Saturday, December 31, 2011

Bhopal Gas Leak Case [criminal]

Bhopal Gas Leak Case:The gist of  the case :

IN THE COURT OF CHIEF JUDICIAL MAGISTRATE BHOPAL MP (Presided By Mohan P.Tiwari)

State of MP Vs. Warren Anderson & others Cr. Case No. 8460 / 1996




Names of Accused :

  1.  Sri Warren Anderson S/O Sri John Martin Anderson Former Chairman, Union Carbide Corporation,Danbury Connecticut ,USA(declared Absconder)
  2. Sri Keshub Mahindra ,Chairman, Union Carbide India Ltd. Bhopal,
  3. Sri Vijay Prbhaker GokhleManaging Director,Union Carbide India Ltd 
  4. Sri Kishore Kamdaar,Vice President i/c AP Division UnionCarbide India Ltd 
  5. Sri J. Mukund former Works Manager AP Division Union Carbide India Ltd., 
  6. SriDr.R.B.Roy Choudhary (dead) Asst.Works Manager AP Division Union Carbide India Ltd. , 
  7. SriS.P.Choudhary, Production Manager AP Division Union Carbide India Ltd. , 
  8. Sri KV Shetty PlantSuperintendent Works Manager AP Division Union Carbide India Ltd. Bhopal
  9. Sri SI Qureshi former Operator AP Division Union Carbide India Ltd 
[ All were employed in the Union Carbide of India Limited (In short UCIL)



Accused Charged under :


All Accused persons  charged under Section 304A 336,337 and S.338 r/w section 35 of Indian Penal Code 1860.

History of UCIL :
Union Carbide India Ltd.(in short UCIL) is a subsidiary company of the Union Carbide Corporation (in short UCC) USA. UCE Inc. was the Regional Office of UCC, USA which controlled the UCIL, India and others. The UCIL was incorporated on 24th December, 1959. 

The UCC was a major shareholder with 50.9% of the share holdings in the UCIL UCIL Bhopal Plant pesticide under brand name Sevin and Temik were manufactured with the help of MIC,Phosgene &Chloroform.

It is stated There were three storage tanks in the plant for the storage of liquid MIC. These tanks were designated as E610, E611 and E619. 

Cause of Action/Date of Accident :  
On the intervening night of 2nd and 3rd Dec.1984 from the tank no. E610 a huge quantity of MIC-Methyle Isocynate (CH3 N=C=O)(MIC)escaped which caused the death immediately of thousands of humans beings and also caused simple and grevious injuries to a number of people, some of whom became permanently disabled and the number of effected persons is near about 5 lacs.Thousands of animals and other creatures had also been effected.

Case was Registered: 

The case was registered with P.S.Hanumanganj, Bhopal on 02.12.1984 at crime No.1104/84 dt. 03.12.84 u/s 304A IPC by the then SHO Surinder Singh ,on 6.12.84 , a case was registered with CBI as RC.3/84ACUI

Expert Team Investigation :


Team of scientists headed by Dr. S.Vardarajan Director General of CSIR with other scientists, the facts were noticed that MIC was stored in large quantities, the valves and other pipelines used in the UCIL, Bhopal were made up of Iron Steel, Galvanized Iron, Aluminium, Zinc, Copper or their alloys and a fact also revealed that possible entry of water into the Tank 610 when the water washing was going on.


CBI Filed Charge sheet :

CBI filed this Charge Sheet u/s 304, 324, 326, 429 IPC R/W Section 35 of IPC against the accused persons, namely Shri Warren Anderson&others:Committed to Court of Sessions for the trial according to law vide Order dated 22.6.1992

Supreme Court Dilution of Charge: 


Hon'ble Supreme Court in Criminal Appeal No.1672/1996 dated 13.9.1996 directed that the case be tried u/s 304A of IPC and the matter was remanded to trial Court for trial u/s 304A, 336, 337, 338 and section 35 IPC Accordingly, the charges were framed.
Prosecution Witness/Accused were examined



Prosecution has examined 178 witnesses in their favour. accused persons have been examined u/s 313 Cr.P.C.

Accused Pleaded Innocent:

They have submited that :

  • They are not liable for any incident.They were even not present on the site when the gas leaked. 
  • They further submitted that it is a mistake of one or the other local employee of the UCIL. They further state that the factory was designed by the UCC,USA which is having expertize in the field of MIC based pesticides business through out the world having lot of experience, therefore, 
Hence ,they can not be held guilty for the alleged offense.

Points for Consideration by the court :
  • Whether on or about the night intervening 2nd & 3rd December, 1984 at Bhopal caused the death of 3828 or more people by doing an act to wit by running a defective plant of MIC a dangerous volatile and poisonous substance having a number of operational defects without reasonable care which resulted in leakage of the poisonous gas from tank No.610 of AP Division of UCIL Bhopal, which was a rash or negligent act not amounting to culpable homicide and sharing the common knowledge of the same did not do anything to avoid the escape of the gas. 

  • Whether the accused persons can be held guilty of the same negligible act by running the same defective plant of MIC without reasonable care and caution without informing the local people about the remedial precautions which resulted in the leakage of the gas from tank No.610 endangering human life and personal safety sharing the common knowledge.
  • Whether the accused persons can be held guilty of the same negligible act by running the same defective plant of MIC without reasonable care and caution without informing the local people about the remedial precautions which resulted in the leakage of the gas from tank No.610 endangering human life and personal safety sharing the common knowledge thereby causing simple injuries to the people.
  • Whether the accused persons can be held guilty of the same negligible act by running the same defective plant of MIC without reasonable care and caution without informing the local people about the remedial precautions which resulted in the leakage of the gas from tank No.610 endangering human life and personal safety sharing the common knowledge thereby causing grievous injuries to the people.


