Supreme but not infallible

Supreme Court of India

NIKHIL KANEKAL IN THE MINT

Constitutional battles are usually delicious if you’re a geeky spectator of parliamentarians, policy wonks and jurists. It’s not fun to be one of the embattled sides in an unfair fight.

Journalists like to believe…that all constitutional rights depend on the right to know and the right to know depends on a free press”—Benjamin C. Bradlee, editor of The Washington Post, 2 June 1974. Constitutional battles are usually delicious if you’re a geeky spectator of parliamentarians, policy wonks and jurists. It’s not fun to be one of the embattled sides in an unfair fight.

The battle is unfair because the media is being forced to fight against the judiciary on the latter’s turf. A constitutional bench of five judges in the Supreme Court of India has set out to create a framework for the press to report on the judiciary and its proceedings. The press, unlike Parliament or the executive, has no further remedy once it gets tied down by the Supreme Court. Through Indian constitutional history, the court has been the custodian of free speech and, indirectly, of an uncurtailed and robust press. As it stands, the protector is threatening to limit our rights. Given that the court’s verdict is bound to affect the way people like me carry out our trade, I’m not pleased about the scenario in the least, especially since so much that needs to be said on our behalf is not even coming before the bench.

Yes, journalists are being represented in the case—Rajeev Dhavan has argued for the Editors’ Guild of India and the Forum for Media Professionals, Anil Divan represented The Hindu and Prashant Bhushan argued for Siddharth Varadarajan, editor of The Hindu. Other bodies such as the self-regulatory body for 46 television channels, News Broadcasters Association, the Indian Newspapers Society and the Press Council of India are being heard by the court.

I don’t blame the judges for not understanding the nuances involving journalistic craft. They are judges, not journalists. If it were so easy to understand how reporters, editors and newsrooms worked, there would be no such confrontation between the two sides. And the same is true of the media—few people in newsrooms really understand how the judiciary works.

The language of both the professions also causes mutual tension. To a journalist sitting on a newsdesk, the words “suit” and “petition” are interchangeable, and a headline writer is more likely to use the former because it fits in a smaller space. To lawyers and judges, the gulf between a judge’s quote in a news story suffixed with “said the judge” and “observed the court” is massive. The former might well be an order or directive, while the latter could merely form part of the debate between the bar and the bench. After all, judges must throw searching questions at lawyers in order to properly excavate the points of dispute. The line of questioning, while it is a good indication, doesn’t necessarily mean that the court will eventually rule in that direction.

If you read multiple newspaper reports of the same court case and compare them, they might seem like accounts from different hearings. This is because daily hearings go on for hours, more so in appellate courts. A journalist will have only a few hundred words, or a few minutes of airtime, to tell a story. Obviously the newsiest details must make it to the top—the inverted pyramid rule. And this is not usually the most crucial legal argument being propounded in a case.

Eventually, lawyers think court reporters have done a bad job. The challenge is to succinctly summarize the proceedings. Different newspapers and television channels have varying styles of presenting news.

To most journalists, especially those who don’t normally report court-related news, when a lawyer opens his mouth, all that comes out is legalese.

To be sure, the judges may decide after the hearings are completed not to do anything that may be seen to be muzzling press freedom. The Supreme Court has also clarified that the ongoing constitutional bench hearings dealing with media coverage of sub judice cases will be restricted to questions of law related only to this aspect.

But we must ask the questions since it is germane to the arguments before the court: Is the Supreme Court’s constitutional bench the right forum to resolve bad journalism that emanates from our courts? Do the judges and lawyers appearing before them have the necessary expertise to deal with the myriad issues at hand, especially if they are not of a litigious nature? Does the court have the power to tell the media how it might report judicial proceedings?

What’s happening isn’t new. There have been similar breakdowns between the courts and the press elsewhere.

In March 1975, the top jurists, lawyers, editors, reporters, government officials and other stakeholders in the US came together in what has come to be known as the Washington Conference. Both sides “tested the high ground of principle against the erosive force of real world legal and journalistic practice, agreed to disagree, sometimes even agreed, and learned more about each other than was previously known,” reads a brief preview to the discussions at the conference. Jurists and journalists sat together and while mutually devising solutions, respected each other’s domain.

In 2009, a committee of judges and journalists in the UK decided how reportage would be conducted in the criminal courts.

Dhavan has already submitted to the Indian Supreme Court that a similar joint committee of members from the press and the judiciary would be the best way out of the woods we now find ourselves in. After all, there is no defending bad journalism.

Respond to this column at nikhil.k@livemint.com

NIKHIL KANEKAL IN THE MINT

‘Judges must know their limits…they must not try to run the government’

JUSTICE MARKANDEY KATJU JUDGE SUPREME COURT
JUSTICE MARKANDEY KATJU JUDGE SUPREME COURT

SHEKHAR GUPTA IN THE INDIAN EXPRESS

In this Walk the Talk on NDTV 24×7 with The Indian Express Editor-in-Chief Shekhar Gupta, former Supreme Court judge and now chairman of the Press Council of India, Justice Markandey Katju, talks about ‘judicial overreach’ and ‘media excesses’

My guest this week is the new chairman of the Press Council of India but more importantly a judge who is known to be a liberal lion of the bench. Justice Markandey Katju, you are somebody who combined a lot of native wisdom, literature, history and even Urdu poetry with your approach to justice.

Well, I have used Urdu poetry in many of my judgments. I will tell you just one where some OBCs beat up members of the Scheduled Caste and I thought this was highly objectionable, in fact it is a criminal offence. I began that judgment with a couplet from the great Urdu poet Firaq Gorakhpuri—“Har zarre par ek kaifiyat-e-neemshabi hai/ai sake-e-dauran yeh gunahon ki gharee hai.” It represents the transitional age in which we are living, transition from feudal agriculture society to modern society.

You gave one of the strongest judgments on honour killings.

Yes, I said death sentence must be given. These barbarians must be treated ruthlessly because we must help our society move forward into the modern industrial age and we must not be liberal with these feudal barbarians. We must hang them.

What’s your view on death sentence? Do you think it should be employed?

Yes, in certain situations. I am not a bloodthirsty person but when people do honour killings or policemen do fake encounters, girls are killed by pouring petrol on them, dowry deaths—should we be liberal with them or should we hang such people?

What about Rajiv Gandhi’s conspirators or the Afzal Guru case?

Frankly, I have not applied my mind to them. I have given a judgment that death sentence must be given in cases of fake encounters by policemen, in cases of honour killing, dowry death. Recently, I upheld the death sentence of a man who burnt his entire family.

And terrorism?

Provided you catch the correct culprit. The whole problem is that the police are not trained in scientific investigations, so on mere suspicion they bring in somebody. The point is that they cannot catch the real culprits so whomever they think may have committed the crime, they catch hold of them.

And then use torture.

In a village if somebody comes to the police station and says that there has been a dacoity, the inspector asks who has committed it? Somebody says Kallu has committed such kinds of dacoity. So they will catch hold of Kallu and the poor child is beaten and under torture, he will confess to everything. Joan of Arc confessed to being a witch under torture. The crime is solved this way and the inspector’s job remains intact otherwise he might have been suspended. I don’t blame the police because they are not trained in scientific investigation, they are not given the equipment as in the West. All this is absent in India so it is done just by suspicion. Some bomb blast takes place, they catch hold of the local Muslims and young people and implicate them. The electronic media has played a very nefarious role in this. The moment a blast takes place, within a few hours of it, most TV channels start saying that an e-mail has come or an SMS has been received that the Indian Mujahideen has claimed responsibility or Jaish-e-Mohammad has claimed responsibility. An e-mail or an SMS can be sent by any mischievous person but in a very subtle way the impression goes that all Muslims are terrorists, all of them throw bombs. You are demonising Muslims and you know the level of alienation that has been created among them.

Do you have any views on Prashant Bhushan’s view (on Kashmir) or on how he was attacked for his views?

I condemn all kinds of violence but this must also be considered…if you say that Kashmir can secede, then the Nagas will say they can secede, Mizos will say they want to secede, Tamilians will say they want to secede. Where is the end? You know this is a country of immigrants. You must realise what is India—92-93 per cent of people living in India today are descendants of immigrants. We are like North America and because we are a country of immigrants, there is tremendous diversity and therefore we must be tolerant with each other and respect each other. At the same time, we must be united. Did Abraham Lincoln allow the southern states of USA to secede? They said that we have formed a Confederate States of America…separate government. Abraham Lincoln said you will not be allowed to secede. He went to war. There is so much diversity in India, if you allow Kashmir to secede, then everyone will talk of seceding. We must remain together, you must understand what is India.

Yes, there should be democratic ways of resolving disputes. A case came before me, a dispute between the state of Assam and the state of Nagaland. The border had not been demarcated so we appointed mediators. We appointed Sriram Panchu, one of the top mediators of the country, and Niranjan Bhatt, also a top mediator. You know, the Nagas said that for the first time they were being heard. They said the British never heard us, the Indian government never heard us and at least here are people who are appointed by the Supreme Court who are hearing our point of view and hopefully some consensus may emerge.

So you think that while conflict resolution should go on, it should not be pushed into the domain of re-writing of the Constitution?

