Comptroller and auditor general Vinod Rai recently set the political arena ablaze by saying that he was appalled by the brazenness of government decisions. He did not elaborate which were those decisions, when were they taken and their effect on the people, country and its economy. Before and during the Emergency, government decisions were inscrutable. They were taken as inviolable diktat because of the rasping repercussions it entailed to those bravehearts who opposed them publicly. This mindset allowed the political class to be brazen about decisions.Post-Emergency, public scrutiny of government decisions gained currency but brazenness seldom exited the power corridors.
A rag-tag political coalition in Janata Party came to power in 1977 mainly because its leaders served jail terms for raising their voice against excesses on people, But, could it prove anything against those who brazenly perpetrated the excesses on people?
A prime minister was assassinated by her Sikh bodyguards. What followed was brazen and brutal mass murder of Sikhs on the streets of the national capital and other parts of the country. Thousands were slaughtered in cold blood leaving permanent scars on the entire community. After nearly three decades, the question remains: Who got punished for that brazen mayhem?
Bofors scam was a political game-changer. On the plank of honesty and transparency, certain politicians toppled the ruling party but failed to prove anything for the next two decades about the brazenness in which bribes were paid in procuring one of the finest field guns for Indian Army. The CBI in its charge sheet gave details of what was going on then at 7, Race Course Road but could prove nothing during the trial, inviting judicial wrath. In 1993, those at the helm of a minority government brazenly bribed MPs to secure their votes on the floor of the House during a trust vote. The long arm of the law cast a shadow close to the then prime minister, but in the end did not touch him. The other conspirators also escaped.
In the 21st century, the MPs fell back on an old method – taking money for asking questions on the floor of the House. The disqualification of a MP in the 1950s was no deterrent. As many as 11 MPs faced disqualification for their brazen “cash-for-query” professionalism, throwing parliamentary decorum and their responsibilities and duties as representatives of people to the wind.If these were political brazenness coupled with complicity from the bureaucracy and investigating agencies, there were instances of brazenness in other spheres of governance.The law allowed the government to acquire land for public purposes to build infrastructure, institutions and industries. But the ‘public purpose” clause has been brazenly invoked by authorities to acquire precious fertile agricultural land only to be re-categorized and transferred to realtors for personal gain, turning a blind eye to the plight of the poor farmers and also to its ill-effects on food grain production.
Poverty and backwardness continues to haunt a large section of Indian society even 65 years after independence from colonial rule. Instead of laying out a proper strategy to alleviate poverty, the Planning Commission brazenly mocked at the poor by fixing the poverty line at Rs 32 per day. If you earn Rs 33 a day, then you are not poor! If one wants an example of brazenness in spending public funds to achieve zero result, then one need not look further than the Yamuna river. More than 18 years ago, the Supreme Court took over monitoring of steps taken by governments to make the river water potable. After three governments – Delhi, Uttar Pradesh and Haryana -spent more than Rs 5,000 crore in the last two decades, the Central Pollution Control Board (CPCB) gave its verdict: Yamuna is a drain with not a single drop of fresh water as long as it flows in its 22 km stretch in Delhi.
These are only a few of the appallingly brazen decisions and actions of the governments in the last couple of decades. This could be the reason why people in recent times have started leveling allegations brazenly against the political class.
They have waited in vain for decades hoping against hope that the political class would fulfill the basic promise “we the people” made to ourselves – “Justice, social, economic and political”. Why has the political class or the governments failed to ensure justice to people despite they empowering their representatives with every power under the Constitution?
Probably, the political class has failed to strike a balance between power that is conferred on them and the intent to do justice. The situation reminds one of the famous saying of French mathematician, physicist and philosopher Blaise Pascal, who had said, “Justice without power is inefficient; power without justice is tyranny… Justice and power must therefore be brought together so that whatever is just may be powerful, and whatever is powerful may be just.”
‘Activists keep arguing that it takes too long to prove a man guilty. But is that fair grounds to reject the rule of law in favour of kangaroo trials?
In this Idea Exchange, the new Minister of Law and Justice, Ashwani Kumar, speaks about judicial activism, and the right to privacy vis-a-vis the right to information. This session was moderated by Senior Assistant Editor Maneesh Chhibber
Maneesh Chhibber: There is a feeling that the Indian higher judiciary is going into areas that don’t concern judges. How do you intend to check that?
It is absolutely true that over the last couple of years, there is a widely-held perception that there is a treading into other domains by organs of the state whose remit is not that particular sector. It is equally true that what the judges do or say, they believe they say or do so by the command of the Constitution. Now who will determine the outer parameters and the constitutional laxman rekhas? The Constitution confers that right on the judiciary, yet I believe that recent judgments of the Supreme Court, including the one in the 2G spectrum case, have clearly spelt out the Supreme Court’s perspective with regard to interference in policy decisions. The highest court of the land has categorically reaffirmed the proposition that judiciary cannot concern itself with policy making nor can it go into the questions relating to the political domain. But the judiciary has said that it can intervene in the implementation or the manner of implementation of the policy. I don’t think the government has any quarrel with that proposition.
Maneesh Chhibber: It is said that judges get swayed and play to the gallery.
Judges are prone to be concerned with the prevailing environment of the day, yet the constitutional and judicial discipline demands that judges decide as objectively as the brief in front of them permits. In a large majority of the cases, judges do decide fairly. There have been cases where the general feeling has been that the judges have said a little more than what justice demanded but that was a more a function of the style of writing a judgment and style varies from judge to judge.
Amitabh Sinha: The Shah Commission has given its report on the proposed privacy law. What are your views on its recommendations and on the proposed privacy law?
I did take the initiative of establishing a high-powered committee of known experts to discuss the various aspects of the privacy law and the privacy rights that the Constitution confers on its citizens. Our privacy rights are derived from Article 21 of the Constitution. They needed to be translated and enforced through specific privacy legislation. The focus of the commission’s deliberations would have been on how to harmonise the imperatives of privacy protection and the right of the people to know. The right of people to know is as much a part of the constitutional imperative so we need a law which would harmoniously blend these two constitutional imperatives.
Amitabh Sinha: Would you say that the right of privacy, when enacted, essentially needs to be applied in inverse proportion to the public office you occupy? The higher you go up, the less the right to privacy becomes?
The right to privacy in India, culled out from Article 21, is a right that the Constitution recognises as an integral part of our human rights which is non-negotiable. A citizen who is also a public figure may be expected of greater transparency in the conduct of his official duties. But that argument, in my personal view, cannot be used to deny the very basic right to privacy of a public servant. The two rights must move in tandem.
