6 December 2006]

We are estimated to have at least somewhere between 10 million to 20 million Bangladeshis in our country who are supposed to be illegal migrants.

Mr Inderjit Gupta, the then Home Minister of India(who was from the Communist Party of India – that so-called secular party and not from BJP or Shiv Sena) had stated in Parliament on May 6, 1997, that there were 10 million illegal migrants residing in India.

Likewise, quoting Home Ministry / Intelligence Bureau sources, India Today in its issue of August 10, 1998, had given the breakdown of these about 10.83 million illegal migrants by the States:

West Bengal	5.4 million
Assam	4 million
Tripura	0.8 million
Bihar	0.5 million
Maharashtra	0.5 million
Rajasthan	0.5 million
Delhi	0.3 million
Total	10.83 millions

This was in 1997-1998. Today, in 2006 end, the number of illegal Bangladeshis is estimated to be much larger than 10 million and is estimated to be around 20 million.

One fails to understand why the Government, which is not able to provide basic amenities to its own population of the size of 1100 million (OK, let it be 1080 million if we exclude about 20 million illegal Bangladeshis living in this country), is so keen to woo these illegal Bangladeshis migrants?

Ultimately there has to be a limit to the vote politics. One can understand (though one may not agree) the Government trying to woo a particular section of the Indian citizens for its petty vote politics, but how can the Government be permitted to show extra favours to the illegal migrants at the cost of the Indian citizens? And, that too from a country which is supporting anti-India terrorist organisations? What a pity!Bangladesh allows training camps on its land to anti-India terrorist organisations andIndia in turn allows food, shelter, employment and extra favours to about 20 million illegal Bangladeshis migrants!

It is in this context that we have to see yesterday’s (December 5, 2006) landmark judgment of the Supreme Court [Sarbananda Sonowal (II) v. Union of India, (2007) 1 SCC 174] by which it quashed the UPA government notification that put the onus of proving an illegal migrant into the country solely on the complainant. The Supreme Court directed the Centre to constitute within four months sufficient number of tribunals to detect infiltration of large number of Bangladeshis into Assam.

It is pertinent to point out that in July, 2005, in the case of Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665, the Supreme Court had struck down as unconstitutional the Illegal Migration Detection by Tribunal (IMDT) Act. But, the Government did not like it. Playing its usual and now-infamous hide-and-seek game with the Supreme Court, the Centre Government came out with a notification in February, 2006, vide which it issued the Foreigner (Tribunals forAssam) Order, 2006.

This Order was challenged by AGP MP Sarbananda Sonowal and others. The petitioners alleged that this notification was nothing but a repetition of the quashed IMDT Act which put the onus of proving a person an illegal foreigner on the complainant. The Central Government tried to defend the notification.

However, the Supreme Court quashed the said controversial notification. In fact, the Supreme Court went a step further and also imposed a fine of Rs 25,000 on the Central Government to be paid to the petitioners.

We, the citizens ofIndia, must whole-heartedly welcome this Supreme Court judgment.

It is germane to mention that in its earlier decision of July, 2005, vide which it had quashed the IMDT Act, the Supreme Court had made the following important observations in paragraphs 62 and 63 of the judgment, which are reproduced below in full as these are very important observations:

“62. The very first sentence of the Statement of Objects and Reasons of the IMDT Act says:

“The influx of foreigners who illegally migrated intoIndiaacross the borders of the sensitive Eastern and North-Eastern regions of the country and remained in the country poses a threat to the integrity and security of the said regions.”

It further says that “continuance of these persons inIndiahas given rise to serious problems”. The preamble of the Act says that “the continuance of such foreigners inIndiais detrimental to the interests of the public ofIndia”. The Governor of Assam in his report dated 8-11-1998 sent to the President of India has clearly said that unabated influx of illegal migrants of Bangladesh into Assamhas led to a perceptible change in the demographic pattern of the State and has reduced the Assamese people to a minority in their own State. It is a contributory factor behind the outbreak of insurgency in the State and illegal migration not only affects the people ofAssambut has more dangerous dimensions of greatly undermining our national security.Pakistan’s ISI is very active inBangladeshsupporting militants inAssam. Muslim militant organisations have mushroomed inAssam. The report also says that this can lead to the severing of the entire landmass of the North-East with all its resources from the rest of the country which will have disastrous strategic and economic consequences. The report is by a person who has held the high and responsible position of the Deputy Chief of the Army Staff and is very well equipped to recognise the potential danger or threat to the security of the nation by the unabated influx and continued presence of Bangladeshi nationals inIndia.Bangladeshis one of the world’s most populous countries having very few industries. The economic prospects of the people in that country being extremely grim, they are too keen to cross over the border and occupy the land wherever it is possible to do so. The report of the Governor, the affidavits and other material on record show that millions of Bangladeshi nationals have illegally crossed the international border and have occupied vast tracts of land like “Char land” barren or cultivable land, forest area and have taken possession of the same in the State of Assam. Their willingness to work at low wages has deprived Indian citizens and specially people of Assam of employment opportunities. This, as stated in the Governor’s report, has led to insurgency inAssam. Insurgency is undoubtedly a serious form of internal disturbance which causes grave threat to the life of people, creates panic situation and also hampers the growth and economic prosperity of the State of Assam though it possesses vast natural resources.

63. This being the situation there can be no manner of doubt that the State of Assam is facing “external aggression and internal disturbance” on account of large-scale illegal migration of Bangladeshi nationals. It, therefore, becomes the duty of the Union of India to take all measures for protection of the State of Assam from such external aggression and internal disturbance as enjoined in Article 355 of the Constitution. Having regard to this constitutional mandate, the question arises whether the Union of India has taken any measures for that purpose.”

It is thus clear that the Supreme Court itself had observed that the State of Assam was facing an “external aggression” on large-scale illegal migration of Bangladeshi nationals. It had also quoted in its observations as to how thePakistan’s ISI was very active inBangladeshsupporting the militants inAssam. And, yet the Government of India wanted to favour the same illegal migrants fromBangladesh! Should we say then that the Government of India is itself trying to support the aforesaid “external aggression” and thePakistan’s ISI and the militants inAssam!

Let the Indian citizens be aware as to what our political parties can do while sitting in the Government itself for their narrow political gains.

Blocking sites and the fundamental right to information

Dr. Ashok Dhamija

May 3, 2012

By Dr. Ashok Dhamija

[Originally written in December, 2006]

The Government of India is putting in place an advance screening system at the bandwidth landing stations to block individual websites and blogs perceived as threats to national security. This includes blocking a particular URL at the sub-domain level.

Well, if the blocking is confined to the matters of national security only , as the report mentioned above suggests, subject also to the necessary safeguards, perhaps one can understand. But, if the intention is to block sites and blogs carrying a different shade of opinion or those criticising the Government or the ruling party or on some other lesser excuse, then one has to object strongly against the proposal. National security is paramount because the interests of the society or the nation as a whole must take precedence over the individual interest, when the same is required in the interests of the national security.

But, let us first see what are the Constitutional provisions in this regard. The fundamental right guaranteed under Article 19 of the Constitution, inter alia, states that all citizens shall have the right to freedom of speech and expression. The Supreme Court has held that the aforesaid right to freedom of speech and expression includes the right to acquire information and disseminate the same. It also includes the right to communicate the information through any available media whether print or electronic or audio-visual, viz., advertisement, movie, article or speech, etc. Moreover, this right also includes the freedom to communicate, circulate or disseminate one’s opinion, without interference, to a large number of persons at the same time within the country as well as abroad.

Giving a wider meaning to the aforesaid right of freedom of speech and expression, the Supreme Court has held that communication and receipt of information are two sides of the same coin, therefore this right includes not only the right of communication but also receipt of information. It is also held that the right to know is a basic right of the citizens of a free country and the aforesaid Constitutional provision guarantees it as a fundamental right.

However, it is pertinent to point out that the aforesaid freedom of speech and expression is subject to certain restrictions, as laid down in the said Article 19 itself [in clause (2) thereof]. The State is permitted to make a law (or to continue to have an existing law) which imposes reasonable restrictions on the exercise of the aforesaid right in the interests of-

the sovereignty and integrity ofIndia,

the security of the State,

friendly relations with foreign States,

public order,

decency or morality, or

in relation to contempt of court,

in relation to defamation or

in relation to incitement to an offence.

However, it is important to further point out that-

Such restrictions can be imposed only by or under the authority of a law. The executive wing of the Government cannot impose any such restriction if there is no authority to do so under a law.

Such restriction has to be reasonable.

The restriction must be in respect of the aforesaid eight purposes only and not in respect of any other purpose.

Whether a restriction imposed by the Government fulfils the aforesaid criteria and is therefore valid or not, is a question which is to be decided finally by the courts when such an action is challenged as a violation of the aforesaid freedom. It is germane to point out that the decision of the Parliament or the Government with regard to a particular restriction on the freedom of speech and expression is thus not final as it is subject to the judicial scrutiny as and when challenged in the courts.

