The Tribune, Chandigarh, India

The fury of floods
Preparations are rarely thorough, timely

The monsoon is an annual phenomenon. Equally predictable are the tall claims made by the authorities before the onset of every rainy season that all preparations have been completed to grapple with the problem. But the hollowness of the claims becomes obvious once the rains start. History is repeating itself in most of the northern region this time as well with large areas in danger of inundation. This in spite of the fact that the rains have been none too heavy this year. Much of this misery could have been avoided if only adequate measures had been taken well in time.

Work on cleaning up the choked drains and repairing the damaged flood sites must be completed by the end of May but in many areas it starts only after the monsoon has hit the region. Even where it is begun in time, it is never complete before the deadline. There were major floods in the Malwa region of Punjab last year for that very reason. Unfortunately, no lessons were learnt. Once the monsoon starts, it becomes almost impossible to do the repair work, but that is how the drainage departments like to function.

Another reason for the annual trouble for the citizens is the never-ending quibbling among the states over the use of water. The Centre had decided in principle to bail out Punjab, Haryana and Himachal Pradesh from the repeated fury of the Ghaggar by sanctioning a Rs 1,150-crore national project, which would have utilised flood waters for ground water recharging, and thus solved two major problems. The three states were required to give an undertaking that they agreed to delink the taming of the Ghaggar from all existing inter-state water disputes. Because of the hesitation of Punjab, the project remained in limbo. It is such lack of farsightedness which perpetuates the misery of the common man.

Military in Pakistan
No govt can go against its wishes

Whatever Pakistan Foreign Minister Hina Rabbani Khar may say about the role of the military, particularly the army, in policy matters, it is the most influential institution in that country. No one will take it seriously when she says, “We sometimes overrate the role of the military and overrate their intentions, specially when it comes to India.” History cannot be ignored. Pakistan’s history is full of incidents when the army has been in the forefront in deciding the country’s policy in any area. It is not only that the army has ruled Pakistan for a number of years since its creation in 1947. Even when Pakistan has had a civilian government, it has been guided by the army. Sometimes the civilian government of the day did not know what the army did, as it happened in the case of the India-Pakistan Kargil war. The then Prime Minister, Mr Nawaz Sharif, was kept in the dark when the army under Gen Pervez Musharraf launched its Kargil programme that proved to be disastrous for Pakistan.

Now take the case of Prime Minister Yousuf Raza Gilani. When the PPP formed its government after the 2008 elections, Mr Gilani, a Benazir Bhutto loyalist, was chosen to become Prime Minister with an understanding that Mr Asif Ali Zardari would take charge from him later on. However, Mr Gilani proved to be a smart Alec, as he developed closeness with General Headquarters in Rawalpindi. His position became unassailable with the army’s backing. Mr Zardari had to settle for the President’s post. Even then Mr Zardari kept looking for an opportunity to remove Mr Gilani but in vain. The inference that can be easily drawn is that anyone who is in the good books of the army cannot be touched.

Whether Mrs Khar admits it or not, Pakistan’s policy in the case of both India and Afghanistan is decided by the army. Most Pakistan-based terrorist outfits working against India had been created by the ISI, headed by a senior army officer. President Zardari has been giving hints for some time that Pakistan is interested in mending fences with India. There is a large constituency of people in favour of promoting people-to-people contacts. But this is not possible because the army thinks differently.

Thought for the Day

Injustice is relatively easy to bear; what stings is justice. — H.L. Mencken

ARTICLE

Folly of arresting Anna Hazare
Is Congress-led UPA losing the plot?
by Inder Malhotra

SEVERAL governments in New Delhi in the past have made mistakes, some of them serious and two catastrophic. But never before has a government tied itself into knots so thoroughly and made itself a butt of ridicule so manifestly as the Congress-led United Progressive Alliance government has done. It had erred when it decided to launch an all-out attack on Anna Hazare, the most prominent civil society activist and evidently an icon of the “India Against Corruption” campaign. It then compounded this folly by arresting him even before he had started his fast and later by virtually surrendering to him.

