Celebration of 150 Years of Calcutta High Court

Formally established in 1862, High Court at Ca...

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Following is the text of the speech of Dr. M. Veerappa Moily, Minister of Law & Justice on the occasion of the celebration of 150 years of Calcutta High Court:

“The High Court at Calcutta, formerly known as the High Court of Judicature at Fort William was brought into existence by the Letters Patent dated 14th May, 1862 issued under the High Court’s Act, 1861 and was formally opened on 1st July, 1862. The jurisdiction and powers of the High Court were to be defined by the Letters Patent. The existence of the Calcutta High Court is important to us as it was the first High Court and one of the three Chartered High Courts to be set up in India, along with the High Courts of Bombay and Madras

Sir Barnes Peacock was the first Chief Justice of the Calcutta High Court in 1862. Subsequently, Justice Shri Sumboo Nath Pandit was appointed as the first Indian to assume office of the High Court on 2nd February, 1863. He was followed by other legal luminaries such as Justice Shri Dwarka Nath Mitter, Justice Shri Ramesh Chandra Mitter, Justice Sir Chunder Madhab Ghosh, Justice Sir Gooroodas Banerji, Justice Sir Ashutosh Mookerjee. Justice Shri P.B. Chakravartti was the first Indian to become a permanent Chief Justice of the Calcutta High Court.

The High Court started with strength of 13 Judges and by the year 1955, its strength raised to 20 Judges. In the year 1958, the strength was fixed at 24 which was increased to 32 in 1966, 39 in 1969 and 41 in 1974. Till 1994, the strength of the High Court remained 46 when in 1993, the Supreme Court directed that the Judge strength of every High Court should be reviewed periodically with reference to the felt-need for disposal of cases, taking into account the backlog and expected future filing. Accordingly, the Judge strength of the High Courts, including the Calcutta High Court is being reviewed every three years. In 1995 the Judge strength of the Calcutta High Court was fixed at 48 and after review in 1999 it increased to 50 Judges. As per the latest review undertaken in 2007, the Judge strength of the Calcutta High Court has been revised to 58 Judges.

The Union Government is keen on the reduction in the pendency in the High Courts and has, therefore, launched a campaign from today to reduce pendency in the High Courts. One of the measures in reduction of the pendency is to have as many Judges in position as possible. Calcutta High Court has, against the sanctioned strength of 58, only 46 Judges in position. Though the Chief Justice has recommended names of 7 persons they are pending with the Central Government for want of comments of the State Government. I would urge upon the State Government to consider the recommendation made by the Chief Justice and send their comments at the earliest so that the vacancies could be filled up during the campaign period itself, thereby helping in disposal of more number of pending cases.

I am told that the High Court building is an exact replica of the Stand Haus in Ypres, Belgium. It is also recorded that when the original Stand Haus burnt down, a blue print of Granville’s Calcutta High Court had to be consulted before rebuilding it. The neo-Gothic High Court building was constructed in 1872, ten years after the establishment of the court itself. Government of India feels that unless the infrastructure is perfect, it is not possible for the High Courts to function smoothly. The 13th Finance Commission has awarded Rs. 5000 Crores to improve the justice delivery system in the country during the period of 5 years starting 2010-11. A sum of Rs. 19.70 Crores has been set aside out of this allocation for renovation of the Calcutta High Court Building, this being a heritage building. Further to this, the Union Government has, under the Centrally Sponsored Scheme, released a sum of Rs. 425.26 lakhs to West Bengal Government for developing infrastructural facilities for the judiciary.

The Government in the Centre is also keen on bringing the justice to the doorsteps of the masses for which the Gram Nayayalaya Act, 2008 has been enacted which has come in force w.e.f 2nd October, 2009. Under the Act, assistance is provided to the States towards (i) establishing the Gram Nyayalayas @ Rs. 18 lakh per Gram Nyayalaya and (ii) meeting recurring costs involved in operating these Gram Nyayalayas @ Rs. 3.20 lakhs per annum per Gram Nyayalaya for the first three years. I would request the Government of West Bengal to take steps for establishment of Gram Nyayalayas. I would like to mention here that we have received representations from some of the States that the grant being provided for the Gram Nyayalayas is not adequate. We are working on these representations also for increasing the grants from establishment of the Gram Nyayalayas and will make an announcement shortly in this regard.

