A UNUSUAL ORDER

Supreme Court of India

In an unusual order, the Supreme Court let off three gang rapists after they claimed a ‘compromise formula’ with the victim and agreed to pay her a fine of Rs 50,000 each for their offence.  The judgement is reproduced here. Readers are requested to send their comments.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 749 OF 2007

BALDEV SINGH & ORS. ……Appellant (s)

Versus

STATE OF PUNJAB …..Respondent (s)

O R D E R

This appeal has been filed against the impugned judgment dated 27.0.2005 IN CRLA No. 242 of 1999 of the High Court of Punjab & Haryana at Chandigarh.

The facts of the case have been set out in the judgment of the High Court and hence we are not repeating the same here, except where necessary. The prosecution case is that on 03.03.1997 at about 6.30 A.M. the prosecutrix was coming to her house after answering the call of nature. The three appellants caught her and took her into a house and raped her and beat her. After police investigation the appellants were charge sheeted, and after a trial were convicted under Section 376 (2) (g) and Section 342 I.P.C. and sentenced to 10 years R.I. and to pay a fine of Rs.1,000/- each. The sentence was upheld by the High Court, and hence this appeal.

Admittedly the appellants have already undergone, about 3 and ½ years imprisonment each. The incident is 14 years old. The appellants and the prosecutrix are married (not to each other). The prosecutrix has also two children. An application and affidavit has been filed before us stating that the parties want to finish the dispute, have entered into a compromise on 01.09.2007, and that the accused may be acquitted and now there is no misunderstanding between them.

Section 376 is a non compoundable offence, However, the fact that the incident is an old one, is a circumstance for invoking the proviso to Section 376 (2) (g) and awarding a sentence less than 10 years, which is ordinarily the minimum sentence under that provision, as we think that there are adequate and special reasons for doing so.

On the facts of the case, considering that the incident happened in the year 1997 and that the parties have themselves entered into a compromise, we uphold the conviction of the appellant but we reduce the sentence to the period of sentence already undergone in view of the proviso to Section 376 (2) (g) which for adequate and special reasons permits imposition of a lesser sentence. However, we direct that each of the appellant will pay a sum of Rupees 50,000/- by way of enhancement of fine to the victim envisaged under Section 376 of the IPC itself. The fine shall be paid within three months from today. In the event of failure to pay the enhanced amount of fine it will be recovered as arrears of land revenue and will be given to the victim.

The appeal is disposed off.

……………….J.

[MARKANDEY KATJU]

……………….J.

[GYAN SHDHA MISRA]

NEW DELHI; FEBRUARY 22, 2011

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SC lets off gangrapists after they agreed to compensate victim

 

Supreme Court of India

In an unusual order, the Supreme Court let off three gang rapists after they claimed a ‘compromise formula’ with the victim and agreed to pay her a fine of Rs 50,000 each for their offence.

A bench of justices Markandeya Katju and Gyan Sudha Mishra reduced to three and half years the 10-year sentence awarded to three gang rapists who took the plea that both the convicts and the victim were now happily married to different people and “wanted to live peacefully.”

Under Section 376(G) of the IPC, the minimum sentence to the gang rapists is 10 years, which may extend even to life imprisonment.  Though Justice Gyan Sudha Mishra was not initially inclined to compound (close the case by way of fine)the matter as it was not a compoundable offence, the apex court later relented and agreed to let them off provided the convicts paid Rs 50,000 each to the victim.

The apex court ordered that ” the amount shall be paid to the victim within three months”, failing which the same shall be recovered under the Land Revenue Act from the trio and paid to the victim. In this case, the convicts Baldev Singh, Gurmail Singh and Hardeep Singh, all said to be agricultural farmers, had gangraped the victim in Punjab’s Ludhiana district on March 5, 1997.

The sessions court had awarded 10 years imprisonment to the convicts.  The Punjab and Haryana High Court had dismissed the convicts’ appeal, following which they appealed in the apex court.

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A tale of two cases

V. VENKATESAN IN THE FRONTLINE

The Supreme Court rejects the doctrine of ‘guilt by association’, but the

Chhattisgarh High Court  applies it to deny Binayak Sen bail.

THE two cases were similar in facts and reasoning. In the first case, the Supreme Court Bench comprising Justices Markandey Katju and Gyan Sudha Misra held on February 3 that the mere membership of a banned organisation did not incriminate a person unless he resorted to or incited violence. In the second, a Chhattisgarh High Court Bench comprising Justices T.P. Sharma and R.L. Jhanwar rejected on February 10 the bail applications of Binayak Sen and Piyush Guha on the grounds that the trial court had found them guilty of sedition by association and had sentenced them to life imprisonment.

The Supreme Court’s judgment must have been binding on the High Court. However, the High Court, though it cited the Supreme Court’s February 3 judgment, apparently misinterpreted it to justify its rejection of bail to Sen and Guha.

In the first case, Arup Bhuyan was alleged to be a member of the United Liberation Front of Asom (ULFA), a banned organisation. The evidence against him was the confessional statement he made before the Superintendent of Police. Confession to a police officer is inadmissible under Section 25 of the Evidence Act. But it was admissible under Section 15 of the Terrorist and Disruptive Activities (Prevention) Act (TADA), 1987, which has since been repealed. Bhuyan was booked and tried under TADA as cases registered under the Act when it was in force continued to be tried under it even after its repeal. The Designated Court under TADA found Bhuyan guilty in 2007.

The Supreme Court upheld Bhuyan’s appeal against the TADA court’s order. Interestingly, both the Designated Court and the Supreme Court agreed that despite Section 15 of TADA, confessional statements to a police officer cannot be acted upon as the sole basis for conviction of an accused. In its judgment, the Supreme Court held that confession was a very weak kind of evidence as the widespread and rampant practice of the police in India was to use third-degree methods to extract confessions from the accused.

Hence, the Bench said that where the prosecution case rested mainly on the confessional statement made to the police by the accused, in the absence of corroborative material the courts had to be hesitant in accepting such extrajudicial confessional statements.

