SC has rejected charges already, Shourie tells CBI

The disinvestment procedures were elaborate, and scrupulously adhered to, he said. Every step was explained through press statements.

As a two-member CBI team visited former disinvestment minister Arun Shourie in connection with its preliminary enquiry into the alleged irregularities in the divestment of Hindustan Zinc Ltd (HZL) during the NDA regime, Shourie laid out the facts of the case before the agency, underscoring that the charges it was probing had been rejected in toto by the Supreme Court as recently as December 2012.

Shourie is learnt to have told the CBI that the recommendation to disinvest 25 per cent was raised to 26 per cent because under company law, an investor acquires an important say in a company’s management only if he has at least 26 per cent equity.

He is believed to have stressed that the entire process had been transparent, and that Attorney General G E Vahanvati had, before the CBI reopened the decade-old matter, opined that there was no case for challenging the decision.

Shourie apparently reminded the officials that the decision had not been questioned at the time, not even by MPs most vociferously opposed to privatisation.

He explained to them that every decision was taken after it had been considered by the inter-ministerial group in which all concerned ministries — in particular the administrative ministry which was, in this case, Mines — were represented; the core group on disinvestment headed by the cabinet secretary; and a separate valuation committee comprising two members from the Ministry of Mines, and the CMD of the company.

“Every proposal was referred to, and the decision was taken by, the Cabinet Committee on Disinvestment presided over by the PM, and the role of the Ministry of Disinvestment was that of a facilitator,” he is learnt to have said.

The disinvestment procedures were elaborate, and scrupulously adhered to, he said. Every step was explained through press statements.

On the queries related to the Supreme Court judgment on the disinvestment of HPCL and BPCL, Shourie is believed to have said that the judgment had no relevance to the HZL case. It was delivered in September 2003, after the disinvestment of HZL (April 2002), and the court did not say that it would have retrospective effect.

The CBI officers also recorded the statement of Vedanta group chairman Anil Agarwal. The agency had last year registered a PE against Agarwal and unknown officials in connection with alleged irregularities in the disinvestment of HZL. The agency believes that the loss to the exchequer due to the alleged irregularities runs into hundreds of crores of rupees.

Source: http://indianexpress.com/article/india/india-others/sc-has-rejected-charges-already-shourie-tells-cbi/

The Manu of Our Times?

Arun Shourie
"Now, Sir," the member said, "we have inherited a tradition. People always keep saying to me : 'Oh, you are the maker of the Constitution.' "My answer is I was a hack. What I was asked to do, I did much against my will."

He ridiculed the "notions of democracy" the country had acquired because of its hatred of the British, like the notion that to leave any discretionary powers with the Governor is undemocratic. "We have inherited the idea that the Governor must have no power at all, that he must be a rubber-stamp," the member explained. "If a minister, however scoundrelly he may be, if he puts up a proposal before the Governor, he has to ditto it. That is the kind of conception about democracy which we have developed in this country," he continued.

"But you defended it," interjected a member from Rajasthan.

"We lawyers defend many things....," said the member. Several members were on their feet protesting.

He proceeded to ask the Home Minister : were our Constitution to give discretionary powers to Governors on the lines of the Canadian Constitution, how would it become undemocratic ? The Home Minister said his answer was that the member had been responsible for drafting the Constitution. The member shot back, "You want to accuse me of your blemishes?"

He returned to the point a little later in his speech : "Sir," he said, "my friends tell me that I have made the Constitution. But I am quite prepared to say that I shall be the first person to burn it out. I do not want it. It does not suit anybody...."

The member ? B.R. Ambedkar, of course. The occasion? The debate in the Council of States, as the Rajya Sabha was then known, on 2 September, 1953, regarding the Bill for establishing the state of Andhra.

Was Ambedkar just palming off responsibility? Or was he being truthful in describing what his role really had been in regard to the drafting of the Constitution ? That the remarks were not just an off-the-cuff burst is evident from the fact that he repeated the description to the political scientist and biographer, Michael Brecher during an interview three years later, a few months before his death [ Michael Brecher, Nehru, A Political Biography, Oxford University Press, 1959, p. 423 ]

Or take another instance. The Article relating to the right to property went through several rounds, and was the subject of earnest discussion. The draft of the Article as it was sent up by the Drafting Committee closely followed Section 299 of the Government of India Act, 1935. It provided that no property would be acquired except for a public purpose, and that it would not be acquired without compensation and unless either the amount of compensation was fixed or the principles on which it was to be fixed were set out. When the draft came up for consideration in the Constituent Assembly, Pandit Nehru himself moved an amendment to replace the text wholesale. He told the Assembly that the new text was "the result of a great deal of consultation", that it reflected a compromise between various approaches.

Two years later, in 1952, the Supreme Court handed down judgements in which it held that the existence of a public purpose was a prerequisite for the exercise of the power of compulsory acquisition. The Government then brought in an amendment to the Constitution which provided, among other things, that "no such law [ aimed at acquiring property ] shall be called in question in any court on the ground that the compensation provided by that law is not adequate." The amendment also provided that where the law did not transfer the property to the State or a Corporation owned or controlled by the State "it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property." In a word, there was no longer any need in such cases for either of the two conditions -- the existence of a public purpose, or the payment of just compensation. This part of the matter was thus put beyond the reach of courts. Government asserted that the new text was in accord with what the Drafting Committee had intended.