Sentence : 


The accused persons namely under section 304A
read with Section 35 IPC
 

(1)Sri Keshub Mahindra,

(2)Sri Vijay Prabhaker Gokhle.

(3)Sri Kishore Kamdaar,

(4)Sri J.Mukund

(5)Sri S.P.Choudhary,

(6)Sri KV Shetty

(7)Sri SI Qureshi, 

holding guilty for the offence punishable under sections 304A/ 35 of Indian Penal Code,1860 for an imprisonment of 2 years and fine of Rs.100,000.00 each, and  under section 336 Indian Penal Code, 1860 an imprisonment of 3 months.


Curative Petition Filed by CBI:


There was condemnation from all quarters as accused got away with[lesser punishment ] merely 2 yrs sentence for the grave crime ,which is regarded as  world most dangerous environmental disaster. 
The CBI filed curative petition in the Hon'ble Supreme Court on dilution of charge ,the same rejected by the Hon'ble court ,it was approached after the lapse of 15 yrs.



Wednesday, December 21, 2011

Bhopal Gas Leak Case Analysis :Was a Catastrophe Waiting to Happen

Bhopal Gas Leak Case Analysis :Was a Catastrophe Waiting to Happen’ -Part-II



The most industrial disasters are preventable provided,proper safety measures are undertaken by the management,what happened in Union Carbide factory,it was deliberate and intentional negligence of the management by ignoring the safety measures of the plant,especially,when plant is storing deadly chemical ,that too in the name of cost cutting measures ,jeopardizing the safety of the entire city of Bhopal.      

Some of horrible mistakes by UCC were reported in an UN reportwas a catastrophe waiting to happen’ 



    • The cooling system supposed to keep MIC at zero degree temperature was turn off six months before accident the same held for the burner in the tower for burning off the poson.Both steps had been taken with approval of company headquarters.The scrubbers capable of neutralizers MIC exhaust fumes had been placed in passive mode ,two months before the accident



    • The spray system designed to pull escaping MIC fumes  to the ground by surrounding them in a mist was effective only to height of  12 meters, but then MIC fumes were released at height of  33  meters.

      • The pipes were made of iron rods instead of stainless steel called by regulations.


        These were some of the notable flagrant violations, which were overlooked by corrupt administration.There was accident in that plant before 1984, same was overlooked parent organization.Many organizations pleaded that Central Burea of India to should visit WEST VIRGINIA plant to inspect safety measures under taken in their chemical plant, same was not given credence by the CBI.
        The testimony of flagrant violations is that of T.R Chouhan[Chemical plant operator who worked with UCC}, wrote in book Inside the killer carbide plant-A Bhopal worker’s story  was published by Apex press of New York in 1994.Even though CBI used services of Mr Chouhan,but he was transferred to minor job as industrial inspector in a small town near Bhopal.


         

        Sunday, December 4, 2011

        Bhopal gas leak case revisited – was a catastrophe waiting to happen-part-I

        Bhopal gas leak case revisited  – ‘was a catastrophe waiting to happen’  -Part-I



        “There will be two eventualities in this world one is environmental destruction and other is war on Iran” Fidel Castro in a public address after recovering from illness.  

        India happened to witness world dangerous environmental catastrophe,which shaken entire world ,on intervening night to 2 /3 rd December 1984 ,40 tonnes of deadly chemical methyl isocyanate[MCI] stored in pesticide factory was released into atmosphere resulting instant  death of thousands of people and several thousands of people injured or became chronically ill or died after prolong illness.The entire world condemned this criminal negligence of pesticide factory.

        The official immediate death toll was 2,259 and the government of Madhya Pradesh has confirmed a total of 3,787 deaths related to the gas release.Others estimate 3,000 died within weeks and another 8,000 have since died from gas-related diseases,even after 27 yrs of disaster ,the victims are waiting for compensation and rehabilitation from the government.Ironically only 8 officials were convicted[merely two years,after Supreme court reduced charge to two years in 1996 ],but senior management official of the DOW like Anderson ,neither extradited or punished. 

        Union Carbide[UCIL] paid $470m (£282m) in compensation to the Indian government after out of court settlement and same was upheld by Supreme Court of India,company also agreed for fund &group medical insurance ,estimated $17 million to treat 10,000 people, who may later develop symptoms. 
        later DOW bought UCIL in 1999,contended that compensation issue is resolved and no claims will be entertained.


        Environmental legislation in India:  


        India is one of few countries,which has constitutional safe guards for the protection of environment.The directive principles of State policy and Fundamental Duties have specific provisions for the protection of environment.Most pollution cases fall under categories of nuisance, negligence and  principle of strict liability. 

        The 42nd  Amendment to the Indian Constitution in 1976 introduced principles of environmental protection in the Constitution through Articles 48A and 51A(g).

        After the Stockholm conference ,the Air Act and Environment act was enacted ,under Article 253 of the Constitution,the parliament can make laws to fulfill the  obligation under international conventions.

        There are about 200 acts and statues in the field of environmental protection, still India is lagging behind in protecting the environment and our law makers never consider pollution and environment as an important national issue. 
        The Panchayats, Municipalities and Municipal Corporations are duty bound to protect ecology and environment,any negligence on their part is punishable offence. 



        Some of Leading cases  in Environmental Jurisprudence in India 
         
        • The public right to decent living was recognised in Municipal Council, Ratlam Vs. Vardhichand, AIR 1980 ,a land mark in environmental jurisprudence, Justice Krishna Iyer justified magistrate action under Section 133 CrPC to remove public nuisance.

        • In Rural Litigation and Entitlement Kendra, Dehradun, AIR 1985 SC 652,lime-stone quarries pose danger to ecology ,environment and public health.

        • In Shriram Foods and Fertilizer Industries and another, AIR 1987 SC 965, leak of olium gas lead to death of several people including Advocate,Supreme Court awarded compensation.

