O P I N I O N S

Perspective

Judicial accountability
It’s time for a debate
by Kuldip Nayar
IT is an anniversary of sorts. Thirtyfour years ago, on April 25, the then Prime Minister, Indira Gandhi, superseded three Supreme Court judges, the first of its kind in post-Independence India. Such was the arrogance of the executive that the announcement was made by All India Radio through an afternoon news bulletin.

Profile
Delhi L-G: man of guts, imagination
by Harihar Swarup
Delhi has a population of over 16 million and it is known as the largest urban agglomeration in the world. Also, India’s Capital has the highest death-to-accident ratio. Once described as “roads of paradise”, Delhi’s thoroughfares have virtually become death-traps with people lacking traffic discipline.

WIT OF THE WEEK
It was just a kiss on my cheek! What's the big hue and cry about?
— Shilpa Shetty on the controversy over Hollywood star Richard Gere kissing her at an AIDS awareness promotion programme in Delhi.

OPED

Struggle for democracy must go on in Pakistan
by Satish Kumar
Pakistan will march from military autocracy to political anarchy if the democratic leadership of the country does not enter the fray before it is too late. It is unfortunate that the people of Pakistan have been denied the benefit of a sturdy political leadership which would not shy away from a sustained struggle, sacrifice and even incarceration in the cause of democracy.

On Record
India making child adoption easier
by Vibha Sharma
Recently, the Ministry of Women and Child Development launched a revamped, user-friendly website for the Central Adoption Resource Agency (CARA) containing detailed information on procedures and guidelines regarding inter-country and intra-country adoption. Every year, between 3,000 and 4,000 children find a home through CARA, an autonomous body under the ministry with a mandate to find a loving family for every orphan, destitute or surrendered child in the country.

It won’t lead to idol worship
by Simranjit Singh Mann
I have read with deep interest your report, “SGPC drops move to buy Duleep Singh’s bust” (“Tribune Impact”, April 15, 2007), in which your reporter says that due to the influence of The Tribune, the SGPC will not bid at the auction where Maharaja Duleep Singh's bust is up for sale. Your paper has said that the SGPC has agreed that if the bust is purchased it would amount to idol worship which is prohibited in the Sikh religion.

Perspective

Judicial accountability
It’s time for a debate
by Kuldip Nayar

Illustration by Kuldip Dhiman

IT is an anniversary of sorts. Thirtyfour years ago, on April 25, the then Prime Minister, Indira Gandhi, superseded three Supreme Court judges, the first of its kind in post-Independence India. Such was the arrogance of the executive that the announcement was made by All India Radio through an afternoon news bulletin. The gazette notification was issued three days later.

The response by the three judges — Justice K.S. Hegde, Justice J.M. Shelat and Justice A.N. Grover — was bold and defiant. All the three resigned within 24 hours. That was the watershed. Since then, relations between the executive and the judiciary have never been the same. Both have aggressively protected their independence. In the process, both have usurped what was the grey area. The present sniping at each other is because there doesn’t seem to be more territory left to occupy.

During her rule, Mrs Gandhi went on to impose the Emergency in 1975 when the Allahabad High Court cancelled her Lok Sabha membership for a poll malpractice. This did not deter her from superseding subsequently the senior-most Supreme Court judge, Justice H.R. Khanna. He had given a dissenting judgment on the Emergency which other nine judges had endorsed without any qualm of conscience.

In fact, the executive’s wrath had begun long before the supersession. Mrs Gandhi had coined a phrase, “commitment”, as her yardstick to measure the loyalty of a judge, legislator or civil servant to her.

Those were the days when India was seeking to establish the socialistic pattern of society. The superseded judges, including Justice Khanna, were not considered “progressive” to be in Mrs Gandhi’s good books. It is another matter that 15 years later, when the Congress returned to power at the Centre, it began to demolish most of what it had established in the public sector to implement the theory of laisses faire or free economy which sounded the death-knell of self-sufficiency.