No, we have to remain united. I don’t agree with the saying that you can secede.

So was he (Prashant Bhushan) wrong in saying that?

I think he was wrong.

But at the same time the attack on him was wrong.

The attack was wrong, you should not commit acts of violence.

Lately, we are seeing judges getting angry in the Supreme Court. In fact, they use the expression ‘we are getting angry’. You know, the one who wields the big stick must speak softly.

When I became a judge of the High Court in 1991, I started reading the Mahabharata and one part of the Mahabharata is called Shanti Parva. When the war ended, Bhishmah Pitamah was lying on a bed of arrows and Lord Krishna went to Yudhishthira and said, ‘Now the Kauravas have been killed and you are going to be the next king. On how to conduct yourself as a king, Bhishmah Pitamah is the best person to tell you and he is shortly going to give up his life. So this is the opportune time, go and ask him’. So Yudhishthira went and sat at his feet, he put one question, Bhishmah Pitamah gave the answer, a second question, an answer. So, the questions-answers are part of a volume called Shanti Parva and in that, one of the things Bhishmah Pitamah said was that the king should neither be too harsh nor too lenient, he should be a mixture of the two. Sometimes you have to be harsh against evil people, but sometimes you should be soft. If you are always soft, people will revolt against you and if you are always harsh, the public will run away so it has to be a combination of the two. When I read this, I thought this is what applies to a judge too.

But the anger that we are generally seeing is more of what the executive now complains about—obiter dicta.

I don’t want to comment about other judges but I became a judge in the Supreme Court in 2006 and shortly after, I gave a judgment in which I said that the judges must know their limits and not behave like emperors. They must not try to run the government; judges must not ordinarily encroach into the domain of the legislature or the executive. Judges must know their limits, they must be restrained, particularly in economic and social matters. When it comes to civil liberties and fundamental rights, then a judge must be an activist.

What worries you more—judicial overreach or media overreach?

There should not be any overreach. Both must act in a very restrained manner. I have great respect for the media. In my opinion, the media is absolutely essential in a democracy.

What’s worrying you about the media right now?

There is a perception that it is going overboard. To give you an example, in 2009, when the Lok Sabha elections were held, this paid news scandal took place on a very large scale. Just three days ago, a senior lady politician told me she was contesting elections and that one leading newspaper came and demanded Rs 18 lakh for favourable coverage and (said) that if you don’t give it, then (you’ll get) adverse coverage.

Tell us a bit more about your danda remark, which obviously has raised people’s hackles. The last thing we expect in your hands vis-a-vis the media is a danda.

I am a totally democratic person. I believe in the method of discussion, consultation, persuasion. If the media has done something wrong, the first attempt should be to resolve the matter in a democratic method and in that connection every two months or so, I am going to hold meetings with all of you. Let’s resolve all the issues by the democratic method. If, despite our best efforts, you prove to be incorrigible, then the danda will be used. I will keep it in reserve.

What is the danda?

Bin bhaye hovat na preet (without fear there is no love). Have you read the Ramcharitmanas? Bhaye aapke upar hona zaroori hai (you should have fear). Don’t think you can do anything you like. You are accountable. In a democracy, all institutions, including the media, are servants of the people.

But there is danger in it. Today you are a liberal judge, tomorrow under a more problematic government, there might be a more problematic head of the Press Council. If these powers are given, they can be misused.

There is never a 100 per cent guarantee.

Are you very exercised about media excess?

Yes, very much. I will give you one example—the judge of a High Court where I was chief justice was known to be a very upright young man. On two consecutive days, a TV channel showed his picture like a criminal, next to the picture of a notorious criminal, and the allegation was that he had grabbed some land. I made a personal and thorough inquiry and it was all false. Now see how demoralising it is.

But the laws that are available, the law of libel, we know it takes a long time, but isn’t it a better way forward to strengthen the law of libel, decriminalise it and like the British law, make the civil law stronger?

All this is really unnecessary, we will hold discussions.

I am asking you a much larger question: do you believe that the law of libel should be decriminalised or not?

I have not really considered it. I don’t intend to consider it for it’s unnecessary. I am a democratic person. I would like to sit with all of you, not only print media but the electronic media too, discuss the issues. Suppose people are criticising some issues, I will bring it to your notice. We should be respected by the people. The media must get the respect of the people. We are accountable. I am accountable to the people. You think as chairman of the Press Council, I can do anything I like? I am also a servant of the people, you too are. We should be proud to be servants of the people. So we will resolve matters by democratic methods, discussions, negotiations, but as I told you, I will keep the danda in reserve.

Have you had some difficult brushes with the media?

I respect the media. The media has played a historical role in the progress of mankind but you should continue doing it, you must serve the people. Yeh nahi ki bas aap apne malik ko serve karein, aapko junta ko bhi serve karna hai (you shouldn’t serve just your bosses, you have to serve the people too). I have nothing against the corporates, there is nothing wrong in making money but you must be socially responsible too.

All I can say is that we are much happier to have you as a guardian of the media than a danda wielder from the government side.

You must understand that the Press Council is an independent body, we are not subordinate to the government, it’s a statutory body.

But its role has been whittled down greatly by, if I may be honest with you, some very political chairman.

I will not comment on any of my predecessors but as far as I am concerned, I am a servant of the people and that is the only title I want.

We started this with a Urdu couplet that was in a different context. Will you give us one as a parting message to your new charge, which is Indian journalism?

I have used so many couplets. There is one couplet which I wrote in a judgment and somebody came from Lahore and said that lawyers there are quoting it. It is right in the beginning of the judgment, it is a couplet by Faiz Ahmed Faiz whose centenary we are celebrating this year. Baney hain ahel-e-hawas muddai bhi, munsif bhi/kise wakil karen, kise munsifi chahen. It means that selfish people have become the plaintiff and the judge. Kise wakil karen, kise munsifi chahen: whom should we make a lawyer, whom should we go to for justice?

And you think that applies to the media a little bit right now?

It’s a couplet written by Faiz at the time of martial law.

But is it a caution to the media?

It’s a caution to everybody, not just to the media. It’s caution to judges, caution to bureaucrats. We are all servants of the people, we all have to behave in that manner.

On that cautionary note, may we have many more such conversations and not many admonitions. But as I said, you are such a liberaliser, that we feel completely safe with you.

Transcribed by Ipsita Mazumdar

SOURCE: http://www.indianexpress.com/news/judges-must-know-their-limits…they-must-not-try-to-run-the-government/861189/0

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

Anna Hazare - Delhi
Image by vm2827 via Flickr

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

‘Bill says Lokpal should prove he has been a fighter against corruption. Where are those people? In media and civil society?’

SATYANANAD MISHRA CHIEF INFORMATION COMMISSIONER IN WALK THE TALK WITH SHEKHAR GUPTA IN THE INDIAN EXPRESS

In a season when every self-styled warrior against corruption is trying to look for a new weapon to fight it, my guest today is Satyananda Mishra, Chief Information Commissioner—someone who has in his control the strongest of those weapons, the RTI.

Actually when it all began, nobody thought it would be so effective. In a period of five-and-a-half years, it has touched the hearts and minds of people. The number of RTI applications is doubling every year.

As a former bureaucrat, you don’t see merit in what so many of your colleagues say—that RTI has now become a nuisance?

If you are in the government, then you will look at it as a nuisance. When you have to provide certain information, it might be embarrassing. But we must realise it’s very important to have this kind of a law.

But do you think people have learnt to use the RTI?

Quite a few have, but we should not be disappointed at the pace of its progress. No other law would have got such enthusiasm in five-and-a-half years. Around three million people are seeking information every year.

But this has also caught the bad guy’s attention, with so many RTI activists being attacked.

Firstly, anyone who seeks information can’t be called an RTI activist. An RTI activist is someone seeking information for public good. Any good district magistrate or superintendent of police will know who the RTI activists in their area are and they should provide them the necessary cover.

The potential of the RTI is now being realised, people are learning to use it. Yet, the discourse now seems to be completely different—from sledgehammer to machine gun to a canon now to a nuclear weapon.

We have a tendency—both the government and the people—to think that if you have a problem, then a law can solve it. I have seen it in Madhya Pradesh where a dozen laws were made in a year. A Corruption Eradication Act was enacted in the early Eighties, but nothing happened.

You have said that if the Lokpal comes into being, you will have to paratroop Yudhishtir to India in Kalyug.

Yes, I said that. One of the proponents of that Bill is that it will have 15,000 people. Where will you get so many people with unimpeachable integrity, who have shown their resolve for fierce independence, with no track record of even a complaint against them? Where are those people?

Why the Yudhishtir simile?

In the Mahabharata, he was the paragon of all virtues, so the Lokpal under discussion is a person who should have these attributes, only then you will be able to tower over the Supreme Court judges, the Cabinet secretaries, Army Chief, Air Chief, all CAGs, CECs; that’s impractical.

Impractical or impossible?

Both. Having been a secretary in the government of India in charge of some of these agencies, I can tell you that it has been such a difficult thing to get the personnel… getting 11 people may not be so difficult. Even then I think it will be very difficult unless you are going to choose some of the mediapersons who have been campaigning against corruption.

