Australia must curb racism
By SUDHANSHU RANJAN
After much hullabaloo, one Australian has been convicted for racially abusing and assaulting an Indian cab driver. The conviction came within 24 hours of the incident as the accused himself pleaded guilty in the court though Australian authorities are taking credit for the expeditious conviction. Crimes against Indians in Australia are going on continually for months, rather years together unabated but Australian authorities always maintained that these were random acts of violence common in other countries as well. Now, since there is already a conviction by the court for racial attack, it is hoped that the Australian government will no longer try to extenuate the repugnance of the horrendous acts by seeking to take the racist tag off. Further, whether these crimes are racially motivated or just ordinary criminal acts of muggers, the fact remains that Indians are being targeted mercilessly, and it is difficult to understand why the majority of victims are Indians only. It has also been argued that when there was a surge of racist “curry bashings” in the western suburbs of Sydney in 2009, it was not white Australians who were the culprits, but Australians of Middle Eastern (primarily Lebanese) background.
Australia suffers from an identity crisis. It always considered itself part of West and wanted to be called a second America which could never happen. It was the last to be discovered after India and South East Asia and till the 18th century it was virtually ignored. After the industrial revolution, England started sending its convicts to Australia, something like kaala paani. After the rise of Japan, Britain thought of setting up a colony there and organising its administration efficiently. As Australian aborigines were neither armed nor advanced, there was hardly any resistance when the British population strted settling there. In Ameriaca there was some resistance and migrants killed indigenous people in large numbers. After becoming a full-fledges nation in 1901, the first law Australia made was ‘White Australia Policy’. Due to it, there was a sharp decline in the population of blacks and by 1930 Europeans constituted 98% population. This law was in force till 1973 when the government adopted the policy of multi-culturalism and enacted the Racial Discrimination Act (1975) and Racial Hatred Amendment Act (1995) which outlawed discrimination on the ground of race. However, this journey from ‘only white’ to ‘multi-culturalism’ was not smooth and the new laws could not extirpate the germs of racism from the Australian psyche and its leaders did continue to encourage it. In 1988, John Howard, gave the slogan of ‘One Australia Policy’ and called for end of multi-culturalism and stay on the migration of the Asians. Raving about racism, he became Prime Minister in 1996 and remained in his chair till 2007.
England and France are the two countries which expanded their colonies, but their approaches to the indigenous people were different. While the British associated the indigenous people in administration, they did not keep any social interaction with them whereas the French accepted integration with the local population (perhaps because the slogan of equality and fraternity reverberated the French Revolution) they did not allow them to partake in the governance. The Vietnamese were never given representation in the administration under the French rule and it led to such a big war though there was no such war in India as after 1857 Indians were gradually associated in administration. However, the British always maintained distance with Indians and had their exclusive clubs. In one of his speeches, Lord Salisbury had ridiculed Dadabhai Naoroji as a “black man” and had even asked Finsbury constituency not to elect him.
Slavery has been the most notorious example of racism by the West. Racism is the firm belief that abilities and characteristics of a person are attributable to his colour. Black Africans were enslaved on the ground that they less human than white Europeans and their descendants. History testifies to the fact that Africans were not inferior. When Portuguese sailors first explored Africa in the 15th and 16th centuries, they were astounded to find cities and empires as advanced as their own, and so saw in them a serious rival. However, over time, the Africans failed to make technological strides on a par with Europe. Once found weak, the major powers started plundering the continent and forcibly transporting its inhabitants to work as slave labourers in new colonies across the Atlantic, the Africans came to be seen as deficient species as “savages”.Racism and discrimination have been used as powerful weapons encouraging fear or hatred of others in times of conflict and war, and even during economic downturns.
Now, racism has been abolished in principle internationally. The definition of racial discrimination is contained in Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination to which Australia is a party: "The term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life". However, it is yet to be observed in spirit. The International Day for the Elimination of racial Discrimination is observed annually on 21 March. It was on this day in 1960, in Sharpville in South Africa, that the police shot dead 69 demonstrators and injured 180. Most of those killed had been shot from from behind. 7,000 people had assembled to rally against apartheid and its ‘pass laws’ which required all Africans to carry a Pass Book enabling the South African government to restrict and monitor their whereabouts.
The UN held a conference to discuss racial discrimination, xenophobia and related intolerance from 31 August to 7 September 2001. While every nation criticized others, no one tolerated its own criticism. The USA and Europe were against effective discussion on slavery reparation, Israel and the USA were against discussion whether Zionism is racist against Palestinians and they also walked out in protest, India opposed any discussion on caste-based discrimination and some Arab countries were against discussions on oppression of Kurds or Arab slave trade. Racism in whatever form has to be exterminated and comity of nations must come forward to ensure that it is done at the earliest.
