Submission of suspicion

V.R. Krishna Iyer  IN THE HINDU

A statement by the Attorney-General before the Supreme Court raises a question mark over judicial appointments. It spells an implicit challenge to the integrity of the judiciary as a whole.



On November 22, an extraordinary oral statement on behalf of the Union Government was made before the Supreme Court of India. During the course of hearings on a writ petition questioning the appointment of the Central Vigilance Commissioner, the court had raised certain questions about whether the person chosen would be able to function effectively, given that a charge sheet was pending against him. Attorney-General G.E. Vahanvati was then reported to have told the Bench of Chief Justice S.H. Kapadia, Justice K.S. Radhakrishnan and Justice Swatanter Kumar: “If the criterion [of impeccable integrity] has to be included, then every judicial appointment can be subject to scrutiny. Every judicial appointment will be challenged.”

Deserves to be defended

This writer, who happened to be a Judge of the Supreme Court some 30 years ago, has been morally molested by the suspicion cast on the Indian judiciary as a whole by that statement. The Indian judiciary, one of the best such institutions among global democracies, deserves to be defended rather than besmirched. However, since there has been silence in the few days since the statement was made, I am provoked to register my protest against the insinuation that was implicit in the submission of the Attorney General made to the Supreme Court. Insinuation is imputation concealed by cowardice. Are all judges innocent of integrity? Alas!

Can it indeed be true that the present Attorney-General, a successor in office to the great M.C. Setalvad and others of his ilk, did submit to the Chief Justice of the highest court of judicial justice of the nation, that if the integrity of every judge of the higher court were to be assured, it would turn out to be a very embarrassing adventure? What about the integrity of the Attorney-General himself?

Therefore, the court should put the Executive under obligation to answer the question why the integrity of the person who was chosen as Chief Vigilance Commissioner was not thoroughly investigated before the appointment was made. The hint given to the court and the hunch left to the nation through that statement is that the integrity of even Supreme Court judges is problematic, and that no investigation was made when members of the noblest robed brethren were chosen and appointed, nor could it be scrutinised. This submission, if it is true, puts under a shadow a sublime institution that is empowered to pronounce with high authority its judgment if ever the executive and legislative instrumentalities violate the Constitution, and the fundamental rights are under threat. In short, the Attorney-General’s observation amounts to casting doubts over the integrity of the highest institution to which We, the People of India, can go seeking justice and human rights.

‘It is blasphemy’

Are judges, then, a suspect instrumentality with their very credibility under challenge? Expressed as a submission, it is blasphemy uttered against the most glorious and finest of the trinity of instrumentalities under the Constitution. The most sublime instruments of the Indian judiciary, every member thereof, are no exception. Suspicion about their probity and impartiality has been expressed openly. When their integrity, credibility and impartiality are raised as issues by the Executive, through its Attorney-General who has dared to submit it, no assumption in their favour can be made. Yes, we cannot assume their integrity and secularism: both must be investigated.

This is scandalous — a shock and a shame. I protest, and expect the Supreme Court to get the Attorney-General to explain whether the President, on the advice of the Cabinet, appoints judges without making any assessment of their integrity, character, social philosophy, antecedents or democratic commitment. All these values hang on the iron string of integrity.

Let the nation awake to this implicit slander. The Attorney-General may have his alibi or a valid defence in this matter. Fiat Justicia is an idle phrase, and as in Pakistan and once in Sri Lanka the top executive is then on top of the Supreme Court itself. This submission of suspicion is the upas tree under whose shade reason fails and justice dies — here it concerns the court itself. The Indian Bar must protest against this.

Let there be a commission

Let there be an Appointments and Performance Commission so that any suspicion over the integrity of a member of the judiciary is dispelled before that person sits on the Bench, an incredibly public sanctuary of dignity and divinity. Indeed, the high judicial bench is Bharat‘s non-negotiable institution of integrity. Parliament must immediately discuss this dangerous attitude of the Attorney General. A grave National Judicial Commission should be made a part of the constitutional judicial code.

Does that statesman, Dr. Manmohan Singh, support vicariously this dubious statement by the Attorney-General? Why does the Bar Council of India remain silent when a covert aspersion on the institution of the judiciary comes up in the open court? This is either a grave crisis or a casual, though accidental, aberration. Silence is guilt when fearless speech is basic courage. Or else confidence in the Supreme Court will become a casualty.