The Designated Court, however, found Bhuyan guilty under Section 3(5) of TADA, which makes the mere membership of a banned organisation criminal. Bhuyan denied that he was a member of ULFA. The Supreme Court said in its judgment: “Even assuming that he was a member of ULFA, it has not been proved that he was an active member and not a mere passive member.”

‘Guilt by association’

The Bench then explained how the doctrine of “guilt by association” could not be used to convict an accused. It said: “Section 3(5) [of TADA] cannot be read literally, otherwise it will violate Articles 19 and 21 of the Constitution.”

To sustain its view, the Bench relied on the judgments delivered by the United States Supreme Court in Elfbrandt vs Russell (1966), Clarence Brandenburg vs State of Ohio (1969) and United States vs Eugene Frank Robel (1967). In its view, the fundamental rights guaranteed under the Indian Constitution are similar to the Bill of Rights in the U.S. Constitution. The U.S. Supreme Court had rejected the doctrine of guilt by association in these cases.

The Bench’s agreement with the U.S. Supreme Court’s judgment in Clarence Brandenburg is significant. In this case, the U.S. Supreme Court held that the mere “‘advocacy or teaching the duty, necessity, or propriety’ of violence as a means of accomplishing political or industrial reform, or publishing or circulating or displaying any book or paper containing such advocacy, or justifying the commission of violent acts with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism, or to voluntarily assemble with a group formed ‘to teach or advocate the doctrines of criminal syndicalism’ is not per se illegal. It will become illegal only if it incites to imminent lawless action.”

In his February 3 judgment, Justice Katju referred to another judgment rendered by him on January 3 this year. In State of Kerala vs Raneef, Justice Katju granted bail to the dentist Dr Raneef, who had treated one of the injured alleged assailants of Prof. T.J. Joseph of Newman College, Thodupuzha, Kerala. The assailants had chopped off Joseph’s right palm in retaliation for allegedly incorporating a question criticising the Prophet Muhammad and Islam in an internal examination in his college.

Justice Katju said: “The book entitled ‘Jihad’ said to have been found in his house was a Malayalam translation of a book written in Urdu in 1927 by a well known and respected religious scholar, Maulana Sayyid Abul Ala Maudoodi, and has been in circulation for 83 years, and is available in many bookshops. Raneef, being a doctor, was under the Hippocratic oath to attempt to heal a patient. Just as it is the duty of a lawyer to defend an accused, so also it is the duty of a doctor to heal. Even a dentist can apply stitches in an emergency.”

Raneef was alleged to belong to the radical Popular Front of India (PFI). Justice Katju said there was no evidence yet to prove that the PFI was a terrorist organisation, and that even assuming that it was an illegal organisation, the court was yet to examine whether all members of such an organisation could be automatically held to be guilty.

Justice Katju quoted in agreement from the U.S. Supreme Court’s judgment in Elfbrandt vs Russell: “Those who join an organisation but do not share its unlawful purpose and who do not participate in its unlawful activities surely pose no threat, either as citizens or as public employees. A law which applies to membership without the ‘specific intent’ to further the illegal aims of the organisation infringes unnecessarily on protected freedoms. It rests on the doctrine of ‘guilt by association’ which has no place here.’”

SUSHIL KUMAR VERMA

Justice Katju also cited Justice Douglas of the U.S. Supreme Court having observed in another case: “In days of great tension when feelings run high, it is a temptation to take shortcuts by borrowing from the totalitarian techniques of our opponents. But when we do, we set in motion a subversive influence of our own design that destroys us from within.”

Striking similarity

The similarities in the cases of Arup Bhuyan, Dr Raneef and Dr Binayak Sen are striking. Yet, the Chhattisgarh High Court, which rejected Sen’s bail application, found no reason to see the Supreme Court’s observations in these cases as binding on it. After observing that the court was only required to ascertain whether the conviction of Sen and Guha was well founded on the basis of admissible evidence, the High Court rather unconvincingly rejected the arguments that it was not.

In Paragraph 33, the High Court recalled the prosecution case in a nutshell: “Co-accused Narayan Sanyal is a hardcore naxalite and member of banned organisations. He was having close intimacy with appellant Binayak Sen…. Binayak Sen visited Raipur jail (where Sanyal was lodged after arrest) for meeting Sanyal for 33 times…. Piyush Guha made confession before police that those three letters (Articles 8, 9, and 10 found in his possession by the police) were given by Sanyal to Sen for sending the same to Kolkata through him.”

The High Court agreed that this part of the evidence, that is, the confessional statement made to a police officer, was not admissible as evidence. Yet it gave no explanation as to how the trial court could find Guha and Sen guilty on the basis of this confession.

In Paragraph 43, the High Court has especially given credence to the doctrine of “guilt by association” by suggesting that both Guha and Sanyal are members of a “Maoist group” (which is not an organisation that has been banned), are involved in naxalite activities, created disloyalty, and enticed the public against the State machinery resulting in large-scale death of members of the armed forces and robbery of arms and ammunition from the police.

The High Court also found that Sen was closely associated with Sanyal and other “alleged” (the court itself has conceded that it was only alleged) hardcore naxalites, namely, Shankar Singh, Amita Shrivastava and Malti aka K.S. Priya, who are absconding after the arrest of the appellants, Sen and Guha. From the court’s own judgment, it is not at all clear whether there is any arrest warrant pending against the so-called hardcore naxalites.

In Paragraph 45, the High Court mentions that the hard copy of the computer record found in possession of Sen reveals the names of Shankar Singh, Malti and Prafull Jha, against whom cases of the “aforesaid nature” are pending. But no details have been given.

In Paragraph 47, the High Court insinuates that the People’s Union for Civil Liberties, whose Chhattisgarh unit Sen heads, did not ask the naxalite groups to stop violence. This is contrary to facts. The High Court makes a similar allegation against Sen himself in Paragraph 51, which again is untrue.

