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People getting confused The Rajdhani blast |
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In search of excellence
A Tribune Debate
A dose of Bacon
Towards the ‘European ideal’ A slum-free City Beautiful Inside Pakistan
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People getting confused Close
on the heels of the Supreme Court’s two-member Bench ruling against “judicial over-reach”, Chief Justice of India Justice K.G. Balakrishnan’s remarks on Thursday that the court was not bound by the judgement has caused confusion in public mind. There are also mixed reactions about the powers of the judiciary vis-à-vis the legislature and the executive. Conceptually, there should be no confusion. The three organs — the legislature, the executive and the judiciary — are guided by the doctrine of separation of powers under which each has its role cut out. The problem arises when one tends to encroach upon the domain of the other. In its ruling on December 10, Justice A.K. Mathur and Justice Markandey Katju denounced both judicial activism and over-reach and held that the judiciary should not exceed its limits and instead confine itself to its main role of enforcing the rule of law in letter and spirit. There was nothing wrong with this ruling as the Bench sought to underscore the imperative need for maintaining the delicate constitutional balance. However, this is silent on one question: who will undo the wrong in the case of executive inaction or arbitrariness and legislative lapses or dysfunction? The answer is unmistakably the judiciary. As the protector of the Constitution, it will have to ensure that the legislature and the executive, while exercising their powers, do not violate the provisions of the Constitution. In particular, through the power of judicial review, the judiciary can declare any law passed by Parliament or state legislatures as null and void if it fails the test of constitutional validity. If Justice Balakrishnan has expressed his reservations about the Mathur-Katju ruling, apparently, it is because of his view that the judiciary would need to play its due role mandated by the Constitution. Significantly, he has clarified that the decision to hear or dismiss a public interest litigation depended on the “specific issues” involved. Accordingly, a three-member Bench headed by him entertained a PIL on the pitiful plight of widows in Vrindavan and Mathura and issued notices to the Uttar Pradesh government and others. The notices are clearly guided by noble motive to ensure justice for the victims of societal neglect. The judiciary, however, would do well to tread with caution so that the delicate balance as enshrined in the separation of powers is not disturbed.
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The Rajdhani blast THE bomb blast in the Dibrugarh-Guwahati-New Delhi Rajdhani Express shows how troubled Assam continues to be, and the low level of security that plagues India’s railway network. While ULFA continues to be a significant source of damage and disruption in the state, Thursday’s blast is being connected to a militant Aadivasi group. If true, this is no doubt a spillover from the clashes between Aadivasi groups and local Assamese in Guwahati recently. The cult of violent retribution is so widespread in the state that any group with a grievance, imagined or otherwise, finds it easy to take to violence, harming public property and killing innocent people. Assam remains a troubled state. While the centre’s ceasefire with ULFA broke down last year due to continued intransigence and violence, ULFA appears to have come out the worse over the past few months. Hundreds of its ranks have surrendered, and many arrested or killed in operations launched by the security forces. They do present a continued threat however, and the rise of violence only adds to the state’s woes. Communal issues, with particular reference to Bangladeshi immigration, are ever present. Wise and effective administration and policing is the need of the hour. It is unforgivable that India’s rail network is targeted with such impunity by militants. Trains have become a soft target. This must change. Rail safety cannot be taken for granted. When fatalities occur, no amount of compensation can assuage bereaved families. The blasts on the Samjhauta Express, the Mumbai local trains, at Belakoba in West Bengal, and the Shramjeevi Express in UP are only the most recent cases. The Centre should make a comprehensive assessment of the threat, and meet it in full measure. Closed circuit television cameras and additional guards may well be required. Trains will continue to be targeted, and at unlikely places along the vast railway network. It is imperative that the threat is neutralised and people made to feel that it is safe to travel by Indian
Railways.