In our pursuit to bring justice to the people of West Bengal within their reach, the Central Cabinet had taken a decision in June, 2006 for setting up of a Bench of the Calcutta High Court at Jalpaiguri. The infractural facilities for setting up of the Bench need to be provided by the State Government. We have been reminding the West Bengal Government in this regard. I would request them to pay attention to this project and provide infrastructural facilities at Jalpaiguri to the satisfaction of the Chief Justice which will go a long way in mitigating the miseries of the litigants.

A Mission Mode Programme was launched on 26th January, 2010 titled “National Mission for Delivery of Justice and Legal Reforms for the Under Trials” with the aim to reduce the number of under-trial cases and to ease congestion in jails. This programme was undertaken for considering the cases of 2/3rd of the undertrials estimated to be about 3 lakhs in January, 2010, who were languishing in jails. I am happy to announce that the results of this drive was extremely successful with cases of over 7 lakh prisoners having being decided by the end of May, 2011 of which over 1.72 lakhs were from West Bengal. I hope this must have brought relief to as many families also.

I am happy that the Calcutta High Court Bar Association is taking active part in the activities of the Calcutta High Court. I hope they would continue to work for the betterment of the society by getting them early justice through Courts which would also help in reduction of the pendency in the Courts for which a campaign has been launched today. On the occasion of the 150th year of the Calcutta High Court, I would like to convey my sincere thanks to the Calcutta Bar Association for organising this function.”

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Campaign Mode Approach to Reduce Pendency in Courts

Following is the text of the speech of Dr. M. Veerappa Moily, Minister of Law & Justice  IN Calcutta on the campaign mode approach to reduce pendency in couts:

Jawaharlal Nehru, on the afternoon of March 19, 1955, while addressing the members of the Punjab High Court at the inauguration of its new building in Chandigarh, said, “Justice in India should be simple, speedy and cheap.”  He remarked that litigation was a disease and it could not be a good thing to allow any disease to spread an then go out in search of doctors.

At a Joint Conference  of Chief Ministers and Chief Justices held on August 16, 2009, the Hon’ble Prime Minister observed :

Judicial review has breached unprecedented frontiers.  Yet, amidst such strengths, brilliance and dynamism, India has to suffer the scourge of the world’s largest backlog of cases and timelines, which generate surprise globally and concern at home.  The expeditious elimination of this scourge is the biggest challenge for such conferences and should constitute the highest priority for all of us.

The judiciary realised that one of the drawbacks of the justice delivery system was denial to the common man, of access to justice.  This truism was recognised by the judiciary and concern of the Courts in that behalf was reflected in Bihar Legal Support Society vs Chief Justice of India (1986 (4) SCC 767) where the Court said:

….that the weaker section of Indian Humanity have been deprived of justice for long, long years: they have had no access to justice on account of their poverty, ignorance and illiteracy.  They are not aware of the rights and benefits conferred upon them by the Constitution and the law.  On account o their socially and economically disadvantageous position they lack the capacity to assert their rights and they do not have the material resources with which to enforce their social and economic entitlements and combat exploitation and injustice.

To quote from the figures compiled by the Supreme court, a total of 42,17,903 number of cases were pending in the High Courts as on 30th September, 2010 comprising of 33,36,256 Civil Cases and 8,81,647 Criminal cases.   In the Subordinate Courts, this figure was 2,79,53,070 comprising 78,56,456 Civil Cases and 2,00,96,614 Criminal cases.  It is estimated that in some of the subordinate courts over 30-40 percent of arrears relate to petty cases and out of the total pending cases, 9% of the cases were pending for 10 years and above and 24% cases were pending for 5-10 years in both, High Court and Subordinate Courts.  Alarmed with the increasing number of pending cases, a Vision Statement was adopted in the National Consultation on Strengthening Judicary towards Reducing Pendency and Delays held on October 24-25, 2009.  The Statement contained a roadmap for improving justice delivery and legal reforms and steps to reduce pendency in Courts from the present 15 years to 3 years by 2012.  In the backdrop of this, a campaign mode approach is being launched from today the 1st July, 2011 till 31st December, 2011 to reduce pendency.    It is also the endeavour to dispose of long pending cases pertaining to senior citizens, minors, disabled and other marginalized group.

