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RECOMMENDATIONS/OBSERVATIONS OF PARLIAMENTARY STANDING COMMITTEE ON PERSONNEL, PUBLIC GRIEVANCES, LAW AND JUSTICE ON THE JUDICIAL STANDARDS AND ACCOUNTABILITY BILL, 2010

Posted in JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on August 31, 2011

1. The Committee takes note of the views placed before it by the witnesses. The Committee appreciates that this Bill provides statutory backup to the Judicial Standards hitherto having sanction of the Restatement of Values as adopted in the Conference of Chief Justices in 1999. The Committee also appreciates that the Bill incorporates some new parameters essential to ensure judicial accountability. The Committee further observes that the Government should also consider the concerns of the witnesses raised before it. The Committee recommends that Government should remain alert and willing to update the judicial standards as and when required in future. [Para 12.2]

 2. In this context, the Committee feels that there is a need to bring such behaviour of judges within the purview of the judicial standards. The Committee feels that Clause 3(2)(f) should be expanded by specifically mentioning that judges should restrain themselves from making unwarranted comments against other constitutional/statutory bodies/institutions/ persons in open Court while hearing cases . [Para 12.5]

 3. The Committee also observed that the clause 3(2)b of the Bill provides that no judge shall have close association with individual members of the Bar. The Committee is of the view that the expression ‘close association’ is very vague in nature and it may invite varying interpretations. Accordingly, the Committee recommends that the said words may be replaced by the expression ‘close social interactions’ to avoid unwarranted ambiguity. [Para 12.6]

4. While deliberating upon the Bill, the Committee felt that that the proviso (i) of the clause 3(2)(f) needs to bring out more clearly and distinctly what is meant by the term “individual capacity” as the line of distinction between a judge’s official capacity and individual capacity is quite thin. Likewise, the Members were of the view that the expressions ‘private forum’ and ‘academic forum’ may be defined to bring more clarity in the meaning implied in these expressions. [Para 12.7]

 5. The Committee, recommends that the proviso (i) of the clause 3 (2)(f) may be re done so as to provide more clearly the implications of expressions like “individual capacity”, “private forum”, “academic forum” used therein. [Para 12.8]

 6. The Committee endorses that the Bill makes the declaration of assets a statutory responsibility for the judges. The Committee also acknowledges that the clause is in consonance with the people’s “right to know” and would facilitate greater transparency in judiciary. The Committee taking note of the suggestion that has come before it is of the view that the Government should include a mechanism to ensure that scrutiny of the declaration of assets is possible and implementable. Such a mechanism may involve any designated executive agency and can be made to report to either the Complaints Scrutiny Panel or the Oversight Committee. [Para 13.1]

7. The explanation of Department of Justice is not acceptable to the Committee. The Committee is of the opinion that Parliament’s responsibility as a deciding authority in the impeachment process does not prohibit it having a role in the National Judicial Oversight Committee which is the very first stage where the fate of a complaint against a judge is to be decided. Further, in its opinion, the screening level is as important as the final stage, when impeachment process commences. The Committee, accordingly, recommends amendment of clause 18 of the Bill so as to enable the Speaker of the Lok Sabha and the Chairman of the Rajya Sabha to nominate, respectively, one Member of Parliament from each House, having legal expertise and high standing in the legal arena to the Oversight Committee. [Para 14.5]

8. Having gone through the material placed before it, the views expressed by the experts and in-house discussion amongst the Members, the Committee strongly recommends for a broad based and independent National Judicial Oversight Committee. The Committee insists that all the three organs of the Government namely executive, judiciary and legislature have to be represented in that Committee. The Committee hopes that such a balanced body would ensure the independent and transparent functioning of the Committee and also brace people’s faith in redressal of complaints against the erring judges. The Committee, reiterates, that the expansion suggested by it in para 14.5 above should be read contextually into this paragraph also. [Para 15.3]

9. The Committee notes that under the present Bill, the complaint against a judge would be scrutinized by his colleagues only. Further, the CSP forms the pivot of the mechanism proposed in the Bill as it is only on the report on the CSP, the Oversight Committee will proceed or not proceed with the complaint. Also, the power to declare a complaint as frivolous or vexatious are vested in this panel. [Para 16.3]

 10. The Committee feels that it would not be prudent to reserve the membership of CSP only for member of the judiciary merely in name of preserving judicial independence. Rather the principal of judicial independence needs to be balanced with the ideal of judicial accountability. The Committee, therefore, recommends that the Government should include the non-judicial members in the CSP so as to enhance the credibility of such an important body in the eyes of the people. The Committee further recommends to Government to consider expansion of the CSP in the same manner as suggested by it in respect of the Oversight Committee in para 14.5 above. [Para 16.4]

 11. Further, Clause 11(2) of the Bill states that the Scrutiny panel in every High Court shall consist of a former Chief Justice of that High Court and two Judges of that High Court. The Committee feels that such a provision in the Bill undermines the aspect of impartiality in the inquiry process as allegations of corruption against a judge would be scrutinized by his/her own colleagues. The Committee is of the view that in place of two judges of that High Court, the CSP  should include judges from another High Court so as to ensure the element of impartiality in the inquiry process. The Committee therefore recommends that the expression “two judges of that High Court” should be replaced by “two judges of another High Court.” [Para 16.5]

 12. The Committee also takes note of Clauses 9 and 19 which provide for reference of a complaint by the Oversight Committee to the Complaint Scrutiny Panel. The Committee feels that both these clauses deal with a common situation and therefore it would be appropriate to review the relevance of Clause 9 in its existing format under chapter IV for the sake of better coherence. [Para 16.6]

 13. The Committee also noted that the Bill does not provide for in camera proceedings in investigation under CSP. The Committee feels that making such arrangements is necessary to protect the judge concerned from unwarranted defamation at this initial stage of investigation. In view of this, the Committee recommends that the word “in camera” should be added appropriately either in Clause 12 or 14 of the Bill to ensure the element of the confidentiality in the proceedings of the CSP. [Para 16.7]

 14. The Committee is unhappy in so for as the provisions of the Bill relating to the constitution and composition of the Investigation Committee are concerned. The Committee is constrained to note that the Bill provides no guidelines for the Oversight Committee in the matter of the constitution of the Investigation Committee. The Committee impresses upon the Government to indicate the constitution of the Investigation Committee in the Bill itself for the sake of objectivity and uniformity and to prevent uncertainty or the exercise of unnecessary discretion. [Para 17.2]

15. The Committee, while deliberating upon the Bill, felt that the scope of this clause should be widened to ensure the accountability of the media in relation to the divulgence of the information while complaints are under investigation. The Committee apprehends that besides the persons mentioned in the clause, media may also be a source of the divulgence of information at various stages of investigation/inquiry. The Committee, therefore, recommends that an explanation may be added suitably to ensure that the prohibition prescribed applies to the Media also. [Para 17.4]

 16. The Committee endorses the rationale of making a provision for punishment for making frivolous or vexatious complaints. The Committee, however, expresses its reservation over the prescribed quantum of punishment both in terms of imprisonment which is up to 5 years and fine which is up to 5 lakh rupees. The severe punishment prescribed in the Bill may deter the prospective complainants from coming forward and defeat the very rationale of the Bill. In view of this, the Committee recommends that Government should substantially dilute the quantum of the punishment so as not to discourage people from taking initiatives against the misbehaviour of a judge. In any case it should not exceed the punishment provided under the Contempt of Court Act. The Government may also consider specifically providing in the Bill a proviso to protect those complainants from punishment/penalty who for some genuine reasons fail to prove their complaints. The Committee, accordingly, recommends that the Bill should specifically provide for protection in case of complaints made ‘in good faith’ in line with the defence of good faith available under the Indian Penal Code. [Para 18.8]

17. Clause 56 of the Bill provides that appeal from a person convicted on a trial held under the clause 53(1) shall be directly to the Supreme Court. The Committee while discussing this clause felt that the existing provisions of the Bill were curtailing the right of challenge of the complainant to one only. The Committee feels that the complainant’s normal right of judicial review on jurisdictional grounds both under article 226 of the Indian Constitution and under the apex Court judgement in Chandra Kumar vs Union of India and others is not intended to be circumscribed or eliminated, as indeed it cannot be by a mere Act of Parliament. Hence, while maintaining appellate recourse to the apex Court as already provided, a small Explanations may suitably clarify the availability of judicial review on jurisdictional grounds apart from the apex Court appeal. [Para 18.9]

18. As far as the present Bill is concerned, the Committee feels that the Bill deserves appreciation for prescribing an elaborate procedure for investigating into individual complaint for misbehavior or incapacity of judges. It also deserves appreciation as it empowers the common man to expose the misbehavior of judges. It is clearly an initiative in the right direction and endeavours to strike a reasonable balance between the demands of accountability and of judicial independence. [Para 20]

19. However, the Committee finds some serious shortcomings in the mechanism proposed in the Bill as pointed out in foregoing paras.Such shortcomings need to be rectified in order to enhance the efficacy of the Bill and to realize the right to know. [Para 21]

 20. The Committee was also of the considered and unanimous opinion that for the various bodies created under this Bill, the Government will see that its appointees are as broad based as possible, including in particular appointment of SC/ST/OBC/minority sections and other weaker sections as feasible.[Para 22]

 21. The Committee also unequivocally feels that the present Bill deals only partially with the problem and the main systematic lacunae remain unaddressed. The most significant lacuna relates to the present method of appointment of judges in the higher judiciary. The Committee is of the considered opinion that the present Bill is bound to end up with limited success because of the piecemeal nature of the proposed legislation, despite the genuineness of its objectives. The issue of judges’ appointment, therefore, needs to be addressed comprehensively, though separately, at the earliest because without it the efficacy of this Bill is seriously impaired. [Para 23]

 22. The Committee is of the view that the Government has to move beyond an incremental approach and give urgent and due thought to a holistic legislation encompassing the appointment process and other related matters to ensure judicial accountability for improved administration of justice. [Para 24]

JUDICIAL ACCOUNTABILITY BILL

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Objection, your honour

THE ROT IN JUDICIARY

THE ROT IN JUDICIARY

SATYA PRAKASH IN THE HINDUSTAN TIMES

As Justice Soumitra Sen of the Calcutta High Court faces impeachment proceedings, the focus is back on corruption in the Indian judiciary, often accused of opposing measures to introduce transparency and accountability in an institution that also judges the works of the Legislature and the

Executive.

