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Three-in-one snub TDP’s new track Right to information |
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Watchword for
judges, lawyers
Son-shine
Human
Rights Diary
Victory day 40
years ago Chatterati
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TDP’s new track THE Telugu Desam Party breaking ranks with the National Democratic Alliance to end its boycott of Parliament is a pointer to re-alignments in the making. Mr N. Chandrababu Naidu’s rationale is that the MPs were elected not to abstain from the House but to raise issues of interest to Andhra Pradesh. The rationale is unexceptionable, but that does not answer what really motivated the TDP to distance itself from the NDA. There are no electoral exigencies, as of now, that require Mr Naidu to cast his lot with either of the two leading alliances. Hence, he may be leveraging his position to keep all options, including the Left-mooted Third Front, open. Besides, setting himself apart from the BJP may help revive the TDP’s appeal for minorities who would otherwise rally behind the Congress in his state. Despite the Congress being the TDP’s main opponent, if Mr Naidu has moved away from the NDA, then the BJP should reflect on why its allies are getting alienated; for there are others, besides the TDP, who are palpably uncomfortable and inclined to jump ship if pushed too far. Mr Naidu has no great ideological values. He was averse to the BJP’s Hindutva agenda because he feared it would erode his vote base. In spite of being snubbed for seeking Mr Narendra Modi’s resignation after the Gujarat riots in 2002, he stuck to the NDA because he realised that leaving it would not boost his political fortunes. Apart from the divisive agenda, it could well be the BJP’s domineering attitude in the NDA and political strategies that are putting off its partners. The attitude “if you are not with us, you are against us”, as evidenced by the alacrity with which BJP leaders have rubbished the TDP — for never having been part of the NDA – betrays the party’s inability to be accommodating. The sooner the BJP does some soul-searching, the better it would be able to relate to, if not retain, its allies. |
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Right to information IT is surprising the revised Right to Information Bill does not contain some important recommendations of Parliament’s Standing Committee on Personal, Public Grievances, Law and Justice. For instance, one recommendation that does not find place in the revised Bill is the institutional mechanism necessary for imposing penalties on the officers in case they refuse to provide information to people as per law (Section 17). The absence of this provision will render the law totally ineffective. A strong penalty clause is critical to the efficacy of one’s right to information. It will also enforce accountability on the officials. Most officers in general seem reluctant to part with official information to people even though the right to know is a fundamental right of every citizen guaranteed under the Constitution. Penalties are important because these will impose the much-needed checks and balances on the officers who cannot afford to be callous and arrogant towards the people. But the mechanism should be strong and effective enough to act as a deterrent. For instance, if the Information Commissioner has no power to impose penalties and if he can only authorise a Central government officer to file a complaint in the court, what deterrent effect will this process have on a callous and corrupt officer? The chances of early passage of the Right to Information Bill may have brightened following the submission of the Standing Committee’s report on the matter. But it is doubtful whether any serious and meaningful discussion on the Bill is possible in Parliament with the continued boycott of the NDA and that too before it is adjourned on May 14. If the Bill is to serve the intended purpose, it must be debated thoroughly in Parliament. Specifically, the government must take into consideration the genuine concerns voiced by personalities like Ms Aruna Roy and Jean Dreze, who are members of the National Advisory Council. The government must ensure that the legislation is not without teeth. |
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A best-seller is the gilded tomb of a mediocre talent.
