Prime Minister’s New Year Message to Nation

The Prime Minister, Dr. Manmohan Singh, has greeted the nation on the eve of the New Year. Following is the text of the Prime Minister’s message to the Nation on the occasion:

“My Fellow Citizens,

I wish you all a peaceful, productive and secure New Year.

New Year’s Day is a day of resolutions. Each of us makes our own resolutions – to live a healthier life, to live a more honest life, to live a better life and to live a happier life. I sincerely hope in the New Year we can all work together with a new resolve: to make our homes and neighbourhood, our village or town, and our nation a better place to live in.

If each of us works towards that end, we can be sure that we are also making the world a better and a safer place.

The year that has just ended was a very difficult year for the world. Economic crises, socio economic tensions, political upheavals in many developing countries and political deadlock in some of the developed countries, all cast their shadow on 2011. A ‘revolution of rising expectations’, fostered by the extraordinary reach of the electronic media and the connectivity provided by new social networking platforms, has kept Governments around the world on their toes.

We in India have had our share of problems. The Indian economy slowed down and inflation edged up. Concern about corruption moved to the centre stage.We must not be too downcast at these events. All countries and economies go through cycles. We must remember that downturns are followed by upturns. Indeed, they are often a test of our ability to respond to new challenges.

The task before us is clear. We must address the new concerns that have arisen while remaining steadfast in our commitment to put the nation on a development path which ensures rapid, inclusive and sustainable growth. I want to assure you all on this New Year’s day that I personally will work to provide an honest and more efficient government, a more productive, competitive and robust economy and a more equitable and just social and political order.

I believe we have made more progress than is commonly realised. I am personally delighted that Government was able to introduce the Food Security Bill and the Lok Pal and Lok Ayukta Bill in Parliament. The Lok Pal and Lok Ayukta Bill was passed by the Lok Sabha. It is unfortunate that the Bill could not be passed in the Rajya Sabha. However, our Government is committed to the enactment of an effective Lok Pal Act. Taken together with the Right to Information Act, the National Rural Employment Guarantee Act and the Right to Education Act, these are legislative legacies that generations of Indians will come to value, appreciate and benefit from.

Friends,

On this New Year’s Day I do not wish to dwell on the year gone by. Instead, I would like to focus instead on the challenges of the future, so that we can all work together to over come them.

Our biggest challenge today remains that of banishing poverty, ignorance and disease. Simultaneously, we must work to build an India that holds the promise of prosperity to the many millions of our people who are just beginning to emerge out of poverty. We must remain focused on this fundamental task in the Twelfth Plan period which begins in 2012-13.

As I look ahead I see Five Key Challenges facing the nation. To meet these challenges we need the concerted efforts of the central government, the state governments, political parties and indeed all concerned citizens.

First, there is the urgent challenge of eradicating poverty, hunger and illiteracy and providing gainful employment to all. I call this the challenge of Livelihood Security.

There are many steps we need to take to address this challenge and of these, the most important is to empower every citizen with the light of education. I say this with the deepest conviction because I know what education did for me. I was born into a family of modest means, in a village without a doctor or a teacher, no hospital, no school, no electricity. I had to walk miles every day to go to school, but I persevered and was fortunate to be able to secure a high school education, and then go on to higher education. It is this access to education that transformed my life and gave me new opportunities which others with my background could not dream of.

I firmly believe that educating our children, providing them with employable skills, while also ensuring their good health, must be our first and primary task. There is no better investment we can make in the future – the future of our children, of our families, of our communities, and of our nation.

Along with education and affordable health care, we must also generate a growth process that can provide gainful employment to all. This is the only way that we can wipe out poverty in a sustainable fashion.

However, since many elements of this strategy will take time to bear full fruit, we must in the meantime pay urgent attention to the needs of those who need immediate support. It is for this reason that the government has taken steps to provide minimum employment and access to food to those who need it most.

I believe that the initiatives we have taken to invest in education and health, provide an employment guarantee and also provide food security, constitute a robust response to the challenge of providing greater Livelihood Security for our people.

My Fellow Citizens,

The second challenge that demands our attention is Economic Security. Economic security comes from having an economy that can produce the material output required to achieve desired consumption levels for the people and one that can generate the productive jobs needed to satisfy the aspirations of the workforce. To reach this level we will have to ensure rapid growth accompanied by adequate job creation. Rapid growth is also necessary to generate the revenues we need to finance our livelihood security programmes.

The process of economic reforms was initiated in the mid eighties and accelerated the 1990s precisely to accelerate our growth potential. Because of our democratic system, the reforms were introduced gradually to begin with, in order to garner broad based support. That we succeeded in this objective is evident from the fact that successive governments of different political complexions at the centre, and many governments belonging to different political parties in the states, have more or less pushed in the same direction. However, this gradualist pace also meant that the full effects of the reforms took time to have effect.

Yet, the fruits of this effort have been amply evident in the past several years. The average growth rate of the economy was around 4 % per year before the 1980s. It increased to an average of about 8 % since 2004.

Although we have every reason to be satisfied with this performance, it would be wrong to conclude that India is now unshakeably set on a process of rapid growth. Our growth potential is indeed established. But there are many challenges we have to face if we want to maintain this growth in the years ahead, as indeed we must.

To achieve sustained rapid growth we need to do more than halt the current slowdown though that is certainly the first step.  We need to usher in a second agricultural revolution to ensure sufficient growth in rural incomes. We also need to usher in the many reforms needed to trigger rapid industrialisation and to build the infrastructure which such industrialisation needs.

