The 11 Muslim young men were arrested from Maharashtra and other states of India under the false allegations that they were planning revenge for the demolition of Babri Masjid and also trying to recruit youngsters in a terror group called Bhusawal Al jihad.

All the 11 were highly educated youth whose prime youth has been wasted under these allegations levelled against them by the investigation agency.

The lawyers of Jamiat Ulema Hind had been striving for the release of these men who had been charged under 153 (B), 120(A) of Indian Penal code and section 3 (3), (4)(5), (4)(1) of the TADA Act.

Talking to Twocircles.net, Gulzar Azmi, in charge of the Jamiat Ulema Hind’s legal cell said, “ Justice has not been denied but these men have lost so many years of their precious life. Who is responsible for this? Will the Government pay for their loss and return their dignity? The families of these men have also suffered a lot while some members of their families have also died”

The 11 men who have been acquitted are Jameel Ahmed Abdul Khan, Mohammed Younus, Mohammed Ishaque, Farooque Khan, Nazeer Khan, Yousuf Khan, Ghulab Khan, Ayub Khan, Ismail Khan, Wasimuddin, Shamshuddin, Shaikh Shafi, Shaikh Azeez, Ashfaqu Sayed Murtaza Mir, Mumtaz Syed Murtaza Mir, Mohammed Haroon, Mohammed Bafati and Moulana Abdul Qadeer Jaibi.

The team of lawyers of the Jamiat Ulema Hind representing these men are Adv Shareef Shaikh, Adv Mateen Shaikh, Avd Razzaq Shaikh, Adv Shahid Nadeem Ansari, Adv Mohammed Arshad, Adv Ansari Tamboli  and other associates.

Courtesy: Two Circle
 

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The banning of SIMI, selectively, while other rabid outfits escape stringent action is the latest example of the fundamentals of composite Indian nationhood being transgressed

The bombing of the World Trade Centre and Pentagon on September 11,01 came as a manna from heaven. And the National Democratic Alliance, dominated as it is, by the Bharatiya Janata Party (BJP), a political party that pays less than lip service to the notions of liberty, equity and justice through it’s union home minister, L.K.Advani grabbed this heaven–sent opportunity.

On September 26, his ministry with the full approval of the union cabinet banned the Student’s Islamic Movement of India(SIMI) under the Unlawful Activities Act of 1967.

Advani, while announcing his government’s decision accused it of ‘working for an international Islamic order, supporting militancy in Punjab, Kashmir and elsewhere… and engineering communal riots.’

The notification, banning the SIMI for two years, declared it as an unlawful association under Section 3 (1) of the Unlawful Activities (Prevention) Act, 1967. Under Section 4 of the Act, the Central Government is obligated to present it’s case before a Tribunal withing 30 days and justify it’s action. Within hours of the announcement, violence had broken out in both Lucknow and Kanpur and three persons demonstrating against the ban were shot dead by the police in the capital of UP.

Later the same evening, a two-page statement was made public by the home ministry. ‘SIMI is opposed to secularism, democracy and nationalism and is working for an international Islamic order… ‘Recently, investigation of 14 cases of terrorist violence which had caused 15 deaths and injury to 80 others in UP and Delhi in 2000–2001 exposed a deep nexus between SIMI and Hizb–ul–Mujahiddin.’

‘More recently,’ the statement says, ‘SIMI organised protests against alleged burning of Quran in Delhi in March 2001. Its units gave wide publicity to the issue by utilising the Internet.It printed provocative posters in Ahmedabad in August 2001’ Besides, the Home Ministry has also accused SIMI of maintaining links with international organistaions like Muslim Students’ Union, ‘a pro–Hamas union of Palestinian students in India and Pakistan.’ The latest provocation, home ministry officials declared, came when SIMI chief Shahid Badr, speaking in Bahraich in UP, called Osama Bin Laden the ‘‘champion and true saviour of Islam’’ and condemned India for supporting the US. Badr, charged with sedition and inciting communal hatred in UP, is currently in Nepal, it is believed.

As many as 240 activists alleged to be part of the organization were arrested within hours of the government’s action and it’s offices sealed in different parts of the country.

