Proliferation of Small Arms and Light Weapons in Pakistan

July 13th, 2009 at 06:20pm Under Appeals and Writs

The Post Second World War period has witnessed an unprecedented proliferation of lethal and non-lethal weapons. The frequent usage of these sources of human destruction has resulted in hundreds of causalities. Unlike the weapons of Mass Destruction, these weapons constitute the primary instruments of violence in any internal or low-intensity conflict and are responsible for a large number of deaths. They are increasingly being acquired by criminals, cartels and irregular forces and in certain cases by influential citizens and politicians as a show of strength and  political might. As a result, militarization of crime and political conflict are emerging as serious and potentially irreversible threats.

In recent years, there has been a growing tendency within the activist and scholarly communities to treat major conventional weapons and small arms as well as light weapons as distinct areas of policy formulation and study. An estimate of the global value of small arms production in 2002 is $7.4 billion. Well over 1,000 companies manufacture light weapons and ammunition in nearly hundred countries. Controlling production of both light and major conventional weapons has historically been very difficult, because of lack of political will and economic pressures from manufacturers.

The main focus with respect to illegal weapons proliferation in Pakistan remains in the unorganized private enterprise at Darra and Landi Kotal  where the arms trade continues without any state hindrance. Besides this, the organized sector manufacturers are also bound to sell their products to licensed gun owners is not more than approximately 80,000-90,000 in the country. This makes the legal market a very small one, which is adequately served by the private producers.    However, recent trends indicate that the estimated number of weapons in circulation is much higher than tabulated. The rising ethno-sectarian strife, civil war in Afghanistan, and an enhanced sense of insecurity arising out of factors such as poor economic conditions, bad governance and the deteriorating law-and-order situation have raised the level of frustration and discontent. It is witnessed that the rising sense of apathy and social injustice has strengthened the appeal of small arms and light weapons. Darra and its cheaper rates attracts not only NSAs who purchase these weapons in bulk, but also a second category of buyers, such as officials, low-enforcing agents, influential politicians, and feudal and tribal lords who regard the posses session of light weapons as a status symbol. Moreover, the various governments too have exacerbated this situation by giving licenses for prohibited bore weapons to politicians and influentional people to win political favour, or in pursuit of their vested interests in arming one (ethnic/sectarian) group against another from time to time.

The principal source of weapons proliferation and supply to arms of regional and domestic conflict, the unorganized sector, has a minimal manufacturing capacity of a hundred weapons per day. With the very sudden and dramatic termination of the Afghan conflict, the governments following Zia Ulaq’s proved to be ineffective in solving this menace. Although attempts were made in the past, and are being made presently, too, to curb the proliferation and the indiscriminate use of small arms, they are very much an indicator of a dysfunctional state apparatus.

In Pakistan, the failure of governance-especially with regard to narcotics production and smuggling-and the country’s proximity to Afghanistan and its involvement in the attempts to end Soviet occupation of the country have combined to intensity an already dire law-and-order situation. In many cases, access to light weapons has facilitated or intensified conflicts, often by emboldening the protagonists. Consequently, the ability the increased firepower enjoyed by the forces pitched against them.

Second in line are the private manufacturers who operate and produce certain non-prohibited bore are limited in number and are concentrated mainly in the province of Punjab and Karachi. These private entrepreneurs are forced to continue with the production of the same items, whether or not they have market demand, because of the licensing requirements. This proves to be extremely cost-intensive efforts, and in a bid to cover production costs as well as maintain a reasonable profit level, these manufactures not only use substandard material, but are also involved in unauthorized manufacturing.

With respect to the scope of the term ‘illicit trade’, one should consider the illicit manufacture, acquisition, possession, use, and storage of small arms and light weapons, since these are closely linked to transfers of such weapons. The illicit trade in small arms and light weapons is closely related to the excessive and destabilizing accumulation and transfer of such arms and should, therefore, not be limited to criminal breaches of existing arms legislation and export/import controls, but consideration should be to all relevant factors. With regard to the manufacture, production, and sale of light weapons, we can divide the domestic producers of SA/LW in Pakistan into three broad categories:

1.                  The state-owned or public sector enterprise

2.                  Private manufacturers(operating under state license and regulation)

3.                  The Darra Bara/gun cottage industry (which is not under any state            supervision).

State-Owned/ Public Enterprise: This primarily constitutes about 14 public sector manufacturing enterprise at the Pak .Ordanance   Factories (POF), Wah. The variety of weapons manufactured in these factories includes Heckler and Koch MP-5, G-3, A-3, MPSA-2 guns, Anti-tank light weapons, ammunition and anti-personnel land mines. All of these items are produced under license with a very stringent control mechanism and maintenance of complete record. The items thus produced are not only ISO9001 certified, but also come under strict export regulations under the government’s Statutory Regulatory Order (SRO-123/124 OF February 1998). Carrying out correct marketing procedure and purchase enumeration both at the receiving and purchasing end is also properly overseen. Besides the POF, items such as anti-tank systems and ammunition, anti-personnel and anti-tank landmines, explosive devices, multi-barrel rocket launchers etc. are manufactured at the Kahuta Research Lab (KRL), an independent entity under state control.

The POF was made a public-sector enterprise in the early 1980’s by redesigning the Head of POF as “Chairman” and instituting a “Board of Directors”, As part of its new states the POF has also been given the authority to engage in profit-making activities, but in spite of that, its principal and largest client remains the Pakistan military with new weapons, these ordanance factories hold reserve stocks and repair facilities for the normal wear and tear.

From the entire gun manufacturing facilities, POF remains the only outfit, which is allowed to export its products. These exports include anti-tank ammunition as well as infantry equipment and the sales also cater to the domestic market but in a very limited manner. Although very stringent regulations are in place on the production and scale of weapons to state actors alone, there are reported incidents where weapons seized from low-intensity zones could be traced back to the POF.

Thus as mentioned above, the revenue generation criterion does not find much relevance in this case. The point to be noted here is that due to a limited demand, the POF’s full production capacity is not being properly utilized. Thus the factories end up producing only what is required by the principal client, the Pakistani military, and this of course is quite restricted in scope given the annual optimum ammunition production capacity which is not less than US$ 70 million.

Private Manufacturers: Second in line are the private manufacturers who operate and produce certain non-prohibited bore weapons under license. The organized legal arms manufacturers are limited in number, and are concentrated mainly in the province of Punjab and Karachi. Although the licensing requirements restrict the manufacturers from producing anything other than the exact configurations of the armaments, the main incentive or motivate or motivation  for the private enterprises is to generate profit task that has become increasingly difficult in the restricted business environment where the one hand these guns manufacturers are constrained by license regulations and on the other they are provided with no incentives and are also heavily taxed by the government

These private entrepreneurs are forced to continue with the production of the same items whether or not they have any market demand, because of the licensing requirements. This proves to be extremely cost-intensive effort and in a bid to cover production cost as well as to maintain a proportionate profit level, these manufacturers not only use sub-standard material but they are also involved in unauthorized manufacturing. Accordingly, in many cities there are few or no licensed manufacturers, but there can be found many dealership and repair license holders, for it has a better money generation scope. The end-users in this regard are usually sub-state sectors or outfits which purchase these items for coercive activities.

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The Darra Bara or Gun-Making Industry: The arms bazaars of Darra Adamhel and Landi Kotal in the North West Frontier Province of Pakistan are famous for the production of light weapons for centuries. Both are colonial as well as Cold War legacy, these traditional grey areas gained increased salience, after the Soviet invasion of Afghanistan. However, the illicit gunsmiths of India are poor cousins when compared to those of DAK. Darra is the heart of Pakistan’s notorious arms bazaar, and it is here that one can acquire practically any small arm at a low cost: Kalashnikovs, M-16S, Uzis, and even guns hidden in walking sticks and ballpoint pens. Some are originals left over from the war in Afghanistan; others are copies made in back-alley workshops, repaired originals, or copies made from cannibalized parts. Often the only difference between the original and are made from inferior quality metal. Original AK-47s sell for about US $320, but an identical copy starts at US $50.

The Darra gunsmiths are famous for their skills and expertise,                                                    which have been passed down from father to son for generations, and they are known for their ability to produce any kind of weapon in Spartan conditions. Although these artisans do not have any formal technical training, they have inherited the skills and have the ability to copy and make almost any kind of light weapon. Before the Soviet invasion of Afghanistan in December 1979, they produced mainly rifles and shotguns in addition to a wide range of pistols. Now they are adept at producing exact copies of any light weapon desired in a matter of days. They have been known to make imitation Chinese laser-sight pistols and Japanese pen pistols down to the finest detail.Some of Darra’s older craftsmen have also invented their own designs; for example a shotgun that works like a revolver, with a chamber holding six shells. Unlike the previous two categories of gun manufacturers, the Darra gunsmiths base their business on demand and supply and are acutely aware of the prevalent market trends and demand factors.

At one time they supplied the Afghan mujahideen in their struggle against Soviet occupation. Now they are the main suppliers of guns to Kashmir and to Pakistan’s troubled provinces of Punjab and Sind. Darra ’s shops and factories offer home delivery any where in the country, and are known to have also sold arms to guerrillas from Northern Ireland and the Middle East.

. Both a colonial as well as   Cold War legacy, these traditional grey areas gained increased salience after the Soviet invasion of Afghanistan. This brought a new dimension to light weapons manufacture and production in this area-the unabated and immeasurable proliferation and inflow of illicit and illegal arms. Before the Soviet incursion, Darra used to produce mainly 9mm. rifles, shotguns and pistols ranging from 0.22 to 0.32 caliber, etc. The Darra manufacturers are now adept at producing very exact copies of kalashnikovs, bazookas, and even rocket launchers.

An important characteristic of Darra and its various manufacturing units is that it is an unorganized enterprise, free from any state licensing, regulation and tax requirements. It is a part of the NWFP’ s tribal belt where no formal state law has been accepted or applied, and the tribal authority, better known as the jirga ,mediates and enforces justice, law and order .The government also cannot do much about the production sale of weapons here, because the state laws do not have jurisdiction over the tribal areas-even the British couldn’t establish their writ here. The government can only check the in-country movement of arms from this area, which is indeed a very challenging task.

Arms purchasers are attracted to the Darra because the manufacturing cost of weapons made here is relatively low compared to the state-regulated gun making sectors and the ready availability of a wide variety of weapons with so much pilferage taking place across the border. There is also found in this primitive gun-making cottage industry gunsmiths carrying out innovative changes which are not possible without a certain level of expertise.These arms bazaars of Pakistan are perhaps the best-known example of small-scale production of small arms .Hundreds of one-room operation manufacture copies of AK-47s and other rifles and pistols. Individual craftsmen manufacture small numbers of weapons, with a pistol taking three days to produce and an AK-47 between seven and ten days .But because there are many hundreds of such arms sellers, the overall production figures run into thousands of weapons

Small Arms Trade and Manufacture in Pakistan:

In the case of South Asia and more specifically Pakistan, some very interesting aspects come forth. The source of weapons supply and acquisition has been myriad: ranging from illicit influx, transfer or trade to the local production facilities. Several countries in the region produce SA/LW in the government-owned or public sector enterprise, which is licitly regulated, with India and Pakistan possessing the most developed weapon manufacturing capabilities. But as such the predominant from of acquisition of LW by the state security forces continues to be the import or foreign technology transfer.

Although LW have somewhat always been available in the arms bazaars within the North West Frontier Province of Pakistan, such as Darra Adamkhel and Landi Kotal, the major impetus and free flow of modern light weapons has increased manifold after the Soviet occupation of Afghanistan. The December 1979 Soviet invasion resulted in Pakistan’s proactive support to various Mujahideen outfits engaged in fighting the occupationist forces. This effort was practically driven by its own security interest but mainly on behalf of the US, which provided material and financial assistance to these Afghan guerrillas though Pakistan. The failure or ignorance of the incumbent government of the time to pay adequate attention to this dangerously spiraling trend of weapons accumulation and free flow in the hands of non-state actors aggravated this problem. In spite of the cessation of Soviet occupation, Afghanistan to date remains bitterly embroiled in a civil war, which has cast very severe shadows on the Pakistani civil society.

Before moving further the point to be stressed that when studying weapons proliferation, an important aspect is to keep in perspective the demand and supply factor. The motives for which suppliers and recipients engage in weapons transaction may be mixed. Suppliers may have political or commercial incentives or a combination of both. For this reason, excessive and destabilizing accumulation and transfer of small arms are closely related to the increased incidence of conflicts and high level of crime and violence. It is observed that sub-state or non-state forces make extensive use of such arsenal due to its merits of easy accessibility, storage and handling. Insurgent forces, irregular troops and freedom fighters, criminal groups and sub-state actors harbouring ethnic, religious and sectarian agenda use SA/LW for their particular motives with impunity. Generally speaking the most perturbing aspect of these conflicts is that more than 80% of the causalities are civilian, non-combatants-mostly women and children.

Market Trends and Origins of Arms Proliferation in Pakistan: The main focus with respect to weapons proliferation in Pakistan remains on the unorganized private enterprise at the Landi Kotal, where arms trade continues without any state supervision. In comparison to this, the POF as mentioned earlier creates mainly the military-specific ammunition, the production cost of is relatively expensive. Secondly, the POF manufactured ammunition has a very limited and restricted clientele. Another contributing factor is that POF sells only through designated distributors.

Secondly, the organized sector manufacturers are also bound to sell their products only to licensed buyers. This again limits their sale capacity. The overall number of licensed gun owners is not more than 80,000-90,000 people of the entire country’s population. This makes the legal market a very small one, which is adequately served by the private producers

But recent trends indicate that the estimated number of weapons in circulation is much higher than tabulated. The rising ethno-sectarian strife, civil war in Afghanistan, and an enhanced sense of insecurity arising out of factors such as poor economic conditions, bad governance and deteriorating law and order situation, have given rise to a level of frustration and discontent. It is witnessed that this rising sense of apathy and social injustice has strengthened the appeal of SA/LW. Darra and its cheaper rates attract not only non-state actors, who purchase these weapons in bulk, but also a second category of buyers, such as officials, aw enforcing agents, influential politicians,  feudal and tribal lords who regard possession of light weapons as a status symbol. Moreover the various governments too have contributed to exacerbating this situation by giving licenses for prohibited bore weapons to politicians and influential interest arming one (ethnic/sectarian) group against another from time to time.

A principal source of weapons proliferation and supply to areas of regional and domestic conflict, the unorganized sector has a minimal manufacturing capacity of producing per unit a hundred weapons per day .With a very sudden and dramatic termination of the Afghan conflict, the political governments after Zia’s military rule proved to be ineffective in solving this menace. Although attempts were made in the past and present to curb the proliferation and indiscriminate usage of small arms, they are very much an indicator of a dysfunctional state apparatus.

In Pakistan, the failure of governance-especially with regard to narcotics production and smuggling-coupled with the country’s proximity to Afghanistan and involvement in the attempts to end the Soviet occupation of the country, has aggravated an already dire law-and-order situation. In many cases, access to light weapons has facilitated or intensified conflicts, often by emboldening the protagonists. Consequently, the ability of security forces has declined corresponding with the increased firepower enjoyed by the forces pitted against them. As regards the leakage of these illicit arms, the Soviet invasion of Afghanistan unshared in a new era in the light weapons trade in South Asia,   with millions of tons of military material including SA/LW, being imported into the region.

Other countries also contributed in one way or indirect assistance in both material and finances. For example, China wary of Soviet designs contributed weaponary, while Saudi Arabia came forth with financial assistance. As a front line ally, Pakistan became the main conduit for this massive military assistance programme, with its top intelligence outfit, inter-services intelligence (ISI), managing the receipt and distribution and the American CIA coordinating the supply of weapons. With a bitter Vietnam experience still fresh in memory, the United States, at least initially, did not want to be seen as providing direct military assistance for the Mujahideen, and for these reason massive amounts of arms were purchased from the Chinese government. Interesting trends could be witnessed in this undercover arms pipeline; the CIA would procure through Egypt large amounts of antipersonnel mines originally produced in Italy. During this period, weapons even of Israeli and as Indian makes could also be found in circulation. The CIA would then arrange for the arms to be either flown to Islamabad or shipped, via Oman, to Karachi.

The US-orchestrated arms shipments had a fundamental impact on the war in Afghanistan. Moreover, the autonomy given to the Pakistan intelligence services in controlling the distribution of weapons was to have a profound effect on subsequent security conditions in the region. Washington’s “hand-off” policy of allowing the ISI to control the arms pipeline was largely the product of Oakley’s belief that the United States had failed in Vietnam because of excessive governmental interference and mismanagement.

One factor contributing to the availability of small arms and light weapons in many areas (of conflict) is their earlier supply by Cold War opponents. Much of the supply and acquisitions of arms in the regions of conflict dealt with by the UN has been conducted by Governments or by legal entities authorized by the Governments. Some states have exercised insufficient control and restraint over transfers and holdings of small arms and light weapons. Moreover, arms supplies associated with foreign interference in areas of conflict are still a feature of current realities. In general, the lines of supply often are complex and difficult to monitor, facilitated by the relative ease with which small arms and light weapons can be concealed.

Not surprisingly, the arms pipeline to the Mujahideen leaked significantly. By the time the weapons reached Mujahideen field commanders, they had been loaded and off-loaded at least fifteen times while transported over the distance of several thousand kilometers by trucks, ships, trains, and pack animals. How many weapons leaked out of the pipeline is unknown, but the estimates run into millions of unaccounted for weapons. One glaring proof of this is the April1988 Ojhri camp blast in the Rawalpindi metropolis, which claimed not less than 100 civilan lives. Although no official version of the inquiry conducted came out, it is generally speculated that the blast was engineered to cover-up for the undelivered and hoarded weapons, and there is also a major link between this incident and the Iran Contra scandal.

