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Conscience-keepers of the nation
Enhancing the credibility of the judiciary |
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Civil war in Libya
Profile
On Record
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Conscience-keepers of the nation The Supreme Court bluntly states, “In our view the CVC is an integrity institution.” Since the CVC is to control vigilance administration in the country, the Commission is expected to be the epitome of ethical standards in administration, the model for all official organisations. The Constitution of India provides for the establishment of several such institutions. The Election Commission of India is expected to ensure free, fair and impartial elections, the bedrock of a vibrant democracy. The Comptroller and Auditor-General of India enforces financial discipline in the management of public funds. The Union Public Service Commission, along with State Public Service Commissions, is a vehicle for assuring merit in selection for public appointments. The mother of all integrity institutions is, of course, the Supreme Court itself, for it sits in judgement over maintenance of impeccable integrity of every other public body. The landmark pronouncement of the Supreme Court has demanded the accountability of the highest executive functionary, the Prime Minister of India, in making appointment of the CVC, the most powerful watchdog of the nation’s morals. The judgement makes a crucial distinction between “legality and merit as also between judicial review and merit review.” The Supreme Court clarifies that “the government is not accountable to the courts in respect of policy decisions. However, they are accountable for the legality of such decisions.” Obviating any perception of conflict between the two vital organs of the state, the executive and the judiciary, the Supreme Court quashed the appointment of Mr P.J. Thomas as invalid in law. The order asserts that it has confined itself to the legality of the recommendation made by a high powered committee headed by the Prime Minister to the President of India. The court accepts that the Prime Minister’s recommendation in the matter is binding on the President. It holds, however, that the Prime Minister’s committee erred in ignoring certain well founded doubts about the integrity of the candidate it recommended for the august office. According to the statute, the other members of the committee are the Leader of the Opposition in the Lok Sabha and the Union Home Minister. Since the leader of the Opposition dissented, the recommendation was carried by majority. Even as the court agrees that a decision of the committee need not be unanimous, it mandates that when there is no unanimity, the majority must give specific reasons for overruling any dissent. The orders of the Supreme Court in the case of Mr P.J. Thomas have assuredly embarrassed the Union Government. Its implications, however, go far beyond the judicial ruling of a single government decision as being untenable or illegal. First, it leaves no room for arbitrariness by any future government in similar cases. While the Supreme Court takes note of deficiencies in the functioning of government, it lays down concise guidelines in matters concerning integrity institutions. Secondly, it strengthens the role of the political opposition in the making of crucial appointments. Thirdly, it brings into the public domain important decisions of concern to the common citizen, who can question these in an open forum. It continues the tradition of transparency in decision making at the very highest level. Last but not the least, the judgement alerts all integrity institutions to be prepared for inevitable public scrutiny of their performance. The Supreme Court’s directions in respect of the CVC’s appointment would in future apply equally to the role of several other integrity institutions at the national and state level, all of whom play a critical role in governance in their respective fields. Over the years, India has followed other mature democracies in establishing institutions for regulation and enforcement of norms of ethical behaviour by public authorities. By virtue of the autonomous authority vested in them, integrity institutions evoke both fear and reverence. By law they function independently of political and other extraneous considerations. They also stand for utmost accountability and transparency. In an imperfect polity, these very characteristics of independence, openness and principled decision making create a dilemma for entrenched interests. Many elected governments in the states and even at the national level have been chary of arming them with authority and administrative support. Thus, the Lok Ayuktas in the states are currently hamstrung by the limited powers given to them by statute, and by the lackadaisical support of the states they serve as ombudsmen. Witness the recent crisis in Karnataka where the Lok Ayukta had to confront the state government on issues of political corruption. Legislation creating the office of the national ombudsman, the Lok Pal has been hanging fire with successive governments over several decades, possibly on account of apprehensions regarding the wide powers the office would have for checking and punishing corruption in high places. “The nation’s morals are like its teeth: the more decayed they are the more it hurts to touch them”, observed the playwright George Bernard