Place Nation's interest over pride!

Sincere and idealistic Involvement in nation’s glory

A political storm is brewing over the Country, may be rightly, on the massive Corruption issue. The cancer of Corruption has permeated into ever branch of governance-Political class, bureaucracy, Judiciary.

Lack of statesmanship and absence of a political leader of stature has driven the country to the brink of people’s lack of confidence on the governance.

Let me not go cynical. All that has been happening since August 16th have been well documented and repeated, for a further repetition here.

Government constituted a drafting Committee consisting of nominees of Shri Anna Hazare. It was not truly representative in character. To set up a drafting Committee with one set of civil society members was a Himalayan blunder. A Committee of 21 persons who have knowledge, ability, made has made the drafting Committee representative in character. This was not done. So government’s new experiment to frame laws with a few people whoever they may be, has resulted in distortions. Secondly, Government ignored the political class on the whole. This was an inept handling of a situation when Government should have tried for consensus.

The present draft of the Civil Society headed by Shri Anna Hazaraji is the draft written and compiled by the Bushan father and son. They have bias, as they are fighting many cases including Public Interest Litigations. Hence the clauses introduced by them will definitely show their subjective outlook on the Law as they see it.

The arrest of Shri Anna Hazareji as ‘Preventive detention’ boomeranged on the Government. The miscalculation or wrong mathematics of equating Shri Anna Hazare with Swami Ramdas took the wind out of the sails when the public rallied around Shri Anna Hazare. This miscalculation made Government loose the battle. All agitations grow out of a strong mind set of one or two intellectuals in the movement who articulate the strategy and act as inventors of the theory of agitation and its issues. This was not rightly assessed by the Government.

Coming back to the Jan Lokpal Bill, the gamble took by Anna Hazare paid off, because people wanted to express their dissatisfaction over massive corruption and the government’s inability to tackle it by citing Coalition dharma, inability to dismiss the Government because of Bommai Case, Political vote bank, partisan support of corrupt people by the ruling masters, etc. Indian democracy has become so corrupt and criminalized that it was endangering the constitutional systems. When all was unwell in the economy, salaries and perquisites of parliamentarians were raised. Political Reform should have been ushered so that people would have felt safe and secure against the economic ills affecting the country as world economy was reeling down.

The anger of people across the Country was so instantaneous and spontaneous that when Hazareji was arrested, there was large outpouring of support which has led to the present stalemate. After all this venture and adventure, Government wants to initiate dialogue with Anna Hazare Team. But, to negotiate with a stubborn Anna Hazare who is supported by the mass of people all over the Country and abroad, would not be easy for the Government given the weakness will of the present day Government.

One Scam (2G) amounted to the Foreign Reserves that RBI had placed in American Treasury Bonds, equivalent to Rs 1, 81 lakh Cr. The magnitude of the scam is mind boggling. CWG, items were never purchased and never available physically were paid for. There are more than 100 bills pending for payment. How did the PM increase the CWG budget many many times than was intended? What was the provocation and reason for this enlargement of the budget? Was it not undemocratic? . Was it Right of discretion? Why blame Comptroller and Auditor General for doing his duty of pointing this out?

Government, did they have sincerity or common agenda when they engaged the civil society in the drafting process of the Lok Pal Bill. From day one, they were hitting out at each other like cats and dogs. The contentious issues between Government representatives on the Lokpal drafting Committee narrowed down to two- one, bringing the Prime minister under the ambit of the Lokpal Bill and secondly, bringing the judiciary under Lokpal.

India has a written Constitution. The preamble of the Constitution says, “We, the people of India, have given unto ourselves this Constitution”. The present Indian Constitution was drafted by the Indian people, and the Constitution was given by the People to the Country. So this Constitution expresses the supremacy of the People over every thing. Fundamental Rights are absolute Rights enshrined in Chapter III of the Constitution. They are absolute Rights which cannot be revoked by Government at all under exceptional circumstances narrated in Article 356. (Keshavananda Bharati Vs State of Kerala, Golaknath Case). The Supreme Court has made it clear that the Basic structure of the Constitution cannot be amended, altered. If a Hon’ble Minister believes that Fundamental Rights are not absolute Rights, then he need to go in for a Refresher Course.