Ambedkar refuted the suggestion. Here is what he told the Rajya Sabha on 19 March, 1955 : "Article 31 with which we are dealing now in this Bill is an Article for which I, and the Drafting Committee, can take no responsibility whatsoever. We do not take any responsibility for that. That is not our draft." He said that at the time this Article was being considered "the Congress Party... was so divided within itself that we did not know what to do, what to put and what not to put." Ambedkar said that there had been three points of view within the Congress on the question : a section led by Sardar Patel had wanted that the Constitution provide for compensation on the lines of the existing Land Acquisition Act, namely market price plus 15 per cent; Pandit Nehru wanted that no compensation should be provided for at all; Pandit Pant, who was the Chief Minister of Uttar Pradesh at the time, had been concerned mainly to safeguard the zamindari-abolition legislation he had got through. "There was thus this tripartite struggle," Ambedkar told the House, "and we left it to them to decide in any way they liked. And they merely embodied what their decision was in Article 31. This Article 31, in my judgement, is a very ugly thing, something which I do not like to look at..."

A volume can be filled at short notice with examples of this kind. The point however will be obvious : in saying what he did about this particular Article, was Ambedkar again just passing off responsibility? Or was he giving us a truthful glimpse into the way the Constitution was actually framed -- by an iterative, collective effort, by the contribution of numerous persons, by adjustments of many, many points of view?

"But was he not the Chairman of the Drafting Committee? And did this Committee not draft the Constitution?"

How mere designations father myths ! Yes, Ambedkar was elected Chairman of the Drafting Committee [and the why and how of that is itself a delicious story], but what was this "Drafting Committee" set up to do?

The Constituent Assembly had been functioning since December 1946. Committees to draft substantive sections of the Constitution began work in January 1947. The "Drafting Committee" did not come into being till 29 August, 1947.

The Constituent Assembly's resolution setting up the Committee declared that it was being set up to "Scrutinise the Draft of the text of the Constitution prepared by the Constitutional Adviser giving effect to the decisions taken already in the Assembly and including all matters ancillary thereto or which have to be provided in such a Constitution, and to submit to the Assembly for consideration the text of the Draft Constitution as revised by the Committee." At the very least these terms of reference should alert us to the fact that there already was a Draft in existence when this Committee was set up!

The Draft in question had been prepared by Sir B. N. Rau, the Constitutional Adviser to the Constituent Assembly, with the assistance of the Joint Secretary and Draftsman, S.N. Mukerjee. It consisted of 240 draft Articles and 13 Schedules. Nor was this document itself something that had sprung from the head of one or two individuals. In fact, in the marginal note to each draft Article Sir B N Rau indicated the original source or basis of the provision -- the Government of India Act, 1935, the Constitution of Ireland, that of Canada, that of Australia, the Danzig Constitution, that of the USSR, of the USA and so on, in each instance with the relevant Article listed. It was this Draft which constituted the basic working document in all subsequent deliberations. And it was this Draft which the Drafting Committee began adding to and deleting from so as to incorporate the decisions which the Assembly had already arrived at, and to incorporate the reports and recommendations of the various Committees which had been set up to draft particular sections of the Constitution. Sir B N Rau's Draft, the minutes and drafts of the Committees are all published documents which are easily accessible to anyone who would care to look.

But even that sort of account suggests a greater degree of latitude and role for the Drafting Committee than was the case. For everything was in practice decided in meetings of the Congress Party before it was formally taken up by the Constituent Assembly. Ambedkar himself was to acknowledge later that it was possible to get the Constitution through so smoothly precisely because of the discipline and cohesion of the Congress. Another member of the Assembly was even more candid : in his speech at the conclusion of the Assembly's labours he said that the meetings of the Congress Party became the real meetings of the Constituent Assembly, and that the decisions taken in them -- after vigourous and free debate, and much contention -- were in a sense "registered" by the Assembly in its formal meetings.

The Draft was the result of collective labours of many persons. Several parts of it went through many versions. Several Articles were adopted, only to be overturned at the next stage. The Assembly itself reopened and revised, and sometimes completely overhauled several provisions -- many of them key provisions on which the very nature of the system of governance turned.

Not only did Ambedkar himself not claim authorship of the Draft. He did not even claim any great degree of originality for the Draft which emerged from these iterations and which he formally tabled. Quite the contrary, he scoffed at those who were looking for originality in the document. Addressing the Assembly on 4 November, 1948, while placing the Draft Constitution in the Assembly for its consideration, Ambedkar said : "It is said that there is nothing new in the Draft Constitution, that about half of it has been copied from the Government of India Act of 1935 and that the rest of it has been borrowed from the Constitutions of other countries. Very little of it can claim originality. One likes to ask whether there can be anything new in a Constitution framed at this hour in the history of the world. More than a hundred years have rolled over when the first written Constitution was drafted. It has been followed by many countries reducing their Constitutions to writing. What the scope of a Constitution should be has long been settled. Similarly what should be the fundamentals of a Constitution are recognized all over the world. Given these facts, all Constitutions in their main provisions must look similar. The only new things, if there can be any, in a Constitution framed so late in the day are the variations made to remove the faults and to accommodate it to the needs of the country..."

"As to the accusation that the Draft Constitution has [re]produced a good part of the provisions of the Government of India Act, 1935," Ambedkar continued, "I make no apologies. There is nothing to be ashamed of in borrowing. It involves no plagiarism. Nobody holds any patent rights in the fundamental ideas of a Constitution...."

