Tuesday, June 30, 2009

Reforming Criminal Justice System in India


Prof.Joseph K. Alexander
Chairman, IIPA Kerala Regional Branch.

Human society in its evolution instituted standards of conduct for family, school, religion, their working places and all kinds of other groupings. Survival of the group is the basic goal of all these rules and systems. Criminal law is one among them. While tort is an action against individual, criminal act is against the society. So preservation of the society is the aim of criminal law. Hence a criminal law that does not protect the vulnerable and weaker sections, which form the majority cannot be said to be just.

What I find most intriguing in the working of Indian Criminal Procedure Code System is that often the poor are the victims in criminal cases. Except for a few underworld and rich mafia who are in the dock of the CPC system, 99 % or more of the criminal cases, actions against, and jail term before and after conviction, are of the marginalized, poor, dalits, and downtrodden. Is it because the poor and hapless alone are the criminals in our society, or is it due to corruption of the police-judiciary-bureaucracy-politician nexus that can thwart any CP action against them; or is it because that others in the society are more literate and adopt sophisticated modalities that leave no trace for CP system to inculpate them in any criminal case? How can we tackle this problem?

The Amnesty international in a critique on the Malimath Committee Report point out the that its recommendations do not address the human rights of these underprivileged and vulnerable of the society. So the recommendation of this Report fails to make the criminal Justice system just.

A second problem is about the aim of CPC system. Reform of the offender and warning to the criminals is an objective of the implementation of CP system. In the notorious Aluva murder case Antony Manjooran dastardly murdered in cold-blood 6 persons of a family in a single night. The court sentenced him to death. He appealed to convert it to lifetime imprisonment. Last week the court rejected the appeal on the ground that the death sentence should remain as a warning to criminals. But the prolonged interment of pre-trial, under-trial and regular imprisoned criminals make the jails in India overcrowded and a hotbed of criminals to imbibe new crimes and new ways of doing them. The very purpose of CP system gets defeated. Instead of reforming them, our Jail System creates more criminals. Can we suggest viable and pragmatic solution?

A third issue that is seeking solution is that our CPC System tries to protect the accused. Rule of law and the rule that no person is guilty unless proved by law make the system circumlocutory and favouring the accused even at the cost of the victim. The law fails to protect the victim. This is flagrant in the rape cases where the victim is harassed in many different ways to disprove the case and to protect the accused. Any reform that does not address this can be said to be just. Can we orient our approach to Criminal Justice System of India to protect the victims also?

Another poser is the trial by media pointed out a fortnight ago by the 200th Report of the 17th Law Commission appointed by the Government of India. The press and the electronic media discuss cases under trial threadbare, and their opinions often influence the judges. The crime may get mollified and the criminal escapes while the victim of the crime is denied justice, or the crime is aggravated and an innocent man is punished while the real culprit escape. If we try to gag the media, the corrupted police, investigation and the judiciary may perpetrate injustice. Which is the benchmark between media trial and need for transparency to curb corruption.

Kerala-Lost inheritances.

