Reality Check India

AP Muslim Quota – Why cant I have what you just gave him ?

Posted in Uncategorized by realitycheck on February 18, 2010

The hardest cases in Justice ask the easiest questions.

The AP government is having a really hard time convincing the court with its Muslim quota. Its third attempt at 4% quota was rejected by a 7-judge bench of the AP High Court. (Related news).  (Link to judgment). The AP Congress government is preparing to appeal to the Supreme Court .

Ironically, this happened the same day the West Bengal government announced a 10% quota for Muslims. I had written almost 3 years back that the CPI-M in Bengal would be severely penalized for its quota policies. They seem to be getting around and correcting this mutant behaviour.

So, why is this happening ? Are the ground rules so unclear even for such a fundamental law ?

It is because people look at what other people get and assume they have a similar right to it. The absence of any visible evidence supporting necessity of special treatment strengthens perceptions. When it comes to quotas the touchstone is almost always Tamilnadu. The TN government had no trouble passing a Muslim quota, they even passed a Christian quota which was revoked on representations by the Christian community.

Here is Mr Syed Shahabuddin of NMMR (Muslim Reservation Movement)

New Delhi: Former Lok Sabha Member and Convener of National Movement for Muslim Reservation (NMMR), Syed Shahabuddin has termed as “unfortunate and deplorable” the ruling of Andhra Pradesh High Court quashing the 4% quota for backward Muslims in the state. “The Hon’ble High Court has ignored the fact that under Article 15 (1), read with Article 15 (4), reservation may be religion-specific or caste-specific or race-specific or language-specific, if the social group concerned passes the test of backwardness. It has also ignored the fact that several states, Karnataka, Tamil Nadu & Kerala have provided reservation for Muslims as a community and other religious groups,” Syed Shahabuddin said.

Source : Two Circle (emp mine)

Here is Mr Owaisi

“When Muslims in Tamil Nadu, Kerala and Karnataka are provided reservations, it is strange that it is getting quashed repeatedly in Andhra Pradesh High Court,” said Asaduddin Owaisi, Hyderabad MP and president of the Majlis-e-Ittehadul Muslimeen (MIM), who considers the latest verdict a severe blow to the community.

Source : Thaindian (emp a)

There is  lot of cheer from misinformed public as evident in online comments.  But this is not a case where you need to get involved in legal minutae.  It is far simpler and much harder.  The real question is : Does anyone have an answer to Mr Syed Shahbuddin and Mr Owaisi ? Why strict scrutiny for them in this case and not for Hindu castes in a much larger case involving 2% cess ? Remember large hindu castes are no different than muslims when it comes to quotas. Both are staging units for social justice.

This ad hoc benefit granting and protection is exactly what locks people into voting patterns. Destroys democracy because it would be against natural order to expect humans  to vote against self interest.

It is interesting the majority judges applied a narrow interpretation of strict scrutiny doctrine in Thakur (2007 OBC quota case).  It will be interesting how the Supreme Court deals with the AP governments appeal – given that several pending cases for Tamilnadu has not been addressed for decades.  Can eat cake and put it back in fridge.

Because as long as the fat kid enjoys his free milk shake and ice cream in the corner – other kids who see it are going to ask “Why only nimbu juice for us ?”. You better be prepared with an answer.

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Pune attack. Threat reality check.

Posted in Uncategorized by realitycheck on February 14, 2010

After weeks of obsessing over the safe release of a movie My Name Is Khan (featuring Mr Shah Rukh Khan) – we now get a jolt.  The terrorists have shown us the relative damage potential.  They do not give a rats ass about Valentines Day either.

This media manufactured news provided free publicity to Mr Khan and to Mr Thackeray. So how potent was the Shiv Sena threat ? Every visual I saw on TV of Shiv Sena activists had only close up shots. There were only about a dozen people behaving like general lunatics.

The safe second place strategy

To understand the issue, imagine you are Mr Thackeray. You wake up in the morning and find 8-10 TV OB vans outside your house.  Journalists (mostly impressionable young people in the process of being brainwashed and taught the art of ignoring the obvious)  are salivating outside your gate, waiting to catch a statement of yours.

