Tag Archive | Prime Minister

Chinese Help Sought For Sailors’ Release – By Mukesh Jhangiani

                                                                                                             October 8, 2008

 

Chinese Help Sought For Sailors’ Release

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – The Chinese authorities were urged by an Indian woman today to help secure release of a Hong Kong-registered chemical tanker and its 22 crew members seized by Somali pirates in the Aden Gulf 24 days ago.

English:

(Photo: Wikipedia)

They said they would see what can be done to expedite matters, Seema Goyal, wife of Stolt Valor’s Captain, Prabhat Goyal, said in a telephone interview while she was on her way to Dehradun to be with her children.

Mrs Goyal met China’s Charge d’affaires in New Delhi, Ambassador Zhang Yan being away travelling.

The Japanese-owned tanker flying the Hong Kong flag was on way to Mumbai from Houston in the United States when it was hijacked in the Gulf of Aden on September 15.

The pirates demanded $6 million– subsequently pared down to $2 million– for letting the ship sail.

The tanker is carrying phosphoric acid and lubricant oil for end-users, including Kandla-based Indian Farmers Fertiliser Cooperative Limited.’ Besides 18 Indians, the crew includes a Russian, a Bangladeshi and two Filipinos.

Nine of 22 hostage crew members on board have taken ill waiting for freedom from Somali captors holding out for the ransom, relatives say.

The hostages have been running low on water and food.

On Monday, Mrs Goyal met a Japanese Embassy official in New Delhi in an effort to build up pressure on the ship’s Japanese owners to secure a quick end to the crisis.

Mrs Goyal and other members of the group have been meeting Indian authorities– ministers, senior bureaucrats, politicians– to bring home the urgency of securing the sailors’ release.

Experts say much of the initiative in the matter rests with authorities in Hong Kong, where the ship is registered, or Japan, where the owners belong.

On Tuesday, Mrs Goyal addressed a rally of seafarers unions in Mumbai and was handed a petition for Prime Minister Manmohan Singh, urging steps to ensure hostages’ safe return and preclude such acts.

UNI MJ MIR HT2137

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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.

UNI MJ DSB DS0945

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Scholar’s Challenge To Apex Court Globalisation ! – By Mukesh Jhangiani

                                                                                                                        August 11, 2006

   

Dr. Upendra Baxi, at NUALS

Prof Upendra Baxi (Photo: Wikipedia)

Scholar’s Challenge To Apex Court Globalisation !

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – Carnage witness Zahira Sheikh’s imprisonment reflects ”dual… standards” of access to justice manifest since globalisation, according to an Indian law scholar.

The view was voiced by Prof Upendra Baxi last weekend in a conference where participants were invited by Prime Minister Manmohan Singh to critically examine issues of the day.

Speaking on Access to Justice in a Globalised Economy, Prof Baxi cited half a dozen judicial orders he said erected a ”wall of difference” between ”globalised and de-globalised Indian citizens”.

A former Delhi University Vice Chancellor, Prof Baxi has served as Professor of Law at Delhi University as well as Warwick University in England and authored a large number of professional books and other publications.

The SC orders covered India’s accession to the World Trade Organisation, the $470 million Bhopal Gas disaster settlement, rejection of temps’ bid to regularise jobs, Narmada dam construction, demolitions and Best Bakery case.

Prof Baxi said the ”structural adjustment” of judicial role began with the apex court’s very stance on world trade conditionalities.

It was ”comprehensively urged” before the Court that India’s accession to the WTO ”violated not just Part 111 provisions but also the basic structure of the Constitution.

”The Court, overall, asked the petitioners to return to its powers as and when any such deleterious impact became more manifest!”

It ”did not even seek to match the blood-group of the WTO agreements, especially the TRIPS– Trade-Related Aspects of Intellectual Property Rights– with Parts 111 and IV of the Constitution.

”May I suggest that we read this decisional stance as the first step towards the structural adjustment of judicial review power, process, and activism?”

”A second momentous development towards the structural adjustment of judicial role and activism,” he said, occurred ”through the entirely unconscionable and unconstitutional judicial orders decreeing the infamous Bhopal settlement”– or what he called an instance of victims ”re-victimised”.

He said the Court not merely reduced the compensable amount from the ”Indian government computed US $3 billion to $470” million but also granted the Union Carbide full immunity from criminal proceedings.

It surrogated ”the Indian government as a fully-fledged clone of that multinational, and all its world-wide affine, in regard to all civil action, Indian and world-wide!

”Twenty-one years since, and I cannot speak of this without a lump in my heart, the catastroph(e) victims remain staggeringly re-victimised.”

He said a third story concerned the ”determined reversal of the proud labour jurisprudence of the Supreme Court itself.

”The juristic and juridical labours of” Justices VR Krishna Iyer, D A Desai, O Chinnappa Reddy, M P Thakkar, K Subba Rao, P B Gajendragadkar, Mohammed Hidyatuallah ”are now reversed by many a hurried stroke of insensitive judicial pen!