In fact, the recent enactment of the Right to Information Act has further established the right of the citizens to get information in matters specified in the said Act.

It is in the light of the aforesaid Constitutional provisions that the proposed decision of the Government of India to block the websites and the blogs (which are perceived to be against the national security) has to be tested. Of course, the aforesaid restrictions, inter alia, allow restrictions to be made on the said freedom in the interests of the national security. One relevant question is whether the Government will confine itself to the genuine limit of national security only or goes further (in the garb of national security) in the hitherto unknown territories. Another relevant question is whether such restriction will be reasonable within the meaning of the aforesaid Constitutional provision.

There may be some practical limitations though. What happens when the same objectionable material is put on a mirror site (or a number of mirror sites)? How fast the Government machinery can detect such mirror sites and block them too? Then, what if the objectionable material is communicated through email? Moreover, what if the objectionable material is communicated in the encrypted form? What if such material is available only on an online Group which is not exposed to non-members, i.e., how to get information about such material?

There should also be some parity between the print / TV media on the one hand, and the internet on the other. One regularly notices a large number of TV shows or press reports in print media showing interviews with notorious criminals or dons or terrorists from places as far as UAE or Europe or Pakistan. But, there is no ban over them. At the same time, when a website allegedly has some matter on a don or a terrorist or the like, it may be restricted as it happened in July this year (in fact, the whole blogspot website was blocked at that time by some ISPs, under confusing orders of the Government, along with all the sub-domains allocated to the millions of genuine bloggers. Thankfully, the proposed restriction talks of restricting sites at the sub-domain level also, which means only one particular errant blog or part of a website may be blocked instead of blocking the whole of the blogs or the websites). So, there has to be a clear policy with specific guidelines. Moreover, there should be provision for a faster appeal process.

Let us keep our fingers crossed on the proposed restrictions, as sometimes due to an over-jealous approach, the remedy proves to be worse than the disease itself. Moreover, how successfully and effectively such a decision can be implemented is also a thing which can be seen only in the future.

Lip service to eradicate corruption continues

Dr. Ashok Dhamija

May 1, 2012

By Dr. Ashok Dhamija

[Originally written on 20 November 2006]

In what is a ritual for our leaders, we had the President and the Prime Minister paying lip service to the cause of eradicating corruption on two consecutive days. The customary occasion was the 16th biennial conference of the CBI and the Anti-Corruption Bureaux of various states held in New Delhi on November 16 & 17, 2006. It is besides the issue that both these leaders are widely perceived to be men of integrity.

Meanwhile, corruption continues to exist unabated at all levels in the administration. For, words will not do the trick where action is needed. We always hear of grand plans and announcements. But little action follows. And, this little action is also not implemented fully in letter and in spirit.

Consider this rough calculation. The number of public servants in India, including the Government servants under the Centre and the States as well as other categories of public servants (such as those working under PSUs, autonomous bodies, Universities, etc.), may well be in the range of about 20 million. Keeping in view the ubiquitous corruption, we can safely presume that at least about 10% of them (though the public perception may be 90%) may be indulging in one or other sort of corruption. So, we have the number of 2 million. Now, presume that every such corrupt public servant indulges in one corruption transaction per month on an average (though one can see many public servants indulging in tens of transactions each day!), so we have 12 transactions per year per such person. Thus, the total number of such transactions may be about 24 million corrupt transactions per year. Now, compare it with the fact that as per NCRB figures, in the year 2005, a total of only 3008 corruption-related cases were registered all over India. A total of 3008 cases from out of a potential 24 million corruption transactions! And, this figure of 24 million itself may be a gross under-estimation! Where do we stand, Dr Singh?

Next, consider the fate of these small number of registered cases. As against the annual registration of 3008 cases, as per NCRB figures, a total of 14830 cases were pending trial at the end of 2005 (and, this number is increasing year after year). There are many cases pending for over 5 years, 10 years or even 20 years! More than 54 years after we introduced in 1952 the system of Special Courts to ensure speedy trial of corruption cases, the trial of such cases continues to be as tardy as any other type of cases. Governments have failed to understand that a mere change of nomenclature of a Court cannot expedite the trial. What we require is the sufficient number of new courts, and not merely renaming of the existing courts as Special Court. In fact, now it has become a fashion to have Special Courts for all types of cases, be it TADA cases, MCOCA cases, investor-related cases, SC/ST related cases, or narcotics cases, etc. But, instead of setting up new courts, the existing courts are re-designated on exclusive or non-exclusive basis. With judge-to-population ratio of only about 12 judges to one million in the year 2005, which is just a small fraction of what it is in other countries, trials are bound to be delayed. And, with delay in trials, it becomes more difficult to secure conviction of corrupt public servants, as witnesses may disappear, might have died, might have been won over with passage of time, their memory may fade, and many other similar reasons. Governments just seem to be blind to such delay, like the goddess of justice – beautiful but blind.

Want to know about conviction figures? Well, in the year 2005, only 651 corruption-related cases ended in conviction out of a total of 2048 cases decided. We do not have figures about convictions after decision in appeal in such cases. A country of 1.1 billion people, perceived to be one of most corrupt countries, has a total of 651 convictions in a year in corruption-related cases!

In the 2006 Transparency International Corruption Perception Index, India ranks a lowly 74 (well, a combined 70th rank), having scored just 3.3 points on a scale of 10.

Former Prime Minister Rajiv Gandhi had once remarked that 85% of public money spent on development lands in private pockets, courtesy corruption. This means that just 15% money actually reaches the targeted expenditure. Means that we could have had seven schools in place of existing one, seven hospitals in place of existing one, seven roads in place of existing one, and so on and so forth; but for corruption. Can you fathom the ill-effects of corruption, direct or indirect, better than this?

During the 11th Plan, the Planning Commission estimates speak of about Rs. 10 trillion (10 lakh crore) to be spent on development work. How much of this will reach private pockets, courtesy widespread corruption, is anybody’s guess. But the Governments will not bother to eradicate corruption even if this whole money goes down the drain. What is the use of spending such huge money for development when it cannot deliver the intended results? Who are the Governments working for? Private pockets or public at large?

Government approach to corruption becomes clear from the fact that several persons who are widely perceived to be corrupt, because of pending cases or otherwise, are enjoying ministerial benefits with impunity. Should we say, “Corruption begins at home” (sorry for the word “charity”)! Government apathy also becomes clear from the fact that when it comes to grant of sanction for prosecution in corruption cases involving senior level officers, it is many a time refused, while sanction against low-level Government servant is usually granted.

Does anybody remember the history of last about 37 years or so of the Lokpal bill?

No doubt, measures like Right to Information Act and the e-Governance (e.g., availability of land records, court judgments, etc., on Internet or through information kiosks; or e-filing of documents in Customs department and Company matters) have been useful anti-corruption exercises besides bringing transparency to the administration. But, all this is nothing more than the proverbial tip of the iceberg. The tentacles of corruption are too omnipresent. What else can explain the fact that the World Bank has rated India at 134th place from out of 175 countries in terms of ease of doing business? Does it not mean too much of bureaucratic hurdles and the consequent corruption? Delay is an inherent part of any Indian Government department. Does delay not breed corruption? What about dismal performance in education, health, sanitation, social and physical infrastructure? What about Government figures of 22% poverty even 60 years after independence? After Government spending of huge monies, subsidies – year after year? What about defence purchases? What about DRDO? What about Rural Employment Guarantee Schemes? If all these are not the indicators of widespread corruption, then what these are?

It is high time that Governments in India, in Centre and States, translate words into real action. Otherwise, if we don’t finish corruption, it will gobble us up.

Making scientific evidence admissible – Part 2

Dr. Ashok Dhamija

May 1, 2012

By Dr. Ashok Dhamija

[Originally written on 12 November 2006]

In continuation of my previous article on the subject Making scientific evidence admissible, I wish to add a few very important points in this article. In this regard, I express my gratitude to Dr S. Krishnamurthy, a former IPS officer & retired DGP and currently an Advocate & scholar based at Bangalore, for his illuminating and thought-provoking views on the aforesaid article in an online Group. I take the liberty of quoting the essence of his views here so as to enable me to develop the subject further. Put succinctly, Dr Krishnamurthy’s opinion is that there is a subtle difference in new tests like narco-analysis and polygraph vis-à-vis the old tests such as taking blood-sample or fingerprints etc. He has rightly pointed out that this subtle difference lies in the old tests being more in the nature of physical tests with no oral testimonial part, whereas some of the aforesaid new tests do involve something more than the mere physical tests. He also rightly brought out the fact that this something more in the new tests does involve an element of testimonial compulsion in one way or the other, at least to some extent, or so does it appear. He has also mentioned that a good number of police officers are of the view that such tests should be permitted…, and also that public seems to clamour for such tests and at times they have been asking for such tests on even VVIP’s….