This is a politicians dream.  The following outcome of this drama does not really bother the Shiv Sena :

  • Nationwide media ridicule  (eg, Tiger meows)
  • Exposing the potency of the threats issued by Shiv Seva
  • Further consolidation of the conventional wisdom by the media. The wisdom being : The Congress is benign and the others have issues.

Any leader could have assessed the above outcome based on his own strengths and popular sentiment.  So why did Shiv Sena paint its own face black ?

Here is the answer : There are a lot of parties that are quite content being a safe second or third place.  A shining example is the Congress party in Tamilnadu.  Maybe the Shiv Sena is quite happy these days protecting its business interests and assets of its core constituency. Maybe they don’t really have ambitions of anything bigger than the next real estate deal – which would go through a lot smoother if they played the ‘safe second place’ strategy.  More and more of Indian politics had moved to backroom negotiations over this or that deal.  The Congress has shown time and again that it has the power to calibrate the impact of any Sena threat. I’d be surprised if the Mumbai police does not know the names and addresses of the trouble makers by now.

Blasts in Pune kill 10 people.


Will the media ask the following tough questions to the party that rules at both the centre and state ? Will they resist the temptation to interpret and cushion ?

I have never been to Pune, but this strikes me as odd.

  • We are told we knew Mr Headley  conducted recon of the area
  • We know the German bakery was a well known hangout
  • Was there a security assessment done in that establishment? Similar ones?
  • In the wake of the knowledge of the recon : Was there anything done at all ?
  • What impact did the redirecting of the police force to protect a Bollywood movie impact any patrolling in that area ?  Who blew the Shiv Sena threat out of proportion and who underestimated the Congress’s power to calibrate the Senas impact ?

We cant prevent these terrorist acts.

We can only ensure that to conduct such a terrorist act would require the perpetrators to defeat some countermeasures first.

The media and its personalities in the recent weeks have shown themselves to be childish, partisan, and irresponsible name callers. Hopefully such incidents will make them change their ways and direct them to their main job. Reporting news faithfully. Yeah, I know, its unglamorous.

Quiz : Who or what is this ?

Posted in Uncategorized by realitycheck on February 11, 2010

Indian mainstream media showcase – Sec 507

Posted in Uncategorized by realitycheck on February 11, 2010

Thats it ! I am calling uncle.

Ms Sagarika Ghose has a twitter account – big deal you say.  A lot of Indian and international journos are on twitter. However, she is different. She seems to take every tweet personally, gets easily offended, and rains down abuse on those who pan her tweets. Lady, the point is you don’t have to reply to everyone and get your blood pressure up.  You do not even have to be on Twitter.

Twitter is a participative public medium. Once you tweet, its out there in the internet.  If you do not want that, you may choose to protect your tweets. If you open it up searching for upsides then you have to deal with the undesirable. You do not get to control whether your tweets are slammed or loved.  The veterans (Vir Sanghvi, Pritish Nandy, Kanchan Gupta etc) have figured it out. They have been panned – but they never lose their composure. Some even avoid twitter wisely (Arnab of Times Now).

So far so good. Abuse and return-abuse. Like a power tennis match.

But she repeatedly threatened those who slam her tweets with Sec 507 of the IPC.

hahahHA. may the best Hindu win! better get some good lawyers..):

Section 507 IPC: criminal intimidation by anonymous communication. You’re in for it, my friend..

You’ll be in the dock for criminal intimidation one day..

amazing! amazing the way you talk..how free you are to say exactly what enters your filthy mind, , hiding under your fake identity

so is it considered Hindu to be anonymously rude and abusive..? if you are a Hindu, god save Hinduism..

Her stand is very unfortunate. It betrays a “Thats it ! I am calling uncle “ mentality of those privileged enough to have connections. Remember in school cricket matches, when the rich kid got out – he would take his bat, ball, and stumps and go home.

Can someone who slams your tweets, even calls you names be jailed under Sec 506/507 ?

