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Defence Bribery Affair Underscores Need For Appointing Lok Pal – By Mukesh Jhangiani

                                                                                                                               March 18, 2001

Defence Bribery Affair Underscores Need For Appointing Lok Pal

By Mukesh Jhangiani
United News of India

Indian Prime Minister Morarji Desai in New Del...

Morarji Desai who suggested in 1966 creating an ombudsman or Lok Pal became India’s first non-Congress Prime Minister 1977-79 (Photo: Wikipedia)

New Delhi (UNI) – The videotaped defence bribery affair has underscored a long-recognised need over which the authorities have vacillated while scandal after scandal has rocked the nation’s political life– appointing a Lok Pal, India’s much-heralded anti-corrupt ombudsman conceived 35 years ago but still nowhere in sight.

Last heard of, the Lok Pal bill was the subject of second thoughts: whether or not Members of Parliament be placed under its purview. This, notwithstanding the fact that a broad cross-section of MPs themselves has voiced support for that and several other measures aimed at promoting accountability.

The MPs’ support is reflected in responses already in to an appeal sent out some weeks ago by Lok Sevak Sangh, a Non-Governmental Organisation, and its sister NGO, Transparency-International India. Both groups have said they will embark on a Satyagraha if the Lok Pal bill is not introduced in this session of Parliament.

”If the bill is not introduced during the session ending on March 23 or if MPs are excluded from its jurisdiction, we shall resume the postponed Satyagraha on April 16, when Parliament reassembles after recess to continue the budget session,” LSS-TII Chairman Shambu Dutta Sharma told UNI.

The groups deferred Satyagraha last November after announcement of plans to introduce the bill during the winter session.

For decades, the authorities have let the grass grow under their feet while corruption has gone on unbridled– scam after scam bursting forth on the nation’s political stage, eroding public values, chipping away at public morale and cynicising public mind.

The concept of Lok Pal– inspired by Sweden’s Ombudsman– grew out of an interim report on the Problem of Redressal of Citizens Grievances submitted in 1966 by the Administrative Reforms Commission headed by Morarji Desai. The very thought of someone to whom an Indian citizen could turn with a complaint of corruption or administrative excesses against the mighty of the land was a whiff of fresh air.

Two years later, the Lok Pal and the Lokayuktas Bill, 1968 was introduced in the 4th Lok Sabha, when late Mrs Indira Gandhi was Prime Minister. It was considered by a joint committee of the two Houses of Parliament and passed by the Lok Sabha in 1969. It was pending in the Rajya Sabha when the Lok Sabha was dissolved. The bill lapsed.

Over the years, with political and public life getting increasingly mired in scandalous goings-on and some governments at the Centre or in States even losing office over issues involving integrity– Bofors, Hawala, Fodder, Urea, Telecom, to name just a few controversies– the need for Lok Pal and other reforms has got more and more acute.

But resistance to the bill appears manifest in the fact that even after being tabled six more times– in 1971, 1977, 1985, 1989, 1996 and 1998, the last time by Prime Minister Atal Bihari Vajpayee– it has never again been put to vote.

English: People taking part in protests in sup...

Protesters demanding Lokpal (Photo: Wikipedia)

The concern was echoed by the Prime Minister while opening a conference of Lokayuktas or State Ombudsmen some weeks ago. As Mr Vajpayee put it, rampant corruption over the past few decades and the failure to catch and punish the corrupt has bred contempt for the law and led to widespread cynicism among the people, causing a decline in moral values in Indian society.

“Experience has shown that our efforts to strengthen probity in civil service and the polity cannot yield desired results without extending the norms of accountability to the judiciary. The inability of our judicial system to deliver speedy justice has itself become the source of much injustice. It has also eroded the credibility of our judiciary in the eyes of the public,” Mr Vajpayee told delegates.

Noting that corruption was detrimental to development, he announced that a Group of Ministers was putting together a new draft of the Lok pal Bill, which “will be introduced in Parliament soon.”

On his part, Mr Vajpayee volunteered to submit to its jurisdiction by vesting the Lok Pal ”with adequate powers to deal with charges of corruption against anyone, including the Prime Minister.”

Authorities acknowledge that even the implementation of Lokayuktas in states has not been satisfactory. Lokayuktas exist in barely 15 states and do not have uniform jurisdiction over Chief Ministers or Members of State Legislatures. Nor is the system entirely effective.

For instance, between 1986 and 2000, the Karnataka Lokayukta ordered investigation in 2,840 cases, of which 1,677 were charge-sheeted but only six percent cases ended in conviction. The bulk– 1,118– were pending trial.