That this was the position was known to one and all. As I mentioned, in the margin of each Draft Article Sir B N Rau had indicated the provisions of other Constitutions on which it was based. The overwhelming proportion of provisions were based on the Government of India Act of 1935 -- and that too was natural : that Act itself built on successive laws under which India had been governed for a hundred years; the administrative structure of the country had grown around these laws, even in combating those laws and provisions it is that structure which our leaders had grown accustomed to, which they had in a sense mastered.

Ambedkar, who had all along been with the British while the rest were fighting to free the country from them, actually felt a sense of vindication in the fact that, all said and done, the nationalist leaders, who used to rail against the British, had in the end had to adopt more or less the system which the British had devised. Recall that Ambedkar formally presented the Draft to the Assembly on 21 February, 1948. On 28 April that year Ambedkar was the chief guest at a dinner at the Delhi Gymkhana Club. In a starry-eyed account, Alan Campbell-Johnson, the Press Attache of Lord Mountbatten, recorded in his diary for that day : "Fay and I dined tonight amid fairy-lights on the lawn of the Delhi Gymkhana Club.... The principal guest was Dr. Ambedkar, the Minister of Law, the leader of the untouchables, and a colourful personality in Indian politics over the past twenty years. He is now one of the principal figures associated with the preparation of India's new Constitution, which finally removes the stigma of untouchability from the statute book. As part of his emancipation, Ambedkar, himself an untouchable, has only recently married a lady doctor who is a Brahmin... Ambedkar himself was in an expansive vein, and gave us a revealing analysis of some of the new features of the new Constitution... As evidence of the enduring quality of the 1935 Act, he said that some two hundred and fifty of its clauses had been embodied as they stood into the new Constitution." [ Mission With Mountbatten, 1951, Hamish Hamilton, 1985, p.319 ] On that count, not half but almost four-fifths of the Constitution was from the 1935 Act -- for the Draft as submitted by the Drafting Committee had 315 Articles.

And this position was freely acknowledged by our courts also. Rejecting a construction which was being urged before it, the Supreme Court, for instance, observed in Sundaramier and Co. Vs State of Andhra Pradesh in 1958, "It [ the construction which was being urged ] overlooks that our Constitution was not written on a tabula-rasa, that a federal Constitution had been established under the Government of India Act, 1935, and though that has undergone considerable changes by way of repeal, modification and addition, it still remains the framework on which the present Constitution is built..." For that reason the Court held that "the provisions of the Constitution must accordingly be read in the light of the provisions of the Government of India Act."

But now suddenly the Constitution is presented as something that sprung -- whole and complete, pristine and virginal -- from the mind and genius of Ambedkar. So much so that the Draft Constitution is included by the Maharashtra Government in its volumes Babasaheb Ambedkar, Writings and Speeches as if it were one of the things he had authored!

Even so there is a silver lining. The very ones who hail Ambedkar as the Manu of our times revile Manu as the fount of all evil! The very ones who hail the Constitution as the Ambedkar-smriti denounce the same Constitution as being nothing but an alien graft wholly unsuited to our country!

Did the Court Ask, What is Mohd Aslam�s Locus Standi?

Arun Shourie

"What is the VHP? Whom does it represent? What is its locus standi?", the Supreme Court asked the other day -- and it seemed to have done so in a tone that triggered much delight among secularists.

��A strange question,�� the PM remarked in the Rajya Sabha. A member was up and shouting, actually several secular ones were, interrupting the Prime Minister. Who are the VHP?... They don�t represent the Hindus... They will put a bullet through me..., so what?... The members seemed quite beside themselves. If the mere mention of its name causes so much reaction, the PM observed, then it certainly has locus standi.

In matters of religion and faith, standing is not acquired by winning elections, he said. It depends on the esteem in which people come to hold one...

A telling answer in itself. And it left the critics non-plussed.

Another side to the question that had fallen from the Bench too would have struck you. The Bench did not ask, as the Constitution Bench had not asked, ��Who is Mohammed Aslam, alias �Bhure�? Whom does he represent? What is his locus standi?�� It did not ask, ��What is the Babri Masjid Action Committee? Whom does it represent? What is its locus standi?�� It did not ask, ��What is the �All India Muslim Law Board�? Whom does it represent? What is its locus standi?�� How is it that doubt assailed it only in regard to the Vishwa Hindu Parishad?

To put the matter at the least, the Bench could have looked up the Supreme Court�s own judgement in the Ayodhya case itself! ��The movement to construct a Ram temple at the site of the disputed structure gathered momentum in recent years which became a matter of great controversy and a source of tension,�� the judgement quoted the (Narasimha Rao) Government�s ��White Paper�� as saying. ��This led to several parleys the details of which are not very material for the present purpose. These parleys involving the Vishwa Hindu Parishad (VHP) and the All India Babri Masjid Action Committee (AIBMAC), however failed to resolve the dispute...�� Again, ��At the centre of the Ram Janma Bhumi - Babari Masjid dispute is the demand voiced by the Vishwa Hindu Parishad (VHP) and its allied organisations for the restoration of a site said to be the birthplace of Sri Ram in Ayodhya...��

Yet again, ��The VHP and its allied organisations base their demand on the assertion that...�� And yet again, ��The demand of the VHP has found support from the Bhartiya Janata Party...�� And yet again, ��It was also stated by certain Muslim leaders that if these assertions were proved, the Muslims would voluntarily hand over the disputed shrine to the Hindus. Naturally, this became the central issue in the negotiations between the VHP and the AIBMAC.��

But suddenly, What is the VHP? Who does it represent? What is its locus standi?