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In search of excellence THE selection of Nagpur-born Vikram Pandit as the CEO of Citigroup compels a fresh look at the oft-debated issue: why do Indians excel more outside than inside the country? Before Pandit, Indira Nooyi had grabbed the top post at Pepsi and Arun Sarin at Vodafone. They are all senior business executives. In enterprise the success of Sabeer Bhatia and the multi-million-dollar deal he struck with Microsoft are widely known. How Lakshmi Mittal has been taking over sick steel units and turning them around with Indian employees is now part of world corporate history. His takeover of steel giant, Arcelor, caught world attention. In space Kalpana Chawla and Sunita Williams have become household names and source of inspiration for girls across the nation. Punjab may be sinking financially, but Punjabis abroad are making a mark in business, politics and even agriculture. Lord Swraj Paul is an ambassador of British business. Ujjal Dosanjh and Herb Dhaliwal are among many Punjabis excelling in Canadian politics and holding positions of power. Malkiat Singh Purewal, based in British Columbia, produces the largest crop of blueberries in the world. The chief reasons for Indians blooming abroad are the world-class education and a conducive environment to do whatever one wants with a back-up of easy finance and excellent infrastructure. Talent is trusted and respected. Asking an Indian-American to shore up the fortunes of Citigroup, the world’s largest bank, which has suffered losses of $11 billion in the US subprime crisis, is an act of tremendous faith in an Indian executive. After the 1991 reforms, India has been changing too but the pace of change is slow. Quality education is beyond the reach of many. Jobs are scarce and doing business is difficult. Administrative hassles, red tape and corruption rob the faith of many bright youngsters, who prefer to struggle in a responsive and helpful set-up abroad to spending a life-time in
drudgery.
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One act of beneficence, one act of real usefulness, is worth all the abstract sentiment in the world. — Ann Radcliffe
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A Tribune Debate THE call by two Hon’ble judges to save the judiciary from itself is not late. Innumerable patriots have been helplessly watching a few judges in the name of activism, unwittingly pushing the judiciary towards a swamp from where retraction will be impossible. The front page banner headings in newspapers across the nation followed by editorial appreciations and the opinions expressed by those who grew up with this great institution praising the pronouncement have proved that this was the shot that was long overdue. Despotism, even if it is by judges acting in the name of the courts, should not be tolerated. It is heartening to note former Chief Justice Bhagwati supporting the Aravali Golf Club pronouncement. Yes, he was the father of PILs in India — but one has to look at the type of cases that he encouraged. The examples are cases of innumerable undertrial prisoners confined to Bihar jails for decades without anyone knowing why are they there, cases of bonded labourers, victims of Bhagalpur police atrocities and the like. And the present-day culture has been graphically described in the judgment under reference — the examples may be lifted from a High Court, but no one need doubt their application to similar proceedings in the apex court. But for this judgment, one feared that the posterity would brand the higher judiciary at a given time as an exclusive group of self- righteous missionaries keen to clean up the whole world except their own house. This judgment might not have declared the law if the observations are treated as mere dicta, binding nevertheless on all High Courts in India. It has started working. A Bench of the Supreme Court has already referred the issue to a larger Bench — a welcome development. The Chief Justice of India, however, presiding over a three judge Bench brushed it aside on the strength of number of judges on the Bench — not on the basis of substance. And it now appears free for all.Should this confusion be allowed to continue? PILs have come to stay — the question is how much? Or of dosage. The CJI will be doing a national service by constituting a large-enough Bench with a sense of urgency and without being trammeled by technicalities to redefine the parameters of judicial activism, in the light of experience gained or mistakes made. Such periodical course correction will be essential in this area where textbooks and precedents have no place. Whenever discussions on the subject take place, the late Justice R.S.Pathak’s foresight and wisdom exhibited way back in December 1983 in the case of Bandhua Mukti Morcha case, can be ignored only at our peril. The following excerpts from that landmark judgment on different aspects of activism are fresh as ever despite passage of time and worth repeated reading. About the postcard petition: “I see grave danger inherent in a practice where a mere letter is entertained as a petition from a person whose antecedents and status are unknown or so uncertain that no sense of responsibility can, without anything more, be attributed to the communication. There is good reason for the insistence on a document being set out in a form, or accompanied by evidence, indicating that the allegations made in it are made with a sense of responsibility by a person who has taken due care and caution to verify those allegations before making them”. On the tendency of individual judges who project themselves as saviours of the society: “The conception of the court as a loose aggregate of individual judges, to one or more of whom judicial access may be particularly had, undermines its very existence and endangers its proper and effective functioning.”