— Logan Pearsall Smith |
Watchword for judges, lawyers
A
few weeks ago Vice-President B.S. Shekhawat was to inaugurate a seminar on public governance but could not, as he had to go to Rome. But in his written speech, which was circulated among the participants, he mentioned that a lot had been said on the subject of transparency and accountability over the years, and (quoting philosopher Andre Gide) reminded us that “Everything has been said already, but as no one listens, we must always begin again.” Mr Shekhawat was right. We have all individually and collectively not once, not twice but several times written and spoken about transparency, accountability and governance, of legal reforms and judicial reforms as well. But the importance of speaking on the same subject even when “no one listens” (i.e. no one of any consequence listens) is that sometimes it works! It is with this hope that I draw attention to some focal points. The first is commitment — by all who know about or speak about the subject, and to fulfil that commitment we must be brief. Lawyers and Judges must speak less. Judges speak only in judgments, which are far too lengthy, most of which are couched in a language which is not understood by the ordinary person, not even to journalists trained to report court proceedings. Since it is impossible to control verbosity in the higher judiciary — the next best thing is for the judge to begin his judgment with a summary of one paragraph which gives the thrust of his decision. This is invariably done in the judgments of the US Supreme Court so that, as the saying goes, “he that runs may read”. We practising lawyers in the Anglo-Saxon legal world (and India is a part of it) are prone to much circumlocution, whether in drafting agreements or arguing in the court. Lawyers on their legs simply go on and on, leaving the judges who listen to them little time to reflect on the case at hand, much less time to think about legal or judicial reforms. The first and essential reform in infrastructure is whether in the chambers or in the court (whether drafting documents, or pleadings or writing judgments), “cut out the cackle and come to the main point.” And, above all, “be clear and precise”. That master of the English language Lord Denning, who frequently visited India (and was a great friend of our judges and lawyers), used to tell us: “Old words are best and old words when short are best of all”. Then there is the need for simplification of the laws. In the first edition of Halsbury’s Laws of England (1907) the foreword, written by Lord Halsbury himself, is one of the most brilliant expositions on the need for simplifying the laws. He writes that “the more words there are, the more words are there about which doubts might be entertained.” And the secret of simplifying the laws is to associate more non-lawyers with law-making. In our three-tier system of litigation, which we have inherited from Britain, we have, after our written Constitution, added another structure — the façade of the US federal system. As a consequence, there is a growing imbalance, and the alarming problem of arrears in courts. Only a few days ago the President of India, who has a perspicacious tendency of striking at the root of things, noted the problem of arrears and asked the judges to work for longer hours — even those in the Supreme Court, though they did not need to, but only as trendsetters for the High Courts and the lower courts. Earlier, the Prime Minister suggested the same thing. Take heed, I would say, especially when the Head of State speaks. I am not one who has much confidence in what is called “judge strength” — how many judges you need for every one hundred thousand of the population. Compared to the number of people we have (and the large number who litigate) our judge strength is, of course, woefully inadequate. But mere increase in the number of judges to decide cases is not going to improve things. Incompetent and inexperienced judges simply clutter up the legal system by rendering decisions that then need to be corrected. They create more work, requiring even more judges, which becomes a vicious circle that can be most exasperating for the litigant. It is the competent ones among our judges (and believe me, there are many) who can push cases along for quick conclusion or to a settlement. Hence the need not for more judges, but more efficient judges — those among the practising lawyers — especially those with large practice, to be induced to take up an assignment for two or three years in a High Court to mop up the arrears, and resume practice later. One or two among the many might cash in on the privilege. But the situation is desperate and we must take risks. Appoint lawyers from among those having a flourishing practice in the High Courts as ad hoc judges for one, two or three years and you will see the difference. Then there is the problem of proliferation of appeals. The legal profession is the only one in which the chances of error are admitted to be so high that an elaborate machinery has been provided for the correction of not one error but a whole succession of them. In other forms of activity — such as the medical profession — a wrong is regarded as a matter of regret and, more recently, as a matter for compensation; in the legal system alone, a wrong is regarded as a matter of course. One appeal may constitute a reasonable precaution, but two appeals suggest panic; three or four appeals (which we frequently have under many of our laws) show complete lack of confidence in the judiciary. In our anxiety to do justice, we deny justice by delaying it. And then there is need for lawyers to change attitudes — to have regard for what society expects of us. “Should lawyers not be healers?” a former Chief Justice of the US once rhetorically asked the American Bar Association. After all, (as a wise old judge once said) litigation is “an activity that has not markedly contributed to the happiness of mankind”. The watchword for practising lawyers then is: Be brief, be different. There is a judge in England — Justice Sedley — who is now a Lord Justice in the Court of Appeal. He is reckoned as one of England’s brightest judicial minds. Sedley is listed in “Who’s Who” as having as one of his hobbies “Changing the world”. For the practising lawyer, the in-house lawyer and draftsmen of legal documents and laws, and for law teachers of the 21st century, there can be no better motto: “Changing the world”: attitudes in law do need