In the meantime, there have been angry demonstrations not only in the national Capital but also in all metros, big cities and small towns in support of him and his cause. The government is apparently ignorant of the intensity of the anger against corruption, but it was one reason for the rulers’ retreat. The other — as the CPM leader, Ms Brinda Karat, put it in the Rajya Sabha — was the advice to Prime Minister Manmohan Singh of the “Crown Prince”, Mr Rahul Gandhi.

This said, there is no doubt that the government is absolutely right in insisting that laws have to be made by Parliament, not by unelected and “self-appointed” leaders and activists of civic society. On this score Mr Hazare is certainly in the wrong when he demands that only the Jan Lokpal Bill must be passed, not the “promotion of corruption Bill” the government has introduced. But this is a political issue that has to be thrashed out politically, not by denying Indian citizens their fundamental right to speak and agitate peacefully in support of their demands even if they are absurd. Denial of the rights enshrined in the Constitution and relying on repressive methods unworthy of any democracy, and surely of the world’s largest, is disgraceful and totally unacceptable.

The conditions that the Delhi police imposed on Mr Hazare’s agitation, no fewer than a score, were unreasonable, consciously contrived and highly suspicious. Then after taking Mr Hazare into “preventive custody” it dragged him to at least three “undisclosed” destinations. These are hallmarks of Pakistan’s ISI, and must not be inflicted on India. Ultimately, however, he was hauled to Tihar Jail. That one of the highly respected and responsible dailies has editorially called the UPA government “corrupt, repressive and stupid” speaks for itself. So do other newspaper headlines such as: “Anna arrests government”; “Anna continues fast, makes government eat its words”; “People march, govt crawls” and so on. Some papers have gone overboard and written about the “Second August Kranti (Revolution)”.

Reverting to the question of Parliament’s undoubted “supremacy”, provided this august body does function, and people’s absolute right to enjoy fundamental rights, it is shocking beyond words that several Congress ministers, including some eminent lawyers, have been propounding a dangerous, new doctrine. Over TV they have been screaming that when an issue is under discussion in Parliament, agitation against it is impermissible, even “illegal”. Nothing more chilling has been heard since the Emergency of the mid-1970s, when in reply to a question, the Attorney-General of the day, told the Supreme Court: “My conscience revolts, My Lords, but even if a policeman threatens to shoot a citizen for no rhyme or reason, under the law there is no remedy”. No wonder, many, beginning with Bihar Chief Minister Nitish Kumar, are asking whether the UPA wants to bring back the Emergency by the backdoor. This fear is unfounded, however.

In any case, the pertinent question is that if Parliament is supreme and civil society has no right to partake in the legislative process, then why did the Manmohan Singh government cave in to Mr Hazare’s earlier fast in April and invite “Team Anna” to join a Group of Ministers to “redraft” the pending Lokpal Bill? The leader of the Opposition in the Rajya Sabha, Mr Arun Jaitley, has pertinently asked: “Who subverted Parliament by inviting Anna, not us”? He then rubbed in that civil society activists on the National Advisory Council, headed by Congress president Sonia Gandhi, were still helping the government draft legislation on food security and land acquisition.

This, sadly, is not the only clumsy lapse of a government so besieged by crises as to be dysfunctional. Even more staggering is its claim — emphatically made by all senior ministers, including the Prime Minister — that whatever was done to Mr Hazare was decided by the Delhi police alone, in pursuance of its duty to maintain law and order. If these worthies believe that anybody would believe what they are asserting, then they are living — to borrow Jawaharlal Nehru’s words he used at the worst moment in his long and dazzling political career in 1962 — “in an artificial world of their own making”.

The entire country knows that the Indian police, including all Central police organizations, still governed by the colonial Indian Police Act, 1861, ceased to be servants of the law long ago. They are now servitors of the political parties or combinations in power. As far back as 2006, the Supreme Court issued its final directives on the police reform. State chief ministers are not alone in brazenly refusing to carry them out. The Central government has also failed blatantly to enforce the reforms in the Union Territories for which it is directly responsible.

So mindless has the Congress party been in maligning Mr Hazare that a Congress spokesman said that the anti-corruption leader was “corrupt from top to toe”. Obviously, the spokesman, usually intoxicated by the exuberance of his verbosity, hadn’t done his homework because his charge has backfired since.