Another contributing factor, however diminutive is that Afghans returning to their country after months or years in the refugee camps in the North West Frontier Province have left their weapons behind in Pakistan. This again forms a cause for weapons proliferation. Under the Geneva Accord, it was agreed that any surplus weapons that were left off the pipeline would be handed over to the Afghans, and interestingly there was a frantic arms transfer to Afghanistan, before the agreement came into effect. Most of these were smuggled back into Pakistan and sold in arms bazaars of the tribal area.

Besides, Afghanistan has a significant number of small arms manufacturing units. The trade of these arms is a ready source of income for the war-ravaged Afghan population. With a long porous border that stretches the entire Pakistan-Afghanistan belt, coupled with corrupt and inefficient border control forces, the mechanism fails miserably in effectively checking and curbing the inflow of not only weapons but other forms of smuggling as well. This has made the availability of arms in the commercial market considerably high and in some cases prices have fallen, attracting buyers from all over the country and region to purchase unlicensed weapons. The various weapons on sale in this regard, can be grouped in to four categories;

1.      Weapons that lecked from the US-supported arms pipelines.

2.      The stocks of Soviet weapons captured by the Mujahideen during the conflict.

3.      The third category of weapons is those manufactured by small-scale producers within the region.

4.      Finally, the arms bazaars of the NWFP are full of miscellaneous weapons that must have arrived in the region though extremely circuitous and unpredictable routes-from Vietnam or the Middle East. For instance, G-3s have appeared from Iran, given that border controls between Iran and Pakistan were relaxed after the fall of the shah.

Though there is clear evidence that light weapons are proliferating at an alarming rate from the North to the South, there are also south-to-north movements from Sri Lanka, Singapore, and other starting points in Southeast Asia. There are also discernible east-to west and west-to east movements.

In Pakistan, it is not only the Afghan crisis alone that was instrumental in introducing the Gun Culture. Another very important but relatively ignored aspect was the Baluchistan insurgency of the 1970s, that witnessed a massive inflow of weaponry from the traditional leakage points

There is a dire need for the government to take control of the drug trade and prevent the proliferation and flow of weapons, domestically, regionally and particularly with the help of the international community. What will be difficult, if not impossible to implement is an effective gun control agenda-such as the present regime’s Seven-Stage De-Weaponization Programmes.  This 7- stage formula includes a ban on arms license, and a proliferation on carrying weapons in the first stage, which became effective from March 1, 2000. The other proposals or possibilities under the same action plan were to recover illicit/unlicensed arms, canceling of the prohibited arms licenses and also to regulate and bring under state control arms manufacturing units in the tribal areas. The problem is so acute that there is a need to implement such policies and reforms in their true spirit. Bringing Darra under the state umbrella is an issue that the governments past and present have seriously deliberated upon. As a necessary first step the tribal areas were awarded with the right to Adult Franchise as well, but the possibility of Darra manufacturers agreeing to any state supervision or taxation seems impossible an evidence of which is reaction faced by the government over its attempt to document and evaluate the economy. The government needs to stick to a given time frame and implement the necessary reforms, otherwise the situation could be one as identified by Pamela Constable, in one of her recent Washington post articles, “Pakistani Retreats in Battle for Reform”- that there is found a tendency on part of the Pakistani government to announce bold reforms, only to backtrack later when opposition surfaces.

At the practical level, this new de-weaponisation policy will face many problems, especially in the NWFP and tribal areas where it is part of local culture and tradition to carry a weapon and in fact it also forms a part of their attire. This plan will definitely discourage open display of weapons in major urban centers, but again this will not be able to redress the problem fully.

Efforts made by the past governments were inadequate for either they were not properly articulated or they failed to deal with the real root cause of the problem that is the illicit trafficking of weapons. Whatever measures enforced affected only the manufacturers, thus giving the illegal trading cartels a free hand to conduct their business with impunity.

Although light weapons have always circulated within Pakistan, the impact of the American-sponsored arms pipeline to the Afghan Mujahideen stands head and shoulders above any other adverse development in recent years. The flood of weaponry into the region has clearly played a major part in the erosion of low and order over the past decade. The growing proliferation of and access to small arms are increasing both the communal polarization and the incidence of violence. The very availability of weapons is providing a short-term solution for a long-term problem. At the very point when political discourse and sound governance are required to overcome these problems, the need is to harness our efforts together to combat this menace.

References

“Light Weapons, Small Arms and Landmines: An Identification Manual”, Centre for Defense Studies, King’s college London.Dec.1997.

Ayesha S. Agha , ‘Light Weapons Manufacture ’,in project on Light Weapons, BASIC Working Paper No.2.

Michael T.Klare, “ Light Weapons Diffusions and Global Violence in Post-Cold War Era”, in Jasjit Singh(ed) Light Weapons  and International Security, Delhi, 1995.

Chris Smith, Light Weapons and Ethnic Conflict in South Asia”, in Jeffery Bout well (ed), Lethal Commerce, Cambridge, 1995,pp.

India Arms and Abuses in Indian Punjab and Kashmir”, Human Rights Watch Arms Project6 (10), Washington,1994,pp..

Ayesha S. Agha, “Light Weapons Manufacture in the Public and Private Sectors: A View from Pakistan”, Project on Light Weapons Working Paper no.2, British American Security Information Council, p.3.

Tara Kartha, ‘South Asia; A Rising Spiral of Proliferation’, Background Paper, Geneva: Small Arms Survey, 2000.

The 1999 Report of the UN Group of Government Experts on Small Arms,  August1999.

O Roy, “The Lessons of the Soviet/Afghan War”, A Delhi                                                                                                                   paper no.259,[London International Institute of Strategic Studies,1991].

The allure of historical wall tapestries

July 13th, 2009 at 12:19pm Under Appeals and Writs

Since antiquity people have used textiles for all range of purposes. From blankets for warmth, to elaborate woven fabrics for commerce, they have been at the very center of human life.

The need for textiles, combined with our desire to enhance the world around us, has given rise to a huge range of fabric based art, everything from basic colored cloth to complex woven textiles. Wall tapestries have long been one of the most accomplished forms of this art, having a history dating back millennia, and artists from almost all cultures have contributed some form of textile wall art.

Recently tapestries and wall hangings have enjoyed a rise in interest, with many people looking beyond traditional options for wall decor. The tactile nature of tapestries, combined with their rich history, has made them once again a choice for the well-informed home improver.

Although there is an increasing amount of contemporary art available as tapestries, it is the traditional designs from the past that are the most popular. Since tapestries have enjoyed a long history these can include anything from Gothic wall hangings, to French Baroque and Rococo works from the 17th and 18th centuries, to more recent 19th century William Morris and Pre-Raphaelite art.

The main appeal of these impressive works is their connection with history. The range of designs and themes is vast and include subject matter as diverse as the rise and fall of nations, the importance of art movements at different times, and the prominence of individual artists and groups. Most appealing is that each has its own claim to history. This combination of artistic excellence and history writ large is proving irresistible to many art lovers who yearn for more depth in their home decor choices.

There are many famous tapestries from the past. In particular the Middle Ages took wall tapestries from the domain of practical decor into the realms of art. Boasting famous works like the Bayeux Tapestry and the Lady and the Unicorn series, the Medieval era is seen by many as the golden age of tapestry art. More importantly for the first time we see tapestry wall hangings widely appreciated as works of art, rather than just practical pieces of home furnishing.

Reproductions of these famous works are proving very popular with modern audiences. Given the historical importance of these works of art some of the current productions available are fastidious copies of the originals. The very best of these capture the drama and virtuosity of historical art, perfectly blending it with modern weaving methods. The end result is often very faithful to the original artists’ vision, with all the durability and appeal of modern fabrics.

From the vivid colors of Medieval tapestries, to the exoticism of Eastern schools of weaving, traditional tapestry designs often surprise modern art lovers with their attention to detail, their ability to capture emotion and their exploration of timeless themes such as love and romance.

Because of this these centuries-old designs are enjoying a renewed prominence and are once again making their way into the homes of taste conscious art lovers. Every wall tapestry, because of the individuality of the weaving process, is a unique work of art unlike any other. In a world driven by mass production art and home decor enthusiasts are drawn to the uniqueness of wall tapestries as an antidote to the monotony of many other décor options.

Now, despite their ancient origins, many people are again looking towards historical tapestries and wall hangings as an answer to their modern home decor aspirations. With an ever growing range of options for shoppers the choice has never been better.

Copyright © The Tapestry House, all rights reserved.

All that you should know about Right To Information Act, 2005 of India

July 13th, 2009 at 06:20am Under Appeals and Writs

From Mr. R.S. Praveen Raj, http://secularcitizen.net/

Right to Information viz. RTI is a part of fundamental rights under Article 19(1) of the Constitution, which says that every citizen has freedom of speech and expression. The people cannot express themselves unless they know what’s happening in the systems that govern them. Every citizen, being the tax payee has the authority as the masters in a democratic system to know how the government bodies and public authorities, meant to serve them, are functioning.

But it is quite unfortunate that the Government authorities are still hesitant to part with the information under their control. It is in this context that the recently passed ‘Right to Information Act’ becomes very significant. Right to Information Act, 2005 is a public drafted legislation to set out a mechanism to avail information in the hands of Public authorities and Government Officials. It does not confer any new right, but simply lays down the procedures on how to apply for information under the control of public authorities, and how to avail it.

 The preamble of Right to Information Act, 2005 says – “Democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed”. As sounded by its preamble, the Act envisages a corruption-free and transparent governance and polity. The Act covers not only the Executive, but the judiciary and the legislature also. It extends to the entire gamut of central, state and local government systems including those bodies owned, controlled or substantially financed by government and also those Non-government organizations substantially financed, directly or indirectly by funds provided by government. Information relating to any private body that can be accessed by a public authority also comes under the ambit of RTI Act, 2005. 

The RTI Act defines “Information” as any material in any form, including records, documents, memos, e-mails, opinions, advice, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, and data material held in any electronic form. It is interesting to learn that “Right to Information” also covers

Inspection of work, documents, records; taking notes, extracts, or certified copies of documents or records; and taking certified samples of material. It implies that any citizen can exercise his right to invigilate the transparency and accountability of governance or even insist that a particular civil work be performed in his presence. Any citizen can avail a copy of every bill settled from funds controlled by any of the public authorities and even the statement of accounts of every activity/project/event funded or organized by the Public Authority. Public authority is also obliged to provide reasons for its administrative or quasi-judicial decisions to affected persons, and publish all relevant facts while formulating important decisions affecting the public. Another interesting aspect of RTI Act is that there is “Penalty for forfeiture of information”.

Section 4(2) of the Act says that “it shall be the constant endeavor of every public authority to provide as much information suo moto to the public at regular intervals through various means of communication, including internet, so that the public shall have minimum resort to the use of this Act to obtain information”. So the dream is the change of mindset from maintenance of Official Information in Secret to Maximum Voluntary disclosure of information.

            Having told the philosophy of Right to Information, it is imperative that the ways and means of availing the information shall be set. So the RTI Act directs that ‘

Every Public Authority shall designate as many Public Information Officers (PIO) in all the administrative units or Offices under it as may be necessary to provide information to persons requesting information”. PIO is also required to help any person making the request orally to reduce the same in writing. The Act further stipulates that “every public authority shall designate an Officer at each sub-divisional or other sub-district level as Assistant Public Information Officer (APIO) to receive the applications for information or appeals under this RTI Act for forwarding the same forthwith to the respective PIO or 1st Appellate Authority or Information Commission. The Burden of proving that PIO/APIO has acted reasonably and diligently in discharge of his functions or obligations under RTI Act will be on the respective PIO/APIO.

            PIO may seek assistance of any other Officer as he or she considers it necessary for the proper discharge of his or her duties. Section 5(5) of RTI Act says that such Officer will be deemed as PIO for the purposes of providing the information requested. All the Burden including liability for Penalty on defiance of information will stand transferred to the Deemed PIO, if PIO transfers the request to such Officer with a note indicating the same

            The Request for information has to be submitted to PIO or APIO in writing or through electronic means in English, Hindi or Official language of the area with a nominal Fee of Rs. 10/-. (There is no fee for persons Below Poverty Line). PIO can demand additional sum of Rs. 2 for each page created or copied for giving it as information to the requestor or Rs. 50/- per diskette/floppy if the same is given in electronic form. Incase if Inspection of work is requested no fee is chargeable for the first hour, but Rs. 5/- each for every subsequent hours.

            The Act mandates that the PIO shall provide the requested information as expeditiously as possible, but in no way later than 30 days. However the public authorities can take 5 days more to part with the information sought, if such request is made through APIO. But in any case where the requested information involves the question of “life or liberty”, such information should be given within 48 hours.

Section 6(2) of RTI Act makes it clear that a person requesting information shall not be required to give any reason for requesting the information or any other personal details. However this freedom implies that the citizens shall show a greater sense of responsibility on the part of the use of information in the media and elsewhere. (Dissemination shall be in Public Interest.). In view of the national security, Intelligence and Security Organisations such as IB, RAW of Cabinet Secretariat, BSF, SPG, CISF, DRDO, Special Branch CID of Andaman & Nicobar, Directorate of Revenue Intelligence, Narcotics Control Bureau etc. have been exempted from stringent provisions of the RTI Act. But it is very interesting to note that the information pertaining to the allegations of corruption and human rights violations are not exempt from disclosure even in the case of those organizations. That conveys the very intention of this Legislation.

            Now comes the real question – What is the remedy if the requested information is denied? RTI Act establishes an Independent and Non-judicial appellate mechanism in which a body called “Information Commission” (Central Information Commission and State information Commissions) has been set as the apex body. Further Section 23 of the Act asserts that ‘No court shall entertain any suit, application or other proceedings in respect of any order made under this Act and no such order shall be called in question otherwise than by way of an appeal under this Act’. But this provision cannot be interpreted as a complete bar on jurisdiction of courts, since the options of Writ petitions and Special Leave petitions always subsists. Information Commission also would entertain the complaints from any one who is aggrieved on account of any matter relating to obtaining information under this law including the cases where the public authority refused to accept the RTI Request.

            In order to give an opportunity for the ‘public authority’ to review its on decision as to the denial of Information requested from PIO, the Act requisitions that an Officer senior in rank to PIO be appointed as the First Appellate Authority, to whom the aggrieved citizen can appeal within thirty days of expiry of time limits within which he/she should have received the information requested. The First Appellate Authority (AA) shall ordinarily dispose of the appeal within thirty days or latest by the forty-fifth day with reasons for availing such prolonged period. An appeal to the respective Central or State Information Commission may be made within a period of 90 days from the date of decision of the Appellate Authority or from the date of expiry of time limit for the disposal of the first appeal made before the first Appellate Authority.

Information Commission may, at the time of deciding any complaint or appeal, impose upon PIO, a fine of Rs. 250 per day, up to a maximum of Rs. 25,000/-, if he/she has without any reasonable ground: refused to accept an application for information; or delayed furnishing of information; or malafidely denied information; or knowingly given incomplete, incorrect, or misleading information; or destroyed information that has been requested; or obstructed furnishing of information in any manner. So the Act has teeth; it can not only bark but bite also. But of course the PIO will be given a reasonable opportunity of being heard before any penalty is imposed on him

. The RTI Act extends its arm further to declare that if PIO persistently violates his obligations under RTI Act, Information Commission shall recommend for disciplinary action against such PIO under the service rules applicable to him.

            Though the Right to Information Act moots complete transparency in the governmental system, it is also equally important that the strategic information pertaining to the State and any personal information devoid of larger public interest be exempted from disclosure. Accordingly Section 8 (1) of the RTI Act bars the disclosure of the following information.

a)      Information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;

b)      Information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;

c)       Information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;

d)      Information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, (unless larger public interest warrants the disclosure of such information); 

e)      Information available to a person in his fiduciary relationship, (unless the larger public interest warrants the disclosure of such information);

f)        Information received in confidence from foreign Government;

g)      Information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;

h)      Information which would impede the process of investigation or apprehension or prosecution of offenders;

i)        Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers. (However, after the decision is taken and the matter is complete or over, the decision, the reasons thereof and the material leading to the decision shall be made public);

j)       Information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless larger public interest demands its disclosure

       Further, Section 9 of the Act insists that any information that i

nfringes the copyright of any person other than the State should not be disclosed. While Section 8 and Section 9 prevents the disclosure of the kind of information mentioned above, the Act maintains vide

 Section 10(1) that ‘access may be provided to that part of the record, which is not exempted from disclosure, and which can reasonably be severed from any part of that contains the ‘exempt information’

            You would also be delighted to learn about an important decision of the Full Bench of Central Information Commission (Decision dated 23rd April 2007), which declared that there is “No fiduciary relationship” in respect of “Evaluated Answer Sheets”, while maintaining accepting that there existed “Fiduciary Relationship” between a) Lawyer and Client; b) Doctor and Patient; c) Bank and Customer; d) Trustee and Beneficiary; e) Organisation and Reporting Officer in respect of CR of an Employee etc. Therefore the Information Commission directed that the answer sheets should ordinarily be disclosed in all circumstances, but subject to the scrutiny under S. 8 (1) and Section 9 of RTI Act. The Commission stated further that the evaluated answer sheets could be disclosed withholding the name of the Examiner, in view of the fact that the disclosure of identity of the examiners might pose a danger to the life and safety of the Examiner. The decision also implies that marks given by each of the Interview board members are givable without revealing their identity.