Though the target may not be reached in 2012, ongoing efforts to reduce pendency need to be given greater momentum, in view of the various measures initiated by the Government in recent times and the substantial funding made available.

Government had, in 2007 envisaged a programme under    e-Courts Project for computerization of 12000 Courts with a cost of         Rs. 441.8 Crores.  However, with the pace of time, the Project cost has also increased and the Government has now approved a revised cost of Rs. 935 Crores for the computerization of 12000 Courts by March, 2012 and another 2249 Courts by March, 2014.  West Bengal is one of the high performing States wherein we are aiming to complete the connectivity by July-August this year, ahead of the targeted time.  Citizen centric services will be available through this project and a national arrears grid will come into being.

The Law Commission of India in their 230th Report have taken a serious note of the ever mounting arrears in the Courts and have suggested the following measures to reverse the trend:

(i)   Grant of adjournments must be guided strictly by the provisions of Order 17 of the Civil Procedure Code;

(ii)   Many cases are filed on similar points and one judgment can decide a large number of cases.  Such cases should be clubbed with the help of technology and used to dispose other such cases on a priority basis;  this will substantially reduce the arrears;

 (iii)  Judges must deliver judgments within a reasonable time and in that matter, the guidelines given by the apex court in the case of Anil Rai v. State of Bihar, (2001) 7 SCC 318 must be scrupulously observed, both in civil and criminal cases;

 (iv) Considering the staggering arrears, vacations in the higher judiciary must be curtailed by at least 10 to 15 days and the court working hours should be extended by at least half-an-hour;

 (v)  Lawyers must curtail prolix and repetitive arguments and should supplement it by written notes.  The length of the oral argument in any case should not exceed one hour and thirty minutes, unless the case involved complicated questions of law or interpretation of Constitution;

 (vi)  Judgments must be clear and decisive and free from ambiguity and should not generate further litigation.  Lord Macaulay’s following statement made 150 years ago must be a guiding factor:

 “Our principle is simply this –

Uniformity when you can have it,

Diversity when you must have it,

In all cases, Certainty

 (vii)  Lawyers must not resort to strike under any circumstances and must follow the decision of the Constitution Bench of the Supreme Court in the case of Harish Uppal (Ex-Capt.) v. Union of India reported in (2003) 2 SCC 45;

 (viii)    Judges and Lawyers, both have to change their mindsets.  Unles the mental barriers to reforms are mellowed, all doses of external remedies are bound to fail.

One must remember Gandhiji’s words “If you want to change anything, you be the change.

 During the campaign for disposal of cases, following steps need to be taken:

(a)  All Session Trials are required to be dealt with by Fast Track Courts;

(b)  All cases where the offences are compoundable are required to be disposed of on priority basis;

(c)  All Magistrates need to be directed to dispose of the cases under Motor Vehicles Act on priority basis;

(d)  A special time-bound drive to be donducted to sispose of Summary Trials under Chapter XXI of Cr.PC by the District Judges and Judicial Magistrates;

(e)  District Judges and Chief Judicial Magistrates to take up applications for withdrawal of prosecution u/s 321 of Cr.PC on priority basis;

(f)  In Courts where criminal appeals have also been given in the cases of criminal revisions pending in any court in excess of twenty five in number to be withdrawn and transferred to courts where such appeals are below twenty five in numbers.

(g) Frame Case Flow Management Rules for the Subordinate Courts.  The Rules also provide to put the cases into three different tracks, specifying time limit for each track;

Some of the High Courts have already drawn up their plans for taking up the mission mode approach for reduction in the pendency.   Their plan consists of the following measures:

(a)   Instructed Magistrates to hold Courts in Jails for disposal of petty cases involving undertrial prisoners;

(b)   Constitute Committees at District level involving District Judge, Collector, Superintendents of Police and Jails etc. for discussing the issues relating to criminal justice system;

(c)   Notify case flow management rules;

(d)   Presiding Officers of Magisterial Courts are ordered to hold Courts on Saturdays, alternatively to dispose of petty cases under the Motor Vehicle Act, NI Act, Municipal laws and other such acts.;

(e)   District & Sessions Judges have been directed to rationalize the work load in different Courts;

 (f)     Set up Morning/Evening/Shift/Holiday Courts;

 (g)   Organise Mega Lok Adalats in each District and in the High Court during the financial year 2011-12;

 (h)   Incorporate new Rules for providing faster service of process, hearing on day to day basis, automatic termination of stay after the expiry of two months in cases seeking challenge/stay/transfer the lower court proceedings.