During the debate on the resolution in the Rajya Sabha to remove Justice Sen, cutting across party lines, MPs attacked the judiciary for corruption, lack of accountability and the collegium system of appointments, in which the executive hardly has any role to play. No wonder, in his farewell speech, Justice VS Sirpurkar of the Supreme Court described the statements against the judiciary as “indigestible”.

Should the Judiciary be under Lokpal?
Gandhian Anna Hazare, who had been on an indefinite fast since August 16 to demand a strong Lokpal (anti-corruption ombudsman), first demanded that the judiciary be brought under the Lokpal. However, team Anna is now said to have agreed to keep the judiciary out of the purview of the Lokpal if the government simultaneously brings the Judicial Standards and Accountability Bill with strong provisions to deal with judicial corruption.

“Judiciary can’t be covered by this (proposed) Lokpal. It should be covered by another alternative mechanism. We call it the National Judicial Commission,” leader of Opposition in the Rajya Sabha Arun Jaitley said on August 18, during the debate on Sen’s impeachment.
According to former Chief Justice of India PN Bhagwati, bringing the judiciary under the Lokpal would “seriously” affect its independence. Only a “specialised agency” should be entrusted to ensure accountability in the judiciary, whose autonomy could be compromised if brought under the Lokpal, Bhagwati said in an open letter to Hazare.

The Judicial Standards and Accountability Bill, 2010
The UPA government introduced the Judicial Standards and Accountability Bill in the Lok Sabha on December 1, 2010. It proposes to lay down judicial standards, provide for the accountability of judges, and requires them to declare their assets and liabilities, and also that of their spouse and children.

The Bill requires judges to practise universally accepted values of judicial life, such as prohibition on close association with individual members of the Bar who practise in the same court as the judge and allowing family members who are members of the Bar to use the judge’s residence for professional work.

Law Commission Vice Chairman KTS Tulsi terms it a historic step, saying, “For the first time judges’ conduct is being defined by a statute.”
The proposed law is to replace the Judges (Inquiry) Act, 1968 that lays down procedure for removal of the Supreme Court and high court judges. But most importantly, it empowers the common man to file complaints against judges of the high courts and the Supreme Court.

The numbers game
Under the present system provided for in the Judges (Inquiry) Act, 1968, the process for removal of a judge can be initiated through a resolution either by 100 Lok Sabha members or 50 Rajya Sabha members.

After the MPs submit a duly signed motion to the Lok Sabha speaker or Rajya Sabha Chairman, the presiding officer constitutes a three-member committee to probe the allegations and determine if it is a fit case for initiating the impeachment process.

If the panel indicts the judge, the resolution for removal has to be passed by two-thirds majority in both Houses in the same session. The resolution is then sent to the President, who orders removal of the judge. The judge is given an opportunity to defend him/her.

While retaining the reference procedure, the Bill proposes to introduce a complaint procedure to empower the aam admi to file complaints against judges of the high courts and the Supreme Court.

It seeks to establish two authorities — a National Judicial Oversight Committee and a Scrutiny Panel — to investigate complaints against judges.

The Oversight Committee will comprise a retired Chief Justice of India as the chairperson, a judge of the Supreme Court nominated by the sitting Chief Justice of India, a Chief Justice of the High Court, the Attorney General for India, and an eminent person appointed by the President. The scrutiny panel shall comprise a former Chief Justice and two sitting judges of that court.

A Parliamentary panel on Law and justice is said to have recommended inclusion of one MP each from the Lok Sabha and the Rajya Sabha in the Oversight Committee.  Initial complaints will be made to the Oversight Committee, and they will be referred to the scrutiny panel constituted in the Supreme Court and in every High Court.

If the scrutiny panel feels there are sufficient grounds for proceeding against the judge, it shall report on its findings to the Oversight Committee.

When the panel finds that the complaint is frivolous, or that there not sufficient grounds for inquiring against into the complaint, it shall submit a report to the Oversight Committee giving its findings for not proceeding with the complaint.

If the scrutiny panel recommends investigation into a complaint against a judge, the Oversight Committee will constitute an investigation committee to probe into the complaint. The probe panel will comprise three members. It will frame definite charges against the judge and shall communicate the same to the judge, who shall be given an opportunity to present the case, but if the judge chooses not to be heard, the proceedings may be heard without him present.

THE TAINTED GALLERY

THE TAINTED GALLERY

The Removal of a judge

If the Oversight Committee feels that the charges proved against the judge merit his/her removal, it shall request the judge to resign voluntarily, and if the judge fails to do so, it shall advise the president to proceed with the removal of the judge. In such a case, the President shall refer the matter to Parliament, where the rest of the procedure is the same as the one in the case of a motion moved by MPs.

The Bill exempts documents and records of proceedings related to a complaint from the purview of the RTI Act, 2005 but the reports of the investigation committee and the order of the Oversight Committee can be made public. The tainted judges gallery

Why The Collegium stays

Under Article 124(2) and Article 217(1) of the Constitution, a judge of Supreme Court/High Court has to be appointed by the President after “consultation” with the Chief Justice of India (CJI). The government was not bound by the CJI’s recommendation. But in 1993, the Supreme Court introduced the collegium system, taking over primacy in appointments to higher judiciary. A nine-judge Constitution Bench in 1998 ruled that “consultation” must be effective and the chief justice’s opinion shall have primacy. Now India is the only nation in the world where judges appoint judges. In 2008, the Law Commission favoured restoration of pre-1993 position. Despite the UPA government criticising the collegium system, the Bill does not propose to change it.

Post-retirement carrots

During his speech on Sen’s impeachment, Jaitley said: “The desire of a job after retirement is now becoming a serious threat to judicial independence.” Tulsi also described it as a menace. “I agree with Jaitley that judges should not be given post-retirement jobs. If a statute requires a judicial person, a sitting judge can be appointed.”

The way forward

Prevention is better than cure. What is needed is a system that ensures only an honest person becomes a judge. If that happens, the occasion for removal of a judge may not arise.  Also, the collegium system must go, says former law minister Ram Jethmalani. “Setting up a National Judicial Commission is the only solution. The Commission must have the powers to appoint, transfer and remove judges,” he said.

He, however, said: “It should be a broad-based body comprising a government representative, the leader of the opposition and representatives of the judiciary, organised Bar, academic world and the world of social sciences.”

http://www.hindustantimes.com/Objection-your-honour/H1-Article1-738669.aspx

‘Many advantages in Lokpal as a constitutional body’

Posted in ANNA HAZARE CAMPAIGN, CONSTITUTION, DEMOCRACY, FUNDAMENTAL RIGHTS, JAN LOKPAL, PARLIAMENT by NNLRJ INDIA on August 28, 2011
JAN LOKPAL CAMPAIGN

JAN LOKPAL CAMPAIGN

JUSTICE J S VERMA IN THE INDIAN EXPRESS

After the appeal by all political parties to Anna Hazare to end his fast cutting across party lines in the resolution adopted unanimously in the Lok Sabha on August 25, it was reasonable to expect that his core group of advisors would ensure that the impending danger to his health and life would be averted. Justice Santosh Hegde, a member of Anna Hazare’s team, and his many other followers also made such an appeal. A meaningful constructive debate on the status, nature and jurisdiction of the proposed Lokpal requires a conducive atmosphere. Fortunately, Anna Hazare having decided to end his fast, the debate on the contentious issues can now proceed coolly.

One such issue has emerged from Rahul Gandhi’s suggestion in the Lok Sabha that the proposed Lokpal be a constitutional body like the Election Commission or the Comptroller & Auditor General, which has the status of a Judge of Supreme Court. As it is, the contemplated draft Lokpal Bills also envisage the same status for the Lokpal, though in an ordinary legislation. Many persons have sought my view on this issue. Therefore, I consider it worthwhile to put it in public domain for consideration, as part of the democratic process.