”A 2006 decision of the Supreme Court even goes so far as to ‘overrule’ without specific naming all prior judicial decisions.

”This judicial adventurism, there is no other appropriate way of naming this after all, remains an entirely unaccountable and rather unprecedented judicial technique in the annals of the Commonwealth judiciary!

”The learned Justice who writes the principal opinion even goes so far as to suggest that his predecessors laboured under a misimpression that ours was a socialist constitution!

”This eminent judge compelled a momentous jurisprudential anxiety for me; I scoured the histories of recent amendments to find whether some recent constitutional amendments had after all deleted this 42nd Amendment insertion to the Preamble to the Constitution!

”Allow me to bring to you the good news that this preambulatory recital has survived the ravages of contemporary Indian globalisation! The bad news is that now for the Supreme Court of India this makes not a tattle of difference!

”I am not saying at all the later Justices may not feel free to dissent from their predecessors. Nor am I saying that the predecessors may claim any prophetic wisdom over the future of constitutional development.

”However, I do wish to suggest with the fullest constitutional sincerity that in doing so they remain fully accountable at the bar of public reason. And in this they seem now altogether to collectively fail.”

Prof Baxi said a fourth instance of structural adjustment of judicial power was furnished by the Supreme Court’s ”meandering jurisprudence” concerning the Narmada Dam construction.

”At one decisional moment, we are told that the height of the dam may not be raised without the most solicitous regard for the human rights, and human futures, of the ousted project affected peoples.

”At another decisional moment stands enacted the unconstitutional pari passu principle under whose auspices submergence may actually occur with some indeterminate regard for relief, rehabilitation, and resettlement.

”At a third moment, the affected peoples stand somehow assured of that the Court is not powerless to render justice to the adversely affected peoples even as submergence occurs.

”Who knows what a fourth moment may after all turn out to be? The present writing on the judicial wall fully suggests the possibility that the Court may terminally declare that the tasks of relief, resettlement, and rehabilitations stand almost fully and magically accomplished!”

Prof Baxi said,”A fifth horrid story of the structurally adjusted judicial role and ‘responsibility’ stands now furnished by the judicially mandated/mediated sanction for the urban demolition drives that cruelly impose themselves on the bloodied bodies of the urban impoverished.

”Some recent judicial performances go so far as to fully suggest a total reversal of human rights to dignity and livelihood, which the Court itself since the Eighties indeed not too long ago so painstaking evolved.

”The enforced evacuees stand denied all rights of constitutional due process, including access to their erstwhile meagre belongings.

”The bulldozers remove the last sight of their existence as documented citizens; all evidence of title and occupation– including the only ‘passport’ they posses by way of pattas, their inchoate ‘title’ deeds, and prominently their ration cards) stand maliciously and wantonly destroyed.

”Not too long ago during the 1975-76 imposition of the internal Emergency, such happenings were poignantly described as emergency excesses.

”Today, these somehow constitute the badges of good governance!”

Prof Baxi said the sixth instance concerned ”the harsh way in which the Indian Supreme Court dealt with the ‘contempt’ committed by Zahira Sheikh.”

Here was ”an eye-witness to the destruction by arson of her own kin… by the Hindutva mobs,” treated ”as news/views ‘commodity’ in hyperglobalising Indian mass media… as a resource appropriated by local politicians and by some activists alike” and as a target of ”human rights and social movement activism.”

Prof Baxi saw Ms Sheikh as ”overall… a deeply traumatised victim of organised political catastrophe” compelled by the force of circumstance to make contradictory statements.

That is what finally decreed ”her fate as a contumacious Indian citizen worthy only of the most severe punishment in the annals of contempt jurisprudence.”

Prof Baxi noted how the same Court had remained ”largely lenient in its regard for Kalyan Singh for an objectively presented far worse egregious contumacious conduct.

”It also remained lenient for Aurundhati Roy, an NBA– Narmada Bachao Andolan– activist marshalling the power of International Union of Journalists, and Shiv Shankar, a former Union Law Minister, for a while marshalling the power of judicial elevation.

”Both of these remained far more contumacious; yet they were thought eligible for the otherwise rather relaxed standards of contempt jurisprudence. Yet, the Supreme Court leaned heavily on Zahira.

”How may we understand this judicial asymmetry in our, or indeed in any access talk save by the fact that that high political status was simply not available to Zahira?”

”To depict the scenario thus is not to present any mean-mouthed mode of attributing any class differential in access to justice.

”I only seek to service with the highest order of responsibility in discharging my citizen responsibility acting under my Part IV-A fundamental duties of Indian citizens, by highlighting differential practices of access to justice under the Indian Constitution.

”In the same spirit, some of us have now approached the President of India for pardoning Zahira; we know that this may not happen, although in a proud 50+year Indian democratic development this, it ought to.

”But this much remains clear: accesses to justice claims remain differentially distributed by the apex Court. Its ire at ‘contumacious’ conduct by public citizens is increasingly met by different standards for some de-globalised compatriots.

”The wall of difference thus erected between globalised and de-globalised Indian citizens seems to enact some contradictory, dual, even multiple, standards of differential access to justice.”

