Friday, March 25, 2011

Dealing with Public Unrest

India may not see a Jasmine revolution for various reasons. But we are experiencing a number of smaller but dirtier variations of similar agitations, on a day to day basis.

India as a country is moving away from the ideals of Mahatma Gandhi. Non-violence as a principle has no respect anymore. The might is right principle is gaining in stature. If you have 100 people who will listen to your words, you can force your way into getting anything achieved - that seems to be the new method.

The use of widespread violence is hallmark of almost all contemporary movements. I am not taking about the armed resistance of Maoists or terror based activities of certain fringe elements belonging to various religious (what else!) groups. I am concerned with the so called popular movements such as Telengana agitation, Gujjars’ agitation, Gurkha Land agitation, Jats’ agitation etc, which use violence as a means of forcing governments to listen to their demands.

Almost all political parties of India have some time or other called for public Bandhs or Hartals and then went ahead and used force to make the general public to accede to it. Shamelessly, even some of the state governments have sponsored such Hartals, even though Judiciary has unequivocally held this mode of protest as illegal and unconstitutional, as it affects the fundamental freedoms of Indian citizens.

Democracy can only thrive with some minimum level of discipline. If every group is allowed to get away with whatever demands that they may put forth, then it can convert democracy into mere ‘mobocracy’. If that is to happen, we will have plethora of violent demands for more and more states and more and more reservations.

How do we deal with this? Obviously, we as a nation cannot allow any group to control our freedom and fundamental rights. Our freedoms are as important as their right to agitate. Also, they have no right to use violence as a means of agitation. That is why our governments have to formulate a clear policy as to how these violent agitations will be tackled.

Our Constitution confers upon the governments a very important duty to ensure our fundamental rights. It should be made known to all that no agitations involving violence will be tolerated. Strict measure must be adopted to control these menace. Those leaders who instigate and organise such agitations must be brought to book and subjected to exemplary punishment, including barring them from participating in elections.

Each Government must establish a transparent institution, like an Ombudsman, for handling all grievances that are public in nature. Any grievance received by such an authority must be death with, in a time bound and transparent manner, with wide public participation. The decisions of that Authority must be binding on all parties but subject to judicial review by High Courts/ Supreme Courts, as the case may be.

Any call for public agitations that involve curtailment of freedom of citizens must be declared as illegal. All the suspected leaders must be charged and tried expeditiously, including for damages if they have caused any, during the agitation.

It is the lack of penal consequences that is encouraging more and more leaders to try using violence as a means to achieve their ambitions, political or otherwise. Strict rule of law is the hallmark of a successful democracy.

Wednesday, March 16, 2011

Fake MoUs like Fake Encounters?

We were sitting in the office of the CMD of a midsized Company in Mumbai. While we were discussing some important matters, his Secretary came in and requested him to take an urgent call from the Head of his Factory in Gujarat. He apologised for the interruption and took the call. After speaking for some time, he narrated the gist of the conversation too.

The Factory Head was seeking his permission to travel to Ahmadabad, on the next day, for attending the Vibrant Gujarat meet. He was being pressurised by the Gujarat government officials to attend the meet and also to execute a MoU that promises a project involving investment of Rs 1,000 Cr! The CMD was agitated and asked how he can agree to sign such a MoU without clearing it from the Head Office, that too when there are no such projects planned or funding available. However, the Factory Head reassured him that even the officials are aware of it and only they want to complete the quota of amount targeted for the meet.

We had a good laugh on the games that politicians play to get media coverage. A Factory Head could enter into a MoU with Government of State with such casual manner, fully knowing that the MoU is non-binding on his Company and his Company was not in a position to implement the projects included in the MoU.

Readers would appreciate that I can’t share the names of the persons or the company involved, for obvious reasons. However, having read the news about Income Tax Department issuing notice to the Government of Gujarat to find out about the details of all major investment proposals, and BJP protesting against the Notice in the Parliament, this incident came back to my mind and I am sharing it with you.

I do not know if the IT Notice will be of any use at all since many of the proposals could well be like the one I narrated above. A MoU is merely recording an understanding and therefore not binding on either party. If the proposed projects have to take off, it will be according to the extant rules including rules relating to Environment, foreign Direct Investment, Industrial licensing etc.

However, it would be interesting if the concerned Government issues a whitepaper on the details of all MoUs executed in these Meets along with the current status of each proposal. At least that will reassure the people that these MoU s are not fake MoUs, unlike the fake encounters allegedly carried out by the same Government.

