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Grains of wrath
Ragging menace |
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Fouled up
Not the Centre’s agent
Is she our Perizad?
Parliament must act on reforms
Words and no action on legal reforms
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Grains of wrath THOUGH the Supreme Court has very categorically said that it is a crime to waste food in a poor country like India where millions go hungry, the situation is unlikely to change on the ground in the near future. The official apathy may be shocking for the Supreme Court and for the citizens feeling the heat of high food prices, but for the government it is a routine matter. Media reports of large quantities of food grains going down the drain have not forced representatives of the people in the government and in the Opposition to sit together and find ways and means of stopping the rot. They are rather bickering over whether there should be voting or not after a debate on price rise. Instead of building silos, on their own or in partnership with private firms the Central and state agencies have remained mute spectators to the massive grain loss year after year. Media reports indicate that 140 million tonnes of food grains are lost in the country due to improper and inadequate storage facilities. The FCI admits there is a shortfall of 150 lakh tonnes of storage space but expects states to create additional capacity. A Punjab agency, Pungrain, had to cancel tenders for building godowns twice in the past seven months due to poor response from private players, who feel the returns are not good enough. Moreover, they do not want to be left at the mercy of FCI officials. Presiding over the mess is Agriculture Minister Sharad Pawar, who is already in the firing line for the relentless price rise. Before the monsoon he had held out the threat that criminal action would be taken against officials responsible for foodgrain wastage, if any. Nothing has happened. The Centre has no alternative except to encourage private and public investment for building sufficient scientific storage space for farm produce. Otherwise, the Supreme Court should teach the government a lesson or two in better food management.
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Ragging menace THE national outcry that followed a year ago when Aman Kachroo, a medical student in Himachal Pradesh, died allegedly due to ragging, made one believe that the menace will be finally curbed. Not only did the death of the medical student stir up national consciousness and woke up people to the evils of ragging but the government too made the right noises. Shockingly a year later, the practice continues to claim lives and the last academic session alone saw 19 ragging deaths. The perceived injustice done by the lower court which had granted bail to the four accused students in the Aman Kachroo case may have been redressed by the High Court and needs to be welcomed. However, the scourge of ragging evident in doubling up of ragging cases in the 2009-2010 session is far from over. Ragging, a colonial legacy, has transformed into a barbaric practice often manifesting in violence and sexual abuse too causing severe trauma to its victims. The Supreme Court banned it in 2001 and rightly issued many stern directives in the wake of Aman Kachroo’s death. A national anti-ragging helpline that has since received nearly 1.8 lakh calls too was launched. But the fact that only 400 cases, that too with no follow up, were registered is a clear indictment of both regulatory bodies like the UGC and the AICTE as well as educational institutions. Besides it has taken the government more than 14 months to nominate an independent agency which would keep track of anti ragging measures. Anti-ragging measures cannot be allowed to be a mere cosmetic exercise such as specifying punishment in brochures or taking an undertaking from parents of wards. The government must evolve a suitable mechanism to ensure that the anti-ragging helpline is not only able to track cases but also follow it up with deterrent action. Ragging cases must be lodged as police complaints as the Panjab University, Chandigarh has decided to do. Anti-ragging drive will remain an empty rhetoric till educational institutions own up responsibility. Besides, regulatory bodies like the UGC and the AICTE which have so far failed to take suitable action, let alone crack down on erring institutions, must also get their act together.
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Fouled up POLITICS and administrative shenanigans have fouled up the game for which India was justly famous—hockey. The administrators and officials of the game have done a great disservice to hockey by playing politics to such an extent that there is a real danger of the International Hockey Federation (FIH) expelling the eight-time Olympic gold medal winners and former world champions from international competitions, including two important ones that are scheduled to take place in near future—the Women’s World Cup in Argentina, and the Commonwealth Games that Delhi is hosting. The Government of India too shares the responsibility for this sorry state of affairs, in which there are simply too many bodies, at the Central level, and in states. It failed to follow the FIH guidelines that advocate a single body for both men’s and women’s hockey at the Central level. Although the Indian Hockey Confederation was formed in 2003 at the Central level, no such exercise was done for all the state bodies, and in fact Punjab had four hockey units and Maharashtra had six. On top of that the 2008 de-recognition of the KPS Gill-led Indian Hockey Federation became an embarrassment when recently the Delhi High Court overturned it. There are too many cooks who are spoiling the broth. The Supreme Court is likely to intervene in this matter, especially since cases regarding this are pending in nine high courts. In the meantime, the government and leaders of various factions must work out an arrangement that allows India to follow FIH rules, and build an organisation that will allow hockey players to perform on the field. Overall, the women’s hockey team has done better than the men’s team. The recent sex scandal has already hit its morale. Every effort must be made to sort out this tangle before the next international event, which is the Women’s World Cup in Argentina.
