The Tribune, Chandigarh, India

EDITORIALS

Tackling errant Judges
Justice Khare has a point

IT is best the cure for the ills of the judiciary is found by the judiciary itself. And in this connection outgoing Supreme Court Chief Justice V.N. Khare’s plea — although belated — for bestowing adequate powers on the CJI to discipline “errant” judges is timely. His remarks before laying down the highest judicial office clearly bring out the CJI’s helplessness in taming some errant Judges. Sadly, acts of indiscipline and misconduct involving some High Court Judges in different parts of the country have eroded the image of the higher judiciary. Its reputation took a beating very recently after 25 judges of the Punjab and Haryana High Court proceeded on en masse leave for a day over differences with their Chief Justice. The Mysore sex scandal, the Rajasthan case and the land scam involving Justice Shamit Mukherjee of the Delhi High Court have also hit the image of the judiciary hard.

If the Constitution has not empowered the CJI adequately to tame “errant” judges, it was because of the high reputation that the higher judiciary enjoyed five decades ago. Clearly, the founding fathers had never anticipated a situation where some of the Judges would let down the country through their misconduct. Impeachment of a Judge by Parliament — as was evident in the case of Justice E. Ramaswamy — is not an easy option. Even otherwise, as Justice Khare has pointed out, in the coalition era as at present, it would be very difficult for Parliament to pass an impeachment motion with two-thirds of members present and voting. Similarly, the in-house mechanism evolved by the Supreme Court in consultation with the Chief Justices of the High Courts is not enough. The suggestion for empowering the CJI or a Collegium of senior Supreme Court Judges headed by the CJI, through a constitutional amendment, to effectively deal with instances of questionable conduct and indiscipline among Judges merits support from the judiciary and Parliament.

The Judges are constitutional authorities. They are expected to set exemplary standards of integrity, probity and rectitude. They may possess highest judicial authority, but they are not above the Rule of Law. If they go astray, the CJI and his senior Judges in the Collegium ought to be empowered to proceed against them firmly and restore order. No effort should be spared to ensure that the judiciary retains the respect of the people it is supposed to serve.

A savage behaviour
Images give no credit to Bush

AT least now the Americans and the Britons should stop lecturing others on human rights violations. The ill treatment meted out to Iraqi prisoners in the Abu Ghuraib jail complex on the outskirts of Baghdad has come to light when the world is yet to forget the reports on the inhuman conditions under which Afghan prisoners were kept at the detention camp in the Guantanamo Bay, near Cuba. The case of Iraqi prisoners is worse. They were stripped naked and forced to stimulate sex acts by US military police officers and CIA personnel at a time when anti-American sentiments are the strongest in Iraq and the rest of the Arab world. The British soldiers were not far behind in displaying their savagery. Pictures published by the Daily Mirror of London do little credit to the British Army.

The whole world, including sections of the US and British society, is upset after witnessing the shameful behaviour of those who pretend to be the role models in respecting human rights. Are those in US or British custody not entitled to human rights? Reports indicate that there was virtual collapse of the command structure in the Abu Ghuraib prison. Is this the way the US wants the Iraqis to consider the Americans as their liberators from the autocratic rule of Saddam Hussein? Surely, the US soldiers are not advancing the national interests of the United States.

One must believe President George W. Bush when he says that he shares a “deep disgust” at what he saw on the TV screens. What is happening in Iraq is bound to influence the thinking of the US voters in the November presidential election. The Americans are these days getting two kinds of images on their television of US soldiers in Iraq — of their dead bodies being brought home and of inhuman behaviour of others. Both images give no credit to President Bush or the Iraq war.

Unceremonious exit
No way to treat Dhanraj Pillay, others

THE virtual exclusion of Dhanraj Pillay from the Athens-bound Olympic hockey team seems to have more to do with his differences with his coach than with his advancing age. At 35 he is not the fastest of the players but he still packs enough of bite to inspire younger players. The touchstone for his exit and that of Baljit Singh Dhillon and Baljit Singh Saini is whether this will benefit the team. Unlikely, because adequate replacements are not in sight. In any case, picking up an "experimental" team just a few months before the Olympics is suicidal because it takes at least a year for a team to settle down. As Saini has pointed out, had the probables been picked up last year, it would have been justified but doing so at this stage is inexplicable. The young players the IHF is banking upon may be talented but will require time to get into the groove. The performance of the Indian team has been disappointing of late. Bleeding in new players at this stage may bring it down instead of improving it.