Most surprisingly, the government and the party of Dr Singh, who has invested so much in improving relations with the United States, have suddenly discovered that the CIA is behind the “Anna agitation”. The Prime Minister said it between the lines in the statement that he read out in both Houses. Others in the party have gone to town on this. They should know that the “foreign hand” ploy didn’t work even in Indira Gandhi’s time. This time around it might boomerang.

No one knows how Mr Hazare’s fast on Ramlila Grounds would work out, but many thoughtful and worried Indians are wondering whether the UPA is losing the plot.n

MIDDLE

Tailormade for trouble
by Raji P. Shrivastava

A woman can afford to annoy the whole world but not her tailor. The truth is that the tailor rules with absolute authority and always wins in the end. Don’t let the naive look, the measure tape between the teeth and the pencil behind the ear fool you. This masterji can teach an IIM graduate a thing or two about business management.

One expensive tailor in a busy commercial sector in Chandigarh is renowned for two things : he delivers stitched clothes on time and returns all left-over pieces of cloth to the customer. Thus, punctuality and honesty are both guaranteed, you might think. “What’s the point!” wailed my friend, for her new kurti rode well above the midriff. “When he has ruined my kurti, what am I going to do with the extra bits of cloth he has returned!” Being familiar with her troubles, her enterprising husband had discovered a rehri market tailor who could ‘repair’ the errors of ‘designer’ tailors for a small price.

You can get a good tailor by word of mouth. But you cannot get a tailor who delivers consistent quality, garment after garment. A conversation between two friends is likely to go thus: “My tailor is terrible. He ruins every third suit.” Her friend is likely to sympathise, “Really? That’s too bad! Try mine. He only ‘spoils’ every seventh suit!” This will sound bizarre to you only if you are completely disconnected from the women in your life. (Or if you have no women in it, obviously.)

One encounters tailors with all kinds of idiosyncrasies. One chap asked his customers quite candidly if they had a tendency to gain weight, so that ‘provision’ could be made for such exigencies. In another case, the customer’s delivery was faster than the tailor’s, so her college outfit had to be made into a maternity smock. A third was notorious for outsourcing his work to seamstresses who worked out of their homes. So, if you were in a hurry, you were offered the option of picking up the kurta from his showroom in Chandigarh’s Sector 17 and the salwar from a worker’s home in Maloya village.

My sister, however, is the kind who says she will take no nonsense from her tailor. Some years ago, she entrusted her trousseau to her tailor with the firm instruction, “Please keep ready three dresses at a time, every fifth day.” Mohan Tailor was not one to comply meekly. He made excuses every time. In turn, she would bluff on each such occasion, “I will be getting married three days later and today I am still chasing you for my wedding clothes!”

This cat-and-mouse game continued until finally, he packed her last churidar kurta into a pink carrybag. “Behnji, your wedding got postponed five times, sab acche ke liye hota hai, Jai Mata Di”, he said with a wicked grin. She retorted with spirit, “Mohanbhai, what to do, with tailors like you, it is good I have an understanding fiance!” I watched in amazement as she completed her transaction and swung out of the shop in triumph, clearly believing that she had had the last word!n

OPED DOCUMENT

Judges must be beyond all suspicion
While speaking on the motion for the removal of Justice Soumitra Sen, a Judge of the Calcutta High Court, Leader of Opposition in the Rajya Sabha, Arun Jaitley, highlighted that those who occupy high offices must live through the scrutiny of highest standards of probity. Excerpts from his speech:

A TV grab of Justice Soumitra Sen in the Rajya Sabha during impeachment proceedings

This is a sad but historic moment in the Indian democracy. We have assembled to decide the fate of a man who decided the fate of others. This political house is here to perform a judicial function. We have heard a detailed presentation in the defence of the Judge sought to be impeached.

The power of removal/impeachment of a Judge of the Supreme Court or the High Court is a power which is to be used in the rarest of the rare cases. We invoke this jurisdiction to remove a man and save the dignity of the office, which is paramount.

