Sunday, November 23, 2014

Citizenship to be enhanced,empowered and saved irrespective of identity in defence of democracy! The media,intelligentsia,civil society,social organisations,activist, the masses across identities,the working class, professionals, employees,social forces most decisive as the women,students and youth,even the NGOs have to stand united rock solid so that we may revive the fundamental rights at least. Palash Biswas

Citizenship to be enhanced,empowered and saved irrespective of identity in defence of democracy!

The media,intelligentsia,civil society,social organisations,activist, the masses across identities,the working class, professionals, employees,social forces most decisive as the women,students and youth,even the NGOs have to stand united rock solid so that we may revive the fundamental rights at least.

Palash Biswas

Just read:

Fundamental rights in India

From Wikipedia, the free encyclopedia

Let us,we the people of India stand united rock solid celebrating our fundamental rights as defined very well in the preamble of Indian constitution lest we should lose the democracy for ever.

Citizenship to be enhanced,empowered and saved irrespective of identity in defence of democracy!

Mind you neo nazi ruling hegemony has reduced citizenship to biometric digital robots to be controlled by remote with robotic technology and infinite surveillance global which has to be used,misused and abused  and if it suits the hegemony,discarded branding the concerned citizens as anti national extremist,terrorists and so on to protect foreign capital,black money and foreign interests.

We should be aware of the violation of human rights and civic rights as armed forces special power act continues in Kashmir and entire northeast specifically Manipur and salwa judum is the culture killing fifth and sixth schedule to put every natural resource and everything public on auction and foreign investors taking over all kinds of gods and semigods,FDI becoming the religion,knowledge reduced to economy and subsidies being wiped out under infinite  growth of neoliberal children who control the economy as well as politics making democracy and constitution quite irrelevant.

We should go through the reports of human rights organisations and investigate the truth about shining sensex India and the reality of the wellness of the citizens under the neo nazi regime of minimum governance meaning corporate lobbying naked,corporate funding,corporate supremacy,monopolistic corporate management and execution subjecting the communities associated with agrarian India, and those engaged in small retail business,living out of Aryavart and belonging to non aryan geography and demography to infinite persecution and ethnic cleansing as the rulers` culture is all about apartheid practiced on the name of identities,castes and religion.

It is shame that rule of law means nothing to the masses, specifically to the common man irrespective of origin and all the excluded communities specifically the Adivasi people in India.

It is shame that the working classes are being deprived of labour laws as the agrarian India is being ejected out of home and the land is handed over to builder promoters all on the development and infrastructure.

It is a shame that environment ,climate,biocycle,ecology and the landscape of the nation along with different humanscapes have been subjected to monopolistic aggression to feed corporate projects and every law have to amended accordingly violating constitutional framework before US President celebrates Indian Republic Day.

The finance ministry is engaged to manage corporate interests subjecting the citizenship to an undertrial who would not be tried at all and has to wither away as the state itself is withering away in omnipotent and absolute corporate raj flavoured with unprecedented hate campaign against minorities and the fatal recipe is plated as blind religious nationalism.

Foreign ministry has been taken over and the minister of foreign affairs seems to be unemployed as the millions of unemployed youth and those PSU employees selected for killing

It is shame for Indian democracy that governance is all about US linguistics and aesthetics for which one prime minister had been dismissed with landslide popular mandate created by the neoliberal children just because investment amounting  billion dollars had been dumped for political correctness and lo,the new prime minister is accomplishing the task of neoliberal second generation of reforms with merciless,brutal,surgical precision injecting anesthesia into the nerves of the nation and the injection is the all about manusmriti discipline which in accordance with international law and UN charter for human rights and citizenship is nothing but naked apartheid.

The corporate government of India is in unprecedented hurry to finish the task with anti people legislation and extra constitutional policy making killing the democracy,parliament and entire democratic set up as it killed the planning commission!

The immediate urgency to finalise arms shopping list should be understood and read in the light of the imminent visit of US President as the hegemony has invited hundreds,thousands of East India Companies to rule India and making every part of India a SEZ or Mega SEZ,Industrial corridor, Nuclear plant cluster.

As the Republic of India is endangered and the Republic Day is celebrated and hosted by foreign corporate interest,we have to opt for an alternative republic day,people`s republic day and that should be the constitution day,26 th November as on this day way back in 1949,we pledged to constitute the Republic of India opting for parliamentary democracy by the people,for the people and of the people.

