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Dealing with China Profile |
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Judicial review, a check on Parliament’s
powers On Record Judges’ Bill: Modify the
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Dealing with China
IN his Acceptance Speech on being conferred the Gandhi Peace Prize at the Ashoka Hall of Rashtrapati Bhavan, Nobel Laureate Desmond Tutu praised Mahatma Gandhi and India for all that they did for South Africa to win independence. Towards the end of his speech, he said he wanted India to help Tibet get freedom and Aung San Suu Kyi in Burma (Myanmar) her liberty. He was careful not to mention China in the first case and the military junta in Burma in the second. Apparently, Tutu’s reference to Tibet, more of wishful thinking, frightened New Delhi. Foreign Secretary K.P.S. Menon was seen scurrying about at the reception which followed the prize function. Apparently, he rushed from the nearby Foreign Office to arrange for an immediate disclaimer with the concurrence of External Affairs Minister Pranab Mukherjee who was at the reception. A short statement by the Ministry of External Affairs said: “It (India) recognises one China and treats Desmond Tutu’s remarks as personal.” Of course, they were personal because he does not officially represent his country, South Africa. But his remarks reflect certain values with which India is associated. These are the values which guided Jawaharlal Nehru to give the Dalai Lama shelter in India, knowing well that it would one day cost the country dearly. China’s annoyance with India began from that time and the 1962 hostilities were the fallout. One does not know what was the hurry to issue the clarification within minutes of Tutu’s remarks? All know India’s position. It has stated many a time before, particularly the pronouncement that it has accepted the suzerainty of China over Tibet. Beijing knows that New Delhi has never helped Tibet in its struggle which still continues. Then where was the need for a clarification? It indicates fear, not an apprehension of misunderstanding. If after striking the rapprochement, India had to hurry with the disclaimer it means that the relationship is still one-sided. The release of old papers by China at this time to allege that India fired the first shot in the 1962 war shows that Beijing wants masters, not friends. The Manmohan Singh government should know that Dalai Lama has himself changed his stand from independence to autonomy. What he wants is autonomy within China. The January issue of News from China, an official publication of Beijing, has described Lhasa as the capital of Tibet, “an autonomous region.” There seems to be some common ground. The talks which the Dalai Lama’s representative is presently holding with China are reportedly on the question of autonomy, not freedom. Why should India feel nervous if someone, not In fact, one was impressed by the Dalai Lama’s address to the Tibetans at the Buddhist conference in Delhi the other day. He exhorted them to learn Chinese, the language which he said they would be using in Tibet. The Dalai Lama’s was a Gandhian approach which China does not appreciate today but will do so tomorrow. People are bound to be worried about the extent to which New Delhi is going to placate Beijing on the border question. National Security Advisor M.K. Narayanan said the other day that they were discussing Arunachal. Where does Arunachal come into the picture? That is our territory. The Dalai Lama who should know has also testified so in a recent statement. By all means, we should be flexible in measuring claims and counter-claims. But we should not entertain claims on the territory which is ours and beyond question. In contrast to the clarification on Tibet, New Delhi was mum about the Myanmar leader Aung San Suu Kyi. Is it because Myanmar is nowhere near China in power? In fact, Myanmar is wanted more than China to defeat the hostile Nagas, the United Liberation Front of Assam (ULFA) and such other elements operating from Myanmar or near its territory. Delhi has tried to befriend Myanmar even at the expense of its image. At one time India was in the forefront of struggle for Aung Kyi’s freedom. She represented democracy and her detention was a challenge to the world’s conscience, so said New Delhi. But now it has changed its tune because the security forces feel that Myanmar has to be won to quell the insurgency in the northeast. Aung Kyi has been dropped like a hot potato and New Delhi’s new love is the military junta in that country. Its top leaders have been invited to India and given a red carpet reception. Top Indian officials have gone to Myanmar. Mukherjee was there recently and reportedly promised to supply arms to the military junta. It is sad that New Delhi should be doing so in the year when it is celebrating the birth centenary of Mahatma Gandhi’s satyagraha, an enunciation of truth and values. Aung Kyi has been suffering all by herself for years. If there is any country which should have stayed by her all through, it is India. It is a pity that it has jettisoned her. But then, Prime Minister Manmohan Singh admitted at the function, “Few of us have had the courage to practice what Gandhiji preached.” How New Delhi lives in fear is clearer from US envoy to India David Mulford’s statement that the US will be following Mukherjee’s visit to Iran “with interest” for any violation of its legislation — the Iran and Libya Sanctions Act 1996. “They should be aware of it,” Mulford says. Under the Act, the US government is required to penalise any foreign firm that invests more than $40 million in the energy sector of either country. Whether or not America does invoke the closure is not pertinent as its Ambassador’s statement from the Indian soil itself. We had the British viceroys when we were ruled by London. Now we have the American ambassadors who behave like the viceroys when we are our own masters. Let’s see what the US does now that Mukherjee has visited
Tehran.
