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Towards a citizens bill |
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Pak nod for MFN status
Women’s safety
In pursuit of power
Thank you, my Lordships
THE JUDICIARY AND MILITARY LAW
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Towards a citizens bill
It
is an encouraging sign that the Manmohan Singh government has declared its intention to bring forth a bill in the winter session of Parliament to address public grievances and curb day-to-day corruption. Whatever may have been the shortcomings of the Anna Hazare crusade on the Jan Lokpal issue, there is no denying that it sensitised the government to the rising public anger and disgust over corruption and delays in governmental dealings with the public. If that catalyses a Jan Lokpal bill for tackling corruption in high places and a Citizen’s Right to Grievance Redress Bill to address everyday corruption for the aam aadmi it would mark a laudable turning point in the country’s history. Yet, so pervasive have been corruption and bureaucratic red tape that any expression of resolve by the government evokes at best guarded optimism with a tinge of scepticism. The draft bill on the rights of citizens envisages that if one’s passport or driving licence — indeed, every government service, including the police — is not processed within a specified time, the babus dealing with them can be punished. This would amount to providing legal backing to a citizen’s charter and will arm the citizen with a multi-tier grievance redressal mechanism. All this sounds unexceptionable but a crucial element in all this would be the mode and quantum of punishment that would be meted out to those in the lower echelons of the bureaucracy who violate the rules. If that punishment is either not meted out or administered selectively or it is so trivial as to not deter the functionary who violates, it would lose all meaning. It is indeed vital that due accountability be ensured so that a culture of compliance is nurtured. This would require a metamorphosis of governmental culture as it is seen in India and would be a major plus for the corruption-ridden and slothful government services. There is indeed a spirit of anticipation at what the winter session of Parliament holds in store. The passing of a Lokpal bill and the citizens bill will doubtlessly be a morale booster for the citizen. If the bills on judicial accountability and protection of whistleblowers are also duly passed, it would be the icing on the cake.
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Pak nod for MFN status
The
grant of the much-awaited Most Favoured Nation (MFN) status to India by Pakistan for trade purposes may transform the economic as well as socio-political climate in South Asia. But more than anything else, it is bound to push up bilateral trade between the two neighbours. Direct annual bilateral trade, which stands at $2 billion at present, will jump to over $4 billion because indirect export and import between India and Pakistan (via Dubai, Singapore, etc) will disappear. In fact, it may rise to $5 billion soon, as business experts believe. That is why the mood in business circles is upbeat. Both sides will benefit immensely. Those in Pakistan who earlier believed that Pakistan granting the MFN status to India would lead to the flooding of Pakistani markets with Indian goods would be proved wrong. The availability of a large number of Indian goods in Pakistan and vice-versa will definitely sharpen the competition on both sides, and the ultimate beneficiaries will be the consumers. India had granted the MFN status to Pakistan in 1996 as required under the World Trade Organisation (WTO) regime, but Islamabad took such a long time to take the decision in favour of New Delhi mainly because of unfounded fears and the influence of extremists on the Pakistan establishment. Linking it to the Kashmir question showed that those controlling the levers of power in Islamabad were not guided by pragmatism. Now it seems there is some change in the thinking in Pakistan. India has made it clear that it will not allow any non-tariff barrier to come in the way of bilateral trade as feared by Pakistan. Hopefully, Pakistan will also scrap or drastically prune the negative trade list vis-à-vis India. An upswing in business activity between India and Pakistan can prove to be the most powerful confidence-building measure. People will get more opportunities to interact with one another, which may lead to the removal of many misunderstandings. And this may send a new and positive signal to the other South Asian countries, leading to the dawn of a new era in the region.
