RAJEEV DHAWAN IN THE INDIA TODAY
This has been the year of protest. The Middle East and North African (MENA) countries captured an upsurgence of people. The elections in MENA threw up Islamic successes to remind us that democracy is a barometer not a result. In India, the movement against corruption attracted lakhs, forced the government’s hand on the Lokpal Bill, pressurised a pre-emptive resolution from Parliament on August 28, 2011, and survived strong arm tactics against Anna Hazare and Baba Ramdev and smear campaigns against others.
The year has ended with Anna giving up another fast. The UPA outsmarted itself by promising reservations to women, SC, ST, OBC and minorities and Lokayuktas in the states. This khichree proved to be its undoing. It produced an awkward majority in the Lok Sabha and a chaotic carry over to the next year in the Rajya Sabha. The Bill produced an unwieldy Lokpal, testing boiling water with the patently unconstitutional provisions on minority representation and forcing Lokayuktas on the states.
The constitutional challenge is whether popular democracy, elite populism or rabble rousing will destabilise institution based parliamentary democracy? The right to strong protest can never be denied. In December 2011, the Bombay High Court was wholly wrong to say that parallel protest could not take place when Parliament was in session. This is 19th century stuff. Equally the maidan fee should be minimal for non-commercial protest by the poor and well-off alike. To lose the right to aggressive protest is to lose democracy. But, blackmailing democratic institutions into submission and denying discourse is to join the chaos of South and South-East Asia. In rigidly ousting alternative discourse, Anna went overboard.
Anti-corruption cases reached the Supreme Court. The Black Money case set up a powerful monitoring committee of Justices Jeevan Reddy and M. B. Shah to oversee the investigation. The government’s attempt to recall the decision led to a divided court. Ambiguity lives on. The 2G case led to dramatic arrests of the high and mighty. Raja lost his ministership. Many, including Kanimozhi, were held in jail for inordinate, unjustified months until the Supreme Court realised that its own norm was “bail not jail”. While the government protested that the so called loss to the exchequer by the scam was to keep ‘teleprices’ low, the case requires examining the Swan Bid, the first-come-first-get system and other machinations. In the Supreme Court cash- for- votes case, Amar Singh was in the soup – but others escaped the net. Foreign companies were upset when India’s tax authorities commenced investigation against the Vodafone-Hutch deal as a scam. The judgment is awaited.
Santosh Hegde, Karnataka’s Lokayukta who nearly tearfully resigned in July 2010, exposed the CM’s mining lobby to show what an ombudsman can do. But the Karnataka High Court ruled out the Lokayukta’s choice of prosecutor to strengthen demands for an independent investigation, inquiry and prosecution wing for the Lokpal. Rahul Gandhi had proposed a constitutional amendment to incorporate the Lokpal which was produced in record time by law minister Salman Khurshid to be inevitably defeated in the Lok Sabha. Supreme Court proceedings resulting in removing P. J. Thomas as CVC exposed selection procedures for important appointments being far from foolproof or immune from political patronage.
Attempts to impeach high court judges failed. P. D. Dinakaran simply resigned – taking the high ground that the procedure was all wrong. Soumitra Sen got an adverse result from the Rajya Sabha but resigned before he had to face the Lok Sabha. Meanwhile, the government’s Judicial Accountability Bill 2010 has transited through the parliamentary standing committee and was re-tabled by Khurshid on December 21. Judicial corruption exists abundantly. So do increasing levels of judicial incompetence – requiring legislation for proper judicial selection. Over 2011-12. Chief Justice Kapadia will be responsible for replacing 10 judges of the Supreme Court. Retiring judges rush through one year long backlogs of judgments, which suffer from lack of memory and bad note- taking. Judges are over-worked. But judicial standards are falling. Institutions with bad renewal of good people sell their future short.
The Supreme Court’s direct continuing control over forest and environment has gone on for 15 years and must stop. It has helped the green cover and stopped some slaughter mining. But it must give up this magnum control in favour of what Chief Justice Kapadia calls a proper regulatory authority.
Even though the Supreme Court has not been equitable on rehabilitation and resettlement (R& R) in the Omkareshwar dam case (2011), over the years the court has taken a lead on equitable land acquisition. This year it was through Justice Singhvi, in the UP and other cases. The government took a historic decision to draft the Land Acquisition and Relief and Rehabilitation Bill 2011 (LA and RR) which is a step forward, but full of flaws relating to tribal areas, R& R deficiencies, facilitative acquisition for the private sector and too many exclusions. Chairman of the standing committee, Sumitra Mahajan, has rightly taken the view not to rush through the Bill. The new Mines and Minerals Bill, approved by the standing committee in 2008, underwent changes by the Cabinet on September 30, 2011. Compensation to ‘tribals’ etc will be limited, without the proposed 26 per cent share in the mines to make them exploited labour.
A fantastic Planning Commission (PC) affidavit to the Supreme Court in September 2011 on food entitlements fixed the ` 25 per person per day in rural areas which “ensures the adequacy of actual private expenditureâ on food, education and health”. An embarrassed government backtracked on October 3, 2011 – clarifying that the PC’s view will not be the bases of price fixation or distribution. It seems odd that after so many years we do not know how to identify beneficiaries. The Supreme Court heard the challenges to the Right to Education Act; and judgment is awaited on whether unaided private and minority institutions can be forced to admit poor students in the neighbourhood.
The Act was flawed. Attorney General Vahanvati has promised amendments. Some are being filtered through Parliament. Socio-economic rights are inadequate. With cold wave deaths and people dying in hospitals, India has a lot to think on socio-economic fronts. Meanwhile, Mullaperiyar signifies that our water disputes are not being solved. Water-man Rajendra Singh persuaded ex-Justice Jeevan Reddy to have a meeting to address pollution and conservation of water through social action because legal action failed. The Supreme Court’s Uphaar decision lowering the damages to victims is all wrong – confusing unjust enrichment and principles of ordinary and exemplary damages.
India’s dichotomous approach to poverty, development and growth emerged at the global environment meet in Durban. The “North” countries want to cap India’s growth because the BRIC countries are economic competitors. When will India put forward a convincing case that with more than 50 per cent of a vulnerable population (larger than most nations) she is still in the process of development? Although India was the benign ‘deal breaker’ to send the Kyoto protocol into another phase, negotiating global multilateral treaties has not been India’s strong point.
The Supreme Court declared the State guerilla Salwa Judum (including children) unconstitutional. The right to display cinema has been thwarted by state governments and public reactions as in the case of Dam 999 about Mullaperiyar. Free speech remains threatened by civil society intolerance. On July 19, 2011, metropolitan magistrate Arul Verma gave a remarkable judgment on the rights of refugees not to be deported without adequate due process.
By contrast, Judge Mukesh Kumar of the Rohini Court, responded to a petition by Mufti Qasmi (formerly of Darul-ul-Uloom of Deoband) by issuing notices to websites to clean ‘offensive’ material from their sites. This is in line with Kapil Sibal’s statements and those of the chairman of the Press Council. But what can be considered “offensive”? And can this censorship be done without authority of law? The tumult of 2011 offers uncertainty to 2012.
– The writer is a Supreme Court lawyer
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- Need for a more considered debate on lokpal (indialawyers.wordpress.com)
- In action-packed 2011, Supreme Court cleared over 79,000 cases (indialawyers.wordpress.com)
- Lokpal and Lokayuktas Bill 2011 Introduced in Lok Sabha (indialawyers.wordpress.com)
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