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Legitimising tyranny
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Judicial delays Lokpal: Victim of political and official apathy
On Record
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Legitimising tyranny
IT is now more than 60 years since countries in the Asian region achieved independence. Over time the pattern of government has changed in many of them. Most started with a parliamentary system which still prevails in India, but in many parts of South and South East Asia, there has been a shift to the presidential form of government. In theory, this is also a democratic form of government since the presidential office is an elected one. Too often, however, the presidential form of government lapses into a dictatorship. The temptations of absolutism are great and the task of an independent judiciary a trying one. There is always the charisma of the national leader trying his best to relieve the poverty-stricken masses, only to be thwarted (so it is said) by a bench of non-elected judges who cannot gauge the real aspirations of the people. Often presidential forms of government in this region have yielded to regimes with Generals or Field Marshals in control – where there is an outward semblance of law and order but no rule of law. Judges are required to take an oath not to a Constitution but to an Emergency Order. How does a judiciary relate to an autocratic regime? Over the years, several non-governmental organisations had tried to set down principles conducive to an independent judiciary. The International Commission of Jurists and its Centre for the Independence of Judges and Lawyers, the International Bar Association and the Law Association for Asia and the Western Pacific (LAWASIA) each attempted their own formulations, all of which proceed on the basis that there is a yardstick of minimum standards which can be applied to all functioning judicial bodies. Their efforts were deliberated upon at the World Conference on the Independence of Justice held in Montreal in June 1983 which was attended by representative of non-governmental organisations, the United Nations and members of international courts, including the President and other Justices of the International Court of Justice. Ultimately, a UN Declaration on Independence of Justice was passed by the General Assembly in 1985. This Declaration today is the only yardstick by which the independence of a nation’s judiciary is tested. In martial law regimes, even the sine qua non of an independent judiciary, a guaranteed tenure of office, is denied. The reason is the reluctance to govern by an objective set of laws, the tendency to frame rules to suit the whims of those in charge of the governmental machine. I remember the charming story related in Bangalore some 10 years ago at a seminar of the Indian Branch of the International Law Association by a sitting judge of the Supreme Court of a neighbouring country. He was a fearless judge and internationally recognised as such: it was he who had been nominated to accept the Nobel Prize on behalf of Amnesty International. He was very friendly with the man who later became the President and Chief Martial Law Administrator of his country. That President is no more and so one can relate the incident without causing offence. The President turned to his friend the Judge and asked him to draft a constitution for the country, the administration of which he had just taken over. The judge said: “When I was a young boy at Calcutta, there was a famous playwright and two famous actors – each having a different theatrical style. Whenever the playwright was commissioned to write a scenario, he would ask for which one of the two actors it was intended, so that the play would suit the talent and ability of that actor. Do you want me to write a constitution like that playwright wrote his play?” The President saw the point and asked someone else to do the drafting. It was only the smouldering memories of a past friendship that saved the judge’s life! Tailor-made constitutions imposed by force of arms are an impediment to the establishment or continuance of an independent judiciary. The provision for compulsory retirement of the Head of the Judiciary in military regimes was not unknown in Pakistan. In September 1979, when Yakub Ali, the then Chief Justice of the Supreme Court of Pakistan, displeased the authorities by granting an interim order on Begum Bhutto’s petition challenging the detention of her husband (Zulfikar Ali Bhutto) he was also made to go–by a Presidential Order reducing the retirement age for a Chief Justice! Some cynics say he deserved it. They cannot help but recall that it was the Supreme Court of Pakistan which, in October 1958 (in Dosso’s case) gave legal recognition to the martial law regime which abrogated the established Constitution. The judges with their fine intellectual attainments perceived what one author had wryly described as “constitutional contours in extra-constitutional actions”. In fact, the Justices had legitimised tyranny. Dosso’s case was over-ruled 14 years later by the same Supreme Court when the country was in the grip of another martial law regime. It was the case that went by the name Asma Jilani vs. Government of Punjab – it was the same brave and intrepid Asma Jehangir who is today under house arrest in Pakistan for defying the insolent might of a military dictator. The court ruled in 1972 in Asma Jilani’s case that martial law was illegal and that the military commander was a usurper. But it was too late. Constitutional transgressions had long since been recognised as permissible – and martial law had become part of the legal culture of the country. That is how President Musharraf had been emboldened to suspend Pakistan’s Constitution on November 3, 2007. In a biography of Lord Atkin – the great champion of liberty who is particularly remembered for his dissent in Liversidge vs. Anderson – it is recorded that he once wrote to a friend that he believed that an impartial administration of justice – “is like oxygen in the air; they (the people) know and care nothing about it until it is withdrawn”. Wise words. Words to ponder over – not only for the people of Pakistan but for the rest of us all in this great sub-continent. |