* I am not a lawyer, but I am passionately interested in the field of justice.

Fact is : The Gen-Y twitterati do not need a good lawyer – a garden variety will do. She needs to get a real superstar lawyer to even go beyond the first step.

Requires major co-operation from other media houses. Requires co-operation from international companies like Google Inc, Twitter to trace. They in turn require production of warrants.  Could attract negative  foreign coverage. Will outrage the internet community and cause major harm to the channel. Unless of course, there  is really a criminal intimidation.

First what is Sec 507. It is an extension of Sec 506. Lets look at both of them.

Section 506. Punishment for criminal intimidation

Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;

If threat be to cause death or grievous hurt, etc.: -And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 1[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

Section 507. Criminal intimidation by an anonymous communication

Whoever commits the offence of criminal intimidation by an anonymous communication, or having taken precaution to conceal the name or abode of the person form whom the threat comes, shall be punished with imprisonment of either description for a term which may extend to two years, in addition to the punishment provided for the offence by the last preceding section.

We also need 503

Section 503. Criminal intimidation

Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.

Explanation-A threat to inure the reputation of any deceased person in whom the person threatened is interested, is within this section.

Illustration

A, for the purpose of inducing B to desist from prosecuting a civil suit, threatens to burn B’s house. A is guilty of criminal intimidation.

Both 506 and 507 – REQUIRE 503 Criminal Intimidation. 507 is just the anonymous version of 506. In the case of the twitterati – there is no evidence of criminal intimidation whatsoever. The only statement resembling a threat was made by the journo herself.

If name calling can be passed off as crime, then the culpability picture turns fuzzy. To be sure, she dishes out her share of you-suck tweets. In fact, a large majority of her tweets are name calling and return abuse. In a court, her you-suck tweets are at least as intimidating to a 20 year old aam-aadmi twitterer as the reverse.

Both 506/507 are non – cognizable and bailable by law

Non-cognizable = Police require warrant to arrest (they can neither register an FIR, nor investigate, nor arrest without express directions from a competent court)

Bailable = you can get bail or anticipatory bail

Some states have made them cognizable. Although I think it is unlikely such a frivolous case would be the grounds to test it.  (Chandigarh police misuse 506, old article Misuse of 506 )

Again – there must be actual criminal intimidation first

There must be an element of criminal intimidation. This means that there must be a open or veiled threat to actually commit a crime.

None of these are even close to criminal intimidation.

Your tweet sucks big time. I hate your style. You are a fake socialist sell out. You overlook corruption, You dont know Hinduism, You dont know Islam, You are a closet Hindu/Muslim/Christian/Alien. You are Hindu/Muslim/Alien/ hater.  You yell.

The below would fall under criminal intimidation.

I am going to rob, burn, steal, maim, injure you personnally or cause damage to your property. Threats of a sexual nature. Obscenity and other communication intended to instill fear of crime.

For example : Saif Ali Khan was charged under 506 for threatening to kill journalists.

Misuse of an already overloaded judicial system. Millions of jailed poor cant get a trial date

So what about her threat ? Clearly IPC 506/507 is dubious in this case based on available evidence of public tweets. What she is really threatening to do is to put you through the process !  Using  connections it may be possible to obtain a warrant. You will have to spend an inordinate amount of time and effort at your expense to arrange for bail and defend it.  A terrifying thought for most professionals who cant take off work.

In a country where millions of poor are awaiting trial dates and a creaking overloaded judicial system  – it is in extremely bad taste to abuse the criminal justice system.

In mature democracies, such a misguided adventure would be met with stiff penalties from the court and ridicule from rival media channels. The person who is sued will  almost immediately turn around and seek damages from the individual or corporation – when the case is tossed out.

But we live in India.

Mulla Vs State of UP, Poverty, Death March, and Justice

Posted in Uncategorized by realitycheck on February 9, 2010

Today the Supreme Court overturned the death penalty for two people citing a mitigating factor of poverty. This is huge because it applies the poverty mitigating factor to a crime in a way that leaves a lot of open questions.