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Perform your allotted duty. For action is superior to inaction. By desisting from all actions, you cannot even maintain your body. — The Bhagavad Gita
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Corrections and clarifications
Despite our earnest endeavour to keep The Tribune error-free, some errors do creep in at times. We are always eager to correct them. This column appears twice a week — every Tuesday and Friday. We request our readers to write or e-mail to us whenever they find any error. Readers in such cases can write to Mr Kamlendra Kanwar, Senior Associate Editor, The Tribune, Chandigarh, with the word “Corrections” on the envelope. His e-mail ID is kanwar@tribunemail.com.
Raj Chengappa
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Not the Centre’s agent
THE Governor is appointed by the Centre but is not its agent. A wrong perception of his being so has gained currency mainly on account of many Governors acting in a blatantly biased manner. A Governor is a constitutional authority who derives his powers from the Constitution. He should be carrying out his duties like a judge on the basis of his own judgment and in accordance with the provisions of the Constitution. He is not required to act on directions from the Centre. In 1946, Sir Frederick Burrows, the Governor of Bengal, asked Mahatma Gandhi that with a popular government in power what was a governor expected to do. The Mahatma replied: “Nothing.” This advice given to a British Governor who wielded considerable executive authority underscored the fact that even in those days, a Governor was not expected to interfere with the functioning of a popular government. After Independence, there was a strong opinion against continuing the institution of Governor. Biswanath Das, a former Chief Minister of Orissa during the debate in the Constituent Assembly, stated, “Now we are going to have democracy from toe to neck and autocracy at the head.” While accepting to retain the office of Governor, the Constituent Assembly ensured that that did not happen. The Constitution clearly defines the Governor’s role. On all matters, he shall act on the advice of the council of ministers except when selecting a Chief Minister. He can recommend President’s rule in special circumstances and in that event, temporarily govern the state. A section of opinion in the country now feels that the Governor is an unnecessary relic of the Raj and we could do without this institution. I feel that besides his role defined in the Constitution, a Governor has other useful roles. He is a State symbol above the cut and thrust of politics. It is for nothing that in his address he uses the term ‘My Government’. He should equally well use the term, ‘My Opposition’. He should endeavour to earn the confidence of both. He should advice and caution the Chief Minister away from public glare. During discussions in the Constituent Assembly, the calibre of the individual to be appointed Governor and his political impartiality were discussed at length. Jawaharlal Nehru wanted noted educationists or people eminent in other walks of life, who have not taken too great a part in politics, to be appointed Governor. T.T. Krishnamachari urged that a Governor should hold the scales impartially between the various factions in the politics of the state. Alladi Krishnaswamy Iyer was of the view that a Governor should be a person of undoubted ability who at the same time is not mixed up in party struggle or factions. The emphasis by everyone was on the political impartiality of the Governor. Unfortunately, in practice, this requirement has often been ignored. Active politicians from the ruling party are often appointed Governor. We have seen them playing musical chairs between Governor, Chief Minister and Union Minister. This tends to undermine the impartial image of a Governor. Some Governors have been notoriously partisan and have been following the dictates of the Centre. At the same time, there have been exceptions where Governors have taken a principled stand. Surjit Singh Barnala refused to go along with the Centre and recommend the dismissal of the first Karunanidhi Government. He resigned as Governor. B.K. Nehru took a similar stand in respect of the Farooq Abdullah Government. He was transferred to Gujarat. After the Emergency, the Janata Party Government summarily dismissed all the Congress-appointed Governors. On return to power, the Congress did a repeat for Janata-appointed Governors. In 2004, the UPA government sacked four NDA-appointed Governors. I was high up on the list to be removed, with my Chief Minister desperately trying to get me out, but somehow I escaped the guillotine. The Constitution provides a five-year tenure for a Governor but he holds office at the President’s (by extension the Centre’s) pleasure. His position is very insecure as compared to other constitutional authorities or government employees. The Sarkaria Commission report states that between 1967 and 1986, 298 Governors were appointed and of them only 18 could complete their full five-year term. The recent Supreme Court judgment on the Governor’s tenure should provide security of tenure to Governors just as the judgment on the Kesavanand Bharti case ended the era of arbitrary dismissal of state governments. Let me focus now on the row over the transfer of a 100-acre plot of wasteland at Baltal, traditionally used as base camp for Amarnath pilgrims, to the Amarnath Shrine Board. A mass agitation was organised against the Baltal land transfer to arouse communal and anti-India feelings. This land is unapproachable and uninhabitable due to heavy snow for eight months in the year. Yet, a canard was spread that Hindus were going to be settled at Baltal with a view to changing the Valley’s demography as Israel had done in Palestine. In