Shaw. Under the Right to Information Act, 2005, the appointment of Central Information Commissioners is by a committee consisting of the Prime Minister, the Leader of the Opposition, and a Union Minister, a pattern similar to that enjoined for appointment of the CVC. Unanimity has often eluded the high powered committee. In many states, the majority view (that of Chief Minister and his Minister) in a similar committee for recommending the appointment of State Information Commissioners has prevailed over the dissent of the Leader of the Opposition. The spirit of the statutes for integrity institutions was to prevent arbitrariness by the political party in power by including space for dissent by the political opposition. Unfortunately, appointments to important offices, including members of state Public Service Commissions, often continue to be based on extraneous considerations, which can outweigh merit. This erodes the impartiality and quality of performance. As the Bible puts it, “If the salt hath lost its flavour, wherewith shall it be called salt”? An example of how the government missed a great opportunity to harness the power of an integrity institution in the national interest is the role and status assigned to the Telecom Regulatory Authority of India (TRAI). The telecom sector is today hailed as a success story in our country’s economic development. When TRAI was constituted in 1997, it was given both authority and responsibility. By all accounts, TRAI successfully put in place transparent systems for regulation and control, and to bring in competition in the entire telecom sector. Clearly, the benefits that the subscribers are enjoying today are on account of the level playing field provided to competition. This has not only made telecom services affordable but also vastly increased the number of persons availing of them. Top companies in the world are now vying with each other to enter the vibrant Indian market. The term of office of the members of TRAI was five years. In 2000, just when TRAI had established its credentials as an institution of integrity, the term in office of TRAI’s members was abruptly curtailed from five years to less than three years. The members quietly faded away, and the role and status of TRAI was redefined by statute. The changed situation would obviously have emboldened those at the helm to take decisions that led to the 2G Spectrum scam. TRAI, it transpires, is an integrity institution that might have been, but for the own goal scored by the government in divesting the Authority of its authority. The Supreme Court of India has been proactive in tackling issues of corruption. According to The Economist, the Supreme Court ruled in as many as 50 cases of corruption within the last year alone. Observing the surge in India’s economic growth, the paper expects that massive volumes of funds are likely to be infused in the economy in the coming years, much of the investments being in the public sector. In today’s scenario, integrity institutions, led by mother Supreme Court, are bound to have an ever increasing role to play. The moot question is, will the government give them teeth, and allow them to chew?n
The writer is a former Chief Secretary and Chief Information Commissioner of Punjab
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Enhancing the credibility of the judiciary NOW that the issue of judicial accountability is engaging the attention of the stakeholders, an important question that needs to be revisited is that of employment of retired judges of the Supreme Court and High Courts after they demit office. The question of imposing some sort of restraint on re-employment of members of the higher judiciary was considered by the founding fathers in the context of the need of insulating them against the lure of a life after retirement. The founding fathers had visualised the higher judiciary as one of the sentinel institutions of the nation’s polity along with other institutions like the Comptroller and Auditor-General of India (CAG), the Public Service Commissions and the Election Commission. To recall from the concluding observations made by the Constituent Assembly, President Dr Rajendra Prasad on November 26, 1949, just before the adoption of the Constitution, the CAG “would keep a watch on the nation’s finances” (ultimately, as one of the Constituent Assembly members had put it, “it is the money that counts”); the Public Service Commissions would guard against “any possibility of jobbery, nepotism and favouritism in employment to public services”; and the Election Commission would ensure “honest and straightforward” election by the voters. “We have provided in the Constitution”, said Dr Prasad, “for a judiciary which will be independent. It is difficult to suggest anything more to make the Supreme Court and the High Courts independent of the influence of the executive.” Accordingly, the Constitution has tried to ensure that these sentinel institutions are enabled to function without fear or favour. These institutions have been placed beyond ‘fear’ of the consequences of their decisions and orders by the constitutional provisions relating to the security of employment as well as the terms and conditions of their service neither of which can be abridged by the executive. The CAG, the Chief Election Commissioner and the Judges can be removed from office only after following a rigorous and elaborate procedure culminating in impeachment by Parliament, while a