          So RTI Act, 2005 is the most pretty and powerful legislation that the democratic India gifted to its citizens. Its Supremacy is being reiterated in Section 22 of the Act, which states that ‘

The Provisions of RTI Act will be having the overriding effect on any contradicting provisions in Official Secret Act, 1923, and any other law for the time being in force or any other instrument having effect by virtue of any law other than this Act”

Let me add a few sagas of successful RTI ventures as an anecdote here. The first story is from a north Indian village. Mazloom Nadaf, a 70-year old rickshaw puller had no scope for his long-awaited dream until he found light in RTI. The story reads as follows – Nadaf did not get any response for the first five years on his application on Indira Awas Yojana – India’s National housing Scheme. Five years later, authorities demanded Rs. 5000/- from him to process the application. But he refused to give the money and, instead approached the legal aid centre of an NGO working in Madhubani district and sought their assistance in drafting and filing an RTI application. In his RTI request, Mazloom asked for the daily progress report made on his application to avail of the Indira Awas Yojana. The application was filed with the Circle Officer for his block who forwarded the same to the Block Development Officer (BDO). The BDO on receiving the RTI application called Mazloom and treated him like a VIP and with a lot of respect handed over a Cheque of Rs. 15,000 (first installment payment) under the Indira Awas Yojana. He was also promised that he would get the subsequent installments in time.

           Right to Information Act was also effectively used by residents of a village in Rajasthan’s Bikaner district to put an end to the practice of selling grains from ration shops in the black market. Mr. Revat Ram, Secretary, Jagruk Yuvak Manch of the areas was Instrumental in this achievement. Revat Ram and his friends used the RTI Act to get all records of their ration shop in Himmatsar village and exposed how grains meant for the poor were being black-marketed at a ration shop in Bikaner. After the move, the villagers got the dealer removed. Besides losing dealership, the ration shopkeeper was also forced to pay poor families in the village over Rupees Four Lakhs, the cash equivalent of the grains he had sold illegally.

“They threatened us and also offered money. But we refused, because we wanted to ensure that people in our village get the grains they deserve from the government. And we did not get scared in fighting for the rights of our people” – Says Mr. Revat

.

            The message of RTI Act is very clear – Uproot corruption and make the governmental system totally transparent and accountable to the people. So Government Employee is no longer a Government Servant. He/She has to transform to a Public Servant in Letter and Spirit.

            To End with, I wish to quote the father of our nation

-”The real Swaraj will come not by the acquisition of authority by a few but by the acquisition of capacity by all to resist authority when abused

“.

Is it that the Independent India needed 58 years to realize what Mahatmaji told? 

Plight of the Pedophile

July 12th, 2009 at 06:19pm Under Appeals and Writs

The Plight of the Pedophile

By Punkerslut

The condition of the Pedophile today is the same as the
condition of the blasphemer 200, 300, 400, or 500 years ago. He
is outcast from society, branded with the marks of infamy,
detested from every social class and every nobility. To the
children, they say he is heartless. To the adults, they say he
is merciless. And to the old, they say that he is brutal. In
every crevice of the world, there is no sympathy for lovers of
our youth. It is widely broadcasted throughout every television
and radio program that Pedophilia is equatable with rape — that
if one below the magical age of 18 were to have sex with some at
or over the age of 18, it must be a forced act, that it is the
deplorable thing we call rape. It is impossible for them to
believe that someone under 18 — even though with the very tools
for sex readily available — could possibly consent to sex. To
those who are not bondaged to this uncivilized belief that youth
lovers are rapists, it is quite easy to understand that court
cases prosecuting for Pedophilia are simply prosecuting an
individual for sharing affection physically.

To outlaw sexual activity between adults and children is
perhaps one of the most irrational actions of any legislative
branch. In this writ, it believes it is both capable and needed
in governing the personal relationships of the people. It finds
itself to be intervening a sort of injustice. But what sort of
injustice has there been? When two individuals consent to do
something together, when they harm no others, how can this be
called an act of injustice? There will be pleas made by iniquity
to justify their Xenophobia, their absolute fear of breaking
custom’s laws. They will say that children are incapable of
making a choice for sexual activity — that, by some writ of
human DNA, until their 18th birthday, every question concerning
sexuality is blurred into some unrecognizable form. However,
this supposed fact is highly emphasized on smaller child who may
be 12 or younger. They will claim that such children are
incapable of consenting to sexual activities at all. However,
such naive thinking is rather typical of those who adhere to the
dogmas of their time. Anyone who has any sort of familiarity
with children understands that children are fully capable of
consenting to certain activities. They may choose to act they
wish, selectively playing with certain toys, or choosing one
food over the other. Once sex has been explained to them, there
can be no doubt that they would be able to consent to it with
knowledge in mind. However, it has even been the work of the
Conservatives to disallow knowledge of sex, to claim that sex
questions themselves are inherently sinful! These advocates of
making information illegal are only oppressing freedom of
thought, and thus curtailing every freedom that we have!

The authorities will make every possible public mark about his
actions, save for the Scarlett Letter, and when the sex criminal
has been harassed, beaten, and abused by the so-called
good-hearted community, once this is done, the authorities will
look the Pedophile and say, “That man is cruel and heartless,
deserving of no affection, deprived of all beauty.” Think of
that! They will throw on to him the burden of guilt while they
themselves endeavor only to cause suffering. Megan’s Law, for
example, requires a Pedophile convict to give notice of his
name, address, and crime to all people who live within a three
block radius, using the methods deemed appropriate by probation
officer, including, “signs, handbills, bumper stickers, clothing
labels, and door-to-door oral communication.” This is no longer
a case of sexual exploitation. It’s a case of incredible masses
of uneducated, unintelligent people making oppressive laws. When
things have come this far, it is no longer a battle between the
youth lovers and the Authoritarians, but a battle between the
Humanitarians and the tyrants, a battle between compassion and
depravity. These laws are not only opposed by the lovers of
youth, but the lovers of affection. To what sentiment of
humaneness can one appeal to when proposing such a law? There
can be none. And so this law, Megan’s Law, is just a barbaric
sentiment that arose from the ancient scaffolds, the
dismembering of hands of thieves, the imprisonment of those in
debt — it is simply barbaric and cruel. Opposed not only by our
brotherly Pedophiles, but also by anyone who has any sort of
emotion of kinship with their fellow human beings.

Like the blasphemer, though, the Pedophile is civilized and
produces good things for our world. The infidels and heretics
questioned what was popularly believed, relieving from the minds
of men that they need to fear an afterlife. And so today, youth
lovers work to give the minds of men and children the peace of
knowledge that pleasure is not to be abhorred, that happiness
and joy are intrinsically valuable and good things. Those who
oppose Pedophilia are only attempting to relinquish one taboo
from the minds of our society. Instead, they work to cause
suffering and to degrade those who hold that adults and children
may have sexual relations between each other. Yet those who
defend Pedophilia will continue to assert that forced sexual
acts are an abomination, a cruelty which cannot be replaced.
Pedophilia is not at all about forced or coerced sexual
activity. Pedophilia is about freedom and the liberty to govern
one’s own body without harming others.

Still, though, the assertion will ring throughout the halls of
injustice that Pedophilia is rape under any condition. They will
claim that, judging by the years a person has existed on this
planet, that this scale is perfect for determining exactly when
they are ready to use their own bodies for their own will. I can
say this of rape — forced sexual acts are horrible, whether
between two individuals of the same age or of a different age. I
could never excuse such a brutality on the grounds of any
philosophical assertion. Some may say that Pedophilia should be
outlawed entirely because of the few incidents of rape, but then
it should follow that all sex should be outlawed because of
those few incidents. And the legislators fail to understand that
rape occurs, regardless of what the laws say. Outlawing
Pedophilia only deprives human beings of the right to govern
their own bodies without harming anyone around them. I must
oppose age-consent laws as I oppose any form of tyranny which
works on the assumption that liberty is unnecessary.

And so, to oppose Pedophilia is to oppose justice and liberty.
To say that a child or an adult has no right to govern their own
body, even if they cause no suffering in their actions, to say
this is the worst form of brutality. It makes it illegal to show
affection physically, it makes it a crime to express compassion,
it villifies those who desire to give the kiss of warmth to the
youth of our world. To the man who has offered his body and his
affections to children, the authorities will call him a rapist,
they will throw him in jail, and upon release, they will force
him to inform those around him of his activities, relegating him
to abuse and harassment. This can be defined aptly as the rogue
state — a government which holds that sex and love are illegal.
Just as it was illegal for the races to engage in sex with each
other, today it is illegal for the ages to engage in sex with
each other. This is but the worst of crimes — to call sex and
love a crime. It may be true that the love between a man and a
child will forever remain a mystery in the hearts of people. It
may be true that physical affection and warmth will forever be
lost in the abyss of ignorance. It may be true that justice will
fall victim to merciless brutality, that affection and kindness
have no place in society, that considering everything of value,
liberty cannot be found — but it is the heart of the
Humanitarians and the lovers of youth and compassion to oppose
these possibilities with every ounce of strength that can be
mustered.

www.punkerslut.com

For Life, Punkerslu

Failed state

July 12th, 2009 at 12:20pm Under Appeals and Writs

 NATIONAL DISASTER – A FAILED STATE

Preface

In India, in old age, my father had no pension, had no guarantee of living like a human being.

 “Freedom fighter”, fighters’ pension was refused by him.  By this time by leaving a glorified titled public service in India,  I had opted to live in civilized countries to prove myself and had come to see him almost every two or three years.  On such a visit, I found an envelope boldly marked O.I.G.S…

 Since our relations were like friends, I enquired about this letter.  “find it out yourself”- was the reply.  Little did I know it was a letter for offer of pension as “freedom fighter” and in line with many other Indian glorified titled papers and it was dated about four months back?  “Why didn’t you sign and send it back”- I asked.  He replied “we struggled for independence on principle, not for money.  Whatever the foreign ruler was, they did not beat us up in lock up or in jail. They did not provide garbage as food.  At least they had some humanitarian feeling”.

 He also added, after all, these rulers were from a foreign country. Naturally, they would like keep themselves above the locals and in history, this is quite natural. In so called independent India, members of Parliament, (some of them with criminal charges) devised VIP, VVIP, Gazetted etc., for their own identity to keep themselves separated from the people being ruled, making them free to loot the national exchequer.. Look at the present India. Sons of the soil are killing each other in one name or the other.  So called elected glorified titled public servants enjoy/loot the people, at the same living like “Raja” and “Maharajas” so are their stooges, all at the cost of “have nots”  whereas for the rest of India have guaranteed are starvation, deprivation, anarchy, lack of security what not,  and have turned poor to poorer  Are these people human being- he growled. You’re my pension.

 In the process the present generation of India most of whom have degenerated to self centered foot lickers of these glorified titled public servants elected and/or appointed perhaps will call my father a “mad cap”.

 I respect my dad from my heart. In my teenage I had found him working on lacks of rupees of cash completely in-charge of a business operation of a devotee of Shri Shri Ma Anandamoyee.

 His salary was INR90.00 per month.

 Surprisingly, people with high priced cars used to visit him at the slums we used to live and touch his feet with reverence and used to enjoy the food with us, that we had lintel and gourd creepers.

 Fortunately for me, as long as I was working in India with foreign oil companies there were no scope of cheating me for financial gain or otherwise, for the fact it was open expense account, and I could help the needy also.  All my employers wanted work.  It was best of my career in India.

 Having achieved a ripe age, I’ve nothing to regret for my deeds.

 What are the deprivations and consequently degeneration to criminal activities taken for granted in the shadow of so called Indian politics named as VVIP, VIP and their stooges, amass wealth definitely disproportionate to known earnings, and the rest who can’t tow the line, sufferings, torture, even life threats are daily affair, killings, are the granted conditions of billions of people of India?

 Millions have given their life to achieve freedom for India.  To my knowledge, most are forgotten.  But, did they want this India where only glorified titled public servants elected and or appointed resort to all unscrupulous means to amass wealth even killing hundreds or thousands of their own people!

 If there is something known as God, how long will he/she tolerate this unabated torture of the sons of the soil, mass, including foreign visitors?

 Today my father did not have to witness the worsening situation of the society and that of the so called Government.  He is gone to eternity. When in India, I find myself mentally pauper.

 The way it is now, where people feel pleasure of doing damages to others,

criminals in disguise of public servants are the VIP and VVIP and what not enjoy on the fats of have nots –

“emon larak kothayo khujey pabey nako tumi,  Criminaleyr swarga setaa Bharatbhumi.”  I sing, meaning, you will not find a better hell than this, this is the paradise for the criminals.  Some predicts this land India which had been subjected to be slave of others for centuries, will soon be once again.

 Disclaimer:  Whatever seen, suffered, torture imposed upon me and likewise millions of sons of the soil even to foreigners are written here.  Any personal similarities are purely coincidental.  Exceptional if any, are like my father.

 -1-

Common scenario

“Raja” the Chief Minister of an Indian province in Indian terms is known as VVIP of a country number wise the biggest democracy in the world  with red beacon and screaming sirens is having a ride with a chauffer driven car, escorted by tens of cars of Police forces, paramilitary forces all having automatic killing weapons.  Even the personal bodyguard has automatic killing machine. And the cyclist who happened to be on the way was beaten up mercilessly by the police and left on the road. 

The so called ambulance does not have any right of way and press reports indicate that these are used to carry arms of weapons for the hired goons locally called “cadres”.

 Raja lives in a house at the cost of national exchequer near a forest conservatory.  One pregnant jackal started howling at night and immediately a Superintendent of Police (these people head the police force in a District) shot the jackal.  Little did the pregnant jackal know that Raja is living there and she will be shot on expressing her happiness?  One wonders, what little good this Superintendent of Police he did for the mass of have nots?

 Surprisingly, the Constitution of India says that all are equal before the eye of the law.

 The so called law has been circumvented by few elected people by raising their hands in the Parliament  and these people are called VIP, VIPs and what not.

 Although a local High Court in Delhi has ruled that these people are not national assets, hence such luxuries, pomp and grandeur at the cost of national exchequer must stop.  But who cares?

After all, these people are VVIPS, VIPS in Indian terms, law of the land, and, in practice ruling of the court, is not applicable to these people.

People get charged for falsely by the police if opportune arises and/or if ordered by the so called VVIP, VIP and their stooges.

 Incase a criminal is caught most of whom are patronized by the so called VVIP, VIP and or stooges, the police let him free on order from higher ups.  Of course, there is no documentation or record for such orders.  What poor policemen are going to do?  After all they salute these people for reasons best known to them. Besides, criminals caught intimidate the witnesses with dire consequence if they dare tell the truth before the court of law.  Police is there to protect the public servants known as VVIP, VIP and many other local glorified titled public servants.  In reality, they’re not to provide protection to the common people.

 “You fool don’t you realize that “Raja” and his stooges will be at the top luxurious conditions and will have assets so that next fourteen generations all at the cost of national exchequer so that they can have the same life is the accepted practice here”- somebody retorted.  This is unbelievable in a democratic society.  But, this is the fact of life, here in India. Who cares if some die in starvation, who cares if somebody gets killed by the so called stooges of these VIPs, VIPs, who cares if you get robbed right in front of police station/s, who cares if one gets raped?  When asked by the press “Raja” answers these do happen everywhere.  Accepted, but where is the law and order and justice, financial compensation for these losses. “We can’t afford” is the reply of “Raja”.  But Raja and their stooges can blow away billions from national exchequer for their own ends to meet.

 Who cares about accountability? Who cares about the stinks raised by the Comptroller and Auditor General?

 Raja and their stooges have luxurious foreign trips in one pretext or other, be it medical ground, be it sons/daughters schooling, be it in name of foreign investments and the pretences are endless, all of course, at the cost of national exchequer.

 Raja and their stooges all glorified titled public servants have endless expenses for their telephones, colonial style living, colonial style guest houses free meals and who pays for all these, the billions who gets practically nothing from the national exchequer.

 Of course there are endless commissions set up, normally headed and/or members by the political parties (the fact states, hardly there are politics over here, rather “criminalitics” a word based on the reality) supposed to find the facts and most of the findings of these commissions are not law binding.  Everything is national secrets, even the expenses of these Rajas and their stooges. And, very recently there had been a law “Right to freedom of Information”.  Like all laws here, who cares? And, which judge in India is going to put on trial the Rajas.  Most likely, he’ll not be a judge in the same court next day. And the next judge taking over the hearing will find nothing wrong and exonerate the Rajas and their stooges with honor.

 And, if there are proofs that are hard to be refuted by the judge, the case will be never ending and meanwhile Rajas and stooges with all criminal charges hold public offices continue having free lunch and luxuries until the case is disposed of by the court which may take 30 years if not more.  What a justice! In name of fundamental right glorified titled disguised criminals can go up to Supreme Court of the country even for getting a bail. There’s no non appeal able ruling of the court, even in case of Consumer court. Imagine the condition of a daily wage earner, can they afford to fight for injustices in stages to Supreme Court of the country!  Of course, in law books it is written that these people will be provided with free legal service.  As the people say, it’s not that simple.  Even here, the bosses of “criminilitics” and their stooges have the final say, people tell me. 

 District level and or state level or even in national level what services are provided to the people is “god’s guess” but definitely all services are guaranteed to VIPs, VIPs and their stooges.  This is the practice and reality in today’s India.

Even a Municipal Chairman enjoys the same luxuries and free lunch and dare sanction all kinds of illegal activities such as violating all national building codes, in violation basic principle of engineering digging up the roadside soil for the water to log for mosquito breeding, Environmental Pollution with immunity and people say, either by the orders of the higher up of practitioners of “criminalitics” and or by greasing the palms.