Originally, the Lok Pal bill was to place under scrutiny the conduct of all public functionaries and political leaders, including the Prime Minister, the Members of the Cabinet, as well as all members of both Rajya Sabha and Lok Sabha. It would have MPs and members of their immediate family declare personal assets each year they remain in office.

The bill was scheduled to be introduced for the eighth time in November 2000, but the move appears to have bogged down because of demands to leave MPs out of its sway.

An argument advanced for excluding MPs from its ambit is that Lok Pal should only mind the affairs of those wielding government and ministerial office who take decisions affecting citizens and therefore have the potential to abuse it for personal gain.

But activists for MPs’ inclusion point out that legislators exercise enormous influence in shaping laws, policy and decisions which is fundamentally important and has potential for abuse.

“MPs are also empowered to take decisions such as spending constituency development funds,” the LSS-TII spokesman said. “A few MPs have been known to accept bribes and misuse government property and ever increasing facilities and perquisites for personal benefit.”

A well known example is the acquittal of four Jharkhand Mukti Morcha MPs who allegedly voted for the Narasimha Rao government in return for monetary consideration. The magic words that got them off were written into Article 105 of the Indian Constitution: “no member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof… ”

The episode has occasioned calls to change such provisions. Law Commission Chairman Justice B P Jeevan Reddy recently sought to kick off a public debate by suggesting that bribe-taking legislators should be liable for prosecution. He suggested including a new clause requiring that “nothing… should bar the prosecution of a Member of Parliament under the Prevention of Corruption Act etc, if they take money for voting in Parliament”.

Another argument advanced by those seeking to exclude MPs from Lok Pal’s purview has been that MPs are accountable to Parliamentary Ethics Committees, and do not need additional supervision.

But in its appeal to MPs, the LSS-TII pointed out that even bipartisan ethics committees in the United States “have not really been effective in controlling the wrongful conduct of the Senators and Representatives there. It is not likely to do better in India. It will be a case of you scratch my back and I will scratch yours.”

The letter pointed out that “the argument that the MPs would not like their conduct to be adjudicated by any outside agency, is untenable… Nobody should seek to be a judge in his own cause.”

It cited the Rajya Sabha Ethics committee’s quietness when the national press and the Chief Election Commissioner in the last biennial election raised grievous doubts about some Rajya Sabha candidates trying to bribe the MLAs.

“So far as Lok Sabha Ethics Committee is concerned its Chairman and (former) Prime Minister Chandra Shekhar is facing proceeding re(garding) his large Bhondsi campus in a public interest petition filed by advocate Dr (B L) Wadhera.”

“We request that the Lok Pal legislation should not be delayed further on any ground whatsoever,” the LSS-TII said, adding that “thirty-three years are enough for our political leadership to put in place an effective Lok Pal.”

Appointing Lok Pal is one of seven measures the LSS has been stressing to further the cause of probity in public life. The others include enacting laws giving citizens access to information, plugging loopholes to discourage defections, requiring declaration of political parties’ assets and accounts audit, debarring corrupt and criminal citizens from contesting elections, speedy trial of erring politicians and forfeiture of illegally acquired property, most of which have been under legislative consideration for years, even decades.

The MPs who have stepped forward cutting across the party lines to support the measures include Leader of the Opposition in Rajya Sabha, Dr Manmohan Singh, and leading attorney and Congress leader, Kapil Sibal, as well as ruling Bharatiya Janata Party veterans such as B P Singhal, Kailash Joshi and Vijay Kumar Malhotra.

They also include Debabrata Biswas of All India Forward Bloc, Nagendranath Ojha of Communist party of India, Sunil Khan and Subodh Roy of Communist party of India (Marxist), Chandra Vijay Singh of Akhil Bharatiya Lok Tantrik Congress, Tarlochan Singh Tur of Shiromani Akali Dal, Ananda Mohan Biswas of Trinamool, Prof M Sankaralingam of Dravida Munnetra Kazhgaham, Peter Alphonse of Tamil Manila Congress, Ashok Mohol of Nationalist Congress Party, Arun Kumar and Mahendra Baitha of Janata Dal United, Prabhat Kumar Samantaray of Biju Janata Dal, Prof A Lakshmisagar of Janata Dal, Dr S Venugopal of Telugu Desam Party, Ram Prasad Singh of Rashtriya Janada Dal, Ravi Prakash Verma of Samajwadi Janata Party and S D Shariq of National Conference.

Independent Member S Roy Choudhary and nominated Members writer K S Duggal, journalist Kuldip Nayar and jurist Fali S Nariman, all noted in their respective fields, have also voiced their support.