When the criterion of “commitment” was still in use, I asked Mrs Gandhi whether it meant leftist leanings, she stoutly denied that. She said “commitment” meant “loyalty to the Constitution”. She did not put her cards on the table, something which came to her naturally. She superseded the judges because she considered them to be in the way of her “progressive laws”.

The grievance she nurtured was the judgment (6-5) on the Golak Nath case in 1971 when the Supreme Court held that the Fundamental Rights enshrined in the Constitution could not be amended, abridged or abrogated by Parliament. She did not like the three senior judges restraining Parliament from making her “commitment” come true. There was also politics in the supersession because one of the judges was ideologically with the old guard in the Congress whom she opposed.

Things went on simmering and they came to the boil when the Supreme Court held in the Keshavanand Bharti case that Parliament could not change the “basic structure” of the Constitution. Secularism, democracy and India’s federal structure came within the ambit of the basic structure. Although the Supreme Court gave freedom to Parliament to amend the Fundamental Rights except those concerning the basic structure, the executive was not happy. The judiciary still remained the last word on what constituted the basic structure. Former Chief Justice Hidayatullah did suggest a wayout — the referendum — but the executive did not fancy the proposal.

Probably, it is healthy in democracy not to spell out everything. Certain concepts gather the content as the executive and the judiciary come into contact or conflict. Some kind of “friction” is necessary, as Chief Justice K.G. Balakrishnan said in Delhi at the annual conference of high court chief justices. The point to ensure is that the equilibrium is not disturbed either by the executive in the name of people or by the judiciary in the name of review.

Activism by either side can upset the applecart — something a democratic structure cannot afford. Prime Minister Manmohan Singh has rightly reminded the judiciary and the executive not to over-reach the dividing line.

Most of our neighbouring countries have played with the judiciary and tried to make it subservient to the executive. This has turned out to be disastrous for them. An over-active military has aggravated the situation. Even if there were to be an effort not to dictate, the very presence of men in uniform would make most judges fall in line. India experienced that when the Emergency was imposed; the magistrates signed even blank warrants of arrest.

Ultimately, the rhythm of democracy depends on the quality of judges. The nation cannot stop the election of undesirable members to Parliament or the state legislators because of the nexus between criminals, moneybags and politicians. At least, the appointment of judges can be independent. The judicial commission, proposed by the government, comprises judges alone. Eminent citizens have to come in to keep the appointments above politics. The current practice of collegiums of four or five senior judges selecting the appointees is like nominating the office-bearers by trade unions themselves. This is neither fair nor judicious.

The Constitution says on the appointment of judges that the executive should consult the Chief Justice of India before making any appointment. But the executive played havoc with this provision. The judiciary was a party when the word “consultation” included “concurrence.” Now it is the other way round. The judiciary makes all the appointments and transfers and the executive is nowhere in the picture. But there is no way to make the judiciary accountable.

Before amending the constitutional provision on appointments, the experiment of judicial commission should be tried. But the insidious campaign to have the “leader” among the judges as the chief justice is motivated. Even after 34 years we have not got rid of the poison injected by the suppression of judges. Anything done to tinker with the judiciary, however abrasive, may turn out to be a fatal blow to the system itself.

India is still seeking equilibrium between the judiciary and the executive, a sort of equation so that one upholds the obligation and responsibility of the other. That Parliament represents the people goes without saying because they are the ones who elect it. Their voice has to be pre-eminent. But they cannot get away with the legislation which is against the basic structure of the Constitution or does not measure up to the judicial scrutiny.

A public debate can help. The judges have to be made answerable. Members of Parliament and Assemblies go back to people to face their approval or rejection. The judges cannot be removed without a motion of impeachment passed by Parliament. Not even one case has made the muster since the implementation of the Constitution in 1950. Some way has to be found to put the fear of God in the minds of judges.