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Profile Those who know Gopal Gandhi — this columnist is one of them — may vouch that he has imbibed the trait of his grand parents. He is also grand son-in-law of C. Rajgopalchari, popularly known as Rajaji. His father, Devadas Gandhi, was married to Rajaji’s daughter. The second generation of the “real Gandhi” has indeed inherited the Mahatma’s humility and Rajaji’s mettle. The modern society rejects the theory of samskar, passing from one generation to another, but the medical science is now veering round to the point that genealogical similarity is quite possible. Years back, a newspaper headline described Gopal Gandhi’s incognito visit to a draught affected village of Gujarat as “Gopal in Gandhi’s footstep”. True to Gandhian style, he slogged at a relief site, slept under a tree and did not bathe for four days to experience the miseries faced by the famine-hit people. Amazingly, the villagers in the Banaskantha district did not know who the spectacled, tall and slim man, who mingled with them so freely, was. Sheer simplicity of the man, genuine approach to a problem and sincerity of purpose impressed them instantly. They would not believe when they were later told that he was grandson of Mahatma Gandhi. A Gandhi in Gopal must have been rekindled when he paid a visit to Kolkata’s SSKM hospital to talk face-to-face with those injured in Nandigram. He was convinced that an unprecedented crisis needed a strong response. It was rare for a Governor, that too, of Gopal Gandhi’s stature, to speak out openly against the state government. A Governor should not keep quiet if the state government that operates under him violates basic principles of governance. Gopal Gandhi reacted in a manner befitting a Governor, caring less for Marxists’ unwarranted attack on him. “The manner in which the recapture of Nandigram villages is being attempted is totally unlawful and unacceptable”, he told the Left Front Government. Developments in Nandigram have been worrying Gopal Gandhi since March 14 when 14 persons died in police firing. Late in October, Justice V.R. Krishna Iyer, wrote to the Governor “… I feel it my duty to request you…to consider what steps, if any, may be taken to see that the people of the state, particularly Nandigram, enjoy security and liberty”. Incidentally, Justice Iyer was a minister in India’s first Communist government, led by EMS Namboodiripad in Kerala in 1957. Gopal Gandhi wrote back: “The continuing violence and counter-violence there have caused me great anxiety and sorrow... An abatement in the tension and violence has, remained tragically elusive, with the making and hurling of hand bombs, resultant deaths, displacement of people from homes, disruption of livelihood and school schedules continuing.” When time came, Gopal Gandhi acted as assured to Justice Iyer. Gopal Gandhi was born in New Delhi in 1945. He read English literature at St Stephen’s College between 1961 and 1964. Doing his masters in the same subject from Delhi University in 1966, he joined the IAS and served in different positions in Tamil Nadu and at the Centre until 1992. He took voluntary retirement from the IAS in 1992. Later, he was appointed the first Director of the Nehru Centre in London. Later, he became India’s High Commissioner in South Africa and Sri Lanka. K.R. Narayanan appointed him as his Secretary when he was the President. A prolific writer, Gopal Gandhi penned an article in 1997 on how the legacy of Mahatma Gandhi embarrassed him. The article was titled, “Gandhi’s legacy” with a sub-tile, “For 50 years we have enshrined him. We must now enfranchise him again”. As High Commissioner, he visited, Pietermartizburg, the Railway station on which Mahatma Gandhi was thrown from a first class compartment because his colour was black. Writes Gopal Gandhi: “…Nor can I feel I deserved the honour of detraining at Pietermartizburg Railway station., earlier this year, to a welcome from the Mayor of the city with these words: This Mr High Commissioner is an act of atonement for what was done to your grandfather here, on this very platform in 1893”. Gopal Gandhi wrote: “I shivered no less in my bandgala (suit) than the tossed-out Barrister that winter night 103 years ago”. He never thrived on the legacy of Gandhiji as many fake “Gandhis” seek to do. |
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— General Pervez Musharraf on being asked when the
emergency would end in Pakistan — Former Prime Minister Atal Bihari Vajpayee’s word of advice for
Karnataka Chief Minister
B.S. Yeddyurappa I have decided not to take any decision or announce any scheme till I seek the vote of confidence as the Janata Dal (Secular) leaders have expressed their displeasure at Wednesday’s decisions. Till then, I will be visiting various temples and mutts in the state. — B.S. Yeddyurappa I am not above my party and I cannot deny my political identity as a CPM man. I am a Chief Minister and at the same time a CPM man. But since I took oath of office, I will have to function as Chief Minister. — West Bengal Chief Minister
