Perspective | Oped


Anticipatory bail
High-class offenders are main beneficiaries
by Hemant Kumar
Recently, the vacation bench of the Supreme Court of India passed a standard order in all petitions seeking the grant of anticipatory bail by directing petitioners in all such pleas to surrender before the trial court concerned and then seek bail.


Bandhs vs people
July 5, 2008
Threat is serious
July 4, 2008
Resorting to passions
July 3, 2008
PM bites the bullet
July 2, 2008
The best way-out
July 1, 2008
Unbridled inflation
June 30, 2008
Communal divide
June 29, 2008
Bahadur Sam
June 28, 2008
Pak crisis deepens
June 27, 2008
Pay more for loans
June 26, 2008
Religion, not ideology
June 25, 2008
OPEC whimper
June 24, 2008
Poor man’s burden
June 23, 2008
Leaving the IAS
June 22, 2008


Rising prices
Time to streamline the PDS
by Mohan Dharia
The prices of essential commodities have been rising for the past several months and life of the poor people and even the middle classes has become miserable. Though the government has announced measures to maintain the price line, adequate action has not so far been taken.

A victim called Ashish Nandy
by Harihar Swarup
The Constitution of India guarantees that "all citizens shall have the right to freedom of speech and expression". It implies that an Indian citizen can, orally or in writing, is free to express his views.

On Record
‘Govt refuses to outlaw torture’Suhas Chakma
by Vibha Sharma
Suhas Chakma is the Director of Asian Centre for Human Rights, which recently published “Torture in India 2008: A State of Denial” — a nationwide assessment on custodial torture in India.



Anticipatory bail
High-class offenders are main beneficiaries
by Hemant Kumar

Recently, the vacation bench of the Supreme Court of India passed a standard order in all petitions seeking the grant of anticipatory bail by directing petitioners in all such pleas to surrender before the trial court concerned and then seek bail.

It was further directed that the courts concerned would hear such bail pleas on the day of their presentation, although the prosecuting agency must be intimated of the day on which it is to be moved.

Although the latest order of the apex court might not find favour with the legal fraternity and litigants, the flagrant abuse of the provision by habitual criminals and the indiscriminate grant of anticipatory bail by courts in a rather casual and liberal manner might have prompted the SC to express deep anguish and pass such an unusual order.

Although there is no denying the fact that the provision of anticipatory bail has become the most abused provision in recent years by the high and influential class of offenders.

The present exasperation of the Supreme Court on the grant of anticipatory bail is not new; it had time and again cautioned the courts below to exercise discretion in this regard judiciously and wisely, but in vain.

The legislatures of certain states though, in exercise of their legislative power, have carried out suitable amendments to the provision as per their state specific needs and requirements, but the only amendment enacted by Parliament in 2005 to resurrect the probabilities in abuse of the provision are still to see the light of the day, of course, due to a hue and cry raised by the legal fraternity nationwide.

The term “anticipatory bail” has nowhere been defined in the Criminal Procedure Code, 1973. Perhaps, this provision was not even provided in the old code viz. CrPC, 1898.

The provision, which was included in the 1973 code on the recommendations of the Law Commission, is a convenient mode of indication that it is possible to apply for bail in anticipation of arrest if a person has reasons to believe that he may be arrested on the accusation of having committed a non-bailable offence.

The term anticipatory bail is a misnomer in the sense that it does not stay the arrest but is operative in the way that the person shall be released in the event of his arrest.

The distinction between an ordinary order of bail and an order under Section 438, CrPC (anticipatory bail), is that while the former is granted after arrest, the latter is granted in anticipation of arrest and is, therefore, effective at the very moment of arrest.

The rationale of the Law Commission in suggesting such a provision was for providing immunity against arrest to such persons as fear being implicated in false and mischievous cases by their rivals owing to various vested interests.

It was recommended that these hapless persons need not submit themselves to custody before applying for bail. But in one of its subsequent reports, the Law Commission cautioned that the power to grant anticipatory bail should be used sparingly and not in a casual or routine manner and for reasons to be recorded.

Ever since the provision of anticipatory bail has found place in the statute, it has been resorted to mostly by the highly, influential and political personalities rather than the poor strata of society, giving rise to a feeling that some are “more equal than others” in the legal process.