In any event, that allusion to ��parleys�� holds a lesson we will do well to remember. One of the best things Mr Chandrashekhar did during his brief Prime Ministership was to get the two sides to agree that the only way to make progress was to exchange evidence on the matter. The two sides started meeting and exchanging documents and written arguments. The Babri Masjid Action Committee was guided by a clutch of Marxist historians -- actually, ��guided by�� is not quite right: it seemed just the front for these ��eminent historians��. The latter used the offices and facilities of the ICHR that they then controlled to prepare the AIBMAC submissions -- a fact that led the then Member Secretary to resign from his post.

The ��evidence�� that the Babri Masjid group submitted was no evidence at all. It was just a miscellaneous pile -- much of it puerile: that Rama was a King of Egypt, that he was born in Afghanistan, and the rest!

The VHP marshalled an array of evidence from archaeological sources, from historical records, from literary sources. That was the end of the ��parleys��! Realising that they could produce nothing to match what the VHP had submitted, the Marxist historians and the AIBMAC gentry just stopped attending the meetings. And it was this withdrawal, and the consequential death of the talks that Mr Chandrashekhar had initiated, as much as anything else that triggered the chain of events that led ultimately to the destruction of the mosque.

I did not doubt for a moment that the new efforts of the Shankaracharya of Kanchi would meet exactly the same fate. And for good reason. In one of the letters that he included in his 'A Bunch of Old Letters', Pandit Nehru used a phrase about Jinnah that describes this bunch, and its invariable device to the dot: ��Mr Jinnah�s permanently negative answer,�� Panditji wrote. This is the singular negotiating tactic of such individuals: just go on rejecting every formula that the other fellow brings up.

And the tragedy is -- the self-inflicted tragedy is -- that there always are persons, groups, powers that insist that the onus of producing the next formula, some formula which will incorporate an even greater concession to the other fellow is on us. And in the end we give in to this insistence. The power and groups that keep insisting that we go on producing new formulae: the British on the question of partition, the host of interlocutors on Kashmir, the secularists on the Ram Janmabhumi.

And the ones who merely keep deploying the ��permanently negative answer��: Jinnah kept rejecting every formula on partition; Pakistan keeps rejecting every formula on Kashmir; the Babri Masjid votaries keep, and will keep rejecting every formula on the Janmabhumi.

And the infuriating part is that the advice to engage in a dialogue is always directed at us -- the Congress on the question of partition, India on Kashmir, the Hindus on the Janmabhumi! It is because of this unbroken, unvarying pattern of 75 years that the new Interim Order of the Supreme Court fills me with foreboding -- doubly so.

The first concerns dialogue, negotiations. In its 1994 judgement the Supreme Court also had expressed the same pious faith: ��This is a matter suited essentially to resolution by negotiations which does not end in a winner and a loser while adjudication leads to that end,�� the Court said. ��It is in the national interest that there is no loser at the end of the process adopted for resolution of the dispute so that the final outcome does not leave behind any rancour in anyone. This can be achieved by a negotiated solution on the basis of which a decree can be obtained in terms of such solution in these suits. Unless a solution is found which leaves everyone happy, that cannot be the beginning for continued harmony between �we the people of India�.�� The same touching faith! Doomed to the same outcome.

But the least that this route requires to succeed is that the Executive has leeway, that it has a wide enough field over which it can bring the contenders closer. The Supreme Court in its 1994 judgement had left this space -- recall, for instance, the passages regarding the undisputed area. The Interim Order has snatched that space away completely. And taken into the judicial lap what the Constitution Bench had realised was not well suited for resolution through judicial adjudication.

The other omen is of an even darker hue. What the Supreme Court had held about the status quo being maintained only on the disputed site, what the Court had said about it being not just permissible but desirable that the undisputed area be handed back to its Hindu owners -- all this was important, but of far lesser importance than another feature of that judgement, a feature that was of foundational significance.

An argument had been advanced on behalf of Muslims -- the Court remarked that it had been advanced with ��vehemence��. This was the familiar assertion that once a mosque has been built on a piece of land, irrespective of who owned the plot earlier, irrespective of what might have stood on it earlier, irrespective of whether the structure had subsequently been used or not, the land would always be a possession of Muslims.

It was contended that this was the position under Muslim Law, and therefore this is what must hold in this case too -- whether a temple stood on the land earlier, whether namaz had been offered at the site since 1949 etc., all these were essentially irrelevant questions. And that the acquisition of the site by the Government for determining its true owners was invalid on this ground alone: secular laws like the Statute of Limitations, the laws regarding acquisition of property by the State etc., do not apply at all to either a mosque or the site on which it was once built, it was argued on behalf of Muslims.

The Supreme Court dealt in detail with this question -- because of the vehemence with which this argument had been advanced, it said. In doing so it laid down three vital principles. First, it held that what will apply in India is not some abstraction called Mahomedan Law, but ��Mahomedan law as approved by Indian courts��.

Second, it reiterated what Indian courts had from the British period consistently held in regard to the status of a mosque: namely, that a mosque is just another immovable property; that, therefore, the Statute of Limitations applies to it exactly as it does to any other immovable property, that the sovereign power of the State to acquire the structure or the site on which it stands is as unlimited as it is in relation to any other piece of property.