Thursday, January 28, 2010
Conflict of Interest
Conflict of Interest Everywhere
By SUDHANSHU RANJAN
Investment in shares by judges of the Supreme Court has become a major impediment in the dispensation of justice as judges are recusing themselves from cases one after another on the ground of conflict of interest. This follows the brouhaha created by some lawyers over the issue of conflict of interest when Justice Kapadia did not withdraw from a case involving Vedanta after making a blithe announcement in the court that he too has shares in Sterlite, Vedanta’s sister concern, and Justice R. V. Raveendran went ahead with the hearing of a case involving Mukesh Ambani’s Reliance India and Anil’s RNRL on the ground that he had shares of both companies and that none of the parties in either case had objected to the presence of either after disclosure.
Disclosure of assets by the judges of the Supreme Court has made a significant revelation that out of 21 judges who declared their assets, 18 have invested in shares and mutual funds. This is going to make the debate over the conflict of interest in the judiciary more intense whether judges should be allowed to invest in shares. Justice S. H. Kapadia pulled out of a case concerning ITC Limited as he and his wife own large number of shares of the company. The case was listed seventh time before the bench, but the disclosure did not come earlier. Before it, he also pulled out of another case pertaining to acquisition of shares by London-based Vedanta Resources in Sesa Goa, an iron ore exporting company on the ground that he owned shares in Sterlite Industries, a sister concern of Vedanta. Justices Raveendran and Markandeya Katju recused from different cases. Even before the controversies veering around Justices Kapadia and Raveendran could die down, a fresh revelation about Karnataka high court chief justice P. D. Dinakaran, already under cloud, jolted the nation that he passed orders in favour of a family whose hospitality he had enjoyed in Canada.
The issue of conflict of interest is not new. When Supreme Court was hearing the Bank Nationalisation case, Justice Shah announced in the court at the outset that he and some other judges owned shares of private banks. But since the counsel of the Union government did not object to their presence, they did not pull out of the case. Two days later, advocate R. K. Garg filed an intervention petition supporting the ordinance by which fourteen banks were nationalized. The judges expressed amazement as to how such a petition could be entertained as a law was valid until set aside by the court. Then Garg questioned the legitimacy of their being on the bench when they held shares of some banks. The Court took him to task that they had made the disclosure. However, the Court struck down the ordinance. Indira Gandhi got so convinced about the prejudice of Justice Shah that later, during the Janata regime, she refused to appear before the Commission headed by him alleging bias. However, Justice M. H. Kania set a good precedent in 1988 when he recused himself from the Bhopal gas leak case after disclosing that he had shares in Union Carbide. He did not consult lawyers either. In fact, no objection certificate from lawyers is not a convincing plea for a judge to hear a case with conflict of interest as lawyers are tongue-tied in alleging bias against a judge.
The principle of automatic recusal in a case of the conflict of interest is well-settled. The first case of judicial review in the world (Dr. Bonham’s case 1607) has its genesis in this very conflict. In Britain, the regulation prescribed that no doctor would practise unless registered with the College of Physicians which was also empowered to prosecute and punish the violators of the rule. One Dr. Bonham was prosecuted and imposed a fine of 10 pounds, out of which half went to the State and the remaining half remained with the College. Bonham challenged it on the ground of bias that the College had a pecuniary interest in it and so, it could not be the judge. Allowing his petition, the court invalidated the regulation. Again, in Dines v. Proprietors of Grand Jn. Canal (1852), the House of Lords spelt out that the dictum that no one could be a judge in his own cause was “not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest”.
The Supreme Court of India upheld this principle in A.K. Kraipak and Ashok Kumar Yadav. In fact, the concept of curative petition, introduced by the Supreme Court in Rupa Ashok Hurra (2002), when all other avenues of appeal and remedy are exhausted, was taken from a judgment of the House of Lords (Pinochet 2) which upheld the same principle. A person was prosecuted at the behest of the Red Cross. After the arrest warrant was issued, it came to light that one of the law lords was a member of the Red Cross who had not disclosed it. The case was heard afresh without that law lord.
In fact, the virus of the ‘conflict of interest’ seems to have crept inside the belly of the whole system of government and is gnawing at its flesh. None of the three wings- the executive, the legislature, and the judiciary- seems to be immune to it. Recently, Parliamentary Committee on Public Undertakings asked its members to disclose their business interests. The move came against the backdrop of objections raised by some members under Rule 255 of the Rules and Procedures of Conduct of Business in the Lok Sabha about the presence of some members in the Committee who have huge stakes in infrastructure business. In the executive, the conflict is rampant. However, just one example will suffice. Genetic Engineering Approval Committee (GEAC) of the Union Ministry of Environment is the competent body to grant approval for the GM food. Indian Council of Agricultural Research (ICAR) applies for approval to the GEAC as its institutes are preparing GM food, but the DG, ICAR, is its ex-officio member.