To facilitate the momentum for reduction in pendency, Government of India has made substantial funding.  Rs. 5000 Crores have been awarded by the 13th Finance Commission for utilisation during the next 5 years for improving the justice delivery system through setting up of morning/evening/shift courts, Lok Adalats, Mediation, etc.   Funds for infrastructural development have increased five fold in the current Budget to Rs. 500 Crores.

The Gram Nyayalayas Act, 2008 was enacted by the Government on 2nd October, 2009 to provide for establishment of Gram Nyayalayas at the grass root level to provide access to justice at the doorsteps of the citizens with a view to ensure that opportunities for securing justice are not denied to any citizen by reason of social, economic or other disabilities.  A sum of Rs. 150 Crores has been provided in the current financial year for starting the Gram Nyayalayas.  States like Madhya Pradesh, Maharashtra, Rajasthan and Orissa have already notified and operationalised them.  The Gram Nyayalayas have been envisages to grant relief to the litigants within six months of the registration of cases.

While Government of India is providing sufficient funds for speedy disposal of cases and reduction in the pendency, unless the vacancies are filled up, both in the Higher and Subordinate Judiciary, all efforts being made would not be able to bring about desired fruits.  I would, therefore, urge the Chief Justices to embark upon a plan to fill up as many vacancies in the High Court and the Subordinate Courts during this campaign mode approach for reduction in pendency.

I would like this opportunity to thank the Chief Justices and the State Governments in their approach for the Mis sion Mode Programme for Delivery of Justice and Legal Reforms which commenced on 26th January, 2010 with a view to reduce congestion in jails.   The leadership rendered by all the Chief Justices for realizing the goal and to take further steps in this regard, resulted in deciding cases of over 7.10 lakhs undertrials till 31.5.2011.  This must have brought cheers to as many families also.  I hope that the interest and the leadership shown for the cases of the undertrials by the Chief Justices and the State Governments would be carried forward during this campaign for reduction of overall pendency in the Courts which would help in mitigating the miseries of the litigants and their families.”

MORE EQUAL THAN MOST

Indira Gandhi

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Many Indian politicians still like authoritarian democracy

ASHOK MITRA IN THE TELEGRAPH

A dose of cynicism is in order. The corporate sector already occupies all the commanding heights in the polity. Hullabaloo over the contents of the lok pal bill cannot but be only a divertissement: let controversy rage over the modalities of fighting corruption in high places, the interregnum will provide enough breathing space to plan new strategies to cover up shenanigans-by-courtesy-of-neo-liberalism. Most of the Supreme Court judges smitten by the activism bug are also bound to retire meanwhile. Once the judicial passion gets spent, anti-graft crusaders too will return to their cloister. Calm, too, will automatically return to the nation’s capital which is the centre of the Indian universe.

The debate on the modalities of tackling corruption in high places has nonetheless yielded one useful by-product: we now have a clue to how some minds that matter are working. A major issue apparently dividing the government and the motley crowd of so-styled civil society warriors is whether the prime minister should or should not come under the purview of the lok pal’s surveillance. Prima facie, there is no reason why he/she should not. He/she may be primus inter pares, but is still a minister; if other ministers come under the lok pal’s scanner, the prime minister too ought to. The government and the party that heads the government coalition are not willing to go along; they abhor the idea of treating the prime minister on a par with other ministers. As points and counterpoints fly across the television channels, the heavyweight of a cabinet minister who has emerged as the principal spokesperson on behalf of the government shot a rhetorical question: is there any country in the world where its prime minister has ever been charged with corruption? The minister was confident there was none. It is therefore, he concluded, ridiculous — and demeaning to the country by implication — to introduce any legal provision to prosecute our prime minister on grounds of corruption; the lok pal must not be allowed to embark on a fishing expedition to find out whether the prime minister has or has not deviated, in the conduct of public affairs, from the straight and narrow path.

