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Hindutva seems to have got new vigour now. The Advisory Board constituted to examine Varun Gandhi’s hate speech and booking under the National Security Act has recommended the withdrawal of the said Act against Vaun Gandhi. (news item here)

The three member panel comprising two retired HC judges Justices S N Sahai and P K Sareen, was understood to have stated in no uncertain terms that the inflammatory speeches made by Varun were not enough to attract the deterrent provisions of the NSA and the action takes was disproportionate to the nature of the alleged crime committed by Varun Gandhi.

But what exactly is this Advisory Board? Who constitutes it ?

Under the National Security Act, Sections 9, 10 and 11 govern the formation of the Advisory Board. Once a person is booked under the NSA, the appropriate government forms the Advisory Board and transfers the case to it. The main function of the Board is to look into the alleged acts and opine if there was sufficient cause for the person to be detained and booked under the NSA. If the Advisory Board opines that there wasn’t any sufficient cause for the detention of such person, the Appropriate government must revoke the order of detention.

The National Security Act governs the arrest and detention of persons acting in any manner prejudicial to the defence of India, relations of India with foreign powers, or the security of India.In Kartar Singh v. State of Punjab, the phrase ‘defence of India’ was construed to mean not only external sovereignty but also internal sovereignty. This, added to the phrase ‘security of India’ might have seemed appropriate to book Varun Gandhi to say that his hate speech might have instigated a riot or harmed the security of the state. The hate speech of Varun can be viewed below,

 

Well, he might want to cut the hands of people from another religion, But surely Varun Gandhi has had the laugh now. The question remained as to whether this speech was sufficient to harm the security of the state or ‘defence of India’. The Advisory Board found otherwise and thus the booking against him under the Act has been revoked against him. He may however, still be booked under the Indian Penal Code for incitement to violence and religious hatred. 

Readers might also want to read earlier news items and posts on this here;

– Varun Gandhi’s Hate Speech and the Law 

– Frame by Frame

– V is for Varun Gandhi…

– Beyond the Law 

 

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Law and Other things and the Indian Express have a series of posts and articles on Mayawati and her understanding of the constitution; the latest being Vinay Sitapati’s article in the Indian Express available here.

In a gist, Vinay argues that while most legal commentators view individual rights as being the core of the Constitution, group identities as mere political concessions, Mayawati subscribes to the inverse idea — of the Constitution being a power-sharing agreement between groups. He also adds that in Mayawati’s view, the provisions for weaker sections were the result of a political compromise.

Perhaps the only politician who is so vocal about the constitution during the times of elections has been Mayawati and we must give the devil her due for that. She also has raised some serious questions that Vinay brings forth but doesn’t go further into. For instance, would we have specific provisions for the minorities if there hadn’t been a political compromise as he puts it ?

Most of the provisions today in the Constitution talk of group rights and identities within the paradigm of individual rights; Articles 15, 16 (reservations), prohibition of untouchability (Article 17), rights to administer minority institutions (Article 30) etc…. They make you think as to whether they would’ve existed even if there wasn’t an Ambedkar in the 1950s being a part of drafting the Constitution. I wasn’t alive back in the 1950’s but the recent examples of South Africa and its struggle for the inclusion for group rights makes me understand that it surely wasn’t an easy thing to attain and incorporate. Readers may read Barbara Oomen’s article here to get an idea of the same.

In the Constitution, we do talk of the individuality of rights. That part III incorporates the civil and political rights that are primarily individual in nature and part IV is to have social and economic rights that are group rights. But having a lot of these group rights in part III for the benefit of minorities is not such a bad thing either. India and now South Africa mark a shift in this traditionalist thinking and perhaps maybe for the better. If the Constitution is a power sharing agreement between groups, then the rights are surely the result of a political compromise. It took 300 odd people sitting for more than 2 years to debate and frame our constitution, in exchange for the discrimination that the dalits had faced and their rights (may be not for a separate state as mayawati argues though) some provisions in Part III may be considered as a compromise to them.