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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.
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Fear Of Torture Doesn’t Let UK Deport Suspects : AG – By Mukesh Jhangiani

English: The Rt. Hon Lord Goldsmith QC, at the...

Peter Goldsmith (Photo: Wikipedia)

                                                                                                                                                             January 9, 2003

 

 

Fear Of Torture Doesn’t Let UK Deport Suspects : AG

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – Fears that terror suspects might face ”death, torture or inhuman and degrading treatment” in their country of origin ”prevents us sending them back,” Britain’s chief legal advisor says.

”We have of course had to confront these issues in the United Kingdom,” Attorney-General of England and Wales Peter Goldsmith said, lecturing at the Indian Society of International Law in the Capital last night.

Mr Goldsmith, who delivered the 2003 M K Nambyar Lecture, also touched on Britain’s failure to deport a Pakistani cleric who raised money and recruits for a Kashmiri terrorist group accused of attacking the Indian Parliament in New Delhi last year.

He said the terrorist threat ”is now on an unprecedented global scale, as the dreadful events that have taken place over the last 16 months only too graphically testify: from New York-Washington and Bali to Moscow, Mombasa and here in India.”

The lecture titled ‘Right or Rights: Does tackling terrorism force us to choose?’ dwelt on steps States should take to protect themselves from the activities of terrorists and the Courts’ role in relations to State action.

”One of the more controversial steps,” the British AG said, ”relates to the treatment of persons within the country who have no immigration right to remain and who are suspected of involvement in terrorism and pose a threat to national security.

”In relation to these persons we have a difficulty,” he said. ”Under our immigration laws we have the right to deport them because they have no right to be in the country.

”But we are prevented from carrying out the deportation because of certain international obligations, notably under the European Convention of Human Rights, which is now a part of our domestic law.

”Where the individuals would face death, torture or inhuman and degrading treatment if returned to their country of origin, those obligations (under Article 3) prevent us sending them back.

”So we are faced with a choice: either to leave them to roam free in the country–which is an unacceptable risk given the heightened threats since 11 September– or to detain them unless and until they voluntarily leave the country.

”Under these new powers, 13 people have so far been detained and two, having been detained, have voluntarily left the country,” he told the audience.

Mr Goldsmith spoke of the ”inherent, but now heightened, tension within the Constitution” between the judicial branch and democratic powers– Parliament and the executive– which, he said, was to be resolved by the ”emerging principle of judicial deference.”

Mr Goldsmith cited the case of Shafiq ur Rehman, a Pakistani cleric who was ordered to be deported from Britain four years ago as a ”danger to national security” but was told a few months back that deportation proceedings against him have been dropped.

”In this case,” Mr Goldsmith recalled, the British Home Secretary had decided that the appellant’s deportation would be ”conducive to the public good” based on conclusions as to his involvement with a terrorist organisation ”operating in the Indian sub-continent (which was seeking ‘the liberation of Kashmir’).”

Shikaras are a common feature in lakes and riv...

Kashmir valley (Photo: Wikipedia)

But the appellant ”successfully appealed” to the Special Immigration Appeals Commission, which could not understand ”how conduct prejudicial to the national security of the Indian sub-continent could be prejudicial” to UK’s national security, he said.

”In the House of Lords, however which granted the Home Secretary’s appeal, Lord Hoffmann took the view that SIAC was not entitled to differ from the opinion of the Home Secretary on the question of whether, for example, the promotion of terrorism in a foreign country by a UK resident would be contrary to the interests of the UK’s own national security. In the carrying out of such assessments, the Courts should extend the appropriate degree of deference to the executive.

”That was not to say, of course, that the whole decision on whether deportation would be in the interests of national security was surrendered by the Court to the Home Secretary.

”For example, the question whether deporting someone would expose him to the risk of ill-treatment contrary to Article 3 of the Convention would be a matter which would certainly not lie within the exclusive province of the executive.