Rapid growth will also bring structural change, notably in the rate of urbanisation. Our urban population is expected to grow from 380 million at present to 600 million by 2030. We must be able to provide productive jobs in the non agricultural sector for this expanding urban population and we must also be able to expand our urban infrastructure to deal with the expected expansion of the urban population.

In 1991 when we liberated our economy from the shackles of the Licence-Permit Raj, our main objective was to liberate the creativity of every one of our citizens from the deadweight of bureaucracy and corruption. Today’s youth, born in the 1980s and later, would have no memory of the kind of corruption that the regime of controls and permits had created. To get a railway ticket or a telephone connection you had to bribe someone. To buy a scooter you had to bribe someone to jump the queue!

However, even as the creative energies of our people have been unleashed and old forms of corruption have vanished, new forms of corruption have emerged which need to be tackled. Elimination of corruption is critical to support genuine entrepreneurship. It is also the demand of the ordinary citizen who encounters corruption all too often in everyday transactions with those in authority.

This is a serious problem that calls for a multi-dimensional response. New institutions such as the Lokpal and the Lokayuktas are an important part of the solution and we have initiated the process for establishing them. But this is only one part of the solution. We also need reforms in systems of government which would increase transparency and minimise discretion so that the scope of misgovernance is reduced. We have taken several steps in this regard. We have introduced in Parliament a Bill on Citizen’s Charters which will empower citizens to demand services at appropriate standards from government departments. We have introduced a Bill on Judicial Accountability.

These initiatives will take time to have their full effect and we must therefore be patient. But I do believe they are transformational initiatives, which will be recognised as such a few years down the line.

A critical element in ensuring economic security and prosperity is the need for fiscal stability. India has paid a heavy price in the past for fiscal profligacy. Many of us can recall the dark days of 1990-91 when we had to go around the world begging for aid. Fortunately we were able to overcome the problem fairly quickly and for most of the past two decades we have been able to hold our head high, because we have managed our fiscal resources well. We must ensure that the country does not go down that road once again.

I am concerned about fiscal stability in future because our fiscal deficit has worsened in the past three years. This is mainly because we took a conscious decision to allow a larger fiscal deficit in 2009-10 in order to counter the global slowdown. That was the right policy at the time. But like other countries that resorted to this strategy, we have run out of fiscal space and must once again begin the process of fiscal consolidation. This is important to ensure that our growth process is not jeopardised and, equally important, our national sovereignty and self respect are not endangered.

The most important step for restoring fiscal stability in the medium term is the Goods and Services Tax. This would modernise our indirect tax system, increase economic efficiency and also increase total revenues. Another important step is the phased reduction in subsidies. Some subsidies, such as food subsidies are justifiable on social grounds and are expected to expand once the Food Security bill becomes operational. But there are other subsidies that are not and these must be contained. Some of the reforms needed for economic security attract controversy and cause nervousness. This is understandable, but we should learn from our past experience with reforms. Things that we take for granted today caused similar controversy twenty years ago. We should remember that change is necessary for development and while we must anticipate change, and even protect the most vulnerable from ill effects, we should not lock ourselves into a blind refusal to contemplate change. If we have confidence in ourselves, we will be able to meet any challenge.

Friends,

The third challenge we face, is the challenge of Energy Security. Energy is an essential for development because higher levels of production inevitably involve larger energy use. Our percapita energy levels are so low that we need, and must plan for, a substantial growth in energy availability.

The energy security challenge is particularly great for India because we are trying to develop in an environment in which our domestic energy resources are limited and the world is transiting to a period when energy is likely to be scarce and energy prices are expected to be high.

As a first step, we must ensure effective utilisation of all available domestic energy resources. Unfortunately, our attempt to tap both old and new sources of energy is being threatened by a range of problems. Be it coal or hydro power, oil or nuclear power we find new challenges that have to be overcome to develop these resources to the fullest extent possible. We must re-examine all domestic constraints on such development to see how they can be overcome.

The domestic agenda for energy security is clear. We need new investment in established sources of energy such as coal, oil, gas, hydro electricity and nuclear power. We also need investment in new sources of energy, like solar and wind. Parallel with expanding domestic supplies, we need to promote energy efficiency to contain the growth of energy associated with rapid growth.

Both goals of expanding new investment and achieving energy efficiency require a more rational pricing policy, aligning India’s energy prices with global prices. This cannot be done immediately, but we need to outline a phased programme for such adjustment and then work to develop support for making the transition. I realise that this will not be easy, but unless we can achieve this transition we will not be able to promote energy efficiency as much as we should, and we will certainly not be able to attract enough investment to expand domestic energy supplies.

Energy security also has a global dimension. Even with the best domestic effort our dependence on imported energy is expected to increase. We need assured access to imported energy supplies and also access to new energy related technologies. This means we need sensible policies that can promote economic partnership with countries that have energy resources and technologies. We also need a pro active foreign policy, protecting our access to such resources and to foreign technology.

A fourth important challenge we face in the years ahead is the challenge of ecological security. Economic growth is essential for the well being of our people, but we cannot allow growth to be pursued in a manner which damages our environment. We owe it to future generations to ensure that the environment they inherit from us is at least as capable of providing economic security for them as the one we inherited from our parents

We cannot allow the waters of our rivers to be polluted by untreated effluent and sewage. Yet this is happening today because of weak regulation and lack of enforcement over industry and the cities. Similarly, we cannot allow air pollution to proceed unabated promoting respiratory diseases which impose a heavy burden on large numbers of our people especially the poor.