 By international pressure many new laws have been implemented by the Government of India and insiders say all on the pressure of civilized nations who grant aids and or loans to India.  Among these is the centralized provident fund for all industrial workers, Human Rights, Consumer protection, Environmental Protection act, Right to Information, and so on.

 Dhop Dhop Ram Fatfatwala (fictitious name) owns jute mills manned my hundreds of worker.  And Mr. Fatfatwala has not deposited the fund of the workers to the Central Provident fund and consequently the central provident fund commissioner issues an arrest warrant.  Rajas come in the picture and orders police not to arrest him.  The jute mill was closed and Mr.Fatfatwala is out of the province to devise another scheme to loot the national exchequer and or cheating the common people. The workers die in starvation or forced to enlist themselves in the “goon squad” of the Rajas in name of politics. This scenario is taken for granted by the mass of India for the fact they have no other choice.

 Excepting few tenacious and right doing and thinking people who can fight forever even in some cases 20 or 30 years and meanwhile if one is not dead by natural process and/or get killed, may be there may be some justices and/or remedies.  The rest suffer in mute.

 One Central Police Officer had the guts to arrest one of the Rajas of a province and put him in jail with umpteen numbers of criminal charges.  Of course, for the Raja the jail was an air-conditioned government bungalow with all luxuries as enjoyed and this Raja was set free by the court on bail.  Who knows what happened to criminal charges, but this provincial Raja has a cozier place in the Central Cabinet Ministry.  It had been years. 

 Local papers state that this man is a management guru and goes to lecture to Harvard University and what not.

 Once a clerk of a biscuit manufacturing company, the nincompoop son of a Raja had a desire to go into business to enlist him as industrialist a fancy name coined the local political personnel and their stooges. Nationalized banks granted him billions of local funds and god only knows what happened to those funds and what industry had been set up.  This Rajputra (son of Raja) is now known to be in UK with all legalized paper to stay there.

 After all, as claimed, this is biggest democracy in the world!

 Hearsay is that one of the Raja had a Barrister-at-law title from UK.  But the local competition is tough to gain any ground in the legal sector.

He opted to wear a torn shirt got some followers and used to move in slums claiming he is the savior of the poor.  He taught his followers the slogans like “break it down, grind it down”, “it will not work”, “our demands must be met” at the same he taught to burn the buildings, transports, and what not!

 And, this savior of the poor had been Raja, freeloading and luxuries for more than 30 years.

 Another Raja who was dethroned manipulated to put her nearly illiterate (as I had seen, and heard, university degrees with right connections are for sale and or offered) wife as Chief Minister of the province.

 These so called democratic Rajas had been reigning at least for last 60 years.  And, India’s freedom had been for 60 years.

 In all other democratic countries that I had lived, visited, I did not see any VIPs, VIPs and did not see anybody being escorted by Armed Police and paramilitary forces.  Even a police constable can arrest anybody found breaking laws, irrespective of Ministers, Secretaries, Janitors.

 After all, India is the biggest democracy in the world they claim!

 Is it the biggest anarchy of the world?

As I have heard the definition somewhere, I quote, “for the criminals, by the criminals of the criminals….”.

 -2-

How it had been working so long!

The so called political parties (better stated in reality, criminal parties) have infiltrated in all spheres of administration having a parallel political administration with that of established machinery of public service set by British Raj. These are so called elected (some elected at gunpoint, coercion, intimidation, and what not, and other unfair means, a locally acceptable methods) parallel administration is termed as administrative reforms in disguise to provide service, even criminal (as had been reported in the press) to meet need of the every members of the party, including hiring unlicensed armed goons in name of party workers, who massacre innocent people who do not tow the line of “criminalitics”, in front of the police forces where police is a silent spectator.

 After all, the way it is, Police is the stooges of Rajas and police dare not intervene.  Police will extort, harass, and lay false charges who oppose the activities of Rajas and their stooges and or to people who hardly make even one time food/day.

 If Rajputras (Rajas’ son) is pick-pocketed police will definitely recover the purse within an hour. It’s guaranteed.  In anybody else’s case who cares?

After all, police have won the right to form union from the Rajas and like local appointed public service have guaranteed pay cheque for life, without providing safety and service to the mass.

 And, this is the largest democracy of the world!

 This is the scenario in every sphere of Public Service. They are there to salute the Rajas and their stooges and provide service in a flick of a moment to them even if it is criminal.

 Al Capone, the criminal king of the then USA, Gestapo of Germany’s Hitler, a cobbler’s son, Nicolae Ceausescu of Romania, (by mass uprising he and his wife Elena were executed by firing squad)  Saddam Hussein of Iraq, who was hanged to death, are perhaps the most nearest examples one can find equivalent to scenario in India.

 The so called political parties have established network of party workers some call “goon squads” with illegal automatic killing weapons from village level to top hierarchy of the administration.  These all have fancy local names with immunity to all criminal activities from the state police and only the unfortunate ones get identified by the individual exemplary Central Police.

 Again, the funny thing is that Central Police can not take up any criminal investigation until and unless it is blessed by the Rajas and/or one goes through the High Court procedures and in some cases, these are objected to by the state administration of Rajas.

 Again, hearsay is that Central Police is also not beyond the scope of the all unethical practices of local public service. Exceptions if any, are there but, statistically they don’t count.

 All the laws of the land are meant to be ignored with immunity by the so called political workers some term them as “goon squad” who has the patronage of the law and order and of course administration.

 Rajas party is having a public meeting.  Children from primary schools, teachers, local professors, farmers, and who not, all the members are shipped by “goon squads” of the Rajas commonly known as cadres/leaders and their stooges the public meeting at the order of Rajas and their stooges.

Who cares about the schooling and suffering of children and other functions of public service?  Who cares about the inconvenience of the public, who cares about the noise level generated?  Who cares about gathering of millions of people in already overcrowded city. Of course, there are laws for it.  Who will implement it, as long as it is done by the “goon squad”/cadres of the Rajas and their stooges? Who cares about the Environmental Pollution, right to leave in peace and whatever fancy words are printed in the constitution of the country.

 And, changing the constitution of the country, India, is very easy. For the convenience of the so called elected they’ll raise their hands to change the constitution for their own free looting and luxuries.

 In other civilized countries, as I had observed, once the national parliament approves a change in the constitution of the country it must be approved unanimously by all provincial assemblies.  Even one objection from the provincial assemblies makes the proposed change null and void.

If the central government feels that it is for the betterment of the mass it has option to put on referendum for the people to give their “yes” or “no”. The constitution can only be changed and the law can only be changed if it is accepted by the referendum, not held at gun point, or intimidation or whatsoever.

 In reality, public service is there to salute and provide services to the VIPs, VIPs and their stooges.  Run around for months, years, and being thrown out of office and or police station are very common scenario.  And, the way it is people has no choice to avoid the public service and the public servants, either elected and or appointed in general, are habitual liars, extortionists, procrastinated, and it appears that these people are there to harass the public, not to provide them service until and of course their unwritten conditions are met.  Even if you grease the palm of these public servants, there is no guarantee that your needs will be taken care of. Exceptions do exist and they don’t count and hardly allowed to get things done.

 There hardly exists any humanitarian feeling and helping fellow humans. Those who are still left with human qualities are scorned and barrage of slang are thrown upon them and, if police finds a scope to extort or to implicate the innocents they’ll also show their color.

 Procedural law and order:

There are no securities for the people. Even the odd balls police officer take a humanitarian view, he has nothing to go by.  He/She has one stick his hand. He can not shoot to protect your life, that’s the practice not the police Act enacted by the British Raj and modified by the present rulers, as it appears, to use the police as their slave.

 There are reports in the press in state run government hospitals for granted reasons Autopsy reports are fabricated, so are the Forensic reports. This science only exists in the book, so is the DNA reports.  To get these tests done from reliable source is a highly expensive affair for the individual. One is lucky enough to get a person or persons with integrity.

 In summary, lawlessness and looting of the national exchequer is an accepted way of life.  People are beaten to death by the mob (goon) squad in public anybody objecting to it, subject to face the same situation. If one can afford the prohibitive cost and dares to go to judiciary, it is experienced that highest judiciary of the Province locally known as High Court, overlook the proven points in the judicial application and let the applicant go in circles a never ending process which may not materialize in one life’s term.  JUDICIARY IS A NIGHT MARE IF YOU DON’T HAVE BILLIONS.  If one does not have billions, can not get justice if it is against the state machinery, irrespective of violating all the rules and laws of the land.

 And as per the World Bank data, per capita income is $1.06/day.

 Humanity was the backbone of Indian Culture from Vedic era.  That’s history. After all, this is the largest democracy of the world!

-3-

-Public service and or Public undertakings.

Few examples:

 Food and food supplies:  There is a food rationing system by the state governments by providing ration identity cards.  Even if you’ve one, there is nothing in the ration shop for your family.  As per the press reports supplies from the government storages are distributed to retailers in the market with the market price.  As the ration shop keepers claim that they have to do this to satisfy the greed of local members of the “goon squad” in name of “criminalitics”. Even to get a ration card identity it is a process of never ending but by the members of “criminalitics” and their stooges have a way with it with no time lost.

 With IT catching up with the rest of the world, I was told by a IT professional that they’ve discussions with the Rajas’ stooges to have the ration card issued digitized and at the same, they’ve been told that there are more than 20 million false cards and these have to be accommodated in the IT system, to be legalized.

 Adulteration of all food products, it appears is an accepted way of life.

Be it milk, edible oil, whatever.  As experienced, and as per the press reports life saving medicines are also adulterated. Even rotten fish, uncertified live animals are butchered publicly and sold.

 Again there are thousand and one public servants to check on it.  It’s anybody’s guess what they do and/or what they’re allowed to do by the practioners of “criminalitics”.

 Education:

 Private schools approved and recognized by the local government for Medical, Engineering, Law, Management, IT, and what not have sprung up all over the country.  Experience indicates in these private schools one who can afford to pay the extraordinary entrance and tuition (in comparison to state run schools and fees) fees have access to it and get out with all kinds of degrees.  Students in these schools what do they learn, is anybody’s guess?  This is one of the good businesses to get in to suck the public if you’ve the clout and capital investment. But they get public service with guaranteed pay cheque irrespective of output and or service to the public.

 Be it High School students or higher classes, in general they’ve no respect for the elders, no respect for the laws, not even self respect, not even the teachers, as I observed.  No manners, no ethics and even hard to believe they possess any humanitarian quality. In general they find it a pride to throw slang at ladies, elders, disabled, and what not?  As experienced, poisoning somebody’s pets, throwing stones at window panes, even hand made bombs, threatening with life, is their pride.  They invariably show respect and salute the practitioner of “criminalitics” and their stooges and “goon squad”.

 Even most of the teachers keep silent about it, so are most of the law and order keepers.

Exceptions, if any, are known as mad caps.

 Leaving aside few state run well renowned autonomous learning institutions, it had been observed anybody can have a degree by one way or the other and hold different local high sounding public service, of course with local blessings of practitioner of “criminalitics”.

 Communications, Telephone and IT:

 This was a monopoly by the public service until recently. Billions are spent from the national exchequer for members of Rajas and their stooges.  People are burdened with fictitious bills and I am told the local law says that you pay the bill first then only the telephone provider will talk.  Most of the web address of the Government Departments don’t function. And the service provider a Government business do not care to provide service and scrupilious enough to pass one’s data to another for few Rupees (in case of Internet) to charge fictitiously and if you go to court it’s another nightmare.

 One does not have any choice to go to court of law to sort out, if at all, in their lifetime.

 Medical:

 As usual, Rajas and members of the family and some public servants who are likely to be stooges of “criminalitics” have free medical even in the costliest paid hospitals and or nursing homes.  Some even go to developed countries of course at the cost of national exchequer to get cured and or for medical treatment.  As seen in the press advertisement, they recruit VIP doctors at the All India Institute of Medical science in New Delhi.

 Mass goes to local government run hospitals that are controlled by “goon squad” in name of “criminalitics”.

 Even the worst victims of accidents and or mishap can get no treatment or admitted in the hospital if it is not patronized and blessed with “goon squad” and or practitioner of “criminalitics”.

 They meet with the eternity in helpless conditions.  The local press is full of news with these news and news of massacre by the “goon squad” where police is either a silent observer or intentionally not present.

 Most state run Government hospitals stink with urine and stool smells and smells of piling garbage.  Even stray diseased dogs and cats find a shelter in the hospitals and medicine stores nearby as people say, sell medicines at exorbitant prices and insiders say that these are medicines that come from government storage to hospitals for the patients.

 About 25 years back I took a patient with swallowing poison to such a government run sub-divisional hospital and the so called doctor attending the patient never heard of a stomach pump and the patient had to die.

 If one goes to court of law to seek redress, the so called local Indian Medical Association will find nothing wrong with the failing doctors for malpractice and or willful negligence.  Very recently a visiting NRI doctor a Professor in Medical College in USA, got his sick wife admitted to a highly expensive medical facility at Calcutta where she died as per the NRI doctor for negligence and malpractice of the doctors.  He took to them court of law and got them jailed.  But the state High Court let these doctors free and as per the press, Indian Medical Association got nothing wrong with these doctors.  It appears all are in hand and glove.

 To add, the local press was full of scorn, false accusations, about this NRI doctor.

 My efforts to start a manufacturing unit with the help of American MNC met with all kinds of handouts, extortions, laying fabricated criminal charges, and the list is endless. And, added to it, were the standard slogans with red flags as taught by practitioner of “criminilitics”.  I just ran out of the country after clearing all the criminal charges and greasing the palms as required and fortunately for me, I found an advocate (who is a High court Judge now) took pity on me and in state High Court, I was cleared of all charges.  But the local judiciary in sub-divisional level who was influenced by the members of “criminalitics”, who had no reasons and or legal ground not to dismiss the charges, did not do so.  This so called sub-divisional judicial magistrate/judge died of cancer and he is fondly called by the bar association as “cancer ghosh”.

 As is seen, state police is just the slaves of the masters of “criminalitics” so called elected public servants and their stooges, in India commonly known as VVIP, VIP and what not.  They’ve no respect of the law of the land and the so called Constitution.

 Besides, even police catches hardened criminals, there will be no witness in the court for the fact, and the “goon squad” has thrown life threat ultimatum to these witnesses, with life, wife, daughter, son and what not! Police do not protect the witnesses.  After all, police is busy as they say “VVIP duty”.  Mass do not count.

 Infrastructure:

 In most parts of the country the roads maintained by the public service are beyond imagination to drive upon, even bicycling.  Ministers and their stooges portray their images with all big sounding words in the press unveiling the beginning of a project by spending millions from national exchequer and that project it appears is never ending and in the process, finds allocated for the project is siphoned off. In spite of all kinds of acts, like Environmental pollution act, Safety, it is taken for granted.  The head of the municipality definitely of ruling goon squad, orders taking out the soil in front of the house supposed to be green area and sell it.  This is definitely a crime and against all Engineering norms to weaken the foundations of residential houses.  Police is a silent on looker and when written complaints are provided to Police which they normally refuse to acknowledge and file suit at the court from experience they appear, are just deaf.  For years, the roads plying heavy vehicles had subsided and instead of bringing the road to the “as built” condition the local members of the “goon squad” finds all kinds of excuses of digging out the soil and haul it. And get some money for it.  Most public servants with the title of Engineers are not regulated any professional organization.  At the whims of “goon squad” anybody can be a Engineer without having any professional recognition.

 What does one expect from this scenario?  Infrastructure funds are for purchases of personal cars, houses and what not?

 These people change the master plan of the municipality to their advantage (mostly money), even though there’s order of the Supreme Court of India that nobody is authorized to change the master plan of a locality.

 Water Supply:

 If there is water on your tap, one is lucky to have mud, worms and all kinds of bacteria and viruses in the water supply.  It is taken for granted.  There are umpteen numbers of glorified titled public servants to ensure that everything is done in line with the standardized norms but, who’s going to stand against the head of the institution that belongs to the groups of Rajas’ goon squad?

After all, they’ll want to live in peace and have their eyes closed.

 Once in Calcutta, I was witnessing a large diameter pipeline being laid and there was a fellow standing like a hero supposedly to be some kind of Engineer and or Supervisor.  When I asked “what’s this going on, this is not being done by engineering norms”.  He showed me the office of the local Superintending Engineer nearby and asked me to tell it to him.  Since, by this time my eyes have opened about the “hand in glove”, and this project was funded by the World Bank, I just fired a letter to then World Bank president Robert McNamara.

 By this time I was gone to my work to civilized countries.  Robert McNamara came to Calcutta and enquired about me and did what he thought prudent to be done.

 Public transport:

 It is regulated by the state vehicles department.  Even the routes are allocated by the members of the “goon squad”.  In residential area these vehicles pass by with electric horns to make a dead to stand on its feet and emanating all emissions both of which are against the Environmental Act and the Master plan of the locality.

 As reported in the press, some state run public buses don’t have route permits.  Well, they say, it’s just the system.

 Local, glorified titled public servants’ roads are blocked by putting iron bars so that no heavy vehicle can pass through.

 Economy:

 There are kinds of statistics, figures thrown in the press by all concerned including VIPs, VIPs and their stooges indicating a 10% annual growth.  Good.  If so, why mass suffers without any basic guarantees of life, added with extortions, killings, tortures and what not, and the so called VIPs, VIPs and their stooges loot the national exchequer!

 Of course, this is the biggest democracy of the world!  (Depends on the definition of democracy).

 -4-

State runs businesses:

 Banking:

State run banks do give a damn about customers.  Employees, bank tellers, are just gossiping and talking to each other about their girls and the customers are standing in mute in line.