He said ”I sincerely hope… I (am) wrong in saying this. At the same moment, surely, all this should give us some pause in our parrot-like or His Globalising Master’s voice-type talk concerning ‘access to justice’.”

UNI MJ RP DS1110

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Workers – Not To Be Toyed With ! – By Mukesh Jhangiani

                                                                                                            December 01, ‎2011

Labour law concerns the inequality of bargaini...

Labour law concerns the inequality of bargaining power between employers and workers (Photo: Wikipedia)

Workers – Not To Be Toyed With !

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – A retiring High Court Chief Justice is paid a High Court Judge’s pension. The mistake is rectified– but not before a 15 year court battle.

An Indian Institute of Technology professor invokes his Right to Information– to know why his gratuity is withheld.

After a Japanese executive kicks a worker and tosses the turban of another one, 3,000 employees at a Gurgaon plant form a union– prompting dismissals. Protest brings brutal thrashing from Haryana police in full view of news cameras.

Fired en masse, 362 union-led newspaper employees spend 20 months in Delhi High Court without relief– only to start afresh before a labour tribunal.

Tens of thousands of farmers persuaded to borrow for modern tools, chemicals and seed incur a crop of debt they cannot cope with– and end their lives.

Hired on merit, a scheduled tribe teacher harassed at work goes to the Central Administrative Tribunal, the Delhi High Court and the Supreme Court– her battle and hounding cut short by her death in the premature delivery of a stillborn.

Those are some glimpses of what India’s so-called strong labour laws are doing for– and to– some of its officially counted 400 million workforce Prime Minister Manmohan Singh calls ‘toiling masses’.

Labour and Employment Ministry officials say India has 154 labour laws to ensure welfare of roughly 30 million organised workers and 370 million unorganised workers, including some 250 million farmers and farm hands.

Set up 36 years ago to research labour issues, V V Giri National Labour Institute has yet to produce a comprehensive study of workplace disputes, their causes and outcomes– that might have shown the way to reform.

As in instances cited at the outset, those guilty of making life miserable for some of India’s workmen and women seldom suffer personal consequences under the law.

That, experts acknowledge, defeats right there a key purpose of any legal system– to deter crime by instilling the fear of law in potential offenders.

“Where we fail is in punishing our crooks or offenders,” says former Calcutta High Court Chief Justice D S Tewatia, stressing the urgency of reforms to remedy the situation.

Knowing, for instance, that the worst consequence of denying employees’ wages is having to pay after 10 or 15 years, employers may take such recourse capriciously at the slightest pretext or even without any.

Quite unlike elsewhere in the civilised world, employers in India do not face jail or hefty punitive damages that may make them behave.

In the United States, for instance, former Enron chief executive Jeffrey Skilling was given more than 24 years in prison for fraud and conspiracy involving more than US40 billion dollars debt, thousands of lost livelihoods and duped clients.

Before sentencing, an outraged Enron employee of 17 years, Kevin Hyatt, had asked the judge to ‘send a message’ to other corporate executives by giving Skilling the maximum sentence.

About labour legislation in India, a Western expert observes with an almost audible smirk, ”these laws are of little broad significance. They have long been circumvented in practice in most areas of the economy.”

Such laws as Workmen’s Compensation Act 1923, Contract Labour (Regulation and Abolition) Act 1970, Industrial Disputes Act 1947, Factories Act 1948 and Minimum Wages Act 1948 provide imprisonment for violators.

But strangely the option to invoke those provisions is controlled by government officials.

Headquarters of the International Labour Organ...

International Labour Organisation – Presiding (United Nations Photo)

For any harassment they inflict on employees, employers cannot be prosecuted on those counts without express sanction of labour inspectors or commissioners.

Here are some examples:

— Workmen’s Compensation Act 1923 section 18A(2): No prosecution under this section shall be instituted except by or with the previous sanction of a Commissioner.

— Industrial Disputes Act 1947 Section 34(1): No Court shall take cognisance of any offence punishable under this Act or of the abetment of any such offence, save on complaint made by or under the authority of the appropriate government.

How that works out on the ground was indicated when Lok Sabha Members Sunil Khan, Basudeb Acharia, Amitava Nandy and Gurudas Das Gupta drew attention to labour law violations some years ago.

The Labour Ministry gave data on the violations handled in 2003-04 and 2004-05 by the Central Industrial Relations Machinery headed by the Chief Labour Commissioner.

Of 9,826 and 9,538 disputes received under the IDA, for instance, 3,533 and 3,583 were settled while ”FOC– failure of conciliation–reports (were) submitted” in 4,276 and 2,743 disputes respectively.

The Ministry gave no account of how many violators, if any, went to jail.

“The Ministry and its machinery should be protecting labour– not employers,” was how Acharia, a Communist Marxist MP from Bankura, West Bengal, put it.

Asked then if he knew of any case in which an industrialist has had to go behind bars for breaking labour laws, Acharia said, “not one.”

As it is, given poverty and unemployment on one hand and the state of law and courts obtaining on the other, employees find themselves between a rock and a hard place.