Judges no longer live in ivory towers. Today, they live in glasshouses where the bar, litigants, public and the media watch them from close proximity. But then we have all to exercise utmost restraint. Judges cannot defend themselves against unfounded allegations. They must neither be summarily tried nor be thrown to the wolves. A Judge, under inquiry, must be candid. He cannot plead only technical defences. He cannot be too clever by half. He cannot invoke a right to silence like an ordinary accused, and shy away from speaking the truth.

In this case, when the Judge under inquiry says that his offence must be proved 'to the hilt' or 'proved beyond reasonable doubt' , he relies on technicalities rather than substance. A Judge is like Caesar's wife. He must be beyond suspicion. Those who occupy high offices must live through the scrutiny of highest standards of probity. A Judge must be unsuspectable.

Proven misconduct?

Justice Sen is guilty of a continued 'proven misbehavior' from his days as a lawyer when he was appointed as a Receiver; and this continued well in to his tenure as a Judge of the Calcutta High Court. He never rendered the accounts as directed by the courts both as a lawyer and as Judge. He created encumbrances, by withdrawing monies, which were in his custody as a Receiver of the court. He transferred these monies unauthorizedly to persons not authorized to receive them. He withdrew the monies himself. He transferred the money to another account, which he maintained as a special officer in Calcutta Fans case. Even after his elevation as Judge in 2003, he continued the misappropriation of monies. His case squarely falling under Section 403 of the IPC of temporary misappropriation of monies is a criminal offence. In any case, he continued to retain these monies till 2006. He only returned the monies under the coercive order of the court and not otherwise.

During his tenure as Judge, he put a false defence before the single Judge, the Division Bench, the in-house inquiry committee and the impeachment inquiry that he had invested these monies in a company which went into liquidation. The liquidated company had nothing to do with these monies. The Division Bench judgment is a judgment with consent of all parties. It does not lay down the law. It is a judgment in personam, which is binding only on the parties, and not a judgment in rem, which binds the rest of the world. It does not, in any way, restrain the jurisdiction of this House under Article 217 from examining a case of 'proven misconduct'.

Justice Soumitra Sen's conduct as a litigant was unfortunate. He led no evidence. He hardly cross-examined witnesses. He claimed the right of silence. He then misrepresented and put up a false defence. He has been held guilty, both by the in-house committee appointed by the Chief Justice of India, and also by the committee appointed by the Chairman, Rajya Sabha. He is conclusively guilty of an offence. A case of 'proven misconduct' is made out against him. A Judge has to lead by example. A Judge cannot rely on technicalities and try to escape the rigours of law. Litigants cannot be Judged by a Judge, who himself is stigmatized. The defence of Justice Sen has thus to be rejected.

Who must appoint the Judges?

The Constitution of India empowers the government, in consultation with the Chief Justice of India to appoint Judges. Since the government has the last word, the independence of judiciary was being seriously compromised. The theory of social philosophy of Judges was propounded in the early 1970s in order to provide for a 'Committed Judiciary' in India. The failure of a section of the judiciary during the Emergency and thereafter compelled the revisiting of the debate as to who should have the last word in the appointment of the Judges. The Supreme Court in 1982, by a narrow majority of 4 against 3, maintained the status quo. This enabled further politicization in matters of judicial appointments. In 1993, the balance of power shifted. The advice of the Chief Justice of India became binding upon the government. In 1998, the authority of the Chief Justice of India was diluted to provide for a collegium to appoint Judges.

The quality of judicial appointments, the best available not willing to become Judges, has not improved. Both the earlier systems have not succeeded. Thus the system of Judges alone appointing Judges must now change. India needs a National Judicial Commission to appoint Judges. It must be a combination of members of the judiciary, the executive and citizens' representatives in public interest who must collectively appoint Judges.

The more important question is what should be the criteria on which Judges should be appointed. Today, Judges perform the Executive function of appointment in an unguided manner. The discretion of the National Judicial Commission, if it is so appointed, or the collegium as at present must now be restricted and regulated by the provisions of the Article 14 of the Constitution of India. There must be objective criteria introduced with regard to the qualification of persons under consideration, their academic credentials, their experience at the bar, their quality of judgments if they belong to the judicial institutions, details of cases argued, details of judgments reported with regard to the cases the lawyer has argued, the number of juniors trained, academic papers authored, amount of income tax paid, and the reputation and integrity etc. Unless these objective criteria enable a candidate to cross the threshold, he cannot enter the zone of consideration.

