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Thomas must quit
UT’s predicament |
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Govts must deliver Bihar’s novel idea of right to service After proving that elections can be won by using development as a plank, Bihar Chief Minister Nitish Kumar has come out with another novel idea. Bihar will soon have a law to ensure smooth functioning of the delivery system of public utility services like providing a power connection and the issuing of caste, birth and death certificates.
Fighting terrorism
Friends forever
Corruption in judiciary: Time for action
Judges under scanner Reform should
begin with the profession of law
Corrections and clarifications
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Thomas must quit
There is perhaps no other post in which integrity is such an over-riding factor for an aspirant or incumbent than that of the Central Vigilance Commissioner. It is therefore a pity that the UPA government at the Centre chose and is persisting with a person whose credentials in terms of probity are in question. One may give P.J. Thomas the benefit of doubt in Kerala’s 1991-92 palmolein import case in which he stands chargesheeted with little headway beyond that in the decade that has elapsed since the case was launched. But what of the fact that Thomas was the country’s telecom secretary when his minister A.Raja was involved in the infamous 2G allocation scam that, as per the Comptroller and Auditor-General’s report, caused the exchequer a loss of a whopping Rs 1.76 lakh crore by selling precious 2G spectrum to fly-by-night operators at a virtual throwaway price. Significantly, in the course of the last few days the judges on the Supreme Court bench hearing the 2G spectrum case have twice questioned the suitability of P.J. Thomas to supervise the CBI investigations into the case as he was the telecom secretary at the crucial time. Thomas’ response to that has been to offer to recuse himself from the spectrum allocation probe while insisting that he would continue to hold the office of CVC. For Solicitor-General Gopal Subramaniam to contend that Thomas’ offer was “in accordance with the highest traditions of the Indian civil services” is indeed unfortunate. On the contrary, Thomas’ continuance would deal a blow to the prestige of the august institution of CVC. For a central vigilance commissioner to stay on in office but recuse himself while the country’s most sensational case of alleged corruption is being probed is, to say the least, odd. How would it be if Thomas were to be called to the apex court to answer inconvenient questions about his perceived silence when the spectrum allocations were being made? It is time Thomas quits the exalted office he holds. That would be appropriate for the institution’s prestige and for the proper conduct of the 2G probe. At the same time, the palmolein import case must be fast-tracked so that he is given an opportunity to clear himself in that case.
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UT’s predicament
Marcellius’
remark in Shakespeare’s Hamlet “There is something rotten in the state of Denmark” seems to epitomise the functioning of the top hierarchy of the UT Administration which is entrusted with safeguarding the interests of over a million residents of India’s first planned city, Chandigarh. That responsibility is vested in a handful of senior bureaucrats. So what message does it send to the city’s residents when the finance secretary, who is one of the city’s three key officers, is accused of tampering with a letter written by former UT Administrator General S.F. Rodrigues! The present UT Administrator, Shivraj Patil, has recommended a probe and the immediate repatriation of this official. The governance of Chandigarh is indeed unique. It is governed mainly by bureaucrats headed by a politically appointed Administrator whose primary function is being Governor of Punjab. The Administrator’s involvement is therefore personality based which is where the problem begins. If Rodrigues was considered over-involved to a point of brazenness and conceptualising questionable projects while adopting eyebrow-raising procedures that are currently under investigation, his successor is considered among the least involved. The Administration’s top bureaucrats have been locked in intense rivalry leading to the creation of lobbies, proxy wars and selective leaks against the other. For over two years, the Administration’s functioning has been marred by a deadlock and stalemate in performance, which is being confused as clean governance. Chandigarh is a rare example in democratic India where power is concentrated in so few. Between them, the Home and Finance Secretaries govern this Union Territory with the Advisor capping the troika. Arrogance has become the hallmark of certain bureaucrats who have no stake in the future of the city. But perhaps the solution to governing Chandigarh does not lie in adding to the bureaucracy. It already is over bureaucratised at every level with the UT Administration literally functioning as a division of the MHA where every decision ranging from issues related to staff to infrastructure have to be cleared by Delhi. This has led to delays and, arguably, has compromised governance. Perhaps Chandigarh could do with intelligent decentralizing and, most of all, reduction in the citizen’s need to interface with the government. But all this requires public debate. |
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Govts must deliver