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Women’s safety
In
a country where women are neither safe on the streets nor within the four walls of their homes, President Pratibha Patil’s concern for their well-being is justified. Speaking at the 125th anniversary celebrations of Isabella Thoburn College at Lucknow, her assertion that self-defence skills are a must for women too is in the fitness of things. Indeed, women must learn to stand up for themselves to protect their honour and self-respect. However, whether skills like judo and karate by themselves can create a safe and secure environment for women is debatable. Violence against women in India has deep roots in its patriarchal system. Women have to deal with not only the eve-teaser on the roads and in public places but also accost the enemy within their households. Domestic violence is as grim a reality as heinous crimes like rape. According to National Crime Records Bureau data, the average profiling of a rapist showed that an overwhelming majority of perpetrators of such crimes were known to the women victims. More shocking was the revelation that a perceptible percentage of rapists were relatives. Closer home in Haryana, “honour killings”, invariably executed by members of the family, account for 10 per cent of women’s murders. Despite growing empowerment of women, crimes like dowry deaths, kidnapping, molestation and trafficking show little signs of abating. Over the years, there has been a substantial rise in such crimes. However, the number of those acquitted in such crimes far exceeds those convicted. Many such cases are awaiting trial. That a whole lot of cases are not reported only proves that data on violence against women merely reveals the tip of the iceberg. Thus, as the President pointed out, a comprehensive change is required for gender mainstreaming. The increasing presence of women in the police force and other positions of power serves as a morale booster for the fairer sex. Individual acts of courage by women too are heartening and self-defence skills are likely to empower them further. However, society and law-enforcing agencies cannot escape their share of responsibility in making the world safe for women.
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Human beings feel dishonour the most, sometimes, when they most deserve it. — Mark Twain
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In pursuit of power
Arvind Subramanian’s “Eclipse: Living in the Shadow of China’s Economic Dominance” has renewed interest in measuring the potential of emerging powers. Subramanian argues that projections of GDP, trade and creditor status make China’s future dominance inevitable. The focus, however, on a narrow metric-like GDP growth rate to anticipate the dominant powers of tomorrow is flawed. For one, the GDP figure tells us little about the quality of a nation’s economy or whether its wealth is being converted into competitive capabilities. For example, China’s $5trillion GDP, second biggest globally, hides more than it reveals. Nearly half of China’s GDP is driven by investment — mainly real estate and infrastructure. It is unclear whether this build of fixed-asset investment is producing capabilities or knowledge that great powers typically possess. The other major driver of China’s economy is its role as a manufacturing hub. What is less known is that foreign MNCs account for 60 per cent of China’s trade and 80 per cent of the value of their exports is imported. Even China’s creditor status is circumscribed by the fact that Beijing’s reserve assets are denominated in currencies printed by its principal debtors who have, consequently, transferred the vulnerability of this imbalance onto China. Extrapolating such an economic structure for the next two decades would imply a much larger Chinese GDP but not necessarily one that is endowed with the human capital or technical knowledge that is embedded in advanced economies. Similarly, projecting India’s growth into the future would conceal the structural distortions of the economy — atrophying scientific and technological base, a neglected education system, energy insecurity, dependency on imported capital, etc. The economy is one, albeit the most vital, building block of a nation’s strength. But only when assessed comprehensively and viewed in an ensemble of capabilities, can the relative strength of a state be gauged. The notion of comprehensive national power is a popular approach for arriving at an analysis of the diverse but interdependent variables that underpin the power of leading states. What is power and how can it be measured? The non-linear relationship between potential (material) power and actual power (ability to achieve a political outcome) has been one of the most contested themes among political scientists. Analysts have drawn attention to “the paradox of unrealised power” that is the inability of a state to translate material power into a political outcome. David Baldwin’s “Paradoxes of Power” remains the seminal work on this theme. The paradox is caused by two factors. First, the lack of will or skill in the effective use of power (India has the missiles but lacks the ability to leverage them diplomatically). Second, the capabilities of an actor must be contexualised in a policy contingency specifying the nuances of a situation. For instance, India’s nuclear weapons would deter a nuclear assault on the homeland but offer no benefits to increasing its influence in Afghanistan. Alternatively, the prospects of increasing Indian influence in South-East Asia would be determined by the relative strength of India’s economic capabilities, and its ability to augment the military capacities of smaller ASEAN states vis-à-vis other actors vying for influence there. Thus, power, unlike money, is not fungible and a power resource that might be critical in one context could be irrelevant or become a liability in another. The key point is that conceiving power “as an undifferentiated quantifiable mass” offers little insight into the actual political success of the states being ranked. Political success in a scenario where power is exercised will depend on that unique situation, resolve of the national leadership and the likely capabilities and strategic responses of the resisting actor(s). The above notion brings out the janus-faced notion of “power as resources” and “power as outcomes”. While the former is quantifiable (the number of nuclear warheads, ships, R&D institutions), the latter is more