The Tribune, Chandigarh, India

Sanity must prevail
Telangana can’t be obtained by force

THE manner in which the members of the Telangana Rashtra Samiti (TRS) have been behaving on the issue of separate statehood for Telangana is regrettable. Their modus operandi for achieving their objective is flawed. Their decision to launch a civil disobedience movement in the Telangana region, the government staff resorting to a pen-down strike and the people travelling by buses without tickets are all aimed at hitting the revenue base of the government. Stoppage of several long-distance trains by the activists has caused great inconvenience to passengers. Students preparing for the Intermediate examinations are facing major hardship because of the continued agitation. This is a crucial time for them because they have to compete with other students in several all-India examinations. Chief Minister Kiran Kumar Reddy’s call to all pro-Telangana groups, individuals and organisations to stop the agitation ought to be heeded.

Unfortunately, the agitation has brought the administration in the Telangana region to a standstill over the past two weeks. Poor people are suffering due to the non-cooperation by employees. People are being denied old age pensions and necessary certificates in mandal offices. The business community, students and patients are badly hit. There is no doubt that the state is sharply divided over the issue of Telangana. And so, it would only be proper that political parties sit together and strive for an all-party consensus to resolve the issue.

Moreover, the Justice B.N. Srikrishna Committee report is with the Centre. Union Home Minister P. Chidambaram made it clear at his monthly Press conference on Tuesday that he would convene a meeting of parties from Andhra Pradesh on the Telangana issue only when all of them are ready to give their views. The last meeting convened by him in New Delhi could not make any headway as the TRS, the TDP and the BJP boycotted it. Mr Chidambaram has refused to fix a date for the meeting owing to the refusal of major parties to attend it. The issue as it stands today is serious and a cause for concern. There is a need for all right-thinking people in Andhra Pradesh to impress upon the political parties to strive for a consensus on Telangana, and till the issue is resolved, the TRS activists should refrain from disrupting normal life.

Let them bloom
Stop marriages of minor girls

THE practice of marrying girls off before they attain the legal age for marriage continues unabated, despite the growing outrage over child marriages in India. An indication of the fact that laws have failed to check marriages of minor girls comes with the latest UNICEF report. In a shocking disclosure, the report reveals that India has the eighth highest population of married adolescent girls in Asia and Africa. In fact, 30 per cent girls marry between the age of 15 and 18 years, and are thus deprived of their right to education and health. In Rajasthan, child marriages, often solemnised secretively, are widely prevalent.

While India boasts of demographic advantage in terms of its adolescent population, adolescents themselves continue to remain disadvantaged and often have to face sexual and physical exploitation. Early marriage also deprives them of the chance to blossom. As many minor girls become mothers, they are exposed to greater risks during pregnancy, and the risk of infant deaths too increases. While the Prohibition of Child Marriage Act 2006 has a provision for making the child marriage null and void, society and the law have to ensure that such marriages are not allowed in the first place. For, in a gender-biased society, nullification of a marriage will have its own repercussions detrimental to the fair sex.

While proposals like the compulsory registration of marriages and linking it with the issuance of ration cards and birth certificates can go a long way in curbing this social evil, institutions, especially panchayats, can play a positive role too, as sometimes they have done so in the past. If India has to reap dividends of its economic growth, it has to break the vicious cycle of poverty and undesirable social customs, which are deeply rooted in gender prejudices. For this both the law-enforcing agencies and society, including the NGOs, have to work in tandem. For the sake of both the present generation of young women and future children, marrying girls before they achieve adulthood must be prevented.

Thought for the Day

The best mirror is an old friend. — George Herbert

ARTICLE

Davis issue remains unresolved
US Af-Pak policies in disarray
by G. Parthasarathy

IT could well have been a scene from a Sylvester Stallone “Rambo” thriller. The “good guy” is “Rambo” Raymond Davis, a Special Forces sharpshooter-turned-CIA agent, sent in to eliminate “bad guy” terrorists in a “major non-NATO ally,” Pakistan. Davis is followed by two “bad guys” through the shady areas of Lahore on January 27. The “bad guys” are actually ISI agents assigned to trail Davis, who has been eliminating the ISI’s jihadi and Taliban assets in Pakistani terrorist badlands, including in the tribal areas, straddling the Af-Pak borders.

The ISI stalkers with pistols in their hands move towards the car of Davis. He takes out his trusty six-shooter and brings down the two bad guys. He radios for help and an American Consulate car rushes to the scene, with the rescuers running over a pedestrian while driving the wrong way, on a one-way street. He is overpowered and jailed. All hell breaks loose between the two “major non-NATO allies”.