Several issues, arise out of the decision of the government to ban SIMI. Despite the insecurities and attendant hysterias caused by global terrorism and the unpredictable channels of violence used to attain it’s goals, these relate to time-tested questions of state accountability and transparency, basic human dignity and freedom and the principle of non–discrimination.

History has shown that giving the go–byes to these essentials, even in moments of deep national insecurity and trauma can only be at our own peril. The chilling realities of the past weeks only reinforce the need for state and police accountability and transparency to be demanded and get heard, they require us to ask whether any fundamentals related to basic human dignity have been violated by the ban and finally whether the litmus test of non-discrimination has been cleared.

To speak of the first, and doubtless the tribunal that adjudicates on the ban will scrutinize government’s claims, we need to know the case by case investigations that reveal SIMI’s direct connections with criminal and anti–national acts. If there are some, or many, the Indian people need to be taken into the government’s confidence. The past few years especially have seen too many deliberate obfuscations and demonisations by persons in positions of power — the ISI bogey, the madrassa threat—are just two examples of these and the Indian people need to know which incidents exactly SIMI was responsible for and what proof the investigating agencies have to back their claims.

Sweeping generalizations on their ideology, unpalatable and medieval as it is, cannot substitute the need for sound police investigation , untainted by pre–suppositions and bias, that has (according to the home ministry statement) linked SIMI to 14 cases of terrorist violence, 15 deaths and 80 injuries. The fundamental rights guaranteed under the Indian Constitution grant individuals liberty of association and movement and the adherence to anti–Constitutional or pan–Islamic ideologies by itself is not an offence. It is only when these ideas, unpalatable as they are get translated into actions, in themselves violative of our exhaustive laws, that prosecution and state action follows.

Time-tested questions of state accountability and transparency, basic human dignity and freedom and the principle of non-discrimination arise out of the ban on SIMI

If the issue is dealing with new types of crime, cross border, transnational crimes and volatile populations — and hence the discomfort with complete transparency, this too needs to be stated so that it can honestly discussed and debated. Do the times we live in actually demand a paradigm shift on the crucial questions of burden of proof—innocent until proven guilty? What are the implications of such a major digression, or change? Can civilization afford to let it happen without a rigorous debate?

Related to this is critical, international accountability. In support of claims by governments and investigating agencies to book cross-border crimes and check ethnic genocides, a global movement demanding the setting up of an International Court of Criminal Justice has become more and more vocal. So far, the two staunchest opponents to this idea –that could be an effective check on cross-border terrorism have been India and USA. Why?

Secondly, is the critical issue of human liberty and freedom. In the euphoria of such expansive state actions — as we have witnessed before in the decade–long sway of TADA in Punjab, Gujarat, Jammu and Kahsmir and Andhra Pradesh, it is the voiceless and underprivileged who are made victims of harsh laws. In the ten years that we had TADA in force, it was almost never (99 per cent of the time) used against ‘terrorists’ but civilians protesting or challenging state policy. It had a less than four per cent of conviction rate. Already there is an eerie national consensus on the need for a New TADA. In the aggressive political climate that we witness today, we need to be sure that the arrests that follow the ban on SIMI — and any detentions made under preventive detention laws in future— are responsible actions not malicious and deliberate acts aimed at further alienating a large section of our population.

For over six months now, two states from western and central India — Maharashtra and Madhya Pradesh — have been pushing hard for the ban on SIMI. In fairness, their stance was more nuanced and therefore, also more logical. While unequivocally demanding a ban, they were clear that it was not only SIMI that required such stringent measures or not only SIMI that threatened the fabric of Indian society. The Bajrang Dal too, in the assessment of the investigating agencies of both these states is also a terrorist outfit, who’s activities need to be curtailed and the outfit therefore, banned. And herein we come to the final issue, that of non–discrimination.

Fundamentally, it is on this critical issue that the government has failed the litmus test. The government order declaring the ban reveals a selective application of the law. In this order, the government speaks of the ‘alleged’ burning of the Holy Koran in March 01 as if it was an incident that did not take place. While the SIMI role in capitalisiing on the shameful incident is there for all to see, (see CC, May 2001), what escalated the violence was the brutal murders of protestors by the Uttar Pradesh Provincial Armed Constabulary (PAC) found in many volatile situations to operate with a sharp bias against the minorities. Besides, the arrests made by Delhi Police Commissioner of BD and VHP activists deliberately burning the Koran in March 01 as provocation is an incident that did take place.The Coimbatore blasts, in which SIMI is supposed to have a role are mentioned, but the brutal riots against the city’s minorities three months previously consigned to distant memory.

