Ajit Prakash Shah
In a system where half the litigants must necessarily lose their cases and where most complaints against judges are frivolous, the Bill, if implemented, would mark the beginning of the end of the judiciary.
The last two decades have marked the extraordinary rise of India. This has however been tinged with cynicism about our major democratic institutions and a pessimism about their future. The judiciary, which till now has been looked upon as the strongest pillar of Indian democracy, has been beset with unprecedented problems. In recent times, the working of the judges of superior courts (High Courts and the Supreme Court) has come in for intense scrutiny and grave doubts have been cast against the conduct of some judges. The pressing call for greater institutional accountability in the Indian judiciary is now stronger than ever. It is in this light that Parliament’s proposed Judicial Standards and Accountability Bill, 2010 must be seen.
This Bill appears to be a hurried and knee-jerk reaction to recent events, and has the potential to seriously undermine judicial independence. It seeks to devise a new “complaint procedure” under which any person may be able to file a complaint in writing against any judge of a superior court. Upon such a complaint being filed and examined, the Judicial Oversight Committee (proposed to be constituted under the statute), may either dismiss the complaint or make a reference to Parliament for the removal of the judge, issue advisories, warnings, withdraw judicial work or make a request for voluntary retirement.
The issue of Judicial Standards must be seen in the context of Art 124(4) of the Constitution which provides for the process of impeachment of a judge on the grounds of “proved misbehaviour or incapacity.” Art 124(5) empowers Parliament only to make laws to regulate the procedure for presentation of address of impeachment, and for the investigation and proof for the misbehaviour or incapacity of a judge.
Cleverly disguised Bill
The present Bill, cleverly disguised as being permissible under Art 124(5), is an example of the most blatant violation of constitutional safeguards and is a cure that is surely worse than the disease. Article 124(5) does not empower Parliament to create any other forum for recommending impeachment proceedings, or allow complaints to be made by any person, or to make a judge liable for minor penalties. What can be done only by a hundred or more members of the Lok Sabha or fifty or more members of the Rajya Sabha (i.e. initiation of impeachment proceedings) can now theoretically be done by only one person.
It is true that judicial commissions exist in other countries like the U.S. and Canada, but their reach does not extend to the apex court. Also, adopting such structures from other countries without having regard to the unique conditions existing in ours, is untenable and fraught with the danger of destabilising our delicate constitutional balance.
Outlined below are some of the other major defects in the Bill:
Definition of misbehaviour: The Bill seeks to provide a straight jacketed definition of misbehaviour in Clause 2(j), but by laying down a strict definition, the concept loses its elasticity and becomes both under-inclusive and over-inclusive. Over-inclusive, that absent a de minimis exception, even a minor breach of judicial standards, say late filing of assets declaration, could constitute misconduct; and under-inclusive that to the extent that the definition is exhaustive (since it uses the word “means”), it is incapable of catching within its fold any “misbehaviour” that might not be covered by this provision. The Constitution framers had been careful not to define the term misbehaviour, let alone define it exhaustively. Implicit in this understanding was the belief that if the power of removal was vested in high constitutional authorities, they would be in the best position to judge when misbehaviour (or incapacity) had been occasioned.
Statutory provision for judicial standards: The Bill also provides a list of standards of judicial conduct to which all judges are expected to adhere. Sixteen of the 18 enumerated standards are derived from the “Restatement of the Values of Judicial Life” adopted at a Full Court Meeting of the Supreme Court on May 7, 1997. However, the very idea of statutorily providing for judicial standards, irrespective of their content, is violative of judicial independence.
A significant portion of litigation before higher courts today is public in nature and involves the State as one of the parties. Laws are also routinely impugned for their unconstitutionality. Given this, investing the legislature with the power to lay down and amend the standards which all sitting judges must adhere to (or risk the proposed penalties), has the potential to severely threaten impartial and effective adjudication.
Scheme of filing complaints: Under the Bill, “any” person may file a complaint in a prescribed format. Further, the proposed Judicial Oversight Committee will just act as a post-office and refer each complaint to a Scrutiny Panel. This is likely to lead to a multiplicity of complaints and even though the Bill proscribes false and vexatious complaints under Clause 53, this is unlikely to prove much of a deterrent, and since each of them will have to be checked by the Scrutiny Panel, it is also likely to result in a colossal waste of time.
Clause 18 provides that the Oversight Committee shall consist of five persons with two serving and one retired judge, an appointed eminent person and the Attorney-General of India. The presence of the Attorney-General on the Oversight Committee is highly suspect. The Attorney-General has the responsibility of regularly appearing on behalf of the government before the court. On occasions, the possibility of his appearing before a judge against whom a complaint has been filed cannot be ruled out. In such a circumstance, there is clearly a conflict of interest since the Attorney-General will be a member of the Oversight Committee to look into the complaints made against the former.
The Scrutiny Panel is to consist of three members, two of whom will be judges sitting in the same court as the judge against whom the complaint is made. Since these judges would be colleagues sitting in the same court, it is likely that this will, either way, influence their conduct. It would be difficult for judges to dispassionately decide a case against one of their own and sitting with them day in and day out.
Furthermore, the composition and tenure of the Investigation Committee which is to be constituted for the purpose of enquiry into misbehaviour by a judge is undefined. Theoretically, therefore, it is possible for a lay person without any knowledge, experience or standing to be a part of an inquiry panel against a sitting judge of a superior Court.
Minor punishments: The idea of “minor” punishments is unworkable and has the potential to seriously undermine judicial status. If sitting judges are issued advisories and warnings and thereby publicly censured, but still continue on the bench and decide cases, this damages the credibility of the entire system.
Atmosphere of secrecy: Through Clause 43, the Bill completely excludes the operation of the RTI. This establishes an atmosphere of total secrecy more regressive than the present system, and for which, there does not appear to be any rational reason to make a change.
Conclusion
It is totally impermissible for the legislature to strike upon the independence and fearlessness of the judiciary. A judge of a superior court cannot be treated as an employee of the government. The present Bill is incapable of salvage and must be rejected in totality. In a system where half the litigants must necessarily lose their cases, and where most of the complaints against judges are frivolous and made by disgruntled litigants, this bill, if implemented, would mark the beginning of the end of the judiciary.
Demands for change to existing systems in the judiciary must be met rationally, bearing in mind the objectives sought to be achieved. The first site of change must be in the process of judicial appointments. The present system where judges of the superior courts are chosen based on undisclosed criterion in largely unknown circumstances reflects an increasing democratic deficit. The legitimacy of the judiciary ultimately flows from public support, which cannot be maintained without a transparent and open selection process.
The guiding principle should always be this: accountability there is and must be, but let it always be commensurate with judicial independence and impartiality. Ultimately, the appropriate balance between competing principles must be found in something that is best suited to our constitutional setup and is, in that sense, uniquely Indian. The citizens of India deserve no less.
(Justice Ajit Prakash Shah is former Chief Justice of the Madras and Delhi High Courts.)
Thursday, March 31, 2011
The lie of the land
The court presses home its power to intervene when ‘little Indians lose their small property’ to land acquisition by state governments
M J Antony, NNLRJ INDIA,New Delhi March 30, 2011, 0:33 IST
Parliament has not been able to pass an updated land acquisition law for several years, though this is a burning issue and innocent blood has been shed in many states. Meanwhile, the Supreme Court continues to deliver judgments in which disputes arose several decades ago. Two such decisions in recent weeks deal with the governments’ claim of urgency in land takeovers. The governments’ subsequent conduct showed the acquisition was neither pressing nor imperative. The court, therefore, underlined that the landowner’s right cannot be “flattened and steamrolled” on a mere declaration that the acquisition is urgent.
Section 17 of the Land Acquisition Act of 1894 empowers the government to acquire land for urgent reasons without following the procedure of giving land losers a hearing. This provision is prone to great abuse, as illustrated in the two judgments.
Incidentally, this is not the only provision that has been consistently manipulated by governments to benefit powerful interests. The omnibus term “public purpose” is a woolly and hard-to-contradict excuse for land acquisition. The rate of compensation is another sore point in the acquisition law, because of which farmers have to climb the shaky ladder of law up to the Supreme Court to demand a just amount. The litigation often turns out to be the only bequest for their children.
