India’s Living Constitution

Ronojoy Sen,  23 January 2010,  in Times of India

A day before the Indian Constitution was formally adopted on November 26, 1949 after nearly three years of intense deliberations, Bhim Rao delivered one of his finest speech summing up the work of the Constituent Assembly, he said, “However good a constitution may be, it is sure to turn out to be bad because those who are called to work it happen to be a bad lot. However bad a constitution may be, it may turn out to be good if those who are called to work it happen to be a good lot.” This was the onerous burden that Amebedkar and the framers of the Indian Constitution put on future governments and leaders. There was, however, no doubt in Ambedkar’s mind that along with time the Constitution would be amended. In his concluding speech, Ambedkar pointed out that compared to the American and Australian constitutions, the process for amendment of the Indian Constitution was much simpler. Indeed, the provisions for amendment is what makes a constitution a living document, and successive governments have not been shy of using it. So far the Indian Constitution has been amended 94 times; and there are plenty more on the way. This is in contrast to the US Constitution, ratified over two centuries ago, which has been amended a mere 27 times; the first 10 – or what is known as the Bill of Rights – happening within a few years of the Constitution coming into effect.

Of the several amendments to the Indian Constitution, all are of course not of equal importance. But like the
US Constitution, the First Amendment to the Indian Constitution must rank up there as one of the most critical. It would also set in motion a series of face-offs with the judiciary over who was the final arbiter of the Constitution – Parliament or the courts. It is estimated that of the first 45 amendments to the Constitution, about half were aimed at curbing the judiciary. Indeed, the First Amendment was primarily triggered by adverse court judgments. The Madras high court and subsequently the Supreme Court had struck down a legislation which put in place a quota system in government-run medical and engineering colleges for lower castes. At around the same time the major plank of the socialist policy of the Congress government in the 1950s — land reform — was being short-circuited by high courts across the country. The last straw was when the Supreme Court upheld the right to circulate a Communist journal in Madras against the state government’s wishes. Parliament stepped in by amending the Constitution to ensure that equality before law and provisions for ensuring caste equality did not bar legislation for providing reservation for backward classes. It also amended Article 19 – which guaranteed the fundamental right to freedom of speech among other things – by introducing “reasonable restrictions” on speech in the interests of the state.

Finally, The First Amendment inserted Article 31A in the Constitution which stipulated that nothing in the Fundamental Rights could be used to strike down laws for the appropriation of property. During the parliamentary debate on the First Amendment, Jawaharlal Nehru made the oft-quoted statement on the regressive nature of the judiciary: “Somehow we have found this magnificent Constitution we have framed, was later kidnapped and purloined by lawyers.” He added for good measure that the amendment was meant “to take away, and I say so deliberately, to take away the question of zamindari and land reform from the purview of the courts.” One of the more far-reaching components of the First Amendment was Article 31B, which created the Ninth Schedule into which legislation could be put and made immune from judicial review. Over time, over 280 Acts and Regulations have been put in the Ninth Schedule — a majority related to land reform but others on diverse areas ranging from mining to foreign exchange to monopolies — leading a commentator to label it a constitutional “dustbin”.

Since that first tweaking of the Constitution, amendments have flowed thick and fast. In subsequent years there have been several crucial amendments impacting creation of new states, electoral laws and federalism. But perhaps the one that has scarred, and scared, the nation the most was the infamous Forty-second Amendment rammed through during the Emergency. The amendment building on two earlier ones – the Twenty-fourth and the Twenty-fifth – empowered Parliament to make laws infringing on the Fundamental Rights and put curbs on the courts over the custody of the Constitution.

The Forty-second Amendment had inserted two clauses in Article 368 specifying that amendments made under this article could not be challenged in court and that there would be no limitation on the power of Parliament to amend the Constitution. It also gave the Directive Principles of the Constitution primacy over Fundamental Rights. In keeping with this sentiment, the words ‘secular’ and ‘socialist’ were inserted in the Preamble of the Constitution. When the Forty-second Amendment was introduced in Parliament, law minister H R Gokhale tried to sweeten it by saying, “If at all the powers [of Parliament] have been to a certain extent widened, they are not taken away in all matters in which really judicial action is justified.”

