Why Muslims complain on laws of constitutional democracies?

Have you seen this situation? Whenever a Muslim is acquitted from a terror attack for which he/she was accused, you should see the Jubliant mood of propagandists, well yes, they are within their right to do so in a liberal democracy as they are not living in Saudi Arabia. Now they start spinning theories like police biasedness and say that Indian Law is shit etc., which may be true in certain cases.

But what you do not hear from them is the answers to some of the questions mentioned below:

1. In all the terror attacks at least since Political Independence ( we shall take it since indepedence for the sake of simplicity) do they care to tell us why majority of muslims are convicted?
2. Who is Afzal Guru, Kasab and Tiger memon, Dawood and other shit holes?
3. Who are those who travelled to Iraq all the way from TamilNadu to join ISIS?

Standard Response : "They are not Muslims". Well, we believe you !

But there is a method in the madness.

Their is a concept called as sacred deceit (Taqiyya)which is essentially a part of sharia and Islamic Jurisprudence, Which says when your brothers (Muslims) are in danger practice this deceit to fool the kafir ie., the non-believer.

Though Indian liberal laws are imperfect it is only because of fairness and adherence to the principles of nautral justice Muslims are acquitted when they are found not guilty. As such there is no distinction on the application of laws based on religion in liberal constitutional democracies unlike an Islamic Country.

In Darul-Islam ie., a Muslim majority state the evidence of a Kafir is not considered as evidence and evidence of Muslim woman is only taken as half evidence, this is Islamic sharia law.

Muslims who say that they don't believe in Sharia or some crazy things which Hadith preaches are either not a Muslim as per Islamic Jurisprudence or they are willfully following Taqiyya ie., sacret deceit to fool the kafir. 

It is important that all the kafirs know about this.

The Caste Question: Answering it as a student

It was just another day in a small hotel nearby Law College which functions as a canteen of the college itself. I was already getting late and was rushing with my lunch. Since this is the final semester and it is time for Internal Moot court sessions, students all the while are discussing about it. And I was explaining my friend Raghu on how to prepare the memorials for moot, he was not happy with the problem he was given, after expressing his displeasure on the problem he left and I continued with my lunch.

Throughout the conversation there was an old man who appeared to be in his mid sixties was keenly observing us, who was seated in front of me also was having lunch.

Old Man: Advocate, sir

Me: Who, are you talking to me?

Old Man: Yes, sir.

Me: I am not an advocate.

Old Man: I am very impressed by your explanation to your class mate.

Me: I was just telling what I knew.

Old Man: I have a question for you.

Me: Ok, what is that?

Old Man: When our constitution says there is no caste and other discrimination why it still exists? Why are we asked to fill our caste etc., when we fill any government forms? 

That was a good poser. This was also the subject ie., Art:14 (Equality before law) and Art:38 (State to ensure social justice) and Art:15(Special Provisions) of Indian constitution on which I had to argue that afternoon right after lunch. I was given a case and I had to argue on all these points in the internal moot court competition.

That case was on Land acquisition. Govt acquires a shelter home and wantonly leaves out a property of a politician’s house which is adjacent to that shelter home, ie., the politician gets away with the process because of his influence in the govt. I had to argue for shelter home as a counsel for petitioner and seek the quashing of acquisition process as the whole process is not bonafide. And I was thoroughly prepared and ready for the argument. This question from the old man was a calling for practice.

Me: No, sir. It is not like that. What you are saying is only partially correct. Govt. wants to know which social group you belong to, if you are from certain community you might need to be given the reservation and other perks etc., and we should not make a rigid interpretation of Art:14 – Equality before law. 

 

And I further told him that if he really wants to abolish all that and bring about equality he should stop accepting the benefits if he was receiving already in the name of reservation. And stop voting to the parties which base their politics on caste, religion and reservation politics. What I have understood is that his target was primarily the caste than religion. And I also told him as per the provisions of Art: 15, the state can make reasonable classifications for the benefit of Women,children and sc/st etcf., that does not infringe Art:14 at all, because he was quoted Art:14 more than once.

 He also cited that Ambedkar only wanted this for 10 years but it continues till date. I was really excited and positive to see his reach of the knowledge. He further continued with his cynicism, i.e., he wants a revolution to happen which could settle the balance and make things even. I was already getting late for the class. I just laughed at him and walked away by saying good bye.

By the time he used the word “Puratchi” (Revolution) in his conversation for more than couple of times, I have understood that I was talking to a communist so far.  This is the problem with communists; they have severely abused the word “Revolution” and have committed genocides time and again in its name. But when it comes to the practice of democracy, for them it is a long shot.

