The case that saved Indian democracy

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

ARVIND P DATAR IN THE HINDU

The judgment in Kesavananda Bharati v State of Kerala, whose 40th anniversary falls today, was crucial in upholding the supremacy of the Constitution and preventing authoritarian rule by a single party

Exactly forty years ago, on April 24, 1973, Chief Justice Sikri and 12 judges of the Supreme Court assembled to deliver the most important judgment in its history. The case of Kesavananda Bharati v State of Kerala had been heard for 68 days, the arguments commencing on October 31, 1972, and ending on March 23, 1973. The hard work and scholarship that had gone into the preparation of this case was breathtaking. Literally hundreds of cases had been cited and the then Attorney-General had made a comparative chart analysing the provisions of the Constitutions of 71 different countries!

Core question

All this effort was to answer just one main question: was the power of Parliament to amend the Constitution unlimited? In other words, could Parliament alter, amend, abrogate any part of the Constitution even to the extent of taking away all fundamental rights?

Article 368, on a plain reading, did not contain any limitation on the power of Parliament to amend any part of the Constitution. There was nothing that prevented Parliament from taking away a citizen’s right to freedom of speech or his religious freedom. But the repeated amendments made to the Constitution raised a doubt: was there any inherent or implied limitation on the amending power of Parliament?

The 703-page judgment revealed a sharply divided court and, by a wafer-thin majority of 7:6, it was held that Parliament could amend any part of the Constitution so long as it did not alter or amend “the basic structure or essential features of the Constitution.” This was the inherent and implied limitation on the amending power of Parliament. This basic structure doctrine, as future events showed, saved Indian democracy and Kesavananda Bharati will always occupy a hallowed place in our constitutional history.

Supreme Court v Indira Gandhi

It is supremely ironical that the basic structure theory was first introduced by Justice Mudholkar eight years earlier by referring to a 1963 decision of the Supreme Court of Pakistan. Chief Justice Cornelius — yes, Pakistan had a Christian Chief Justice and, later, a Hindu justice as well — had held that the President of Pakistan could not alter the “fundamental features” of their Constitution.

The Kesavananda Bharati case was the culmination of a serious conflict between the judiciary and the government, then headed by Mrs Indira Gandhi. In 1967, the Supreme Court took an extreme view, in the Golak Nath case, that Parliament could not amend or alter any fundamental right. Two years later, Indira Gandhi nationalised 14 major banks and the paltry compensation was made payable in bonds that matured after 10 years! This was struck down by the Supreme Court, although it upheld the right of Parliament to nationalise banks and other industries. A year later, in 1970, Mrs Gandhi abolished the Privy Purses. This was a constitutional betrayal of the solemn assurance given by Sardar Patel to all the erstwhile rulers. This was also struck down by the Supreme Court. Ironically, the abolition of the Privy Purses was challenged by the late Madhavrao Scindia, who later joined the Congress Party.

Smarting under three successive adverse rulings, which had all been argued by N.A. Palkhivala, Indira Gandhi was determined to cut the Supreme Court and the High Courts to size and she introduced a series of constitutional amendments that nullified the Golak Nath, Bank Nationalisation and Privy Purses judgments. In a nutshell, these amendments gave Parliament uncontrolled power to alter or even abolish any fundamental right.

These drastic amendments were challenged by Kesavananda Bharati, the head of a math in Kerala, and several coal, sugar and running companies. On the other side, was not only the Union of India but almost all the States which had also intervened. This case had serious political overtones with several heated exchanges between N.A. Palkhivala for the petitioners and H.M. Seervai and Niren De, who appeared for the State of Kerala and the Union of India respectively.

The infamous Emergency was declared in 1975 and, by then, eight new judges had been appointed to the Supreme Court. A shocking attempt was made by Chief Justice Ray to review the Kesavananda Bharati decision by constituting another Bench of 13 judges. In what is regarded as the finest advocacy that was heard in the Supreme Court, Palkhivala made an impassioned plea for not disturbing the earlier view. In a major embarrassment to Ray, it was revealed that no one had filed a review petition. How was this Bench then constituted? The other judges strongly opposed this impropriety and the 13-judge Bench was dissolved after two days of arguments. The tragic review was over but it did irreversible damage to the reputation of Chief Justice A.N. Ray.

Constitutional rights saved

If the majority of the Supreme Court had held (as six judges indeed did) that Parliament could alter any part of the Constitution, India would most certainly have degenerated into a totalitarian State or had one-party rule. At any rate, the Constitution would have lost its supremacy. Even Seervai later admitted that the basic structure theory preserved Indian democracy. One has to only examine the amendments that were made during the Emergency. The 39th Amendment prohibited any challenge to the election of the President, Vice-President, Speaker and Prime Minister, irrespective of the electoral malpractice. This was a clear attempt to nullify the adverse Allahabad High Court ruling against Indira Gandhi. The 41st Amendment prohibited any case, civil or criminal, being filed against the President, Vice-President, Prime Minister or the Governors, not only during their term of office but forever. Thus, if a person was a governor for just one day, he acquired immunity from any legal proceedings for life. If Parliament were indeed supreme, these shocking amendments would have become part of the Constitution.

Thanks to Kesavananda Bharati, Palkhivala and the seven judges who were in the majority, India continues to be the world’s largest democracy. The souls of Nehru, Patel, Ambedkar and all the founding fathers of our Constitution can really rest in peace.

(Arvind P. Datar is a senior advocate of the Madras High Court.)

