The Tribune, Chandigarh, India

Politics in Jharkhand
State dogged by coalitions of convenience

THREE months after the Bharatiya Janata Party withdrew support to the Shibu Soren-led government in Jharkhand and accused him of betrayal, the two parties are back together. Soren had voted in favour of the UPA in the Lok Sabha on the Opposition-sponsored cut motions and the BJP was upset and embarrassed enough to sever its ties. The next month witnessed a familiar political see-saw with Soren tendering an apology and explaining that he had voted for the UPA “by mistake” as he was suffering from Alzheimer’s disease. The BJP wavered and entered into negotiations but the two partners failed to seal the deal, leaving Soren with no option but to resign. It paved the way for the imposition of President’s Rule in the state in June this year but the Assembly, which was barely six months’ old after the election in December came up with a fractured verdict, was kept in suspended animation. The former allies obviously used the last three months to iron out differences and are ready once again to govern the state together.

Political instability has been the bane of the small but important state, which has 25 per cent of the country’s iron-ore reserves and 40 per cent of its coal. The state had signed as many as 74 memorandums of understanding in the steel sector alone with a promised investment of Rs 3 lakh crore during the tenure of the BJP’s Arjun Munda as the Chief Minister between 2003 and 2005. None of them has, however, moved much on the ground, partly because of the “weak administrative structure and delivery mechanism”, as Governor M.O.H. Farooq was quick to point out, and partly because of rampant corruption. The state, which has the dubious distinction of seeing one of its former Chief Ministers along with several ministers put in jail for acquiring disproportionate assets, is unlikely to fare much better under the eighth government in less than 10 years of its existence.

While an indefinite or long spell of President’s Rule is neither desirable nor a way forward, the onus clearly lies on the ruling coalition to prove the skeptics wrong. The state, reeling under drought conditions and Maoist violence, badly needs good governance and a sense of direction. After bleeding the state white for the past 10 years, it is time the state’s politicians displayed more responsibility.

Work disruptions
Public inconvenience is nobody’s concern

EVERY strike causes major inconvenience to the public. The disruption in everyday life is all the more serious when the agitation is by doctors. Residents of Rajasthan had to bear the brunt during the recent strike in hospitals. During three days of agitation, some 32 patients lost their lives. It does not matter to the victims whether the government was in the wrong or the fault lay with the doctors. It is they who had to pay with their lives for this stand-off. The government did accept some of the doctors’ demands but only after the damage had been done. Why cannot there be a grievance redressal mechanism so that such ticklish issues can be solved amicably without causing so much misery? At the same time, the tendency to go on strike at the drop of a hat has to be discouraged.

More than 700 doctors of Delhi’s Safdarjung Hospital also went on strike on Tuesday after one of their colleagues was allegedly beaten up by relatives of a patient. That was trigger enough for the doctors to strike work, leaving patients in the lurch. If those who are assigned to adjudicate on such matters are proactive, things would not come to such a pass.

Unfortunately, some agitators choose such a time to go on strike which can cause maximum disruption. Nearly half of mosquito breeding checkers of the Municipal Corporation of Delhi have struck work demanding regularisation of jobs, in spite of the fact that 68 new cases of dengue have come to light, taking the total number of patients to 1,438. Nobody seems to be bothered that if the dengue fear spreads, the holding of the Commonwealth Games next month will be in jeopardy. An agitation should be the last resort, not the very first, as is the current norm.

Thought for the Day

The most essential gift for a good writer is a built-in, shock-proof shit detector. This is the writer’s radar and all great writers have had it. — Ernest Hemingway

ARTICLE

No ‘dispute’ in agenda for J&K
The opportunity that beckons us
by B.G. Verghese

THE chorus is the same. Syed Ali Shah Geelani has outlined a pre-dialogue “agenda” for Kashmir: India must acknowledge an “international dispute”, commence demilitarisation under UN supervision, rein in the security forces, unconditionally release all youth and political prisoners, including Afzal Guru, and initiate proceedings against all those responsible for “war crimes” in the state. Mirwaiz Umar Farooq challenges accession, asserts that Kashmiris are not Indians and seeks demilitarisation, the repeal of “black laws” and a referendum. Masarrat Alam, the next-generation youth leader, talks of Kashmir being the “unfinished business of Partition” and demands “complete azadi”. Delusive agenda items must be firmly put aside.

