Judicial propriety in an age of scandal

 

Judicial propriety in an age of scandal

Judicial propriety in an age of scandal

ARGHYA SENGUPTA IN THE HINDU

Why Justice Dalveer Bhandari‘s election to the International Court of Justice while serving as a judge of the Supreme Court of India is an unhealthy development

Justice Dalveer Bhandari, a judge of the Supreme Court of India, was elected a fortnight ago by the United Nations General Assembly and Security Council, to serve as a Member of the International Court of Justice (ICJ). He defeated the Filipino nominee, Justice Florentino Feliciano, by a handsome margin and now has a six-year first term at the World Court. Justice Bhandari is undoubtedly a fine judge with considerable expertise in international law. His legal acumen, keen intellect and a sense of justice, especially for the poor and homeless that shines through in his domestic judgments, are qualities that make him an ideal representative of India, itself a beacon of democracy and human rights in the developing world. That India has made a good choice is not in doubt; whether it could have made a better choice, as some have suggested, is contestable though ultimately a moot point. The key issue that arises in this context relates to the fact that Justice Bhandari’s nomination by the Government of India and eventual election to the ICJ took place while he continued to serve as a judge of the Supreme Court of India. This raises grave and disturbing issues regarding the independence of the judiciary in India and points to the lowered standards of propriety in the highest echelons of governance.

Judiciary & government

The independence of the judiciary is a significant legal principle in India, ever since it was held to be part of the basic structure of the Constitution. Since then it has been used on several occasions by the Supreme Court most notably to judicially lay down norms regarding the appointment of judges, transfer of judges between High Courts and administratively with regard to claiming exemption for the office of the Chief Justice of India from the purview of the Right to Information Act and formulating an internal code of conduct for appropriate judicial behaviour. The extensive (and sometimes unwarranted) usage of judicial independence as a legal principle has however blighted its primary status as a normative principle of good governance which promotes impartiality, a key facet of fair adjudication. The judiciary must not only be independent of the co-ordinate wings of government as well as the parties before the case, but must also be seen to be so. The slightest doubt in the public mind of excessive proximity between the judiciary and the government, which is the largest litigant before it, may lead to significant apprehensions of a lack of impartiality thereby questioning the legitimacy of the entire adjudicatory setup. As the Supreme Court of India itself likes repeating in its judgments, “Judges, like Caesar’s wife, must be above suspicion.”

It is this test of judicial independence as a normative principle that Justice Bhandari’s actions fail to satisfy. From available records, Justice Bhandari’s candidacy was accepted by the Ministry of External Affairs after a recommendation to this effect in January 2012 by the Indian Chapter of the Permanent Council of Arbitration, whose advice in this matter, the government has traditionally honoured. From that time, up to the election at the United Nations in April, Justice Bhandari continued as a serving Supreme Court judge, hearing cases (from the Supreme Court causelist record, he heard cases till the 9th of April) and being party to delivered judgments (the last recorded judgment thus far being delivered on the 27th of April, authored by Justice Dipak Misra, his brother Judge on the Bench).

Though his resignation is not a matter of public record yet (the website of the Supreme Court continues to show him as a serving judge at the time of writing of this piece), it is believed that it became effective only on his election to the ICJ. During the same time, as the Ministry of External Affairs’ response to a RTI petition on 8th February 2012 shows, the government was actively lobbying for his candidature in the United Nations, speaking on his behalf to various member states. Even if it is assumed that Justice Bhandari had little or no contact with the government in this process, the very fact that the government, a regular litigant in Justice Bhandari’s courtroom was actively espousing his cause outside it, is gravely problematic in terms of judicial independence conceptualised as a principle of good governance leading to impartiality.