What, if any, could be the advantages of the proposed Lokpal being a constitutional body, instead of a mere statutory authority? I would think there are many.

One obvious difference is that any change in the structure or status of a mere statutory authority can be made by a simple majority in the legislature enacting an ordinary legislation, whereas such a change in a constitutional body would require the more onerous route of a constitutional amendment adhering to the principle of federalism. No doubt, the initial creation of the Lokpal as a constitutional body would itself require a constitutional amendment, but in the current mood of the entire nation supporting the crusade against corruption demanding a ‘strong Lokpal’, the environment is conducive for this progressive step. An immediate impact of such a move will be also to satisfy the core demand of Anna Hazare and his team voiced by the entire nation of a ‘strong Lokpal’.

One of the contentious issues relates to the provision for effective Lok Ayuktas in the states. Article 253 of the Constitution does empower Parliament to enact a law for the whole or any part of the territory of India to implement an international treaty or convention: UN Convention against Corruption in this case. This provision overrides the Lists in the Seventh Schedule. A constitutional amendment to create the institution of the Lokpal akin to that of the Election Commission or the CAG will overcome that difficulty by making uniform provision for equally effective Lok Ayukta in the states.

Another relevant factor is that corruption-free governance is a basic human right, more so in a developing country. In India it is a judicially recognised enforceable right derived from guaranteed fundamental rights. The Human Development Report, 1999 on the theme of ‘Crisis of Governance in South Asia’, identified corruption as a major cause for that crisis. A ‘strong Lokpal’ to combat the malaise of corruption is a clarion call of the nation; and it is also a means to address the constitutional promise made in the directive principles of State policy as well as for eradication of poverty-the foremost Millennium Development Goal. The Durban Commitment to Effective Action against Corruption (1999) resolved: “[Corruption] deepens poverty; it debases human rights, it degrades the environment; it derails development and it destroys confidence in democracy and the legitimacy of governments. It debases human dignity.” A constitutional Lokpal, instead of a statutory Lokpal, will be more effective to achieve this objective.

Another incident of a constitutional Lokpal to combat corruption would be to make its function a basic feature of the Constitution, and, therefore, a part of its indestructible basic structure that would be beyond even the amending power under Article 368: Keshavananda Bharti, AIR 1973 SC 1461. Immunity from vagaries of changing political equations in the era of coalitions is another benefit.

Experience has shown that the constitutional bodies are comparatively more effective and immune from political and other extraneous influences than statutory bodies. The need for creation of a ‘strong Lokpal’ providing greater public confidence in its credibility is sufficient reason to prefer its constitutional status.

I may reiterate another aspect which I have been emphasizing for long. The Lokpal, in whatever form, is not a panacea for controlling corruption from all sources. A holistic view is necessary to take measures to cure as well as to prevent this evil in all its aspects. More than one measure is needed to provide complete remedy. A few illustrations would suffice.

Judicial accountability as a facet of judicial independence cannot be achieved without the effective accountability also of the lawyers, which is inadequate under the Advocates Act, 1961 giving the entire control over the conduct of lawyers only to a body of lawyers. Linkage between misconduct of some lawyer and that of the errant judge is common knowledge. Similarly, corruption of other professionals, corporates, media etc. has also to be addressed. Even the field of education is no longer sacrosanct. In short, the long term target of restoration of values as the strongest preventive measure must also be a part of the action plan.

Electoral reforms are necessary to curb the ill-effect of money and muscle power that breed corruption and criminalise politics; and reforms to prevent tax evasion contributing to increase of black money. Constitution Amendment Bill could also simultaneously introduce concurrent constitutional changes essential for a strong anti-corruption regime such as to Articles 105, 194 and 235. The impact of the JMM bribery case needs to be overcome by amending Articles 105 and 194 and codifying the privileges of the members.

Such a comprehensive programme alone can prevent as well as cure the malady; otherwise adding to the existing plethora of legislation on the subject would only be a symptomatic treatment instead of a permanent cure. There is no instant cure for a chronic disease. It requires a sober debate along the correct route.

Enlargement of the debate on the challenge at this juncture also provides the opportunity which must not be lost. Anna Hazare has provided this opportunity for an intensive search for the best method to combat rampant corruption. The churning process to find the best solution has begun. It is time for Hazare to derive satisfaction that his prime purpose is served. He should now leave it to those who are constitutionally entrusted with completing the task with the aid of all of the civil society in our inclusive democracy. I sincerely urge movement in this direction within the constitutional scheme.

The writer is a former Chief Justice of India

http://www.indianexpress.com/news/many-advantages-in-lokpal-as-a-constitutional-body/838149/0

‘Do not insist on forcing us to do something that goes against the oath of our office’

Posted in CONSTITUTION, DEMOCRACY, GOVERNANCE, JAN LOKPAL, JUSTICE by NNLRJ INDIA on August 28, 2011
Raj Ghat, Delhi is a memorial to Mahatma Gandh...

Image via Wikipedia

INDIAN EXPRESS

Vandita Mishra: The Anna Hazare movement has been gaining momentum. In your interaction with MPs, do you see a shared sense of siege because of what is happening right now?

There is near unanimity in the country and amongst parliamentarians that corruption is a national issue. However, there is equal unanimity amongst parliamentarians that the way forward to address corruption is not to call into question the entire constitutional edifice where parliamentary supremacy in the matter of law-making is non-negotiable. In a republic inspired by Mahatma Gandhi, you can’t completely ignore the constitutional means for addressing a national malaise. But you should address corruption in a way consistent with the sanctity of our Constitution.

Coomi Kapoor: Are you saying unconstitutional means are being used? All they are doing is building up public opinion so that parliamentarians take into account the views of the public for this long delayed Bill.

The right to dissent, the right to protest and the right to mobilise opinion is given and it is respected and accepted. This is the reason why Anna and his team are fasting at Ramlila Maidan. In fact, the state is making all arrangements to facilitate the protest. What is an issue is the inclination to put a gun to the government’s head and say this is the Bill that you must legislate into law and you must do so by such and such time irrespective and in derogation of the established procedure of law-making as per the Constitution. How can you, in the name of advancing a laudable national objective, completely negate the permissible means under your Constitution? Now the argument is that we, the people of India, come first in the Constitution, therefore, everything else is subservient to the will of the people. Even with this I have no quarrel. But how do you determine the will of the people? The Constitution ordains that you determine the will of the people after every five years through an election. If you insult the collective judgment of the people of India, you are not advancing democracy. This is my view as a citizen of this country, as a constitutionalist, as a lawyer. The Constitution is intended to be a bulwark against the impulses of transient majorities. Majorities will come and go but the Constitution is supposed to be an enduring edifice.

Dilip Bobb: The general impression is that the government is now employing delaying tactics. How do you convince them that you are with them and not against them?

Let me tell you what this government has done so far: it’s not as if PM made his appeal for the first time last Tuesday–he used every opportunity to say that any peaceful contestation can be the subject of a debate. He has said, let us have a stronger Lokpal Bill based on a larger political consensus. He said he was not against the protest, he was concerned about Anna’s health. But don’t insist on forcing us to do something against the oath of our office. As a duly-elected government, we are voted into power and we want to uphold the Constitution of India. In the parliamentary process of law-making, the Standing Committee is a time-tested process which has produced very good legislation. Today, the atmosphere in the country is such that there is an earnestness to push for Lokpal as an instrument to remove corruption. But to say, do it by tomorrow and discount the Standing Committee procedure, to say that you want a bill to be rammed through in a manner that tomorrow somebody can ask why we have consciously ignored contrary views–that’s where we have issues. The same Constitution that gives me the right to the validity of my views, gives to the other the right to contest those views. But if you insist on deadlines, you are negating the first principle on which this republic is founded. What prevents another group from saying they will sit at Rajpath? If the government starts to buckle on issues of principle, the government will have no right to ask the citizens to comply with the law.

Coomi Kapoor: But the government has buckled, firstly by making Anna Hazare a member of the official drafting committee. Then you said the PM has to be out of the Lokpal and you buckled on that too. There has been a series of retractions from the government which shows that things are not that hard and fast.

There are give and take situations but there has never been a negation of an express constitutional stipulation. There is no bar on the Standing Committee to take into consideration the Jan Lokpal Bill.

Coomi Kapoor: But earlier the government had said it was not possible?

The difference is in what was being said by the Anna camp–that the Standing Committee should discuss “our” Bill. The process of law is that the Cabinet prepares a format which goes to Parliament, and that Bill is presented to the Standing Committee. There is no precedent for anyone insisting that the government takes only their Bill; if the government agrees with their Bill, it can present it to the Standing Committee as its own–there is no difficulty in that. But to tell us to disown our own Bill and to discuss only ‘your’ Bill amounts to law-making being outsourced to people who, as per the Constitution, cannot be the lawmakers. And the day you make a deliberate departure from the expressly stated and incontrovertible stipulation of the Constitution, you violate your oath of office. No government worth its name can consciously negate the fundamental principles of the Constitution.

Maneesh Chhibber: You said you can’t outsource lawmaking to anybody. So what is the National Advisory Committee (NAC) doing?

NAC is doing nothing other than submitting its suggestions. Name one law which NAC has insisted upon, the manner in which Anna Hazare is insisting. I cannot recall NAC ever insisting on anything.