Buddhadeb Bhattacharjee A political leader can make a distinction between ‘us’ and ‘them’, but a Chief Minister can’t. What Buddhadeb has said is uncivil. The coin analogy is improper. He shouldn’t have used such language. — Filmmaker Gautam Ghosh I wear khadi daily. I feel comfortable wearing it. I will be the last person to say khadi should not be used. Khadi is Congress’ identity and it will be a permanent identity; it is a symbol against economic exploitation. — Rahul Gandhi, MP and Congress General Secretary Even though I am physically weak, my thoughts are far from tired. As long as I have the people on my side, I will never tire. — Shiv Sena supremo Bal Thackeray — Sania Mirza — Union Tourism and Culture
Minister Ambika Soni |
Judicial delays
Punjab and Haryana High Court Chief Justice Vijender Jain inaugurated a mobile court at Talwara recently. The aim was to deliver justice at the doorsteps of the litigants and expedite justice. However, as with other reform measures, it met with a roadblock. Successive Law Commissions have been appointed to examine the problem of huge backlog of cases, the first being under the chairmanship of M.C.
Setalvad. Over 100 voluminous reports have been submitted to the Centre so far. The Justice Mallimath Committee too has submitted its report on criminal justice. The Criminal Procedure Code was re-enacted inn 1973. Major amendments were made in the Code of Civil Procedure in 1976, 1999 and 2002. However, the resultant reforms have been cosmetic. The system remains practically the same – colonial and slow paced. Steeped in Anglo-Saxon jurisprudence, the judicial mindset is very slow to change. As it is, the scope of judicial reforms is vast and all embracing. It inter alia includes the operation and effect of laws, substantive as well as procedural, cut litigation, speed up disposal of cases (including liquidating the huge backlog) and make justice less expensive; the organisation of courts, civil and criminal; recruitment and training of judiciary at the grassroot level; the appointment of High Court and Supreme Court judges and ensuring transparency in their selection; to ensure judicial accountability of the higher judiciary; and improving the quality of legal education. For reasons of space, this writer would like to focus on the most important of them – the backlog of cases in the courts. The reasons for judicial delays are well known. Some are attributed to the government – lack of funds for providing the necessary infrastructure, appropriate courtrooms, the support staff and other paraphernalia. For some delays, the courts and judges may be responsible. Lack of proper training of the judges is another. The lawyers’ repeated pleas for adjournments and their strikes too contribute to delays. The litigants are equally responsible. The party having a weak case or a party in occupation and enjoyment of the suit property usually adopts delaying tactics. Delays in judicial systems prompt many people to avoid legitimate means of redress. In many cases, it leads to more crime and corruption. Delays in judicial process leave the victim, the perpetrator of crime and the observer, all bitter. The system’s credibility also gets eroded. In short, the cost of delayed justice is enormous. Mr Steven Flanders, an eminent federal judicial administrator in the US, outlined some measures in 1998 to expedite cases. These are, among others, getting rid of unnecessary formalities and simplifying the same; making the presiding judges accountable for prompt disposal of cases at their end; placing every law suit on a mandatory fast track; decentralisation of judicial administration; and the importance of alternative disputes resolution mechanism. These measures appear to be novel. Perhaps the situation demands them. Other remedies may also be noted. The government is the biggest litigant. Reducing government litigation involves assuring officers administering various Acts and statutes that bona fide decisions not exhausting all legal remedies and appellate processes will be respected by the authorities. The current ratio between cases and judicial officers is absurdly low. A phasewise programme to substantially improve this ratio is critical. The process of appointment of judges needs to be expedited. The vacancy position in many courts is alarming. Several procedural changes like adjournments, additional affidavits being filed etc. will speed up the process as suggested by the Supreme Court in the Salem Advocates Bar Association case. This can materialse only by a change in the judicial mindset through rigorous training of the new entrants to the judicial service and refresher courses and seminars for serving officers. It has been suggested in some quarters that in view of the huge backlog of cases, the judiciary should impose a voluntary moratorium for five years on court vacations. The proposal is laudable. But would their Lordships be prepared to make this small sacrifice for beleaguered litigants? Double shift in courts has also been suggested. But the proposal met with resistance from the Bar at some places where it has been tried. The birth pangs of judicial reforms are indeed acute. The Bench and the Bar are two wheels on which our justice delivery system moves. Healthy reforms in the structure and organiszation of