”This is an indication that the Courts are prepared to distinguish between those elements of a decision which attract deference and those which do not.

”The key question, is how well-placed or well-equipped the Courts are– having regard to the particular subject-matter of the decision and the particular areas in which the Courts have accepted expertise– to determine the particular issue,” he said.

India’s Chief Justice V N Khare presided over the lecture, which was organised jointly by the Bangalore-based National Law School of India University and the M K Nambyar Memorial Trust founded by Senior Advocate K K Venugopal to commemorate his father, one of India’s leading constitutional lawyers.

Describing the global nature and magnitude of the threat of terrorism, Mr Goldsmith said, the increased world travel, internet and global telecommunications which benefit millions ”have brought new challenges too, especially in the area of crime.”

Criminals conduct their business across international boundaries, Mr Goldsmith said. ”They traffic young women from the Ukraine or Romania to Bosnia and through the European Union to the UK; they smuggle drugs from the cocaine factories of Colombia to the streets of Paris or Rome; or launder money through bank accounts in all the financial cities of the world. Through international travel and cyberspace they operate globally. The scale of the problems is huge.”

He said drugs were a huge international business– UK market alone estimated at seven billion pounds– accounted for 2000 drugs-related deaths a year and much other crime: property crime, drug dealing, fraud and prostitution.

In one city, he said, it was reported that 70 per cent of all recorded crime was committed by drug users. He cited UN estimate that illegal immigration business is worth 15 to 30 billion dollars a year.

Estimates put the value of money laundering transactions– a key part of much organised crime– at two to five per cent of global GDP– around 1.5 trillion dollars. ”So crime now presents a global threat.

”But our national law enforcement is based firmly on a national level. Law enforcement agencies have to operate within their own national systems and national laws.

”A drug trafficker may have contacts and collaborators in any number of countries. Even to obtain the evidence of people in each of those countries may present a major logistical problem for prosecutors.

”Our courts cannot directly order the attendance of a witness from another country to attend before it; without the assistance of foreign authorities it cannot compel the production by a foreign bank of its records of transactions in another country; nor give us the ability to order the police force of another nation to investigate a particular potential witness in that country.

”And of course our national jurisdiction will usually be limited to crimes committed in our own countries so that we cannot bring to justice those whose activities may have affected us but whose conduct has been abroad.

”In short, we must respect national boundaries and frontiers whilst the criminals treat them with contempt. It is through international cooperation that we can hope to find an answer to this challenge,” the AG said.

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Drawing Line Between Trial And Punishment ! – By Mukesh Jhangiani

                                                                                                                          March 25, 2011

M. Veerappa Moila

M. Veerappa Moily (Photo: Nestlé)

Drawing Line Between Trial And Punishment !

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – More than 300,000 under-trials were let out of custody after a special drive begun early last year but with new arrivals daily the number in prisons remains almost what it was– more than 200,000.

”Imagine the plight in absence of such an effort,” was how a senior government official responded when asked about the impact of the special drive, which, he pointed out, has been extended.

Article 21 of the Constitution lays down that ”No person shall be deprived of his life or personal liberty except according to procedure established by law.”

A statistic to bear in mind: roughly two out of every three prisoners in India are under-trials– only one is a convict serving sentence.

Doing Time, Doing Vipassana

Guilty or Innocent (Photo: publik16)

That, critics say, is a telling reflection of a justice system ostensibly committed to treating an accused as innocent until proven guilty.

For instance, 162 of 543 Members elected to Parliament in 2009 faced criminal charges as against 128 in 2004. Correspondingly, 76 and 58 of them faced serious charges.

Of 813 legislative assembly members in Assam, Kerala, Puducherry, Tamil Nadu and West Bengal, which go to the polls next month, 204 faced criminal charges, 83 of them serious charges.

Serious crime cases include those involving murder, attempt to murder, kidnapping, robbery and extortion.

The special drive was an initiative by Law and Justice Minister M Veerappa Moily to decongest prisons.