The High Court does not explain how the documents seized from Sen and Guha, which have already been in the public domain, are seditious. Its conclusion that the case of Arup Bhuyan is distinguishable in facts from that of Sen and Guha is surprising in view of the broad similarities in facts and reasoning.

http://www.frontlineonnet.com/stories/20110311280504400.htm

Lobbyists and the law

A G NOORANI IN THE FRONTLINE

The Niira Radia episode may not have gone as far as it did if there had been a law that exposed the activities of lobbyists to the public gaze.

THE Niira Radia episode richly illustrates a gaping void in the Indian legal system. There is no law to regulate activities of lobbyists. The affidavit filed in the Supreme Court on behalf of the Government of India in the Ratan Tata case says in paragraph 6: “A complaint was received by the Finance Minister dated 16 November 2007 inter alia alleging that Ms. Radia had within a short span of nine years built up a business empire worth Rs.300 crores, that she was an agent of foreign intelligence agencies and that she was indulging in anti-national activities. On this complaint, it was directed that the matter should be examined.”

It proceeds to mention that the Deputy Inspector General of Police, Anti-Corruption Branch, Central Bureau of Investigation, in a letter, dated November 16, 2009, to the said Director General of Income Tax (Investigation) stated: “It has been reliably learnt that certain middlemen including one Ms. Niira Radia of M/s. Neosis Consultancy were actively involved in the above mentioned criminal conspiracy. It is understood that the Director General of Investigation Income Tax kept information regarding such undesirable contact persons using various methods of surveillance including telephonic surveillance. In case your office is in possession of any information or records pertaining to any middleman including Ms. Niira Radia regarding award of UAS licenses, the same may please be made available to this office for pursuance of investigation.”

It is unlikely that matters would have gone as far as they did – including influence peddling by her and associated journalists to secure plum portfolios in the Ministry at the Centre for favourites – if there had been on the statute book a law that exposed activities of lobbyists to the public gaze.

Lobbying is a part of the democratic process. The human rights activist who meets legislators and Ministers to press for ratification of an international convention is also a lobbyist. Not all such lobbyists are unpaid. Non-governmental organisations (NGOs) remunerate them sometimes. This lobbyist acts out of conviction. It is the lobbyist hired to promote an interest who poses the problem. India has ignored this problem despite growing signs of abuse. The H.G. Mudgal case is 60 years old. He was expelled from the Lok Sabha for taking money from a business house in return for promoting their interests. Here is the text of a press note issued by the Union Home Ministry and published in The Statesman as far back as on July 13, 1973: “Cases have come to the notice of the government that certain persons approach business houses, trade associations and important individuals and assure them that for a fixed fee they could expedite consideration of their cases pending with certain agencies of the government.

“In order to create confidence in the minds of the people, communications are accompanied with printed pamphlets and other literature. They also make it appear that they have contacts in certain departments of government with which businessmen have to deal. Also, these people obtain advance payments for doing lobbying or liaison work for business firms. Even when these persons turn out to be cheats, as most of them are, the firms fight shy of reporting the matter to the police.

“The government therefore warns the public against the operation of such undesirable elements.”

On March 26, 1981, Indian Express published this report: “The Central Bureau of Investigation circulated to all Ministries a blacklist of liaison officers with unsavoury antecedents with instructions that they are not to be permitted to enter any Ministry or meet any official. This was revealed in the Lok Sabha by the Minister of State for Home Affairs, Mr. P. Venkatasubbiah, who said that the list was updated from time to time by the CBI. Care is taken to see that such liaison officers are not allowed to come into Ministries and contact officers.”

The Minister said this was in line with the recommendation of the Santhanam Committee, which said that no officer should have any dealing with any representative of any business firm unless that representative is properly accredited to the government. There was, however, no restriction on proprietors and managers contacting officials.

Niren Ghosh (CPI (M)) demanded that retired Indian Civil Service and Indian Administrative Service officers be banned from accepting liaison jobs. He alleged such officers got easy entry into Ministries and they spent crores in securing licences for their principals.

Venkatasubbiah said he had no information about retired ICS and IAS officers doing liaison work “The government would spare no effort to stop leakage of official files to multinationals in connivance with some government officials as alleged by Mr. K. Lakappa (Congress(I)).”

That was 30 years ago. As the economy grew, competition intensified and the role of the state expanded, opportunities for lobbyists increased. They became “smoother”, more skilful and insidious. Even heads of reputed business houses employed them.

Quoted and courted

Lobbyists need the services of legislators as well as journalists; not the poor hack but the one at the top with contacts that can help the lobbyist. Known identifiable lobbyists have emerged as “public figures” quoted and courted by the media.

How lobbying acquired menacing proportions is ably documented in Karl Schriftgiesser’s The Lobbyists: The Art and Business of Influencing Lawmakers. He writes: “Lobbying is as old as legislation and pressure groups are as old as politics.” The lobbyist was once known as “lobbying agent”. Walt Whitman denounced “bawling office-holders”, “kept editors”, “bribers, compromisers, lobbiers, spongers… the lousy combings and born freedom-sellers of the earth”.

In 1874, the United States Supreme Court delivered a stinging rebuke to one form of lobbying which it found reprehensible. Justice Noah H. Swayne said: “The agreement… was for the sale of the influence and exertion of the lobby agent to bring about the passage of a law for the payment of a private claim, without reference to its merits, by means which, if not corrupt, were illegitimate, and considered in connection with the pecuniary interest of the agent at stake, contrary to the plainest principles of public policy.

“If any of the great corporations of the country were to hire adventurers who make market of themselves in this way, to procure the passage of a general law with a view to the promotion of their private interests, the moral sense of every right-minded man would instinctively denounce the employer and employed as steeped in corruption and the employment as infamous….