Because one of the attributes of the new Lokpal would be that he should prove that he has been a fierce fighter against corruption. I can’t produce such a certificate. Who in the government will be able to produce a testimonial, because there is a clause that the applicant for the post of Lokpal will have to produce documentary evidence for that.

So no one in the government can produce such evidence?

Only people in media and civil society will be able to do that.

In this complicated country, even Yudhishtir was made to tell a lie and he did it under the divine advice of Lord Krishna. Governance is complicated, you said the law seems to have been drafted by people who don’t know how government functions.

Government decision-making is not simple. There is no black and white; rules are being made, they are being changed from time to time. That means the government is in a dynamic situation, engaging with the realities around and then changing itself. Of course, the government is slow, but nevertheless it changes. So there can’t be a body which is distanced from the talk. The premise is that it should have no linkage with the government; being under the control of the government and being distant from the government are completely different. If you are completely distant from the government, you are totally unaware of what is going on in the government. You can’t appreciate how decisions are being made.

Jayalalithaa now says that Lokpal will be a kind of parallel government.

From the structure of the Bill, as it exists, you will need another Shastri Bhavan or Nirman Bhavan to house the new Lokpal. Because if they have to look into complaints against 42 lakh central government employees, imagine if there are complaints against even 1 per cent of them, that is 42,000 complaints. And they have promised that every single complaint will be looked into. So think how many people will be required to look into that.

Have you seen complaints filed against your colleagues—you were secretary (personnel), DoPT?

Yes, I saw a complaint against one of the secretaries in which the complainant had taken the Delhi telephone directory and collected eight properties bearing the surname of this particular individual, claiming these properties belong to this officer and he has not reported it in the annual property return. So the inquiry began. Currently, the inquiry is done discreetly. Under the proposed Lokpal, the inquiry will be public. The data will be videographed and probably even telecast in the evening. Just imagine what would be the authority of the secretary when everyone in the department will be talking about him that this fellow has eight properties. Maybe at the end of the month you will say the complaint was wrong, but his reputation has been tarnished.

What about the case of this secretary, did you find any substance in the complaint?

No, none. There must be some respect for the system.

In your own interactions, have you found this respect lacking?

Yes. It seems we are dealing with a ‘gone’ case. Every system will have to have a compass. It is a huge government; there are millions of people working within this who are not so bad. And then there is a motivational factor. If you think everyone is corrupt and completely beyond redemption, then why will young people choose civil services? They have many other choices. Anyway, the quality of people joining the services is a matter of worry.

And you think that if this comes in, then simpler people will not want to come?

Yes, this will be one of the factors. When you choose a career, you evaluate the environment in which you will work. No one is saying there should be no inquiry. My personal objection to the architecture of this Bill is not about the intent—the intent is to punish—but the details of this are premised not on a desire to improve things, but on a desire to spite, to smother.

So you certainly don’t want the judiciary and the Army under this?

I don’t know whether the Army or judiciary should be brought under this or not. But whoever is brought under this should be brought under an independent Lokpal with sufficient inbuilt checks and balances. The present Bill structure doesn’t tell me to whom the Lokpal will be answerable.

And you may find one Yudhishtir, how will you find a succession of Yudhishtirs? And eleven of them at one time?

Not just eleven, several thousands of them because the Bill very conveniently defines who a Lokpal is. He is not only these eleven people, but also the thousands of people, including the peons, who will be the Lokpal. It says every employee of the Lokpal will be called a Lokpal and will have his powers. That’s the definition in Section 2 of the Bill.

What about the two other contentious questions? One is whether to put the PM under this mechanism or not?

This is something on which you and I could have extremely divergent opinions. Someone like Justice Verma has argued why he thinks the PM should not be there. He feels that in the kind of system we work, if the PM has a series of complaints pending against him and inquired into in by the Lokpal, even if he is not summoned to their office, it will impact his national and international image. One has to be extremely careful in finally deciding whether authorities such as the PM and CJI should be brought under this or not.

How about the CBI? You were Secretary, DoPT and the CBI came under your control. What’s your take on the CBI being brought under the RTI?

When the RTI was made in 2005, there were 22 organisations which were put in the second schedule, taking them out of the RTI. They were security and intelligence agencies. The DoPT was framing the law. At that time, I don’t know why they didn’t think about this. Why did they take five-and-a-half years to think about the need for bringing the CBI under this?

So are you open-minded or do you prefer that the CBI be brought under this?

We have no problem with the CBI being under the RTI. In the last five years, I can assure you, that the CIC has not passed a single order which has put an obstacle in the right endeavours of the CBI.

Because your predecessor (Wajahat) Habibullah is a strong proponent of the CBI coming under the RTI. Two-and-a-half years ago, he said the RTI is a law whose reach and power is expanding every day. Has something about the law surprised you?

Yes, it has a surprising reach and a surprising way of empowering people. Normally, private banks are outside the RTI. The RBI has issued an advisory to ICICI Bank; somebody went to the RBI and asked for a copy, the RBI said no. The appeal came to us so we decided that the advisory should be given. Then ICICI went to the Bombay High Court and got a stay. The case was sent back to us so we passed an order that we don’t see any reason for changing it. So imagine a citizen doggedly pursuing the might of huge banks. But for this law, who would stand up like this?

Today if you see the discourse, Indian bureaucracy seems to be the root of all evil. Will you defend your profession?

I will and I’m grateful to you for not using the word ‘babu’. I think there is a complete disconnect somewhere and to a great extent, we in the civil services are also responsible for losing the trust and affection of the people. The people must be patient and kind because we are not dealing with foreign civil services, we are dealing with our own country’s civil service. Most of the people who are criticising civil services would have someone from their family in the services.

And your experience is that civil servants are either thieves or are honest?

I completely deny this charge that civil servants are corrupt. Yes, there are some people, but they are there in every walk of life.

In a small minority or in a substantial minority?

In a minority, certainly not the majority. Among the 42 lakh government employees, I don’t think the number of corrupt people will be (more than) 5 per cent or 10 per cent.

So this Lokpal will have one Lokpal for 10 corrupt people.

I can assure you that complaints are received against everybody, good or bad. Since this law proposes that every complaints will be looked into…

So these 15,000 people will become overworked very soon.

Yes, exactly.

You were in the Madhya Pradesh cadre. One of the many interesting things you have done is as the development commissioner for some of the most backward parts of the state, which also had mining. Describe some of the corruption you saw there and what tools did you find there to fight it?

In those days, in the late 70s, when I was in Korba, it had the biggest coal mines in the country—now in Chhattisgarh. Stealing coal from the mines and selling it in the black market was rampant. It was always alleged that some of the coal mine officials were mixed up with these people, you may call them the mafia. From time to time, we conducted raids and cops would detain people.

What methods did you find to empower people, to prevent exploitation because in that may lie some answers to the mining challenge for the future.

I was born in Keonjhar district of Orissa that has the second largest iron ore deposit after Bastar, and high poverty. Suddenly, the mine owners have become so rich and you can see the division in society. Unless something is done quickly and the share of the profit coming out of mines is distributed equitably among people living in the area whether or not they own the land…

What kind of a family do you come from?

I lost my parents when I was two. So my uncle, who was a teacher in a tribal school, brought me up. I began my education in a tribal school.

So you have seen a tough life.

Yes, I have seen the entire spectrum.

That’s the tragedy in India. A lot of people who talk about poverty haven’t actually been poor.

Yes. Moving from a place where I would trek 4 km daily until I passed high school to here in Delhi with you.

That is the beauty of this country, from poverty to power of this kind. So many of you in civil service are the salt of the earth and may your tribe increase and may we keep talking as the power of the law over which you preside unfolds in years to come.

Keep PM, higher judiciary out of Lokpal: ex-CJI

CNN IBN

Karan Thapar: With the Lokpal issue continuing to dominate the news, we present the views of one India‘s greatest jurists and a long time advocate in judicial accountability former chief justice of India Jagdish Sharan Verma. Justice Verma, let me start with the obvious question. As a former chief justice of India, should the higher judiciary be brought under the ambit of the Lokpal or would that be a mistake?

JS Verma: That would be a mistake.

Karan Thapar: Why would it be a mistake?

JS Verma: It will foul with the basic structure of the Constitution.

Karan Thapar: Explain to me why you believe bringing the judiciary under the Lokpal would breach the basic structure of the constitution?

JS Verma: Judicial review is a basic feature, part of the basic structure for which an independent judiciary is essential and the Constitution treats the higher judiciary separately, rather the whole of it. Article 50 separates, rather mandates separation of judiciary from executive. The subordinate judiciary is also subdued to control only of the higher judiciary. Article 235 and Article 124, sub article 5, provides for a separate law to be enacted for dealing with proven misbehaviour of the High Court and Supreme Court judges.

Karan Thapar: So what you’re saying is that if the judiciary were brought under the ambit of the Lokpal, judicial review would be affected and undermined?

JS Verma: Certainly. It would be.

Karan Thapar: And if judicial review is undermined, would the independence of the judiciary also be adversely affected?

JS Verma: That is directly connected with it. The judiciary under the Constitution is the custodian of the rule of law which is the bedrock of democracy. So ultimately the democratic structure would be affected.