The American version of the status of Davis is that he holds a diplomatic passport and was issued a visa, being designated a “regional affairs officer” — a euphemism for his being a CIA operative, with his background known to the hosts. He was also listed as “administrative and technical staff” which entitles him to diplomatic immunity. According to the Pakistanis, Davis is actually an employee of a private security agency, Hyperion Protective Consultants. Oddly, while the Americans claimed he is an embassy employee, the State Department spokesman described him as a “(Lahore) Consulate employee”. Amidst these flip-flops by the Obama Administration, former Foreign Minister Shah Mehmood Qureshi, who had avoided a scheduled visit to Munich, evidently fearing that he was on the verge of being fired, joined issue with others immediately after he lost his job. Qureshi claimed that his ministry had carried out a detailed study and concluded that Davis was not entitled to diplomatic immunity.

These developments came at a time when Pakistan’s politics was becoming increasingly volatile. The Zardari regime in Islamabad does not want hassles in relations with the Americans. The issue would have been settled and Davis quietly repatriated to the US if the incident had taken place in the Federal Capital Area, where President Zardari controls the police. But Lahore is not the federal capital. Punjab Chief Minister Shahbaz Sharif has shown no inclination of making life easy for President Zardari. After easing President Zardari’s Pakistan People’s Party out of the ruling coalition in Punjab, moves will be initiated to get his brother Nawaz Sharif back as Prime Minister.

Nawaz Sharif knows that his PML (N) will sweep the polls in any national election. The Sharif brothers also have no inhibitions in being seen to be supportive of the growing anti-Americanism in Pakistan. Shahbaz has funded Hafiz Saeed’s Jamat-ud-Dawa after it was declared an international terrorist organisation. The Punjab Police swiftly arrested and charged Davis with murder, knowing that the judiciary headed by Chief Justice Iftikhar Chaudhry is virulently anti-Zardari. The Lahore High Court has deferred the case till March 14. In the meantime, Davis sleeps in a Lahore jail, despite assertions by President Obama himself that he enjoys diplomatic immunity and should be released.

Stirring this boiling cauldron is the all-powerful Gen Ashfaq Kayani and his ever loyal ISI chief, now under extension, Lt.-Gen Ahmed Shuja Pasha. There has been no love lost between the CIA and the ISI in recent days. The CIA is furious that its base in Khost province of Afghanistan, near the Af-Pak border, was attacked and destroyed by jihadis from across the Durand Line. Tensions between the two intelligence agencies escalated when the ISI leaked the identity of the CIA station chief, then working undercover in Pakistan. Moreover, Davis was undermining the ISI by establishing his own links to eliminate the jihadis in the Pashtun tribal areas along the Af-Pak border. Worse still, he was evidently attempting to undermine and infiltrate the citadel of the “holiest of the holies”, the Lashkar-e-Toiba chief and patron saint of the ISI, Hafiz Mohammed Saeed.

The army quietly joined the chorus seeking to push the Americans to a corner and force them to offer concessions, though General Kayani does not exactly love fellow Punjabi Nawaz Sharif. What the Americans, like some in South Block, have failed to acknowledge is that General Kayani believes that the US needs Pakistan just now more than Pakistan needs the Americans. He evidently feels that the Americans will blink first, which they show every inclination of doing in this standoff.

The Raymond Davis affair is a manifestation of the larger malaise afflicting the transactional US-Pakistan relationship. Thanks to some adept diplomacy by India, the Obama Administration soon gave up the thoughtless proposal mooted by Pakistani author Ahmed Rashid that it should actively involve itself in meddling on the issue of Jammu and Kashmir by appointing Bill Clinton as a Special Envoy. Moreover, its initial honeymoon with China soon led to estrangement, accentuated by the global economic downturn. The realisation dawned on Washington that India would be a useful partner in fashioning an inclusive Asian architecture for security and cooperation. While Prime Minister Gilani and his mandarins have been constantly moaning that the Americans are not treating them “equally” with India and denying them a nuclear deal, General Kayani appears hell bent on giving the Americans a difficult time by providing support and haven to the “Quetta Shura” headed by Mullah Omar and to the Taliban’s Haqqani network.