Third, the Court held that even if a structure or practice is manifestly associated with a religion it shall not be immune from State action under the freedom of religion guaranteed by our Constitution -- unless it is a practice essential to that religion. This vital distinction will come home to us when we think of the contrast between, say, the Kaba in Mecca and the mosque next door, between offering namaz and killing cows. The result was immediate. Citing judgements from even the British period, the Court established how, for instance, a mosque could be lost by adverse possession. It showed how even by those judgements it was subject to the Statute of Limitations. It established how ��A practice may be a religious practice but not an essential and integral part of practice of that religion.��

These principles were of foundational importance. They were essential correctives to what had come to pass in the name of secularism. They gave hope that the excesses that had come to be perpetrated in the name of religion could indeed be rolled back through the courts -- for instance, the insistence that namaz shall be offered on public roads, the insistence that slaughtering cows was a fundamental right that flowed from the freedom of religion guaranteed by the Constitution.

That is why not so much the Interim Order but the remarks that fell from the Bench during this hearing are so ominous. If that is the mood of the Court, these vital principles will themselves be diluted in the days ahead.

Dialogue and negotiations blocked each time by that ��permanently negative answer��. And the Courts in the mood of which the Bench has given us a glimpse. What conclusion will the Hindus draw?

But they must abide by the verdict of the courts, the secularists say. Will some Hindu in turn not one day tabulate how many times the Constitution has been amended precisely to overturn verdicts of the Supreme Court, and throw the number back at those who keep hurling this counsel at him, and him alone?

Actually, why wait for that anonymous Hindu, dear reader, why not pre-empt him? Study the 90-odd amendments yourself, and answer: how many of them have been enacted to reverse judgements of the Supreme Court?

Indian Express
March 18, 2002

The Judgement Vs the Interim Order

Arun Shourie
��The mandate (which the Act imposes upon the Central Government),�� the Supreme Court said in its 1994 judgement on the Ayodhya case, ��is that in managing the property so vested in the Central Government, the Central Government or the authorised person shall ensure maintenance of the status quo [and here the Court quoted merely reproduced -- for the second time within ten lines -- the words in the Act itself) in the area on which the structure (including the premises of the inner and outer courtyards of such structure), commonly known as the Ram Janmabhumi-Babri Masjid, stood.��

There had been some discussion, the Court remarked alluding to the special pleading that had gone on, as to what exactly was meant by ��the area�� -- the ��entire area�� that had been taken over or what. But the provision itself sets out clearly what is meant, said the Court.

The meaning is not the entire area that had been taken over and was specified in the Schedule annexed to the Act, the Court held -- ��since the words which follow qualify its meaning confining it only to the site on which this structure, commonly known as the Ram Janmabhumi-Babri Masjid stood, which site or area is undoubtedly smaller and within the area specified in the Schedule.��

Moreover, the Court specified, the land over which the structure had stood has not been acquired to be held in perpetuity by the Government. It has not been acquired to be put to sundry use by the Government. The sole purpose for which it has been acquired, the Court specified, is to hand it back to its rightful owners -- Hindus or Muslims -- once the dispute about who owned it is settled.

The acquisition is not absolute, the Court declared. It is not for perpetuity. The relevant provisions are ��transitory�� ��for the purpose of its subsequent transfer to the person found entitled to it as a result of the adjudication of the dispute for the resolution of which this step was taken��.

The Presidential Reference also makes clear, the Supreme Court declared, that ��the acquisition of the disputed area was not meant to be absolute but limited to holding it as a statutory receiver till the resolution of the dispute; and then to transfer it...��

��The duty of the Central Government as the statutory receiver,�� the Court emphasised yet again, ��is to hand over the disputed area in accordance with Section 6 of the Act, in terms of the adjudication made in the suits for implementation of the final decision therein. This is the purpose for which the disputed land has been acquired.��

Contrast this emphatic, unambiguous, recurring declaration of the Supreme Court about what the purpose is for which the disputed land was acquired with the secularist clap-trap: the land must be used for building a hospital, a school, a playground, a park, a memorial... -- that is, for anything but for handing it back to the Hindus should they win the title-suit and thereafter reconstruct the temple -- the ancient, well-documented temple -- that Mir Baqi and his crew demolished.

That the disputed area has been acquired solely for this purpose, and that the mandate to maintain the status quo applies only to the disputed area was set out by the Supreme Court in its judgement not once, not twice, but at seven different places.

And there is a clear reason, said the Court, why the Act has mandated that the status quo be maintained on the disputed area till it is transferred back to its rightful owner.

��Unless the status quo is ensured,�� the Court explained, ��the final outcome on resolution of the disputed area may be frustrated by any change made in the disputed area which may frustrate the implementation of the result in favour of the successful party and render it meaningless.

A direction to maintain the status quo in the disputed property is a well-known method and the usual order made during the pendency of a dispute for preserving the property and protecting the interest of the true owner till the adjudication is made.��

Now, as is well known, the area over which the structure stood is but a fraction of the total area that the Government had acquired: the structure per se had covered just a third of an acre, the appurtenant platform etc. had covered another 2.5 acres or so; but the Government had taken over about sixty seven acres.

The only area over which there was a dispute about ownership -- the part over which there has been a dispute ever since the temple was destroyed -- are the one-third to 2.7 acres. Muslims have maintained that as they had acquired it and built a mosque on it long ago, it is their�s forever.

Hindus have maintained that it had been wrested from them by force, that what was sacred to them was razed, that they have never abandoned their ownership of it, that they have -- even when denied access to it -- continued to venerate it from the platforms, the bye-lanes around the spot.

After recounting the successive stages by which the Hindus have come to physically resume worship of the idols at the spot at least since 1949, the Supreme Court observed, ��On the other hand, at least since December 1949 the Muslims have not been offering worship at any place in the disputed site though, it may turn out at the trial of the suits that they had a right to do so.�� This limited area is what is known as the ��disputed area��.