Profile
Delhi L-G: man of guts, imagination
by Harihar Swarup

Delhi has a population of over 16 million and it is known as the largest urban agglomeration in the world. Also, India’s Capital has the highest death-to-accident ratio. Once described as “roads of paradise”, Delhi’s thoroughfares have virtually become death-traps with people lacking traffic discipline. Significantly, 60 per cent of accidents occur at night when trucks pass through the Union Capital. High on the priority list of Mr Tejinder Khanna, appointed Delhi’s Lieutenant-Governor for the second time, is the task of how to decongest roads by constructing a third lane for the 30,000 trucks that zoom past the Capital’s roads.

Mr Khanna was also known for crackdown, in his first term, on building and land law violators and Delhi’s powerful builder mafia. That was, perhaps, the reason that when out of office, he was entrusted with the task of heading the special panel on Delhi’s illegal buildings and encroachments. The panel was constituted as part of the effort to contain public fury over demolitions and sealing. Its recommendations were later incorporated into the Master Plan for Delhi.

Little did Mr Khanna know when he was finalising the panel’s report that he would be appointed L-G for the second time and that he would have to deal with the sensitive sealing issue with the apex court breathing down the neck of the government to expedite the demolition of illegal structures.

Mr Khanna’s first stint as L-G was brief — he served from January 4, 1997, to April 14, 1998 — but during the 15-month span gained valuable experience. He moved to Delhi’s Raj Niwas a second time when the Capital is faced with the real estate conundrum and the assembly elections are virtually knocking at the doors. The rout of the Congress in recent municipal polls has brought home to the party’s leadership the need to retrieve the political ground lost by sealing. Mr Khanna’s solution to many of Delhi’s problems are contained in his path-breaking report. Among other things, the Khanna Committee had recommended a mixed land use pattern for Delhi’s industrial and commercial activity because that was a “sensible”, middle-of-the-road solution . As Chairman of the Delhi Development Authority (DDA), he will also be responsible for the implementation of Delhi’s Master Plan, which he has co-authored.

A Punjab cadre IAS officer, Mr Khanna rose to the high position of Commerce Secretary at the Centre before retiring. But, as a matter of fact, he never hung his boots and is still going strong. Throughout his long career, he handled ticklish issues one by one. When he took over as Commerce Secretary, India had begun implementing economic reforms and Mr P. Chidambaram headed the Ministry. Earlier, he was Director-General, Foreign Trade (DGFT). He thus managed to straddle two eras — the pre-reform one dominated by quotas and government-determined targets for exports, and the beginning of reforms and the global integration of the Indian economy. Later, working on WTO issues, he steered an approach that focused on providing Indian exporters trade access while conceding as little as possible.

Mr Khanna is known to be of the firm view that radical moves are necessary but, at the same time, there is great need for caution. He made this view internationally known when he told a conference in Singapore: “Even where the role of the state-owned enterprises has got diminished, their place is being taken by national manufacturing and business entities rather than by transnational corporations.”

Mr Khanna once again has stepped in when Delhi needs a person with drive, imagination and guts at the helm. His friends say: “He always takes over a crucial job at a crucial time.” This is indeed a crucial time for Delhiites. In his last tenure, Mr Khanna had Ms Kiran Bedi as his trusted aide, handling all the grievances routed to him. Will he have her again in his set-up or make her the Police Commissioner? She is very enthusiastic but there is no question of her stepping in anyone’s shoes, says the LG.

WIT OF THE WEEK

 

Richard Gere and Shilpa Shetty

It was just a kiss on my cheek! What's the big hue and cry about?

— Shilpa Shetty on the controversy over Hollywood star Richard Gere kissing her at an AIDS awareness promotion programme in Delhi.

Where there is gambling there is money, and where there is money, there is murder.

— Sarfraz Nawaz, former Pakistani fast bowler, on Bob Woolmer's death.

 

Garry Kasparov

I don't want to look back. I have a new life now.

— Chess master Garry Kasparov, who has now taken a plunge into politics as the leader of the Other Russia.

You and your smarmy pundits-and the smarmy pundits you have in your pocket-can take your war and shove it.

— Actor Sean Penn on President George W. Bush.