The concept of anticipatory bail also means a package of “big fee” for those seasoned criminal lawyers who employ all their professional tactics to get an affirmative order in favour of their client.

Nowadays, when it has become a common feature to institute false cases against political opponents by the powers-that-be, anticipatory bail has proved to be a boon for victims of political vendetta.

But anticipatory bail has also been criticised as it hampers proper investigation of serious offences owing to the fact that holders of anticipatory bail often misuse their freedom to criminally intimidate and even assault witnesses and tamper with valuable evidence.

Armed with anticipatory bail, they are in a comparatively better and comfortable position than in the contrary situation where the Damocles’ sword of being arrested hangs over them.

Although in the grant of anticipatory bail, the courts ought to maintain a harmonious balance between individual liberty and societal interest, it has been noticed that sometimes courts are more inclined in favour of the former.

The foremost ambiguity regarding the grant of anticipatory bail is regarding its duration. Though in all logical sense, anticipatory bail ought to be only an interim remedy till a regular bail application is disposed of by the competent court.

But in the absence of any such clear limitation in Section 438, CrPC, certain judicial pronouncements have regarded that an order of anticipatory bail may not be limited to a particular period of time (Gurbaksh Singh Sibbia vs State of Punjab (AIR 1980 SC 1632).

Consequently, the anticipatory bail can also be granted till the person apprehending arrest exhausts all his legal remedies before all superior courts, although this view has been highly deprecated in subsequent verdicts of the apex court.

The order of anticipatory bail can also be stretched till the period of conclusion of trial, thus nullifying the provisions of 437 and 439, CrPC (relating to grant of regular bail while in custody).

Only last year, when a single judge of the Madurai Bench of the Madras High Court ruled against the grant of permanent anticipatory bail, a Full Bench was soon constituted by the Chief Justice of the High Court owing to a hue and cry raised by bar associations.

The Full Bench has overruled the single bench order and held the view contrary to it. Although the apex court has held conflicting views on the issue of duration of anticipatory bail, when the point arises to follow the principle of precedence, it is the opinion expressed by a larger bench that prevails (Gurbaksh Singh case).

This ambiguity needs to be addressed urgently, perhaps with the incorporation of a suitable amendment in the statute. Parliament also ought to prescribe a certain time-frame within which a court should dispose of the anticipatory bail application on the lines of the CrPC (West Bengal) Amendment Act, 1990, which has provided a time period of 30 days in this regard.

The next aspect relates to jurisdiction of courts granting the anticipatory bail. Though it is a settled legal position, even held by the apex court, that the court within whose jurisdiction the offence is alleged to have been committed has the sole discretion to try the offence and grant bail, certain judicial verdicts of various high courts have held that as the anticipatory bail pleas are against an apprehension of arrest, the court within whose jurisdiction the arrest is apprehended has also got the power to grant the anticipatory bail even though the case FIR may have been lodged in the jurisdiction of some other court. This point also calls for clarity. Only jurisdictional court(s) needs to be empowered for entertaining bail applications.

Though it has been held by the Supreme Court in a number of cases that anticipatory bail should not be granted normally in cases of heinous crimes like rape, murder, child abuse, dowry death etc, high courts have held different views on the issue. The Supreme Court needs to devise clear guidelines with regard to the grant of anticipatory bail on the lines of the award of the death penalty by trial and high courts.


Wit of the week

RBI Governor Y.V. ReddyThe most urgent and short-term priority for central bankers at the current juncture seems to be to calm the nerves about inflation or to anchor inflation expectations, with an implicit recognition that a somewhat elevated headline inflation in the short-term may be difficult to avoid.

— RBI Governor Y.V. Reddy

I am sorry if my book seems to place greater emphasis on General Jacob than Field Marshal Manekshaw. This was not an international emphasis. As the Chief of Staff of the eastern army, General Jacob was the key planner of operations in that sector and was involved in direct discussions with General Niazi in East Pakistan. Hence he got the center-stage.

Pakistani writer Shuja Nawaz, in his book “Crossed Swords – Pakistan, its Army and the Wars Within”

In the military system, the Chief of Staff only assists the army commander and he also acts as an adviser. In 1971, General Jacob was the Chief of Staff at the eastern command while Jagjit Aurora was the army commander. So the credit, if any, should be given to Aurora.