The future course of events would, however, show the resilience of Indian democracy. Once Indira Gandhi was voted out of power, the Janata government undid much of the harm done during the Emerging by bringing in the Forty-third and Forty-fourth amendments. The story of amendments and the turf battle between Parliament and the courts for custody of the Constitution is a continuing one. One of the more recent amendments – the Ninety-third in 2006 – which enforced reservation in unaided educational institutions came in the backdrop of a Supreme Court ruling putting a check on state regulation of admission procedures of private institutions.

The tension over who holds the key to the Constitution is going to remain so long as the power to amend is in the hands of Parliament and the courts have the authority of judicial review. This is true for older democracies such as the US too. Hence, political scientist Rajeev Bhargava points out, “We cannot treat the Constitution with sanctimonious reverence, too sacred to be touched, nor can we allow frivolous attempts to revise the Constitution every time a political deadlock occurs.” The Emergency showed the danger of the government of the day subverting the Constitution and its principles. But its aftermath also showed that reckless tampering would not go unchallenged. That is what makes the Constitution a touchstone for Indian democracy, however mixed the quality of our politics and leadership might have been since 1950.

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10 laws that shaped The Republic

BY MANOJ MITTA IN TIMES OF INDIA JANUARY 23, 2010

In the beginning, laws were about laying the Republic’s infrastructure. As it matured over the years, laws reflected the sophistication of its superstructure.If a law passed in the early years was meant to realize the basic promise of holding free and fair elections, a recent one was designed to make the system more transparent and accountable. The evolution of laws tells its own tale about the 60-year-old Republic.

1. Fleshing out democracy

The Election Commission of India was constituted on January 25, 1950, just a day before the Constitution came into force. It is no coincidence that the Indian republic’s first major legislative measure was to implement its Constitutional commitment to usher in universal adult franchise. What has fleshed out the world’s biggest ever experiment in democracy is a set of two laws bearing the same name, which was borrowed from Britain, the Representation of the People Acts 1950 and 1951. While the 1950 Act laid down the procedure and machinery for preparing electoral rolls and demarcating constituencies, the 1951 Act did the same for conducting elections, from their notification to the declaration of results. In the many amendments that have since been made to the two RP Acts, the canvassing period, for instance, has been reduced from a month to a fortnight.

2. Shielding agrarian reforms

The first Constitutional amendment, piloted by Nehru in 1951, effected far-reaching changes in diverse areas. First, it imposed “reasonable restrictions” on the freedom of speech and expression and the freedom to practice any profession or carry on any occupation, trade or business. Second, overturning a judicial verdict against reservations, it introduced a clause clarifying that any special provision that the state might make for the educational, social or economic advancement of any backward class could not be challenged on the ground of being discriminatory. Given the priority then of dismantling the zamindari system, the most politically sensitive aspect of the first Constitutional amendment was the introduction of the Ninth Schedule to insulate agrarian reforms from legal challenge. The Ninth Schedule served very well as a shield to the various land reforms laws passed by states in the first three decades after Independence.

3. Reforming Hindu customs

When Ambedkar introduced his comprehensive Hindu Code Bill in Parliament in February 1951, there was such opposition to it that he resigned as law minister within seven months. It was only after it won the first Lok Sabha elections in 1952 did the Nehru government muster the courage to revive the Hindu reform agenda, that too in the form of piecemeal legislation. Even so, the Hindu Marriage Act 1955 was revolutionary as it outlawed polygamy and introduced the concept of divorce in a community that believed that marriage was a sacrament which bound a couple together birth after birth. Equally significant, the Hindu Succession Act 1956 conferred full ownership on women for their share of the family property rather than the limited rights that had been traditionally given.

4. Taking on untouchability

For all the social reforms made during colonial rule, the Constitution abolished untouchability for the first time. The Republic took another five years to back the abolition with a law that penalizes various manifestations of untouchability, the Protection of Civil Rights Act 1955. Since this law was however confined to instances of caste prejudice and discrimination, the Rajiv Gandhi government came up with the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 to deal with the more violent caste-driven offences. Despite the poor record of their enforcement, the very enactment of the two untouchability-related laws had its own symbolic value. India has been flogging it to counter efforts before the UN to treat caste as a form of human rights violations.

