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A Tribune Special |
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Improve councils first, corporations can wait
Protecting witnesses
On Record
Profile
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A Tribune Special
The PSCs, said Dr Prasad, “had been placed on an independent footing so that they may discharge their duties without being influenced by the executive”, and “there is no room for jobbery, nepotism and favouritism”. The Constitution has ensured the independent functioning of the PSCs with adequate protection for the members to perform their duties without fear or temptation. The service conditions of a member cannot be varied to the disadvantage of the incumbent; he enjoys a fixed non-renewal tenure of six years and he can be removed from office only after inquiry by a Supreme Court judge. These are intended to ensure that the members can perform their duties without ‘fear’ of adverse consequences of their objective and unbiased decisions. The absence of ‘temptation’ has been sought to be secured through the Constitutional provisions which not merely prohibit the renewal of tenure but also severely curtail their eligibility for any further office under the government. While there is a total estoppel on further appointment of the Chairman of the Union Public Service Commission, the UPSC members and the Chairman and members of the State PSCs are eligible for further offices only within the service commission set up. Incidentally, there are no similar restrictions on further appointment of members of the apex judiciary. Dr Ambedkar had been at pains to justify the restraint on the PSC members on the ground that the PSCs would be “deciding matters in which the government is directly interested, i.e. the recruitment of persons to the civil service”. Besides recommending candidates for appointment to the services, the PSCs are mandated to perform several other functions including rendering advice to government on disciplinary cases. In the light of the above, the Kerala government’s reported recommendation for appointment of a dismissed subordinate Central government servant as a State PSC member must cause consternation and dismay. Dismissal from service is the ultimate penalty in the repertoire of penalties prescribed in the disciplinary rules and it can be awarded to a government servant only after complying with the requirements of Article 311 of the Constitution. Dismissal from service not merely deprives the employee of all benefits like pension and gratuity but also acts as a disqualification for future employment under the government. In view of its severity, the penalty of dismissal is not lightly imposed and is visited on a government servant in what might be described as rarest of the rare cases consistent with the gravity of his misconduct. There are departmental as well as judicial remedies against the penalty. The dismissed employee now recommended for appointment to the PSC would, no doubt, have exhausted or explored these remedies. Since the PSC is technically not under the government, a legal fiction may exclude the PSC member’s office from the definition of “employment under the government” for which a dismissed government servant stands disqualified. But the question transcends from mere legality to morality and propriety with ethical dimensions. There is a distressing irony in the appointment of a dismissed government servant to a constitutional body when he stands otherwise disqualified for any further employment under the government. The PSC stands exposed to a double whammy since the Left Unions had reportedly protested against his dismissal imparting thereby blatantly political overtones to the matter. The PSCs’ constitutionally guaranteed independence carries an embedded corollary that persons of eminence with proven track record and unimpeachable credentials alone will be appointed on these bodies. But this has not happened on several occasions with cases of Punjab and Bihar PSCs being only too well known. A UPSC member had quit when his tainted past caught up with him. The ultimate casualty is the credibility of the very institution of PSCs. While the founding fathers had laid down most rigorous conditions and procedures in the Constitution for the removal of a PSC member, the entry conditions for appointment have been left nebulous. The Constitution merely prescribes that at any time as nearly as may be one-half of the total number of members should have held office for ten years or more under the Central/state government. There are no requirements as regards educational qualifications and even the level at which such an appointment should have been held under government has not been specified. There is no mention about the conditions of eligibility for appointment of other members i.e. those who have not held office under the government. Consequently, while elaborate and precise sets of qualifications are laid down for selection of persons for every government job, the selectors themselves have no such precise requirement. The founding fathers had apparently immense faith in the sagacity and integrity of those who would implement the Constitution, which Dr Rajendra Prasad had emphasised, was otherwise lifeless, like a machine. That faith has been found to have been misplaced. Though the Governor, who is the appointing authority, is ordinarily required to go by the advice of the council of ministers, he is also enjoined upon by the oath of his office to preserve, protect and defend the Constitution and the laws, in letter and spirit. Situations of the type created by the Kerala episode are, however, best avoided. It is necessary to formally institutionalise a transparent system that ensures appointment of meritorious persons with impeccable credentials as members of the PSCs. Such a system should prescribe the educational and other qualifications for service as well as non-service persons, ensure wide publicity to the forthcoming vacancies, provide for rigorous screening of candidates through an independent high-powered committee of experts, some of whom must be non-officials and, above all, associate the Leader of the Opposition in the final selection thereby insulating the appointment against political considerations. Several templates are available in the systems prescribed for appointments to statutory bodies like the Central Information Commission. Bureaucracy has a vital role even in a progressively liberalising economy, being pivotal to policy formulation, governance including maintenance of law and order and programme delivery. The PSCs that are mandated to select the bureaucrats must inspire confidence. There is urgent need to save the institution.n The writer is a former Deputy Comptroller and Auditor General of India |
