Spirit of anti-defection law ravished

Defection in the garb of a merger:
The protagonists of the merger need to revisit the tenth schedule of the Indian Constitution
There is a deluge of views emanating from distinguished persons on the raging controversy regarding the validity of changing of side in the garb of a merger by the five MLAs of Haryana Janhit Congress (BL) in Haryana and the whipping boy is the tenth schedule of the Indian Constitution enshrining the anti-defection law. The self-fulfilling interpretation of the provisions of the anti-defection law by the legal eagles to suit a desired end, the suspicion on the non-partisanship of Hon’ble Speaker of the Legislative Assembly and lack of definitive judicial pronouncement on the subject has cast serious doubts on the efficacy of the anti-defection law, and accentuates the need to put the relevant law in its true perspective. In fact, the para 4 of the tenth schedule of the Constitution enabling the merger of a political party is highly democratic envisaging a “collaborative and participatory working” between the political party concerned and its legislature party consisting of elected representatives in the State Legislature or Parliament whatever may be the case. The law strives to strike a fine balance between the interests of political party and the aspirations of the elected representatives (denoting the will of the people) comprising the legislature party concerned. The contents and intent of the said law lend emphatic credence to the inference that any decision for such merger can only be taken by the original political party in accordance with the rules and procedure as delineated in the constitution of that political party, and to take it further to any logical conclusion must find favour with not less than two-thirds of the elected members of the legislature party concerned. Only a well-considered decision in consequence of due deliberations in concert with each other will sanctify the merger. Hence, it is seemingly erroneous to contend that unilateral decision of the two-third members of the legislature party bypassing the political party ipso facto seals the fate of the latter.
The Apex Court in Ravi S. Naik (1994) while interpreting para 3 of said schedule (has since been repealed by the Constitution (Ninety-first Amendment) Act, 2003, w.e.f. January 1st, 2004) dealing with split in a political party had intoned that “even if there is 100% merger of the legislature party, without a split in the original party there can be no split”. It is noteworthy that said law of split enshrined in the repealed para 3 contemplated a lesser evil inasmuch as not immediately annihilating the existence of original political party. In consequence of split in original political party, the members of the breakaway faction constituted a separate political party and at the same time the original political party also retained its existence Where as in the present case under para 4 of the tenth schedule of the Constitution, the moment the merger is deemed to be valid, the existence of the original political party (read Haryana Janhit Congress) is wiped out entailing grave identity crisis for its founder & supremo Sh. Kuldeep Singh Bishnoi and other worthy members of the party not having countenanced to such a merger- a bizarre and unthinkable result which could never be intended by the anti-defection law as enshrined in the tenth schedule of the Constitution. Hence, as a corollary to above mentioned legal and factual position, it can be propounded that if split could not legally be effected in a political party under the law of split as was adumbrated in repealed para 3 of the tenth schedule of the Constitution without a split in original political party notwithstanding the fact that all members of the legislature party break away from the political party concerned , a fortiori, the merger of a political party into another political party becomes highly untenable just at the instance of members of the legislature party irrespective of their numbers in the absence of any decision of the political party concerned for such a merger.
However, courtesy to the peculiar constitutional scheme of things, and also relying on the hindsight, it can conveniently be prophesized that by the time any litigative churning-up will settle down and adjudication will attain finality, the term of the present legislative assembly will come to an end.

Inadequacies in the legal system to fix judicial accountability

The Tribune, New Delhi, April 19, 2010, page 8
Inadequacies in the legal system
The Justice Dinakaran fiasco and the cash-at-judge’s door scam expose the stark inadequacies in the present legal system to bring the errant judges of the higher judiciary to justice. There is no legally binding mechanism to fix the accountability of a deviant judge other than the impeachment process which is highly technical, tardy and cumbersome.
The defiant attitude of Justice Dinkaran in turning a blind eye to the Supreme Court collegium’s advice to go on leave vindicates the redundancy of the much-hyped ‘Restatement of Values of Judicial Life (Code of Conduct) 1999’.
All stakeholders must realise that judicial accountability is an integral facet of judicial independence and precludes neither disciplinary surveillance nor civil or criminal liability for abuse of power, because no immunity of function can be absolute.
RAJENDER GOYAL, Bahadurgarh

Some non-earthly thoughts about the Mother Earth from my little fairy

धरती माँ का पेड़ काटा,
धरती माँ रोने लगी।
धरती माँ का पेड़ लगाया,
धरती माँ हँसने लगी ।।
(The felling of trees makes the Mother Earth to cry, while plantation of trees makes the Mother Earth elated.)
--- This piece of musing about the plight of Mother Earth in the face of ruthless deforestation is conceived by my Four years old only daughter- Lakshya Goyal @ Khushi (creatively and cognitively precocious !!!!)