Karan Thapar: And if the independence of the judiciary is affected, then does that mean that the separation of powers which is intrinsic to our Constitution would also be damaged?

JS Verma: Directly, which is actually expressly mandated separation of powers in Article 50.

Karan Thapar: So are you absolutely sure that what you describe is a cascading damaging effect and an adverse effect on the constitution would follow immediately if the judiciary is brought under the Lokpal, you’re absolutely sure of that?

JS Verma: I’m absolutely sure of that.

Karan Thapar: So at all costs you’re saying the judiciary must not come under the Lokpal?

JS Verma: Certainly not under that. It must be under a law enacted under Article 124(5), which not only me, but the judiciary has also been advocating for long.

Karan Thapar: Now I’ll come to that in a moment’s time. Let me put to you a second and different concern some people have if the judiciary were to be brought under the Lokpal. They say it would result in what they call, a circularity of accountability. On the one hand, the Lokpal has the powers to investigate charges, on the other hand, the same judges have the power to question decisions on the behaviour of the Lokpal. Is that circularity desirable or should it be avoided at all costs?

JS Verma: Actually, it must be avoided at all costs because I may know, as a fact from sitting judges, they are very uncomfortable about it and to put it bluntly, if I were in that position today, and I was offered a judgeship, I would without hesitation say no. You need very competent or the best amongst the members to be judges in order to ensure good justice delivery system.

Karan Thapar: Are you also therefore suggesting that this whole debate about bringing the judiciary on the Lokpal, is worrying sitting judges?

JS Verma: Yes it is, and not only that, as it is, it is becoming difficult to attract the best from the bar and it will make it more difficult.

Karan Thapar: So if the judiciary would have come under Lokpal, it would deter good people joining the bar?

JS Verma: Certainly, and laws’ delays is also connected with it. You have one competent person. He does the work of two-three persons.

Karan Thapar: So a second effect of bringing the judiciary on the Lokpal would be that you would have even greater arrears of justice?

JS Verma: Certainly, laws delays would mount.

Karan Thapar: Now, you’re a great advocate of judicial accountability, but you firmly believe that this should happen by way of a separate judicial accountability bill. Anna Hazare‘s team points to several infirmities in the present judicial accountability bill which is before Parliament. To begin with they say that bill only talks about misbehaviour and misconduct which at best is an indirect and tangential way of covering corruption.

JS Verma: Well, it is too naive to say that misbehaviour does not cover corruption. Actually any improper behaviour is misbehaviour and corruption is the worst form of improper behaviour. As a matter of fact there examples abounding. Dinakaran is being proceeded against now, that’s for corruption. Earlier V Ramaswamy was proceeded against, for corruption under this very provision.

Karan Thapar: So the argument that the judicial accountability bill talks about misbehaviour, misconduct and not corruption and therefore it’s weaker than the Lokpal, is an argument you dismiss altogether?

JS Verma: Actually, it is too simplistic and too naïve, and the word misbehaviour has been deliberately used because it has a very wide connotation.

Karan Thapar: In fact in a sense it’s wider than corruption?

JS Verma: Of course, corruption is only a part of it.

Karan Thapar: Now a second infirmity that Anna Hazare’s team points to, in the judicial accountability bill, is the mechanism that gives sanctions for a judge to be investigated. They say under the bill the sanction is given by the accused judge’s colleagues and friends sitting on the same bench as him, and they may be prone to protect him. They say in comparison, under the Lokpal, the sanction is given by an independent 7-man bench which has no connection to the accused judge and, therefore, will be impartial.

JS Verma: The experience so far shows that this is not a valid argument, because every time a judge has been proceeded against, whether it was Ramaswamy or Dinakaran, it is the judiciary which has moved it and I know from personal experience the number of judges I proceeded against. It was the political executive which let them off. Not only that, take an obvious example, lawyers are disciplined by the Bar council of India that is under lawyers themselves. Why can’t judges be trusted, and ultimately you have any mechanism, it would be a subject to jurisdiction of Supreme Court.

Karan Thapar: Prashant Bhushan, I imagine would respond to what you said by pointing out that there have been innumerable instances of allegations against judges, but on very few occasions has the Chief Justice of India actually given permission for an FIR. He says that if this matter were to be handled by the Lokpal the number of instances where permission to lodge FIRs would increase substantially.

JS Verma: For obvious reasons he doesn’t know all the facts. I know it from within and I know from personal experience even about myself, that the number of judges I’ve proceeded against, I offered to give consent or permission to record FIR, the political executive didn’t accept it.

Karan Thapar: Now, you’re, therefore, saying to me despite all the arguments that the Anna Hazare team has put, you remain clear in your mind that the higher judiciary must not come under the Lokpal?

JS Verma: I’m very sure about it and that is based on my experience from inside for about 26 years.

Karan Thapar: Let’s then come to two other issues that have been in the news. First, should the Prime Minister come under the ambit of the Lokpal?

JS Verma: I don’t think so. The Parliamentary democracy that we have adopted as the system, there the Prime Minister should be accountable only through Parliament.

Karan Thapar: What about making the Prime Minister accountable to the Lokpal but with certain exclusions such as national security or defence?

JS Verma: As a matter of fact, so far as the ordinary law is concerned, that applies to the Prime Minister in any case for offences under the general law. But then so long as he retains the majority in the House of people, he is bound to remain the Prime Minister.

Karan Thapar: In fact Prashant Bhushan and Anna Hazare’s team might turn the argument you’ve just given me on its head by pointing out that if the Prime Minister can be covered by the ordinary law, if he can be covered by the Prevention of Corruption Act, why shouldn’t he be covered by the Lokpal?

JS Verma: The simple answer is that if he is covered in this respect by the ordinary law, you don’t need a Lokpal to cover him on those things, and for the other things, you can’t have a lame duck Prime Minister, because there’s no provision for President’s rule at the Centre.

Karan Thapar: Okay, I understand the point you’re making, others may disagree with it, what about then MPs, specifically in terms of what they do or say, their speeches or their voting in Parliament, if the shadow of corruption falls over those activities, should that come under the Lokpal?

JS Verma: So far as I am concerned I’m clear that the Tiananmen bribery Supreme Court judgement needs to be overruled, that’s absolutely wrong. But then so far Article 105 relating to Parliament and 194 relating to state legislatures are concerned, they clearly provide for privileges to be codified, and so far as their conduct inside the House is concerned, that is subject to provision and, therefore, that should not have any outside body. Even the judiciary’s intervention is limited in that.

Karan Thapar: So in fact Article 105 with respect to Parliament to take that as an example, grants immunity to what MPs do with in the House and unless you can change the Constitution you cannot bring that under the ambit of the Lokpal, but what you’re also saying at the same time is what’s more important is to codify the privileges and spell them out in specific detail, as that would have a constraining effect and a good effect on the behaviour of MPs?

JS Verma: Certainly.

Karan Thapar: In which case, let me end this section by saying this to you. Anna Hazare has repeatedly said that if his entire proposal, all his proposals in there in entirety are not accepted by the government, he will relaunch his fast-unto-death on August 16. Do you believe that fasting-unto-death is a sensible way of negotiating something as complex and constitutionally sensitive as the Lokpal.

JS Verma: I think it is undemocratic, because ultimately the law has to be made by Parliament. Everyone in democracy has the right to have his voice heard, considered and by the deciding authority, it must consider and then decide.

Karan Thapar: But a fast-unto-death is undemocratic?

JS Verma: Yes, it’s undemocratic.

Karan Thapar: Justice Verma, let’s come to how judges are chosen. In 1993, you wrote the Supreme Court judgement, which gave the primary role to the judiciary itself. Today you believe that task needs to be assigned to a national judicial commission. Is that because the wrong sort of people have been elevated to judiciary.

JS Verma: That impression and it’s not unreasonable and that is because the judgement as I understand and I would like to think has not been properly implemented and the errors which have occurred are because of improper working.

Karan Thapar: And the greatest error that has occurred is that thw rong sort of person has either been elevated or made in to a Chief Justice?

JS Verma: Correct.

Karan Thapar: Now you in fact have a striking example of how the wrong sort of person gets elevated. It starts in 1997 when you were Chief Justice of India and you recommended the elevation of a High Court judge to become the Chief Justice of a state High Court. What happened thereafter?

JS Verma: Well, the Prime Minister rang me up and said he’ll clear it, because it has come from me, but he had disturbing reports about his integrity. I said Prime Minister don’t clear it, send it back to me, I withdrew the recommendation and also told two of my colleagues in the Supreme Court who had recommended his appointment that this is not the thing to be done and I also rang up that particular judge himself and told him I’m withdrawing your recommendation.

Karan Thapar: So the most important thing is that you told that judge himself and you also told your colleagues in the Supreme Court who had recommended this gentleman that this was the reason that you were withdrawing your recommendation?

JS Verma: Because my judgement said that antecedents are best known to political executives.

Karan Thapar: And the reason why antecedents are best known to political executives is because they have the means and the mechanisms to keep a check on a man’s integrity, judges themselves don’t?

JS Verma: Correct.

Karan Thapar: A few months or a few years after you demitted office, one of your successors as Chief Justice of India who knew the full story to whom you had explained the reasons why you were withdrawing the recommendation of the concerned judge disregarded everything and went on to promote him to Chief Justice. Is that right?