About the rest of the area, the Supreme Court noted with emphasis, there is no dispute at all. "The narration of facts indicates," the Court said, "that the acquisition of properties under the Act affects the rights of both the communities and not merely those of the Muslim community.

The interest claimed by the Muslims is only over the disputed site where the mosque stood before its demolition. The objection of the Hindus to this claim has to be adjudicated. The remaining entire property acquired under the Act is such over which no title is claimed by the Muslims. A large part thereof consists of properties of Hindus of which the title is not even in dispute.��

The purpose for which this undisputed area had nonetheless been acquired was to ensure that, should courts ultimately decide that the disputed site in fact belongs to Muslims, they should not be prevented from enjoying the property by not having access to it.

Indeed, the Court went further. Elaborating on the significance of the words that had been used in the Act itself in this regard -- the words ��so far as may be�� -- the Court held, ��This provides for the situation of transfer being made, if necessary, at any stage and of any part of the (undisputed) property, since Section 7(2) is applicable only to the disputed area.��

Lest any authority use even this clear enunciation to hold on to the undisputed area, the Court added, ��The provision however does not countenance the dispute remaining unresolved or the situation continuing perpetually.

The embargo on transfer till adjudication, and in terms thereof, to be read in Section 6(1), relates only to the disputed area, while transfer of any part of the excess area, retention of which till adjudication of the dispute relating to the disputed area may not be necessary, is not inhibited till then, since the acquisition of the excess area is absolute subject to the duty to restore it to the owner if its retention is found to be unnecessary, as indicated.��

But are all the sixty-seven acres needed for this limited purpose? Should more be acquired to ensure full enjoyment by Muslims in the event they win the title suit? The Court�s answer was absolutely unambiguous: "... the extent of adjacent area considered necessary is in the domain of policy and not a matter for judicial scrutiny or a ground for testing the constitutional validity of the enactment...��

Because of its preoccupations at the time, the Government had not been able to determine, much less indicate to the Court how much and what parts of the undisputed area were required. The Court observed, ��However, at a later stage when the exact area acquired which is needed for achieving the professed purpose of acquisition can be determined, it would not merely be permissible but desirable that the superfluous excess area is released from acquisition and reverted to its earlier owner.��

The Court did not just say, Government ��may�� or ��might�� return this undisputed area to its Hindu owners. It held that the Government is duty-bound to do so, that once it has determined what exact portion is needed for the limited purpose of enabling Muslims to enjoy the disputed site if the courts ultimately hold in their favour, the undisputed portion ��must�� be restored to the undisputed owners.

Contrast these emphatic, unambiguous, recurrent declarations of the Supreme Court with what has now been stated in the interim order. In this order, the judges state, ��Furthermore, no part of the aforesaid land shall be handed over by the Government to anyone and the same shall be retained by the Government till the disposal of this writ petition nor shall any part of this land be permitted to be occupied or used for any religious purpose or in connection therewith.��

How can this be squared with the judgement of the Constitution Bench on the case? Actually, there was one way to square the two. But that turned out to be a telltale embarrassment! In the paragraph preceding the one I have just quoted, the judges set out what they meant by ��the aforesaid land��.

Ordering that counter-affidavits and rejoinders be filed successively in four weeks each, the judges directed, ��In the meantime, we direct that on the 67.703 acres of land located in revenue plot Nos. 159 and 160 in village Kot Ramchandra which is vested in the Central Government, no religious activity of any kind by anyone either symbolic or actual including bhumipuja, shall be permitted or allowed to take place.��

Only two revenue plots in just one revenue village. That left the overwhelming part of the undisputed land out of the Court�s order, and, therefore, one could have assumed that in some sense this interim order conforms to the judgement. But the omission had but to be brought to its attention, and the Court foreclosed that construction!

Yet that is but one of several reasons why the Prime Minister was entirely right when, during his response in the Rajya Sabha on 14 March, he said -- in the understatement so characteristic of him -- that the new order will have to be discussed in detail some day.

Indian Express
March 17, 2002

POTO: Approve Swiftly, and then Toughen it (Part II of II)

Arun Shourie

The provisions of TADA were much more stringent than those of the new Ordinance. The constitutionality of those provisions, of TADA itself had been challenged in the courts. The Supreme Court specifically upheld TADA, and declared its provisions -- the much more stringent provisions -- to be in accord with the Constitution.

While I happen to be in Government, my assessment for Parliament is the opposite one to that of the critics: the Ordinance bends too far back to accommodate human rightists, and that includes some impractical judgments too -- like that of the Supreme Court in D. K. Basu Vs State of West Bengal.

Under TADA, as we just saw, the accused was allowed only one appeal that to the Supreme Court. Even with that restriction, the judgment in the Rajiv Gandhi assassination case took all of eight years. By allowing another intermediate appeal -- to the High Court -- we are ensuring that the period would be not eight but a multiple of eight years!

Similarly, recall the provision that allows a lawyer to meet the accused while he is being interrogated. Imagine that the police have nabbed a terrorist sent across by the Lashkar-e-Tayyaba. He is certain to have been saturated with indoctrination to the point that he is nothing but a killing machine. Do you think he is going to give you information over a cup of tea? And if lawyers are going to be meeting him from time to time during interrogation, is there the slightest chance that you will be able to extract information -- information about their plans, about their networks, that is information which is literally a matter of life and death for our people and our country?

But-such is the condition of public life and public discourse in India today, and so far removed from reality are some of our judgments that a provision like that one about lawyers has had to be incorporated in the Ordinance.