D K Singh: How do you explain the fact that not a single judge has been impeached by Parliament so far? Is it because the judiciary is unblemished or is there some lacunae in the impeachment process which needs to be rectified?
I am really happy that the we have not had to use the impeachment proceedings against judges. Having said that, some people may argue that the difficulty in the impeachment procedure makes it impossible for the procedure to be followed. It’s an argument I accept. But it is in the fitness of things that we have inbuilt defences to ensure that the impeachment mechanism is not abused. If you were to make it easier, we would be vulnerable to the argument that Parliament is using the procedure to make inroads into the independence of the judiciary. It is certainly not my case that the judiciary at every level has an unblemished record. We have noticed cases of judicial aberrations. Up to now, we have left it to the inbuilt mechanisms within the judiciary to deal with such cases. But now that we have a Judicial Accountability Bill, we will, hopefully, establish a more effective legislative mechanism for addressing judicial aberrations.
Seema Chishti: Your government took a radical step on the Lokpal two years ago when you had a 10-member committee to draft the Bill. Would you think about such pre-legislative committees for future legislation?
Certainly, we are enriched by pre-legislative discussions with all stakeholders. I think it is a good thing. Laws are meant for the people and therefore, the more participatory the process of law-making is, the better it is for all. But it is an entirely different thing to say that you could leave the drafting of laws to people outside of the legislatures and Parliament. My view is that the drafting of legislation through Parliament and translating people’s views into the letter of the law must remain the preserve of the legislatures and parliamentarians. And I think my views have been validated by the experience of the past.
Harcharan Singh: Twenty- eight years have passed since 3,000 people were killed in Delhi after Mrs Indira Gandhi’s assassination. Not even five people have been convicted. As the law minister today, what plan do you have to see that justice is delivered faster?
Long unjustifiable delays in dispensation of justice erodes the faith of people in the justice delivery system. Over the last several years, there have been repeated attempts to ensure that affordable and expeditious justice is available to all. There are seven initiatives in the works now to achieve the promise of the Constitution of affordable and expeditious justice. One of my foremost priorities as law minister is to hasten the process of judicial reforms and that would cut the pendency of cases. We have around 3.15 lakh court cases pending in courts. But we are now introducing and reinvigorating the gram nyayalaya justice delivery system and the Lok Adalat system. The criminal justice system is another story all together and I agree with you that it can become very dissatisfying or frustrating or very oppressive. But I want to say something I believe in with all my heart—please do not, in the quest of momentary popularity or appeasing a sentiment, evade the time-tested system of criminal justice which states that presume a man to be innocent until proved guilty. That brings me to another point: trial by media offends the principles of fair trial which is integral to the rule of law. Media trials are unconstitutional. And yet, every day there is a trial by media on every issue. The argument that would be made by the great activists on television every day is that it takes too long to prove a man to be guilty. But is that fair grounds to reject the principle of the rule of law in favour of kangaroo trials?
Harcharan Singh: We had committees and commissions, whether it is the Gujarat riots or the Delhi riots. These commissions take years to gather evidence. What is the use of their findings after so long?
I agree that we need to do a lot more and must bring in amendments and changes in the law. We must adequately staff the legal structures by getting in more judges, more lawyers and courts. It will be my endeavour to try and push through the necessary judicial reforms.
Pranab Dhal Samanta: Where is the government on the proposal for a judicial appointments commission? Your predecessor also wanted to start a conversation with the Supreme Court on moving the two-judge benches to three-judge benches and looking at a permanent five-bench constitutional bench headed by the Chief Justice. Where are you on these issues?
On the second question, I would need to discuss this with the higher judiciary, with the Chief Justice of India. I do recognise that in the last several years, the demand on the judges of the Supreme Court to decide complex issues of constitutional law has increased exponentially and therefore, some kind of structured instrumentality has to be in place to ensure that the best possible judicial decisions are handed down on far-reaching issues without compromising on the judges’ responsibility towards other important litigations pending before them. On the judicial appointments commissions, the consultations with different political parties have taken place. A few details need to be fine-tuned.
Prerna (St Mark’s School, Janakpuri, Delhi): India stands 98 among 175 countries on the corruption index. Judiciary can play a positive role in checking corruption. What are your plans?
I am not sure if any country in the world has been able to completely eliminate corruption but that should not stop us from endeavouring to do so. It would be my endeavour to be a facilitator in the enforcement of anti-corruption laws and ensuring that the enforcement of criminal laws is not oppressive.
Dilip Bobb: What’s your view on Supreme Court judges taking up government-sponsored jobs immediately after retirement?
My personal view, not my view as the minister of law and justice, is that it would be a healthy tradition for judges of the Supreme Court not to accept post-retirement jobs. Having said that, it is equally true that given the complexities of the regulatory regime that we now have to advance our economic and social legislation, there is no substitute for experience. Given also that at the retirement age of 62 years, Supreme Court judges are still active and alert in mind, we need to have some of these wise men on tribunals for a while.
Karishma Kuenzang (EXIMS*): Cartoonist Aseem Trivedi was arrested on charges of sedition. What steps will you take to ensure that freedom of speech and expression and the law of sedition do not clash?
The charge of sedition can only be brought forward in an almost foolproof case. If every spoken word, sometimes in anger or without full reflection on the spur of the moment, is going to lead to a charge of sedition, then I do not know who will be saved from that charge.
Yogesh Rajput (EXIMS): As a former minister of science and technology, why do you think the government gives less importance when it comes to allocation of funds in R&D and science and technology?
The PM accords the highest importance to science and technology. In the 12th Five Year Plan, we have significantly increased public spending on R&D. It used to be less than 1 per cent of our GDP in the 11th Plan. In the 12th Plan, the R&D expenditure, both in the private and public sector, will be increased to about 2 per cent of the GDP, the single highest growth of expenditure in any department.
N P Singh: Should we see the transfer of Mr Jaipal Reddy to this ministry in the context of the PM giving priority to science and technology?
It may well be. I have the deepest respect for Mr Reddy, both for his scholarship and for his ability to read and grasp complex issues of science and technology.
D K Singh: What are your views on Arvind Kejriwal’s allegations that Mr Ranjan Bhattacharya influenced the government during Mr Vajpayee’s prime ministership?
I don’t want to dignify the comments of Mr Kejriwal by my rebuttal or by my comment. I am also not defending Mr Bhattacharya, but if Mr Kejriwal has said anything about an individual based on his information, who am I to comment?
Shishir Tripathi (EXIMS): When Justice Katju was in office, he raised the issue of nepotism in the judiciary.