revealing but inherently indeterminable. If the litmus test for power is a state’s success in shaping an outcome, it would imply anticipating a number of contingencies and how states’ grand strategies hold up to unforseen geopolitical situations. As Kenneth Waltz says, “Power is a means, and the outcome of its use is necessarily uncertain.” The quest for contextualising power by relating it to hypothetical geopolitical situations, however, appealing, would be methodologically difficult to incorporate in a comparative study. Thus, an analysis that seeks to rank nations can reveal something about the generation of power resources that results from an intricate division of labour within a state but not whether the data that is crunched has relevance in predicting political outcomes. In 1979, Waltz had outlined the “size of population and territory, resource endowment, economic capability, military strength, political stability and competence” as the decisive ingredients of national strength. Nearly all the international studies conducted on measuring the power of nations have confined themselves to these major variables. Finally, there is a third facet of power that enables a state to leverage its capabilities toward political goals. This is grand strategy or ideational capability, which reflects a state’s capacity to generate and adapt a strategic template that can guide its national security bureaucracy. Again, measuring the quality of strategies among nations is problematic for reasons alluded to earlier. However, focussing on some of the underlying elements that might produce strategies could be instructive. This includes the structure of national security institutions such as the level of political-military interactions, inter-agency coordination and the level of “jointness” within the armed services itself. One can also include the quality, specialisation and scale of the Foreign Service and intelligence personnel. Much of this can be empirically or qualitatively observed across states. For instance, Brazil’s Foreign Service is five times the size of the Indian Foreign Service. In fact, strategy and institutions are inter-dependent — a grand strategy is of little value without accompanying institutions to aid its implementation, and even great institutions require a worldview and strategy to guide them. In the final analysis, if power is such an elusive concept why attempt to measure it? Given that power is relative, only a benchmarking process can indicate where nations stand on a metric range. Perhaps, more importantly, the exercise could reveal domestic weaknesses. For example, India’s inability to produce leading-edge military and civilian technologies might be traced back to a weak innovation system, the absence of institutional incentives, negligible R&D investment and an acquisition process where parochialism rather than a grand plan is driving military modernisation. India’s rationale for measuring power should delve into the process through which power is generated via a complex division of labour across the national system. This might enlighten the political leadership on the functioning of the overall system, and hence make the pursuit of power a coherent endeavour.n The writer is a Research Fellow at the Centre for Policy Alternatives, New Delhi.
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Thank you, my Lordships
WHEN I churned out “Chandigarh, then and now”, published in these columns in July, little did I know that my anguish would so soon find echo in a writ of mandamus issued by two eco-green judges of the Punjab and Haryana High Court. Ostensibly, to botox the environmental wrinkles on the glossy face of “The City Beautiful”, often hyped as sizzling as Helena of Troy, the judges have prescribed an instant therapeutic intervention. Through a landmark judgement, the UT Administration has been engaged to declare Sector 17 vehicle-free, as a starter, to fortify that John Keat’s dictum, “a thing of beauty is a joy for ever”, is not falsified. What a coincidence; while the ecological contours were being redrawn here in green by the black-robed saviours, I was cherishing chaste milieu in Australia, where I had gone to address the 5th World Conference on Conservation Agriculture. When I declared I hailed from Corbusier’s dreamland, someone from the audience acknowledged the astute planning of Chandigarh, akin to Brisbane, an emerging coastal city which hosted the event. We ought to realise that Chandigarh is certainly not a Shivalik-delight anymore, what it used to be, not long ago, with its refreshing setting having been consumed by the demon of pollution. The foothill paradise is now aging to its unnatural demise, though still in its infancy, having contracted progeria, triggered by the vitiation of its skyline and mindless deforestation. The establishment, apparently caught in a state of inertia, will have to pull its strings to usher in some radical mechanism before Sector 17 is rendered vehicle-free. Though there are places, like Mexico City, where main roads are closed to vehicles on weekends to facilitate cyclists and walkers, Chandigarh could perhaps emerge as a role model if the court-inspired enterprise is taken to its logical end. One day before returning, while I and my son Pitamber were exhausted to our bones after having explored the Gold Coast area on foot, in the dead of night suddenly appeared a jubilant Corbusier in my dream and informed me about the judicial rarity styled by two trend-setting environmentalists. While thanking for my earlier piece of writing, he advised me to ride the momentum and assist the court as amicus curie to annul John Milton’s “Paradise Lost”. Imagine eco-friendly cabs running on the periphery of the main plaza, electric rickshaws making into the centre, horse-driven regal chariots plying, young lovers enjoying bicycle ride, and public transport strengthened on the pattern of Singapore. Though voted as the cleanest city in the country, the initiative ought to be wrested to recoup its ecological buoyancy, maintained the architect. It being so, the metro will surely unfurl as Chandigarh Incredible! Corbusier asked me to plead for judicial monitoring, lest the fatigued babus should invent alibis to frustrate the initiative. If need be, the sword of Damocles in the form of contempt should be dangled for re-enacting Milton’s “Paradise Regained”. Before parting, he asked me to convey his gratitude to the judges for taking on from where he had left. Thank you, my
Lordships!