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Profile During his 26-year-long career in the IAS, he was Collector and District Magistrate of the perennially drought-hit Kalahandi district of Orissa. Later, he functioned as Joint Secretary in such ministries as Finance and Commerce. At 47, he quit the IAS to break from the bondage and write, as he says, “at my own pace…it is so satisfying”. The appalling poverty in Kalahandi moved him and left an indelible mark on his psyche. Later, he wrote a poem, titled, Kalahandi. A stanza says: In another stanza, the poem says: Come, take a close look at Kalahandi; in the insincere tears of false press statements, in the exaggerated statistics of computer print-outs, in the cheap sympathy expressed at conferences and in the false assurances presented by planners. Dr Das, popularly known as JP, had a bitter experience of bureaucratic functioning as Kalahandi Collector when famine hit the region in 1965-66. Apprehending that sufficient stocks of rice could not be procured to meet the food situation, he sent a report to the state government. At the same time, he restricted the movement of food grains outside the district and issued instructions to railway station masters not to honour any indent for dispatch of stocks from Kalahandi. His higher ups rejected his decision and wrote: “We have no doubt that there is more rice in your district than you imagine and further that the crops of the current year will suffice for the year’s supply. You must on no account interfere with the legitimate trade, either import or export”. This shows how the high echelons of bureaucracy do not always understand the situation in the field, says JP. Strangely, a similar letter was written by the District Magistrate of Balasore to his Revenue Divisional Commissioner Ravenshaw in 1866. His suggestions to tide over the impending drought too was rejected outright on identical grounds. Dr Das found the letter while researching for a book on the 19th century Orissa. Born in the temple town of Puri, Dr Das has now settled down in Delhi and taken to full-time writing . Known as a leading Oriya poet, playwright and fiction writer, he is also an art historian with several volumes on Orissan art to his credit. His books have been widely translated into Hindi, English and other Indian languages, and his plays performed in many languages in different parts of India. In his spare time, he paints and has held exhibitions of his paintings occasionally. JP has so far written 10 collections of poems, five plays, seven collection of short stories, one historical novel and a book of poems for children. What is remarkable about JP’s writing is the ease with which he adjusts himself to the demands of each genre that he handles. When he chooses to write a short story, for instance, he switches effortlessly to a naturalised socio-psychological mode which seems ideally suited to the narrator’s craft. His poetry, on the other hand, is essentially a kind of shorthand — a cryptic code which communicates largely through the use of powerful kaleidoscopic images. A variety of experience is explored with a voice deeply personal. Poetry, however, is his first love and he would like to be known more as a poet rather than a prose writer who dabbles in poetry. Parikrama, a collection of poems in Oriya, selected for Saraswati Samman, is a series of meditation on life and death, on the nature of time and above all remarkably on the art of writing poetry. One of 30 poems of the collection Parikrama, entitled, There are No Islands, gives an idea of the favourite theme and images of Dr Das’ poetry: He writes, “Poetry cannot be banished. It returns at will at Plato’s Republic, to Stalin’s Siberia, to Pokhran and to Kalahandi, following in the footprints of violence as it chronicles the descent of man. As with history, to poetry there is no end.” |
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Wit of the week
— Actress Divya Dutta Writing does not come from simply being happy. That would make a really bad book. There has to be something more to it than that…I’m not worried about the actual writing. Of course, if I write a bad book I will be depressed, but actually I’m longing to getting back to it all. — Booker Prize winner Kiran Desai The issue in question is not the elimination of private health care, but the expansion of public health care. In thinking about health as a human right, we must seek an adequately capacious view of private and public actions for better health. — Nobel Laureate Amartya Sen Albuquerque city has a lot of options to keep people fit — everything from gyms to hiking and biking. And because of these options, it is a very fit city. Albuquerque is turned on and recognition like this just fuels that phenomenon. Nothing succeeds like success, or I guess you can say nothing is better than fitness. — Martin Chavez, Mayor of Albuquerque on being adjudged as the US’ fittest city One sentence from any of the editors has the potential to reach millions. It can correct a wrong; it can create an image; it can plant a seed of understanding. — External Affairs Minister Pranab Mukherjee Fidel Castro is getting better by the day. He is doing plenty of exercise. He has a phone next to him which he uses a lot. He is consulted on the most important matters. — Cuba’s Acting PresidentRaul Castro — Railway Minister Lalu Prasad Yadav — Actor Sanjay Dutt |
