The Tribune, Chandigarh, India

Hopes on Chindia front
It’s time to work for Asian century

That India and China have a festering border dispute and serious differences over certain regional issues is too well known. But they also have commonality of views on many global issues like those related to climate change and the Iranian nuclear ambitions. For the past few years they have been trying to keep their differences aside to cooperate to achieve their growth-related objectives.

This pragmatic approach to reconstruct their relations found an echo during Prime Minister Manmohan Singh’s visit to Japan, Malaysia and Vietnam as well as when he had a meeting with Chinese Premier Wen Jiabao on the sidelines of the East Asia Summit in Hanoi on Friday. The views they exchanged gave a clear indication that the two Asian giants were prepared to pursue cooperative diplomacy, not allowing themselves to be used by other powers for their own geopolitical aims.

The time has come for India and China, or Chindia as some now call them, to do all they can to ensure that the current century turns out to be an Asian century. It will be easier to translate this dream into a reality if both countries learn to avoid hurting each other’s sensitivities, as pointed out by Dr Manmohan Singh. This was his polite way to tell the Chinese not to insist on issuing stapled visas to visitors from India’s Jammu and Kashmir. China will not lose anything by discontinuing this irritating practice. The Chinese have also been issuing embarrassing statements on their territorial claims off and on, which they must stop in the interest of the two countries’ common goals. These issues are bound to figure prominently during Chinese Premier Wen’s coming visit to India.

India and China need to enhance their economic achievements through a cooperative approach. How to take the booming bilateral trade to a new high must get precedence over all other subjects. By the end of the current year their bilateral trade is estimated to reach $60 billion. This is a major achievement when we look at the past figures. While we in India must do all we can to woo China on the economic front —— which, in any case, is our biggest trading partner today —— the Chinese, too, need to address India’s trade-related concerns, showing a sense of realism.

Zooming in
Advent of the super car

The car that can race from 0-100 kmph in only 2.7 seconds and is priced at Rs 16 crore plus, has naturally zoomed into the slot of the fastest and the most expensive car sold in India. Bugatti Veyron 16.4 Grand Sport can clock up to 407 kmph, which makes it one of the fastest cars in the world which is in regular production, if you can call the 60-80 units that roll out of its factory every year as regular production.

India is no stranger to super-expensive marques, but till now that title was shared by the Rolls-Royce Phantom, Bentley Mulsanne and the Mercedes-Benz SLS AMG, which are at one-fourth the price. India’s growing number of millionaires is a natural magnet for exclusive and super-exclusive products, and many Indians can be caught window-shopping at exclusive stores that sell such products. A few venture in, and fewer still are customers. The world of super luxury is not governed by ordinary logic, but obviously those who buy such products feel that there is value in them.

The arrival of the super car, however, is also a time to reflect on the roads that it will ride on. The highway infrastructure in India is simply not up to the mark, many a times, even for ordinary vehicles. The mix of various kinds of traffic is another road hazard, as are stray animals and other factors that make the daily drive an obstacle course to be tackled. It is high time the government realised the needs of the increasingly sophisticated vehicles traversing the roads in the nation, and improved the highways.

It is indeed interesting that the Bugatti is a part of the group which manufactured the original people’s car, Volkswagen. Now it has come to the land of the newly-made people’s car, the Nano, 1,600 of which come for the price of one Bugatti.

Thought for the Day

Though we cannot out-vote them, we will out-argue them. — Samuel Johnson

ARTICLE

Debate over J & K’s status
Why it remains an integral part of India
by B.G. Verghese

Now that the Centre’s interlocutors — Dileep Padgaonkar, Radha Kumar and M.M. Ansari — have successfully completed their initial visit to Srinagar and touched base in Jammu, the critics, who come in all shapes and sizes, could be a worried lot and should feel a little foolish. Despite threats of boycott, cries of irrelevance, sniggers at the alleged lightweight nature of these interlocutors, a dialogue has begun.

And the Babel of tongues in which sundry politicians have babbled at their irresponsible and irrelevant best, shows that the government did well to avoid appointing so-called heavyweight politicians of essentially intellectually lightweight parties to parley with all strands of opinion in Jammu and Kashmir.