The reverse appears to hold for affluent industrialists. Matters are filed in courts where they take years before it is time for appeals and more years.

How workmen or women survive without wages or relief may be hard to grasp for authorities not familiar with such hardship.

Thus it is that workers lose jobs while employers keep running industries and establishments– unmindful of consequences not in evidence. There is little to deter employers’ misconduct.

A published source says even West Bengal, the left bastion, saw 274 lockouts in 2000, more than half– 143– declared to reduce workforce on “the pretext of loss of economic viability.”

Short of sound laws and implementation, half measures abound.

The Institute of Company Secretaries of India proposed some time ago requiring independent professional assurance from practising company secretaries on labour law compliance.

But critics stress the importance of sound labour laws and effective enforcement.

Experts point out how professional auditors have for decades approved accounts without raising an eyebrow– while Swiss numbered accounts of Indians have grown.

Given such facts or data, it may appear natural that workers representatives agitate to rectify things.

Strangely, it is employers’ associations which have been demanding greater facility to hire and fire employees, a Labour Ministry statement noted some time ago.

“The employers have been vehemently pressing for labour reforms on the plea that these are necessary for making Indian industry globally competitive and for attracting more of foreign direct investment.

“The existing laws, it is contended by employers, slow down growth and job creation. They say that under the existing labour laws the churning of new skills is slower; companies lose cost cutting flexibility and ability to bounce out of recession quickly.

“The employers further contend that Labour Market will become more flexible with the amendments; more workers can be hired legitimately and can ask for better benefits including better work conditions, safety standards, welfare measures and health benefits,” the statement said.

Some of these arguments are backed by such institutions as the World Bank.

But critics ask how governments reconcile promises to workers of more jobs with bigger pay packets and better work conditions with promises held out to foreign investors of abundant cheap and skilled labour.

English: Official Portrait released by the Off...

Labour & Employment Minister Mallikarjun Kharge (Photo: Wikipedia)

At a conference in New Delhi, WB experts spoke of better work contracts.

Asked who will fix a contract if an employer breaks it, the experts promptly replied: the Courts.

Asked if it was fair for employees to have to go through years of litigation for wages of their work, the experts conceded the incongruity of the situation and spoke of judicial reforms.

They argued that reforms would follow in the legal system as pressure builds up. But that, critics say, is like putting the cart before the horse, especially considering some recent trends in labour-related adjudication and judicial orders.

On the other hand, experts say it is important to note that the associations seeking to change the rules are made up of industrialists who are themselves often subsidised by taxpayers in any number of ways.

Apart from receiving concessions in tax and costs of land and other public resources, many have been notorious in building up lakhs of crores of rupees of India’s Non Performing Assets– a euphemism for unrepaid loans.

Unlike tens of thousands of debt-ridden farmers who end their life unable to face the ignominy, no one appears to have heard of NPA defaulters making such choices.

Experts agree that the government must strike a balance. Citizens must not only be proclaimed to be equal, they must also be treated as equals. Just as workers must work, so must employers manage properly and pay wages.

Any failures or abuses, including manipulation of unions, must lead to consequences, they say.

Laws and fora must be put in place or firmed up to deliver justice in time– not at leisure, experts say.

UNI MJ TBA RP 1454

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Holding Sailors To Ransom ! – By Mukesh Jhangiani

                                                                                                              March 10, 2011

English: Map showing the location of the Gulf ...

Gulf of Aden located between Yemen and Somalia. Nearby bodies of water include the Indian Ocean, Red Sea, Arabian Sea, and the Bab-el-Mandeb strait (Photo: Wikipedia)

Holding Sailors To Ransom !

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – Two years after India’s Supreme Court questioned government handling of high sea piracy involving Indian lives, protesters again drew attention this evening to the plight of seamen held hostage by Somalis in the Gulf of Aden.

”Kuchh nahin! Kuchh nahin! (nothing! nothing!),” was how Sampa Arya, wife of an Indian hostage described Prime Minister Manmohan Singh’s response to her pleadings to intervene in the situation.

An Egyptian cargo ship, Suez, was seized by pirates in the Gulf of Aden on August 2, 2010 despite barbed wire and fire hoses, not to mention three anti-piracy warships cruising within 40 miles.

The Panamanian-flagged ship with a crew of 24– six of them Indian– was eastbound towards the Suez Canal.

Wife of third officer Ravinder Singh Gulia, Mrs Arya broke down in a telephone interview when she was asked about any assurance she received from Dr Singh.

Sobbingly, she spoke of tortures inflicted on her husband and other hostages. ”They hit him on the knees. It is paralysing. He is not allowed even basics.”

Relatives and friends assembled at Jantar Mantar in the evening for a vigil discussed the passing deadline. The captors have demanded $4 million for release of the Indian hostages, they said.

”The deadline for Suez is over today. We are worried,” said second officer Akash Verma, adding with a touch of urgency that ”a solution must be found.”

Their key concern: the Indian authorities put pressure on the Egyptian owners of the cargo ship to pay up and free the hostages.