It’s true that there has been a perception that this is not a healthy practice. I do not know what to say. Does it mean that if somebody needs to be elevated to the judgeship of the High Court, his nephew, son or daughter have to move out of the court? Or does it mean that he should decline to become a judge just because he does not want to deprive his children of the opportunity to practice in court? You need to have a balance on such issues.
Prashant Dixit (EXIMS): Several decisions of khap panchayats have created a furore. Don’t you think that the judiciary should interfere?
The law of the land is supreme and their decision is to be respected by all, be it a khap panchayat or any other panchayat.
Transcribed by Ananya Bhardwaj & Priyanka Sharma
* Express Institute of Media Studies
Public Interest Litigation is a good thing when it is used to enforce the rights of the disadvantaged. But it has now been diluted to interfere with the power of the government to take decisions on a range of policy matters
Judicial activism is not an easy concept to define. It means different things to different persons. Critics denounce judicial decisions as activist when they do not agree with them. Activism, like beauty, is often in the eye of the beholder. In India, the opening up of access to courts to the poor, indigent and disadvantaged sections of the nation through Public Interest Litigation, popularly known by its acronym PIL, is unexceptionable judicial activism. From 1979, the judiciary led by the Supreme Court in India became relevant to the nation in a manner not contemplated by the makers of the Constitution and became an active participant in the dispenser of social justice.
It is a matter of concern that over the years this original, beneficial and unexceptionable character of the Court’s activism in PIL has been largely converted into a general supervisory jurisdiction to correct actions and policies of government, public bodies and authorities. This is a type of judicial activism unparalleled in any other judiciary.
For basic rights
PIL jurisdiction began haltingly with little idea of its potential when the Supreme Court, in 1979, entertained complaints by social activists drawing the attention of the Court to the conditions of certain sections of society or institutions which were deprived of their basic rights.
In 1979, Supreme Court advocate Kapila Hingorani drew the Court’s attention to a series of articles in a newspaper exposing the plight of Bihar undertrial prisoners, most of whom had served pretrial detention more than the period they could have been imprisoned if convicted. Sunil Batra, a prisoner, wrote a letter to Justice Krishna Iyer of the Supreme Court drawing his attention to torture by prison authorities and the miserable conditions of prisoners in jails. This was taken up as a petition and the Court passed orders for humane conditions in jails. In 1980, two professors of law wrote a letter to the editor of a newspaper describing the barbaric conditions of detention in the Agra Protective House for Women which was made the basis of a writ petition in the Supreme Court. The exploitation of workmen at construction sites in violation of labour laws was brought to the attention of the Supreme Court by a letter. The slave-like condition of bonded labourers in quarries was brought to the attention of the Court by a social activist organisation. A journalist moved the court against the evictions of pavement dwellers of Bombay. Several cases of this type followed.
In dealing with such cases, the Court evolved a new regime of rights of citizens and obligations of the State and devised new methods for its accountability. In 1982, Justice P.N. Bhagwati, correctly stated the purpose of PIL as it originated. He emphasised that PIL “a strategic arm of the legal aid movement which is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity, is a totally different kind of litigation from the ordinary traditional litigation.”
No longer were the Court’s clientele drawn from landlords, businessmen, corporations and affluent persons. With PIL, the common man, the disadvantaged and marginalised sections of society had also easy access to the Court with the help of social activists.
This unique judicial activism was not found in other countries and leading judges abroad such as Lord Harry Woolf of the United Kingdom and Justice Michael Kirby of Australia, applauded it.
The new intervention
However, over the years, the social action dimension of PIL has been diluted and eclipsed by another type of “public cause litigation” in courts. In this type of litigation, the court’s intervention is not sought for enforcing the rights of the disadvantaged or poor sections of the society but simply for correcting the actions or omissions of the executive or public officials or departments of government or public bodies. Examples of this type of intervention by the Court are innumerable. In the interest of preventing pollution, the Supreme Court ordered control over automobile emissions, air and noise and traffic pollution, gave orders for parking charges, wearing of helmets in cities, cleanliness in housing colonies, disposal of garbage, control of traffic in New Delhi, made compulsory the wearing of seat belts, ordered action plans to control and prevent the monkey menace in cities and towns, ordered measures to prevent accidents at unmanned railway level crossings, prevent ragging of college freshmen, for collection and storage in blood banks, and for control of loudspeakers and banning of fire crackers.
In recent orders, the Supreme Court has directed the most complex engineering of interlinking rivers in India. The Court has passed orders banning the pasting of black film on automobile windows. On its own, the Court has taken notice of Baba Ramdev being forcibly evicted from the Ramlila grounds by the Delhi Administration and censured it. The Court has ordered the exclusion of tourists in the core area of tiger reserves. All these managerial exercises by the Court are hung on the dubious jurisdictional peg of enforcing fundamental rights under Article 32 of the Constitution. In reality, no fundamental rights of individuals or any legal issues are at all involved in such cases. The Court is only moved for better governance and administration, which does not involve the exercise of any proper judicial function.
In its most activist and controversial interpretation of the Constitution, the Supreme Court took away the constitutionally conferred power of the President of India to appoint judges after consultation with the Chief Justice, and appropriated this power in the Chief Justice of India and a collegium of four judges. In no Constitution in the world is the power to select and appoint judges conferred on the judges themselves.
The Court is made the monitor of the conduct of investigating and prosecution agencies who are perceived to have failed or neglected to investigate and prosecute ministers and officials of government. Cases of this type are the investigation and prosecution of ministers and officials believed to be involved in the Jain Hawala case, the fodder scam involving the former Chief Minister of Bihar, Lalu Prasad Yadav, the Taj Corridor case involving the former Chief Minister of Uttar Pradesh, Mayawati, and the recent prosecution of the Telecom Minister and officials in the 2G Telecom scam case by the Supreme Court.
The Supreme Court has made an order even in a military operation. In 1993, the Court issued orders on the conduct of military operations in Hazratbal, Kashmir where the military had as a matter of strategy restricted the food supplies to hostages. The Court ordered that the provision of food of 1,200 calorific value should be supplied to hostages. Commenting on this, an Army General wrote: “For the first time in history, a Court of Law was asked to pronounce judgment on the conduct of an ongoing military operation. Its verdict materially affected the course of operation.”
Even proceedings of Legislatures are controlled by the Court. In the Jharkhand Legislative Assembly case, the Supreme Court ordered the Assembly to conduct a Motion of Confidence and ordered the Speaker to conduct proceedings according to a prescribed agenda and not to entertain any other business. Its proceedings were ordered to be recorded for reporting to the Court. These orders were made in spite of Article 212 of the Constitution which states that Courts are not to inquire into any proceedings of the legislature.