In both the language of the order and the action in banning SIMI alone, the government has erred gravely. Worse still, it has revealed itself, for all to see, in a partisan role. If we leave aside for a moment whether a ban is principally desirable or pragmatically effective, it is the basic principle of governance based on citizenship, not religion or identity, that the Indian Constitution and it’s polity are wedded to that stands violated by the ban on SIMI, selectively.

Quite apart from empirical evidence of the clearly disruptive and violent activities of the Bajrang Dal collected by the police and investigating agencies in Maharashtra, Gujarat, Rajsathan and Madhya Pradesh (distributing Rampuri knives disguised as trishuls — see special report), the tone of Advani’s response when he laughed off the question of a demand on a ban on the BD as a joke bears mention.

Completely discounting the evidence collected by the state investigating agencies that was conveyed to him at a national meeting of all DGPs in early September, Advani said, "nobody has so far come with any evidence suggesting that it is involved in terrorist and anti–national activities or has engineered bomb blasts or a secessionist movement". Taking Advani’s statements to their logical conclusion was the vice president of the BJP, V Rama Rao who said, "It was bad to equate the action of organisations of Hindus with Muslim extremist outfits."

Individuals, organizations and outfits, far more visible and publicized than SIMI have over the decades made loud and sharp statements that provoke notions of equity, are sectarian and certainly violate the Indian Constitution. The list is too long to include them all but the BD and the Shiv Sena are two notorious examples. The involvement of the RSS, Hindu Munani, Jan Sangh and other collaborators, in provoking communal violence, has been documented by innumerable judicial investigations (see CC, March 1998) Since the Indian state neither acts against these outfits for criminal actions nor considers banning them ‘because it is bad to equate action of Hindu organizations with Muslim extremist outfits’ we appear to have digressed one more fundamental of Indian citizenship and nationhood.

In the sharply polarized and hate–filled public atmosphere, this latest state action applied selectively, bodes ill. 

Archived from Communalism Combat, October 2001 Year 8  No. 72, Cover Story 9

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Indian Parliament is on the  verge of passing a freshly  drafted, preventive detention leg islation, the Criminal Law 
Amendment Bill, 1998 (CLA) that is a brazen measure aimed at stifling democratic dissent and which, moreover exposes a sinister motive of incorporating a preventive detention law permanently within the criminal law statute.

Inherent to all preventive detention laws are severe curtailments of basic rights of the citizen, rights related to grounds for arrest, detention, fair trial and other crucial checks and balances on a law and order machinery that, with arbitrary power under law, could well misuse these against the detainee.

The present Bill was introduced by the ministry of home affairs under Congress rule in May 1995. The draft of the new legislation proposed then to replace TADA after toning down some of the harsher provisions contained within TADA. The government proposed to rush it through with open support of the Bharatiya Janata Party (BJP) but this attempt was stalled. A working paper circulated by the Law Commission in early 2000 with the revised draft, the CLA, 1998 reveals that the proposed law is a replica of TADA, with some additional draconian features brought back in. Following highly critical feedback on the new Bill, the Law Commission,  is currently working on a revision of the working paper that is likely to be ready in April 2000.

The working paper of 1999 reveals a narrow and partisan view of the political situation in the country and our recent political history. The section Security Situation in the Country  contains statistics and other data concerned with acts of violence in Jammu and Kashmir, Punjab and the North-East. The Religious Fundamentalist Militancy section mentions that Muslim militancy increased after the bomb blasts in Mumbai, but there is no mention at all of the events before and on December 6, 1992 and the nationwide holocaust that followed.

In 1985 the following clauses contained within TADA were removed from the new Bill. They now re-appear in the CLA Bill of 1998.

Ø The pernicious clause (section 15) which made confessions before police officers admissible as evidence was deleted

Ø The right of appeal to the High Court (and not only to the Supreme Court was restored

Ø Restrictions on the right to bail were removed following judicial direction in Hitendra Thakur v/s State judgement, SC 255.