After proving that elections can be won by using development as a plank, Bihar Chief Minister Nitish Kumar has come out with another novel idea. Bihar will soon have a law to ensure smooth functioning of the delivery system of public utility services like providing a power connection and the issuing of caste, birth and death certificates. The Right to Service Bill will be brought for the purpose before the Bihar Assembly in its coming session. The officials concerned will have to deliver the goods as required under the law. They will not be allowed to delay the work assigned to them on any pretext. This is how it should be. Tactics to delay or deny what is the people’s due from the government are indulged in to force the needy to grease the palms of the officials concerned. And this is how corruption has been prospering all over the country. What Nitish Kumar is proposing to do in Bihar needs to be emulated in other states also. It would be much better if the Centre, too, enacts such laws to make the delivery of government services as a time-bound activity. Bihar is not the only state where people have to struggle hard to get their work done in government offices. People anywhere in the country have almost similar experiences to narrate. Sometimes they are not sure about the delivery of routine public services even after paying bribes. Novel ideas can definitely change our lives. We all see the impact of the right to information idea. It has not only helped expose the corrupt in many cases, but has also instilled the fear of law to some degree. This is one way to improve the functioning of the government departments. Of course, the unscrupulous and the corrupt are always on the lookout for defeating the purpose of a law. But there is a way to fight such elements as the Right to Information Act has proved, or as Nitish Kumar’s proposed law may show. |
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Pictures of perfection as you know make me sick and wicked. — Jane Austen
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Fighting terrorism
THE second anniversary of the 26/11 attack on Mumbai has highlighted two important issues — the accountability of the state and the role of civil society in countering terrorism. Union Home Minister P. Chidambaram went to Mumbai to participate in the anniversary observance. He paid homage to the terror victims, sympathised with their kith and kin and also lauded those who had conducted themselves bravely on this day two years ago. Some measures taken by the Centre and state governments to prevent and combat terrorism were highlighted. But as pointed out by him and the media, there is a lot more to be done in the areas of national and state security apparatus, intelligence sharing mechanism and equipping of the security forces. Chidambaram has admitted that India has failed to get the Pakistani perpetrators punished or to deter their establishment from using proxy terror outfits as a strategic weapon. That is obvious from the post-26/11 terrorist attacks on the German Bakery in Pune and the Indian Embassy in Kabul. A decade-long flip-flop in our counter-terrorism efforts and security policy towards Pakistan — kabhi naram, kabhi garam — and over-dependence on the US have not been helpful. India has to believe in itself and develop its own deterrent, prevention and combat capabilities. The contrasting response of civil society in India during this period has been interesting. At the one end of the spectrum are the people from Mumbai who lit candles for the 26/11 victims, resolved to fight terrorism unitedly, and questioned why Kasab was still hanging around. The Force One display in Mumbai was impressive, but not the lethargy of the leaders and officials responsible for its control and equipment. Having faced three large-scale terrorist attacks on the city, civil society activism against terrorism in Mumbai is understandable. At the other end are the Hurriyat leaders, little known outside the valley in J&K, who are openly questioning the integrity of the nation, organising hartals, stone-pelting and provocative attacks on the security forces. They accept or condone violence to push their agenda. Everyone in the government and outside knows that they get their funds, support and guidance from Pakistan, which has been using jihadi terrorism as a strategic tool against India. There is also a publicity craving author who romanticises the Maoists, provides glamorous company to Hurriyat leaders and makes seditious statements challenging India’s sovereignty. There are some little-known and suspiciously funded political organisations and think-tanks that provide interactive platforms to such people across the country. The media provides them oxygen. These dissidents and provocateurs are hot favourites of our TV channels. Remember the old adage related to the media: man biting dog makes news, not the other way round! All this raises the question of the role of civil society in preventing and countering terrorism in democratic India. India’s civil society to me means a group of inter-dependent “civil” people who share a common value system and interests. Civil society is guided and bound by the Constitution of India with all its privileges, responsibilities and accountability. To maintain a sense of security and equitable opportunity, civil society must abide by its legal governance system - its laws, rules and regulations. India has a diverse, multi-ethnic, multi-lingual and multi-community social structure. People everywhere have socio-political and socio-economic aspirations. At one level, the diversity sharpens competition among different social groups for political, social and economic advancement. At another macro level, it helps as a balancing factor, enables cooperative benefits and co-existence. It binds the nation and discourages secessionism. An active civil society in a democratic country like India is essential. My long involvement with counter-terrorism in the Northeast, Punjab and J&K makes me believe that civil society usually contributes more to the cause of preventing and countering terrorism than encouraging terrorism. Wherever active, it generates awareness and provides a constructive outlet for the redress of grievances. It gives voice to the marginalised and vulnerable people, including