Karan Grewal

He didn't have a look of disgust or anger. He never did. There was always just one look on his face.

— Karan Grewal, suitemate of Virginia Tech's mass killer, Cho Seung.

So, my strongest advice to people-and I frankly try to do this myself-is, look with your own job for ways in which you can expand your contribution.

—Pfizer Vice-Chairman Jeff Kindler, who joined the drug multinational recently

Amartya Sen

Our vision of India can't be one that is half California and half Sub-Saharan Africa.

— Nobel laureate Amartya Sen

Kapil Dev

We cannot blindly copy the Australians or the West Indians. There people take their children for mountain climbing, river rafting, but here we would take them for tuitions.

Narain Karthikeyan

— Former cricketer Kapil Dev

I don’t speed on the roads, neither do I get impatient… But like everyone else in India, I want to tear my hair when I’m stuck in traffic.

 — Formula 1 racer Narain Karthikeyan

OPED

Struggle for democracy must go on in Pakistan
by Satish Kumar

Pakistan will march from military autocracy to political anarchy if the democratic leadership of the country does not enter the fray before it is too late. It is unfortunate that the people of Pakistan have been denied the benefit of a sturdy political leadership which would not shy away from a sustained struggle, sacrifice and even incarceration in the cause of democracy.

The creation of Pakistan on the basis of religion was not a matter of choice; it was a political necessity. But it did not turn out to be much of a blessing because invoking a religious identity for political purposes tends to arouse the fiercest antagonistic sentiments among human beings. It was the realisation of this truth that led Mohammad Ali Jinnah to suggest soon after the creation of Pakistan that religion should henceforth be abjured as a political tool. But this did not happen because Jinnah died too soon and the residual leadership did not have his vision. It fell prey to the temptation of using religious identity for the grossest and meanest gains in domestic politics as well as foreign policy.

When the military usurpers found that the religious sentiment had so gripped the imagination of the gullible and the faithful among the masses that they could be exploited in support of the military’s objectives at home and abroad, the military coopted the religious leadership in their designs. Evidence of this can be found during the Bangladesh crisis, the Bhutto downfall, the days of General Zia’s glory and General Musharraf’s obstinacy. The tactical alliance between the military and the mullahs gradually gave way to strategic partnership and power sharing. Contradictions between them came to the fore frequently. Political necessity, however, kept the alliance alive. But the most disastrous consequence of the phenomenon was the denial of political space to the democratic forces and a gradual abdication of responsibility by them.

The democratic movement in Pakistan was always weak. The restoration of democracy in 1988 was made possible by the accidental death of Zi-ul-Haq which was caused more likely by enemies within the establishment than by any revolutionary opponent. Two stints of the so-called democratic rule by Ms Benazir Bhutto and Mr Nawaz Sharif each were major exercises in power sharing by the military rather than any real transfer of power to the people. The military coup by General Pervez Musharraf did not meet with any viable democratic resistance.

Why is the democratic movement in Pakistan so weak, given the common background of freedom struggle in the subcontinent? The explanation normally given is the feudal power structure of Pakistan, which means the dominance of landed aristocracy and the prevalence of an authoritarian mindset among the political elite. But these are mid-twentieth century concepts and should have little relevance in an era which offers multitudinous new opportunities for income generation and gives massive international exposure to the people through mass media.

It must be noted that the people of Pakistan have always stood for democracy. The media have strongly espoused the cause of democracy. The intelligentsia seems convinced of the need for democracy. It is the leadership which seems to have failed them. More often than not, they have given reasons to believe that they keep looking for compromises with the military government of the day.

Pakistan’s democratic leadership should realise that the military-mullah alliance has taken the country on the road to disaster. The polity of the country is fractured. The society is disaggregated. The image of the country is tarnished. As regards the polity, the executive is nothing but a protector of the economic interests of the military as a class and their civilian cohorts. The legislatures are an embarrassment to those who occupy their seats in them, because of the ham-handed manner in which they are treated by the military rulers. The judiciary was buying its peace by endorsing the fiats of the military rulers until Chief Justice Iftikhar Chaudhry showed some signs of courage for independent judgment.