Ø Section 5 of TADA that had been incorporated into the new Bill, the section pertaining to the mere possession of arms in a notified area constituting an offence was also removed. This followed the SC judgement in the Sanjay Dutt  v/s State through CBI (1994 5SCC 410). This section is now back.

Ø Section 22 of TADA, 1987, also incorporated in the new Bill, which substituted a test identification parade with photo identification was deleted. This provision in TADA had also been held by the SC to be illegal in Kartar Singh. It is now back.

The new Bill sets dangerous precedents in the already black history of preventive detention in India

Ø TADA had to be specially notified in areas that were deemed to be fit for the operation of such a law, the CLA will automatically operate throughout the length and breadth of the country.

Ø The proposed CLA Bill, 1998 will remain in force for five full years. The Law Commission is of the opinion that India requires a permanent anti-terrorist law in view of the alarming  proportions that terrorism has acquired over the past few years.

Ø Modeled on UK and US Anti-Terrorism legislation, a factor that the government is using as justification, the CLA, 1998 omits critical features of accountability contained in the originator legislations. In those countries, government is bound to present annual details of arrests and convictions on the floor of Parliament to ensure a measure of accountability. No such measure of government accountability is contained here.

Ø In the wake of the bomb blasts in Coimbatore in February 1998 (that incidentally also followed three months after brutal bloodletting against the city’s Muslims in November 1997, the Tamil Nadu government enacted the Prevention of Terrorist Activities Act (POTA) which was only recently repealed due to sustained campaigns in that state. In early 1999, the Maharashtra government brought in the Control of Organised Crime Act, 1999 which also contains the most draconian provisions of TADA.  In such a situation, what will the combined effect of a surfeit of preventive detention be except to unlawfully and unconstitutionally vest more and more arbitrary powers with the police?

Ø Article 4 of the International Covenant on Civil and Political Rights (ICCPR) to which India is a signatory since 1979, permits states to derogate from certain sections when there is a ‘public emergency that threatens the life of the nation,’ and only ‘to the extent strictly required by the exigencies of the situation.’ This qualification makes it difficult to justify the application of CLA indiscriminately to all parts of the country.

India has a abysmal record of blatant human rights violations that include systematic encounter killings by the law and order machinery or security forces (note the senseless killings of four innocent Kashmiri Muslims near the Zontangri peak to ‘avenge’ the massacre of 35 Sikhs allegedly by foreign militants at Chitti Singhpora on March 20 by the Indian army and the police), a pathetic record of deaths and brutal torture in custody and a non-existent adherence to basic criminal law procedures in matters of arrest, detention and questioning. A new law that grants further immunity to the Indian state and the police from checks and balances from arbitrary misuse, is to put it mildly, ominous.

We are also a state with the longest history of preventive detention since our Independence barring the three-year period between 1977-1980. The worst human rights record was during decade-long existence of the Terrorist and Disputed Activities (Prevention) Act, 1987, the legislation first introduced in 1985 in the wake of Operation Bluestar in the Punjab and prime minister Indira Gandhi’s assassination and thereafter extended for a two year period until it was finally repealed on May 23, 1995. The repeal of TADA followed burgeoning protests from the human rights’ movement all over the country. 

Justice Ranganath Mishra, then chairperson of the National Human Rights Commission had publicly stated that the act had ‘been prima facie abused in Gujarat.’ He convened a meeting on August 22, 1993, at which several chief secretaries and home secretaries of states were present, to push for the review of its application. 

The official admission of allegations of misuse of TADA is evident from a letter by former union home minister, S.B.Chavan, dated July 27,1994 to the chief ministers of all states where TADA was applicable. The letter emphasised that TADA should not be used against political opponents, trade union leaders, journalists, former judges and civil servants. The very need for such a letter is evidence that such abuse of the law had been taking place.

The statement of objectives of the Act specified that TADA that is reproduced verbatim within the new Bill, was meant to curtail overt acts of terrorism in Punjab and Haryana. A spate of terrorism-related violence in the two years that followed between 1985-87 exposed the ineffectivity of TADA for the specific purpose that it was ostensibly enacted. 