this theatre of the absurd, PDP Ministers who had processed this case for three years recommending it to the Cabinet and had been a party to the Cabinet decision to divert the land to the Shrine Board joined this agitation. Mufti and his party went full blast to support this agitation. To appease the agitators, the government cancelled the Baltal land transfer and even dissolved the Amarnath Shrine Board. This led to three months of counter-agitation in Jammu. Ultimately, the government was forced to restore status quo ante. The Valley Press, as usual, played a very negative role carrying out totally false and mischievous propaganda. The national secular media showed little awareness of the problem. It stated that I, as the Governor of Jammu and Kashmir, had transferred the land on the eve of my departure and set the Valley on fire when I had nothing to do with that Cabinet decision beyond approving the application of the Board three years earlier. As for the constitutional crisis involving Karnataka Governor H.R. Bhardwaj, I had occasion to interact with him when he was the Union Law Minister and I found him helpful. However, his handling of the Quattrochi scandal in regard to defreezing his London Bank account and letting him off the hook in Argentina shocked right-thinking people. A similar development has now taken place in Karnataka. A Congress MLC complained to the Governor against three Cabinet Ministers. Instead of forwarding the complaint to the Speaker, the Lok Ayukta, the Election Commission or the Chief Minister, for taking suitable action, he issued show-cause notice to the Cabinet Ministers and asked them to appear before him. For the first time in the history of Indian democracy, a Governor has taken such an unconstitutional step. As the Ministers declined to appear before him, he forwarded the complaint to the Election Commission. He has now been publicly insisting that the Ministers be dropped from the Cabinet and the CBI should investigate the case. He even came lobbying to Delhi in full media glare and met the President, the Prime Minister and the Home Minister. It is the Chief Minister’s prerogative to drop ministers from the Cabinet. The Constitution provides for the Governor to recommend dismissal of the government but not of individual ministers. A Governor has the right to caution and advise a Chief Minister but this should not be done publicly. There have been numerous cases of ministers at the Centre and in the states being involved in corruption but has any President or Governor publicly asserted that the Minister concerned be dropped? On the face of it, a major violation of the Constitution in letter and spirit appears to be taking place in
Karnataka. The writer is a former Governor of Assam and Jammu and Kashmir
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Is she our Perizad? JOIN Facebook and meet 64 of your Carmel classmates”, read an e-mail from Dilara Bastawala, the only old school friend I was in touch with. Delighted, I overcame my hesitation and signed up with my teenaged daughter’s help even as she added: “It’s difficult for adults but easy if you concentrate, Mom!” In the days that followed, Havovi, Priti and Vidya showed me the ropes and sent me “friends’ suggestions” for 60 other classmates – most of whom I remembered without difficulty. It was great seeing all their pictures. Nirupama even had a scanned copy of Macaulay’s Minutes among her photos, while Smriti had a closeup of Ashoka’s pillar inscription which presumably she could read — we certainly couldn’t. Our ‘friends list’ swelled through collective effort. I chanced on one Perizad Van der Dyke-Smith and wondered if she was actually Perizad Anklesaria, our classmate. The others said: “She is indeed our Perizad, except that she now looks so poised and chic.” However, I was unable to reconcile the image of “our Perizad”, a tomboy, with the elegantly turned out lady in the pics. I also noticed that Ms. Van der Dyke-Smith was a good 10 years older than all of us. I drew everyone’s attention to this incongruity. Soon the conjectures flew: “People do change from tomboys to fashionistas, you know” or “The year of birth must be a typing mistake.” Rukhsana Ginwalla wrote: “She is our Perizad, for sure. I sent her a Zoroastrian prayer and she even thanked me for it!” I said to my friends, “I am going to ask this Perizad Van der Dyke-Smith to confirm that she is Perizad Anklesaria.” They felt that I was being unduly suspicious as everyone was sending Perizad messages and receiving responses too. Unconvinced, I wrote to Perizad of the double-barrelled name asking her if she had passed Class X from Carmel in 1984. I received no reply. “That doesn’t mean she really is our Perizad !” I insisted. Then Sanghamitra Roy announced: “Girls, guess what? I met our Perizad in Kolkata. She is now Perizad Banerjee and has a son named Kaiser-Shantanu.” “Awwww !” went the collective groan on Facebook as realisation dawned. While our Perizad lay tucked away in Kolkata all along, another Perizad, a complete stranger, had become a part of our group! It was going to be very awkward to shake her off. It seemed that the only thing in common between the two Perizads was the double barrelled name : our Perizad had one for her son while the trendy, glamorous interloper had one for herself! Last heard, Perizad Van der Dyke- Smith was responding with amusement and good grace to eager questions from our group. She turned out to be a resident of Johannesburg with no Indian connection. But she loved her Parsi-sounding name and the scores of new Indian friends it had brought her. Nobody had the heart to ‘un-friend’ her. After all, we were grown up and knew how to deal with life’s twists and turns! Our new Perizad seemed to have become a very pleasant mascot of our quest to trace old friends, no matter what the
consequences!