Matters of policy of government are subject to the Court’s scrutiny. Distribution of food-grains to persons below poverty line was monitored, which even made the Prime Minister remind the Court that it was interfering with the complex food distribution policies of government. In the 2G Licenses case, the Court held that all public resources and assets are a matter of public trust and they can only be disposed of in a transparent manner by a public auction to the highest bidder. This has led to the President making a Reference to the Court for the Court’s legal advice under Article 143 of the Constitution. In the same case, the Court set aside the expert opinion of the Telecom Regulatory Authority of India (TRAI) to sell 2G spectrum without auction to create greater teledensity in India.
The Court has for all practical purposes disregarded the separation of powers under the Constitution, and assumed a general supervisory function over other branches of governments. The temptation to rush to the Supreme Court and 21 High Courts for any grievance against a public authority has also deflected the primary responsibility of citizens themselves in a representative self government of making legislators and the executive responsible for their actions. The answer often given by the judiciary to this type of overreach is that it is compelled to take upon this task as the other branches of government have failed in their obligations. On this specious justification, the political branches of government may, by the same logic, take over the functions of the judiciary when it has failed, and there can be no doubt that there are many areas where the judiciary has failed to meet the expectations of the public by its inefficiency and areas of cases.
Justice Jackson of the U.S. has aptly said: “The doctrine of judicial activism which justifies easy and constant readiness to set aside decisions of other branches of Government is wholly incompatible with a faith in democracy and in so far it encourages a belief that judges should be left to correct the result of public indifference it is a vicious teaching.” Unless the parameters of PIL are strictly formulated by the Supreme Court and strictly observed, PIL which is so necessary in India, is in danger of becoming diffuse, unprincipled, encroaching into the functions of other branches of government and ineffective by its indiscriminate use.
(The writer is a senior advocate of the Supreme Court and former Solicitor General of India. This article is an abridged version of a lecture he recently delivered at the sesquicentennial of the Bombay High Court.)
CHANDIGARH: The Haryana government will have to pay as much as Rs 64 lakh to two of country’s top legal eagles – Rohinton F Nariman and G E Vahanvati – for “conferences and just nine appearances” in the Supreme Court in a span of three weeks in an important case relating to defection of five Haryana Janhit Congress (HJC) MLAs. The government, which has been billed up to a maximum of Rs 1.65 lakh for one appearance by the clerk of one of the top lawyers, has a battery of over 200 law officers, headed by an advocate
The Bhupinder Singh Hooda government in Haryana hired these top lawyers after it was faced with the prospect of being reduced to a minority in the assembly, following a Punjab and Haryana high court verdict in December last year, detaching the five MLAs from the assembly. The MLAs had joined Congress after defecting from HJC, led by Bhajan Lal’s son and Hisar MP Kuldeep Bishnoi. While Rohinton, son of eminent jurist Fali S Nariman, is the solicitor general of India, Vahanvati is the attorney general of India. The bill is likely to rise with other legal eagles, like former solicitor general Gopal Subramanium and senior advocates Rajiv Atma Ram and Mohan Jain, yet to send their details for appearing in the high court.
Information received through the RTI Act by TOI has revealed that the highest billed amount has touched Rs 7 lakh for a single appearance, while the highest amount to be paid to their clerks has touched Rs 1.65 lakh for one appearance along with the lawyers. The lawyers were hired to defend the Haryana Speaker.
Fee of SC advocate Rohinton F Nariman
February 22, 2012 | Rs 5.50 lakh
February 23, 2012 | Rs 5.50 lakh
February 28, 2012 | Rs 5.50 lakh
February 29, 2012 | Rs 5.50 lakh
March 13, 2012 | Rs 5.50 lakh
March 14, 2012 | Rs 5.50 lakh
March 15, 2012 | Rs 5.50 lakh
March 18, 2012 | Rs 5.50 lakh
Service tax | Rs 4.53 lakh
Total | Rs 48.53 lakh
Fee of Nariman’s clerk Narayan Verma
February 23, 2012 | Rs 1.10 lakh
February 29, 2012 | Rs 1.10 lakh
March 15, 2012 | Rs 1.65 lakh
March 18, 2012 | Rs 55,000
Total | Rs 4.40 lakh
Fee of SC advocate G E Vahanvati
January 4, 2012 | Rs 10 lakh (for conference and appearance)
Total | 10 lakh
Fee for Vahanvati’s clerk
January 4, 2012 | Rs 1 lakh (for conference and appearance)
Gross total | Rs 64 lakh
SHALINI SINGH IN THE HINDU
Rather than using the Supreme Court’s judgment to improve governance and reduce discretionary powers, the government is making a desperate attempt to restore false prestige by seeking a review of 2G verdict. The United Progressive Alliance government’s petition seeking a review of the Supreme Court judgment cancelling 122 telecom licences makes another desperate bid to protect its discretionary powers in the allocation of scarce natural resources by arguing that auctions cannot be the only method for its allocation.
However, the government’s petition, apart from stubbornly repeating old arguments that have been shot down by the courts several times over, goes on to expose a flawed interpretation of the Supreme Court’s judicial reasoning.While the judgment addresses itself specifically to the massive commercial value attached to “scarce” natural resources, the review petition conveniently refuses to acknowledge either scarcity or commercial value while arguing that restricting the allocation of “natural resources” to auction methodology will lead to arbitrary consequences and hurt public interest. Unsurprisingly, the government is unable to explain how.
Despite the government’s opposition to auctions, its petition fails to explain why auctions were chosen for spectrum in 1995, 2001 and 2010 and, further, recommended by the TRAI in February 2011. Or how a first come, first served (FCFS) system can work in a situation where demand (in terms of equally placed candidates for the scarce resource) far exceeds supply, or even why the government feels obliged to refuse legitimate revenue from applicants who are willing to pay for spectrum based on their business case. In the 2G scam, scarce spectrum allocated cheap through a FCFS method was monetised through “private” auctions, ensuring gains for individual promoters rather than the people of India.
The petition steers clear of the fact that auctions can be designed for a specific outcome by imposing conditions such as price caps for voice calls and SMSs, or a lower rural tariff. For example, when auctioning toll roads to the highest bidder, the government ensures that pedestrians, cyclists and two-wheelers are allowed free passage. While finding fault with auctions, the government is at a loss to demonstrate what the fault is.
For the government to assume that the judgment bans any alternative methodology to auctions is naive. If the government attempts an auction at a certain reserve price, fails, re-auctions at a lower reserve price and fails again, it must use another methodology. However, the Sachidanand Pandey vs the State of West Bengal case cited by the government itself demands that these circumstances be compelling and documented. Ironically, the petition not just fails to document compelling reasons but ignores the fact that the judgment only relates to those natural resources which are scarce and deliver monetisable commercial value in private hands.