. About the potential dangers of PIL: “Not infrequently public interest litigation affects the rights of persons not before the court, and in shaping the relief the court must invariably take into account its impact on those interests. Moreover, the nature of the litigation sometimes involves the continued intervention of the court over a period of time, judicial statesmanship, a close understanding of constitutional and legal values in the context of contemporary social forces, and a judicious mix of restraint and activism determined by the dictates of existing realities. Importantly, at the same time, the court must never forget that its jurisdiction extends no farther than the legitimate limits of its constitutional powers and avoid trespassing into political territory which under the Constitution has been appropriated to other organs of the State.” About the desire to correct executive actions: “In the process of correcting executive error or removing legislative omission the court can so easily find itself involved in policymaking of a quality and to a degree characteristic of political authority, and indeed run the risk of being mistaken for one. An excessively political role identifiable with political governance betrays the court into functions alien to its fundamental character, and tends to destroy the delicate balance envisaged in our constitutional system between its three basic institutions. The judge, conceived in the true classical mould, is an impartial arbiter, beyond and above political bias and prejudice, functioning silently in accordance with the Constitution and his judicial conscience. Thus does he maintain the legitimacy of the institution he serves and honour the trust which his office has reposed in him?” I wish some of these passages from Pathak were cited before Mathur and Katju along with Montesquieu. On the need for circumspection in dealing with PILs: “There is good reason to suppose that treating with public interest litigation requires more than legal scholarship and knowledge of textbook law. It is of the utmost importance in such cases that when formulating a scheme of action, the court must have due regard to the particular circumstances of the case, to surrounding realities, including the potential for successful implementation, and the likelihood and degree of response from the agencies on whom the implementation will depend. In most cases of public interest litigation, there will be neither precedent nor settled practice to add weight and force to the vitality of the court’s action. “The example of similar cases in other countries can afford little support. The successful implementation of the orders of the court will depend upon the particular social forces in the backdrop of local history, the prevailing economic pressure, the duration of the stages involved in the implementation, the momentum of success from stage to stage, and the acceptability of the court’s action at all times by those involved in or affected by it”. It may be apposite to quote Prof. Philip Kurland, of University of Chicago Law School, who said: “If the judiciary is to be the primary agency for social reform, shouldn’t we be more concerned about the quality of the people we choose for judges? For the most part, judges are narrow minded lawyers with little background for making social judgments” About the need for the courts to decide according to law: “There is great merit in the court proceeding to decide an issue on the basis of strict legal principle and avoiding carefully the influence of purely emotional appeal. For that alone gives the decision of the court a direction which is certain, and unfaltering, and that especial permanence in legal jurisprudence which makes it a base for the next step forward in the further progress of the law. Indeed, both certainty of substance and certainty of direction are indispensable requirements in the development of the law, and invest it with the credibility which commands public confidence in its legitimacy”. Chief Justice Pathak deserves a salute for vision coupled with
erudition. K.N.Bhat is a Senior Advocate, the Supreme Court of India.
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A dose of Bacon
COUGH and cold are age-old afflictions that have defied doctors’ prescriptions. A serious bout of the same gave me a dreadful night. I did not wake up wife or mother-in-law for fear of being treated to a litany of cures — lemon tea with honey, tulsi patta-ginger tea etc. Hard to sleep, I picked up a book by Francis Bacon. In his essay “Of regimen of health”, he says: “there is wisdom in this beyond the rules of physics: a man’s own observation, what he finds good of and what he finds hurt of, is the best way to preserve health…” Soon I thought of a friend — a vibrant personality — who retired as DG of a paramilitary organisation. I once asked him what he did to keep fit. He sounded quite Baconian when he said, “Staying alive, Sir, especially after retirement, is a whole-time job”. But there was no relief from cough and cold and I remained in my thinking mode. The person who comes closest to following Bacon’s regimen is my father. Ninetytwo and plus, he often tells us, “there is no machine yet invented, no doctor yet born who can understand your body and mind better than you can do yourself”. For him what you do is as crucial to being in good health as what you eat. I was also reminded of an ASI of Police in Assam where I worked for long years. This self-anointed “know all”, displaying greater degree of commitment to public weal than to policing, had put up a huge signboard where normally should have rested a board telling people about the police check post. The board on display bore “An angel has descended from heaven, capable of curing everything under the sun.” I discovered he could not cure a single constable of cough and cold serving in his outpost. I asked him if he had any degree or diploma in medicine. His reply totally disarmed me. He said, “for doing good to the people, sir, you do not need any degree”. Mahatma Gandhi had definite views on health. Brahmcharya and mud-poultice were his panacea for all ailments. It was a regimen impossible for a lesser mortal like me. My coughing — loud as it was — woke up my wife. In a