A Striking Chief Justice

By ALBERTINA ALMEIDA

 

India has had 44 Judges as Chief Justices of the Supreme Court including the current one. But not all leave the kind of impression that the recently deceased Chief Justice Altamas Kabir did. During his stint as the Chief Justice for barely a year, and prior to that as Justice of the Supreme Court for about seven-and-a-half years, Justice Altamas Kabir did blaze a trail in terms of understandings of justice and crusading for peace.

 

Not for him the flaunting of Justiceship on the collar, gown and sleeve. Not for him the stiff neck that characterizes many Justices. This Chief Justice was a simple down-to-earth jovial person, who yet was firm beneath his gentleness. I had occasion to meet him on the verge of his elevation as Chief Justice and was struck by this simplicity and also responsiveness. He was prolific with disposing cases with practical judgements that clearly elucidated the rationale: instead of saying the homo sapiens veered from the vertical to the horizontal position to simply say a man fell down.

 

Justice Altamas Kabir’s minority status perhaps gave him the position from which he could understand the conditions of marginalized sections of society. Justice Kabir reemphasized in the famous IR Coelho case judgement delivered in early 2007 (popularly called the Ninth Schedule case) where he held forth on the basic structure of the Constitution and maintained that the Court has preserved its inherent powers to make such orders as may be necessary in the interests of justice as the guardian of the Constitution. “Justice transcends all barriers and neither rules of procedure nor technicalities can stand in its way, particularly if implementation would result in injustice”, he said and emphasized that “It is necessary to cut across technical tapes”.

 

Being the incumbent of the post of Chief Justice when the Nirbhaya case and the protests about it were raging, Justice Kabir, on an occasion a few days after this incident, while inaugurating a Fast Track Court in Delhi, expressed his anguish that he could not be part of the protest given the position he was holding. He was however clear that in the process, one cannot get so carried away that we handle the matter with a knee-jerk response where the solution is worse than the problem.  As a matter of fact, he cautioned against vigilantism. He was speaking in the backdrop of strident demands of castration, death penalty, ‘shoot them’ attitudes that were renting the air in those days.

 

It was perhaps in this spirit that when having to give his considered opinion on reducing the age of a juvenile when it comes to rape murder cases, he did not appreciate the rationale for this and reminded the world that the objective of the Juvenile Justice Act was restorative and not retributive justice. The Juvenile Justice Act, one may recall is meant to ensure that there is justice for a child in need of care and protection as well as a child in conflict with the law so that the child is rehabilitated and does not grow into a destitute or a criminal.

 

The NEET (National Eligibility Entrance Test) case was the last of the cases on which he delivered judgement before his retirement in 2013. The case had the effect of pushing back the proposal for the single all India entrance test for admission to professional medical and dental colleges all over India. It is hugely significant in the context of Goa. It resonated for Goa which has had just an iota of IAS officers precisely for reasons of language and script, when Justice Kabir opined that apart from the right to freedom of religion, is the right of citizens to a distinct language script culture of their own to conserve the same. Difference in language, culture or script has often given those invested in dominant languages, cultures or scripts an edge over students from minority languages, cultures or scripts, in a situation where the standard of the exam is determined by the practices and standards of the dominant.

 

“There can be no controversy that the standard of education all over the country is not the same. Each State has its own systems, pattern of education, including the medium of instruction. It cannot also be disputed that children in metropolitan areas enjoy greater privileges than their counterparts in midst of the rural areas, as far as education is concerned, and the decision of the Central Government to support a single entrance exam would be perpetuate such divide in the name of giving credit to merit”, Justice Kabir opined.  Justice Kabir further remarked in the judgement that in a single window competition, the disparity in the educational standards in different parts of the country cannot ensure a level playing field, thereby highlighting the dangers of a single entrance test.

 

Justice Kabir empathized with marginalized sections of society and is fondly remembered by adivasi groups in Jharkhand where he held the post of Chief Justice of the Jharkhand High Court. His invitation to representatives of marginalized sections of society, including Dalits and adivasis, to attend his oath-taking ceremony as Chief Justice is well remembered.  And so are his efforts to get Supreme Court Judges to engage with their concerns, including the time he got a team of Supreme Court Judges to meet a delegation of sex workers at the National Legal Services Authority, in order to enable them to understand what it means to be in those shoes.

 

It is not as if Justice Kabir did not have his share of allegations of various kinds, and the jury is out on the truth or otherwise of those allegations. But that cannot take away from certain sterling qualities of Justice Altamas Kabir emphasized above, that people in positions of power could do well to emulate.