At present we have an in-house mechanism, which judges the Judges. It is an extra constitutional mechanism which has not succeeded. The process of impeachment is a near impossibility. The National Judicial Commission thus, in matters of judicial discipline, should be the Judicial Lok Pal.

Threats to judicial independence

The appointment of political activists as Judges at times has compromised the judicial independence. The lack of integrity can be on account of several reasons, which influence the administration of justice. These include judgments delivered because of collateral reasons and prejudices on account of religion, caste or personal reasons.

There is an increased trend of the Executive distributing jobs to Judges post retirement. This has seriously compromised the independence of judiciary. In recent times , the cases of Judges delivering judgments in politically sensitive cases on the eve of retirement and getting jobs the very next day from the Government is on the rise. I believe that no Judge should be entitled to a job after retirement. If the age of retirement is sought to be increased in the case of High Courts, as per the existing Bill pending, the same must be accompanied by a constitutional amendment, which prohibits jobs after retirement. The Judge strength of High Courts can be increased and all judicial tribunals must be manned by serving Judges.

Separation of powers

The separation of powers is one the most valuable principles of the Indian democracy. Separation of powers is infringed upon when the Legislature or the Executive encroach upon the Judiciary's space or Vice Versa. It is only judicial statesmanship which prevents a confrontation between the institutions. Of late, with the weakening of the political Executive and serious division in the polity, the tendency of the judicial institution to encroach upon the Legislative or Executive space has increased. It has been argued that if the Executive does not perform its job, the Judges have to step in. This is a dangerous argument. By the same logic, if the judiciary does not perform its job, can somebody else step in? The answer is NO in both the situations. Recent comments and pronouncements with regard to whether India should have liberalized economy or regulated economy do not fall within the judicial space. How terror is to be fought is in the Executive domain. What should be the land acquisition policy, is a concern which belongs to the Parliament and the Executive. Whether a Pakistani prisoner in India should be released or exchanged for Indian prisoners in Pakistan, is to be determined by the Government and not the Supreme Court. Whether FDI is needed in the economy or not is an area that belongs to be Executive or Parliament. Unfortunately, recent aberrations in the separation of powers, have all been on account of judicial activism. Activism and restraint are two sides of the same coin. Each institution must respect the Lakshman Rekha.

A breach of trust

Finally Sir, we have before us a case of 'proven misbehaviour' by Justice Soumitra Sen. It is not that his misbehaviour is restricted to his tenure as a lawyer. There is a thread of continuity in his 'proven misbehaviour'. He became a Receiver of a court property. He opened a bank account in his own name. He was a Trustee of somebody else's fund. He misappropriated the funds. He put them for an alternative use. This he did as a lawyer.

In 2003, when he became a Judge, he continued the misappropriation. He did not ask the court to discharge him. When the court issued him notice, he did not respond. When the court passed strong strictures against him, he under coercive direction of the court returned the money in 2006 along with interest. He mis-representated to the court that he had invested the money in a private company and that the money got lost when the company became insolvent. No part of this money was ever invested in a private company. When the Chief Justice of India called him for an explanation, he moved the Division Bench through his mother and got an order of the single Judge set aside on the basis of concessions made by the advocates. The order shows the members of the bar not in good light. Before the in-house committee, appointed by the CJI, he persisted with his false defence. The committee found him guilty. Before the Parliamentary Committee, he did not volunteer the entire evidence. He resorted to technicalities and silence. He resorted to false defence.

His acts, both as a lawyer and a Judge, had all the ingredients of culpability of breach of trust. He misappropriated the money and he put up a false defence. He was not truthful or candid. This is a case of 'proven misbehaviour'.

I, therefore, support the address to be made to the President, that Justice Soumitra Sen be removed from office as a Judge of the Calcutta High Court. He is undeserving to occupy that office. We recommend the removal of an undeserving man to save the dignity of the office.