One party from which no response has been received so far is Jharkhand Mukti Morcha.

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Use Norms – Not Discretion – To Punish Crime: ARC – By Mukesh Jhangiani

                                                                                                         July 8, 2007

Use Norms – Not Discretion – To Punish Crime: ARC

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – Government experts have called for guidelines ”so that sentencing across the country for similar offences becomes broadly uniform.”

Inconsistency in punishments judges award is among issues figuring in the latest report of the 2nd Administrative Reforms Commission on Public Order.

English: An unfair administrator barnstar

Justice v Discretion – A matter of balance (Photo: Wikipedia)

”To effectively deter crime, penalties must not be discretionary,” Commission Chairman M Veerappa Moily told United News of India Special Correspondent Mukesh Jhangiani.

According to the findings Moily gave Prime Minister Manmohan Singh last week, ”there is a view that in India there is a real problem arising from a lack of consistency in sentencing practices across the country.
”This is also compounded by broad executive discretion in commuting sentences and granting pardon,” the Commission said.
With Dr Singh’s approval, a 12-member Group of Ministers headed by External Affairs Minister Pranab Mukherjee was set up three months ago to consider the recommendations.
Feedback is yet to come.
The first such Commission headed by Morarji Desai functioned during 1966-70, but some of its key recommendations are yet to be implemented.
The Moily Commission underscored that sentencing guilty persons is an important and ultimate phase of the criminal justice system.
The trouble, experts say, is that not all laws specify a minimum punishment, which gives judges the leeway to let the guilty off with a slap on the wrist– undermining deterrence.
Thus offences like bribery and cheating are punishable under the Indian Penal Code with imprisonment ”which may extend to one year.” The fact that they are among the commonest crimes is a reflection of the level of deterrence law effects.
The IPC was enacted in 1860. But even the Biological Diversity Act 2002 makes contravention punishable with imprisonment ”which may extend to five years.” No minimum punishment.
”Criminal laws normally provide for a maximum sentence that may be imposed if an offence is proved,” the Commission said, adding that a minimum punishment is prescribed in only ”a certain category of offences.
”The courts have a wide discretion in deciding the quantum of punishment,” according to the Commission.
Advocates of such discretion say it ”is necessary in order to enable the judge to impose a punishment depending upon the circumstances of each case.” They say criminal courts do not have ‘total discretion’ in deciding the sentence and, for subordinate courts, the rulings of the High courts and the Supreme Court also act as guidelines.
They also argue that in a big and diverse country like India it may not be possible to codify each and every situation, and may be best to leave it to the courts’ judgement.
But critics say ”there are instances when such wide discretion has resulted in varying punishments for similar crimes in similar circumstances.”
They say there should be statutorily-backed guidelines to help judges arrive at the quantum of punishment in each case.
The Commission has recommended that the Law Commission lay down guidelines for Trial Courts ”so that sentencing across the country for similar offences becomes broadly uniform.” It has also recommended strengthening the training for trial court judges ”to bring about greater uniformity in sentencing.”
Western experience is that guidelines help ensure ”certainty and fairness” and avoid ”disparities” among defendants with similar records and criminal conduct, while allowing flexibility for mitigating factors.
Britain, for instance, set up a Sentencing Guidelines Council to frame or revise sentencing guidelines to which ”every court must… have regard.” In the United States, a Sentencing Manual and Table lay down a range in months within which the court may sentence defendants based on nature of their offence and criminal history.
Originally mandatory, the guidelines were made discretionary two years ago by a US Supreme Court decision, which cited Americans’ constitutional right to trial by jury.
Starting June 2006, the 2nd Commission has so far submitted five Reports:
— Right to Information – Master Key to Good Governance;
— Unlocking Human Capital – Entitlements and Governance – a case study;
— Crisis Management;
— Ethics in Governance; and
— Public order.
The Commission proposes to submit nine more and has been given a 7-month extension by the Union Cabinet up to March 31, 2008.
UNI MJ

 

How ‘Functional Felony’ Creeps Into Judiciary : CJI – By Mukesh Jhangiani

                                                                                                                March 14, 2005

CJI R C Lahoti

How ‘Functional Felony’ Creeps Into Judiciary : CJI

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – Personal visits to Judges’ residences, dinner invitations from lawyers and political pressures are some of ways in which ”functional felony creeps into the judiciary,” India’s Chief Justice has cautioned.

As a counter, Justice Ramesh Chandra Lahoti has stressed such time-tested judicial ethics as independence, impartiality, integrity and propriety.