Unheeded lessons from the past

It is not however the case that Justice Bhandari’s failure to resign as a judge of the Supreme Court prior to the government making him its official nominee for election to the ICJ is an isolated incident of judicial independence being imperilled at the altar of individual ambition. Justice Subba Rao’s acceptance of his candidature for President of India by the opposition parties when he was Chief Justice of India is the most egregious example of the independence of the judiciary being threatened by a single individual. Equally pertinently in the present context, the election of the last Indian to serve on the ICJ, the then Chief Justice of India, R.S. Pathak (who incidentally relinquished office as Chief Justice only subsequent to his election to the ICJ), was marred by strong claims that Justice Pathak’s appointment was part of a quid pro quo involving Union Carbide Corporation, the Government of India and the Supreme Court with the Pathak Court endorsing a deeply flawed settlement in the aftermath of the Bhopal gas tragedy. It is disappointing that Justice Bhandari as an upright individual and a learned judge failed to pay adequate heed to these lessons of history and relinquish his judicial office before accepting a nomination by the Government of India.

What is equally disappointing is the lack of public outcry regarding this issue. When Justice Subba Rao accepted the candidature for President made to him by the opposition parties while still in office, a man no less than Motilal Setalvad, India’s first Attorney General, issued a statement to the press strongly condemning the Chief Justice’s decision, saying that “he has set at naught traditions which have governed the judiciary in our country for over a century.” Justice Pathak’s nomination to the ICJ was the subject of several scathing indictments, including by former Supreme Court judge, Justice Krishna Iyer who wrote of “the beholdenness of the candidate [Pathak] to the litigant government for getting the great office for him.” As far as Justice Bhandari’s nomination is concerned, except a public interest petition challenging it as a violation of judicial independence, there has been a seemingly all-pervading public silence. Even the petition itself, though well-intentioned, was misguided, seeking redress from the Supreme Court in a matter which was characterised by impropriety rather than illegality of a type a judicial order could rectify. Justifiably, the Court refused to entertain it.

Importance of propriety

In an age of multi-billion rupee scandals, endemic corruption and food shortages caused by governmental apathy and inaction, the impropriety of a judge failing to resign at an appropriate time may intuitively seem trivial. But as with most questions of impropriety, though its effects may not be immediately apparent, they are the portents of an insidious decline in the standards and values that define institutions.

For the Supreme Court of India, judicial independence has been the cornerstone of its functioning from the time of its inception. Despite a few challenging periods, the Court, the Bar and the conscientious members of the political classes have always striven to fiercely guard the independence of the judiciary from any potential threats. The Bhandari episode is however a bellwether of a possibly developing relationship of cosiness between government and the judiciary, accompanied by a general public indifference, bordering on acquiescence, of such a relationship.

The government’s decision to nominate a sitting judge before whom it continued to appear as a litigant, Justice Bhandari’s decision to not resign when the government was lobbying for him, and most crucially public acceptance of such an unholy nexus are warning signs that ought to be heeded. While the return of an Indian to the World Court after an absence of two decades rightfully gives cause for celebration, it provides an equally significant opportunity for introspection, that the cherished principle of judicial independence, responsible in the first place for the high esteem in which the Indian judiciary and its judges are held on the world stage, does not itself fall into desuetude in the process.

(Arghya Sengupta is a Stipendiary Lecturer in Administrative Law at the University of Oxford and the founder of the think-tank, The Pre-Legislative Briefing Service.)

Advertisements

A bill to settle a terrible debt

Siddharth Varadarajan IN THE HINDU

For decades, the victims of communal and targeted violence have been denied protections of law that the rest of us take for granted. It’s time to end this injustice.

In a vibrant and mature democracy, there would be no need to have special laws to prosecute the powerful or protect the weak. If a crime takes place, the law would simply take its course. In a country like ours, however, life is not so simple. Terrible crimes can be committed involving the murder of hundreds and even thousands of people, or the loot of billions of rupees. But the law in India does not take its course. More often than not, it stands still.

If the Lokpal bill represents an effort to get the law to change its course on the crime of corruption, the new draft bill on the prevention of communal and targeted violence is a modest contribution towards ensuring that India’s citizens enjoy the protection of the state regardless of their religion, language or caste.