 

(First published in O Heraldo, dt: 23 February, 2017)

Advertisements

Reflections on Republic Day

By ALBERTINA ALMEIDA

 

Come Republic Day and an apparent prevailing disregard for the Constitution becomes an occasion to stock take and introspect.

 

Earlier this year, the Supreme Court came down heavily on tendency of re-promulgation of ordinances. The apex court reasoned that this can amount to a fraud on the constitution, when an edifice of rights is built by subverting due legislative processes. It termed it as legislative overreach.

 

Leave alone re-promulgation of an ordinance, even an ordinance is required to be promulgated under exceptional circumstances, as it signifies a departure from the basic constitutional order. In this also, Goa did not lag behind. The Goa Regularization of Unauthorised Construction Ordinance, was promulgated on 24th June, 2016, without any coherent reason for not waiting for the matter to be discussed in the Assembly.

 

A disturbing development is the accentuation of how ‘difference’ is being treated or deployed. The Constitution of India considers that to treat individuals located differently on the social and economic spectrum, the same way, would be to treat them unequally. But the ruling dispensation does exactly this: it treats differently located people the same way resulting in inequality.

 

People in an unequal situation cannot be treated the same way. Writing in 1894, French novelist Anatole France had sarcastically remarked, “The law, in its majestic equality, forbids the rich as well as the poor, to sleep under bridges, to beg in the streets, and to steal bread”. Fast forward to November 2016 and there is still a basis for articulating such sarcasm, despite a Constitution that upholds the principle of substantive equality. Prime Minister Modi announced, in the aftermath of demonetisation, that “this (meaning demonetisation) move has brought the rich and the poor on the same tangent”. He completely missed the point that the rich can negotiate tangents with their financial clout, while the poor cannot. For instance, the rich could swipe their cards at malls, while the poor were cashless, cardless and even shirtless. The small vendor has been struggling with her business, which is not something the rich businessman (such as a mall-owner) would have to endure.

 

Another disturbing aspect is how ‘difference’ is deployed to imply that Goa may not need the special provisions focussed on addressing the discrimination based on difference. Even recently, at a youth convention in Goa, former Chief Minister (and currently India’s Defence Minister) Manohar Parrikar blew hot and cold stating that “though the situation in Goa is different, the social condition of SC and ST people across the country is not good”. Again completely missing the point that the reservation policy mandated by the Constitution, is grossly violated by the State in Goa. And as if this was not bad enough, even the wings of Commissions statutorily set up to monitor the enforcement of rights of marginalised sections, are clipped by a mere executive order when they choose to act on their respective mandate. As has most recently been the case with the Goa State Commission for Scheduled Castes and Scheduled Tribes, which has been told in no uncertain terms that it has no jurisdiction to look into denial of constitutional protection in service matters, after some persons began to tap the potential of the Commission for redressing denial of reservations.

 

It seems that Goa’s difference has over the years been projected to its disadvantage. It was the basis, for the Parliament not extending the Dowry Prohibition Act, 1961, suggesting that Goa’s women are not afflicted by the problem of dowry because Goa has a uniform civil code, where sons and daughters have equal rights to parental property. As if the uniform civil code has a correlation with the incidence or lack of incidence of dowry demand and dowry related harassment. Thus they made having the uniform civil code a reasonable classification for denying Goa some of the laws enacted in the rest of India to address women’s issues. It took a lot of persuasion by the women’s movement in Goa to get the law finally extended over three decades later.

 

Same with the acknowledgement of the existence of child sexual abuse and other crimes. The State has always tried to shirk responsibility by denial or by making odious comparisons. Ditto with the existence of AIDS in Goa. In these cases, the myth of difference – of being peaceful and safe, was sought to be deployed to cover up the existence and consequently to deprive the local population of appropriate measures of redressal.

 

Why, after reneging on last time’s poll promise of special status, as reflected in its 2012 election manifesto, the BJP’s Chief Minister Laxmikant Parsekar now says that Goa cannot get special status as it tops on all fronts. The arguments of a different history and connected consequences for citizenship, including holding of agricultural property and voting rights, as the rationale for a special status, are quietly swept under the carpet, not even considered.

 

Thus we see that difference is either not recognised, or the discriminatory attitude to being differently located in or vis-à-vis power, works negatively, but positive discrimination has rarely been the privilege of those in Goa who deserve it most.