I pondered over as I was walking towards my class, what makes caste so persistent that it cannot be wished away from our society.  There are two groups which are responsible for this perpetuation, the group which works to eradicate this distinction from our society and the other group is the one which wants it to remain to run their business, the reason for its existence could be that the former group is not working hard or the later group is working so hard to keep it alive, in addition to these two there is another actor ie., the Indian voter. Only if voter recognizes the fact that if he continues to vote on caste preferences then there will be no change in the status quo. He must start demanding answers from the ruling clique on its duties and performance lapses, only then things will change.

When I was caught for violating the law

It all happened in Chennai Beach Railway station. After a hectic day which included an interesting court visit, this is part of law degree which is akin to engineering students going to industry visit, walked in to the station bought a ticket for Chennai Avadi station from Beach. It was 4.pm by then. After indulging myself for more than half an hour on twitter through my mobile phone I casually enquired a bystander about the timing of next train to Avadi, who said it is at 5.20 PM. I then realized that I should have taken a bus and must have enquired about the timing of next train before buying the ticket. Task at hand was to thrash the next one hour somehow, twitter wasn’t encouraging. Suddenly I saw a bunch of, say 10 Aam Admi party activists alighting from a train, I think they were planning for some road show or were trying to create some scene and looking for some opportunity. I thought there was no better way to kill that one hour other than engaging in a conversion with them. Before I could approach (I was on a phone call when they were nearby) them they have moved swiftly to the other end of platform. And I had no interest to pursue them anyway.

I thought that wasting an hour sitting in a railway station is useless and unproductive and I was already tired and decided to go by bus. On my way back to out of Railway Station while crossing railway tracks I phoned up a friend and was talking. And the moment I was walking up the ramp one fat guy stood in front of me, he is RPF (Railway Police Force) Constable. I ignored him and continued talking. Later I have abruptly disconnected the phone call to talk to him and I thought that now I have a good chance of whiling away that one hour.

Following was the conversation

Constable: Sir where are you going?

Me: Home

Constable: Ticket

Me: Here it is

I knew by that time that he is an RPF constable and his job is not to check the tickets, he was still starring at my ticket, it appeared to me that he just did not know how to read a ticket.

Me: what are you looking at for a long time sire? This is the ticket to Avadi and I decided to go by bus because the next train is only at 5.30 PM

Constable: Have you not seen the sign board which says not to use cell phones while crossing?

I turned around to see the sign board and I could not infer a thing from that, but decided not to argue with him and by now I know the offence I have committed.

Me: Give me the ticket

Constable: No, come to office

Me: Don’t book somebody because he looks like a fool, (that was with sarcasm)

Constable: I have never said something like that.

He might have noticed my uniform(white shirt and black pant, law student/advocate attire) since beginning and was in a dilemma on what to do with me.

Constable: Are you an advocate?

Me: No, final year student.

Constable: Come to office.

If I would have lied that I was an advocate I think he must have let me go, but then I did not. I just did not know what to do, but something had to be done. I suddenly erupted,

Me: Selective application of law is no law.

Constable: Oh! My god. Sire, please come and say all this in office room. Everything is captured in video camera

Now that I have realized that I have to go to office room, I just followed him. And I was constantly thinking/planning how I should get myself out of this. Now we have reached the office room and to my surprise there are around 25 to 30 people just like me, all of them brought there for some petty offenses/reasons, there was a set up like a room which was created with the help of barricades and inside that long benches and chairs were arranged. The other guys were welcoming me, one guy said, come sire what did you do? Just like in movies we see in a jail cell if a new inmate arrives the guy who is already there in that cell will ask a similar question. I have asked myself, what the hell of a mistake I did. And decided that if I am made to pay the fine, they are not going to get it easily.

The process is after they have gathered certain number of people they will all be taken together to the nearby Mobile court where the judge will decide the fine amount. I have walked to the Writer and asked is there a way out and what is all this? How long will it take because I am about to miss my 5.20 PM train.

Now the writer was taking the details from me Name, address, age, father’s name etc., concurrently he filled out a sheet with my details and asked me to sign. 

Me: On what charge you are booking me?

The moment I asked that question there was a silence, for a moment he just did not respond, then reacted.

Writer: I am helping you, by saying in this complaint that you were in ladies compartment for 10 minutes, because that will cost you only 200 hundred rupees, otherwise for phone it will be 500 and for speaking it will be another 500.

By then I knew he was surely bluffing. I repeated.