These are the opening words of the preamble to the Indian Constitution

" WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity;

and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;


The identity blind religious nationalism and the free market economy jointly have launched a war against Indian citizens and the citizens have no right at all including civic and human rights.Whereas our forefathers pledged  to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity;

and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation!

Democracy along with the people of India have been targeted with monopolistic multinational corporate aggression and it is not merely a coincidence that the man who had been denied US VISA since Gujarat genocide and as soon as the ruling corporate racial hegemony elected him the Prime Minister of India,he has become the blue eyed boy of the unipolar   zionist imperialism aligned with manusmriti flagbearer global hindutva and for the first time in history,US President,the first black untouchable President elected twice,have to be the guest of honour on the Republic Day whereas the free market corporate Hindutva governance has made the republic,an essentially welfare state as the preamble is concerned,and the parliamentary system irrelevant and the Indian people have virtually no representation in the governments,legislatures and entire democratic setup governed and managed by the millionaire billionaire corporate class.

Fundamental rights have no existence as every law made hitherto is being reenacted with corporate expertise to suit the singular agenda of free flow of foreign capital killing the constitution,the mocracy,civic and human rights, education and medical care, job security, food, clothing,employment, livelihood,basic services,environment,ecology,climate,weather and nature.

The trickling growth is all about the sustenance of cash liquidity to feed purchasing power to the deprived so that the free market economy to the rural India and reducing citizenship into decultured consumer status.

we have no scope of public hearing whatsoever and minimum governance means and anarchy overwhelming where the economy is reduced into indices volatile and the production system,the agrarian and business communities along with every class and community not having purchasing power to sustain,have been subjected to mass destruction.

This free market regime as decontrolled,deregulated governance of ethnic cleansing,displacement and deportation have been expressed very well in milestone incidents of free India ie green revolution pumping in foreign capital since sixties on the name of socialism,continuous denial of land reforms hitherto, displacement of nature associated communities from Jal Jangal Jameen, environment and natural resources,armament and militarisation of the state resultant in a status of greatest consumer and purchaser of arms and weapons,nuclear radioactivity and the energy drive killing the man and nature,changing harvesting and deleting desi seeds to opt for modified seeds,fertilizers and pesticides to poison our food resultant in Bhopal Gas Tragedy,resurrection of Manusmriti neo nazi brigade since Sikh Genocide and we have been subjected to a continuous holocaust in riots of every kind,Babri mosque demolition coincidental with zionist attacks against middle east and palestine as well as the continued oil war and US war against terror which subjected India to continued terror strikes and making it an excuse,fundamental rights being challenged ,reduced and killed.

Since Indian Republic has been hijacked by anti national extra constitutional corporate,builder promoter mafia and omnipotent global war economy with its corporate might,we have no survival kit at present and stand with zero balance to defend us against ethnic cleansing as the citizens of India.

The media,intelligentsia,civil society,social organisations,activist, the masses across identities,the working class, professionals, employees,social forces most decisive as the women,students and youth have to stand united rock solid so that we may revive the fundamental rights at least.

Just read the Times of India report published on December 21,2013:

About three-fourths of the total prisoners in India are undertrials, says a new report by National Social Watch, a network of civil society organizations.

"According to a note circulated by the law ministry in 2010, there are over three lakh undertrial prisoners in jails across the country. About two lakh of them are imprisoned for several years primarily because of delays in the justice delivery system. In some cases, prisoners have been behind bars for more than the maximum term of imprisonment for offences they had been charged with," says the overview document of the 2013 report released on Tuesday.

The report said such a state of affairs was a consequence of high pendency of cases in the courts. It also noted that while Mumbai had 1.41 lakh pending trial cases in December 2010, another 20,725 were added the next year. In 2011, 12,296 cases were disposed of. Tellingly, only 2,082 (17%) resulted in convictions.

our high courts — Allahabad, Madras, Calcutta and Bombay — alone account for 50% of the total pending cases, according to the report. The states of Uttar Pradesh, Maharashtra, West Bengal and Gujarat together have about half of the total pending cases. The total number of pending cases, the report observed, had risen from 2.81 crore in 2004 to 3.17 crore in 2011.

"On an average three people were placed in the space earmarked for two prisoners. In a way this is another form of human rights violation," says the report's overview document.

Executive director of the National Foundation for India Amitabh Behar, who is one of the editors of the report, says that the clogging of cases could be partly taken care of locally, with measures such as the Gram Nyayalayas Act of 2008 which was meant to provide local courts to the rural population. However, it never took off. "It was a very ambitious scheme for creating new mechanisms for dispensing justice locally. Because of an absence of such bodies at the local level, clogging continues in other courts," says Behar.