Rhetoric deserves counter-rhetoric. Can the official super spokesperson cite the instance of any other country where a prime minister admits that he had been presiding over a bunch of ministers some of whom were corrupt to the core but he/she will not take responsibility for their misdeeds and feels no reason to resign? Do not certain other facts stare at our face too? In Japan, it is standard political practice for the prime minister to seek forgiveness of the people for any major or minor dereliction of duty on the part of the government or any individual minister and vacate office without further ado. In Britain, Harold Macmillan stepped down as prime minister owning responsibility for some sexual dalliance on the part of one of his junior colleagues. Once the convention is firmly established that under circumstances which embarrass the regime the prime minister resigns, no occasion arises to prosecute him/ her. The person elected president is both head of state and head of government in the United States of America. In not too distant a past, one such president, Richard Nixon, had to resign from his august office on the eve of his impeachment in accordance with procedures spelled in the nation’s constitution.

Caesar’s spouse may be above suspicion, but Caesar himself is not in most parts of what is known as the democratic world. The obtuseness embedded in the argument that the prime minister is no ordinary mortal, therefore, provides food for some thought. Democracy means freedom of choice. Is that freedom being availed of to contribute a new definition of democracy itself? Perhaps the intent is to drop the hint that if there could be such a phenomenon as popular democracy or guided democracy, why not accept the notion of authoritarian or totalitarian — or, for the matter, dynastic — as well; others might abide the question, but the prime minister — conceivably belonging to only one particular family — would be free, the ordinary laws of the land would not apply to him/her. Since, exception supposedly proves the rule, the exceptional treatment of the office and person of prime minister would confirm India’s standing as the world’s largest democracy.

Much of this, though, is not original thought and has a distinguished antecedent. Let there be a flashback to the year 1975. Indira Gandhi was peeved no end by that silly judgment of the up-to-no-good Allahabad High Court holding her guilty of electoral malpractices. The judgment, how annoying, imperilled her tenure as prime minister. Poor she; in the event, declaring an Emergency alongside suspension of the fundamental rights granted by the Constitution was the only alternative left to her. It is however an ill wind that does not yield somebody at least some good. The congenial ambience of the Emergency made it easy for Indira Gandhi to ram through a constitutional amendment. The Constitution (39th Amendment) Act of 1975 introduced a special proviso concerning the election to Parliament of the prime minister and the Speaker of the Lok Sabha; no court in the country was permitted to question, on any ground whatsoever, the validity of the election of these two eminences. The amendment was made retroactive, thereby rendering the Allahabad High Court’s verdict on Indira Gandhi’s election ultra vires of the Constitution; it was like waving a magic wand. Another point is also worth noticing. An authoritarian approach to things does not amount to abandoning a sense of aesthetics: it was a bit inelegant to treat the prime minister as a sui generis case; to keep her/him company, the Speaker of the Lok Sabha was tagged on to constitute the duet the validity of whose election to Parliament would be beyond the reach of the legal process.

Indira Gandhi’s experiment with totalitarian democracy met a sorry end in 1977. The Janata regime that followed could at least take time out from its unending internal squabbles to pilot the Constitution (44th Amendment) Act of 1978 which got rid of the 39th amendment; the prime minister (and the Speaker of the Lok Sabha) re-entered the earth and were once more at par with one billion or thereabouts of other citizens who make up the nation.

It is given to human beings to learn from experience. Since democracy grants freedom of choice, it is equally the privilege of human beings, or any collection of human beings, not to learn from experience. Maybe decision-makers in the country’s largest political party have not ever been able to forsake their passion for authoritarian democracy. Was it not sheer bliss to be ruling during those two heavenly years between 1975 and 1977? The wishes and whimsies of an urchin from you-know-which family had the imprimatur of law, thousands of recalcitrant and potentially recalcitrant elements could be locked up without trial in prison, encounter deaths could take care of cheeky, restless youth, the wretched inmates of ramshackle slums besmirching the texture of metropolitan beauty could be loaded like cattle in trucks and dumped in a wilderness fifty or a hundred kilometres away.

