'The government wanted to use my name and standing as a defence against outcry over Kunan Poshpora'

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The Indian Express

Wajahat Habibullah, who as divisional commissioner of Kashmir investigated allegations of mass rape by the Army, speaks to Arun Mohan Sukumar about the incident, subsequent inquiry and why the govt deleted portions of his report.

The Indian Express story on the Kunan Poshpora rapes investigation suggests…

There was a cover up.

The story quotes the then deputy commissioner (Kupwara) S M Yasin as having received both threats and promises of promotion during his investigation. Were you similarly approached to turn in a favourable report?

No. Though my report left a number of questions unanswered, inquiry by me was only a preliminary one. But nothing further was done and the case was closed. It is quite improbable that a crime of that magnitude took place as alleged. I would not go so far as to agree with Yasin when he says “it is the biggest blot on the face of democratic India”. Yasin was carried away by emotion, he is a Kashmiri himself. I did not tell him I had not given the government my report yet they have “published” it. It is true that I had submitted it but the government only published part of my report — a critical portion of it was excised.

Why do you think the government did that?

Well, obviously, the government wanted to use my name and standing as a defence against what it saw as an international outcry against the alleged incident.

Full text of the Q&A, here

Is plea in SC against Swatanter Kumar a valid complaint, asks MoEF

The Indian Express

The centre has sought the opinion of the Solicitor General if National Green Tribunal chairperson Justice Swatanter Kumar can be investigated on the basis of a law suit filed against him in connection with allegations of “sexual harassment” made against him by a former law intern.

Referring to a writ petition filed against Kumar in the Supreme Court, the Ministry of Environment and Forests wants the SG’s counsel on whether the petition would count as a “written complaint” under the National Green Tribunal Act and Rules, 2010, The Indian Express has learnt.

The ministry’s request to the SG takes cognisance of the fact that the Supreme Court “has not expressed any opinion on the allegations” made against Kumar. The request also does not refer to the veracity of the allegations.

The NGT Act empowers the Central government to remove the tribunal’s chairperson if it is found he has “abused his position so as to render his continuance in office prejudicial to public interest”.

Proceedings to remove any member of the tribunal, however, can only start after the government receives a “written complaint” relating to his alleged misbehaviour.

Report on the Environment ministry’s concern about the impact sexual harassment allegations against Swatanter Kumar may have on his chairmanship of the green tribunal, here

Jan Lokpal needs Centre’s nod, Solicitor General tells Lt-Governor

The Indian Express

Raising a red flag over the move by Delhi’s AAP government’s to bypass the Centre on the Jan Lokpal Bill, Solicitor General Mohan Parasaran has said the Bill must be presented to the Lieutenant Governor before it is tabled in the state Assembly.

Parasaran has said the Bill can “become law in the National Capital Territory only after it receives the President’s assent”, it is learnt.

His opinion came in response to L-G Najeeb Jung’s request for counsel on two counts: whether presenting the Bill in the Assembly “without sending the legislative proposal to the Central government” — as Arvind Kejriwal’s government has sought to do — violates the constitution; and whether the Delhi government has the power to legislate on matters concerning the Delhi Police and the Delhi Development Authority.

Report on the legal hurdles the Jan Lokpal has run into, here

Primary colours of democracy

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The Hindu

Nearly eight years after being entitled to vote, I will cast my first in a national election this year. If the accumulated guilt from shirking responsibility weighs heavily on my mind, so does an education in political science. My professors have reliably informed me of what is termed the “paradox of voting.” It seems the probability of one voter making a difference to an election is miniscule compared to his costs — time, money and effort — of going to the polls. I can hardly claim my interests to be perfectly aligned with India’s massive electorate. By voting, am I then merely tipping my hat to Indian democracy? If not, how do I make my vote count?

My review of Ashutosh Varshney’s “Battles Half Won”, here

The inexplicable silence

The Hindu

With its recent decision to extend the implementation of the Armed Forces Special Powers Act in Manipur by another year, the United Progressive Alliance’s opportunistic posturing on the legislation has come full circle. The UPA’s rendezvous with the AFSPA began months after it took charge in 2004, with the alleged rape and murder of Thangjam Manorama Devi, a 34-year-old Manipuri, while in the custody of the Assam Rifles. Nine years have passed since the gruesome episode; three reports have been submitted to the Central government by judicial or quasi-judicial commissions constituted to examine the AFSPA’s reign in Manipur; two of them are yet to see the light of day.

Sauce for the goose, but not the gander

The Hindu

Earlier this year, I asked a senior American diplomat why India and the United States differed fundamentally in their vision of Iran and its place in the world. He blunted my leading question, suggested that both countries were on the same page as far as sanctions were concerned, and began reeling off measures India had taken to reduce Iranian crude oil imports. His response to my query on the “big picture” was in part boilerplate, but no less revealing. It is not among American diplomacy’s stated aims to convince India why Iran is a threat to global security. But the U.S. has tried its best to co-opt India within its economic embargo on Iran, first at the United Nations Security Council and then through unilateral measures. For the most part, it has succeeded. India’s ties with Iran today are largely driven by the need to steer clear of the sanctions regime, rather than charting its own autonomous course. In other words, the relationship has become transactional, rather than strategic — reduced to the volume of oil India imports from Iran, or the permissibility of New Delhi’s assistance in building Iranian infrastructure.

On the uncritical refrain that the Geneva interim agreement and a diplomatic thaw in U.S.-Iran ties are also good for India, here.

Knocking the scandal off an assault

In any society, there exist a small group of individuals who have the temerity to take injustice to task: they may be journalists, lawyers, activists or simply well-intentioned folks. For them, crimes are not committed by one person against another but by the benefactors of a powerful system upon its most vulnerable. Justice, then, is too important to be left to the discretion of one individual, however aggrieved. It is hard to disagree with this notion – our criminal justice system runs on the sound principle that the State alone can investigate and punish those accused of wrongdoing.