“If the agent is truthful and conceals nothing, all is well. If he uses nefarious means with success, the springhead and the stream of legislation are polluted. To legalise the traffic of such service would open a door at which fraud and falsehood would not fail to enter and make themselves felt at every point. It would invite their presence and offer them a premium. If the tempted agent be corrupt himself and disposed to corrupt others, the transition requires but a single step. He has the means in his hands, with every facility and a strong incentive to use them….” The author points out that lobbying flourishes under two political circumstances. “One is when the executive is weak. The other is when the parties are decentralised.”

In 1905, the Armstrong Committee’s 10-volume report exposed how far big business had corrupted legislators in every State in the U.S. and in Congress, no less. Witnesses were reluctant to appear before it. The report said: “Nothing disclosed by the investigation deserves more serious attention than the systematic efforts of the large insurance companies to control a large part of the legislation of the State. They have been organised into an offensive and defensive alliance to procure or to prevent the passage of laws affecting not only insurance, but a great variety of important interests to which, through subsidiary companies or the connections of their officers, they have become related. Their operations have extended beyond the State, and the country has been divided into districts so that each company might perform conveniently its share of the work. Enormous sums have been expended in a surreptitious manner. Irregular accounts have been kept to conceal the payments….”

Vicious circle

It is a vicious circle. The politician needs money for election campaigns. Big business helps. Its lobbyist sends IOU to the legislator when his help is needed. None other than Woodrow Wilson said: “The masters of the government of the United States are the combined capitalists and manufacturers of the United States. It is written over every intimate page of the records of Congress; it is written all through the history of conferences at the White House; that the suggestions of economic policy have come from one source, not many sources….”

Suppose you go to Washington, Wilson, who was then the Governor of New Jersey (in 1912), continued, “You will always find that while you are politely listened to, the men really consulted are the big men who have the biggest stake – the big bankers, the big manufacturers, the big masters of commerce, the heads of railroad corporations, and of steamship corporations….

“Every time it has come to a critical question, these gentlemen have been yielded to and the demands treated as the demands that should be followed as a matter of course. The government of the United States is a foster child of the special interests. It is not allowed to have a will of its own.”

In 1921, Senator Kenneth B. McKellar painted this picture. “There are lobbyists from the sugar interests, for the steel interests, for the fertilizer interests, for the cotton manufacturers’ interests, for prohibition and for anti-prohibition, for postal employees, for labour organisations, for railroads, for civil service employees, for the equal rights of women, for the bonus, for those opposed to the bonus, for the shipping interests, for Henry Ford’s acquisition of Muscle Shoals, for the water-power trust, for the oil interests, for the disabled serviceman, for the manufacturers, for the Army, for the Navy, for national aid to education, and many other interests. Washington is honey-combed with lobbyists. The hotels are full of them.”

The U.S. Constitution guarantees “the freedom of speech” and the right “to petition the government for redress of grievances” – individually and collectively. This does not cover paid lobbying to bring pressure on behalf of business interests. This professionally inspired effort to put pressure on Ministers and MPs stands on a different footing altogether.

Regulation Act

In 1946, the U.S. Congress enacted the Federal Regulation of Lobbying Act. The act did not offer a succinct definition of a lobby or of a lobbyist. But it placed under its regulation any “Individual, partnership, committee, association, corporation, and any other organisation or group of persons” (Section 402 [c]) who “by himself, or through any agent or employee or other persons in any manner whatsoever, directly or indirectly, solicits, collects, or receives money or any other thing of value to be used principally to aid, or the principal purpose of which person [individually or collectively, as above designated] is to aid, in the passage or defeat of any legislation by the Congress of the United States” (Section 307).

Any person coming under this definition, with certain exceptions, shall “before doing anything in furtherance of such object, register with the clerk of the House of Representatives and the Secretary of the Senate…” (Section 308 [a]). The registrations, to be made under oath, must contain the following information: “…the name and address of the person by whom he is employed, and in whose interest he appears or works, the duration of such employment, how much he is paid and is to receive, by whom he is paid or is to be paid, how much he is to be paid for expenses, and what expenses are to be included” (Section 308 [a]).

Under these provisions, both lobby organisations and individuals acting as lobbyists are required to register. Having done so, the lobbyist must also file with the House and with the Senate detailed and sworn quarterly reports giving the following information: all money received or spent by him during the quarter for lobbying activity; to whom it was paid; the purposes for which it was paid; “the names of any papers, periodicals, magazines, or other publications in which he has caused to be published any articles or editorials”; and the “proposed legislation he is employed to support or oppose” (Section 308 [a]).”

The New York Times suggested a crucial safeguard on October 23, 1950. It is transparency. “Lobbying is not a crime, and Chairman Buchanan doesn’t say it is. What he does say, and the argument seems reasonable, is that ‘influencing legislation is an activity that should be carried on in a goldfish bowl.’ The nature of the pressure and who is paying for it ought always to be public knowledge, and there ought always to be some accurate way of distinguishing between a million dollars and a million votes. If this can be done lobbying can be a part of the democratic process; if it can’t some new legislation may be required.”

In United States vs Harris 347 U.S. 612, the Supreme Court upheld the law by narrowing its scope. “Present-day legislative complexities are such that individual members of Congress cannot be expected to explore the myriad pressures to which they are regularly subjected. Yet full realisation of the American ideal of government by elected representatives depends to no small extent on their ability to properly evaluate such pressures, otherwise the voice of the people may all too easily be drowned out by the voice of special interest groups seeking favoured treatment while masquerading as proponents of the public weal. This is the evil which the Lobbying Act was designed to help prevent. Toward that end, Congress has not sought to prohibit these pressures. It has merely provided for a modicum of information from those who for hire attempt to influence legislation or who collect or spend funds for that purpose. It wants only to know who is being hired, who is putting up the money, and how much.”

Justices William Douglas and Hugo Black dissented. “We start with an all-inclusive definition of ‘legislation’ contained in Section 302 (e). It means ‘bills, resolutions, amendments, nominations, and other matters pending or proposed in either House of Congress, and includes any other matter which may be the subject of action by either House’. What is the scope of ‘any other matter which may be the subject of action’ by Congress? It would seem to include not only pending or proposed legislation but any matter within the legitimate domain of Congress.