”We want to dispose of as many as two-thirds of the under-trial cases by July 31,” Dr Moily told journalists on Republic Day eve 14 months ago. ”The mission begins January 26.”

The exercise involved expediting legal process for some 200,000 under-trials as part of a National Mission for Delivery of Justice and Legal Reforms.

In a jurisprudence known to let even those accused of serious crimes get bail or get elected to legislatures, many under-trials are believed to spend longer in jail than their alleged petty crimes warrant.

By law anyone arrested has a right to be informed of any charges he or she faces, consult a lawyer of his or her choice and to be produced before the nearest magistrate within 24 hours of arrest.

Lawyers say that without legal aid, those who cannot afford bail inevitably suffer prolonged incarceration during the pendency of investigation by police and trial by a court.

Experts say they languish simply because they are illiterate, do not know their rights or charges they face, and cannot afford lawyers– although Rs 50 crores is spent annually on legal aid.

According to a National Human Rights Commission consultant, India’s prison capacity in December 2008 was 293,144 inmates, against which 386,791 inmates were actually in prison– 264,502 of them under-trials and 122,289, convicts.

While authorities have been acquiescing in the miscarriage of justice, the victims’ plight has, from time to time, evoked concern at home and abroad with critics assailing India’s tortuously slow courts.

India is bound by several international human rights conventions and for decades the government as well as courts have been aware of the violations.

An early official reference to the plight of under-trial prisoners came in the findings of K F Rustamji, a National Police Commission member, 32 years ago.

He saw under-trials as ”dumb, simple persons, caught in the web of the law, unable to comprehend as to what has happened, what the charge against them is, or why they have been sent to jail,” and prisons as a system ”slowly grinding thousands of people into dust.”

Indeed, the first public interest litigation– Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar… 1979– brought to light how undertrial prisoners had been in jail longer than if they had been charged, tried, convicted and given maximum punishment.

Supreme Court lawyers recall a September 1977 judgement by Justice V R Krishna Iyer who held that ”the basic rule may perhaps be tersely put as bail, not jail.”

Among exceptions he spelt out ”are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like.”

”It made clear that incarceration in the name of judicial custody and protracted or delayed trial is itself criminal as it hits at the very base of Article 21,” says advocate Ravi Prakash Gupta.

Eight years ago, National Democratic Alliance Law Minister Jana Krishnamurthy drew attention to the plight of more than 200,000 under-trials.

”It’s a shame,” he said, that in independent India men and women have to await their day in court for over ten years.

The yearly cost to public exchequer for under-trials upkeep was then estimated at Rs 4.6 crore.

Although under-trials’ guilt is yet to be proven, they remain in prison almost indefinitely.

Experts say unlike convicts, found guilty, they are not even entitled to such basics as uniforms, literacy lessons or work.

NHRC consultant Lakshmidhar Mishra says children and juveniles are worse off inasmuch as they are put up in regular jails with hardened criminals contrary to law for lodging them in police lockups or observation homes, which are neither adequate in number nor adequately equipped.

There was no let-up until about a year ago, when a move to cut two thirds of under-trial cases was announced by Dr Moily of the United Progressive Alliance.

Addressing lawyers on November 26, 2009, marked as Law Day, the Minister regretted the justice system’s failure to give every citizen equal protection of law.

”A necessary corollary to the guarantee of the rule of law is Article 14 of the Constitution,” Dr Moily reminded.

Article 14: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

”Unfortunately,” he admitted that ”justice delivery system in its working in India has not been able to guarantee this protection to every citizen– man, woman and child.”

The government asked High Courts to identify under-trials not involved in heinous crimes or preventive detention so that their cases may be put on a fast track to expedite pressing cases.

The Indian Constitution guarantees speedy trial. But the commodity is routinely in short supply, with litigation often taking years, even decades.

Indian courts have close to 31 million cases pending, a factor that discourages justice seekers at home, investors from abroad, and has even judges advocating alternative ways of resolving disputes.