Pillay has not been having the best of relations with IHF bosses. Nor is he on good terms with some of the players. To cap it all, there was that famous tiff with coach Rajinder Singh following India's maiden Asia Cup triumph in Kuala Lumpur in September. Mercurial that he is, he is a dazzling player. That is what should matter the most in the case of a sportsman of his stature.

The hockey federation has been making the players go through a musical chair ordeal. The uncertainty may be good for the ego of the sports administrators but is harmful for the game. By saying that one or two players may be picked up from outside the pool of 30 probables that have already been selected, IHF chief KPS Gill has kept the window of opportunity open for Pillay. But the denial of berth is humiliating for the Khel Ratna awardee. The manner in which he has been treated is worse.

Thought for the day

The people never give up their liberties but under some delusion.

— Edmund Burke

ARTICLE

Exit polls can hurt
Attorney-General’s stand is questionable
by K.N. Bhat

AS a direct consequence of the exit polls, the stock market crashed causing an estimated loss of over Rs 50,000 crore in one day — the market has not recovered yet. A minister in the Karnataka Government confessed that officials fail to return his telephone calls after the prediction of defeat of the Congress party. The position of Mr Chandrababu Naidu, who was written off a good fortnight before the results were due to be announced, is dismal. That too in a state that was condemned by the cussedness of the Election Commission to be under a caretaker government for the last about six months. Thanks to the lackadaisical poll schedule with pronounced indifference to the governance of the country, the whole of India is under “Election Commission rule”. The all-pervasive and ever expanding code of conduct has been the supreme law for the last three months or so. And in this uneasy state of affairs do we deserve a heavy dose of chaos through poll predictions?

What good has the spectrum of poll predictions — the spectrum with a 300+ NDA at one end and the Congress front scoring 272+ at the other sandwiching all other possible figures — achieved for the country? May the media bosses thrive but not on the chaos created by themselves and at the cost of free and fair elections in the constituencies that are yet to vote. The exit poll is no exhibition of an art or skill nor is it an untainted entertainment. The poll pundits warn you that opinion and exit polls are based on samples that carry no warranty for quality. They also warn you that a small sample size is projected or enlarged, and that world over these types of poll predictions have gone wrong.

They confess that their own reliability is not guaranteed, that they have gone totally wrong even a few months ago and many times earlier. Qualitatively, the pavement astrologer appears to be equally reliable, less spurious and far less complicated. Occasionally, forecasts by one of the many pollsters also may come true, but that is no reason to permit them to trespass into our lives or to promote them. Our lives will in no way be worse without these “swingers” and “shifters”.

The question is whether this business of propagating admittedly unreliable and utterly useless but harmful views can be elevated to the status of free speech and expression guaranteed by our Constitution. According to Mr Soli Sorabjee, the Attorney-General of India, opinion and exit polls are forms of expression guaranteed by Article 19(1)(a) and the State or the Election Commission cannot restrict it except on the grounds enumerated in Article 19(2) — promotion of free and fair election is not one such justification.

The occasion for the Attorney-General to air his views was the unanimous request to the Election Commission by all the political parties to ban exit polls until after the last phase of polling is completed. The rationale was that these predictions do tend to influence the voters of the subsequent phases — the same reason that has compelled the Election Commission to postpone the announcement of results until after the polling is completed on May 10. The commission agreed with the views of the political parties, but hesitated to ban the poll as a code of conduct on account of its previous bad experience. Instead, it requested for a Presidential Ordinance. The Attorney-General opined that the Ordinance would offend the fundamental right to free speech. This perhaps is a case of Mr Sorabji’s innate bias towards freedom in general and freedom of the Press in particular, triumphing over his constitutional comprehension. With due respect to the AG, treating these polls as freedom of business or trade may be the most charitable view — if indeed they do not get labelled as an undesirable or noxious activity like gambling. The case that is pending before the Supreme Court will hopefully settle the issues before the next elections.

In the meanwhile, it will be useful to assimilate the law so far declared by the Supreme Court. One of the architects of the Indian Constitution and a legendary constitutional lawyer, the late K.M. Munshi, arguing on behalf of Hamdard Dawakhana, contended before a Constitution Bench of the Supreme Court in 1959 that an advertisement is a vehicle by means of which the freedom of speech, guaranteed under Article 19(1)(a), is exercised, and the restrictions which can be imposed on advertisements should be covered by Clause (2) of Article 19. The court rejected this contention and held, “An advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed. It assumes the attributes and elements of the activity under Article 19(1) which it seeks to aid by bringing to the notice of the public. When it takes the form of a commercial advertisement, it no longer falls within the concept of freedom of speech, for, the object is not the propagation of ideas — social, political or economic or furtherance of literature or human thought.”