Returning to the urgency clause, the judgment in the appeal case State of West Bengal vs Prafulla Churan reveals the high-handedness of the state government. The land in Kolkata was acquired first in 1944 under the Defence of India Act. While the government still held possession, it invoked the West Bengal Requisition and Control Act in 1959 to continue to hold on to the land. This was challenged by the owner and the Calcutta High Court asked the government to return the land to the owner. But the government invoked the “urgency” clause in the Land Acquisition Act on the grounds that the land was required for the state ceramic development board. The litigation continued with the government losing all the way. Now it has lost in the Supreme Court too.
The court stated that all schemes relating to development of industrial and residential areas must be urgent in the context of the country’s need for increased production and more residential accommodation. Yet, the very nature of such development schemes does not appear to demand emergent action to eliminate summary enquiries that are imperative. The development of an area or a city takes many years so there is no reason that summary enquiry as contemplated under Section 5-A may not be held and objections of landowners may not be considered.
In the second judgment dealing with the “urgency” claim, Dev Sharan vs State of UP, the government wanted to build a new jail in Shahjahanpur because of congestion — 1,869 people are lodged in a 140-year-old, dilapidated building at present. But the noble intention would not justify the deprivation of the property rights of the agriculturists. The government moved slowly and took nearly a year to complete the acquisition process. There was sufficient time to give the landowners a hearing. Unfortunately, the writ petitions of the farmers were dismissed by the Allahabad High Court; it approved of the emergency requirement of the government.
On appeal, the Supreme Court noted the recent negative trend in land acquisition and pointed out how it affected the property rights of the citizens. The law is of colonial, pre-constitutional vintage, said the judges, and it is “drastic and expropriatory in nature as it confers on the state a power which affects person’s property right. Even though right to property is no longer fundamental and was never a natural right, and is acquired on a concession by the state, it has to be accepted that without right to some property, other rights become illusory. This court is considering these questions especially in the context of some recent trends in land acquisition.”
What follows after a discussion on the rampant misuse of the amorphous phrase, “public purpose”, should awaken state governments eager to take over land and give it to industries. The judgment reads: “The courts must examine these questions very carefully when little Indians lose their small property in the name of mindless acquisition at the instance of the state. If public purpose can be satisfied by not rendering common man homeless and by exploring other avenues of acquisition, the courts, before sanctioning an acquisition, must in exercise of their power of judicial review, focus their attention on the concept of social and economic justice.” Even during the current election fever, no political party has seriously taken up this raging issue.
M J Antony, NNLRJ INDIA,New Delhi March 30, 2011, 0:33 IST
Parliament has not been able to pass an updated land acquisition law for several years, though this is a burning issue and innocent blood has been shed in many states. Meanwhile, the Supreme Court continues to deliver judgments in which disputes arose several decades ago. Two such decisions in recent weeks deal with the governments’ claim of urgency in land takeovers. The governments’ subsequent conduct showed the acquisition was neither pressing nor imperative. The court, therefore, underlined that the landowner’s right cannot be “flattened and steamrolled” on a mere declaration that the acquisition is urgent.
Section 17 of the Land Acquisition Act of 1894 empowers the government to acquire land for urgent reasons without following the procedure of giving land losers a hearing. This provision is prone to great abuse, as illustrated in the two judgments.
Incidentally, this is not the only provision that has been consistently manipulated by governments to benefit powerful interests. The omnibus term “public purpose” is a woolly and hard-to-contradict excuse for land acquisition. The rate of compensation is another sore point in the acquisition law, because of which farmers have to climb the shaky ladder of law up to the Supreme Court to demand a just amount. The litigation often turns out to be the only bequest for their children.
Returning to the urgency clause, the judgment in the appeal case State of West Bengal vs Prafulla Churan reveals the high-handedness of the state government. The land in Kolkata was acquired first in 1944 under the Defence of India Act. While the government still held possession, it invoked the West Bengal Requisition and Control Act in 1959 to continue to hold on to the land. This was challenged by the owner and the Calcutta High Court asked the government to return the land to the owner. But the government invoked the “urgency” clause in the Land Acquisition Act on the grounds that the land was required for the state ceramic development board. The litigation continued with the government losing all the way. Now it has lost in the Supreme Court too.
The court stated that all schemes relating to development of industrial and residential areas must be urgent in the context of the country’s need for increased production and more residential accommodation. Yet, the very nature of such development schemes does not appear to demand emergent action to eliminate summary enquiries that are imperative. The development of an area or a city takes many years so there is no reason that summary enquiry as contemplated under Section 5-A may not be held and objections of landowners may not be considered.
In the second judgment dealing with the “urgency” claim, Dev Sharan vs State of UP, the government wanted to build a new jail in Shahjahanpur because of congestion — 1,869 people are lodged in a 140-year-old, dilapidated building at present. But the noble intention would not justify the deprivation of the property rights of the agriculturists. The government moved slowly and took nearly a year to complete the acquisition process. There was sufficient time to give the landowners a hearing. Unfortunately, the writ petitions of the farmers were dismissed by the Allahabad High Court; it approved of the emergency requirement of the government.
On appeal, the Supreme Court noted the recent negative trend in land acquisition and pointed out how it affected the property rights of the citizens. The law is of colonial, pre-constitutional vintage, said the judges, and it is “drastic and expropriatory in nature as it confers on the state a power which affects person’s property right. Even though right to property is no longer fundamental and was never a natural right, and is acquired on a concession by the state, it has to be accepted that without right to some property, other rights become illusory. This court is considering these questions especially in the context of some recent trends in land acquisition.”
What follows after a discussion on the rampant misuse of the amorphous phrase, “public purpose”, should awaken state governments eager to take over land and give it to industries. The judgment reads: “The courts must examine these questions very carefully when little Indians lose their small property in the name of mindless acquisition at the instance of the state. If public purpose can be satisfied by not rendering common man homeless and by exploring other avenues of acquisition, the courts, before sanctioning an acquisition, must in exercise of their power of judicial review, focus their attention on the concept of social and economic justice.” Even during the current election fever, no political party has seriously taken up this raging issue.
Wednesday, March 16, 2011
Snake bites model's breast, dies of silicon poisoning
ANI | Mar 16, 2011, 04.50am IST
LONDON: A snake attacked an Israeli model during a sexy photoshoot by biting into her surgically enhanced breast and later died from silicone poisoning.
Orit Fox, a B-list model and actress initially looked comfortable during the shoot in Tel Aviv, wrapping the massive boa constrictor around her legs, waist and neck while doing her best to look sexy, reports the Daily Mail.
In a figure hugging red and white striped dress, which revealed maximum cleavage, she gamely tried to take their bonding to the next level by licking the snake's face. As she manoeuvered the animal into position for the 'kiss' Fox loosened her grip on its neck, and after being licked the reptile reacted angrily.
It aimed straight for Fox's prized assets and sunk its teeth deep into her left breast. An assistant rushed in to help her pull the snake off and after a few seconds of struggle the creature released its grip. The peroxide-blonde model was rushed to a nearby hospital and given a tetanus shot. However, the snake wasn't so lucky and died from silicone poisoning.
LONDON: A snake attacked an Israeli model during a sexy photoshoot by biting into her surgically enhanced breast and later died from silicone poisoning.
Orit Fox, a B-list model and actress initially looked comfortable during the shoot in Tel Aviv, wrapping the massive boa constrictor around her legs, waist and neck while doing her best to look sexy, reports the Daily Mail.
In a figure hugging red and white striped dress, which revealed maximum cleavage, she gamely tried to take their bonding to the next level by licking the snake's face. As she manoeuvered the animal into position for the 'kiss' Fox loosened her grip on its neck, and after being licked the reptile reacted angrily.
It aimed straight for Fox's prized assets and sunk its teeth deep into her left breast. An assistant rushed in to help her pull the snake off and after a few seconds of struggle the creature released its grip. The peroxide-blonde model was rushed to a nearby hospital and given a tetanus shot. However, the snake wasn't so lucky and died from silicone poisoning.