I admit in all fairness that in my aforesaid previous article, I missed the point of this subtle difference between the traditional scientific methods and the newer scientific methods. I further admit that I am also one such person who supports such tests provided they have a reliable scientific basis. My point is that if you don’t introduce new scientific methods (if they are reliable too) for doing investigation and for collecting evidence, then what do you want? Continue with the third degree methods which the police is always supposed to be using? Or continue with the unscientific methods of investigation or of evidence-collection? Or do nothing and have a sub-standard investigation, so that the accused persons can easily be let off? Who will pay the price for such an attitude? The society. Hence, in my view, there is no alternative to adopting new scientific methods provided, of course, if they are reliable.

Having said that, let me now expand on this subject. DNA fingerprinting is one such test where there is ample evidence of its scientific authenticity. Polygraph and narco-analysis tests…? Well, in respect of these two tests, I feel that one needs to do some more home-work before being able to say that they are fully reliable and authentic from scientific point of view. As of today, all I can say is that, without undermining the importance of these two tests, if they are not the products of exact science then at least they are the products of an empirical science. May be after some further study into this particular aspect, I may be in a position to come back with some definite view about the same.

In the next part of this write-up, I am proceeding only from the point of view of the constitutional bar under Article 20(3) of the Constitution of India on the ground of testimonial compulsion as well as the limitations imposed by the Anglo-Saxon legal principles, for the said two tests of polygraph and narco-analysis (in so far as the DNA test is concerned, this question is not of much importance because as rightly mentioned by you it is a physical test). Therefore, for the purposes of the following discussion, I am presuming that these two tests are scientific reliable (at least for the sake of this discussion). My views in this regard are as under:

1. In so far as the use of these two tests on a witness is concerned, there should be no problem. The Constitution does not debar it and so is the case with the Anglo-Saxon principles.

2. In so far as the use of these two tests on an accused in certain cases, wherein the accused voluntarily submits himself to such tests, is concerned, again there should be no problem. This is so because, in a voluntary submission, the element of compulsion is absent thereby removing the fetters of Article 20(3) of the Constitution. Moreover, under Anglo-Saxon legal principles also, there should be no problem for such voluntary submission, because these principles have long permitted even full-fledged confessions under Indian laws if they are voluntary.

3. Let me now cover the real cases of using these two tests on an accused when he is not willing for them.

4. I am of the opinion that law and justice do not always cohabit. Many a time, they are at the opposite ends of the spectrum. When law is complied with, justice might still not have been done (we see it in our law courts everyday). And, when justice is done, law might not have been complied with (to take some crude examples, the so-called justice done by a gang; or so-called justice delivered to a criminal eliminated in an encounter; in these cases, at least some people genuinely believe that justice was done, though means used might not have been lawful). So, law and justice are often at odds. This being so, I would like to take the side of justice at least in those limited cases wherein justice is delivered not by violating the law but by adapting the law. This is what is the essence of Article 142 of the Constitution, which gives power to the Supreme Court to do complete justice in any cause or matter pending before it. And, this power can be exercised by the Supreme Court by suitably adapting the laws or may be even despite the laws. Moreover, the basic reason for a large number of legal principles, i.e., the ratio decidendi laid down by the Supreme Court (Article 141) is by adapting the laws suitably to do justice or for the common good.

5. So, what it means is that laws have to be adapted for common good, with changing genuine needs of the society. Once it is accepted, my task becomes simple.

6. So, the first question which I ask myself is whether use of these two scientific tests is for the common good of the society? I do not know what others will say, but my answer will be an emphatic yes provided of course if their scientific reliability is guaranteed and which reliability I am presuming here for the purposes of the present discussion for the limited point of constitutional bar etc., as mentioned earlier.

7. And, once it is accepted that these two tests are for common good of the society, then I have no hesitation in saying that, if need be, the laws may have to be adapted to make way for these tests. When the question is that of the interests of the whole society, the law has to become a servant of the society and not its master. Priorities of the society as a whole will take precedence over those of the individual. If the Anglo-Saxon legal principles come in the way, they have to be adapted suitably, if need be. After all, haven’t we adapted some of these principles already in TADA, in POTA, and other similar Acts? What about the strict liability cases? What about the conclusive proof matters? Of course, I am not advocating an absolute departure from these well-established and well-meaning principles which have served the society now for quite long time. But, what about some consequential changes? What about some adaptations here and there? And that too, without sacrificing the basic philosophy thereof, by putting in place various safeguards and inbuilt safety mechanisms. I’ll revert to this question slightly later when I discuss about adapting the Constitution in special circumstances.

8. Let me now cover thread-bare that dreadful phrase testimonial compulsion which is barred qua an accused, under Article 20(3) of the Constitution. Let me do some hair-splitting of each of these two words separately.

9. Consider the word testimonial first. Admitted, it talks of an oral account of something. But, if I may be permitted to stretch it a little, my question is oral account of which mind – a conscious mind or even a sub-conscious mind? I feel that oral accounts requires a conscious effort on one’s part to think and reply by making use of one’s mental facilities. So, a conscious mind is pre-supposed. But what about asub-conscious mind from where information is taken out more in a mechanical manner from the stored information in the hard-disk of human brain (much like the blood sample is taken out from the body) and not in any conscious form of there being any effort to think and reply? Will it still amount to testimonial if some information is taken out from a person in a mechanical manner from a sub-conscious state of mind after administering some so-called truth-syrup in a narco-analysis test? So, there is a scope for dong a twisting the words exercise on the word testimonial a la the method often used in good faith by the Supreme Court to lay down a particular legal principle by adapting the words or laws.

10. Now, let me try to use scissors on the word compulsion. Can we give a meaning to this word in the sense of some threat, or force, or coercion? Fortunately, I am fortified in my view here by the following observations of R.M. Sahai, J., in the case of Kartar Singh v. State of Punjab, (1994) 3 SCC 569 : 1994 Cri LJ 3139:

“The word, compelled ordinarily means by force. This may take place positively and negatively. When one forces one to act in a manner desired by him it is compelling him to do that thing. Same may take place when one is prevented from doing a particular thing unless he agrees to do as desired. In either case it is compulsion.”

Let us take it further from here. Blood samples, finger prints etc. are already being taken from an accused even against his wish. His medical examination is already being conducted even against his wish. Similarly, one should be able to possibly administer a truth-syrup to the accused; and there should be no problem here from the words compulsion or compelled. Now, once under the effect of the truth-syrup, the accused starts speaking up on his own – no physical force is used in the sense of meaning of the words compelled or compulsion. Accordingly, where is the question of compulsion being resorted to while conducting a narco-analysis test or at least can’t we adapt the words in this manner?

11. Same will be the case with polygraph test. One is not compelling the accused in the sense of using any “force” as what is being done here is using a physical method of putting some electrodes on his body (much in a similar manner like taking a blood sample or urine sample by physical methods) and then allowing the accused to answer the questions and analysing them.

12. This discussion leads us to the possibility of adapting these two words testimonial as well as compulsion in a manner so as to serve the cause of the common good of the society. Therefore, the phrase testimonial compulsion may perhaps not be applicable to the said two tests of narco-analysis and polygraph as well. Let us hope for a positive judgment of the Supreme Court on this aspect.

13. Contents of this paragraph are without prejudice to the other discussion. Dr Krishnamurthy (please see above) had also referred to the Anglo-Saxon concept of “not drawing evidence from the accused by force or other ruse”. I am on the word evidence here. I’ll go to the extent of saying that even if we follow this principle in letter and spirit, it’s OK; we’ll not use the information drawn from the accused (using these new tests) as evidence, but can’t we make use of this information at least for collecting further information or for getting some leads or clues for the investigation? What is the harm if such information is collected from the accused with the help of such tests, but the same is used only for the purpose of helping the further investigation but not for adducing it as evidence in court? In any case, in a large number of cases, we do record the oral statement of the accused, we do interrogate him, we do use the provisions of S. 27 of the Evidence Act (which makes the limited aspect of “discovery of a material fact” from the accused an admissible fact). Much of such information collected from the accused is not submitted to the court as evidence. But, nonetheless, such information is useful for some other purposes. In a similar manner, can’t we use these two tests also just for the sake of collecting information or leads but not for using the same as evidence? And, in fact, the constitutional bar under Article 20(3) is also only for compelling an accused “to be a witness against himself”. But, we are just collecting information. We are not using this very information as evidence. So, where is the question of “making him a witness against himself”? In any case, as mentioned above, when the bar does not apply to recording the statement of the accused in a normal manner, how can it become objectionable if a similar statement is recorded under the conditions of a test if no compulsion is inherent in the test as explained above? After all, if the objection was on the ground of testimony, then recording a normal statement is also testimony but which is not banned. So, I feel that again from this angle also, if the information is not to be used as “evidence” but for the purposes of information only, there should be no problem either from Article 20(3) or from the Anglo-Saxon principles.