member of a Public Service Commission can be removed from office after an inquiry by the apex court. Additionally, there are severe constraints on the appointment of members of the Public Service Commissions and the CAG to any further office after they demit office. The eligibility of a member of a State Service Commission for any further office is limited to the office of the Chairman of a State Service Commission or a member/Chairman of the Union Public Service Commission; and a member of the Union Public Service Commission is eligible for appointment only to the office of the Chairman of the UPSC. However, there is a total estoppel on appointment to any further “office under the Government” (more on this later) of the CAG and the Chairman of the UPSC. Dr Ambedkar had ruled out a similar restraint on the eligibility of the members of the higher judiciary for any further office on grounds of what he called “a fundamental difference” between members of the judiciary and the members of a Public Service Commission. Between the Public Service Commission and the executive, said Dr Ambedkar, “the relation is a very close and integral one;…the Public Service Commission is at all times interested in deciding cases in which the executive is vitally interested” and the Public Service Commission members needed to be insulated against the temptation of a further office for carrying out the wishes of the executive. On the other hand, “the judiciary decides cases in which the government has, if at all, the remotest interest, in fact no interest at all. The judiciary is engaged in deciding cases between citizens and very rarely between citizens and the government. Consequently, the chances of influencing the conduct of a member of judiciary are very remote” and therefore “the provisions which apply to Public Service Commission have no place in so far as the judiciary is concerned”. In this context, the Constituent Assembly also took note of the outstanding work done by some of the members of the higher judiciary in post-retirement assignments. The members of the higher judiciary are appointed through a rigorous process of screening, which despite the recent criticism of the institutional framework regulating such appointments, inter alia provides an assurance of a judicial backbone that will not bend when faced with temptations and allurements. The higher judiciary has an enviable record and reputation for being extremely independent; some would even say being frustratingly independent. The universal chorus of demand for a judicial probe into any major event is also indicative of the confidence of the common man in the higher judiciary. Also, appointments to some of the recently-created commissions are made through broad-based and transparent selection procedures involving inter alia the leader of the opposition which provides a modicum of assurance against any sort of payback by the executive to the judiciary. And yet the public perception does matter. The post-retirement appointment of members the higher judiciary exposes them to a double whammy with both, even the best judicious pronouncements and the most meritorious post-retirement appointments, inviting the needle of suspicion. Also, it immediately invites comparison with the constitutional estoppel on eligibility of the CAG and UPSC Chairman for appointment to any further office. The post-retirement appointments of members of the higher judiciary to inquiry commissions carries the additional risk of silent (and some time not so silent) but wholly unjustified imputation of prolongation of the so-called cushy assignments when the delays in the completion of their proceedings can be substantially, if not wholly, traced to the time taken by the executive in providing the minimum necessary enabling infrastructure and the quality and timeliness of the response and attitude of the stakeholders. In the circumstances, the suggestion of an estoppel on further employment of members of the higher judiciary needs to be seriously considered and it may find resonance even amongst the members of the higher judiciary. But additionally, the restraint on the re-employment of judges should be accompanied by simultaneous increase in the strength of the members of the higher judiciary that provides an inbuilt cushion for meeting the requirements of inquiry commissions which should be manned by the serving judges. Also, the retirement age of the judges and the age for the commissions should be appropriately aligned. Additionally, (and this applies in the cases of the CAG as well as the UPSC Chairman), the expression “office under the government” used in the Constitution in regard to the estoppel on further employment should mean, if necessary through a suitable amendment to the Constitution, to include every such employment that is made on the advice or recommendation of the executive. To illustrate, the ban on re-employment should also apply to the offices like those of the Governor, which are strictly not under the government. And, finally, a concluding suggestion. Similar restrictions should be placed on the Election Commissioners as well. A former Union Home Secretary who also occupied the office of the Comptroller and Auditor-General of India has recently disclosed how a Chief Election Commissioner was tempted with the offer of appointment as Governor just to secure a change in the already notified date of election to the office of the President to suit astrological
predictions.