It is my conviction that judges of the higher judiciary should be like Caesar’s wife — they have to be above suspicion. Or else, justice, social and economic, will remain a paper promise and the robe will become a mere cover-up of concealed sins. Speak up, Indians. Taciturnity is trauma and a taint.

Sans the Supreme Court, beyond doubt India will face functional chaos under the shadow of criminality. Satyameva Jayate will have to surrender to corrupt power syndrome. Do we want a new forensic avatar? This puts all other scams to shame.

Maybe I have somewhat exaggerated the implications of an innocuous submission by the Attorney-General, but mainly I stressed the truth of my soul. Judges ought to beware.

Yet, now it would seem that the members of the robed brethren have themselves started suspecting one another. A Bench comprising Justice Markandeya Katju and Gyan Sudha Misra of the Supreme Court on November 26 made remarks that amounted to questioning the integrity of at least some of the Judges of the Allahabad High Court.

It said: “We do not mean to say that all lawyers who have close relations as judges of the High Court are misusing that relationship. Some are scrupulously taking care that no one should lift a finger on this account. However, others are shamelessly taking advantage of this relationship. There are other serious complaints also against some judges of the High Court. The High Court really needs some house-cleaning and we request the Honourable Chief Justice of the High Court to do the needful, even if he has to take some strong measures, including recommending transfers of the incorrigibles.”

How corruption seems to have corroded one of the finest institutions of India!


‘Keep UID out of MGNREGA’


A statement that has been endorsed by 100 individuals/groups from across the world.

The undersigned demand that the plan to link the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) to Aadhaar (or UID) be revoked immediately. This is an extremely dangerous move that threatens to cause havoc in MGNREGA’s fragile structure.

The Ministry of Rural Development has put out a tender (dated October 11, 2010) worth Rs.2,162 crore to engage “service providers” for MGNREGA under a “public private partnership” model. The contract includes “UIDAI compliant enrolment of job card holders under MGNREGA scheme,” “Recording … data in the field such as biometric attendance at worksite with GPS coordinates … and updation of centralised MIS,” and similar measures.

Clearly, the Ministry intends to link the issue of new job cards to UID enrolment in the States. Job cards issued in 2006 are due to expire in 2011. Job cards are required to claim employment under the MGNREGA. If the issue of new job cards is linked to UID enrolment, there is a danger of creating a jam that would disrupt the programme. The process of job cards renewal, in any case a slow process, will be further slowed down. Many people are likely to be denied their entitlement to 100 days of work as they will be without a job card. Further, in spite of the hiring of “service providers”, the entire administrative machinery is likely to be diverted into capturing of biometrics or supervising “service providers”. The scale of MGNREGA works is bound to suffer. This would be a gross injustice to NREGA workers, who are already deprived of their basic entitlements.

The proposal of “biometric attendance at the worksite with GPS coordinates” is completely impractical — many MGNREGA worksites are in remote areas with poor or no connectivity. Does that mean those worksites will close down?

We do welcome the use of technology provided that it enhances transparency, empowers labourers and is cost effective. Such technology has been used with success in Tamil Nadu. For instance, it combines SMS reports on daily attendance with random spot checks to curb the problem of fake muster roll entries. Localised use of biometrics, independent of UID, to speed up payments can be considered. Biometrics and UID are not the same. In Rajasthan, simpler measures have been put in place, such as “transparency walls” where all job card holders in the Gram Panchayat are listed along with days of work, allowing people to monitor implementation.

There are many problems in the implementation of the MGNREGA which need the urgent attention of the Ministry. These include the non-payment of minimum wages, delays in wage payments, insufficient scale of MGNREGA works, discrimination against Dalits and women, and so on.

We therefore demand that neither MGNREGA employment nor wage payments be linked to UID enrolment. Employment of 100 days under MGNREGA is the only universal entitlement that the rural poor enjoy. It should not be jeopardised by the introduction of disruptive technology under pressure from corporate and security lobbies.

Signatories: Nikhil Dey, Aruna Roy and Shankar Singh (Mazdoor Kisan Shakti Sangathan); Jayati Ghosh (Professor, CESP/SSS, Jawaharlal Nehru University); Jean Drèze (Honorary Professor, University of Allahabad); Kamal Mitra Chenoy (Professor, Jawaharlal Nehru University); Reetika Khera (Visitor, Centre for Development Economics); R. Ramakumar (Associate Professor, Tata Institute for Social Sciences); Mallika Sarabhai (CRANTI, Citizens Resource and Action Network Initiative) and others.