doleful voice, full of concern and care, she asked me if she could make me ginger tea and give me a toast with honey. I thanked her and said it was too early for tea and toast and persuaded her to go to sleep. Then came a sudden flash like the enlightenment descending on Buddha under the Bodhisattva tree. I thought of a stalwart police officer. A human rights activist, leading a Spartan life, he possesses rare imagination and composes beautiful poems. Of the one that I heard him recite the other day, I recalled the concluding lines, “Aisi koi raat nahin jo na de kar jaye savera”, meaning “there is not a night which is not followed by dawn” I found an answer to my malady. Opening the curtains of my bedroom, I could see rays of morning sun descending in rare effulgence on the extensive lawns of our garden. I stepped out. The birds were full of mirth, frolicsome and danced in rare delight. Bacon realisd this much before I did that, “it is the purest of human pleasures and the greatest refreshment to the spirit of man”. I could experience my fever vanishing and delight surging through my body. I knew I had launched myself on a path to recovery.
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Towards the ‘European ideal’
PARIS – European leaders on Thursday signed a new treaty intended to revitalise efforts for a more united and powerful European Union. The treaty, however, replaces a proposed constitution rejected by many voters two years ago, with a document that in most member countries will never go before the public. The 175-page Treaty of Lisbon incorporates most of the proposed changes and language of the failed constitution, but does so through a series of amendments to existing laws and treaties that can be approved by governments and legislatures without being put to voters. Only one of the 27 member countries, Ireland, plans to hold a referendum on the treaty. It creates a permanent post of president, which an individual would hold for 2 1/2 years, and junks the current six-month presidency that rotates among member governments. It removes references to a European flag, anthem and other symbols that many people found an affront to national identity. Critics say the treaty is a legalistic sleight-of-hand meant to thwart the will of the people, many of whom are more skeptical than their leaders about the continuing expansion of the bloc. “It’s a willful attempt to mislead the public,” said Neil O’Brien, director of Open Europe, a London-based group that is fighting for greater openness, flexibility and accountability in European institutions. He cited a poll the group commissioned in March showing that 75 percent of people surveyed across Europe, including a majority in all 27 EU countries, wanted a referendum on any new treaty that gives more power to the European Union. An analysis of the treaty by Open Europe found that “96 percent of it is a word-for-word carbon copy” of the rejected constitution. “This is a deeply dishonest process,” the group alleged. Supporters of the treaty say it is a different creature altogether from the rejected constitution, and therefore does not need ratification by the public. They argue that changes enshrined in the treaty are essential to modernise, streamline and democratise EU institutions to account for the union’s growth from six member countries in 1972 to the 27 it has today. “History will remember this day as a day in which new paths of hope were opened toward the European ideal,” Portuguese Prime Minister Jose Socrates said during the signing ceremony. “With the Treaty of Lisbon, Europe finally overcomes the political and institutional impasse that limited its capacity to act during the last few years.” To go into effect, the treaty needs to be ratified by lawmakers in all EU countries, but there is no requirement for it to be put to a popular vote. British Prime Minster Gordon Brown, the only EU head of government who did not attend Thursday’s ceremony in Lisbon, is under intense public pressure to hold a referendum. His predecessor, Tony Blair, had promised such a vote on the constitution, but Brown maintains that a referendum is not necessary for the new treaty, which has provisions allowing Britain to opt out of European policies that it does not like in areas such as immigration and human rights. Ireland, however, is preparing a referendum. In a poll in late October for the Irish Times newspaper, 25 percent of registered voters surveyed said they would vote to ratify the treaty, 13 percent were opposed and 62 percent said they were undecided. Countries have until the end of 2008 to adopt the treaty, which would become law in January 2009. European politicians were stunned by the rejection of the proposed constitution in 2005 by voters in France and the Netherlands, two founding EU members. Despite its endorsement by leaders in all the EU countries, the document was withdrawn from further consideration and the union began a period of political drift and identity crisis. Polls showed that voters were highly skeptical of continued expansion of the bloc, the threat of rising immigration, and the ceding of national power and sovereignty to what many saw as a European superstate of unelected bureaucrats, many from nations other than their own. In addition, the constitution was criticized as too long, too complicated and poorly explained. The new document seems to face many of the same hurdles. The 175-page treaty, with 313 articles, 88 pages of protocols and a 25-page annex, is written as a conglomeration of inserts, deletions and amendments to existing treaties, the texts of which are not provided. European leaders insist the treaty is substantially different from the failed constitution, but also assert it is substantively the same. “They have taken the original draft constitution, blown it apart into separate elements, and have then attached them, one by one, to existing treaties,” former French president Valery Giscard d’Estaing wrote in the Independent newspaper. “The Treaty of Lisbon is thus a catalogue of amendments. It is unpenetrable for the public.”