The draft law framed by the National Advisory Council and released earlier this month for comment and feedback is a huge improvement over the bill originally drawn up by the United Progressive Alliance government in 2005. The earlier version paid lip service to the need for a law to tackle communal violence but made matters worse by giving the authorities greater coercive powers instead of finding ways to eliminate the institutional bias against the minorities, Dalits and adivasis, which lies at the heart of all targeted violence in India.

The November 1984 massacre of Sikhs provides a good illustration of how the institutionalised “riot system” works. Let us start with the victim. She is unable to get the local police to protect the lives of her family members or property. She is unable to file a proper complaint in a police station. Senior police officers, bureaucrats and Ministers, who by now are getting reports from all across the city, State and country, do not act immediately to ensure the targeted minorities are protected. Incendiary language against the victims is freely used. Women who are raped or sexually assaulted get no sympathy or assistance. When the riot victims form makeshift relief camps, the authorities harass them and try to make them leave. The victims have to struggle for years before the authorities finally provide some compensation for the death, injury and destruction they have suffered. As for the perpetrators of the violence, they get away since the police and the government do not gather evidence, conduct no investigation and appoint biased prosecutors, thereby sabotaging the chances of conviction and punishment.

With some modifications here and there, this is the same sickening script which played out in Gujarat in 2002, when Muslims were the targeted group. On a smaller scale, all victims of organised, targeted violence — be they Tamils in Karnataka or Hindi speakers in Maharashtra or Dalits in Haryana and other parts of the country — know from experience and instinct that they cannot automatically count on the local police coming to their help should they be attacked.

If one were to abstract the single most important stylised fact from the Indian “riot system”, it is this: violence occurs and is not immediately controlled because policemen and local administrators refuse to do their duty. It is also evident that they do so because the victims belong to a minority group, precisely the kind of situation the Constituent Assembly had in mind when it wrote Article 15(1) of the Constitution: “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”.

How are policemen and officials able to get away with violating the Constitution in this manner? Because they know that neither the law nor their superiors will act against them. What we need, thus, is not so much a new law defining new crimes (although that would be useful too) but a law to ensure that the police and bureaucrats and their political masters follow the existing law of the land. In other words, we need a law that punishes them for discriminating against citizens who happen to be minorities. This is what the draft Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011 does.

The CTV bill sets out to protect religious and linguistic minorities in any State in India, as well as the Scheduled Castes and the Scheduled Tribes, from targeted violence, including organised violence. Apart from including the usual Indian Penal Code offences, the NAC draft modernises the definition of sexual assault to cover crimes other than rape and elaborates on the crime of hate propaganda already covered by Section 153A of the IPC. Most importantly, it broadens the definition of dereliction of duty — which is already a crime — and, for the first time in India, adds offences by public servants or other superiors for breach of command responsibility. “Where it is shown that continuous widespread or systematic unlawful activity has occurred,” the draft says, “it can be reasonably presumed that the superior in command of the public servant whose duty it was to prevent the commission of communal and targeted violence, failed to exercise supervision … and shall be guilty of the offence of breach of command responsibility.” With 10 years imprisonment prescribed for this offence, superiors will hopefully be deterred from allowing a Delhi 1984 or Gujarat 2002 to happen on their watch.

Another important feature is the dilution of the standard requirement that officials can only be prosecuted with the prior sanction of the government. The CTV bill says no sanction will be required to prosecute officials charged with offences which broadly fall under the category of dereliction of duty. For other offences, sanction to prosecute must be given or denied within 30 days, failing which it is deemed to have been given. Although the bill says the reasons for denial of sanction must be recorded in writing, it should also explicitly say that this denial is open to judicial review.

Another lacuna the bill fills is on compensation for those affected by communal and targeted violence. Today, the relief that victims get is decided by the government on an ad hoc and sometimes discriminatory basis. Section 90 and 102 of the CTV bill rectify this by prescribing an equal entitlement to relief, reparation, restitution and compensation for all persons who suffer physical, mental, psychological or monetary harm as a result of the violence, regardless of whether they belong to a minority group or not. While a review of existing state practice suggests victims who belong to a religious or linguistic ‘majority’ group in a given state do not require special legal crutches to get the police or administration to register and act on their complaints, the CTV bill correctly recognises that they are entitled to the same enhanced and prompt relief as minority victims. The language of these Sections could, however, be strengthened to bring this aspect out more strongly.