Possibly the memory of that paradise still haunts and the blueprint of a new edition of authoritarian democracy is firmly etched on the subconscious. The occasion of the ersatz debate over the nitty-gritty of the lok pal bill is being put to excellent use. It is a sort of a preview of the re-touched dream: the prime minister is no ordinary citizen, she/he is the be-all and end-all of Indian democracy, not just holier than holy, but the holiest; how can anyone even dare to suggest that he/she should be the target of dirty investigation for this or that piffling alleged misdemeanour while in the pursuit of official duties?

If the incumbent prime minister assumes that such solicitude is to protect his dignity and honour, he was born yesterday

http://www.telegraphindia.com/1110701/jsp/opinion/story_14163144.jsp

Lokpal bill and the Prime Minister

A cropped Manmohan Singh version of File:IBSA-...

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ANIL DIVAN IN THE HINDU

When the basic structure of the Constitution denies the Prime Minister immunity from prosecution, how could it be argued that the office should not be brought under the scrutiny of the Lokpal?

The Indian citizenry is up in arms against corruption at the highest levels of government. Anna Hazare‘s movement has caught the people’s imagination. The former President, A.P.J. Abdul Kalam, has pitched in and called upon the youth to start a mass movement against corruption under the banner “What can I give?” (The Hindu, June 27, 2011).

According to a CRISIL report (The Hindu, June 29, 2011), inflation has caused the Indian public to be squeezed to the extent of Rs. 2.3 lakh crores. According to the Comptroller and Auditor General of India (CAG), the estimate of loss to the exchequer owing to the 2G spectrum scam is Rs. 1.22 lakh crores. That corruption is a disease consuming the body politic is a fear expressed by dignitaries in India over many years. As far back as 1979, Justice V.R. Krishna Iyer observed in a judgment in his inimitable style: “Fearless investigation is a ‘sine qua non’ of exposure of delinquent ‘greats’ and if the investigative agencies tremble to probe or make public the felonies of high office, white-collar offenders in the peaks may be unruffled by the law. An independent investigative agency to be set in motion by any responsible citizen is a desideratum.”

Mark the words: fearless investigation by an independent investigative agency against delinquent ‘greats’. A good Lokpal bill has to be nothing less.

It is in this context that this article addresses the issue of whether the Prime Minister should be brought under the ambit of an Ombudsman (Lokpal) and be subject to its scrutiny. It is important to observe that in most of the Lokpal bills, including the 2010 government draft (except the 1985 version), the Prime Minister is within the ambit of the Lokpal.

The Constitution

Under the Indian Constitution there is no provision to give immunity to the Prime Minister, Chief Ministers or Ministers. Under Article 361, immunity from criminal proceedings is conferred on the President and the Governor (formerly the Rajpramukh) only “during his term of office.”

So what is the principle behind such immunity being given? The line is clearly drawn. Constitutional heads who do not directly exercise executive powers are given immunity as heads of state. Active politicians such as Ministers, who cannot remain aloof from the hurly-burly of electoral and party politics, ethical or unethical, honest or corrupt, are not given any immunity. They are subject to penal laws and criminal liability.

The basic structure of the Constitution clearly denies immunity to the Prime Minister.

Internal Emergency

During the period of the Internal Emergency (1975-77), Indira Gandhi enjoyed dictatorial powers. She detained without trial prominent Opposition leaders and was supported by a captive and rump Parliament.

The Constitution (Fortieth Amendment) Bill was moved in, and passed by, the Rajya Sabha in August 1975 and later it was to go before the Lok Sabha. The Bill was blacked out from the media and hence very few people knew about it. It never became law because it was not moved in the Lok Sabha.

The Bill sought to amend Article 361 by substituting sub-clause (2) thus: “(2) No criminal proceedings whatsoever, against or concerning a person who is or has been the President or the Prime Minister or the Governor of a State, shall lie in any court, or shall be instituted or continued in any court in respect of any act done by him, whether before he entered upon his office or during his term of office as President or Prime Minister or Governor of a State, as the case may be, and no process whatsoever including process for arrest or imprisonment shall issue from any court against such person in respect of any such act.”

The attempt to give life-time immunity from criminal proceedings for acts done during and even prior to assuming office, of the President, the Governor and additionally the Prime Minister, did not materialise.