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A slum-free City Beautiful THE right to adequate housing is an important component of the right to live with dignity, and also a significant constituent of the right to equality. India has both international as well as domestic legal obligations to deem housing as a human right. Although the government has initiated various efforts towards this end, the progress of the various housing schemes till date is poor and the sprouting of slums as a problem continued to loom large. Political parties treat slum dwellers as their vote banks and for their own vested interests have always wanted the problem of slums to persist. However, surpassing all odds and eluding the weaknesses of the earlier rehabilitation programmes/schemes, Chandigarh Administration has launched a small flat scheme, which is a welcome step in the right direction as it plans to provide accommodation along with civic amenities (individual water, electricity and sewer connection) and supporting infrastructure, on licence fee basis to all slum dwellers identified under the biometric survey conducted in 2006. The flats shall be one-room flats in multi-storey buildings, which will be used solely for residential purposes. The Chandigarh Small Flats scheme 2006 also takes care of the implications of displacement and hence is trying to rehabilitate the families near their present shelters, with bare minimum effect on their place of work. Keeping in mind the slum dwellers limited capacity to pay, the rents have been fixed at Rs. 800 and Rs.1000 pm. The government has adopted “a course correction” in its previous policies of slum rehabilitation and now plans to rehabilitate all the slums dwellers in order to make Chandigarh a slum free city. Basing its new approach with pursuit of universal coverage and taking up the responsibility of providing shelter to all the migrants who have already arrived in the city is certainly commendable. The Chandigarh Administration has moved very systematically to ensure the right to shelter to the poor. To begin with, a biometric identification survey to develop a permanent data-base of all existing slum families was conducted. In order to assess the needs of the slum dwellers and to identify the key issues involved in rehabilitation of the slum dwellers, the Administration got another socio-economic survey carried out by IDFC. This created a profile of the slum dwellers including their average household size, occupation, expenditure and income levels etc. Even perceptions about their willingness to pay for housing were assessed. This new rehabilitation scheme is user friendly and need based. Shifting of the slum dwellers to the rehabilitated house will be further instrumental in securing their other entitlement such as the right to health and education as the new housing scheme takes care of all supporting infrastructure including “health care,, education and shopping community centre”. What is also unique about this scheme is that it takes into account all environmental aspects so that each complex is eco-friendly. The task of rehabilitation has its limitations in terms of finance and space and the onus of adequate shelter has to be collectively shared by the government and the stakeholders. To nurture this new mindset, the poor slum dwellers have been made aware of the benefits of rehabilitation and now feel the need for shielding their right of adequate and safe habitat. They have been mobilised and sensitized and now are fully participating and willingly contributing to protect their right to housing. The implementation of the scheme has started on a triumphant note with shifting of 650 families of Madrassi colony to sector 56; 460 slum families from Labour colony no. 4 to pre-fabricated shelters at sector 52; and 1000 slum families from Kumhar colony to pre-fabricated shelters at sector 52. However, some groups are creating obstacles by demanding ownership rights for the slum dwellers. The new rehabilitation scheme under which the dwelling units are to be allotted is on licence fee basis and not on ownership basis. This will certainly help in checking the persistent problem of the slum dwellers selling the site /plot and then returning back to the slums as has also been reported by the CRRID survey. The choice of ownership after 20 years is again reasonably valid as it will provide property rights to only the authentic allottees. However everything takes time and the slum rehabilitation project, with a vision to resettle 24,000 families comprising one lakh population (app. forming 10 per cent of total population in Chandigarh) assures at providing living conditions at affordable cost to all slum dwellers, which apart from securing their tenure rights, will give them a healthy and a dignified life. It aims at providing a one time solution to the persistent problem of slums within a fixed time schedule.
