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Archive for March, 2013

CAVALRY MEN WILL COME!


Once in the middle of a forest lived a community consisting of men and women who knew not much beyond their chores and hunger. Their objective was to keep the wolf away from the door and silence their women into abject servility and motherhood annually!

The community had raised a lot of domesticated wild asses to ferry their firewood, take their clothes to the river and travel on their backs for small time hunting. So the village chief, who was bored of all these humdrum activities decided one day to have entertainment and suggested to the other villagers that they should promote some sporting activity to amuse and instil a sense of competitiveness in them.

After much haggling they decided to have a race which would combine the skill of men and the strength of the animals. It was decided that they would conduct yearly a race around the village with men on the backs of their animals! Some chose their bulls, some the domesticated donkeys and some a few domesticated wild horses. But before the start of the race the village headman and his cohorts consisting of the village barber, the village launderer and a wood-cutter who formed the grand jury wanted to give away prizes for the animals based on their usefulness!

The bulls, oxen, asses and horses were all lined up to determine prizes for their looks and grooming. The grand jury inspected the bulls and the horses and said these are not very obedient and they lack ENDURANCE to stay in the same spot for hours together and wait on their masters, even though they are muscular and powerful. So the asses and the oxen were shortlisted and the grand jury consisting of the village Headman, barber, wood-cutter and fuller decided that the ASSES were the best for the following reasons:

1. The asses have long ears and are easy to handle

2. The asses have great endurance of waiting in the same spot without moving an inch.

3The asses carry burden unlike the oxen which need a cart to be latched on to its upper neck.

4 The asses do not require maintenance and they could survive on scraps of paper and other rotting left-overs, which helped the ASSES to be determined as animals not competing with the villagers for the same food!

The results were announced and the ASSES let out brays which deafened the whole village for a while. The HORSES which were on the sidelines had a smirk on their faces and said: IF BARBERS, WOODCUTTERS AND FULLERS FORM THE  GRAND JURY, THEY DO NOT DETERMINE BASED ON THE POTENTIAL OF THE ANIMALS, BUT BASED ON THE PRESENT USEFULNESS OF THE TAMED BEASTS.

SOMEDAY, THE CAVALRY MEN WILL COME AND CHOOSE AS THE BEST OF THE BEAST, AS WE CAN PROVIDE QUICK MOBILITY AND NIMBLE TO TURN IN ANY DIRECTION, TAKE COMMANDS BY THE PRESSURE APPLIED ON OUR BODIES BY THE LEGS OF THE SKILLED CAVALRYMEN AND MORE THAN ANYTHING WE CAN JUMP ALL REASONABLE OBSTACLES!

As was wished by the horses, one day a band of CAVALRY MEN, like Gabbar and his gang in SHOLAY, landed up in this remote village. Those who had tamed wild horses took to their backs and fled, but the ox owners, ass owners and bull owners were no match to those horse mounted cavalry men. The village was looted and pillaged, valuables were taken away and their women molested and raped. Even children were not spared. The cavalrymen left without a trace.

The next day the Headman assembled the village general body meeting and after consultation passed a following resolution:

EVEN THOUGH THE COST OF MAINTENANCE OF THE HORSES ARE ON THE HIGHER SIDE, THEY GIVE GREAT PROTECTION. SEE OUR BRETHREN WHO VANISHED WITH THE GOLD AND THEIR WOMEN AND CHILDREN ON THE HORSE BACKS! THE HORSES PROVIDE MOBILITY WITH SPEED AND ARE AMENABLE TO MAN’S SURVIVAL UNLIKE THE OXEN, BULLS AND ASSES WHICH ONLY SHARE OUR BURDEN. THEREFORE THIS ASSEMBLY RESOLVES THAT HENCEFORTH THE HORSES SHALL HAVE PRIMACY OVER THE BEASTS OF BURDEN AND BE CALLED THE FRIEND OF MEN!

Just like these village men, we in our lives tend to depend and value the beasts of burden more than the HORSES which take us faster towards our quarry, in the event of the threat being unmanageable, they take us away faster and make us more combative and able. But all these will be triggered only when cavalrymen surround us and pillage our small cocoons!

In every sphere of life, if we are unprepared THE CAVALRYMEN WILL COME!

