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Orphaned hopes EC’s new guidelines Deaths on roads |
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When public servants are corrupt
A man of words
A rejoinder Defence notes
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Orphaned hopes EACH and every human life is precious. But when untimely death comes to a child, it hurts all the more. And yet, children have been the worst sufferers in the tsunami calamity of December 26. Being too frail to fend for themselves, a large number of them perished, some right in front of their parents. While that has been heart-rending enough, worse is the plight of those orphaned by the killer waves. There are thousands of them who now have nobody to call their own. And the nightmare has just begun for them. The adults can at least take care of themselves. These children of a lesser god cannot do even that. That is why the government and the aid agencies need to treat them with extra care. The problem in the tsunami-hit areas is that neighbours and others who would have otherwise gone out of their way to console these hapless victims have too much of grief of their own to be very useful. The first priority is to help them get over the trauma. While some of them are so young that they cannot even gauge the extent of the crisis that has enveloped them, others have been scarred for life by this close encounter with death. After all, many of them have seen their parents or other close relatives swept away by the sea while they were right in front of their eyes. Their shouts and cries for help must be still haunting them constantly. It would require selfless affection of the finest kind to help them get over this trauma. Then comes the even more daunting task of their rehabilitation. While the flood of aid that is now pouring in will dry up sooner or later, these boys and girls have the whole life before them. The best aid that anyone can give them is to educate them suitably so that some day they can find the feet to stand on their own. Fate has dealt them a merciless blow. It is now for society to undo the damage to the extent possible. If they can be given as good education as their parents would have wished to provide them had they been alive, they can at least cover up the void that Nature has left in their personal lives which can never be filled. |
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EC’s new guidelines MONDAY’s meeting of the Election Commission with over 800 observers assumes special significance in the context of its concerted efforts to make the ensuing elections in Haryana, Bihar and Jharkhand free and fair. It has taken some major decisions to establish a level playing field among all the candidates, including Independents, contesting the elections. One such decision is the directive to curb the competition among the leaders of various political parties to demonstrate their clout by bringing a large crowd of their supporters with them at the time of filing of nominations. The people will hopefully be spared of traffic jams, caused by the long-winding processions of party workers and fleets of vehicles. According to the new guidelines, only candidates, their proposers and four others would be allowed to enter the Returning Officer’s office at the time of filing of nominations and not more than three vehicles would be allowed. The directive to candidates to submit affidavits with full details of their assets and liabilities and criminal antecedents and their proper display at all the polling stations is another significant step. This would not only enable wider dissemination of information about the candidates’ background and assets, but also help voters make an informed choice. Similarly, though no videography or photography will be allowed inside the polling stations to maintain the secrecy of vote, extensive videography of all critical events would be done at all hyper-sensitive polling stations. It may be recalled that the Election Commission had countermanded the Chhapra Lok Sabha election in Bihar in April, 2004, mainly on the basis of the video footage of booth-capturing and other lapses at some polling stations. Chief Election Commissioner T.S. Krishnamurthy’s advice to observers to maintain “absolute neutrality” is timely. Though Returning Officers, who are Collectors and District Magistrates, are responsible for the peaceful conduct of elections, observers act as the eyes and ears of the commission. They are like referees and take on-the-spot decisions in case of any poll dispute. Thus, they need to be fair and just in their actions. In this context, the commission’s decision to appoint an observer in every Assembly constituency (unlike at every district headquarters hitherto) is bound to infuse a measure of fairness and impartiality in the poll process. |