Tuesday, March 15, 2011
President Pratibha Patil cancels Thomas's appointment as CVC
IANS | Mar 14, 2011, 11.07pm IST
NEW DELHI: President Pratibha Patil on Monday cancelled the appointment of PJ Thomas as chief vigilance commissioner (CVC) following the Supreme Court declaring the appointment void.
"The President has cancelled the warrant of appointment of Thomas," a Rashtrapati Bhavan spokesman said.
Six months after he was appointed to the post, the Supreme Court on March 3 struck down Thomas' appointment as CVC for his alleged involvement in a corruption case in Kerala in the 1990s.
The court said the appointment made by the high-powered committee, consisting of Prime Minister Manmohan Singh, home minister P Chidambaram and leader of opposition in Lok Sabha Sushma Swaraj does not exist in law. Swaraj had dissented with Thomas' selection.
NEW DELHI: President Pratibha Patil on Monday cancelled the appointment of PJ Thomas as chief vigilance commissioner (CVC) following the Supreme Court declaring the appointment void.
"The President has cancelled the warrant of appointment of Thomas," a Rashtrapati Bhavan spokesman said.
Six months after he was appointed to the post, the Supreme Court on March 3 struck down Thomas' appointment as CVC for his alleged involvement in a corruption case in Kerala in the 1990s.
The court said the appointment made by the high-powered committee, consisting of Prime Minister Manmohan Singh, home minister P Chidambaram and leader of opposition in Lok Sabha Sushma Swaraj does not exist in law. Swaraj had dissented with Thomas' selection.
No ‘activism’ in SC interventions
Dhananjay Mahapatra, TNN | Mar 14, 2011, 01.24am IST
The last six months must have been a nightmare for those at the helm of the Congress-led ruling coalition with the Supreme Court turning the heat on the government on three issues - irregular allotment of mobile licences in 2008, appointment of ex-telecom secretary P J Thomas as CVC and the black money issue.
The sting and depth of the orders, observations and judgments relating to these issues must have forced top UPA leaders to wonder -"Why is the judiciary suddenly turning up scrutiny on the government."
Since the retirement of Justice Y K Sabharwal as Chief Justice of India, who slammed the President's rule in Bihar as well as on police reforms, there had been a period of lull in the SC which was reluctant to examine both the validity of government decisions or question it for non-implementation of pro-poor legislations.
For close to four years, the major three organs of governance - Legislature, Executive and Judiciary - functioned well short of their expected %role. All three lived in a rather make- believe world where everything was functioning smoothly.
What changed it? Rise in food prices, CWG corruption and the Adarsh society scam transformed the silent common man to question the correctness of just about everything.
At this crucial juncture, Justice S H Kapadia took over as the captain of the judiciary and the Supreme Court decided to examine a few PILs articulating public complaints against corruption in high-places.
The court dismissed several PILs on many issues relating to governance with a clear understanding that judiciary could not encroach into the domain of executive and legislature.
It decided to look into the 2G spectrum scam where money legitimately due to the exchequer from telecom firms were allegedly waived off for personal gains as pointed out by CAG, whose damning report did not stir the coalition compulsion arrested government into accountability calculations. It resulted in court monitoring the CBI probe.
The SC sensitivity towards institutional integrity, especially that of the CVC which supervises all anti-corruption measures in governmental working, forced it to examine Thomas's appointment as Central Vigilance Commissioner. The personal integrity was not in doubt.
But, pending palmolein import corruption case chargesheet led the court to quash his appointment. The court apprehended that it would impede the working of CVC, who is mandated to function without fear and favour.
In the PIL seeking recovery of, what sounds to be an astronomical figure, Rs 70 lakh crore of black money stashed in foreign accounts, the Supreme Court decided to shake the cob-webbed investigation files of Enforcement Directorate. What tumbled out was Hasan Ali Khan and his alleged illegal money laundering racket spread across continents.
The court painstakingly explained to the government not to treat those who siphon off money illegally from India to off-shore locations as mere tax evaders. When the government persisted, it used strong words - "What the hell is going on in this country", which is the citizens' common refrain.
Will these three cases and the startling results of the scrutiny be enough to describe it as judicial activism? Did the Supreme Court step outside the constitutionally mandated duty to maintain and uphold rights and punish "wrongs"?
In Kihoto Holohon vs Zachillhu (1992 SCC Sup (2) 651), the Supreme Court had said, "Whenever there is an infringement of a right or an injury, the courts are there to restore vinculum juris (the chain of the law), which is disturbed."
In all these three cases - 2G spectrum scam, Central Vigilance Commissioner appointment and black money issue - it has shown extraordinary restraint in focussing to restore vinculum juris and not resort to judicial adventurism.
The last six months must have been a nightmare for those at the helm of the Congress-led ruling coalition with the Supreme Court turning the heat on the government on three issues - irregular allotment of mobile licences in 2008, appointment of ex-telecom secretary P J Thomas as CVC and the black money issue.
The sting and depth of the orders, observations and judgments relating to these issues must have forced top UPA leaders to wonder -"Why is the judiciary suddenly turning up scrutiny on the government."
Since the retirement of Justice Y K Sabharwal as Chief Justice of India, who slammed the President's rule in Bihar as well as on police reforms, there had been a period of lull in the SC which was reluctant to examine both the validity of government decisions or question it for non-implementation of pro-poor legislations.
For close to four years, the major three organs of governance - Legislature, Executive and Judiciary - functioned well short of their expected %role. All three lived in a rather make- believe world where everything was functioning smoothly.
What changed it? Rise in food prices, CWG corruption and the Adarsh society scam transformed the silent common man to question the correctness of just about everything.
At this crucial juncture, Justice S H Kapadia took over as the captain of the judiciary and the Supreme Court decided to examine a few PILs articulating public complaints against corruption in high-places.
The court dismissed several PILs on many issues relating to governance with a clear understanding that judiciary could not encroach into the domain of executive and legislature.
It decided to look into the 2G spectrum scam where money legitimately due to the exchequer from telecom firms were allegedly waived off for personal gains as pointed out by CAG, whose damning report did not stir the coalition compulsion arrested government into accountability calculations. It resulted in court monitoring the CBI probe.
The SC sensitivity towards institutional integrity, especially that of the CVC which supervises all anti-corruption measures in governmental working, forced it to examine Thomas's appointment as Central Vigilance Commissioner. The personal integrity was not in doubt.
But, pending palmolein import corruption case chargesheet led the court to quash his appointment. The court apprehended that it would impede the working of CVC, who is mandated to function without fear and favour.
In the PIL seeking recovery of, what sounds to be an astronomical figure, Rs 70 lakh crore of black money stashed in foreign accounts, the Supreme Court decided to shake the cob-webbed investigation files of Enforcement Directorate. What tumbled out was Hasan Ali Khan and his alleged illegal money laundering racket spread across continents.
The court painstakingly explained to the government not to treat those who siphon off money illegally from India to off-shore locations as mere tax evaders. When the government persisted, it used strong words - "What the hell is going on in this country", which is the citizens' common refrain.
Will these three cases and the startling results of the scrutiny be enough to describe it as judicial activism? Did the Supreme Court step outside the constitutionally mandated duty to maintain and uphold rights and punish "wrongs"?
In Kihoto Holohon vs Zachillhu (1992 SCC Sup (2) 651), the Supreme Court had said, "Whenever there is an infringement of a right or an injury, the courts are there to restore vinculum juris (the chain of the law), which is disturbed."
In all these three cases - 2G spectrum scam, Central Vigilance Commissioner appointment and black money issue - it has shown extraordinary restraint in focussing to restore vinculum juris and not resort to judicial adventurism.
Saturday, March 12, 2011
Japan Earthquake and Tsunami: 11 Mar 2011
In an unprecedented move, Google put Tsunami Alert on its homepage hours after the massive 8.9 Japanese earthquake. It put up a crisis response page on its site, link to which is placed just below the search box on its homepage. It includes a "person finder" in English and Japanese which allows users to ask for information or provide information about individuals.
Daybreak was expected to reveal the full extent of the death and damage from Friday's 8.9 magnitude earthquake and the 10-meter high tsunami it sent surging into cities and villages, sweeping away everything in its path.