Pradeep Kaushal: Why did you outsource drafting of the Lokpal Bill to the committee where half the members were from civil society?

It was a limited decision made in order to ensure that their views were fully taken on board. There is no constitutional or legal bar to not associate somebody with the draft. The bar is on the Bill we eventually bring before Parliament. After the drafting committee came to a conclusion, the ministers accepted some of Hazare’s suggestions and did not accept others. Then they presented the Bill to the Cabinet, which, in turn, endorsed it to make it a government Bill. That was presented before Parliament. We associated with these people purely to make sure that they had a full say in giving their inputs while the members of the government in that committee were formulating the draft.

Vandita Mishra: People say the government’s case is being made on too many legal, technical grounds and there is not enough of a political input.

Political issues are responded to politically as the PM has done last week. It is a political response of a sensitive and responsive PM who is concerned about the way things are developing, about the health of Anna Hazare. Legality and politics are not mutually exclusive to the extent that lawyers are able to backseat constitutional and legal issues and package them as part of the political response. I don’t see any inconsistency or mutual exclusivity between the two

Vandita Mishra: But what is the single largest source of hostility to the government?

My sense is that people tend to think we are not with them in the fight against corruption. As time has gone by and as the debate is put in the correct perspective, it is clear that this is a choice between the right ends and the right means. People are tending more and more to agree with our perspective. The letter PM wrote and the public appeal made earlier to Anna Hazare to give up his fast were intended as a decisive signal to bring the national discourse back from an idiom of confrontation to an idiom of rational discourse and dialogue.

Maneesh Chhibber: Would you agree that Anna Hazare’s arrest was a wrong move?

I have already said that if I had been in-charge of the situation on the ground, I would not have sent Anna Hazare to Tihar jail. I think the right course would have been to notify a place like a guesthouse to detain him on a preventive basis. I think things moved too fast and these nuances got lost.

Dilip Bobb: What is your personal stand on the issues of the Lokpal covering PM, the bureaucracy and the judiciary?

Constitutionally, it is completely impermissible. How do you expect the government to consider these demands? On the judiciary: we have a constitutional procedure to discipline judges. As for PM, he has repeatedly said he has no problem being under the ambit of the Lokpal. But it is not as if this PM is the only PM under contemplation. What is under contemplation is the office of the PM, who has been described as the keystone of the Cabinet arch. And if the keystone is disturbed, the arch collapses. It is my personal view that no prime minister should be subjected to a system of inquiry or prosecution where immediately on the receipt of a complaint, the entire regime is triggered. It is not the absence of laws that have prevented prosecution of PMs. We have had two PMs who have been prosecuted even without the Lokpal. We are being unfair to those honest officers in the government who actually prosecuted PMs and former PMs. It is not because of the absence of laws that corruption in the country is growing, It is because of the general decline in the moral fibre of most people that the country is going down.

Maneesh Chhibber: Very recently, the government removed CBI from under the RTI. Is that probity?

I believe the reason for keeping CBI out of RTI is ensure the integrity of the investigation as the accused can use RTI to get information about what stage the investigation is at, which might destroy the integrity of the investigation.

Raj Kamal Jha: This is hypothetical but if the same debate had happened under UPA-I, do you think you would have been on a stronger wicket than UPA-II under the shadow of CWG and 2G? What role has that shadow played in the current discourse?

I do agree that the atmosphere created in the country with allegations related to 2G and other issues have had an impact, consciously or unconsciously, on the sentiments of the people, and the sentiments of the lawmakers, even the judiciary. In fact, we are all impacted at a certain level–and rationality and objectivity sometimes become the casualty. I saw this phenomenon in the indictment of Justice Sen.

Coomi Kapoor: Did the prevailing atmosphere influence the views of parliamentarians who were not in favour of Justice Sen’s impeachment?

I believe, as a lawyer and not as a parliamentarian, that in a criminal case, two views are possible and if the prosecution has not proved its point to the hilt, the benefit of the doubt must go to the accused. That is not to say that the same principle applies when we have debates on issues such as this in Parliament. The parliamentarians, in their collective wisdom, took a view that the judgment would advance the cause of substantive justice for a cause.

Kaushal Shroff: The Jan Lokpal Bill states that seven members should approve any investigation against the PM, of whom at least four would be judicial members. Wouldn’t they understand the gravity of the issue involved and the repercussions of investigating a PM?

The fundamental issue is the environment in which our democracy operates. The imminent possibility of a mala fide prosecution or investigation into the conduct of the prime minister in the discharge of his extremely critical duties can have the effect of destabilising governments. This is the view that is taken by those who dispute the necessity of the PM in the Lokpal. There are others who believe that there are sufficient safeguards to see an abuse of the law doesn’t take place. If Parliament in its wisdom decides to put the PM under the Lokpal, so be it. But there are two strong views and somebody has to decide which view must prevail. Which is that instrumentality in the scheme of our constitutional order which takes the final call? Parliament, in its collective judgment, where all shades of political opinion are reflected.

Vandita Mishra: Some people in your party say Rahul Gandhi should step into the Anna Hazare negotiations.

Rahul Gandhi enjoys a preeminent position in the party. He has a very incisive instinct on many issues. His counsel is always available to the party. As the Congress general secretary, he doesn’t have to ask anyone before intervening. For all you know, he may be involved in giving his advice in the manner he deems fit. It is his call how to intervene, when to intervene and on what issues to intervene.

Sourabh Jyoti Sharma: Transparency International Report 2010 says the judiciary is the second most corrupt institution in India after the police. Do you want to bring a stronger Judicial Accountability Bill in Parliament?

The Judicial Accountability Bill will be brought before Parliament. The government remains committed to it. There is a broad consensus on it. We need to ensure that there is an adequate mechanism to deal with allegations of lack of probity in the judiciary.

Sourabh Jyoti Sharma: What is your view, as a lawyer, on the collegium system of judicial appointment?

On judicial appointments, the experience has been mixed. I don’t think the collegium system has always achieved the desired results.

Unni Rajen Shanker: Many people are talking for the government in the media. Are you being briefed before you talk?

There is so much information on the issues at hand, we almost drink, eat and breathe these issues. The senior people who go on TV channels do have their own perception of what is required to be said and if there is a doubt in their minds, they are always free to seek clarification.

Vandita Mishra: What is the feedback your parliamentarians are getting from the ground, from outside big cities like Delhi? Do they face the same outrage or is there a distinction to be made?

Nobody disputes that the issue of corruption has caught the imagination of the country. The point of contestation is how does the nation together move forward in a direction that will minimize the scourge of corruption and show that the fundamentals of our body politic are not constantly being eroded by this menace. It is a great tragedy that the current UPA leadership of Sonia Gandhi and Manmohan Singh known for their deep commitment to probity in public life should have to bear the brunt in a very unjust and a very unfair manner just because an atmosphere in the country has been created where the responsibility for all that is wrong lies with the government. Look at the series of initiatives the government has taken on corruption: has anyone else take such corrective measures?

When did a serving minister go to jail, when did we send the top bureaucrats to jail? It is said this was done because Supreme Court wanted it to be done. Who went to Supreme Court and asked, through CBI that the Supreme Court monitor the investigations so that the people of India should not think anybody was being protected? We must at least be given credit for vigorously pursuing the cases of corruption. The proof of the pudding is in its eating. Judge me not by what I say but by what I do and this government has taken conscious, purposive and strong action where strong prima facie cases of corruption have been an issue. One more thing; these are the people who have been behind bars for the last several months and whose bail applications have not been granted. As a lawyer I ask myself, is bail the rule and jail an exception or jail the rule and bail an exception? As early as 1977, Justice Krishna Iyer said bail is the rule as it subserves the cause personal liberty and jail in an exception. You must jail only those people who are hardened criminals who can pervert and thwart the course of justice. I sometimes wonder whether someone can be denied liberty merely because the atmosphere is in favour of hanging those without convicting them. At another level, there are proposals that nobody can contest an election if there is a charge of a criminal offense against him. It is said this is the best way to eliminate criminals from politics.

But it is a dangerous path to follow. We have a great law and a great legal architecture but we also know that laws are abused. It is easy to have a false charge against someone in a mofussil town. Years of reputation built in public affairs, a man’s political career can be destroyed. The answer to the criminalization of politics is not in riding roughshod over fundamental principles that are intended to safeguard your liberties and your inalienable rights embedded in the Constitution. Let us not tinker with the fundamental principles of our republic on account of impulses of the moment. All constitutions are designed to secure the nation against intensities of the momentary impulses. If you tinker with the Constitution, you will never be able to restore its integrity.

Vandita Mishra: The burden of your argument is that there is an atmosphere in the country and the government is an unfortunate victim of that atmospehere. Would you not admit to a single mistake the government has made in contributing to this atmosphere? Has the absence of Sonia Gandhi made a difference?

Sonia Gandhi’s absence is deeply felt at all critical moments and even otherwise both in the party and in the government. Her presence, her guidance, her sage counsel and advice has been a great source of strength to the UPA government and Congress. I will be the last person to say this government, or any government, is infallible. There could be a bona fide error of judgment like sending Anna Hazare to Tihar Jail. Governments do make mistakes but as long as they are bona fide and are redressed and corrected, I think the benefit of doubt must remain with the government.