The CTV bill also envisages the creation of a National Authority for Communal Harmony, Justice and Reparation. The authority’s role will be to serve as a catalyst for implementation of the new law. Its functions will include receiving and investigating complaints of violence and dereliction of duty, and monitoring the build up of an atmosphere likely to lead to violence. It cannot compel a State government to take action — in deference to the federal nature of law enforcement — but can approach the courts for directions to be given. There will also be State-level authorities, staffed, like the National Authority, by a process the ruling party cannot rig. The monitoring of relief and rehabilitation of victims will be a major part of their responsibilities.

On the negative side of the ledger, the NAC draft makes an unnecessary reference to the power of the Centre and to Article 355 of the Constitution. The aim, presumably, is to remind the Centre of its duties in the event of a State government failing to act against incidents of organised communal or targeted violence. But the Centre already has the statutory right to intervene in such situations; if it doesn’t, the reasons are political rather than legal. The draft also unnecessarily complicates the definition of communal and targeted violence by saying the acts concerned must not only be targeted against a person by virtue of his or her membership of any group but must also “destroy the secular fabric of the nation.” Like the reference to Art. 355, this additional requirement can safely be deleted without diluting what is otherwise a sound law.

The BJP and others who have attacked the bill by raising the bogey of “minority appeasement” have got it completely wrong again. This is a law which does away with the appeasement of corrupt, dishonest and rotten policemen and which ends the discrimination to which India’s religious and linguistic minorities are routinely subjected during incidents of targeted violence. The BJP never tires of talking about what happened to the Sikhs in 1984 when the Congress was in power. Now that a law has finally been framed to make that kind of mass violence more difficult, it must not muddy the water by asking why it covers “only” the minorities. In any case, the Bill’s definition covers Hindus as Hindus in States where they are in a minority (such as Jammu and Kashmir, Punjab and Nagaland), as linguistic minorities in virtually every State, and as SCs and STs. More importantly, persons from majority communities who suffer in the course of communal and targeted incidents will be entitled to the same relief as minority victims. If someone feels there is any ambiguity about this, the bill’s language can easily be strengthened to clarify this.

At the end of the day, however, we need to be clear about one thing: India needs a law to protect its most vulnerable citizens from mass violence, its minorities. This is a duty no civilised society can wash its hands of.

Draft ‘Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011

http://www.hindu.com/2011/06/21/stories/2011062156231000.htm

India ratify UN Conventions against Transnational Organised Crime and Corruption

India has ratified the United Nations Convention against Transnational Organised Crime and its three protocols and the United Nations Convention against Corruption.

The United Nations Convention against Transnational Organised Crime is the main international instrument in the fight against transnational organized crime. It recognizes the need to foster and enhance close international cooperation in order to tackle those problems. The convention is further supplemented by three Protocols, which target specific areas and manifestations of organized crime namely Protocols to combat (1) trafficking in persons (2) migrant smuggling and (3) illicit trafficking in firearms.

The United Nations Convention against Corruption complements the United Nations Convention against Transnational Organised Crime. The Convention introduces a comprehensive set of standards, measures and rules that all countries can apply in order to strengthen their legal and regulatory regimes to fight corruption.

The Convention enumerates in detail the measures to prevent corruption, including the application of prevention policies and practices, the establishment of bodies for that purpose, the application of codes of conduct for public servants, and public procurement. It recommends promoting transparency and accountability in the management of public finances and in the private sector, with tougher accounting and auditing standards. Measures to prevent money-laundering are also provided for, together with measures to secure the independence of the judiciary, public reporting and participation of society are encouraged as preventive measures. The Convention recommends the State Parties to adopt such legislative and other measures as may be necessary to establish a whole series of criminal offences. These are:

• Corruption of national or foreign public officials and officials of public international organizations;

• embezzlement, misappropriation or other diversion by a public official of any public or private property;

• trading in influence;

• abuse of functions and illicit enrichment.