I finished reading the judgment available at http://judis.nic.in/supremecourt/helddis3.aspx or at http://indiankanoon.org/doc/1277706/ Lets analyze the case for the impatient reader who doesn’t do legal prose.

The crime

1. Let me setup up the scene  :

On the fateful night of 21.12.1995 when Shiv Ratan,Nanhakey, Ram Kishore and Sushil were irrigating their fields in the northern side of the village from the tubewell of Sundari, widow of Jai Narain, at about 8.30 p.m., eight miscreants armed with guns reached the spot. A boy and two girls were also with them. All the miscreants caught hold of the four persons who were irrigating their fields and enquired about their properties and made a demand of Rs.10,000/- each and threatened that otherwise they would be killed. At the very moment, Harnam, Ganga Dai,Chhotakey s/o Gaya Ram and Hari Kumar Tripathi who were returning home after irrigating their fields were also stopped by the miscreants demanding Rs.10,000/- each from them. When all of them expressed their inability to pay the money, the miscreants assaulted Sushil, Shiv Ratan and Harnam by butt of the gun and took away Hari Kumar Tripathi, Nanhakey, Ram Kishore @ Chottakey Naney, Chhotakkey and Ganga Dai towards western side of tubewell ..

2. The captors now have 5 people (including 1 woman) and the rest are back at the village scrambling. What happened next ?

At about 25 mts. away from the tubewell in the sugar cane field of Laltu, the dead body of Hari Kumar Tripathi was recovered and the dead bodies of Nanhakey, Ram Kishore @ Chottakey Naney, Chhotakkey and Ganga Dai were found in the Arhar field at a distance of 1 km. from the tubewell. After recovery of …

3. All  five captors were killed by  cutting their throats. One killed nearby and the others marched for 1 km before being killed elsewhere.

A typical autopsy report on the 5 killed

Incised wound 9 cm. x 2 cm. x bone deep just above adamis apple (Thyroid cartied) trachea, nerves, blood vessels of both sides divided along with other tissues oseophagus also cut.

The guilt

The judges quickly dismiss the arguments regarding the identification parade uphold the guilt of the culprits. They then get down to the sentencing. This is where the two mitigating factors come in.

1. Circumstances of the crime

The judges layout the following examples as evil :

Commission of murder

when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death.

When the murder is committed for a motive which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward

Lets revisit the case. One thing strikes me is that there was a DEATH MARCH.  That this is one of the most horrific experiences is recognized the world over.

First, one person (Hari Kumar Tripathi) was killed in full view of the others – (see evidence of Witness No 4), then the others were made to walk for one kilometer in the darkness until they were killed and dumped in a pond.

A strong case can be made that this is rarest of the rare – surely on par with burning a house. Of course, each person has a threshold but death marches are exceptionally evil. The victims suffered unspeakable horror between the first persons death and their own.

2. Circumstances of the offender (this very concept is highly controversial at least to me)

But even with the courts own yardstick there are some discrepancies.

No material was placed or available about the family background of these two accused and whether these persons are married or not and about the family circumstance etc.

..

Admittedly, prosecution has not placed any other material about their criminal antecedents.

..

along with the aggravating circumstances, it falls on us to point to the mitigating circumstances in the case. In this case, we observe three factors which we must take into account,

1) the length of the incarceration already undergone by the convicts;

2) the current age of the convicts; and finally,

3) circumstances of the convicts generally.

As much as we may find this jarring, this still does not call for alarm. The economic argument is laid out here.

Therefore, we believe, socio-economic factors might not dilute guilt, but they may amount to mitigating circumstances. Socio-economic factors lead us to another related mitigating factor, i.e. the ability of the guilty to reform. It may not be misplaced to note that a criminal who commits crimes due to his economic backwardness is most likely to reform. This court on many previous occasions has held that this ability to reform amount to a mitigating factor in cases of death penalty.

Page 58

This is alarming due to the following :

1. Poverty is relative. Were the hapless victims poorer than the attackers ?

2. Obviously they were not desperately poor. (a) they did not negotiate for lesser (b) they had guns and cartridges, which are not cheap – which if they were dirt poor they would have sold and had a meal instead.