Advertisements

‘If judges show anger unnecessarily, people will feel we are just like ordinary people. We have to show our stature is above that.’

JUSTICE PN BHAGWATI

JUSTICE PN BHAGWATI

SHEKHAR GUPTA IN INDIAN EXPRESS

In this Walk the Talk on NDTV 24×7 with The Indian Express Editor-in-Chief Shekhar Gupta, former Chief Justice of India P N Bhagwati expresses regret over his habeas corpus judgment that upheld the right of the Indira Gandhi government to suspend all fundamental rights during the Emergency and explains why he wrote a letter of praise to Mrs Gandhi

My guest this week is one of Indian judiciary’s most important shining lights, Justice P N Bhagwati. It tells you about the creative energy in his mind that even now, when he is about to turn 90 very soon, he is working on two books, including his memoir. The judiciary is in news these days. The government complains about the Supreme Court’s obiter dicta, we also editorially complain about it. It seems somehow that the tension between the executive and the judiciary has become too much.

Well, that can’t be helped. Even in normal times there is bound to be some tension between the judiciary and the executive, particularly because the judiciary is entrusted with the task of enforcing the Constitution and it has got to enforce the fundamental rights of citizens and these fundamental rights sometimes come into conflict with what the government desires to do. But that is a conflict that can be resolved by the judiciary and whatever the judiciary decides as a matter of law and the Constitution should be accepted by the executive. Then there will be no tension.

But do you think that sometimes the executive doesn’t accept it?

Yes, in the last few years there have been occasions when the executive has not accepted decisions of the judiciary.

Sir, two recent judgments. I don’t know if you have followed them. The Salwa Judum judgment and the black money judgment in which the government felt, and many of us also felt, that the bench had exceeded the constitutional limits. In both cases there are appeals now for review.

Appeals are there, the Supreme Court will have to dispose of those appeals according to law. But very often, judges forget, lawyers also forget, that law is not an abstraction. Law is something which has been moulded and developed by the courts, by the judges. Law is ultimately what the judges make it, and therefore the judges must have a social perspective. They must be anxious to see that human rights become meaningful for the large masses of people in the country. They should not feel worried about the executive or I would say even about what people say. Their function should only be to enforce the basic human rights that are embodied in our Constitution.

In your own career as a judge, did you feel pressure from the executive and how did you deal with it?

No, I never felt any pressure from the executive. I delivered several judgments, many of them against the government, but not once did I feel that the executive felt offended. It’s possible that they didn’t like my judgments but they never showed any anger.

Any vindictiveness?

No, never.

You were a judge when the executive was much powerful than it is now. Mrs Gandhi’s executive was very powerful.

But the judiciary of my time was equally powerful. Let me tell you that there was never a single occasion when the judiciary and my leadership felt thwarted by the executive or by Mrs Gandhi.

But look at the praise that you wrote for Mrs Gandhi. Most judges today would be embarrassed to write such a flowery prose about a prime minister.

I wrote about her because she fully deserved what I said. She had given this country a united India. Let us not forget the fact.

But somebody who rose to become Chief Justice of India, was it correct for you to write praise for her? It didn’t compromise you?

Publicly, no. But the CJI writing to the PM or the PM writing to the CJI privately was not wrong.

But today it would be out in the RTI and published.

It should not be published. It does a lot of harm.

So are you then saying that these correspondences should not be exposed to RTI?

It should not have been exposed to RTI. Basically what I wrote and what she wrote to me, I don’t remember now, was in the strictest confidence.

But does it pass the test of propriety for the Chief Justice of India to write praise in such flowery prose to the PM and expect it to be kept confidential?

No. I entirely agree with you it was wrong on my part.

You agree with that. But you got carried away? Why did you write that?

I was carried away by the result that was achieved.

…in the election?

Because I always believed that the welfare of the people was the ultimate goal, both of the judiciary and the executive, and anything which tends to further that goal or improve the condition of the people is something that deserves praise.

You did not write in anticipation of any benefits or rewards?

In my life, I have never anticipated anything. But I always believed that my duty is to serve my people. I was in the freedom struggle. I went to jail in 1942. I have always fought for the rights of the people and you look at my judgments.

You started the PILs. You used the postcard and treated it as PIL. Tell us the story of the postcard.

When I became a judge in the Supreme Court, I went round the country and when I visited various villages and towns, people gathered around me because they were interested in seeing a Supreme Court judge. I used to talk to them and I realised for the first time how important a judge’s function was. When people came, many of them were in tatters, many of them had sunken bellies. I realised that my justice was not reaching them. My justice, which I was administering, was meant for the few who could afford lawyers, litigation, court fee. That brought a change in my heart, my attitude. And then I started getting postcards, I started treating them as writ petitions. And ultimately I developed the whole theory of public interest litigations.

That’s your great positive contribution, but let me take you back to your regret and to the letter to Mrs Gandhi. When did you first feel that it was wrong to have written it?

Soon thereafter, I would say. I realised that I should not have treated that letter the way I did. Perhaps I exceeded my jurisdiction.

In the praise that you wrote for her?

No, not that the praise was ill informed but as a judge, as the chief justice, I shouldn’t have written it.

If you had written this, then you had wished it had not become public?

Definitely. It was not meant to be public.

What harm does it do if it becomes public, as it became public?

Well, perhaps to an extent people might feel that I’m pro-government. But very soon the impression that I am pro-government was dispelled.

But apart from that letter to Mrs Gandhi, one thing that rankles is your habeas corpus judgment, the ADM Jabalpur case, when you ruled with the majority of the judges to say the government could take away the right to life of a citizen.