Barely a mile away, Parliament was told 49 ships were hijacked from international waters off the Indian Ocean in 2010 and that 38 Indian crew were still captive aboard four ships.

Answering Congress member from Kerala P J Kurien, Shipping Minister G K Vasan recited such steps as deploying naval ships, alerting other forces in the region and waging a multilateral campaign.

Three other ships Vasan listed: Iceberg-1 hijacked on March 29, 2010 with six Indian crew, Rak Afrikana, hijacked on April 11, 2010, with 11 Indian crew, and Asphalt Venture hijacked on September 29, 2010 with 15 Indian crew.

Somali acts have threatened international shipping over the past several years but experts say efforts to counter the sea brigands appear to suffer in more ways than one.

”The Somali situation does not seem to strictly qualify as piracy under the Law of the Sea convention 1982,” says former Additional Director General of Shipping and Nautical Adviser J S Gill, adding that the wording ”may hamper charging a person as a pirate.”

Mariners say Somali activity has spawned a whole new mostly-Western industry for insuring vessels at risk with ever-increasing premiums.

That and other factors such as the data intelligence Somalis seem to possess or lawyers quick to rise to their defence on arrest suggest a new dimension– of an ‘organised under-world.’

Far from being sea pirates hunting for victims, they sometimes seem well-informed about their potential targets to the point of knowing for instance the cargo on board and the exact number of hands a vessel set out with, seafarers say.

Seema Goyal, the wife of a former hostage, suggested the need to sanitise the Gulf of Aden– a suggestion echoed by several officers.

Captains I Solanki, T K Dhingra, P Sarin, P K Mittal and I Kharbanda stressed a cordon to ensure that brigands cannot come out to attack.

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PM Underscores Tackling Corruption In Judiciary – By Mukesh Jhangiani

Manmohan Singh

Manmohan Singh (Photo: Wikipedia)

                                                            March 11, 2006

PM Underscores Tackling Corruption In Judiciary*

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – Corruption in the judiciary and court delays were counted by Prime Minister Manmohan Singh today among common litigants’ problems that must be examined and remedied.

”Instances of corruption have now begun to surface in our judicial system, too,” Dr Singh remarked, opening a conference of state chief ministers and high court chief justices at Vigyan Bhavan.

The conference centring on Justice: Accelerated and Affordable heard a keynote address by Chief Justice Yogesh Kumar Sabharwal promising ”zero tolerance” to corruption and a welcome address by Law and Justice Minister Hans Raj Bhardwaj.

The Prime Minister emphasised that ”an important aspect of the reform and modernisation of the judiciary and improving the incentive mechanism, is to tackle corruption in the judiciary.”

Dr Singh said the prosecution trend where cases ”fall because witnesses turn hostile or change their evidence is causing concern to ever increasing sections of society.”

The allusion applied to the infamous Jessica Lal case outcome– absolving all nine accused in a murder committed in a packed bar room seven years ago.

The outcome sent a wave of shock across the nation, leading to calls for an effective system of justice which actually punishes criminals and violators and relieves victims.

The widespread public concern was acknowledged by the Prime Minister who stressed ”need for all of us to reflect whether the existing procedures are adequate and foolproof.”

Dr Singh called for an introspection ”whether we are using all available provisions to prevent deviant behaviour and whether we need new provisions in law so that the justice system is seen to deliver justice.”

Speaking as a ”lay man,” the Prime Minister said ”apart from delay in settlement of cases, lengthy court procedures, frequent adjournments, evidence taking procedures, corruption in the judiciary is also a problem of public concern that we must address.”

Dr Singh referred to the ever mounting court case arrears– currently close to 30 million– a problem which ”requires urgent attention.”

Acknowledging that the ”criminal justice delivery system appears to be on the verge of collapse due to diverse reasons,” Justice Sabharwal asserted that ”some of the responsibility will have to be shared by the executive branch of the state.

”Not much has been done for improvement of the investigative and prosecution machinery. Significant suggestions for separation of investigative wing from law and order duties and changes in rules of evidence still lie unattended.”

Justice Sabharwal noted that the public outrage over the failure of the criminal justice system in some recent high profile cases ”must shake us all up into the realisation that something needs to be urgently done to revamp the whole process, though steering clear of knee jerk reactions, remembering that law is a serious business.”

Justice Sabharwal said the main reason for persistent pendencies ”is huge increase in new cases instituted,” adding that it reflected ”more awareness and more rights created by numerous new legislations.”

But he cautioned that if the huge arrears of about three crores in high courts and subordinate courts is not tackled now there would be ”no magic wand available to tackle the menace” when they climb to three and a half crores or four crores. ”We have to turn the tide now. It is now or never.”

Justice Sabharwal said while judiciary was held responsible for mounting arrears, it neither has any control on resources of funds nor any powers to create additional courts or hire staff.

He suggested giving high courts at least ‘limited financial autonomy’ and backing up judicial efforts to bring about urgent legal reforms so as to galavanise the system to ”provide complete justice” instead of subjecting vital proposals for procedural laws to endless debates.