        • M.C. Mehta Vs. Union of India, AIR 1988 SC 1115,leading environmental lawyer filed PIL to clean up the river Ganga,which got polluted due to untreated sewerage water.

        • Vellore Citizens Welfare Forum, AIR 1996 SC 2715 ,one of the landmark judgement under environmental jurisprudence recognizing ‘Sustainable Development.

        • M.C. Mehta Vs. Union of India, AIR 1999 SC 291-for use of CNG and phasing out old vehicles.

        • M.C. Mehta Vs.Union of India, AIR 1999 SC 734 -for shifting of tanneries and protect Taj Mahal.

        •  AIR 2000 SC 3510, for the protection of  Yamuna river,Delhi.
         
        • M.C. Mehta Vs. Kamal Nath, AIR 2002 SC 1515; damages from Span Hotels Private Ltd. for ecological damage of  Beas river.

        • In Murli S. Deora vs Union Of India And Ors ,AIR 2002 SC 40-banning smoking in public places.


        The Principle Judicial Remedies under Indian Law 


        The remedies includes Damages, Injunction under section 94,95-order 39 of CPC,perpetual injunction under section 37-42 of Specific Relief Act,Nuisance under Indian Penal Code 1860 Section 268 ,and proceeding before magistrate to remove nuisance under section 133-144 of Criminal procedure Code,1973,civil action under section 91 of civil procedure code ,1908 in civil court.The principle of absolute liability was developed by the court in the post-Bhopal period and later adopted by legislation.

        Public Liability Insurance Act (PLIA), 1991 [1992] The Central Government has been  authorized to establish the Environmental Relief Fund, for  the purpose of making relief payments.

        National Environment Tribunal Act,1995 was enacted to  provide strict liability for damages arising out of any accident occurring while handling any hazardous substance and for the establishment of a National Environment Tribunal for effective and expeditious disposal of cases arising from such accidents 


        The institutional frame work includes  
        • Ministry of Environment and Forests (MOEF), 
        • the Central Pollution Control Board (CPCB), 
        • State Departments of Environment, 
        • State Pollution Control Boards (SPCBs) 
        • Municipal Corporations.


        The National Environment Appellate Authority Act, 1997 : establishment for appellate authority under Environment (Protection) Act, 1986 for operation of industry.

        Special Act for Bhopal case : 


        The special act was enacted by the parliament called Bhopal Gas Leak Disaster[processing of claims]act in March 1985  to claim compensation behalf of victims from DOW. 
        The Bhopal act conferred the exclusive right on the Indian Government acting as parens patriae  is Latin term  for "parent of the nation".[In law, it refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian or informal caretaker, and to act as the parent of any child or individual who is in need of protection,the Hart-Scott-Rodino Antitrust Improvement Act of 1976 (15 USC 15(c)), through Section 4C of the Clayton Act, permits state attorneys general to bring parens patriae suits on behalf of those injured by violations of the Sherman Antitrust Act.] to represent all claimants both inside and outside India and directed the government to register and process the claims. The Constitutional validity was challenged in the Supreme Court and constitutional validity was up held by the apex court, which gave right to government of India to represent claimants in India and outside India.


        Basic Principles of Environmental Law :

        Strict liability is liability for which mens rea (Latin for "guilty mind") does not have to be proven in relation to one or more elements comprising the actus reus (Latin for "guilty act") although intention, recklessness or knowledge may be required in relation to other elements of the offence. Strict liability laws were created in the 19th century to improve working and safety standards in factories. Needing to prove mens reas on the part of the factory owners was very difficult and resulted in very few prosecutions.
        Justice Ahmedhi maintained that there is no concept of strict liability in India ,reacting to criticism for diluting the charge under culpable homicide not  amounting.


        Rylands v Fletcher [1868] UKHL 1 is a landmark English tort law ,often cited by courts in environmental cases.It applied the doctrine of strict liability for inherently dangerous activities (on appeal by Rylands, the House of Lords confirmed the previous judgment but restricted the rule to a non-natural use of the land}


        Polluter pays principle:Polluter pays Principle is also known as extended polluter responsibility (EPR).This is a concept that was probably first described by the Swedish government in 1975 and same mentioned in Principle 16 of the Rio Declaration on Environment and Development.
        Some eco-taxes underpinned by the polluter pays principle include:Gas Guzzler Tax, in USA[Corporate Average Fuel Economy (CAFE)- a "polluter pays"]. 

        The U.S. Superfund law requires polluters to pay for cleanup of hazardous waste sites, when the polluters can be identified.


        Thursday, November 24, 2011

        Real Encounters Vs Fake Encounters in India :An Analysis

        Real Encounters V Fake Encounters in India:An Analysis



        There is intense legal scrutiny of police encounters by the courts,most notorious encounter cases in India like  Ishrat Jahan[SIT admitted encounter is not real but fake] or Maoist leader Azad attracted lot of media,general public civil society and academic community attention.Ironically,Most general public don't know real difference between real and fake encounter or made to believe that all encounters are real,but real fact is all encounters are not real encounters.

        The real encounters means state-owned force or police opens fire on armed criminals,indigenous armed people groups or non-state actors as a  retaliatory measure to defend civilians or themselves or safeguard  public life or Institutions of public importance like Mumbai attack or 9/11 US attack or Indian parliament attack or attack on police /armed forces convoy.



        The moot questions for debate, 

        • What kind of compensation to be awarded for constitutional torts[abuse of fundamental rights]in case of abuse  or misuse of authority by the public authorities acting under sovereign powers.

          • Whether there is any straight jacket formula to determine compensation for the violation of fundamental  rights.

          • Whether awarding compensation for victims of abuse of Fundamental rights will act as deterrence for public officials.

          • Whether they are liable for abuse of fundamental rights in a individual capacity or state should take responsibility for abuse.