Foreign jurisdictions

In Japan, Prime Minister Kakuei Tanaka (July 1972 to December 1974) was found guilty of bribery and sentenced. In Israel, Prime Minister Ehud Olmert was indicted in corruption scandals in August 2009. In Italy, Prime Minister Silvio Berlusconi enacted, through a pliant legislature, a law by which he shielded himself from prosecution. The Italian Constitutional Court recently invalidated crucial parts of that law, which may result in his trial being revived.

The following are some of the main arguments against bringing the Prime Minister under the Lokpal’s scrutiny. The first one runs thus: “The simple answer is, if the Prime Minister is covered under ordinary law (the Prevention of Corruption Act), you don’t need him covered under Lokpal.” This is a view that has been attributed to the former Chief Justice of India, J.S. Verma (Hindustan Times, June 27, 2011). Any misconduct by a Prime Minister can be investigated by the Central Bureau of Investigation: this view is that of Chief Minister Jayalalithaa (The Hindu, June 28, 2011). This objection concedes the principle that the Prime Minister is not immune from criminal liability and can be investigated, but argues and assumes that the Prevention of Corruption Act and the CBI present effective existing alternative procedures. Nothing could be farther from the truth and the ground realities.

What is the ground reality? First, the CBI, the premier anti-corruption investigative agency, is under the Department of Personnel and Training, which is controlled by the Prime Minister’s Office (PMO). Secondly, the career prospects of CBI officers and other personnel are dependent on the political executive, and all officers are subject to transfer except the Director. Thus, the investigative arm is controlled by the ‘political suspects’ themselves. Thirdly, the Single Directive, a secret administrative directive that was invalidated by the Supreme Court in the Jain hawala case in 1997 (Vineet Narain v. Union of India) has been legislatively revived. Consequently, under Section 6A of the Delhi Special Police Establishment Act, the CBI is disabled from starting an inquiry or investigation against Joint Secretary or higher level bureaucrats without the Central government’s prior approval. Therefore, the Prevention of Corruption Act is a non-starter against Ministers and high-level bureaucrats who may act in concert. It is imperative that the CBI’s anti-corruption wing be brought under the Lokpal and not under the PMO. This alone would meet the test of an independent and fearless investigative agency as enunciated by Justice Krishna Iyer.

Secondly, it is argued that if the Prime Minister is within its ambit, the Lokpal could be used by foreign powers to destabilise the government. Today, the checks on the executive government are the higher judiciary, which has actively intervened in the 2G spectrum scam and other scams; the CAG, whose reports against the functioning of the telecommunications sector triggered investigations into scams; the Election Commission headed by the Chief Election Commissioner, which conducted elections in West Bengal in the most efficient and orderly fashion. All these authorities could be undermined by a foreign power. Why should the Lokpal alone be the target of a foreign power? Why not the intelligence and defence services? Why not leaks from Cabinet Ministers and their offices — bugged or not?

Thirdly, it is argued that bringing the Prime Minister under the Lokpal’s scrutiny would mean a parallel government being put in place. This objection is disingenuous. Do the Supreme Court and the higher judiciary constitute a parallel government? Is the CAG a parallel government? Is the CEC a parallel government? Is the CBI a parallel government? The answer is clear. These constitute checks and restraints on the political executive and the administration so that public funds are not misappropriated and constitutional democracy and citizen rights are not subverted. The Lokpal will be under the Constitution and subject to judicial review, and it is imperative that the anti-corruption wing of the CBI be brought under the Lokpal. There is no question of any parallel government. The Lokpal will be only a check on the corrupt activities of the Executive. If all checks and balances are to be regarded as the marks of a parallel government and therefore abolished, it will be a recipe for dictatorship.

William Shakespeare wrote: “There is a tide in the affairs of men, which, taken at the flood, leads on to fortune; Omitted, all the voyage of their life is bound in shallows and in miseries.” There is a tide in the affairs of this country and there is a great opportunity to promote good governance through a powerful and independent Ombudsman. India’s economic reforms, for which the Prime Minister deserves approbation, should not be derailed at the altar of scams and corruption. Will his leadership ride on the tide of fortune and take the country forward to greater heights?