Me: Thank you sire, but on what charge ie., which section and on which act you are booking me?

He pointed me to the sheet he was filling out and said, Raiway act sire and this is the section. I wasn’t sure but it looked like 165, but decided that when I go to the court I will ask the judge. And then I have signed the paper, two signatures. 

Now I am back to the place where I was earlier asked to wait ie., in the midst of guys all of them are of same age group, we were just cracking jokes and were laughing, that was a great time indeed.

Simultaneously I have been thinking about nailing these people who booked me. That is exactly why I have agreed to be booked for a wrong reason and signed the papers not because I will save some money. And I have now laid out the scheme of things to be executed once I go to court. These were some questions I have prepared in my mind to ask the judge.

Here’s how the conversation would have been in my opinion.

1.    Me: Before you confirm the fine, what evidence are you going to rely up on? Is oral evidence of Police is final?

I did do some casual reading of Indian Evidence Act and I know that the evidence of police is bad evidence and it will not be given a priority.

2.    Judge: No we shall have a video footage.

3.    Me: I will challenge the RPF to prove it.

I know very well that they could not produce it, now they are literally locked out and I would further allege that they have asked me pay some money as bribe and booked for an alternate offence where I could be charged with lesser fine. They will be literally screwed.

4.    Judge: Then why have you signed the sheet agreeing the charges?

5.    Me: I was induced first and then threatened by the police to do so.

And I know very well when it to comes signing the declaration in police custody i.e. RPF in this case by accepting a charge can be related to confession in Evidence act, which cannot be held valid even though I have signed it, if it is alleged that it was acquired through undue influence. So that argument of ‘I have signed and accepted the charge” will not stand. And the judge would have literally thrashed the police, and subsequently let me go or ask me to pay for the original offense that is for the phone, for which I was already prepared.

But all this would have happened only if they have taken me to the court, unfortunately they have decided not to do so. Here is why I think it is.

When the writer asked me to wait with others and in a moment we all shall be taken to court, after sitting for a while I have gone back to the writer now with a notepad and pen.

Me: Sire, what is your name?

There was a complete silence, he did not respond for a moment, then said

Writer: Why are you asking my name?

Me: There is no reason, just wanted to make a note of it.

Though I have said that there is no reason, I have actually planned to ruin their careers.

Writer: No, take the names of Sub-Inspector, Inspector and others. Please go and talk to them.

Me: what is problem with telling your name and designation?

Writer: No, please go and talk to the Sub Inspector (SI)

Now I am inside the cabin of SI, where the other guy explained him what my offense was and he also said I was also asking for names.

Then he starred at me. I thought now it is my turn to talk. And I thundered with my favorite quote and concept which I have read it in some journal but I could not recall which journal it was.

Me: Sire, Selective application of law is no law and the law enforcement authorities who apply the law for their convenience are not law enforcement authorities in its true sense.

Now he gave me a confused look, and said sire please take your chair, I said it is ok, after a pause he replied

SI: Why do you want names?

Me: Sire, I am a very poor man and you are a police officer, why are you worried to give your names and designation? What do you think I am going to do? I could do nothing.

SI: Ok, here they are.

I have noted all their names SI, Inspector, Constable etc. After that I have just walked out and gone to the bench where I was sitting  It was full of fun there, guys were just making a lot of fun, one guy asked me sire, what they were saying? I replied no, nothing I have just collected their names. Did you watch some Tamil movie this morning and is that the reason why you are doing all these, i.e., collecting their names? He was trying to make a joke out of it.

From the moment I was out of SI cabin, there was a complete commotion inside; they were brainstorming on what to do with me and how to proceed further. And they appeared worried that I am going to do something with their names. Suddenly, the writer rushed out to me and said 

Writer: Sire, SI asked me to fill out another form for the original offence ie., for that phone thing.

Me: Ok, no problem.

Then he quickly filled out and asked me to sign.

Me: Hand me over the sheet which I have earlier signed, only then I will sign this.

He again started scratching his forehead and rushed inside the SI room. After sometime inspector came out to take me to another senior officer who is in the first floor, this guy seemed to be the complete in charge. SI, Constable and the inspector all are present there to complain about me and inspector has explained what I have done, ie., was on phone while crossing the track inside the railway station. In-charge/Senior officer/Head looked at me and nodded, is it not an offence?  Before I could reply SI intervened, Sire, on top of it he (me) is asking for all our names too.

Then once again I have gently said, this time to the in charge, “Sire, Selective application of law is no law and the law enforcement authorities who apply the law for their convenience are not law enforcement authorities in its true sense”

In-Charge: Are you an advocate?