On the contrary, TADA in ten years of its existence was actually used, highhandedly, against the Indian civilian population in different states, albeit those sections that the police and governments decided were most inconvenient at that particular moment in time. 

TADA was used to stifle any form of democratic protest. For example, 57 women belonging to the progressive organisation of women protesting against GATT were arrested under TADA in  Nandyal in Andhra Pradesh during a prime ministerial visit. By 1995, in 22 of the 25 states TADA had been notified for application. In ten years a staggering 52, 998 persons were arrested all over the country under TADA, of which only 448 were convicted. The rate of conviction of TADA detainees  was less than one per cent.

Maximum TADA detentions took place in the state of Gujarat that arrested 19,000 persons under that law. Trade unionists, environmental activists and citizens belonging to the minority community were the sufferers. The tale of Mumbai in December 1992-1993 is a sorry record of partisan and brutal police behaviour (see pages 23-24) against the state’s minorities. In the aggression and frenzy unleashed by the Maharashtra and Mumbai police following the bomb blasts of March 1993, members of the minority community were threatened with indiscriminate arrests under TADA and huge monies extorted from them under this threat. Muslim businessmen had then alleged that as much as Rs. 25 crores had been extorted from them in this fashion. 

The National Minorities Commission also passed a unanimous resolution condemning the misuse of the law against the minorities. Justice Rajinder Sachar, a retired chief justice of the Delhi High Court and senior functionary of the People’s Union for Civil Liberties (PUCL) had stated on record, “TADA is being misused…After Bombay (bomb blasts) many Muslims have been arrested under TADA.”

The revised CLA retains the earlier definition contained within TADA of a ‘terrorist act.’ However under section 3(1) it widens the scope of the definition. Apart from intentions to overawe the government, strike terror, alienate any section and adversely affect harmony, the definition of a terrorist act  has been expanded further.

To this already wide definition, the Law Commission has added the words, ‘threaten the unity, integrity, security and sovereignty of India.’ This section three is very wide and over-arching in its definition and scope. It includes within it acts that are both violent and non-violent.

 Within the political scenario that confronts us at the moment a profound battle rages on. It is a battle for the ideological and political future f the Indian state. Details of the battle apart, a major and contested issue is on what and who constitutes the threat to the unity, security and sovereignty of India. Arguably, some of us feel that the divisive and pernicious politics of the BJP-RSS-VHP-BD combine, overtly manifest in senior functionaries who occupy government posts today and who have as their goal the transformation of the Indian state from its current democratic character to an authoritarian and sectarian one, is the singular and greatest threat to our unity, our integrity and our security. 

Saying, believing and campaigning for what we believe could, for the sake of argument, immediately attract the provisions of these draconian sections. 

The really dangerous aspect of the section is that it seeks to punish political ‘intent’ as much as the act itself. Section 3(1) of the Act states that it is an offence to conspire, attempt, incite, abet, or assist in the preparation of a terrorist act, or to knowingly harbour or conceal a terrorist. Membership of terrorist gangs, holding of property derived from terrorist funds are also offences under the Act.  Section 4(2) also provides that whoever commits or conspires or attempts or abets advocates, advises, facilitates the preparation or commission of a disruptive act or harbours a disruptionist would also come within the purview of this section.

This section clearly violates section 19 (1)(a) of the Constitution that guarantees freedom of speech and expression. For example, a poet or a cartoonist merely expressing the opinion that a plebiscite should be held to determine the future status of Kashmir could well be held and tried as a disruptionist if this Bill becomes law. This means that anyone can be detained for peacefully expressing their views on matters of ordinary political debate and if found guilty would be sentenced for a minimum sentence of five years, considerably longer than the envisaged international human rights standards.

Under section 5 of the CLA enhanced penalties can be given for offences under the Arms Act, 1959, the Explosives Act, 1884, the Explosive Substances Act, 1908 or the Inflammable Substances Act, 1952 “with an intent to aid a terrorist or a disrputionist.” Offences related to the possession of arms have been linked to ostensible acts of terrorism in ways that are bound to make them deadly weapons in the hands of the police.

Section 3(8) of the proposed legislation makes the failure to disclose information to the police to prevent a terrorist act by any person liable to imprisonment for a year. All citizens have a moral duty to assist in the enforcement of law; the failure to do so here makes this omission a penal offence. Another way of legitimising police harassment and torture of relatives and friends of alleged terrorists? 