Judicial review, a check on Parliament’s powers
The Indian Constitution is regarded as “a symbol of social aspirations rather than as the formalised rule for the exercise and control of political power”. The deliberation of incorporating an amending mechanism (Article 368) in the Constitution itself reveals the framers’ intentions to stress on the concept of constitutional dynamism. The Congress Party’s economic programme in mid-20th century focused on the abolition of Zamindari and bringing about agrarian reform legislations. The social revolution being put at the top of the agenda called for social, economic, political justice, mobilisation of national resources for development and providing equality of opportunity for all through changing property relations and removing ‘man-made’ inequalities. However, the legislations enacted were threatened due to the courts’ strict interpretation and hence endangering the entire economic programme. To immunise the legislations and fully secure their validity from challenge in the courts on grounds of violation of fundamental rights, the First Amendment Act 1951 was enacted which brought Article 31A and 31B along with the Ninth Schedule in the Constitution. The effect of Article 31B is that if any Act, regulation or any provision is inconsistent with or take away or abridge any of the fundamental rights or have been declared void through an adverse judicial pronouncement, then once such Act or regulation is put in the Ninth Schedule the defect shall be deemed to be cured retrospectively, and such enactment assumes full force and vigour. By being accorded with retrospective effect, it initiated a new technique of bypassing judicial review. Judicial review is a concept which came to be established in the US in the case of Marbury v Madison by John Marshall C.J. It was observed that the Constitution is the paramount and the supreme law of the land and if an ordinary legislation is in conflict with it, then the Constitution must prevail and to that extent any law repugnant to the Constitution is void. The Constitution enjoins the courts to enforce only those acts which are “in pursuance of the Constitution”. Thus, judicial review puts an obligation on the judiciary to ensure fair play of the government activity in the light and spirit of the Constitution, contained largely in Parts III and IV, ensuring a system of checks and balances and reaffirming the supremacy of the Constitution. In Keshavananda Bharti vs Union of India, it was observed the power of amendment as contemplated in Article 368 allows the amendment of the fundamental rights. However, it is not an absolute and an unleashed power. It bears certain implied limitations, implying that a constitutional amendment entails the Constitution’s survival itself. Certain provisions are so intertwined in the Constitution that they can be regarded as the soul of the supreme document, constituting its basic structure, and if changed or removed, it can lead to the creation of a new Constitution and this action will be a nullity. For the amending power is different from the constituent power. While the constituent power was exercised by the Constituent Assembly which approved the Constitution, the amending power is exercised by Parliament which has been formed under the Constitution. Therefore, since Article 368 enumerates and bestows amending power on Parliament, the same cannot be used to destroy the Constitution. The use of power is different from the abuse of power and the power under Article 368 cannot be used to amend the basic structure of the Constitution. The basic structure is binding on both the legislature and the judiciary. It was realised that the fundamental rights were means to an end as specified in Part IV. In this context, it was thought that the Ninth Schedule is not a fresh look or a second thought but a contemporary practical exposition of the Constitution and hence not a violation of the basic structure. However, Article 31B (to be read with Ninth Schedule) cannot be used in a manner that overrides or subverts the limitations on the amending power under Article 