The report also sought to correlate pendency of cases and the state of under trials in prison to the strength of judges in courts not keeping up with the rising number of vacancies. While the strength of judges in district and subordinate courts increased from 14,412 in January 2006 to 18,123 in September 2011, the proportion of vacancies in the same period increased from 19% to 21%.

Meanwhile in the high courts, the sanctioned strength of judges increased from 726 in April 2006 to 895 in January 2012. The proportion of vacancies in the same period increased from 21% to 31%. A similar trend was observed in the Supreme Court where the strength of judges increased from 26 in April 2006 to 31 in the same period. However, vacancies doubled from two to four in those six years.

Legal scholar and lawyer advocate Geeta Ramaseshan of the Madras high court says that the size of the judiciary has not kept up with the rising population. "Litigations under the civil laws are extraordinarily delayed, and the system is severely failing. Because of this, people are turning towards criminal laws, where the process itself is a punishment," she adds.

Freeing the undertrial



Without substantive reforms to the investigation and trial process, early release of undertrials may further aggravate the pathologically low rates of conviction and incarceration in the Indian criminal justice system

On September 4, a Supreme Court bench comprising Justices Kurian Joseph, R.F. Nariman and Chief Justice R.M. Lodha relied on Section 436A of the Criminal Procedure Code, 1973 (CrPC) to direct all States to release undertrials in prison for more than half the sentence they would serve if convicted within a period of two months. The Bench went further to direct the Central government to provide a road map for "fast-tracking" the entire criminal justice system — not just certain classes of cases. Not surprisingly, this order has attracted widespread media coverage; some civil society organisations have described it as "inspiring and welcome." Will an activist court and a decisive Union government together solve the problem of languishing undertrials in the next two months?

In this piece we show that Section 436A is unlikely to be the solution to the undertrial problem in India. Further, to arrive at any solution, we must conceptually clarify and empirically understand what the "undertrial problem" is. Is it the proportion of undertrials to convicts in the Indian prison system, or the undue length of detention without proof of guilt or the socio-economic profile of the undertrial that lies at the core of the problem? The precision in answering this is the key to devise an effective law-and-policy solution.

The primary constitutional and moral concern with undertrial detention is that it violates the normative principle that there should be no punishment before a finding of guilt by due process. So, undertrial detention of those suspected, investigated or accused of an offence effectively detains the "innocent." However, all criminal justice systems across the world authorise limited pretrial incarceration to facilitate investigation and ensure the presence of accused persons during trial. So, the critical challenge in this area is to identify the normatively optimal and necessary level of pretrial incarceration and then design a criminal justice system to achieve this.

Empirical claim

The Indian debate on the "undertrial problem" begins with the empirical claim that the proportion of undertrials to convicts in our prison system is too high. In 2012, undertrials comprised 66 per cent of the prison population, and in the period 2001-2010 this rate has on average been a stubborn 67 per cent. Is this high proportion of undertrials normatively undesirable or a sign of a pathological criminal justice system? A high undertrial proportion in the prison population may be the result of too many arrests during the investigation and trial process or too few convictions at the end of trial. India has an exceptionally low rate of incarceration which is defined as the number of persons in prison per 1,00,000 population. The International Centre for Prison Studies (ICPS) points out that at 30 (2012) the Indian incarceration rate is among the 10 lowest rates in the world. Mali (32) and the island nation of Comoros (28) are on either side. Our South Asian neighbours (Pakistan – 41; Bangladesh – 42) recorded higher rates of incarceration but similar percentages of undertrial detention (Pakistan 66 per cent/Bangladesh 68 per cent). By contrast, the United States displays an exceptionally high incarceration rate (707 in 2012) and a relatively low proportion of pretrial detainees in the prison population (21 per cent).

In absolute numbers, in 2013, there were around 2,49,800 undertrials in India and they formed roughly 70 per cent of the prison population. In the U.S., in the same year, there were more than double that number of remand non-convicted prisoners (4,75,692). Yet they formed only 21.2 per cent of the prison population. While there may be scope for a substantive debate about which countries offer the appropriate comparison to India, there is no doubt that the fact of India's high percentage of undertrial incarceration must be placed in the context of the relatively small size of its prison population overall. Any effort to identify the optimal or normatively justifiable rate of undertrial detention must account for the pathological failures of the Indian criminal justice system to convict and imprison despite the overwhelming public concern with the failure of public order and security. If our conviction rate improves, then the proportion of undertrials will drop. Taken alone, the high proportion of undertrials in India is a sign of a pathological criminal justice system. Unless we can show that current undertrial detention is for excessively long periods or disproportionately targets the poor and the marginalised, the proportion by itself is not the core problem that we need to focus on.