It is equally inexplicable why the government is openly uncaring of the fact that except for auctions, practically all other methodologies — and FCFS or beauty parades in particular — violate Article 14 of the Constitution. In addition, auctions support the policy provisions of the National Telecom Policy 1999 seeking transparent allocation of spectrum; the 10th Five Year Plan linking spectrum pricing to scarcity; the Prime Minister’s letter of November 2, 2007 seeking 2G auctions/market-based pricing; Finance Secretary D. Subbarao’s attempts to secure auctions/indexation-based pricing for 2G spectrum, and the Group of Ministers (GoM) decision to auction 3G spectrum in 2010.
Despite this, in a laughable attempt to argue against auctions for “scarce” natural resources, the petition quotes cases of award of contracts without auctions for resin tapping in Kashmir, saal (oil) seeds in Madhya Pradesh and “distilleries” (liquor), which hardly qualify as scarce natural resources.
The government is opposed to judicial scrutiny of “government policy.” Can it hope to establish a Minister’s illegal decision implemented without the Cabinet, the GoM or the full Telecom Commission’s approval after bypassing opposition from the Prime Minister, the Finance Secretary and the Law Minister as government policy?
The government’s own claim in its affidavits in the Supreme Court, multiple press releases, interviews and statements is that the former Telecom Minister, A. Raja’s decision was based on telecom regulator TRAI’s recommendations. Any decision of the government based on TRAI’s recommendations is open to full judicial scrutiny under Section 14 of the TRAI Act. So on what grounds can the government claim insulation from judicial scrutiny?
The Supreme Court judgment rightfully categorises auctions as a “methodology.” Decisions of the Cabinet to liberalise a sector, allow or increase foreign direct investment and invite private capital are matters of policy, but its implementation in terms of timing, procedure and terms and conditions are executive decisions. In the telecom sector, the latter falls strictly in the purview of the TRAI Act. The government’s decision-making in this respect is curtailed by law under Section 11(1)(a)(i) & (ii), read with the second, fourth and fifth provisos of the TRAI Act. In effect, all procedures like FCFS, beauty parades or auctions qualify for judicial review.
Even if one were to accept the government’s fragile claim that FCFS is a policy and not an executive decision, the petition still fails to demonstrate a single public announcement of this so-called policy since the formation of the Unified Access licence regime on October 31, 2003. It is missing in TRAI’s October 27, 2003 recommendations, the Cabinet decision of October 31, 2003, the licence guidelines and amendment of the National Telecom Policy 1999 on November 11, 2003 and even revised licence guidelines announced by the UPA government on December 14, 2005. The government is welcome to demonstrate otherwise. Had the FCFS “policy” not been kept a state secret, applicants would have queued up earlier than they did. The truth is that the FCFS process was deviously announced for the very first time by Mr. Raja at 1.47 p.m., less than two hours before executing the 2G scam on January 10, 2008.
Finally, even though rarely used, the powers of the Supreme Court in entering and adjudicating on the government’s implementation of policy are indisputable, especially when the implementation is secretive, arbitrary, illegal, malicious, discriminatory and violates multiple provisions of law (in this case the TRAI Act) and Article 14, 19(1)(g) and 21 of the Constitution guaranteeing equal opportunity through transparent procedures for all citizens to access a resource/contract allocated by the government.
The government’s tiring correlation of FCFS with public interest in terms of affordability, growth, and teledensity is also unsubstantiated in its petition. How auctions hurt urban or rural teledensity or affordability is not explained. Was the UPA intending to hurt public interest by holding auctions for 3G in 2010? Can it explain how Vodafone continuously cut back tariffs after paying $12 billion to buy out Hutch’s stake in Hutch Essar in 2007? Why does higher revenue for the exchequer, which translates into roads, schools, hospitals and welfare schemes for the poorest of the poor, not count as public interest?
One would expect the government to be peeved about the reality of Mr. Raja’s FCFS performance, which led to windfall gains for new operators who pocketed 30 per cent of scarce spectrum to serve less than 5 per cent of India’s subscriber base. The failure of these firms to roll out telecom networks has forced the government to initiate steps to terminate their licences. Despite this, the government continues to argue that bringing in these companies served public interest, teledensity and affordability.
How does the government hope to justify its obsessive compulsion in ensuring a level-playing field with incumbent operators for seven illegally picked new entrants while totally ignoring the fact that 343 similarly placed applications were denied a fair chance of accessing 2G spectrum? Ludicrously, the government is arguing its right to discriminate in the application of the level-playing field itself.
Unfortunately, the review petition has no substantial counter to offer the Supreme Court on these critical issues despite access to the finest legal brains in the country and within the Cabinet. The Attorney General and other legal luminaries have already argued all these issues and still failed to impress the court.
One would have hoped the government would be mindful, even grateful, for the Supreme Court’s restraint in avoiding any adverse observations in its judgment on issues of collective Cabinet responsibility, the Prime Minister’s failure to check a Minister, or the Finance Ministry’s inability to invoke its powers under the Government of India (Transaction of Business) Rules to stop a Minister from grievously hurting the exchequer and, by consequence, the common man. Instead of implementing the judgment and restoring its lost dignity, the government is provoking the court, increasing uncertainty and wasting time with its attempt at a review. Perhaps, like the election verdict, it is time for the UPA to accept defeat in the 2G matter, gracefully or otherwise.
SHALINI SINGH IN THE HINDU
The 2G judgment goes beyond telecom, spoiling the party for corrupt politicians, bureaucrats and big business.
It is only after navigating through the anger of unrepentant telecom firms and the grief of stricken investors and employees facing an uncertain future that one encounters the real impact of the Supreme Court judgment cancelling 122 illegal telecom licences last week.
Its immediate, most obvious impact is a strong judicial attack on the opaque spectrum allocation process used by the government since 2001, first on a subscriber-linked criterion and later, on a first come, first served basis, which was exploited in 2008 in the worst possible manner by jailed ex-Telecom Minister A. Raja.
The uncertainties that follow will be confined to the medium term, culminating in the delivery of tangible justice — the reassignment of licences and spectrum at a market-determined price.
Reverberation in other sectors
The reverberations of the judgment actually extend far beyond telecom, crushing the subjective power of the government to issue licences and contracts in any sector like power, coal, minerals, mines, land, and even special economic zones (SEZ), that allocates scarce national resources. This effectively attacks the fountainhead of all large corruption linked to government contracts.
