LAW RESOURCE INDIA

Time to tone up governance

Posted in JUDICIAL REFORMS, JUDICIARY by NNLRJ INDIA on March 14, 2010

BY P P RAO IN THE TRIBUNE

We must select persons of exceptional merit and integrity for all posts and services.

Successful working of the Constitution requires common understanding and concerted action in furtherance of the aims and objectives of the Constitution on the part of the three wings — legislature, executive and judiciary.

Secularism is a basic feature of the Constitution. In M.R. Balaji vs. State of Mysore, the question arose whether caste was a relevant factor for identification of backward classes. There were two possible views open to the court: (i) that identification of backward classes ought to be done without reference to caste as reliance on caste would perpetuate the caste system and militate against secularism and thereby defeat the objective of promoting fraternity among the people of India assuring the unity and integrity of the nation; or (ii) that ‘caste’ is a relevant factor in judging backwardness of certain sections as the occupations traditionally engaged in by members thereof are considered as inferior to others.

RULE OF LAW

RULE OF LAW

Missed opportunity

The court missed the great opportunity of preferring the first interpretation and rejecting the other. It could have put an end to caste-based reservations which have come to stay.

The issue came up again for consideration before a larger Bench of nine Judges in Indra Sawhney vs. Union of India. Justice Kuldip Singh summed up the rival arguments on the issue as follows: “Mr Ram Jethmalani appearing for the State of Bihar has advanced an extreme argument that the `class’ under Article 16(4) means ‘caste’. Mr P.P. Rao on the other hand vehemently argued that the Constitution of India, with secularism and equality of opportunity as its basic features, does not brook an argument of the type advanced by Mr Jethmalani. According to him caste is a closed door. It is not a path — even if it is — it is prohibited path under the Constitution.”

Justices Kuldip Singh and R.M. Sahai wrote inspiring dissenting judgements, emphatically rejecting the contention that caste is a relevant factor for identification of backward classes under our secular Constitution. However, the majority of judges reiterated the view taken in M.R. Balaji and held that caste could be a route through which backward classes would be identified taking into consideration other relevant factors. They held that identification of backward classes either through castes or on the basis of occupation-cum-income without reference to caste is permissible and observed by way of illustration that “agricultural labourers, rickshaw-pullers/drivers, street-hawkers etc. may well qualify for being designated as backward classes.”

In Ashok Kumar Thakur v. Union of India, this writer once again tried his best to persuade the court to declare that identification of backward classes on the basis of occupation-cum-income without reference to caste would be consistent with the basic feature of secularism while identification through caste would be anti-secular. It was an attempt in vain. The court missed yet another opportunity of correcting itself.

Parliament’s inaction

Dr Rajendra Prasad mentioned in the Constituent Assembly that the Constitution has placed Public Service Commissions on an independent footing so that they may discharge their duties without being influenced by the executive. Five decades later, dealing with the Chairman of Bihar Public Service Commission, the Supreme Court pointed out that the chairman and members of the Public Service Commission are required to be selected on the basis of their merit, ability and suitability and they in turn are expected to be models themselves in their functioning”.

It is a matter of grave concern, that selections made by some State Public Service Commissions, Staff Selection Boards and other recruitment agencies have become suspicious in many states. Courts have set aside many a tainted selection. Corruption, nepotism, favouritism and political interference in the selection of candidates for public employment are on the increase. They have to be checked.

The Constitution is silent about the level of office to be held and the qualifications needed for the members. This silence is being exploited by unscrupulous politicians in power to pack the Commissions with pliable persons.

Several selections made by the Punjab Public Service Commission during the tenure of Ravinderpal Singh Sidhu as chairman were cancelled by the appointing authorities after criminal cases were registered against him for corruption following the recovery of Rs 16 crore from his and his relatives’ custody. Referring to him, Justice Dalveer Bhandari observed: “His clandestine activities and misdeeds reached the pinnacle of disgrace, ignominy, dishonour, degradation and humiliation. Perhaps, no one could have polluted the entire system in a greater measurei”. Parliament should fill the lacuna by appropriate legislation.

Corruption

Delivering the 13th Desraj Chaudhury Memorial Lecture on November 11, 1996, Atal Behari Vajpayee said: “…the electoral system has been almost totally subverted by money power, and vote bank considerations of castes and communities.” The Supreme Court took note of this speech in J. Jayalalitha’s case. In Vineet Narain’s case, it took judicial note of the N.N. Vohra Committee’s Report showing a powerful nexus between bureaucracy and politicians with the mafia gangs, smugglers and the underworld.

The 170th Report of the Law Commission of India (1999) highlights the steady deterioration in the standards, practices and pronouncements of the political class, its adoption of unfair means to win elections and increasing criminalisation of politics and of the electoral process. In 2002, the National Commission to Review the Working of the Constitution noted crisis of confidence and crisis of leadership and said that political leaders, owing to narrow partisan and sectarian interests and desire for short time political gains are unable even to agree upon broad common national purposes.

The Election Commission needs to be strengthened by investing more powers including regulation of political parties, disqualification of defectors, and power to withdraw or cancel the registration granted to a political party if the party violates any of the conditions of its registration which it does not have at present. The Commission could then tackle parties like the Shiv Sena and Maharashtra Navnirman Sena.

Police reforms

Police reforms are overdue. The National Police Commission chaired by Dharam Vira, submitted its report almost three decades ago. In Prakash Singh vs. Union of India, a Constitution Bench of the Supreme Court gave positive directions to set up State Security Commissions, Police Establishment Boards, Police Complaints Authorities and National Security Commission besides indicating the provisions to be made for selection and minimum tenure of DGP or IG Police and other officers and for separation of investigation from law and order. Action is awaited.

Frequency of organised terrorist attacks on the security forces and the innocent citizens is on the increase resulting in a number of casualties. Incidence of crime is growing and rate of conviction is poor. It is imperative to reform the police urgently. Coalition governments cannot reform the system. The entire structure of governance needs to be toned up — be it the legislature, executive or judiciary. The people are crying for a clean and efficient governance including speedy justice.

Education

The founding fathers took the bold step of providing for adult franchise in India at a time when most of the population was illiterate and poor as they felt democracy would be meaningless if the right to vote is restricted to a small fraction of the adult population. To make up for the deficiency, they incorporated two important provisions — Articles 45 (the state to provide within 10 years from the commencement of the Constitution, for free and compulsory education for all children until they complete the age of 14 years) and Art. 46 (the state to promote the educational and economic interests of the weaker sections).

If only Parliament and State legislatures and the Centre and the states have sincerely implemented these two directive principles, there would have been no uneducated citizen in the country today and the socio-economic conditions of weaker sections would have improved considerably. If Kerala could achieve cent per cent literacy within a relatively short period, why not others?

But for the missed opportunities on the part of the judiciary, inaction on the part of Parliament and state legislatures and indifference of the executive all over the country during the last few decades to the basic rights and needs of the people, the country would have made vast strides of progress by now.

There is no need to despair. India is a country with tremendous potential. We have a clean and competent Prime Minister. By improving the system of governance, phenomenal progress can be achieved within the shortest time. We should elect men of ability and integrity to the legislatures, appoint qualified and competent ministers, recruit men and women of exceptional merit to services and posts at all levels, plug the loopholes in the Constitution and the laws and march ahead.

The writer is Senior Advocate, Supreme Court of India. This article is excerpted from his special lecture on‘Constitutional developments: Action, reaction and inaction’ at the National Academy of Legal Studies and Research (NALSAR), Hyderabad, on March 6, 2010

http://www.tribuneindia.com/2010/20100314/edit.htm#1

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