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Send Dinakaran home
Revolt in Karnataka |
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Medicare as commerce
Collegium system is flawed
True public servants
India’s public audit system
The fall of the Wall
Curiosity is the key to joy: psychologist
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Send Dinakaran home
IT appears from media reports that Karnataka High Court Chief Justice P.D.Dinakaran is not being considered for elevation to the Supreme Court. The fact that a fresh inquiry has been ordered means the decision on Justice Dinankaran’s elevation will have to wait for the outcome of the inquiry. There is no point in promoting a Chief Justice facing serious charges. Preliminary investigations have revealed that the charges of encroachment of huge chunks of land are not without merit and Justice Dinakaran is caught in a controversy that can embarrass the Supreme Court if he is promoted. The Chief Justices and judges have to be, like Caesar’s wife, above suspicion. They should not only be persons of integrity but also appear to be so in public. Even an iota of suspicion about a person’s character should debar him or her from holding any top office, let alone in the highest court of the land. This is essential to maintain public faith in the judiciary. The people of this country have high expectations from this august institution. It is, therefore, surprising that the Supreme Court collegium has taken so long to take such a simple decision. The collegium, which recommends promotions to the apex court, has now suggested to the government to delink Justice Dinakaran’s case from that of the four others clearly shows that he is no longer in the reckoning. The question remains as to why Justice Dinakaran’s name was considered for promotion in the first place. This exposes flaws in the existing selection system. Should it not be a regular procedure to fill a top post by making prior and discreet inquiries about a candidate’s past? While some vigilant public-spirited citizens seem to have been aware of allegations against him and one member of the collegium also objected to his proposed elevation, the others cleared his case apparently without applying their mind. Now it is time to ask: If a person is not suitable for the job of a Supreme Court judge, should he continue as the Chief Justice of a high court. There is no dearth of talent in this country. Why not send Justice Dinakaran home since he himself refuses to withdraw gracefully? The Constitution provides remedies for getting rid of a judge who has not lived up to the oath of the Constitution and the values that should govern the conduct of a judge.
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Revolt in Karnataka
Karnataka
has proved to be the latest flashpoint in the BJP’s serial of woes. After days of dissident activity in which, ironically, assembly Speaker Jagdish Shettar has been a prime actor, the party high command has declared that Chief Minister Yeddyurappa would not be displaced and that there would be a Cabinet reshuffle to mollify those who are baying for his removal. Considering that there is no positive response from the BJP dissidents, the crisis is by no means over. Mr Yeddyurappa has been at the receiving end of a no-holds barred attack against him by Tourism Minister G. Janaradhana Reddy, and Revenue Minister G. Karunakara Reddy, who are brothers and mining kingpins from Bellary. It is no secret that the Reddy brothers were recently admitted to the BJP because of their tremendous money power. They had substantially financed the party’s election campaign and clearly are out to extract their pound of flesh in typical fashion. That they managed to rope in the assembly Speaker with apparent lure of making him chief minister is a sad commentary on how the august institution of Speaker stands defiled today. Interestingly, the transfer of some officials close to the Reddy brothers in Bellary district is being seen as the immediate provocation for the revolt against Mr Yeddyurappa. With some cases of irregularities pending against the Reddys, these officials were evidently a veritable shield for them. With the high command now putting pressure on the Yeddyurappa government to rescind those transfers, one shudders to think what effect this would have on the region’s administration. Even if the proposed deal comes through and Mr Yeddyurappa is left untouched, it is anybody’s guess how long the truce would last. It is time the BJP in Karnataka set its house in order. Work in the secretariat is virtually at a standstill. While there are floods in some parts of the state, the Chief Minister himself admitted that many legislators from flood-hit areas in north Karnataka were pre-occupied with dissident activities in resorts and hotels outside the state. The party is indeed in danger of losing its lone bastion in the South if it continues to ignore governance.