3.  Back to the relative-ness of poverty.

Everything else remaining the same, had the killers not been poor, then the death penalty would be upheld.

4. No evidence to suggest that the poor have a better reform rate. Even if they did, the question of relative poverty is still open.

Where does this leave us ? Obviously, now “not poor” needs to be debated upon in this country.  It is clear in this case the victims were not even able to cough up Rs 10,000 to save their lives. This was 1995.

On both circumstantial counts the culprits got lucky.

  • Circumstances of crime : Ghastly death march. Victims endured terror after first person killed and the 1Km march until they too were killed. Rarest of rare.
  • Circumstances of poverty : No evidence to suggest killers who possessed guns (which I believe costs 10,000 Rs even for basic models) were poorer than the victims. The court itself says the culprits appeared to have no family responsibility.

3. Death penalty and reality of life term in India

Anti-capital punishment activists will of course ape the west and celebrate this while conveniently ignoring the reality of a life term in India.

Here we like to note that the punishment of life sentence in this case must extend to their full life, subject  to any remission by the Government for good reasons.

(emp added)

In this case of cold blooded murder featuring a ghastly death march, the killers could in a best case scenario walk out in 20 years (6 more to go 14 served). The political class willing.

Quite a landmark case in India. The media just gave it a miss.

Read Barbarindians for more. Some technical coverage on the legal blog (lawandotherthings)

Why the Aussies hate us ? Outlook loses cool

Posted in Uncategorized by realitycheck on February 3, 2010

Childish.

Counterproductive.

http://www.outlookindia.com/article.aspx?264016

1.  Media should credit to Australia for giving 200,000 Indians a ticket out of India.  Outlook never covered the corruption scandals that make millions want to quit India in the first place.

2. Crying racism works (eg Shilpa Shetty, popadum, ka-ching) – but is pathetic.  If Aussies were racist, they would not have let the Indians in. Everyone knows the Indian elite loves Australia for vacations. If Aussies were racist, that would not be the case.

3. The media conveniently leaves out the fact that Ranjodh Singh was likely an Indian-on-Indian crime. Even after the arrests were made, none of the media outlets issued a clarification.

4. Incorrect comparison with Chinese and other immigrants. Please, the Chinese do not retaliate with some Kung-Fu moves. They are just not the in-your-face type immigrant like the Indians. See how many of the reported incidents happened outside a bar at 2:00AM. Indians are just not mature enough to introspect and grok the immigrant-host concept.

5. This is not to say that there are some incidents that are real. But crying wolf, pulls the focus of those cases which have a good chance of getting a conviction.

The right way is to counsel the Indian who are departing to Australia. Remember, they do so of their own accord, often selling everything they have here, even pawning off their parents property.That is how badly they want to get the hell out.

Outlook should introspect and focus on internal scandals. The world does not owes us Indians anything.

Centre to states : Follow Tamilnadu, Kerala model for religious quota

Posted in Uncategorized by realitycheck on February 1, 2010

You and I are easily distracted by the Padma Awards, the Glaciergate, rising prices, Sharad Pawars antics, whether sending troops to Afghanistan is prudent. The Indian political machine is not. They know fully well that the above do not matter. Just free agent chatter.

Their single track agenda is managing the adhoc benefits regime on one side and carrying along the corrupt entrenched interests on another.

The Centre has asked all states to follow Kerala, Karnataka, Tamil Nadu and Andhra Pradesh to provide increased quotas for minorities under the OBC ambit. The move comes on Wednesday after the Centre found it tough to push through a quota for Muslims in educational institutes and government jobs on the lines of a model recommended by the Ranganath Misra Committee report.

Source : India Today

Why can’t I have what you just gave him ?

The funny thing about justice is : The easier the question – the harder the answer.

We can’t come out of third world status nor build spanking new cities (as suggested by a blogger) – until this fundamental anomaly is corrected first. To eat chocolate must open wrapper.

—-

Eye on polls : Bengal quota

Eye on polls : Congress supports UP Jat Quota