Ecological security also involves protection of our forests which play a critical role not only in absorbing carbon emissions but also in providing us with water security. Forests help reduce water run off and siltation and increase water retention in the ground, recharging our underground acquifers. Some forest land often has to be surrendered to allow the exploitation of natural resources including energy and mineral resources and hydro electric potential. This must be done in a manner which minimises the extent of surrender and also provides sufficient compensatory afforestation to ensure ecological security to the nation.

All these problems can be solved and have been solved in other countries. It requires stronger and more transparent regulation and it also involves extra costs. These costs must be borne by those who pollute and this principle must be well understood and strictly enforced.

Looking beyond the immediate ecological issues, there is the larger challenge of climate change. As responsible citizens of the world we must pursue a pattern of development which reduces greenhouse gas emissions per unit of our GDP by about 20-25% by 2020 as our contribution to global ecological security. This objective is closely linked to the pursuit of rational energy policies mentioned earlier.

Dear Citizens,

Finally, and most importantly, our vibrant democracy faces threats to internal and external security which together can be viewed as  the challenge of National Security.

Despite grave provocations from extremists and terrorists, the people of India have remained united. They have not lost faith in our plural, secular and inclusive democracy. Across the world people look to India for inspiration. Our model of Inclusive Growth in an Open Society inspires those who seek freedom from tyranny.

A new wave of democracy demanding the empowerment of ordinary people is sweeping the world and India stands tall as a functioning democracy. We are a nation of over a billion people, plural, secular, democratic – with all the great religions of the world freely practiced here, with so many languages and cuisines, so many castes and communities – living together in an open society. This is an achievement for which every Indian can be proud.

The world acknowledges this achievement. I do believe that the world wants India to succeed because India offers hope.

Our democracy has its faults, but our people are aware of them and have shown their ability to correct these faults.

Often democracy can be frustrating – both to those who are in government and to those who expect it to be more efficient, effective and humane. But our democracy is our strength. It is the basis of our unity. It is also the most important guarantor of internal security.

Equally important for our national security is the modernisation of our defence forces. Indeed, India’s economic and energy security also require this.  Our Army, our Navy and our Air Force require modernisation and upgradation of personnel and systems. Ensuring this will remain my most important task as Prime Minister.

Dear Fellow Citizens,

Today I have shared my thoughts with you to make you understand the nature of the challenges we face entering a New Year.

I have identified Five key challenges facing us. These will be on top of our policy agenda this year – Livelihood Security (education, food, health and employment), Economic Security, Energy Security, Ecological Security and National Security.

In addressing each of these five challenges we must work together as a nation, while working with like-minded nations around the world.

I assure you that I will work with all the energy at my command to ensure that we meet each of these challenges and overcome them.

Let us stand united as a people in overcoming these challenges.

I wish you the best in the year and the years ahead.

Jai Hind!”

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‘Constitutional Lokpal would have been difficult to repeal’

PUBLISHED IN THE TIMES OF INDIA

With the Lokpal Bill becoming the focus of attention within and outside Parliament, Justice V N Khare, former chief justice of India, spoke with Rudroneel Ghosh on the constitutional dimensions of the anti-corruption legislation:

How does the failure to confer constitutional status on the Lokpal affect the anti-corruption ombudsman?

Such an anti-corruption ombudsman was earlier established in Haryana and Punjab through a legislative instrument, that is through an ordinary statute. But there were some political bigwigs who were involved in corruption and the Lokayukta was on the verge of catching them. What the government did then was it repealed the (Lokayukta) Act itself through an ordinance. This happened both in Haryana and Punjab. My apprehension is that if a political heavyweight is under investigation, and the ombudsman has been established through an ordinary statute, then a simple ordinance can be passed to scrap the whole institution. But if the body has constitutional status, then it can’t be amended like this. It would have been difficult to repeal the Lokpal had it been given constitutional status.

Can the opposition argue that the minority quota in the Lokpal is unconstitutional?

No. Consider Articles 15 and 16 of the Constitution. Nowhere do they talk about a Hindu, Muslim or Christian quota. What they say is that nothing will prevent Parliament from enacting a law for advancement of educationally and socially backward class of citizens and members of the scheduled caste. There’s no mention of religion. When you identify certain Hindu castes such as Yadavs, Kurmis, etc you don’t say ‘Hindus’ are getting reservation; you say they are backward groups and on this basis you give them reservation. Similarly, among the Muslim community you can identify certain backward segments and have a quota for them. So it’s not a question of religion but educationally and socially backward communities.

Does the Lokpal Bill impinge on the country’s federal structure?

Article 252 of the Constitution provides that in case Parliament doesn’t have the power to enact a law, it can on the request of the states make law for those states as well as whosoever is concerned with the law. Article 253 says that Parliament is empowered to enact laws for the enforcement of international treaties and UN conventions. For example, there is no legislative subject called human rights. But because we were a signatory to the UN Human Rights Convention, we enacted laws to establish the National Human Rights Commission. Similarly, the 2003 UN convention on fighting corruption empowers Parliament to make laws to tackle graft. It is on this basis that the Lokpal Bill has been introduced under Article 253. If the UN convention did not exist, then you could say the Lokpal Bill impinges on federalism. But not in this case.

Is there any merit in the Team Anna argument that the CBI should be brought under the Lokpal?

I don’t think that the entire CBI can be brought under the Lokpal. The CBI is a huge organisation whose investigative capabilities are used for so many things other than fighting corruption. At best you can put 50 or 60 CBI officers on deputation with the Lokpal. However, if the CBI is under the government and the government is the prosecutor, there is a clear conflict of interest in prosecuting government corruption. I believe the CBI should be autonomous in any case.