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Medicare as commerce OVER the years, medical practice in India, especially in the private sector, has turned into a moneymaking enterprise, across the country where invariably greed takes precedence over care and medical ethics. Many malpractices are rampant in many private hospitals in most states whose prime motive is to rake in moolah. The patients in these hospitals are treated as consumers. Inflated medical bills, doctors working for specified profit-driven “targets”, substandard medicines being administered to patients and many hospitals ignoring norms for providing medicare to the poor are some of the ills afflicting private healthcare. While private medicare is increasingly falling prey to crass commercialisation, the public health system is beset with many problems like inefficient funding and shortage of infrastructure leading to overcrowding and unhygienic conditions in government hospitals. Not surprisingly, surveys reveal that people in Punjab and Haryana prefer private medical care to public health systems. However, patients’ hope of better healthcare is turning into disappointment. The essential message of the Hippocratic oath is often ignored. Many patients face penury after medical treatment. A World Bank study had revealed that expenditure on a health event is the second most common cause of impoverishment in India, which, according to a WHO study, ranks 171 out of 175 countries in public health spending. While public spending has to be stepped up, it cannot turn a blind eye to the irregularities prevalent in private medical institutions. A monitoring body could ensure that private hospitals are not allowed a free run and are regulated on standards of quality, price and also patient satisfaction. Private hospitals, although all cannot be tarred with the same brush, need to look within and understand their social responsibility, especially towards poor patients.
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Prognostics do not always prove prophecies, — at least the wisest prophets make sure of the event first. — Horace Walpole
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Collegium system is flawed
AGAINST the backdrop of the raging controversy over the elevation of Karnataka High Court Chief Justice P.B. Dinakaran to the Supreme Court, the Bar Association of the Delhi High Court and the Supreme Court in a joint letter to the Union Law Minister has sought the discontinuation of the apex court collegium for the appointment of Supreme Court and High Court judges. The letter says that the collegium system has not only proved to be a failure but encouraged lack of transparency and favouritism. Indeed, judicial probity is closely linked with the proper appointment of judges in the higher courts. The health of the judiciary depends much on the people appointed as judges. The previous system of judicial appointments by the executive (1953-93) was substituted by a judicial collegium of five senior judges by the apex court’s decision in the Second Judges Case. Article 124 of the Constitution vests the power of appointment of the Chief Justices and judges of the Supreme Court in the President. The Constitution provides that the President will make these appointments in consultation with the judges of the High Courts and the Supreme Court that he deems necessary. The constitutional provision speaks of “after consultation” and not “in consultation” in the case of appointment of judges other than the Chief Justice of India. The appointment of High Court judges is also made by the President in consultation with the Chief Justice of India and the Governor of the state concerned. In S.P. Gupta’s case, known as the First Judges Case, the court by majority ruled that Article 217(1) put all the constitutional functionaries in the same pedestal and no primacy was given to the Chief Justice of India. S.P. Gupta’s case did not deal with the appointment of judges in the Supreme Court. In 1993, in the Second Judges Case, the Supreme Court ruled that the recommendation of the Chief justice of India along with four seniormost colleagues is determinative and binding on the President. This was almost an attempt by the judiciary to rewrite the law through this judgment. The new construction makes the Supreme Court and High Courts virtually undemocratic. According to a former Law Minister, under the present collegium system, the merit has been ignored while give and take has thrived. Even some of the former Chief Justices who believed in giving power exclusively to the judiciary in the matter of appointment and transfer of judges have revised their opinion. In July 1999, the President sought the court’s opinion on certain issues relating to the appointment of Supreme Court judges and transfer of High Court judges. A nine-judge Bench of the Supreme Court (Presidential References, AIR, 1999, SC) reiterated that primacy is to be given to the opinion of the Chief Justice as laid down in the 1993 judgment, but also stipulated that the collegium should make the decision in consensus, and unless the opinion of the collegium is in conformity with that of the Chief Justice of India, no recommendation is to be made. The Chief Justice of India