In the private sector, the Convention calls for the creation of offences of embezzlement and corruption. There are other offences relating to laundering the proceeds of crime, handling stolen property, obstructing the administration of justice, and participating in and attempting embezzlement or corruption.

The tortured bill

PRATAP BHANU MEHTA IN THE INDIAN EXPRESS

Some legislative acts do not simply signal the credibility of the state; they define the measure of civilisation itself. On any measure, the Indian state’s record on custodial torture is an indictment of its democratic credentials.

India has amongst the highest rates of custodial deaths amongst democracies. There is no consistent database on this. But according to the National Human Rights Commission data, more than 17,000 people have died in custody since the mid-’90s; in Lok Sabha, the government admitted to more than 1,000 custodial deaths in 2008-2009 alone. There is virtually no systematic record of torture that does not lead to death; nor is torture against children separately recorded.

Despite Supreme Court guidelines in D.K. Basu vs State of West Bengal on monitoring custodial deaths, the number of cases is increasing. The NHRC has proved to be a very ineffective tool to combat custodial deaths. The phenomenon of custodial deaths cuts across party lines. In absolute numbers, UP and Bihar are the worst offenders, but the record of Congress-led states, like Maharashtra and Andhra Pradesh, is also abysmal. India signed the United Nations Convention Against Torture in 1997. But it is one of the few democracies that has not ratified the convention, despite more than 140 countries having done so. What a measure of our normative backwardness.

But the use of torture is not just a normative blight; it is practically self-defeating as well. We have no idea how much disenchantment and distance the practice of torture puts between the police force and the citizens, particularly vulnerable groups in society. So potential

allies of the state become, at best, sullenly indifferent to it; at worst, they become actively hostile. And the use of torture does not indicate the strength of an institution; it indicates its weakness. Impunity degrades the credibility of the institution in whose name it is carried out.

It is in this context that the Prevention of Torture Bill needs serious scrutiny. The form in which the bill passed Lok Sabha is, to put it mildly, something of a joke. The bill, in its present form, is being dubbed by commentators as the “sanction of torture bill”. As the excellent brief on this bill by my colleagues at PRS Legislative Research has pointed out, it is, in terms of its own objectives, deeply deficient in several respects. (On Tuesday, Rajya Sabha referred the bill to a select committee.)

First of all, there is controversy over the definition of torture in this bill. It is too narrow and does not include several acts already included in the IPC. For instance, the current bill gives no protection against torture or threat of torture being inflicted on some other person like a relative, with a view to obtaining information from the interested party. It does not comply with the definition of torture in the UN convention on torture that India seeks to ratify. It limits torture only to “grievous hurt”, and danger to “life, limb or mental or physical health”. The UN definition by contrast, adopted worldwide, includes any “severe pain or suffering, whether physical or mental”. But the degree to which the Indian law deviates from the UN convention is a matter of some debate. After all, even the UN convention, according to some interpretations, is limited to the idea that extreme practices count as torture. An article of the convention obligates parties to prevent in territory under their jurisdiction “other acts of cruel, inhuman or degrading treatment or punishment which do not amount to acts of torture”.

While the UN convention explicitly criminalises torture, it does not explicitly criminalise other forms of degrading treatment. In the UN convention not all forms of cruel or inhuman treatment amount to torture. This is important to understand. Underlying the watered down provisions in our bill seems to be the fear that an anti-torture bill should not lead to misuse against public officials. This fear is hugely exaggerated.

Even under existing law the prosecution rate is less than two per cent of all those who go to trial. It is therefore important to clean up the definition of torture. There is perhaps one thing we can learn from our colonial masters. The IPC is an old code with problems arising from its 19th century provenance. But one of its advantages as a piece of drafting is that it is

replete with examples that leave no doubt about what the legislation intends; and it also provides a useful aid to thinking analogically about hard cases. Our legislation by contrast is perfunctory and vague, and will therefore not provide an effective moral compass that signals what we wish to prohibit.