5. Redrawing the political map

The seventh Constitutional amendment enacted in 1956 introduced the concepts of linguistic states and Union territories, both of which have stood the test of time. Though the demand for linguistic states was widespread, the impetus came from the fatal hunger strike of Potti Sreeramulu in 1952 for carving out Andhra state from the Telugu-speaking districts of the composite Madras state. The formation of the Andhra state in 1953 was followed by the appointment of the States Reorganization Commission (SRC), which did not however agree with the idea of redrawing boundaries purely on linguistic basis. Though SRC recommended the formation of a separate Telangana state with Hyderabad as its capital, the government, bowing to the pressure of Andhra leaders, merged the two Telugu-speaking regions in 1956 to create Andhra Pradesh. Similarly, though SRC recommended that Bombay remain a composite state encompassing Gujarati and Marathi speaking districts, the government yielded in 1960 to the demand for creating Maharashtra by merging all the Marathi speaking districts.

6. Checking defections

After bagging the largest ever majority in the 1984 election held under the shadow of Indira Gandhi’s murder and the subsequent massacre of Sikhs, Rajiv Gandhi came up with the long overdue anti-defection law, in the form of the 52nd Constitutional amendment in 1985. But it only made defections harder, not impossible. Politicians exploited the loophole that recognized a defection by at least one-third of the members of a legislature party as a split. The Vajpayee government plugged this loophole with the 91st Constitutional amendment in 2003. The only way defections can now take place is through the merger route, when at least two-thirds of the members of a legislature party agree to its merger with another.

7. Special law for Muslims

This law is widely believed to have triggered a chain of events that undermined secularism: Rise of Hindutva, revival of BJP, outbreaks of communal violence, demolition of Babri Masjid and terrorism. For, when the Rajiv Gandhi government came up with the Muslim Women (Protection of Rights on Divorce) Act 1986, it was seen as an attempt to appease Muslim fundamentalists by overturning the Supreme Court verdict in the Shah Bano case. While the court rendered a Muslim husband liable to pay maintenance to his deserted wife, the law enacted in the wake of the judgment gave the man the option of making a one-time provision within three months for her lifetime depending on his economic status. Ironically, for all the calumny heaped on this special law, the benefits received under it by Muslim women in many cases have turned out to be far greater than they could possibly have got under the secular law.

8. Grassroots democracy

The Gandhian dream of Gram Swaraj (village self-governance) entered the realm of possibility in 1992 when the Narasimha Rao government pushed through the 73rd Constitutional amendment. Panchayati Raj, which had for decades been ad hoc and notoriously bereft of powers and funds, suddenly acquired Constitutional trappings. Besides taking democracy to the grassroots, the Panchayati Raj law demonstrated the efficacy of reserving one-third of the constituencies for women, a provision that has been repeatedly blocked in the case of the two higher layers of governance. It was also closely followed by the 74th Constitutional amendment to institutionalize Nagar Palikas in urban areas.

9. Piercing the veil of secrecy

If this law enacted barely five years ago has put even the Chief Justice of India on the defensive, that too repeatedly, there can be no better measure of the extent of its impact. Not surprising, given that the Right to Information Act 2005 is acknowledged as one of the most progressive transparency laws in the world. Besides specifying the limited organizations and categories of information exempted from its purview, RTI provided for independent appellate bodies and penalties for errant officials. But the Manmohan Singh government, instead of basking in the glory of its enactment, has already made two abortive attempts to dilute it. It is increasingly clear to rulers that whoever opposes RTI is on the wrong side of history.

10. Welfare on steroids

No list of India’s seminal laws can be complete without the National Rural Employment Guarantee Act (NREGA) 2005. For, this law, recently renamed after Mahatma Gandhi, is undoubtedly the most ambitious welfare scheme in the 60-year history of the Republic. The security of guaranteed employment for 100 days in a year to every rural household volunteering to do unskilled manual work has shown the greatest potential as an anti-poverty measure. If Rajasthan can claim credit to have pioneered RTI before it was adopted at the national level, Maharashtra is the progenitor of the concept of guaranteed rural employment. There is happy synergy between the two major enactments of the Manmohan Singh government. RTI is being used by activists as a safeguard to prevent intermediaries from diverting or misusing NREGA funds.

http://timesofindia.indiatimes.com/india/10-laws-that-shaped-The-Republic/articleshow/5490312.cms