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Parliament must act on reforms
Even after six decades of Independence, a sizeable section of our population is poor and illiterate while the constitutional mandate was to provide for free and compulsory education within ten years. Empowerment comes through education, but mere learning is not education. Inculcation of values underlying the Preamble, Fundamental Rights and Fundamental Duties in the Constitution is a must. Character building through liberal education stands neglected. The Election Commission is unable to regulate political parties for want of power to cancel their registration when they act contrary to their solemn assurance to bear true faith and allegiance to the Constitution, to practise secularism and uphold the unity and integrity of India. Public Service Commissions in several states are packed with incompetent and corrupt henchmen of the leaders in power. Chief Ministers and ministers in several states make money in transfers and postings of officials. The sovereign people of India in whose name and for whose benefit the Constitution was made, are helpless. Winning a seat is more important for a representative than serving the constituency. The choice of ministers is guided by expediency and not fitness and integrity. Lack of good governance and corruption breed litigation. The judiciary is unable to cope with the demand for justice. The litigants are waiting in unending queues. Corruption has entered the ranks of the judiciary. The quality of justice is not the same as before. The judiciary being the last hope, the common man is worried. Radical reforms are imperative to stem the rot and restore vitality to the legislature, the executive and the judiciary. Electoral reforms are a must to keep away undesirable elements who get elected with money power, muscle power or both or on the basis of appeal to caste and community and to bring into the legislatures well-equipped, clean, secular minded and service-oriented persons. There is no dearth of such persons. The Dinesh Goswami Committee, the Indrajit Gupta Committee, the Law Commission of India and the National Commission to Review the Working of the Constitution have suggested wide ranging electoral reforms. The late Vice-President Krishan Kant suggested two amendments to the Representation of the People Act, 1951: (a) to make it necessary for a candidate to secure at least 50 per cent + 1 vote out of those polled in a constituency to get elected; and (b) to provide for a negative vote. If a majority of the voters reject all the candidates contesting through negative vote, there should be a fresh election with new candidates. If these were implemented, the political parties would be constrained to field better candidates. No one then can win a seat relying on caste or community. Administrative reforms are equally important to ensure recruitment on merit for each and every post under the state including posts in public sector undertakings. Persons recruited on extraneous considerations cannot match the terrorists who are well-equipped, well-trained, well-motivated and prepared to die for their cause. The Prevention of Corruption Acts, 1947 and 1988 have not achieved their object. Convictions are few and acquittals are many. There should be a provision to get rid of public servants of doubtful integrity at anytime in public interest. The Bakshi Tek Chand and K. Santhanam Committees had made recommendations for tackling bribery and corruption. The National Police Commission recommended police reforms. In Prakash Singh’s case, the Supreme Court issued certain directions to the Union and States which are yet to be implemented. In 2006, the Veerappa Moily Committee suggested meaningful measures for better administration. Eminent judges, jurists and the Law Commission have suggested extensive judicial reforms. To improve the quality of judicial appointments, the power of selection should be vested in a National Judicial Commission. Alternatively, a statutory search committee should suggest panels of candidates for consideration by the Collegium of Judges. Separate search committees are required for the selection of suitable chairmen and members of service commissions. The Press Council of India’s suggestions for effective regulation of the media including the electronic media merit implementation to ensure effective self-regulation and checking the menace of paid news, which compromises the independence of the Fourth Estate. Reforms need reformers. Will the political leadership across the spectrum join hands to solve the problems by concerted action? If they get together and carry out a few amendments to the Constitution and the laws and have them implemented, things would definitely improve. Parliament alone has the power to reform the law. Who can make Parliament act?