A critical feature of the Indian Constitution is the separation of the judiciary and the executive (Article 50). The CLA Bill seeks not only to erode this but also to vest extraordinary powers to the executive. The executive that is the government and its wing, the police have been given the power to frame all rules, mete out punishment, prescribe procedures, seize and confiscate property. Under section 6A the investigating officer (Superintendent of Police) can seize or attach property which at the stage of the investigation, he believes to be obtained by terrorist acts or the proceeds of terrorism.

In continuation of the thinking behind TADA, the CLA upholds the logic that special crimes need special procedures. Checks and balances in accordance with the basic rights of a citizen, rights relating to procedures for arrest, detention, ownership of FIRs and other police records, detailed at length in the CRPC, are given the complete go-by. Permanently.

Section 14c) of the CLA provides for not disclosing the identity of the witness even during cross-examination, while section 3(7) provides for the punishment to a person who may threaten the witness. Arbitrary tools for the police. It is a very serious matter that trade unions and other mass movements have been covered within the purview of the act. The provision implied in section 4(1)© is that if such organisations even by mistake become a party to violence, they can be booked under the section of ‘disruptive activities.’

The Bill gives no discretionary power of bail to the Court unless by prior consent of the public prosecutor. This provision from TADA was grossly misused especially in Gujarat. 

The Bill does not allow for appeal on the interlocutory order. Further, the Bill requires that the FIR must be ratified by the DGP within 10 days or the review committee within 30 days: since both are state authorities, it is unlikely that the verification will not take place. Section 13(5) provides that ‘a special court may if it thinks fit and for reasons recorded ….proceed with the trial in the absence of the accused or the pleader.’ 

This could allow for the grossest abuse. Section 18(2)(b) gives unlimited power to the police to retain the custody of the accused for 180 days without filing a charge sheet. Finally, section 17(3) restricts the period for appeal by the accused to only thirty days when Indian criminal law allows for sixty-ninety days.

Ironically all offences mentioned both in TADA and the CLA find mention in the Indian Penal Code –sections 121-A, 122, 124, 124-A, 153-A and 153-B, besides offences of rioting, grievous hurt, murder, dacoity and piracy.  The IPC also contains various offences relating to the Army, Navy and Air Force. In the past, for the protection of defence of the country, a statute like the Defence of India, Act 1962 was enacted which authorised the Central government to make such rules as appeared to be necessary for the Defence of India: civil defence, public safety, maintenance of public order, efficient conduct of military operations and security forces.

The experience of TADA and its brutal and insensitive application to the Indian civilian population is testimony of the desire and designs of a government and law and order machinery that wishes the experience to be repeated. Terrorism was not curtailed then, it was not even contained despite the existence of TADA On the contrary, thorough investigative procedures were given the go-by, dulling the professionalism of the law and order machinery that was simultaneously empowered by a brutal law to become trigger happy and break the law. Do we want this experience to be repeated? 

Archived from Communalism Combat, April 2000. Year 7  No, 58, Special Report 3

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The BJP coalition government wants to change the Constitution. But why? On this, the BJP is obscure. The coalition partners, who used to be vocal in their pre–coalition incarnation, are silent. There is little indication about the need for or the area of change. There is no White Paper. No document. Even the constitutional changes proposed in 1976 during the Emergency were preceded by a long eclectic, anonymous, unsigned document which provoked a sitting judge, Justice Krishna Iyer, to demand that someone claim ownership of the illegitimate child. White Papers are not unknown to the BJP. They published an embarrassingly communal White Paper on Babri Masjid in 1993 which some of us were pained to read to the Supreme Court in the Babri Masjid proceedings. This time the BJP is silent.

There is to be constitutional change. But, for whom? And, for what? Are these changes to benefit the BJP? Are they to benefit the coalition partners? Are they for the nation? Are they really about constitutional changes? Or are they about governance? Or, is all this to be left to Justice Venkatachaliah who is to head the commission? We do not even have the benefit of a statement from the government, or a debate in Parliament.

We do have some glimpses about what the changes may be about. The first glimpse was about a possible switch to the presidential system. This has been in the air for some time, but acquires vitality in today’s electoral context. The BJP has failed on three occasions to get a single party majority — in 1995, 1997 and 1999.