Me: No, not yet. Few months away from my Law degree.

In-Charge: Ok, waiting for exams?

Me: Yes.

In-Charge: They have done their duty.

He said this looking at the police personnel.

Me: I completely agree, and there is no dispute on that.

SI Intervened again, Sir he is collecting our names too.

I interrupted the SI and said, Sire, India is a democratic country and here I thought it is within my rights to know who is charging me, and there is nothing more to it. The law enforcement authorities have a wide range of discretion when it comes to enforcing the law. They should judiciously apply it and discriminate between a serious and less serious offence though the statutes are not asking them to do. If I have grievously hurt somebody on railway premises for which you have jurisdiction, you should show no leniency, but see what I have done? I was on phone is that so serious? Then he In-Charge said many people were killed because they were carelessly on phone while crossing. I have just said, point taken. He added that it is only for my benefit he saying this, I just nodded. SI asked the In-Charge, can we let him go? In-Charge replied, yes please. In-charge stood up and shook hands with me and said good luck for everything and take care. And then I have walked out.

But to let you know the reason for collecting their names is to accuse them of demanding the bribe which is violation of Prevention of Corruption act Sec: 7. so those who booked me for an offence which is different from what I have actually committed would have been in deep trouble. And there is a high probability that my case will stand. Though I could not accuse the judge as per the sec: 77 of IPC, i.e., Act of judge when acting judicially, but the Inspector, Constable and the SI could very well be pinned, that was an easy task. So they have narrowly saved themselves by just letting me go.

Moral of the story (of this incident) goes something like this. In my opinion Law is nothing but a set of processes and rules which the enforcement authorities are obliged to follow when enforcing the law, if they miss even one rule for which there is no judicial sanction and apply it selectively for their own convenience they can be held accountable. So the job of a learned man is to pick up those rules which the enforcement authority has missed or failed to comply with, whether he did it willfully or not it hardly matters. Somehow I had my way this time.

Once I reached home I was scanning through the Railways act Sec.165 on which I was booked originally but it was only about bringing the offensive goods not about getting in to a ladies compartment. Now I know why police goofs up most of the time when it comes to application of law.

Can we separate politics from law ?

Whenever I try to give a political dimension to a legal question, I am cautioned by learned people and teachers by a statement “You should keep yourself away from Politics”. Instantly I would ask myself why?

This is not the question only with respect to academia but in general too. Suppose we are travelling in a public transport and if you happen to discuss your political views with your fellow traveler, what if he does not agree? Or what if he weakens your argument. What if it ends in a duel? May be that is why generally if someone talks about it – Politics, others might just say “here we go we have got another wayward”. If that is the case we should declare “Aristotle” a wayward.

But here I would like to ponder over such cases with in the academia. On the other day my teacher and I were discussing some legal questions on few things, one of the item that came up was federalism and Art: 370 of Indian constitution.

My view was that India is not strictly a federal country; any time centre can usurp all the notional powers given to provinces or states.

And it completely depends up on temperament of the leader who is ruling at a specific point of time. Nehru and Indira Gandhi are such leaders whose tendencies were always unitary and they rarely indulged in the practice of federalism. May be we have had a single party rule for a very long time. But that is not the point.

The moment I have taken few names in politics, comes the caveat “Don’t mix the politics” in law.  Then the question would be is it really possible or is it appropriate to view politics and law as two separate worlds? May be yes. But it should not be, if we are looking for a holistic view. After all law is nothing but the result of political deliberations and in effect law is an offspring of politics. Without politics, law is not possible. But in the Indian context unlike west we have a lot of practical difficulties if we ever have to engage in daily life political discussions. Though in broad terms ‘Politics’ could mean everything we do in our life, here I am only referring to relations between public & political parties which rule the former through an institution called government.

Aren’t we discussing politics all the time? When fuel and cooking gas prices are hiked we deplore the actions of govt. because we know it is they who have taken this decision.

Why academia as a whole does not engage itself in political discourse is an important question. At least teachers from the depts. of Humanities and Social sciences rarely discuss current issues in public or classroom. That is why there is a scant regard for social sciences in India.

In India people do not practice “Transaction based reactions” i.e., you do not agree/disagree with a person but only with issues. Even though congress is neck deep in corruption it is possible that few people including I could agree on few issues that does not mean that I am either Pro or anti.