14. Again, without prejudice to other submissions, such scientific tests may be made admissible, but the question of “how much weightage?” can be left to the court concerned or even better can be made subject to some rules of caution or prudence. For example, it may be possible to lay down that while the result of such a scientific test is admissible in evidence, it shall be used only for the purposes of corroborating other facts or that a conviction shall not be based solely on such an evidence or that it shall not be the basis of a conviction by itself unless it is corroborated in material particulars by independent evidence.

15. This brings me to the last point of this discussion. All said and done, suppose the Court still holds that these two tests are barred under the protection guaranteed to the accused under Article 20(3). OK. Is it the end of the road? The answer is an emphatic No. Can’t we amend the Constitution? For the sake of common good of the society? In a reasonable and limited manner? With some safety mechanisms in place? Haven’t we amended the Constitution on 93 occasions already? What was the 42nd Amendment – wasn’t it called a mini Constitution in as much as it amended a very large number of provisions of the Constitution in a very cavalier manner? Is the Constitution so sacred that it cannot be touched or it cannot be changed even if the future generations require it genuinely? Can the old (or the dead) generations bind all the future generations in perpetuity with whatever Constitution they framed? Is the Constitution meant for the present living generations or for those dead generations or persons who are no more a part of the society? I am a strong believer of the principle that a Constitution must be amendable in all respects – albeit with varying degree of rigidity of method depending upon the importance of the provision concerned. I have some strong views here (in fact, I have completed writing a book on the subject of Constitutional Amendment and it is likely to be published shortly). Therefore, what I would like to submit is that if the greater interests of the society are to prevail or if the common good of the society is to be ensured, the Constitutions are required to be amended sometimes in good faith and for genuine purposes.

15. So, if need be really so genuine, the Constitution may have to be amended – at least in a limited manner without compromising too much!

To conclude, instead of depending on some other shoddy methods of investigation, let us try to make use of the scientific methods, wherever feasible without compromising on the basic philosophy of a just and fair criminal justice system.

Making scientific evidence admissible

Dr. Ashok Dhamija

May 1, 2012

By Dr. Ashok Dhamija

[Originally written on 12 November 2006]

It is reported in the Times of India newspaper that the Union home minister Shivraj Patil on November 8, 2006, said that laws will soon be upgraded to make scientific evidence admissible in courts. This article examines the question of validity of such a law, as and when passed.

The question of constitutionality of the proposed law relating to admissibility of scientific evidence such as polygraph, narco-analysis, DNA fingerprinting, etc., has to be tested on the touchstone of Clause (3) of Article 20 of the Constitution, which lays down:

“(3) No person accused of any offence shall be compelled to be a witness against himself.”

It is to be understood firstly that there is no bar against a law relating to the admissibility of a scientific evidence if it is conducted on a witness (and not the accused) as the constitutional bar is only against the accused being compelled to be a witness against himself. Therefore, in so far as the proposed law laying down about the admissibility of the scientific evidence relating to subjecting a witness to say, narco-analysis or polygraph test, etc., is concerned, it cannot be declared unconstitutional on the aforesaid ground. That said, there may be other grounds of attacks or objections against even such a proposition, which I shall deal with slightly later.

Secondly, the other possibility is that the scientific examination such as polygraph, narco-analysis, etc., is conducted on the accused himself. In such a case, while it is true that the aforesaid provision of the Constitution puts a fetter on an accused being compelled to be a witness against himself, at the same time it is pertinent to point out that the approach of the courts in India has been to take a liberal view in such matters, i.e., the judicial opinion has been more in favour of allowing such scientific examination and not allowing the aforesaid fetter to come in the way.

The aforesaid protection can be analysed to consist of three main ingredients:

(i) This protection (which is a fundamental right) is available to a person who is “accused of an offence”.

(ii) The protection is against “compulsion” to “be a witness”.

(iii) The protection is available only when such “compulsion” relates to the giving of evidence “against himself”.

It is pertinent to point out that in the case of “State of Bombay v. Kathi Kalu Oghad”, AIR 1961 SC 1808, the Supreme Court (by a Bench of 11 Judges – one of the biggest Benches in the history of the Supreme Court) had ruled that the aforesaid Article 20(3) is not violated when an accused is directed to give his specimen handwriting, or signature, or the impression of his palms and fingers. The Supreme Court observed in this case:

“To be a witness may be equivalent to furnishing evidence in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for purpose of identification.”

It may be stated that the examination of the body of the accused by a medical practitioner is permitted in certain cases under S. 53 of the Criminal Procedure Code, 1973, itself, and its constitutional validity remains intact till date:

“53. Examination of accused by medical practitioner at the request of police officer. (1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.”

It has been held in an old Madras case (Subbaya Gounder v. Bhoopala, AIR 1959 Mad 396) that compulsory taking of urine and blood samples from an accused is not hit by Article 20(3) as it is not testimonial compulsion.

In the case of “State of Gujarat v. Shyamlal Mohanlal Choksi”, AIR 1965 SC 1251, the Supreme Court noted the existence of provisions, inter alia, including the compelling an accused to submit himself to examination by experts in medical science, by observing: “Provision has been made requiring a person accused of an offence to give his handwriting, thumb marks, finger impressions, to allow measurements and photographs to be taken, and to be compelled to submit himself to examination by experts in medical science.”

It is true that the Supreme Court has not given its definite verdict about the question whether an accused can be compelled for subjecting him to latest scientific examinations like the polygraph, narco-analysis, DNA fingerprinting. But, in the recent case of “Jitubhai Babubhai Patel v. State of Gujarat”, (2005) 10 SCC 545, the Supreme Court came quite close to deciding this issue. The main question in that case was whether narco test can be conducted without the consent of the petitioner. However, in that case, the respondent State, on affidavit, took the stand that it did not want to conduct the said test without the consent of the petitioner. In view of this fact, the Supreme Court observed that insofar as the said case was concerned, the point in issue had become only academic and, therefore, the Court left it to be decided in an appropriate case.

At the same time, it is to be appreciated that there is no case till date in which the Supreme Court has held that these new scientific tests such as polygraph, narco-analysis or DNA fingerprinting etc. cannot be conducted against the accused himself.

In my opinion, going by the decision of the Supreme Court in the aforesaid case of “State of Bombay v. Kathi Kalu Oghad”, wherein scientific tests of more or less of a similar nature, such as giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body, were permitted against the accused in spite of the provisions of Article 20(3), in so far as the question of constitutionality under Article 20(3) is concerned, perhaps it may not come in the way of conducting the new scientific examinations such as polygraph, narco-analysis, or DNA fingerprinting on an accused also.

However, as mentioned earlier, there may be other issues of opposition against such new scientific tests, which we shall discuss now.

The most serious objection against such new scientific tests could be the reliability and authenticity of such tests.

In a recent case of an IPS officer (Maharashtra:1968) vide “Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra”, (2005) 5 SCC 294, the Supreme Court had the occasion to study the question of authenticity or reliability of a new scientific test such as the narco-analysis.

The case of “Frye v. United States”, 293 F 1013 (DC Cir) (1923), was quoted wherein it had been stated: “Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in the twilight zone the evidential force must be recognised, and while the courts will go a long way in admitting the expert testimony deducted from a well-recognised scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field to which it belongs.”

Then, the Supreme Court quoted another US case of “Daubart v. Merryll Dow Pharmaceuticals Inc.”, 113 S Ct 2786 (1993), wherein a more liberal approach was adopted observing that for admissibility of the scientific evidence the court may consider the following:

(a) Whether the principle or technique has been or can be reliably tested?

(b) Whether it has been subject to peer review or publication?

(d) Whether there are recognised standards that control the procedure of implementation of the technique?

(e) Whether it is generally accepted by the community?, and

(f) Whether the technique has been introduced or conducted independently of the litigation?

In two other US cases quoted in the said case, it was basically laid down that the gatekeeping obligation of the trial Judge to ensure the relevancy and reliability for admitting the evidence extended not only to scientific but also to all kinds of expert evidence.

In the case of “R. v. Watters”, 2000 All ER (D) 1469, it was held that the DNA evidence may have a great significance where there is supporting evidence, dependent, of course, on the strength of that evidence, and that in every case one has to put the DNA evidence in the context of the rest of the evidence and decide whether taken as a whole it does amount to a prima facie case.

In the aforesaid case of “Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra”, as the prosecution did not rely upon the report of narco-analysis before the High Court, the Supreme Court did not place any reliance thereupon.