Hope may be hard to entertain given hundreds of High Court judgeships and thousands of lower judicial posts perennially vacant and inconsistent sentencing practices across India undermining the deterrent value of law.

Government figures show that there were 213,739 under-trials in prison as the drive got underway.

Over the next six months or so, only 43,504 were convicted and 50,282 discharged.

As many as 309,728 under-trials were released after having been kept in jails for unspecified periods.

About the same time, 399,115 new under-trials arrived in prisons across India, to wait for their day in the court.

Government data indicate that of 612,854 under-trials in prison for unspecified periods– ranging from a day to possibly several years– merely 7.09 per cent were actually convicted in those six months or so.

The figures made available do not, for instance, specify how long individuals spent in jail on what sort of charges before they were convicted, discharged or released.

Nor has there been a mention of compensating any who might have been jailed or held without basis.

Any compensation awarded by human rights or other authorities is discretionary, depending on how a given judge feels at the moment– hardly fair.

No compensation is mandated by the Indian Constitution or statutes for wrongful confinement.

In a telephone interview with United News of India special correspondent Mukesh Jhangiani, Dr Mishra called it ”a significant omission,” and agreed that a remedial legislation is needed.

But given the pace of legislation in India, remedies are neither swift nor easy.

The figures indicating that the number of under-trials in prison at the end of the drive was 212,454– just 1,285 less than at the outset– do not necessarily reflect a nationwide trend.

In 16 out of 27 States or Union territories for which the Justice Department has received figures, the numbers actually went up.

West Bengal led in this increase with 14,238 under-trials put into prisons while 9,337 were released, an increase of 4,901 under-trials in prison.

It was followed by Orissa, with an increase of 4,305, Rajasthan, 3071, Haryana, 1,737, Jharkhand, 1,726, Bihar, 1,550, Chhattisgarh, 1,516, Gujarat, 1,086, and Assam, 1,000.

Smaller increases were reported by Andhra Pradesh, 678, Punjab, 677, Kerala, 652, Manipur, 238, Tripura, 118, Himachal Pradesh, 107, Goa, 106, Nagaland, 69, and Arunachal Pradesh, 47.

One State which reported the highest decline was Uttar Pradesh which released 77,205 under-trials while putting in jail 55,287, an actual decrease of 21,918.

It was followed by Madhya Pradesh, where the number of under-trials in prison declined by 748, Karnataka, 643, Uttarakhand, 569, New Delhi, 356, Maharashtra, 257, Mizoram, 156, Meghalaya, 112, Sikkim, 58, Chandigarh, 11, and Daman and Diu, 1.

The Department had no figures immediately from Tamil Nadu, Jammu and Kashmir, Andaman and Nicobar, Dadra and Nagar Haveli, Lakshadweep and Puducherry.

The programme originally scheduled to end on July 31, ”is continuing,” Dr Moily told journalists a few weeks ago.

From citizens’ perspective locking up innocent, law-abiding individuals is as undesirable and indeed repugnant as letting crooks and lawbreakers roam free or shape laws or societies.

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Cutting 2/3rd Undertrial Cases By Mid-2010 – By Mukesh Jhangiani

                                                                                                     November 26, 2009

English: SVG version of the coat of arms of th...

CIArb Coat of arms (Photo: Wikipedia)

Cutting 2/3rd Undertrial Cases By Mid-2010

By Mukesh Jhangiani
United News of India
New Delhi (UNI) – A move to cut two thirds of undertrial cases by the middle of next year was announced by Law and Justice Minister M Veerappa Moily today.

The announcement may mean freedom for many of 170,000 Indians in jail for periods longer than entailed by petty offences they are alleged to have committed.