Sunday, March 13, 2011

Don’t Give Lectures to Society!!

“High Courts and Supreme Court are courts of principles. The judges should not speak anything beyond the principles of a particular case. Let us not give lectures to the society. The problem is sometimes we judges impose our own values, our own likes and dislikes on the society”. These were the words of Chief Justice of India, as reported in Times of India on 13 March 2011.

What a timely reminder to his fellow judges! We are hearing, almost every day, the news of one or other Bench (never a Judge, mind you) pulling up the government on some perceived omission or commission. We then have to down our heads in shame for having chosen such a corrupt and inept government into power or even for having chosen such a useless systems of democracy for ourselves; especially when we listen to the prime time debates on TV channels where the even more righteous anchors dissect the holy words of the Bench and prove to us how stupid we have been as a people.

To be fair, judges have to ask questions to the counsels during the hearing of any case. But can they afford to let their casual questions to be reported in the media as if they were final orders, amounting to stated laws, and thereby undermines other arms of the State?

I am not getting into more complicated matters like Ayodhya verdict and the right of a judge to decide cases based on beliefs or faith and not on hard facts. I would limit myself to two rather more recent examples. Firstly, let us analyse the decision on the appointment of CVC. In the words of CJI “What is more important to the appointment of higher office? Presumption of innocence or presumption of institutional integrity and competence?” Well no doubt- it should be presumption of institutional integrity and competence. But then who decides whether a particular candidate meets the presumption of institutional integrity and competence? Should it not be the selection committee? Is it fair for judiciary to replace that decision with its own opinion? We may be tempted to go with Supreme Court in the present instance of PJ Thomas as we and our media have collectively branded him as tainted. But look at the larger question. Any future appointment to CVC can be challenged on the ground of presumption of institutional integrity and competence as there is no yardstick by which these can be measured. Also, if someone doesn’t like a potential candidate all he has to do is to file a case against that candidate.

Presumption of innocence is a universally accepted principle of natural justice. So, to hold an appointment invalid on the ground of presumption of institutional integrity and competence even when the person is presumed to be innocent is a contradiction by itself.

Another example is the Hasan Ali Case. The prodding by the Bench to have Hasan Ali arrested is alarming. Is there no importance to liberty of a person? Should a Court be asking the investigator to arrest an accused? Should it not be the investigator’s decision based on the facts in his hand and the stage of investigation? We have a peculiar situation where Supreme Court asking to get a person arrested and the Trial court setting him free on bail, presumably after perusing the facts on record! Supreme Court, which is the ultimate arbitrator on matters of personal liberty itself is turning persecutor in demanding arrest of an accused.

I know my readers will be tempted to condemn me along with PJ Thomas and Hasan Ali, for saying these politically incorrect things. But, I only urge to consider two things; firstly if we were in the place of these individuals and secondly what if they are actually innocent (presumption of innocence)?

Our Constitution, in its wisdom, has clearly demarcated each organ’s roles and responsibilities. As per our Constitution, Judiciary is not supreme but our people are. There may be problems with Government of the day but the remedy lies elsewhere; not in the judiciary beginning to supervise it. Judiciary’s role is limited to judicial review and not supervision of executive. We may like to witness such pulling up by judiciary as we are not completely happy with other organs, but the damage that it can cause in the long run is huge. If a Government is not fulfilling its responsibilities, we have seen time and again that remedy is with people in voting out that Government.

Finally, the ability of judiciary to be the perfect guardians (as we like to believe) of all the good things in public life itself is suspect. Judges rise from a very corrupt legal system that exists in our country. We all know how deeply involved are our lawyers in politics and corruption. Judges are selected from the lawyers. This selection process itself is not free from external influences. It would be naive to believe that every person, who evolves through this corrupt system and possibly corrupt selection process, will become a saint over night merely because of his appointment as a judge. Increasingly we are hearing whispers about huge bribes being paid to get favourable orders, including mere bail orders.

Strict contempt laws will ensure these whispers remain so for some more time. However, with no much activism in judicial reforms, and with more and more cases of judicial corruption coming to light recently, it will not take much time before serious questions are raised on the role of judiciary itself.

Under these circumstances, it would be prudent for the judiciary to listen to the Chief Justice of India and stick to their constitutional role of judicial review and not indulge in running down other arms of the State. Remember, if you bat for public applause and try to score 4s and 6s on each ball, the chances of losing your wicket is as much higher.