And, accordingly, this question relating to the authenticity of narco-analysis still remains unresolved. However, I may hasten to add that in the recent case of Sharda v. Dharmpal, (2003) 4 SCC 493, the Supreme Court had taken a sympathetic view regarding the DNA evidence in matrimonial cases. But, one has to wait for a full-fledged judgment of the Supreme Court in so far as the criminal cases are concerned. An interesting situation may arise if the Parliament passes an Act (as it is proposed) to permit the admissibility of such new types of scientific tests without first fully establishing their authenticity, and the Supreme Court observes in future (on evidence being shown to it) that such tests are not fully authentic as of the date of such future judgment; such a situation may result into such proposed Act getting invalidated. Hence, I am of the opinion that instead of hurrying through such a legislation, the Government must first arrange wide-ranging consultations with experts and open public debates, and may even appoint an expert body (or may be ask the Law Commission) to examine the issue in detail and thereafter submit its report.

To conclude, in so far as the admissibility of scientific evidence under the new tests such as polygraph, narco-analysis, DNA fingerprinting, etc., is concerned, I am of the opinion that-

(1) The question of constitutionality of a proposed law relating to the admissibility of a scientific evidence if it is conducted on a witness (and not the accused) would not arise as the constitutional bar is only against the accused being compelled to be a witness against himself.

(2) The question of constitutionality of a proposed law relating to the admissibility of a scientific evidence if it is conducted on an accused himself is open right now in as much as there is no Supreme Court judgment in respect of such newer types of scientific tests. But, going by the existing decisions of the Supreme Court, as aforesaid, wherein scientific tests of more or less of a similar nature were permitted against the accused in spite of the provisions of Article 20(3), in so far as the question of constitutionality under Article 20(3) is concerned, perhaps it may not come in the way of conducting the new scientific examinations such as polygraph, narco-analysis, or DNA fingerprinting on an accused also.

(3) But, the most serious objection against such new scientific tests could be the reliability and authenticity of such scientific tests.

(4) Instead of hurrying through such a legislation, the Government must first arrange wide-ranging consultations with experts, open public debates, and get the issue examined in detail.

[Also see: Making scientific evidence admissible – Part 2.]

Government encouraging corruption in police?

Dr. Ashok Dhamija

May 1, 2012

By Kiran Bedi and Ashok Dhamija

[This article was originally published in the leading newspaper Hindustan Times, Chandigarh edition, on 12 June 2008. Read the original article in the PDF form here.]

Corruption in police is an allegation one often comes across. How many of us are, however, aware that sometimes the system itself compels police to indulge into corruption for performing some task which, in fact, is the legal obligation of the judiciary?

In conformity with the principles of natural justice, law requires an accused person to be provided with a copy of the charge sheet filed against him in a criminal case along with copies of all statements and documents which are proposed to be used against him in the trial.

Under Section 173(4) of the old Code of Criminal Procedure of 1898, it was the duty of police to supply copies of such documents to the accused. However, the Law Commission noticed that this arrangement did not work satisfactorily as the police did not have the necessary equipment for furnishing legible copies in time, and it usually led to delays in the commencement of the proceedings in a trial.

Read the full article in PDF form as published in Hindustan Times.

Protecting investors’ interests from Vagaries of delisting of shares

Dr. Ashok Dhamija

May 1, 2012

By Dr. Ashok Dhamija

[This article was originally published on 7 July, 1999 in the leading financial daily, Financial Express. See the link below.]

Every company coming out with a public issue of shares or debentures is compulsorily required under Section 73 of the Companies Act, 1956 to get them listed with one or more recognised stock exchanges to facilitate trading in these bourses.

The prospectus issued at the time of a public issue of shares or debentures must mention the names of the stock exchanges where application for listing of such securities has been made. If a company fails to obtain listing permission from all the stock exchanges where the shares are proposed to be listed, the allotment made in pursuance of such a prospectus is void.

In view of the amendment made to Section 73 in 1974, which was intended to nullify the effect of the Supreme Court’s judgement to the contrary in Union of India vs Allied International Products Limited, AIR 1971 SC 251, it is now necessary for a company to obtain permission for listing from all the stock exchanges to which application for listing was made. Even if one stock exchange refuses permission forlisting, the allotment would be void.

Read the full article in Financial Express.

Power to refuse free transfer of shares

Dr. Ashok Dhamija

May 1, 2012

By Dr. Ashok Dhamija

[This article was originally published on 2 August, 1999 in the leading financial daily, Financial Express. See the link below.]

Free transferability of shares of public companies ensures permanent capital to the company, while at the same time ensuring liquidity of shareholder’s investment. Shares of public companies are made generally freely transferable without the need to take permission from the company or any other agency. To facilitate this, shares or any other interest of a shareholder in a company has been declared by law as movable property in Section 82 of the Companies Act, 1956. Till recently, companies were permitted to place reasonable restrictions on transferability of shares, however, a company could not completely prohibit transfer of shares. The Companies Act did not restrict the grounds on which a company could refuse to register a transfer of shares. However, in the case of listed companies, Section 22A of the Securities Contracts (Regulation) Act, 1956, the board of directors could refuse to register a transfer on only one or more of the following four grounds: The instrument of transfer is not proper or has not been duly stamped and executed or the certificate relating to the security has not been delivered to the company or that any other requirement of law relating to such transfer has not been complied with; or the transfer is in contravention of any law or rules made thereunder or any administrative instructions or conditions of listing agreement; or the transfer is likely to result in such change in the composition of board of directors as would be prejudicial to the interest of the company or to the public interest; or the transfer is prohibited by any order of any court or tribunal or other authority under any law for the time being in force.

Read the full article in Financial Express.

Police Reforms – Selecting Police Chiefs

Dr. Ashok Dhamija

May 1, 2012

By Dr. Ashok Dhamija

[This article was originally published on 3 November 2006 with the title of “Will Kiran Bedi be made the next Delhi Police Commissioner?”. Updated in 2012.]

The other day somebody asked me about my comments in respect of the recent order passed by the Supreme Court [Prakash Singh v. Union of India, (2006) 8 SCC 1] for improvements in the police system which, inter alia, included a provision for constituting Committees for the purpose of considering appointments / transfers to important positions in the police department. My simple answer was that I’ll judge the success of the new system on the touchstone of whether Kiran Bedi would or could be appointed as the next Delhi Police Commissioner by the newly constituted Committee for Delhi state (if you so wish, you may replace “Delhi” with some other state and “Kiran Bedi” with some competent and no-nonsense officer of that state; but, beware of many fake “high-profile” brand names with carefully-crafted images through media-management).

Disclosure: I do not hold any brief for Kiran Bedi. But, yes, I do hold a brief for my poor country.

Disclaimer: This writing is with no malice towards one and all. In particular, there is no malice against the incumbent officers or other potential candidates for the important police posts. “Kiran Bedi” name is used here as an icon of a competent officer.

Apologies: My public apologies are due to Kiran Bedi for using her name without her permission. She being a well-known public figure, I have presumed that her “right of privacy” will not preclude me from using her name in this non-derogatory manner.

We have seen for long as to how Committees work in this country. “Committee” is a ploy used by the people in power to achieve the miracle of doing “indirectly” what cannot be done “directly” (i.e., get formal recommendations from a Committee in respect of the otherwise indigestible facts to put them on a higher pedestal of having come from so-and-so high-level Committee). “Committees” are also useful for buying time when some important decision is to be avoided or when the attention of the public is to be diverted for the time being (“yes, we have referred the matter to a high-powered Committee, so wait for the report of the Committee”; what is not told is that the Committee will seek extensions after extensions for submitting its report). “Committees” can also be appointed for scrutinising the reports of the earlier Committees, or for giving further opinion on the reports of such earlier Committees. “Committees” are also useful tools for scuttling an investigation or enquiry done by some investigating agency or by some earlier unfriendly Committee (remember the latest episode of Justice U. C. Banerjee Committee set up by the Railways Ministry when a Commission set up by the Gujarat government was already conducting an inquiry; and the Gujarat High Court recently held that the setting up of the second panel was illegal). In fact, the various uses to which Committees can be put, may well itself have to be examined by some high-powered Committee to prepare an exhaustive list of all imaginative objectives.

We have a Selection Committee in Cricket which acts as a proxy to the BCCI. Because the BCCI does not want to get the blame of being partisan or of practising nepotism or favouritism in the selection of players for the “Team India”, therefore it has decided to constitute a Selection Committee from time to time. But how is the Selection Committee itself selected and by whom and in what manner? Well, the answer lies in the oft-repeated allegations of bribes, favouritism, regionalism, nepotism, and many other “isms”.

Moral of the story: The selection process of the selection committee itself is also important. So is the question of transparency.

We have the privilege of having seen the reports of a large number of Committees and Commissions. Barring a few honourable exceptions, the reports are usually on the side of their mandate (oh yes, we recently had one such exception in the report of Justice S. Narayan Commission in the Delhi-Agra Taj Expressway matter which gave a timely report and also a report which was against what was supposed to be its mandate). The exercise is usually to justify the causes or the reasons for which the Committee was constituted. No doubt, many, if not most, of the reports of the Committees are shown the way to the dust-bins with or without filing of ATR (action taken report), and with or without making them public, after the purpose for which they had been constituted has been served.