Based on their experience in dealing with organized gangs of criminals, the states of Maharashtra, Andhra, Karnataka have formulated laws. Why should the law for combating terrorists be more circumspect than the laws required for neutralizing gangsters? But that is what the Ordinance is. To give just one example, the state laws provide that the Review Committees -- to consider orders passed by the Home Department shall be headed by the Chief Secretary, but the Ordinance requires that the corresponding Committee for terrorists must be headed by a High Court judge. What entitles terrorists or their agents to greater solicitude?

Similarly, consider the deletion of "disruptive activities" from the Ordinance. TADA provided that any action that questions or disrupts the sovereignty and territorial integrity of India or is intended to do so, or which is intended to bring about or supports a claim for the secession of any part of India from the Union shall be a crime under TADA. Imagine how far we have fallen when even such a provision has had to be jettisoned -- even from a law the specific purpose of which is to thwart terrorists out to break our country.

The charge that such provisions were used against Muslims, that TADA was an anti-minorities law was a travesty. The facts, as I had pointed out at the time, were completely to the contrary. The notorious case of abuse was by the Congress-I led Government of Gujarat: it threw almost 19,000 persons in jail under TADA, and these were farmers opposing its policies. I don�t recall any protests against that abuse by those who are now imagining possible abuses in the future. Just as important, ninety eight per cent of those arrested in Gujarat got bail under that very Act from the courts. In Kashmir it is true that the overwhelming proportion of persons held under TADA were Muslims: but they were arrested not because they were Muslims, they were arrested because they were out to break the country. These two instances apart, the proportion of Muslims among the total arrested under TADA was only 4.5 per cent.

But such is the shadow that the falsehoods circulated at the time cast, that even six years later, and with thousands more having been killed by terrorists, the provision about activities aimed at disrupting the sovereignty and territorial integrity of the country has had to be excluded from the Ordinance.

"But what was the need for an Ordinance? Should the Government not have first evolved a consensus on the matter?"

Is there never to be a finality? Not even in a matter relating to the security of the country? Guess since when the efforts to bring about a consensus on this law have been going on? Since May 1995. TADA was allowed to lapse because opportunist politicians looking for issues that would curry favour with the Muslim vote bank saw an opportunity. That itself was a crime -- an instrument vital to the security and defence of the country was sacrificed to the crassest political calculation. Then began the long march.

A Criminal Law Amendment Bill was drafted and circulated in 1995. It was abandoned. Consultations continued with all and sundry. The matter was eventually referred to the Law Commission in 1998. That Commission deliberated on the question for two years -- giving its report and draft Bill in April 2000.

That draft was considered at meetings of Directors General and Inspectors General of Police, of Chief Secretaries and Home Secretaries of state governments. It was considered at the Chief Ministers� Conference on Internal Security last year. It was sent to the Human Rights Commission for its observations. It was sent to the state governments for their comments.

Should the process go on indefinitely? And what are the prospects of "evolving a consensus" when it has become an article of faith of everyone who is out of office that his job is to block everything a Government does? That his job is to block even what he was doing when he was in office, in fact even what he is today doing in the states in which he is in office?

The comments that the states sent to the draft Bill themselves tell the tale. The Congress(I) is opposing the Ordinance. In fact, when the Law Commission�s draft was circulated, the (Congress-I) Government of Delhi supported the enactment of the law in toto. The (Congress-I) Government of Karnataka supported the enactment of the law in toto.

The (Congress-I) Government of Nagaland supported the law in toto. The (Congress-I) Government of Madhya Pradesh, the (Congress-I) Government of Rajasthan, and the (Congress-I) Government of Maharashtra supported the enactment of the law, they sent suggestions about specific clauses.

The CPI(M) Governments of Kerala, West Bengal and Tripura sent their usual "principled" opposition. That Government in Kerala has gone. The one in West Bengal is trying to cover up its embarrassment for having finalised its own version of the Maharashtra Act. The Government of Tripura, after some initial show of reluctance because of "the party�s stand", has begun using corresponding provisions from other enactments relating to national security.

Not just those governments in the states, representatives of those parties at "the national level" have in general endorsed the need for a law to deal specifically with terrorists and their organizations. The leading figure in Parliament from the CPI(M) went so far as to counsel Government that it should study what Israel is doing in the matter. One of the most highly regarded leaders of the Congress(I) in Parliament stated that the Indian Penal Code is inadequate for combating terrorism, that a special law is needed, that in fact the draft Bill itself was not adequate. Nailing the falsehood that is being circulated, he said that the Bill does not shift the onus of proof on to the accused, that the provisions only seek to raise a presumption in certain circumstances. He said that there were many loopholes in the Bill, and for that reason it should go to the Select Committee or Standing Committee of the House...

This process has been going on for six years. In the meanwhile terrorists have continued to maim, kill, blow up, bum...

Fifty-five thousand people killed... that is five times the number we have lost in the 1962, 1965, 1971 and Kargil wars. And we are still stalled -- awaiting a consensus before getting even a law in place to deal with terrorism.

My plea, therefore, is the one opposite to that of the critics: the Ordinance should be approved at the first opportunity, and soon thereafter toughened -- the diluted provisions should be replaced by tougher ones -- closer to those of TADA.

Part I - POTO: Interception, Confession, Confessions, Torture

BJP Today
December 1-15, 2001

POTO: Interception, Confession, Confessions, Torture (Part I of II)

Arun Shourie
"But look at Chapter V. It allows the police, the intelligence agencies to listen in to and intercept communications between any of us whatever means we use: electronic, wire, oral, paging devices, tracking devices. This wasn�t there in the Law Commission draft. It is a clear license to police, IB, CBI, anyone the Government fancies to invade our privacy."

