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The Hindu Editorial Analysis | PDF Download

Date: 19 March 2019

 

A prayer for our times

  • Unsound judgments and faulty moral reasoning are not the lot of leaders alone — but also of those who support them
  • As all of us ordinary citizens recovered from the carnage in Pulwama, and wondered how the government would respond to this latest instance of cross-border terrorism, one television channel showed us poignant images of grieving relatives of the fallen soldiers. While a few, driven by moral hatred for the perpetrators, were understandably crying for revenge, others, even at this moment of utmost suffering, spoke of the futility of retaliation. “It would only bring similar suffering to fellow humans,” said one widow from the rural hinterland. Hers was a cry for peace, not for vengeful violence. “War can only be the last resort, after everything else has failed,” she wisely counselled.

 War And Patriotism

  • Yes, war is sometimes necessary, especially in self-defence. But one doesn’t have to be an unconditional pacifist to acknowledge the misfortunes it begets or to decry war mongering. Nor is readiness to go to war the only indicator of patriotism. True, patriots must be prepared to die in defence of their ‘patria’, their mother or fatherland. But one is not any less a patriot if one strives for everyone in his country living peacefully, happily, flourishing, leading life to its fullness.
  • Fighting the daily challenges faced by their countrymen, seeking to improve their lot, always loving them and their habitat, and expressing this love in word or deed as the occasion demands is the everyday vocation of a patriot.
  • A country at war is different. War is disruptive, and because it is lethal and involves human sacrifice, a patriot must eschew any bravado about it. This is particularly expected from contemporary leaders, patriots who never themselves go to war; quite unlike the past where the ruler who declared war was expected to always lead from the front on the battlefield. After all, it is our Army officers and jawans who die, not the ones who call for and support war.
  • Our rulers move about with elaborate security to protect their own lives. If they don’t allow others to play with their lives, they must ensure that no one plays with the life of their countrymen, most of all our soldiers. Decisions on war must then be taken responsibly, without haste, not for spectacular effect or as tactical ploys in a game.
  • The inner workings of the human mind are mysterious, however. For it is not these thoughts that crossed my mind when I saw those moving images on television. This reasoning is retrospective; thoughts that have occurred to me now, post-facto. At that time, a strange melange of emotions — feelings of grief, despair, shame, nostalgia — curdled up and then suddenly, from nowhere, the lyrics of an immortal song by Sahir Ludhianvi, set to tune by Jaidev and sung melodiously by Lata Mangeshkar in the 1961 Dev Anand classic Hum Dono, came unbidden to mind: “Maangon ka sindoor na chhutey, maa behenon ki aas naa tootey (may no one be widowed; may no mother or sister lose hope of their loved one returning).”

 

 Prayer for peace and wisdom

  • In the film, these lines are part of a prayer for peace led by the wife and mother of a Major of the Indian Army missing in action — a prayer not only that their own loved one returns home safe but that no wife, mother or sister may lose loved ones in war. Death in war is an interruption, an anomaly.
  • It takes away from us young, active, lively persons who have not yet lived their full life. When a soldier dies in the prime of life, he leaves many tasks unfinished, many relationships incomplete, millions of desires unfulfilled. And according to popular belief, when a person at the height of his powers meets a bloody, violent, untimely end, his prana or atman remains in limbo, trapped in no man’s land; it leaves the body without reaching wherever it is meant to go and keeps hovering around us. May this never happen to anyone, says the poet. “Deh bina bhatke na praan (may the spirit not abruptly detach from the body and wander restlessly).”
  • But this mellifluous song is more than a comforting prayer for peace. It subtly points fingers at those who injudiciously push us into war, at the economically strong and politically powerful who bring war upon us for their own benefit, to serve their own nefarious purpose. “O saare jag ke rakhawaale, nirbal ko bal dene waale, balwaanon ko de de gyaan (jnana) (you, who watch over the entire universe, you who empower the weak, may you also grant wisdom to the mighty).”
  • Jnana here refers not simply to knowledge, but to wisdom, moral insight, indeed to conscience. May the rulers rule with a conscience! May they be able to distinguish right conduct from wrong. Really, only such people should guide us when we are faced with the dilemma of whether or not to undertake morally retributive action.
  • And this is not all. The prayer then becomes a plea that we all be endowed with sanmati — to put our intelligence to good use, to have sound judgments, that all have a conscience. Why? Because unsound judgments, faulty moral reasoning and suspension of good sense are not the lot of leaders alone but also of those who support them and legitimise their actions. It is after all we, ordinary folks, who are swayed by war hysteria. Those without good sense get the leaders they deserve. May the gift of sanmati be bestowed on us. For only people with sanmati can rein in leaders who have lost all sense of good and bad, right and wrong.