“What contributions might be used ‘principally to aid’ in influencing ‘directly or indirectly, the passage or defeat’ of any such measure by Congress? When is one retained for the purpose of influencing the ‘passage or defeat of any legislation’? (1) One who addresses a trade union for repeal of a labour law certainly hopes to influence legislation. (2) So does a manufacturers’ association which runs ads in newspapers for a sales tax. (3) So does a farm group which undertakes to raise money for an educational program to be conducted in newspapers, magazines, and on radio and television, showing the need for revision of our attitude on world trade.

“(4) So does a group of oil companies which puts agents in the nation’s capital to sound the alarm at hostile legislation, to exert influence on Congressmen to defeat it, to work on the Hill for the passage of laws favourable to the oil interests. (5) So does a business, labour, farm, religious, social, racial, or other group which raises money to contact people with the request that they write their Congressman to get a law repealed or modified, to get a proposed law passed, or themselves to propose a law. Are all of these activities covered by the Act? If one is included why are not the others? The court apparently excludes the kind of activities listed in categories (1), (2) and (3) and includes part of the activities in (4) and (5) – those which entail contacts with Congress.

“There is, however, difficulty in that course, a difficulty which seems to me to be insuperable. I find no warrant in the act for drawing the line, as the court does, between “direct communication with Congress” and other pressures on Congress. The Act is as much concerned with one as with the other.”

Disclosure Act

In 1995, Congress enacted the Lobbying Disclosure Act to make reporting obligations more stringent. Under Section 4 of the Act every lobbyist or his employer must register with the Secretary of the Senate and the Clerk of the House of Representatives. As well as details about himself and his area of work, he is required to disclose the identity of his client “and a general description of its business or activities”. Contribution from other sources for lobbying in excess of $10,000 must also be mentioned along with details about the donors. Registered lobbyists file semi-annual reports.

The law and the reality

The law is one thing, the reality is another; and the reality is the power of the National Rifle Association (NRA) to prevent sensible reform of gun laws and the power of the American Israel Public Affairs Committee (AIPAC) to prevent any pressure on Israel to make the concessions which alone can make any accord with the Palestinians possible.

Prof. S. John Mearsheimer and Stephen M. Walt have exposed its activities in their famous book The Israel Lobby and U.S. Foreign Policy.

In an article in Foreign Policy of January-February 2011, Walt notes: “Even in areas where there is a clear scientific consensus, like climate change, public discourse has been distorted by well-organised campaigns to discredit the evidence and deny that any problem exists. Not surprisingly, those whose economic interests would be hurt if we significantly reduced our reliance on fossil fuels have aggressively funded such campaigns.

VIPIN CHANDRAN

“In the United States, this problem with self-interested individuals and groups interfering in the policy process appears to be getting worse, in good part because of the growing number of think tanks and ‘research’ organisations linked to special interests.

“Organisations like the American Enterprise Institute, the Centre for a New American Security, the Washington Institute for Near East Policy, and the Centre for American Progress – to name but a few – are not politically neutral institutions, in that their ultimate purpose is to assemble and disseminate arguments that advance a particular worldview or a specific policy agenda. The people who work at these institutions no doubt see themselves as doing serious and objective analysis – and many probably are – but such organisations are unlikely to recruit or retain anyone whose research challenges the organisation’s central aims. Their raison d’etre, after all, is the promotion of policies favoured by their founders and sponsors.”

As for the NRA, Albert R. Hunt reported in International Herald Tribune that over time “the clout of the National Rifle Association only grew. There are few lobbies in Washington as powerful or protective of their interests. Any gun laws are seen as violations of the Second Amendment to the Constitution, which cites the need for a well-regulated militia, stocked with arms. The power of the NRA is pervasive, both in Washington and in State capitals. When Democrats were trying to pass a campaign finance disclosure measure last year, they had to write a special exemption for the gun lobby in order to secure majority support in the House.”

Peter Hennessy’s classic Whitehall describes the clout of lobbyists in Britain. It led Douglas Hurd to remark: “They are the serpents constantly emerging from the sea to strangle Laocoon and his sons to their coils.”

Situation in India

The situation in India was well described by Payal Khandelwal in a report in Indian Express of December 6, 2010. It bears quotation in extenso: “There are no regulations on lobbying in India, so far, but it is not illegal either. Lobbying is a well-established industry though it operates in a largely opaque environment. There have been demands from the lobbying industry and also outsiders to spell out clear laws determining dos and don’ts for the practitioners, but it hasn’t happened so far.

“Dilip Cherian, founder of a public relations agency, Perfect Relations, and also a well-known lobbyist, says that lobbying is an ‘iterative’ process and lobbyists function as a bridge between companies and the government. ‘We help our clients in understanding the policy environment of the country. We help them in identifying key players and their positions in the policy area. The key players could be political parties, bureaucrats, Central government, panchayat government, etc. We advise companies on the communication to present their point of view to these key people,’ he says. He, however, agrees that there is no transparency in the industry so far.

“Industry bodies such as Federation of Indian Chambers of Commerce and Industry (FICCI), Confederation of Indian Industry (CII), National Association of Software and Services Companies are among the top lobby groups. The FICCI, however, maintains that it is not a lobby group and has only been working as an influence to engage with the government on the policy issues. CII president Hari S. Bhartia has also maintained a similar stand on the issue: ‘We are not lobbyists, we are advocates… [We] help build policy framework and perform advocacy work,’ he had said earlier this year.

“There are several other private lobbying firms such as Vaishnavi Corporate Communications owned by Niira Radia, DTA Associates managed by Deepak Talwar. These firms represent top private companies and lobby for them with policymakers. There are some individual lobbyists such as Tony Jesudasan, who represents the Anil Dhirubhai Ambani Group and Suhel Seth of Counselage.