In Pakistani society, internal contradictions have tended to be sharpened during the last 60 years. It is amazing how a uni-religious society in a newly independent country proudly formed on the basis of religious solidarity should have allowed itself to be fragmented. The rise of sectarian violence has been coterminous with the dominance of religious extremism and its collusion with the military regimes during the last 30 years. Militancy in the name of jihad has not only made Pakistan, in the eyes of the West, the “epicentre” of international terrorism but also caused tremendous internal security problems within the country. The education system, whether in the fields of humanities and social sciences or science and technology, has lagged behind the contemporary world and its modernisation will pose a major challenge to any enlightened leadership. Economic growth has been there in the last few years but more on foreign doles than on diversified and well-rooted domestic development.

A beautiful, robust and well-endowed country like Pakistan, which has a highly significant strategic location and proud civilisation, stands at the crossroads. History has proved time and again that a country can make progress only if its people make progress, and this can be possible only if the people rule themselves. Opportunities in history come rarely, and must be seized when they come. The suspension of Chief Justice Iftikhar Chaudhry is one such opportunity. It has ignited the much-needed spark and aroused the dormant democratic consciousness of the people. Pakistan is fortunate that a section of its media has been espousing the cause of democracy and will continue to do so fearlessly. Pakistan also has an infrastructure of democracy in the sense that at least two of its mainstream political parties — the People’s Party and the Muslim League — are cadre-based.

The writer is the Editor, India’s National Security Annual Review, and a former Professor of Diplomacy, JNU, New Delhi.

On Record
India making child adoption easier
by Vibha Sharma

Renuka Chowdhury

Recently, the Ministry of Women and Child Development launched a revamped, user-friendly website for the Central Adoption Resource Agency (CARA) containing detailed information on procedures and guidelines regarding inter-country and intra-country adoption. Every year, between 3,000 and 4,000 children find a home through CARA, an autonomous body under the ministry with a mandate to find a loving family for every orphan, destitute or surrendered child in the country.

However, these are just CARA figures as many children are adopted through state-level agencies as well. But in the absence of a database, the exact number of abandoned, destitute and orphaned children is not known. Moreover, the long and tortuous adoption procedures often act as hurdles for those interested in adopting a child. The Sunday Tribune during a conversation with Minister for Women and Child Development Renuka Chowdhury found how her ministry was now trying to make the adoption procedure better.

Excerpts:

Q: How many children are adopted in the country?

A: Not too many. CARA figures for domestic adoption are around 3,000 and inter-country 1,000. Many children are also adopted through state agencies. But considering the number of abandoned, deserted or orphaned children, not many are able to find homes through adoption.

Q: Are there any figures or a data base to suggest the number of children in this category?

A: To be able to create a data base, monitoring is very important. More so now with an increasing number of HIV positive children being deserted or orphaned after their parents have died of AIDS. We are trying to create a data base so that we know exactly how many children are abandoned, deserted or orphaned in the country. If a child is abandoned or orphaned, it should be reported right from the village level onwards and the child’s particulars put up in the data base of the adoption system. Unless complete tracking system is in place, a database can never be developed.

Q: How will this faster, smoother adoption procedure you are referring to help those wanting to adopt a child?

A: At present the adoption procedure along with legalities involved takes about three to six months. The permission from the court takes a lot of time. The problem with the present system is that the waiting period is too long. You see a child and you get attached and here it takes months to complete the formalities. We have already started work to simplify and streamline adoption procedures to make it more transparent and smoother. Hopefully, the entire procedure can be completed within 20 days to six weeks. Some existing rules and laws need a re-look, some expanded and others done away with. We also hope that the judiciary is sensitised in this matter.

Q: But in a country where most adoption laws are often abused and children sold through fake papers, will not making the procedure faster actually aid people with unscrupulous intensions?