Still looking back, legally we were right, the majority was right. But if I were sitting alone and I would have an opportunity to say it again, I would have taken a different view though that different view would not have been consistent with the words of the Constitution.

As you said earlier, law is not an abstraction. And law is what the judges make it out to be. Did you, as a judge, fail to make the right interpretation, or the right use of that law?

I’ve always admitted that. As a bold judge, as an imaginative judge, as a judge working for the people, I should not have taken that view.

Many of your critics say you cannot just express regret because that judgment did or could have done damage to the liberty of Indian citizens.

But I don’t see how could it have done damage because I think the amendment was made and in fact two years later or so, a similar case came before me and I took a different view. I said in the judgment that the view I had taken was wrong and I changed my view.

One judge disagreed and that was Justice H R Khanna. At that point did you think he was wrong?

At that point, perhaps I must have thought so.

Did you have any conversation with him on this?

No, he didn’t discuss with me. Soon after, he resigned because he was superseded.

That is the whole point. It becomes obvious to join the dots. All the judges who favoured the judgment, the judgment that Mrs Gandhi wanted, rose to become chief justices. The only one who did not was Justice Khanna.

But I became chief justice much, much later.

But the fact is that everyone on that bench, except Justice Khanna, rose to be CJI.

That’s because of seniority. Purely because of seniority. And Khanna should not have been superseded.

But Mrs Gandhi superseded him.

It was wrong on the part of Mrs Gandhi not to appoint Justice Khanna as CJI according to seniority.

What would you have told Justice Khanna if you had met him now?

I would have said it was very brave of you to give the dissenting judgment.

The ’70s saw the habeas corpus judgment and then you had the Kesavananda Bharati judgment that protected our freedom forever. It was the most important five years, I would say, in the evolution of India’s constitutional history. Do you think the period we are seeing now is a period comparable to that? There is the Jan Lokpal movement, there is a demand for a Judicial Accountability Bill. You were a party to setting up the collegium system and now the executive and Parliament are both going after it saying the system is not right. Judges are giving judgments that are setting up monitoring committees on everything.

If you are talking about appointment of judges, I have publicly said that appointment of judges should not be left entirely in the hands of the executive, nor should be left entirely in the hands of the CJI.

…which is the case now.

Now it is a collegium.

Now only the judiciary does it.

Collegium is alright but collegium should be run with some principles to guide it. The old system under which I worked was much better. The CJI made a recommendation after consulting some of the senior judges. Then the government, the law minister would discuss the matter with the CJI, and then we would make the appointment. Look at the earlier appointments, most of them were very good.

But right now, the problem is that there are so many vacancies in the courts. Allahabad High Court has 100 vacancies.

No vacancy in the High Court or the Supreme Court should be allowed to remain unfilled for a long time. Judges have assumed to themselves the power to make appointments, which is a wrong thing. In my opinion, the Constitution has been wrongly interpreted.

So it can’t just remain a fully in-house job?

No, it can’t. If you make the first five judges decide, then sometimes it is possible—I don’t want to make any allegations—that there may be give-and-take among the judges. You have my man, I will have your man. Therefore, I have always maintained and publicly said that appointments should be in the hands of CJI and the law minister.

Do you think the judiciary is under a bit of siege? One, it has resisted reform, it took such a public outcry for them to even declare their assets, RTI and now appointments. Then they are delving into areas of governance, setting up special investigating teams and monitoring them, asking the director of RAW to report to them on black money.

One feels sad that judiciary should come to this pass.

Why? If you could elaborate.

During my time, the judiciary enjoyed the highest respect.

Do you think that respect is threatened right now?

That respect has slightly gone down. There are a few judges who still enjoy that respect, I am told. But I can’t say about all judges today.

Why the judiciary is under pressure is because the Lokpal people are saying bring the judges under Lokpal, government is saying there should be a Judicial Accountability Bill.

I’m against bringing judges under the Lokpal because public pressure will mount unnecessarily. It will affect the independence of the judges. But judges should have their own separate body.

With some involvement of the executive or no involvement of the executive?

No involvement of the executive. Why don’t we have a retired chief justice of India, a sitting chief justice, one or two senior sitting judges, attorney general and one leading member of the Bar?

Did you ever discuss this with your very famous contemporary Shanti Bhushan?

I’ve met him occasionally, but have not discussed these issues with him. What is his view?

He wants the judiciary to be brought under the Lokpal.

No, it is dangerous to have the judiciary under the Lokpal.

Why dangerous?

Because the Lokpal ultimately is a person who is moved by public sentiment. I don’t want that. Let there be a separate Lokpal, if you like, for the judiciary. That is the best thing. I have already made this recommendation of mine in writing.

What is your advice to today’s judges?

Judges should retain their peace of mind because after all they have got to present an image that people will respect. If we show anger unnecessarily then people will feel that we are just like ordinary people. We have to show our stature is above that.

So do you object to obiter dicta?

No, but they should be well placed. Obiter dicta must be called for.

Do you remember any moment from the times of the bench when you used obiter dicta and well?

I must have sometimes, but I can’t recall now after this length of time.

I think one wonderful thing you have done is to keep yourself busy. Your thoughts are always valuable and now you are putting them down in a book. We will all wait for your books to come out.