First, about the Law Commission. While arguing that provisions on a particular matter were not in its draft, critics obscure the fact that the entire question of having or not having a special law to deal with terrorist crimes and organizations -- had been referred to the Law Commission, and that the Law Commission did not just endorse the proposal for having such a law, it provided a detailed draft also entitled, "Prevention of Terrorism Bill, 2000."

Second, recommendations of the Law Commission are just one of the inputs that go into the final outcome: it is ultimately the Government�s job, it is not just its power but also its responsibility to forge the instrument that is required. In this instance, the Government had before it, in addition to the Law Commission�s report, the laws in other countries - the UK the USA, Canada, among others; it had before it the law as it is being administered in Maharashtra; the laws that have been passed by the Assemblies of Karnataka and Andhra.

The Law Commission draft did not have anything on intercepts. Does this mean that -- even though ever so often it is only through intercepts that the contacts between a controller sitting in Pakistan and his agents and instruments here can be proven -- no provision about intercepts should be included? Should we not take account of the experience we have gained in Maharashtra, for instance? That it is precisely through intercepts that the Government there has been able to nail the exchanges between dons in Dubai and their agents in Mumbai? The provision in the Law Commission draft relating to financial dealings of terrorists and their organizations was found on examination to be inadequate. Should the Government have stuck to the draft even when it had reason to believe that a more effective provision was required?

"But what about confessions being declared to be evidence admissible in courts? People can be made to confess to all sorts of deeds by methods that our police uses."

True, under ordinary law confessions made to a police officer are not admissible as evidence. And to gauge the result you don�t have to look far: just see what is happening in the Jessica Lal murder and the Gulshan Rai murder cases -- several persons saw the victims being murdered; one eye-witness after the other is going back on what he told the police. When conviction in even an ordinary murder can be thwarted by such a simple device, what will a terrorist organization -- one that can bring to bear pressures infinitely more frightening than an ordinary criminal -- not be able to ensure?

Arun Jaitley has given a telling illustration: not one of the persons who were eventually convicted for Rajiv Gandhi�s assassination could have been convicted had confessions not been admissible. In the case of every single accused, the Supreme Court�s pronouncement begins by recounting that the person has recorded a confessional statement. Next the Court sets out the averments in that confession which are incriminating. It then sets out some ancillary material which leads it to believe that the confession is true. The truth of the confession established, the Court pronounces the person to be guilty.

Thus, Accused-1, Nalini: "The principal item of evidence available in this case is her own confessional statement recorded on 9-8-1991..." Ancillary factors are then listed, and the Court concludes that this corroborative evidence establishes the truth of the confession. Accused-2, Santhan alias Raviraj: "His confessional statement was recorded on 17-9-1991... The incriminating admissions contained in (it) are the following...." Corroborative evidence establishes the truth of the confession. Accused-3, Murugan alias Das: His confession was recorded on 9-8-1991. Confessional statement of Nalini and other corroborative evidence confirms Murugan�s confession to be true. "The active and positive involvement of A-3 (Murugan) in the conspiracy for assassinating Rajiv Gandhi looms large in the said confession. We have, therefore, no doubt that A-3 was also one of the conspirators." A-4 to A-8, confessions not recorded, and/or acquitted. Accused-9, Robert Payas: confession recorded. Ancillary factors "have rendered the confessional statement made by A-9 in Exhibit P-85 as wholly true. We, therefore, concur with the finding of the Special Judge that A-9 (Robert Payas) was very much involved in the conspiracy to assassinate Rajiv Gandhi." A-10, A-12, A-18... In each instance the same sequence is repeated: confessional statement, ancillary factors confirm this as true, therefore guilty.

Nor is the point confined to what the Supreme Court has held in regard to these particular individuals. The judgment pronounces on the law in this regard. The Court specifically holds that confessions are admissible as evidence; that even if the police officer has forgotten to obtain the confessions made under TADA are valid for charges under another statute, in this case the IPC.

Given the quarters who are denouncing a provision like this so volubly, it is also good to note what the corresponding provisions are under the law in operation in Maharashtra, as well as the bills passed in Andhra and in Karnataka -- each of them provides that the confessional statement shall be admissible as evidence against the person who has made the confession, that it shall be admissible against a co-accused, that it shall be admissible against the abettor as well as against the co-conspirator.

It just so happens, and this is the point to which I shall revert, that the Ordinance is far more restrictive than these laws, indeed than what has been specifically upheld by the Supreme Court even in regard to confessions. To take on specific: under the Ordinance, confession made by a person shall not be admissible in a proceeding against a co-accused.

"But the fellow will be tortured and made to confess to whatever the police want."

Under TADA the accused could the kept in police custody for 60 days, and in judicial custody up to a year. Under this Ordinance, the limits have been cut down to 30 days and 180 days respectively. The family of the person is to be informed immediately upon his arrest. Before he is interrogated the person is to be informed in writing that he is not bound to make a confession.

The confession can be recorded only by an officer of or above the rank of Superintendent of Police. It must be recorded before a court within 48 hours. The court is to inquire of the accused whether he has been tortured or maltreated. If he alleges that he has been maltreated, the court is to record the allegation, and direct an immediate medical examination. Most important, the lawyer of the accused is to be allowed to meet him during interrogation.

Part II - POTO: Approve Swiftly, and then Toughen it

BJP Today
December 1-15, 2001