 

Or where the difference is recognised, Goa and its people are commodified, used and abused. Everyone in Goa, it seems, has to remain content with Goa being referred to as a mole that lends beauty to the nation. Amit Shah in his recent visit reflected the spirit in which dominant India, including the ruling establishment, looks at Goa. Different and commodified, for selfish motives of a select few.

 

(First published in O Heraldo, dt: 26 January, 2017)

Ashpak Bhengre: An Alert Against Manufacturing Consent

By ALBERTINA ALMEIDA

 

Who killed Ashpak Bhengre while he was lodged in Colvale Jail? That is something the police are supposed to investigate and it is not the domain of this author to guess. It is said that a  fellow inmate assaulted him, but many have reasons to think that this fellow-inmate was actually the executer of a contract killing.

 

But what killed Ashpak Bhengre? A cold and calculating State, that is happy to manufacture consent for violation of human rights, by inveighing against someone with regard to whom there is popular middle class disapproval.  And an indifferent society. So Ashpak Bhengre is seen as dispensable. So we slip from no one should  be assaulted or killed even in custody, in fact certainly not while in custody, to some ‘bad’ people can be killed in custody, in a way that it no longer shocks the conscience of humanity.

 

It moves then to the argument that he can be killed by anybody, be it the State through its agents or a fellow citizen while the State glosses over the killing. So somebody decides that some people are dispensable, and the State is either actively complicit or turns a blind eye. This is the kind of attitude we are generally seeing vis-a-vis the death of Ashpak Bhengre in Colvale Jail.

 

Sometimes the State may violate human rights by commission and at other times by omission, that means by negligence, lack of due diligence, and sometimes both. In the case of Ashpak Bhengre, with murder in judicial custody, and the State almost looking the other way, the State can in fact find a way to legitimise torture because of the popular sentiment against him. This way, slowly, by justifying such a death, we provide the opening through which the State can justify all kinds of draconian and undemocratic acts, just as torture of some people begins to get justified.

 

The State then gets emboldened to commit acts that have the effect of asserting a fascist agenda of homogeneity, by repressing freedoms and even taking away life.  It is about giving legitimacy to systemic killings and torture, to justifying murders . We need to call out our prejudices against the person killed in custody that may cloud our thinking on the issue. The State also has to accept responsibility for gross failure of duty of care. We need to stress that torture is always wrong.

 

Today in the country we already have gau rakshaks portrayed as social worker vigilantes, wittingly or unwittingly sanctioned by the State, PM Modi’s recent statement notwithstanding. How much time before decisions about who is dispensable will be taken by these very people or the likes of them? Despite the fact that the basic principle of human rights is that everyone is equal before law, and no human being can be subjected to torture?

Voices need to be raised. Our silence about Ashpak Bhengre’s murder will end up being the proverbial foot in the door, through which the State will then justify the dispensability of political dissenters, those that it has profiled as terrorists, those convicts who are yet to have the opportunity of proving their innocence at an appellate stage.

 

A quick run down memory lane will remind us about Abdul Gaffar who was killed in custody in the mid 90’s. The Government has a long history of introducing draconian laws in the name of countervailing circumstances. Ben Zuratovich has rightly called it the ticking bomb theory. To use the his words in a paper ‘Torture is Always Wrong’, published by the University of Illinois Press in its Public Affairs Quarterly of April, 2008,  “In a ticking bomb scenario, a known terrorist has planted a bomb and the only way to discover its location is to torture the terrorist. Those who advocate torture in such extreme circumstances are apparently not dissuaded by the artificiality of the examples on which they base their moral judgements, or by arguments that the existence of a power to torture in extreme circumstances means that the power will be used in other circumstances.”

 

We cannot forget that torture has an uncanny knack of generating more torture or terrorism and counter-insurgency, if it is not addressed through due process of law. More importantly, we must remember that the Universal Declaration of Human Rights came to be conceived and eventually adopted in 1948 in the face of Nazi fascist torture. India is a republic whose Constitution guarantees the rule of law, whose Constitution under Article 14 guarantees being equal in the eyes of law, equal protection of the law, justiciability for wrongs committed to anyone, and remedies or punitive measures against any person who commits a crime, after giving all parties concerned a fair hearing. By not standing up against custodial murders, we will only be paving the way for a disbanding of rule of law, and a justification of torture by whomsoever it may be, the individual or the State.

 

(First published on O Heraldo, dt:11 August, 2016)

Why is the Children’s Court Neglected?