The writer is a former Deputy Comptroller and Auditor-General of India
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Civil war in Libya
FORTY years of Cold War left the US with legacies that it is finding hard to shed despite the centre of the world moving east and the Atlantic era making way for the Asian Century. One such legacy is a huge military-industrial complex and the US self-appointed role as world policeman. The US led the world in what it viewed as resisting Soviet expansion and fighting terrorism. Now that some of the Arab tyrants are flexing their muscles, killing their own citizens demanding democracy, the US is finding it difficult to surrender the marshal’s baton. Unfortunately, serving as global policeman costs a great deal including moral leadership and global prestige. This is the dilemma that President Obama faced and is facing in Libya. He is made to juggle between promises of a rapid US transition to a supporting role in the international coalition. He has said that military action in Libya was not his first choice. In fact, in the first day of the Operation Odyssey Dawn, the US did not use any of its aircraft, leaving the airstrikes to France and the UK. At the same time, Obama said later in Brasilia that “we cannot stand idly by when a tyrant tells his people there will be no mercy.” As they say, the global policemen are never there when you need them. But they are always there when you don’t. Afghanistan and Iraq are illustrating cases in point. The world has rejected this role that the US often takes upon itself as imperious and impetuous. Such is the cold logic of global politics that democracy promotion by the US has become another name for regime change and ‘humanitarian intervention’ in Libya will be seen as a euphemism for Holy War — the idea that the enemy is diabolical while the West is on the side of the angels. Saddam Hussain’s alleged quest for weapons of mass destruction needed a desert storm, but the West felt no need for humanitarian intervention when Rwanda witnessed the most barbaric mass massacre of Hutus. Again, Gaddafi’s murder of his own citizens has led to Operation Odyssey Dawn, but no intervention in Ivory Coast where, according to UNHCR figure, one million people may have fled their homes because of violence following its disputed elections. President Laurent Gbagbo has resisted calls for him to cede power to his rival Alassane Quattara as the winner of last year’s elections. What Libya is currently witnessing isn’t just a popular uprising against a dictator — the West’s favourite Good Guy/Bad Guy narrative — it’s a civil war in which both sides command substantial popular support. Muammar Gaddafi is surely a man capable of brutal acts of violence, but he is also the only ruler of an oil-producing country to have stood up to the Europeans and Americans. That is perhaps the real reason why the Operation Odyssey Dawn has been launched. It is Libya’s oil that seems to have made the difference. Who wouldn’t agree that there aren’t many angels in the oil business? It was only when Gaddafi’s forces threatened to retake eastern Libya, with its huge oil deposits, that the great humanitarians of US/NATO was unleashed. Till the other day the ‘mad dog’ of the Middle East was a responsible international partner. After all, he had promised not to support terrorism or to develop nuclear weapons. It was thanks to West’s dalliance that Gaddafi had tightened his tyrannical grip on the Libyan people. Can the operation against Gaddafi be justified as an effort to support the democratic upsurge in the Arab world? But how is it that only Gaddafi has been targeted? Why nobody lifts a finger to stop the Saudis from interfering in Bahrain? Obama rolls out the red carpet for President Hu of China, while he showed utter disrespect to the Dalai Lama by sending him out of the back entrance of the White House past huge piles of garbage in February 2010, in order not to offend the Chinese. Obama has now got on the train in Libya he is finding hard to get off in Afghanistan. Obama, like his many predecessors, is caught in a self-fulfilling prophecy of presidential rhetoric. There is no real moral reason, some would say, to intervene in Libya and not in Iran a few months ago or Bahrain or Egypt or many other places. And the reasons here are many times less compelling than Iran, which has, unlike Libya, been hostile to the US in very recent times. The Americans should all be concerned that Obama has moved without any congressional authorisation. Indeed, there was almost no debate. Americans woke up one day, and they found they were at war. This is a terrible precedent, not so different from what the first President Bush tried to pull in the First Gulf War, though he ultimately did get a Congressional resolution. Obama spoke out against such messy foreign policy when