“The Planning Commission has set up an expert group to look into the processes that comprise lobbying. Arun Maira, member of Planning Commission, said, ‘We will be considering various interests of all the stakeholders involved. This expert group comprises industries and government secretaries. There is an ongoing dialogue with the industry associations for their views. We want lobbying to be transparent and representative.’”

This is best accomplished by a statute on the lines of the U.S. Act of 1995. Additionally, we must fill a serious lacuna in our parliamentary system. There is no Register of Members’ Interests in which they record their business interests and the like.

The Report of the Select Committee on Members’ Interests (Declaration), which was endorsed by the House of Commons on June 12, 1975, identified nine classes of pecuniary interest or other benefit which were to be disclosed – in remunerated directorships of companies, public or private; remunerated employments or offices; remunerated trades, professions or vocations; the names of clients when the interests referred to above include personal services by the Member which arise out of or are related in any manner to his membership of the House; financial sponsorships, (a) as a parliamentary candidate where to the knowledge of the Member the sponsorship in any case exceeds 25 per cent of the candidate’s election expenses, or (b) as a Member of Parliament, by any person or organisation, stating whether any such sponsorship includes any payment to the member or any material benefit or advantage direct or indirect; overseas visits relating to or arising out of membership of the House where the cost of any such visit has not been wholly borne by the Member or by public funds; any payments or any material benefits or advantages received from or on behalf of foreign governments, organisations or persons; land and property of substantial value or from which a substantial income is derived; the names of companies or other bodies in which the Member has, to his knowledge, either himself or with or on behalf of his spouse or infant children, a beneficial interest on shareholdings of a nominal value greater than one-hundredth of the issued share capital.

Transparency is an effective guarantee. The U.S. Congress’ “Findings” in Section 2 of its Act of 1995 put it well: “(1) responsible representative government requires public awareness of the efforts of paid lobbyists to influence the public decision-making process in both the legislative and executive branches of the federal government; (2) existing lobbying disclosure statutes have been ineffective because of unclear statutory language, weak administrative and enforcement provisions, and an absence of clear guidance as to who is required to register and what they are required to disclose; and (3) the effective public disclosure of the identity and extent of the efforts of paid lobbyists to influence federal officials in the conduct of government actions will increase public confidence in the integrity of government.”

We have no time to lose. A law on lobbying is essential.

http://www.hinduonnet.com/fline/stories/20110311280508100.htm

Prejudices against judiciary

Supreme Court of India

Kuldip Nayar in The Tribune

PAKISTAN Chief Justice Iftikhar Muhammad Chaudhary made an interesting point at the Commonwealth Law Conference at Hyderabad. He said that the democratic government, which replaced military rule in his country, did not make or nullify the acts and actions of the military rulers.

Justice Chaudhary suffered a lot at the hands of Gen Pervez Musharraf, then the sole wielder of power. The countrywide agitation by the Pakistan lawyers restored him to his office. In the process, the Pakistan judiciary became independent. But without punishment to those who derailed the system, no example can be set before the people who do not respect the rule of law.

I agree with the chief justice that a nation must undo the wrongs that a ruler might have done to the constitution or to the legal system in his or her regime. This, however, is dependent on the successor’s commitment to values, justice and fair play.

India too had a bitter experience when Prime Minister Indira Gandhi amended the constitution and took illegal steps during the emergency. The Janata Party, which came to power after defeating her at the polls, nullified all the changes she had effected. Yet it failed to punish Mrs Gandhi’s Cabinet colleagues or pliable officers responsible for the excesses they had committed.

The Shah Commission did a commendable job to bring out the wrongdoings. It also named those who committed the crime. But Mrs Gandhi returned to power before any law court could punish anyone of them. She, in fact, took action against those who had not obeyed the unconstitutional authority residing in her son Sanjay Gandhi during the Emergency.

The mere undoing of the wrongs is not enough. The culprits must be brought to book. Otherwise, they would again become instruments of tyranny. This is precisely what happened when Mrs Gandhi assumed power for the second time in 1980. She brought back her obedient officers and tainted ministers; some of them are still there in the Manmohan Singh government.

Chief Justice Chaudhary was quite right to assert that it was the judiciary that brought an end to the constitutional deviations in Pakistan and restored the rule of law. I do not know whether his claim on the rule of law is justified because lawlessness in certain parts of Pakistan is disconcerting. Yet he could not punish the guilty. Maybe, that would have meant taking action against General Musharraf who was the President and enjoyed immunity because of the office he occupied. Still the Chief Justice could have initiated some steps to bring him to book. This would have served as a notice to future rulers.

I think Justice A.K. Ganguly hit the nail on its head. He remarked during a hearing of the Supreme Court that “no government wants a strong judiciary.” He was, no doubt, referring to the “cancer of adjournments.” In a phone-tapping case, only one witness had been examined during the last four years. But his remark has validity. Yet, if I may say so, the manner in which some judges ingratiate themselves with the government, they convey a wrong message to it. A high court judge, who is now in the Supreme Court, admitted that his visit to Delhi could not be complete until he had called on members of the judicial presidium.

Justice Ganguly did well to reprimand Union Minister Vilasrao Deshmukh for pleading to get two important cases related to NREGS wages in the high courts of Hyderabad and Bangalore bunched together and heard in the apex court. The petition was dismissed by Justice Ganguly. Incidentally, Mr Deshmukh was pulled up by the judge some time ago for using his influence as Chief Minister to prevent the police from registering a case against a money-lender. Most recently, Justice Ganguly lamented Deshmukh’s place in the Union Cabinet, given that the apex court had pulled him up for misuse of position. Strange, the Prime Minister has taken no notice of it.

The tug of war between the executive and the judiciary is nothing new. It was there even during the time of India’s first Prime Minister Jawaharlal Nehru. He was furious when the Supreme Court declared the Zamindari Abolition Act ultra virus. Not long ago, then Speaker Somnath Chatterjee refused to accept the Supreme Court’s notice. He said that the court had no right to examine the issue that fell in Parliament’s jurisdiction.