It goes without saying that recommendations of most of such Committees may not even engage the attention of those who constituted them, leave alone implementing them. There are ways of scuttling them, if needed, by splitting the hair in the ATRs. And, if it is not possible to scuttle an unfavourable recommendation of a committee, simply delay its implementation – after all “red-tapism” is our favourite manner of inflicting unnatural death to a live matter without formally “killing” it. How to delay? Well, we shall have another Committee to look into the recommendations of the….

The charm of appointing Committees is so much that at the last count we have some 63 Group of Ministers or Cabinet Committees in the Union Government Cabinet when the strength of the latter itself is about 80.

Coming back to the question of the Selection Committees to be appointed under the recent order of the Supreme Court for appointments / transfers to higher-level police posts, I feel that we’ll have to judge the effectiveness of the new system by the quality of the officers selected to (wo)man the higher-level posts. For example, if such a Committee can select an officer such as Kiran Bedi for the post of Delhi Police Commissioner, and ensure that she gets the full tenure in that post, then the new system can perhaps be called a success.

They may say, BPR&D (Bureau of Police Research and Development) is a very important department and therefore Kiran Bedi is required to continue heading that agency; well, that may be a way of depriving the public of a competent officer in the post which really matters. With due respect to the agency called BPR&D, it may be important or may even be very important but it cannot be more important than the post of the Police Commissioner of Delhi insofar as the people of Delhi are concerned. What usually happens to the reports or research reports of the BPR&D is anybody’s guess. Remember what happened to the report of the National Police Commission which is gathering dust for last about 26 years? But, the post of the Police Commissioner in a city like Delhi concerns the lives of one crore plus people on a day-to-day basis. One has to see to believe as to how much difference a strong leader can make when appointed in the top post. An efficient officer in number two or number three position may not make much of a difference if the number one position is occupied by a pliable officer. It is the topmost post which is to be occupied by a (wo)man whose spinal cord is stiff and cannot bend. We do not want an officer whose body is a gymnastic body which can bend in any direction as per the dictates or even the slightest indications of some other authority wielding a remote control. We want a (wo)man with a body and the mind of steel. The steel should also be the one which is used for making something like the railway tracks, i.e., which will not bend even when a heavy train runs over it. We do not want the flexible steel which is used for making coils or bendable or foldable sheets. Once it is such pure solid steel, it does not matter whether it is made by Arcelor-Mittal or Tata-Corus (did you say SAIL also? Sorry, I am “smelling” some Chemical-n-Steel Ministry… No-no, no political interference please!).

Delhi had seen Kiran Bedi in action during the Asian Games. Now the Commonwealth Games are fast approaching to be held in Delhi in 2010. Let the action be repeated again. Otherwise the whole world will “miss” the games and will watch the “mess”, which the Delhi city is in right now.

The question is whether such an officer would be selected by Selection Committee, if and when it comes into existence as per the orders of the Supreme Court? Of course, the first question should have been whether the Government will implement the aforesaid order of the Supreme Court, or will it play its favourite hide and seek game with the Supreme Court (which it often does in many matters nowadays) to somehow or the other try to scuttle the aforesaid order? Presuming that the order would be implemented, it remains to be seen as to how the whole process will evolve. What is the constitution of the Committees, who all are selected on such Committees, whether their recommendations are promptly and genuinely accepted or efforts are made to conduct a bypass-surgery on them by delay or otherwise, whether such Committees become a plaything in the hands of the political masters, whether the members of such Committees use the method of “you scratch my back and I scratch your back” which means “you support my candidate for one post and I support your candidate for the other post” and thereby distribute the available important posts to the favourite candidates of one another. In any case, the “final” choice of selecting the “final” candidate from the panel of officers “finally” recommended by the Selection Committee (after the matter travels several time to-and-fro between the Committee and the Government, like a tennis ball) rests with the political executive itself. How that is done is also a relevant question.

Moreover, the ultimate power of supervising the work of such police leaders and thereby the disciplinary control over their carrier prospects, rests with the political executive only. The job of a police leader is to walk bare-footed on a bumpy and uncertain road fully covered with sharpened objects (yes just like a road maintained by our municipalities before they are directed and forced by the concerned High Court in some PIL to fill up the potholes). You are required to deal with situations which are created suddenly by others without any prior notice. With ever-increasing tension in the society, with internal as well as external threats (but I am including ISI as an internal threat as it is active apparently only in India), the situation can suddenly become explosive. You’re always required to act like a fire-fighter with prompt response and with no time to think or plan on most occasions. Your acts and omissions may have serious consequences for the political executive as well, e.g., a serious law and order or a public order problem may result into overthrowing of a State Government (it is another matter that most of the law & order situations are by-products of the policies of such Government itself). The stakes being so high for the political executive, it is but natural that it would like to exercise immense control over such police leaders. And, the powers for such control do exist even today as the Supreme Court order does not cover them. Moreover, on the other hand, the police leaders will also naturally require the continued support of the political executive (the Committee may not be of much help when a written complaint of “proven misbehaviour” can be manufactured against the incumbent officer). Therefore, one is to watch and see whether their relationship gets converted into a marriage of mutual convenience at a later stage (yes, one does not have to bother now whether it is a formal marriage as “living together” is sufficient and a “formal marriage” is not necessary – courtesy the new Protection of Women from Domestic Violence Act, 2005, which came into existence just recently in October, 2006).

Ultimately, the working of such a police leader cannot be likened to the working of an independent body like the Election Commission, which has its independence guaranteed under the Constitution itself. In fact, there have been allegations into the working of the Election Commission also and against the selection process of its members, as seen recently itself (did you forget the donations to the “trusts” coming from the “official” funds of MPs of a single party?). So, what will happen to the…!

Well, all said and done, something is better than nothing. Let us not try to prejudge the results. The yardsticks are there, the touchstone is there. The touchstone will have to be used only after such Committees are constituted. We can tell the effectiveness of the new system after it comes into existence, as and when, and if, it does. Meanwhile, all a common citizen like me can do is to wish all the best for the new system.

Update (1 May 2012): Well, this article was written in 2006, and, we’re now in 2012. There is hardly any improvement in the system, as I had apprehended at that time. In fact, the aforesaid case of Prakash Singh v. Union of India, (2006) 8 SCC 1 is yet to be implemented fully. This case is now being heard again in the Supreme Court for past more than two years (though for the stated purpose of its implementation). It may be pointed out that I had filed a PIL in the Supreme Court the name of an NGO (Lokniti Foundation) in December, 2010, for carrying out reforms in police recruitment for introducing an objective and transparent police recruitment process as suggested by the National Police Mission which has been set up on the instructions of the Prime Minister Dr. Manmohan Singh. This PIL [vide Writ Petition (Civil) No. 417 of 2010] is now tagged with the aforesaid case of Prakash Singh, and the two matters are being heard together in the Supreme Court. However, the last date on which these matters were heard, was in April, 2011, and for last more than one year, not even a single date has been given for hearing of these cases. So, the aforesaid police reform in the matter of selection of police chief continues to be more or less in limbo. Moreover, though the method of selection of police chief in various states has undergone some change, the net result appears to be a big zero, since we’re yet to see better police chiefs being selected and the politicking continues.

The Missing Muslim – Part 2

Dr. Ashok Dhamija

May 1, 2012

By Dr. Ashok Dhamija

[Originally written on 5 November 2006; updated in 2012]

In continuation of my earlier article on this subject [The Missing Muslim – What Next?], let me analyse further the representation of the Muslims in some important walks of life and their contribution thereto.

The richest Indian for last several years has been Aziz Premji of Wipro, whose personal net worth is in the range of about Rs. 60,000 crore (more than US $12 billion). So, he is better off than ALL of about 110 crore (1.1 billion) people of India! Of course, just a few weeks back the two Ambani Brothers have overtaken him in being the richest Indians. But it’s a game of snakes and ladders and the persons at the top keep on changing every now and then depending upon the fluctuations in the share prices of their companies. Nonetheless, even as of today, Aziz Premji continues to be amongst the top three richest Indians.

Bollywood, the Hindi cinema, is dominated by Muslim personalities. We have the three Khan’s, namely Shahrukh Khan, Aamir Khan and Salman Khan, dominating the top positions of stars in the film industry. Many of the producers, directors, lyrists, music directors, script writers, and other professionals in Bollywood belong to the Muslim community. The best-ever male singer, i.e., Mohammed Rafi, was a Muslim. A.R. Rehman is the best music director in the industry today. Dilip Kumar, Meena Kumari, Shabana Azmi, Waheeda Rehman, Suraiya, and innumerable other Muslims have dominated the Hindi cinema in the past. In fact, Pakistani ghazal singers Ghulam Ali and Mehadi Hassan are also household names in India, as are many other singers from Pakistan.