Lt Gen P.N. Hoon (retd)

Foreign Secretary Shivshankar MenonWe have been in touch with the NSG in previous meetings and this will continue. I don’t want to get into the issue of time frame. We will let you know once we take the decision to approach the IAE.

Foreign Secretary Shivshankar Menon

Honour your uniform. The government spends Rs 800 crore every year on this uniform (the police department) and this money does not come from the government, but from the public, the tax-payers… Start taking care of the public from now on.

Haryana DGP Ranjeev Dalal

SP general secretary Amar SinghWe are not fools to think that SP, with a strength of 39 in the Lok Sabha can be accommodated in the government. Going by the criterion which has been used to determine the representation of the UPA constituents, there will be pandemonium in the government if we were asked to come in.

SP general secretary Amar Singh

Indian football is moving on the right direction, but the pace is too slow. They think their stage leagues are more important than the I-League. They want to protect their interests only which is holding back Indian football.

National coach Bob Houghton

Nandan Nilekani, member of the IIT-Bombay Board of GovernorsI think this is a very unfortunate decision (reservations for teaching posts in the IITs). Our higher education needs a complete revamp just like the licence-permit raj was lifted for industry in 1991.

Nandan Nilekani, member of the IIT-Bombay Board of Governors



Rising prices
Time to streamline the PDS
by Mohan Dharia

The prices of essential commodities have been rising for the past several months and life of the poor people and even the middle classes has become miserable. Though the government has announced measures to maintain the price line, adequate action has not so far been taken.

It is a fact that the steep rise in the prices of crude oil has aggravated the issue. It is, however, possible to make essential articles available at reasonable prices to consumers along with remunerative price to the producers.

This calls for streamlining the public distribution system (PDS). The PDS is not only related with distribution, but also with production, procurement, storage, transport and planned distribution.

The government should prepare a calendar for the whole year, specifying the monthly requirement of each commodity for every state. The calendar for procurement and supply should also incorporate the demand for various festivals and marriage seasons at various places in the country.

On the basis of the requirement, the procurement, storage and supply of food items mainly through the PDS should be planned all over the country.

The prices of several essential commodities had gone sky-high during the Emergency. During our election campaign, we had assured the people to bring down the prices on a priority basis.

To begin with, for the smooth supply of wheat and rice, we removed the artificial zonal barriers. Wheat and rice producing farmers were happy with the remunerative prices and customers were satisfied as they could buy wheat and rice at reasonable prices.

This corrective and timely action helped in removing the scarcity and enough wheat and rice were easily available all over the country.

During this period, I emphasised on strengthening the PDS with proper care of providing reasonable profit to the cooperatives and private shopkeepers. Arrangements were made to procure Janata cloth, soap and sugar direct from factories, Tea from the Tea Board and coffee from the Coffee Board by eliminating middlemen. This helped in bringing down the inflated prices of these articles.

The prices of edible oils had gone up considerably and adequate edible oil was not available in the country. Except India, groundnut oil is not produced in other countries. Palm oil was abundantly available in countries like Malaysia. Indian people were never used to this oil.

After consulting chief ministers, I decided to introduce palm oil in the country and made it available at Rs 5 per kg, much cheaper than other oils. Though people were reluctant in the beginning, they accepted the cheap palm oil and it was possible for us to meet the demand of edible oils all over the country at a reasonable price.

Pulses were rarely produced in foreign countries. I was unhappy that an agricultural country like India should import edible oils or pulses. The government, therefore, decided to launch a massive programme to produce groundnut, soyabean, sunflower and pulses.

Prices of pulses were comparatively high and farmers produced them on their own initiative. For the first time an adequate support price was announced by the government for all edible oil seeds.

I would like to commend the services rendered by Dr V. Kurian, the then Chairman of the National Dairy Development Board, who was instrumental in taking up this massive campaign for the production of groundnuts. The lobby of oil merchants in Gujarat feared it would lose its monopoly on the edible oil trade. Dr V. Kurian carried the mission with all determination and succeeded in making India self-sufficient within the next two-three years. Very few are aware that four officers were killed by the “teliya lobby” to discourage this movement.