the bar (i.e. lawyers grouping themselves into law firms etc.) shall harness the energy and talent of young lawyers who at present are mostly underemployed. This would ensure the presence and availability of counsels for both parties as and when the case is taken up. All this would result in better time management by courts. Cases shall start moving at a fast pace. More important, the active cooperation of the Bar in all proposed measures of judicial reforms is a sine qua non for their success. The enlightened Bar, which has been at the vanguard of freedom struggle, should extend its whole-hearted cooperation to judiciary in this venture. The mantra of cooperation shall smoothen the delivery of judicial reforms. The writer, a former District and Sessions Judge, is Past Member, Governing Council, Indian Law Institute, New Delhi |
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Lokpal: Victim of political and official apathy THE Ninth All India Biennial Conference of Lokpals, Lokayukts and Upa-Lokayukts held in Bangalore rightly called for conferring constitutional status on the institution of Lokpal. The Chief Justice of India, who attended the conference, had appreciated and endorsed the idea. However, it is doubtful to what extent this recommendation will be pursued to its logical conclusion. There is skepticism on this count because such conferences have become a ritual. Lokpals and Lokayukts meet to air grievances, demand more powers and resources for their proper functioning and then it is back to square one. The idea of Ombudsman type of institution for the country was first mooted by the First Administrative Reforms Commission of 1966. It recommended setting up of a two-tier machinery of Lokpal and Lokayukt to redress the citizens’ grievances and to check corruption and maladministration. Acting on the recommendations, the Centre tabled a Bill in Parliament in 1968 providing for such an institution. Even as the Bill was waiting passage, the Lok Sabha was dissolved and, consequently, the Bill lapsed. From then onwards, the Bill has met with the same fateful end. Since 1968, the legislation for Lokpal at the Centre has been tabled not less than eight times (last time in 2001) in Parliament but in vain. Every time it was introduced, it lapsed with the dissolution of House. The result: this institution has failed to see the light of the day at the Centre. Though 17 states have set up the institution, there are varying differences in their respective legislations with regard to their powers, functions and jurisdiction. A comparative analysis of the working of different state Lokayukts present a grim scenario. Whereas in some states, there is no occupant to this office, in others, the holder of this post is more or less toothless. In some states, the Lokayuktas complain of inadequate staff and poor infrastructure while in others the requests for sanction of prosecution or recommendation are gathering dust in the cupboards of the state governments. Consider the typical case of Haryana. Here the institution has been a victim of political and official apathy ever since its evolution in 1998. The first Lokayukt had to face an unceremonious exit after the Act was repealed following the change of guard in the state. Much worse, he had to approach the Punjab and Haryana High Court for claiming compensation for his unexpired tenure. Subsequently, the Haryana Assembly enacted legislation in 2003. Surprisingly, the incumbent was found only in 2006. Yet, till date, the state government has not framed the rules for purposes of legislation governing the state Lokayukta. All this depicts the casual and apathetic attitude of the state governments towards the institution. In recent years, various commissions and committees have stressed the need for establishing and strengthening of this institution. The National Commission to Review the Working of Constitution (NCRWC) set up in 2000, in its recommendations, has stressed the need to enact legislation on Lokpal. It recommended that the Constitution be amended to incorporate a provision making it obligatory on the state governments to set up the institution of Lokayukt in accordance with the provisions of legislation of appropriate legislatures. The National Common Minimum Programme of the UPA government at the Centre also envisages enactment of the Lokpal Bill. However, the ruling combine has done little in this regard. Even the Second Administrative Reforms Commission headed by Mr M. Veerappa Moily, had in its fourth report tilted, “Ethics in Governance” called for an urgent legislation on the subject as well as constitutional status to the institution of Lokpal. It recommended a Rashtriya Lokayukta at the Central level with a retired Supreme Court judge as the head, an eminent jurist as Member and the Central Vigilance Commissioner as Member-Secretary. The UPA government should, therefore, endeavour to enact such a legislation without any further delay. The best idea would be to have a single comprehensive Central legislation in this regard, as was done in the case of the Right to Information Act, 2005, which superseded all other state legislations on the subject. This aforesaid legislation should incorporate the best and ideal inputs and provisions from various state Lokayukt Acts which have worked efficiently and have stood the test of time. It is noteworthy that the Karnataka government has through an ordinance promulgated in September this year granted suo motu powers of inquiry and investigation to the state Lokayukt in respect of the IAS, IPS and other senior officers of the state government. Earlier, this power was enjoyed by only the Upa-Lokayukt, that too, in respect of lower rung officials. This is indeed a laudable step in the direction of empowering of this institution. The Central legislation should follow this guiding principle. In fine, if in the annual ranking of Global Corruption Index by Transparency International, Norway, Finland, New Zealand etc. are adjudged as clean countries, it must be realised that they were the very first to set up ombudsman-type institution in their respective countries. The writer, Advocate, Punjab and Haryana High Court, is based |