Shah Mehmood Qureshi, Pakistan’s Foreign Minister, crisply insists on a “result-oriented dialogue”. He rewinds from Gen Pervez Musharraf’s promising “out of the box” solution, fine-tuned by Dr Manmohan Singh, to hark back to the UN Resolutions. No one talks of the pathetic colonial situation in Pakistan-occupied Kashmir (PoK) and the Gilgit-Baltistan Area where Pakistan firmly determines who is the “self” in question.

Some basic clarifications are in order if there is to be any progress. The problem is not about the fact but the nature of the dispute. India went to the UN on a question of aggression by Pakistan. Cutting through all the cant, this was upheld by the UN Representative, Owen Dixon, and endorsed by the UN Security Council in its defining Resolution of August 13, 1948. This called for the immediate withdrawal of tribal raiders and Pakistani military personnel from J&K and the disbandment of all “Azad” Kashmir forces as the first order of business prior to a plebiscite. Pakistan’s deliberate default, subsequent invasions and cross-border terror through mercenaries and jihadis constitute the current problem. The UN Resolutions died long back.

Why not a plebiscite today? It is too late, with major demographic changes, natural and engineered across the LoC and ethnic cleansing in the valley. There is a totally different political context three generations down the road and a wholly new international geostrategic environment. Further, Pakistan, sections of the separatists and the jihadis would appeal to Islam thus reopening the still healing wounds of Partition to revive the fatuity of the two-nation theory that Jinnah himself eloquently repudiated in his first address to the country’s Constituent Assembly on August 11, 1947, only to find himself hopelessly isolated. To sustain its sadly negative ideological identity as India’s “other”, Pakistan” has projected Kashmir as unfinished business and sought “strategic depth” to realise the warped dream of a Talibanised caliphate. This perverse goal feeds the self-aggrandising paranoia of the military-mullah cabal that holds the Pakistani people in thrall. India is simply not prepared to revive the madness of 1947 and self-destruct.

What then is the road ahead in J&K? The external aspect is not the most critical. We must talk to Pakistan but forward movement depends on Islamabad’s willingness to end terror as an instrument of policy. Casting the blame on client “non-state actors” will not wash. This was brazenly pleaded in 1947, 1948, 1965, 1989, 1998, in between and thereafter. And churlishly refusing direct $ 25 million Indian assistance for current flood relief except, belatedly, through UN agencies, reveals a warped mindset that explains its irrational behaviour based on a cultivated Indophobia that ordinary Pakistanis do not share. That Pakistan agreed to accept the Indian aid later on is a different matter.

We should be wary but not alarmist about Chinese PLA units reportedly aiding relief activity and safeguarding Chinese workers engaged in road and other development projects along the damaged Karakoram Highway from jihadi attacks in Gilgit-Baltistan. A small Indo-Tibet an Border Police detachment in Afghanistan plays a similar role. The changing Chinese stance on J&K should be no surprise in view of Pakistan’s strategic importance for gaining access to the Arabian Sea. We need to stay cool and continue to engage China on a host of common concerns.

An internal dialogue in and over J&K could lead the way to a just resolution that addresses local, regional and Centre-state-level grievances and aspirations and thereby makes it increasingly difficult for external actors to fish in troubled waters. An empowered panchayati raj would give real meaning to “azadi”, self-determination and inclusive growth. The dialogue could cover (a) Geelani’s five points minus the rhetorical flourishes; (b) the variant azadi-autonomy — “sky is the limit” — self rule formulations of the National Conference, the Congress, the PDP, Sajjad Lone, the Mirwaiz and others; (c) repatriation of the Pandits and those trapped in PoK, best done by creating a couple of new IT and food-processing hubs in the valley where other internally displayed and unemployed youth can also be relocated with due training; (d) matching progammes for Jammu, Rajouri-Poonch, Doda, Ladakh and Kargil; (e) investments by corporate India with suitable, time-bound guarantees and tax incentives, and (e) activating Srinagar as an international airport, expediting rail and road connectivity, augmenting power capacity and transmission networks and repairing the social infrastructure over the next five years assisted by a youth peace corps.