A few weeks ago, the government said the Supreme Court could not examine the suitability of Mr P.J. Thomas once he was appointed Chief Vigilance Commissioner (CVC). This time the court had the upper hand when it asserted its power of judicial review.

The Commonwealth Law Conference cautioned against the use of judicial review to erode the legitimate role assigned to other benches of the government. Indeed, Parliament is supreme since it represented the people. But independence of the judiciary cannot be diluted in a democratic society. The government has the tendency to arbitrariness.

The prejudice of the executive is visible by the negligible allocation made for the judiciary. It is a quarter per cent of the budget outlay. One chief justice after another has pleaded for more courts to clear the backlog of cases. How can 16,000 courts in the country dispose of about 2.4 crore cases pending?

The other point that Justice Chaudhary raised on the double standards the West followed on subsidies is pertinent to our part of the world. The developed countries, which control the World Trade Organisation (WTO) and the International Monetary Fund (IMF), often take the developing countries to task for giving subsides to their farming sector. Yet, strangely, some developed countries, including America and France, give billions of dollars as subsidy to their own farmers.

Initiating the debate, Chief Justice of India S.H. Kapadia said there was need to adopt a minimum core-approach with a focus on the people below poverty line. Eminent lawyer Kamal Hussain from Bangladesh was more forthright. He equated human rights with the people’s right to livelihood. I think the Prime Minister had the last word when he said that a sound legal system based on the rule of law is a “major determinant of a favourable macro-economic development.”

http://www.tribuneindia.com/2011/20110223/edit.htm#4

Time for change

Supreme Court of India

V.R. KRISHNA IYER IN THE FRONTLINE

The time has come for a democratic revolt against the judiciary and for the appointment of a performance commission for judges.

DELINQUENCY of judges must be rooted out. They should be socialist, secular and democratic by conviction, simple in life and straightforward in behaviour. Judges correct the executive’s aberrations. When legislatures violate the Constitution by unconstitutional actions, courts quash such actions. But the egregious exaggeration that shocks the public is the terrible catastrophe of judicial corruption.

To quote Felix Frankfurter in Bridges vs California, 314 U.S. 252, 289 (1941):

“Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of judicial office are identified with the interests of justice they may forget their common human frailties and fallibilities. There have sometimes been martinets upon the bench as there have also been pompous wielders of authority who have used the paraphernalia of power in support of what they called their dignity. Therefore judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candour however blunt.”

Even High Court and Supreme Court judges are suspected of bribery and delinquency. Today, the judiciary suffers from an unbecoming misbehaviour syndrome. The most respected and sublime sector of public service, namely, the judiciary, is losing its credibility. I quote Winston Churchill and Lord Scrutton to prove the poor credentials of the judges.

The Secretary of State for the Home Department (W.S. Churchill) on the second reading of the Trade Unions (No.2) Bill, 1911 (26 H.C. Deb. col. 1922) said:

“The courts hold justly a high, and I think unequalled pre-eminence in the respect of the world in criminal cases, and in civil cases between man and man, no doubt, they deserve and command the respect and admiration of all classes of the community, but where class issues are involved, it is impossible to pretend that the courts command the same degree of general confidence. On the contrary, they do not, and a very large number of our population have been led to the opinion that they are, unconsciously, no doubt, biased.

(Honorary Members: ‘No, no’, ‘Withdraw’ and interruption.)

Lord Justice Scrutton in an address delivered to the University of Cambridge Law Society on November 18, 1920 (1 Cambridge Law Journal, page 8):

“The habits you are trained in, the people with whom you mix, lead to your having a certain class of ideas of such a nature that, when you have to deal with other ideas, you do not give as sound and accurate judgments as you would wish. This is one of the great difficulties at present with Labour. Labour says ‘Where are your impartial judges? They all move in the same circle as the employers, and they are all educated and nursed in the same ideas as the employers. How can a labour man or a trade unionist get impartial justice?’ It is very difficult sometimes to be sure that you have put yourself into a thoroughly impartial position between two disputants, one of your own class and one not of your class.”

We require a performance commission to eliminate the robed brethren who are guilty of goofiness and gross culpability. We require a constitutional code of conduct and good behaviour for judges. When they are guilty, a commission of high integrity and critical incisiveness must investigate into charges against them, and if found guilty they shall be removed without impeachment.

David Pannick in his delightful book ( Judges, 1987) has observed:

“Mr. Justice Jackson of the U.S. Supreme Court observed in 1952 that ‘men who make their way to the bench sometimes exhibit vanity, irascibility, narrowness, arrogance and other weaknesses to which human flesh is heir’. It would be surprising, indeed alarming, if some of the eminent legal minds that constitute the English judiciary did not, on their rare off days, act injudiciously. This was recently recognised by Lord Chancellor Hailsham. Those who sit in judgment occasionally become subject to what he called ‘judges’ disease’, that is to say a condition of which the symptoms may be pomposity, irritability, talkativeness, proneness to obiter dicta [that is, statements not necessary for the decision in the case], a tendency to take short-cuts. A judge may grow unfit for his office in many ways. It is therefore important to consider what sanctions exist in relation to judges who are unable to act in a judicial manner.”

In short, mountebanks, though few, creep into the Bench, and their judgments bind even though absurd. To secure sound balanced pronouncements, we may require a performance commission to eliminate such mountebanks after due inquiry. In the U.S. at the state level there are performance commissions. Even David Pannick has supported such an institution. We must have one in India too.

It is no longer a mere case of taking bribes or one of deciding cases in favour of the wealthy class. Sharp practice, tricky strategies and cute conspiracy have become the methodology of some in the judiciary. Luckily, they are yet few, but it is bad enough.

These developments make it necessary to see that judges are selected after due investigation into their antecedents and class bias. Once corruption is detected and established, errant judges should be shown no mercy. The judiciary is the salt of the earth and if the salt loses its savour wherewith shall it be salted. Severe punishment for judges is a deterrent for the sanitisation of the profession. Judges hold a sublime place in society. If they turn criminal there is no compassion for them.