victims of terrorism, and plays a critical role in ensuring that counter-terrorism measures respect human rights and the rule of law. I have no hesitation in stating that prolonged and intensified operations against terrorists and insurgents, despite discipline and education, often lead to fake encounters and other human rights violations! Prolonged deployment of the security forces and the inconveniences that go with such a measure tend to alienate civil society. In any counter-terrorism strategy, conflict resolution and removing the causes of terrorism are always more important than military action against terrorist violence. Civil society enables us to reach the core of the conflicts in spreading awareness, ending foreign influence and supporting area development. It plays an important role in facilitating dialogue and providing policy advice. Civil society engaged in such work helps dry up the wells of extremism from which violence springs. Punjab in this regard is one of our best examples. The problem that we face in India is that many civil society organisations which are potential allies of the state in promoting development are viewed with suspicion when working among the marginalised populations or perceived to be supporting political opponents of the state. This makes the security forces and other counter-terrorism agencies extremely reluctant to develop partnership with such organisations. There is a lot that civil society does and can do to prevent and check terrorism. It needs to consolidate, promote harmony and solidarity in society as well as manage an orderly response in the event of a terrorist attack as it has done repeatedly in Mumbai. It needs to involve itself in a pro-active manner, hand-in-hand with government agencies, following the instructions, maintaining watch and ward in our surroundings. The debates, the disagreements and events in society which cause tensions can be resolved expeditiously to restore a congenial atmosphere. What about the fringe civil society organisations and their ideologues mentioned earlier? I believe that if they cross the laxman rekha of our legal governance system, they must be condemned by civil society and dealt with promptly by the state. They get away because we misinterpret, we procrastinate, and we do not enforce the laws of the land. The home security regulations in the US and the UK are much harsher and more strictly enforced than we do in India. Yet another reason is the lack of effective governance due to divisive vote bank politics, corruption and degeneration of our value system. These basic issues concerning civil society need much greater attention today than they did anytime before. Unfortunately, in the matter of effective governance, our civil society takes little interest. It is inactive and generally a mute spectator. We should not forget that whenever and wherever there is lack of good governance, “civil” people easily turn into “uncivil”
people!
The writer is a former Chief of Army Staff.
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Friends forever
As kids we may have appeared to be arch enemies, but as we matured, the attachment became as strong as the love between us. I consider myself to be very blessed for having, apart from warm and loving parents, a brother, who entered my life a year after I was born. Being the first child, I was usually the one that had to take heed of all parenting advice before my brother was old enough to take a stand. As we got into our teens, our relationship began to improve somewhat. I liked to play big sister to him and raised pettifogging objections as well. I protected and teased him at the same time. Although our relationship has been through a whole slew of ups and downs, now that we both belong to the adult group of the family, I consider my brother to be one of the most caring and wise individuals I know. I catch myself often travelling back in time and remembering with nostalgia those instances that we felt compelled to fight over a toy or a t-shirt or an extra scoop of icecream. I smile when I recall those nights when mother used to sing for me a lullaby “nanhi pari sone chali” from an old Hindi flick, to which my brother used to ask mom ‘don’t you have a song for me?’ Now that’s a different story that at last she had to use ‘nanha para sone chala’, as he did not settle with any other song. Mother was always ready to tell the stories of lovely princesses, talking frogs, fairies and beasts. The tone of her voice and the moral of the story always made us wake up with a feeling of excitement that “everything in life is possible”. Well, I am proud to admit that my brother has proved that old saying. By being confident of his abilities to experience the world, he has become a promising professional in his field. Our relationship has changed considerably over the years, while at the beginning it was more or less similar to the one between any brother and sister. Fights over petty stuff, jealous of each other, but somehow we managed through similar experiences to establish a very sincere channel of communication. I am grateful to give him my advice when he asks (and sometimes when he doesn’t), not to be afraid to raise an argument that might not find him in agreement and speaking with him whenever I please. He is one of the people with whom I can laugh and cry without later feeling embarrassed. My sincere wish for both of us is to continue opening up with each other, learn from each other’s mistakes and of course, increase the frequency of visits to each other. Having a younger brother is one of those things in life I cherish and I consider myself extremely lucky for being able to have one. A brother is a little bit of childhood that is never lost. An American author and journalist, Anna Marie Quindlen, once said: “There is a little boy inside the man who is my brother. Oh, how I hated that little boy and how I love him now.”