should consult a collegium of four seniormost judges of the apex court and even if the two judges give an adverse opinion, the Chief Justice of India should not send the recommendation to the government. It has been found that the present system in the selection of judges is not transparent and often characterised by gross favouritism. Without a transparent procedure of selection, the selected judges will not command public confidence. Justice Krishna Ayer has called the present arrangement “incestuous” because the judges only react and talk to one another of their own kind. Right from 1950, appointments of judges have been broadly based upon the recommendations of the Chief Justice of the Supreme Court and the High Courts except during the Emergency. It was rare that any appointments were made without the concurrence of the Chief Justice. There is now a consensus that a National Judicial Council should be constituted for the selection of judges. The selection mechanism should be more broad based. The argument that to involve persons other than the judges in the selection of judges will bring into play extraneous pressure is somewhat simplistic. Matters connected with the appointment and misdemeanour of the higher judiciary should be dealt with by an independent body using a transparent procedure instead of the present and unsatisfactory arrangement shrouded in mystery. The appointments of judges have to be above suspicion and the best way is to introduce transparency. The names of those proposed to be appointed as judges may be put on the court’s website and time is given to the public in case anyone has an objection to any name. The Parliamentary Standing Committee of Law and Justice recommended doing away with the existing mechanism of collegium. It says that the collegium system has been a disaster and need to be done away with. Former Chief Justice of India A.M. Ahmadi, who had opposed the creation of the collegium system by writing a dissenting judgment, has favoured reversion to the pre-collegium mechanism as there are serious concerns about the effectiveness of the present system. There is no doubt that the present system has encouraged nepotism and many ill-qualified judges with poor records have been elevated. For example, Justice Ashok Kumar was elevated as an additional judge in Tamil Nadu in April 2003. The Collegium of the Supreme Court Judges unanimously decided not to confirm him as a permanent judge because of adverse reports against him. He was, however, confirmed in April 2007 on the recommendation of the Chief Justice of India. The worst example of the collegium system was the appointment of Soumitra Sen as a judge of the Kolkata High Court in 2006 even as he faced allegations of having misappropriated Rs 50 lakh while serving as a court-appointed lawyer in 1993 in a dispute between two public sector companies. The collegium cleared him for appointment without bothering to go into his credentials even when the entire record was available in the court itself. There is often lack of information with the collegium on the candidates which it considers for appointment. In every High Court, the Chief Justice is from outside the state as per the policy of the government. The seniormost judges who form the collegium are also from outside the state. As a result, more often than not, the appointments suffer from lack of adequate information. Judicial appointment is not a part-time job that members of the collegium can perform after doing their judicial work of deciding cases. The Law Commission had, suo motu, studied the law on the subject as well as various recommendations of the Parliamentary Standing Committees and the law of foreign jurisdiction like the US, Australia, Canada and Kenya where the executive is the sole authority to appoint the judges, or the executive appoints them in consultation with the Chief Justice of the country. The Chairman of the Law Commission, Justice A.R Lakshmanan, has correctly observed that the judges constituting the collegium — a panel headed by the CJI — are not conversant with the names and antecedents of the candidates for judicial posts and, more often than not, appointments suffer due to lack of adequate information. During NDA rule Law Minister Arun Jaitley in 2003 in the aftermath of the sex scam that led to the resignation of Delhi High Court judge Saumit Mukherjee, came up with the Constitutional Amendment Bill proposing a National Judicial Commission that tried to involve non-judicial members not only in the appointment of judges but also in disciplining them. Instead of improving on the Bill, former Law Minister H.R. Bhardwaj rolled back the reform of involving other stakeholders. By proposing a National Judicial Council consisting of only serving judges, he acceded to the judiciary’s claim that any effort to open up the process of judicial accountability would compromise judicial independence. The Bill has been pending before the standing committee of Parliament since August 2007.The present Law Minister has now proposed to bring a comprehensive Bill on judicial standards and accountability to deal with various issues and maladies afflicting the
judiciary.
The writer is a former Director-General, National Human Rights Commission.