People throw out governments when they don’t find their explanations convincing. The choice is not between a perfect government and an imperfect government, the choice is between a bona fide governance and misgovernance.

Transcribed by Chinki Sinha & Geeta Gupta

Lokpal legislation and statutory procedures

Posted in ANNA HAZARE CAMPAIGN, JAN LOKPAL, PARLIAMENT by NNLRJ INDIA on August 28, 2011
JAN LOKPAL CAMPAIGN

JAN LOKPAL CAMPAIGN

ERA SEZHIYAN  IN THE HINDU

A resolution passed in Parliament may have limitations when it comes to implementation

In the context of the ongoing moves on the Lokpal Bill issue, it has to be noted that a resolution of either House of Parliament, even when it is passed by a division, has limitations with regard to implementation by government. There are three types of resolutions: one is the kind that, when passed, the government will have to implement statutorily; the second type can control the procedure of the House; the third type may be an expression of the opinion of the House.

For instance, when a Bill on appropriation of grants is passed by the Lok Sabha and considered by the Rajya Sabha, it gives statutory authority to the government to withdraw amounts from the Consolidated Fund to meet the specific purpose for which Parliament makes the grant.

Article 123 of the Constitution provides that if both Houses pass a resolution disapproving an Ordinance promulgated by the President, it shall be mandatory to cease to operate it. Under Article 356, the Proclamation of President’s Rule issued for a State should be approved by Parliament through a resolution; otherwise it will cease to operate. Resolutions moved by private members are generally meant to express an opinion; even if passed it is not mandatory that the government implements it.

About the impact of a resolution passed by the UK Parliament, Erskine May states: “Every question, when agreed to, assumes the form of either an order or a resolution of the House… By its resolution, the House declares its own opinions and purposes.”

In Law of the Constitution, Dicey says: “On this basis, the resolutions of a House may be divided into the following three categories: (1) Resolutions which have statutory effect, (2) Resolutions which the House passes to control its own proceedings and (3) Resolutions which are mere expressions of opinion by the House.”

Rule 171 of Lok Sabha: A resolution may be in the form of a declaration of opinion, or a recommendation; or may be in the form so as to record either approval or disapproval by the House of an act or policy of government, or convey a message; or commend, urge or request an action; or call attention to a matter or situation for consideration by government; or in such other form as the Speaker may consider appropriate.

Practice and Procedure of Parliament by Kaul & Shakdher states: “Resolutions may be broadly divided into three categories:

“Resolutions which are mere expression of opinion of the House: Since the purpose of such a resolution is merely to obtain an expression of opinion of the House, the Government is not bound, as convention has it, to give effect to opinions expressed in these resolutions. It entirely rests on the discretion of the Government whether or not to take action suggested in such resolutions.

“Resolutions which have statutory effect: The notice of a statutory resolution is given in pursuance of a provision in the Constitution or an act of Parliament. Such a resolution, if adopted, is binding on the Government and has the force of law.

“Resolutions which the House passes in the matter of control over its own procedure: The House by such a resolution evolves sometimes its own procedure to meet a situation not specifically provided for its Rules. It has the force of law, but its validity cannot be questioned in a court of law.”

In Parliament, Ivor Jennings writes: “Private Members’ Motions then are part of the technique of propaganda. They enable the opinion of the House to be taken. The ‘opinion’ need not be representative for the attendance may be small.”

On August 10, 1978, N.K.P. Salve moved a motion in the Rajya Sabha for the appointment of two Commissions of Inquiry to look into corruption charges against the family members of the Prime Minister and the former Home Minister. This writer opposed it, for under the Commissions of Inquiry Act a motion passed by the Lok Sabha has statutory effect, and the government has to implement it. A motion passed in the Rajya Sabha was only a recommendation to be considered by the government at its discretion. However, the Rajya Sabha adopted the motion 104 to 78.

Over the next few days, the Opposition demanded the early appointment of a House committee or the Commissions of Inquiry. The Rajya Sabha Chairman asked this writer for a note, which was submitted on August 12. On August 17, Chairman B.D. Jatti gave his ruling: “Two courses, therefore, seem to be open to the government, namely, either they should seek the guidance and advice from a committee of the members of Rajya Sabha, or forthwith appoint two separate Commissions of Inquiry. I am of the opinion that in terms of the Motion, the question of appointment of a Committee by me would depend on the indication from the Government as to which one of the two alternatives in the Motion is acceptable to the government.”

L.K. Advani, the Leader of the Rajya Sabha, accepted the ruling and promised that the government would carefully consider the recommendations of the motion. There the matter ended.

Regarding a statute for the establishment of the Lokpal, the government prepared on August 4, 2011 ‘The Lok Pal Bill, 2011′ according to the Rules of Procedure and practices, and along with the President’s Recommendation under Article 117(1) and (3). This Bill was referred to the Parliamentary Standing Committee on August 8; it was required to send its report in three months. The committee advertised on August 20 inviting views/suggestions within 15 days. These have to be sent by September 4, and the committee may examine them and submit a report by November 3.

However, the agitation by Anna Hazare and the civil society team has created an urgent and critical situation. It may not be possible for the government to send on the Jan Lokpal bill or the bills propounded by others. Unless the government has made clear and satisfactory decisions on the points raised by the civil society team, the situation could go out of control.

Of the 10 Lokpal Bills introduced so far at the Centre, five were by Congress governments and the rest by non-Congress governments. The major difference among them was the exclusion of the Prime Minister by the former and the inclusion by the latter in the ambit of the Lokpal Bill. But none of them demands a constitutional amendment for the establishment of a Lokpal. A constitution amendment may require still more time; the legislatures of not less than half the States would have to ratify it, as required under the Article 368(2). This will take months.

Karnataka example

If there is a will, there is a way to enact an effective Lokpal Act even under the statutory procedures available. The Karnataka Lokayukta Act of 1985 enacted by the Ramakrishna Hegde government provided for a Lokayukta to investigate and report on allegations or grievances relating to the conduct of public servants including the Chief Minister; Ministers and members of the legislature; all officers of the State government; chairman, vice-chairman of local authorities, statutory bodies or corporations established by or under any law of the State legislature, including cooperative societies, persons in the service of local authorities, corporations owned or controlled by the State government, a company in which not less than 50 per cent of the shares are held by the State government, societies registered under the State Registration Act, cooperative societies and universities established by or under any law of the legislature.

Where, after investigation into a complaint, the Lokayukta considers that the allegation against a public servant is prima facie true and makes a declaration to that effect, and the declaration is accepted by the competent authority, the public servant concerned, if he is a Chief Minister or a Minister or a member of State legislature, shall resign his office. If he is any other non-official, he shall be deemed to have vacated his office, and, if an official, shall be deemed to be under suspension, from the date of acceptance of the declaration.

If, after investigation, the Lokayukta is satisfied that the public servant has committed a criminal offence, he may initiate prosecution without reference to any other authority. Any prior sanction required under any law shall be deemed to have been granted.

Any effective government in a functioning democracy worth its name should anticipate a problem before it becomes a crisis and solve a crisis before it lands the government and the country in a catastrophe.

(The author is an eminent parliamentarian.)

LOK PAL BILL CAMPAIGN : Prime Minister speech in the Lok Sabha debate on Corruption

Posted in ACCOUNTABILITY, ANNA HAZARE CAMPAIGN, CORRUPTION, JAN LOKPAL by NNLRJ INDIA on August 25, 2011
Manmohan Singh, current prime minister of India.

Image via Wikipedia

Following is the text of Prime Minister Dr. Manmohan Singh’s uncorrected speech in the Lok Sabha on corruption:

PRIME MINISTER : Hon. Speaker Madam, I am very happy that at long last, the House had a debate on the issue of corruption. I thank all the Members who participated in this debate.

Madam, that corruption is a major national issue is something a matter about which there is unanimity in the country. That we should collectively work to find credible approaches, credible solutions to deal with this scourge is also a matter, which unites all sections of thinking public opinion in our country.

Madam, I share that perception; and on behalf of our Government, I would like to assure this august House that in the two and A half years of period that is left to us, we will do everything in our power to clean the system of this country.

Madam, Dr. Murli Manohar Joshi is not here. Yesterday, he made a powerful speech and he turned into a personal attack on me as if I am the fountain head of corruption and that I have knowingly connived at corruptions of some of my colleagues.… (Interruptions)

MADAM SPEAKER: Nothing else will go on record.

PRIME MINISTER : Madam, I consider it beneath my dignity to enter into an argument on issues which are before the PAC, issues which are in our courts. In my seven years as Prime Minister even when the Opposition Members have accused me of many crimes, I have never used harsh language in describing the conduct of any Member of this House.

Madam, I would like to assert before this House that I have a public life in the service of this country for nearly 41 years. In these 41 years of my public life, 20 years in Parliament I have tried to serve this country to the best of my ability.

I, as Finance Minister, inherited an economy with bankrupt treasury, with foreign exchange reserves totally exhausted, with credit worthiness of our country seriously in doubt. We turned around that economy. We have ensured that this economy, the bankrupt economy that we inherited, has become one of the fastest growing economies of the world.

