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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 The Advisory Board found otherwise and thus the booking against him under the Act has been revoked against him.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 

 

The Supreme Court has now stated in an Order that strikes and bandhas are a part of the freedom of expression. As reported by the Times of India, this despite a Supreme Court ruling in 1998 that the calling of a bandh is not permitted by the Constitution. This post may be treated as explaining the nature and history of this right under the Constitution.

The right to strike as such is held to be sacred to the history of labour movements and unfolds with the idea of socialism and industrial disputes in our Country. While the Industrial Dispute Act has appropriate provisions to regulate the calling of strikes, in Kameshwar Prasad v. State of Bihar, AIR 1962 SC 1166. the Court held that there is no right to resort to a strike under the Indian Constitution and doing so would be violative of the fundamental rights of the citizens who would be affected by it. In TK Rangarajan v. Gov. of Tamilnadu, the Court while deciding on Jayalalitha’s sacking of service officers for striking held that;

“law on this subject is well settled and it has been repeatedly held that the employees have no fundamental right to resort to a strike. Take strike in any field, it can easily be realized that the weapon does more harm than any justice. The sufferer is the society- the public at large”.

 As regards bandhs, the case referred to by the Times of India is that of Communist Party of India v. Bharat Kumar, (1998 ) 1 SCC 201. The court held here that there cannot be any right to call or enforce a bandh which interferes with the exercise of the fundamental freedoms of other citizen, in addition to causing national loss in many ways. Under no circumstances, does the Constitution give sanction to such a right. Interestingly, this case was an appeal from the kerala HC on a decision that the present Chief justice Balakrishnan (then as a HC judge) had ruled.

 So day before yesterday when the Court was asked to issue a stay on the bandh issued by the DMK as a protest for the treatment of the tamils in Srilanka; there was clear precedence that the Court should have done so. However, what the Court did do was to state;

“What has this Court to do with stopping strikes? India is a democratic state where everyone has a right to express their feelings”

In one sitting, taking not more than an hour I am told, the Court deviated from years of precedence and ruled otherwise. This is outrageous in my personal opinion. Writing on the Indian judiciary, one foreign author wrote that what is fascinating about the Indian Supreme Court is how serious questions of policy and law are decided by an unelected elite in just a few minutes of argument in Court. This departing from a formal process of lawmaking which takes months of thinking in that area.

The author has made a right comment and it has a great bearing in the present situation. The Court should not have stated something like this. When the case comes up for hearing again on the 15th of feb., it is hoped that it would realize its folly and make amendments to its order.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     

 

Amidst all the hype and hoopla that surrounds Obama’s first days in Office, it maybe worthwhile to take a step back and evaluate the implications of the Bush Presidency. Seldom has the post-Cold War world seen such tectonic shifts in many matters of global concern. These eight years, starting right from the doorstep of the new millennium, have dictated our thought, outlook and course of action. From January 20, 2000 to 2009, the most powerful political position of responsibility today was held by a mercurial personality, who managed to emerge both as the most and least popular President of the United States of America. Whether you adored him (like the corporate and industrial lobbies of the US) or loathed him (pretty much like the rest of the World), you just could not ignore George Walker Bush Jr. Here’s our take on what the Bush Era has meant for tomorrow.

1. Iraq, Afghanistan, the Middle East and the War on Terror.

Within one year of his taking over the US Presidency, George Bush witnessed the first major terrorist attack on an American metropolis in decades. 9/11, hence immortalized through its suffering and consequence, was pivotal in influencing the Bush administration’s foreign policy outlook towards West Asia and the Middle East. Following the launch of a global ‘War on Terror’, a belligerent Bush pursued the Al-Qaeda to the footsteps of the Taleban. Months later, Afghanistan was left in tatters, besieged by the armies of the West in a futile attempt to capture the masterminds behind the WTO strikes.

The President then trained his guns further East, onto Iraq, where the ‘outrageous’ and ‘tyrannical’ regime of Saddam Hussein had allegedly held Weapons of Mass Destruction. Portraying Iraq to be a threat to the precarious stability of the Middle East, the US assumed the patriarchal role of a superpower to chastise the rogue nation. The extant situation in Iraq is left for everyone to see; while the US is fighting a trillion-dollar war, Iraqis are struggling to find a foothold on the world map.

As the Bush Presidency is all set to be a bygone era, the world has been left reeling from an increased spate of terrorist attacks, raising incisive questions of the efficacy of a costly ‘War’.