The late Justice Mathew, a truly great scholar-judge of the Supreme Court, in his dissenting judgment in the Bennet Coleman case (1972 concerning newsprint control), observed, “The value sought by society in protecting the right to the freedom of speech would fall in to four broad categories. Free expression is necessary (1) for individual fulfilment, (2) for the attainment of truth, (3) for participation of the members of society in political or social decision making, and (4) for maintaining the balance between stability and change in society. In the traditional theory, freedom of expression is not only an individual good, but also a social good.”

In the context of dealing with a subject that had political implications, namely a movie on the Bhopal gas tragedy, the Supreme Court (1992) held: “The print media, the radio and the tiny screen play the role of public educators, so vital to the growth of a healthy democracy.”

There are more pronouncements to similar effect. Do these polls meet any of the minimum standards set for the lofty concept of freedom of speech? The answer can only be in the negative. The polls teach nothing and educate no one. An ultra-sound laboratory also expresses an opinion on the sex of the unborn child — but that is business, not speech.

As felt by all the political parties and the Election Commission, these predictions are injurious to free and fair elections. Can anyone rule out the possibility of a mercenary masquerading as a psephologist and planting stories to suit his masters? Media surely is not over-burdened with honest people. This business or trade of exit polls can be lawfully banned for a limited period until after the voting process is completed, in the interest of the general public. The Election Commission’s powers, derived from Article 324 of the Constitution, may be good enough for the purpose. An Ordinance or a law can be passed if needed, without the fear of offending the right to free speech. The mission of the media moghuls to make hay during the many sunny days provided by the slack scheduling of elections enjoys no such protection as assumed by the Attorney-General.

The writer is Senior Advocate, Supreme Court of India.

MIDDLE

Metro versus retro
by Chetna Keer Banerjee

PLAYWRIGHT Eve Ensler’s Vagina Monologues “provoking” adman Alyque Padamsee into staging P-Dialogues recently may have given a theatrical twist to the battle of the sexes. But a more dramatic upstaging appears to be taking place in the male greenroom. This battle within the sex has been triggered not by playwrights but wordsmiths.

With jargon jugglers pushing metrosexuality to the centrestage of public discussion, the masculinity vs femininity debate has a whole new face to it.

For a taste of this war of assertion within the gender, here are snatches from dialogues between the males of the species — the metrosexual (M) and the retrosexual (R):

M: Hey, look at my black net shirt. Just the right thing to flaunt my newly waxed chest in. What do you say?

R: Ugh. Isn’t it painful to have all that hair peeled off? Why bear so much to bare so little. Anyways, that leaves you neither hair nor there.

M: Oh boy. What do you know of the pleasures of flaunting silky smooth skin. Time you added new spice and juice to your beauty regimen. How long will you stick to Old Spice? Learn to savour the fruits of the beauticians’ labour. Here, try this strawberry peel-off mask.

R: No way. You may like strutting about like a peacock. You may want to be both the beauty and the beast. Not me. I can at best tame the beast in me. Not mask it, like you.

M: My, my, somebody has real sharp claws. It sure would do you good to visit a nail bar. Not only will your nails (read claws) be cut to size, you’ll acquire polish too.

R: Blah! You think you can polish up your act with manicures and pedicures. You certainly believe in providing a nail biting finish to this assault on manliness.

M: Cultivating the feminine side isn’t a blow to masculinity. It’s all about giving chauvinism a facelift. The retrogressive face of man certainly needs a makeover.

R: Aha, that’s it. It’s only about cosmetic changes. Pedicures, my foot!

M: What’s wrong with putting your best foot forward? One has to be in step with the times, after all.

R: Gosh, these hand massages and all. You certainly seem to be hand in glove with the feminists, who’d love to see the last of all things masculine. And, this sunscreen lotion that you’re using…now, you even want to be fairer than the fair sex.

M: Cool it man. You’re only bothered about the brawn effect. I’m more concerned with the brown effect. On my skin, that is.

R: Eh, so your beauty too will be skin deep. Where will you reach by giving a free run to your effeminate urges?

M: Oh, I’m going places. I’ve just landed myself the lead role in the sequel to that famous Julia Roberts-starrer. Watch out, I’m going to be the new face of Pretty Man.

R: (Shakes head) Heavens! Where will this miss-taken identity take the ‘Mr’ identity?