Do you think the Lokpal can be a magic bullet against corruption?

Not at all. Just like water finds its own level, people will find other routes to corruption. But the Lokpal can be a deterrent and create some fear in the minds of potential offenders.

The Great Lokpal Conspiracy Theory

JAITIRTH RAO IN THE INDIAN EXPRESS

India is fast becoming like Pakistan — a society where bizarre conspiracy theories are plausible, credible, even highly probable. We no longer blame the CIA for floods or outbreaks of dengue. But there is reason to believe that the political process is being manipulated to ensure sinister outcomes that are not apparent. On the surface, the Lokpal bill is supposed to create an institution independent of the executive branch precisely in order to investigate and act against corruption, malfeasance and wrongdoing of members of the executive — be they elected politicians or unelected officials. But dear reader, do not get misled. The hidden purpose of the present Lokpal bill is to undermine the independence of the judiciary, which, in recent times, has been one of the few checks on the executive branch.

How does this conspiracy work? Here goes:

The 50 per cent quota requirement for the Lokpal virtually ensures that the Supreme Court will strike down the law as it has been enacted. The Supreme Court has no choice if it goes by the doctrine of judicial precedence given its own past judgments restricting quotas to less than 50 per cent.

The introduction of a “minority” quota makes the situation even more awkward for the Supreme Court and almost inexorably sets up a conflict between the judiciary and the legislature. Linguistic and religious minorities are referred to in the Constitution only with respect to rights in the cultural and educational sphere. For instance, they can run schools and colleges with taxpayer support but without government interference. Incidentally, many are not aware of the provision for linguistic minorities as the expression “minority” has now become one used only on a religious basis in common parlance. By this token a Gujarati is a member of a “minority” community in Maharashtra and a Marathi-speaker gets the same position in Gujarat. Linguistic minorities have the same “cultural” rights under our constitution that religious ones do. However, and this is significant — there is no mention of reservations or quotas for “minorities” in the Constitution apropos of government appointments. The non-majoritarian and secular nature of our Constitution was best described by Justice Santosh Hegde in his intervention from the bench during the Keshavananda Bharati hearings. He said that our Constitution is secular in spirit without ever mentioning the word “secular”. This was of course before the completely illegitimate amendment made to the Constitution’s preamble by Parliament. The preamble was a mere statement of historical fact — that “we gave ourselves” a Constitution that came into effect on January 26, 1950. How can amendments be made at a later date to a historical fact?

Once the Supreme Court strikes down the Lokpal bill as it undoubtedly will, the stage will be set for a “popular” movement against the judiciary. Political workers will be brought into Delhi from neighbouring states. There will be public “pressure” on the government to bring under its “control” the recalcitrant “anti-minority”, “anti-reservation” court.

Selected ministers of the government will start attacking the judiciary for being reactionary and for not understanding the wishes of the masses.

The government will then try to overturn the present collegium-based appointment of judges of the higher judiciary and re-establish cabinet control over these appointments. Given our penchant for political amnesia, no one will remember that the collegium-based approach was a desperate one forced on the judiciary because of the arbitrary process used earlier by the government of the day to pick and choose as judges and as the chief justice individuals who were “pliable” and “committed” (presumably to the executive, not necessarily the Constitution). Cabinet ministers can conveniently recycle the thoughts of an earlier law minister, the authoritarian H.R. Gokhale, who felt that judicial independence was an undemocratic, reactionary legacy.

Our collective amnesia will also ensure that we forget that most of the legislature versus judiciary conflicts in the past were due to badly drafted (need I say, probably deliberately badly drafted) laws and ordinances, precisely like the present Lokpal bill. The hastily introduced “Bank Nationalisation Ordinance” of 1969 was struck down not for the act of nationalisation but because of the inclusion of inconsequential clauses on shareholder compensation and on the rights of erstwhile shareholders to freely engage in any business which remained their right under the Constitution. The even more hastily drafted ordinance “derecognising” maharajas was the result of the government of the day failing to win the vote for the bill in the Rajya Sabha. This was also struck down. In neither case had the Supreme Court shown any pro-rich or pro-maharaja bias. The court had merely struck down absurd self-contradictory clauses in the enactments. But the publicists of the self-styled left-liberal government of the day went to town accusing the judges of being reactionary and anti-poor. This set the stage for wholesale arbitrariness and political chicanery in judicial appointments. The Supreme Court’s “collegium” solution was a belated response to the shabby prevarications of the executive.

We can predict, as night follows day, that once the Lokpal bill is struck down, as it probably will be, we will have an open season in terms of attacks on the judiciary and the beginning of the emasculation of this constitutionally independent institution. Dear reader: the purpose of the deliberately badly drafted Lokpal bill is now clear. The purpose is not to create an “independent” Lokpal. The sinister purpose is to undermine our “independent” judiciary.

Independent institutions like the Supreme Court, the Election Commission, the Comptroller and Auditor General, the non-political armed forces and the Reserve Bank of India have saved India from becoming the home of real or imagined “conspiracies”. But don’t be surprised if this situation is now primed for change. The historical precedents and our amnesia do not suggest an optimistic prognosis.