But the compulsion of teachers not to discuss current politics with students in particular or with in academia at least is because if your political inclinations are known, there will be issues in career progression i.e., becoming from guest prof. to tenure prof. or from an Asst. Prof. to Prof. or to go on and become a vice chancellor or directors. So there is hardly a requirement of your subject mastery. Additionally they fear professional retaliation if they make their inclinations apparent.

In reality if we endeavor to answer critical legal questions in its entirety, keeping politics aside will not help either the student or teacher. Way to go for Democracy in India!

Application of International Law: Challenges

Introduction:

International Law[1] or the Law of Nations is the name of a body of rules which according to regular definition regulates the conduct of States in their intercourse with each another. International Law is that branch of law which relates to the conduct of independent states who have certain inherent powers and are not subject to external political power[2]. But to the question of whether it is applied evenly throughout the world when ever there was a violation? The answer is apparently a partial yes. Since International Law has different dimensions, on this paper I shall attempt to pick up certain heads or themes and discuss challenges in those specific spheres. Additionally I make an earnest attempt to suggest certain measures through which we could curb the possibilities of violations going unaccounted.

Unrepresentative Security Council

Security Council formed as a tool to balance the power between competing nations, when we talk about Security Council we should go back to the circumstances that lead to the creation of League of Nations instead of United Nations Organization. Now the Security Council as an institutional set up is the giver of corrective justice[3] rather than distributive justice[4] most of the times. Apart from the stated purpose of maintaining International Peace it is a bloc to check the expansionist intentions of superpowers. The world at the moment is neither a unipolar nor a bipolar reality and is essentially a Multipolar set up. With that being the case it must reflect and represent the current day reality because most of the time ideological battles are fought in Security Council over important security issues, this is mainly because of the presence of Russia, USA and China. Members of security council are driven by their own national interests rather than by global justice and international peace. Security Council in its current form is blot on its legitimacy[5]

Syria’s Civil War:

Syria’s civil war is a case in point where there is no agreement on resolution[6] between major powers, with China and Russia on one side and USA on the other. With such a disagreement how can we hold the Syrian government liable for the excesses it committed on the protesting groups?

Resolution on Iraq:

Immediately after US and UK led invasion of Iraq on the premise of Iraq possessing Weapons of mass destruction, US wanted to lift all sanctions which were imposed when it was under Sadam's regime. Firstly act of aggression is a violation of International Law. By lifting the sanctions through active lobbying US has turned it in to a legally correct invasion and despite the opposition of non-permanent members a resolution[7] was passed for that effect. So it becomes imperative to reform Security Council which reflects the aspirations of developing countries else it will continue to be a forum where super powers play zero sum games[8] with each other.

Totalitarian States and Military Regimes

Though different ideologies propagate totalitarian view but it is also possible that an individual tyrant for eg: a military dictator can usurp power from a democratically elected government and to further sustain the power it acquired through fraud it engages in violation of International Law. Disturbing development is that when they have a tacit support of super powers the crimes these regimes commit often go unaccounted. Therefore the existence of totalitarian[9] regimes and the violations they commit is a grave challenge for the application of the rules of International Law.

Case of Baluchistan:

How Baluchistan has become a part of Pakistan is a painful past. And the state oppression drives the Baluch nationalists to fight against the tyrant administration to establish their human rights and further their cause of Independence; the most shocking violation is how Pakistan as a state engaged in blatant human rights violations since the issue erupted in 1947. Forced[10] disappearances of people of Baloch is a key component in its strategy against the struggle of Baluch independence, which is a grave violation of International Human rights law. But until date we have not seen any tangible and meaningful intervention by the international community. If every state has a right to fight the forces of separatism they have to do with due regard to International law[11] (Human rights and Humanitarian law). Sanctions and strictures do not deter people from committing crime and civilians are continued to be killed in Baluchistan till date and this violations are expected to continue in future unless they it is forcibly stopped by International Community.

Discrimination as a state policy in totalitarian regimes:

Totalitarian states have discrimination as their policies which are duly supported by their municipal law, just like Nazi Germany and Bolshevik Russia, where the former persecuted Jews and latter denied basic human rights for all opponents under the sun. According to Universal Declaration of Human rights all citizens have equal rights and there should be no discrimination on grounds of ethnicity, religion or minority status. But Pakistan’s constitution[12] says only a Muslim can become a president of Pakistan which is a violation International Law[13] (Civil and Political rights). No one till date could question this discrimination. As a way forward UN must start propagating the idea of keeping religion and affairs of state as two distinct entities which might help to gradually reduce the official discrimination.