The reports of the Prime Minister’s five Task Forces could provide the basis for progress along multiple tracks and help build confidence and trust. The Indian Constitution permits of extraordinary flexibility in accommodating diversity to match regional and sectoral needs through such instruments of entrustment provided under Articles 258 and 258A. Simultaneously, there must be a parallel dialogue with national parties and stakeholders in Delhi so that there is a matching consensus about directions and content.

None need fear that greater “autonomy” or “self-rule” within the terms of the 1952 Delhi Agreement and restoration of nomenclatures like Wazir-e-Azam and Sadr-i-Riyasat spell secession. The J&K and Indian constitutions are joined by an umbilical cord. What is removed from one can be incorporated in the other so that common values and principles remain.

Too much time has been wasted by little men on little things. Opportunity beckons.

MIDDLE

‘Spoil-Sports’!
by Rana Nayar

You know, things were going just right, but this media has queered the pitch,” Mr Suresh Kalmadi was recently overheard, confiding to a close friend. “It’s all your fault. Why do you give them so much of freedom?” pat came the reply.

“Freedom? If we had our way, we’d gag them all and dump them in some stinking backyard. That’s where they really belong. Don’t they?” The Chairman of OC was now getting a little edgy. Sensing the pain behind his words, the friend offered a quick-fix reassurance, “You are right, they do stink. That’s because they are always out to raise a stink. And often enough, it’s over such trivial things.” “Trivial. Yes, that’s the word. I tell you, they have no sense of priorities.” It was as though the Chairman had found his voice, all over again.

“Yes, they always lose the big picture, and start swatting the flies. Trust them to do that!” The friend knew the magic of his words had begun to work on the Chairman. So, he picked up a little courage, “Can’t they see that country’s prestige is at stake? You tell me, what is more important, the Commonwealth Games or a few hundred crores? And how does it matter if money changes hands. It’s our money, and it’ll remain with us. And once it comes into circulation, via London or Sydney, won’t it ultimately boost our own economy?”

“I wish there were more patriots like you. That is the real rub. Patriotism is at a discount these days. I see a foreign hand here. All these news channels, I suspect, are on the payrolls of a foreign agency. And this time, it’s not the Pakistanis, but the Chinese who are behind it. They put up such a spectacular show during the Olympics last year, and now that we were going headlong into our preparations for the Commonwealth Games, they felt threatened. They knew we’d outdo them. It’s plain and simple jealousy. Look at the way they have pulled all the plugs.” Having analysed the situation threadbare, the Chairman now appeared more confident, even calmer.

“I think this is what you should have stated in your press conference. Why did you brandish that letter from the High Commissioner? That really put you in a tight spot. Don’t you think so?” The friend was trying to be sympathetic.

“Don’t talk about that! It’s all cooked up. That fellow Arnab has gone off the rocker. What does he think he is! Super Prime Minister or what? When our PM is not asking any questions, who is he?” The Chairman’s voice had a harsh, grating tone to it.

“You are right. After all, such things do happen, don’t they? It’s all in the game, no?” The friend was now downright obsequious.

“To tell you very honestly, I often miss those golden years of license raj and official secrecy act. Things were much simpler then. No prying eyes, no hidden cameras, no nosey journalists and no such bloody nonsense,” the Chairman was almost bleary-eyed with nostalgia.

“Why the hell did you have to go in for things like ‘liberalisation’ and the RTI? It was perhaps Chanakya who once said, ‘Politics is the art of concealment.’” This time, the friend was not too sure.

“We, in the government and bureaucracy, have been ruing the day we decided to open things up. I think, the fissures have become so wide that all our ‘slips’ are showing,” the Chairman had unexpectedly turned reflective.

I think the Chairman has a point. After all, isn’t he our torch-bearer? Nosey reporters should know that our politicians have been playing hookey (not hockey) with us and our future, ever since they got the reins of our destiny in 1947?

Only, this time round, they have won all the medals (in corruption) much before the games could actually begin? Hurray!n

OPED — LAW

Remedy worse than the malady
The exercise of having Chief Justices from other High Courts has not helped matters. The time has come to assess its impact upon the functioning of the judiciary. A former Supreme Court Judge and five former Chief Justices of High Courts call for a critical appraisal
Justice Kuldip Singh, Justice M.S. Gujral, Justice R.N. Aggarwal,
Justice S. S. Sodhi, Justice M.S. Liberhan and Justice S.S. Dewan

NOT so long ago, whenever the post of Chief Justice of a High Court fell vacant, whether on retirement, resignation, death or otherwise, the Judge next in seniority would take over as the Chief Justice of that High Court. This long established convention has now become a thing of the past.