Second, the redress mechanisms are even weaker in the new bill. Requirements such as government sanction before prosecuting any public servant (again a dilution of existing law), a six month statute of limitation, and the absence of any independent investigative agency to probe into torture allegations, and the lack of any compensation mechanisms make the bill relatively toothless. They are almost an incitement to impunity.

There is perhaps one practice that might enhance the quality of all legislation in India. Just like many bills include “finance” supplement assessing the possible cost to government, all legislation must come with an assessment of the administrative requirements of each bill. This assessment would analyse the measures that have to be put into place for a bill to realise its objectives. This will do two things. First, it will partially address a crippling infirmity of all our legislation. There is simply no analysis of whether the state has the capacity to carry out the mandate of the legislation: the number of personnel required, the administrative structures that need to be in place and so forth. Parliament simply passes the bills and dumps them on to hapless state personnel who increasingly resent more responsibility being placed on them.

Second, it will give our legislation greater credibility. It will send a powerful signal that the state is not interested in simply being seen to pass legislation. It is also determined that that objectives of the bill be realised.

The Prevention of Torture Bill should have sent a credible signal that India is serious about tackling its record on custodial deaths and torture. And this signal needs to be sent, not just to the international community, for whose benefit this bill has been drafted, but to elicit the allegiance of our own citizens who fear the state more than they love it. But instead the bill is an exercise in bad faith, treating the issue of torture with a shocking degree of callousness.

The writer is president, Centre for Policy Research, Delhi

express@expressindia.com

http://www.indianexpress.com/news/the-tortured-bill/675580/0

India ready to ratify UN convention

The move will allow the government to sign mutual legal assistance agreements with 154 member countries

Sahil Makkar, sahil.m@livemint.com

Eight years after signing the United Nations (UN) convention against transnational organized crime, India is ready to ratify it and bring its laws in line with international standards.

The move will allow the government to sign mutual legal assistance agreements with 154 member-countries as well as put pressure on nations such as Pakistan to assist in efforts to combat money laundering, drugs and arms smuggling and human trafficking. The treaty is the first legally binding instrument that commits members to take collective action against human trafficking—especially of women and children—smuggling of migrants and trafficking of firearms. A senior home ministry official said after signing up in 2002, India had assessed the gap between its laws and those prescribed by the convention.“We sought comments and views of various ministries before putting it before the cabinet. We also visited many countries to review their systems,” the official said. “Earlier, it could not be cleared due to difference in views of all stakeholders. Now the gap analysis is prepared, and it was found that Indian laws sync well with the UN mandated norms,” the official added.

The matter was brought before the cabinet in April. The cabinet will take it up next week, and is likely to clear it, the official said.

A second home ministry official confirmed this, adding: “After the cabinet approval, an Indian delegation led by a minister will visit and submit documents to the UN, which will further process the matter.” Both spoke on condition of anonymity. Pakistan ratified the convention in January. “Pakistan, which has not been very cooperative on the issue of human trafficking, money laundering, drug trafficking and smuggling of illicit firearms, can (now) be held accountable in the UN. Pakistan can be pressurized to cooperate,” the second official said.After ratifying the convention, India will be committed to taking steps against transnational organized crime and adopt new frameworks for extradition, mutual legal assistance and law enforcement cooperation. It will also have to train its officials to implement the new laws, and provide them technical assistance.

“It is a welcome and much-needed step,” said Ravi Kant, a senior Supreme Court lawyer and President of Shakti Vahini, which works against human trafficking. “India will now also adopt international practices related to rehabilitation and relief of human trafficking victims. The much-needed amendments to Immoral Traffic (Prevention) Act, Juvenile Justice Act, Child Labour Act and Bonded Labour Act would also be carried out.” Girija Vyas, president of the National Commission for Women, also welcomed the move.“It will really prove helpful in prevention of human trafficking as India can put pressure on other member-countries,” she said.

http://www.livemint.com/2010/08/22195051/India-ready-to-ratify-UN-conve.html?atype=tp