It is just as well that the absurd pursuit of laying sedition charges against Arundhati Roy and Syed Ali Shah Geelani for saying in Delhi what they and a lot of others have been saying for a long time in J&K and elsewhere has been abandoned. To ask for azadi — if by that is meant independence — is not treason. And asking for it is not going to make it happen. Muzzling free speech, one of the cardinal pillars of an open and democratic society, would be to jeopardise our own freedom. Rather, the foolish agitation of the BJP and its ilk, if anything, gives salience to the separatist’s fatuous parrot-cry that ignores history and ground realities. J&K was, in fact, independent from August 15 until October 22, 1947. Who cut short its independence and who remains in occupation of half the state to this day?

Withered ideologues demand to know the truth in J&K but have never waited for an answer. That is why they dare not engage in dialogue and fear it, for their humbug and duplicity would stand exposed. What credibility does like a man like Moulvi Umar have when he dare not acknowledge who assassinated his own father because he spoke of peace, and again angrily panicked when knowledge of a “quiet dialogue” with earlier government interlocutors led to a dastardly bid to assassinate his moderate Hurriyat colleague, Fazle Haq Qureshi. Men like Geelani are hirelings of Pakistan. Yet the door remains open for them and if they are willing to enter into a genuine dialogue they might yet redeem themselves.

The other thing to remember is that for more than a few people, including some in the establishment, the J&K agitation is a sound business proposition that sustains their hearths and ego. Should the matter be resolved, whatever would they do? Like some of their counterparts in the Northeast, they fear peace in J&K. So does Pakistan. Its governing ideology could unravel without an object of obsessive hate while its Army and jihadi ideologues, who hold a hapless people in thrall, would lose their very raison d’etre.

In their first round of talks, the J&K interlocutors met key functionaries like the Governor and the Chief Minister, PDP leader Muzaffar Beigh, imprisoned stone-pelters, detained militants, students, university faculty and senior civil society members. Others will follow. Those who stay out for the nth time cannot complain later that they were never consulted.

The hue and cry about “admitting” that J&K is a “dispute” and not just an “issue” or “matter”, that azadi can be on the agenda for conversation if someone puts together a blueprint of its meaning and how to get there, that Pakistan must be involved in any final settlement, and the fuss over Omar Abdullah’s statement that J&K has ‘acceded’ to but not ‘integrated’ with India constitutes much sound and fury by the BJP and others who seem to know and understand nothing. Such political and historical illiteracy, masquerading as patriotism, is dangerous.

If Kashmir is not a dispute and Pakistan not a party to it, does the BJP plan to arraign former Prime Minister Atal Bihari Vajpayee for treason for initiating the comprehensive peace process with Nawaz Sharif in Lahore in 1999 and then parleying with Gen Pervez Musharraf? The issue is not the fact that a dispute exists but the nature of that dispute. Dileep Padgaonkar stated the obvious in stating what he did in Srinagar.

And azadi. The word has different meanings for different people, ranging from autonomy, back to the original terms of accession to complete independence. Talking about azadi breaks no bones. India is talking azadi with the NSCN-IM.

Does the BJP not know that with approaching independence all princely states, and not only J&K, were invited to sign a standard instrument of accession under the three heads of external affairs, defence and communications. Accession did not signify acceptance of the Indian Constitution in toto beyond the limits specified. This was accomplished through a separate merger agreement which was signed in one or two stages, the second stage being financial merger. Tripura acceded to the Indian Union on August 13, 1947, but complete merger was effected only on October 15, 1949. Likewise, Manipur acceded in 1947 but it was merged on October 15, 1948. Bhopal acceded in 1947 but only merged on June 1, 1949. J&K acceded on October 26, 1947, but was never merged. Its relations with the Centre are governed by Article 370 and it retains its own constitution.

Absence of “merger” does not mean that J&K is not an integral part of India. It is. This is so by virtue of its accession and inclusion in Schedule I of Article 1 that lists the constituent units of the Indian Union.