Case studies: Supreme Court’s landmark shifts

BY MANOJ MITTA   / PUBLISHED IN TIMES OF INDIA JANUARY 23, 2010

Raising a toast for the establishment of the Supreme Court as India turned into a Republic, C K Daphtary, who went on to become the first Solicitor General said in 1950 “A republic without a pub is a relic!” Jokes apart, no appraisal of the 60 years of the Indian Republic can ignore the stellar role played by the Supreme Court in maintaining the constitutional scheme of checks and balances. Equally, no appraisal of the Supreme Court can be complete without delving into the vagaries of its rulings, for better or for worse — especially because the shifts in its position have not always been for reasons beyond its control. This somewhat awkward aspect has however received little attention, perhaps because of the reverence reserved for the higher judiciary. Here is an attempt to focus exclusively on the judicial shifts made by the Supreme Court through the 60 years of its existence on a range of key issues.

Somersault on due process:

The first major constitutional issue decided by the Supreme Court came out of the preventive detention of communist leader A K Gopalan, in whose honour the headquarters of CPM is named. The issue was whether somebody’s detention could be justified merely on the ground that it had been carried out “according to the procedure established by law,” as stipulated in Article 21 of the Constitution. Or, would that procedure be valid only if it complied with principles of natural justice such as giving a hearing to the affected person?

In the A K Gopalan case of 1950, the Supreme Court, taking a narrow view of Article 21, refused to consider if the procedure established by law suffered from any deficiencies. Fortunately, three decades later, it took a 180 degree turn on this issue in the Maneka Gandhi case of 1978. The provocation was the arbitrary law that had allowed the Janata Party government to take away Maneka’s passport without any remedy. Importing the American concept of due process, the Supreme Court ruled that the procedure established by law for depriving somebody of their life or personal liberty had to be “just, fair and reasonable”.

Reduction of Parliament’s power to amend the Constitution:

Validity of the very first constitutional amendment was challenged mainly because it had inserted the Ninth Schedule to insulate agrarian laws from being tested in courts. The issue facing the Supreme Court was to determine the extent to which Parliament could go while exercising its amending power under Article 368. This is how SC shifted its position more than once on this crucial issue.

First, in the Shankari Prasad case of 1951, it ruled that since no limits had been spelt out in Article 368, the power to amend the Constitution included abridgement of even fundamental rights.

Next, in the Golaknath case of 1967, it betrayed second thoughts on trusting Parliament with such unfettered discretion under Article 368. Since Article 13 stipulated that every law enacted by Parliament had to comply with fundamental rights, the Supreme Court read that limitation into constitutional amendments as well.

Finally, in the Kesavananda Bharati case of 1973, the SC held that the condition prescribed by Article 13 of complying with fundamental rights applied only to ordinary laws, not constitutional amendments. Taking the middle path, it said the only limitation on Article 368 was that a constitutional amendment could not alter the “basic structure” of the Constitution (such as the sovereignty of the country or its secular character).

Enlarging the scope of judicial review: For decades, the most abused provision of the Constitution was the sweeping power conferred on the President — in other words, the Central government — to dismiss a duly elected state government. The validity of actions taken under Article 356 of the Constitution went before the Supreme Court for the first time in 1977 when the then newly elected Janata Party government at the Centre had dismissed Congress governments in states for no reason other than the fact that it wanted to hold early elections.

But the Supreme Court, in what is known as the State of Rajasthan case of 1977, declined to intervene, ostensibly to avoid entering the political thicket. The President’s satisfaction that the state concerned could not be carried on in accordance with the provisions of the Constitution was, it said, not subject to judicial review. The apex court however reversed its stand in the S R Bommai case of 1994, where it held that a proclamation under Article 356 could be struck down if it was “found to be mala fide or based on wholly irrelevant or extraneous grounds”. Subjecting the President’s satisfaction to judicial review, the Bommai verdict clarified that the power conferred by Article 356 was a conditional one, not absolute.

Changing conception of compensation:

Many a legal battle has been fought on the vexed issue of compensation payable to affected parties when a property has been acquired by the government. The question of interpreting the compensation promised by the Constitution arose for the first time in the Bela Banerjee case of 1954 involving a West Bengal law which sought to pay off the owners on the basis of the market value of their land on some distant date in the past. Rejecting the socialistic arguments of the state, SC laid down that the compensation should be “a just equivalent of what the owner has been deprived of”.