 The writer is chairman of the Nasscom Foundation

http://www.indianexpress.com/news/the-great-lokpal-conspiracy-theory/893641/0

The bench in the Lokpal

K K VISHWANATHAN IN THE INDIAN EXPRESS

The Lokpal bill has thrown up an important issue for the judiciary to ponder. Should the Chief Justice of India or a sitting judge of the Supreme Court be a member of the selection committee to appoint the Lokpal and, worse still, the director of prosecution? The committee is to be chaired by the prime minister, with the speaker of Lok Sabha, leader of the opposition in Lok Sabha and an eminent jurist nominated by the president as its other members. For appointing the director, it is a three-member committee, chaired by the prime minister, and with the leader of the opposition in Lok Sabha, apart from the CJI or the judge. Ostensibly, the provision looks benign, but in reality is fraught with serious issues of legality and, more importantly, propriety.

Not that judges never sit on committees. The collegium for appointment to the higher judiciary is, after all, a committee of judges; judges sit on the committee for appointment of members of judicial tribunals; they preside over advisory boards to opine on the continuity of preventive detention; it is a judges’ committee that inquires into charges of misconduct against their own brethren; and judges adorn the governing bodies of premier law colleges in the country.

None of the functions enumerated above is inconsistent with the role demarcated for the judiciary under the Constitution. They all pertain to matters concerning the judiciary or aspects integrally connected with it. Membership in a committee for the appointment of the Lokpal or the director of prosecution can never be bracketed with the above.

But what is so improper or illegal about their being members of the selection committee? The Lokpal is a glorified investigating agency. It inquires whether a case for prosecution for corruption is made out, and if so found, a case is filed in the special court against the individual concerned. The director of prosecution heads the prosecuting wing of the Lokpal. These functions are purely in the executive domain. No doubt, an incumbent or retired chief justice or an incumbent or retired judge can be considered for appointment as chairperson or judicial member of the Lokpal. A simple procedure for consultation with the judiciary, as it obtains in the Karnataka Lokayukta Act, would have more than fulfilled the requirement of fairness. The problem is in statutorily compelling the CJI or a nominated sitting judge to be a member of a selection committee, predominated by political personages.

Such a role will not only undermine the high office of a judge, it will also be a serious affront to the doctrine of separation of powers and an assault on the independence of the judiciary. This is quite apart from the fact that it ill behoves a sitting judge to engage in animated discussion with politicians on the merits and demerits of a likely appointee. It is not uncommon that similar appointments have been challenged before the higher judiciary and there have been cases where the selections have been found fault with and struck down. The Restatement of Values of Judicial Life states that a judge shall not express his or her views in public on matters likely to arise for judicial determination.

The Constitution favours an arm’s-length relationship with mutual respect between the organs of the state. It is not just friction, any kind of cosying-up would also cause unease in the citizenry.

There is another fundamental aspect of the matter. Before any duty, not directly connected with the discharge of judicial functions, is assigned, the government should take the judiciary into confidence. What if, after the bill is passed, the chief justice refuses to participate? Would that be an abdication of a statutory function? Judicial time is invaluable and any encumbrance on it should be constitutionally permissible and should always be with consent.

It is time the judiciary discussed in-house the issue as to when and in what circumstances can the government either statutorily or otherwise involve incumbents of the higher judiciary and allot them duties. If a sitting judge is to be spared even for a commission of inquiry, on a definite matter of public importance, the convention is to consult the judiciary, before making the announcement. It is a serious matter concerning the independence of the judiciary and neither the government nor the judiciary should be placed in a predicament, by resorting to hasty measures.

 The writer is a senior advocate at the Supreme Court, express@expressindia.com

SOURCE LINK: http://www.indianexpress.com/news/the-bench-in-the-lokpal/893631/0

Societal morality to constitutional morality

PUBLISHED IN THE HINDU

Z M YACOOB

Equality and non-discrimination are the opposite sides of the same coin. Non-discrimination may also be regarded as the vehicle towards the achievement of equality.

Kalpana Kannabiran’s book, Tools of Justice: Non Discrimination and the Indian Constitution (Routledge, Taylor & Francis Group), a thesis of 500 pages, aims to make a contribution towards the achievement of a constitutionally acceptable order in India. It defines the change in the attitude and approach by all societal role players including, in particular, activists for social change, governmental organs as well as the judiciary. The approach it adopts includes the historical, sociological, social as well as juridical. I am not an expert on any of these disciplines nor do I know enough of the jurisprudence of India to comment on the correctness of specific facts or opinions set out in this monumental work. I have also not studied the numerous documents relied upon. My evaluation is therefore limited to examining some conceptual aspects from my perspective as a constitutional jurist in South Africa.

I must first touch upon approaches to constitutional interpretation. The writer advances an approach which may be said to be different from that adopted by the courts in India and emphasises the need to take into account the values and purpose of the Constitution. We would in South Africa too take into account the values and purpose of our Constitution. The debate about the correct interpretive approach has its basis on the distinction between arriving at the intention of the Constitution-makers, on the one hand, and the meaning of the document in its context, on the other. The latter pays little attention to the intention of Constitution-makers but, in conformity with the idea that a Constitution is a living, vibrant, flexible and dynamic instrument seeks to attain the meaning of the Constitution by extensive reference to context. I may say that I favour this approach without qualification.