          • Whether public official argument that , they have acted under pressure or orders of superior officers or under pressure  person in seat of the power[executive ]can be considered and hold good in law ,answer is no.   



          Where civil rights debate begins : 


          The civil rights debate surfaces,where there is abuse of power violating right to life,personal liberty and human rights,the issue of human rights abuses surfaces,when armed forces or police project the fake encounter as a real encounter.
          The most fake encounters are nothing but cold blooded murder by state owned -police  or armed forces with out any legal sanction,theoretically speaking,no civil rights group or Human rights lawyer can object the real encounters.The issue of Human rights abuses only surfaces,when policeman behaves arbitrarily and exceeds statutory power. 

          Human Rights watch, the Amnesty International has said that over thousand people were killed in ‘faked encounters’ in India between 1993 and 2008,speaks volumes of the criminalization of police force.

          Significance of Article 21&Constitutionalism: 


          Protection of life and personal liberty:"No person shall be deprived of his life or personal liberty except according to procedure established by law"


          After Maneka Gandhi[AIR 1978 SC 597]case,the scope of Article 21 was widened,it was held that " A person can be deprived of his life and personal liberty  only when,first condition,there must be a law and second condition is there must be a procedure prescribed by that law, provided that the procedure is just, fair and reasonable." 

          The experts also criticizes the draconian preventive detention laws,which is  against the spirit of freedom of life and liberty.

          The illegal arrest,illegal detention,custodial violence,and extra -judicial killing like encounters are sworn enemies of individual liberty and constitutionalism.


          No cause can justify encounters:


          No legitimate cause can justify ill-legitimate encounters.In A.P India,Warangal District ,alleged acid attackers were killed in an encounter,after they gruesomely attacked girl with acid,which invited public outrage.The police justified their encounter on the ground that their killing received wide public support.
          No police man possess right to kill any body in the name of encounter,even if he is acting under orders of superior officers or person in the seat of authority.

          "Fake encounters are nothing but cold-blooded, brutal murder by persons who are supposed to uphold the law.In our opinion, if crimes are committed by ordinary people, ordinary punishment should be given but if the offence is committed by policemen much harsher punishment should be given to them because they do an act totally contrary to their duties,"  Justice Katju,while advocating death sentence for fake encounters.


          Remedies &Compensation under Indian Constitution :


          Where there is right,there is a remedy,any citizen can approach courts to protect their fundamental rights under Article 32 and Article 226 through writs.Any citizen can approach courts for abuse or curtailment of fundamental rights as enshrined part-III of Indian Constitution. 

          If citizens 's fundamental rights are violated by the public authorities acting under sovereign power, they can get monetary compensation[constitutional torts-compensatory jurisdiction ]

          In the following cases compensation awarded by courts for violation of Fundamental Rights acting under sovereign power. 
          •  Devaki Nandan Prasad V State of Bihar ,1983(4) SCC 20 -pension was delayed for 12 yrs &compensation was awarded.  
          • Khatri &others V State of Bihar &others 1 [1981] SCC 627 -Bhagalpur Blinded Prisoners case  
          • Rudal Shah V State of Bihar [1983]4 SCC 141-prolonged detention after acquittal -Compensation awarded.

          • State of Rajasthan V Vidya wati  AIR 1962 SC 933-death due to rash &negligent driving by Government jeep driver. 

          • Nilabati Behra V State of Orissa[AIR 1993 SC 1960]- custodial death.
          • State of Madhya Pradesh V shantibai [AIR 2005 M.P 66]-Negligent firing to clear the mob,resulting death of person standing on roof of their house.
          • Bhim Singh V State of J.K [AIR 1986 SC 494]-Illegal arrest. 

          • Kalavati V state of Himachal Pradesh [AIR 1989 HP 5]-Negligence in Government hospital resulting death of two persons.
          • Saheli V Commissioner of Police Delhi[AIR 1990 SC 513]Death of boy due to beating &assaulting by the police. 

          • C Ramkonda Reddy V State of A.P [AIR AP 235] -Inmates of jail died as bombs were hurled-compensation sought. 
          • D.K Basu V Union of India [19971 SCC 416 -No yardstick to be followed for compensation -cost to cost method of computation of compensation should be adopted. 

          • Union of India V Prabhakaran [2008] (9) SCC 527 -extended principle to cover public utilities like railways,electricity ,public corporation and local bodies ,which are not working for profit.
          • In a case [1995],A.P High Court bench headed by then Chief Justice Js  Prabha Shankar Mishra ordered case to be booked under 302 IPC for fake encounters,Billal Nazki also agreed with view of Mishra in another[Manala case]J.Narsimha Reddy &Yethirajulu deferred on the ground that specific police officers to be mentioned as accused.  


            NHRC's directions on Encounter killings 



            The NHRC noted that in cases of killing by police by firing, prima facie, the ingredients of 299 IPC are satisfied and Section 157 of Cr. PC is attracted calling for investigation. 

            The Commission made the following recommendations especially in regard to encounter deaths.

            [a]When the police officer in charge of a police station receives information about deaths in an encounter between the police party and others, he shall enter the information in the appropriate register.

            [b]The information as received shall be regarded as sufficient to suspect the commission of a cognizable offence and immediate steps should be taken to investigate the facts and circumstances leading to the death to ascertain what, if any, offence was committed and by whom.

            [c] As the police officers belonging to the same police station are the members of the encounter party, it is appropriate that the aces are made over for investigation to some other independent investigation agency such as State CID. 

            [d]) Question of granting of compensation to the dependents of the deceased may be considered in cases ending in conviction if police officers are prosecuted on the basis of the results of the investigation. 
             Ironically ,these directions are not followed in letter and spirit by state police.