American diplomacy in Afghanistan also needs to be reviewed. President Karzai disagrees with US policies and is meeting General Shuja Pasha regularly, seeking Pakistani cooperation for “reconciliation” with the Taliban. The present institutions of governance in Afghanistan do not inspire confidence in the minds of ordinary Afghans. The Americans have also not evolved a coherent strategy of how to get the Taliban to renounce violence and abide by the Afghan constitution. Nor is there confidence that the Afghan National Army will develop the capabilities to overcome Taliban depredations by 2014.

The realisation has to dawn that General Kayani has no intention of acting against either the Afghan Taliban or his favourite jihadi groups. Terrorist safe havens in Pakistan cannot be eliminated unless the US reduces its dependence on Pakistani logistical support and fashions alternative logistical arrangements with Russia and Afghanistan’s Central Asian neighbours. Only then can the international community evolve viable policies for governance within Afghanistan and ensure that Af-Pak borders are no longer what Admiral Mullen called “the epicentre of global terrorism”.

MIDDLE

Of the Maharaja, his school and cricket
by Simrita Dhir

It would hardly be elusive to say that HH Late Maharaja Yadavindra Singh of Patiala exemplified the archetypal renaissance man. He was an impelling diplomat, an insightful war strategist, an accomplished flutist, a lover of exotic cars, and an ardent botanist. However, all his resplendent aspects were eclipsed by his glorious sportsmanship. Thanks to him, Patiala has come to be identified for ever with Indian cricket. At a mere 19, the handsome prince was a brilliant allround player. Later in 1934, at 21 years, he went on to play Test cricket against England. And Chail, the Maharaja’s summer residence, still prides itself in having one of the highest cricket grounds in the world.

Today, my alma mater, the Yadavindra Public School, Patiala, that the Maharaja founded in 1948, carries forth his brilliant cricketing legacy. For over 50 years now, on February 2, the school Founders Day, a cricket match is played each year between School XI and the Old Yadavindrians (OYs). Many veteran cricketers of repute, including OY Navjot Sidhu, have played on Founders Day. Famous names notwithstanding, those of us who know him have come to associate the Founders Day cricket match with my friend and batchmate, Dalbir Mandi. For personal and profound reasons, Founders’ Day is like no other day for him.

Dalbir has had the unprecedented distinction of having played the Founders Day cricket match for 25 consecutive years — six years as part of School XI and 19 years as an OY. In all these years, Dalbir has been named Man of the Match eight times and the Best Batsman another eight. For another couple of years, he was the Best All-Rounder and Best Fielder, respectively.

And while these are mere statistics, for Dalbir, playing cricket has come to become a metaphor for living and learning life’s invaluable lessons of striving hard and playing fair. To him, the gentlemen’s game is about attaining the mental grit and not giving in. It is also about accepting anguish and elation in similar strides. Most of all, Dalbir understands that the game of life and cricket is about facing one challenge or ball at a time, knowing that every ball is a new one and different from the last. And yet it can be played.

Dalbir has also come to believe that cricket reflects life by teaching the value of teamwork and walking together. In life as well as in cricket, a player knows that no matter how great his talent or how distinguished his accomplishments, he has sustaining value only in correlation to others. In attempting to conquer alone, he will conclusively fail.

However, the foremost of Dalbir’s cherished memories associated with Founders Day is, of course, his first meeting with his would-be wife. He met her in 1998 on stepping off the field after the match. Needless to say, he was bowled over for life!

With cricket transmuting into life, with each Founders Day, Dalbir continues to do us and the Maharaja’s legacy proud, one memorable match at a time, trailing a magnificent blaze of glory! Way to go Dalbir!n

OPED-LAW

Time for Zonal Benches in Supreme Court
In the context of increasing backlog of cases and inordinate delay in the administration of justice, four Zonal Benches of the Supreme Court have become imperative. The Supreme Court should deal with only constitutional cases such as interpretation of the Constitution, matters of national importance such as references made by Zonal Benches and inter-state disputes on land, electricity and water.
Justice A.R. Lakshmanan (retd)

IS there a need for creating a constitutional court that shall be dealing exclusively with matters of constitutional law? Yes. The first country to establish a constitutional court was Austria. At present, 55 countries have separate courts dealing with constitutional matters, including the Central African Republic, France, Germany, Italy, Norway and the US.

The Supreme Court of India: Protector of the Constitution. Tribune photo: Mukesh Aggarwal

In India, the Tenth Law Commission (95th Report) in 1984 suggested the constitutional division to specifically deal with constitutional matters, instead of having judicial review at present. Under Article 246 (1) by Entry 77, Parliament has the power to make such amendment for creation of court.