The J&K interlocutors were well chosen. They are knowledgeable, open-minded and credible. In any dialogue, process is as important and precedes outcomes. Radha Kumar has closely followed the peace process in Bosnia, Northern Ireland and elsewhere. Padgaonkar was earlier engaged in a dialogue process in J&K.

The interlocutors, and India, deserve a chance.n

MIDDLE

Window seat magic
by Tushima Rattan

I’ve had a thing for window seats for a long time. If I walk into a room and there is a seat next to a window, I am heading straight for it. It’s one of those things that are just impossible to resist. I always wish to see the countryside moving along and the views as the vehicles zap by.

I remember once I had to travel by bus and I asked a passenger, who was sitting alone: “Excuse me, would you consider moving over here?” I asked pointing to the empty seat on the other side of the bus. “I’m travelling with my brother and we’d like to sit together.” She turned from her dazed state and looked at me straight into the eyes, “No. I’m not giving up the window seat.” Her abruptness caught me off guard and instantly angered me. I wanted to hurl some nasty comment back at her, but decided to take the high road and find a more productive solution to our seating dilemma.

Being a Kashmiri, I would often find my brother and me on a bus to visit my home state for the holidays. There would always be a fight that who would sit by the window and whining that so-and-so had sat there the last time. “I always, always have to sit at the window.” I could pretty much recall that feeling, when I was a kid and used to be stubborn enough not to give my window seat to my brother, a year younger to me, and who always used to wait that I leave my bossy attitude and politely give my seat to him. But folks, once you forgo your spot, you can’t get it back. And you risk not getting on at all.

When I first got on a plane, I insisted that I get the window seat so that I could see the engine and the take-off. Even though the clouds were fun to go through, appearing so light and fluffy, I almost always enjoyed the view of the world underneath us. There were buildings that looked like boxes and cars that appeared to be moving shiny spots, inching along grayish-black roads. If the plane went low enough, the people would give an impression of ants going around for their daily chores.

There were dark green and shadowy lumps of woods and various shades to browns of fields or cleared lands stretching out then stitching together into a snug earth-toned quilt.

It was just wonderful and I wish I could have enough time to travel more often, so as to get more opportunities to sit on my favourite seat, watch the plane disappear into the gorgeous white clouds and up there, I can dream all I want. It’s there that I have always been able to see, feel and imagine clouds dancing, forms taking shape, lovers kissing and it is there I could feel the kindness of heaven. One can see this kind of magic only from a window seat.

OPED Law

Courts clogged up with huge arrears
V. Eshwar Anand

THE judiciary is passing through a bad patch for various reasons. The backlog of cases has been increasing every year. There are over three crore cases pending in the courts of which 2.5 crore are in subordinate courts, 40 lakh in High Courts and 52,000 in the Supreme Court. There are volumes of recommendations on how to tackle the problem. The need of the hour is to act upon them swiftly and decisively.

Unfortunately, the institution of cases in the courts far exceeds their disposal. There is considerable increase in the disposal of cases, but the institution has increased more rapidly. The existing strength of subordinate judges being inadequate, even to dispose of the actual institution, the backlog cannot be wiped out without additional strength.

how to reduce the backlog of cases has become a big problem for the judiciary today. Though it has affected the functioning of the courts — from the Supreme Court to the subordinate courts — the Centre has done little to tackle the problem over the years. There is no dearth of recommendations to resolve the problem. What is needed is political will and bureaucratic support to rejuvenate the system.

Several statutes like the Indian Penal Code, the Criminal Procedure Code, the Transfer of Property Act, the Contract Act, the Sale of Goods Act, the Negotiable Instruments Act, which contribute to 60 per cent of the litigation in the trial courts, are Central enactments and these laws are administered by the courts established by the state governments.

The number of Central laws which create rights and offences to be adjudicated in the subordinate courts are above 340. Obviously, the Centre must establish courts at the trial and appellate level and make budgetary allocation to the states to help reduce the backlog arising out of these Central statutes.