The plight of such undertrials has evoked concern for years, without much remedy at hand given the painfully slow system of justice at work.
Dr Moily spoke about the plan at two separate events in the Capital, one marking the National Law Day and another opening an India Chapter of a United Kingdom-based arbitration institute._
Addressing the Bar Council of India, a statutory body of a million lawyers across the nation, Dr Moily regretted the Justice system’s failure to give every citizen equal protection of law.
Advocates celebrating the day were reminded that ”a necessary corollary to the guarantee of the rule of law is Article 14 of the Constitution.”
The Article says: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
”Unfortunately, Justice delivery system in its working in India has not been able to guarantee this protection to every citizen– man, woman and child,” Dr Moily noted.
Dr Moily estimated the number of undertrials in prisons in India at more than 300,000– 70 per cent of the jail population, which means only 30 per cent inmates are serving sentences after conviction.
Roughly 200,000 inmates have been in jail for several years, essentially because of delays in the justice delivery system, officials say.
The second event was the opening of the India chapter of the London-based Chartered Institute of Arbitrators (CIArb) for ”faster resolution of pending court cases.”
Declaring the Chapter open, CIArb Director General Michael Forbes Smith stressed ”assured level of training and experience” and maintaining the highest standards of professional conduct in the practice of private dispute resolution.”
The 94-year old Institute with 11,000 members across more than 100 countries is a ”not for profit, UK registered charity working in the public interest through an international network of 31 Branches and Chapters.
Indian courts have close to 31 million cases pending, a factor many litigants find discouraging, as indeed do many businesses contemplating to invest in India owing among other things to a promise of cheaper labour.
Indian Arbitration yet to pick up Arbitration is an alternative way to settle disputes, but despite ripe grounds– court delays and huge arrears– it has yet to pick up in India.
A good many arbitral awards are known to have ended up in courts again, rendering the alternative not much of one.
Investors are often known to decline a resort to Indian rbitration.
As one of the speakers at the opening pointed out, arbitration in India does not appear to have emerged as a cost-effective and speedier alternative to courts.
Retired Chief Justice of India J S Verma told audience it’s ”quite disturbing” to know the fees of some professionals, as indeed how much richer, more affluent some judges are ”post-retirement.”
Justice Verma, introduced as one of the few Judges who accepted no post-retirement office of profit, stressed that arbitration was not intended to make ”us richer after we retire… The mindset has to improve.”
Asked how arbitrators who violate ethics are dealt with, the CIArb Director General told United News of India Special Correspondent Mukesh Jhangiani that a conduct panel goes over complaints.
Depending on merit, a case may be referred to a disciplinary tribunal and possibly result in debarment, Smith said. But he could not immediately recall such instances.
He said complaints are sometimes made by disappointed parties seeking to appeal the arbitrator’s award by means of a personal attack on the ability or competence of an arbitrator.
UNI MJ KJ

Think About It But Don’t Ask Questions… – By Mukesh Jhangiani

March 11, 2007

Think About It But Don’t Ask Questions…*

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – Asserting that judicial corruption is existent– albeit ”not rampant”– justice experts have stressed reforming the way judges are appointed and disciplined.