In one of the worst-hit residential areas, people buried under rubble could be heard calling out "help" and "when are we going to be rescued," Kyodo news agency reported.
The government warned there could be a small radiation leak from a nuclear reactor whose cooling system was knocked out by the quake. Prime Minister Naoto Kan ordered an evacuation zone around the plant be expanded to 10 km (6 miles) from 3 km. Some 3,000 people had earlier been moved out of harm's way.
Underscoring concerns about the Fukushima plant, 240 km (150 miles) north of Tokyo, U.S. officials said Japan had asked for coolant to avert a rise in the temperature of its nuclear rods, but ultimately handled the matter on its own. Officials said a leak was still possible because pressure would have to be released.
The unfolding natural disaster prompted offers of search and rescue help from 45 countries.
"This is likely to be a humanitarian relief operation of epic proportions," Japan expert Sheila Smith of the U.S.-based Council on Foreign Relations wrote in a commentary.
The northeastern Japanese city of Kesennuma, with a population of 74,000, was hit by widespread fires and one-third of the city was under water, Jiji news agency said on Saturday.
The airport in the city of Sendai, home to one million people, was on fire, it added.
TV footage from Friday showed a muddy torrent of water carrying cars and wrecked homes at high speed across farmland near Sendai, 300 km (180 miles) northeast of Tokyo. Ships had been flung onto a harbor wharf, where they lay helplessly on their side.
Boats, cars and trucks were tossed around like toys in the water after a small tsunami hit the town of Kamaichi in northern Japan. Kyodo news agency reported that contact had been lost with four trains in the coastal area.
Reuter news link: http://www.reuters.com/article/2011/03/12/us-japan-quake-idUSTRE72A0SS20110312
Links to other news feeds and videos:
BBC: http://www.bbc.co.uk/news/world-asia-pacific-12709856
World News: http://article.wn.com/view/2011/03/11/Huge_tsunami_kills_hundreds_in_Japan_sweeps_across_Pacific_q/
TOI: http://timesofindia.indiatimes.com/world/rest-of-world/Huge-quake-tsunami-kill-1000-in-Japan-world-offers-help/articleshow/7678342.cms
Daybreak was expected to reveal the full extent of the death and damage from Friday's 8.9 magnitude earthquake and the 10-meter high tsunami it sent surging into cities and villages, sweeping away everything in its path.
In one of the worst-hit residential areas, people buried under rubble could be heard calling out "help" and "when are we going to be rescued," Kyodo news agency reported.
The government warned there could be a small radiation leak from a nuclear reactor whose cooling system was knocked out by the quake. Prime Minister Naoto Kan ordered an evacuation zone around the plant be expanded to 10 km (6 miles) from 3 km. Some 3,000 people had earlier been moved out of harm's way.
Underscoring concerns about the Fukushima plant, 240 km (150 miles) north of Tokyo, U.S. officials said Japan had asked for coolant to avert a rise in the temperature of its nuclear rods, but ultimately handled the matter on its own. Officials said a leak was still possible because pressure would have to be released.
The unfolding natural disaster prompted offers of search and rescue help from 45 countries.
"This is likely to be a humanitarian relief operation of epic proportions," Japan expert Sheila Smith of the U.S.-based Council on Foreign Relations wrote in a commentary.
The northeastern Japanese city of Kesennuma, with a population of 74,000, was hit by widespread fires and one-third of the city was under water, Jiji news agency said on Saturday.
The airport in the city of Sendai, home to one million people, was on fire, it added.
TV footage from Friday showed a muddy torrent of water carrying cars and wrecked homes at high speed across farmland near Sendai, 300 km (180 miles) northeast of Tokyo. Ships had been flung onto a harbor wharf, where they lay helplessly on their side.
Boats, cars and trucks were tossed around like toys in the water after a small tsunami hit the town of Kamaichi in northern Japan. Kyodo news agency reported that contact had been lost with four trains in the coastal area.
Reuter news link: http://www.reuters.com/article/2011/03/12/us-japan-quake-idUSTRE72A0SS20110312
Links to other news feeds and videos:
BBC: http://www.bbc.co.uk/news/world-asia-pacific-12709856
World News: http://article.wn.com/view/2011/03/11/Huge_tsunami_kills_hundreds_in_Japan_sweeps_across_Pacific_q/
TOI: http://timesofindia.indiatimes.com/world/rest-of-world/Huge-quake-tsunami-kill-1000-in-Japan-world-offers-help/articleshow/7678342.cms
Monday, March 07, 2011
Lessons from the Thomas verdict
R.K. Raghavan
The Hindu, Saturday, Mar 05, 2011
The Supreme Court ruling shows that fundamental facts were glossed over by those who were authorised to make the vital appointment. But there are two aspects of the judgment that are debatable.
The Supreme Court's verdict pronounced on March 3 on the appointment of Central Vigilance Commissioner P.J. Thomas could not have come at a more appropriate time. Each day seems to bring up a new scam, and this confirms that the nation's moral fibre is in tatters. Unless this dangerous trend is reversed, India's future generations will become hostage to a situation where they cannot afford to be even minimally honest. India's current political leadership of all hues is unequal to the challenge. Their focus is solely on grabbing votes with blatantly false promises and alluring freebies at the cost of the exchequer. Only the judiciary is equipped and empowered to stem the rot, notwithstanding the fact that it has its own internal problems to solve.
There are some uninformed sections that take umbrage at the Supreme Court ‘taking over' governance. This is an appallingly myopic view. Had the judiciary not intervened as strongly and decisively as it did over the past few months, India would have become the laughing stock of the world. Recent judicial rulings have enhanced the country's image and sent across the message that it means business in handling the scourge of corruption. Today, the rest of the world is watching India admiringly and enviously for the way it is moving forward in creating knowledge and skills. The country will forfeit this enormous goodwill unless it comes down heavily on those who are robbing its national wealth without any fear whatsoever. The recent judicial decisions, however harsh they may seem, should serve, at least partly, to restore outsider-confidence in India's resilience and capacity to move ahead on the economic front.
No proof is any longer required to show that the choice of Mr. Thomas was downright arbitrary, illegal and laughable. It was an exercise of executive authority that was questionable, whatever standards you apply. The Supreme Court's ruling leaves no one in doubt that fundamental facts that should have agitated the minds of those who are authorised by law (read the Central Vigilance Commission Act) to make such a vital appointment were glossed over for reasons of expediency. It is beyond comprehension why the High Power Committee (HPC) chose to wear blinkers. Virtually anybody could have been appointed, except one facing a criminal trial. The clearance by the previous CVC that is touted in defence of Mr. Thomas is but a pro forma requirement that applies to less important jobs in government. It was certainly not applicable to an ‘Integrity Commission,' as the court has chosen to label the Central Vigilance Commission.
Tale in the notings
The revelation that two members of the HPC were not convinced that the position required a 100 per cent corruption-free individual is, to say the least, sad and dismaying. The records speak for themselves, and the Department of Personnel and Training (DoPT) could not be faulted. Its notings since the year 2000 had made it abundantly clear that Mr. Thomas in fact had a serious problem. This was ignored. Mr. Thomas took the stand in court that the fact that he had been made Secretary to government was proof enough that he was untainted. But he was greeted the very next day with the arrest of the former Telecommunications Secretary, Siddharth Behura, by the Central Bureau of Investigation in connection with the 2G spectrum scam. Integrity is by no means the exclusive preserve of the higher echelons in society, and certainly not the bureaucracy.
The magnitude of corruption in the higher levels of the civil services is actually enormous compared to that in the lower rungs. The arrest last week of the Chairman of the National Aluminium Company and his wife, and the seizure of significant quantities of gold and cash, are testimony to the need for anti-corruption agencies to focus on senior levels of the officialdom with greater aggression. The CBI is doing an admirable job on this front, and it deserves much larger annual accretions in manpower and more incentives to its staff. Their morale needs to be propped up substantially and meaningfully if the government is serious about tackling graft. In Parliament, the Opposition parties should concentrate on this agenda rather than seek to score brownie points over those in government who have grievously erred and lost their reputation for objectivity and clear thinking. This subject can do with a lot less of politics and more time-bound action, in order that everyone in high places would think twice before doing anything that is even remotely dishonest.