 If objected to, state run members of the “criminalitics” who manages the state run unions roughs up the public and unhesitatingly roughs the manager of the bank if he/she takes any disciplinary action against the defaulting employee.

 In 40 years in civilized countries I had no discrepancy with my banking.  None of my requests were ignored.  My monthly remittance to India to Indian nationalized bank for supporting the people India had no discrepancy in inward remittances.  Few remittances were missing.  The reply of the guaranteed pay cheque holder of the Indian bank with a fancy title sternly replied to me it is your bank that did not remit.  How am I going to make this glorified title holders of state run Indian banks that this do not happen in civilized countries.  I just closed my a/c and looked for better of the evils.

 I wrote a cheque for my housekeeper and asked her to deposit it to her account in a state run bank.  She never saw that money.  For years, I’d to fight in the court of law to get that money.

 There are no limits of harassments and damages caused by the Public sectors and the locals take it for granted.  Why they don’t have “hire and fire” if the clients (in this case public) are not provided with service? Who’s going to do it?  As per press reports quite a good number of MPs, MLAs, have umpteen numbers of criminal charges.  But they are still MPs, MLAs, so called law makers.

 It appears that public service in India are there to push peoples’ backs in the wall and in every step of life. Either the mass suffer in mute or those who can and still have finance and energy and time eternal, go to the court of law as a last recourse.  Not that this is a panacea or remedy but one doesn’t have any choice.

 Exceptions are hard to come by.

Transportation:

Railway implemented in India by the British Raj has developed into one of the largest network of railways in the world.

 Like the King George VI, the Railway Minister takes the whole train accompanied by all attendants, personal assistants, Secretaries, and all luxuries, automatic weapon armed security personnel and what not.

 The mass hangs on the hand rails of the railway compartments at the peril of the life and some even travel on top of the train to get electrocuted for the fact there is no room in the railway compartments.

 Well, after all a VVIP, VIP and their stooges, by Indian practice can do so.  Let the mass go to hell, is the clear message every time. Even the sons, daughters, and any other relatives of the railway minister just forces themselves into the air-conditioned compartments of the railway, and paying for it?  You must be joking.  After all they’re minister’s relatives. The ticket checker has only one head on his shoulder.

 Some railway employees take it granted to have their palms greased.

 Air:

 I was having a return ticket by Air India to India and back.  I had confirmed reservation at Ashoka Hotel in Mumbai.  When asked for the hotel to the Air India employee at Mumbai, “yahaa so jaon” (sleep here) was the reply, and he showed me the floor.

 There are VIP lounges at the Airports free of cost for the Indian glorified titled public servants.

 At New Delhi my connecting confirmed reservation by Indian Airlines was denied by the booking clerk (boarding pass issuer).  A slip of INR100.00 note to the porter did the trick.  I got my boarding pass.

 On return journey from Mumbai, sitting behind me I had lady passenger going to New York and she had a baby crying continuously from Mumbai.  She had the calling button pressed and the red light was on. In three or four rows before me there were Indian couple sitting and all the air hostesses, it appeared to me were performing “Bharat natyam” and serving all kinds of drinks, snacks without caring about the crying baby, and the rest of the passengers of a near empty Boeing 747.

 My conclusion that this couple was flying at the cost of national exchequer, i.e. freeloaders and must be glorified titled public servants of India was right. When in international territory, I objected to baby’s crying, and non existent of service. Baby’s mother needed some hot water to make milk to feed the baby. The captain of the flight apologized.  I’d flown pretty well in all airlines in the world.  This experience one can get only in India and in Air India.

 Good bye Air India.

 I had a mind to report it to Heathrow Airport and other international bodies but I just philosophized “no matter what washes are done, coal will not change its color”.

 My schedule for five days at Sanfrascico was cancelled. Since there were no queue in first class booking counter I approached the booking clerk (I was not rudely challenged, as I had experienced in the state run Airlines of India, by the booking clerk why have I got into this counter, since I don’t have a first class ticket) to help me out. My ticket from Sanfracisco to India was immediately rebooked next day by Singapore Airlines at no cost and since my flight arrived late at night in Sanfracisco by Aleyska Airlines; the booking clerk of Singapore Airlines politely provided me complimentary hotel and transportation, although it was not there responsibility. The Airline showed a humanitarian gesture.

 My flight from Edmonton to Calgary was late and the connecting flight to Sanfracisco already left.  Air Canada without any hassle provided with a free five star hotel with food for the night and taxi to and from the hotel and ensured that I’d a confirmed reservation from Edmonton to Sanfracisco and by Singapore Airlines, the next day.

How does it compare with Air India showing me the floor to sleep in at Mumbai Airport, and the crying baby not getting hot water to make milk for feed?

 One Maharaja (locally known as Prime Minister) of India used to fly with two Boeing 747 accompanied with whomsoever he liked and the logic provided to mass is that in case one has technical trouble, Maharaja can take the other one.

 And, the rest of the majority of populations of his kingdom are below poverty level even by Indian standard, let it not be compared with developed countries.

 By laws of average, Rajas and Maharajas of India and their kin and stooges have a free lunch, luxuries, wealth disproportionate to their income.  In practice, they’re above the laws of the land.

Mineral trading in international scenario:

 Iron ore exported with more than 70% Fe contents are reported to have been received at destination with 50% Fe contents.  After all, these are controlled by all regulatory authorities at both ends.  This scenario is very common in all raw minerals trading.

 Energy:

 a. Coal mining is a national sector.  Billions are siphoned off by the mafia from the coal mines and some even have their organized gang with automatic weapon to kill anybody they like.  Rajas, Maharajas and their stooges have, as they say, have their share.

 b. Power generation and distribution:

 Input versus output is nobody’s business.  Propaganda flies all around in all media that some power plants are operating at 150% efficiency factor. Whereas in reality it does not even function at 30% efficiency.

 At the whims of the Rajas and Maharajas power generation units are located even where there is not sufficient water to have one boiler feed of water.  So what? Rajas divert the ever drying river to the power plant site.

 In blatant violation of public safety, naked aluminum conductors are run through localities for distribution to households.  Monkeys, passers by get electrocuted and become dead and by local practice it’s taken for granted.

 It is told that in locality where Rajas and Maharajas and stooges live safety norms are followed.

 Whereas Rajas, Maharajas and their stooges have uninterrupted power supply, in some areas people will be lucky to have six hours’ of power supply, of course at the cost of national exchequer, some call it “free lunch” at the cost of mass who have guaranteed starvation, deprivation, torture and what not? One will be lucky to have 60 watt unit run in constant voltage.

 Unending greed and corruption, guarantee of protection of “goon squad” in different fancy names, guaranteed inefficiency and guarantee of pay cheque are the backbone of all this practice for years since so called independence of India.

 Rajas and Maharajas and their stooges don’t have to bother about their own needs.  Special units are there to ensure that communications, power supply, transportations, luxuries and what not are at top conditions. For the consumer, to have an electric meter functioning properly must be a miracle and fictitious billing is just an accepted way of life.  One has to run around in never ending circles to have the meter checked, and here comes two persons so called meter expert with a light bulb to check the meter?  Telephone requests if answered, do not work.

 As per the local information and the local press stolen transformers of State Electricity Board are sold back to State Electricity Boards.  Again, as per the local reports, spent oil from the transformers are mixed with edible mustard oil to smell it like mustard oil.

 Liquid and gaseous hydrocarbon:

 For the last 50 years it had been a monopoly of state.  Adulterations of the product at the retail outlet, manipulation of metering units are just very common business.

 With international liquid hydrocarbon sky rocketing prices one wonders how every Joe Blow has cars like ships and how do they maintain it?

 And as per UNO statistics the average per capita income of a person in India, is not even $400/year.

 Of course VIPs, VIPs and their stooges don’t have to bother about it?

It’s all at the cost of national exchequer.

-5-

-Bitter medicines-

 From personal knowledge, lot of people of Indian origin suggested in writing to government of India to implement the following:

 (a)    Issuance of Social Insurance numbered card to everybody resident in India.

 (b)    These days IT being the backbone any administration, this number will be tagged with all government departments, i.e. police, judiciary, banking, income tax, social benefits such as medical, medicines, election and what not. Not the present “hotch potch” system of voter identity cards, ration cards, PAN cards and these as one can see is there to manipulate at the convenience of so called elected and their stooges. 

(c)    This will enable to have some control of the situation of anarchy.

 (d)     Implement “hire and fire” in public service (in this case public) complain.

  (e)    In name of democracy abolish parallel administration of “criminalitics” from village level to top hierarchy.

 (f)       The question is, if any Joe Blows are elected in peoples’ vote why would they need security from the public?

 If people are elected by the people, not at “gun point” and / or other coercive method/s why would they need protection?   In all the democratic countries nobody excepting “Head of the State” gets any police protection.

 (h)    Why ambulance and fire brigade is not escorted by police vehicles?

 (i)      Why so called elected and or glorified titled public servants will be spared to face the law like anybody in the country.  Abolish important status and what not.  In democratic country and society who’s more important that others.

 (j)      Who’s got the right to violate others’ right to live in peace and all other rights that a state must guarantee to its residents.

 (k)    Public service is there to provide service to the public not to harass them or push their backs in the wall, a locally standard practice.

 (l)      Those who can afford, why people as a last resort to go to court of law for any public servants’ wrong doing? Why the departmental heads and the responsible Minister do not take remedial steps for any complaints filed by the people? If needed, to show the door.

 (m) In other civilized society as I had seen persons charged with criminal

      charges are not allowed to hold any public office. Look at India?

 (n) It is mandatory in other developed countries that no public servant

      can hold two public offices.

 (o) With national social security numbers, if these super intelligent

people, does not create fabricated national social security numbers there are no scopes of “black money” and or benami (fictitious names) bank accounts and properties spread all over the world.

(p) It appears that cancer has spread in every cells of the national body,       and the question is “who has the desire and guts of curing” it?

All the people are talking about ICBMs, Environment and what not all big

sounding words.  For years after writing to so many doctorates who heads national

and provincial Environmental Protection, I had to seek the recourse of the Kolkata

High Court and surprisingly, (as I know the reality now, it is no surprising to me)

one of the judges rejected my writ petition under article 226 of the Constitution of

India and in the Divisional Bench it was referred to District Magistrate whom I wrote

about a decade back and it was attached with my writ petition.  What a justice now? 

Meanwhile I had been squeezed to death financially by the so called advocates.

Who cares about these big words Microchips, ICBMs, Polymer applications in

Engineering which are very common knowledge these days when everywhere it is

apparent law of the land and International laws are broken with impunity in India and

people die of starvation, lack of  medical treatment.

Let India first learn the science of Human Science and Engineering as a law then

only it can justify its standing in the world.

-6-

Where it is heading to?

 Years back I transferred technology, to the Ministry of Mines and Minerals,(name changes and not practicable for me to keep track) and a Indian Professional body asked my permission to have it published in their journal.

 Assuming that the concerned ministry of Govt. of India had agreed to implement the technology, I wrote a registered letter to the concerned minister stating that I will have the technology implemented with Indian source and manpower and any fees they’re willing to pay may please be remitted to my father (who was then living).  As usual in line with Indian scenario it was not replied.

 One American Engineering organization’s business development manager, one of my ex-coworkers, invites me for lunch near my work place.  Surprisingly, he produced a photocopy of my report and said they’ve the job and their opinion was asked about the report. On my enquiry he replied “we’ve only one skin on our back and ethically, how can we say anything different, you’re in North America and we are working for you on the same technology”.

 “How is that possible”- I enquired.  It’s simple. The minister was here and we did what is to be done.

 I and many of my associates, friends of Indian origin had witnessed many such incidents in our lives.

 Again, when Rajsthan Atomic Power Project was being constructed by Atomic Energy of Canada, having involved in such projects all over the world, I opted to go to Rajsthan and take a working role.  In Canada, the head of the project invited me to have lunch with him.  “Hey we know you, but you’ll not be able to get anything done over there for the fact you’re of Indian origin.  Even we send a white brick layer from here; over there, all of them will call him Sir, and get the job done”.  Such facts are endless.

 Now the question is how long this will continue?

 In Vedas (Gita) it’s stated that I (God) come to this world to destroy the evils and protect the humane religion.

 Again, God get it done by us.  And when the people of India are going to awaken up and do the justification to the so called “biggest democracy of the world”.

 To make stunts here and there, few missiles are fired.  One or few nuclear explosions are done.  Communication satellites are lunched and at the cost of millions of national exchequer all local Rajas, Maharajas and their stooges are welcome at any place with red carpet welcome and garlands whereas, the mass have deprivation, starvation, torture, extortions, and millions of other evils for granted.

 Is it not a “failed state” where people do not have the guaranteed basic needs of life?  They’re guaranteed of starvation, to be bitten by street dogs at Government run hospitals, not treated by medical doctors, if in trouble with “goon squad” the uniformed “goon squad” locally known as police are not there to help, and the list of evils and inhumanity is never ending.

 In 1960s “Hindi-Chini bhai bhai” (India and China are brothers) a slogan originated by the then prime minister of India Nehru, when China butchered the Indian soldiers (I was working in the area then and mandatory salary deduction for defense at that time deposited in bank is a lost cause for me) occupied part of India, still under their occupation, is going to be repeated, or other courses of nature will dictate itself to bring justice to the people of India.  In Mahabharata kaurabs destructed themselves.

 Forget all the tyranny that had been on since 60 years’ of so called inpendence of India.

 Let India learn to take care of its residents not the VIPs, VIPs and their stooges with glorified titles in Public Service and the “goon squad” of practitioners of “criminalitics” locally known as politics.

 It must be done forthwith. Time has run out.  Otherwise, history repeats itself. Hope it does not end up like that.

 Copy right: CRS Registration Number is: 283468976

What to do when someone owes you: Small claims court

July 12th, 2009 at 06:20am Under Appeals and Writs

Your best friend, or someone you thought of as a friend, asked you for a loan of $2,500.00. You had the money, and you liked the guy, so you said okay. Two months have passed, and he bought a new house. You know he’s not hurting. You called him after you heard about the house and asked when he was going to pay you back. He said he had huge expenses now because of the new house. He said soon. Two weeks later you called again. Again he said soon. You just put the phone down. You’re tired of calling. He said soon again. What to do next?

This situation sounds like a case for small claims court. Here’s what you need to do:

1. Letter

Write your friend a letter. Tell him that he has two weeks to pay you back. Tell him you want to resolve his payment to you in a friendly manner, but if you do not receive a check within two weeks, you will see him in small claims court.

We’re hoping that the letter resolves the non-payment problem. If it does not, you’ll have to continue to step two.

2. File a claim

Go to your local small claims court and complete the forms. You can probably download the forms from your county’s small claims website. Submit the forms to the small claims court. The court will schedule a hearing.

3. Service of process

Your friend has become the defendant. He must be served at least 15 days before the hearing date if the defendant lives in San Francisco county. If the defendant does not live in the county, s/he must be served at least 20 days before the hearing date. A capable adult must serve a true copy of the claim. You cannot serve the defendant.

4. Evidence

You next gather all evidence to submit at the hearing. Evidence would include a copy of the cancelled check that you gave your friend and dates and notes of all phone calls that you made to him. You may want to take a photo of his new house.

5. At the hearing

Small claims courts are generally much more informal that other courts. The judge will ask you questions, and then s/he’ll ask your friend, the defendant, questions.

If you have presented the situation with evidence, the judge will probably rule in your favor.

You’ve won your case, and your friend is now going to pay you back, but suppose he doesn’t. Suppose he is a real jerk and has decided that he wants you to have to work just a little harder to get your money back.

6. Collecting a judgment

You have to collect the judgment. The defendant may pay the amount directly to the court. If the defendant does not have the money, the defendant may have to pay installments.

If your friend refuses to pay, you can complete an Application and Order for Appearance and Examination which would require your friend to appear in small claims court to have his income and resources examined.

You could also consider wage garnishment by completing a Writ of Execution. This writ could also levy your friend’s checking or other bank account.

If your friend has a business with a cash register, a sheriff can go to the business for a till tap. The sheriff can take enough money from the cash register to pay the judgment debt. The typical sheriff’s fee for a till tap is $85.00. We hope your friend doesn’t put you in this situation, but if you are ever in this situation, the purpose of small claims courts is to resolve small problems without the expense of an attorney. This is the do it yourself legal remedy.

Disclaimer: This article is not to be considered legal advice. If you need legal advice, seek out a licensed attorney. Remember that small claims courts do not require an attorney. If, however, the losing defendant appeals the small claims court’s decision, the new venue is a superior court. In a superior court, you will need an attorney.

Judicial Accountability – an Illusion or a Reality

July 12th, 2009 at 12:20am Under Appeals and Writs

Name: Sukant Vikram

Class : 5th Year BBA LLB

College : Symbiosis Law School, Pune , India

Topic—-                Judicial Accountability- An illusion or a reality

Introduction —-

               “Rex non potest peccare” —- The King can do no wrong

In a ‘democratic republic’ power with accountability of the individual enjoying it, is essential to avert disaster for any democratic system. The accountability must be  comprehensive to include not only the politicians, but also the bureaucrats, judges and everyone invested with public power. Power and position in the society come attendant  with responsibility, and every incumbent of a public office must remain constantly accountable to the people, who are the repository of political sovereignty.