If we want to retain Kerala's inheritance of good culture and life pattern, we have to bring up our children in the proper atmosphere. The Christian culture in Kerala is a typical case.The Vatican Congress of 1965 insist on proper "Procreation " of children. This term was invented by them. Procreation is creation of the child by the ambience and environment. The child is created biologically at home in the studio of married couple in family life. But it is procreated outside the womb of the mother by the family , the society, and the ecology and environment at home and outside.The family atmosphere , the educational and cultural equipment of parents, brothers, sisters and other elders at home, the preachers, teachers, friends they get in Schools and Colleges and all other out -of- home situations are all important in the procreation process.The youth's spouse and his / her family's cultural, educational and spiritual standards are also very pertinent in the upbringing of the youth into a man / woman and a member of a society or a Church.This again is the reason why the Vatican Congress and the Catholic Church insist on educating the Christian children only in their Christian Schools and Colleges and by Christian teachers or teachers who will not brainwash their children.So insistence on minority rights of the Christian institutions to own,start and administer their own educational institutions is very important. Our children can get proper procreation only in such institutions. It is our duty to provide them these institutions and environment. That alone can act as a bulwark against the onslaught of modern scienticism, bad aspects of world culture, the mad consumerism and satanic pursuit of money to satisfy the unlimited wants of modern man. An empirical instance of an attempt to annihilate our Christian inheritance is the present day Kerala LDF Government's ill-conceived legislations to Control admissions to the Self-financing professional Colleges in Kerala. This is on the pretext of corruption and capitation fees.While the public officialdom is immersed in corruption, their endeavor to take the spec in the eye of the private managements of self-financing private colleges, while their eyes are fully blind because of the log in it, is ludicrous. Irrespective of the colour of the coalition government, they collect votes and come to power to loot the community, to come to power. again for the same.It is the vested interests of misguided remnants of already dead communist ideologies, still lingering in Kerala, that attempt to destroy faith in God and religion. The LDF Government is trying to pry open the Article 30 of our Constitution that gives protection to the minorities and their faith.All the legislations and rules brought by the present LDF Government to strangle professional self-financing Colleges has been opposed by the people and defeated at all levels of the Judiciary . Still the Government like a brainless ram is hitting against the wall. One cannot be foolish enough to believe that the Law department of the Kerala Government has ill-advised the Government to push through such ill-thought -out ,half-baked legislations, that get automatically rejected by the judiciary. It is the obstinacy of the Government that repeat this blunder of last year in this year also. They are destroying the educational future of Kerala children. It is an unpardonable crime.The Government is incapable to manage efficiently its own schools and colleges and other public sector departments, or provide sufficient institutions for the development of human resources of the citizens. So private managements came forward to fill that lacunae. Specially so, for giving proper procreation, when they felt that this was in jeopardy. They have no money to invest in the infrastructure and buildings. So they collect the needed capital from those who seek admission in such institutions. They do not seek any help from the government for running those institutions, They are minority institutions. These minority institutions have the right to admit their own students in them and educate them. In the given situation they are even prepared to admit non-minority students also on their terms. Since they admit non-minority students also the Government and the University can insist on the standards of teachers and curriculum offered in those institutions , . But to enforce other restrictions like fees collected should not be tolerated. They have their capital and running expenses to meet. The user- cost must be born by the beneficiaries of the institution. The fees proposed and demanded by them is far less than the cost incurred per student by the Government in their institutions. So such restrictions is vindictive and unethical.There are many church members who, incidentally criticize the minority institutions of the church on the ground that they collect capitation fees from even the church members. it is true. But where else they can get the capital for the infrastructure. Will any one of us voluntarily donate even Rs.one lakh for such ventures, that require millions and billions . So I would rather applaud their action. because they enable our children to study inside Kerala. Your money do not go out of Kerala. It is used for the development of infrastructure and thereby the economic development of Kerala . And lastly, give employment to a large number of Kerala youth in these institutions. Moreover in the socio-political melee of Kerala society ,social or ethnic groups vie with one another for one-upmanship in the society by starting more schools and colleges or health care institutions. It is imperative for minorities and churches to be there in the competition. Other wise that group may get marginalized in the melee.Dead ideologies cannot be juxtaposed against these advantages.So let us train our children and our youth in our own ambience and institutions that will perpetrate and sustain our good old inheritance.That alone can thwart the threat to the loss of inheritance.

Legislature Vs Judiciary- in the 9th Schedule Perspective

A talk at IIPA meeting on March 27 Tuesday, 2007; by
Prof. Joseph K. Alexander
Chairman, Kerala IIPA Regional Branch.

Supremacy of Legislature.
What is the 9th Schedule? How it came into being? The Parliament passed the first amendment to the Indian Written Constitution in 1951 as Article 31B. Those were the days of land Reforms Acts. It was feared that some judges might pass an order that taking over of surplus lands or other parts of such legislations as violative of the fundamental Rights to property provided in Article 31.To prevent such eventualities, legislatures can request such of their acts that want protection to be included in the 9th schedule. The Legislatures by creating the 9th schedule were thus declaring their supreme power to pass laws. It was a warning to the Judiciary that they shall not overstep their limits and declare such laws in the 9th schedule as ultra vires because legislature represents the people and their will

Judiciary’s warning.
Judiciary swings the seesaw in their favour. In 1967 in the Golaknath case, Supreme Court by a razor- thin majority of 6:5 in an 11 member Full Bench Court declared that Parliament cannot pass any law that violate Fundamental rights stipulated in the constitution. This was an attempt to cut a few feathers of the Legislature to prevent super flights into absolute sovereignty in legislations.

Judiciary bends.
In 1973 in the Kesavanda Bharathy case Supreme Court by another razor-thin majority 7:6 in a 13 strong Full bench ruling said that Legislature could pass Laws that even amend Fundamental Rights, provided that such laws do not damage the basic Structure of the Constitution.

3 Issues arise.
1. What are Fundamental Rights?
2. What amounts to Violation of Fundamental rights?
3. What are the Basic features of the constitution that may get damaged?

The Fundamental Rights are stipulated in the Articles 14 to 35 of the Constitution. Article 14 to 18 prescribes the right to equality, 19 to 30 about secularism and freedom, 31 right o property and 32 to 35 about the right to constitutional remedies.

The separation of powers between Legislature, Judiciary and Executive; the clear-cut stipulation of subjects of Union, State and Concurrent list on which Union and States may pass laws; and the checks and balances that are provided in the constitution, compel all the participants of the Union to do a lot of tight-rope walking and balancing to remain within their realm and without over-stepping into the areas of others. Any act that violates any of these will be violating the Fundamental Rights.
Now let us see what are the damages that can happen to the basic character of the constitution. Any legislations or actions of anybody that violates the separation of powers between the legislature, Judiciary and the Executive, or abrogates any of the 3 lists --State, Union or concurrent -may change or damage the basic structure of the constitution. Supreme Court is the watchdog of all these possible violations.