Like Mrs. Gandhi in 1976, it feels that if it fields a directly elected President it might win. Yet, we think that the presidential system is a self–fulfilling prophecy. As in the US in 1992 and many other occasions, there could be a paralytic situation between the legislature and the President. With 200 years experience, the US could handle this crisis. In India, the 50 years of mal–experience suggests that we cannot handle it. Political capital will be made about confrontation to precipitate paralysis.

This is also true of the second glimpse of proposed change which vouchsafes continuity of the government in power (in our case, the BJP) unless there is a positive vote of no-confidence and a viable alternative. The requirement of a positive vote of no–confidence is no problem because that is how the system functions. Thus, Mrs. Thatcher was defeated on major policy matters on 21 occasions and the Narsimha Rao government was defeated on TADA and the Patents Bill in 1995 without yielding to a resignation.

However, a guaranteed term in the absence of an alternative government for three, if not five, years may deal with the problem of frequency of elections, but it does not deal with the problem of paralysis between the executive and the legislature. In fact, the interposition of a viable alternative will increase suitcase bribery from which the legislators will have criminal immunity after the Supreme Court’s judgement in the JMM case (1998).

The third glimpse of what is possibly on the agenda appears to relate to the electoral process. The BJP feels that despite a decline in the popular vote, it can command a greater proportion of the popular vote. But, in order to do this it needs to alter the electoral system. To its rescue comes a report of the Law Commission which seeks to run Indian democracy on German lines. The presence of independent candidates is seen as a nuisance.

So, Indian democracy is proposed to be run through political parties. Independents are out. It is not clear how new parties will come into being. More significantly, the Law Commission’s proposals suggest that the size of Parliament be extended by about 100 members to reflect the popular vote for particular parties. The Law Commission’s proposals were criticised. But, Justice Jeewan Reddy is adamant that he has found the German and cosmopolitan elixir which will cure Indian democracy.

He has a penchant for new ideas within an overall statist approach. Thus, on the bench he virtually nationalised technical education in 1993, provided for a limited judicial review of President’s Rule with awkward results by approving President’s Rule for states where there were no problems and has, recently, veered the Law Commission to support the revival of TADA. He is to be on the Commission on the Constitution. We do not know whether he is overtly committed to re–structuring India’s democracy on German lines. We know he is passionately committed to his own final reports on electoral change.

Fourth, there is the BJP’s agenda of silencing the President. In 1979, the Constitution was amended to give formal recognition to the power of the President to refer back matters for re–consideration by the Cabinet. The BJP were not happy when President Narayanan used this power to refer back the government’s decision to impose President’s Rule in Bihar in 1998. Nor have they been happy about some of the President’s pronouncements. But, both in general parliamentary practice, as well as due to the provisions of Art. 78 (which give the President the power to obtain information), the President has the duty to advise, encourage and warn.

As Justice Krishna Iyer, explaining the parliamentary system in Shamsher’s case (1973) put it: the President is not, and was not intended to be, a cipher. Indeed, it would be sad and inimical to governance if he became that.

Fifth, there is Ram Jethmalani’s agenda about bringing accountability in judicial appointments and misdemeanours by the higher judiciary. In the Third Judges case (1998) — provoked by a reference suggested by Attorney General Soli Sorabjee and perforce, Mr. Jethmalani and others — the judges have purloined and virtually taken over the system of appointment of judges. This has led to awkward results. Judges rejected by previous collegiums have found acceptance by recent ones.

Mr. Jethmalani and others (no less myself as a little inconsequential voice of a student of this process) feel a proper National Judicial Commission is required. No less, the ‘acquittal’ of Justice Ramaswami by a block Congress abstention in 1992 and Justice Venkatachaliah’s internal report that judges publicly accused of wrong behaviour cannot be denied work has led to a situation that judges of the higher judiciary cannot be disciplined; and, do not always exercise self–discipline. Here, there is a specific need for re–examination. But, one does not have to review the whole Constitution simply to deal with this.

Sixth, there is a fear that the Union may want to rewrite Indian federalism and the panchayat system to centralise power. We already have the Sarkaria Committee Report (1987) which has lain fallow for many years. Do we need another Commission? Surely, a White Paper on Sarkaria is overdue before we venture nebulously into yet another Commission?