Accountability of the judiciary at every level, in a democracy cannot be doubted. The need of an effective mechanism for the enforcement of judicial accountability, when needed, is a felt need and must be accepted.The method by which judges are selected has become a matter of considerable concern for the citizens of our state. Although judicial elections may always has been important and vital process, the selection process is now coming under particular scrutiny. Some believe that although imperfect, the process in place works well enough to need only minor adjustments; others claim that a major overhaul, even scrapping, of the system is necessary. Certainly attention to the issue is warranted: The provisions in place for judicial accountability all threatened by the spread and deepening of problems that, if left unattended, will erode the public’s confidence in our judiciary.Objective —- A democracy is highlighted by the fact that each and every part of it is accountable to each other. In this situation, an independant judiciary which is the backbone of the efficient functioning of the democracy in India has come under a lot of scrutiny.  How far do we go to ensure the independance of judiciary when transparency is the shrill and persistent demand of the Time. The judiciary – especially the higher judiciary – has put itself up on Cloud Nine, wrapping itself in a cloak of inviolabilityHow are Judges appointed? Why are they appointed? What are their short-comings? How are these dealt with?These are some questions, the answers of which we would endeavour to reach analysing the various relevant provisions of The Constitution Of India.

Main Text —-

Appointment of Judges—   

The High Court judges are appointed by the president after consulting the chief justice of India, the governor of the state concerned and, in case of appointment of a judge other than the chief justice, the chief justice of the high court to which the appointment is to be made as provided by the article 217(1).

Every judge of the supreme court shall be appointed by the president after consultation with such of the judges of the supreme court and of the high court’s as the president may deem necessary for the purpose as laid down under article 124(2).

The words “appointed by the government in consultation with the Chief Justice” in the Constitution were interpreted as “appointed by the government on the advice of the Chief Justice” in the various judgments by the Supreme Court as cited:-

S. P Gupta—-

A seven Judges Bench of Supreme Court extensively considered the issues of Independence of Judiciary in relation to the appointment and transfer of Judges, the issue of appointment of the Additional Judges of the High Court, the issue of the privilege of the Government against disclosure of State documents and the scope of judicial review of the powers exercised by the President.

While deciding the issue of the locus standi of the petitioning lawyers who had challenged the Circular of the Law Minister and short-term extensions of Additional Judges on ground of attack on the independence of the judiciary, Justice P.N. Bhagwati while upholding their right to do so held that where the effected persons are really helpless, the Supreme Court will not insist on a regular writ petition to be filed by the public spirited individual espousing their cause. The Court will readily respond even to a letter addressed by said individual espousing the public cause.

A bunch of cases were decided together in the present case which were raised in two batches of writ petitions filed in different High Courts which were transferred under Article 139-A to the Supreme Court since they raised common issues of great constitutional importance. One writ was also filed in the Supreme Court. Several more related issues were raised and discussed during the hearing. Each of the Judges delivered a separate judgment.

Supreme Court Advocates-on-Record Association Vs. Union of India

This case directed to constitute a Bench of nine Judges to examine the two questions referred therein, namely, the position of the Chief Justice of India with reference to primacy, and justiciability of fixation primacy, and justiciability of fixation of Judge strength.

Impeachment—-

Removal of judges can be done through an impeachment procedures provisioned in the article 124 hereinafter stated as -:

Article 124 (4) of Indian Constitution: A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.

But the practical problems faced during the impeachment of any judge has been highlighted in the following instances.

The first ever impeachment—-.

Justice V. Ramaswami

The first-ever impeachment motion against a SC judge, Justice V. Ramaswami, was signed by 108 MPs in 1991. A year later, an inquiry found Ramaswami “guilty of willful and gross misuses of office… “While serving as the Chief Justice of the Punjab and Haryana High Court”. Ramaswami survived the impeachment process as Parliament got divided along regional lines, southern MPs strongly supported him. Only 196 members of Parliament, less than the required two-thirds, voted for his ouster.

Justice M.M. Punchi   

This charge sheet was prepared by the Committee on Judicial Accountability in 1998, when Justice Punchhi was a judge of the Supreme Court of India. It was signed by 25 MPs of Rajya Sabha. However, before it could get the signature of the requisite number of 50 MPs of Rajya Sabha, Justice Punchhi was appointed Chief Justice of India. After this, it became virtually impossible to get the Notice of Motion signed by any MPs. Consequently, Notice of Motion could not be presented to the Speaker. The imp lesson of this exercise was that it is very difficult to get the MPs sign the impeachment motion unless three conditions are satisfied. Firstly, the charges must be very serious; secondly they must be provable by documentary evidence which is annexed to the Notice of Motion and finally, the charges must have been given substantial publicity in the media.

In the absence of all the three conditions been satisfied, MPs are afraid and reluctant to sign a charge sheet against a sitting judge. It is normally exceedingly difficult to get documentary evidence to prove charge against sitting judge, particularly in the absence of a statutory investigation by an agency having powers of investigation. Moreover, the bulk of the main stream media is afraid to publicise charges against the sitting judge for fear of contempt. In Ramaswami’s case, the above three conditions were satisfied. Documentary evidence was available against Ramaswami because of the report of the Accountant General who audited the purchases made by Ramaswami as Chief Justice of Punjab and Haryana High Court. This is why, impeachment of judges, however corrupt they might be, is not a practical remedy in discipling them.

Investigation—-

Free and fair investigation is one of the basic pre-requisite of a free democracy. In consonance with this principle, the free and fair investigation of judiciary has become of an immense significance in contributing to the public faith in the effectiveness and impartiality in of the judiciary.

Justice K.Veeraswamy the then Chief Justice of Madras High Court was charged for possession of assets disproportionate to his known sources of income and a case was filed against him by the CBI under the Prevention of Corruption Act. The High Court of Madras dismissed his Petition for quashing of the Case against him and referred the matter to the Supreme Court for deciding certain questions of law. The Supreme Court while deciding the case against the delinquent Judge laid down strict guidelines to protect the independence of Judiciary according to which no F.I.R. can be registered against a Judge or Chief Justice of the High Court, or a Judge of the Supreme Court without the sanction of the Chief Justice of India in the matter. It was held that the Supreme Court is not a court of limited jurisdiction of only dispute settling, and that the court has been a law maker and it is the courts responsibility and duty to apply the existing law in a form more conducive to the independence of the judiciary. It was also said that any complaint against a Judge and its investigation by the CBI, if given publicity will have a far reaching impact on the judge and the litigant public therefore there is need of a judicious use of taking action under the Prevention of Corruption Act.

Right to Information & The judiciary—-

There was a time when the Courts in India, particularly the Supreme Court waxed eloquent about the “Right to Information”, being a part of the Constitutionally enshrined right to speech and expression. It was on the basis that the Right to Information is a fundamental right of people, that the Court ordered that even candidates contesting elections would be obligated to publicly disclose information about their criminal antecedents and their income and assets etc. Yet, though the courts general pronouncements on the right to information have been very liberal, it’s practices have often not been in conformity with the declared right. The double standards of the Courts on Right to Information have become even more obvious after the Right to Information Act has come into force. Though the Act clearly applies to Courts which are obviously included in the definition of Public Authorities, most High Courts did not even appoint Public Information Officers (PIOs) even months after the Act came into force. The Supreme Court has recommended to the government that so far as the Supreme Court is concerned, the decision of the Registrar General of the Court should be final and not subject to any independent appeal to the Central Information Commission. They have further recommended that the Chief Justice should have the unfettered right to interdict the disclosure of any information, which in his opinion, might compromise the independence of the Judiciary. The Chief Justice has already gone on record to say that even the disclosure of income and assets by judges or the formation of any independent disciplinary authority over judges, would compromise the independence of the judiciary. Going by this, it is obvious that no information about complaints against judges or about their incomes and assets would be available under the Right to Information.

Conclusion

Middle class Indians love their Judiciary.If someone were to draw up a list of institutions that they still believe in, I suspect only two would qualify — the Indian Army and the judiciary. If soldiers protect the nation’s physical well-being, the courts are the gatekeepers of its conscience. And we hate our politicians so reflexively that in any battle between the government and the judiciary, even if we don’t quite follow the contours of the debate, we cheer the courts on.

Small wonder then that we blindly support every attempt by the judiciary to insulate itself from external control. This is because we believe in the independence of the judiciary.

But should this independence mean freedom from accountability?

It may be a worn-out cliché, but after all these years, it’s a question still in search of an answer: who will judge the judges?

Recently the cabinet approved a Bill to amend the Judges Inquiry Act and to create a National Judicial Council that will examine all complaints of corruption and misdemeanours against judges. It has been sold as an example

of cleaning up the system and making it more transparent. But other than some stray comments by a handful of lawyers, no one has dared question the new terms by which India’s judges will judge themselves. There is going to be a setting up of a judicial council.It is to be made up of five senior judges of the Supreme Court, who will handle complaints related to the Supreme Court. Three Supreme Court judges will be assisted by two chief justices of the high courts for all other cases of corruption.

In other words, the judiciary will remain answerable only to itself.

Then, there are the omissions in the new Bill: the Chief Justice of India is entirely exempt from the scrutiny of the judicial council and the council’s powers will not extend to complaints against retired judges.

But for the short comings of the composition of the commission it may be very easily said that it is an absolute necessity to put in place a transparent system for selecting judges for appointment. They should also have an investigative machinery at their disposal, through which they can evaluate complaints against judges and proposed candidates investigated.  Such an institution is more likely to result in the selection of proper candidates and would introduce at least a modicum of urgently needed accountability in the judiciary. So maybe we can have a way of treating corruption in higher judiciary. Such measures have to be

institutionalised. And they can be only institutionalised without damaging the general

credibility of the judiciary as a body by having in place (with almost immediate

effect) an office called the office of “Judicial Ombudsman”. I believe this is the only way in whic h we can accommodate the need for keeping

clean and bright the image of our High Judiciary.

Once people know that legitimate complaints are being entertained in confidence,

they will be made to the authority concerned in confidence. And once they see

something is done we will no longer have to see the sorry spectacle of

scandalous and un-substantiated allegations being made openly in the press

about individual Judges.

However, one must appreciate that the immunities provided to ensure judicial independence are intended for the benefit of the litigants in particular and the citizens in general. Therefore it is also acknowledged that judicial accountability if stretched too far can seriously harm judicial independence and thus it is essential that we strike the right balance between the two. Relying on the strong tradition of sharing of ideas and experiences amongst the judiciary across the commonwealth is perhaps one of the optimum methods of arriving at such a balance.

So, it becomes even more imperative that the men and women we trust so implicitly should not be scared of our collective judgment.

Explaining the decision to drop the archaic and colonial prefix of ‘Your Lordship’ from the court rulebook, India’s Chief Justice famously said, “The Lord is only one and he is God above all of us. I am not God, judges are not gods.”

Let’s take that image further. Only God is above the law. All human beings — even those we admire and respect — must be held accountable.

And finally, judges are as human as you and me

Mardia Chemicals V Idbi –case Study , Onset of Securitization in India

July 11th, 2009 at 06:21pm Under Appeals and Writs

 

Mardia Chemicals v IDBI case study

Facts of the case:

In a notice dated July 24, 2002 to Mardia Chemicals Ltd., the Industrial Development Bank of India (for short `the IDBI’) under Section 13 of the Ordinance, then in force, required it to pay the amount of arrears indicated in the notice within 60 days, failing which the IDBI as a secured creditor would be entitled to enforce the security interest without intervention of the court or Tribunal, taking recourse to all or any of the measures contained in sub-section (4) of Section 13 namely, by taking over possession and/or management of the secured assets. The petitioner was also required not to transfer by way of sale, lease or otherwise any of the secured assets. Similar notices were issued by other financial institutions and banks under the provisions of Section 13 of the Ordinance/Act to different parties who filed petitions in different High Courts.

This was joined with various writ petitions in various High Courts challenging the validity of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.

 

Issues

 

Issue 1: Whether it is open to challenge the statute on the ground that it was not necessary to enact it in the prevailing background particularly when another statute was already in operation

 

It was contended on behalf of the petitioners that the Recovery of Debts Due to Banks and Financial Institutions Act 1993 was enough to meet the challenge posed by NPAs and the present enactment was not necessary.

It is open to question in determining the Constitutional validity of a statute if it is at all necessary for the Court to enter into the necessity of a statute. The Supreme Court has held in the past that that

“The Parliament and Legislatures composed of as they are of the Representatives of the people are supposed to be aware of the needs of the people and what are good or bad for them. The Court cannot sit over the judgment of their wisdom…A law made by the Parliament or State legislature can be struck down on two grounds alone (1) lack of legislative competence,(2)violation of any Constitutional rights”[1]

The Court has recently held in BALCO Employees Union v Union of India[2]) that the proper forum for discussing a policy aspect is the parliament and not the Court.

So in view of the earlier pronouncements of the Court it is clear that the required enquiry is whether the statute is constitutional .Any discussion as to the whether a statute is necessary specially vis-avis another Act whose vires is not a issue in the present case was unnecessary. Therefore the Court refused to entertain the argument.

 

Issue II:

Whether the terms or existing rights under the contract entered into by two private parties could be amended by the provisions of law providing certain powers in one sided manner in favour of one of the parties to the contract

 

The argument raised on behalf of many petitioners was that existing rights of private parties under a contract cannot be interfered with, more particularly putting one party to an advantageous position over the other. For example, in the present case, in a matter of private contract between the borrower and the financing bank or institution through impugned legislation rights of the borrowers have been curtailed and enforcement of secured assets has been provided for without intervention of the court and above all depriving them the remedy available under the law by approaching to the civil court.

 

The Appellants are silent on where exactly are they locating the legal validity of their argument. It has been pointed out by the Honorable Supreme Court that unlike Art 1 s.10 of the US Constitution there is no bar to prospective invalidation of a contract in India and hence such a law is perfectly valid.[3]

Indeed the very right to property stand deleted from the Constitution as a fundamental right by the 44th amendment and exists merely as a Constitutional right. Indeed even when the right was existent in part III the Courts have held that absolute freedom of contract as expounded in the doctrine of leissez fare is obsolete.[4]

The Appellants also cannot locate the right under4 right to Art 19(1)(g) and Art 298 .The Supreme Court has held that these articles are subject to reasonable restrictions and that what is reasonable is to be interpreted from the point of view of public interest no matter how harsh it is on the interest of the person.[5]

In view of these case laws it is difficult to say where does the appellants locate their argument .The counsels for the respondents however has not entered into the position of freedom of contract or right to trade in the Constitution but has pointed out that similar argument has been raised in a different context, namely statutes giving relief to agricultural borrowers and it has been repeatedly rejected.

Some case laws may be mentioned here. ., Ramaswamy Aiyengar v. Kailasa[6] Thevar and Dahya Lala v. Rasul Mohd. Abdul Rahim,[7], validity of the Madras Agriculturalist’s Relief Act and Bombay Tenancy Act, 1939 were upheld respectively .Under these two statutes relief was given to the debtors who were agriculturists as a class, by sealing down their debts. The validity of the Act was upheld though it affected the individual interest of creditors.

Similar provisions were upheld in Swami Motor Transports Pvt. Ltd. v. Shri Sankraswamigal Mutt[8] and Raval & Co. v. K.G. Ramachandran[9],: Kanshi Ram v. Lachhman[10], Pathumma v. State of Kerala[11], Fatehchand Himmatlal v. State of Maharashtra[12] etc.

 

Issue III Whether Section 13 of the Act ultra vires of the Constitution

The first line of attack has been the Constitutionality of section 13 itself.

 

It has been argued that before applying the power u/s.13 certain determination of facts are necessary, namely, whether a person to whom notice is given is under a liability to pay as also the question of extent of the liability etc. Further the questions pertaining to law of limitation and bar under consortium agreements, claim of set off/counter claim, creditors defaults as bailee or its failure to disburse the credit in time, the chargeability of penal interest or compound interest or non-appropriation of amount already paid and so on and so forth, all these questions need to be decided. So it was argued with case laws that shall be discussed in the main project) that in such a case a lis exists and that power to decide a lis is a judicial or quasi-judicial power and not purely an administrative power. Therefore a suitable forum has to be provided to decide all such disputes at an appropriate stage.[13]

If such a forum is not provided then the statutory provision becomes arbitrary, procedurally and substantively unfair.

This is a factually faulty argument. S.13 do not exclude any judicial forum, but merely provides that a judicial remedy can be availed only after the secured creditor has exercised his powers under s.13 (4). This is perfectly valid. Many statutes has provisions under which a forum can be availed after the aggrieved party has engaged self help.

 

 

It was also pointed out that the provisions under s.13 create certain practical difficulties that might give rise to grave miscarriges of justice. For example Section 2(f) of the Act to indicate that the definition of the word `borrower’ covers even the guarantor. Under section 135 of the Contract Act a guarantor is discharged of his obligation under certain circumstances. Now suppose a discharged guaranteer received a notice under Section 13(2) of the Act in view of the bar of Section 34 to file a suit in the Civil Court, it is not possible for him to approach the Court to show and establish that he is a discharged guarantor. Hence notice under Section 13(2) is bad[14].

These concerns have been taken care of by s.35 of the Securitization Act that lays down that the provision of the Act overrides all other laws.

 

Finally it was pointed out that under s.13 read with s.34 the borrower has no access to Court before the lender exercises the powers u/s.13 (4) this exposes him to arbitrary even, fraudulent practices by the lender. In defense of this section it was pointed out that u/s 9 of the Rules the asset cannot be sold for 60 days, it is open to the borrower to approach the Tribunal within that period.

 

The Court partially accepted the argument of the plaintiffs and added two riders to s.13

Firstly it held that the lender is under a duty to disclose the reasons for the reason for not accepting the objections or points raised in reply to the notice served upon them before proceeding to take measures under sub-section (4) of Section 13.