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Deaths on roads ON the first day of Road Safety Week, 14 girls lost their lives on a cold foggy morning at Khamanon, Fatehgarh Sahib, in Punjab. These days fog is inevitable. It seriously effects visibility and thus poses a challenge to even competent drivers. The situation is compounded because of lack of luminescent markings on highways, especially subsidiary roads, and a tendency of drivers to carry on, even in unsafe conditions, with unroadworthy vehicles, thereby putting at risk their own lives and those of others. As a rule, commercial drivers should be better trained and more rigorously examined than the rest. Under no circumstances are they expected to put at risk passengers' lives. However, this is an ideal picture that bears little resemblance to the situation on the ground. Driving licences are bought, safety inspections of public vehicles are "fixed" and roads signs are inadequate. There are studies that show that more people die on the roads than otherwise. In Punjab, more than 11,000 persons have been killed and 50,000 injured in road accidents since 2000. On an average, in Punjab, seven persons are killed and nine others injured in road accidents daily. The figures are similarly horrifying in other states. In Himachal Pradesh busses roll off hill roads, and the situation is only slightly better in Haryana. Though policing the roads has a major role in ensuring safety, care has to be taken that the roads are fit and adequately marked to start with, which is the job of the Public Works Department. Drivers' tests are conducted by the Transport Authority which is also required to inspect commercial vehicles for roadworthiness. There is obviously laxity in such departments, which results in half-trained drivers riding unroadworthy vehicles. Also the aggressive attitude to driving is responsible for many accidents. The death and destruction on roads will only end if the basic issues of road safety are tackled strictly. |
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Every positive value has its price in negative terms...The genius of Einstein leads to Hiroshima. — Pablo Picasso
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When public servants are corrupt CORRUPTION has assumed alarming proportions. The epidemic has spread to the judiciary to some extent. The Prevention of Corruption Act, 1947, miserably failed to prevent or check corruption. The new Act made in 1988, as interpreted by the Supreme Court in P.V. Narasimha Rao’s case, covers not only employees of the government, public sector undertakings and judges, but also members of Parliament and state legislatures. The rate of conviction for offences under the Act is very low. The parallel economy of unaccounted money facilitates corruption and makes it difficult to bring the offenders to book. The sway of money power and muscle power in elections is recognised by all. Those who get elected investing huge amounts and grab power cannot be expected to enforce the Act seriously. Under the Act, sanction from the competent authority is required for the prosecution of a public servant. The competent authority is one who has the power to remove a public servant. In the case of judges the Supreme Court has spelt out an additional safeguard in K. Veeraswamy v. UOI (1991). While declaring that the President of India is the authority competent to give sanction for the prosecution of a judge of a superior court (High Court or Supreme Court), the court held that no criminal case shall be registered against a judge of a High Court or of the Supreme Court unless the Chief Justice of India is consulted in the matter. If the CJI himself is the person against whom the allegations of criminal misconduct are made, the government shall consult any other Judge or Judges of the Supreme Court. The court added that while granting sanction for prosecution, the President should be guided by the advice of the CJI. This additional safeguard was considered necessary to maintain independence of the judiciary. In the case of members of a legislature and members of Parliament, power of removal is not vested in any authority. However, the Supreme Court in P.V. Narasimha Rao’s case designated the presiding officer of the House concerned — Chairman of the Rajya Sabha / Speaker of the Lok Sabha or Chairman of a legislative council / speaker of the legislative assembly of a state, as the case may be — as the competent authority to sanction prosecution till a provision is made by Parliament by law. Removal of judges of superior courts is possible only through impeachment by Parliament, following an inquiry under the judges (Inquiry) Act, 1968. The ground of removal of a judge of a superior court is either “proved misbehaviour” or “incapacity”. Even after a committee of judges returns a finding of guilt under the Act after holding an inquiry, Parliament is not bound to accept the finding and impeach the judge, as it happened in the case of Justice V. Ramaswamy. Members of Parliament voted on political considerations, not on merits. As impeachment is impracticable and the power of contempt of court inhibits persons from reporting cases of corruption, it is extremely difficult to tackle corruption among superior judiciary. The in-house procedure presently followed has neither statutory backing nor transparency. It is necessary to find a way to get rid of corrupt judges. A member of the subordinate judiciary (Judicial Officers of the rank of district judges and below) is entitled to the protection of Article 311(2) of the Constitution. Consequently, he cannot be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. It is settled that compulsory retirement of a civil servant in public interest after he has put in the qualifying years of service (about 25 years) or after he has attained the age of 50 or 55 years is permissible, inter alia, on grounds of doubtful integrity or on outliving his utility. It is not considered “dismissal” or on “removal” within the meaning of Article 311 as the civil servant is entitled to receive pension having regard to the service rendered. However, decided cases permit compulsory retirement only after an employee has put in over two decades of service and not earlier. In Gurdev Singh Sidhu v. State of Punjab (1964), the Supreme Court struck down a regulation providing for compulsory retirement of a government servant after he has completed 10 years of service in public interest on account of inefficiency, dishonesty, corruption or infamous