            The Concept of Sovereign immunity:

            In Vidyawati  case rejected the argument of state Sovereign immunity and awarded compensation for fundamental rights abuse,in Nilabati Behra case, it was held by Supreme Court that ,the  concept of sovereign immunity is not applicable to fundamental rights abuse cases.Kasturi Lal V state of U.P[AIR 1965]distinguished state sovereign functions and non state sovereign functions.

            U.S A &Constitutional Torts :

            § 1983 provides that: "Every person who, under color of any statute, ordinance, regulation, custom or usage, of any state or territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction of the United States to the deprivation of any rights, privileges or immunities secured by the Federal Constitution and its laws, is liable to the party injured in an action at law, suit in equity or other proper proceeding for redress"


            Conclusion : 



            There should be accountability on part of the police and public authorities towards human rights abuse,no abuse of power or position should be tolerated at any level ,what ever causes might be  or even acting under superior orders or person of high position[Executive]. The state should strive for 'Zero tolerance' for H.R abuses.  


            There is a need for suitable legislation to make public authorities viable for infringement of fundamental rights as guaranteed under Constitution and for human rights abuses as India is signatory to Universal Declaration of Human Rights. 

            In recent Uphaar Cinema case[http://www.indiankanoon.org/doc/1691320/] ,Supreme Court Bench headed by R.V Raveendran.J and K.S Radhakrishnan.J  said 

            • There is a need for comprehensive legislation to make public authorities liable like UK section 6 of  Human Rights act ,1998  makes a public Authority liable for damages iif it is found to have committed breach of London Borough South work [2003] EWCA CV 1406 (2) WLR 

            • Due to lack of legislation courts dealing with  torts claims against state and officials not following uniform pattern ,while deciding those cases and this at times leads to undesirable consequences and arbitrary fixation of compensation amount . 
            •  
              From 2001 to 2010, the National Human Rights Commission (NHRC) recorded 14,231 i.e. 4.33 persons died in police and judicial custody in India. This includes
              1,504 deaths in police custody and 12,727 deaths in judicial custody from 2001-2002 to 2009-2010[1]
              The Asian Centre for Human Rights (ACHR) has consistently underlined that about 99.99% of deaths in police custody can be ascribed to torture and occur within 48 hours of the victims being taken into custody.[2]
              The statistics of NHRC&ACHR speaks volumes of abuse of power by police or armed forces,which warrants serious action from the state to ensure safeguarding the Human Rights of citizens and give adequate compensation for abuse of their fundamental rights.    
               
              References :
               
            • HRC Annual Report 2001-2008 & Unstarred Question No. 1475, Answered by Minister of State in the Ministry of Home Affairs, Mr Jitendra Singh in the Lok Sabha on 9.08.2011.

            Monday, November 21, 2011

            Two year contract Marriage -New proposed Mexican law

            Two year contract Marriage-New proposed Mexican bill:


            It is not good idea for signing up contract for marriage for temporary period rather than fighting divorce litigation in the  courts,but Mexicans are going to have such novel law from next year ie. 2012.Most Mexicans lovers,who are expected to engage in a serous relationship,might be excited about the proposed two year contract marriage law.  


            According to statistics over 50 % of marriages in Mexico end in divorce,the Mexican law makers proposing two year renewable [temporary] contract marriage law with easy exit option with out legal hassles, expected to be tabled in the month of December for vote before legislators.


            The initial marriage contract period will be two years,we can say ,it is temporary marriage,couple can go for renewable or easy and simple breakup with out any legal hassles,if their relationship is not working,there will be automatic divorce after completion of two year period.The said contract provide for child custody and visitation, as well as property division among spouses in the event of a split.

            "The proposal is,when the two-year period ends, if the relationship is not stable or harmonious, the contract simply ends," says the bill's co-author,says  Luna from the leftist Party of the Democratic Revolution,the party holds a majority of the assembly's 66 seats.

            This is a unique bill made with intention to bring down acrimonious and protracted  costly litigation pertaining to marriage and alimony."Out of 33,000 couples that got married in the past two years in Mexico City, around 16,000 filed for divorce. Ending the marriage, Leonel Luna  says, costs approximately $3,500. The couple normally spends anywhere from $1,000 to $1,500 in legal fees and attorneys and the Mexico City legal system absorbs the rest"


            The BBC reports that the bill, which includes provisions on how children and property would be handled, is likely to go before legislators in December.


            The liberals as well as  leftist are welcoming the proposed law  and traditionalist  as well as catholic Church criticizing the new law,are of view that two year contract is  mockery of concept of the marriage.It is immoral to go for contract.
                
            "This reform is absurd. It contradicts the nature of marriage," said Hugo Valdemar, spokesman for the Mexican archdiocese. "It's another one of these electoral theatrics the assembly tends to do that are irresponsible and immoral."
            In Indian urban  and metros cities ,there is a demand for per-nuptial agreement among spouses before entering into marital alliance,but it is limited to higher classes.Where, concept of live -in relationship is growing rapidly.The concept of live-in relationship with a legal protection can be a good idea ,helps in reducing exploitation of gullible women and neglect of children ,born out of such relationship. 

            There is no legal recognition for such agreements by the courts,due to absence of law on the said agreements,but it only helps in resolving the disputes to a certain extent.India,predominately Hindu populated country,still regard marriage as a scared union  or holy union rather than civil contract with specific term.

            The socio-economic conditions of the India are different from the other countries,moreover literacy levels are very poor,the legislators are not willing to experiment with new laws like Mexican law.

            References :

            1. http://articles.cnn.com/2011-10-03/americas/world_americas_mexico-2-year-marriages_1_marriage-bill-mexico-city-s-legislative-assembly-couples?_s=PM:AMERICAS
            2.  http://blogs.reuters.com/faithworld/2011/10/02/til-2013-do-us-part-mexico-mulls-2-year-marriage/

            Wednesday, November 16, 2011

            State Bailout Argument -Kingfisher Case

             State Bailout Argument -Kingfisher case:

            It is laughable that ,some free market protagonist aggressively pushing the argument of state intervention by bailing out of kingfisher airlines with financial package,like USA bailing out  Banks,financial institutes and auto industry,the corporate can reap the profits and enrich themselves,but instead of bearing the losses on its own,it expect the state to intervene and bail them out at the cost of tax payer money,It sounds ridiculous to push such theory,even if,Kingfisher  services were good,similar demands were also made during Satyam scandal.