To urgently meet any shortage of agro produce including foodgrains, pulses, edible oils etc., it may be necessary to import the required items. However, top priority has to be given to produce such essential articles within the country.

Instead of incurring expenditure on these items and supporting foreign farmers, it is far more advisable to invest the amount in indigenous production.

It is necessary to revitalise the cooperate movement by encouraging motivated leaders and workers and changing the existing laws. Through cooperative societies, it is possible to strengthen the PDS and render due justice to millions of our people.

When there is abundant foreign exchange at the disposal of the government, why have the ministries failed to directly import the required commodities? Though armed with the Essential Commodities, the government remained inactive when the prices of essential commodities were rising in spite of ample stocks in the market.

When the cost of inputs had not risen much, why did the government allow the cement and steel manufacturers to push up the prices? Why were unscrupulous traders allowed to create an artificial scarcity?

It is a myth that an every- day supply of all articles is required in all parts of the country. Many articles like sugar, edible oil or even wheat and rice are more in demand in the festival and marriage seasons. Fertilis-ers are required at the time of sowing. The yearly calendar should specifically mention the demand and the government should make arrangements at least 15 days in advance to meet the same.

Fiscal measures are, no doubt, necessary. However, essential commodities cannot be produced only through fiscal measures. The government should immediately prepare an action programme covering the production, procurement, storage and distribution of essential items.

It may be interesting to note that during the years 1977-78 and 1978-79 the price line was stable and the government did not pay any dearness allowance. On the basis of my experience, I believe that my approach can be the only effective way to meet the challenge of rising prices. 

The writer was a Cabinet minister in the Janata government.



A victim called Ashish Nandy
by Harihar Swarup

The Constitution of India guarantees that "all citizens shall have the right to freedom of speech and expression". It implies that an Indian citizen can, orally or in writing, is free to express his views.

The Supreme Court has stressed on this Constitutional guarantee while restraining the Gujarat Government from arresting Ashish Nandy, an intellectual and thinker.

Nandi had written an article-"Blame the middle class" – allegedly promoting enmity within society. The apex court aptly posed the question: " If a journalist cannot write, who else will?"

"I have read the article and I find nothing objectionable in it", ruled Justice Altamas Kabir, who formed the Vacation Bench along with Justice G S Singhvi.

For those who are not familiar with 71-year-old Ashish Nandy and his work, he is an original and independent thinker. He is best known for his writings on colonialism but in recent years, he has come to be acknowledged as one of the founding figures of post-colonial studies.

Greatly respected across the subcontinent, Ashish is a Bengali Christian, born in Bhagalpur in Bihar and grew up in Kolkata. The culture and the past of that city were the most formative influence upon him.

For many years now he has lived in Delhi, based at the Centre for Study of Developing Societies. His formal training was in psychology, which continues to deeply influence his thinking.

He is the eldest of three sons of Satish Chandra Nandy and Prafulla Nalini Nandy. Ashish's mother was a teacher at La Martiniere, Kolkata and subsequently became the school's first Indian Vice-Principal.

When Ashish was 10, India was partitioned. He witnessed succession conflicts and atrocities that followed.

Nandy quit medical college before joining the university to study sociology. However, his academic interest tended increasingly towards clinical psychology and he did his Ph.D in psychology from Gujarat University, Ahmedabad.

Nandy has written extensively in the last two decades. His much-discussed book titled "The Intimate Enemy: Loss and Recovery of Self Under Colonialism", which was published in 1983 by the Oxford University Press, talked about psychological problems posed at a personal level by colonialism, for both the coloniser and the colonised.

Nandy argues that the understanding of self is intertwined with that of race, class and religion under colonialism, and that the Gandhian movement can be understood in part as an attempt to transcend a strong tendency of educated Indians to articulate political striving for Independence in European terms.

Through his prolific writing and other activities supported by his belief in non-violence, Nandy has offered penetrating analysis from different angles of a wide range of problems such as political disputes and racial conflicts, and has made suggestions about how human beings can exist together, and together globally, irrespective of national boundaries.

He has also served on a number of fact-finding commissions. He was part of teams sent to monitor elections in Bangladesh and Sri Lanka; moreover, activists use his writings widely, and Nandy has done his bit to bring activists and academics into conversation with each other.