By ALBERTINA ALMEIDA

 

The Children’s Court was set up in Goa in 2004. It was visualised as a child friendly space where children against whom crimes were committed by adults would feel safe to speak and have their concerns addressed and issues validated. In such a Court, the best interests of children were to be the primary focus.

 

This meant many things. For one, it meant that the way the presiding officer, that is, the judge, approached the case had to be different from the way the cases of offences under various laws had to be approached. There had to be a different way of dealing with or handling complainants/ victims/ witnesses. There had also to be a jurisprudential shift.

 

There was also the question of the physical environment in the place. It is well known that generally the spatial arrangements as well as the clothing in the Courts feel intimidating, more so for children. That is why the Judge in a Children’s Court is expected not to wear the grim clothing that he or she is otherwise expected to wear.  The environment has to be light, with appropriate colour effects as well as addressing the issue of scale. This of course need not be construed to mean that matters must be taken in a lighter vein. The Child against whom a crime is alleged to be committed is already carrying the baggage of being violated. There is already heaviness on that account.

 

It was out of all these concerns for a violated child that a special legislation for Goa’s children was lobbied for and came to be enacted in 2003 as the Goa Children’s Act. But the machinery envisaged under it which included a Children’s Court was not set up. It took a petition from Bailancho Saad to get the Court set up and functioning in 2004. After that also, it was only with persistent lobbying that a full time presiding officer was assigned to the Court in 2014.

 

While the Court was required to have a presiding judicial officer of the rank of a Sessions Court Judge, the same was set up under the Directorate of Women and Child Development, and the staff was allocated to it from that Department. This meant a hard grind for the staff and those at the helm, as it meant that the staff who otherwise handle administrative matters in a Government Department were required to be trained to handle ‘court work’, as it is called.

 

Also , as a temporary measure, when the Court was set up, it was housed in a regular Government building. Buildings are not mere structures. They have to be designed for the intention for which they are going to be used. That was not at all the case with the Goa Children’s Court which did not meet the requirements of architecture and design.

 

Apart from there being limited space for the Court, which brings along with it its own difficulties, such as difficulties locating the items associated with the crime, which have been attached in the case (muddemal), there was also the question of access. Access is certainly about physically reaching the Court. But access is also about not being subject to intimidation, or feeling intimidated on the way to the Court.That is why, it was visualised that the child complainant/victim should not have to compulsorily face the accused as happens in other cases, while at the same time ensuring the rights of the accused to a fair trial and cross examination of the child, albeit in a sensitive way.

 

This aspect of access is far from being taken care of in the Children’s Court in Goa.  In the sense that while inside the court, due precaution is taken, the very structure of the building is such that before entering the Court, the child and the accused could very well be in the same lift or on the same staircase, instead of separate entrances, thereby making a mockery out of that salutary provision in the law of the child not having to face the accused.

 

In the rest of India, it was about a decade later that the Protection of Children from Sexual Offences Act, 2012, (POCSO) came into force. This new law also required Courts designated as Special Courts for specifically handling sexual offences against children. Already under POCSO, Delhi has at least four designated Special Courts with special child-friendly buildings, which meet architectural design requirements suited for distressed children. Goa could have been a model for the rest of India, but Goa’s children are yet to get a proper Children’s Court building, thirteen whole years after the Goa Children’s Act.

 

What is worse, is that the administration does not seem to be helping. It has notified Courts of the rank of Sessions Courts to be the Special Courts under the POCSO Act, but the Children’s Court is seemingly ousted. This puts the clock behind for the trendsetting work that Goa and its civil society did to pave the way for sensitivity and effective prevention and deterrence regarding crimes against children. It is about returning to the routine spaces instead of making the existing Court space more child-friendly.

 

While infrastructure is fancifully thrown around by the Government for areas that they possibly stand to gain from, are we to conclude that the Children’s Courts and their positions are too hot for the Government to handle? Why else this wilful neglect?

 

(First published in O Heraldo, dt: 16 June, 2015)

Illegally Legal or Legally Illegal?

By ALBERTINA ALMEIDA

It is necessary to dissect what is called ‘legal’ and what is called ‘illegal’ where many an action is increasingly being taken by the State in the garb of legality in Goa.