'April fool' full of loathesome rhetorics or 1st April heralding load of opportunities

The Right of Children to Free and Compulsory Education Act, 2009 guaranteeing the free and compulsory elementary education to the children of the age group between 6-14 is one of the most revolutionary and salutary law passed by the Parliament since independence. The ‘United Nation Convention on the Rights of the Child, 1989’ vide Articles 23, 28 and 29 bestows a ‘right of good education’ on every children and it further enjoins upon ‘everyone with a responsibility to encourage all children to go to school’. India endorsed this document in 1992. To achieve this end, Article 21A ( a Fundamental Right) was inserted in the Constitution by the Constitution (86th Amendment) Act, 2002 whereby it was mandated that State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine. Hitherto now, this matter was dealt with by Article 45 in the form of Directive Principles of State Policy. To effectuate the said constitutional mandate into reality, the Parliament enacted the said Act which received the assent of President on August 26, 2009 and was published in the official gazette on August 27, 2009 for the general information of the public. HRD Ministry through a notification in the official gazette on February 16, 2010 got enforced the provisions of this Act w.e.f. April 1, 2010. Now the onus lies on the parents or guardians of the children to enroll them in the right neighbourhood School. The governments and other local authorities are also under an obligation to sensitize every stakeholder to make best out of this coveted opportunity. There are many grey areas and bottle-necks in the Act which needs to be addressed forthwith for proper and efficacious implementation of the Act. The first thorny challenge arises from the complexities and intricacies of defining, identifying and notifying the neighbourhood Schools. Besides, the task of working out modalities for enrollments of the children towards 25% quota to be set aside by private unaided school will also be quite arduous and painstaking particularly in the face of specific ban on screening test in any form whatsoever. The repercussions of opening admissions round the year on the qualitative education is also a genuine concern. One other radical aspect of this law is that now child will be admitted to a age-appropriate class in stead of skill-appropriate class as prevailed in the earlier dispensation of education laws. This has left the educationist fuming and fretting throughout the country prophesying dooms day for the school education system. Going beyond the realm of the said law, however, the crux of the matter lies in bringing home the 'eternal realization' about the 'wholesome impact' of the 'holistic education' in the life of a human being. A fortiori becomes imperative to frame an all-encompassing curriculum; to prepare a capable, trained and inspiring community of teachers (role model in real sense); to provide for adequate infrastructure (both men based and physical); attractive and secured service conditions (primacy on academic freedom) coupled with optimal freedom in the matter of administration and management of educational institutions to conceptualize and effectuate the noble ideal of 'holistic education'.

A dove-tail of RTI Act, NREG Act, RTE Act, Whistleblower Resolution (as Whistleblowers Bill still pending in Parliament), Food Security Law (pending in Parliament), Women Reservation Law (pending in Parliament) and much desired comprehensive 'Health Security Law' ( the schemes like Rashtriya Swasthya Bima Yojna albeit laudable but abyasmally inadequate) on the line of American Health Care Law if properly conceived, enacted and executed can transform the constitutional goal of egalitarianism into reality.

CESSPOOL OF FILTHY POLITICAL OPPORTUNISM

The unprecedented closing of ranks by the legislators of all hues in Punjab Assembly for digressing the law to take its own course regarding the venal politicians embroiled in graft cases is a living testimony to current bizarre political fabric of the Country abounding in disgusting opportunism, stenching moral decadence and cold-blooded & sadistic callousness to public reactions underscored by culpable ignorance of even basic tenets of law of land. One is bound to shudder with bewilderment as to how the ‘principle of equality’ and ‘due process of law’ enshrined in the Constitution was put in jeopardy by the antics of the vested interests in Punjab Assembly. It also brings out that law enforcement agencies have reduced themselves to puppets in the hands of ruling regime clinically & piously doing their biddings. Rot is deep seated and malignant calling for holistic remedial measures. To begin with, it would be desirable to invoke relevant constitutional provisions to prescribe some minimal qualification (beware of tokenism) to make one eligible to contest an election followed by mandatory and comprehensive training regimen equipping the elected persons with adequate know how of constitutional propriety and law of land. Sooner some such correctory measures are undertaken on a war footing better it shall be for the democratic health of the Nation lest already much disillusioned & harried 'cattle-class' should be pulverised into a classless lot and 'regal-class' of politicians, bureaucrats, and business tycoons (exceptions apart) catapult themselves to a position of absolute immunity.