A view of the Punjab and Haryana High Court in Chandigarh. A Tribune photo: Manoj Mahajan

The Chief Justice of a High Court is today appointed not from amongst Judges of the same court but from those of some other High Court, keeping in view, of course, their seniority. What presumably impelled this change was to ensure objectivity in the role that a Chief Justice is expected to play.

Inherent in being the Chief Justice of a High Court is his position as leader of the court even though he is often described as being just the first amongst equals. Regardless of this, there are significant functions that lie exclusively within the Chief Justice’s domain which are only for him to perform. Included amongst them being to recommend persons for appointment as Judges of the High Court and to assign or list cases for hearing before particular Benches besides dealing with the administration of the High Court by virtue of being its head.

It has also been seen that even in the matter of control which vests in the High Court over the subordinate judiciary which includes the cadre of District and Sessions Judges, the Chief Justice exercises considerable influence.

The appointment of Chief Justices of High Courts from amongst Judges of other High Courts has been the norm now for almost three decades. The time has come to assess its impact upon the functioning of the judiciary. Has it fulfilled the objectives with which this policy was conceived and put into effect? These are issues that call for a critical appraisal.

Experience shows that when a senior High Court Judge becomes eligible for consideration for appointment as Chief Justice, there is no scope for knowing whether he will get a chance to be Chief Justice as instances are not unknown of occasions when no Judge of a particular High Court was holding the post of Chief Justice of any court while at the same time there being two or more Judges of some other High Court functioning as Chief Justices. In other words, no Judge knows if at all he will be appointed Chief Justice and, if so, when and of which High Court.

It is in such situations that the cult of sycophancy flourishes. Sycophancy, as is well known, can take various forms whether it is courtesy calls on those that matter, be they the Supreme Court Judges, the Union Law Minister or other influential persons or calling them to preside over functions like seminars, conferences or laying foundation stones and the like.

Further, experience has shown that the usual tenure of a Chief Justice coming from another High Court is rarely, if ever, of a long enough period for such Chief Justice, to really get to know the state, its people, their customs and traditions or even his colleagues, the subordinate judiciary, including District and Sessions Judges and the members of the Bar and yet it is with their aid and advice that justice in the state is to be administered.

No wonder, the Chief Justice has perforce to rely upon and follow the advice of some of his colleagues. How good or objective such advice is remains a variable factor. And yet, as pointed out earlier, his is the dominant voice in recommending persons for appointment as Judges of the High Court and also in allotting cases for hearing to particular Benches of the High Court.

As regards the High Court Judges’ appointment, it has to be borne in mind that those appointed will often be dealing with the lives, liberty and property of persons and, what is more, it is from amongst them that tomorrow’s Chief Justices will be appointed. Clearly, much care and discretion is required in the matter of appointment of Judges.

The Supreme Court in the Second Judges’ case (1993) has evolved the collegium system for appointment of High Court Judges. The Chief Justice of the High Court and two seniormost Judges constitute the collegium.The primary source for appointment of Judges is the High Court Bar Association. Almost 60 per cent of the total appointments are made from amongst the practicing lawyers in the High Court. It is thus of utmost importance that the most competent and legally sound lawyers with good practice and possessing unimpeachable integrity be considered for appointment.

A Chief Justice with a year’s tenure or little more in a High Court cannot possibly form his own independent and informed opinion in the matter of selection from amongst the members of the Bar. He cannot justifiably undertake this exercise. He has thus perforce to fall back upon the opinion of his other colleagues in the collegium. Thus, the very purpose of having a Chief Justice from another state is frustrated.

It makes us very sad to hear people referring to the collegium system as no more than a division of spoils implying that the way it works is “you take my man, I take yours” rather than selecting the most deserving.

Turning to the other side of the senior Judge of each High Court being appointed Chief Justice on his predecessor vacating that post, it eliminates attempts at jockeying for the post of Chief Justice as it is known who will become Chief Justice and when. The flaw in this lies in the incumbent lacking or perceived to be lacking objectivity in performing his duties and functions of the office. It cannot be denied that caste, religious and regional factors have, unfortunately, been known to play their role even in the administration of justice. Though not expressly so stated, this appears to have been the underlying idea behind the practice of having Chief Justices from amongst Judges of other High Courts.