Humanitarian law

If there is any domain of International law which is absolutely suffering from non-active support of power bloc it is “Law of Armed Conflict”. The serious problem of all law, and hence of international humanitarian law, is the yawning gap between precepts and practice[14]. Battle of Solferino 1859 helped Henry Dunant to discover how barbaric Human being was and ever since he tried to convince all, that war is indeed destructive and even in afterlife he is still trying to convince through ICRC. It generally insists on humanitarian considerations while two warring parties are engaged in an armed conflict. And primary aim is to ensure that no harm is caused to civilians, also if once armed combatants are disarmed they must be treated humanely. It will not be an exaggeration to say that most of the time perpetrators are not held liable. If we have to go by the dichotomy of International armed conflict[15]and Non-International armed conflict, most of the times violations occur in Non-International armed conflict[16] than the international armed conflict. Peremptory norms of International Humanitarian law are violated every day in this world in one conflict or the other without any fear of liability.

Bangladesh Liberation War:

During Bangladesh's liberation war Pakistan’s army and state sponsored militia committed grave human rights violations and war crimes, millions of innocent lives [17]were lost who had nothing to do with direct armed conflict. A mass exodus of further more ensued. But the key master minds that were behind this crime did lead a peaceful life and died naturally. The tribunal which was recently established is nothing but justice delayed. Years lapsed, no justice for the people perished. Again International community has not done enough when it comes to ensuring justice delivery for the victims of Bangladesh genocide. Limitation of Humanitarian Law is that it cannot stop beforehand from people getting killed at the time of war, or it is nearly impossible to force belligerents to adhere to the law of armed conflict when they are actually engaged in war or before they are going to start.

Highway of Death:

An important incident on violation of International Law which is committed by US on retreating Iraqi forces during the withdrawal of Iraqi forces from Kuwait, Iraqi invasion of Kuwait was reversed mainly by US Army. If the sole intention was to assist Kuwait to free itself from the Iraqi invasion why should US bomb the retreating Iraqi forces on Highway 80 – A road that runs from Kuwait city to Safwan of Iraq. International Law prohibits the excessive use of force which could cause a superfluous injury. US army literally bombed the Iraqi forces from whom it had no immediate threat, thereby killing thousands of soldiers which is an unnecessary suffering for retreating soldiers and is a violation of very minimum humanitarian standards[18]. The military necessity[19] of killing thousands of retreating soldiers was never ascertained and justified by US Army, therefore it is a clear violation of Jus cogens[20].

Physical elimination of Iraqi soldiers with excessive force is a willful killing[21]. There was never a case to prosecute USA for its act, because US is not within the purview of International Criminal Court.

Conclusion: 

Though we have identified serious limitations in applying International law, it is not to discount the fact that even with current limited application of International law much of stability and world peace has been achieved, but that is not enough with this planet continuing to grow beyond 6 billion people and a considerable amount of population being younger generation who can easily identify the untenable argument of unequal application of International Law and the rising state of Multi-polarity affirms that notion. Long gone are days where the governing of global affairs was completely based on uni-polar and bi-polar views and we are in the era of Multipolar world therefore new threats, challenges and opportunities are on the table for the world to embrace. The developed world must realize this fact and ease its grip on world and let everyone to decide their own destiny without being intervened by the super powers, in that direction reforming the Security Council will have a salutary effect. Developed nations must agree that when it comes to violations International Law they are no different from any other country in the comity of nations. Bringing US within the purview of International Criminal Court could set the right tone to start with.

Note: This Paper will be submitted for a discussion which is due to happen on 24 Aug 2013 at Dept. of Legal Studies, University of Madras.

End Notes

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[1] Hans Kelsen, Principles of International Law, Rinehart, 1952,  p. 3

[2] Roland R. Foulke, Definition and Nature of International Law, Columbia Law Review, Vol. 19, No. 6 (Dec., 1919), pp. 429-466

[3] Coleman, Jules and Mendlow, Gabriel, "Theories of Tort Law", The Stanford Encyclopedia of Philosophy (Fall 2010 Edition), Edward N. Zalta (ed.), 

[4] Lamont, Julian and Favor, Christi, "Distributive Justice", The Stanford Encyclopedia of Philosophy (Spring 2013 Edition), Edward N. Zalta (ed.),

[5] http://www.theguardian.com/commentisfree/2013/may/06/un-security-council -Accessed on 22/08/2013

[6] http://www.un.org/apps/news/story.asp?NewsID=42513#.UhVw5pL-HyQ – Accessed on 22/08/2013. Security Council meeting held on Syria

[7] Resolution 1483 (2003) Adopted by the Security Council at its 4761st meeting, on 22 May 2003

[8] Jackson, Matthew O., A Brief Introduction to the Basics of Game Theory (December 5, 2011). Available at SSRN: http://ssrn.com/abstract=1968579 or http://dx.doi.org/10.2139/ssrn.1968579

[9] Primoratz, Igor, "Terrorism", The Stanford Encyclopedia of Philosophy (Summer 2013 Edition), Edward N. Zalta (ed.),

[10] http://www.hrw.org/news/2011/07/28/pakistan-security-forces-disappear-opponents-balochistan - Accessed on 22/08/2013

[11] Art. 3. Chapter I: General provisions, Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949.