In the Indian cricket team, we have presently 5 Muslims in a team of 16 players which has been recently selected to visit South Africa. They are, Irfan Pathan, Munaf Patel, Wasim Jaffer, Mohammed Kaif and Zahir Khan. When Mohammed Kaif scores runs and Munaf Patel or Irfan Pathan takes wickets, the whole nation celebrates.

When we talk of movies and cricket, remember they are like religions in India! In fact, they are bigger religions in India than Hinduism and Islam. And, look who are the leaders of the religions of Cricket and Films in India? Not convinced yet?

The present President of India, Shri APJ Abdul Kalam, is a Muslim. So, he is the “First Citizen” of India from out of its 1.1 billion population. In past also, we have seen Dr Zakir Hussain and Fakhruddin Ali Ahmed as Presidents of India. So, out of a total of about 11 Presidents, we have seen 3 Muslim Presidents.

In fact, the present President of India, Shri APJ Abdul Kalam, had long been a leading scientist in the defence and space sectors. He was at ISRO for two decades helping in development of SLV-III and PSLV. He was then the Chief Executive of the Integrated Guided Missile Development Programme in DRDO (i.e., Defence Research and Development Organisation). He was also the Chief Scientific Adviser to the Government of India (and that too, during the BJP-led NDA rule; the BJP is supposed to be a Hindu nationalist party). In fact, his appointment as President of India was also made during the BJP-led NDA rule. This means the defence laboratories and the space sector were in the hands of a Muslim for a long time.

We have had personalities like Hidaytullah who was the Chief Justice of India and subsequently Vice President of India. Justice M. Hameedullah Beg and Justice A.M. Ahmadi have also been Chief Justices of India. [Update (1 May 2012): The next Chief Justice of India is also expected to be a Muslim, Justice Altmas Kabir, w.e.f. 29 September 2012.]

The above details are only the tip of the iceberg. There are a large number of other successful Muslims in all walks of life.

The point here is – if you have the talent, capability, the will-power, and the other qualities which make a person successful, and work hard, you’re bound to succeed in India, irrespective of your community. India is a truly vibrant, open, multi-cultural, democratic society which has embraced and continues to embrace people from all communities. Every person has the right to equality in India and they are treated equally. In fact, the minorities in India have some special rights under the Constitution of India which are given only to the minorities. The Indian laws do not follow any discriminatory practices. India is a truly secular country with respect for all the religions and every person has been guaranteed freedom of religion in letter as well as in practice.

Had there been any systematic discrimination in India (as it happens in some countries like Pakistan), we would not have seen persons like Aziz Premji, APJ Abdul Kalam, and Shahrukh Khan, leading the country in various sectors – ahead of 1.1 billion people including the majority community. Now, if somebody does not want to study (and there too – the modern sciences), does not want to take advantage of the latest advancements in science and technology, does not want to mix with the society, or does not want to work hard, or wants to continue believing in age-old concepts, or wants to talk only in terms of zehad, how can he or she progress? Why to blame the society then?

In fact, what is creditable for the Indian society is the fact that a person like APJ Abdul Kalam, who rose to be the President of India and who dominated the Indian defence and space sectors for several years, came from a very poor Muslim family. So, it is not that leading Muslim personalities in India are from influential or rich families. If a poor Muslim like APJ Abdul Kalam could rise to be the first citizen of India, why can’t other Muslims in India do reasonably well?

Admitted, there may be some negative news here and there. But, it is bound to be in any multi-cultural society of the size of 1.1 billion people. Even in a small family of 2-3 persons there are differences of opinion and there are serious disputes also. When 1.1 billion people live together in 7,00,000 villages and a large number of big cities, with close interactions on continuing basis, there are bound to be some differences. Within a religion itself, there may be dissensions. We always hear of Shia-Sunni conflicts in Muslim community. We have caste conflicts in Hindus. In Christians also, there are divisions and differences.

The point that I am trying to make is that there will always be some exceptions. Nobody has ever been able to rule out all exceptions. But, an exception rather proves that there is some rule which applies in majority of the cases. One must not go by exceptions to undermine the existence of the rule itself.

In fact, on the other side of the spectrum, there is no dearth of people in India who continue making allegations of minority appeasement. The recent example being excluding the minority institutions from the reservations when the Constitution was amended while private institutions of the majority community have been included in the amended provision. Another example is the question of having a common civil code in the country, which could not be done mainly because of objections from the Muslim community, in spite of the fact that the directive principles of State policy in the Constitution require the state to do so and there have been Supreme Court judgments too in that regard. [Update (1 May 2012): Yet another example is the latest Supreme Court judgment in respect of the Right to Education Act, 2009, in the case of Society for Un-Aided Private Schools of Rajasthan v. Union of India, in which it has been held that all private institutions will have to adhere to 25% quota for poor students, but (only the) minority institutions are exempted from this quota rule. So, the minorities have some additional rights over and above the normal populace.]

And ultimately, the fact remains that, as mentioned in the previous article, the Muslims are lagging behind not only in India but all over the world. It is for the genuine and well-meaning leaders of this community to diagnose the reasons and take the necessary corrective steps. Without offending the community, what an outsider like me can say, at least, is that there are many internal contradictory forces within the community which are withholding its progress and development (just as an illustration – why is it that half of the community, i.e., the women, is deprived of its basic rights within the community itself?). My only submission is that the image of the whole of India as a country should not be painted with a negative brush in this regard.

And, the politicians in India? The lesser said the better. Their only objective is to keep dividing the country more and more so that they could reap the benefit of votes and thereby continue to rule the country. The latest exercise, the Justice Rajinder Sachar Committee, to try to divide the nation on the communal lines is most deplorable. Nobody will stop you when you want the betterment of the society in a non-partisan manner and make genuine efforts for that. But, nobody gives you a licence to divide the country further in the name of religion for your narrow partisan gains.

The Missing Muslim – What Next?

Dr. Ashok Dhamija

May 1, 2012

By Dr. Ashok Dhamija

[Originally written on 31 October 2006; updated in 2012]

A series of reports have been published in Indian Express with regard to the findings of the Justice Rajinder Sachar Committee on the aspect of status of Muslim community in India. It is reported that in sharp contrast to education and employment, where their share is way, way below their share of the population, Muslims have a disproportionately high representation when it comes to being in prison.

One has to view the findings of this Committee with a pinch of salt. The very purpose of setting up the Justice Rajinder Sachar Committee was to further divide the Indian society for narrow political gains, by preparing ground for appeasement of a particular section of the society. The basic question is when any competitive examination or any academic examination (such as the UPSC examinations, or for that matter, most of the other competitive examinations, as well as almost all SSC, HSC, College examinations, etc.) are held, do the answer sheets contain the details of the name and community of the student or candidate concerned? Sorry, they merely contain some innocuous roll number or nowadays some secret code number. Let us not consider the interviews here, for the time being, as there can be some difference of opinion there regarding the question of objectivity as the name and other details of the candidate are known to the Interview Board; but in any case the interviews carry much less weightage than the written examination (supposed to be less than 15% of the total marks, as held by the Supreme Court in the case of Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 : AIR 1981 SC 487 : (1981) 2 SCR 79). In such a case, how can there be even a question of a systematic effort to leave out any particular community from education or services? If people belonging to a particular community are not able to compete with others, then why blame others for that? There are various other reasons for such a situation as is apparently depicted in the Sachar Committee report. The main blame should go to the particular community itself.

It is pertinent to mention here about an interesting article “What went wrong?” by Dr. Farrukh Saleem published in the Pakistan’s leading “Jung” newspaper on 8 November, 2005 [original link was here, but it is not available now; instead, read a copy of this article here]. Some relevant extracts are reproduced below:

“The combined annual GDP of 57 Muslim countries remains under $2 trillion. America, just by herself, produces goods and services worth $10.4 trillion; China $5.7 trillion, Japan $3.5 trillion and Germany $2.1 trillion. Even India’s GDP is estimated at over $3 trillion (purchasing power parity basis). Oil rich Saudi Arabia, U.A.E., Kuwait and Qatar collectively produce goods and services (mostly oil) worth $430 billion; Netherlands alone has a higher annual GDP while Buddhist Thailand produces goods and services worth $429 billion. … Conclusion: Muslims of the world are among the poorest of the poor. … Fifty-seven Muslim majority countries have an average of ten universities each for a total of less than 600 universities for 1.4 billion people; India has 8,407 universities, the U.S. has 5,758. … Fact: Of the 1.4 billion Muslims 800 million are illiterate (6 out of 10 Muslims cannot read). … What really went wrong? Muslims are poor, illiterate and weak. What went wrong? Arriving at the right diagnosis is extremely critical because the prescription depends on it. Consider this: Diagnosis 1: Muslims are poor, illiterate and weak because they have ‘abandoned the divine heritage of Islam’. Prescription: We must return to our real or imagined past. Diagnosis 2: Muslims are poor, illiterate and weak because we have refused to change with time. Keep pace with time — al Quran.”