A: What we are planning to do is to remove hurdles by opening and revamping the adoption system. When procedures are smoother and smarter there would be no need for people to resort to illegal activities. It is only when people want children but get desperate due to lengthy procedures that they resort to, exploiting loopholes, or adopt other tactics.

Q: Are you also planning to promote a system wherein parents having one biological child are encouraged to adopt the second one?

A: I don’t think that people can be persuaded to adopt by giving them incentives. It can be done but we don’t want to do that. We want to give children to people who need them. There are many people who have their own biological children and still want to adopt which is wonderful. There are many single mothers who want to adopt these days. We have no problem giving children to them because I feel marriage does not qualify a person into becoming a better parent. There are other factors that help children secure a better future like love and affection. So, if someone wants to adopt he or she is most welcome but we are not going to run a campaign for it.

Q: How about following up to ensure that children well in their new homes?

A: This is something that we really want that CARA should have the power and the teeth, some kind of a tracking system, to look at adopted children after they have been given away.

It won’t lead to idol worship
by Simranjit Singh Mann

I have read with deep interest your report, “SGPC drops move to buy Duleep Singh’s bust” (“Tribune Impact”, April 15, 2007), in which your reporter says that due to the influence of The Tribune, the SGPC will not bid at the auction where Maharaja Duleep Singh's bust is up for sale. Your paper has said that the SGPC has agreed that if the bust is purchased it would amount to idol worship which is prohibited in the Sikh religion.

I offer to disagree with this illiterate, misleading and unhistoric approach to the Sikh religion. In the Sikh religion, we are prohibited from making idols of our Guru’s and the holy Guru Granth Sahib and also the worshipping of their pictures and photographs.

Maharaja Duleep Singh is a historic figure in Sikh history who is the legal link to the principle of Sikh sovereignty, because in 1849 after the annexation of Punjab by the British the Anglo-Sikh Treaty says that the sovereignty of the Sikhs will be restored after the then minor Maharaja Duleep Singh comes of age. The British cheated the Sikhs of their sovereignty as when Maharaja Duleep Singh became a major; they in trespass of this treaty obligation did not restore our sovereignty. Therefore, constitutionally and legally as per this Anglo-Sikh Treaty, the Sikh sovereignty lay under suspension and was not abrogated ever, even till 1947 when the British handed over power to Pakistan and India.

In 1947, India was partitioned on communal grounds as the Muslims argued that since the British displaced Muslim rule, they were legally and morally bound to hand over that power to them. Similarly, the British did not follow the legal principle by which the Sikhs had a better and stronger claim to sovereign power. As per the 1849 Anglo-Sikh Treaty, when the British left India in1947 they were legally and morally bound to restore the sovereignty of the Sikhs which they never abrogated. But in the case of the Muslims, in 1857 it was annulled and abrogated.

After 1947, the Sikh leadership not being satisfied with the promises which the Hindu-led Congress party made to them prior to 1947, its two representatives in the Constituent Assembly, Hukum Singh and Bhupinder Singh Mann (my uncle), did not sign the Indian Constitution of 1950. Therefore, the Sikhs have not lost their constitutional and legal claim to political sovereignty after their empire was suspended in1849. As such, Maharaja Duleep Singh is a very important figure in Sikh history who is a political and not a divine personality.

Therefore, it is only the SGPC authorities who have a lack of education and religious background who fell for The Tribune story and agreed to in not bidding for this precious artefact. Purchasing Maharaja Duleep Singh's bust will, in no way, lead to idol worship. If so, then by the same logic all the statues of Master Tara Singh, Maharaja Ranjeet Singh and other Sikh personalities are also examples of idol worship and should be destroyed! I depreciate this ignorant fanaticism creeping into Sikhism just like the Taliban destroyed all Buddhist history in the caves of Afghanistan when it came to power there in the 1990’s.

What is idol worship in Sikhism? Idol worship is like what the SGPC has done by placing a model of Darbar Sahib at the International Rajasansi Airport at Amritsar and the printing and display of our Guru's pictures and photographs.