It is in this sense that the methodology adopted by Ms Kannabiran is both useful and significantly powerful. She examines (in respect of disability rights; the rights of castes, tribes, religious minorities; and sex-based discrimination) the historical matrix, a conceptual delineation, the role of government, the role of activists as well as the position on the ground with ordinary people and thereafter makes proposals for change. It may well be that Ms Kannabiran has given expression to the breadth of the contextual circumstances that need to be taken into account by a court. It may not be possible for a court, in the light of the evidence available to it, to conduct as thorough an analysis as may be considered necessary. Time and resource constraints may also be a factor. But it cannot be doubted that the wider a court goes in taking into account contextual material to interpret a Constitution the greater the possibility that the final judgment of a court would reflect and represent a dynamic and living Constitution able to provide creative and transformative solutions to the problems that need to be addressed. And it must be emphasised that, unlike an ordinary commercial or delictual case, the court contest on constitutional rights often involves vulnerable communities and societies that comprise millions of people.

I did wonder whether Ms Kannabiran’s reference to Dr. Ambedkar was an attempt to go back to the approach of interpretation which relies on the intention of the lawmaker or whether the views of Dr. Ambedkar are referred to in the context of an expert.

The general approach in the thesis is to emphasise the distinction between constitutional morality and societal morality. That, as I understand it, is a distinction between the nature of society, its value system, morality, well-being, inclusiveness and peacefulness, contemplated by the Constitution, on the one hand, and societal morality, on the other. The latter is postulated as a society based on horrendous and systematic discrimination and violence against, and the exclusion of, vulnerable people and communities from the “dominant” mainstream. Ms Kannabiran’s work is concerned with the complex, difficult and obstacle ridden route from societal morality to the achievement of the constitutional morality.

We have the same problem in South Africa. Our Constitution proclaims a society that is equal and consonant with civil and political fundamental rights, environmental rights and socio-economic rights. We have a similar difficult route to follow. An evaluation which attempts to redesign the vehicle, build the road, chart the course and point to pitfalls is essential in a fundamental sense.

The building blocks employed in the determination and construction of the route are principally those of non-discrimination and liberty. If I understand the writer correctly, developing and putting into place a process that would systematically increase non-discrimination and liberty in a transformative sense would ultimately contribute best to the achievement of the constitutional order. There is no doubt that non-discrimination and liberty are important components of the process. But whether they are the most important or the only components is a different question. I would suggest, and the writer might agree, that all the values of the Constitution and all the rights contained in it are of fundamental and equal significance. A hierarchy of rights cannot be countenanced because rights are indivisible and inter-related. It must be said in all fairness, that Ms Kannabiran does indeed make extensive reference to many of the other rights of vulnerable people and communities. I get the sense that perhaps the concepts of non-discrimination and liberty are used to connote the circumstance that these concepts are applicable to all the rights in the Constitution and therefore all embracing.

The work postulates a distinction between non-discrimination and equality and a kind of synthesis between non-discrimination and liberty. There may be a different approach. Provided that we are speaking about substantive equality and not formal equality (I have no doubt that Ms Kannabiran is), equality and non-discrimination are, in my view, the opposite sides of the same coin. Non-discrimination may also be regarded as the vehicle towards the achievement of equality. An over-emphasis of the importance of freedom could, on the other hand, be counter-productive to the cause. This is because almost all dominant sectors rely on their right of freedom to continue with their oppressive, non-transformative, objectionable conduct. Yet, if freedom is qualified by equality in the sense of everyone being entitled to an equal freedom, the achievement of an equal society would then be modulated by appropriate management of the tension between freedom and equality.

I can only comment on one more issue. And that is Ms Kannabiran’s plea, support and argument for intersecting grounds of discrimination as well as analogous grounds. Our Constitution provides for both and it is an important reason why I swear allegiance to it. It goes without saying that a poor Dalit deaf lesbian woman on a wheelchair is far more vulnerable and in greater need of constitutional protection than a female university teacher who has all her faculties and who is part of the “dominant” classes. If this is not recognised, constitutional jurisprudence could suffer. And there is no need to limit protection to the grounds expressly mentioned in the Constitution.

I would have hoped that the book would have been shorter to be more accessible so that role players who are important in the various sectors would have been able to benefit from it completely even if they were not academically inclined. Nevertheless, a careful study of this fascinating work would enhance an understanding of the position on the ground, the dire need for change and the way in which this is to be done.

(Z.M. Yacoob is Justice of the Constitutional Court of South Africa.)

Source:   http://www.thehindu.com/opinion/lead/article2758601.ece

Need for a more considered debate on lokpal

RAJINDER SACHAR IN THE TRIBUNE

The debate on the Lokpal Bill requires calm and cool consideration. The timing of the debate, surcharged before the election in five states, is not conducive and is unlikely to do justice to the enormity of the task

The debate in Parliament on the proposed Lokpal legislation has unfortunately touched a nadir; instead of discussing the legislation in a sober atmosphere and making a conscious effort to arrive at as much consensus as possible, the political parties are instead indulging in acrimonious and heated exchanges.

The exercise of the government in furtively slipping in various quotas, including for the minorities, appears a deliberate one with one eye on UP elections, notwithstanding doubts on the legality of it expressed by former Supreme Court judges and jurists. Why would any one imagine that the selection committee comprising the Prime Minister, Leader of Opposition in the Lok Sabha and the Chief Justice of India, would not consider members from amongst Muslims and women, when any number of them are available from these sections on their own merit ?

Why indeed was this non-issue allowed to take over the debate, unless it was a device to stall the Lokpal legislation ? Let us not forget that parties led by Mulayam Singh and Laloo Prasad were the ones which sabotaged the Women’s Reservation Bill by insisting on a sub quota for the OBCs. They managed to embarrass Sonia Gandhi and Sushma Swaraj, who had earlier embraced, without any embarrassment, and congratulated each other over their victory in the Lok Sabha. But they had to beat a retreat in the Rajya Sabha.