he was in Congress. But like most presidents, he fought to preserve and expand the power of the office once he was in it, even as he has used that increased power to undermine the US, the nation. The US spent trillions of dollars on the wars in Iraq and Afghanistan, both of which descended into unwinnable quagmires. Now Obama has plunged the US into yet another war it cannot afford. In the 1990s, the US participated in Operation Noble Anvil, an air assault in Yugoslavia. Enforcement of the no-fly zone lasted from March 1999 to June 1999, and cost $1.8 billion. After the first Persian Gulf War, two no-fly zones in Iraq to protect citizens from Saddam Hussein's wrath cost about $700 million a year — from 1992 to 2003. No one knows how this war in Libya may end. Will Syria go the Libya way? Will it require similar Western response? Of course, it is unreasonable to expect President Obama to step into Dr Martin Luther King’s shoes and use the most powerful office on earth to make freedom ring from Tripoli, Damascus and Riyadh. America as a country fights a lot of wars. And that is not good. Of course, those who support Obama’s policy argue that unlike his predecessors, he appears to be walking more of that walk than just talking the talk. The goal of Obama talking to other nations on Libya is to change the narrative. As political commentator and television host Rachel Maddow says, “President Obama wants the narrative to be something different by showing reluctance to partake in the struggle. He wants everybody to know how reluctant he was, while trying to force to the forefront the Arab world.” Alas! President Obama may have discovered to his dismay what James Madison cautioned centuries ago: “The essence of Government is power, and power…will ever be liable to abuse.”
The writer is Associate Director, Institute of Social Sciences, New Delhi
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Profile
Perhaps work of no writer has been translated in so many Indian regional languages as that of Vishwanath Prasad Tiwari, recipient of the prestigious Vyas Samman. Indeed his writings break the barrier of languages.
Two collections of his poetry have been published in Odia. His works have been translated in practically all Indian regional languages. They included Punjabi, Malayalam, Marathi, Bengali, Gujarati, Telugu, Kannada and Urdu. His works are also popular in the UK, Germany, France, America, Russia, Belgium, China and Thailand. He was decorated with Pushkin Award in Moscow. Tiwari’s collections strike a special note as it focuses on humanity and its many folds. About half a dozen of his poems are on women. If a poem like Dekha Hai Ise (I have seen her) outlines the history of considerations related with women, Anant Janmn Ki Katha (story of births) and Uske Dukha (her misery) stir us for their allusions to myths and legends of yore. Title poem Phir Bhi Kuch Rah Jayega (even then something will be left) is at the end the collection and it unfolds a dialogue. Tiwari’s poetry collection Phir Bhi Kuch Rah Jayega has been selected for Vyas Samman, 2010. It was published in 2008. Instituted by the K.K. Birla Foundation, the award carrying a sum of Rs 2.5 lakh is given to an outstanding literary work in Hindi, authored by an Indian citizen during the past ten years. The selection has been done by a committee, presided over by noted litterateur and former head of the Department of Hindi, University of Lucknow, Surya Prasad Dixit. Tiwari was born in 1940 in Bherihari, now rural region of Kushinagar in Gorakhpur district of Uttar Pradesh. Kushinagar is a historic place where Buddha died and got nirvana. His statue lies flat on the ground as if sleeping eternally. It has become a place of international tourism. Tiwari retired from the Head, Department of Hindi and Acharya from Gorakhpur University in 2001. Some eminent persons who have been given the Vyas Samman in earlier years include Mridula Garg, Giriraj Kishore and Chitra Mudgal. At present Tiwari is the convener of the Hindi Advisory Board of the Sahitya Akademi in New Delhi. He has published many criticisms on Hindi poetry, collections of poems and travelogues. He has been the editor of well-known journal, Dastavze (document), since 1978. His works have been translated into practically all Indian languages and in Russian and English. About two dozen highly readable special supplements of Dastavez have been published. Some of them are of historical importance. Critics say, the 20th century is remarkable and considered imported from many points of view. While many defining events took place in India, commotion shook the world history too. Hindi literature had influenced world affairs, anarchies, discussions and ideologies. In this period, many composition-movements were born, developed and reached the peak while some movements prematurely died. Tiwari’s writings reflect traumatic events that the 20th century underwent. Tiwari has carved out a special place as a poet, critic and editor in Hindi literature. Apart from the work in verse, he has published seven anthologies, seven works in criticism, two travelogues and a memoir and a collection of interviews. He has edited as many as 147 books.  |