In a bid to get over the effect of the Bela Banerjee case, the Nehru government amended the Constitution stipulating that no law dealing with the manner in which compensation was to be given “shall be called in question in any court on the ground that the compensation by that law is not adequate”. This in turn triggered a chain of a vacillating judgments and another constitutional amendment on the compensation issue. It culminated in the shift from the categorical “just equivalent” in the Bela Banerjee case to a limp admission in the Kesavandanda Bharati case of 1973 that the amount need not be equivalent, so long as it was “not illusory”.

Diversity on quotas: Caste-based reservations in jobs and educational institutions are another contentious issue on which the Supreme Court has had to change its position in keeping with the times. Its initial response was completely adverse. In the Champakam Dorairajan case of 1951, the Supreme Court slammed caste-based reservations as a violation of the Constitutional prohibition of discrimination. It was however forced to take a more accommodative view of social justice once the Nehru government responded with the first constitutional amendment stipulating that the general prohibition of discrimination could not prevent the state from making any special provision for the advancement of SCs, STs and OBCs.

Having reconciled to the imperative of quota, the Supreme Court, in the M R Balaji case of 1963, imposed a cap of 50% on the extent of reservations for all the categories taken together, in a bid to ensure that the exception did not exceed the general rule of non-discrimination. Following the Mandal controversy, the Supreme Court, in the Indra Sawhney case of 1993, upheld the introduction of quota for OBCs in Central government jobs subject to the exclusion of the “creamy layer” (candidates whose parents are relatively wealthy or better educated).

Seasonal change on economic policy:

True to its reputation of giving precedence to individual liberty over socialistic schemes, the Supreme Court, in the Bank Nationalization case of 1970, displayed no inhibition in probing the allegations that the Indira Gandhi’s government’s economic policy was discriminatory and deficient on compensation. As a corollary, it even struck down the nationalisation law.

But post-liberalisation, the SC, in the Balco case of 2001, upheld the Vajpayee government’s disinvestment policy by adopting the principle that “in the case of a policy decision on economic matters, the courts should be very circumspect in conducting any inquiry and must be most reluctant to impugn the judgment of the experts.”

Turning consultation into concurrence:

This shift has earned the Supreme Court the opprobrium of turning the judiciary into a “self-perpetuating oligarchy”. For, all that the Constitution has prescribed in the appointment of judges to the Supreme Court is that the Chief Justice of India “shall always be consulted”.

Accordingly, in the First Judges case of 1982, the Supreme Court acknowledged that it was open to the government to “override” the opinion of the functionaries required to be consulted. But in the Second Judges case of 1993, the Supreme Court, reading consultation as concurrence, declared that a “collegium” of senior judges headed by the CJI would have “primacy” in judicial appointments.

http://timesofindia.indiatimes.com/india/Case-studies-Supreme-Courts-landmark-shifts/articleshow/5490306.cms

Molested by the Very Guardians of the Law

Jason Overdorf (Issues)

23 January 2010 Nearly 20 years after he was accused of using his position of power to molest a teenage girl, and 16 years after his victim’s suicide, a high-ranking Indian police official was last month finally brought to justice.  Shambhu Pratap Singh Rathore, a state police inspector general, was convicted of molesting Ruchika Girhotra, a rising tennis star, in 1990. On December 21, the court handed down a sentence of just six months jail time and a $25 fine.

What many in India feel is a miscarriage of justice has prompted a re-evaluation of the widely held belief that India, while it lags behind China by many other parameters, remains morally superior to its economic rival not only because it is a functioning democracy but also because it sees itself as a society governed by the rule of law.The rape trial follows close on the heels of a similar breakdown of the legal system involving the murder of fashion model Jessica Lal. Her killer, the son of a prominent politician, was acquitted in 2006, only to be retried and sentenced to life imprisonment after intense public pressure. The Ruchika case has been splashed across the front pages here since the first verdict was delivered on December 21.