But discussing Appointment and Removal of a Judge of the Supreme Court, panelists acknowledged last week that such reforms might be struck down by the courts as offending the basic structure doctrine.
That doctrine is an offshoot of a Supreme Court ruling of April 24, 1973 that Parliament cannot amend India’s Constitution insofar as its ”basic structutre” is concerned.
The panelists who included former Chief Justice of India J S Verma and former Delhi High Court Chief Justice Rajinder Sachar went over changes the government proposes to make in law.
The other panelists: former Attorney General Soli Jehangir Sorabjee, senior advocates K K Venugopal and A K Ganguly and journalist Harish Khare.
The Judges (Inquiry) Bill, 2006 now before Parliament seeks to establish a National Judicial Council to look into allegations of misbehaviour or incapacity of the Judges of the Supreme Court and the High Courts; regulate the procedure for such investigation, inquiry and proof; and provide for minor disciplinary measures.
Key changes allow complaints against errant judges– to be rejected or processed by a judges forum– resulting in either minor measures or removal.
Reform is also intended to introduce transparency in judges’ appointments, a process mired at present in opacity.
Over the past few weeks, for instance, President A P J Abdul Kalam has raised queries on two senior judges’ appointments– reflecting incongruities in the process at work.
”There is an urgent need of a legislation for establishing a National Judicial Council,” Law and Justice Minister Hans Raj Bhardwaj has noted in the Objects and Reasons of the Bill.
The Minister said the Council would look into ”allegations of misbehaviour or incapacity of a Judge of the Supreme Court or of a High Court…”
He said it was based on judicial independence, a fundamental of the Constitution inseparable from judicial accountability.
Initiating the discussion, Sorabjee said ”There is judicial corruption,” but ”not rampant.”
Sorabjee wondered how former CJI S P Bharucha arrived at a figure of 20 per cent judges being corrupt– an estimate some of his successors have tended to discount.
Some three years ago the Bar Council of India, the statutory body of the nation’s million or so lawyers, demanded transfer of 130 judges– nearly a fifth of incumbents– from High Courts where their kin practise.
The practice is among don’ts spelt out under the BCI Rules of Standards of Professional Conduct and Etiquette.
Critics say by most standards any sort of misconduct by a learned Judge should be unimaginable.
They cite a Delhi HC Additional Judge whose resignation brought to the fore allegations that he availed himself of indecent hospitality while the host wrote a ‘judicial’ order in his name in an adjacent room.
Critics say that since a Supreme Court judgement in 1993, the onus of appointing Judges is on the judiciary, but no responsibility is fixed for lapses by selectors.
Justice Verma spoke of a perception that what the executive did when it controlled the hiring process is now done by the judiciary, although there may be a difference of degree.
He said given a provision for complaint, a Chief Justice seeking a Judge’s explanation need no longer face the counter-question: ‘Who are you ?’
But he questioned so-called minor measures, pointing out the untenability of public reprimand of a judge. After that ”how do you expect a Judge to function.”
Justice Verma was against excluding the CJI from the purview of the proposed legislation. ”I don’t think it’s advisable. The CJI must not be excluded.”
The CJI, he said, is essentially no different from other Judges but such exclusion may send out a signal to the contrary.
Most speakers opposed a limitation proviso in the Bill which seeks to disallow complaints arisen before the enactment.
Justice Verma emphasised that ”Your past should have nothing to hide.”
Hailing the complaint provision, Venugopal said once a show cause goes out to a Judge, all other Judges would ”sit back and take notice”.
He said the very fact of notice would have a salutary effect on Judges, but Sorabjee did not appear to think so.
Venugopal acknowledged the probability that the reform might not go far. ”It may be struck down.” Khare stressed that the judiciary set its house in order.
Sachar said there was ”no need for appeal” provided in the proposed draft against a disciplinary decision taken after an elaborate procedure.
Ganguly questioned long gaps in appointing Judges. He said at times senior advocates sounded for judgeship did not hear about it again for years.
Ganguly suggested letting the Prime Minister preside over the group that selects Judges, but the idea was considered inappropriate by another panelist as the Prime Minister is head of the government which is often a litigant.
Concluding the discussion, the panelists told the mostly lawyer audience to ”think about” the issues– but allowed no questions.
An advocate who sat through the discussion said afterwards the key problem with the system was appointments made from a close circle of professionals– what he dubbed ”judicial inbreeding”.
Ravi Mohan acknowledged in reply to a question that his assertion was not based on an academic or administrative study but his empirical experience.
The remedy: make the system transparent, he said, adding that all consideration in respect of an appointment from the first step– inviting biodata– onward must be public knowledge.
”It’s well known that no disinfectant works better than sunlight through an open window.”
UNI MJ HS MIR KP1152

Think About It But Don’t Ask Questions…* – By Mukesh Jhangiani – March 11, 2007