There is no ground, no principle, no jurisprudence authorising the creation of a bizarre or bedlam institution called collegium. The sooner this institution is drowned five fathoms deep, the sooner the judiciary will be rid of one irrational irrelevance. Even in England, experiments for appointment commissions are going on, but ultimately the judiciary is an institution with a class bias. Prof. Griffith argues:

“The rules are what they are because of the nature of the society, because of its cultural and particularly its economic ordering. The government is the political manifestation of the economic forces and the judiciary also subserves those forces. In modern Marxist terms: ‘From this standpoint the law is, perhaps more clearly than any other cultural or institutional artefact, by definition a part of a ‘superstructure’ adapting itself to the necessities of an infrastructure of productive forces and productive relations. As such it is clearly an instrument of the de facto ruling class; it both defines these rulers’ claims upon resources and labour-power – it says what shall be property and what shall be crime – and it mediates class relations with a set of appropriate rules and sanctions, all of which, ultimately, confirm and consolidate class power.’”

Judges are qualitatively becoming illiterate and character wise dubious largely because the collegium has no investigative machinery or obligatory principles for selection. Consequently, favouritism, nepotism, casteism and other extraneous considerations spoil the selection. In the absence of a performance commission, corruption creeps into the process of judicial functionalism. Aghast, today corruption and mediocrity and favouritism and influence are frequently imputed to judges.

Never in the 60 years of judicial history in India have such serious charges been made against judges as have been made in recent times by a responsible person like Senior Advocate Shanti Bhushan against judges of the Supreme Court. Nowadays, high courts are not free from moral violations. Extraordinary defences by judges in hiding their wealth or in promoting to the Bench their close relations were not so common earlier as they are now. The people of our Republic have become a victim with such poor reputation. The robed brethren are accused of robbing wealth and yet no inquiry, no action by the Cabinet and no inquiry by Parliament into judicial jejuneness takes place.

The time has come for a democratic revolt against the judiciary and a demand for an appointment commission, a performance commission and an anti-corruption commission to keep a constant watch over judges and the respect they command. If judges fail in their moral fibre, the rule of law and the rule of life would collapse and open the route to military rule and functional chaos.

Said Learned Hand ( The Spirit of Liberty, Papers and Addresses of Learned Hand, collected by Irving Dillard, 2d, New York, Alfred Knopf, 1960, page 81):

“I venture to believe that it is as important to a judge called upon to pass on a question of constitutional law, to have at least a bowing acquaintance with Acton and Maitland, with Thucydides, Gibbon and Carlyle, with Homer, Dante, Shakespeare and Milton, with Machiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume and Kant, as with the books which have been specifically written on the subject. For in such matters everything turns upon the spirit in which he approaches the questions before him. The words he must construe are empty vessels into which he can pour nearly anything he will. Men do not gather figs of thistles, nor supply institutions from judges whose outlook is limited by parish or class. They must be aware that there are before them more than verbal problems; more than final solutions cast in generalisations of universal applicability. They must be aware of the changing social tensions in every society which make it an organism; which demand new schemata of adaptation; which will disrupt it, if rigidly confined.”

The collegium has added to the qualitative disgrace of the brethren and calls for liquidation as the adjudicatory mechanism. Perhaps we are reaching a state where judges, for their corruption, are caught and prosecuted until they consent to quit or choose to sleep in all their conscience behind bars. Swaraj was made of sterner stuff. A national commission for the appointment of judges with transparency, similar to the one now in England, is also urgently needed.

Glasnost and perestroika are imperatives from which the robes have no escape.

http://www.hinduonnet.com/fline/stories/20110311280510600.htm

High Court can suo motu question Sessions judge’s unjustified order

J. Venkatesan in THE HINDU

Only a correctional suggestion was made to administration: Supreme Court

He didn’t explain why charge under IPC Section 304 was preferred to one under 302 Erroneous order found out during inspection


NEW DELHI: If a sessions judge passes an erroneous or patently unjustified order, the High Court concerned can suo motu question its correctness by an administrative decision, the Supreme Court has held.

A Bench of Justices J.M. Panchal and H.L. Gokhale was dismissing a special leave petition filed by a retired additional sessions judge against an Orissa High Court order, which rejected his contention that the High Court could not suo motu initiate action against him by an administrative decision for the discharge of his judicial duties.

R.S. Mishra, while being an additional sessions judge, discharged an accused in a criminal case for an offence of murder under Section 302 of the Indian Penal Code. Instead, he was tried for a lesser offence under Section 304 (culpable homicide not amounting to murder) and awarded five-year imprisonment. A judge of the High Court, during an inspection, found out this erroneous order, but the accused had completed his term by then.

Therefore, the judge made certain observations against Mr. Mishra for not framing the charges under Section 302, though the material on record warranted it. As he was not considered for the selection grade, Mr. Mishra took voluntary retirement and challenged the order, pleading for expunction of the remarks. The High Court rejected his petition.

Dismissing the appeal against this order, the Supreme Court said: “In the instant case, a young person had been killed. It was not a case of grave and sudden provocation. The material on record showed that there was an injured eyewitness, and there was the supporting medical report. The material on record could not be said to be self-contradictory or intrinsically unreliable. Thus, there was a prima facie case to frame the charge under Section 302 of the IPC. The reason given for dropping the charge under Section 302 was totally inadequate and untenable, and showed non-application of mind by the appellant to the statements in the charge sheet and the medical record.”

Writing the judgment, Justice Gokhale said: “The [session judge’s] order does not explain why a charge under Section 304 was being preferred to one under Section 302. The impugned [High Court] order contained nothing but a correctional suggestion to the High Court administration, which it has accepted. The appellant was responsible for an unjustified dilution of the charge and, therefore, a thorough checking of his service record was necessary which is what is directed in the impugned order.”

The High Court order did not call for any interference, the Bench said.