Justice Lahoti was delivering the Inaugural M C Setalvad Memorial Lecture on Canons of Judicial Ethics organised by the Bar Association of India recently.

It was an evening given to remembering one of India’s finest lawyers– a ‘grand’ practioner, who charged ‘reasonable’ fees irrespective of stakes and respected Judges, but declined Judgeship.

The hall packed mostly with judges and lawyers heard a message from former Supreme Court Judge V R Krishna Iyer: ”Today, when the decline and fall have become deleteriously visible in the two sister professions, the memory of Setalvad will be a necessary admonition.”

The ethics topic sat well with 2005 dubbed the Year of Excellence in Judiciary. Judicial misconduct in India has no legal remedy.

Codes of ethics have been tried time and again, Justice Lahoti said, adding that if required to make a reference to such documents, he would ”confine myself… to three”:

— The Restatement of Values of Judicial Life adopted by the Chief Justices’ Conference of India, 1999

— The Bangalore Principles of Judicial Conduct, 2002

— The Oath of a Judge as contained in the Third Schedule of the Constitution of India.

As Justice Lahoti spelt out the documents it became clear that a number of Judges are already in violation of one or another of the canons of ethics.

Take Canon 4 of the Restatement: A Judge should not permit any member of his immediate family, such as spouse, son, daughter, son-in-law or daughter-in-law or any other close relative, if a member of the Bar, to appear before him or even be associated in any manner with a cause to be dealt with by him.

Over a year ago, the Bar Council of India (BCI) asked the government to transfer 130 High Court Judges who have relatives practising in courts in which they function. That meant almost one in four HC Judges. India’s 21 HCs between them had close to 500 Judges in place, the remaining positions being vacant. No action ensued.

The BCI is the apex statutory grouping of India’s 800,000 or so lawyers.

The trouble, experts say, is that a code of ethics cannot be enforced.

Indeed, as Law and Justice Minister Hans Raj Bhardwaj reminded audience, ethics cannot be foisted on anyone and should be left to the institution to evolve or embrace.

Nor does law in India make a proper provision to discipline Judges.

One option provided is impeachment, which, experts say, is more a political remedy than legal. It failed the only time it was invoked in 1992 against a Supreme Court Judge accused of corruption.

With Congress Members of Parliament under a whip to abstain in the vote to impeach Justice V Ramaswamy, Parliament virtually abdicated its duty to ensure accountability in Judiciary.

That was not perhaps the first time an Indian Judge had misbehaved. It certainly was not the last.

A spate of allegations has surfaced over the years involving HC Judges– in Karnataka, Rajasthan, Bombay, Delhi, Chennai, Calcutta and Punjab and Haryana– in bribery, sex and abuse of office, resulting in a few cases to transfer, removal, even arrest.

In one bizarre episode, dozens of HC Judges took leave en masse because two of them were asked by their Chief Justice to explain why they took complimentary membership from a club, which was a litigant.

One of Justice Lahoti’s predecessors, Justice Sam Piroj Bharucha told a lawyers’ meet in Kollam, Kerala three years ago that ”more than 80 per cent of the Judges in this country, across the board, are honest and incorruptible.

”It is that smaller percentage that brings the entire judiciary into disrepute. To make it known that the judiciary does not tolerate corruption in its ranks, it is requisite that corrupt Judges should be investigated and dismissed from service.”

A year later, Justice Bhupinder Nath Kirpal told a judicial colloquium that Judges ”are also Indian citizens who come from the same aggregate as those in the legislature and the administration.”

”Therefore,” Justice Kirpal said, ”there are also instances where corruption and incompetence have also pervaded the judicial establishment that cannot be denied.”

But as Justice Lahoti pointed out, ”The Judge can ill-afford to seek shelter from the fallen standard in the society.”

The trouble, experts say, is that in absence of a clearly laid down law, opacity takes over where will to cover up asserts itself.

Former Chief Justice Jagdish Sharan Verma, during whose tenure the Supreme Court Judges adopted the resolutions on Values of Judicial Life in May 1997, has called for a clear law to discipline errant Judges.

In a radio talk show aired two months ago, Justice Verma said: ”Time has come for enforcing judicial accountability.”

Asked to explain his insistence that the process be conducted by the judiciary itself, he said any external effort would be dangerous for judiciary’s independence.

Justice Verma said he sent the resolutions in December 1997 to then caretaker Prime Minister Inder Kumar Gujral, requesting enactment of such a law. ”It has not happened so far.”