I submit that this is the merit and the success of our written Constitution. Many of the States that got independence and self-government after the World War, sooner or later degenerated into other forms of Government. We have a number of examples around us. India was able to sustain a Pluralistic Democracy, all these years mainly because of our written Constitution and the watchdog, the Judiciary. The basic strength of the Indian Republic is this clear-cut separation of powers and areas of operation of the various parts of the state.

While our Constitution is very specific regarding the functions of the various parts of the Union and States, it is vague enough on the boarder areas of separation of powers to provide flexibility or malleability in law making, in the judicial review and execution of them. The units of the Union and the States are very vigilant about encroachment by other parts into these grey areas on the boarder lines. The present issue between the legislature and the judiciary is typical.

I would consider this as the most effective part of our written Constitution that enable us to sustain a Plural Democracy in such a vast nation of 103 crores of people of different cultures, customs, languages and religions. The credit is entirely with the framers of our Constitution.

Judiciary Claims Superiority.
On 11th January 2007 a 9 member Full bench of the Supreme Court unanimously ruled in the I.R.Coelho Vs. the State of Tamil Nadu case; that laws included in the 9th Schedule do not have protection of Article 31 B. Anybody can challenge any of them. Supreme Court’s interpretation will stand. Thus Judiciary is trying to claim superiority by asserting its watchdog function.

This latest judgment defeats the fundamental division of powers between the Legislature and Judiciary. It damages the basic feature of our constitution. It has disturbed a hornet nest. The Decree has opened a Pandora’s box. Any existing or new law that claim protection of Article 31 B and included in the 9th schedule can be challenged by any and Supreme Court Review will be final.

284 Acts have been included in the 9th Schedule. Of them 66 were included before the Kesavananda Bharathi case in 1973. They were mostly Agrarian Land Reforms. Those Acts passed after the Kesavananda Bharathy case ruling in 1973 violate fundamental rights; but without damaging the Structure of the Constitution. So they got into the 9th schedule. Now Supreme Court asserts that it has the power to review all of them and declare them as valid or invalid.
This assumption of superiority is too much. Legislature alone has the power to pass laws. The people elect them. Legislature is “vox populi”. They alone represent the people. Hence their sole right to pass laws is unquestionable.

It is true that now-adays many laws are passed by the legislatures in a single sitting like cooking Iddalies in a pot. Many of these laws are ill conceived, ill-framed and with the least homework. Some of these laws are presented in the parliament and passed with a brute majority and against opposition from the non-treasury benches, only to hoodwink the masses that voted them up. They want to parade before the voters that the election manifesto items are being implemented. They want to show them that the party wants such legislation; but the opposition is against it; or the courts are declaring them unconstitutional. This is really abuse of legislative power. Typical example is the Kerala “Self Management Professional Educational Act 2006”. All the courts that heard it declared it and its parts as violating the constitution.

Despite this type of immaturity and partisanship of modern parliamentarians, may I submit that Supreme Court cannot declare itself to be superior to the Legislature. Legislature alone has the power to pass the Laws. No Judiciary or Judicial review can amend it, or add or delete it. At best it can only interpret legislations. While thus admitting the superiority of the legislature to pass laws, the merit of our constitution is the limitations to the power of each of the parts of the State tacitly provided in the constitution. They should not overstep those limitations.

Wednesday, June 17, 2009


Evangelism and observance of the verse in St. Mathew 28:19 can be done in at least 4 or 5 different ways.
1.By preaching the good news
2. Mirroring Christ by one’s own life like the Judaic Christian sanyasis. They were silently christianizing the society
3. Proselytizing by persuasion.
4. Militant Proselytizing as Europeans, particularly the Portuguese, during the colonial period. Bishop Tutu of Africa complained:” They gave us the Bible and took away our land “.
5.The latest in the Western evangelism is the mass evangelism of great preachers likes Billy Graham and the creation of Electronic Church through television by Oral Roberts in 1954 and by Pat Robertson in 1960.

There is a basic difference between Western and Eastern Evangelism. West believe in Proselytizing and increasing the number of Christians and expanding the Church by hook or crook (example: Francis Xavier in the 1560s and Bishop Menses in Udayamperor Synod). Eastern Christianity believe in the second method of Christianizing the World by their life and preaching. Fr. Bijesh Philip, Professor of Nagpur Orthodox Seminary writes in "Theosis and Mission" a recently published book, "Mission is not a Christian commercial. It is a witnes and an act of love. It implies love for those whom it is directed, and love means self-giving, not simply giving something."
Malankara Christians.have imported during the last 4 centuries western evangelism. In our Orthodox Church H.G. Pathros Mar Ostathios started it in the 1940s followed by H.G Geevarghese Mar Osthathios. But let us remember that even now we do not believe in or practice militant evangelism. But Kerala Orthodox Christian expatriates in USA, Gulf, Europe, Malayasia, Australia and other parts of the World have globalised our church with parishes in different parts of the world. Kerala Christians have thus evolved a new type of evangelism that can be termed as “Global Evangelism”.