JS Verma: Unfortunately yes.

Karan Thapar: So clearly a man whose integrity was under question, whose recommendation you had knowingly withdrawn, was equally knowingly and deliberately promoted by one of your successors. Was the Chief Justice who promoted this gentleman Justice Anand and was the gentleman himself Ashok Agarwal?

JS Verma: Well, let us not take names.

Karan Thapar: But I noticed you’re not denying it. Let me put this to you. Was this a one off, isolated solitary instance or are there several other instances where inappropriate people have been elevated to the judiciary?

JS Verma: Well, some people who are not considered suitable in my time and I used to consult five including those who succeeded me thereafter, a few of them were appointed soon after I had retired.

Karan Thapar: So there are several instances of people who were not considered suitable in your time, who were promoted by your successors and once again your successors were aware that these were unsuitable people.

JS Verma: No no, for the Supreme Court they were all involved in the decision.

Karan Thapar: So clearly there were successors who disregarded the reasons you had for not promoting and chose deliberately to promote people who were deemed inappropriate and unsuitable?

JS Verma: You don’t want me to answer that specifically.

Karan Thapar: Once again I’m taking that as a yes and your smile says it all. If a national judicial commission existed, can you be absolutely sure such mal practices wouldn’t continue to happen?

JS Verma: Well, that would act as a check, no doubt, and I think the time has come when more checks and balances are required and the best thing is transparency – everything in writing and all that being in public domain so that that accesses internal check.

Karan Thapar: A moment ago, in answer to a different question, you mentioned how when you were Chief Justice you had given permission for an FIR to be lodged, but the executive of the day refused. Let me ask if I have got the story right. You are referring to an instance that happened in 1997-1998 when you were Chief Justice. The campaign for judicial accountability had presented a petition calling for the impeachment of Justice Punchhi, in the end Justice Punchhi succeeded US Chief Justice of India, but the truth is that you were prepared to grant permission for an FIR to investigate the allegations against Justice Punchhi, but the Prime Minister of the day Inder Gujral refused to accept.

JS Verma: Well, that’s what he clearly said. And also the president, who did not say it directly, he said it through the Prime Minister. That was all I could do.

Karan Thapar: But the important thing is that as Chief Justice of India you were prepared for an FIR, you were prepared to give permission for an FIR to investigate the allegations against Punchhi.

JS Verma: Because the allegation if proved were serious and therefore they required to be investigated, so that one could know whether they were true or not.

Karan Thapar: This also means that Justice Punchhi was elevated to Chief Justice even though he faced what you call serious allegations that should have been investigated?

JS Verma: These are the facts.

Karan Thapar: If a national judicial commission had existed at that time, would it have investigated the allegations against Justice Punchhi?

JS Verma: It is like this. I did whatever power I had at that time. I didn’t have anything more than that. Even in the letter which I wrote I mentioned that.and, therefore, any mechanism which could be as a matter of fact persuaded to make an enquiry, I would have done that.

Karan Thapar: So you did at that time what you could under the powers that you had, you didn’t have powers to go further, but if a national judicial commission had existed, then it would have had the powers to investigate those allegations, am I right in that?

JS Verma: Because then the Prime Minister alone would not have decided.

Karan Thapar: Quite right. The national judicial commission would have decided and it would have automatically investigated. And, therefore, it also means that if an investigation had been carried out, it’s possible not necessary, but possible that Justice Punchhi might never have become Chief Justice.

JS Verma: Well, that would depend on the outcome of the investigation because you see, material not being produced, it not being investigated, I can’t say that.

Karan Thapar: But then the doubts would have been removed, one way or the other.

JS Verma: Yes, yes of course, and in national judicial commission I would have been there as the Chief Justice of India, I could not have just offered it to the Prime Minister and leave it there, I would have persuaded them.

Karan Thapar: One last question, you’re not just a former chief justice of India, you’re also a former chairman of the National Human Rights Commission. One of your successors, Chief Justice KG Balakrishnan today faces serious allegations and they are indeed serious allegations amounting to corruption. Yet he refuses to resign. Is it okay for him to continue in office while facing these allegations or should he step aside?

JS Verma: I have said it long back and I have no hesitation repeating. He should have demitted long back and if he doesn’t do it voluntarily, the government should persuade him to do that, otherwise, proceed to do whatever can be done to see that he demits office.

Karan Thapar: But this is a matter of urgency as it affects the good name of the NHRC?

JS Verma: Not only that, it affects internationally. NHRC actually faced flak recently when there was a threat to downgrade its status, whereas earlier, I remember in our time, Mary Robinson used to say please advise others and that’s what I’m doing.

Karan Thapar: So the good name and standing of India requires that urgent action be taken and Justice Balakrishnan be persuaded to step down?

JS Verma: Absolutely. If he doesn’t do it himself.

Karan Thapar: Justice Verma, a pleasure speaking to you.

JS Verma: Thank You.

http://ibnlive.in.com/news/keep-pm-higher-judiciary-out-of-lokpal-excji/162837-3.html

Is the government serious about dealing with corruption?

TEAM ANNA IN THE HINDU

The Lokpal is designed to be a comprehensive anti-corruption institution independent of the government, empowered to effectively investigate corruption of all public servants. But most of the critical elements in this vision have been rejected.

Union Ministers and the members of Lokpal Bill drafting committee P. Chidambaram, Kapil Sibal and Salman Khurshid address a press conference in New Delhi recently.
Union Ministers and the members of Lokpal Bill drafting committee P. Chidambaram, Kapil Sibal and Salman Khurshid address a press conference in New Delhi recently.

The latest draft report of the Comptroller and Auditor General of India (CAG) on hydrocarbon production sharing contracts and the transfer of oilfields to Reliance is only the latest of the mega scams to surface in the country. The breadth and depth of corruption in India is clear from the country’s plunging ranking in Transparency International‘s global corruption survey. Corruption has come to affect every citizen in the country. Bribes have to be paid for ration cards, passports, building permits, and for doing even normal business. Street vendors and rickshaw pullers are forced to pay bribes for exercising their fundamental rights. Villagers are forced to pay bribes for getting their wages under the Mahatma Gandhi National Rural Employment Guarantee Act (NREGA) or for any other entitlements in other schemes. High-level corruption is plundering the public exchequer, distorting government policies, and creating a criminal mafia, which has come to dominate all institutions of power. Low-level corruption is making life impossible for common citizens.

A major reason for this rampant, widespread corruption is the lack of an independent, empowered, and accountable anti-corruption institution that can be trusted to credibly investigate complaints of corruption and prosecute the guilty. The Central Bureau of Investigation (CBI) is controlled by the very people who are the fountainheads of this corruption and is required to seek the permission of the very people who need to be investigated and prosecuted. The Central Vigilance Commissioner of India (CVC) is selected by the Prime Minister, the Home Minister, and the Leader of Opposition, who have a vested interest in ensuring that weak bureaucrats get selected. Moreover, the CVC has only recommendatory powers and most of his or her recommendations are disregarded by the government, which wants to protect corrupt public servants. The courts take years to conclude trials and there is also considerable corruption in the judiciary because of the lack of accountability of the higher judiciary and the lack of an effective anti-corruption agency to investigate corruption within its ranks.

This is why we have been demanding the constitution of an independent Lokpal institution — which will be completely independent of the government, empowered to effectively investigate corruption of all public servants of the Central government, including the Prime Minister, the judiciary, etc. (with Lokayuktas in the States to investigate public servants of the State governments and local bodies), and accountable in multiple ways to ensure that any corruption in the Lokpal institution would be immediately investigated and action taken. This is exactly what is required by the United Nations Convention against Corruption (UNCAC), which has just been ratified by India after much delay.

In the Jan Lokpal Bill proposed by us, the 11-member Lokpal would be selected by a broad-based selection committee consisting of the Prime Minister, the Leader of Opposition, the Chief Election Commissioner of India (CEC), the CAG, two Judges of the Supreme Court, and two Chief Justices of the High Courts. The selection would be done transparently by first setting up a search committee consisting of retired CECs and CAGs who would first call for public nominations, then prepare a shortlist which would be put up on a website for public comments about the shortlisted candidates after which the selection committee would finally select the members.

This 11-member Lokpal would have a full investigative agency under its control through which it would get complaints investigated. If corruption is found after investigation, the corrupt public servant would be prosecuted in special courts within the judicial system. The Bill provides that the number of special courts to try corruption cases would be increased to ensure that trials are completed within a year. Proceedings for removal of the corrupt public servant would also be initiated by the Vigilance Department under the Lokpal, which would give a full opportunity for hearing to the public servant. The Lokpal’s final recommendation for penalty against the public servant would be binding on the government. This would ensure that the bosses of the corrupt public servants who are often complicit in their corruption cannot protect them, as is happening today.

The Lokpal would thus be a comprehensive anti-corruption institution independent of the government. The 11 members of the Lokpal would be accountable to the Supreme Court of India, which would examine complaints against them and order their removal. The investigative and vigilance machinery under the Lokpal would be accountable to independent complaints authorities created in each State, apart from to the Lokpal itself. Moreover, the Lokpal institution would be subject to a financial and performance audit by the CAG. Most importantly, the functioning of the Lokpal would be mandated to be transparent and the details of its investigations would be put up on its website. Also, the orders of the Lokpal would be subject to judicial review by the High Courts and the Supreme Court.