It is thus clear that it is not just in India, it is all over the world that Muslim community is lagging behind other communities. Who should be blamed for that? The secular Indian state?

One has to be on the side of caution at the efforts of certain political groups who are bent upon to again divide the society to continue their rule. One’s only worry is that irrespective of whether or not the Muslim community gains by such an effort, it has the potential of polarising the society further which may ultimately (and unfortunately) prove to be more harmful to the Muslim community itself. Yes, the only sure gainers would be the politicians of both sides – one who divide the society like this, and the other who oppose it and thereby benefit from the resultant polarisation of the society.

In the wake of the aforesaid findings of the Sachar Committee, there are suggestions that the secular Indian state should do something about this dismal state of affairs of the Muslim community in India and intervene in the matter.

Unfortunately, these are the very arguments which are used by the so-called “progressives” at the initial stage of launching any new “divide and rule” policy. Start with a Committee, come out with a Report with some “convenient” numbers, build up some sort of justification for interference by the state invoking some supposedly high philosophical ground, ignite the passions of the “affected” section of the society, encourage high-pitched demands from such section of the society (and if there are protests from the other sections of the society, it may even be of further help to the sponsoring political group as it will further help to deepen the polarisation), and then slowly and slowly keep on adding more and more structures on the foundations so laid! How familiar it sounds and how many more times such processes would be repeated to divide the Indian society further and further?

Yes, one may not have a fight with the numbers. Even before the findings of this Committee came out in public domain, it was well known that the Muslim community is lagging behind in many fields (and, as pointed out above, this community is lagging behind not only in India but in the world as a whole in spite of its Petro dollars). Nor can one have any objection if sincere and genuine efforts are made in a non-partisan manner to ameliorate the situation. The objection is only with the “object”, or rather the “hidden object” behind setting up such a Committee for the narrow political gains.

By the way, in how many fields has the Indian state intervention been successful till date? Could the Indian state improve the lot of the SCs or STs in last about six decades? In fact, if we go by the trend of increasing reservations for more and more “backward” classes, one gets the impression that India has become more backward in last six decades since now more backward communities are entitled for reservations! So, which state intervention we are talking about? On the other hand, we have evidence (such as in the IT sector) where the absence of state intervention made the sector prosper. Perhaps the time has come to say that most of the progress made in India is “in spite of” the state and not “because of the state”. It is the people of India who have been striving to make it prosper in spite of so many hindrances put up by the state in the form of a plethora of rules, regulations, faulty policies, licence permit raj, and the like.

Of course, do encourage education at primary, secondary as well as higher levels, but for all. In fact, one can even go to the extent of saying that all children should be compulsorily enrolled at state cost at least up to the secondary level education, irrespective of their religion, with emphasis on teaching modern science and other latest developments, instead of concentrating on religious schools or religious education; and in fact, any parent(s) withdrawing his/her child(ren) from schools should be punished under law. One does not know why the state has failed to implement the provisions of fundamental right to education under the amended Article 21A of the Constitution for last several years now. [Update: The Right to Education Act, 2009, has since been enacted and implemented, however, like most other statutes, it is more on paper than in practice.]

The point here is – nobody will or can have an objection if such universal efforts are made such as implementing right to education for “all” but no more sectarian approach please.

Moreover, let all other positive measures, such as financial help, be taken up, and not only for a particular section of the society but for all needy sections on secular or non-partisan basis.

At the same time, intensive efforts are required from within the Muslim community itself as well. Unfortunately, the reality points in some other direction. Look at a measure so innocuous as polio vaccines and there is resistance, thereby allowing the deadly disease to start spreading its wings again!

But, no further divide and rule policies please. Unfortunately, the reality and the past experience point in this direction only while an average hapless Indian can only keep hoping against the hope.

[Also see: The Missing Muslim – Part 2]

Show mercy at your own peril

Dr. Ashok Dhamija

Apr 29, 2012

By Dr. Ashok Dhamija

[Originally written on 25 October, 2006]

Demand for clemency for Mohammad Afzal, facing death penalty in the Parliament attack case, has raised some serious questions. As per the Supreme Court’s directives, death penalty is resorted to only in the “rarest of rare cases”. In last several years, only one person was actually executed in India (Dhananjoy Chatterjee in 2004). Some other persons who have been sentenced to death are yet to be executed either due to their pending appeals or the clemency petitions or due to some procedural reasons. Experience shows that while several persons might have been sentenced to death by trial courts, the number of persons actually executed is extremely less after the process of appeals, clemency petitions, writ petitions after the clemency petitions, etc. In fact, as per the Amnesty International, the unconfirmed figure of the total number of all persons executed in India since 1947 till date is about 55 only. This has to be contrasted with the fact that in the year 2005 alone, at least 2148 persons were executed in 22 countries while a total of 5186 persons were sentenced to death in 53 countries.

One has to see the death penalty of Afzal in the light of the “rarest of rare” case of a shocking terrorist attack on the Parliament of India, the highest institution in the country, in which 9 persons (including 8 security personnel) were killed and 16 persons were injured. It was only due to the brave and prompt reaction of the security personnel that the Parliament and its members sitting therein could be saved from this terrorist attack. One cannot imagine the irreparable damage which could have been caused to the image of the state of India if the said attack had proceeded as per the plans of the attackers.

Whether a person responsible for such a dreadful act deserves clemency? What is the extent of the President’s power in this regard? This power under Article 72 has to be exercised on the advice of the Government. It has been held to be of widest amplitude capable of contemplating a myriad kinds of and categories of cases with facts and situations varying from case to case, in which the merits and reasons of state may be profoundly assisted by the prevailing occasion and passing time. At the same time, this power is not absolute and is even subject to judicial review in certain cases. For all practical purposes, this power will have to be exercised for two broad categories of reasons – legal & factual matrix of the individual case, and other reasons such as humanitarian and practical reasons.

The fact that the highest court of the land has confirmed the death penalty after weighing the evidence in a very detailed manner from all possible legal angles (it required 196 pages of a prominent law journal to cover the judgment!), applying the yardstick of “rarest of rare cases”, shows that the case can be safely presumed to be free of any legal flaws. In fact, the review petition was also rejected by the Supreme Court. Moreover, earlier the trial court as well as the High Court had both concurred on the death penalty for Afzal. That the Supreme Court confirmed the death penalty for Afzal while it did not confirm the same for 2 other accused persons, further shows that case against Afzal was on a strong footing. Moreover, there are no new legal developments in the case, discovered subsequently. In view of these reasons, there is no reason for the President to try find some legal defects in the case while deciding the clemency petition.

Coming to the other possible grounds for clemency such as practical, humanitarian, etc., can the Government afford to show mercy for somebody who is responsible for an attack on the Parliament itself! Secondly, where is the scope for showing mercy on humanitarian grounds for a terrorist for such a shocking act? In the unlikely event of the Government showing mercy, what message will be sent to the world at large, to the people of this country, to the security personnel (many of whom lost their lives), and to the terrorist organizations? How more “soft” can India become? A nation which cannot implement punishment for attackers on its Parliament does not deserve to get respect from anybody. Government which buckles under pressure of protests of sympathizers of terrorists will necessarily loose respect and sympathy from its 100 crore plus population. In fact, Government should be more resolute and firm after the protests against the proposed execution in case it is not to be seen to have been “blackmailed” or to be appeasing a particular section of the society. One should also keep in mind that there are already reports in the media about further blackmailing tactics being used by terrorist groups, e.g., kidnappings, etc. The Government should show determination and courage to be ready to face them head-on. A coward state cannot win the war against terror.

Failure to impart deterrent punishments to such terrorists and / or other hardened criminals under the criminal justice system gives rise to further deterioration in law & order as well as to the undesirable but real phenomenon of using short-cut methods such as encounter killings, many of which are supposed to impart summary justice to such criminals. There used to be around 300 encounter killings per year in Mumbai alone a few years back. A large number of encounters take place in J & K at the mere incidents of infiltration. The state has directly or indirectly permitted or at least tolerated such encounters. An encounter killing is legally justified mainly on the basis of two legal provisions, viz., power of a police officer to use all means necessary while effecting arrest under S. 46 of the Criminal Procedure Code (which may even extend to causing death when the person is accused of an offence punishable with death or with life imprisonment) when such person forcibly resists or evades arrest, and right of private defence under S. 100 of the Indian Penal Code. This is a ground reality staring in our face.

In such a background, how can it be wrong to execute a terrorist accused of a dastardly attack on Parliament whose death penalty has been confirmed by the highest court of the land after scrupulously following the detailed process of law?

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