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Improve councils first, corporations can wait
The Bhupinder Singh Hooda government is reportedly contemplating seven new municipal corporations ahead of the municipal elections in April by upgrading the status of the existing municipal councils. Two years back, the government had elevated the Gurgaon municipal council to Municipal Corporation, making it second such body after Faridabad. If approved, the new additions would be Ambala, Hisar, Karnal, Panchkula, Rohtak and Yamunanagar. Haryana has a three-tier structure of urban local government — municipal committees, municipal councils and municipal corporations. The status of municipality in each city depends upon its population like a municipal committee for a transitional urban area with population up to 50,000 followed by municipal council for a smaller urban area with population above 50,000 and below three lakh and finally spearheaded by a municipal corporation for an urban area with over three lakh population. Though the original municipal Act provided for a population limit of five lakh for constituting a municipal corporation, by the amendment Act of 2002, the Chautala government reduced it to three lakh. Even for the attainment of this limit, in case of certain municipal corporations, the state would have to carry out clubbing of urban areas and inclusion of rural areas for new municipal limits. The government says that new corporations will give a boost to cities. But would upgradation strengthen their functional and financial autonomy? Consider Faridabad. Though its municipal corporation was set up in 1994, it has not made significant contribution to effective municipal governance. A serious appraisal of this corporation is a must before setting up new ones. A municipal corporation is a multi-functional body whose tasks, wider than that of a municipal committee or council, include playing the role of a partner in the execution of large-scale infrastructure projects by private entrepreneurs, providing state-of-art civic amenities, setting up and maintenance of municipal hospitals, primary schools, welfare and recreational centres, gymkhana clubs etc. For this, easy and timely flow of funds is a pre-requisite. The lack of resources available to state municipal bodies after the abolition of octroi in 1999 and waiving of house tax and less avenues in levying of fee, taxes and tolls have made these bodies almost bankrupt. Though these bodies sustain on government grants, these are inadequate. Sometimes it is difficult for a municipality to pay even salaries to its staff, let alone spending on development and maintenance works. The state should first take effective steps to improve the financial position of municipalities rather than creating corporations. The All India Mayors’ Meet in Chandigarh (2007) stressed the need for devolution of more powers and availability of sufficient resources to municipal bodies by the state governments. The participants lamented that lack of funds and powers were preventing the municipal bodies in taking up the tasks of urban development and municipal governance. These institutions ought to be strengthened and made self-reliant so that they can effectively function as the third-tier of the government in tune with the spirit of the 74th Constitution (Amendment) Act of 1992. The sixth report of Second Administrative Reforms Commission titled “Local Governance” (2007) also calls for measures to rejuvenate and reorganise the civic bodies to make them citizen- centric. Stressing democratic decentralisation, the report recommends parliamentary legislative framework on the lines of the South African law for laying down broad principles of devolution of powers. The local bodies have been called to take over functions of power and water supply as well as to evolve a unified metropolitan transport authority to deal with the growing problem of urban transport. It is quite clear that our present municipal bodies are not yet ready for all these tasks. We need to make our existent municipal bodies strong and vibrant enough to tackle the emerging challenges in local governance. Let the state government shun the idea of constituting new municipal corporations for now. Instead, it must focus on improvement, empowerment and overhauling the existing urban local government structure to make the municipalities functionally autonomous and financially strong and viable enough to discharge their functions effectively as enshrined in the Twelfth Schedule of the Constitution. Haryana had constituted its own Administrative Reforms Commission some time back. Till date it has submitted just one report on District Administration. The state government should direct it to examine the issue of strengthening local government institutions thoroughly by studying the best role models in local governance at the national and international level. As and when new municipal corporations are constituted, they should have enough resources, powers and expertise to achieve the desired results in urban development.n The writer is Advocate, Punjab and Haryana High Court |
Protecting witnesses