Secondly the Court drew an analogy with English mortgage and pointed out that enforcement proceedings under an English mortgage can be challenged on the ground of fraud. Such provisions are applicable to this section as well.[15]

 

Another aspect the Court has ignored is that it is a general rule of statutory construction that a statute must be read in context and pari materia.[16]

S.13 of the present Act is Pari materia with s.29 of the State Financial Corporation Act 1951.

The Constitutional vires of this section has been repeatedly challenges Art 300A, 21, and 14 on substantially the same grounds namely that it gives no right to appeal. Though the case has never reached the Supreme Court a number of High Courts have deliberated on the issue. The Courts have persistently held that the statute itself discloses a definite policy and objective and the power conferred under s.29 is to achieve the policy namely speedy recovery of the dues.[17]

 

Issue IV: Whether the requirement of 75% of the amount due before appeal to the DRT is onerous and therefore Section 17 of the Act is ultra vires to the Constitution .

 

Section 17 of the Act s titled right to appeal. It requires that the borrower deposit 75% of the sum before approaching the DRT.This sum however may be waived by the DRT.

An appeal is defined by the Black’s Law Dictionary[18] as “ A proceeding undertaken to have a decision reconsidered by bringing it to a higher authority , esp the submission of a lower court court for review and possible reversal.” The BBC English Dictionary on the other hand defines an appeal to be “a serious and urgent request”.

The wording of section 17 is misleading because what it provides is a right to approach the Court at first instance and not merely as an appeal so it can be said to be an appeal in only very general sense.

Any aggrieved person including the borrower can prefer the Appeal. If it is the borrower who is making the Appeal then he has to deposit 75% of the borrowed to amount claimed in the notice under 13(2)before the DRT , otherwise the claim would not be entertained.

It was argued on behalf of the Appellants that the deposit of 75% of the amount makes the provision onerous and arbitrary.

The Respondents countered by citing two sets of case laws.

The first set lays down that right to Appeal is neither an absolute right nor an ingredient of natural justice which principles are to be followed in judicial and quasi-judicial proceedings. A right of appeal is a statutory right and it can be circumscribed by the conditions. [19] The other cases lay down that pre-deposit of amount is perfectly constitutional and not arbitrary[20].

The respondents also pointed out that as per RK Garg[21] as well as in other cases [22]after that

“there is always a presumption in favour of the constitutionality of a statute …. This rule is based on the assumption, judicially recognized and accepted, that the legislature understands and correctly appreciates the needs of its own people, its law are directed to problems made manifest by experience … Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and error method … There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid.”

The Court however did not accept these arguments and struck down section 17(2) as ultra-virews to the Constitution being arbitrary.

The reasoning of the Court was the following

1. Under s.13 (2) the borrower does not get any pre decisional hearing

2. There should be no pre-supposition that the borrower is a willful defaulter.

In order to make the legislation fair the provision was held to be arbitrary and struck down.

 

Rest of the Act was upheld

 

Appraisal of the judgment

The Court upheld section 13. So it can be argued that the main structure of the statute has survived.

The judgment however suffers from a large number of deficiencies. These can be enumerated in terms of what the judgment does lay down and what the judgment does not discuss but should have done.

 

Relationship with winding up

There is a fundamental tension between the Act and Companies Act.

Under the Companies Act all the creditors and not merely the secured creditor can file a petition for winding up.(s.439 of the Co Act).This the creditors can do if a)the Company is indebted to a sum of more than 1lakh rupees and it has pay the sum or secure or compound for it to the reasonable satisfaction of the creditor within three weeks of the submission of demand ,b) if an execution of a decree remains unsatisfied ,c) it is proved to the satisfaction of the Tribunal that the Company is unable to pay its debts.(s.433).

However the right of the creditors to wind up a Company is limited by the case laws like Tata Iron Steel v Micro Forge (India)[23] that lays down that winding up is at the discretion of the Tribunal and a host of factors like whether the inability is temporary, the Company has grown consistently , there is a temporary cash crunch.etc.

But on the other hand u/s.13 of Securitization Act the Bank can straightaway enforce the security interest without regards to any of these criterion. Such enforcement in all probability shall force the Company to become insolvent.

So it seems there is a basic difference in philosophy behind the two statutes. While the Co Act strives to put the interest of the Company, and that of the economy in perpetuation of Corporations the other Act gives preference to the rights of the secured creditors above that of the Company.

The conflict is more than that of principle. Enforcement of security interests can actually reduce the value of other assets of the Company that is not with secured creditors. So the unsecured creditors and other persons who are to receive their dues had the Company being wound up stands to lose even more when a section 13 is brought into use. This is against the global trend has been to pay special attention to the interest of the unsecured creditors .The Enterprises Act of the UK engages in what is known as ring fencing that is keeping aside a certain amount of money for the benefit of the unsecured creditors.

On the basis of this can the Act be said to be arbitrary? The answer can be only guessed because the Court did not discuss this issue at all. This perhaps leaves a scope for the Act to be challenged in future on this ground.

 

The only duty that the secured creditor has is towards the workmen. Section 13(9) of the Act lays down that a secured creditor has the option of enforcing his security interests either under this Act or under s.529 of the Companies Act.

Incase he chooses to go by this Act he shall have to pay the workman’s dues as under s.529A of the Companies Act.

Then again unders.13 the secured creditor is not under a duty to pay not all the employees but only the workmen.

 

.

 

Under section 17 any person who is aggrieved by the measures taken by the lender can approach the DRT. Exactly who these aggrieved persons can be have not been defined under the Act. The Uniform Non-Judicial Foreclosure Act of the USA defines an “aggrieved party” as a party entitled to a remedy and includes the debtor, the secured creditor, a person having an interest in the real property that will be affected by 16 foreclosures, and a purchaser or prospective purchaser at a foreclosure.

 

It is submitted that the Indian law lacking that sort of precision leaves a space for intense and competitive litigation. The moment the banks make use of the provisions under s.13(4) there will be a flurry of litigation by the unsecured creditors, the workers and a host of other people with the active blessing of the management.

Indeed the process of litigation can go even further. Can “measures taken under s.13 (4) “ imply measures not taken under the said section when it should have been taken? This is not improbable in view of the fact that the Supreme Court has entertained a petition by Common Cause ( a NGO ) that has challenged a loan to S Kumar’s Shree Maheswar Hydro Power Corporation (SMHPCL) in Madhya Pradesh by LIC in spite of repeated default by the said Company.

It should be noted that the project has remained a point of contention between civil society groups and the Company. This controversial project has seen a pitched battle between the Narmada Bachao Andolan (NBA) and its promoters, ending with the NBA almost being gagged by the courts. It is not to accuse the Common Cause of any oblique motive but to point out that if somehow the Court system permits issues those are political to be settled by the Act.[24]

 

The Court can however be excused for not dealing with these issues as the Mardia Chemicals arguably did not raise them. But less easy is to accept certain innovations to the Act that the Court has done.

 

The addition of extra-statutory requirements

It has held that the lender is supposed to furnish the borrower the reason as to why his objections are not being acceded to and these reasons have to show an application of mind on part of the lender. It is difficult to understand the rationale form such action. After the entire lender is claiming the money after the fulfillment of certain conditions as a matter of right. Why an exercise of right must be accompanied by a rider?

The Court has added that this reason given shall not endow the borrower with the right to approach the DRT, at that stage. But can this be a ground for approaching the DRT at a later stage?. With approaching the DRT being made easier this extra statutory requirement imported by the Court shall only give another cause of action and more room for delay.

 

 

 

Wrong understanding of arbitrariness

The requirement of deposit of 75% u/s.17 of the Act was struck down because it was deemed to be onerous and arbitrary.The author considers this a failure on part of the respondents who did not point out why the Act should not be deemed to be arbitrary but instead harped on right to appeal and how economic legislations can afford to be a little inequitable.

This raises the question what is arbitray? It has ot been defined anywhere but it is probably safe to go by the definition provided by the Supreme Court in Srilekha Vidyarthi[25]..arbitrary is “something from which no discernible principle can be found.”

 

To see if one can find any discernible principle behind it one has to look into the provisions of the Act.

 

The powers unders.13 can be exercised under the following conditions

 

 

1. Before taking action under the Act the assets shall have to be classified as NPAs This is done under RBI guidelines.

2. Unders.s.13 (12) the aforesaid actions can be exercised only as per prescribed by the Union Government by Rule.

3. Under s.19 the banker is liable to pay compensation for wrongful possession

4. The debtor can file a writ under ART 226 if the bank is in Public sector( most of the major Banks are)

5. Detailed rules are laid down for giving notice, taking possession, ( the Court has also added to it)

6. As per RBI guidelines legal actions can be taken only in case of willful default.

7. The Court itself has empowered the borrower to approach the civil Court in case of any fraud in sale. Any way sale of assets under s.29 of the SFC Act is guided by the rules laid down in by the Supreme Court –s.13 of the Securitization Act is pari materia.

 

It is submitted that in view of all these safeguards it is highly unlikely that the powers unders.13 can be misused.

 

So why shall the borrower go to the DRT at all? Experience suggests that majority of the cases in the DRT challenge the loan document itself and often simply to delay the process rather than actually win the case. Under the Indian law the prohibition against unconscionable contracts have been imported by the Supreme Court[26]. This gives the borrower the chance to challenge the loan document as having signed under unequal bargaining power, having irrational clauses etc and prolong the judicial process..

There can be exceptions to this rule but then the DRT is empowered to waive the fees and if a probable case can be suggested then the DRT is most likely to do so. The presence of dilatory litigation is a well-known feature of the Indian legal system and it was precisely this defect that the legislature sought to remedy.[27] The Court by overturning the requirement of predeposit has more or less returned everything to square one.

Certain assumptions that the Court makes are also questionable. For example there has been a continuous stress on making the legislation balanced.

. In commercial arena there are many laws that are tilted to one party, mention may be made of the Consumer Protection Act, Rent Legislation, Industrial Disputes Act. These Acts are not arbitrary even when they are not equal benefit to both the parties, because there is no duty that legislation shall have to be balanced. The scrutiny is on a) public purpose, b) objective of the Act, c) legislative intent. The Court however was not directed to the end partly because of the faulty strategy of the respondents who insisted on cases that said pre-deposit is not arbitrary rather that this line of argument. This shall be elaborated in the project.

As pointed out in the cases involving s.29 of SFC Act that special privilege given to the Corporation is not arbitrary but for the purpose of achieving the objectives of the Act”. Here the object of the Act was very clear to avoid vexatious litigation. Striking down s.17 that object seems to have been defeated.

 

 

Conclusion -The way forward

It now seems certain that the Securitization Act is to be amended. This is in view of the fact that the Basel II provisions shall come into force by 2006, which would require the banks to make hefty provisions for credit risks apart from the market and operational risks Bankers feel that the credit risk in India is still high as per the global standards due to inadequate laws for recovery of the NPAs and lack of information sharing data base among bankers on the risk profile of the borrowers.

 

However it is not clear how the Government can go around the Supreme Court stricture on predeposit.

The Government can take two-pronged approach.

Firstly it can amend s.17. there are several options

It can reduce the amount, to say 25% of the amount due as recommended by the Bankers.[28]. It can make the debtor pay 75% of the pending amount rather than 75% of the interest rather than the whole loan as had been suggested by the Small Industries lobby some time ago.

The other way is to amend the DRT Act that makes putting a stay order against the enforcement of the security interest difficult, indeed impossible without the presence of a prima facie case. It seems this is the approach the Government is rather inclined to take.[29]

 

It is submitted the second approach is the most feasible one. The reason why the Court rejected the amount of predeposit was that the debtor may not be in a position to pay after the secured creditor has enforced his interest’s – a 25% predeposit may be held to be just as onerous by the Court .

 

The amendment should not only clear the air for the Banks but should also clear certain othyer ambiguities in the Act that has been mentioned like the broad definition of “. “aggrieved persons”, the locus standi of then Unions and the unsecured creditor before the DRT after the security interest under s.13 is enforced.

 

The judgment in this case has taken off the pressure that the laon defaulters, but the sake of the economy and development certain pressure has to exist .It remains to be seen how the Government brings some teeth into the Act without compromising on the fairness to the debtor.

 

[1] State of Andhra Pradesh v Mcdowell AIR 1996 SC 1627 Para 45, 47A

[2] AIR 2002 SC 350

[3] Raghubir Dayal v Union of India AIR 1962 SC 263

[4] YA Marmade v Authority under Minimum Wages Act (1972) 2 SCC 108

[5] Krishan Kakkanth v Government of Kerala (1997) 9 SCC 495

[6] 1951 SCR, 292

[7] 1963(3) SCR, 1

[8] 1963 (Supp.)1 SCR p. 282,

[9] 1974(1) SCC p. 424.

[10] 2001(5) SCC 546

[11] 1978(2) SCC 1

[12] 1977(2) SCC p. 670

[13] Kihoto Hollohan v. Zachillhu & Ors1992 Suppl. (2) SCC p. 651 and Associated Cement Companies Ltd v. P.N. Sharma(1965(2) SCR p. 366 at pages 386-87).

[14] Case laws support this view.See Mafatlal Industries Ltd. and Ors. v. Union of India and Ors. 1997(5) SCC p. 536 at page 735

[15] Adams v. Scott, (1859) 7 WR (Eng.) 213 (Z49)

[16] This logic has been accepted by the See RS Raghunath v State of Karnataka AIR 1992 SC 81, Union of India v Elphinstone Spinning and Weaving Co Ltd I 2001 (1) JT SC 536

[17] K Surendranathan v Kerala Financial Corporation AIR 1988 Ker 330

[18] 7th edn ,p 94

[19], Vijay Prakash D. Mehta and Anr. v. Collector of Customs (Preventive) Bombay 1988(4) SCC p. 402

[20] Shyam Kishore & Ors. v. Municipal Corporation of Delhi, 1993(1) SCC p. 22

[21]R.K. Garg v. Union of India (1981) 4 SCC p. 675

[22] Bhavesh D. Parish & Ors. v. Union of India & Anr., 2000(5) SCC 471 at 486 , also seeSrinivas Enterprises v. Union of India 1980(4) SCC p. 507 at 513-514, and Jalan Trading v. Union of India. 1967(1) SCR p. 15 at p. 36, the Collector of Customs, Madras v. Nathella Samapathu Chetty, 1962(3) SCR p. 786 at p. 829-30,

 

[23] CLC 20001669(Guj HC)

[24]Fine-tuning The SARFAESI Act www.fecolumnists.expressindia.com/full_column.php?content_id=42502 –> last visited 4.8.04

[25] Srilekha Vidyarthi v State of Uttar Pradesh (1991) 1SCC 912

[26] LIC v Consumer Education Research Center (1995) 5 SCC 482

[27] Even the Court System accepts the presence of delay tactics and over the years have taken a strong exception to it.

In Mahmad Manzoor Alam V. State of Bihar & Others {PLJR 2003(2), 148} the Hon’ble High Court of Patna has dismissed the petition with costs on the ground that the petitioner who defaulted in repayment of loan, resorted to legal engineering to avoid the liability of repayment. The court observed that the debts, if not pad, contribute to the deficit financing of the nation’s planned economy and affects the persons also who have nothing to do with these loans and who get lined up unconsciously for making up these bad debts by paying taxes, direct or indirect.

[28] IBA seeks deterrent to combat defaulters, www.ahmedabad.com/index/viewarticle/article/14480/sect last viewes 23.7.04

[29] Poornima Mohandas, Budget promise to amend Securitisation, DRT Acts — Banks breathe easy on NPAs, ,www.thehindubusinessline.com/bline/2004/07/10/stories/2004071000760800.htm –> last viewes 23.7.04

 

The Tribunalization of Justice: the Constitutional Validity of the National Tax Tribunal

July 11th, 2009 at 12:20pm Under Appeals and Writs

Introduction:

The passing of the Forty Second Amendment to the Constitution of India in 1976, tribunals became key dramatis personae in the justice delivery system. In order to achieve the objectives of the amendment, which was to ensure speedy disposal of cases, an array of tribunals were set up. These included the Administrative Tribunals, the Rent Control Tribunals and also Tax Tribunals. The constitution and functioning of these tribunals have been controversial and intensely debated. The Constitution of the National Tax Tribunals, through the passing of the National Tax Tribunal Act, 2005 in pursuance of Article 323-B (1) (a). The Act provides a machinery for the adjudication by the National Tax Tribunal of disputes with respect to levy, assessment, collection and enforcement of direct taxes and also to provide for the adjudication by that Tribunal of disputes with respect to the determination of the rates of duties of customs and central excise on goods and the valuation of goods for the purposes of assessment of such duties as well as in matters relating to levy of tax on service. The Act is bound to raise constitutional issues of immense significance as to validity of conferral of the power and functions of the Tribunal, the exercise of such powers and functions, and the concept of judicial review under the Constitution.

The Edict Machinery of Tribunals in India:

The concept and the constitution and functioning of the Tribunals established under Administrative Tribunals Act. The exclusive jurisdiction hitherto have the benefit of by the Tribunals in service matter and distinguish the High Courts was put at stop partially by the Supreme Court of India in its landmark judgment in ‘L.Chandra Kumar Vs.Union of India and others. The Supreme Court diversified and re-distributed the jurisdiction of service matters etc in between these Tribunals for which purpose they have been established and High Courts as per the spirit of the Constitutional mandate enunciated by the framers of the Constitution, keeping in

view the ‘Basic Structure Theory’ and the provisions contained under Article 226,227, 32 and Articles 323 A and 323 B of the Constitution of India.