“It shows deep infirmities in our system, which is supposed to bring justice to victims,” said member of parliament Brinda Karat, who is vice president of the All India Democratic Women’s Association. “It highlights a systemic failure.” Under intense public pressure, this week the state of Haryana, where the original incident occurred, registered fresh charges against Rathore that allege he abused his power to scuttle the original investigation, delay his prosecution and harass the victim’s family, eventually driving Ruchika herself to commit suicide. But as television channels and newspapers continue to throw light onto more and more incidents in which police, politicians and other powerful people allegedly used money and influence to subvert justice, the citizenry’s faith in the country’s brilliantly penned, but poorly enforced, laws is at an all-time low. Molested by Rathore, who was both the inspector general of the Haryana state police and the head of the state tennis association at the time, 14-year-old tennis player Ruchika Girhotra sought to punish him by lodging an official complaint.

Investigations stagnated for years after the complaint was filed, during which time Girhotra’s family allegedly suffered constant police harassment, according to new charges levelled by the family on January 5. Rathore allegedly hired goons to vandalise the Girhotras’ home, pressured Ruchika’s school to have her expelled, and got his police cronies to arrest her brother for car theft, according to Pankaj Bhardwaj, the Girhotras’ lawyer. After just three years of this treatment, Ruchika killed herself. She was 17 years old. “(Rathore) was the person who was driving everybody,” Bhardwaj said. “He was the mastermind behind the total conspiracy.”

But the punishment wasn’t over for the victim’s family. Rathore apparently suffered no difficulties because of the criminal charges pending against him. Though technically under investigation for molesting a minor, Rathore was promoted to director general of police in 1994. And over the next 15 years, the Girhotras alleged that Rathore used his position to corrupt the inquest into Ruchika’s death and attempted to bribe the country’s main investigative agency.

In what Bhardwaj says is a first for India, a former joint director in the Central Bureau of Investigation (CBI) has publicly accused Rathore of trying to corrupt the probe into the crime. “He used to come to my chamber and even call up at my residence. He used to offer me favours at various joints. He also tried to influence my investigation team,” R. M. Singh, who headed the probe, told reporters at a recent press conference. When Rathore was convicted, the victim’s family, and the whole country, was outraged by the short duration of the sentence — and Rathore’s beaming smile as he exited the court. But the worst tragedy is that Ruchika’s fate is stunningly common — and the problem appears 
to be growing worse.

A 19-year delay is nothing to India’s supposed rule of law. At last count, there were nearly 4 million cases pending in India’s 21 high courts, a backlog that means thousands of perpetrators roam free for years and others who are denied bail rot away behind bars — sometimes for longer than the maximum sentence possible for their alleged crimes.

For the fairer sex, it’s even less fair. According to official statistics, crimes against women are rising faster than other offenses, while police continue to go slow in investigating them. “There is 100 per cent negligence by the police in cases where women go to them to report an abuse,” said Yasmeen Abrar, a member of India’s National Commission for Women.

Official records show that it takes the police more than a year to begin investigating nine out of 10 sexual harassment cases, eight out of 10 cases of molestation or cruelty by husbands and relatives, and seven out of 10 rapes and dowry deaths. According to Supreme Court lawyer Mayank Misra, these delays often give the accused the opportunity to intimidate witnesses, harass his accuser, call in political favors and eventually quash the case entirely. Especially,
when the perpetrator occupies a position of power.

“There is a nexus between criminals, politicians and the police and bureaucrats,” said Ashok Agarwal, president of the Delhi unit of the All India Lawyers’ Union. In many instances, the police refuse to register cases against politicians, police officials and even powerful criminals, says Agarwal, a prominent public interest litigator. Complainants and
witnesses are threatened. Medical evidence is tampered with. Statements of witnesses are wrongly recorded. Cases are delayed in courts, and relevant witnesses are prevented from appearing. All this in the name of the supposed rule of law. Thanks to a crusading media and an outraged public, Ruchika may, in the end, get justice of sorts. The fresh case filed against Rathore on Jan. 5 reintroduces the charge that Rathore abetted Ruchika’s suicide by harassing her and her family — an offence that carries a much more serious penalty than molestation. But even if he has been convicted of molestation, Rathore — who says his accusers are using the media to harass him — has rights, too. And this arbitrary solution is as much an indictment of the system as the court’s original judgment. It is not the rule of law, but rather another subversion of the legal process — this time by the media, the voters, and politicians. The shame is that the last ditch move to render justice at the expense of the law may just convince India’s outraged citizens that they can continue to muddle along.