Source:    INDIAN EXPRESS http://www.indianexpress.com/news/if-judges-show-anger-unnecessarily-people-will-feel-we-are-just-like-ordinary-people.-we-have-to-show-our-stature-is-above-that./858177/0

35 yrs later, a former Chief Justice of India pleads guilty

Hans Raj Khanna

Image via Wikipedia

INDIAN EXPRESS

Over 35 years after he signed off — with the majority on a five-judge bench of the Supreme Court — to rule that even the right to life could be abrogated, former Chief Justice of India P N Bhagwati today said he was sorry for that ruling.

“I was wrong. The majority judgment was not the correct judgment. If it was open to me to come to a fresh decision in that case, I would agree with what Justice (H R) Khanna did. I am sorry (for the judgment),” Bhagwati told The Indian Express today.

In the 1976 ADM Jabalpur vs Shivkant Shukla case, popularly known as the habeas corpus case, Justices Bhagwati, A N Ray, Y V Chandrachud and M H Beg agreed with the then Indira Gandhi government that even the right to life stood abrogated during the Emergency. The verdict constitutes one of the darkest chapters in the history of the court as it struck at the very heart of fundamental rights.

“I don’t know why I yielded to my colleagues,” said Bhagwati. “Initially, I was not in favour of the majority view. But ultimately, I don’t know why, I was persuaded to agree with them. I was a novice at that time, a young judge…I was handling this type of litigation for the first time. But it was an act of weakness on my part.”

Justice H R Khanna, incidentally, was the only judge on that bench who dissented with the majority view arguing that the Constitution didn’t permit the Right to Life and Liberty to be subject to any executive decree. This cost him the job of CJI.

He claimed that his later judgments dealing with fundamental rights did uphold the Constitution. Was it the lure of high office? “I can’t say this. It would not be right for me to say this,” he said.

Incidentally, during the Emergency, Bhagwati praised the Indira government but after the Janata Government came, he was critical of her. After Indira’s return, he sent her a gushing letter: “…I am sure that with your iron will and firm determination, uncanny insight and dynamic vision, great administrative capacity and vast experience, overwhelming love and affection of the people and above all, a heart which is identified with the misery of the poor and the weak, you will be able to steer the ship of the nation safely to its cherished goal.”

http://www.indianexpress.com/news/35-yrs-later-a-former-chief-justice-of-india-pleads-guilty/847392/0

 

CENSORSHIP AND THE STATE

A.G. NOORANI IN THE FRONTLINE

The much-amended Cinematograph Act of 1952 needs a complete overhaul that takes film censorship out of the state’s purview.

THE entire system of film censorship in India is brazenly unconstitutional and a fraud on the Supreme Court. It is in utter disregard of the report of one of the most distinguished committees ever which toiled on film censorship 40 years ago. The structure erected by the outdated and much amended Cinematograph Act, 1952, is scandalous. It is designed to foster organised patronage. Politically, it establishes overwhelming state dominance to ensure the film industry’s dependence on Ministers and civil servants.

Like other Indians, members of the industry – actors, producers and distributors – wake up from their somnolence episodically, mostly when their own rights are affected. Those who protested over the cuts imposed on Prakash Jha‘s Aarakshan seemed to have no time for Ajay Sinha’s Khap, a movie on honour killings. It could not be screened in the one State that needed its message the most, Haryana. In her article, T.K. Rajalakshmi (“Reality show” , Frontline, August 26, 2011), remarked: “No one in the Mumbai film industry, save a few, bothered to back the beleaguered film director.” The police actively prevented the screening of the film.

On August 10, Amitabh Bachchan, who stars in Aarakshan, blogged: “If creative expression is to be curbed by institutes that wish to dictate their terms… above the conditions of… recognised constitutional formats… then we might as well accept that we live not in the sanctity of the tenets of democracy but a most unfortunate fascist conditioning.”

He must be congratulated on his belated discovery of a grim reality. A pity that it dawned on him only when his film was being brutalised. Our publicity-hungry civil liberty “activists” were conspicuous by their silence on the issue. The Athenian lawgiver Solon (640-558 B.C.), when asked how a people could preserve their liberties, said: “Those who are uninjured by an arbitrary act must be taught to feel as much indignation at it as those who are injured.” In India, such a consciousness is absent; protests are episodic. They subside and things go on as before. There is no national, non-political civil liberties organisation or movement.

Do not trust our politicians to fill the void. As a foreign correspondent once remarked, the Indian politician wakes up to deprivation of liberty only when the prison doors are shut behind him. Khaps provide musclemen during election. In Mumbai, two Ministers and a politician extracted from Prakash Jha his consent to cuts in order to gain some brownie points. One regrets the cuts; but one cannot condemn him. The system is frail, and crores of rupees are involved.

Cinematograph Act

It is time to reflect on the state of the law on film censorship. What are the travails that lie before the producer of a film as he seeks a certificate for its public exhibition, unrestricted or otherwise? The Act of 1952 establishes at the apex of the structure a Board of Film Certification comprising a chairman and not less than 12 and not more than 25 other members. It is to this board that any application for certification for public exhibition must be addressed. The chairman and members are appointed by the Central government. They do not enjoy security of tenure; no one in the entire edifice does. No qualifications are prescribed either.

New Delhi also appoints “at such regional centres as it thinks fit advisory panels” comprising such number of persons as it thinks fit. In this instance, “qualifications” are prescribed in a statement of the obvious. They must be “qualified in the opinion of the Central government to judge the effect of films on the public” (emphasis added, throughout). By this test, even literacy is not essential. Regional centres will have a powerful official, the regional officer, besides the chief executive officer of the board.