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Corruption in judiciary: Time for action With a strength of 160 judges, the Allahabad High Court has a rich history. Remember the historic judgement of Justice Jagmohanlal Sinha on June 12, 1975 when he quashed Indira Gandhi's election to the Lok Sabha from Rae Bareli? He declared her guilty of electoral corruption and disqualified her from contesting elections for six years. His bold judgement shook the country and led to the imposition of Emergency 13 days later. Sadly, many High Court judges are facing charges of corruption. The cases involving Justice Soumitra Sen of the Calcutta High Court, Chief Justice P.D. Dinakaran of the Sikkim High Court (formerly of the Karnataka High Court) and Justice Nirmal Yadav of the Uttarakhand High Court (formerly of the Punjab and Haryana High Court) are all at various stages. The charge that many former Chief Justices of India were corrupt has given a new twist to judicial corruption. The Supreme Court is seized of the matter (see box). There is also the Rs 23-crore Ghaziabad PF scam in which a Supreme Court judge (since retired), seven Allahabad High Court judges, 12 judges of the subordinate courts and six retired High Court judges are allegedly involved. The key accused, Ashutosh Asthana, died in jail mysteriously in October, 2009. He had provided vital documents to the CBI that established connivance of these judges. Recently, the Supreme Court rejected the CBI’s plea for shifting this case to New Delhi. Corrupt judges in the higher judiciary can be removed only by impeachment. However, this method is cumbersome. The problem is not just a question of devising proposals for removal. The Judges (Inquiry) Act, 1968, prefaces impeachment by judicial inquiry. In Supreme Court Judge Justice V. Ramaswamy's case, the inquiry indicted him but the impeachment motion fell through in Parliament in 1992. The need for an institutional mechanism to deal with cases of misconduct against a High Court judge as also the question of interim arrangements on whether the judge be assigned work pending investigation has long been felt. A beleaguered judge continuing in office smacks of grave impropriety. Remember how Karnataka High Court Chief Justice P.D. Dinakaran continued to attend court, took decisions on the administrative side and even delayed his departure for Gangtok? The government should fast-track all cases of moral turpitude, corruption and nepotism. The process of impeachment of a judge should be speeded up with a time limit for obtaining the President’s sanction and impeaching him/her. The Centre’s decision to set up a National Judicial Oversight Committee (NJOC) to look into complaints against Supreme Court and High Court judges and impose “minor penalties” or recommend their removal is welcome. This has been provided for in the Judicial Standards and Accountability Bill 2010 tabled in the Lok Sabha on December 1. Significantly, the Bill is aimed at replacing the Judges (Inquiry) Act, 1968. The NJOC will consist of a former Chief Justice of India, a Supreme Court judge, the High Court Chief Justice, an eminent person to be nominated by the President and the Attorney-General of India (ex-officio). The NJOC will send every complaint to a scrutiny panel which, in turn, will examine it and report back to it within three months. Based on its recommendation, the NJOC will get the complaint examined by an investigating panel. Both the scrutiny and investigating panels can summon people and ask for public records. They will also have the power of search and seizure. It is debatable whether the executive should be given the power to retire judges. This power should remain in the hands of the judiciary itself to maintain the independence of the judiciary which is the cornerstone of the Constitution. Indeed, any amendment of the constitutional provision of impeachment will have to pass the test of judicial scrutiny. Otherwise, the Supreme Court will quash it as null and void for violating the basic structure of the Constitution. Justice Katju and Justice Misra have directed the Chief Justice of the Allahabad High Court to stem the rot. But can a Chief Justice alone help improve things without the force of law? They also referred to the syndrome of “uncle judges”. The Union Law Ministry admits that this menace has spread to many High Courts, including those in Chandigarh, Shimla and Jaipur. In its 230th Report (2009), the Law Commission has recommended that in order to eliminate the practice of “uncle judges”, the judges, whose kith and kin are practicing in a High Court, should not be posted in the same High Court. Union Law Minister M. Veerappa Moily should help check this menace. There is a need to change the method of selection of judges. The collegium system has failed to attract persons of impeccable integrity. The country deserves a more credible, transparent and broad-based institutional mechanism for selecting judges. As the UK Supreme Court had done early this year, our apex court, too, should advertise vacancies in the Supreme Court and High Courts in the newspapers.
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Judges under scanner
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l Justice Soumitra Sen (Kolkata High Court): He has been held guilty by the inquiry committee of "misconduct" tantamount to "misbehaviour" warranting his removal as a judge by impeachment. The Rajya Sabha Secretary-General has asked him to file a reply to the inquiry report by December 9. l Chief Justice P.D. Dinakaran (Sikkim High Court): The Rajya Sabha Chairman has reconstituted the three-member inquiry committee with Justice Aftab Alam of the Supreme Court as its head. He replaces Justice V.S. Sirpurkar who had recused himself from hearing the case against the backdrop of questions raised on his neutrality. l Ghaziabad PF scam: As many as 26 judges are involved. Ashutosh Asthana, the key accused, died mysteriously in prison. The Supreme Court has refused to shift the case to Delhi. *Former CJIs: After former Union Law Minister Shanti Bhushan alleged that eight of 16 former Chief Justices of India were corrupt, his advocate son, Prashant Bhushan, filed another affidavit in the Supreme Court listing alleged instances of corruption against six of them - Justice Ranganath Misra, Justice K.N. Singh, Justice A.M. Ahmadi, Justice M.M. Punchi, Justice A.S. Anand and Justice Y.K. Sabharwal. Mr Prashant Bhushan is now facing a contempt case in the apex court.