The writer, a noted constitutional expert, is Senior Advocate, Supreme Court
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Words and no action on legal reforms RECENT events have brought to the fore the urgent need for legal reforms to fast track cases, provide easy and affordable access to justice and prevent corrupt elements from entering the judiciary, higher and subordinate. Union Law Minister M. Veerappa Moily is firm on reducing the average time span of court cases from the present 15-17 years to two-three years. Even before he could take concrete steps for achieving this, the trial court verdict in the 26-year-old Bhopal gas leak case was out, much to the embarrassment of the government and to the dismay of the victims and the nation. The six convicts got a mere two-year jail term for the world’s worst industrial disaster. It is not that the judiciary, the investigative machinery or the prosecution is responsible for the delays and apparent miscarriage of justice in most cases. Where there is a will there is a way. And this has been proved in the Mumbai terror attacks in November 2008 and Parliament attack in December 2001. The trial took just one year in the case of Ajmal Kasab, the prime accused in the Mumbai case, and two years in the Parliament attack case. In both cases, the main accused got death penalty. In the Parliament case, the Delhi High Court and the Supreme Court dealt with the appeals in record time and the dithering crept in only later, the culprit being the executive which is sleeping over the mercy petition of Afzal Guru for over four years now. While reforms are the need of the hour, the government and the legal fraternity know that the way forward is full of hurdles. This became evident when the Judicial Standard and Accountability Bill was met with stiff resistance within the Union Cabinet, forcing the draft to be referred to a Group of Ministers. The Bill reportedly has provisions for disciplinary action against erring judges, short of impeachment which has proved to be nearly impossible. The issue relating to Justice P.D. Dinakaran is a classic example of apparent goof-ups by both the judiciary and the executive. The impeachment move against Justice Soumitra Sen of the Calcutta High Court will depend upon the report of the Justice B. Sudershan Reddy committee. Another pointer to the difficult reform road that lies ahead is the widespread opposition to the Bar Council of India’s (BCI) proposal for holding an all-India entrance examination for fresh law graduates before allowing them to practise in courts. Besides students, the State Bar Associations are up in arms against the move. The Centre is yet to muster courage for notifying the 2008 amendment to the Crimal Procedure Code facilitating bail for persons charged with offences punishable with seven years in jail or less. Advocates are fighting tooth and nail against it for obvious reasons. Mr Moily says he is firm on making his tenure an era of legal reforms. He unveiled a blueprint for pruning cases involving the Centre or the states as litigants. However, real action is yet to be seen on the reform front.
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The quality of legal education and ensuring high standards in the legal profession are inextricably intertwined. While the entrance test for joining the legal profession is desirable, structural reforms in legal education and improving the quality of over 900 law schools will address the problem of mediocrity in the Bar and the Bench. The question of regulating legal education deserves more attention. Law schools, including law academics, lawyers, judges and civil society have an important role to play in this effort. — Prof C. Raj Kumar, Vice-Chancellor, O.P. Jindal Global University and Member, National Legal Knowledge Council
— J.S. Attri, Senior Advocate, Supreme Court — Bimal Roy Jad, Advocate, Supreme Court The Code of Civil Procedure (CPC) is a paradise for lawyers as they can move as many applications as they want. And these hold up the trial. The person who gets injunction wants to delay the process. The problem of the other litigant starts after the decree. The CPC should be dispensed with. When consumer and labour courts and appellate tribunals can dispense with this procedure, why not civil courts? There is nothing magical about the CPC. —
Anil Nag, Advocate, Supreme Court (As told to R.
Sedhuraman)
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THE country is passing through a difficult phase due to poor governance. The common man is struggling due to rising prices. Growing lawlessness has made life insecure. Indiscipline is rampant among elected representatives, setting a bad example. There is no dignity of discourse. 
The proposed second generation reforms in legal education, including the establishment of the Directorate of Legal Education under the Bar Council of India, is a step in the right direction. The proposal for an all-India entrance examination for law graduates is welcome. 
Litigation Policy:
Mediation:
Bane of justice: