MR MINISTER, YOU ARE WRONG
The Statesman 30 Jan 2014Sixty-six years into independence and we are still not tired of party politics. It is almost disturbing to fathom how degrading it has become to live in India and still not be treated as an Indian, but by the religious description, whether individually accepted or not, attached to one’s life.
Recently our Home minister, Mr. Sushil Kumar Shinde, created a fuss by deciding to direct all Chief Ministers to set up screening committees in their respective states to review terrorism cases against youth from the minority communities. Headed by a retired judge and two senior state officers, these committees would be required to visit every prison in the respective state and independently examine the complaints from accused, majorly minority youth. They are further required to go through the evidence in every complaint, including the time spent by the accused in prison before the start of trial. Mr. Shinde seems to suggest that these review committees shall be similar to the ones that were formed under the Prevention of Terrorism Act (POTA) by the BJP government in 2003. But alas, he misses a major legal and moral point here.
Back in 2003, the misuse of the draconian POTA was so prevalent that every person who came under the suspicion of the police was arrested without proper investigation. POTA gave arbitrary powers to the police officers, which in fact needed a leash. This led to the formation of POTA review committees at the centre and in states. Purely advisory in the beginning, an ordinance enlarged the scope of Section 60 of the POTA and expanded the judicial review power of these committees. Their findings and decisions were made binding on the State Governments and the investigating officers and in case of a conflict, the decision of the Central Review Committee prevailed. However, since filing of a complaint was condition precedent to the investigation by the Review Committee and because of limited resources and no regulated time frame, these committees failed to provide an effective redress mechanism.
Consequently, POTA was repealed in 2004.
Additionally, the Unlawful Activities Prevention Act (UAPA), 1967, as amended in 2008 already provides for setting up of Independent Review Committees by every state and by the Centre. Section 45(2) of the UAPA which deals with cognizance of offences categorically specifies that sanction for prosecution under UAPA shall be given only after consideration of the report of an Independent Review Committee which shall separately examine the evidence gathered in the course of investigation and will determine whether or not the case should proceed to prosecution. Most states have already formed such screening committees which are headed by a retired judge and the state law secretary.
What Mr. Shinde fails to understand is that formation of another set of review committees will only result in confusion and further delay. It is unclear as to how two committees, operating in the same state, examining the terror charges against the same person will function in harmony? Whose authority would be supreme? Whose report would hold more ground? It is an unnecessary dispersion of resources and time. Rather than forming a separate committee, why could he not look into functioning of existing committees and remove inefficiency.
It seems strange that on one hand Article 44 of the Indian Constitution talks of a uniform Civil Code for all citizens and the existing Criminal Procedure Code does not classify the accused persons on the basis of faith and religion but Mr. Shinde desires to provide a redress mechanism only to the accused persons from the minority communities.Under the UAPA Act, 21 of the 35 terrorist organizations listed in the Schedule of Chapter VII are non-Muslim organizations. This means that there exists a high probability that many false terror cases are pending against non-Muslims too. By this definition, if an effective redress mechanism is truly required to look into the complaints of accused persons who are booked on terror charges, then it must be equally provided to every accused person who is a citizen of India and is booked under terrorism. The supposed move by the Home Minister is against article 14 of the Constitution of India. What his actions intend to do is to create a separate class of persons for whom a redressal mechanism is available against false terror cases, but is not consistent with the nexus the Government of India intends to achieve by virtue of Articles 38, 39A and 44. The articles provide that one, the state should strive to promote social justice for all and provide equal opportunities and facilities for all. Secondly, in light of this, justice ought to be promoted on the basis of equal opportunity to all and thirdly, it should also strive to secure a uniform civil code for all.
If the present move of the Home Minister would have achieved this nexus of the Government, being a constitutionally mandated nexus, it would have been deemed to be a reasonable classification and permitted under law by virtue of article 14. Having achieved nothing of this sort it stands to be a clear violation of article 14. Like we mentioned before, this is nothing but stupidity that our political class believes would be widely accepted by the country. But we have today entered a new millennium, an era where accountability is on the rise like never before and politics of appeasement is being tremendously questioned and criticized.
In a growing India, it is shameful that senior political leaders still continue to play the outdated and morally incorrect appeasement card in order to re-accumulate the votes they figure are being lost to parties with a motto of honest accountability. It is even more shameful to know that vote-bank politics conveniently overshadow and overpower the constitutional duties pledged by our political leaders during the election period, and how truly words speak louder than actions now!