Madam, whatever the Members of the Opposition may say, the fact is that India is respected all over the world. I think that is because of the inherent strength of our economy, of our polity, of our democratic system but at the margin, in these seven years or as earlier as Finance Minister, I did make a small contribution in my own way to enhance the prestige of this country, and therefore, while charges are leveled against me, it hurts but I am not going to convert this forum into a forum for accusation one way or the other. All I can say is that if any wrongdoing has been done by me, I invite the Leader of the Opposition to look at my property which I may have accumulated in the last 41 years, my members of my family … (Interruptions)

I would accept the verdict of the Leader of the Opposition if they find that I have used public office to amass wealth for myself or for any member of my family.

Madam, in the course of seven years as Prime Minister, I may have made mistakes. Who is above making mistakes? To err is human but to accuse me of evil intentions, of conniving at corruption is a charge I firmly repudiate.

Madam, this is not an occasion to trade allegations to and fro and I am not going to deal with this matter as the matter is before the court or before the various Committees of Parliament and they will come with their own conclusions. I would, however, like to say that corruption is a multifaceted problem. Therefore, we, as a nation, have to find practical, pragmatic means but effective means to tackle it, and this is not merely the responsibility of the Central Government. The State Governments are responsible for over 50 per cent of the total national spending and the conduct of the State Governments, which is the one way people come in contact with Government, is essentially the responsibility of the States. There is anger in the country. There is anger about the misuse of public offices.

Therefore, both at the Centre and the States, it is our obligation to clean up the system of governance to reforming and to ensure that we leave behind for our children and grand children a system of public administration which is capable of meeting the challenge of the 21st Century. I commit our Government to doing precisely that. In my address to the nation from the ramparts of the Red Fort, I listed a number of areas where in the next couple of months I would like our Government to take initiative and I stand committed to whatever I promised from the ramparts of the Red fort.

Madam, corruption sources are numerous. Until the early 90s, the biggest single source of corruption was the licensing system, the industrial licensing system, the import controls and the foreign exchange controls. The liberalisation that we brought about has ended that part of this corruption story.

Another major part of corruption was the rates of taxation which were so exorbitant that people were tempted to enter into corrupt practices to reduce their tax liabilities. We have, I venture to suggest, ourselves and the successor Governments worked hard to simplify to streamline the taxation system and on balance there is less scope for corruption as far as taxation matters are concerned. Even though I recognise that a residual element is still there and we have to work together through various mechanisms, including goods and services tax which is now in public domain and, which is, I believe, an obligation which our country must fulfil if it wants to move forward. But, there are many other areas where corruption still persists. We have to tackle this problem from various angles.

There are Central Government programmes administered by the State Governments but there are leakages. Therefore, we must find ways and means of reforming the system of public administration so that these leakages can be plucked. Malfunctioning of public distribution has been widely commented upon. We must, therefore, devise new methodologies to ensure that Public Distribution System will be free of malpractices. This is an obligation which we can discharge only with full collaboration with the State Governments and discharge we must. But I would like this House to endorse the reform of the Public Distribution System, where the ordinary people come in contact with Government machinery or meeting the basic needs of existence of livelihood, is cleaned up.

Madam, yet another source is, where Government contracts are given in a manner which creates suspicion that something is going wrong. Therefore, we need a Public Procurement Act, as some other countries have, to streamline our contracting mechanisms in a manner in which there will be less scope for corruption in future.

Madam, in certain areas, greater competition itself will reduce the scope for corruption. But, we still know that there are areas of infrastructure where competition can at best be only limited. There is scope for regulation. We have, in the last couple of years, put in place regulatory mechanisms, but the functioning of these regulatory mechanisms, especially with regard to the management of the infrastructure, is something which requires attention. That is yet another area where we must find ways and means to streamline the regulatory system, so that there is less scope for corruption.

I could go on. But I do not want to repeat what I said from the ramparts of the Red Fort. The House has my assurance that we will work in full public glare to fulfil what we have promised. I have set up a group under Shri Pranab Mukherjee to look at the scope for reducing the amount of discretion that ministers have at the Centre. This group has made some important suggestions. They will be considered by the Cabinet and we will put in place a mechanism to reduce the scope for misuse of discretionary power or to eliminate discretionary power wherever it can be done without detriment to public interest or achievement of public good.

Madam, it is in the context of corruption that the last few weeks have seen momentous developments. Shri Anna Hazare has gone on fast. His plea is that we should adopt the Jan Lokpal Bill that has been drafted by them. The background of this whole exercise is well known to this august House. We have sittings together with the five representatives of Shri Anna Hazare, including himself, who met with our five representatives and a large measure of agreement was reached with regard to the shape of the Lokpal Bill that we should have. On certain matters there was disagreement and that disagreement could not be resolved and therefore we have referred that matter for consideration of the All Parties Committee and the said consensus was that the Government should come with its own version of the Bill and various Parties would then reflect on what to do with that Bill. We discharged that obligation. We submitted that Bill to Parliament. It has now been referred to the Standing Committee.

This Standing Committee can consider all options and we can find ways and means of ensuring that the Bill that has been prepared by Shri Anna Hazare is given due consideration by this Committee. Also, along with this, there are other ideas. There is Dr. Jayaprakash Narayan’s group which produced a Bill; there are ideas which have been mentioned in a paper by Shrimati Aruna Roy. All these matters can be discussed, debated and a consensus can be built up in the Standing Committee. We are open to all suggestions. We will work with all sections of this House to have a Lokpal, who is strong, who is effective and about which there is a national consensus.

We have produced a Bill which reflects the thinking of our Government. But we are open to persuasion and we have an open mind and when we discuss this Bill, whether in Parliament or in the Standing Committee, we will work with a single minded devotion to ensure that we leave behind for posterity a Lokpal Bill which does credit to our concerns for meeting the challenge of corruption. Madam, yesterday there was a very good meeting of all political parties. All political parties agreed that we should request Shri Anna Hazare to give up his fast and that we should find ways and means to ensure that ideas reflected in the Jan Lokpal Bill are given adequate consideration in parliamentary processes and that we should come forward with a strong, effective Bill which has the broad support of the country as a whole. I commit our Government to working with all sections of the House to realise this dream. Therefore, I urge all Members of the House to join me in making an appeal to Shri Anna Hazare that he has made his point. It has been registered with us. I respect his idealism. I respect him as an individual. He has become the embodiment of our people’s disgust and concern about tackling corruption. I applaud him, I salute him. His life is much too precious and therefore, I would urge Shri Anna Hazare to end his fast.

We will find effective ways and means of discussing the Jan Lokpal Bill along with the Government version of the Bill along with Shrimati Aruna Roy’s Bill, along with the ideas in the paper that Dr. Jayaprakash Narayan has submitted. All ideas should be discussed, debated so that we have a Bill which is the best possible Bill, which will help us to deal with the problem of corruption.

Madam, it has been mentioned to me that Shri Anna Hazare and his colleagues are very keen that their Bill should be discussed in the Parliament. I have not thought over this matter in great depth, but a thought comes to me that perhaps we could have a debate in this House on all the Bills that are in the public domain and have a discussion what are the weak points of various Bills and what are the strong points of various Bills and at the end of that debate, send the whole record for consideration of the Standing Committee of the Parliament. I have a feeling that this will meet the point that Shri Anna Hazare and his colleagues have been making that Parliament must have a chance to give its views on their Bill before sending it to the Standing Committee and therefore, I submit to this august House that this is one via media which will respect the parliamentary supremacy and, at the same time, enable Parliament to take on board ideas contained in the Lokpal Bill drafted by Shri Anna Hazare and his colleagues. Madam, I conclude by appealing to all sections of the House to join in appeal that I have made to Shri Anna Hazare that his life is much too precious. We would like him to live a long life and a happy life in the service of our people. He has registered his point. Therefore, we respectfully request him to end his fast. I think that if we do it, then this would be a befitting finale to this very constructive debate on corruption and in tackling it that has taken place in this House since yesterday.”

LOK PAL CAMPAIGN: For a strong and effective Lokpal

Posted in JAN LOKPAL by NNLRJ INDIA on August 25, 2011
PRAKASH KARAT

PRAKASH KARAT

By PRAKASH KARAT IN THE HINDU

The Anna Hazare fast has seen an outpouring of support across the country. The government Lokpal Bill is unacceptable. A fresh Bill is needed for an effective Lokpal. There has been an outpouring of support all over the country in favour of the fast conducted by Anna Hazare for the Jan Lokpal Bill. The agitation has found support predominantly from the urban middle classes and a substantial section of youth belonging to the strata. There is no doubt that since the first hunger strike launched by Anna Hazare in April, the anti-corruption movement has gained momentum.

The attitude of the United Progressive Alliance government and its failure to tackle corruption, have fuelled widespread anger. First, the government is seen as being complicit in corruption. This has been the most corrupt government in the history of independent India. The paradox of a “clean” Prime Minister heading such a government has sunk into the consciousness of the urban middle classes.