The Centre must estimate and pay for the recurring and non-recurring expenditure of the state courts to the extent the courts spend time on adjudicating disputes arising out of Central statutes. Article 247 of the Constitution is intended to establish courts to enable parliamentary laws to be adjudicated upon by subordinate courts but has not been resorted to.

Almost every statute made by Parliament or State legislatures, creates rights and offences which go for adjudication before the trial and appellate courts. Every Bill in Parliament or State Legislature does have a Financial Memorandum attached to it and the Memorandum mentions the allocations required from the Consolidated Fund of the Union/state but it confines itself to the expenditure for administrative purposes.

Unfortunately, unlike in the US, the judicial impact of legislation on the court is not being assessed in India. In the US, there is a special statute for the purpose. Whenever a new legislation is passed, it should be accompanied by a budgetary estimate of its impact and necessary financial allocation should be made in the Bill itself, to meet the expenditure likely to be incurred on setting up additional courts required to deal with the increase in the workload and providing infrastructure for them.

In its 120th report (1987), the Law Commission examined the problem of understaffing and recommended 50 judges per million of population instead of 10.5. The present requirement of judges is much greater, looking at the spate of litigation, population explosion and other factors. When will we develop a zero vacancy culture? The judges’ increase should be accompanied by proportionate increase in the courtrooms. The court buildings are grossly inadequate, particularly in small towns.

The High Courts have the power of superintendence over the judiciary but they don’t have financial or administrative power to create even one post of a subordinate judge or of the subordinate staff, nor can they acquire or purchase any land or building for courts or decide and implement any plan for modernisation of the courts.

The Centre should implement the proposals for adequate staff and infrastructure made by Chief Justices of High Courts. The IAS babus should not peremptorily reject them on account of financial constraints. The Chief Justices should be given financial and administrative powers vis-à-vis the state judiciary.

Arrears in the subordinate courts have been on the rise. Why not transfer some cases from civil courts to fast track courts? During an interaction with this writer in Chandigarh recently, the civil judges and chief judicial magistrates of Punjab, Haryana and Chandigarh UT said that they are overburdened with work, having to dispose of over 150 to 200 cases everyday. They are forced to handle even revenue cases, hitherto handled by Tahsildars and other officers. The problem becomes acute when they handle inquest proceedings (each case takes two to three days).

There is an urgent need to reduce the civil judges’ workload. They are against contractual appointments and instead advocate increase of their regular cadre strength. They stress the need for Indian Judicial Service (IJS) on the lines of the IAS which, they feel, will attract talent to the subordinate judiciary and boost the judges’ career prospects immensely.

Chief Justice of India Justice S.M. Kapadia’s announcement of a three-member Bench of the Supreme Court to address the problems of subordinate courts is heartening. The Bench will sit every week to take up the problems state-wise. The Chief Secretaries of all states will be directed to provide facilities to judges and advocates.

Union Law Minister M. Veerappa Moily has also announced a National Arrears Grid (NAG), headed by a Supreme Court Judge, to help reduce the backlog in each court. Clearly, political will coupled with bureaucratic support has become imperative to achieve the National Legal Mission’s goal of making the Indian judiciary “world class and modern”.

Government, the biggest litigant

l Of the three crore cases pending, 2.5 crore are in subordinate courts, 40 lakh in High Courts and 52,000 in the Supreme Court.

l Statutes like the Indian Penal Code, the Criminal Procedure Code, the Transfer of Property Act, the Contract Act and the Negotiable Instruments Act contribute to 60 per cent of litigation in the trial courts.

l As in the US, we must have judicial impact of legislation on the courts. Every new legislation should be accompanied by a budgetary estimate of its impact and necessary financial allocation (made in the Bill itself) to meet the expenditure to be incurred on setting up additional courts.

l There is no end to litigation and/or appeals in our courts. In service matters, there is an impression that unless the officers/ employees go to the court, they will not get any benefit from the government. And when they get the benefits, the Centre (or the state) promptly appeals against the rulings even for paltry sums.

l In the UK, the Supreme Court hears only 55 appeals in a year. In the US, of the 5,000 petitions for leave to appeal every year, only 185 to 195 are admitted and the rest are rejected even without any oral hearing.

l There is an urgent need to reduce the civil judges’ workload by raising their present cadre strength and not by contractual appointments.

l In the Civil Procedure Code, many amendments were made in 2002 according to which a time is fixed for a particular task to be done in the court. The need of the hour is strict compliance of the time period fixed.