conduct, relying on certain observations in Motiram Deka v. UOI (1964). The reason given is that to retire a permanent servant at a very early stage of his career would amount to “removal” within the meaning of Article 311(2). Compulsory retirement of a person of doubtful integrity after completion of the qualifying service of 20 or 25 years would be in public interest and valid but not earlier — not even after 10 years of service. This appears to be anomalous. Public interest warrants getting rid of public servants of doubtful integrity straightaway irrespective of the length of service subject to the payment of proportionate pension. There has to be a way out of this impasse. In O.P. Bhandari v. Indian Tourism Development Corporation Ltd. (1986), a smaller Bench floated a refreshing thought with respect to the managerial cadre in public sector undertakings, noting that the managerial cadre is excluded from the purview of labour laws. (They are not covered by Article 311). The court suggested making a regulation permitting the termination of service of an employee belonging to the managerial cadre if the undertaking has reason to believe, inter alia, that “there is a bonafide suspicion about his integrity” and such a rule would not offend Articles 14 and 16 (1) of the Constitution. The importance of this case lies in the fact that the court has recognised the need to check out employees of doubtful integrity. As observed by P.B. Gajendragadkar, in Gurdev Singh Sidhu’s case itself, “a claim for security to tenure does not mean security of tenure for dishonest, corrupt, or inefficient public servants”. There are two ways of tackling the problem. One is for a larger Bench of the Supreme Court itself to appreciate the need to get rid of the black sheep and hold that compulsory retirement of public servants of doubtful integrity at any stage of their service does not amount to removal and does not attract Article 311(2). This will involve overruling the earlier decisions which is not easy. The other course open is to amend the Constitution to provide for compulsory retirement of a public servant at any stage of his service on grounds of doubtful integrity without any inquiry. It is necessary to lodge the power in the safest hands possible and ensure that the power is not misused. That will take care of all civil servants covered by Article 311. A similar provision may be inserted in the labour laws in the case of “workmen”. A regulation of the kind suggested in O.P. Bhandari’s case can be made for the managerial cadres (non-workmen) of P.S.Us. So far as judges are concerned, a provision needs to be made in Articles 124 and 217 of the Constitution, making an exception to the method of removal by impeachment. In order to safeguard the independence of the judiciary, the power of compulsory retirement of a judge of a High Court or the Supreme Court may be vested either in the Full Court of the Supreme Court or the collegium of the Supreme Court consisting of the Chief Justice and four senior-most judges. In the case of ministers there is no difficulty as they hold office during the pleasure of the President or the Governor as the case may be. For eliminating MPs, MLCs and MLAs of doubtful integrity power may be given to the respective Houses. Corruption needs to be tackled in all possible ways on a
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A man of words INITIALLY the column arrived once a week. Since the writer did not want to fold his manuscript, he always sent it in a large envelope. He also took care to send it a few days before the date of publication. Nobody could complain about the manuscript because it was always typewritten on bond paper. His language was excellent except that it reminded the reader that while learning grammar the writer had skipped the lessons on simple sentence and complex sentence before reaching the one on compound sentence which Yet, few of my colleagues gladly picked it up for processing. That is until a lady colleague found it intellectually stimulating to edit the copy, which often navigated the complex web of politics and power and provided a rare insight into events that impacted national security. But she did it only on the unwritten condition that she would not do any other work that day. The problem with his copy was that it had upwards of 2400 words when we could accommodate a maximum of only1200. Pruning it was a problem because it was tightly written. Even his repetitions were for effect as in Mark Antony’s famous oration. It took hours to cut it down to the required size. Once, out of sheer desperation, I asked him why he could not observe the word limit while sending his column. He answered in a matter of fact manner: “My job is to write and your job is to cut”. And he added for good measure that he never complained about the editing we did. To be fair to him, except once when he thought an “edited” sentence did not convey the intended point, he never mentioned anything about editing. When after his column turned fortnightly, we began suggesting topics, he not only did not mind it but made it a point to suggest two or more subjects for us to choose from. He never failed to deliver even when he flitted in and out of the country attending seminars or lecturing at think-tanks. He expected punctuality so much that even a minor delay in payment would upset him. I wondered why he bothered about such mundane things when he had a fat pension to lean on. “Journalism is now my main source of income. That is why I pester you”, he once told me. There were occasions when he would come to the office, wait in his run-down car of French origin till his driver fetched the payment from our office. Over the years, he cultivated intimacy with a staff member who could at the drop of a hat ring him up and get his views on events, national and international. He never disappointed him. Occasionally came, along with his columns, invites to functions where his books were released. For one such function, he called me on the phone to extend a personal invitation. For a change, he spoke in Malayalam as only Malayalis could. It would have been impolite to ask him about his ancestry. A little research brought up the fact that he was the son of Munshi Paramu Pillai, an eminent Malayalam writer of his period, and Dr Ratnanadevi, a Sanskrit scholar. And he got his surname, Dixit, from his stepfather Sitaram Dixit, a freedom fighter and journalist. He was National Security Adviser Jyotindra Nath Dixit, who died of a heart attack on