The Chief Justice said the judiciary ”craves for full support from the government. The process of appointments of judges in the high courts at the level of government needs to be expedited.”

He said the topic of corruption was a burning issue in all spheres of public life. The judiciary was committed to continue cleansing itself by coming down with a heavy hand on unscrupulous elements that may exist within and also by removing the deadwood. ”We have adopted a policy of zero tolerance on this subject.”

Referring to the outcomes of past such conferences, Justice Sabharwal said, ”we have been cajoled enough to sit up and take notice. It is time we proceeded to stand up and take action.”

The delays in filling judicial vacancies was acknowledged by the Law and Justice Minister who said the working strength of judges in courts needed to be ”optimised.”

Mr Bhardwaj said that ”though there are still about 100 vacancies of judges to be filled up in various high courts, we could achieve (an) all time high of incumbency, which is 560.”

India’s 21 high courts between them have a total sanctioned strength of close to 700, but remain perennially underfilled.

Mr Bhardwaj said that in district and subordinate courts, too, 2,655 of 14,305 judicial posts were vacant and urged participants to take timely action to fill up vacancies.

Earlier, the Prime Minister urged the Chief Justice and his colleagues to ”lead and guide the judiciary to achieve the formidable goal of reducing pendency and providing speedier and more affordable justice to the common man.”

Dr Singh declared the central government’s ”full support” in this endeavour and also urged the Chief Ministers to make available the necessary infrastructure needed by courts to ensure their effective functioning.

He stressed the need to maintain credibility of the system, improve the utilisation of existing laws and regulations, effective mechanism to ensure judicial accountability and a balanced approach in taking up PIL cases.

Underlining the need to exercise restraint in judicial activism, Dr Singh observed that it must also take adequately into account the administrative viability of the reform process.
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Related articles

Whither Reform ? Time To Audit Law-making ? – By Mukesh Jhangiani

                                                                                                                        February 19, 2006

Whither Reform ? Time To Audit Law-making ?

By Mukesh Jhangiani
United News of India

English: Parliament building in New Delhi (San...

Where Laws Are Made – Sansad Bhavan or Parliament Building (Photo: Wikipedia)

New Delhi (UNI) – Pendency went up 25 per cent – to 30 million cases – as authorities spent 2005 computerising courts, equipping judges with laptops, promoting arbitration and legal literacy and planning nyayalayas across rural India– all the while deferring reforms mostly to 2006. Maybe !