And so A Few Good Men have fought to expose Tarun Tejpal’s sexual assault on a journalist under his wing, with the noble objective of bringing him to book. But these crusaders would do well to remember Colonel Nathan Jessup’s taunt, if only in the movie by the same name: “you can’t handle the truth!”

The truth is this: the journalist who was assaulted sought to address her grievances first and foremost within Tehelka. Even before she could bring to bear on her bosses the full weight of ignoring her complaint, the right-minded public went to town with details of the assault. In return for her courageous act of speaking up, the journalist has been shown to an automated and highly intrusive process which can neither ensure privacy nor punishment against those who assaulted her and played the episode down.

“Whether or not journalist at Tehelka files [a] complaint, the criminal justice system must take note,” declared the Press Club of India. A member of the National Commission for Women suggested since the journalist “seemed to be interested in getting justice, she should go ahead and file an FIR.” Now, the Goa Police Crime Branch has launched an investigation against Mr. Tejpal for the alleged commission of rape – in the process, it hopes to collect the journalist’s e-mail correspondence as well as CCTV footage from the hotel in which the incident occurred.

As with the former intern who “outed” a former Supreme Court judge for harassing her, the Tehelka journalist has been left with few options but to cooperate with a public trial. In due course, she will be confronted by our less-than-effective criminal justice system. Video tapes will mysteriously vanish or be tampered with, and her character will be systematically disparaged. The media will be offered selective leaks from the interrogation of Mr. Tejpal and other witnesses. To maintain control of the public narrative – decisive to the trial – her lawyers will be repeatedly drawn into divulging how gruesome and traumatic this episode was. Above all, the police investigation will also determine the fate of an internal enquiry by Tehelka – it is inconceivable Tarun Tejpal will be punished by his own organisation if errant cops find insufficient evidence to haul him up.

Presumably, the journalist did not complain to her employer to be lauded for courage or plainly to set an example for other women in the media. Those who now highlight her letter to managing editor Shoma Chaudhury in nauseating detail need only glance at its objective: that Tehelka constitute a sexual harassment committee, investigate the matter and elicit a written apology from Mr. Tejpal.

This is not to say she is principally opposed to a criminal investigation under the IPC. The police could verily hold back until Tehelka conducts its own enquiry. Some details about the incident would still leak into the open, but the trial that follows an internal inquiry will not aimed at satiating public consumption. If Mr. Tejpal is found guilty of sexual assault, cops would be driven by the imperative to corroborate the committee’s findings, not contradict them. Most importantly, it would render Tehelka and other media outlets accountable for wrongdoings against its employees, while a court of law can only hold Mr. Tejpal liable to the public for his misconduct.

Much of the support and solidarity that the journalist has received from the public stems from a misplaced view that she is too vulnerable to take on her bosses. Sure, sexual assault is notoriously underreported in India and conditions that facilitate it are systemic, not personal. On the other hand, once an assault victim has turned to the law there is no place for patronage.

The Sexual Harassment of Women at Workplace Act, 2013 confirms as much. Section 27 of the Act categorises all offences within its ambit as non-cognisable – the police can neither register an FIR nor investigate an incident without a warrant. A court may issue such a warrant only in response to a complaint filed by the aggrieved person or a representative of the internal complaints committee. On the other hand, Mr. Tejpal has been booked by the Goa Police under Sections 354 and 376 of the IPC, both of which constitute cognisable offences that may be investigated suo motu.

To be sure, an internal complaints mechanism too may have its share of flaws. After all, Mr. Tejpal is the editor-in-chief of the organisation that would investigate his misconduct. If the incident is hushed up by Tehelka, it may never see the light of day. This is where public intervention is needed, to ensure the Workplace Harassment Act is implemented properly. The legislation is armed with provisions that would allow the government and the judiciary to impose punitive measures on the magazine for a sloppy investigation.

The imminent criminal investigation affords ample time for Tehelka’s management to bargain with the aggrieved journalist. Those who believe Tarun Tejpal’s “unconditional apology” was prompted by fear of arrest should also take note of his letter purportedly circulated among friends. His confident, yet deniable assertion that the encounter was “totally consensual” is a clear signal to the journalist: back off, or prepare to be

The public should doubtless stand behind the young journalist, now more than ever because Mr. Tejpal has sought to intimidate her. The women’s rights movement has struggled hard to shed the stigma associated with pursuing justice against sexual offences. But “going public” with a complaint should not be a traumatic experience, especially when the law has prescribed an institutional mechanism to protect the victim’s rights while pursuing justice. The sensitisation of society on sexual offences cannot be realised overnight – it has been and continues to be a long, drawn out process. If a victim’s immediate environment cannot promise justice, how can she reliably place her faith in the larger public? The vagaries of the criminal justice system should not stray us from seeing the journalist through her effort to hold Tehelka accountable for its editor’s actions

If it may please the Supreme Court

The Hindu

The tragedy of a legal education is that it prepares you to be a free-spirited being in a regimented world. If John Grisham novels — where the protagonist wins “justice” after a gripping courtroom drama — got you hooked to the law in the first place, chances are law school will nurture that idealism to tell you how the world should be, not how it is. Fresh off the block from learning the rigours of constitutional law or legal ethics in your fourth year, you head for the hallowed Supreme Court of India, ready to right most wrongs. As an intern, no less. In the two months that follow, the long arm of the law beats you down with the big stick of reality. You are informed — usually by a court clerk or a senior lawyer’s private secretary — that the only way to succeed is by endearing yourself to your employer.

On the systemic failure of the Supreme Court to tackle sexual harassment under its watch, here.