Some two months ago, Bhardwaj announced a Group of Ministers set up to suggest steps to strengthen the Judges Inquiry Act 1968 as part of an effort to ensure accountability in governance.

Asked after the Lecture as to when the group will give its findings, the Minister told UNI it would probably be after the Budget session.

Corruption in their ranks is not the only issue Judges must reckon with: they have a huge workload– 24 million pendencies– and inadequate strength– 14,000 judicial officers from district level upwards, as against an estimated need of 50,000, topped by a large many vacancies.

Experts question lingering HC vacancies considering that the five member apex court collegium expected to select appointees knows well in advance when a vacancy is due to arise.

Law Ministry officials say 222 HC positions were vacant against an approved strength of 719 last year when the United Progressive Alliance took over from the National Democratic Alliance.

Bhardwaj has said all vacancies will be filled by the end of this year.

”It is futile to think of excellence,” Justice Lahoti said in his lecture, unless judges– howsoever highly or howsoever lowly placed– ”were to follow the canons of judicial ethics.”

He recounted how veteran Judges handled ethical issues. One instance involved a dinner for Judges given by a lawyer– paid for by a client whose matter was to come up in the court a day later while another was about a Vacation Judge approached for ‘interim’ stay by an advocate who happened to be the son of the then Chief Justice.

The dinner story in former Chief Justice Pralhad Balacharya Gajendragadkar’s words: ”So far as I know, I and K C Das Gupta did not attend. Most of others did. The dinner was held on a Saturday at a hotel. On Monday next, before the Bench over which B P Sinha presided and I and K C Das Gupta were his colleagues, we found that there was a matter pending admission between the management of the hotel chain and its workmen.

”I turned to Sinha and said: ‘Sinha, how can we take this case? The whole lot of supervisors and workmen in the hotel is sitting in front and they know that we have been fed in the hotel ostensibly by the lawyer but in truth at the cost of the hotel, because the very lawyer who invited the judges to the dinner is arguing in the hotel’s appeal.’

”Sinha, the great gentleman that he was, immediately saw the point and said: ‘This case would go before another Bench’.”

Justice Iyer’s tale of the Vacation Judge: ”Naturally, since the caller was an advocate, and on top of it, the son of the Chief Justice, the vacation judge allowed him to call on him. The ‘gentleman’ turned up with another person and unblushingly told the vacation judge that his companion had a case that day on the list of the vacation judge. He wanted a ‘small’ favour of an ‘Interim stay’.

”The judge was stunned and politely told the two men to leave the house. Later, when the Chief Justice came back to Delhi after the vacation, the victim judge reported to him about the visit of his son with a client and his ‘prayer’ for a stay in a pending case made at the home of the Judge.

”The Chief Justice was not disturbed but dismissed the matter as of little consequence. ‘After all, he only wanted an interim stay’, said the Chief justice, ‘and not a final decision’.”

The incident, Justice Lahoti went on, ”reveals the grave dangers of personal visits to judges’ residences under innocent pretexts.

”This is the way functional felony creeps into the judiciary. A swallow does not make a summer maybe, but deviances once condoned become inundations resulting in credibility collapse of the institution.”

”A little isolation and aloofness are the price which one has to pay for being a judge, because a judge can never know which case will come before him and who may be concerned in it. No hard and fast rule can be laid down in this matter, but some discretion must be exercised.”

Audience were told of a lawyer who actually observed ethics.

Setalvad remained ever a lawyer and never agreed to become a judge. His fees ”were reasonable and did not vary depending upon the stakes involved in a case.”

He seemed to have instinctively grasped the true function of a Law Officer stressed in English Courts– Counsel for the Crown neither wins nor loses. He is there to state the law and facts to the Court.

Setalvad joined the Bombay Bar in 1911 and rose to occupy such high offices as Advocate General of Bombay 1937-42, Attorney General of India 1950-63, Chairman of the Law Commission 1955-58 and Member of Rajya Sabha 1966-72.

He also represented India before the Radcliffe Commission and the United Nations 1947-50.

”In those days,” Bhardwaj said, recalling the post independence era, ”there were no sharp practices at the bar at all. There was no need for such concerns. Such an occasion never arose.”

These are ”difficult times,” he acknowledged. Standards have ”gone down.”

He said the BCI had not performed its duty. The Bar has been ”left behind by many decades… So much adulteration has come into this institution.”

Many lawyers may not even know who Setalvad was, he remarked.

Organisers thanked Chennai-based Senior Advocate G Vasantha Pai, a former BAI General Secretary, who contributed Rs 15 lakh to conduct the lecture annually, for ”giving us back” Setalvad.

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