Appeals for restraint

Courts rarely follow a rule to reduce the number of appeals clogging the system even further.

M J Antony  IN THE BUSINESS STANDARD/ New Delhi December 1, 2010, 3:14 IST

Two frustrating blots on litigation that are evident to anyone who visits the courts are adjournments at the drop of a gown and endless appeals in search of perfect justice. The first problem can be cured only if judges and lawyers impose some self-discipline. Parliament has tried to control the second snag by enacting rules to cap the number of appeals. But judicial discipline often crumbles in the face of counsel’s persistence and the system is clogged by appeals. The Supreme Court has referred to this issue several times in the past, and repeated it in two judgments in recent weeks, hoping the number of appeals would be reduced by strictly following the new provisions of the Civil Procedure Code.

According to Section 100 of the code, a second appeal to the high court is permissible only if it involves “substantial questions of law”. The memorandum of appeal must precisely state the substantial question and the court is bound to formulate it before hearing the case.

However, in many cases, an appeal becomes a repetition of the same arguments, wasting the appellate court’s time and public money. The Supreme Court stated last month in the case, Municipal Committee, Hoshiarpur vs Punjab State Electricity Board, that it was the obligation of courts below “to further the clear intent of the legislature and not to frustrate it by ignoring the same”. The court cannot entertain a second appeal unless a substantial question of law is involved, since the second appeal does not lie on the ground of erroneous findings of fact based on a re-appreciation of evidence.

In this case involving inflated electricity bills, the first appellate court concurred with the fact findings of the court below. However, the high court, without framing any question of law, decided the case against the municipal committee. So the high court judgment was set aside.

The court had dealt with the problem of profusion of appeals, up the ladder of the judicial hierarchy, earlier too. In the case, Jai Singh vs Shakuntala (2002), it stated that appeals should be entertained only in rare cases. “It is only in very exceptional cases and on extreme perversity that the authority to examine the same in extenso stands permissible — it is a rarity rather than a regularity and thus it can be safely concluded that while there is no prohibition as such, the power to scrutiny can be exercised only in very exceptional circumstances and upon proper circumspection.”

In another recent case, Leela Soni vs Rajesh Goyal, the court further clarified: “No second appeal can be entertained by a high court on questions of fact, much less can it interfere in the findings of fact recorded by the lower appellate court. This is so, not only when it is possible for the high court to take a different view of the matter but also when the high court finds that conclusions on questions of fact recorded by the first appellate court are wrong.”

In another case, Mohd Saud vs Dr (Maj) Shaikh Mahfooz, there was a conflict of views between two division benches of the Orissa High Court and, therefore, the issue was decided by a full bench of that court. The full bench held that after the amendment of the relevant provisions in the code (Section 100-A with effect from July 2002), no appeal shall lie against the order or judgment passed by a single judge. The Supreme Court agreed with this view. It also remarked that the different views taken by some courts were due to bad drafting of the provisions.

“To resolve this conflict we have to adopt a purposive interpretation. The whole purpose of introducing Section 100-A was to reduce the number of appeals as the public in India was being harassed by the numerous appeals provided in the statute,” the Supreme Court declared. It gave an interpretation of the amendment to avoid a strange situation in which the new provision would defeat the purpose of the amendment itself.

According to the 54th report of the Law Commission, any rational system of administration of civil law should provide for only two appeals. The search for absolute truth, however laudable, must be reconciled with the doctrine of finality.

It might, however, seem harsh on the litigants who are dissatisfied with a bad judgment, especially since the general perception is that the quality of judges has gone down. Even the Supreme Court was compelled to remark last week that there was “something rotten” in the Allahabad High Court, a venerable institution. At the same time, many litigants would save their money and energy by not following the advice of lawyers who encourage further gambling in the courts.

When private becomes public


Where does public interest begin and an individual’s right to privacy end? The question is being asked following the publication of transcripts of telephone conversations of lobbyist Niira Radia with certain politicians, corporate leaders and journalists. On Monday, Tata Group Chairman Ratan. Tata moved the Supreme Court to protect his right to privacy as his conversations with Radia, whose PR firm handles corporate communications for the Tatas, were splashed across at least two national magazines.