Debatable aspects
There are two aspects of the Supreme Court judgment of March 3 that are, however, debatable. The first is the direction that the pool for the choice of a CVC need not be confined to civil servants, and that it should be wider. Will this give heavily politicised individuals who may otherwise be known for their personal integrity, the opportunity to infiltrate the institution? This issue remains in the realm of conjecture. Given the proclivity among those in power or outside to look at every appointment through a political prism, I fear that the provision to appoint even a person who is not a civil servant to the office could become a mischievous tool in the hands of an unscrupulous executive. This direction to expand the zone of consideration will have to be read along with the Supreme Court's rejection of the plea to make the appointment on the basis of a consensus. Indeed, giving the veto power to one member could stymie the process of selection, and this is not desirable. At the same time, the experience in the case of Mr. Thomas makes you wary of the possible designs of those in power to steamroll the process just to gain political mileage.
Recent events should convince the concerned citizen that maturity and magnanimity do not necessarily go with authority. This is why I would still plump for statutory recognition of the need for a consensus in making the appointment. This may seem preposterous, but is worth a trial. Even if this process leads to several names being rejected and a consequent delay, ultimately the Prime Minister, the Home Minister and the Leader of the Opposition should be able to agree on one name. The CVC's job is not a fire-fighting assignment. Even if the position remains vacant for several months because of a lack of consensus, the heavens will not fall before an acceptable candidate is found. And there are other members of the Commission who can hold the fort till a chief is appointed. Let us hasten slowly and arrive at a universally acceptable candidate, rather than be saddled with the wrong individual who is surrounded by controversies.
The court judgment reinforces the widespread feeling that the judiciary is the last bastion of Indian democracy. It must be guarded zealously and at all costs. Let not petty minds be allowed to take pot-shots at it. Or else India will surely be on the road to disaster.
Chief Justice S.H. Kapadia will go down in history for his unparalleled courage and candour. He has no agenda except to bring order to a derailed nation. I understand that total reform in the police system — on the lines set out by the court's landmark decision of September 22, 2006 — tops his wish list. This is heartening. The whole nation, especially the poor, will be ever-grateful to him if only he can achieve this aim before his term ends. Fortunately, he will not have to labour much to do this. He has a ready blueprint on his desk. What he needs to do is to sternly enforce the deadline that he has set for this. Or else the States will continue to dodge reforms, with a view to continuing the misuse of the police force for narrow political ends. In such a situation, most of the Indian police will remain people-unfriendly and dishonest. The distinguished Chief Justice knows that this task brooks no delay, because the victim of crime goes first to the police and only later to the judiciary. This is the crux of the problem.
(Dr. R.K. Raghavan is a former Director of the Central Bureau of Investigation.)
The Hindu, Saturday, Mar 05, 2011
The Supreme Court ruling shows that fundamental facts were glossed over by those who were authorised to make the vital appointment. But there are two aspects of the judgment that are debatable.
The Supreme Court's verdict pronounced on March 3 on the appointment of Central Vigilance Commissioner P.J. Thomas could not have come at a more appropriate time. Each day seems to bring up a new scam, and this confirms that the nation's moral fibre is in tatters. Unless this dangerous trend is reversed, India's future generations will become hostage to a situation where they cannot afford to be even minimally honest. India's current political leadership of all hues is unequal to the challenge. Their focus is solely on grabbing votes with blatantly false promises and alluring freebies at the cost of the exchequer. Only the judiciary is equipped and empowered to stem the rot, notwithstanding the fact that it has its own internal problems to solve.
There are some uninformed sections that take umbrage at the Supreme Court ‘taking over' governance. This is an appallingly myopic view. Had the judiciary not intervened as strongly and decisively as it did over the past few months, India would have become the laughing stock of the world. Recent judicial rulings have enhanced the country's image and sent across the message that it means business in handling the scourge of corruption. Today, the rest of the world is watching India admiringly and enviously for the way it is moving forward in creating knowledge and skills. The country will forfeit this enormous goodwill unless it comes down heavily on those who are robbing its national wealth without any fear whatsoever. The recent judicial decisions, however harsh they may seem, should serve, at least partly, to restore outsider-confidence in India's resilience and capacity to move ahead on the economic front.
No proof is any longer required to show that the choice of Mr. Thomas was downright arbitrary, illegal and laughable. It was an exercise of executive authority that was questionable, whatever standards you apply. The Supreme Court's ruling leaves no one in doubt that fundamental facts that should have agitated the minds of those who are authorised by law (read the Central Vigilance Commission Act) to make such a vital appointment were glossed over for reasons of expediency. It is beyond comprehension why the High Power Committee (HPC) chose to wear blinkers. Virtually anybody could have been appointed, except one facing a criminal trial. The clearance by the previous CVC that is touted in defence of Mr. Thomas is but a pro forma requirement that applies to less important jobs in government. It was certainly not applicable to an ‘Integrity Commission,' as the court has chosen to label the Central Vigilance Commission.
Tale in the notings
The revelation that two members of the HPC were not convinced that the position required a 100 per cent corruption-free individual is, to say the least, sad and dismaying. The records speak for themselves, and the Department of Personnel and Training (DoPT) could not be faulted. Its notings since the year 2000 had made it abundantly clear that Mr. Thomas in fact had a serious problem. This was ignored. Mr. Thomas took the stand in court that the fact that he had been made Secretary to government was proof enough that he was untainted. But he was greeted the very next day with the arrest of the former Telecommunications Secretary, Siddharth Behura, by the Central Bureau of Investigation in connection with the 2G spectrum scam. Integrity is by no means the exclusive preserve of the higher echelons in society, and certainly not the bureaucracy.
The magnitude of corruption in the higher levels of the civil services is actually enormous compared to that in the lower rungs. The arrest last week of the Chairman of the National Aluminium Company and his wife, and the seizure of significant quantities of gold and cash, are testimony to the need for anti-corruption agencies to focus on senior levels of the officialdom with greater aggression. The CBI is doing an admirable job on this front, and it deserves much larger annual accretions in manpower and more incentives to its staff. Their morale needs to be propped up substantially and meaningfully if the government is serious about tackling graft. In Parliament, the Opposition parties should concentrate on this agenda rather than seek to score brownie points over those in government who have grievously erred and lost their reputation for objectivity and clear thinking. This subject can do with a lot less of politics and more time-bound action, in order that everyone in high places would think twice before doing anything that is even remotely dishonest.
Debatable aspects
There are two aspects of the Supreme Court judgment of March 3 that are, however, debatable. The first is the direction that the pool for the choice of a CVC need not be confined to civil servants, and that it should be wider. Will this give heavily politicised individuals who may otherwise be known for their personal integrity, the opportunity to infiltrate the institution? This issue remains in the realm of conjecture. Given the proclivity among those in power or outside to look at every appointment through a political prism, I fear that the provision to appoint even a person who is not a civil servant to the office could become a mischievous tool in the hands of an unscrupulous executive. This direction to expand the zone of consideration will have to be read along with the Supreme Court's rejection of the plea to make the appointment on the basis of a consensus. Indeed, giving the veto power to one member could stymie the process of selection, and this is not desirable. At the same time, the experience in the case of Mr. Thomas makes you wary of the possible designs of those in power to steamroll the process just to gain political mileage.
Recent events should convince the concerned citizen that maturity and magnanimity do not necessarily go with authority. This is why I would still plump for statutory recognition of the need for a consensus in making the appointment. This may seem preposterous, but is worth a trial. Even if this process leads to several names being rejected and a consequent delay, ultimately the Prime Minister, the Home Minister and the Leader of the Opposition should be able to agree on one name. The CVC's job is not a fire-fighting assignment. Even if the position remains vacant for several months because of a lack of consensus, the heavens will not fall before an acceptable candidate is found. And there are other members of the Commission who can hold the fort till a chief is appointed. Let us hasten slowly and arrive at a universally acceptable candidate, rather than be saddled with the wrong individual who is surrounded by controversies.