The Gujarat police has given a new identity to Nandy, implicating him in a criminal case supposedly for "promoting enmity between different groups on grounds of religion, race, place of birth and language".

Neither Nandy nor many of his admirers would have ever imagined in their wildest dreams that a day would come when he would face prosecution for his writings.



On Record
‘Govt refuses to outlaw torture’
by Vibha Sharma

Suhas Chakma is the Director of Asian Centre for Human Rights, which recently published “Torture in India 2008: A State of Denial” — a nationwide assessment on custodial torture in India.

The report was released on the eve of the International Day Against Torture on June 26. The report says 7,468 persons, an average of 1,494 persons per year or four persons per day, have died and/or been killed in prison and police custody between 2002 and 2007.

Chakma is associated with several human rights’ organisations, including Amnesty International, Asian Indigenous and Tribal Peoples Network and International Work Group for Indigenous Affairs. Excerpts from an interview:

The number of persons killed in prison and police custody is huge. What is the single most important factor for this big number?

The single most factor for large-scale killings in custody is immunity provided to law enforcement personnel under Section 197 of the CrPC which makes it mandatory to seek prior permission from the state government concerned and the Centre to prosecute accused law enforcement personnel. This has created a belief among law enforcement personnel that they are beyond the reach of law.

What is the Indian government’s stand on the issue?

The government has refused to outlaw torture. It has failed to implement recommendations of the Law Commission made in the 152nd report on “custodial crimes” to make consequential amendments to the Indian Evidence Act, 1872 (insertion of Section 114B), to provide that “in case of custodial death the onus of proving innocence may be fixed on the police”.

India holds the dubious distinction of refusing an invitation to the United Nations Special Rapporteur on Torture for the longest period of time since 1993.

It has failed to ratify the UN Convention Against Torture. It has failed to ratify the UN Convention Against Torture. It has even failed to submit annual reports of the NHRC to the public. Pakistan in 1997, Nepal in 2005, China in 2005 and Sri Lanka in 2007 have all invited the Special Rapporteur on Torture. Even Nepal and Sri Lanka have ratified the UN Convention Against Torture.

Are you trying to say that the perpetration of torture is the government’s policy?

Certainly not. Torture is often perpetrated by individual law enforcement personnel. However, the government does not take any action and in a way allows such excesses.

Is the police the only agency committing torture in India?

No. An equal number of persons, if not more, die in the custody of the Army, central armed forces and state para-military forces in the insurgency, affected areas as a result of torture.

Armed opposition groups or insurgent groups also commit serious and systematic torture. Even loan-recovery agents of banks have been committing torture.

Which armed groups are more responsible for torture?

Among the armed groups the Naxalites systematically resort to torture, bodily harm and mutilation of their victims. They have at present most appalling human rights record where they mete out torture in front of other villagers.

In Manipur, cadres of the Kanglei Yaol Kanna Lup deliberately mutilate victims by bullet wounds to create fear among victims and in society.

In your opinion how can custodial brutality be dealt with?

The police brutality can be dealt with a law outlawing torture and fixing the responsibility at the level of the police station for any custodial crimes.

In addition, there is a need for regular visits to all places of detention by NHRC, state human rights commissions and NGOs. The state must pay reparation to victims and the same should be recovered from the guilty law enforcement personnel.

How effective has the NHRC been?

The NHRC has been addressing the issue of torture but its response has been inadequate both with regard to torture by law enforcement personnel as well as armed groups. Till date the NHRC has not done a single study on abuses committed by armed groups.

What is the role of NGOs to counter torture and other violations by armed groups?

We can just censure armed groups for torture. It is the duty of the government to bring perpetrators to justice. Organisations like Maoists have established a command structure and leadership of the Communist Party of India (Maoists) cannot escape the responsibility for the conduct of its cadres or for violations perpetrated by their cadres. International criminal law is absolutely clear about it.



HOME PAGE | Punjab | Haryana | Jammu & Kashmir | Himachal Pradesh | Regional Briefs | Nation | Opinions |
| Business | Sports | World | Letters | Chandigarh | Ludhiana | Delhi |
| Calendar | Weather | Archive | Subscribe | Suggestion | E-mail |