The salient feature of our Constitutional system that whenever new legislations or enactments are passed, either by Parliament or Legislative Assemblies, it is generally found that, they, being tested in courts of law, either on their validity as a whole or certain provisions of such acts if they are offending any provisions of Constitution, any public policy or established legal principles. Therefore, no exception was shown to the ‘Administrative Tribunals Act, 1985, enacted in terms of Article 323 –A of the Constitution of India. Consequent upon the establishment of service Tribunals in the country ‘under the Administrative Tribunals Act, 1985, a string of litigation had erupted before the High Courts of several States and also in Supreme Court, questioning the validity of certain provisions of the Act and also ultra vires of Articles 323-A and 323-B. Firstly, the ‘Apex Court’ by a Five Judge Constitution Bench, headed by the then Hon’ble Chief Justice, Justice P.N. Bhagwati, examined the constitutional validity of Article 323-A and its provisions in S.P. Sampath Kumar Vs. Union of India and others3 said Bench while upholding the validity of Article 323-A, held that the Service Tribunals created under Article 323-A are substitutes to the High Courts and the exclusion of the jurisdiction of High Courts is legal. Thereafter, a seven Judge Constitution Bench of the Supreme Court in ‘L. Chandra Kumar case’ while dealing with power of judicial review vested in High Courts and Supreme Court under Articles 226,227 and 32 respectively vis-a-vis Articles 323-A and 323-B not only deviated from the earlier discussion of the Supreme Court in ‘S.P. Sampath Kumar’s case’, but also held that, the Tribunals are supplementary in their role and the power of ‘Judicial Review’ vested in High Courts and Supreme Court under Articles 226, 227 and 32 is an inviolable basic structure of the Constitution and struck down clause 2(d) of Article 323-A and clause 3(d) of Article 323-B of the Constitution of India to the extent they exclude the jurisdiction of High Courts and Supreme Court under Articles 226/227 and 32 as unconstitutional and also Section 28 of the

‘Administrative Tribunals Act, 1985′ which excludes the jurisdiction of High Courts. The Supreme Court in the above case further held that: “The Tribunals created under Article 323-A and 323-B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a ‘Division Bench’ of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunal will, nevertheless, continue to act like Courts of ‘first instance’ in respect of the areas of law for which they have been constituted. It will not, therefore, be open or litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal.” In the same case, when an argument was advanced for the superintendence over the Tribunals by the concerned High Courts, the Supreme Court categorically held as follows: “To this end, it is suggested that the Tribunals be made subject to the supervisory jurisdiction of the High Court within whose territorial jurisdiction they fall. We are, however, of the view that this may not be the best way of solving the problem. We do not think that our Constitutional scheme requires that all adjudicating bodies which fall within the territorial jurisdiction of the High Courts should be subject to their supervisory jurisdiction. If the idea is to divest the High Courts of their onerous burdens, then adding to their supervisory functions cannot in any manner, be of assistance to them”. Therefore, in view of the law laid down by the Supreme Court in ‘Chandra Kumar’s case’(emphasis furnished supra) this Tribunal is now functioning as a ‘Court of first instance’ like any other Tribunal in the country established under Article 323-A of the Constitution of India. It is also to be noted that the ‘Judicial Review’ propounded by the Supreme court in ‘Chandra Kumar’s case cannot be treated/equated with an ‘Appeal’ in as much as the constitutional exercise by way of ‘Judicial Review’ displayed by the High Courts originated from the ‘Basic Structure Theory’ read with Articles 226 and 227 of the Constitution of India.

Appellate provisions under the direct and indirect tax enactments

Aforementioned to National Tax Tribunal, under the direct and indirect tax enactments, appeals on substantial questions of law from the decisions of tribunals such as the Income Tax Appellate Tribunal and the Customs, Excise and Service Tax Appellate Tribunal lies to the High Court.

The Income Tax Appellate Tribunal Under Section 252 of the Income Tax Act, 1961 an appellate tribunal known as Income Tax Appellate Tribunal has been set up which consists of both judicial members as well as Accountant members. This tribunal hears appeals against orders passed by the Deputy Commissioner of Appeals or the Commissioner of Appeals, as specified in Section 253 of the Act on questions of law as well as questions of fact. Under the direct tax regime, Income Tax Appellate Tribunal is the final authority as regards determination of questions of fact. Under Section 260 A of the same Act, an appeal lies to the High Court, from every order passed by the Income Tax Appellate Tribunal if the High court is satisfied that the case involves a substantial question of law. However, there is also a provision for filing further appeals to the Supreme Court from any judgment of the High Court as specified under Section 261, only if the High Court certifies that the case is fit for appeal to the Supreme Court. In cases where High Court refuses to give such certificate, the aggrieved party has an option to invoke extraordinary jurisdiction of Supreme Court through special leave petition under Article 136 of the Constitution of India. Income Tax Appellate Tribunal, High Courts and the Supreme Court have been given similar powers of hearing appeals in respect of disputes concerning wealth tax under the Wealth Tax Act, 1957. The Customs, Excise and Service Tax Appellate Tribunal Under Section 129 of the Customs Act, 1962 the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has been constituted which consists of Judicial as well as Technical Members. The Tribunal hears appeals against orders passed by the authorities mentioned in Section 129 A of the Customs Act. It also hears appeals against orders passed by the excise authorities as specified in Section 35 B of the Central Excise Act, 1944. Earlier, instead of appeal a reference used to lie regarding questions of law. An appeal lies to the High Court on a substantial question of law against an order passed by the Customs, Excise and Service Tax Appellate Tribunal, under Section 130 of the Customs Act, as substituted by the Finance Bill, 2003. Similar provision has been incorporated in respect of appeals to High Courts under the Central Excise Act, 1944. The tribunal also has appellate jurisdiction in anti-dumping matters and the Special Bench headed by the President of the tribunal hears appeals against orders passed by the designated authority in the Ministry of Commerce. The appeals under the Service Tax are also heard by the tribunal. This tribunal is the appellate authority on matters relating to classification and valuation, with the appeals lying to the Supreme Court in these matters.

The Need for Establishment of National Tax Tribunal in India:

The necessity for uniformity and certainty in the administration of tax laws (both direct and indirect tax laws), appeals or references from the orders of the Income Tax Appellate Tribunal and the Customs, Excise and Service Tax Appellate Tribunal lie with the High Courts, these Courts get flooded with such cases which need considerable time to dispose them. Due to the heavy workload of the High Courts, there is a huge backlog of tax related cases as a result of which huge revenue is blocked in such litigations. This is adversely affecting the national economy. Hence, urgent measures are required to be taken to speed up taxation matters pending

before the High Courts. It may also be noted that there are at present 21 High Courts. Many a time, decisions of the High Courts vary from each other which create uncertainty, delays and problems in the administration of tax matters. Conflict of decisions amongst various High Courts

on the same point of law have the effect of distorting uniformity and give rise to unnecessary appeals to the Supreme Court which results in further delay.

National Tax Tribunal will help in clearing the backlog and mitigating the burden that lie at the doors of High Courts. The constitution of the National Tax Tribunal would relieve the taxpayers from the burden of pursuing the tax disputes for a long period and substantially reduce the workload of different High Courts which could not concentrate and devote as much focus which the complex tax laws presently demand.

Judicial Sovereignty and the National Tax Tribunal

In the Landmark Judgments of the Court in L Chandra Kumar and Sampath Kumar that even if the Tribunals have to play a supplemental role, given the powers that they enjoy, including the power to strike down legislation as ultra vires the constitution, the NTT will have to enjoy Judicial Sovereignty as understood in the Indian constitutional context. Judicial Sovereignty in India always has been a very controversial subject. The judicial pronouncements and the scholastic opinion in this regard, point out different stages at which the independence of the judiciary will have to be assessed. Judicial Sovereignty will include the collective independence of the judiciary from the other branches of the State and also the independence of the individual judges. The first aspect relates to appointment, removal etc whereas, the second aspect relates to matters concerned with security of tenure, salaries and allowance etc. Let us take up these issues in relation to the National Tax Tribunal. The Members and the Chairperson of the National Tax Tribunal are appointed by the Central Government in accordance with the recommendation of a selection committee consisting of the Chief Justice of India or his nominee. Though the other two members in the committee are not from the judiciary, it is submitted that this is sufficient safeguard against executive fiat. In terms of the qualification also sufficient safeguards seem to have been provided. The legislation provides that all members including the Chairperson have sufficient legal qualifications and adequate experience to handle complex matters relating to tax as also maters relating to the vires or otherwise of legislations and administrative actions. More importantly, the method of removal of the member and the Chairperson also has been made sufficiently elaborate to minimize executive interference. Section 11 provides that removal and suspension can take place only in consultation with the Chief Justice and on completion of a formal enquiry. The Chairperson also has been given enough discretion to constitute the benches of the National Tax Tribunal. In terms of salaries and other benefits, the members and the Chairperson have been accorded the same status as that of High Court judges. Also of significance is the fact that these Tribunals have been vested with contempt powers under section 12 of the NTTA, 2005 in addition to certain powers of the Civil Court granted to it in section 16. The legislation also protects actions taken in good faith in the course of discharge of duties by any member, Chairperson or other employee, which also helps in maintaining judicial independence. In all it is submitted that the provisions of the enactment do indeed secure judicial sovereignty.

The Differentiation of National Tax Tribunal and High Courts in India

There is a provision in the Act that may cause adversity to tax-payers. The Act stipulates that an appeal before the NTT can be preferred only if the appellant deposits at least 25 per cent of the tax or duty payable on the basis of the order appealed against. The NTT is also given the discretion to condone this requirement. There is no such stipulation in cases that go before the

high court. Yet another distinction is that no interim order can be passed by the NTT without hearing the other party. No Tribunal constituted under 323A or 323B of the Constitution can ever

oust the jurisdiction of the high court under Articles 226/227 of the Constitution. The writ jurisdiction of the high court will continue, despite the provision that appeals from the NTT will go to the Supreme Court. The NTT will, therefore, be one more forum working along with the

High court.

The Government makes it appear that there is huge pendency before the various high courts involving fiscal disputes. The truth seems to be that the overall pendency does not exceed 30,000 cases, the maximum being around 10,000 in Mumbai and an equal number in Delhi. Probably, constitution of permanent tax benches in these two High Courts will solve the problem for revenue. The NTT will not be governed by the Civil Procedure Code, though rules of natural justice will apply.

Conclusion

There cannot be fault with the intention of the Government, to reduce the backlog of cases, in proposing the National Tax Tribunal, but the way in which the NTT has been setup raises a lot of concern. Apart from creating multiple and simultaneous structure for the resolution of tax disputes, which will obviously lead to a lot of turmoil, the NTT also faces challenges in the form of allowing Chartered Accounts to appear before it. The enactment seems to fair well in terms of securing the independence of the judiciary but fails the Constitution on account of abridging the writ jurisdiction of the High Courts in relation to the transfer of cases. This is a grave blemish that will have to be rectified. Efficiency arguments for and against the Tribunal can be analyzed or answered only if a systematic and scientific study happens in that regard. The Law Commission must come out with official statistics in this regard. More importantly, we will have to decide whether Tribunals are the best way to deliver justice in relation to tax matters or whether mere creation of exclusive tax benches in the High courts would solve the problem. Vacancies in the High Courts are not filled regularly nor is there a concerted effort at the national level to streamline procedures relating to dispose off pending disputes. The Government has not been able to come up with any realistic presentation statistics of existing tribunals nor has it explained tribunalize the tax administration for the justice further. At least in future, efforts like this, to create an alternative forum and working substitute for the Court must be backed with methodical study, more debates and comprehensive planning, in order to guarantee that they do not end up as unproductive outlay at the hands of the exchequer.

Bibliography:

1) Durga Das Basu- Shorter Constitution of India- Thirteenth Edition 2001 Wadhwa Nagpur.

2) H.M.Seervai-Constitutional Law of India: A Critical Commentary- Universal Law Publishers

3) Walter W. Brudno- Taxation in India-Harvard Law School International Program in Taxation.

4) The National Tax Tribunal Act, 2005- Bharatgazette Government of India.

5) The National Tax Tribunal (Amendment) Act, 2007- Manupatra Bare Act.

Environmental Disaster Law

July 11th, 2009 at 06:21am Under Appeals and Writs

On March 23, 1989, the supertanker Exxon Valdez pulled out of Valdez, Alaska, loaded with more than 56,000,000 gallons of crude oil. Captain Joseph Hazelwood, the Master of the vessel, had spent the day drinking with crew members. He had consumed at least eight vodka doubles and his blood alcohol level stood at .241 – more than six times the permissible level under Coast Guard regulations. Third mate Gregory Cousins was on duty beyond the limits specified by federal fatigue laws. Hazelwood, Cousins and the rest of the crew faced a night voyage through ice in Prince William Sound. Hazelwood’s intoxication was evident from the alcohol on his breath, his slurred speech (captured on audiotape) and, most of all, his actions as the ship navigated the sound.

While passing through fishing grounds, Hazelwood took the Exxon Valdez outside established shipping lanes to avoid ice. He put the vessel on automatic pilot, accelerating at Bligh Reef. Hazelwood then left the bridge in violation of Federal Pilotage Regulations. As he went below, Hazelwood gave vague instructions to the inexperienced and fatigued Cousins. Within minutes, the supertanker struck Bligh Reef, spilling 11,000,000 gallons of oil, thereby causing the largest oil spill and greatest environmental disaster at that time experienced in American history.

Following the grounding, lawsuits were filed in Alaska State and Federal Court on behalf of approximately 45,000 individuals, businesses, native corporations and local governments, seeking both compensatory and punitive damages. Most of the state court actions were ultimately removed to federal court. The Federal District Court carefully managed this litigation. It entered hundreds of orders, and the discovery master entered hundreds more. The trial plan provided for four separate phases of trial. The first three phases were to be tried to a single jury of 12 (rather than the customary six), with a unanimous verdict required. Trial proceeded as follows:

1. Phase 1 and began on May 9, 1994, 5 years after the spill, and ended on June 6, 1994. A week later, on June 13, 1994, the jury returned a verdict that both Exxon and Hazelwood had been reckless.

2. Phase IIA went to trial in June 20, 1994, to determine the lost harvest, loss price and permit valuation claims in the Prince William Sound, Kodiak, Cook Inlet, and Chignik salmon and herring fisheries. After deliberating a month (from July 11, 1994 to August 11, 1994), the jury awarded hundreds of millions in compensatory damages on these claims.

3. Phase III was tried between August 22, 1994 and August 29, 1994. In this phase, the jury was asked to decide whether Exxon and/or Hazelwood should be assessed punitive damages, and if so, in what amount. The jury returned its verdict on September 16, 1994, awarding punitive damages against Exxon in the amount of $5 billion and against and Hazelwood in the amount of $5,000.

The compensatory damage claims of all other plaintiffs, not earlier decided in Phase II of the trial, were to have been decided in Phase IV. Phase IV settled before trial, in mid-1996.

Exxon and Hazelwood filed countless post-trial motions. These motions resulted in the District Court issuing approximately 250 pages of rulings. Due to this delay, final judgment was not entered until September 24, 1996. An Amended Judgment was ultimately issued on January 30, 1997.

Appeals and cross appeals next ensued. The Ninth Circuit Court of Appeals issued its first decision on November 7, 2001. In essence, the court remanded the case to the trial judge, requesting that Judge Holland evaluate the appropriate amount of punitive damages in light of United States Supreme Court decisions, BMW and Cooper. (It should be noted that neither of these Supreme Court decisions existed at the time of the trial of the Exxon Valdez litigation.)

Ultimately, Judge Holland reluctantly reduced the jury’s punitive damage award from $5 billion to $4.5 billion. Judge Holland went on to note that interest on the judgment itself would be somewhere in the range of approximately $2.5 billion. Exxon appealed again.

On Friday, December 22, 2006, the Ninth Circuit Court of Appeals again issued decision, reducing the punitive damage award against Exxon from $4.5 billion to $2.5 billion. Exxon immediately sought en banc rehearing before the Ninth Circuit Court of Appeals. On May 23, 2007, rehearing was denied. This left Exxon with the option of a writ to the United States Supreme Court, which it did.

Incredibly, on October 29, 2007, the United States Supreme Court granted Exxon’s Writ, and has agreed to decide the propriety of the revised judgment. The case will likely be argued in during spring, 2008. One Justice, Samuel Alito, recused himself due to ownership of between $100,000 and $250,000 in Exxon stock.

Clearly, this is one of the oldest pieces of environmental disasters litigation in the country. Who would have ever imagined that following one of the largest oil spills in the world, caused by a clearly drunken Captain, over 18 years would pass without one penny in punitive damages being paid to those so greatly damaged by the spill.

From a practical standpoint, many damaged by the spill believe that Exxon has already prevailed because they’ve literally worn people out. Following the environmental disasters, numerous people were forced into bankruptcy. Since the spill, numerous others have died, leaving their heirs to seek recompense. Even some of the most prominent lawyers involved in the litigation (Melvin M. Belli, Sr., Jerry Cohen, Leonard Ring, Richard Gerry, among others), have since passed away. Though bittersweet, perhaps this tragic litigation is finally nearing completion.

From a legal perspective, there is much to be said about the Ninth Circuit Court of Appeals December 22, 2006, opinion. Was the award of $4.5 billion “grossly excessive”? After a defendant displays egregious, reprehensible, conduct sufficient to justify an award of punitive damages, should conduct taken by defendant thereafter serve to reduce a jury’s punitive damage award? Perhaps these questions would be best answered through the analysis of cases other than the Exxon Valdez litigation. But, whether one agrees with Judge Schroeder’s analysis, or not, surely everyone agrees with her comment, “It is time for this protracted litigation to end.”

Unfortunately, with the United States Supreme Court’s grant of Exxon’s Writ, the saga is guaranteed to continue, and potentially with significant consequence to the victims of this avoidable tragedy.