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True public servants
I
chanced upon the recently published personal diaries (for private circulation) of an officer of the Indian Forest Service. This DFO’s entries for December 21-22, 1951, make poignant reading. He had set out to establish a polling-booth in a remote village of Madhya Pradesh in the Balaghat forest division. A timber contractor’s truck carried him, his clerk, two unarmed police constables, one sealed ballot-box and some stationery up to village Pathera, a 106-km bumpy ride over an unmettled road. The next 32 km to his ultimate destination were covered in a bullock cart, through a dense forest, now a part of the Kanha Tiger Reserve. It was, therefore, natural that with the approach of evening, the bullocks sensed the presence of a predator. Quite involuntarily, their heads began swaying violently and their tails swished like pendulums. The DFO and his party jumped down to walk by the side of the bullocks both to becalm them and at the same time to induce caution in the stalking tiger. They talked loudly, clapped their hands frequently and also pelted stones into bushes on either side, as they went by. The revenue authorities had alerted the headman of Baikal village to expect the DFO’s party. All the 20 huts had been given a fresh coat of mud and time-wash for the big day. At the weekly market in their vicinity, the villagers had even acquired three National Flags which were already aflutter, one each atop the hut of the headman and over the two huts vacated for the election party and the election-booth! They also mounted vigil by night to protect the two bullocks against the tiger who naturally owed no allegiance to the election code of conduct. By 10 a.m. the next morning, the entire village of about 60 Indians of all ages, had gathered outside the election booth. With utter humility and solemnity, the women folk first applied “Kum-Kum” on the ballot-box and then garlanded it. The DFO then called out to the 12 eligible listed voters of Baikal who were explained the object of the election, who the candidates were, what they stood for and the significance of their vote. Of course, we shall never know what passed through their minds but when the last ballot was cast by 11.30 a.m. they all rose in unison and led by the headman returned to their huts, cheerfully chorusing aloud “Bharat Mata Ke Jai Ho!” Two days later, the sealed ballot-box was matter-of-factly deposited at the district headquarters treasury. Elsewhere in India and more than a thousand km away, I too was a witness to the initiative of a diligent District Collector-cum-Magistrate who had in the week preceding the polling day, crisscrossed his district from dawn to dusk. He wanted to ensure that all his subordinate revenue functionaries down to the Patwaris in the mofussil and the police constabulary at each “thana” understood the importance of the historic change-in-the-making and their onerous responsibility to create conditions for fair and free polling. Though strictly not his duty, but that is what had made the District Collectors in the first half of the last century the corner-stones of the administrative framework in India. That was when public servants were truly looked upon and addressed as “Mai-Baap” and before the coining of the phrase “Saahub to beegee
hain”.
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India’s public audit system
AN effective system of an executive’s accountability to the legislature backed by rigorous processes of audit and reporting by an independent audit authority is universally recognized as an indispensable feature of parliamentary democracy. The Constitution of India has prescribed the Comptroller and Auditor-General of India (CAG) as the country’s Supreme Audit Institution with necessary independence, authority and powers to act as an effective watchdog over the nation’s finances and ensure public accountability of the executive. The Comptroller and Auditor-General’s (Duties, Powers and Conditions of Service) Act, 1971 (DPC Act), authorizes the CAG to audit the receipts and expenditure of the Union and the State Governments as well as the statutory corporations, Government companies, authorities and bodies and Government-assisted voluntary organizations subject to the conditionalities prescribed therein. The Act also authorizes the CAG to inspect the auditee offices and call for information, books of accounts and records for the performance of the audit tasks. According to the Constitution and the DPC Act, the CAG’s Audit Reports should be tabled in the appropriate legislature whereafter these stand automatically remitted to the financial committees of the legislatures namely the Committee on Public Accounts (PAC) and the Committee on Public Undertakings (COPU) for follow up action. The Committees are constituted under the Rules of Procedure and Transaction of Business in the Parliament/State legislature framed under the Constitution which in a way makes them creatures of the Constitution. In its Fourteenth Report “Strengthening Financial Management Systems” (April 2009) the Second Administrative Reforms Commission (ARC) has attempted a critical assessment of the existing audit system and made several recommendations. The ARC has inter alia recommended better interaction between audit and executive, greater timeliness in audit and more balanced reporting by audit focusing not merely on criticism but making a fair assessment or evaluation that acknowledges good performance. The ARC has also stressed the need for greater responsiveness to audit paras and recommended institutionalization of procedures for appropriate action against officers who default in submitting replies to audit. These are welcome recommendations, though largely in the nature of ‘more of the same’. It will however be interesting to see the Government response on the recommendation for taking action against officers who persistently default in replying to