2. The Environment and Climate Change

As a presidential candidate, Bush began his campaign with a pledge to clean up power plants and reduce greenhouse gas emissions. During the initial months of his first Presidency, he even sought to commit billions of dollars to fund ‘clean-energy’ technology. The President also assured the Congress, environmental groups and the energy industry of his full co-operation to secure a reduction in emission rates within a reasonable period of time. However, his subsequent volte-face on the matter, terming greenhouse gas reduction to be adversely affecting energy prices, shocked the environment-conscious community.

The Bush Administration also refused to implement the substantive content of the Kyoto Protocol, stating that “ratifying the treaty would create economic setbacks in the U.S. and does not put enough pressure to limit emissions from developing nations”. After years of subservience to the powerful oil and energy lobbies, environmental surveys at the end of Bush’s tenure indicated a marked increase in the US’ contribution to global warming and sustained ecological recklessness.

3. Human Rights and Guantanamo.

Guantanamo merits a separate post. The connecting link will be uploaded in a day’s time.

4. The State of the Economy.

The fag end of George Bush’s stint as the President witnessed the implosion of the mighty US financial sector, triggering a global economic meltdown. A consequence of hasty and often unmonitored actions of the corporate lobby, the financial downturn meant a loss of jobs for millions of people around the world in professional services. The chain-reaction of such a collapse is yet to cease, and major banks and industries continue to be bailed out by the day.

While we may have to dig deep to find positive lessons from the Bush regime, it is suffice to say that the period is dead and gone. May the Bush Presidency rest in peace.

This comes as news to all the politicos in Andhra Pradesh wanting to form Telangana.

The AP High Court has now reserved its order on a PIL on whether the government has the power to divide a state into smaller states.

The petition is based on the contention that a state cannot be bifurcated without the consent of its people and going by this; Amendments 5 and 7 to Article 3 of the Constitution should be declared unconstitutional.

“Article 3 of the Constitution gives the power to the Parliament to form a new state or alter areas or boundaries. Under the Constitution, the State legislature has no role to play in this act. Though the President is bound to refer the Bill to the state legislature; in Babulal v. State of Bombay, AIR 1960 SC 51, it was held that the Parliament is not bound to accept or act upon the views of the State Legislature.”

 

On a political front, this case may have a huge impact on the upcoming AP state elections where Telangana can now again become an issue.

On a legal front, the consequences are much greater. It was after IR Coelho v. State of Tamil Nadu that amendments to the Constitution were open to challenge to the basic structure and the rights guaranteed under Articles 14, 19 and 21. However, it was held that only those amendments after 1973 would be open to challenge.

Challenging the 3rd and 5th Amendments now would be against the ruling in Coelho’s case and it would interesting to see how the Court goes about to answer this question. 

PS: The Article was in the TOI issue dated 24th Jan 2009 in the HYD “times city” section. I cannot get the link and shall upload it as soon as i get hold of it. 

Mark Felt, former FBI officer who revealed himself to be the key informant in exposing the Watergate Scandal (‘Deep Throat’), has died.

Felt, 95, breathed his last yesterday in a clinic close to his home in Santa Rosa, California. During the years of the scandal he was one of the highest ranking officers in the FBI, instrumental in investigating the break-ins and burglary at the Democratic National Office in Watergate Complex. The investigation subsequently uncovered a nebulous network of campaign fraud, illegal tax audits, political espionage and wiretapping associated with Nixon’s Re-election Committee; mounting bipartisan political pressure coupled with a series of futile court battles forced the President to resign in 1974.
Many of you might have seen Hal Holbrook’s performance as ‘Deep Throat’ in the famous movie ‘All the President’s Men’. Deep Throat’s identity was kept anonymous for 30 years by Washington Post journalists Bob Woodward and Carl Bernstein, until Mr. Felt himself revealed his informant status in 2005.

‘Deep Throat’ remains a legendary figure in investigative journalism circles and continues to be an inspiring icon for righteous officers of the State. Felt himself had come under heavy criticism for being a ‘traitor’ and letting down the Commander-in-Chief; many attributed his opposition to the President’s scheme to vindictiveness, for being superseded in the FBI Directorate by Nixon’s close political associate. However, there were many who disagreed.

As he himself wrote later,

The President wanted a politician in J. Edgar Hoover’s position who would convert the bureau into an adjunct of the White House machine.

Individuals like Felt are a rarity in today’s bureaucratic set-up; the extant legal regime must ensure that whistle-blowers and vanguards against corrupt official practices are protected.

To quote the American prosecutor, John Nields, from The Washington Post in 2005,

As Deep Throat, Felt helped establish the principle that our highest government officials are subject to the Constitution and the laws of the land.