368 and only if the protection of the Ninth Schedule is availed of in furtherance of the purpose for which it came into being and the same is in consonance with the basic structure of the Constitution shall it be valid. Consequently, the nine-judge Constitution Bench of the Supreme Court in I.R.Coelho vs State of Tamil Nadu unanimously ruled that all Acts and regulations included in the Ninth Schedule prior to April 24, 1973 will receive the full protection of Article 31B and thereby will not be open to challenge on the grounds that they are inconsistent with, or take way or abridge any of the fundamental rights enshrined in Part III. However, Acts and regulations included on or after April 24, 1973 shall not be granted the protection of 31B as they would have to face the judgement of Keshavananda Bharti and thus only if they are not violative of the basic structure of the Constitution will they be incorporated in the Ninth Schedule (reiteration of Waman Rao vs Union of India). Therefore, in the absence of guidelines with regard to the nature of the legislations which can be inserted in the Ninth Schedule, the power of judicial review will serve as a check as the courts are active champions of social justice and crusaders for ending poverty, ignorance, disease and inequality of
opportunities. The writer is associated with the National University of Juridical Sciences, Kolkata |
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On Record
THE International Accounting Standard Board (IASB) is an independent, privately funded accounting standard setting body based in London with the support of various countries. Broadly representative advisory international bodies and regulators like IOSCO, EU, national standards setters and World Bank are helping it towards increasing convergence of national accounting standards with the International Financial Reporting Standards (IFRSs). In India, the accounting standards are formulated by the Institute of Chartered Accountants of India (ICAI), which is largely harmonised with the IFRSs. But why is IASB keen that India moves towards full convergence of its accounting standards with IFRSs and what will its benefits be to India? IASB Chairperson Sir David Tweedie, who was on a visit to India for an interface with Indian professionals and government officials, explained the relevance of IFRSs in an interview to The Sunday Tribune. Excerpts: Q: How many countries in the world are IFRSs compliant? A: At the moment 110 countries are IFRS compliant and this number is expected to go up to 150 by next year. Q: How significant is IFRS for India? A: I think it is very important for India because more and more countries are switching over to IFRS fast to attract more and more investment and raise capital at lowest possible costs. At the moment there is a question mark on India as it is still not IFRS compliant. In several countries they do not understand the difference between the American or International accounting standards and Indian accounting standards. So, the investments from those countries would flow to India at higher costs. Q: Will the adoption of IFRS help only Indian companies operating globally? A: No. It is not only the companies which are global which will benefit but also Indian companies trying to attract investments in this country. The cost of attracting investments by these companies will be lesser if IFRS is followed. Q: The ICAI has been maintaining that its accounting standards have been set to suit the domestic legal framework. A: There are differences. Though most of them are really small and not bigger ones. In fact, what we are looking at is that wherever India has a better answer we will change and wherever we have a better financial accounting standards we expect India to change. What we are really going to do is to look at various issues and decide on what is the best accounting standards and wherever India needs to change we would expect the Government of India to move towards the best standards and remove the impediments (legal). Q: The ICAI has already set up a Task Force for suggesting ways to go for full convergence of India with IFASs. What kind of assistance is the IASB extending? A: Right now two of our Board members are working with them (ICAI officials) to identify all the differences that existed among the two accounting standards and to decide where we should change or India should change and then it is left to the Indian government to enact the changes that are needed. Q: How many Indians are represented in the IASB? Are there plans to expand expand the Board further? A: The IASB consists of 14 people. But no Indian at present is represented. I think we will have to change because the Board from the beginning had six North Americans, five Europeans and the remaining from the other countries. I would like to have three North Americans, three Europeans and the rest from other parts of the world. In the next couple of years when India adopts IFAS, well, I believe there will be changes (in the composition of the Board) and you (India) could also be in. Q: Are there any plans to converge USGAPs with that of IFRSs? A: Yes. In fact, we have entered into an agreement to work on the convergence by 2009 between the United States Generally Accepted Accounting Principles (USGAPS) and