The year had begun with a call in the presence of a senior Supreme Court judge to curtail lawyers’ fees and sieve out those who do not conform to the expectations of a noble calling.
About same time, President A P J Abdul Kalam was questioning a bid to transfer a high court chief justice whose concern over judicious conduct had 25 brother judges attempting a ‘strike.’
And Law and Justice Minister Hans Raj Bhardwaj was announcing moves to strengthen the Judge’s Inquiry Act and a Bill to appoint a Lokpal to ensure accountability in executive, legislature and judiciary– the three key branches of governance.
Those events marked the very first week of 2005.
If such straws in the wind– and a new left-backed United Progressive Alliance at helm– produced hopes of real reforms in delivery of justice and rule of law blowing in soon– the wait did not end with the year.
The Right To Information Act, 2005 which came into force on October 12– cited by Prime Minister Manmohan Singh among key achievements– is seen by experts as a valuable tool to expose corruption.
Legal redress or remedy which include compensating victims and punishing culprits is another matter.
Media ‘stings’ which showed some Members of Parliament virtually vending the privilege of raising questions in the House or spending on development were a rude reminder that accountability was not really round the corner.
Their expulsions notwithstanding, the ‘exposed’ MPs are knocking on the doors of courts for justice.
It refreshes memories of one of the most controversial Supreme Court judgements that the Indian Constitution gives MPs taking bribes an immunity from prosecution ”if they have actually spoken or voted in the House pursuant to the bribe taken by them.”
That judgement allowed the acquittal of four Jharkhand Mukti Morcha MPs who had voted for the Narasimha Rao Government 12 years ago in return for bribes.
Then Law Commission Chairman B P Jeevan Reddy suggested making bribe-taking legislators liable for prosecution.
”Nothing… should bar the prosecution of a Member of Parliament under the Prevention of Corruption Act… if they take money for voting in Parliament.”
Asked about it eleven years later at a news conference in January 2005, the Law Minister acknowledged that steps were yet to be taken to preclude such interpretation– as, indeed, they yet are.
Lokpal to check corruption in public offices itself was conceived four decades ago but is still nowhere in sight. Tired of waiting, activists have announced a People’s Lokpal.
Efforts on Lokpal or to strengthen the law to discipline errant senior judges remain under way.
By proclaiming 2005 as the Year of Excellence in Judiciary and pronouncing the institution ‘clean’– close on the heels of allegedly scandalous behaviour involving some senior judges– then Chief Justice of India Ramesh Chandra Lahoti helped underscore accountability as well as transparency.
Bhardwaj insists that any disciplinary action against senior judges be taken only by their peers and to that end the Judges’ Inquiry Act 1968 needs strengthening.
The Act provides to impeach an errant judge– a step rendered ineffective due to partisan politics the only time it was invoked against Supreme Court Judge V Ramaswamy who had been dubbed ”guilty of wilful and gross misuses of office…”
Authorities have no other way to effectively discipline senior Judges. An in-house mechanism has been adopted in absence of any legislative provisions. But experts say such a mechanism suffers from opacity and uncertainty.
Three years ago, within hours of taking office as CJI, Justice Gopal Ballav Pattanaik stressed in a television interview more powers to tackle corruption in judiciary.
Just a week before, his predecessor, Justice Bhupinder Nath Kirpal had called for ”robust safeguards” to minimise fears of corruption and incompetence in a judiciary appointing itself.
He said, ”the members of the judiciary are also Indian citizens who come from the same aggregate as those in the legislature and the administration, and therefore, there are also instances where corruption and incompetence have also pervaded the judicial establishment that cannot be denied.”
In December 2001, then CJI, Justice Sam Piroj Bharucha told a lawyers’ group in Kerala 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.”
In December 1989, on the eve of retiring as CJI, Justice E S Venkataramaiah told an interviewer that ”judiciary in India has deteriorated in standards because some of the judges are willing to be influenced by lavish parties and whisky bottles.”
However, concern and disquiet voiced over the years has yet to produce a remedy.
The Law Minister suggests ‘formalising’ the in-house mechanism– leaving the task of ensuring accountability still with judges but making clear provisions for punitive measures such as suspension or resignation of errant judges.
With that in mind, India’s Central and State Law Ministers met at Simla in June 2005 and decided to set up a National Judicial Council to ensure judicial accountability.
Such measures may not find favour with some judges.
On the other hand, legislators and the executive– not to mention the judiciary– owe the citizens a transparent and accountable system of justice.
In a broader context, accountability was emphasised by Justice Yogesh Kumar Sabharwal seven months before he became the 36th CJI.
Speaking at the launch of a legal literacy mission by Prime Minister Singh, Justice Sabharwal said, ”We need to set examples of accountability in our governance.”
Three months ago, the Law Commission received a reference on the Judges’ Inquiry Act. This month, the Commission submitted to the Law Minister ”a comprehensive study” on ”the procedure for removal of the judges of the Supreme Court and High Courts.”
As it is, on one hand, judges cannot be disciplined unless their peers so choose– on the other they cannot be criticised without risking six months in jail under the court’s contempt power.
A long-awaited reform has been to allow truth as a defence against the contempt power which ends up silencing, at least discouraging, even fair, healthy and well-meaning criticism.
Last February, a Bill to ”further liberalise the scope to permit a defence of justification by truth on satisfaction as to bona fides of the plea and it being in public interest” was introduced in the Lok Sabha.
Just two days before the year ended did the Manmohan Singh Cabinet approve a ”proposal to proceed further in Parliament (on) the Contempt of Courts (Amendment) Bill 2004.”
An even more basic issue is judges’ strength. Not only it is known to be lower in India than elsewhere, it is further undermined by many vacancies and possible quality issues. Delayed judicial appointments contribute to delayed justice, even though authorities know years before vacancies arise and can set up a pool from which judges are assigned without delay.
So far as making lawyers accountable to litigants is concerned, the Advocate’s Act remains where it was.
Apart from complaints of incompetence, inefficiency and indifference, ethical issues are a major concern in the legal profession.
Lawyers who should look out for clients’ interests, are at times known to mislead them– treating cases as milch cows prolonged through adjournments for years– or even colluding with clients’ opponents.
Victims can complain to statutory Bar Councils. But the Councils are not always prompt in responding, nor can they help litigants recover any losses caused due to members’ misconduct.
One practical remedy might be for courts to keep for litigants’ reference a lawyers’ roster along with any record of complaints of misconduct against each– whether resolved or pending.