The first irrefutable principle of the judgment is on the issue of ownership and control of natural resources provided under Article 39(b) of the Constitution: “The ownership and control of natural resources of a community should be distributed so as to best sub-serve the common good but no comprehensive legislation has been enacted to generally define natural resources and a framework for their protection.” With the government dithering on such specific legislation, the judgment has become the de facto law in the matter.
Recognising that while the state is deemed to have a proprietary interest in natural resources, it must act as a guardian and trustee, the judgment affirms that the people are the designated owners of natural resources in any country.
Acknowledging the high economic value of natural resources, the judgment recognises that these national assets are scarce, finite, and susceptible to degradation in case of inefficient utilisation.
Highlighting the issue of “public trust,” the judgment quotes from several international judgments, including the famous American one, of Illinois Central R. Co. vs Illinois, and the ones in India such as M.C. Mehta vs Kamal Nath to make the point that: “Public interest doctrine enjoins upon the government to protect the resources for the enjoyment of the general public rather than permit its use for private ownership or commercial purposes.” At the heart of the public trust doctrine is the limits and obligations upon government agencies as administrators on behalf of all people, especially future generations.
Hits government stand
This shatters the government’s stand that the allocation of natural resources is its sole preserve, and such ‘policy’ decisions should not be open to public or legal scrutiny. Traditionally, courts have been reluctant to review ‘government policies’ as they are considered an exclusive prerogative of the executive and formed after considering expert opinion.
Invoking the doctrine of equality deals the hardest blow to the opaque allocation procedures for natural resources that are in use for award of Central and State government contracts. The judgment states that the doctrine of equality which emerges from the concept of justice and fairness must guide the state in determining the actual mechanism of distribution of natural resources. This has two aspects: first, it regulates the rights and obligations of the state vis-a-vis its people and demands that the people be granted equitable access to natural resources and/or its products, and that they be adequately compensated for the transfer of resources to the public domain. This considerably debilitates the government’s line in applying subjective criteria such as first come, first served or beauty parades when allocating natural resources in the future. Additionally, it requires the national exchequer to place a value on a natural resource before granting any party the privilege of using it.
The second part of the equality doctrine is explained as the need to regulate the rights and obligations of the state vis-a-vis private parties seeking to acquire/use resources and demands that the procedure adopted for distribution is just, non-arbitrary and transparent and that it does not discriminate between similarly-placed parties. This specifically addresses legacy issues of changing the goalpost after the game has begun such as tampering with cut-off dates or altering the qualifying criteria after applications have been submitted or bids placed.
Overall, it ensures that every party has an equal chance of transparently acquiring the asset, based on the rational value that it believes can be derived from the acquisition. The judgment specifically tears apart the first come, first served system, firmly re-establishing auctions as a preferred option.
Auctions can do much more than just raising revenue. They are quicker, more efficient and more economical than administrative allocation; ensure equitable access to natural resources; protect public trust; and protect equality as upheld in Article 14 of the Constitution. The telecom experience shows us that those who pay a market price base it on their expectation of revenue generation. Therefore, they are the first to rollout networks, best serving the objectives of tele-density, affordability and competition.
The judgment is unbending in its view that licences or natural resources given through devious and unconstitutional means cannot plead equities, investment or consumer interest even if they have not been a party to an unconstitutional and arbitrary allocation. Bidders with the slightest hint of ongoing mischief must now walk away, rather than participate. The fact that licences awarded illegally can be cancelled four years after they were allocated should send the fear of god in the minds of those who believe that investment and consumer interest will sway the courts once time has lapsed.
Simply put, the judgment gives judicial muscle to the message that from now on, offenders will be punished irrespective of political status, financial power and the time or money that may have been invested in an act that was illegal to begin with.
Striking a blow against corruption by empowering all those — non-governmental organisations, enlightened citizens and activists — fighting big corruption, this landmark judgment carries the potential of fast-tracking the pace of administrative reforms and governance in India in a manner not witnessed in the past.
- Government has no right to alienate, transfer or distribute natural resources/national assets otherwise than by following a fair and transparent method consistent with the fundamentals of the equality clause enshrined in the Constitution (lawreports.wordpress.com)
- Government has no right to alienate, transfer or distribute natural resources/national assets otherwise than by following a fair and transparent method consistent with the fundamentals of the equality clause enshrined in the Constitution (indialawyers.wordpress.com)
- ‘Wholly arbitrary, capricious and contrary to public interest’ (indialawyers.wordpress.com)
- ‘Wholly arbitrary, capricious and contrary to public interest’ (thehindu.com)
PUBLISHED IN THE TIMES OF INDIA
With the Lokpal Bill becoming the focus of attention within and outside Parliament, Justice V N Khare, former chief justice of India, spoke with Rudroneel Ghosh on the constitutional dimensions of the anti-corruption legislation:
How does the failure to confer constitutional status on the Lokpal affect the anti-corruption ombudsman?
Such an anti-corruption ombudsman was earlier established in Haryana and Punjab through a legislative instrument, that is through an ordinary statute. But there were some political bigwigs who were involved in corruption and the Lokayukta was on the verge of catching them. What the government did then was it repealed the (Lokayukta) Act itself through an ordinance. This happened both in Haryana and Punjab. My apprehension is that if a political heavyweight is under investigation, and the ombudsman has been established through an ordinary statute, then a simple ordinance can be passed to scrap the whole institution. But if the body has constitutional status, then it can’t be amended like this. It would have been difficult to repeal the Lokpal had it been given constitutional status.
Can the opposition argue that the minority quota in the Lokpal is unconstitutional?
No. Consider Articles 15 and 16 of the Constitution. Nowhere do they talk about a Hindu, Muslim or Christian quota. What they say is that nothing will prevent Parliament from enacting a law for advancement of educationally and socially backward class of citizens and members of the scheduled caste. There’s no mention of religion. When you identify certain Hindu castes such as Yadavs, Kurmis, etc you don’t say ‘Hindus’ are getting reservation; you say they are backward groups and on this basis you give them reservation. Similarly, among the Muslim community you can identify certain backward segments and have a quota for them. So it’s not a question of religion but educationally and socially backward communities.
Does the Lokpal Bill impinge on the country’s federal structure?
Article 252 of the Constitution provides that in case Parliament doesn’t have the power to enact a law, it can on the request of the states make law for those states as well as whosoever is concerned with the law. Article 253 says that Parliament is empowered to enact laws for the enforcement of international treaties and UN conventions. For example, there is no legislative subject called human rights. But because we were a signatory to the UN Human Rights Convention, we enacted laws to establish the National Human Rights Commission. Similarly, the 2003 UN convention on fighting corruption empowers Parliament to make laws to tackle graft. It is on this basis that the Lokpal Bill has been introduced under Article 253. If the UN convention did not exist, then you could say the Lokpal Bill impinges on federalism. But not in this case.