The suggestion that if there are allegations against the Prime Minister, they would be decoratively shelved and brought out after he remits office (which may be even 5 years later), also does not make any sense. An incumbent Prime Minister of Italy this year was forced to resign on corruption charges after he was found to be guilty by a court. Similarly Jacques Chirac, a former President of France was recently sentenced to 7 years of imprisonment, again for corruption while a former President of Israel has been sent to jail on grounds of sexual harassment and moral impropriety.

The most contentions matter of the CBI also remains unresolved. Ideally, the appointment of the Director, CBI should be by a joint committee consisting of the Lokpal and a Standing Committee of Parliament. Give the CBI Director a fixed tenure for five or ten years. He should have full administrative control over the staff of C.B.I. and over earmarked funds from the Consolidated Fund of India.

There should be no interference with his day to day work by the Central Government or the Lokpal. However the Lokpal would be entitled to ask and receive reports from him at regular intervals. The Director, CBI shall not be removed from service except in the manner and on similar grounds as a judge of the Supreme Court – in the same manner of removal, which applies to the removal of the Chief Election Commissioner.

Immunity for MPs

Surprisingly, not withstanding bitter wrangling on most other aspects, all Members of Parliament have unanimously agreed to keep themselves outside the ambit of the Lokpal and the CBI for any corrupt action and bribery inside the Parliament. To me this is scandalous and unacceptable.

In their defence, Members of Parliament invoke Article 105 of the Constitution, and the widely criticised  majority  judgment (3 against 2) in the Narasimha Rao case (1999). The minority judgment, however, had warned that this interpretation could lead to a charter for corruption and elevate Members of Parliament as “super-citizens, immune from criminal responsibility”.

It would indeed be ironic if a claim for immunity from prosecution, founded on the need to ensure the independence of Members of Parliament in exercising their right to speak or cast their vote in Parliament, is put forward by a Member, who has bartered away his independence by agreeing to speak or vote in a particular manner in lieu of illegal gratification. In other countries such a conduct of MPs is treated as criminal, since 1875, for example, in Australia.

Calm consideration

The matter of Lokpal is too important and needs to be discussed more seriously and not under pressure of forthcoming elections in Punjab and in Uttar Pradesh. The knee-jerk reaction of the Central Government to Anna Hazare’s threat of fast, was possibly prompted by the Opposition’s eagerness to cash on the civil society movement and opposition leaders cosying up to Anna Hazare.

Their puerile excuse that they sat with Hazare because they wanted to explain their point of view is unacceptable political behaviour. Political Parties should hold their own meetings to explain their position to the public. Anna Hazare does have the right to muster support, arouse masses and exercise his democratic rights – and to put pressure on the government and even the Parliament, to pass a particular law because the ultimate sovereign are the people. But there is a caveat that this discussion requires a calmer atmosphere. Could the parties unanimously agree to adjourn the discussions till after the UP elections are over, with a pledge to pass the legislation as the first item when Parliament begins its next session ?

As a measure of his genuine concern for a strong Lokpal, Anna Hazare on his part, one hopes, would reciprocate by not going on fast or agitation. He can rest assured that people’s determination to have a strong Lokpal is not so weak as to let the government ignore its solemn pledge to pass the Bill.

If the government prevaricates, it must know that consequences could be monumental and no government can remain in permanent confrontation with its real masters, the people of India.

The writer is a former Chief Justice of Delhi High Court

But the flaws in the Bill cannot be settled on the street. Agitations may even destroy the country

Kuldip Nayar IN THE TRIBUNE

The amended Lokpal Bill being debated in Parliament does not appear to give enough powers to the institution of the Lokpal (Ombudsman) to deal with corruption within the government. Despite the government claiming that it has given enough powers in the Bill and addressed the concerns raised by Anna Hazare, he has already rejected the Bill introduced in Parliament and has proceeded on fast in Mumbai. He has also threatened to demonstrate outside the houses of ministers and MPs in New Delhi. He has also called upon the people to fill the jails (Jail Bharo) and has warned the Congress that he would himself campaign against the party in the forthcoming elections in five states. The ruling Congress President Sonia Gandhi has picked up the gauntlet, declaring that the party is ready for the fight.

The key issue is control over the Central Bureau of Investigation (CBI). The government has rejected the demand for transferring its administrative control to the Lokpal or to any independent agency. Apparently, the government has a lot to hide and, therefore, cannot allow its omissions and commissions to be exposed.

The UPA government led by Manmohan Singh has used the CBI to put pressure on UP Chief Minister Mayawati and former Chief Minister Mulayam Singh Yadav, whenever it has been threatened with defeat in the Lok Sabha. The Congress has a strength of 207 in the 545-member Lok Sabha. The pressure works because both Mayawati and Mulayam Singh are facing CBI cases for their disproportionate assets.

The Congress alone cannot be blamed though. All governments, including the one led by BJP leader Atal Bihari Vajpayee have used the CBI to serve their own interest. A senior opposition leader from Bihar admitted on the floor of the Lok Sabha that they too had misused the CBI when they were in power. Many former directors of CBI have recorded in books they have written after their retirement that they were pressurised by one government or the other to prosecute or not to prosecute in an assortment of cases involving politicians and political parties.

Parties united

I was a member of the Rajya Sabha when the Bill to spell out control over the CBI came up before the Parliamentary Standing Committee on Ministry of Home Affairs. The then Chief Justice of India J.S.Verma had proposed in a Hawala case to set up an independent Directorate of Prosecution (DOP) to have control over the CBI. But no political party — all of them were represented in the Committee — wanted the CBI to be autonomous.