OPED

Nobody cares for panchayati raj institutions
Political parties pay only lip service to them
by Ash Narain Roy

Politicians promise more powers to panchayats, but don’t actually give them

THE irony is too stark to be missed. The BJP leaders who are seeking votes in the name of governance hardly ever talk of panchayats, the “third-tier of governance” during the ongoing campaign. The Congress leaders who took full credit for the passage of the 73rd Constitution Amendment Bill also seem to suffer from similar amnesia. The media, which hailed the 73rd Constitution Amendment as “a day to remember”, a “threshold of a historic transition of political power to the grassroots” and “a new chapter in the political history of modern India”, too has dumped panchayats like hot potatoes.

The entire media is of course not to blame, but the promoters of Page 3 journalism have completely banished panchayats from their pages as it is not a sexy subject. The sun-tanned and sweaty panchayat leaders have to jostle for space with the bold and the beautiful in their columns. The Women’s Political Empowerment Day Celebrations in Delhi on April 23-25, 2004, attended by 2000 elected women panchayat members from 22 odd states, don’t find an inch of their space in the mass-circulated English dailies from the national capital fighting the numbers game like the likes of Laloo Prasad, Mulayam Singh and Harkishen Surjeet are currently engaged in to form the next government. But a marriage party of a celebrity cricketer and the Lakme India fashion parade are all over the pages.

The manifestoes of the BJP and the Congress, no doubt, talk about the panchayati raj. The BJP pledges to introduce suitable changes in the 73rd and 74th amendments and to strengthen panchayati raj institutions making them financially self-reliant. The Congress promises full devolution of funds, functions and functionaries to panchayats. But experience suggests that their public commitment is often an exercise in public deception and self-delusion. Today the manifesto is no more a compact between the voter and the party. It is mere tedious ritual.

To L.K. Advani, “Modi’s Suraj (good governance) in Gujarat and Vajpayee’s rule in Delhi” are a “model of good governance”. Let us see what Narendra Modi’s government has done to promote good governance. Modi and his predecessors tried every trick of the game to postpone the panchayat poll. One of the reasons for doing so was drought even though Assembly elections were held in 1995 despite a severe drought. Finally when local government elections were held in December 2001 after postponing them for 18 months, Modi came forward with a weird scheme called the Samras Gram (harmonious village) whereby he used blandishments to the tune of Rs. 1 lakh to those gram panchayats where members would be elected unopposed. The scheme is downright anti-democratic. It is a recipe for reward-induced guided democracy. So much for Modi’s brand of good governance!

On 27 April 2001, Prime Minister Vajpayee, in a letter to Andhra Pradesh Chief Minister Chandrababu Naidu, characterised the panchayats “as the third tier of government in the federal polity” and laid stress on the “implementation of financial decentralisation by the states” and “a minimum devolution of power”. He also cautioned the states against setting up “parallel structures” which undermine the pnchayati raj institutions. The Prime Minister’s letter is full of good intent. But in the absence of real devolution of powers to the panchayats, his letter has remained no more than pious platitudes.

Two years ago, the Vajpayee government organised a two-day conference of heads of panchayats from across the country. The conference turned out to be a jamboree of sorts and was addressed by Delhi’s who-is-who: Vajpayee, Sonia Gandhi, M. Venkaiah Naidu, Arun Jaitley, George Fernandes, Yashwant Sinha, Sushma Swaraj and K.C. Pant.

There were promises galore at the conference. The Prime Minister pledged to bring about a constitutional amendment in order to empower the panchayat bodies. “If new legislation is needed to empower panchayats, that will be done”, said Vajpayee. Sonia Gandhi went a step further calling for a joint session of Parliament on October 2 and a meeting of the National Development Council. These promises remained on paper for two years. Now the same is being promised in the manifesto, very much like the Women’s Reservation Bill, which figures in all manifestoes but gets shelved repeatedly.

The BJP, the Congress, the Left and the regional parties all swear by panchayats but they all pay only lip service to the grassroots institutions. In order to make the panchayats genuine agencies for participatory self-government and to enable them to plan and implement schemes for economic development and social justice, they should not only be given development functions but the general administrative, maintenance and regulatory functions should also be transferred to them. Panchayats can become institutions of self-government only when they are given powers to generate resources and statutory entitlements to share the total revenue of the state.

The Marxists in West Bengal are reaping rich electoral dividends because of the empowerment of panchayats. But all is not hunky-dory. Last year the state government rushed through the West Bengal Panchayat (Amendment) Act 2003, which establishes an organic link between the three tiers of panchayats. In reality, it has rendered the panchayats as “elected extension agencies of state administration”, says D Bandyopadhyay, former Secretary of the Union Ministry of Rural Development.