The court judgment reinforces the widespread feeling that the judiciary is the last bastion of Indian democracy. It must be guarded zealously and at all costs. Let not petty minds be allowed to take pot-shots at it. Or else India will surely be on the road to disaster.
Chief Justice S.H. Kapadia will go down in history for his unparalleled courage and candour. He has no agenda except to bring order to a derailed nation. I understand that total reform in the police system — on the lines set out by the court's landmark decision of September 22, 2006 — tops his wish list. This is heartening. The whole nation, especially the poor, will be ever-grateful to him if only he can achieve this aim before his term ends. Fortunately, he will not have to labour much to do this. He has a ready blueprint on his desk. What he needs to do is to sternly enforce the deadline that he has set for this. Or else the States will continue to dodge reforms, with a view to continuing the misuse of the police force for narrow political ends. In such a situation, most of the Indian police will remain people-unfriendly and dishonest. The distinguished Chief Justice knows that this task brooks no delay, because the victim of crime goes first to the police and only later to the judiciary. This is the crux of the problem.
(Dr. R.K. Raghavan is a former Director of the Central Bureau of Investigation.)
Friday, March 04, 2011
Supreme Court rejects CVC appointment
By C.J. Kuncheria
NEW DELHI | Thu Mar 3, 2011 11:00pm IST
(Reuters) - The Supreme Court on Thursday quashed the government's appointment of a top anti-graft official for involvement in a palm oil import scam, delivering another blow to Prime Minister Manmohan Singh's coalition.
The rejection of P.J. Thomas's appointment as central vigilance commissioner comes as Singh's government is trying to defend itself against a series of graft scandals, including a $39 billion telecoms licensing scam.
The opposition Bharatiya Janata Party (BJP), aiming to ride a wave of popular anger over the corruption scandals, seized on the verdict, demanding Singh accept responsibility and resign.
"It is a rebuke to the prime minister and the home minister. Governance with transparency and accountability has completely been lost," said BJP spokeswoman Nirmala Sitharaman.
Adding yet more pressure on the government, the Supreme Court, of late an outspoken critic of the government, also slammed its failure to crack down on large scale tax evaders.
The government has been criticised, including by the opposition, over the issue of so-called "black money" -- how to retrieve hundreds of billions of dollars said to be stashed illegally abroad.
The court on Thursday rebuked the government for not cracking down on high-profile suspects. Local media quoted the bench as asking, "what the hell is going on in this country?"
Singh has faced increasingly harsh questions about his leadership despite a reputation for personal integrity. But for the moment many analysts see his resignation as unlikely as it would probably lead to an early election and the defeat of the Congress party.
Singh, who headed a panel that chose Thomas as central vigilance commissioner last September, told reporters in parliament he accepted the court decision.
The ruling Congress party sprang to the prime minister's defence, saying the decision was not a reflection on Singh.
"The PM is not directly involved in any corruption. There is no question of him needing to resign," B.K. Hariprasad, a Congress general secretary, said.
The latest rebuke from the Supreme Court underlined the disarray in government and Singh's inability to govern effectively Asia's third-largest economy, which has seen foreign direct investment fall sharply as investor confidence saps.
"The prime minister comes across as a rubber stamp, not only in this case but in several others. This further dents his image and standing and is pushing him further into embarrassment," N. Bhaskara Rao, head of New Delhi-based Centre for Media Studies, said.
Last month, the prime minister was forced to defend himself against accusations that he was a "lame duck" leader, soon before the government gave in to an opposition demand to set up a parliamentary investigation into the telecoms scam, considered to be independent India's biggest corruption scandal.
Regulatory concerns in India, combined with the global economic slowdown, have hit foreign direct investment and contributed to making the Mumbai stock exchange the worst performing of the world's major share markets.
NEW DELHI | Thu Mar 3, 2011 11:00pm IST
(Reuters) - The Supreme Court on Thursday quashed the government's appointment of a top anti-graft official for involvement in a palm oil import scam, delivering another blow to Prime Minister Manmohan Singh's coalition.
The rejection of P.J. Thomas's appointment as central vigilance commissioner comes as Singh's government is trying to defend itself against a series of graft scandals, including a $39 billion telecoms licensing scam.
The opposition Bharatiya Janata Party (BJP), aiming to ride a wave of popular anger over the corruption scandals, seized on the verdict, demanding Singh accept responsibility and resign.
"It is a rebuke to the prime minister and the home minister. Governance with transparency and accountability has completely been lost," said BJP spokeswoman Nirmala Sitharaman.
Adding yet more pressure on the government, the Supreme Court, of late an outspoken critic of the government, also slammed its failure to crack down on large scale tax evaders.
The government has been criticised, including by the opposition, over the issue of so-called "black money" -- how to retrieve hundreds of billions of dollars said to be stashed illegally abroad.
The court on Thursday rebuked the government for not cracking down on high-profile suspects. Local media quoted the bench as asking, "what the hell is going on in this country?"
Singh has faced increasingly harsh questions about his leadership despite a reputation for personal integrity. But for the moment many analysts see his resignation as unlikely as it would probably lead to an early election and the defeat of the Congress party.
Singh, who headed a panel that chose Thomas as central vigilance commissioner last September, told reporters in parliament he accepted the court decision.
The ruling Congress party sprang to the prime minister's defence, saying the decision was not a reflection on Singh.
"The PM is not directly involved in any corruption. There is no question of him needing to resign," B.K. Hariprasad, a Congress general secretary, said.
The latest rebuke from the Supreme Court underlined the disarray in government and Singh's inability to govern effectively Asia's third-largest economy, which has seen foreign direct investment fall sharply as investor confidence saps.
"The prime minister comes across as a rubber stamp, not only in this case but in several others. This further dents his image and standing and is pushing him further into embarrassment," N. Bhaskara Rao, head of New Delhi-based Centre for Media Studies, said.
Last month, the prime minister was forced to defend himself against accusations that he was a "lame duck" leader, soon before the government gave in to an opposition demand to set up a parliamentary investigation into the telecoms scam, considered to be independent India's biggest corruption scandal.
Regulatory concerns in India, combined with the global economic slowdown, have hit foreign direct investment and contributed to making the Mumbai stock exchange the worst performing of the world's major share markets.
Who judges the justices?
By B N Srikrishna
www.indianexpress.com
Posted: Thu Mar 03 2011, 02:58 hrs
In the Arthashastra, Kautilya makes a profound observation: “Just as fish moving deep under water cannot be possibly found out either as drinking or not drinking water, government servants may not be found out while taking money for themselves.” He then goes on to forebodingly remark, about the opacity in governance machinery, that “it is possible to ascertain the movement of birds flying high in the sky, but it is not possible to ascertain the movement of government servants or their hidden purposes.” But even Kautilya with his remarkable perspicacity might have been amazed by the current evens in the country.
Basically, any act of corruption in public office involves the misuse of public office for private gain. In other words, it involves a public official benefiting at the expense of either the taxpayer or an average person who has come into contact with the government machinery. It also involves violating of the human rights of those whose legitimate benefits are intercepted and misappropriated by the dishonest public official.
Four tests help to determine if there is corruption in any transaction. First: transparency. Then, accountability, and reciprocity. And finally, generalisation. When an action fails on one or more of these tests, there is sure to be corruption.
The test of transparency fails when things are done in a covert manner without allowing the details to be disclosed to the public at large. The test of accountability fails when the person doing an act is not answerable to anyone else, or does not care to be answerable for his actions. The test of reciprocity fails if the answer to the question “Would I be hurt if others did the same thing to me?” is a yes. Finally, the test of generalisation fails when the answer to the question “Would it harm society if everyone did the same thing?” is answered positively. The first two tests are objective, while the latter two are subjective.
Corruption comes in a variety of garb. For most people, what probably occurs when they hear the word “corruption” is bribery; but other common types of corruption also exist, like fraud, nepotism and embezzlement. Each one of them is ethically negative and has a deleterious effect on society.