Is there any merit in the Team Anna argument that the CBI should be brought under the Lokpal?
I don’t think that the entire CBI can be brought under the Lokpal. The CBI is a huge organisation whose investigative capabilities are used for so many things other than fighting corruption. At best you can put 50 or 60 CBI officers on deputation with the Lokpal. However, if the CBI is under the government and the government is the prosecutor, there is a clear conflict of interest in prosecuting government corruption. I believe the CBI should be autonomous in any case.
Do you think the Lokpal can be a magic bullet against corruption?
Not at all. Just like water finds its own level, people will find other routes to corruption. But the Lokpal can be a deterrent and create some fear in the minds of potential offenders.
RAJINDER SACHAR IN THE TRIBUNE
The debate on the Lokpal Bill requires calm and cool consideration. The timing of the debate, surcharged before the election in five states, is not conducive and is unlikely to do justice to the enormity of the task
The debate in Parliament on the proposed Lokpal legislation has unfortunately touched a nadir; instead of discussing the legislation in a sober atmosphere and making a conscious effort to arrive at as much consensus as possible, the political parties are instead indulging in acrimonious and heated exchanges.
The exercise of the government in furtively slipping in various quotas, including for the minorities, appears a deliberate one with one eye on UP elections, notwithstanding doubts on the legality of it expressed by former Supreme Court judges and jurists. Why would any one imagine that the selection committee comprising the Prime Minister, Leader of Opposition in the Lok Sabha and the Chief Justice of India, would not consider members from amongst Muslims and women, when any number of them are available from these sections on their own merit ?
Why indeed was this non-issue allowed to take over the debate, unless it was a device to stall the Lokpal legislation ? Let us not forget that parties led by Mulayam Singh and Laloo Prasad were the ones which sabotaged the Women’s Reservation Bill by insisting on a sub quota for the OBCs. They managed to embarrass Sonia Gandhi and Sushma Swaraj, who had earlier embraced, without any embarrassment, and congratulated each other over their victory in the Lok Sabha. But they had to beat a retreat in the Rajya Sabha.
The suggestion that if there are allegations against the Prime Minister, they would be decoratively shelved and brought out after he remits office (which may be even 5 years later), also does not make any sense. An incumbent Prime Minister of Italy this year was forced to resign on corruption charges after he was found to be guilty by a court. Similarly Jacques Chirac, a former President of France was recently sentenced to 7 years of imprisonment, again for corruption while a former President of Israel has been sent to jail on grounds of sexual harassment and moral impropriety.
The most contentions matter of the CBI also remains unresolved. Ideally, the appointment of the Director, CBI should be by a joint committee consisting of the Lokpal and a Standing Committee of Parliament. Give the CBI Director a fixed tenure for five or ten years. He should have full administrative control over the staff of C.B.I. and over earmarked funds from the Consolidated Fund of India.
There should be no interference with his day to day work by the Central Government or the Lokpal. However the Lokpal would be entitled to ask and receive reports from him at regular intervals. The Director, CBI shall not be removed from service except in the manner and on similar grounds as a judge of the Supreme Court – in the same manner of removal, which applies to the removal of the Chief Election Commissioner.
Immunity for MPs
Surprisingly, not withstanding bitter wrangling on most other aspects, all Members of Parliament have unanimously agreed to keep themselves outside the ambit of the Lokpal and the CBI for any corrupt action and bribery inside the Parliament. To me this is scandalous and unacceptable.
In their defence, Members of Parliament invoke Article 105 of the Constitution, and the widely criticised majority judgment (3 against 2) in the Narasimha Rao case (1999). The minority judgment, however, had warned that this interpretation could lead to a charter for corruption and elevate Members of Parliament as “super-citizens, immune from criminal responsibility”.
It would indeed be ironic if a claim for immunity from prosecution, founded on the need to ensure the independence of Members of Parliament in exercising their right to speak or cast their vote in Parliament, is put forward by a Member, who has bartered away his independence by agreeing to speak or vote in a particular manner in lieu of illegal gratification. In other countries such a conduct of MPs is treated as criminal, since 1875, for example, in Australia.
The matter of Lokpal is too important and needs to be discussed more seriously and not under pressure of forthcoming elections in Punjab and in Uttar Pradesh. The knee-jerk reaction of the Central Government to Anna Hazare’s threat of fast, was possibly prompted by the Opposition’s eagerness to cash on the civil society movement and opposition leaders cosying up to Anna Hazare.
Their puerile excuse that they sat with Hazare because they wanted to explain their point of view is unacceptable political behaviour. Political Parties should hold their own meetings to explain their position to the public. Anna Hazare does have the right to muster support, arouse masses and exercise his democratic rights – and to put pressure on the government and even the Parliament, to pass a particular law because the ultimate sovereign are the people. But there is a caveat that this discussion requires a calmer atmosphere. Could the parties unanimously agree to adjourn the discussions till after the UP elections are over, with a pledge to pass the legislation as the first item when Parliament begins its next session ?
As a measure of his genuine concern for a strong Lokpal, Anna Hazare on his part, one hopes, would reciprocate by not going on fast or agitation. He can rest assured that people’s determination to have a strong Lokpal is not so weak as to let the government ignore its solemn pledge to pass the Bill.
If the government prevaricates, it must know that consequences could be monumental and no government can remain in permanent confrontation with its real masters, the people of India.
The writer is a former Chief Justice of Delhi High Court
But the flaws in the Bill cannot be settled on the street. Agitations may even destroy the country
Kuldip Nayar IN THE TRIBUNE
The amended Lokpal Bill being debated in Parliament does not appear to give enough powers to the institution of the Lokpal (Ombudsman) to deal with corruption within the government. Despite the government claiming that it has given enough powers in the Bill and addressed the concerns raised by Anna Hazare, he has already rejected the Bill introduced in Parliament and has proceeded on fast in Mumbai. He has also threatened to demonstrate outside the houses of ministers and MPs in New Delhi. He has also called upon the people to fill the jails (Jail Bharo) and has warned the Congress that he would himself campaign against the party in the forthcoming elections in five states. The ruling Congress President Sonia Gandhi has picked up the gauntlet, declaring that the party is ready for the fight.
The key issue is control over the Central Bureau of Investigation (CBI). The government has rejected the demand for transferring its administrative control to the Lokpal or to any independent agency. Apparently, the government has a lot to hide and, therefore, cannot allow its omissions and commissions to be exposed.