Seventh, one of the great dangers faced by India is the lumpenization of its governance. This is startlingly affirmed by the Vohra Committee (1995), which expresses the concern of the major security agencies that India ‘s governance is run by thugs and hoodlums at every level of governance. This is a problem of governance and politics. Its needs examination; but not necessarily under the aegis of constitutional review.

Eighth, India’s democracy is imperfect and stunted in its rigour. It is a matter of tribute that the people of India have discerningly evolved the right to throw out their rulers from time to time. But, apart from this aspect of electoral democracy, Indian democracy is weak and lacks both the discourse and accountability to make it work in a strongly democratic way.

Information is not available. Reports on grievous atrocities and corruption are not dealt with. But, these are all matters of governance and of making democracy work. If the political parties want, they can include less, or no, thugs in the electoral process. When Mr. Jethmalani wanted to evolve a new democratic system of information–on–demand, he was shot down by the Cabinet secretariat.

These are all matters of governance. This is equally true of the ninth area of general — albeit not BJP concern — that social justice is denied to most Indian’s, especially the 350 million living below the absolute poverty line.

Finally, there appears to a somewhat arbitrary celebratory millennial and golden jubilee view that a review must take place after 50 years of the republic which coincides with the advent of a new century. There is a difference between reviewing aspects of governance and arbitrarily reviewing the fundamental law simply because 50 years have passed.

In the light of all this, it is understandable that the proposal to review the Constitution is looked at with suspicion. But, there is another reason to fear a sweeping proposal of this nature. It will open up Pandora’s box. As soon as one speaks of a general constitutional review, innumerable demands for change will be made. We have only to read the debates of the Constituent Assembly of 1946–49 to realise the nature and sweep of demands. We were lucky to pledge these demands to peace in 1949. I doubt whether we will be so lucky now. If India would even try to draft a new Constitution today, we would not succeed. We have not even been able to put through the Bill for Women’s reservation. Israel was not able to evolve a consensus for an agreed Constitution in 1949 or thereafter. Pakistan’s Constitution took 8 years to evolve (1947–56); and, that too, after the Constituent Assembly was dissolved in 1954! Since then in Pakistan as also in Bangladesh, constitutions have constantly been usurped into breakdown. The Constitution and constitutional change should not be treated as a political toy.

India’s Constitution has a theory of change. In 1973, a Supreme Court judge put it very elegantly when he said that a Constitution was not in a state of ‘being’ but ‘becoming’. The Constitution catered for adjustments and adaptations. This is what made our linguistic States possible. The Constitution also invited a re–examination of its working and strengthening of its democratic processes. Examples of this include the Anti-Defection Amendments (1985) and the Panchayat Amendments of 1992. There was a cap on changes of the basic structure by the Supreme Court in the Fundamental Rights case (1973). But, it is not clear what the basic structure is. In the Bommai (1993) and the Babri Masjid case (1995), the Court declared that secularism is part of the basic structure. In both the 1973 case and thereafter, judicial review has been declared part of the basic structure.

Presumably, democracy is part of the basic structure, but it may not follow that a particular form of democracy is part of the basic structure. ‘Socialism’ — in terms of social and distributive justice — may be part of the basic structure; otherwise the Constitution is meaningless for the millions living unequally, generation after generation, in penury below the poverty line. Yet, intimations of the ‘basic structure’ should not frighten us into not making Indian democracy and the rule of law more workable.

The contemporary proposal to review the Constitution began life as a political proposal to achieve political results. Justice Venkatachaliah’s interventions may have provided some focus. What we seem to fail to do is to make the vital distinction between constitutional reform and governance.

The governance of a nation requires constant re–examination — even more so the governance of a nation like India which has an imperfect democracy, is overrun by lumpen elements and which has failed to provide social justice to the bulk of its people. But to invite a general constitutional review has ‘Pandora box’ implications. India’s Constitution was devised for a complex civilisation. Neither the Constitution nor plans to change it should lend itself to usurpatory appropriation — least of all to suit the agendas of political parties.

Archived from Communalism Combat, February 2000. Year 7  No, 56, Debate

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