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Reform should
begin with the profession of law THE
Supreme Court of India’s observation that “something is rotten” in the
Allahabad High Court and Chief Justice of India Justice S.H. Kapadia’s speech
during a National Law Day function (both on November 26) that good judges can
be appointed within the current system in the next two years when he is the CJI
are laudable. A deeper analysis of the two statements can reveal significant
pointers to the state of judiciary in India today. Over the years, the Allahabad High Court has provided several judges of the Supreme Court, including Justice Markandey Katju who, along with Justice Gyan Sudha Misra, had criticised the state of affairs in the Allahabad High Court. One cannot but admire their concern. If “a lot of complaints are coming against certain Judges of the Allahabad High Court relating to their integrity”, is the integrity of these judges likely to improve if they are posted to another High Court? Judicial technical legalities aside, to a layperson it is extremely unlikely. The results of such actions have been known in the past when there were protests from the Sikkim High Court and the Guwahati High Court when attempts were made to transfer judges with suspect integrity to these High Courts. “Transfer is no punishment” is an oft-used explanation in the civil services whenever someone protests against a transfer, and that should be the same in the judiciary. Similarly, transfer is no cure for a suspect integrity. It is understandable that given the complexity of the impeachment process, the options for dealing with recalcitrant judges are limited and that is why transfer is suggested as one of the so-called solutions or “strong measures”, but it actually is begging the question. The quest for an answer takes us to the CJI's statement about proving that good judges can be appointed “within the current system”. Several inferences can be made from the statement, though admittedly not possibly intended by Justice Kapadia. The fact that the “current system”needs to be proven implies that there are concerns about it. That it will be proved that “good judges can be appointed” is an indirect acceptance that bad, or at least not good, judges have been appointed. The concerns are obviously proved by the Allahabad High Court Bench. Secondly, Justice Kapadia has promised that good judges can be appointed within the current system “in the next two years” when (he is) the CJI. The first inference implies that the current system is person-dependant. The basic rationale for putting systems in place is to make them free of individual idiosyncrasies but it is also accepted that systems are as good as the people who use them. Granville Austin aptly said, “(C)onstitutions, however ‘living’, are inert. They do not work, they are worked.” But there is a difference, however subtle, between constitutions and institutional systems. The main expectation from the latter is that they will work independent of human follies and weaknesses. If the current appointment system for higher judiciary is susceptible to human frailties, then there is ample justification to try a new system. This leaves one important issue of higher judicial appointments unattended and that is the source of these appointments. On November 26, the Bar Council of India had decided to postpone the proposed All India Bar Examination from December 5 to March 5, 2011. While this, by itself, may be a relatively innocuous action, it does point to the state of affairs of the profession of law which suffers from many infirmities starting with education for LL.B., registration of lawyers, and practices followed by lawyers in courts and outside. The actions of various regulatory authorities, the Bar Councils, and various Bar Associations are not always above board. And it may not be out of place to say that something is rotten with the country’s legal profession. Clearly, it is the Bar that is the major source of recruitment to the higher judiciary. Therefore, reforming the system of appointment to higher judiciary should begin with the reform of the profession of law.
The writer is a former Dean, Indian Institute of Management, Ahmedabad |
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Corrections and clarifications
l In the box with lead report on Page 1 ( December 2) there is a sub-head “President Zardari feared Gen Kayani”. However, the bullet points under that do not reflect this. Instead, under the sub-head “If I’m assassinated” the fear factor comes out. l The abbreviation KHC mentioned in the headline “Upinderjit demands completion of KHC work” (Page 3, December 2) is not commonly understood. It stands for Khalsa Heritage Complex. l The headline “US fails to rein in ISI” (Page 15, December 2) should instead have been “US failed to rein in ISI” since the document on which the report is based was a 2009 cable. l In the break quote of the article “Expose those behind the scams” (Page 8, December 1), the last sentence says, “The fine balance the between the two may be damaged ‘irreparably’”. After ‘balance’ there should not have been a ‘the’. 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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