changing. The writer is a Rajya Sabha member and senior advocate of the Supreme Court of India. |
Son-shine There are times when I feel I am the most blessed and there are moments I couldn’t be more sorry for myself. And, amazingly, this mixed bag of emotions, or should I say the delights and drudgery of motherhood, could come to me in the short span of an hour. One moment, I am pleased as a plum about my eight-year-old’s intelligent and sensible ways and then barely seconds later I begin having serious fears of how he will eke out a living for himself. There have been moments when I have secretly congratulated myself for bringing up a “perfect son”, but there have been more occasions when I have seriously doubted my parental skills for raising such an ill-mannered brat. Of and on he can be so understanding and magnanimous that I want to take a leaf out of his be-tolerant book, but there are also moments he is so unfeeling that I wonder if he is my flesh and blood. There are times he can be so perceptive and philosophical that I wonder if there’s a sage hidden in him, but there have also been those tantrum shows that are best left unsaid. Probably a two-year-old would have appeared more reasonable. His smile, his knack of putting his arms around me work like magic, banishing my cares or irritability in a jiffy. But he also has the amazing capacity of getting under my skin in a second flat. Just when I’d resigned myself to the fact he wasn’t a foodie and generally disinterested in food, he spoke aloud his thoughts one day. He accusingly declared that for the last eight years he had been given to eat only what I had wanted him to eat. Stunned, I could do little else but shake my head in disbelief. But, again, I comforted myself with the thought that it is his eyes that light up when I bake his chocolate special. There have been those cherishable gestures too when he hastily scribbled his first (also the last till now) “sorry” for coming home late, or that Mom’s Day card he laboured so much over that the sheet was literally in shreds by the time the artistry was over. Absolute acceptance and love, I guess, is what children make you experience. Once when a friend asked me what was the best thing I liked about my son, for a good minute I was lost in thought yet couldn’t verbalise my answer. Because, modestly or immodestly, I could only think of
“everything”.
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Human Rights Diary by Kuldip Nayar For better or worse, the Supreme Court has upheld the appointment of P.C. Sharma, a police officer who retired as the CBI Director. It was nobody’s case that the rules of the National Human Rights Commission (NHRC) placed any restriction on the appointment of a police officer as the member. The Supreme Court has unnecessarily emphasised that nothing can override provisions of the Act passed by Parliament. This was not even contended. The point at issue was not whether a police officer could be nominated a member of the NHRC, but whether he should be nominated. His background is different and the experience he accumulates at the job has more to do with the rough and tumble of law and order than with the soft and soothing touch that the violation of human rights requires. This is no perception but a fact which the court has tried to blur. In the same way, the letter and the spirit of the Act are so intermingled that one looks dangling without the support of the other. Whenever the Supreme Court has dealt with matters relating to human rights, it has allowed the interplay of the spirit with the letter. I do not think that the Act envisages the appointment of a police officer as a member because he represents oppression of the state. What police does and people bear is all that human rights violations are about. The UN resolution against the appointment of police officers in human rights organisations is not the final word as the Supreme Court has correctly observed. But all such Acts are based on that premises and ours is no exception. The remark by one of the three judges that in democracy many people get elected by a thumping majority to high legislative offices despite negative public perception is intriguing. True, it happens. But such elected persons do not get respect or acceptability of the public which their position should have. We cannot help the hype at the polls nor the money or other methods the candidates use to get elected. But an appointment is a considered proposition. No doubt, it has to follow the rules. But they should not be interpreted in such a way that the moral side is overlooked. An elected person can be foisted on the people but not a person belonging to a force which is known for violating the very aims and objectives of the NHRC. Justice Y.K. Sabhrawal, from the earlier two-judge Bench which could not concur, was right in his observation: “An individual police officer may be very good but his participation in decision-making as a member of the Commission is likely to give rise to a reasonable apprehension in the minds of the citizens that he may sub-consciously influence the functioning of the Commission. Such reasonable perceptions of the affected parties are relevant considerations to ensure the continued public confidence in the credibility and impartiality of institutions like the National Human Rights Commission”. Now that Sharma has got the clearance from the highest court, the controversy should end. But he should at least resign from the Interpol which is a pure and simple police set-up.