It is no reflection on the highly respected Chairperson now in office, Leela Samson, or on her immediate predecessor, Sharmila Tagore, to say that some of their predecessors, in the past, were appointed to give “jobs for the boys”. It is a notorious fact that the members of advisory panels are changed with every change of government in New Delhi. All are culpable in this – from Indira Gandhi and the Janata Party to the present.

Advisory panels are constituted under Section 5 of the Act. Its clause (3) says: “The Board may consult in such manner as may be prescribed any advisory panel in respect of any film for which an application for a certificate has been made.” The expression “as may be prescribed” is legalese for prescribed by rules made by the government. It is not the Act of 1952 passed by Parliament but the Cinematograph (Censorship) Rules, 1958, made by the government which set up two more powerful bodies – an examining committee (Rule 22) and a revising committee (Rule 24). Members of both are drawn from among members of the advisory panel. The examining committee plus “an examining officer” (a CEO or regional officer, or even the secretary to the chairman). It is the regional officer who appoints this committee when he receives the producer’s application for certification.

On receipt of the opinions of its members, in writing, the chairman of the board can refer the matter to a revising committee, either of his own motion or on the request of the applicant. The revising committee consists of members of the board or of an advisory panel, other than those who served on the examining committee. They are appointed by the chairman. He can pack the revising committee with those who will not disagree with his disagreement with the examining committee. If the chairman disagrees with the decision of the revising committee as well, the board shall itself examine the film or refer it to another revising committee; in either case for a final decision.

Anyone aggrieved by an order of the board, arrived after these protracted proceedings, can move an Appellate Tribunal (Section 5 C and D). It comprises a chairman and not more than four other members, all appointed by the Central government. The chairman must be either a retired judge of the High Court or a person qualified to be a High Court judge – a party hack of 10 years’ practice as a lawyer qualifies as chairman. As for its members, all that is required of them is that, like members of advisory panels, they “must be qualified to judge the effect of films on the public”. Two things stand out in this system: (1) No qualifications are prescribed for anyone, from the chairman downwards; (2) Everyone, the chairman, members of the advisory panel, and even the judge who presides over what is supposed to be a judicial “Tribunal”, is a daily-wage earner. He or she holds office, in every single case, “during the pleasure of the Central government”.

There is a sleight of hand here. The Act empowers the government to make rules specifying the “terms and conditions of service”. It has abused this power to define the tenure of service and amass to itself the power to sack one and all. It is through this maze of arbitrary power that the hapless producer has to steer his film. His travails do not end even after he wins his case before the supposedly judicial tribunal.

Unregulated powers

The government wields vast “revisional powers” exercisable “at any stage” of the process, not only over the board but also over the tribunal (Section 6). Have you ever heard of the executive sitting in appeal over a judicial body? If the board receives a complaint in respect of a certified film, all that it can do is to refer it to its masters, the Central government. The board, it must be emphasised, is in law a quasi-judicial body. However, the scope of the state’s revisional powers is unregulated and undefined. No grounds are specified; no guidelines are indicated. The entire paraphernalia of the board, the advisory panel and the two committees can be reduced to naught by a mere fiat from New Delhi. The state’s clear objective underlying the Act of 1952 is to have a stranglehold over the film industry. No wonder Information and Broadcasting Ministers and Secretaries are sought after so ardently.

The Government of India can ask the chairman to “re-examine” a film – even one upheld by the tribunal – and to do so “in such manner and with such assistance as may be specified in the direction”. It could be the “assistance” of anybody. On receipt of the chairman’s opinion, thus arrived at, the government proceeds to “pass such orders” as it pleases (Section 6 and Rule 32). It can direct a certified film to be uncertified (Section 6 (2) and Rule 31) or suspend its exhibition “for such period as may be specified”. The entire edifice of film censorship collapses like a house of cards. It cannot be emphasised too strongly that State governments have absolutely no right or power to ban a film. Section 13 (1) of the Act clearly says, “The District Magistrate in respect of the district within his jurisdiction, may, if he is of opinion that any film which is being publicly exhibited is likely to cause a breach of the peace, by order, suspend the exhibition of the film and during such suspension the film shall be deemed to be an uncertified film in the State, part or district, as the case may be.”

Statutory discretion can be exercised only by the authority designated by the law to exercise it. The District Magistrate’s power is limited to his district and hinges on the likelihood of “breach of the peace”. State governments cannot lawfully order District Magistrates to ban films throughout the State. The District Magistrate’s order, moreover, is subject to confirmation by the Central government (Section 13 (2)).

Illiteracy is written into the law. Rule 41 (4) reads thus:

“(a) In cases where the examining committee, after examination of the film, considered that a scrutiny of the shooting script is necessary or the authenticity of the incidents depicted in a film of historical, mythological, biographical or legendary nature is to be verified, a provisional report to that effect shall be submitted by the regional officer to the chairman within a maximum of three working days after such examination.

“(b) A written communication shall be sent to the applicant within a maximum of three working days following the receipt of the chairman’s orders on the provisional report referred to in clause (a) and the applicant shall submit the script or the authentic sources on which the subject of his film is based within ten days from the date of receipt of such communication.

“(c) In cases where the members of the examining committee after the examination of the film submit to the chairman a provisional report indicating that expert opinion on subjects depicted in the film such as subjects relating to defence or foreign relations or any particular religion or law or medicine or any other subject, should be sought before the final report is submitted, the chairman may after taking into consideration the circumstances of the case specify a time limit for obtaining the expert opinion and for the submission of the final report of the examining committee thereafter.