The UPA government led by Manmohan Singh has used the CBI to put pressure on UP Chief Minister Mayawati and former Chief Minister Mulayam Singh Yadav, whenever it has been threatened with defeat in the Lok Sabha. The Congress has a strength of 207 in the 545-member Lok Sabha. The pressure works because both Mayawati and Mulayam Singh are facing CBI cases for their disproportionate assets.
The Congress alone cannot be blamed though. All governments, including the one led by BJP leader Atal Bihari Vajpayee have used the CBI to serve their own interest. A senior opposition leader from Bihar admitted on the floor of the Lok Sabha that they too had misused the CBI when they were in power. Many former directors of CBI have recorded in books they have written after their retirement that they were pressurised by one government or the other to prosecute or not to prosecute in an assortment of cases involving politicians and political parties.
I was a member of the Rajya Sabha when the Bill to spell out control over the CBI came up before the Parliamentary Standing Committee on Ministry of Home Affairs. The then Chief Justice of India J.S.Verma had proposed in a Hawala case to set up an independent Directorate of Prosecution (DOP) to have control over the CBI. But no political party — all of them were represented in the Committee — wanted the CBI to be autonomous.
I was disappointed when Justice Verma’s proposal was summarily rejected. The administrative control of the government over the CBI was endorsed. So much so that the Committee restored the Single Directive which the Supreme Court had thrown out. The Single Directive meant that the government’s permission was required before initiating an inquiry or action against officers of the rank of Joint Secretaries and above. There is hardly a minister who does not use these officers to serve his own or his party’s interests. The details of the 2G Spectrum scam, now revealed by the CBI, show how ministers were in league with the private parties in the allotment of licences without following any of the established rules.
The Lokpal is toothless without control over the CBI and will be quite helpless to probe into the misdeeds of ministers or senior officials.
My main objection is against the provision for 50 per cent reservation. Quotas are alright in jobs or educational institutions. But when we are selecting people for Constitutional positions, we want the best talent available. I am told that in the Congress, some voices have been raised for having reservations in the High Courts and even the Supreme Court. What kind of India are we building when parochialism is on the agenda of political parties for the sake of placating voters of one community or the other?
Unfortunately, the government has already conceded the enumeration of castes in the in the 2011 census. I wish the counting was designed to learn how many poor people are there in the country. By introducing reservation in the Lokpal, the government is sowing seeds of division and conflict in the fight against corruption. I hope that Anna Hazare would raise his voice against reservation in Lokpal.
Anna’s firm ‘no’ to the Lokpal Bill indicates that the battle may go to the streets. This is undesirable and will destroy the country. Political parties should collectively think how to sort out the issue without agitations. The dictum that the loss of one is the gain of the other is shortsighted. Whatever the moves or counter-moves of political parties, people should be vigilant and not play into their hands.
G P JOSHI IN THE INDIAN EXPRESS
The debate on the Lokpal bill has thrown up three propositions about the CBI. One, retain the status quo; two, transfer the control to the Lokpal; and three, make the CBI an independent organisation. The CBI is now governed by an outdated act of World War II vintage, called the Delhi Police Establishment Act, which was enacted in 1946 to regulate the functioning of the Special Police Establishment. Section 4 (1) of this act vests the superintendence of the CBI in the Central government, just as Section 3 of the police act of 1861 vests the control of the state police force in the state government.
Since the word “superintendence” has not been defined in any law, both the Central and state governments have misused police forces to serve their partisan interests. There is a general perception that the CBI, like other police forces in the country, is influenced in its work by political considerations.
Can any government ever think of making the CBI an independent organisation? If one plays the devil’s advocate, one can think of two arguments that the Central government can cite in favour of retaining its control over the CBI. First, any police force, including the CBI, is a part of the executive, and in the Westminster model of governance that we have adopted, the minister concerned is responsible to Parliament for the efficient and honest functioning of his departments. Second, the police, including the CBI, enjoys tremendous powers and it is important for the government to ensure these powers are used judiciously.
While the first argument can be considered valid, the second can be contested. It is true that in a democratic system, police powers need to be controlled to prevent their misuse, but then it has to be realised that controlling the police itself becomes a source of tremendous power that can be misused to serve partisan interests, as has happened so frequently in this country. What is needed is to set up institutions and mechanisms to balance these two requirements.
In the judgment on the hawala case, the Supreme Court tried to make one such attempt. While the court transferred the responsibility of exercising superintendence over the CBI’s functioning from the government to the Central Vigilance Commission (CVC), it simultaneously held that the concerned minister should be ultimately responsible for its efficient functioning to Parliament. The court maintained that none of the minister’s powers could extend to interfering with the course of investigation and prosecution in any individual case. Investigation is to be governed strictly by the provisions of law.
Unfortunately, the government did not implement the judgment of the SC either in letter or in spirit. The Central Vigilance Commission Act of 2003 derailed the judgment in three important ways. One, it resurrected the Single Directive despite the fact that the court had held it null and void, being bad in law. Two, it did not transfer superintendence to the CVC fully. The CVC Act 2003 prescribed that the CVC shall exercise superintendence not over the CBI but over the Delhi Special Police Establishment (DSPE) only, regarding cases registered under the Prevention of Corruption Act 1988. Third, in exercising superintendence over the organisation, the government did not keep itself within the boundaries as defined in the judgment.
The possibility of misuse of the police by the government of the day has caused concern in other countries too. They have found solutions by developing traditions of good governance and setting up new institutions. The UK seems to have successfully implemented a very subtle distinction between the police as an organisation and policing as a set of activities. While the police as an organisation is the responsibility of the government, policing as a set of functions is the responsibility of the head of the police force. Government’s role is to formulate policies, provide budget, set standards and monitor performance, but it cannot give any operational direction to the police chief. The police acts in some other regions and countries have dealt with this problem by clearly defining the role and responsibilities of the government and the police department. In Queensland in Australia, communication between the minister and the commissioner of police is guided by clear provisions of the police act. Directions from the minister have to be in writing and the commissioner of police is bound to comply with the directions, but keep a record of all correspondence, which is later placed on the floor of the assembly.
In India, there could be mechanisms and institutions that will ensure the CBI’s functional autonomy, as no government will ever agree to relinquish its control over an organisation like the CBI. Also, the Lokpal could have its own independent investigating agency, which need not necessarily be the CBI.
The writer is a former director, Bureau of Police Research & Development, firstname.lastname@example.org
THE HINDU AND PRS LEGISLATIVE
SOURCE: THE HINDU