As creation of separate constitutional courts would involve structural changes of very extensive and complex nature, the Eleventh Law Commission recommended constitutional division instead of constitutional courts (Report No. 125).

The huge backlog of cases in courts and delay in the administration of justice have prompted scholars and experts to argue for the establishment of constitutional and cassation courts as they may ease the work of the present Supreme Court. The Parliamentary Standing Committee of the Rajya Sabha on Law and Justice, in its 28th Report dealing with the Supreme Court (Number of Judges) Amendment Bill, 2008, has endorsed this.

In India, the ratio of judges versus population is 10.5 per cent per one million whereas it is 107 per million in the US and 75 per million in the UK. In India, the figure is 12 to 13 judges per million. It is thus evident that the ratio between judge strength and the population is hopelessly low. The same is apparent in the Supreme Court as well where the ratio works out to 1:112. The situation is critical if one takes into consideration the ratio of both the institution of new cases and the pending arrears which comes to 1:1854 (approximately).

Reducing backlog
* A Constitution Bench should be set up in New Delhi to deal with constitutional and other allied issues. This would help reduce the backlog of cases in the Supreme Court.
* Four Cassation Benches should be set up in the Northern Zone in New Delhi, Southern Zone in Chennai, Eastern Zone in Kolkata and Western Zone in Mumbai to deal with all appellate work arising out of the orders and judgements of the High Courts of the particular region.
* Since the respective Zonal Benches will handle the accumulated cases pertaining to a particular region, the Supreme Court would be free to deal with only constitutional cases such as interpretation of the Constitution, references made by the Zonal Benches to larger Benches due to conflict of authority or cases such as inter-state disputes on land, electricity, water, etc., references for advisory opinion under Article 143 and so on.
* If Article 130 of the Constitution cannot be stretched to make it possible to implement the recommendations, Parliament should enact a suitable law for this purpose.

There is an imperative need for increasing the Bench strength of the Supreme Court to clear the backlog of pending cases and to promote future developmental programmes in the judiciary and thereby minimise delays in the justice delivery system and promote speedy justice which is the avowed goal of the Constitution. But it is equally important that mere increase in number of judges might not help improve the system.

In an article, Dr P.C. Alexander, former Governor of Maharashtra and Tamil Nadu, threw considerable light on the malaise that ails the judicial system. He feels that increasing the number of judges, promptness in filling up the vacancies and improving working facilities are all very important for the efficiency of the judicial system, but these alone cannot be an adequate solution to the pendency problem.

There are many measures which the judiciary can take without waiting for additional financial support from the government, but very little effective action has been taken on these by the judiciary and they continue to cause delays in the disposal of cases. They include laxity shown by the courts in matters like production of witnesses on the dates posted for their examination, granting requests for adjournments of cases without good reasons, inordinate delays in giving copies of documents, allowing lengthy arguments by the advocates, and the practice of judges themselves writing unnecessarily long judgements.

The liberal attitude of the courts in entertaining appeals from the lower courts has also contributed to the steady increase in the backlog. Those who have the financial resources go on appeal on the decisions of the lower courts to the next higher court, and finally to the Supreme Court, even when no interpretation of the law may be involved. When the accused are influential politicians or rich businessmen, the cases can go on endlessly, bringing down in this process the reputation of the judicial system itself. If appeals can be limited to a small number, say one or two, depending on the nature of the crime, it can help a great deal in reducing pendency.

The practice of some judges in delaying the delivery of judgements for several months, and in certain cases, even till they retire from service, has been another cause of delayed justice. Though the maximum time-limit of one month has been considered reasonable for the delivery of judgement, there is no mechanism for enforcement of any time-limit, and this malpractice on the part of some judges thus goes on unchecked. Again, no serious attempts are being made by the judiciary to make use of the provisions in the Constitution for engaging the services of retired judges both at the Supreme Court and at the High Courts for temporary periods for help in clearing the backlog of cases.

We have tried some of these measures but the result appears to be far from satisfactory. The entire judicial set-up will have to be overhauled and refurbished to expedite justice. It is quite often argued that the present pattern of working of the Supreme Court needs to be revised. The indiscriminate acceptance of appeals on trivial issues of facts by the Supreme Court quite often overloads itself. In fact, only important issues need be litigated in the Supreme Court.