I was disappointed when Justice Verma’s proposal was summarily rejected. The administrative control of the government over the CBI was endorsed. So much so that the Committee restored the Single Directive which the Supreme Court had thrown out. The Single Directive meant that the government’s permission was required before initiating an inquiry or action against officers of the rank of Joint Secretaries and above. There is hardly a minister who does not use these officers to serve his own or his party’s interests. The details of the 2G Spectrum scam, now revealed by the CBI, show how ministers were in league with the private parties in the allotment of licences without following any of the established rules.

The Lokpal is toothless without control over the CBI and will be quite helpless to probe into the misdeeds of ministers or senior officials.

My main objection is against the provision for 50 per cent reservation. Quotas are alright in jobs or educational institutions. But when we are selecting people for Constitutional positions, we want the best talent available. I am told that in the Congress, some voices have been raised for having reservations in the High Courts and even the Supreme Court. What kind of India are we building when parochialism is on the agenda of political parties for the sake of placating voters of one community or the other?

Unfortunately, the government has already conceded the enumeration of castes in the in the 2011 census. I wish the counting was designed to learn how many poor people are there in the country. By introducing reservation in the Lokpal, the government is sowing seeds of division and conflict in the fight against corruption. I hope that Anna Hazare would raise his voice against reservation in Lokpal.

Anna’s firm ‘no’ to the Lokpal Bill indicates that the battle may go to the streets. This is undesirable and will destroy the country. Political parties should collectively think how to sort out the issue without agitations. The dictum that the loss of one is the gain of the other is shortsighted. Whatever the moves or counter-moves of political parties, people should be vigilant and not play into their hands.

http://www.tribuneindia.com/2011/20111228/edit.htm#6

Freeing the CBI

G P JOSHI IN THE INDIAN EXPRESS

The debate on the Lokpal bill has thrown up three propositions about the CBI. One, retain the status quo; two, transfer the control to the Lokpal; and three, make the CBI an independent organisation. The CBI is now governed by an outdated act of World War II vintage, called the Delhi Police Establishment Act, which was enacted in 1946 to regulate the functioning of the Special Police Establishment. Section 4 (1) of this act vests the superintendence of the CBI in the Central government, just as Section 3 of the police act of 1861 vests the control of the state police force in the state government.

Since the word “superintendence” has not been defined in any law, both the Central and state governments have misused police forces to serve their partisan interests. There is a general perception that the CBI, like other police forces in the country, is influenced in its work by political considerations.

Can any government ever think of making the CBI an independent organisation? If one plays the devil’s advocate, one can think of two arguments that the Central government can cite in favour of retaining its control over the CBI. First, any police force, including the CBI, is a part of the executive, and in the Westminster model of governance that we have adopted, the minister concerned is responsible to Parliament for the efficient and honest functioning of his departments. Second, the police, including the CBI, enjoys tremendous powers and it is important for the government to ensure these powers are used judiciously.

While the first argument can be considered valid, the second can be contested. It is true that in a democratic system, police powers need to be controlled to prevent their misuse, but then it has to be realised that controlling the police itself becomes a source of tremendous power that can be misused to serve partisan interests, as has happened so frequently in this country. What is needed is to set up institutions and mechanisms to balance these two requirements.

In the judgment on the hawala case, the Supreme Court tried to make one such attempt. While the court transferred the responsibility of exercising superintendence over the CBI’s functioning from the government to the Central Vigilance Commission (CVC), it simultaneously held that the concerned minister should be ultimately responsible for its efficient functioning to Parliament. The court maintained that none of the minister’s powers could extend to interfering with the course of investigation and prosecution in any individual case. Investigation is to be governed strictly by the provisions of law.

Unfortunately, the government did not implement the judgment of the SC either in letter or in spirit. The Central Vigilance Commission Act of 2003 derailed the judgment in three important ways. One, it resurrected the Single Directive despite the fact that the court had held it null and void, being bad in law. Two, it did not transfer superintendence to the CVC fully. The CVC Act 2003 prescribed that the CVC shall exercise superintendence not over the CBI but over the Delhi Special Police Establishment (DSPE) only, regarding cases registered under the Prevention of Corruption Act 1988. Third, in exercising superintendence over the organisation, the government did not keep itself within the boundaries as defined in the judgment.

The possibility of misuse of the police by the government of the day has caused concern in other countries too. They have found solutions by developing traditions of good governance and setting up new institutions. The UK seems to have successfully implemented a very subtle distinction between the police as an organisation and policing as a set of activities. While the police as an organisation is the responsibility of the government, policing as a set of functions is the responsibility of the head of the police force. Government’s role is to formulate policies, provide budget, set standards and monitor performance, but it cannot give any operational direction to the police chief. The police acts in some other regions and countries have dealt with this problem by clearly defining the role and responsibilities of the government and the police department. In Queensland in Australia, communication between the minister and the commissioner of police is guided by clear provisions of the police act. Directions from the minister have to be in writing and the commissioner of police is bound to comply with the directions, but keep a record of all correspondence, which is later placed on the floor of the assembly.

In India, there could be mechanisms and institutions that will ensure the CBI’s functional autonomy, as no government will ever agree to relinquish its control over an organisation like the CBI. Also, the Lokpal could have its own independent investigating agency, which need not necessarily be the CBI.

 The writer is a former director, Bureau of Police Research & Development, express@expressindia.com

http://www.indianexpress.com/news/freeing-the-cbi/892723/0