Constitution has the theory of separation of Powers. There are three Chambers which are given descriptive Powers. The Judiciary namely the Supreme Court has the power of original jurisdiction, appellate jurisdiction, absorbed jurisdiction, suo moto Power to initiate a case against anybody, transfer the jurisdiction of the case, initiate contempt proceedings against it, etc. The Power of the Judiciary to adjudicate cases between Union and States, States and States, etc are infallible rights expressed in ambiguous terms. Now, the Jan Lokpal Bill prescribes that the Judiciary be brought under its ambit by legislation in Parliament. Can the Legislature, including Indian parliament and Union of States take away the power of Courts, which form part and parcel of the Theory of Separation of Powers by the legislative power conferred on Parliament by the Constitution? Parliament by enactment, gets into prohibited theory of basic structure, and any bill if passed will the struck off ultra vires by the Courts/Court. The Jan Lokpal Bill has been empowered to punish the corrupt (Prosecution) on the basis of its own investigation, but where is the provision for appeal against the finding of the Jan Lokpal Act. If a Judge is convicted by Jan Lokpal Act, does he have a redress to go to Supreme Court. No. This is fundamentally against the ‘Rule of Law’ dictum and Parliament has no power to power of Punishment of anybody without his right to appeal to the Supreme Court which will decide the bonafide or malafide of the Lokpal Punishment. Judiciary has a right to accept an appeal under the Indian Constitution against any punishment awarded, any decision made by anybody including the President of India, and this Right of Appeal, cannot be taken away by the legislature by moving a Bill when passed becomes an Act.

Second, the inclusion of the Prime Minister in the Bill. He is the executive Head of the State. The Courts have decided in a Judgement (Supreme Court), that there shall always be a Council of Ministers to advice the President. President can go by the advice rendered by the Council of Ministers headed by the Prime Minister. The only condition that is imposed by the Constitution is that he shall command the majority of the House. Theory of convenience does not make a Law defective which has been enacted under the advice of a Prime Minister who is adjudged guilty of election misconduct(adduced Supreme Court in Indira Gandhi Vs Raj Narain)(Justice V R Krishna Iyer who gave the judgement and Mr Shanti Bushan who argued for Raj Narayanan is one of the authors of the Jan lokpal Bill are alive and can be contacted) There is no provision in the Constitution which makes the Prime Minister holding office to be punished until the end of his term; and he enjoys immunity

Moderates and Radicals in the Civil Society are right in demanding a tough Lokpal Bill. Government need to lend its ears to the voice of the People. Government, has one pretext or the other postponed introducing the Bill in Parliament and it can flaunt no excuse to delay its introduction and promise a time bound action plan to pass the Bill and make it an enactment.

A stubborn Government which is not willing to listen to the People and claim sovereignty under the Constitution is doing a great harm to democracy. Any willful undermining of the People of this Country will not bear well for the future of the Nation. Government should come to agreement with Shri Anna Hazare and his team, and make an enabling environment for the smooth passage of the Lokpal Bill.

Justice is slow

Chief Justice of India, Justice S H Kapadia, hit the nail right on the head when he bemoaned that many cases could have been solved through negotiation, arbitration and mediation, instead of being filed under one section or the other, and goes up to Supreme Court for no reason. He regretted that unnecessary prolonged delay in delivering justice because of mountain of Cases that were at the hearing stage, or admitted and where stay was given, took a long time for adjudication. . An ordinary citizen of India is vexed at the delay, making justice denied as far as he was concerned. If lucky, may be, his son may get justice, after long winding years.