More important, the present situation makes the Supreme Court inaccessible to a majority of people in the country. In its Second (2004), Sixth (2005) and Fifteenth (2006) Reports, the Parliamentary Standing Committee on Law and Justice has suggested that for speedy justice, Benches of the Supreme Court should be established in the Southern, Western and North-Eastern parts of the country. In its Twentieth (2007), Twenty-Sixth (2008) and Twenty-Eighth (2008) Reports, the Standing Committee suggested that a Supreme Court Bench should be established at least in Chennai on trial basis as this would immensely help the poor who cannot travel from their native places to New Delhi.

The Committee is not satisfied with the persistent opposition for establishing Benches of the Supreme Court in other parts of the country without giving any convincing reasons or justification thereof. It endorses its earlier view that the Supreme Court Benches in other parts of the country would be of immense help to the poor. It wanted the Union Ministry of Law and Justice to come forward with a necessary constitutional amendment to address this deadlock.

A feasible, workable and efficient system of judicial administration could be established if it were to be divided into four zones/regions, namely, Northern Zone Bench to be established in Delhi dealing with the litigation of Uttar Pradesh, Uttarakhand, Rajasthan, Punjab, Haryana, Madhya Pradesh, Chhattisgarh and Himachal Pradesh; Southern Bench in Chennai or Hyderabad to tackle litigation in Kerala, Tamil Nadu, Andhra Pradesh, Karnataka and the Union Territories of Puducherry and Lakshadweep; Eastern Zone Bench in Kolkata dealing with the litigation of West Bengal, Bihar, Orissa, Jharkhand, Assam and the Northeastern States including Sikkim and the Union Territory of Andaman and Nicobar and Dadra etc; and Western Zone Bench to be established in Mumbai dealing with the litigation in Maharashtra, Gujarat, Goa and the Union Territories of Dadra and Nagar Haveli, etc.

The said Benches shall act as Cassation Benches to deal with appeals from a High Court in the particular region. The apex court could, then, deal with constitutional issues and other cases of national importance on a day-to-day basis since the accumulated backlog of cases would go to the respective zones to which they pertain.

If a Constitution Bench is set up in New Delhi, the apex court would be relieved of the backlog of accumulated cases which are causing a burden and continuous strain on its resources. Since the accumulated cases pertaining to a particular region would be dealt with by the respective Zonal Bench, the apex court would be free to deal with only constitutional cases such as interpretation of the Constitution, matters of national importance such as references made by the Zonal Benches to larger Benches due to conflict of authority, cases where the interests of more than one State are involved such as inter-state disputes on land, electricity, water, etc., references for advisory opinion made under Article 143 of the Constitution, references made under Article 217, Presidential and Vice-Presidential elections, suits between two or more states, etc. This list is merely illustrative and not exhaustive.

All public interest litigations (PILs) from any part of India should be decided by the apex constitution court so that there are no contradictory orders issued and also to arrest the mushrooming of cases.

The advantage of setting up of Benches is that this can be made effective since it is a matter within the purview and jurisdiction of the Supreme Court under the Supreme Court Rules. If Article 130 of the Constitution is liberally interpreted, no constitutional amendment may be required for the purpose — action by the Chief Justice of India with the President’s approval may be enough.

Moreover, under Article 130, the Chief Justice as Personna Designate is not required to consult any other authority. Only the President’s approval is necessary. However, in case this liberal interpretation of Article 130 is not feasible, Parliament may enact legislation.

If the judge-strength of each Zonal Cassation Bench is confined to two judges, each zone will require only six judges implying that only 24 judges will be required for all the four zones to constitute Cassation Benches all over India. The other judges will be available in the apex court, which will have a Constitution Bench in New Delhi working on a regular basis.

The concept of having a Constitution Bench along with a Cassation Bench is nothing new. The democratic transition that occurred in many parts of the world in the late 20th century resulted in the proliferation of courts with constitutional adjudication and powers of cassation being exercised simultaneously. There is a blend of functions of judicial review usually by the constitutional court or constitutional tribunal and also the exercise of powers of cassation.

Italy, for instance, has a constitutional court with the sole power of constitutional review and a Supreme Court of Cassation with the power to review the ordinary courts’ decisions for consistency with the law. Egypt also maintains a Court of Cassation that monitors the uniformity of lower court fidelity to the law but only its Supreme Constitutional Court has the authority to declare laws unconstitutional and to determine and rule upon legislative intent. Portugal’s Constitutional Tribunal has the greatest jurisdiction exercising both concrete review of lower court decisions and abstract review of all laws and legal norms. Other countries which blend the functions of judicial review and cassation or the review of lower court decisions are Ireland, the US and Denmark.

The writer is a former Supreme Court Judge and Chairman, Law Commission of India