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THE JUDICIARY AND MILITARY LAW Contrary
to popular perception, the Indian judicial system is not co-extensive with the arrival of Europeans in Indian. This is not to say that the British did not contribute to the development of the basic principles of judiciary, but only to state that the basic norms of judiciousness were pre-existing in our society since times immemorial. While the basic model did exist, the concept of independence of judiciary was not in vogue because of the fact that the legislature, the judiciary and the executive were all rolled into one person - the King. Today, the judiciary in India is not a part of the executive, which, of course, is the cardinal principle of any developed democracy. The independence of Indian judiciary has been complemented and well respected over time in all democracies. The star word is, "Independence", which includes independence of mind and action without any external influence or interference. The growth of Constitutional Law in India is the epitome of such independence. Sometimes, it is felt that it crosses the laxman rekha to give justice to needy. Sometimes it is also accused of pro-activism, overreach and encroaching upon areas of other limbs of democracy, but unmindful of such criticism, it goes on to ensure substantial justice and relief to the masses. In all democracies, the judicial wing of the State is bound to play a balancing as well as a corrective role whenever the other two wings - the executive and the legislature -- are found to be wanting. The Courts cannot close eyes and watch helplessly in case sufferers of injustice approach them or if any injustice is pointed out to them. The Courts, through their judgments, have always been instruments of social engineering, filling in the gaps left by legislative and executive action and also striking down provisions found to be arbitrary or against the spirit of the Constitution.
COURTS MILITARY LAW
The strong observations made by the Apex Court in two important decisions, namely Prithipal Singh Bedi vs Union of India and Union of India vs Charanjit Singh Gill are pertinent. The relationship of judicial action vis-à-vis the military services has experienced a long winding road finally leading to the inception of the Armed Forces Tribunal with its various benches spread across nine cities in India. The tribunal is being established all over the country. The question is: Why was this required ?. There are multifarious reasons. One thing that is abhorred in all developed judicial systems is the situation wherein the punishing and the adjudicating agencies are a part of the same system. From Caesar to Caesar's wife as they say. And this is what was glaringly wrong in the military system of jurisprudence. Could justice be expected from the same agency that was the perceived perpetrator of injustice? Even if justice was rendered, was it seen as having been rendered in all fairness? The answer was "No". The Courts, including the High Courts and the Supreme Court, were slow in interfering with military matters, especially trials by courts martial due to a statutory bar that did not allow for examination of evidence and only allowed a window of interference in constitutional or procedural lapses and disproportionate punishments. The only answer hence was an independent body that could minutely go into evidence and could also deal with service matters concerning defence personnel and their families. It is also felt by many that the greatest opposition to an independent judicial body for defence personnel came from a somewhat dangerous mindset that provisioning of a judicial body to look into the grievances of defence personnel would have a detrimental effect on discipline. In fact, this hazardous thought had resulted in the military being treated as a "holy cow" and affected persons, especially serving ones, being sometimes looked upon suspiciously for invoking their constitutional and statutory remedies which were guaranteed to all citizens of this country. The final proposal for setting up the AFT was ultimately approved by the Cabinet in 2005 leading to the passing of the AFT Act. The Committee had observed that while the Military Act had to be strict enough to enforce discipline, they were not required to be oppressive or having a demoralising effect on the members of the defence forces. In fact, the demoralising effect of disproportionate punishments has been adversely commented upon by various Constitutional Courts more than once. In Ranjit Thakur Vs UOI, the Supreme Court observed that sentences awarded by courts martial should suit the offender and the offence and should not be shockingly disproportionate. The same was also observed by the Court in Naik Sardar Singh vs UOI. While the judiciary has duly recognized the requirement of maintaining discipline in the defence services, it has abhorred the actions which have been inconsistent with the Constitutional principles of the nation and rightly so, since merely by joining the defence forces, the members of such forces do not cease to be citizens of