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The Malaysian Attorney-General’s Chambers had never charged any individuals who were detained under the Emergency Ordinance. Gani had disagreed with the home ministry’s proposal to introduce laws that allow detention without trial as a step to curb crime.We reject any new laws that propose detention without trial, or upon the minister’s orders, or of that which denies them legal rights,” he said in a statement today welcoming the Attorney-General Tan Sri Abdul Gani Patail’s statement yesterday that a new preventive law was not necessary to replace the scrapped Emergency Ordinance. a person charged or arrested under SOSMA can only be detained for a maximum 28 days for investigations. it was illogical to have a new preventive law without trial just to curb crime when the existing laws to prevent terrorism and other national threats, such as Security Offences (Special Measures) Act 2012 (SOSMA), were sufficient.He said that a person must then either be charged in court or be freed at the end of the 28 days.
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If an apology could change the past, it might mean something. If it could rescue the future, even more so. But no apology arrives until the mind has already changed, making it a historical tautology. It took a British PM 93 years and 11 months to admit that the Jallianwala massacre was “deeply shameful”. The “sorry” word still did not slide through British constipation, but who cares?
The slight delay in David Cameron’s pseudoapology was logical. The British remain convinced that the Raj was a good thing for the natives. Britain’s best-known , as distinct from its best, historians get lucrative media space and happy television assignments to add decibels to collective self-congratulation. Their narrative glosses over some inconvenient facts. The British empire was launched in 1765 with the zamindari of Bengal. Almost immediately , a man-made famine killed one-third of Bengal’s population, estimated at a staggering 10 million, because of the East India Company’s insatiable greed for land revenue. British rule ended in an equally devastating Bengal famine; this time, some three million died.
The average rate of growth in the last five decades of the Raj was just 1 per cent, and the rural economy lay devastated, but who dare argue with the march of bagpipes at heaven’s command through textbooks? Even our Prime Minister Dr Manmohan Singh thanked the British for their rule.
The majority British view was that Brigadier-General Reginald Dyer saved the Empire in 1919 when he ordered his Indian and Gorkha troops to open indiscriminate fire on peaceful protestors gathered at Jallianwala on Baisakhi day, April 13. With 1,650 rounds, they killed 530 and left over a thousand seriously wounded. That was efficiency. Barely a bullet was wasted. Dyer had not imposed martial law, nor given warning. He shot to kill and justified this decision before the subsequent Hunter Committee by claiming that he had scotched a serious Punjab rebellion with this show of force.
The governor of Punjab in 1919, Michael O’Dwyer , thought Dyer went overboard when he ordered Punjabis to crawl, but supported the carnage at Jallianwala. Public opinion in England was vigorously supportive of Dyer. The Morning Post opened a subscription to reward Dyer, ‘Defender of the Empire’ ; its editor, Sir Edward Carson, was the first to send a donation, followed by O’Dwyer. The grateful British gifted a purse of £30,000 to Dyer.
Dyer and O’Dwyer (who was shot dead in London in March 1940 by Udham Singh) could not comprehend that their only significant achievement , in historical terms, was to put India on a radical orbit that ended with freedom in 1947. Rabindranath Tagore returned Western honours; Gandhi switched from a recruiting agent for the British army to the Swaraj struggle; Motilal Nehru abandoned European furniture at Anand Bhavan and Savile Row suits to wear homespun.
The 20th century was born at Jallianwala Bagh. In a curious way, India should thank the butchers of Jallianwala for ripping apart the last mask of British colonization.
But colonization was an achievement, not a regret , in the age of empires. There is no particular reason for Cameron’s contrition. But there are many reasons why Indians should apologise.
When will Indians and Gorkhas apologise for killing fellow Indians at Jallianwala? They continued to squeeze the trigger on unarmed, helpless civilians amid screams and shock until ammunition ran out. When will brown bureau crats of the Indian Civil Service, who found clever explanations for colonial exploitation apologise ? British rule was never a solely British enterprise. It could not have survived a day without an obedient Indian comprador class, most purchased by nothing more glamorous than a salary. When will the zamindars and nawabs, who squeezed a famished peasantry to death and feasted in garden-palaces on the rewards, apologise?
The British used a million Mir Jafars, who queued up to serve, during their 150 years of true power. They had come a long way to rule, not to turn the other cheek. A transfer of wealth to the “mother country” was standard procedure in the era of European colonization, and not uniquely British. It must also be stressed that British rule, for all its faults, was much more humane than that of France in Algeria, Belgium in Congo or the Dutch in Indonesia.
India’s problem with history is a consistent unwillingness to do some serious research in a mirror. The British did not establish their rule, step by careful step, merely because they were strong; they succeeded because Indians had become weak. How about a collective Indian apology on behalf of our recent forefathers?
Cameron could do both Britain and India a favour by clarifying that his “deep shame” was only a political nod to his domestic Punjabi voters ahead of a difficult election in 2015. That would make sense. Britain and India could then forget about any silly apology, and continue treating each other like very good tourist destinations.
Atul Billore, judicial magistrate class I, posted in district and sessions court Dhar had a taste of retributive justice when one of the thieves he may have sentenced to imprisonment during the discharge of his official duties, broke into his home, rummaged through all the belongings and scampered off after leaving him a cheeky message on the wall – written of course with Mrs. Billore’s lipstick.
“Toone mujhe saja di, maine tujhe (you have punished me and so have I),” read the big bold letters scribbled across the drawing room walls when the peon who had been guarding the bungalow in Manawar officers colony arrived for the routine security check on Tuesday morning.
Billore, who was on a vacation in Indore, was promptly informed. He cut short his visit and rushed back within hours.