A Civilisational Anchor

  • But who is this prayer addressed to? “Allahtero naam, Ishwar tero naam (You, whose name is both Allah and Ishwar). In this, his masterstroke, Sahir invokes not only Gandhi, but an entire, centuries-old religio-philosophical legacy of the subcontinent in which all traditions are believed to share the same semantic universe that enables the god of one religion to be translated into the god of another. This is inclusive monotheism at its best, where god is one but referred to in different traditions by different names. And so, the prayer is addressed to Allah, Ishwar, and implicitly to the god of every religion.
  • With men spewing venom, not satisfied with fighting a war with their own fellow countrymen, itching to go to war with others, nothing (empathy, reason, dialogue) seems to work. Helpless spectators, no longer in control of their collective life, in sight of a looming disaster on the horizon, often break into a prayer.
  • What else can those stripped of agency do but hope that somehow good sense may prevail, that all of us be delivered from the collective insanity that shows no sign of loosening its grip? Thus, those who believe in one god, invoke him; those who believe in gods and goddesses, invoke them; and those who believe in neither, hope for some good fortune to fall in their lap! This is why this is a prayer for our times: we offer this prayer to you, Allah to some, Ishwar to others, that you miraculously bring an end to needless killings, wisdom and conscience to the rich and powerful, and peace and good sense to everyone.

 

A fatal margin of error

  • The inconsistent and arbitrary application of the death penalty remains a matter of great concern
  • On March 5, 2019, a three-judge bench of the Supreme Court headed by Justice A.K. Sikri (now retired) found Khushwinder Singh guilty and befitting of the death sentence (Khushwinder Singh v. State of Punjab).
  • In 2013, the Fatehgarh Sahib sessions court had convicted and sentenced him to death for killing six relatives of his wife with the motive of committing theft. The last time the death penalty was upheld by the Supreme Court was in July 2018 in the Delhi gang rape case. Since then, the court has acquitted 10 death row prisoners and reduced the sentence to life imprisonment of 23 others.
  • As Singh’s case moves closer to the gallows, the judgment highlights the processes that cause cases to slip through the cracks of the ‘rarest of the rare’ doctrine, which mandates a consideration of both the crime and the criminal. The judgment exemplifies the varied standards of legal representation that impacts the imposition of the death penalty.

A CONTRAST

  • Singh’s death sentence stands in contrast to nine cases decided by three-judge benches headed by Justice Sikri since November 2018 which resulted in six commutations to life imprisonment and eight acquittals. In these judgments, the duty of the court to conduct an effective sentencing hearing was emphasised and factors such as good conduct in custody, education, age, social, emotional and mental condition of the offender, and the possibility of reform were highlighted as relevant considerations in the sentencing scheme. However, none of these factors appear to have been considered for Singh.
  • The judgment declares at the outset that Singh’s lawyer “is not in a position to point out any mitigating circumstance”. Without commenting on the effect of that deficiency on the quality of the sentencing exercise being carried out by the court, it erroneously relies only on the pre-planned nature of the crime, its brutality and the number of victims to impose the death sentence. Grounds relating to the criminal such as his conduct in prison, his socio-economic and educational backgrounds, or the probability of reformation receive no comment from the court.
  • In late 2018, another three-judge bench of the Supreme Court reversed its own finding in M.A. Antony v. State of Kerala, involving the murder of six relatives of the accused. The court chose to commute the death penalty factoring the ‘lack of evidence’ to show that the convict was a hardened criminal or that he was beyond reform. The similarities in the nature of the crime between the cases of Singh and Antony are unfortunate and uncannily similar. In both cases, six family members lost their lives, including two children.
  • The motive in both, according to the prosecution, was money and the victims were close relatives. Both convicts were middle-aged men with families of their own. While in Antony’s case, his socio-economic conditions and lack of criminal antecedents were considered by the court in deciding that there was a probability of his reformation, in Singh’s judgment, there is a complete silence on this aspect, providing yet another instance of the arbitrary imposition of the death penalty.