Flashback May 4, 1886: Near the Haymarket square in Chicago, there is a meeting to up the cause of greater power and economic security for working people and to up the ante against the poignant disregard for the eight hour work day norm. As a speaker is winding up his speech, police march into the area and order the crowd to disperse, at which point a bomb is thrown at the police and the police fire.The mayhem that follows leaves police as also civilians dead and wounded . The labour activists are charged and convicted for inciting, though it is not at all clear who threw the bomb. But inciting or pushing labour to public actions and strikes due to unfair wages and working terms is not considered incitement.

 

Flashback April 16, 1963: Martin Luther King Jr. wrote in his famous letter from Birmingham Jail to his fellow clergymen, after he was imprisoned there for what he called the non-violent action of creating a tension for shaking people out of their complacency about racism “We should never forget that everything that Adolf Hitler did in Germany was ‘legal’ and everything the Hungarian freedom fighters did in Hungary was ‘illegal’”. King Jr. was referring to the legality of Adolf Hitler in that the latter legally unleashed the genocidal holocaust against Jews. He was acting under emergency measures which he himself had made law after he legally and democratically assumed power and arrogated to himself the power to make whatever law he desires.

History the world over is replete with instances where the law enforcement has always erred in favour of the powerful. But India had to be different. Why? Because it gave to “ourselves” and to the world a Constitution, where not just equality but substantive equality had to be the norm, so if one had to inevitably err, it was to err on the side of justice, and on the side of sustainable development and intergenerational equity. Even the Courts were required to be courts of equity apart from following the enacted law.

But in the present of May, 2015: Police register an FIR against unknown people for criminal trespass. So Domnic de Tiracol, among others, become the potential accused. His crime: Alerting villagers about bouncers who are come to protest and resisting the bulldozers from cutting trees in tenanted property to create an access for the golf course cum resort project of Leading Hotels Pvt. Ltd.. Domnic de Tiracol was forcibly dispossessed of his tenancy rights. So the State had recognized the kicking of the bull-dozer as a crime, an illegality and had ‘legally’ provided a couple of requisite licences for the Project which were founded on a sale deed of properties which actually tenants including Domnic were deemed owners of. Domnic was not made a party to the sale deed. He is now no more. He passed away on 10th July, following a massive heart attack resulting from the stress caused by the Golf Course project where he saw his land being ravaged under his very eyes. But in the eyes of the law, he was sought to be painted as a criminal trespasser.

25 May 2015 The Chief Minister of Goa is quoted as saying “We are supporting the golf course as the investor has taken all the required permission.” Consequently, we need to affirmatively state that even if an entity has all the permissions for a project, it cannot be automatically implied that it is legal and therefore deserving of support? How come they call it legal? What about the misrepresentation on the basis of which permissions are granted? What about the fact that the Government authorities contrive to categorically pose the permissions alleged to be fraudulently secured as the basis of the ‘rights’ of corporations over human beings who live on the land and off the land?

The Leading Hotels’ Golf course cum resort project is mired in the muck of seeming legality. The seeming legality of a sale deed, which is conveying ownership of land, which could not have been sold by the vendors in the first place. The seeming legality of pepping up the environment “from barren to beautiful” when there are trees galore which the project sought permissions to cut down! The seeming legality of fast pacing a project because it will generate large revenue and jobs. This, when the evaluation study of the large revenue generation schemes points to 30 additional jobs for a golf course in another part of India with the whopping large revenue generation scheme assistance!

A raft of measures has been taken by successive Government not just to somehow enable the project to function, but to proactively support it. The support ranges from advocating financial assistance for the projects from the Central Government, to the extent of a whopping sum of crores, to ‘accomodating’ , nay driving, the Regional Plan on the basis of these projects.

In a situation where there is a long aroused anger where people are likely to lose their dwellings, their livelihoods, and their cultural moorings, and the very social fabric of their village on account of the takeover of almost their entire village by Leading Hotels, the conflicts can only exacerbate. If the subsidy sought by Leading Hotels under the Union Tourism Ministry’s large revenue generation scheme is granted to them, on the basis of State approval, again on false projections of meeting the legal requirements, it will not be long before Goa will be on its knees with a begging bowl seeking bailouts and find itself in a far more piquant situation than Greece is in the present day.

Any megaproject that hides behind a veneer of legality, needs to be immediately ripped apart, before any damage at all is done. Corporations’ “rights” to set up a megaproject cannot take precedence over human rights. We cannot anymore continue with the logic of letting corporations cause wanton destruction of lives and livelihoods under the cover of having obtained all required approvals and proceeded. This, when the so-called Government approvals are themselves founded on illegal representations!

 

(First published in O Heraldo, dt: 16 July, 2015. This is an edited version)