Journey to liberty Stories of police excesses are strewn all over the country. Every day newspaper and TV networks report excesses committed by the police. The force has come to represent, not the protector of law but the violator. One journalist, Iftikhar Gillani, living in Delhi has recorded how the police picked him up on suspicion, detained him for seven months and then released him without a single word of apology. His book “My Days in Prison”, tells us all. The essence of his account is: “If an individual gets caught in the labyrinthine world of secret security services, law enforcement and justice, he will find it extremely difficult to get out of it unless he finds a happy coincidence of support, solidarity and a stroke of luck. My journey to liberty was just such a difficult expedition, fraught with twists and turns, never easy, never predictable, with hope giving way to despair and despair sprouting fresh hope.” Gilani’s a story is that of his wrong confinement at the hands of the police. He and his family suffered, apart from the stigma of being a traitor they carried. That the case against him was wrong or that the government realised its mistake does not bring back the wasted seven months of his life. Nor does the release make up for the loss in reputation and the ignominy shared by him and his family. Was anyone held accountable? Was anyone punished for the violation of Gilani’s liberty and his family’s human rights? I have checked with Gilani. No action has been taken against any of the police officers who detained him wrongly. I believe there is a law to give the wrong-doers immunity if they have done something as the government’s representatives. Still the legality given to a bad measure does not make it morally correct. Gilani and persons like him will continue to get the wrong stick of the law so long as there is no punishment for the perpetrators of force in the name of the state. Yet no democratic polity is worth any credibility where people are wrongly confined, critics silenced and even eliminated through custodial deaths or fake encounters. When the infiltration from Pakistan was taking place, the plea of outside interference had some weight to explain human rights violations in Kashmir. Why should there be excesses now when the government itself says that cross-border terrorism has come to an end. Unless human rights are made the focal point by the state, good governance would remain an unfulfilled dream. Dr Justice A.S. Anand, Chairman of the NHRC, has said correctly in a lecture: “Human rights and democracy are mutually supportive”. |
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Victory day 40 years ago NEARLY eight months before the Soviet-sponsored India-Pakistan talks at Tashkent, where he had suddenly died, Lal Bahadur Shastri had paid an official visit to the Soviet Union in mid-May 1965. To do the spadework for covering it, I had reached Moscow a week ahead of the Prime Minister on May 8, a date with no significance for me until, on landing in the Soviet capital, I was stunned by the gigantic scale of decorations — flags, banners, lights, buntings et al — that made the usually drab Vnukovo airport look like a fairyland. Clearly, this couldn’t have been in Shastri’s honour, and that too days ahead of his arrival. An English-speaking airport official, noticing my puzzlement, enlightened me that it was the eve of the 20th anniversary of “our victory over Hitler and the Nazis”. Driving to the residence of my host, the late P. Unnikrishnan, then representing a newspaper in Moscow and later the head of the PTI, I found that the whole of the city was bedecked like a bride, and the people everywhere seemed exuberant. Unni was one of those privileged to live in a Russian block of flats, not herded into one of the relatively posh ghettos meant for foreigners. This was a big bonus because, along with him, I was invited by a neighbouring family to a celebratory dinner which turned out to be memorable. Excellent food and warm hospitality apart, it was the prevailing spirit that was uplifting. Four of the family’s elder members had fought during the war and were overwhelmed with admiration and affection. The rest of the hosts and guests were not old enough to have served in the armed forces during WWII, though most of them knew that 20 million of their countrymen had perished and the destruction of homes was humongous. The hosts brought out a yellowing copy of Pravada of 22 June 1941 with banner-line treatment to “German perfidy”. The constant theme round the table was that no war should take place ever again. Countless toasts were drunk to peace and peaceful co-existence. Next morning we were at the famous Red Square to watch the impressive military parade at which the Soviet Union first unveiled SS-18 and SS-20 missiles and Leonid Brezhnev spoke of the Soviet Union’s growing might eloquently. Anyone who might have suggested then that in 35 years there would be no Soviet Union would almost certainly have been advised to get his head examined. However, Russia, Ukraine and Belarus are the proud inheritors of the glory of the Soviet victory as would obvious on the streets of Moscow (where world leaders are assembled), Kiev and Minsk today. On the evening of May 9, 1965 there was a gala and glittering reception at the Kremlin. Sadly, on the previous evening I had partaken of vodka too well rather than wisely, and was, therefore, reduced to washing down caviar with fruit juice. |