            How many India Inc. contributing to the concept of social responsibility or cooperating with state responsibilities, ,ironically, it never bothered to donate their profits for social causes,contrastingly,they go for expansion mode,specially ,when they are reaping profits. 

            Nationalization Vs Bailing Out ;

            Nationalization means  reverse privatization ,state taking over the ownership and assets of private enterprises ,free market protagonist demanding financial support to Kingfisher ,but not nationalization, state should bear their losses,make it profit-making enterprises with out ownership control.its demeaning to bailout private airlines ,when state- controlled Air India,itself facing myriad problems with out any pro-active intervention of the government.
            Nationalisation - a success story ;
            In year 1969,14 largest banks were nationalised by then Prime Minster late Mrs.Indira Gandhi through bill "Banking Companies (Acquisition and Transfer of Undertaking) "which was passed by Indian parliament, and it received the presidential approval on 9 August 1969,the said move was hailed by late Lok Nayak Jaya Prakash Narayan,the nationalised bank played crucial role in Indian Economy through credit delivery, only after liberalisation policy of Late P.V Narsimha Rao in early 1990,private  banks [UTI,HDFC,ICICI ]came into picture.

            Bailing out means opening Pandora Box;

            Any decision to bailout loss making private sector airlines bound to open Pandora box with similar demands from other sectors,such bailout at the cost of tax payer money is mockery of socialism,which is basic structure of the constitution.The common people are aware ,India still a socialist economy,still the word 'socialism' still exists in the preamble,the nationalisation is better option than bailout .  

            Double Standards of corporate India;
            The corporate giants in the recent Confederation of Indian Industry  conclave was highly critical of UPA-II deadlock over liberalisation policy,warned that any slowing down will hurt investment climate and on the other hand,some free market policy experts are pushing the argument of bailout loss- making private sector unit.This is some thing,which is beyond the comprehension of common man.

            State Intervention in the Crucial sectors : 

            There is growing demand in India for nationalisation of precious natural resources or national wealth  like mining for proper and optimum utilization for national building.
            The protogonist for Occupy Wall Street advocates the policy of state intervention in crucial sectors to do justice to the  commoners ,who are at receiving end in the world economic crises.  

            The world is witnessing crucial changes due to "World Economic Crises",there is a visible change in the people's perceptions and beliefs,due to various factors like debt crises and rising unemployment in the world.
            The people are preferring job security than corporate's heavy pay package,the government job looks attractive career option,when compared to un-secured or unpredictable private sector jobs.
            The concept of reverse -privatsation looks attractive option and only viable alternative at this juncture. 


            References:
            1. http://en.wikipedia.org/wiki/Banking_in_India
            2. http://www.equitymaster.com/5MinWrapUp/detail.asp?date=11/16/2011&story=4&title=Bailout-vs-bankruptcy--Which-one-is-better 

            Sunday, November 13, 2011

            Marxism or people's resistant movement in USA &other parts of the world?

            Marxism or people's resistant movement in USA&other parts of the world?


            The entire western world's  sworn enemy was USSR and its Marxist communist ideology.There was cold war between USA and USSR for more than four decades[1946 to 1991]. The world was divided into capitalist block  and socialist blocks before dramatic collapse of USSR and eventually got disintegrated into pieces,which lead to collapse of communist regimes in eastern European countries and surprisingly East and West Germany got united after dismantling of Berlin wall.
            American and other western people,now loving pro-labor radicalism and advocating labor activism,once most hated basic principles of Karl Marx like dictatorship of proletariat,workers of the world unite for common good and workers participation in the management ,recently,Ohio state bill was defeated,on 8th November,2011, Ohioans voted   to overturn the state's new law limiting collective bargaining rights for public sector employees, a victory for organized labor and their Democratic allies in the key electoral battleground,which was purportedly to be  a anti -labour bill or capitalist bill,all workers got united under one banner ensured that anti-labor bill is defeated ,this sparks debate that whether same Marxist principles really inspiring Americans or its sheer people's resistant movement against  corporate or state neglect of commoners and on the other hand,there is a huge movement against corporate greed called" Occupy Wall Street Movement",which has already spread to several countries.


            What made people angry and restless?

            The accumulation of unjust profits by corporates,unjust financial system or unregulated financial system  or unproductive expenditure by the state and sheer neglect of working classes,where as,their demands are  reasonable ,just and simple,they are only demanding affordable housing ,affordable healthcare and over all,the decent standard of living to ensure that children don't suffer,they don't have unreasonable demands  like luxury villas in moon or Hawaiian island holiday package as 'Leave travel package'. [LTC]. They are demanding basic amenities ,as cost of living rising at alarming levels due to high inflation and world economic crises.


            The insecurity creeping in people's mindset:


            The labour unrest is reported in many countries due to world economic and debt crises.Another issue is rising unemployment rates in the developed countries and developing countries,which makes people uncomfortable and restless,resulting mass people's resistant movement.There was riots in London by organised by the unemployed youth,which reminds West Indian British labour unrest of 1934–1939 ,which begin after world war -II,which highlighted income inequalities in Britain.Most communist believe that,If present unrest  continue,it may lead to  Bolshevism.


            Indian Dilemma  &World crises.

            The hundreds of Indian expatriates are expected to return home ,in  next two years  from USA and other countries ,due to uncertain economic conditions,adding to unemployed population,where as India is already facing labour unrest and huge educated unemployment,recently,there was huge labour strike in Maruthi Suzuki Ltd,Hyundai,MRF,Toyota,Honda and Nokia,due to ineffective labour dispute resolution.