audit paras. This will require suitable amendments to the DPC Act as well as the relevant Conduct/Disciplinary rules. But there are several other concerns as well. First, although the DPC Act authorizes the CAG to call for information and records for conducting audit, he has no authority to compel compliance and the supply of information is often delayed or denied altogether. CAG’s Audit Reports on direct taxes routinely report the number of assessment records that were not made available to audit; for example according to the Audit Report for 2007-08, nearly one lakh assessment records were not provided for audit scrutiny, more than 42,000 of these had been requisitioned prior to 2007-08. This needs to be remedied. On the lines of the powers vested in the Information Commissioners, the CAG’s organization should be empowered, at sufficiently senior levels and with appropriate safeguards, to impose personal penalties on the executive officers who delay or withhold information and documents and thereby obstruct the Constitutional authority from the discharge of its functions. The very availability of such power with the CAG’s organization, which hopefully may well remain a sleeping or reserve power, will ensure that the auditor is not obstructed in the performance of his duties. Second, the presentation of the Audit Reports to the legislatures by the Government is unconscionably delayed. Recently, one of the State Governments did not table CAG’s Audit Report for nearly one year; according to media reports the Audit Report included a case in which the accountability trail allegedly led to the highest political executive. In many States, the CAG’s Audit Reports on organizations like the Electricity Boards, Housing Boards, and Road Transport Corporations etc; have not been tabled for years. Ironically, these are organizations which do not enjoy particularly high reputation for good financial management. There is need to prescribe a definite time limit by law within which the Government must present the CAG’s Audit Reports to the legislature. Third, the CAG’s authority to audit the public sector companies is currently determined with reference to the percentage of Government equity therein and companies in which Government equity is not less than 51 per cent alone are subject to CAG’s audit. With the progressive dilution of Government equity in the Government companies through divestment or through issue of IPOs the threshold level may be breached even though sizeable amounts of Government moneys may still remain invested in such a company. In order to ensure that the CAG’s jurisdiction is not ousted because of the dilution of Government equity in percentage terms, the threshold level needs to be prescribed in absolute monetary terms as well and the CAG’s jurisdiction should be made co-terminus with the Government’s control over such companies. It will be interesting to recall that in the fifties the then CAG had described the creation of Government companies and keeping them outside the audit jurisdiction of the CAG as a fraud upon the Constitution. Fourth, the DPC Act 1971 was written nearly forty years ago. In several critical provisions it had borrowed heavily from the Government of India, Audit and Accounts Order, 1936, that had defined the duties and powers of the CAG in the pre-independence era. Since then and more recently there have been several changes in governance structures with the wide spread use of public-private partnership as the preferred instrument for development of infrastructure projects and for programme delivery in the social sector. Such changes need to be appropriately recognized and reflected in the duties and powers of the CAG particularly in the matter of his access to records of the non- Government and private partners wherever public money and resources are involved. Fifth, the effectiveness of audit as an instrument of public accountability and promotion of good governance depends on the action taken by the Government on the concerns expressed in the Audit Reports. Accordingly, the Government should be mandated by law to table an Action Taken Report within six months on every Audit Report. This is extremely important since whereas the Central PAC and COPU discuss only a very small number of audit paragraphs, the State PACs and the COPUs are in arrears, some times for decades, in their follow up action on the Audit Reports. There can be no accountability if nobody is held accountable. The Eleventh Five Year Plan document had also stressed the need for strengthening public audit system and vesting additional powers in the CAG. At stake are huge amounts of public money and resources with the Union budget for 2009-10 alone being close to Rs. 10 lakh
crore.
The writer is a former Deputy Comptroller and Auditor-General of India
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The fall of the Wall THIS time next week Berlin will be suffering a hangover second only to the one that followed the collapse of the Wall 20 years ago. Even though a whole generation has now grown up across Europe with no first-hand memory of the dismembered city and the divided country that surrounded it, the scenes from 9 November, 1989, are lived and relived as the defining images of the end of the Cold War. It is not just that this was one of the first events to be broadcast worldwide, in the earliest days of live 24-hour television, from anywhere – although it was. It was the sheer, undiluted ecstasy of the occasion. The Berlin Wall was demolished euphorically, spontaneously, almost by accident. A barrier that had taken years to build was torn down in hours with pick-axes brought from home, and bare hands. And the spell was broken that had kept 17 million Germans, and much of the eastern part of Europe, in thrall for almost half a century. While there is no risk that the memory of this euphoric night will soon fade – especially not while the successive anniversaries of 1989 are still celebrated – the