Going by Kautilya’s prescriptions, it would appear that corruption in public offices existed in India at least from his time. What is worrisome for us today is the blatant level to which corruption has descended. Even during the British Raj, it was acknowledged that there was corruption in the government apparatus. The innumerable laws, rules, financial manuals and accounting procedures designed by the British seem designed with an utter lack of belief in the integrity of government servants. Nonetheless, the common man was not harassed in his day-to-day transactions, as at the top there was someone with impeccable integrity and sense of justice to whom one could appeal and expect justice. Judges were also in this special category of public officers. The British practice of addressing judges of the superior courts as “justices” evidences this widely held belief. Judges were believed to be embodiments of justice and hence addressed as justices.
Plato, in The Republic, his monumental work on government and morality, posed the crucial problem. According to Socrates, the perfect society relies on labourers, slaves and tradesmen. The guardian class is to protect the city. The question is put to Socrates: “Who will guard the guardians?” — or, “Who will protect us against the protectors?” Plato’s answer is that they will guard themselves against themselves. We must tell the guardians a “noble lie”. The noble lie will assure them that they are better than those they serve, and it is therefore their responsibility to guard and protect those lesser than themselves. We will instill in them a distaste for power or privilege; they will rule because they believe it right, not because they desire it. What remarkable foresight! What a sense of déjà vu today!
The 1st-century Roman satirist, Juvenal, asked in a similar vein, “Quis custodiet ipsos custodes?” — “Who will guard the guards themselves?” This is the dilemma facing society today, with protectors seeming to turn predators. What was once considered the high ground of morality and ethics, untouched by the waves of venial conduct, is now lamentably and increasingly lapped by waves of corruption. The ramparts of the institution of the judiciary, once considered impregnable to the assaults of unethical behaviour, seem to be crumbling one by one. The impossible has been happening, as is suggested by the series of cases of misbehaviour by judges of the higher courts that are coming to light. The peccability even of those considered paradigms of virtue has exploded the noble lie that Socrates once assiduously advocated.
We entreat them that are placed upon the exalted seat and entrusted with the awesome power of rendering judgment over others, to reflect upon the words of the Good Book: “Ye are the salt of the earth: but if the salt have lost his savour, wherewith shall it be salted? It is thenceforth good for nothing, but to be cast out, and to be trodden under foot of men.” About them that deviated from the narrow path of rectitude, we may sadly say with Robert Browning: “Just for a handful of silver he left us/ Just for a riband to stick in his coat —/ Found the one gift of which fortune bereft us/ Lost all the others she lets us devote.”
Corruption is condemnable — and judicial corruption doubly so, for it entails, additionally, breach of the trust that society puts in judges. Manu says that the punishment for an offence for a learned man should be double that is given to the ordinary man. Thus should the punishment be for judges who deviate from rectitude.
The purity of gold is tested by scratching, hammering and fire assay. Persons whom society places on a pedestal must also be similarly tested by fire. Guaranteeing judicial independence without guaranteeing the quality of the judge is counterproductive. Even if the nominations are made by a judicial collegium, the nominees must be put to rigorous public scrutiny of their private and public conduct, with only those that ring true being selected. Even after selection and appointment, anyone found lacking in probity must be swiftly and condignly punished for the double offence. These are doubtless tall orders — but by no means impossible to achieve, if corruption is to be eliminated from the hallowed judicial precincts.
The happenings today must act as the wake-up call for all men and women of conscience holding positions of power. For God’s sake, betray not the trust that society has put in you. It is also time for society to resolutely say that there shall be zero tolerance towards corruption.
The writer is a former Supreme Court judge
www.indianexpress.com
Posted: Thu Mar 03 2011, 02:58 hrs
In the Arthashastra, Kautilya makes a profound observation: “Just as fish moving deep under water cannot be possibly found out either as drinking or not drinking water, government servants may not be found out while taking money for themselves.” He then goes on to forebodingly remark, about the opacity in governance machinery, that “it is possible to ascertain the movement of birds flying high in the sky, but it is not possible to ascertain the movement of government servants or their hidden purposes.” But even Kautilya with his remarkable perspicacity might have been amazed by the current evens in the country.
Basically, any act of corruption in public office involves the misuse of public office for private gain. In other words, it involves a public official benefiting at the expense of either the taxpayer or an average person who has come into contact with the government machinery. It also involves violating of the human rights of those whose legitimate benefits are intercepted and misappropriated by the dishonest public official.
Four tests help to determine if there is corruption in any transaction. First: transparency. Then, accountability, and reciprocity. And finally, generalisation. When an action fails on one or more of these tests, there is sure to be corruption.
The test of transparency fails when things are done in a covert manner without allowing the details to be disclosed to the public at large. The test of accountability fails when the person doing an act is not answerable to anyone else, or does not care to be answerable for his actions. The test of reciprocity fails if the answer to the question “Would I be hurt if others did the same thing to me?” is a yes. Finally, the test of generalisation fails when the answer to the question “Would it harm society if everyone did the same thing?” is answered positively. The first two tests are objective, while the latter two are subjective.
Corruption comes in a variety of garb. For most people, what probably occurs when they hear the word “corruption” is bribery; but other common types of corruption also exist, like fraud, nepotism and embezzlement. Each one of them is ethically negative and has a deleterious effect on society.
Going by Kautilya’s prescriptions, it would appear that corruption in public offices existed in India at least from his time. What is worrisome for us today is the blatant level to which corruption has descended. Even during the British Raj, it was acknowledged that there was corruption in the government apparatus. The innumerable laws, rules, financial manuals and accounting procedures designed by the British seem designed with an utter lack of belief in the integrity of government servants. Nonetheless, the common man was not harassed in his day-to-day transactions, as at the top there was someone with impeccable integrity and sense of justice to whom one could appeal and expect justice. Judges were also in this special category of public officers. The British practice of addressing judges of the superior courts as “justices” evidences this widely held belief. Judges were believed to be embodiments of justice and hence addressed as justices.
Plato, in The Republic, his monumental work on government and morality, posed the crucial problem. According to Socrates, the perfect society relies on labourers, slaves and tradesmen. The guardian class is to protect the city. The question is put to Socrates: “Who will guard the guardians?” — or, “Who will protect us against the protectors?” Plato’s answer is that they will guard themselves against themselves. We must tell the guardians a “noble lie”. The noble lie will assure them that they are better than those they serve, and it is therefore their responsibility to guard and protect those lesser than themselves. We will instill in them a distaste for power or privilege; they will rule because they believe it right, not because they desire it. What remarkable foresight! What a sense of déjà vu today!
The 1st-century Roman satirist, Juvenal, asked in a similar vein, “Quis custodiet ipsos custodes?” — “Who will guard the guards themselves?” This is the dilemma facing society today, with protectors seeming to turn predators. What was once considered the high ground of morality and ethics, untouched by the waves of venial conduct, is now lamentably and increasingly lapped by waves of corruption. The ramparts of the institution of the judiciary, once considered impregnable to the assaults of unethical behaviour, seem to be crumbling one by one. The impossible has been happening, as is suggested by the series of cases of misbehaviour by judges of the higher courts that are coming to light. The peccability even of those considered paradigms of virtue has exploded the noble lie that Socrates once assiduously advocated.
We entreat them that are placed upon the exalted seat and entrusted with the awesome power of rendering judgment over others, to reflect upon the words of the Good Book: “Ye are the salt of the earth: but if the salt have lost his savour, wherewith shall it be salted? It is thenceforth good for nothing, but to be cast out, and to be trodden under foot of men.” About them that deviated from the narrow path of rectitude, we may sadly say with Robert Browning: “Just for a handful of silver he left us/ Just for a riband to stick in his coat —/ Found the one gift of which fortune bereft us/ Lost all the others she lets us devote.”
Corruption is condemnable — and judicial corruption doubly so, for it entails, additionally, breach of the trust that society puts in judges. Manu says that the punishment for an offence for a learned man should be double that is given to the ordinary man. Thus should the punishment be for judges who deviate from rectitude.
The purity of gold is tested by scratching, hammering and fire assay. Persons whom society places on a pedestal must also be similarly tested by fire. Guaranteeing judicial independence without guaranteeing the quality of the judge is counterproductive. Even if the nominations are made by a judicial collegium, the nominees must be put to rigorous public scrutiny of their private and public conduct, with only those that ring true being selected. Even after selection and appointment, anyone found lacking in probity must be swiftly and condignly punished for the double offence. These are doubtless tall orders — but by no means impossible to achieve, if corruption is to be eliminated from the hallowed judicial precincts.