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A rejoinder Bill on contempt is not the last word by Subash C. Jain
Shastri Ramachandran in his article “Satyameva Jayate” (Dec 17, 2004) published in The Tribune has rightly pointed out certain fallacies in the present jurisprudence on the contempt law. Consequently, truth is the casualty. Even though the then Chief Justice of India admitted that some percentage of judges was corrupt, one is mortally afraid of pointing out a finger at any particular judge. There is also a tendency to confer powers of contempt on tribunals other than courts of record which needs to be curbed. The case in point is the Monopolies and Restrictive Trade Practices Act, 1969, which confers powers of contempt on the Monopolies Commission. The National Commission to Review the Working of the Constitution (NCRWC) said that this power should be vested only in the courts of record. This is a recommendation which is worthly of acceptance, particularly in view of likely abuse of this power. The NCRWC also recommended that a proviso be inserted in clause (2) of Article 19 of the Constitution as under “Provided that in matters of contempt, it shall be open to the court to permit a defence of justification by truth on satisfaction as to the bona fides of the plea it being in public interest.” The courts of law have held that even truth cannot be pleaded as a defence to the charge of contempt of court. Section 13 of the Contempt of Courts Act, 1971, provides certain circumstances under which contempt is not punishable. An earlier Bill introduced in 2003, which lapsed as a result of dissolution of the Lok Sabha, has now been revived as the Contempt of Courts (Amendment) Bill, 2004, with certain drafting changes. The Bill provides that the courts of law will be the final arbiters in deciding whether “justification by truth” should be permitted as valid defence in the facts and circumstances of a case on being satisfied that it is in public interest and the plea is bona fide. This is an important qualification without which the plea of truth may not be permitted by the courts. In the earlier statement of objects and reasons to the Bill, it was stated by the Minister of Law that in the country “Satyameva Jayate” (Truth alone triumphs) was the motto and that it was “anomalous” not to allow this defence. This statement is missing from the present Bill. It would be well-nigh impossible for the judges to take recourse to the law pertaining to defamation and libel as this would definitely affect their judicial functioning. A more liberal view of the events affecting judiciary but which do not impute motive will be more appropriate. The writer recalls a case where a ruling was given by the Authority for Advance Rulings of which he was a member. It attracted criticism in a journal bordering on contempt. The Authority, however, took no action in the matter. In dealing with contempt matters, the crucial tests should be applied with an even hand. The recipient of punishment should not be dealt with discriminately. The punishment should be certain if contempt has indeed been committed. At the same time, if individual judges are attacked with the intention of defaming the judiciary as a whole, this is a serious matter which should attract punishment. Genuine cases of contempt with this intention can be handled effectively only by appropriate punishment commensurate with the offence. Individual judges are also entitled to the highest respect but the respect cannot be commanded by law alone but by exemplary conduct. Shastri Ramachandran’s subsequent write-up (Dec 18) regarding a seminar held in Manesar in Haryana on “Media and Judicial Independence in South Asia” in which persons from different sections of society from Bangladesh, Pakistan, Sri Lanka and India participated is timely and augurs well for civil liberties of the people of the Indian sub-continent and awareness among the judges for reform of the contempt law. As far as the Contempt of Courts (Amendment) Bill, 2004, is concerned, it is a desirable preliminary step but cannot be said to be the last word in view of the major qualification mentioned earlier. The courts should be more concerned with establishing the truth rather than deciding whether the plea of truth should be permitted once it is established. The defence of truth will, of course, go a long way to carry forward the fundamental right to freedom of speech and expression guaranteed by the Constitution. The Supreme Court of India in the Union of India v. Jagat Ram (1990) has itself tried to balance this right with social interest and stated that “anticipated danger” to community interest should not be too “remote, conjectural of far-fetched.” These words of caution together with the defence of truth should guide the Supreme Court in arriving at the correct conclusion in contempt matters.