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witness is an indispensable aid in the justice dispensation system. According to Bentham, “Witnesses are the eyes and ears of justice”. A witness performs an important public duty of assisting the court in deciding the guilt or otherwise of the accused person. Under Section 39 of the Criminal Procedure Code 1973, citizens are legally duty-bound to give information to the police about crime and criminals. However, adequate public cooperation and support in criminal investigation is not available. Even informed and enlightened citizens avoid becoming prosecution witnesses. Most who come forward to depose in criminal cases are either interested witnesses or those procured by the police and the complainant for various considerations. For want of independent and quality witnesses, majority of the criminal cases fail in the court of law. This problem is acute and warrants immediate diagnosis and correction. The National Police Commission observed that the biggest hurdle that inhibits the citizens from coming forward to help the police is the deplorable condition in the courts. Cases are adjourned invariably at the fag end of the day after keeping witnesses waiting. Even while fixing the next date, the witnesses’ convenience is not kept in view. In most cases, only those agree to come to depose who have their own axe to grind. Unless independent and willing witnesses come forward to participate in the justice delivery system, truth cannot be established and justice would remain a cry in the wilderness. In the Godhra riots cases, the Supreme Court aptly observed, “Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that the ultimate truth is presented before the court and justice triumphs and the trial is not reduced to mockery”. The Malimath Committee on Reforms of Criminal Justice System inferred that the witnesses have no protection whatsoever. There is no law for witness protection in India barring a few sections of the Indian Evidence Act, 1872, which protect a witness from being asked indecent, scandalous and offensive questions including those which would annoy or insult him. The Law Commission, in its 14th Report (1958), referred to “witness protection” in a limited sense that related to proper arrangements being provided in the court and the scales of travelling allowance and daily allowance. The National Police Commission Report (1980) dealt with the inadequacy of daily allowance for the witnesses. The 154th Report of the Law Commission (1996) contained a chapter on the protection and facilities to witnesses in the court. In its 178th report (2001), the Law Commission recommended the insertion of Section 164A in the Cr PC to provide for immediate recording of the statement of material witnesses in heinous cases in the presence of magistrate on oath where the witnesses are reported to be under threat and coercion by the adverse party. Subsequently, the Criminal Law (Amendment) Bill, 2003, was introduced in the Rajya Sabha but it could not become a law. This proves that witness protection has never been a priority with the legislators. Several countries have adopted the Witness Protection Programme (WPP). China promulgated the WPP Act in 2000 in Taiwan. Article 11 of the Act provides the procedure to hide the name and identity of a protected witness. Disclosure of identity of that protected witness, knowingly or unknowingly, is made punishable. In South Africa, the Criminal Procedure Code provides for keeping a witness in ‘protective custody’, if deemed necessary. Protection is involuntary and witnesses are only allowed access to their lawyers with permission. The law relating to witness protection in the US is elaborate. The Organised Crime Control Act 1970 provides for a WPP. The services provided to the protected witness may include physical protection, documents for a new identity, housing, transportation, etc. The sole purpose behind a WPP should be to ensure that witnesses depose before the court freely, truthfully and without any fear. The WPP is bound to fail if the trials are not concluded expeditiously. In India, providing adequate personal security to the witness during and after trial for a sufficient period seems to be a viable solution. Recording of the statement of threatened witnesses by the magistrate immediately may be a meaningful ingredient of a WPP in India. It would render the threat and coercion futile. Unfortunately, in India, witnesses are truthful and even fake ones depose without fear. The WPP should guard against the eventuality of a fake witness getting protection for deposing falsely. False depositions by the witnesses in the Best Bakery case and the Jessica Lall murder case are eye-openers. The law and procedures relating to perjury require complete re-orientation. A system may be evolved to put the trial of selected cases in which the witnesses report threats by the other party on fast track. Coercion of witness may be defined as a separate offence in the IPC attracting severe punishment. The improvement of facilities for witnesses in the courts should be the first agenda in an effective WPP. Political will and administrative support are a must for an effective WPP. The convenience of the witnesses should occupy centre-stage in the scheme of a workable WPP. It should be based on a model which is need-based and
practicable. |
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On Record
Innovation is the name of the game at the Sardar Vallabhbhai Patel National Police Academy in Hyderabad, which imparts training to Indian Police Service officers, is now fine-tuning its training modules to help them meet the changing requirements and face the new challenges. At the helm of the Academy is K. Vijay Kumar, a senior IPS officer who shot to national fame when he led the Special Task Force (STF) that gunned down forest brigand Veerappan in October 2004. In an interview with The Tribune in Hyderabad, he spoke about the increasing challenges to policing, the security scenario and plans to strengthen the training curricula for IPS officers. Excerpts: Q: The policemen are ill-equipped in dealing with terrorist activities. How do you plan to tackle this? A: We are in the process of setting up a Special Tactical Wing with the Union Home Ministry’s support. The Rs 8-crore project envisages special Q: What changes has the academy incorporated in its training methods to keep pace with the change? A: We have made constant efforts to improve and update the training Q: The police officers are always dubbed insensitive to human rights. Do your training modules deal with sensitising the IPS probationers? A: Yes. Concepts related to different facets of law, human rights, secularism and social justice are some of the core elements of the training curricula. We have been inculcating among police officers the highest standards of professional conduct, integrity and sensitivity to the needs and aspirations of the people. Q: A common complaint is that senior police officers become A: The Mid-Career Training Programme (MCTP) would widen the arc of one’s comprehension. This covers officers of 7-9 years of seniority in Similarly, officers of 14-16 years seniority will go through Phase IV (four Q: You are an iconic police officer for your role in eliminating Veerappan. Will you make jungle warfare a part of training curriculum? A: Jungle warfare is now an important part of training curriculum here because it may help them plan operations effectively, It also instills tremendous discipline, courage and leadership. Q: With growing cyber crimes through a complex web of international networks, new technologies have become a must for the police. Any plans to make our police officers more technology-savvy? A: We are working with NASSCOM to impart training to IPS officers to deal with cyber crimes and other such offences. We are in the process of establishing a National Digital Crime Resource Centre in association with NASSCOM. Q: What is the status of POTNET? What are its long-term objectives? A: POTNET is a web-based police training network for drawing upon and sharing training resources, experiences and innovative practices. Q: The threat of urban warfare looms large over our cities. Any plans to sharpen the trainee officers’ skills in urban tactics? A: We are focusing on new techniques to tackle urban terrorism with inputs and practical exercises from Maj-Gen V.K. Dutta (retd). Fitness benchmarks have been raised by 15 to 25 per cent in select areas. Intelligence gathering is another important area and for this Andhra Pradesh’s Special Intelligence Branch has taken the lead in conducting practical exercises in intelligence gathering. Q: Are you planning tie-ups with training institutions abroad? A: Yes, we are planning more tie-ups with the Home Ministry’s approval. Maldives and Bhutan are regular subscribers to our training. Earlier, we had Palestine, Afghanistan and other countries as
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Profile Evidently, the appeal of Indian leaders including that of Union Home Minister P. Chidambaram to Husain is too late and he is in mood to change his decision. Husain is right when he says nobody, including the political leadership, came to his aid when the Sangh Parivar targeted him. Now they are asking him to come back. “How can I trust a political leadership that refused to protect me”? “Is there any surety that I would be given protection in India?” The artist lived abroad like a fugitive since 2006. Nevertheless, he would visit India if he got an opportunity. About his works that landed him in controversy, Husain says, he did not intend to hurt anybody’s sentiments through the art. “I only expressed my soul’s creativity through art. Art’s language is universal language. People who love it beyond narrow viewpoints are my strength”, he is quoted as saying. In the 1990s some of Husain’s works became controversial because of their portrayal of Hindu deities in the nude. The paintings in question were created in 1970 but did not become an issue until 1996 when they were printed in a Hindi monthly magazine. The controversy escalated to the extent that in 1998 Husain’s house was attacked by Hindu groups like the Bajrang Dal and the art works were vandalised. The leadership of the Shiv Sena endorsed the attack. A series of cases were brought against him in a court case related to the alleged obscene depiction of Hindu goddesses in his paintings resulted in the issuance of a non-bailable warrant against him. According to reports, as many as 1,250 cases were filed against him all over India. There were also reportedly death threats. Husain left the country stating that “matters are so legally complicated that I have been advised not to return home”. In a recent order, the Supreme Court has suspended the arrest warrant. Husain became well known as an artist in late 1940s. In 1947, he joined the Progressive Artists’ Group founded by Francis Newton Souza. This was a group of young artists who wished to break with the nationalist traditions established by the Bengal School of Art. In 1952, Husain’s first solo exhibition was held in Zurich and over the next few years, his work was widely seen in Europe and America. As far back as 1955, Husain was awarded the Padma Shri. In 1967, he made his first film, Through the Eyes of a Painter. It was shown at the Berlin Film Festival and won a Golden bear. Husain’s career touched a new high when he was decorated with the Padma Bhushan in 1973, nominated to the Rajya Samba in 1986 and awarded the Padma Vibhushan, India’s second highest award, in 1991. He became the highest paid painter in India. His single canvasses have fetched up to $2 million at a Christie auction. Husain was not confined only to painting. He also produced and directed a few movies, including Gaja Gamini (with his muse Madhuri Dixit, who was the subject of a series of his paintings which he signed Fida). The film was intended as a tribute to Madhuri herself. In this film, she can be seen portraying various forms and manifestations of womanhood including the muse of Kalidas, the Mona Lisa, a rebel and a musical euphoria. He went on to make Meenaxi: A Tale of Three Cities (with Tabu). His autobiography was made into a film titled The Making of the Painter. Husain was born on September 17, 1915, in Pandharpur, Maharashtra. He lost his mother when he was one-and-a-half years old. Husain’s father remarried and moved to Indoor. Husain did his schooling from Indore. In 1935, he moved to Bombay and joined Sir J. J. School of Art. He started off by painting cinema hoardings and first came into limelight as painter in the late 1940s. In 1952, Husain's first solo exhibition was held at Zurich and soon he became popular in Europe and the US. Indeed, he is a celebrated
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