            There was labour unrest in some of the industrial areas of Andhra Pradesh and Tamil Nadu,which speaks resurgence of Trade Unionism,pushing case for greater role of workers in the management,protagonist of free market are worried about new resurgence of trade union,which will hamper investment climate.The fact of the matter is there is  a need to address the issue of fair wages,job security and social security measures,which will eventaully reduce labour unrest.It is better for people,who often shed crocodile tears about labour unrest is hurting investment climate, should make an effort to  understand the labour point of view and their woes.

            There will be no organisation with out work force and with out orgaonsation,there can't be work force,both are indispensable in world,when organisation earn profits,workers should be given due share ,valuing their commitment and hard work.
            The Human problems can be solved with humanitarian approach and sensitive mindset,no authoritarian state can survive by creating fear and in security in the work force.




            It is better to strive for equitable society by removing income inequalities by making corporates accountable to stringent labour laws and social security measures and remove social inequalities by enforcing heavy taxation on ultra-rich people.


            References :

            Tuesday, November 8, 2011

            Who will govern internet or WWW?India's proposal.

            Who will govern internet or WWW? India's proposal.

            We use 'Internet' daily,it is an undeniable fact that it has become an indispensable part of the world at individual level or organizational level or governmental level,it is spreading culture,philosophies,arts,literature,political discourses,and  promoting business or relationship at personal level through social networking websites,Ironically,most of us not aware,What is the code of conduct for internet?who and how internet is governed or controlled globally?what is legal mechanism of internet technology like assigning domain names and internet protocol[IP]?what is dispute resolution or how the dispute resolution works?.

            Now the debate is, who should govern the internet ,whether new body under UN or multi level stake holders like INGO,according to the McKinsey Global Institute, a think-tank."because nobody controls the internet, it has proved hard to censor. And despite (or perhaps because of) this lack of governance, the network has proved surprisingly resilient." More than two billion people are now connected to the internet.The many predictions of collapse have not yet proved correct.
            Interestingly,the concept of "Internet Global Governance Mechanism" became debatable in India,after India submitted a proposal to United Nations for the establishment of a committee for Internet-Related Policies.
            The proposal was presented by Member of Parliament Mr Dushyant Singh in 66th General Assembly of United Nations ,it was initiative of under aegsis of IBSA[ three developing like  countries India,Brazil,South Africa],to establish a body to deal with Internet issues,but before understanding the concept of IRP,it is prudent to know the history of Internet Governance.

            History of Internet Governance : 

            The creation of the Internet Corporation for Names and Numbers known widely as "ICANN".  The Internet Corporation for Assigned Names and Numbers (ICANN) ,non-profit and private sector organisation ,formed in 1998 , headquartered in Marina del Rey, California. ,ICANN oversees the assignment of globally unique identifiers on the Internet, including domain names, Internet Protocol (IP) addresses, application port numbers in the transport protocols, and many other parameters,it means the main purpose of formation is to address the  issue of "Domain Names" and "Internet Protocol",the issue of assigning domain names was taken up by DARPA and in affiliation with the Stanford Research Institute (SRI),it was a graduate student ,Jon Postel at the University of California at Los Angeles, who was entrusted the tasks of assigning blocks of numerical IP addresses to regional registries , maintaining a list of the host names  and their addresses.This function eventually became known as the Internet Assigned Numbers Authority (IANA), and as it expanded to include management of the global Domain Name System (DNS) root server.

            The Allocation of IP addresses was delegated to four Regional Internet Registries (RIRs):
            1. American Registry for Internet Numbers (ARIN) for North America
            2. Réseaux IP Européens - Network Coordination Centre (RIPE NCC) for Europe, the Middle East, and Central Asia
            3. Asia-Pacific Network Information Centre (APNIC) for Asia and the Pacific region
            4. Latin American and Caribbean Internet Addresses Registry (LACNIC) for Latin America and the Caribbean region.

            In 1998 after death of postel, the IANA became part of the Internet Corporation for Assigned Names and Numbers (ICANN), a newly created Californian non-profit corporation, initiated during September 1998 by the US Government and awarded a contract by the US Department of Commerce. ,in 1992 the Internet Society (ISOC) was founded.


            The World first Summit on Internet Society:On 16 November 2005, the World Summit on the Information Society, held in Tunis, established the Internet Governance Forum (IGF) to open an ongoing, non-binding conversation among multiple stakeholders about the future of Internet governance.
             

            The United Nations Committee for Internet-Related Policies :

            The new body proposed by India,may consist of 50 member-states,“chosen/elected on the basis of equitable geographical representation” and four advisory groups, one each for civil society, the private sector, the inter-governmental and international organisations and the technical and academic community. 

            The advisory groups will provide “inputs and recommendations to the CIRP.” “The CIRP will report directly to the General Assembly and present recommendations for consideration, adoption and dissemination among all relevant inter-governmental bodies and international organisations,” the Indian proposal says.
            “The intent of proposing a multilateral and multi-stakeholder mechanism is not to control the Internet or allow governments to have the last word on regulating the Internet, but to make sure that the Internet is governed not unilaterally but in an open, democratic, inclusive and participatory manner, with the participation of all stakeholders, so as to evolve universally acceptable and globally harmonised policies in important areas and pave the way for a credible, constantly evolving, stable and well-functioning Internet that plays its due role in improving the quality of peoples' lives everywhere.”

            Internet Society [ISOC] an INGO,cautioned against new body ,it is against spirit of Tunis Agenda ,which calls for multi-stake holder cooperation  in Internet policy development. 

            India called establishment of a working group under Commission on Science and Technology for Development for drawing up the terms of reference for CRIP to make a common body a reality with in 18 months.