**** The writer is a former Secretary of the Law Commission |
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Defence notes THE Army has been going out of its way to welcome the Chief of Army Staff designate, Lt.Gen J.J. Singh, in the process ignoring the incumbent Chief, Gen N.C. Vij. This can be observed from the number of ribbon-cutting ceremonies that are being organised by the force in an apparent bid to “welcome” the new Chief of Army Staff. Former Chief of Naval Staff Sushil Kumar had also had a similar experience at the hands of his officers. The word is that at the marriage of his daughter, which was near the time of his retirement, very few naval officers turned up at the ceremony as they were said to be busy welcoming the new chief at that time, apparently signalling that one should salute the “rising sun”.
US sale of arms to Pak The recent decision of the US government to supply over $1.2 billion worth of arms and defence equipment to Pakistan has not only irked the Indian Government but has also prompted it to take additional security
measures. The US administration has notified the US Congress of the proposed sale of 8 PC-3C aircraft and 2000 TOW-2A missiles, 14 TOW-2A Fly-to-Buy missiles as well as associated equipment and services at a combined cost of US $ 1052 million. Although the Indian defence forces are fully prepared to take on the enhanced capability of Pakistan, the government proposes to take some additional security measures, which include not only purchasing more defence equipment to counter Pakistan’s new acquisitions but also start the manufacture of the same within the country.
Shortage of officers The shortage of officers has always been a problem with the Army. At present there is a shortage of 11,709 officers in the Army, 1060 in the Navy and 470 in the Air Force. Several steps have been taken by the three services to fill the vacant posts. An image projection campaign by the Army was launched in 1997 and currently phase IV of the campaign is being finalised. In addition seminars, lectures and presentations are organised by the recruiting offices at schools and colleges in order to motivate youth to join the Army. The training capacity of the Army has been increased. Sustained publicity efforts are being undertaken by the Air Force to attract talented and qualified youth to the officers cadre. Almost 3,000 schools and colleges are on the mailing list for sending publicity material Campus interviews are undertaken by qualified assessors from selection boards so as to interact directly with potential candidates and answer their queries about the service. |
Self-realisation does not mean giving up the world. One must live in the world and do all his prescribed duties. One who does them with non-attachment is the true yogi. Living among yogis, wearing their clothes and eating their food cannot make a yogi. They are mere illusions of being a yogi. — The Bhagvad Gita A speech may be long, full of exquisite words, sonorous to the ear but if the sentences make no sense, it is ridiculed by all. One word of sense which makes a man reflect, is better than all such speeches. — The Buddha We have to pour our love on someone. And people are the means of expressing our love for God. — Mother Teresa  |
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THERE is little doubt that the contempt law is badly in need of reform. Some years back, the Commonwealth Law Conference held in Malaysia had discussed this subject in which eminent British and other jurists, including Soli J. Sorabjee, a former Attorney General of India, had also participated. The courts of record, namely, High Courts and the Supreme Court of India have inherent powers of contempt.