The manner in which Ministers in the government defended the corrupt practices indulged in as a part of the 2G spectrum allocation, stating that there was zero loss of revenue for the government, confirmed the fears of many people that this government, steeped in corruption as it is, cannot take any meaningful action on this front. In all the cases – whether it be those related to the allocation of 2G spectrum or the conduct of the Commonwealth Games – agencies independent of the government, that is, the Supreme Court of India or, the Comptroller and Auditor General, were the ones that spurred the Central Bureau of Investigation into action to investigate and prosecute the guilty.

The problem has been compounded by the government’s act of introducing a Lokpal Bill that is weak and ineffective. The Prime Minister is excluded from the purview of the Lokpal. The method of appointment of the Lokpal will not make it an independent authority. A Lokpal set up under the provisions of this Bill would be unable to act independently. There are no provisions for the Lokpal to act against corporates and business enterprises that indulge in corrupt practices in relation to the government.

Secondly, the UPA government and the Congress leadership were in the dock for the manner in which Anna Hazare and his colleagues were arrested on the morning of August 16, even before the hunger strike was launched. The irony of a corrupt government putting an anti-corruption crusader in Tihar jail was not lost on the people. The brazen attack on the democratic rights of citizens to protest peacefully, isolated the government among the people and inside Parliament.

The ruling party decried the Hazare-led movement as an attack on Parliament and democratic institutions. Its leaders claimed that since the government has introduced a Bill in Parliament, any agitation against it is an attack on Parliament. This is specious reasoning. Political parties and citizens’ organisations have the right to oppose and agitate against any bill introduced in Parliament. The Left parties and the trade unions have opposed many bills which were anti-working class, and organised protest actions and struggles against them. Strikes have taken place against proposed legislation that seeks to liberalise the financial sector in the areas of insurance and banking.

Even the Congress opposed the Prevention of Terrorism Bill that was introduced in Parliament in 2002 by the Bharatiya Janata Party-led government. The Congress continued to oppose the legislation even after its enactment, and demanded its withdrawal.

Corruption has become a major issue and people are increasingly becoming conscious and determined to fight it. But there is need for a proper understanding of the causes for the rampant corruption that has affected all spheres of public life. The Communist Party of India (Marxist) has set out its understanding of the present malaise of corruption, the causes and the effects.

In the last two decades, with the advent of liberalisation and the neo-liberal policies, high-level corruption has become institutionalised. The neo-liberal regime has led to an exponential rise in corruption. Much of this corruption stems from the big business-ruling politician-bureaucratic nexus which has been established.

We have seen how, in the seven years of the UPA government and the earlier six years of the NDA government, policy-making has been suborned to serve the interests of big business; how privatisation and the loot of natural resources are facilitated by this nexus in operation; how the UPA government has pandered to big business – Indian and foreign – by putting in place policies and mechanisms to facilitate the transfer of resources such as land, minerals, natural gas and so on to business barons. The neo-liberal regime has affected the political system with big capital holding sway. Increasingly, politics is being converted into a business, and business is conducted through politics.

The fight against high-level corruption, therefore, requires a multi-pronged effort. There has to be an effective Lokpal authority; there has to be electoral reforms to curb money power for politics; there has to be a distinct mechanism to curb corruption in the higher judiciary through separate legislation; there has to be firm measures to unearth black money and crack down on those who have stashed away illegal money abroad in tax havens. Above all, the features of the neo-liberal regime, which encourage accumulation of capital through corrupt means and facilitate the loot of natural resources by big business, should be ended.

The main source of support for the Hazare-led movement is the urban middle class. Many of them were supporters of the liberalisation policies and the reforms ushered in by the Manmohan Singh government. Now plagued by corruption, they want a messiah to get rid of the corruption that constantly affects their daily life. They would like corruption to end, while maintaining the economic regime that has conferred certain benefits on them. Hence they are unable to see the organic link between the neo-liberal policies and the corruption that has been engendered.

The middle class propensity to be anti-political, to blame all politicians and to hold Parliament in contempt, are all on display in the Anna Hazare movement. The constant harping against all political parties and the setting of unilateral deadlines for Parliament to act have raised apprehensions about their intent and commitment to democratic values. This has only detracted from the rightness of the cause and the popular support it has evoked.

There is legitimate anger against the plutocracy that has come to dominate the political system. But this plutocracy and the corrupt nexus cannot be fought by targeting political parties and concentrating fire only on the petty corruption that citizens face in their daily lives. Given the amorphous nature of the movement that has gathered around Anna Hazare, the right-wing forces, including the corporate media, seek to support and direct the movement away from the focus on the fountainhead of corruption. There is a constant masking of the real causes of corruption in society. In a poll conducted by the Centre for the Study of Developing Societies, published recently in The Hindu, to a question ‘who is the most corrupt,’ 32 per cent of those surveyed said government employees were the most corrupt; 43 per cent said elected representatives were the most corrupt; and only 3 per cent thought businessmen and industrialists were the most corrupt. This is the dominant opinion among the middle classes.

In every major corruption scandal in the recent period, there was big business or corporates involved in the act of corrupting public servants – whether they were Ministers or civil servants. In the irregularities involved in the 2G spectrum allocation, the Commonwealth Games and the Krishna-Godavari basin gas contract, the hidden hand of big business exists. The government’s Lokpal Bill does not address this issue at all. The Jan Lokpal bill at least has clauses providing for the cancellation of contracts, and imposition of penalties on business found to have been illegally obtained by them. But the thrust of the anti-corruption movement, by and large, misses this main factor.

While a set of measures has to be taken to tackle the problem of corruption, right now the issue is the setting up of a strong Lokpal authority. The government’s Lokpal Bill has been rejected by large sections of the people; and it is not acceptable to most of the Opposition parties. In such a situation, the government should retract from its stand.

After eight days of the fast by Anna Hazare, the government has bowed down to public pressure and initiated talks with the representatives of the Hazare group. This is a welcome development. Hopefully, this will lead to a fresh or modified bill that can pave the way for an effective Lokpal.

(Prakash Karat is the general secretary of the Communist Party of India – Marxist.)

Source: http://www.thehindu.com/opinion/lead/article2393469.ece?homepage=true

Premier High Court at 150

Posted in COURTS, JUDICIARY, JUSTICE, UNCATEGORIZED by NNLRJ INDIA on August 25, 2011
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T ANDHYURUJINA IN THE HINDU

The Bombay High Court has yielded illustrious judges and lawyers who contributed not only to its own standing but also to the prestige of the Supreme Court of India.

One hundred and fifty years ago, in 1861, the Bombay High Court was established under the Indian High Courts Act, 1861, of the British Parliament. It abolished the old Supreme Court and the East India Company Courts and merged them in a new High Court. For these 150 years, the Bombay High Court has been India’s premier High Court. It has yielded illustrious judges and lawyers who not only contributed to its own great standing but after Independence also contributed to the prestige of the Supreme Court of India.

The High Court’s contribution to the law, jurisprudence and administration of justice has been immense. It was, therefore, with pride and satisfaction that on August 14, 2011, a number of distinguished judges and lawyers of the Supreme Court and the High Court, and Ministers of the State and Central governments, assembled in the famous Central Hall of the Bombay High Court to commemorate the 150th year of the High Court.

History

The Bombay High Court began functioning on August 14, 1862, with no pomp or ceremony, in the modest building of the old Supreme Court house. All that occurred on that historic occasion was an unpretentious declaration made by the English judges: “The judges appointed by the Charter of the High Court would seat as judges of the High Court from 11 a.m. till 2 p.m.” Thus began the historic life of this High Court. It was presided over by its first Chief Justice, Sir Mathew Sausse. He believed in such total detachment from the government and the public, and isolated himself to do justice, that he was known as “Sausse the Silent.”

A succession of 12 distinguished English Chief Justices followed him. The last British Chief Justice, Sir Leonard Stone, retired at midnight on August 14, 1947, after unfurling and saluting the Indian national flag in the High Court, with a gracious speech. He was succeeded by M.C. Chagla, the first Indian Chief Justice. He occupied that office with great distinction for 11 years. On the request of Jawaharlal Nehru he resigned, to become India’s Ambassador to the United States.

The construction of the vast and magnificent Gothic-style building of the Bombay High Court, situated opposite the Oval playground, was started in 1873 and completed in 1879. The foundation tablet records that it was built at an incredibly low cost of Rs.16,44,528, which was below its estimated cost. The first sitting here was held on January 10, 1879. Its court rooms and corridors are spacious. It also has comical figures of monkey judges and fox advocates, wearing lawyer’s bands with one eye blind-folded, peeping from the top of pillars. This was said to be the mischievous work of a disgruntled sub-contractor, a Parsi, who avenged himself on law and justice by libelling the lawyers and judges of the High Court. But the true symbol of justice is the stone statue of the Goddess of Justice on a tall tower of the building. She has both eyes blind-folded, to signify that justice is blind, with a sword in one hand and scales of justice meticulously balanced in the other.