“(d) In other cases, the script submitted by the applicant or the authentic sources furnished by him shall be scrutinised by the examining officer and the final report of the examining committee shall be forwarded by the examining officer to the chairman within ten days from the date of receipt of the script or the authentic sources, as the cast may be.” A script written by a litterateur is subject to such a scrutiny.

There is a fundamental objection to this bizarre provision. Evidently, its authors were ignorant of the very concept of an historical novel. Fiction based on history need not be historically correct. And who is to judge the accuracy of the historical narrative, the government’s hand-picked appointees? Expert opinion is as irrelevant as citation of sources. It is the richness of the imagination that matters, as does the style in the writing and in the depiction in the film.

The Centre can go so far as to impose “President’s Rule” on the board, making its chairman the Governor. Section 7B reads thus: “The Central government may, by general or special order, direct that any power, authority or jurisdiction exercisable by the board under this Act shall in relation to the certification of films under this part and subject to such conditions, if any, as may be specified in the order, be exercisable also by the chairman or any other member of the board, and anything done or action taken by the chairman or other member specified in the order shall be deemed to be a thing done or action taken by the board.”

But then, the Supreme Court itself has laboured under a completely wrong notion of what a historical novel is about. In 1990, Bhagwan S. Gidwani’s historical novel The Sword of Tipu Sultan inspired a producer to make a TV serial. Huge protests followed. Doordarshan’s decision explicitly to disavow any claim to historical accuracy or authenticity was one thing. What was saddening was the lapse on the part of the Supreme Court. Doordarshan’s formulation was made worse by the court sanctioning the words: (it) “has nothing to do with either the life or rule of Tipu Sultan”. This is manifestly incorrect and makes a mockery of the very concept of historical fiction; it is fiction inspired by history.

Disposing of a special leave petition seeking a ban on the airing of the serial, the Supreme Court directed in February 1991 that the following announcement be made along with the telecast of each episode: “No claim is made for the accuracy or authenticity of any episode being depicted in the serial. This serial is a fiction and has nothing to do either with the life or rule of Tipu Sultan. The serial is a dramatised presentation of Bhagwan Gidwani’s novel.” This is utterly wrong on the part of any court of law. The Supreme Court has since acted like a mediator asking writers to make cuts in works of solid historical research instead of taking a firm stand on their fundamental right to freedom of speech and expression.

The G.D. Khosla report

The stranglehold of the government and sheer arbitrariness, writ large over the Cinematograph Act, 1952, were strongly criticised in the report of the Enquiry Committee on Film Censorship headed by G.D. Khosla, a former Chief Justice of the High Court of Punjab. It was appointed on March 28, 1968, and submitted its report on July 26, 1969. It won praise from the Supreme Court. Its analyses expose very many provisions of the Cinematograph Act, 1952, the Cinematograph (Censorship) Rules, 1983 ( in supersession of the Rules of 1958), and the archaic censorship guidelines, framed by the Government of India 20 years ago on December 6, 1991, to be unconstitutional.

Fundamentally, the Khosla report envisaged an “ independent and autonomous Board of Film Censors”. The present board is neither. It urged repeatedly (pages 56, 59, 99 and 100) that the censorship code be drawn up by the board itself and not by the government. The present code is a diktat by the government, which also acts as the supreme authority for its enforcement. Few committees had a more distinguished membership. Among its members were R.K. Narayan, K.A. Abbas, Romesh Thapar, Umashankar Joshi, Tara Sapre, and the chairman of the board of censors. Nargis was unable to participate in the proceedings and her substitute, Balraj Sahni, too, did not participate “owing to his heavy professional commitments”. Among the witnesses who appeared before the body were Satyajit Ray, E. Alkazi, Pahari Sanyal, Sohrab Modi, V. Shantaram, Prithviraj Kapoor, Hrishikesh Mukherjee, and some leading distributors and film critics.

The report became a bestseller. Attention was focussed on one highly popular recommendation to the neglect of much else: “No court of law will hold that a kiss by itself, irrespective of the circumstances in which it takes place or the individuals between whom it is exchanged, is indecent or immoral. In the same way, nudity of the human form may or may not be indecent. If there is, for instance, a brief shot of a woman undressing and entering a bathing pool, as in the film The Visit, no suspicion of indecency or immorality attaches to the shot which is relevant to the story. On the other hand, there are many scenes of cabaret performances or striptease sequences in Indian as well as foreign film which are obviously introduced in order to titillate the senses and thus make the film commercially saleable. Many of these scenes would be declared obscene even by the most liberal-minded judges.”

The report stressed the point that the fundamental right to freedom of speech and expression (Article 19 (1) (a) of the Constitution) is subject to three conditions – (1) “reasonable” restrictions, (2) imposed by law, and (3) only on grounds specified in Article 19 (2).

It is not unmindful of the need to balance freedom of expression with the interests of society, which naturally depend on the social outlook at any given period. That outlook has become illiberal in many respects: “We have of late become so inured to these restrictions that we cannot even imagine a society in which complete freedom of expression with regard to matters concerning sex was accepted as correct and essential…. We like to salve our needlessly guilty conscience by ascribing a religious significance to these sculptures (at Konark and Khajuraho) but few people are deceived by this mock spiritual argument. The plain fact of the matter is that in those days it was not considered offensive or objectionable to talk, write, paint or chisel images representing sex, sexual relations and even sexual perversities.”