The happenings today must act as the wake-up call for all men and women of conscience holding positions of power. For God’s sake, betray not the trust that society has put in you. It is also time for society to resolutely say that there shall be zero tolerance towards corruption.
The writer is a former Supreme Court judge
Tuesday, March 01, 2011
The quality of mercy
By V.R. Krishna Iyer
The Hindu, Monday, Feb 28, 2011
Every instance of criticism that seeks to expose a government's operation against the people and their liberties is not a bid to overthrow it. That is not sedition but a patriotic mission on account of public commitment.
The life sentence imposed on Binayak Sen on a charge of sedition has provoked much vocal, even militant and hostile, public opinion. The judicial verdict is seen widely as being unjust, contrary to the people's conscience, and as an act of violence to public justice. It has invited severe mass criticism as an outrage.
It is nobody's case that Dr. Sen can be above the law or that the courts can ignore the evidence on record and rely merely on rumour or reputation or other arbitrary irrelevance. Nobody challenges the obligation and the duty of the court to act only on the evidence before it, but that does not apply to mercy power or privilege beyond the record. There is a clemency jurisdiction that can act on other benign considerations and show compassion beyond the technical ambit of the law in order to do justice. Mercy is nobler than law and it can have priority over law. This is a finer function of public conscience that does not destroy the conviction but deals only with the sentencing. The law remains; so too any guilt.
The court's decision based on the letter of the law is not undone, but a larger vision and certain sublime considerations prevail. Good things done with admirable motivation ought to be given recognition in giving a fair deal to an accused. Mercy is more than law or narrow judicial justice. This clemency factor is a dialectical operation that not the courts but members of the highest executive, like a President or a Governor, alone can exercise. This special jurisdiction is particularly relevant in Dr. Sen's case at this stage.
Extraordinary charge
Dr. Sen has been found guilty of sedition. This charge is an extraordinary one and is based, according to newspaper reports, on his association with certain Maoists. Dr. Sen has worked extensively in the rural areas, providing medical assistance to the poor. He has a reputation for having sacrificed much of his time and his skills for the poor. This should be an important factor in considering the sentencing dimension of his guilt.
Similarly, the Maoists have received medical aid, which is expensive; doctors often charge heavy fees. Dr. Sen's services are commendable and the general public feeling is that he deserves praise for his commitment to those who suffer from disease. To serve the public is not sedition. I would regard this as an alleviating consideration in the sentence that has been given to him. When a government provides hardly any medical facilities to the poor, service-minded doctors are not guilty of sedition even if their words go against the government's. Otherwise all opposition will turn out to be sedition.
Philanthropy is not fascism and public commitment critical of the state administration should not be confused with a traitor operation. I therefore view Dr. Sen as eligible for tribute, not to be condemned for sedition. Was Gandhiji or other critics of the state that hardly cared to wipe the tears of the poor, guilty of sedition? There is often grave confusion between criticism of a government demanding its overthrow — not by violence but by positive service and commitment to the people. Operation patriotism is not sedition.
Every confident motion, every instance of strong criticism that seeks to expose a government's operation against the people and their liberties, is not meant to overthrow the government and its bad politics. This is not sedition but a patriotic mission on account of public commitment. When you go to the villages and serve the people by providing them medical aid, where the state has failed to do so, that is patriotism, not sedition. Because the government does nothing to serve the people's right to live it is not sedition; otherwise every writ petition filed against a government or one of its agencies could be considered as seditious. Every activity in support of public causes that are meant to counter the government's grievous failure is the fulfilment of a democratic duty, not sedition.
Judges cannot miss a glorious vision of great sacrifice for the common people for fear of being imputed with sedition. The rule of law must support the rule of life and not scare away integrity, fraternity, fellowship and compassion and national commitment for fear of misconstruction by justices. Justices who miss the majesty of swaraj, which means wiping every tear from every eye, do not deserve their robes. To describe service done to the poor as sedition will be an outrage of the mandate of the Mahatma.
Binayak Sen should be released. To put him behind bars is a grave violation of social justice.
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To know about the author, Justice V R Krishna Iyer see here:
http://www.vrkrishnaiyer.org/
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The Hindu, Monday, Feb 28, 2011
Every instance of criticism that seeks to expose a government's operation against the people and their liberties is not a bid to overthrow it. That is not sedition but a patriotic mission on account of public commitment.
The life sentence imposed on Binayak Sen on a charge of sedition has provoked much vocal, even militant and hostile, public opinion. The judicial verdict is seen widely as being unjust, contrary to the people's conscience, and as an act of violence to public justice. It has invited severe mass criticism as an outrage.
It is nobody's case that Dr. Sen can be above the law or that the courts can ignore the evidence on record and rely merely on rumour or reputation or other arbitrary irrelevance. Nobody challenges the obligation and the duty of the court to act only on the evidence before it, but that does not apply to mercy power or privilege beyond the record. There is a clemency jurisdiction that can act on other benign considerations and show compassion beyond the technical ambit of the law in order to do justice. Mercy is nobler than law and it can have priority over law. This is a finer function of public conscience that does not destroy the conviction but deals only with the sentencing. The law remains; so too any guilt.
The court's decision based on the letter of the law is not undone, but a larger vision and certain sublime considerations prevail. Good things done with admirable motivation ought to be given recognition in giving a fair deal to an accused. Mercy is more than law or narrow judicial justice. This clemency factor is a dialectical operation that not the courts but members of the highest executive, like a President or a Governor, alone can exercise. This special jurisdiction is particularly relevant in Dr. Sen's case at this stage.
Extraordinary charge
Dr. Sen has been found guilty of sedition. This charge is an extraordinary one and is based, according to newspaper reports, on his association with certain Maoists. Dr. Sen has worked extensively in the rural areas, providing medical assistance to the poor. He has a reputation for having sacrificed much of his time and his skills for the poor. This should be an important factor in considering the sentencing dimension of his guilt.
Similarly, the Maoists have received medical aid, which is expensive; doctors often charge heavy fees. Dr. Sen's services are commendable and the general public feeling is that he deserves praise for his commitment to those who suffer from disease. To serve the public is not sedition. I would regard this as an alleviating consideration in the sentence that has been given to him. When a government provides hardly any medical facilities to the poor, service-minded doctors are not guilty of sedition even if their words go against the government's. Otherwise all opposition will turn out to be sedition.
Philanthropy is not fascism and public commitment critical of the state administration should not be confused with a traitor operation. I therefore view Dr. Sen as eligible for tribute, not to be condemned for sedition. Was Gandhiji or other critics of the state that hardly cared to wipe the tears of the poor, guilty of sedition? There is often grave confusion between criticism of a government demanding its overthrow — not by violence but by positive service and commitment to the people. Operation patriotism is not sedition.
Every confident motion, every instance of strong criticism that seeks to expose a government's operation against the people and their liberties, is not meant to overthrow the government and its bad politics. This is not sedition but a patriotic mission on account of public commitment. When you go to the villages and serve the people by providing them medical aid, where the state has failed to do so, that is patriotism, not sedition. Because the government does nothing to serve the people's right to live it is not sedition; otherwise every writ petition filed against a government or one of its agencies could be considered as seditious. Every activity in support of public causes that are meant to counter the government's grievous failure is the fulfilment of a democratic duty, not sedition.
Judges cannot miss a glorious vision of great sacrifice for the common people for fear of being imputed with sedition. The rule of law must support the rule of life and not scare away integrity, fraternity, fellowship and compassion and national commitment for fear of misconstruction by justices. Justices who miss the majesty of swaraj, which means wiping every tear from every eye, do not deserve their robes. To describe service done to the poor as sedition will be an outrage of the mandate of the Mahatma.
Binayak Sen should be released. To put him behind bars is a grave violation of social justice.
------------------------------------------------------------
To know about the author, Justice V R Krishna Iyer see here:
http://www.vrkrishnaiyer.org/
------------------------------------------------------------
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