[12] Art.41 (2) Part III: The Federation of Pakistan, Chapter I: The President.

[13] International Covenant on Civil and Political Rights, Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976.

[14] 31-03-2001 Article, International Review of the Red Cross, No. 841, by V. S. Mani

[15] Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field.

[16] Common Article 3 to the 1949 Geneva Conventions; and Article 1 of 1977 Additional Protocol II to the 1949 Geneva Conventions.

[17] Please see the Bangladesh genocide archive at http://www.genocidebangladesh.org/

[18] Art. 3 (2) (b) Declaration of Minimum Humanitarian Standards Adopted by an expert meeting convened by the Institute for Human Rights, Åbo Akademi University, in Turku/ Åbo Finland, 2 December 1990.

[19] International Law, Malcolm Shaw – 6th Edition – The conduct of Hostilities – pg 1184

[20] Finnis, John, "Natural Law Theories", The Stanford Encyclopedia of Philosophy (Fall 2011 Edition), Edward N. Zalta (ed.),

[21] Art.8 (2) (i) Wilful Killing, Rome Statute of ICC.

Why Miranda of India is no match to the Miranda of USA?

Whenever there is a terrorist attack or incident, or say for that matter a heinous crime committed. As a common citizen we expect the guilty to be hanged instantly. Oh! Come on isn’t that a genuine feeling? Which every morally upright mortal must have? But when the justice is delivered by courts they are obliged to give fair hearing to the one who is accused of committing heinous crime, this is to make sure that the notions of “Principles of Natural Justice” are upheld and not to mention the notions of civilized society.

I would call it is as a journey to justice delivery? From the moment of crime committal till conviction it is a journey indeed, at the heart of this journey to justice the role of police/law enforcement personnel is indispensible, whose job is to gather independent witnesses against the accused and prosecute him. Because statements of the accused cannot be used as the only evidence to prosecute. Independent, corroborative evidence is essential.

In terror crimes often accused will admit that he is committed the crime, because terrorists want some publicity. If Alqueda attacks America, India or Israel they want to boast that in the name of Allah they have done it. But the challenge will be who influenced or what him to commit it, case of 2008 Mumbai attack? For example in Parliament attack case of 2001 the main accused Afzal Guru has accepted that he has committed the crime, read my write-up. But it is understood that to find out the immediate motives it has taken time.  The constitution guarantees “Right against Self Incrimination” to the accused who may choose to remain silent, but this is not the best in world at least not a best one than US. In America police officers have to read out the rights an accused has before arresting or while interrogating him. Can you imagine that happening in India? In a land mark case Miranda v/s Arizona the Supreme Court consolidated and upheld the rights given to Americans by fifth and sixth amendment, from then on it was called as Miranda warning.

Ever watched the movie Phone Booth? In that movie Forest Whitaker will read Miranda rights to the alleged accused Collin Farrell. Easy to understand Miranda rights by watching that movie.

1. They have the right to remain silent

2. Anything the suspect does say can and MAY be used against them;

3. They have the right to have an attorney present before and during the questioning

4. they have the right, if they cannot afford the services of an attorney, to have one appointed, at public expense and without cost to them, to represent them before and during the questioning

There seems to be a public safety exception, there seems to an intense debate after the Boston bomb blast on this exception, in my opinion the Boston bomb suspect’s case falls within public safety exception. Once resorted to this exception and if it’s necessary is upheld, enforcement officers chose to ignore Miranda warning or the accused cannot ask to suppress his statements. When there is an imminent threat to public safety, Miranda warning is certainly not necessary. Otherwise the expectation from courts is that statements made by accused should be voluntary. If the element of voluntariness is not established they are assumed to be statements acquired through coercion which cannot be considered as evidence and the police must be ready for strictures.

Just like in India confessions acquired through coercion are considered as no evidence to incriminate someone.