Many famous trials and cases have been conducted in this historic court. Lokmanya Tilak was tried thrice for seditious writing in the Central Hall. On the second of his trials in 1909, when the jury returned a verdict of guilty and he was sentenced for six years in jail, he said the famous words that are today inscribed at the entrance to the Central Court: “All that I wish to say is that, in spite of the verdict of the jury, I still maintain that I am innocent. There are higher powers that rule the destinies of men and nations; and I think, it may be the will of Providence that the cause I represent may be benefited more by my suffering than by my pen and tongue.”

There were some outstanding Indian judges of the Bombay High Court before Independence, such as Badruddin Tyabji, Mahadev Govind Ranade, Kashinath Trimbak Telang and Narayan Ganesh Chandavarkar. They were not only erudite lawyers but also academicians and political thinkers known for their broad and liberal outlook. One instance to show this was the moving tribute paid by Badruddin Tyabji to his brother-judge Ranade on his death. He quoted the lines of Urfi, the court-poet of Emperor Jehangir: “Live thy life in such a manner that, on thy death, the Mussalman may wash thy body with the sacred waters of Zamzamat at Mecca and the Hindu may burn it on the holy ghats at Kashi.”

Making a mark

Amongst the lawyers who made their mark in the High Court were Sir Phirozshah Mehta, who was also a public figure, Bhulabhai Desai, K.M. Munshi, M.R. Jayakar, who later became a judge of the Federal Court and the Privy Council, and Sir Dinshaw Mulla, a writer of law books which are used even today. M.A. Jinnah, the founder of Pakistan, was a fighting advocate in the Bombay High Court known for his blunt advocacy. Dr. B.R. Ambedkar, a lawyer with a good knowledge of Constitutional Law, was later the Chairman of the Drafting Committee of the Constitution of India. Sir Jamshedji Kanga was the doyen of the Bar for many years. From his chambers were groomed distinguished lawyers such as H.M. Seervai, the leading constitutional expert, and Nani Palkhiwala, the country’s most versatile and eloquent advocate.

The Supreme Court’s first Chief Justice of India in 1950 was Sir Hiralal Kania from the Bombay High Court. Since then, a succession of distinguished Chief Justices of the Supreme Court have come from the Bombay High Court — including the present Chief Justice of India, S.H. Kapadia. The first law officers of the Government of India hailed from the Bombay High Court. Sir N.P. Engineer was the first Advocate-General of India; M.C. Setalvad was the first Attorney-General of India, and C.K. Daphtary, the first Solicitor-General of India. Even later, distinguished lawyers from the Bombay High Court have been the law officers of the Union government in the Supreme Court. No single High Court has had such an eminent array of persons from the Bar and the Bench as the Bombay High Court has had.

The Bombay High Court has passed through many vicissitudes in its 150 years. So long as those who work in and for it are conscious of its high traditions and connections, it will retain its stature — for in the words of the Bible, it was founded on Rock.

(The writer, a senior advocate of the Supreme Court, is a former Solicitor-General of India and Advocate-General of Maharashtra.)

http://www.thehindu.com/opinion/op-ed/article2393377.ece

Journalists may soon need law degree to report on Supreme Court

Posted in SUPREME COURT by NNLRJ INDIA on August 24, 2011
SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

Print and electronic media journalists will also need to have at least 7 years and three-and-a-half years of experience, respectively

Nikhil Kanekal in The MINT

New Delhi: New Supreme Court reporting norms, if enforced, will result in 80% of the journalists who have been covering proceedings being disqualified. The Supreme Court can bar any correspondent from coverage without offering any reasons under the new rules.

Issued by the court on Saturday, the norms require that permanent and temporary accredited print journalists have a professional law degree and at least seven years of experience. Electronic media reporters need, apart from the law degree, at least three-and-a-half-years of experience. The circular did not set a deadline for the norms to come into force. Court officials didn’t throw light on when the circular would come into effect, when asked on Tuesday.

The new norms follow instances in which faults were found in coverage.

Two of these arose from coverage of the Vodafone tax dispute. Vodafone lawyer Harish Salve complained to the Supreme Court that a Press Trust of India (PTI) report on 10 August had misquoted him. Salve had argued that Vodafone could “avoid” tax as tax avoidance was permissible under law. Indian income-tax authorities have alleged that Vodafone evaded tax by structuring its $11.2 billion transaction to buy out Hutchison’s Indian cellular business through tax-saving routes. Salve spent more than a day demonstrating to the bench the difference between tax avoidance and evasion, and that his client had acted in accordance with law.

The court sought a response from PTI on an application made by Salve after the agency’s report.

On 18 August, PTI’s lawyer Shyam Divan issued an unconditional apology to the court, Vodafone and Salve.

Chief Justice S.H. Kapadia’s three-judge bench asked PTI to file a detailed affidavit explaining whether its reporter was present in the court at the time Salve made his argument. The court reportedly observed that norms for journalists needed to be revisited in light of the incident and what it said were other recent inaccurate reports.

Previously, Kapadia had expressed displeasure at a 15 December news report in a national daily that said the judiciary wanted to retain 1% of the Rs. 2,500 crore deposit made by Vodafone to the court’s registry. The report suggested that a “cash-strapped” judiciary was trying to source funds from “novel” methods such as these. Kapadia had then said: “People write whatever they want.” But the court did not initiate any action against the reporter or the newspaper.

Different benches of the court have, in the past, pointed to inaccurate or sensational news reports. However, Mint could not immediately ascertain the immediate reasons for the revision of the norms.

A.I.S. Cheema, secretary general of the court, the senior-most official on the administrative side, did not have time to meet this reporter on Tuesday for clarity on reasons for revising the norms.

The court’s media officials said reporters could make representations that would be forwarded to decision makers.

Justice Dalveer Bhandari, the Supreme Court judge in charge of granting accreditation to journalists, could not be reached on phone. His staff said he would not be available to comment till later this week.

A media law expert said India has an open court system that inspires confidence among people on the judiciary’s functioning.

“In India, unlike in the US, the press has no independent right under the freedom of expression. The journalist exercises his right as a citizen of this country under Article 19 (1)(a) and also acts as a trustee of the public’s right to know. In certain situations, he might get more access than others, but technically under our open court system that shouldn’t be necessary,” said the expert, who did not want to be named.

“Everyone can have access as it’s meant to be a check on the judges. It’s a check on the system. What is to stop me if I go into a court as lay person and write about something which I think is worthy of sharing with the public? As long as I’m not distorting the proceedings, there should be no problem,” this person said.

The Supreme Court has expressed its appreciation for the role played by the press in its annual reports. “Supreme Court attached great importance to the role of media and complementary to that of judicial organ in a democratic polity. In order to strengthen this partnership, the court took certain initiatives for mutual benefit,” said the 2008-09 report as it elucidated programmes organized by it to train court correspondents.

A February 2002 report in Frontline magazine cited a Supreme Court judgement that contained a defence of the freedom of the press. “Public trial in open court is undoubtedly essential for the healthy objective and fair administration of justice. Trial held subject to public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity and impartiality of the administration of justice.”

There are currently 14 permanent accredited correspondents in the Supreme Court and approximately 80 temporary accredited journalists, according to the court’s officials.

Editors react

Newspaper and television editors said the requirement for a law degree might be excessive and that the unilateral provision in the norms to withdraw a journalist’s accreditation was not desirable.

“Reporters need not have a law degree to report on the Supreme Court. They need to have strong news sense and an acquaintance of legal nuances,” said Arnab Goswami, editor-in-chief, Times Now.

“The new norms seem overly restrictive and will make it more difficult for the media to cover the Supreme Court properly,” said Siddharth Varadarajan, editor of The Hindu. “While I share the concerns of the honourable judges that court proceedings are sometimes not reported accurately, the solution lies in proper editorial supervision by our newspapers and TV channels, rather than by specifying, with mathematical precision, the onerous qualifications court reporters must possess in order to be given access to a court room.”

“In the absence of access, there may actually be a greater likelihood of inaccurate reporting as journalists will be forced to rely on one-sided accounts of courtroom proceedings by lawyers representing their clients,” he said.

Sanjay Gupta, editor, Dainik Jagran, published by Jagran Prakashan Ltd, said: “As an editor, I will anyway not hire a fresher to report on Supreme Court judgements. However, I don’t think there should be a prerequisite for reporters to have a degree in law. If reporters have adequate experience and are reporting judgements intelligently, and if the editors don’t have an issue, I don’t think it’s fair for the court to then have stringent norms.”

“I don’t want to comment much on the revised norm to withdraw the accreditation without giving any reason. Withdrawal of accreditation should be a bilateral dialogue between the authority and the newspaper. The editors have a right to know when a particular legal correspondent’s accreditation is withdrawn,” he added.

Abhilasha Ojha contributed to this story.

JAN LOKPAL BILL- ALL PARTY MEETING APPEAL TO SHRI ANNA HAZARE TO END FAST

Posted in ACCOUNTABILITY, CONSTITUTION, CORRUPTION, JAN LOKPAL by NNLRJ INDIA on August 24, 2011
Anna Hazare - Delhi

Image by vm2827 via Flickr

This meeting of all parties in Parliament requests Shri Anna Hazare to end his fast. The meeting was also of the view that due consideration should be given to the Jan Lokpal Bill so that the Final Draft of the Lokpal Bill provides for a strong and effective Lokpal which is supported by a broad national consensus.

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