Perhaps the biggest blow has been dealt to the panchayati raj institutions by the various parallel bodies that state governments have floated. The Janmabhoomi programme of Andhra Pradesh, the joint forest management committees of Gujarat, the district government in Madhya Pradesh, the Gram Vikas Samitis of Haryana and the watershed programme of Rajasthan have all sought to scuttle the powers of the panchayats.

The panchayati raj institutions are still tender plants. However, these have given Indian federalism a substance, not found in many putatively federal political systems. Their most visible impact is on governance, which has moved beyond governments. Governance is now increasingly more direct and horizontally expressed across the country. Political parties do swear by panchayats but they are paying only lip service to them. If they had their way they would still like to throttle panchayats in their infancy.

— The writer is on the faculty of the Institute of Social Sciences, New Delhi.

Delhi Durbar
Pramod Mahajan ignores UP

THE BJP’s Pramod Mahajan, the laptop czar in the party, has been under intense attack for not focussing enough on Uttar Pradesh compared to states like Karnataka, Rajasthan or Madhya Pradesh. It is widely perceived in the BJP that for inexplicable reasons Mahajan had gone slow with regard to Uttar Pradesh, which contributes the highest number of 80 seats to the Lok Sabha.

After the first round of polling on April 26 for 32 seats, Mahajan is being blamed for the gaffe in Uttar Pradesh, especially the high-tech campaign failing to generate the necessary impact on the electorate owing allegiance to the Samajwadi Party’s Mulayam Singh Yadav and the Bahujan Samaj Party. Since then, the BJP and its strategists have sent an SOS to its leaders and those with proven organisation skills in the Sangh Parivar to rush post haste to Uttar Pradesh in a bid to retrieve the situation in the remaining two phases of polling on May 5 and 10 accounting for 48 seats.

High-profile candidates

Padayatras are popular with the high-profile candidates of the BJP and the Congress in the national Capital. This way they are able to have a peek at the lanes and bylanes of Delhi and mingle with members of the lower income group for whom the BJP’s “India Shining” campaign has no meaning. Congress spokesperson Kapil Sibal, who is contesting for the Lok Sabha from Chandni Chowk, is striving for mass appeal. Traders in the walled city are upbeat about Sibal, who has promised to sort out their problems.

Meanwhile, Mr Jagmohan, the South Delhi candidate of the BJP, is discussing property tax and building bylaws with resident welfare associations in his constituency. Sajjan Kumar of the Congress, who is contesting from outer Delhi after a gap of 13 years against the BJP’s two-time winner, Sahib Singh Verma, is pleading with the electorate to look at his past record. Even though cricketer Virender Sehwag’s family is understood to have given the thumbs-up sign to Verma, Sajjan Kumar has in tow Ravinder, borther-in-law of Virender. However, in the case of Sajjan Kumar and Jagdish Tytler of the Congress, who is contesting from the Sadar constituency, the agony of the 1984 November riots has come to haunt the Sikh community. Though the community does not have the money to counter Sajjan Kumar and Tytler, they are visiting gurdwaras and appealing to the people not to elect these two leaders.

Retired CJI and media

The just retired Chief Justice of India, Mr V N Khare, known for his activist role as a judge and liberal interpretation of laws, is all praise for the media for highlighting problems of the public. Keeping this in view, he bestowed the media with many facilities in the Supreme Court press lounge before relinquishing office. The press room was given a complete facelift by making it fully airconditioned and installing computer and fax facilities to ensure proper coverage of court proceedings.

Not only this, he liberlised entry to electronic media reporters to courtrooms by providing them a weekly entry pass facility. Hitherto, the entry of scribes to the courtrooms was restricted only to the correspondents accreditated to the Supreme Court. On his last working day on Friday, Justice Khare visited the fully renovated press room and had tea with journalists.

Book on Rajiv Gandhi

Shyam Goenka, the grand nephew of the late newspaper baron Ramnath Goenka, has come out with a rather heavy 500-page coffee table book titled “Eternal Rajiv — Epitome of Humanity.” The book has some rare pictures of the Nehru-Gandhi family as well as Rajiv Gandhi, Sonia and Rahul and Priyanka. It has articles by leaders like Atal Bihari Vajpayee, industrialists and academicians. His earlier publication was called “India Matters”. In 1992, Shyam, on the advice of an Indian diplomat in Nepal, decided to do something for the Indian diaspora of more than 10 million in that country. Two dailies — Kantipur in the regional language and English daily The Kathmandu Post — were promoted by him in 1993. He insists that the book on Rajiv Gandhi has been his most cherished venture.

— Contributed by S Satyanarayanan, Gaurav Choudhury and R Suryamurthy.