Supreme Court will crumble under the weight of pending cases, one Chief Justice remarked. Justice Chandrachud, who was CJ for seven long years, expressed distrust at the legal delivery system in India, even though he held the top-most post of the Judiciary for a record term.

Everybody is seriously concerned about the judicial system. Parliament is concerned, lawyers are concerned, and litigants are frustrated, judicial officers are anxious to settle the cases. The suffering litigants feel dejected because of the delay in the adjudicatory process and the high cost involved in it as well as the inflexibility of the process.

The Motor Vehicle cases, third party settlement cases, insurance cases, where the mighty organizations are on the one-side prolong the case as much as possible, causing untold distress. After a long time after a claim is filed, finding some loophole and absurd reason, they reject the claim. There are many hit and run cases, where proper compensation is not got, because of grave miscarriage of justice. Insurance Companies act like an arbitrary forum. They have haste in thursting a Policy, and never about the settlement of a Claim. The cases that come under the Compensation for land acquired by the Government, goes upto the Supreme Court. Why can’t there be an arbitrator channel, where the case is decided once and for all. From what could have been cleared at the District Consumer Forum, the case is appealed and appealed until it reaches the Supreme Court after inordinate delay, and the judgment given by the lowest forum is upheld by the Supreme Court. Why should Court accept appeals which neither have any unique point of law which requires judicial interpretation at a higher level, or when some gross miscarriage of justice has happened. Like Jessica Lal case, Ruchika case, and some other well known cases like Olga tellis, Bhagalpur blinding, Airhostess case (discrimination as they were retired at 40, while men worked up to 60). The Bhopal Gas tragedy case took quarter century for the Hon’ble Court to give judgment, that too the Court of original jurisdiction- Chief Judicial Magistrate’s court. Now appeal against this will lie in the High Court, and further to the Supreme Court, and the accused are having money bags. How many more years the case will take, the turn it will take, only God knows. Speedy justice should be the maxim rather than the rule.

Chief Justice of India was right in saying that, “we must understand the value of time. This is one of the areas we need to focus on how to promote that culture.” He cited the example of a case which was for recovering Rs 5, the litigant spent 15 years in Courts.

It is not that we don’t have people who are experts in the art of negotiation. There are excellent mediators who know the law and can adjudicate disputes methodologically, and legally. Arbitration is one fora where the disputed parties questioning an interpretation of a Contract, or failure to supply goods within the stipulated time, or the supplied goods were defective so asked for compensation etc.

The Government is the greatest litigant. For anything and everything, the bureaucrat when confronted with a problem writes that the matter may be referred for judicial scrutiny. I have heard many Government servants, including top bureaucrats telling me that if he adjudicated the case honestly in one way or the other, some body will blow up the Case and CBI will come into the picture, and his embarrassment will start. To be clear and clever, if he can pass on the buck to somebody, he is free from trouble. There is Income-Tax cases which does not have an iota of argument in referring to Courts, Sales/Commercial Tax cases, Customs cases, Central Excise cases, Commercial disputes, tenancy problems, insurance cases, administrative, etc. These can be settled locally, and the consensus implemented. In foreign countries, people preferred Mediation, and the cases were solved in no time. In Tirupur in Tamilnadu, Tirupur Exporters Association took up arbitration, cases amongst members, cases against workers, even foreign buyers complained to the body to settle. This experiment has been found to be very successful. Why can’t other apex Chambers of Commerce and/or other bodies sort out the issue amicably through their apex organization, instead of dragging it and stretching it upto Supreme Court.

If cases are appealed against for silly and unsustainable reasons, higher Court of Appeal should reject appeals at the introduction stage itself. Granting of stay, a weapon used by the rich litigants, must not become universal. It must be sparingly given on merit.
The Lok Adalt movement must be revived. It can settle a number of cases where intricate law points are not involved. The disputes can be settled amicably. The Courts, should take the first step, to prevent filing of cases, revision petitions, appeals, etc.