(Anil Divan is a Senior Advocate, and president of the Bar Association of India. E-mail: abdsad@airtelmail.in)

http://www.thehindu.com/opinion/lead/article2148073.ece

Justice V.R. Krishna Iyer, former Judge of the Supreme Court, writes in the context of the article by Anil Divan headlined ‘Lokpal bill and the Prime Minister,’ published on July 1:

Lord Acton, the great British jurist, rightly said: “Power tends to corrupt and absolute power corrupts absolutely.” The Prime Minister is the custodian of the considerable state power. He has to be under public scrutiny.

Therefore I have clearly expressed the view that if power is to be subject to public investigation and scrutiny, he has to be within the ambit of the Lokpal Bill and cannot be exempted from it. Likewise, our judiciary is the watchdog of the Executive. People look up to the judges to ensure that the Executive does not misbehave. The judiciary must be accessible to every citizen who has a grievance against the robed brethren. When Parliament resorts to misconduct and violates the Constitution, people appeal to the judges for a remedy. In this view, the judges are sublime and must have control over the Executive and the parliamentary process. Both these instruments are under the Lokpal’s proposed jurisdiction. There is no case of exemption of these authorities. I am sorry that some high Chief Justices have expressed a different view. I disagree. The greatest menace before India today is that the judiciary itself is corrupt and no action is being taken. There must be a militant, active nationwide movement against corruption. A powerful instrument must be set up for this if the confidence of the people is to be preserved.

The judiciary and the Prime Minister shall be under the Lokpal. The Lokpal itself must be of the highest order and should be plural in number. The Prime Minister and the judiciary shall be like Caesar’s wife: above suspicion.

Manmohan ignored ruling on CAG’s rights

Manmohan Singh, current prime minister of India.

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THE HINDU

In 2005, Madras HC said watchdog could brief media

In questioning the propriety and legality of the Comptroller and Auditor-General holding a news conference on its 2G report, Prime Minister Manmohan Singh ignored not only past precedents but also a court ruling upholding the CAG’s right to do so. In his interaction with a group of editors on Wednesday, Dr. Singh criticised the press meet held by the CAG in early January after the report on 2G spectrum irregularities was tabled in Parliament. He said: “It [has] never been in the past that the CAG has held a press conference. Never in the past has the CAG decided to comment on a policy issue. It should limit the office to the role defined in the Constitution.”

But a 2005 judgment of the Madras High Court, upholding the right of CAG and its functionaries to brief the media on the contents of reports prepared by them and presented before the relevant Legislature, leaves no ambiguity on this count. In P.G. Narayanan vs CAG (W.P.No.23408 of 2004 [2005] RD-TN 714), the High Court dismissed the contention of the petitioner, an MLA belonging to the ruling AIADMK, that the Tamil Nadu Accountant-General had ‘misused his authority’ by going to press on an audit report pertaining to the State. The court noted that the CAG had stated in his affidavit “that specific instructions have been given by him to all the Accountant-Generals (Audit) of the States to explain the salient features of the Audit Report to the Press to make the public know about the same after the Audit Report is placed before the respective Legislative Assemblies.”

The veiled criticism by the Prime Minister of the institution of the CAG reflects the unease within the government over the recent CAG reports raising questions of serious irregularities in several deals. The example of the CAG report on the telecom spectrum policy, which gave different estimates for the notional loss to the exchequer on the 2G front, illustrates the point best.

Besides questioning the correctness of the CAG in interacting with the media, Dr. Singh raised two other issues related to the institution. The Prime Minister said the CAG had no jurisdiction to examine issues on policy matters and also contended that the supreme audit institution of the country should take into account the ‘uncertain’ environment under which the government is compelled to take decisions.

“We live in a world of uncertainty and ex-post whether it is the Comptroller and Auditor-General, whether it is a parliamentary committee then they analyse post facto. They have a lot more facts which were not available to those who took the decision … We take decisions in a world of uncertainty and that’s the perspective I think Parliament, our CAG and our media must adopt if this nation is to move forward.” CAG sources declined to respond to the Prime Minister’s comments.

But speaking to The Hindu in the past, they rejected the allegation that the 2G report went beyond their mandate in any way.