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Chatterati When
Parliament is on, the limelight is always on our MPs’ agenda. This time it is amazing how our Rajya Sabha members have ignored recurring train accidents and devoted precious time on chopper tragedies. Vice-President Shekhawat had to intervene to cut short the discussion. Amar Singh was concerned, no doubt, about the political leaders the country has lost over the years due to the bad state of helicopters. Ten per cent of the fleet of private choppers have crashed, according to the minister. Vijay Mallaya, who also owns enough helicopters, sought that manufacturers must be pushed to set up in-house maintenance facilities. Well, in all this nowhere were the train tragedies debated in which thousands lose their lives. 50 years in politics Congress leader Arjun Singh celebrated the five decades of his political career. With the Prime Minister and the UPA Chairperson felicitating the veteran leader, everyone lauded Arjun Singh’s political achievements. But one point the young turks of the Congress loved was the one Sonia nearly made. I mean she wasn’t as crude as RSS chief Sudarshan, but did sugarcoat her talk of how at the age of 75 one has experienced the ups and downs of life and stopped having any more expectations. Well, she meant, it’s time for the older generation to sit back and reflect on one’s achievements. The Congress did deny the nomination of the Rajya Sabha to K.K. Birla and Salve because they were over 75. Clearly drawing some line on the retirement age. Now, let’s watch if Arjun Singh will be given another term, how long will N.D. Tiwari carry on and whether Karan Singh will take over from Najma as ICCR Chairperson, a Cabinet rank post. The ambitious “babalog” are waiting eagerly for their chances to take over when the aged retire, if ever. After all, they say a politician only retires when buried. The headmistress in command, Sonia, really took the Congress parliamentary members by surprise when she summoned them and fired them for poor attendance. Party circles are grumbling that a colleague of theirs send regular e-mails to Mrs Gandhi giving her a roll call of all those present and absent. Strange but true About two years ago good-looking, but unemployed Nabiullah left his house after a fight with his wife. Obviously, frustration over not being able to provide for his wife and two kids. A couple of months ago the wife started receiving money and Nabiullah arrived home last fortnight. “He” was wearing a bright coloured salwar kameez and garish red lipstick. Shama, the wife, fainted when she realised her husband had become a eunuch. His/her explanation to that is he always felt suffocated in a man’s body. A eunuch friend castrated him and taught him the tricks of the trade. He is happy, but refuses to divorce and his kids are subjected to social ridicule.
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From the pages of Cause of India’s poverty
The
true cause of the poverty of India, Mr Mackenzie truly remarks, is that the whole empire is living upon the soil, “and yet India,” he continues, “purchases from foreign countries every year articles which she requires, a large proportion of which she can and ought to make for herself, to the value of 40 crores of rupees. And there is the true source of all her troubles. Rs 40 crores annually of the income of India, the value of the produce raised on Indian soil, go to pay for articles which the people of India want but which they are too apathetic or too unfamiliar with manufacturing processes to make for themselves, and until the people rouse themselves from their apathy, until they learn how to make what they want for themselves, India must remain poor...” We subscribe to every word in the lines just quoted. India possesses abundant raw materials for the manufacture of almost all the articles she requires, and she has the advantage of cheap labour.
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Still your mind in me, still your intellect in me, and without doubt you will be united with me forever. If you cannot still your mind in me, learn to do so through the regular practice of meditation. — Shri Krishna (Bhagavad Gita) Come now, my Love, Even the Guru pleads for me. — Guru Nanak God cannot be seen so long as there is the slightest taint of desire. Therefore have your minor desires satisfied, and renounce the major ones through right reasoning and discrimination. — Shri Ramakrishna It is the level-headed man, the calm man, of good judgement and cool nerves, of great sympathy and love, who does good work and so does good to himself. — Swami Vivekananda  |
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