Eliciting Information

  • The irreversibility of the death penalty has fundamentally affected the jurisprudence around it. It is commonly accepted that a judge in adversarial proceedings cannot go on a ‘truth searching exploration’ beyond what is presented. Yet, death penalty jurisprudence is rife with examples where duty has been placed upon the courts to elicit information relating to the question of sentence, even if none is adduced before it.
  • Justice K.S. Radhakrishnan’s judgment in Ajay Pandit v. State of Maharashtra (2012), held that the court has a ‘duty and obligation’ to elicit relevant facts even if the accused was totally silent in such situations. In Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009), while discussing the responsibility of courts with respect to the sentencing scheme laid out in Bachan Singh v. State of Punjab, Justice Sinha opined that Bachan Singh makes no distinction on the roles and responsibility of appellate courts and therefore it was incumbent upon all courts to ensure the ratio laid down in Bachan Singh was ‘scrupulously’ followed, adding, “if anything, inverse pyramid of responsibility is applicable in death penalty cases”.
  • Unlike Khushwinder Singh’s case, in the past few months the Supreme Court has rightly considered evidence about the criminal by calling for medical records, reports of prison conduct, including poetry written by a convict post-incarceration to ascertain the appropriate sentence. This was not attempted in Singh’s case. At the core of the arbitrariness in death penalty sentencing is the inconsistent approach to mitigating factors. The Supreme Court has, unfortunately, not developed any requirements that guide the collection, presentation and consideration of mitigating factors. Very often, barely any mitigating factors are presented on behalf of death row prisoners; if they are, they are of poor quality. Judges are often left only with information concerning the crime to determine the punishment. And, undoubtedly, Singh is a victim of this. He ended up being defined only by his crime with no other information about his life coming up before the judges. The quality of legal representation continues to affect the administration of the death penalty, even when cases are decided by pro-active and sensitive judges.
  • The inconsistent and arbitrary application of the death penalty remains a matter of great concern to the judiciary. Justice Kurian Joseph’s parting words in Chhannu Lal Verma v. State of Chhattisgarh, calling for the gradual abolition of the death penalty, require serious introspection from the court and the body politic, and for us to recognise that the efforts to make the administration of the death penalty fairer are like chasing the wind.
  • Our institutions may persist with attempts to ‘tinker with the machinery of death’ until there is a collective realization that the death penalty is untenable in a fair criminal justice system.
  • Till such time, the setting of established benchmarks for practice, and a system of oversight are necessary to ensure that the quality of legal representation does not become the difference between a sentence of life and death.

 

 LOKPAL, AT LAST

  • The establishment of the anti-graft body is a welcome development
  • The selection of Justice P.C. Ghose as the first Lokpal has come after an unjustified delay of five years. Nevertheless, it ought to be welcomed as a milestone in the cause of fighting corruption in high places.
  • The concept of an institutional mechanism, or an anti-corruption ombudsman, has been around for over 50 years. It was finally enacted as a law in 2013, and came into effect on January 16, 2014. Some of the credit for driving this legislation must be given to Anna Hazare’s movement against what many saw as unreasonable levels of corruption under the previous UPA regime.
  • However, since then, barring a report by the Standing Committee of Parliament and a couple of amendments passed in 2016 on the declaration of assets by public servants, there has been very little progress.
  • At one point, the government’s lack of political will to establish a Lokpal became obvious, leading to the Supreme Court repeatedly asking it to show progress in its efforts. Ultimately, it was the court’s stern ultimatum to appoint a Lokpal within a timeframe that worked. The appointment system is quite long, a twostage process. A search committee has to be formed. It recommends a panel of names to the high-power selection committee, which comprises the Prime Minister, the Speaker of the Lok Sabha, the Leader of the Opposition, the Chief Justice of India (or his nominee) and an eminent jurist. The selection panel has to choose from a short-list consisting of names for the posts of Lokpal chairperson, and judicial and non-judicial members.
  • The government had initially taken the position that it was awaiting the passage of amendments based on the parliamentary committee report. One amendment pertained to including the leader of the largest party in the Opposition in the selection committee, in the absence of a recognized Leader of the Opposition. In a verdict in April 2017, the Supreme Court rejected the excuse and said there was no legal bar on the selection committee moving ahead even if there was a vacancy.
  • It is not clear why this simple amendment, carried out in respect of selection committees for the posts of CBI Director and Chief Information Commissioner, was not made in the Lokpal Act. The Congress leader in the Lok Sabha, Mallikarjun Kharge, did not want to attend selection committee meetings as a ‘special invitee’ and wanted full membership. Now that the Lokpal has been chosen, victims of corruption have a viable avenue of redress.
  • It may be unrealistic to expect any dramatic impact on the lives of the common people, but the Lokpal and other members have a historic responsibility to live up to popular expectations. The Lokpal will take over the work of sanctioning prosecution, besides exercising its power to order preliminary inquiries and fullfledged investigations by any agency, including the CBI.