In an underdeveloped (with respect to people’s activism per se) country like India accused neither know what their rights are against self incrimination nor told what they are by police though they are entitled to. Often the illiterate innocents are punished by confessions acquired deftly by crooked police. And there is no way for the judge to establish whether a particular statement was given voluntarily by the accused. He may ask him orally, for which the hapless would say, yes. Because this is perfectly stage-managed by police. While most of the Miranda’s elements of India and US match, the only component that seems to stand out is letting the accused know their rights understandably do not happen though the accused has a right to know. And this must be strictly imposed on Indian police who should be made to read accused their rights before arresting him or at the time of interrogation. Convictions rates might fall?

Legal Heir V/S Nominee: Who should get the primacy?

Do you re-call that when you open an account in any bank irrespective of whether it is a nationalized or a private, while filling up the application form you are asked to select the nominees? Now who is a nominee? It is as we all know if the account holder expired suddenly or deceased untimely, a nominee can claim the money the amount lying in the account if it is a bank account or if it is a locker he claim the articles.

Sec: 45ZA of Banking Regulation Act 1949 requires all the account holders to nominate persons who could claim ownership of the amount in the absence of account holder ie., after his death. The generally impression for a lay man is however is (which is contrary to the legal expectation) appointing a nominee for his account means he (the nominee) will be sole owner of deposit in his account after his death. But it might be surprising to hear that nominee cannot claim an undisputable ownership of deposit when the account holder is deceased. Because legal heir takes primacy over nominee and the later is relegated merely to the position of collection agent. This has led to a tremendous confusion and is apparently against the intentions of the account holder, because he wanted the money to be distributed among his heirs he would have selected his/her legal heirs why would he select others as nominee. The precedence given to legal heir is because of Hindu Succession Act 1956. And we have Indian succession and Muslim succession acts for Christians and Muslims.

The deposit in the account is considered as a property and the one claims ownership should be legal heir only. Though as per the Hindu succession act priorities may differ. Hence they are classified as Class I, Class II, Agnates and Cognates as per order of precedence. This is for intestate succession. It means when the owner dies without explicitly writing a will. And will can be written if it is not an ancestral property.

Recently I was stumbled by a case in which one of my friends Shalini was involved. To his relative Kumar she has given an amount of Rs 100,000. Since Kumar is very old say beyond 80 and his wife Kamu who is at her late 70’s. As they have no other source of income Shalini has been taking care of both of them. Though Kamu had a sister and their children all adult males in a good earning position nobody cared to look after this old couple.

Pleased by the Shalini’s help Kumar has nominated her as a nominee for his bank account. Kamu died few years ago. Suddenly Kumar is also deceased. When as a nominee my friend Shalini claimed the deposit in Kumar’s account, her claim is disputed by Kamu’s sister’s children who are the right owners of the property legally.

But all the while were thinking that Shalini is the right owner because she has been nominated by the account holder out of his own will. He consciously made a choice that after his death the deposit should go to Shalini because she took care of him (Kumar). But law(and a latest judgment on this too) treats nominee as only collection agents and nothing more. It is clear that mostly we select our legal heirs as nominees but not always, there are few instances like my friend’s Shalini.

What should we do?

Testamentary succession is one of the less cumbersome transactions legally. Which means one writes a will when he is alive and this piece of paper (will) acquires power when the one written is deceased until then it is just a piece of paper. When a will has such a power why not a decision of nominee? The account holder/depositor out of his own volition picks up nominee and that nominee must be given primacy over legal heirs. The choice of nominee must be treated on par with will. Ie., if I am making some one as a nominee which means I am writing a will in which I am declaring that my nominee will have an undisputable right over my property, ie., money lying in bank account in this case. Because even when account holder knows about the existence of class I legal heirs but he chooses to ignore them and nominates others which means this must be treated as testamentary succession. Nothing but a will.

In a judgment (Ram Chander Talwar & another Vs. Devender Kumar Talwar & others Civil Appeal NOS.1684 OF 2004 Hon'ble Judge(s): AFTAB ALAM, R.M. LODHA Date of Judgment: October 06, 2010) Justice Lodha & Aftab Alam declared that section 45ZA of Banking Regulation act 1949 puts the nominee merely in the shoes of depositor’s after his death and he cannot claim any ownership of money lying in his account.

There is no way to resolve this conflict without the intervention of legislature. Hence there must be an inclusion of a clause which gives nominee’s primacy over legal heirs. And this is the only way we are going to respect the decision of depositor who out of his own will decided to nominate someone other than his legal heir, and the account holder never intended to make nominee as a collection agent.

Note: This is without any doubt is my personal view and this piece in no way questions or negates any body’s authority