Equally relevant are the report’s censures on the mechanism of film censorship that still prevails save for the introduction of a tribunal. Its verdict, however, can be set at naught by the Ministry of Information and Broadcasting: “No detailed qualifications have been prescribed, under the Rules, for the appointment either of the members of the board or for the personnel of the panels, but it is expected that these persons are possessed of sufficient educational and cultural competence to deal with the matter entrusted to their charge. The chairman holds a statutory appointment. He is appointed without any consultation with the Union Public Service Commission. No specific qualifications for the post have been prescribed.”

Most important defect

Note these censures: “The present board of censors is not an independent body. Its decisions are liable to be set aside by an order of government.… Here we may reiterate the most important defect, namely, the lack of responsibility which the present system entails. For work of such importance it is necessary that persons who are entrusted with it should feel a full sense of responsibility. The rigidity of a code drawn up by a superior power, the inhibition and lack of flexibility resulting from such rigidity, the constant fear of interference and a residual consolation that mistakes will be rectified by a higher authority are features which not only destroy the efficiency of the board but arouse almost universal condemnation of its decisions. It is important, therefore, that state censorship should be exercised not by a department of the state, whose decisions are subject to revision, appeal or interference by the government, but by an independent body which has been given sufficient authority and a sufficient sense of responsibility to deal with the matter finally and irrevocably.”

The word “irrevocably” clearly implies finality to the board’s verdict subject, of course, to the court’s powers. The Information and Broadcasting Ministry then ceases to exercise “revisional” or other overriding powers as it does now. No room for doubt whatever is left when the report discussed the second alternative: “Perhaps the most important advantage of an independent board is that it makes for consistency and uniformity of the censorship policy, because it is immune from changing political influencers and the caprices of the Secretary or Minister in charge of the relevant portfolio.” The report recommended the details of such a set-up.

The Khosla report had no use for the advisory panels of assorted groups of people who comprise the examining and revising committees of today: “We are firmly of the view that the present system of entrusting the preview of films to a panel of honorary examiners, consisting of persons who have little sense of responsibility and who have been appointed in the exercise of governmental patronage, should be completely done away with. It is the censors themselves who must see all films, evaluate them and assume full responsibility for certifying or rejecting them. After giving the matter our most anxious thought, we feel that a Central board of 20 members drawn from various regions and familiar with regional languages will be able to discharge this work competently and expeditiously.”

This also does away with the chairman of the board, an office in the bounty of the Information and Broadcasting Ministry. The report suggested that the chairman of the board should have the status and ranking of a High Court judge and all the members of the board should be full-time, paid members. This single, quasi-judicial body will be fully responsible for drawing up the censorship code and applying it.

The government-ordained guidelines, as at present, must be scrapped: “These guidelines must be drawn up by the censors themselves so that a measure of flexibility is assured and the censors have ample discretion in dealing with each picture as it comes up for certification. It is important not to have a code drawn up by the government under its rule-making authority, for such a code assumes the rigidity of a legal enactment, and does not permit the exercise of discretion, it does not take into account the change in ideology, moral standards and norms of conduct, such as greater freedom in social intercourse between members of both sexes, the gradual erosion of the joint family citadel, the introduction of divorce laws, the changing attitude towards untouchability, the rights of land and factory workers, the status of women, etc. Finally, a rigid code of the type in force now does not encourage the evaluation of a film as one integrated piece which must be assessed and judged as a whole and not as a collection of distinct and separable parts.” The guidelines now in force were framed by the government and richly deserve these censures.

Abbas’ petition

In 1969, K.A. Abbas, one of the members of the Khosla Committee, moved the Supreme Court in view of the cuts imposed on his film A Tale of Four Cities. He challenged censorship of films itself or, in the alternative, the Act and the Rule, as being violative of the fundamental right to freedom of speech and expression. One of the grounds was that there was no appeal to a court or to an independent tribunal. The government conceded that and promised that it “would set on foot legislation” for that and other reforms besides. Without it the Act was void. It was saved from being declared void only by the government’s assurance.

The court delivered its judgment on September 24, 1970. A tribunal was set up only in 1983. On the censorship code, the court tartly remarked: “Our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read.” The court noted a vital omission in the guidelines and said it should be repaired by positive “directions to emphasise the importance of art to a value judgment by the censors”.

The government’s promise to the Supreme Court to usher in legislation was sought to be fulfilled in 1973. The amending Act was to come in force on July 1, 1975. The Emergency, proclaimed on June 25, 1975, prompted the cancellation of the notification. The Janata Party government did not bring the Act into force either. All it did was revise the guidelines on January 7, 1978. Its I&B Minister, L.K. Advani, said in Madras (now Chennai) on May 6, 1978, that it was considering the establishment of a tribunal. He criticised the practice of the government setting aside the censor board’s decisions. In 1981, the amendments of 1973 were repealed and a new set of amendments was made to the Cinematograph Act, 1952. Some more followed in 1984. It is this regime, with the Rules of 1983 and the guidelines of 1991, that is in force today.

Clearly, the law is a fraud on the Supreme Court. The promise to set up an independent tribunal has been violated. Section 96 of the Criminal Procedure Code provides for a Bench of three High Court judges to consider the validity of an order banning a book. The least that can be done in film censorship is to establish a truly independent tribunal. Since the Khosla report, a pattern of obligatory consultation on appointments to high offices has been established by laws in respect of the chairmen of the Press Council of India, the National Human Rights Commission, and the Prasar Bharati Board. No such consultation is enjoined in the Cinematograph Act.