www.globalpost.com

http://www.khaleejtimes.com/DisplayArticleNew.asp?xfile=/data/opinion/2010/January/opinion_January139.xml&section=opinion

India’s judiciary is not above the law

BY KULDIP NAYAR IN THE GULF NEWS

The chief justice of India should be answerable to the people

Many view the judiciary with awe. Yet others believe that it is like any other part of society, and its reputation is being diminished day by day. When a former chief justice of India said that 15 per cent of judges were corrupt, there was a bit of shock because it confirmed the fears of the public. Since then the stock of the judiciary has fallen so much that there was hardly any notice taken of the report by outgoing Punjab governor J.F. Rodrigues accusing a judge of accepting a bribe of Rs1.6 million (Dh127,108). Indeed, people were horrified when Chief Justice of India K.G. Balakrishnan said that his office was above the purview of the Right to Information (RTI) Act, which obliges the government to disclose information. He has, however, backed down after the judgment by the Delhi High Court that said “Democracy expects openness and openness is concomitant of free society.” If the Prime Minister’s Office is answerable under the RTI, why shouldn’t the office of the chief justice of India be? It could not be dealing with matters that are more delicate.

Indeed, people were horrified when Chief Justice of India K.G. Balakrishnan said that his office was above the purview of the Right to Information (RTI) Act, which obliges the government to disclose information

Indeed, people were horrified when Chief Justice of India K.G. Balakrishnan said that his office was above the purview of the Right to Information (RTI) Act, which obliges the government to disclose information

Insult

It would have raised the prestige of the chief justice if he had accepted the high court’s judgment. His deference to the high court was appreciated. He gave the impression that he was referring the matter to a third party to decide whether the RTI was applicable to him. But his reported decision to take the appeal to the full bench of the Supreme Court or to the five-judge collegiums over which he presides makes a mockery of the justice system, apart from the slight to the Delhi High Court bench. If only a favourable appeal was in Balakrishnan’s mind, why make a tamasha of deference to the Delhi High Court? Would the chief justice of India have allowed an appeal had the Delhi High Court upheld the idea that his office was above the RTI? I mean no disrespect to him when I want to remind him that not only Caesar but even his wife had to be above suspicion. He acted like a person whose pride had been hurt. Yet he could not bypass the high court’s observation that the accountability of the judiciary could not be seen in isolation and the chief justice’s office must be answerable to the people in ways that are transparent.

When the government claims to be transparent, why should the chief justice of India avoid openness? There is a law that binds the government to give information on its decisions. This is how a democratic government should function. The Supreme Court has itself said in a judgment that a voter — a person above the age of 18 — has the right to information about the contesting candidates. In the Union of India versus People’s Union for Civil Liberties, the court ruled that to maintain purity of elections and a healthy democracy, voters are required to be educated and well informed about the contesting candidates. Such information should include assets held by candidates, their qualifications and whether he or she was involved in a criminal case and if the case was decided, its result. If the case was pending, it should be revealed whether a charge has been framed or cognisance has been taken by the court. There is no reason to suppress the relevant facts. What the Supreme Court held holds true for all citizens. Balakrishnan says the allegations against Karnataka High Court Chief Justice P.D. Dinakaran have been raised after it was suggested he be elevated to the Supreme Court. At a time when the Rajya Sabha has admitted a motion of impeachment against Dinakaran and the vice president and the chairman of the house has appointed a committee to probe the charges, Balakrishnan’s observation smacks of partiality.

Allegations

The allegations against Dinakaran have been endorsed by 75 MPs. The charges relate to securing five housing board plots in the name of his wife and two daughters, entering into benami transactions and acquiring agricultural buildings beyond the ceiling limit. The fact that these allegations were not made earlier in Dinakaran’s career does not mean that they are unfounded. The committee is yet to go into the charges. The Union government’s proposal to pass a law to prevent tainted persons from becoming members of the higher judiciary is a welcome step. But how will the government do so when the collegiums of the Supreme Court judges are the final authority? Dinakaran was recommended for elevation by the collegiums, over which Balakrishnan presided. The government has to handle the situation delicately and adroitly. Otherwise, the judiciary and the executive could clash. Both constitute pillars of the democratic structure. A crack in either of the two can harm the structure itself.

Kuldip Nayar is a former Indian high commissioner to the United Kingdom and a former Rajya Sabha member.