Subordinate courts need overhaul
Hemant Kumar

THERE is an urgent need to rejuvenate the subordinate courts in Punjab and Haryana by upgrading their infrastructure and equipping them with tools of information and communication technology .

Though computers have been installed in the courts and laptops provided to judicial officers, this has not made them “fully computerised” courts. Consequently, they are way behind the newly evolved model of ‘E-Court’ like the one inaugurated in New Delhi early this year.

Barring Chandigarh, no district court in Punjab and Haryana has got its own website. The website enables the litigants and advocates, especially those residing far away, to get information of the cause list of to-be-listed cases as well as final orders or judgments.

Though the Punjab and Haryana High Court website has such facility, the daily orders passed by the Judges in various cases are not uploaded as in the Supreme Court of India. This practice can be replicated even in lower courts even if it entails amendment in the relevant rules and orders.

Chief Justice of the Punjab and Haryana High Court Justice Mukul Mudgal would do well to ensure a time-bound roadmap for refurbishing the image of subordinate courts. As he has spent a large chunk of his legal and judicial career in the Delhi High Court, he should endeavour to replicate the same model in Punjab and Haryana.

The foremost requirement for the smooth functioning of any court is an independent and spacious judicial complex with easy accessibility for litigants. Under the Bhupinder Singh Hooda dispensation in Haryana, almost all district courts have got new judicial complexes. Courts in all sub-divisions, too, deserve the same attention.

Next is state-of-the-art and foolproof security in courts’ premises as many unfortunate incidents have happened in recent times. Miscreants also attack undertrials and witnesses. Judicial complexes ought to be converted into high security zones with adequate deployment of security personnel in uniform and plainclothes.

As for the dearth of judges, there has been no system of recruitment of judicial officers in both states every year. This has resulted in too many vacancies. The sanctioned strength of subordinate judges in the two states is just 400. Till March 2010, the shortfall of judges in Haryana and Punjab is 123 and 116 respectively. Though a recruitment drive for civil judges is underway, it is not clear to what extent it would address the shortfall.

Regarding the case pendency, the figure works out to be 5.61 lakh for Haryana and 5.74 lakh for Punjab. Considering the same, more posts of subordinate judges need to be created. Even the NCT of Delhi has in recent years increased the same strength to more than 600.

There should be a periodic recruitment of judges preferably by the High Court. The process of judges’ selection by the respective Public Service Commissions has failed miserably as the state governments delay the nod to such recruitment when these commissions comprise members appointed by the previous regimes.

The PCS Judicial Branch Rules (also applicable to Haryana) need to be suitably amended to delegate the whole process of recruitment to the High Court. Equally important is the need to reframe the subordinate courts’ working methodology along with suitable impart of training to court officials and supporting staff in conformity with the contemporary needs and requirements.

The prevalent colonial style of functioning of lower courts needs to be substituted by a citizen- and litigant-friendly manual to check corruption by the court staff and save precious money and time of people. It’s time for e-payment of court fee, issuance of summons and notices by email and delivery of certified copies of judgments via the digital mode.

We have a miniscule number of family courts. Why not set up at least one in every district for appropriate adjudication of marital and family-related disputes with the aid and advice of psychiatrists and counselors?

In April, a Gram Nyayalya was inaugurated with much fanfare in Shahbad (Haryana) followed by another at Sirsa. However, under the Gram Nyayalayas’ Act, 2008, every state is duty-bound to establish at least one village court in every block. When the Centre is to meet the non-recurring expenditure, why is the state reluctant?

As the Supreme Court has initiated periodic monitoring of the progress of providing adequate infrastructure in subordinate courts by different states, Punjab and Haryana governments should kick-start the overdue overhaul of the subordinate judiciary.

The writer is Advocate, Punjab and Haryana High Court