In the last two meetings of the Joint Drafting Committee (JDC), the Ministers representing the government rejected most of the critical elements in this vision of the Lokpal. They see the Lokpal as an essentially 11-member institution where all decisions would have to be taken by these members themselves. Instead of a comprehensive anti-corruption machinery, they see it as an institution to look at a few cases of high-level corruption. Even there, they do not want the Prime Minister, the higher judiciary, and the Members of Parliament who take bribes for voting or speaking in Parliament to be covered. Also, they want the Lokpal to be merely a recommendatory body like the CVC in matters relating to the removal of corrupt public servants.

They were neither willing to debate these issues publicly nor even willing to place the audio records of the meetings on a public website. They were also not prepared to debate these issues further between us. It has therefore been decided that the Ministers would prepare their own draft and we would prepare our draft of the Lokpal Bill, each of which would be placed before the Cabinet, which would decide which Bill would be placed before Parliament.

We are repeatedly being told that laws have to be made by the elected representatives of the people and civil society has no role to play. This view shows an arrogance of power. Those running the government have forgotten that they are merely the representatives of the people and they must run the government and make laws as per their wishes. Therefore, while deciding which Lokpal Bill to pass, they must find out what the people want and, if they have any doubt about that, they can have a referendum on the disputed issues.

The people of this country are fed up with the all-pervasive massive corruption in the country and are determined to have a strong and independent Lokpal. Any government or party that goes against the wishes of the people will do it at its own peril.

(This article by Team Anna was submitted to The Hindu by Prashant Bhushan, one of the members of Team Anna on the Joint Drafting Committee of the Jan Lokpal Bill.)

http://www.thehindu.com/opinion/lead/article2118287.ece?homepage=true

Weighing The Scales

Anuradha Raman in The OUTLOOK

 A caveat: Is the Lokpal the right authority to investigate judges? Legal luminaries think otherwise.

Five Points Of Contention

Pro-Lokpal Bill activists want the higher judiciary to come under the purview of the new law. Jurists think otherwise.

Point: Nowhere in the world is there an ombudsman to whom the entire higher judiciary is made accountable
Counterpoint: The Lokpal Bill must ensure powers to probe corruption charges against SC and HC judges
Independence of the judiciary will be affected, as power to give the nod to act against higher judiciary vests only with CJI

The Bill must provide for a system which is independent of the judiciary to grant permission to register an FIR and launch investigations against a corrupt judge
The Judicial Accountability Bill does have provisions to probe and charge a corrupt judge
The Judicial Accountability Bill only addresses professional misconduct and not corruption
Creates an absurd situation that will become untenable, putting the SC and the Lokpal at loggerheads

Complaints against Lokpal can go to the SC. Those against judges can be taken up by the Lokpal. This willl provide for better checks and balances.
The Lokpal Bill will be challenged in the courts as it affects specific clauses which guard the independence of the judiciary

The Constitution need not be amended to bring the judiciary in the ambit of the Lokpal

Should a judge be subjected to criminal investigation on suspicion of corruption in office? If an ombudsman such as the proposed Lokpal questions his actions, will it amount to lowering the dignity of the judge or the judiciary? Should a judge be immune from the law? These are the chief questions in the debate over whether the judiciary should be made accountable to the Lokpal. Think of it as a special aspect of India’s contentious exploration of a new regulatory possibility, an ombudsman to check corruption in high places, a process stalled in Parliament since the late 1960s.

Despite allegations of corruption against a few judges, courts have by and large managed to retain the sheen of inviolability—and that only partly owes to conventional deference. They are still seen as protectors of the common man and levellers of the high and mighty. Over the last year, they have been hailed for decisions that packed off ministers and MPs to jail, upheld environment laws, championed the cause of the poor and chastised governments for insensitivity towards have-nots. They also came in for criticism, to be sure, for turning a blind eye to the rot in the judiciary itself. What’s galling members of civil society on the Lokpal Bill drafting committee, however, is the stiff resistance from jurists to bringing the higher judiciary—high court and Supreme Court judges—within the ambit of the proposed law. In the five meetings held so far, government nominees on the committee, too, have stymied the efforts of civil society members to include provisos that will make sitting judges accountable. Both groups are battling it out in every conceivable forum in an attempt to influence public opinion.

As of now, if there is an allegation of corruption against a high court or Supreme Court judge, even an fir cannot be registered without permission from the chief justice of India (cji). This stems not from enacted law but from a 1991 judgement of the apex court in the case of Justice K. Veeraswami, which was ostensibly meant to protect the independence of the judiciary and insulate it against pressure from the executive. But legal experts say such permission—if it comes at all—is bound to take time, during which there is every chance for loss of evidence. But has such permission ever been granted? No. Is it likely to happen under the present circumstances? “The very idea of having the cji grant permission for criminal investigation of judges is a farce,” says Prashant Bhushan, a lawyer-activist on the Lokpal committee. “Hence the need to address this in the Lokpal bill.”

The draft bill being discussed proposes to address this problem by requiring that “permission to register an fir against a judge should be granted by a seven-member bench of the Jan Lokpal (the bench may have a majority of judicial members) rather than the cji.” Besides, it says “any complaint against any judge of an HC or SC shall be dealt with only by the office of the chairperson of Lokpal and will be subjected to a preliminary screening which shall determine whether prima facie evidence exists under the Prevention of Corruption Act. In addition to this, no case shall be registered without the approval of a full bench of Lokpal.”

Foremost among those who have reservations about these provisos are former cjis J.S. Verma and M.N. Venkatachaliah: they don’t want judges to be subject to the Lokpal’s scrutiny. Verma says the Judicial Accountability Bill, which he helped initiate and is now pending in Parliament, is the best option. Judges should be accountable, in his opinion, but not to the Lokpal. He says, “Article 50 of the Constitution provides for separation of powers between the executive and the judiciary. The Lokpal falls in the category of the executive. If you don’t have faith in the judiciary, do you think the gods are going to descend and sit in the Lokpal?” His larger argument is that bringing judges under the Lokpal amounts to tampering with the basic structure of the Constitution. “Also,” he asks, “if the Lokpal goes wrong, where will people go? To the courts? Instead, why not strengthen the Judicial Accountability Bill? Article 124 provides for enacting a law for judicial accountability.” Civil society representatives counter that going to the courts in case there are complaints against the Lokpal, or if the Lokpal’s decision is not satisfactory, will ensure enough checks and balances.

This is a circular argument, according to A.P. Shah, former chief justice of Delhi High Court, and makes no sense. He too is for strengthening the Judicial Accountability Bill and keeping judges from the purview of the Lokpal. “The power to remove the Lokpal is with the Supreme Court, and the Lokpal will look into complaints against Supreme Court judges! How can that happen?” he asks. “A judicial accountability law can look into and also govern investigation of allegations of corruption in the judiciary too.”

Another aspect Shah questions is the wisdom of bifurcating wrongdoing in the judiciary—with the Lokpal looking at criminal misconduct only. “Look at P.D. Dinakaran, chief justice of the Sikkim High Court,” he says. “Corruption is one of the many charges—besides judicial misconduct and land-grabbing—levelled against him. Can you say the Lokpal will look only at corruption? How will this operate?”

The objection of Soli Sorabjee, former solicitor-general of India, is based on possibilities of plays and counterplays that will prove counter-productive. “The insistence of civil society members on roping in the judiciary will invite the court’s action. It will be challenged by the courts and an unfortunate regressive result will be major delays in the passage of the bill,” he says. “And if there are weaknesses in the Judicial Accountability Bill, by all means let’s consolidate it.”

This is a view echoed by V.S. Malimath, former chief justice of the Karnataka and Kerala high courts. “Was it not judges who found Ramaswamy, against whom Parliament initiated proceedings for impeachment, guilty? But who acquitted him? Politicians,” he says. “Corruption in the judiciary is a disease and should be treated like one by putting in procedural safeguards.” The question of the Lokpal’s proper turf stems from Article 124 of the Constitution, which makes judges of the Supreme Court totally independent of the executive.

As for getting MPs under the proposed law, there are few takers here too. Some MPs argue, off the record, that the system of checks and balances prevalent now—the ethics committee of Parliament and the privileges committee—have functioned well enough in the recent past. In a signed piece in People’s Democracy, Sitaram Yechury of the CPI(M) writes: “The Common Minimum Programme adopted by the United Front government in 1996 said that a bill to set up the Lokpal will be introduced in the first budget session of the XIth Lok Sabha. The bill will cover the office of the prime minister as well. All MPs will be required by law to declare their assets annually before the Lokpal.” And D. Raja of the CPI acknowledges the importance of making MPs accountable, saying, “The bill will be discussed threadbare by my party, given the various corruption scams that have rocked the government.” By and large, though, MPs are not in favour of being brought under the Lokpal.

Given these complications, the passage of the Lokpal Bill is not going to be easy. It is, after all, Parliament that will have to give its nod to bringing both the prime minister and judges under the Lokpal. But the big question is whether our politicians will unite in voting for a bill that will make them accountable to an external, turf-hungry authority?