THE WRITERS ARE MEMBERS OF LEGISLATIVE RESEARCH & POLICY CLUB, NATIONAL LAW UNIVERSITY, ODISHA
http://www.thestatesman.net/news/36770-mr-minister-you-are-wrong.html
Recently our Home minister, Mr. Sushil Kumar Shinde, created a fuss by deciding to direct all Chief Ministers to set up screening committees in their respective states to review terrorism cases against youth from the minority communities. Headed by a retired judge and two senior state officers, these committees would be required to visit every prison in the respective state and independently examine the complaints from accused, majorly minority youth. They are further required to go through the evidence in every complaint, including the time spent by the accused in prison before the start of trial. Mr. Shinde seems to suggest that these review committees shall be similar to the ones that were formed under the Prevention of Terrorism Act (POTA) by the BJP government in 2003. But alas, he misses a major legal and moral point here.
Back in 2003, the misuse of the draconian POTA was so prevalent that every person who came under the suspicion of the police was arrested without proper investigation. POTA gave arbitrary powers to the police officers, which in fact needed a leash. This led to the formation of POTA review committees at the centre and in states. Purely advisory in the beginning, an ordinance enlarged the scope of Section 60 of the POTA and expanded the judicial review power of these committees. Their findings and decisions were made binding on the State Governments and the investigating officers and in case of a conflict, the decision of the Central Review Committee prevailed. However, since filing of a complaint was condition precedent to the investigation by the Review Committee and because of limited resources and no regulated time frame, these committees failed to provide an effective redress mechanism.
Consequently, POTA was repealed in 2004.
Additionally, the Unlawful Activities Prevention Act (UAPA), 1967, as amended in 2008 already provides for setting up of Independent Review Committees by every state and by the Centre. Section 45(2) of the UAPA which deals with cognizance of offences categorically specifies that sanction for prosecution under UAPA shall be given only after consideration of the report of an Independent Review Committee which shall separately examine the evidence gathered in the course of investigation and will determine whether or not the case should proceed to prosecution. Most states have already formed such screening committees which are headed by a retired judge and the state law secretary.
What Mr. Shinde fails to understand is that formation of another set of review committees will only result in confusion and further delay. It is unclear as to how two committees, operating in the same state, examining the terror charges against the same person will function in harmony? Whose authority would be supreme? Whose report would hold more ground? It is an unnecessary dispersion of resources and time. Rather than forming a separate committee, why could he not look into functioning of existing committees and remove inefficiency.
It seems strange that on one hand Article 44 of the Indian Constitution talks of a uniform Civil Code for all citizens and the existing Criminal Procedure Code does not classify the accused persons on the basis of faith and religion but Mr. Shinde desires to provide a redress mechanism only to the accused persons from the minority communities.Under the UAPA Act, 21 of the 35 terrorist organizations listed in the Schedule of Chapter VII are non-Muslim organizations. This means that there exists a high probability that many false terror cases are pending against non-Muslims too. By this definition, if an effective redress mechanism is truly required to look into the complaints of accused persons who are booked on terror charges, then it must be equally provided to every accused person who is a citizen of India and is booked under terrorism. The supposed move by the Home Minister is against article 14 of the Constitution of India. What his actions intend to do is to create a separate class of persons for whom a redressal mechanism is available against false terror cases, but is not consistent with the nexus the Government of India intends to achieve by virtue of Articles 38, 39A and 44. The articles provide that one, the state should strive to promote social justice for all and provide equal opportunities and facilities for all. Secondly, in light of this, justice ought to be promoted on the basis of equal opportunity to all and thirdly, it should also strive to secure a uniform civil code for all.
If the present move of the Home Minister would have achieved this nexus of the Government, being a constitutionally mandated nexus, it would have been deemed to be a reasonable classification and permitted under law by virtue of article 14. Having achieved nothing of this sort it stands to be a clear violation of article 14. Like we mentioned before, this is nothing but stupidity that our political class believes would be widely accepted by the country. But we have today entered a new millennium, an era where accountability is on the rise like never before and politics of appeasement is being tremendously questioned and criticized.
In a growing India, it is shameful that senior political leaders still continue to play the outdated and morally incorrect appeasement card in order to re-accumulate the votes they figure are being lost to parties with a motto of honest accountability. It is even more shameful to know that vote-bank politics conveniently overshadow and overpower the constitutional duties pledged by our political leaders during the election period, and how truly words speak louder than actions now!
THE WRITERS ARE MEMBERS OF LEGISLATIVE RESEARCH & POLICY CLUB, NATIONAL LAW UNIVERSITY, ODISHA
http://www.thestatesman.net/news/36770-mr-minister-you-are-wrong.html