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Inside Pakistan MS Benazir Bhutto finds herself embarrassingly in the company of President Pervez Musharraf, PML (Q) leaders and JUI chief Maulana Fazlur Rehman. She is not in favour of restoration of Pakistan’s judiciary to the pre-November 3 position. This is a stand contrary to that of almost all the opposition parties, who accuse the Musharraf regime of being intolerant of independent-minded judges. These judges have been forcibly retired. The judges issue was the main reason why Ms Bhutto and PML (N) chief Nawaz Sharif could not finalise their joint charter of demands which they wanted to submit to President Musharraf. The issue has exposed her of not being a votary of an independent judiciary. According to an article by Dr Mohammad Naeem Chishti in The Frontier Post (Dec 10), Mr Sharif’s representatives in the committee constituted to draft the charter wanted the Pakistan President to be given an ultimatum that the PPP and the PML(N) would boycott the elections if their demands were not accepted by a certain date – between December 14 and 25. However, Ms Bhutto’s side was non-committal. She does not give much importance to the need for having independent-minded judges. “What has the judiciary ever done for us?” asks Ms Bhutto, as quoted by Mr Salahuddin Ahmed, a Karachi-based barrister, in an article in Dawn (Dec 12). She has her own reasons for her disenchantment with the deposed judges. Some of them had ruled against the so-called National Reconciliation Ordinance, issued by President Musharraf to help her come back to Pakistan. It is a different matter that the ordinance will not be given constitutional protection, contrary to what is being done in the case of the different proclamations issued since November 3. There is another problem. A bench of the present Supreme Court is to give its final verdict on the ordinance. The verdict may go against her if she takes a stand against the judges who took the oath under the PCO. Ms Bhutto does not talk of these things. She claims, as Mr Ahmed says, that her “stance regarding the judiciary is about principles and not personalities”. But, as the Karachi barrister wants her to remember, “It’s the individual judges who make up a court, not a few slabs of marble on Constitution Avenue.” No end to Geo’s troubles Private television channels were among the worst sufferers after the imposition of the emergency in Pakistan on November 3. However, almost all of them are back to their business except Geo TV. The Geo management is fighting court cases, and there is little possibility of the most popular channel getting revived. It was Geo TV which gave the best coverage to the lawyers’ agitation launched in protest against the removal of then Chief Justice of the Pakistan Supreme Court, Mr Justice Iftikhar Chaudhary. Acccordding to a report in The News (Dec 13), the TV company, which has 4,500 employees, has been suffering losses running into millions of rupees. It may have to ultimately close down if the government refuses to withdraw the trumped up cases. President Pervez Musharraf must be given credit for allowing private TV channels to come up in Pakistan. There is going to be another channel soon belonging to the Nawa-i-Waqt group of newspapers. But Geo had its own flavour. It must not be allowed to disappear from the scene forever. Missing wheat,
petro-products Pakistan is faced with a crippling shortage of wheat flour and diesel and kerosene. This may adversely affect the electoral prospects of the King’s party – the PML (Q) – if no corrective measures are taken soon. The wheat shortage has reportedly been caused by large-scale smuggling of the commodity to Afghanistan and some Central Asian republics, where wheat prices are much higher than those in Pakistan. According to Daily Times (Dec 13), bureaucrats in Islamabad admit that ‘some 1200 to 1400 tonnes of flour’ is being smuggled to Afghanistan ‘on a daily basis’. People in Sindh are the biggest sufferers. The wheat flour shortage has hit Punjab too. People have to pay Rs 22 per kg for the wheat flour which was available at Rs 12 per kg in the beginning of 2007. According to Business Recorder (Dec 13), “Pakistan’s stocks of major oil products have declined to the lowest ever level in the country’s history, and reserves of kerosene and diesel are sufficient for six days only.” This is the result of “a larger policy failure”, as the respected financial daily sees it.
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