Offences and length of detention

The excessive length of undertrial detention has been a subject of judicial, media and civil society concern. Section 436A was introduced into the CrPC in 2005 to mandatorily release on bail all undertrials who have already served half the period of their sentence if convicted. The Supreme Court, in its recent order, and civil society groups have invoked Section 436A of the CrPC as the primary strategy to reduce the undertrial population. This strategy would work if undertrials are in fact detained for inordinately long periods of time.

However, the available National Crime Records Bureau (NCRB) data on prisons shows that between 2001 and 2010, on average around 40 per cent of undertrials incarcerated in the country spent less than three months in prison; the largest single category among periods of detention. Further, during the same period, over 60 per cent of undertrials on average were detained for less than six months. If we include the percentage of undertrials detained for over six months but less than a year, we find that on average over 80 per cent of undertrials in India spent less than one year in prison during the years under consideration. The offences for which these undertrials are being investigated or tried make the futility of a Section 436A strategy apparent. We conservatively estimate that at least 75 per cent of all undertrials between 2001 and 2010 in the country were detained for offences with a maximum punishment of three years and above and could be detained for up to 18 months under Section 436A. The single largest category of undertrials by offence was that of murder, which accounted for close to 22 per cent of all undertrials on average each year. Hence, relatively short periods of undertrial detention for an overwhelming majority of undertrials than is commonly assumed, together with the long sentences attached to the offences undertrials are investigated or accused of leads inevitably to the conclusion that very few undertrials may benefit from Section 436A. The enactment of Section 436A in 2005 had little impact on the composition of the prison population thereafter. The new enthusiasm to implement this provision is welcome but is unlikely to be a substantive solution to the "undertrial problem." If undertrial detention numbers are a problem, we must re-articulate what is the normatively acceptable length of pretrial detention. If we conclude that the requirement of mandatory release, barring in a few limited circumstances, is on the filing of a charge sheet within a period of 90 days from arrest then we are likely to reduce undertrial detention numbers significantly (60 per cent of undertrials). However, without substantive reforms to the investigation and trial process, early release may further aggravate the pathologically low rates of conviction and incarceration in the Indian criminal justice system.

Profile data

Irrespective of the length of undertrial detention, the core of the undertrial problem may be its disparate social, economic and religious impact. While existing data sources are inadequate, our preliminary research suggests that the illiterate, lower castes and members of religious minorities are over-represented in the undertrial population. In 2012, close to 74 per cent was either illiterate (30 per cent of the undertrial population but only 18 per cent of the Indian population) or had studied below Class 10 (43.3 per cent of the undertrial population). Similarly, Muslims (21 per cent/14 per cent), Scheduled Castes (22.4 per cent/16.2 per cent), Scheduled Tribes (13.3 per cent/8.2 per cent) are over-represented. In order to show that this is a deliberate or structural result of the prosecution or bail process, we need access to the profile of those arrested. This data is currently unavailable. Nevertheless, a policy response that assumes that the disproportionate numbers of socially and economically disadvantaged people are subject to unnecessary undertrial detention calls for a focussed Centrally sponsored public defender programme to replace the ham-handed legal aid services currently administered.

So far we have argued that legal and public policy responses to the undertrial problem should not proceed solely on the proportion of undertrials in the prison population. Arguably, the high proportion of undertrials is a reflection of the pathological failure of the criminal justice system to successfully convict and thereby secure peace and security. This failure must be resolved by focussing on systematic institutional reform of the investigation and prosecution of offences. Second, our current legal strategy assumes inordinately long periods of undertrial detention and we show that a Section 436A-focussed strategy will have minimal impact on the undertrial population overall. New rules mandating release on the filing of a charge sheet — barring limited exceptional circumstances — along with a Centrally sponsored public defenders programme that weeds out the overt or structural discrimination in the criminal justice system is the best bet for a targeted intervention to reduce the length and eliminate the disparate impact in undertrial detention in India.

(Dr. Sudhir Krishnaswamy is a Professor, Azim Premji University and Visiting Dr B.R. Ambedkar Professor of Indian Constitutional Law at Columbia Law School. Shishir Bail is a Research Associate at Azim Premji University.)

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