memory of the strange and cruel years that preceded it is vanishing all too fast. Not just in Germany, east and west, but right across what used to be called the Eastern bloc, the experience of repression and occupation is being consigned to an artistic world of fiction and film that is becoming unreal even to those who endured it. There is gravitas in the vignettes about honourable individuals who are turned by a perverse state into criminals, the fiction that masquerades as truth, and the corruption which so penetrates society that honour ceases to be an absolute and is measured by degrees. But an audience without the experience or knowledge to appreciate that real people were driven by threats, vindictiveness and fear to behave in such debasing ways, has no reason to treat the absurdity they see on screen as the national catastrophe it actually was, rather than the comedy it appears now. No one would condemn those who suffered in the myriad ways perfected by totalitarian regimes for wanting to forget the reality of their past so soon. After the Berlin Wall fell, they had a lot of life to make up: family life, professional life, intellectual life. Why should they root around in this demeaning and perhaps shaming time? Why should they impose on their children a burden of fear they need never know? And the transformed climate in which the children born after 1989 in East and Central Europe have grown up is too rarely remarked upon. Not only have they known nothing other than material plenty – shop shelves are full; fresh fruit and vegetables are available around the year; parents do not need to spend a small fortune at private markets to ensure their children are properly nourished – they have also grown up uninhibited by intrusive and malicious state scrutiny. In some places, and for some people, old fears linger. For decades yet there will be those who are woken by nightmares about prison camps, who live in terror of a knock at the door, who are paralysed by a sharp word from anyone in authority. But they will be fewer and fewer. The fall of the Wall, and everything that followed, lifted the collective sense of fear literally overnight. This was inspiring for all who lived through it and for the many millions more who watched it from afar. But it was mostly inspiring because, then, everyone well understood what had gone before. If repression is consigned to oblivion, or translated so soon into farce, the real human cost of those years will not be commemorated, as it should be, in
future. — By arrangement with The Independent
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Curiosity is the key to joy: psychologist You're
out at a bar, and you see that girl in the Pixies T-shirt, hyping your favorite band. You're dying to talk to her, but you hesitate, worried that she'll think you're a jerk when you walk over there. Clinical psychologists study that kind of crippling social anxiety all the time, says psychologist Todd Kashdan. But, as Kashdan sees it, they hadn't paid much attention to the flip side, the magnet pull in the other direction, the thing that makes the other guy plunge right ahead to strike up a conversation: curiosity. Kashdan, a professor at George Mason University in Fairfax, Va., has written a book arguing that it's one of the keys to a happy, fulfilling life. "Curious?" the cover blares, thick black letters on a bright yellow field, as though daring the reader to reach out and grab it. The book, written in a breezy self-help style, is backed by some of Kashdan's and others' research, making a case for curiosity and suggesting techniques for overcoming the anxiety that holds people back. The 35-year-old professor could be a walking advertisement for his latest work. He boogie-boards, climbs rocks, obsesses over his favorite bands' live shows. He also has thrust himself into the pool of positive psychology, the study of the emotions, values, social factors and other concepts that help people flourish, rather than merely exist – a field that is dismissed by some researchers as fluff, with insufficient rigor to its research. "There's a good portion of clinical psychologists that don't see much merit in positive psychology. I would say most people are skeptical of it," said Patrick McKnight, one of Kashdan's colleagues at Mason. "And a small minority just think it's the greatest thing since sliced bread." Kashdan says he's not so much positive psychologist as provocateur. "He's always questioning the norm in the field," said Jeffrey Froh, an assistant professor of psychology at Hofstra University. "I don't know where he gets his ideas. He's hands-down one of the most creative people I've ever met in my life." It's never too late in life to foster curiosity and even in the midst of the most mundane tasks, Kashdan says. Even the painful, the repetitive, the most mind-numbing tasks can keep people engaged. If people train themselves to be more attentive to the details, rather than drifting along on autopilot, they'll find that "there's beauty and intrigue around us everywhere – as long as we're open to what's around us," Kashdan says, sitting in an almost-dark office at George Mason with a single bright desk light, casting his face in shadow. Kashdan says he thinks people can spark their curiosity to stay engaged in family life by learning from the way a small child can be transfixed by a sponge, say, or play happily with a stick for an hour. A child's sense of wonder and delight over the ordinary is instructive, he says. McKnight, Kashdan's colleague, points out that there are downsides to curiosity, too: Some of their colleagues treat patients who are unable to finish projects because they're so easily distracted. Kashdan touches on some of that in the book, nothing the pathology of excessive curiosity: stalkers and flashers and people with morbid interests that dominate their
thoughts.
— By arrangement with LA Times-Washington Post
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