Law for Judicial Accountability desperately awaited

The Justice Dinakaran's saga and cash-at judge’s door scam conspicuously bring out stark inadequacies in the present legal regime to bring the errant judges of higher judiciary to justice. There is no legally binding mechanism to fix the accountability of a deviant judge other than the impeachment process which is highly technical, tardy and cumbersome. The defiant attitude of Justice Dinkaran in turning blind eyes to the Supreme Court collegium’s advice to go on leave vindicates the redundancy of much hyped ‘Restatement of Values of Judicial Life (Code of Conduct) 1999’. The host of Bills in a quick succession qua judicial accountability viz. Constitutional 98th Amendment Bill, 2003; Judges (Enquiry) Bill, 2005; Judges (Enquiry) Bill, 2006; Judges (Enquiry) Bill, 2008; The Judicial Standards and Accountability Bill, 2009 and now The Judicial Standards and Accountability Bill, 2010 which has been referred for deliberations before Group of Ministers shows the dithering and incoherence at the level of the government. All stakeholders are to realize that judicial accountability is an integral facet of judicial independence and latter precludes, however, neither disciplinary surveillance nor civil or criminal liability for abuse of power, because no immunity of function can be absolute.

A crusade just set off - clarion call for demonstrtion of relentless and unabated grit and determination on the part of civil society

The Tribune, Saturday, April 3, 2010, Delhi, India

Court verdict reinforces rule of law
Aditi Tandon’s article, “Death for ‘honour’: Court teaches khap panchayats a lesson” (April 1) is thought-provoking. The supremacy and inviolability of the rule of law is enshrined in the Constitution. It is implicit in the right to life as envisaged in the Article 21 of the Constitution to choose marriage partners according to one’s personal choice as long as it does not militate against the recognised personal law.
The Hindu Marriage Act clearly enumerates the persons who are out of bounds in the form of ‘sapinda relationship’ and 'degree of prohibited relationship' for the purposes of marriage. At the same time it does not prohibit the same gotra marriage in toto.
Marriage with a person placed beyond the third generation in the line of ascent through the mother, and the fifth generation in the line of ascent through the father is valid and legal.
The revulsion and indignation against such marriages has been orchestrated by certain disgruntled and megalomaniac fringe elements in society. Historic judgment delivered by the court in Karnal pronouncing death sentence to five persons in a case of honour killing will go a long way in preventing the recurrence of gory incidents and thereby reinforce the rule of law.
RAJENDER GOYAL, Bahadurgarh

An inchoate and lurking sense of accomplishment !!!!!!

SUNDAY TRIBUNE (ONLINE), MARCH 7, 2010

LAST WEEK'S RESULT FOR CAPTION CONTEST

-The endless circles of life
Gurkirat Saini
San Jose, CA
-The Lord Of Rings
Ashok C. Bali
London, UK.
-"Finishing Touch"
Ms Lata Salwan
Mississauga, ON, Canada
-The Black Holes of Poverty
Sukhjot Singh Kang
Springdale, Canada
-Lone Creator
Rajender Goyal
Bahadurgarh (India)

Honour of the 'Rule of Law' restored

The supremacy and inviolability of the ‘rule of law’ is signature tune of the Indian Constitution. It is implicit in the hallowed ‘right of life’ as envisaged in the Article 21 of the Constitution to choose the marriage partners according to one’s own personal choice devoid of any extraneous influences, pressures and considerations as long as it does not militate against the recognized Personal Law. Regarding Hindus, the Hindu Marriage Act is the stand-alone Legislation clearly enumerating and elucidating about the persons who are ‘out of bounds’ in the form of ‘spinda relationship’ and 'Degree of prohibited relationship' for the purposes of marriage. Bare facedly, it will show that it does not put an absolute embargo on same-gotra marriage . The marriage with a person placed beyond the third generation in the line of ascent through the mother, and the fifth generation in the line of ascent through the father is perfectly valid and legal. The revulsion and indignation against such marriages is self-seeking orchestrated by certain disgruntled and megalomaniac fringe elements in the society for their own vested interests. The time brooks no delay for the sensitive and sensitized citizenry to take up the cudgel against such fissiparous and sadistic segment of the society. Hopefully, the historic judgment delivered by Karnal Session Judge Ms. Vani Gopal Sharma on March 30, 2010 pronouncing death sentence to five persons in a case of honour killings of love-birds Babli and Manoj will not be just a flash in the pan. This judicial verdict will go a long way in preventing the recurrence of such gory and egregious incidents if sane and rational strata of the society do not allow their constitutionally guarnteed freedoms and other rights (universally recognised as indispensable to secure bare minimal existence as a human being) be crushed down by handful of fanatics. The verdict has handed out an unequivocal signal that attempted ‘Talibanisation’ of Haryanvi pristine culture and ethos embedded in the social weal of tolerance, brotherhood, mutualism, progressiveness and non-violence will be dealt with iron hands and no body will be allowed to toy up with the 'Rule of Law'.