VOICES

“Courts will challenge the bill and the result will be a delay in its passage. This will be rather unfortunate.” Soli Sorabjee, Ex-solicitor-general of India

“Wasn’t it judges who found Ramaswami guilty? And who let him off? Politicians. Graft is a disease.” Justice V.S. Malimath, Ex-CJ, Karnataka, Kerala HCs

“The power to remove the Lokpal is with the SC, and the Lokpal will look at complaints against SC judges?” Justice A.P. Shah, Ex-chief Justice of Delhi HC

“The CJI granting permission to probe a judge is a farce. So we need to address this in the Lokpal Bill.” Prashant Bhushan, Lawyer-activist

 http://www.outlookindia.com/article.aspx?272113

Democratic war

Indian Parliament Building Delhi India
Image via Wikipedia

The Lokpal must be an independent body accessible to every citizen on any matter of corruption affecting the purity of public life.

Justice V R Krishna Iyer in THE FRONTLINE

IT is well known that corruption is widely prevalent in India. Time and again, acts of corruption have been brought into the public domain. They violate human rights, undermine the rule of law, distort the development process and disempower the Indian state. While there are laws against corruption in India, there exists a wide gap between the law in the books and the law in practice. Therefore, a comprehensive law providing for forfeiture of illegally acquired property, in India and abroad, of public servants is the need of the hour. The Jan Lokpal should have independence in its functioning. It must have the power to inquire into, decide and forfeit illegally acquired property of public servants, their relatives, associates, name lenders, and so on. For discharging the onerous duties of the Lokpal under the said enactment, that office must be given wide powers, including the power to call even from Swiss banks details of funds deposited by public servants. Power should be conferred on it to attach and confiscate movable and immovable property even before a final decision is taken. There must also be a provision stating that all transfers of illegally acquired property shall be void if such transfer is effected after the issue of notice of forfeiture. The accused public servant should be burdened with the duty to prove that all the assets he possessed are legally acquired wealth.

The Lokpal should be headed by a former judge of the Supreme Court with impeccable integrity. There has to be a provision for appeal to the Supreme Court.

The Lokpal will be an independent body accessible to every citizen on any matter of corruption affecting the purity of public life and will act only according to its chaste conscience. The members of the Lokpal body can act without fear or favour or affection or ill will of anyone in India, be he ever so high. Its jurisdiction will extend to investigate the proceedings of the Prime Minister, the President or other public authority or public body functioning in a manner affecting public interest, public life or work. The Lokpal cannot be changed by the government and can be replaced only by resignation or a unanimous decision of Parliament, Prime Minister and President.

Such a body will be supreme in its operations and its guidance will extend over the executive, legislative and judicative wings of government. The Lokpal and other members of the body will be selected by an independent authority in India and they can be prosecuted or subject to any court’s jurisdiction only on a specific motion for that purpose in Parliament or the State Assemblies and approved by a two-thirds majority of each House. On the other hand, the Lokpal, acting on the basis of a majority, can quash any decision or order of any authority that is found delinquent after a full and fair inquiry.

India has seen many avatars of corruption – the Bofors scandal, the fodder scam, the 2G spectrum allocation scam, the swindle in the Commonwealth Games preparations, and so on. The people of the country strongly believe that toothless pieces of legislation made by legislatures are the reason why corrupt people go scot free. The people also seem to have lost belief in the judicial system, which has been able to bring to justice only a few of the corruption-accused and that too after a minimum of 10 years.

The people have realised that their elected representatives do not do any legislative work and have started pointing to acts of corruption through the strong media. The people’s struggle for independence from the British has now turned into a democratic war against corruption. How can one expect a Prime Minister who does not exercise his franchise to wipe the tears of the aam aadmi who is suffering on account of rampant corruption? Development is now seen to be synonymous with corruption. To make the legislature do its duty, the people, who believe in a system of good governance, have turned to weapons of non-violence, such as satyagraha. For development to happen, India first needs independence from corruption.

Power is tempered with accountability; sans investigation, power is tower. This principle has been accepted in the Bill now introduced. But the supreme functions vested in this new instrument must be free from state control. Or else it becomes another tool of torture in the hands of the executive – a remedy aggravating the malady.

Prashant Bhushan has made a sound critique of the Bill. The larger the power, the more responsible is the accountability, lest the instrument destroy democracy. Today, if the judiciary delivers an authoritarian judgment, there is none to correct it nor is it accountable to any agency or authority. This makes judges a body of dictators.

The appointment of judges and the critique and correction of their fiats are vital. What is provided on this behalf is insignificant. Besides, access to correct the blunders of this arbitrary body, to make its selection democratic and transparent and its performance subject to a democratic organ has not been given due consideration. Under the guise of control over judicial and other instruments, we cannot create a royalty above all. That is, the choice is between fascism and a self-created authoritarian Grand Jury. The verdict of the jury for misbehaviour of the judiciary and executive authority will make the whole system self-contained and democratic without totalitarian bias.

Judges are not jungle creatures but maintain standards of conduct. During the days when J.S. Verma was the Chief Justice of India, an informal code of conduct was evolved, which commanded the concurrence of the judges of the High Court and the Supreme Court. This code of conduct, to have a binding force, must be incorporated in the Constitution itself and made enforceable. Thus, the standards of conduct of judges abhor corruption, misuse of power or other oblique behaviour. They can be enforced by the Grand Jury. The delinquent conduct not only of the judiciary but of all public authorities must be dealt with by the Grand Jury.

This steering body with final authority must be selected by a commission for appointment and performance. No longer confined to the judiciary but including every instrument that enjoys public power, the Grand Jury will sit for a period of 10 years and can be removed for misconduct only by the paramount power of the two Houses of Parliament. These are matters that have to be refined by the draftsman and presented to Parliament. These are rough ideas and have to be debated by Parliament and approved with a two-thirds majority. The whole process is cumbersome, but when complicated problems face a nation, the process has to be complicated. Fiat Justitia Ruat Caelum (Let justice be done though the heavens fall).

 Two fundamentals

 Two fundamentals that make the Grand Jury itself accountable may be indicated briefly. Public power becomes a terror unless it is accountable to the nation and makes itself accessible to the littlest Indian who has a grievance of corruption or improper behaviour justifying an inquiry into the conduct of the judges implicated. In principle, access to every citizen and accountability to ‘We, the People of India’ is accepted in the Lokpal Bill. I have suggested the creation of a basic authority with supreme powers. If both Houses of Parliament, each with two-thirds majority, have the power to appoint and to dismiss, surely it will be a grand wonder of paramount power.

Modifications and refinements may be necessary in what I have said. A national debate may bring out flaws, and faults and failings may be disclosed and corrected at the final stage. Egregious errors cannot be avoided in advance. Only when the nation debates the issue latent errors will become patent.It is my conviction, as I have repeated several times, that an appointments commission should be set up with transparency and opportunity for the public to speak up. When this article gains national circulation, new thought will surface and correction may still be possible. A performance commission also may be necessary. Perhaps, it is good to remember Edmund Burke’s observations: “Among a people generally corrupt, liberty cannot long exist.”

The Grand Jury I envision will be a powerful body, itself accountable to the people through Parliament, and its processes will be transparent and progressive. Glasnost and Perestroika are principles that apply to all instruments where state power is vested. After all, the greater the power, the more dangerous is the abuse. It is a fact that the former Chief Justice of India has been accused of corruption, and yet the Prime Minister has kept silent. While I have demanded power in Parliament even against the Grand Jury, that is because “in all forms of government people is the legislator”.

The former Chief Justice of India with grave aspersions against him is silent and the Prime Minister and Parliament are keeping guilty silence. But an event of corruption has happened, upon which it is difficult to speak and impossible to be silent. Dear Prime Minister, still I hold you as a statesman and straightforward repository of power. Parliamentarians, remember your duty to the nation. Speak up against corruption. Silence is grave guilt where it is your duty to speak on the side of the nation.

Dear Prime Minister, I still have great hopes from you. Act now and make the judiciary a credible instrument beyond suspicion, beyond delinquency. Manmohan Singh, you are the guardian of democracy for the nonce. Therefore, I cite Swami Vivekananda to impress upon you the basics of democracy and godism: “Feel, my children, feel; feel for the poor, the ignorant, the downtrodden; feel till the heart stops and the brain reels and you think you will go mad…. I do not believe in a God, who cannot give me bread here, giving me eternal bliss in heaven!”

http://www.hinduonnet.com/fline/stories/20110520281004100.htm

Judges may be kept out of Lokpal radar

INDIAN EXPRESS

It is now certain that the higher judiciary wouldn’t be under the purview of the proposed Lokpal. Consensus to this effect emerged at a roundtable held here in which members of the civil society, including four non-government members of the Lokpal Bill drafting committee, two former Chief Justices of India and many prominent citizens participated.

Another important issue on which there was “near unanimity” at the meeting was the procedure for appointment of Lokpal. “Almost everybody, including some members of the drafting committee, agreed that the procedure for appointment of Lokpal as provided in the Jan Lokpal Bill may not work. There was near consensus on having a search committee to first shortlist candidates and then a selection committee headed by the Prime Minister to make the final selection,” sources present in the meeting told The Indian Express.