 Structure of lokpal

  • The institution of Lokpal is a statutory body without any constitutional backing.
  • Lokpal is a multimember body, made up of one chairperson and maximum of 8 members.
  • The person who is to be appointed as the chairperson of the Lokpal should be either the former Chief Justice of India Or the former Judge of Supreme Court Or an eminent person with impeccable integrity and outstanding ability, having special knowledge and expertise of minimum 25 years in the matters relating to anti-corruption policy, public administration, vigilance, finance including insurance and banking, law and management.
  • Out of the maximum eight members, half will be judicial members.
  • Minimum fifty per cent of the Members will be from SC / ST / OBC / Minorities and women.
  • The judicial member of the Lokpal should be either a former Judge of the Supreme Court or a former Chief Justice of a High Court. The non-judicial member should be an eminent person with impeccable integrity and outstanding ability, having special knowledge and expertise of minimum 25 years in the matters relating to anti-corruption policy, public administration, vigilance, finance including insurance and banking, law and management.
  • The members are appointed by the president on the recommendation of a selection committee. The selection committee is composed of the Prime Minister who is the Chairperson; Speaker of Lok Sabha ,Leader of Opposition in Lok Sabha ,Chief Justice of India or a Judge nominated by him / her, and One eminent jurist.

  • A Lokpal is an anti-corruption authority or ombudsman who represents the public interest. The concept of an ombudsman is borrowed from Sweden. The Lokpal has jurisdiction over all Members of Parliament and central government employees in cases of corruption.
  • The Lokpal and Lokayuktas Act was passed in 2013 with amendments in parliament, following the Jan Lokpal movement led by Anna Hazare in 2011.
  • The Lokpal is responsible for enquiring into corruption charges at the national level while the Lokayukta performs the same function at the state level.
  • As of March 2019, and ever since the related Act of Parliament was passed in India. Retired Supreme Court judge Pinaki Chandra Ghose is appointed as the first Lokpal of India by a committee consisting of Prime Minister Narendra Modi and Chief Justice of India Ranjan Gogoi and Loksabha speaker Sumitra Mahajan on 17 march 2019. PC Ghose likely to take charge as lokpal soon.
  • It comprises 8 members where 4 members (50%) are from judiciary and not less than 50% (≥4 members) are from ST, SC, OBCs, Women or minorities.
  • The term "Lokpal" was coined by Dr. L.M.Singhvi in 1963.
  • The concept of a constitutional ombudsman was first proposed in parliament by Law Minister Ashoke Kumar Sen in the early 1960s.
  • The first Jan Lokpal Bill was proposed by Adv Shanti Bhushan in 1968 and passed in the 4th Lok Sabha in 1969, but did not pass through the Rajya Sabha.
  • Subsequently, 'lokpal bills' were introduced in 1971, 1977, 1985, again by Ashoke Kumar Sen, while serving as Law Minister in the Rajiv Gandhi cabinet, and again in 1989, 1996, 1998, 2001, 2005 and in 2008, yet they were never passed.
  • Forty five years after its first introduction and after ten failed attempts, the Lokpal Bill was finally enacted in India on 18 December 2013.
  • The Lokpal Bill provides for the filing, with the ombudsman, of complaints of corruption against the prime minister, other ministers, and MPs.
  • The first Administrative Reforms Commission (ARC) recommended the enacting of the Office of a Lokpal, convinced that such an institution was justified, not only for removing the sense of injustice from the minds of citizens, but also to instill public confidence in the efficiency of the administrative machinery.
  • Following this, the Lokpal Bill was, for the first time, presented during the fourth Lok Sabha in 1968, and was passed there in 1969. However, while it was pending in the Rajya Sabha, the Lok Sabha was dissolved, and thus the bill was not passed.