The Cinematograph Act, 1952, needs a drastic overhaul now, over half a century since its enactment. It is clumsy and ill-structured. The Rules set up bodies which should be set up by the parent Act itself. The Khosla report, approved by the Supreme Court, and the court’s ruling must be implemented. The board as it is now constituted, the bogus advisory panel and its examining and revising committees and tribunal must be scrapped. An independent board of qualified persons must itself censor films in accordance with guidelines framed by the board itself after full consultations with writers, the film industry and the public. Appeals should lie to the High Court. The state should be shorn of its revisional powers. The procedure in force today is cumbrous, dilatory and unconstitutional.

It is open to the film industry to set up a small group from among its members to draft a model statute for public debate. The present state of film censorship is obscene.

http://www.frontline.in/stories/20110923281909100.htm

MORE EQUAL THAN MOST

Indira Gandhi

Image via Wikipedia

Many Indian politicians still like authoritarian democracy

ASHOK MITRA IN THE TELEGRAPH

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

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

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

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

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

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

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

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

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

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

Lokpal bill and the Prime Minister

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

Image via Wikipedia

ANIL DIVAN IN THE HINDU

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

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

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

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

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

The Constitution

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

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

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

Internal Emergency

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

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

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

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

Foreign jurisdictions

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

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

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

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

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

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

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

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

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

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

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

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

Eight chief justices were corrupt: Ex-law minister

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

NEW DELHI: Former law minister Shanti Bhushan on Thursday created a sensation in the Supreme Court when he moved an application accusing eight former Chief Justices of India of “corruption”, and dared the court to send him to jail for committing “contempt of court”.

The eight allegedly corrupt CJIs feature among a list of 16 prepared by Bhushan—comprising Justices Ranganath Mishra, K N Singh, M H Kania, L M Sharma, M N Venkatachalliah, A M Ahmadi, J S Verma, M M Punchhi, A S Anand, S P Bharucha, B N Kirpal, G B Patnaik, Rajendra Babu, R C Lahoti, V N Khare and Y K Sabharwal. Terming eight among the list as “definitely corrupt”, Bhushan put their names in a sealed cover and submitted it to the Supreme Court and virtually dared it to open it and read out the contents.

He said of the 16 on his list, “six were definitely honest and about the remaining two, a definite opinion cannot be expressed whether they were honest or corrupt”. The veteran lawyer, who became famous by successfully arguing for setting aside the election of Indira Gandhi in 1975, triggering a chain of events leading to imposition of Emergency, resorted to the dramatic action in solidarity with his son, lawyer Prashant Bhushan, who is facing contempt charges for accusing current CJI S H Kapadia and his predecessors of misconduct.

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

“Make me a party along with Prashant Bhushan,” requested Bhushan Sr, who was law minister in the post-Emergency Morarji Desai cabinet, as he challenged the SC to send him to jail for contempt. Bhushan’s challenge to the SC can put the apex court in a bind. It may be constrained not to ignore the provocation lest it start a trend. The option of punishing the Bhushans, however, carries the risk of putting the father-son duo on a pedestal, and training the spotlight on their allegations when the issue of judicial corruption finds ready resonance with an expanding constituency. Of all the protests against alleged judicial corruption, the Bhushans’s is easily the most breathtaking, and will play well with the gallery.

Bhushan sought to raise for judiciary the cost of any punishment to him, by saying that he was ready to face the consequences. “The applicant will consider it a great honour to spend time in jail for making an effort to get for the people of India an honest and clean judiciary,” he said.In his application, the former law minister spoke of both the growing corruption in judiciary as well as the tendency to sweep it under the carpet in the name of protecting judiciary’s reputation. A defiant Bhushan claimed that two former CJIs were among the sources of his information on corruption among their peers. “In fact, two former CJIs had personally told the applicant while they were in office that their immediate predecessor and immediate successor were corrupt judges. The names of these four CJIs are included in the list of corrupt CJIs,” Bhushan said. “Unless the level of corruption in the judiciary is exposed and brought in the public domain, the institutions of governance cannot be activated to take effective measures to eliminate the evil,” he added.

“It is a common perception that whenever such efforts are made by anyone, the judiciary tries to target him by the use of the power to contempt. It is the reputation of the judge which is his shield against any malicious and false allegations against him. He does not need the power of contempt to protect his reputation and credibility,” Bhushan further said.

Proceedings against Prashant were initiated on a petition filed by amicus curiae Harish Salve accusing the former of making contemptuous remarks against CJI S H Kapadia and former CJIs. Besides, Bhushan Jr had also told a web newspaper that half of the last 16 former CJIs were corrupt. His father, Shanti Bhushan said, “Since the applicant (Shanti Bhushan) is publicly stating that out of the last 16 CJIs, eight of them were definitely corrupt, he also needs to be added as a respondent to this contempt petition so that he is also suitably punished for this contempt.” Corruption in judiciary had taken firm root in the last two to three decades, Bhushan said while deploring persistent attempts to cover up in the belief that such charges might tarnish the image of the judiciary. Assailing the Supreme Court’s decision in 1991 in the Justice Veeraswamy case restraining probe agencies from registering FIR against any judge without the permission of the CJI, Bhushan said this had resulted in total immunity to corrupt judges and caused judicial corruption to increase by leaps and bounds.

Read more: Eight chief justices were corrupt: Ex-law minister – The Times of India http://timesofindia.indiatimes.com/india/Eight-chief-justices-were-corrupt-Ex-law-minister/articleshow/6568723.cms#ixzz0zkIEOMsj