Friday, March 4, 2011

Curious Case of PJ Thomas - Role of Media and Judiciary

It is not often that one feels empathy towards a person who has just been shown doors from a public office by judiciary. But surprisingly in my eyes the standing of PJ Thomas has only gone up!

I strongly feel that Mr Thomas is a victim more than a wrongdoer. Our Judiciary and Media have failed to give justice to him.

Palmolein case has been there for a long time now. Being a Keralite, one cannot escape the ups and downs of this case through the political changes that happened in Kerala. It was a case brought out to target Mr Karunakaran. The case got impetus both from within Congress Party (those were the days of aggressive groups in Kerala) and from the opposition. Subsequently, with changed equations in the Congress Party the case was sought to be squashed but the ‘then crusader against corruption in public life’ and current CM VS Achuthanandan took personal interest to keep the pot boiling.

The case however did not proceed to trial as the Supreme Court granted a stay on the same on a plea from Mr Karunakaran. Supreme Court, for reasons best known to itself, obliged Karunakaran till his death, by not lifting the stay!

Thomas was the last in the list of eight accused in the case but never been a target of any parties for his alleged role in this case that took place in 1991-92. He continued to move up in his career, and occupied very sensitive positions that include Chief Secretary of Kerala, Secretary Parliamentary Affairs and Secretary, Telecom Ministry at the Centre. Those governments that placed confidence in Thomas included Left, NDA as well as UPA. Further, in the words of Home Minister Chidambaram, “no sanction for his prosecution was granted by the NDA government from December, 1999 to May, 2004 and by the UPA government subsequently”. Previous CVCs also have cleared him for sensitive appointments.

During this long period of his career, Thomas has not been subjected to any other allegations. The only slur that was thrown at him, subsequent to the Palmolein case, was his stand on 2G investigations by CAG, based on a matter of policy. Even those who blame Thomas for that stand admit his stellar role in the highly successful auction of 2G spectrum.

It is an enigma why the Government chose to appoint Thomas as CVC. CVC is a post with highest sensitivity and it would have been commonsense that the appointment will come under scrutiny of various agencies including media, especially after the Opposition Leader has recorded her dissent in the selection committee. Government owes the Nation an explanation as to why it decided to go ahead with the appointment that had the potential to blow up into an embarrassing controversy.

The appointment was questioned in Supreme Court. Media, with the increased attention towards corruption in public life took up the case as well. Thomas was made to look like a criminal! The embarrassing questions flew back and forth and the Government and its crisis managers sought to find the way out through resignation of Thomas. However, Thomas did not oblige both the Government and the Media. He stood his ground and decided to challenge the petition.

It would have been easy for him to give in to the demand of Government and resign. He could have cut deals with political class and got rehabilitated in some or other position away from scrutiny. Instead, if he has chosen to fight it out it can be only due to the self confidence arising out of conviction in own impeccable integrity and a deep desire not to leave as a tainted man.

Now Supreme Court while annulling his appointment as CVC was forced to admit that its decision is not casting any aspersion on the personal integrity of Thomas. SC chose to annul the appointment on ground which has nothing to do with Thomas per se, i.e., integrity of the institution and non application of mind by the selection committee. This judgement, in my opinion has vindicated Thomas’s stand.

In this country, where every person is considered as an innocent until proven guilty, our media and section of society were too fast in condemning Thomas. Even after the Supreme Court’s order which took pains to state that the order is not an aspersion on integrity of Thomas, I was pained to hear the Anchor and reporters of TimesNow repeatedly addressing Thomas as ‘tainted Thomas’. That too without sharing with viewers for any inside information that they may have about his culpability that even Supreme Court failed to notice!

Thomas is an accused in a case which is yet to be tried. Let him be tried and if fund guilty, be punished. To indulge in character assassination of a person merely on the ground that Government of the day chose to appoint him to a post and that he is an accused in a pending case is criminal and I hope the lawyers of Mr Thomas take note of such things and proceed appropriately. Our Media and its righteous anchors must learn to respect the rights of their subjects.

While deciding the case and examining the processes followed by the executive, I wonder why Supreme Court did not consider it necessary to review the judicial process followed in the Palmolein case so far. What caused the delay in trial for such a long period? Was all decisions by various Courts including long stays on trial given judiciously or for any external considerations? All these points would have led to improvement in the judicial process at least in the future.

Or is it that our Judiciary and Media are beyond all scrutiny and accountability?!