As it is, the authorities have not even dusted Law Commission findings since protesting lawyers clashed with police on Parliament Street a few years ago.
Here is an undergraduate textbook extract on the reality of Equality Before Law in actual practice during the erstwhile British rule:
”The principle of equality before law was violated when laws became complicated and beyond the grasp of uneducated poor masses.
They had to engage lawyers who charged excessive fees and preferred to work for the rich. In addition, the prevalence of corruption in the administrative machinery and the police worked against the rights of the masses.”
More than 57 years after the British quit India, the call to simplify the language of laws of the land was given by Prime Minister Singh at the launch of the country’s first nationwide legal literacy mission in March 2005.
”The complex legal language of our statutes acts as a hurdle to legal literacy… compounded by the intricacies of legal language in judicial pronouncements,” Dr Singh told law professionals.
”An attempt should be made to simplify the language of the law so that any one who reads judgements and laws can easily understand their true meaning.”
In November, the cold-blooded killing of Indian Oil Corporation officer Manjunath Shanmugam, who blew the whistle on corrupt petrol outlets, underscored once again the crying need in India for law to protect whistleblowers– insiders who expose corrupt or abusive organisations or employers.
Such laws have existed in and served other advanced societies for decades.
In India, a study was made by the Law Commission and a Draft Bill put together and placed in Parliament more than three years ago.
It was before the MPs when National Highway Authority officer Satyendra Dubey lost his life in November 2003, not to mention when Shanmugam lost his– two years later.
As it is, critics say, officials who appear to find protection in Indian jurisprudence are the sort who acquiesce in or connive at violations.
In case after case– whether petrol pump distribution scam, St Kitts affair, Hawala scam, Bofors scandal or many more– bureaucrat after bureaucrat and politician after politician has found acquittal or escape.
It is dramatically exemplified in manifestations of justice that hit consumers of New Delhi’s municipal and housing services this winter.
Law abiding citizens hailed the drive ordered by the Delhi High Court, urging impartiality and wondering whether– and why– law spared pre-2000 violations or officials on whose watch violations took shape.
Published accounts say three-fourths– perhaps more– of the Capital’s 36,00,000 buildings are illegal. Yet municipal authorities have taken note of only 200,000 of them and acted against barely a thousand.
The ongoing drive targets a mere 18,299 cases detected since 2000.
The court also has ordered the city to ”fix responsibility” and initiate major penalty against engineers and officials ”who allowed or took no notice” of such constructions.
If punitive action has been taken, it has not been made public.
Critics say city bulldozers have been ‘discrete,’ steering wide clear of homes of India’s bigwigs or affluent– entire unauthorised neighbourhoods or localities !
Critics advocate punishing officials who let violations occur and such agencies as the Delhi Development Authority whose policies or actions– why lottery ? for instance– have encouraged and stoked speculation in housing.
They say it all reflects the state of rule of law in India.
Here are some more reflections of it:
— Hundreds of thousands of undertrials have been in custody– many for years, even longer than their convictions might have required them to spend in jail. Why legal attention remains denied is not clear given huge sums spent year after year on legal aid for needy. Former Law Minister Jana Krishnamurthi saw it as a serious flaw that must not be allowed.
— An Indian Society of International Law inaugurated in August 1959 by India’s first Prime Minister Jawaharlal Nehru might have been a guiding force, helping inform and shape public opinion on global law. In 2005, it was sued by its Treasurer over violations of domestic norms.
— The Bar Council of India disclosed two years ago that 131 high court judges– one in four– across India have kin practising in the same court– an arrangement or coincidence forbidden under the law for fear of promoting unfairness in justice. The Council campaigned for transfer of 131 HC judges– in vain.
— But 2005 saw a High Court Chief Justice transferred twice in seven months, each time reportedly on brother judges’ complaints. In February, Justice B K Roy was transferred to Gauhati HC after he had asked some Punjab and Haryana HC judges why they took complimentary membership of an exclusive club, and in September, to the Sikkim HC, after he tried to improve access to justice in the Northeast by assigning Judges to benches in states neighbouring Assam.
— Despite scam after sordid scam sapping public interest, legislators have neither enacted Lokpal nor discarded it as a bad idea unfit for Indian society in the 40 years since it was recommended by the Administrative Reforms Commission set up under Morarji Desai in 1966.
— In November 1996, the Supreme Court found that former Petroleum Minister Satish Sharma favoured 15 petrol pump allottees and fined him Rs 50,00,000. Another Bench overruled this in August 1999. Two years later, an expert group led by Justice Reddy reviewed both orders and said it was ”absolutely essential” and ”urgent” to enact a law making public servants liable– with exemplary damages– for loss caused to the State by their mala fide actions. Last April, the Central Bureau of Investigation explained its failure to file chargesheet in the 15 cases citing a government decision ”not to grant sanction” to prosecute Sharma.
— In 30 years, the Lalit Narain Mishra murder case has been transferred to nine judges, and of seven accused, the statement of only two recorded. A Parliamentary report dubs it ”a classic case” which ”epitomises the lethargic pace at which the Indian legal system operates.”
”We must realise,” Justice Sabharwal said in his Law Day speech in November ”that the end of law must be justice. Law and justice cannot afford to remain distant neighbours. There must be harmony between law and justice.
”We must, in all seriousness, ask ourselves… how far we have been able to fulfil the mission of law to deliver justice and to what extent we have succeeded in using law as a vehicle for ensuring social justice to the large masses of people in the country.”
Experts concede that not just justice, legislation– the process of enacting laws of the land– also suffers from delays.
They say the terribly slow pace of legislating reforms is as constricting and agonising to the society as delay in adjudication is to an individual victim.
In India, the process also suffers from near absence of public participation in so-called public debate– often confined to hearing select speakers in one forum or another with hardly any audience input.
Those are just some of the serious questions that need to be faced. ”It is also perhaps a most ignored aspect of public interest issues by Indian research and scholarship,” a Delhi University Law teacher acknowledges.
Experts concede what is needed is a thorough but quick audit or study of legislative function– to see how it can be made effective in dealing with the needs of transparency, accountability and law in the society.
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