the country. While fundamental rights of members of the forces may be restricted, they remain full-fledged citizens of the country and amenable to the same safeguards as are available to other citizens. At this juncture, it would be worthwhile to note how the Calcutta High Court had dealt with the proposition in Lt Col A.S. Bhaduri's case of the year 1985, wherein the Court observed that denuding defence personnel from constitutional privileges would be a violent departure from the wishes of the framers of our Constitution. The Delhi High Court, in Lachhman Singh vs UOI, observed that a disciplined force could not be allowed to lose its human face in the garb of discipline. Similar views were expressed by the same Court in Durga Prasad Vs UOI. Even after the inception of the AFT, various important decisions have been rendered by all its Benches touching upon many facets of service life. To exemplify a few, the Principal Bench, in Nakhat Bharti Vs UOI, has held that reasons for attributability and aggravation recorded by military medical boards have to be detailed and sustainable under law. In Parmeshwar Ram Vs UOI, it was held by the Principal Bench that the powers of the Tribunal were not dependent upon statutory representations. In Anil Sharma Vs UOI and Surender Kumar Vs UOI, the Principal and Lucknow Benches proactively dealt with the service conditions of HIV+ personnel. In Brig A.K. Bhutani Vs UOI, the Chandigarh Bench upheld the grant of counter-insurgency allowances to regular Army personnel posted to the Border Roads Organisation. In Lt Gen Vijay Oberoi Vs UOI, the Chandigarh Bench directed the payment of disability benefits to superannuated disabled personnel at par with invalided personnel. In P.K. Parida Vs UOI and in Atul Vs UOI, the Chennai and Chandigarh Benches respectively directed that principles of natural justice were to be followed even if not provided under the statutory rules. In Brig T.S. Sekhon Vs UOI, the Chandigarh Bench ruled in favour of medical re-imbursement in case of medical emergency outside India. The right to medical treatment was held to a part and parcel of right to life. The list runs long.
CONCLUSION
The above would show that judicial intervention by judicial bodies has brought about proper resolution to the grievances of defence personnel and their families, and the Courts in general and the AFT in particular have never shied away in performing the cardinal role of adjudicating service and disciplinary matters fearlessly, independently and without any inhibition. But the duty to assist in the process of justice is not just of the Courts and the Tribunals, but of all the stakeholders. It should be ensured that our actions are within the four corners of constitutional provisions and not just personal whims, fancies and opinions, that our administrative decisions are dispassionate but at the same time humane and practical and that there is due application of mind in every situation thereby leaving the adjudicative process open to the judicial bodies only when all other systems fail. Though there is an exclusive body to deal with such litigation, some in-house attitudinal changes are much desired which should not be just rejected at the threshold. The AFT cannot be a panacea for all problems. All stakeholders should be open to flexibility in thought and action without which all statutory and Parliamentary steps would not result in full realization of the final objective. The writer is a judicial member of the Chandigarh Bench of the Armed Forces Tribunal. Excerpted from a talk delivered at the Senior Officers' Study Week organised by Western Command recently
Legal Headwind
The Armed Forces Tribunal, which came into being in August 2009, provides for adjudication of disputes and complaints about service related matters covering all three branches of the military, including hearing appeals arising out of orders, findings and sentences of courts martial. The AFT has original jurisdiction in service matters and appellate jurisdiction in court martial matters. All cases pending before the High Courts were transferred to the AFT. Its each bench comprises a judicial member, who should have served as a judge of the high court and an administrative member who should have served at a position of major general or equivalent or above. This allows the bench to draw upon legal as well as service expertise. The biggest drawbacks in the AFT Act is that it the Tribunal does not have the powers of initiating civil contempt, implying that it has no means of ensuring that its orders are implemented by the party or organisation concerned. Further, a recent order by the Delhi High Court that appeals against AFT orders would lie with the High Court and not the Supreme Court as mentioned in the Act, has kicked-up a legal debate. Some say that the purpose of the AFT was to reduce the burden of the High Courts and ensure speedy disposal of cases. Some are of the opinion that if the cases go back to the high court, the purpose of the AFT is negated and things would be back to square one.
— TNS
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