Right to privacy
In India, the right to privacy is not recognised as a separate constitutional right. However, in various judgments, the Supreme Court has held that the right to privacy is included in the fundamental right to life and personal liberty recognised under Article 21 of the Constitution. This right is not absolute and can be curtailed, but only “according to procedure established by law”.

The Supreme Court has held that right to privacy extended to telephone calls as “conversations on the telephone are often of an intimate and confidential nature”. Tapping telephones, thus, is a contravention of Article 21 of the Constitution, subject to certain exceptions, unless the procedure established by law is followed.

Case by case basis
However, whether the right to privacy has been violated in a particular case would depend on the facts of the individual case and there is no blanket law or provision that covers all such cases. Commenting on the Tata case, senior advocate Harish Salve said: “The police have the right to secretly record my telephonic conversations for investigation of a crime. But that does not mean that you can put my private conversation with my wife on websites.”

Investigation of crime
It is a well settled legal position that law enforcement agencies have the right to secretly record private conversations of individuals for crime prevention, detection and investigation, provided they do it in accordance with the procedures established by law.

In fact even Tata has not disputed this in his petition. What he has questioned is the leaking of the tapes of the “private” conversations he had with Radia on the ground of violation of his right to privacy.

In India, telephone tapping is governed by the Indian Telegraph Rules, 1951 that was amended to add some new provisions after the Supreme Court directed the authorities to strike a balance between the need for investigation and the right to privacy as also to check unauthorised interception of conversations.

The rules make it mandatory for the officers authorised to intercept any messages to maintain proper records of the same. These include keeping records of the names of all those to whom the intercepted material has been disclosed, the number of copies made of the intercepted messages, the period during which the authorisation to tap remained in force and the date of destruction of the tapes/CDs, transcripts, etc.

The rules also put some obligation on the service providers who are bound to maintain secrecy and destroy the recordings and transcripts pertaining to the interception within a stipulated time.

Unauthorised tapping
In February 2006, CDs of former Samajwadi Party leader Amar Singh’s conversations with his party chief Mulayam Singh, film stars and businessmen were distributed to the media. These recordings were made without authorisation.

The Supreme Court passed an order banning the publication and broadcast of taped telephonic conversations of any person if done illegally. The order is still in force.

Crucial questions
As the government orders a probe into the leakage of Radia tapes, several crucial questions demand answers. Can investigating agencies make public an individual’s private and personal conversations recorded during a probe authorised by law?

The question becomes more complicated when the conversation contains derogatory and defamatory references to third parties who had nothing to do with the alleged crime under investigation. Are the probe agencies obliged to keep secret the tapes/CDs of conversations – at least those parts that are private in nature – tapped during an investigation? Said advocate Prashant Bhushan, who is representing the Centre for Public Interest Litigation in the 2G-spectrum case in the SC: “There are no private conversations or professional conversations. The case involves fixing government policies and planting stories in the media by Radia in the interest of her clients…and in any case public interest is paramount and it would override any privacy interest.”

“Privacy cannot be treated as an omnibus rule. At the core of it lies a person’s body and home, which is subject to search and seizure – an invasion authorised by law. Beyond that, even confidential business and other discussion have to yield to larger public interest,” added noted jurist Rajeev Dhavan.

Making a case for transparency in public life, Dhavan said: “In the Spycatcher case (a case where English courts upheld a government ban on a book alleging that the head of British military intelligence and some other senior people were Russian spies), the English media rightly chastised even judges who upheld censorship of what was already in the public domain by calling them fools. Any prior restraint (on publication of the contents of the Radia tapes) by courts in this case would invite the death of democratic discourse.”

But Salve felt that there cannot be public interest in somebody’s private conversations. “You can’t make India a banana republic,” he said.

But such recordings can be used only for the purpose of authorised investigations, revealed only to persons authorised by law to have access and then destroyed also in terms of set procedures. Any deviation from these principles is not permitted.

But that still doesn’t clarify the grey areas: since each breach of privacy case is unique, the authorities and courts have to deal with them on a case-by-case basis.And this can lead to decisions that aggrieved persons can consider arbitrary.

“As a general rule, public interest would override the privacy argument. But in some exceptional cases, you may have to accept the privacy plea,” said eminent lawyer Ram Jethmalani.