IFRSs. |
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Judges’ Bill:
Modify the approach DOES the Judges (Inquiry) Bill, 2006, seeking to establish the National Judicial Council (NJC) destroy the independence of judiciary? Does the code of conduct created by the NJC make judges subservient to someone outside the Constitution? Any such assertion is not born out of the Bill. The NJC is a sort of in-house institutional arrangement, to be regulated by seniormost judges. Its composition partakes of the Supreme Court collegium, which evaluates the performance of High Court judges for their elevation. If so, why should the NJC be distrusted in the task of probing charges of misconduct of brother judges? Clearly, the fear of unwarranted allegations is unfounded. The complainant has to prove his allegations as also record that he is aware of the punishment for levelling frivolous or vexatious charges (both simple imprisonment for one year and a fine of Rs 25,000). Moreover, the NJC may not entertain a complaint if it feels that there are no grounds for inquiry. For protecting the judge’s dignity, the inquiry shall be held in camera. Besides, the complainant and any other person who participates in the preliminary inquiry has to give an undertaking to the NJC that he will not divulge anything about the inquiry to anyone, including the media, without its written approval. Violators shall be punished with simple imprisonment, or fine or both. Nor can there be a breach of this confidentiality by invoking the Right to Information Act. The NJC may entertain a complaint against a judge from any person. To this sweeping provision of sub-section (1) of Section 8 of the Bill is added a non obstante clause in sub-section (3) permitting the NJC to entertain a complaint from any other source. How this latter clause is differentiated from the former needs clarification. Section 16 empowers the Centre to appoint, if requested by the NJC, an advocate to conduct the case against the judge. This looks strange in the realm of the Bench-Bar relationship! The Bill’s merit lies in modifying the existing extreme approach. We do come across cases wherein the charge of misconduct proved does not warrant the judge’s removal from office, and yet it might require issuance of warning, advisory, censure or admonition, public or private, depending upon the degree of the charge established. The judges dispensing justice ought to observe, in their official and personal capacity, the norm that “justice must not merely be done but it must also be seen to be done”. Apparently, this has prompted the government to prescribe that the intended code should include that every Supreme Court or High Court judge shall annually give statement of his assets and liabilities to the SC or HC Chief Justice. This is bound to strengthen the rule of law by augmenting the judges’ own
dharma. The writer is a former Dean, Faculty of Law, and UGC Emeritus Fellow, Department of Laws, Panjab University, Chandigarh |
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RECIPIENT of K.K. Birla Foundation’s prestigious “Saraswati Samman”, Oriya poet Dr Jagannath Prasad Das, is a unique person. One may call him two-in-one — once an IAS officer and now a full-time poet and writer. He quit the coveted Indian Administrative Service 13 years back to take to full-time writing.
I had never thought Veer-Zaara would become so big and that my work would be talked about so much. I realised the enormity of the whole thing when we went to Pakistan. The film was already a huge hit there. I was mobbed. I had suddenly become a rage. For the first time in my life, I felt what stardom was all about and how heady it could get.
I’m a devotee of Goddess Durga. I’m not a pakhandi. I’m the darling of the country. The ‘Lalu Bomb’ was famous during Diwali, but no one was buying Nitish phuljari’. No one is angry with me. I want to bring the poor into the mainstream. The business class and capitalists are our Laxmi. I am proud of the Tatas.
Why do these people speculate? I had to clarify that I am not married. And if I was, what is wrong? It is the most pious, most beautiful thing to be married and have a family. If I have got married, why should I hide it?n