Be that as it may, it would be fallacious to assume that all or most Chief Justices would be found suffering from such a malady. If a particular Judge is found to be functioning in an unbecoming manner, appropriate action, whether denial of elevation as Chief Justice, transfer to another High Court or something else could be considered but to resort to the wholesale exercise of having Chief Justices from other High Courts is clearly a remedy worse than the malady sought to be cured by it.

Justice Kuldip Singh is a former Judge of the Supreme Court. All other writers are former Chief Justices of various High Courts

Don’t confine reforms to elite law schools
Jonathan Gingerich & Aditya Singh

THE Government of India’s commitment to improving legal education is commendable. One important aspect of legal education that it should consider reforming is evaluation and assessment of students. Particularly, it should consider how law schools could improve writing requirements and examinations.

Aside from a small number of national law schools, most schools assess their students with examinations that require memorising legal rules and abstract theoretical concepts.

Another crucial aspect of student assessment at the National Law Schools and a handful of other law schools are research projects, or term papers. These law schools typically require students to write a research project for every course and students usually study 10-12 courses every academic year. However, students find it difficult to complete so many research papers every year, and feel that they often sacrifice quality for quantity, while professors struggle to evaluate and provide proper feedback on such a large number of lengthy projects.

On the other hand, many traditional law colleges do not require their students to complete any written work. An effective policy should neither impose unrealistic writing requirements on students and faculty nor leave students without significant experience crafting legal essays. It should help students to become creative and persuasive writers by providing them with the experience of thoroughly exploring a large body of information and applying their original insights to a problem that interests them.

To enhance the quality and inclusiveness of legal education, law school examinations and writing requirements need to be reformed to emphasise the importance of students’ analytical skills. Two important and connected problems related to professional integrity are academic misconduct and ineffective evaluation in law schools.

Mr Gopal Subramanium, Chairman, Bar Council of India, has acknowledged the wide prevalence of plagiarism in law schools and proposed that the Bar Council partner with a private firm to develop software that law schools could use to detect plagiarism. This is an important step to promote integrity, but it will be most effective if coupled with the development of methods of student assessment that are less amenable to plagiarism.

With respect to examinations, to prepare legal professionals who can address the challenges accompanying the continuous developments of the Indian economy, more law schools should challenge their students to think critically about contemporary legal issues with problem-oriented examinations.

Evaluation reform is often treated as a technical matter best left to administrators. However, it should occupy an important position in the government’s second generation legal education reforms. Academic evaluation is the primary extrinsic incentive for law students to learn and acquire legal skills.

When students do not receive meaningful feedback or have doubts about the accuracy or reliability of the evaluation of examinations and research projects, they become disillusioned with their assignments and are unlikely to take them seriously. The Bar Council and the government may design and implement outstanding curricular reforms for law schools, but such reforms will be meaningless unless students are appropriately incentivised to absorb the curriculum.

Because of the relevance of assessment reform to law students, discussing evaluation would provide an opportunity to involve students directly in the national consultation and enhance its legitimacy among all stakeholders. Reforms to legal education will be most effective when they incorporate examinations that encourage greater creativity and writing requirements that instil research skills.

Inadequate law student evaluation is not a problem limited to India. In the United States and around the world, a common complaint of law students and practising lawyers is that law school examinations neither prepare students to practice law nor predict whether students will be successful as practicing lawyers. By developing accurate, reliable and relevant assessments of law students, India can further position itself as a leader in global legal education.

The proposed reforms should reach all law schools in India. Currently, most reforms have been experienced at a small group of elite law schools. To make legal reforms fully effective while furthering the goal of inclusion, they must permeate through the entire system of legal education.

Prime Minister Manmohan Singh has recognised the fact that Indian legal education is characterised by a few “islands of excellence amidst a sea of institutionalised mediocrity.” To remedy this mediocrity, the government and the Bar Council of India must commit themselves to making their vision a reality that includes student participation, better assessment and broad-based implementation.

Jonathan Gingerich is a graduate of the Harvard Law School and Aditya Singh is a final year student at National Academy of Legal Studies & Research University, Hyderabad