 

Italian Marines & Vienna Convention- II


MOVID had already written a piece on this topic and to bring clarity to the cacophony created by the media and the partisan views expressed by all and sundry, MOVID is following up the earlier blog bloghttps://movid.wordpress.com/2013/03/14/vienna-convention-italian-marines/  with this one.

First and foremost, none talks of the ACT passed by the Indian Parliament, which is Act No.43 of 1972 and called THE DIPLOMATIC RELATIONS (VIENNA CONVENTION)ACT,1972.

Further the Indian Constitution which is the bed-rock of all laws made after India became a Republic and a touchstone of laws made before that at Article 51 says as follows:

Article 51(c) in The Constitution Of India 1949

(c) foster respect for international law and treaty obligations in the dealings of organized peoples with one another; and encourage settlement of international disputes by arbitration

Though Article 51(c) says we got to ‘respect’, all International Law and Treaty Obligations, they  are NOT binding on the Superior Courts of India, as interpreted in the case of Jolly George Verghese & Anr vs The Bank Of Cochin on 4 February, 1980 thus:

India is now a signatory to this Covenant and Article 51(c) of the Constitution obligates the State to “foster respect for international law and treaty obligations in the dealings of organized peoples with one another”. Even so, until the Municipal Law is changed to accommodate the Covenant what binds the courts is the former not the latter.

(I wonder if Justice Krishna Iyer was ignorant of the ACT passed by then by the parliament – or was it not notified by 1980?- God knows, we Indians have no recourse to ascertain whether a bill having been passed by the Houses has received assent from the President and thereafter whether the Government had notified the ACT to come into force!)

Therefore we as Indians HAVE TO go by the Act of parliament mentioned above. Which at Section 5 states as follows:-

5. Waiver.-

For the purpose of article 32 of the Convention set out in the Schedule, a

waiver by the head of the mission of any State or any person for the time being

performing his functions shall be deemed to be a waiver by that State.

and Article 32 includes a sub-paragraph which is

2.Waiver must always be express

Further, Article 31 to the Schedule to the said Indian Act says:

1.A diplomatic agent shall enjoy immunity from the criminal jurisdiction of

the receiving State. He shall also enjoy immunity from its civil and administrative

jurisdiction, except in the case of:

a) A real action relating to private immovable property situated in the

territory of the receiving State, unless he holds it on behalf of the sending State for the

purposes of the mission;

(b) An action relating to succession in which the diplomatic agent is

involved as executor, administrator, heir or legatee as a private person and not on

behalf of the sending State;

(c) An action relating to any professional or commercial activity exercised

by the diplomatic agent in the receiving State outside his official functions.

2.A diplomatic agent is not obliged to give evidence as a witness.

My question is very fundamental:

WHEN THE ACT OF PARLIAMENT SUFFUSES A DIPLOMAT WITH ALL THESE IMMUNITIES AND PRIVILEGES, HOW COME THE LEARNED PROSECUTORS DID NOT DEMUR WHEN A DIPLOMAT STOOD GUARANTEE TO THE RETURN OF THE MARINES?

The more intriguing part is the latest argument which is forwarded by all and sundry that the Italian Diplomat by having assured the court of the return of the Italian Marines, has WAIVED HIS DIPLOMATIC IMMUNITIES AND PRIVILEGES!

What a fantastic argument! The Act of the Parliament of India has accepted Article 32 of the Vienna Convention on Diplomatic Immunities and Privileges and has incorporated the same in the Schedule to the Indian ACT, so where is the EXPRESS WAIVER?

It is time our “officers of Court” at least read up the relevant ACTS and then open their mouths in the Courts otherwise, we as Indians would have not only unenforced laws but also massively misinterpreted laws!

 

Vienna convention & Italian Marines!


I had a friend who was in the marketing of Credit Cards issued by a bank. During the course of our ghup-shup, he said that the only two categories of professionals who are not sought after by us for selling credit cards are Police personnel and Advocates. So, when quizzed further, he said, “BOSS, who will chase a policeman or a lawyer for payment? The former will book you in a false case and the second one will take you to court on flimsy grounds and keep you occupied there- which, anyway,  for the lawyer is his place of work!”

This is called WISDOM, as the purpose of a credit card company is to lend money, levy exorbitant interest and collect payments from the credit-card holder. That is their business. It is not their business to answer the allegations and accusations of police officers on flimsy cases or to make a roll-call to the courts.

When such is the case, how did the lawyers representing the prosecution of the Marines, who are accused of having killed two Indians, let the marines on furlough of 4weeks based on the assurances given by an ENVOY of ITALY, who is soaked in all kinds of immunities under the VIENNA CONVENTION?

I know for a fact that the VIENNA CONVENTION did exist on the day that the PAROLE was granted to the Marines. And even a greenhorn like me knows that an accredited ENVOY in a diplomatic mission is IMMUNE to even CRIMINAL LIABILITY. So where was the necessity to enlarge the marines on parole, so that they may be able to vote for the national elections in Italy! Did these Marines vote in the previous elections? And in a long shot- were the members elected in their constituencies win or lose by 2 votes that these marines’ votes were so crucial? Alternatively, they could have been made to declare their preferences by postal ballots and in the event of numbers of the winning and losing candidates were within the margin where these votes would make a difference, then these postal ballots could be opened for a final decision.

When it comes to enlarging Indian nationals on bail is concerned, the lawyers object vehemently and deny a right guaranteed to them, but when it concerns foreign individuals why are we so ‘magnanimous’? Are we still slaves and the Caucasoid skin superior? NAY, NAY , NAY.

Neither are our lawyers incompetent nor the courts ignorant. Our system being ADVERSARIAL, if the opposite side doesn’t plead a point, it is neither the duty of the lower courts to substitute its wisdom. But, as regards the SUPERIOR COURTS, it is fact known to all that in the “interest of justice” they could order on points not pleaded. These courts have inherent powers to dispense justice.

Yet in this matter, that the ENVOY cannot be held liable by the courts, had been ignored. If we go by the fact that the marines killed Indians within its territorial waters, Section 2 of the IPC would apply and if the killing took place in the international waters, Section 3 of the IPC would apply even though  sub-section 2 of section 4 of the IPC may give the accused a semblance of relief. In any case, we have started the proceedings and I see no reasons why the prosecution has let the Marines without taking all necessary precaution!

Mr.Harish Salve is made to seem like a principled LAWYER (oxymoron?), who is outraged by the conduct of the Italians and  he is supposed to have told the Italian Embassy that he would not be able to represent the accused Italian Marines. That is a classic case of LOCKING THE STABLE DOORS AFTER THE HORSES HAVE BOLTED!

More than these palliatives, an OFFICER OF COURT should firstly ensure that even though the accused be his client, in the interest of bringing the accused to Justice, Shri Harish Salve should have sensitized the court to take all possible precaution to ensure that they submit to our Domestic laws. Shri Harish Salve, who has been the amicus-curae to the Supreme Court in many matters appears to have unintentionally allowed his stature to be leveraged by the Italians to jump bail!

Since it appears that we cannot deny a foreigner, parole or bail merely on the grounds that he/she is a foreignor, it is time we made some rules subject to which foreigners could be granted bail/parole/furlough, failing which similar instances are likely to recur with the Government answering the parliament on such a simple issue like “jumping bail”!

In any case, let us wait till 22nd March 2013 to see if the Marines come back- it is still possible that the Italians are testing the waters to jump  bail and if the reaction is strong domestically, they might still be forced to return to India! Whether the ITALIAN JOB is perfect or not , we gotta watch. But round one goes to the Italians who have made the system believe that those 2 votes was the pivot on which the whole democracy of Italy revolved on. Berlusconi ……..where are u?

OPERATION VEERAPPAN!


In times past, not very far away in time, in the Kollegal forests of Karnataka- Tamil Nadu border lived a dreaded poacher by name VEERAPPAN. To be dreaded, a person has to have fierce followers who submit to the demands of the leader, the leader should command respect and morally high to distinguish his motives as noble and untainted by greed or concupiscence! VEERAPPAN had all these qualities and men who carried out his orders. So VEERAPPAN is a powerful symbol for all the above mentioned qualities but the profession he practised for a LIVING was POACHING!

In olden times, if one entered into the game preserve of another and shot the game animals that would be called poaching, but with the evolution of the society, even killing animals, which are protected by law would tantamount to POACHING.

This is where the similarity ends and i use this VEERAPPAN name for the many internecine battles which every individual fights in his day-to-day life!