By SUDHANSHU RANJAN
Investment in shares by judges of the Supreme Court has become a major impediment in the dispensation of justice as judges are recusing themselves from cases one after another on the ground of conflict of interest. This follows the brouhaha created by some lawyers over the issue of conflict of interest when Justice Kapadia did not withdraw from a case involving Vedanta after making a blithe announcement in the court that he too has shares in Sterlite, Vedanta’s sister concern, and Justice R. V. Raveendran went ahead with the hearing of a case involving Mukesh Ambani’s Reliance India and Anil’s RNRL on the ground that he had shares of both companies and that none of the parties in either case had objected to the presence of either after disclosure.
Disclosure of assets by the judges of the Supreme Court has made a significant revelation that out of 21 judges who declared their assets, 18 have invested in shares and mutual funds. This is going to make the debate over the conflict of interest in the judiciary more intense whether judges should be allowed to invest in shares. Justice S. H. Kapadia pulled out of a case concerning ITC Limited as he and his wife own large number of shares of the company. The case was listed seventh time before the bench, but the disclosure did not come earlier. Before it, he also pulled out of another case pertaining to acquisition of shares by London-based Vedanta Resources in Sesa Goa, an iron ore exporting company on the ground that he owned shares in Sterlite Industries, a sister concern of Vedanta. Justices Raveendran and Markandeya Katju recused from different cases. Even before the controversies veering around Justices Kapadia and Raveendran could die down, a fresh revelation about Karnataka high court chief justice P. D. Dinakaran, already under cloud, jolted the nation that he passed orders in favour of a family whose hospitality he had enjoyed in Canada.
The issue of conflict of interest is not new. When Supreme Court was hearing the Bank Nationalisation case, Justice Shah announced in the court at the outset that he and some other judges owned shares of private banks. But since the counsel of the Union government did not object to their presence, they did not pull out of the case. Two days later, advocate R. K. Garg filed an intervention petition supporting the ordinance by which fourteen banks were nationalized. The judges expressed amazement as to how such a petition could be entertained as a law was valid until set aside by the court. Then Garg questioned the legitimacy of their being on the bench when they held shares of some banks. The Court took him to task that they had made the disclosure. However, the Court struck down the ordinance. Indira Gandhi got so convinced about the prejudice of Justice Shah that later, during the Janata regime, she refused to appear before the Commission headed by him alleging bias. However, Justice M. H. Kania set a good precedent in 1988 when he recused himself from the Bhopal gas leak case after disclosing that he had shares in Union Carbide. He did not consult lawyers either. In fact, no objection certificate from lawyers is not a convincing plea for a judge to hear a case with conflict of interest as lawyers are tongue-tied in alleging bias against a judge.
The principle of automatic recusal in a case of the conflict of interest is well-settled. The first case of judicial review in the world (Dr. Bonham’s case 1607) has its genesis in this very conflict. In Britain, the regulation prescribed that no doctor would practise unless registered with the College of Physicians which was also empowered to prosecute and punish the violators of the rule. One Dr. Bonham was prosecuted and imposed a fine of 10 pounds, out of which half went to the State and the remaining half remained with the College. Bonham challenged it on the ground of bias that the College had a pecuniary interest in it and so, it could not be the judge. Allowing his petition, the court invalidated the regulation. Again, in Dines v. Proprietors of Grand Jn. Canal (1852), the House of Lords spelt out that the dictum that no one could be a judge in his own cause was “not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest”.
The Supreme Court of India upheld this principle in A.K. Kraipak and Ashok Kumar Yadav. In fact, the concept of curative petition, introduced by the Supreme Court in Rupa Ashok Hurra (2002), when all other avenues of appeal and remedy are exhausted, was taken from a judgment of the House of Lords (Pinochet 2) which upheld the same principle. A person was prosecuted at the behest of the Red Cross. After the arrest warrant was issued, it came to light that one of the law lords was a member of the Red Cross who had not disclosed it. The case was heard afresh without that law lord.
In fact, the virus of the ‘conflict of interest’ seems to have crept inside the belly of the whole system of government and is gnawing at its flesh. None of the three wings- the executive, the legislature, and the judiciary- seems to be immune to it. Recently, Parliamentary Committee on Public Undertakings asked its members to disclose their business interests. The move came against the backdrop of objections raised by some members under Rule 255 of the Rules and Procedures of Conduct of Business in the Lok Sabha about the presence of some members in the Committee who have huge stakes in infrastructure business. In the executive, the conflict is rampant. However, just one example will suffice. Genetic Engineering Approval Committee (GEAC) of the Union Ministry of Environment is the competent body to grant approval for the GM food. Indian Council of Agricultural Research (ICAR) applies for approval to the GEAC as its institutes are preparing GM food, but the DG, ICAR, is its ex-officio member.
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