Interestingly, the thief hardly took away any valuables. The purpose obviously was to not burgle but to annoy the judge and leave him smarting. So he rummaged through the house, tampered with the furniture, broke open the wardrobes, threw things around the room to give it as messy an appearance as was possible. But the only thing which Billore found missing was a gas cylinder lying spare in the store room.
Meanwhile, a hunt has been launched to nab the culprit. Judge Billore incidentally is totally at sea and could offer no clue as to who among the countless accused sent to prison under his orders, could have shown such daring.
SP Dhar Bhagwat Singh Chaouhan told TOI that the police is closely scrutinizing the records of all the petty thief’s robbers and those charged with breaking into houses – whose cases were handed by the judge over last one year. This he said could possibly lead to some vital clues.
Chaouhan said he is also checking up with the jail authority if any prisoner who was jailed for theft or housebreak was recently let off. The idea is to identify the suspects, round them up and then match their hand writing. Every criminal leaves behind some link to trace him back and handwriting could be a sure give away, he said.
The Malaysian Constitution lays down a legal basis to a “constitutional democracy.”
In a constitutional democracy, there are legal norms put in place to ensure that each citizen has an equal right to political participation, that is, the right to participate in any political decision affecting their fundamental interests.
In a constitutional democracy, the ideals of the rule of law or legality and the ideal of democracy are mutually constitutive ideals: the former aspires to tame arbitrary power while the latter aspires to make such power systematically responsive to the interests of citizens.
Both ideals emphasize the citizen’s perspective as the primary perspective to assess all questions of political legitimacy. In Malaysia, these ideals are yoked together within the fabric of our Constitution.
Two judgments of the Supreme Court of India decided on 10th July, 2013 regarding disqualification of MPs and MLAs and one interim order of the Allahabad HC banning caste rallies have been a subject of great deal of discussion and debate recently.
I have perused and considered them, and with great respect to the courts which passed these orders I have serious reservations about their correctness.
In Lily Thomas vs Union of India the SC declared section 8 (4) of the Representation of the People, 1951 as unconstitutional.
Section 8(4) states:-
“Notwithstanding anything in sub- section (1), sub- section (2), or sub- section (3)] a disqualification under either sub- section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court”.
In Government of Andhra Pradesh vs P. Laxmi Devi (2008) the Supreme Court considered at great length the doctrine of judicial review of statutes (from paragraph 31 onwards). In paragraph 36 of that judgment, it was observed that invalidating an act of the legislature is a grave step and should never be lightly taken. A court can declare a statute to be unconstitutional not merely because it is possible to hold this view, but only when that is the only possible view not open to rational question (vide paragraph 41).
The philosophy behind this view is that there is broad separation of powers under the Constitution, and the three organs of the state must respect each other and must not ordinarily encroach into each other’s domain. In paragraph 44 of the judgment it was observe that there is one and only one ground for declaring a statute to be invalid, and that is if it clearly violates some provision of the constitution in so evident a manner as to leave no manner of doubt.
Keeping the above considerations in mind, one fails to see how Section 8(4) could be held to be unconstitutional.
The bench has given two reasons for its verdict: Firstly, it held Section 8 (4) violative of Article 102 and its corresponding provision Article 191 of the Constitution. A careful perusal of Article 102 show that there is nothing therein which makes Section8 (4) inconsistent with it.
Article 102(1) of the Constitution states:
1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament
(a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament
In my opinion none of the 5 clauses in Article 102(1) are attracted so as to invalidate Section 8(4). Clause (e) is not attracted because section 8 (4,) which is a law made by Parliament, specifically states that a legislator convicted is not disqualified during pendency of his appeal, if made within 3 months.
Secondly, the Supreme Court has held that Parliament had no legislative competence to enact Section 8 (4). This reasoning, too, is difficult to accept because entry 72 to list 1 of the 7th Schedule specifically gives power to Parliament to legislate on elections to Parliament or the State legislatures. It is well settled that legislative entries in the Constitution are to be widely construed, and in any case Parliament has residual power under entry 97 to list 1.
The second judgment of the Supreme Court in CEC vs Jan Chawkidari also deserves reconsideration because it has held that if a person is in jail or police custody he cannot contest an election.
The SC has relied on the definition of elector in section 2 (e) of RP Act, 1951, and observed that in view of Sections 3, 4, and 5, to be qualified for membership of the legislature one has to be an elector.
Section 2(e) defines elector as follows:
“Elector” in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950; (43 of 1950.)
There is no mention of section 62(5) of the 1951 Act in the definition of ‘elector’ in Sec 2 (e). It is therefore difficult to understand how the SC relied on Sec 62(5) for disqualifying persons who are in jail or police custody from standing for elections. There is a distinction between a voter and an elector Section 62 (5) only debars a person in jail from voting, not from contesting an election.
If the view of the Supreme Court is accepted then a rival politician need only get a false FIR filled against his political rival and have him sent to police custody or jail to disqualify him.
As regard the interim order of the Allahabad High Court with due respect I submit that it requires to be reviewed.
Firstly because the view taken by the High Court required a final, well considered judgment and not an interim order, and secondly there is no legal bar to a caste rally, as long as no law is violated. In fact Article 19 (1) (b) gives citizens a fundamental right to assemble peaceably. A political party can call a meeting of a caste e.g. the dalits to discuss the problems facing that community, and there is no law barring such a meeting.
With respect, the above decisions of the Supreme Court and High Court have made/amended the law, which function was in the domain of the legislature vide Divisional Manager, Aravali Golf Course v Chander Haas (see online).
I make it clear that I am totally against criminalization of politics or casteism, but the problem we are discussing is not about one personal’s view but about the correct legal position.
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