            Most countries are uncomfortable with current set up, China and Russia want the United Nations General Assembly to adopt an “International Code of Conduct for Information Security”. India, Brazil and South Africa have called for a “new global body” to control the internet. Other countries want to give a UN agency, the International Telecommunication Union (ITU), a supervisory role.Some western countries battle for Internet Corporation for Assigned Names and Numbers (ICANN),There is a need for body under the frame of UN  to work for common policy to regulate internet and there is a need for greater international cooperation under international body to curb the cyber crimes[frauds,child pornography,trafficking,terror networks]and cyber terrorism like hacking the websites of institutes of national and international importance.

            But some people are not happy with concept of state control over internet,it will curtail the freedom of speech and expression,which will eventually suffocate the internet.


            References :
            1. http://www.thehindu.com/sci-tech/internet/article2604526.ece 

            2. http://www.icann.org/

            3. http://www.economist.com/node/21530955

            Monday, October 31, 2011

            Why India is lagging behind OWS like movement ?

            Why India is lagging behind OWS like movement ?

            While ,whole world is facing Occupy Wall Street like protest against defective banking system and corporate greed,but why India is lagging behind ,because Indians are busy with corporate events like F1 race and Metallica music concert,even though Communist Party of India announced that it will start India version of OWS protest called "Dalal Street protest " from November 4th 2011. In the month of August 2011, India faced huge demonstration at Ram leela grounds,when Sri Anna Hazare ,who calls himself Gandhi follower, went on fast for about 12 days in the month of August 2011 for strong legislation called"Jan Lok Pal Bill" to tackle  the scourge of corruption.It is matter of debate,how effectively Anna and team spread intense anti-corruption under banner  called "India Against Corruption" using social media Face Book , twitter and SMS with in short period of time,which lead to overwhelming response among the middle class and lower middle class.The most experts believed that it is urban middle class revolution and  outright revolt against the rampant corruption,which is prevalent in every wing /department of the government.But even,after two months of Anna fast and huge Ramleela demonstrations,promised Legislation remained a  distinct reality,once again Anna threatening to go on fast,if government of India does not pass strong legislation cub the corruption.  

            Team Anna Problems and degrading anti-corruption movement :

            Paradoxically ,the team Anna members like Ms Kiran Bedi and Mr.Kejriwal faces many allegations of misuse of funds ,abuse of power and wrong doing ,who are managing NGO's.
            Another interesting development is "India against Corruption" [IAC ]decided to return the money collected at Ramleela grounds ,to come clean in the eyes of the public.
            The issue is not about the individuals of Team Anna and their wrong doing ,the issue of importance is Government of India commitment to fight corruption,most experts are of view that by leveling such allegations ,the government of India 's intention is to sidetrack the issue of strong legislation.
            The team Anna unitedly said,they are ready to face any thorough probe,but don't side tract the issue of Jan Lok Pal legislation,at any cost,the bill should be tabled in next Parliament session.     
             
            Give up attitude:

            Some times, we all get nagging doubt that whether Indians suffer from the give -up mentality or poor fighting spirit or poor sportive mindset?,we often come to wrong conclusion that corruption in India is reality,bear it ,rather than fight it,things will not change overnight,we have to lead our life ,irrespective of prevailing circumstances in the country ,rather than fight the system,face the system,which we cant change it single-highhandedly.This is the attitude of the educated middle class Indians.

            The sleeping corporate media: 

            It is matter of irony the press/media is regarded as fourth estate of the democracy,the media is not playing constructive role to cleanse the rotten system,because mainstream media is owned by corporates ,who are political bosses,either they are opposed or supports the ruling establishment for political reasons,rather than playing role of neutral observer.Our media is more interested promoting F1 race or Metallica concert ,while western media[whatever their motive is ] is criticizing India for hosting F1 race,while the nation faces poverty and unemployment.    

            Education in the hands of market forces:
             
            The youth are not mentally trained the fight the rotten system,because of our market orientated education,when our education system is in the hands of corporates,it will invariably trained people with skills to face the system ,not to fight the system.The spirit of revolution and spirit of fighting injustice is not in-calculated in the minds of youth.We are trained  to  face the system and continue our duties as a passive citizen,ignoring the hardship of the rotten system.
            When Telangana region  of A.P ,India went on general strike for a more than a month demanding separate statehood with in-the constitution,some people[may be encouraged by state forces],on their own accord ,formed into a union called parents association or anxious parent's s group  and  demanded that the government should take steps to see that educational institutes should not suffer due to frequent strikes,ironically there was no such parental association meeting or association formed ,when corporate schools and colleges were grabbing huge donations and no such protest was witnessed,when private educational institutes cheated the innocent students ,which were functioning with out any approval or permits.No such protest were witnessed for effective implementation of Right to Education.No one[ so-called concerned citizens] ,raises the issue of high suicide rates in students[bright students of IIT/IIM] and the youth.

            We are only trained to adopt and face the system ,rather fight the system,that is why are lagging behind OWS like protest ,people are not mentally strong in enough to face the difficulties in fighting the rotten system.During ancient  and medieval times,the young prince/princess used to get education on bravery,Valor-ism,war-fare and military adventure,even people were trained to defend them selves from the enemy attacks ,ironically,present educational system teaches us to be passive spectator to the rotten system and become a victim of market forces,it is fact that market is dictating our lives ,right from the cloths to education,even our personal life is dictated by the  market forces.There is no scope for original thinking and original life style basing on our own thinking ,choices and tastes. 
             
            "The man is born free ,but every where ,he is in chains"how true and relevant,even though it is the an ancient philosophy.Presently,we are trapped in the chains of corporate world,who are not interested in changing the rotten system.

            The democracy in India has become "of the corporate","for the corporate" ,"by the corporate"

            But we should remember that ,there will not be any change with out any element of hardship and risk.The change comes for certain prize.
             

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