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On Record
THE National
Commission for Protection of Child Rights (NCPCR) is collecting data from the states to know the exact number of children in conflict with law (CCL) in the country. The exercise, NCPCR member Sandhya Bajaj says, is necessary to chart the future course of action to prevent more children from getting on the wrong side of the law, especially in India where each year more children are added to the population. A sizeable per cent of Indians are below 15 years and rural to urban migration is increasing. “We have to be cautious that our children do not fall prey to petty crime, trafficking and begging due to lack of education and other facilities,” she says in an interview to The Sunday Tribune. Excerpts: Q: How many children are in conflict with law? A: We have asked all the states to collect data from juvenile justice homes by December 31. Some states including Punjab and Haryana have already responded. The data will help us evolve strategies to reduce their miseries and prevent them from getting lured into criminal activities once they are released. As for the present status of children in conflict with the law, the majority of them often spend more time than required in JJ homes. The maximum time they should be spending in JJ homes is three years. But there have been instances when even if the child has committed a petty crime, he has had to spend more than two years in the JJ home because his trial took that long. These cases should be taken up in the first three months of a child’s arrival in the JJ home. Often when cases get delayed, children spend more time, increasing their chance of ending up as criminals for life. We are meeting judges to ensure speedy trial. We will ensure adequate legal aid for them. Q: How responsive or alert should the country be towards this issue concerning CCL? A: It is an important issue that concerns each one of us. Children are an important part of our social fabric. And with the number of young population increasing in the country we need to be much more cautious. Due to poverty parents in far-flung areas send their minor children to work in bigger cities and metros where some of them end up committing crimes like theft and chain snatching or becoming part of the begging network. Which is why the exodus from rural areas should be stopped and education becomes the right of every child. Since the NCPCR can only recommend and monitor enforcement of law, it is the responsibility of the government to see that children get proper education wherever they are in the country. It is also for the government to ensure that children who are detained are later rehabilitated. It is also important that parents are employed so that children do have to fend for their families. Q: Are you satisfied with the way they are treated by law enforcers, the police, JJ homes? A: No. We must ensure that the children do not repeat the mistake. But the way they are treated during the course of trial often does more harm than good. The atmosphere of JJ homes is more like prison for adults than correctional or reform centres. Conditions are harsh and a child charged with a petty theft may be housed with adolescent criminals. There should be proper segregation. Many children are also implicated in false cases due to enmity or family feuds. The police should be more careful while registering cases against children. Q: Which states are dealing properly with cases of children in conflict with law? A: Kerala is doing very well. Children are ensured speedy trial there. Bihar is the worst case. In states like Bihar and Chhattisgarh, children are being lured into naxalite activities which can be very dangerous. Q: What has the NCPCR done to solve problems like child labour or trafficking? A: We evolve guidelines and policies for making recommendations to the government so that action can be taken for preventing cases of child labour, female foeticide, trafficking, etc. Trafficking is quite high in Madhya Pradesh and Orissa from where children are trafficked to prosperous states like Punjab, Haryana and metros. Social problems like child labour, trafficking, begging are all inter-linked. Begging is an offshoot of trafficking and is a very big racket in cities. |
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Chief Ministership is not the end, but an instrument. It is not a prize, but a challenge to transform adversities and crises into opportunities; and to attain continued progress through good governance.
I am playing my best and will strive to achieve a ranking of 20 before the end of the 2008 season. Though I play both singles and doubles, singles is my specific focus.
Tailpiece: I have been thinking of a nose job for quite some years, so that I can get rid of my big nose. I don’t remember since when I have been thinking about it. The problem is I am too sensitive and I don’t know which hospital to
go.