So, in my story four friends went to the forest for POACHING, and each was armed with a magnum which had the capability of bringing down a tusker. No sooner had they entered the thick of the forest than they encountered an elephant. However they were not sure if the elephant was a bull or a cow and consequently, the VEERAPPAN of the gang, who knew the elephant language crouched behind the elephant and noticed that the elephant was a bull-elephant. After having ensured that his other 3 friends had receded to a secure spot and also away from the place till summoned, VEERAPPAN put the magnum to the head of the tusker and told the tusker in the elephant language- YOUR TUSK OR YOUR LIFE!

The tusker had earlier lost his cow to a magnum shot and immediately, removed both his tusks and handed over to VEERAPPAN. Veerappan immediately took those tusks and hid them in the bushes for a leisure recovery when his friends would not be around. 

Veerappan returned to his mates and said see I will call the elephant to turn around and u can satisfy yourself that he doesnt have tusk, as i have already see that the elephant doesn’t have tusks. So Veerappan proposed that they NOT KILL AN ELEPHANT for nothing. The elephant was observed with no tusk and the elephant was allowed to go.

Later the next evening, VEERAPPAN went back to where he had hidden the tusks and happily jaunted back to the black-marketeers to sell the SURRENDERED TUSKS! 

So much for team effort in the corporate world! Long live the Veerappans who do everything to undermine the camaraderie and the power that comes because of team-work!

SPERM THIEFS!


The issue of SPERM has gained a lot of importance these days!

A woman saved her boy friend’s sperm (without his knowledge) and after he split up with her, the woman , with the help of an in-vitro fertilization clinic, used the sperm, so stolen, and conceived. The clinic, in the US, sent the bill to the woman’s ex-boyfriend. This sending of the bill is without prejudice to the claims of child support that the ex-girlfriend is likely to raise in the courts!

In another case, a lesbian couple used a donor’s sperm to get themselves impregnated and now the Donor is facing paternity consequences of child support!

These are just 2 instances and the web is replete with such bizarre tales, that one cringes to even read the articles written on the topic!

In TORTS there is something called STRICT LIABILITY and ABSOLUTE LIABILITY and  in both the cases “mens rea’ does not apply- which means the action which happened need not be the one “intended’ by the defendant. But how it differs is that in STRICT LIABILITY it has to be shown that at the time the culpable act took place, the defendant was in control and therefore even though the act was unintended, the defendant caused it. Whereas in ABSOLUTE LIABILITY it is merely necessary that a particular thing “caused’  was because of a particular ‘defect’ or ‘action’ which facilitated the damage. Now that may not be clear- as it was not when I tried reading, therefore an example might bring clarity. In the OLEUM GAS LEAK  case decided by the Supreme Court of India, the following observation was made, which adequately explains ABSOLUTE LIABILITY!

We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken.
The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part.
LIKEWISE, if the sperm’s “PRODUCER” is found to  be the father of the child, it is no answer that the man had never cohabited with the woman who claims to be the mother of the child! So, ABSOLUTE LIABILITY is on!
Things have come to such a pass that men are forced to keep their “stuff” to themselves and take extra care to dispose of the “sperm”, so that they do not get slapped with paternity suits and child maintenance! According to the EVIDENCE ACT of INDIA, in paternity suits the accused could show that he had not cohabited with the mother or that he could not have had access to the woman during the period prior to her pregnancy . But with the new law raising such issues, man has to become very careful otherwise wily women could bleed men with such devices!
NO MORE WILD OATS, AS THE OATS’ OWNER IS TRACKABLE AND SLAPPED WITH RESPONSIBILITY!

Rational Hope!


Zorba joined the marathon of Life and on the way was a single footpath bridge and everyone who had to complete the race, had to cross it. The trouble was that there was a queue and a long one at that.

As soon as anyone joined the queue at the start of the bridge, he either slowed down or just stopped and joined the queue. But Zorba, after he joined the queue kept jogging in the queue.

When asked, he said: WE NEVER KNOW WHEN THE WAY WOULD CLEAR, IF IT DOESN’T CLEAR UP WITHIN MY LIFE, I’D WANT TO HAVE EXISTED WITH HOPE AND FITNESS.

IF IT CLEARS UP WITHIN MY LIFE TIME, I HAVE TO BE READY TO TAKE OFF TO MAKE UP FOR THE DELAY AND ALSO KEEP MY MUSCLES FIT ENOUGH FOR THE ONCOMING CHALLENGES!

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