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On Record
THE country’s milk production has increased from 23 million tonnes to 113 million tonnes in the past four decades. India is now the world’s biggest producer of milk but increasing the production and yield, climate change and adoption of latest marketing trends are major challenges facing the dairy industry today. In an interview to The Tribune at Karnal, Dr A.K. Srivastav, Director and Vice-Chancellor, National Dairy Research Institute, which has the distinction of producing the first buffalo clone, spoke about the challenges. Excerpts: Q: What steps are being taken to increase the milk yield? A: It is directly related to feed, fodder and management. Tough India is largest producer of milk (113 million tonnes), the productivity of animals is almost half of the world average, about 2000 litres per animal. The NDRI has developed area based mineral mixture for lactating animals and schedule of green fodder production for the farmers to increase milk yield. Q: India is the largest producer of milk but its share in exports is negligible. How to overcome this problem? A: Our exports are marginally higher than imports. To further enhance exports, the focus should be on plain milk with strict adherence to hygienic standards for maintaining quality. Q: Scientists say, India should design a new range of disease-resistant and healthy products for export. What’s your take? A: The NDRI has developed pro-biotech curd containing healthy micro-organisms which enhances immunity to fight against diseases, and casein-milk protein is being exported. Work is on to develop cereals and milk mixtures with “whey”, a byproduct having healthy bio-active peptides, beneficial in cancer, stomach-related problems, pneumonia and diabetics. Fortification of milk and other products with micronutrients, vitamins is also an area to work out. Q: The NDRI has succeeded in buffalo cloning. How will it supplement milk output? A: We are hopeful that we will be able to multiply the superior germ plasma of buffalo through cloning at faster rate which, in turn, will increase the number of high yielding buffaloes. There is a shortage of elite buffaloes (male) and by cloning, we would be able to provide superior quality of buffalo semen for insemination. Q: What are your key areas of research to meet the increasing demand for milk and milk products? A: We are aware that 80 per cent women of reproductive age are anaemic due to iron deficiency. We are developing the technology to fortify milk with iron which would be encapsulated so that it does not have any effect on the taste, colour and flavour. Moreover, the technology to develop fat-free, value-added cheese from cow and buffalo milk is underway. Q: What is your strategy to make dairy farming lucrative to farmers? A: The farmers should replace low productivity animals with high output ones. At present only 36 per cent milk is being processed of which 17 per cent is in the organised sector. Therefore, processing of milk needs to be increased by lifting every drop of surplus milk from farmer’s door, which can only be done by providing coolers and chilling units at the village level. Further, we need to strengthen milk collection centres and cooperatives in the organised sector. Q: How would you intend to achieve the goals of second white revolution? A: A continuous white revolution is required by selective breeding of higher milk producing indigenous animals like Sahiwal, Tharparker Gir and by cross breeding of low yielding animals with exotic germ plasma of high yielding milch cattle like Holstein-Friesian (HF) and Jersey cow, etc. Q: What major projects are on the anvil in the dairy sector? A: Enhancing the number of elite animals, developing the strategy to decrease the deficiency of feed and fodder, producing value-added dairy products and increasing the shelf life of milk and milk products, especially
lassi.
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IF integrity is defined as “firm adherence to a code of moral, ethical values”, all institutions for governance are expected to maintain utmost integrity. In its judgement striking down the appointment of India’s Central Vigilance Commissioner, the Supreme Court traces the concept of integrity institutions to certain democratic bodies established in the US, the UK, Canada and in several states of Australia. It notes that these powerful instruments have been given autonomy and insulation from external influences.