The selection committee, a source said, could comprise the Prime Minister, presiding officers of the two Houses of Parliament, Leaders of Opposition in the two Houses of Parliament, two Judges of the Supreme Court and two eminent citizens to be nominated “unanimously” by other members of the selection panel.

However, the participants in the roundtable were sharply divided on whether the office of the Prime Minister of India should be under the purview of the Lokpal. Karnataka Lokayukta Justice Santosh N Hegde, former Union Law Minister Shanti Bhushan, lawyer Prashant Bhushan and RTI activist Arvind Kejriwal, all members of the Lokpal Bill drafting committee, participated in the roundtable.

Speaking to mediapersons at the end of the meeting, former Chief Justice of India J S Verma said there was consensus that higher judiciary should be kept out of the Lokpal’s purview. “While there is no question that some measures should be in place to make the judiciary accountable, it was felt that to curb corruption in the higher judiciary, a better mechanism is required,” he said. To a question on whether the four members of the drafting committee who participated in the confabulation were in agreement on the issue of exclusion of judiciary, Loksatta founder Jayaprakash Narayan, who was one of the organisers of the roundtable, replied in the affirmative.

On the issue of whether or not the Prime Minister should be under the purview of the Lokpal, both Justice Verma as well as former CJI M N Venkatachaliah said while the government itself seemed agreeable to this idea, it was felt by many of those present at the roundtable that the Prime Minister shouldn’t be open to any investigation by the Lokpal in the interest of political stability as well as the fact that he is the country’s face in the international arena.

“But, there were strong views from both sides on this issue,” Venkatachaliah said. The two former CJIs, incidentally, were among those who opposed the demand to bring in the PM under the purview of the Lokpal. It is learnt that many participants in the roundtable conference were of the view that the proposed Lokpal should take up only “sensitive” cases, including those involving huge bribes and those affecting the prestige of the country. “Nobody would like the Lokpal to deal with cases of bribe involving a few thousand rupees,” observed a participant. On the contentious issue of whether the CBI’s anti-corruption wing should be merged with the proposed Lokpal, the majority sentiment was that the CBI should remain a “distinct, independent” entity. “However, it was felt that the CBI should be freed from government control,” said a source.

Jan Lokpal bill: addressing concerns

Indian Parliament Building Delhi India
Image via Wikipedia

Prashant Bhushan in THE HINDU

The draft bill seeks to create an institution that will be independent of those it seeks to police, and will have powers to investigate and prosecute all public servants, and others found guilty of corrupting them.

A number of commentators have raised issues about the provisions in the draft of the Jan Lokpal Bill. They have asked whether it would be an effective instrument to check corruption. They have pointed to the manner in which Anna Hazare‘s fast put pressure on the government. It is therefore important to understand the provisions of the bill and how it seeks to set up an effective institution to deal with corruption.

Corruption in India has grown to alarming proportions because of policies that have created enormous incentives for its proliferation, coupled with the lack of an effective institution that can investigate and prosecute the corrupt. Under the garb of liberalisation and privatisation, India has adopted policies by which natural resources and public assets (mineral resources, oil and gas, land, spectrum, and so on) have been allowed to be privatised without transparency or a process of public auctioning. Almost overnight, hundreds of memorandums of understanding (MoUs) have been signed by governments with private corporations, leasing out large tracts of land rich in mineral resources, forests and water. These allow the corporations to take away and sell the resources by paying the government a royalty, which is usually less than 1 per cent of the value of the resources.

The Karnataka Lokayukta, Justice Santosh Hegde, has pointed out in a report on mining in Karnataka that the profit margins in such ventures are often more than 90 per cent. This leaves huge scope for bribe-giving and creates incentives for corruption. The same thing happened when A. Raja gave away spectrum without a public auction to companies at less than 10 per cent of its market price. Private monopolies in water and electricity distribution, airport development and so on have been allowed to be created, where huge and unconscionable levels of profit can be made by corrupting the regulator and allowing private monopolies to charge predatory prices. Tens of thousands of hectares have been given away to corporations for commercialisation in the guise of airport development, construction of highways, creation of Special Economic Zones and so on, at prices that are less than 10 per cent of the value of those tracts of land.

Apart from creating huge incentives for corruption, such policies have resulted in the involuntary displacement of lakhs of the poorest people, leaving them on the brink of starvation and forcing many of them to join the Maoists. The beneficiaries have stripped the land of natural resources (a good deal of which is exported) and destroyed the environment. Most ominously, such deals have resulted in the creation of monster corporations that are so powerful and influential that they have come to influence and virtually control all institutions of power — as we see from the Radia tapes.

While adopting policies that thus create huge incentives for corruption, we have not set up effective institutions to check corruption, investigate and prosecute the corrupt and bring them to justice. The Central Bureau of Investigation (CBI) continues to be under the administrative control of the government, which is seen as the fountainhead of corruption. Thus, no action is usually taken by the CBI to effectively investigate high-level corruption — except once in a while when the court forces its hand. Often we see the CBI itself behaving in a corrupt manner, with no other institution to investigate that. The Central Vigilance Commission (CVC), which is supposed to supervise the CBI, has failed to act, since its own appointment process is riddled with conflicts of interest. The Prime Minister, the Home Minister and the Leader of the Opposition (who has been a Minister and hopes to become Prime Minister one day) want to avoid their own accountability and are thus interested in having weak and pliable persons to man the institution that is expected to supervise the CBI. Moreover, the CVC and the CBI have to seek the government’s sanction to investigate and prosecute wrongdoers; such sanction is usually not given when it comes to high-level corruption. The CVC depends on vigilance officers in various government departments. They are often middle-level officers from the same departments and cannot be expected to exercise vigilance over their bosses who write their confidential reports. The judiciary, which must try and convict the offenders, has become dysfunctional and is afflicted with corruption due to lack of accountability of the higher judiciary.

The draft Jan Lokpal bill seeks to create an institution that will be largely independent of those it seeks to police, and which will have effective powers to investigate and prosecute all public servants (including Ministers, MPs, bureaucrats, judges and so on) and others found guilty of corrupting them. Since corruption involves misconduct and gives rise to grievances, the draft proposes that the Lokpal will supervise the machinery to pursue disciplinary proceedings against government servants (the Vigilance Department) as well as the machinery to redress grievances. Thus, misconduct by government servants, and grievances, will come under the ambit of an independent authority rather than the government — where the machinery has become ineffective due to conflicts of interest. It is proposed that if the Lokpal finds that a contract is being given for corrupt considerations, it can stop the contract. It cannot otherwise interfere with government decisions or policy.

It has been said that this would create a super-cop with enormous powers and no accountability. There is a misconception that the proposed Lokpal will have judicial powers; there is no such provision in the bill. The need of the hour is to have an effective cop who can investigate and prosecute the high and mighty without interdiction from the very people who need to be prosecuted.

The bill seeks to make the Lokpal accountable. First, it is mandated to function transparently so that everything related to its functioning is known to the people (without compromising the investigation itself). Exemptions from disclosure provided in the Right to Information Act could be included. Secondly, the Lokpal’s orders will be subject to review in the High Courts and the Supreme Court. Lastly, the members of the Lokpal could be removed for misconduct, by a five-member bench of the Supreme Court.

There has been some criticism of the Lokpal selection committee and the selection process. Given the erosion in the integrity of most of our state institutions, it was thought that the best bet would be to have a broad-based selection committee and build transparency and public participation into the selection process, while trying to keep out those who are most likely to be within the ambit of the Lokpal’s investigations. That is why in the draft bill Ministers were sought to be kept out.

One criticism has been that this shows contempt for democracy. We have seen how the “democratically elected” Prime Minister, Home Minister and leaders of the opposition have normally selected weak and pliable CVCs. So the draft bill proposes a selection committee comprising the Lok Sabha Speaker, the Rajya Sabha Chairman, the Comptroller and Auditor General, the Chief Election Commissioner, the two seniormost judges of the Supreme Court, two seniormost Chief Justices of High Courts, the Chairman of the National Human Rights Commission and the outgoing members of the Lokpal. This proposed composition of the committee will certainly be discussed, and perhaps improved upon, during public consultations and discussions within the drafting committee that will now take place.

It has been said that putting the function of redress of grievances on the plate of the Lokpal would make its work unmanageable. Though the Lokpal will only reorganise and supervise the grievance redress machinery (rather than dealing with each grievance itself), this is an issue that will be discussed openly by the committee. By next week, a website that will formally take in all the opinions and suggestions on the Jan Lokpal bill will be launched and announced. People are welcome to read, understand and send their comments on it, to be taken note of.

One must not, however, be under any illusion that the Lokpal law by itself would solve the problem of corruption. Unless we tackle and change the policies that create enormous incentives for corruption and monster corporations that become too powerful for any institution to control, the fight will be incomplete. The judiciary too is in need of comprehensive reforms.

But an independent, credible and empowered Lokpal is a necessary, though not a sufficient, condition to effectively control corruption. Let us work at least to put that in place.

(Prashant Bhushan is a senior Supreme Court lawyer and member of the joint committee to draft the Lokpal bill.)