The Hindu : Opinion / Lead : Jan Lokpal bill: addressing concerns

The Hindu : Opinion / Lead : Jan Lokpal bill: addressing concerns

The draft bill seeks to create an institution that will be independent of those it seeks to police, and will have powers to investigate and prosecute all public servants, and others found guilty of corrupting them.

A number of commentators have raised issues about the provisions in the draft of the Jan Lokpal Bill. They have asked whether it would be an effective instrument to check corruption. They have pointed to the manner in which Anna Hazare's fast put pressure on the government. It is therefore important to understand the provisions of the bill and how it seeks to set up an effective institution to deal with corruption.

Corruption in India has grown to alarming proportions because of policies that have created enormous incentives for its proliferation, coupled with the lack of an effective institution that can investigate and prosecute the corrupt. Under the garb of liberalisation and privatisation, India has adopted policies by which natural resources and public assets (mineral resources, oil and gas, land, spectrum, and so on) have been allowed to be privatised without transparency or a process of public auctioning. Almost overnight, hundreds of memorandums of understanding (MoUs) have been signed by governments with private corporations, leasing out large tracts of land rich in mineral resources, forests and water. These allow the corporations to take away and sell the resources by paying the government a royalty, which is usually less than 1 per cent of the value of the resources.

The Karnataka Lokayukta, Justice Santosh Hegde, has pointed out in a report on mining in Karnataka that the profit margins in such ventures are often more than 90 per cent. This leaves huge scope for bribe-giving and creates incentives for corruption. The same thing happened when A. Raja gave away spectrum without a public auction to companies at less than 10 per cent of its market price. Private monopolies in water and electricity distribution, airport development and so on have been allowed to be created, where huge and unconscionable levels of profit can be made by corrupting the regulator and allowing private monopolies to charge predatory prices. Tens of thousands of hectares have been given away to corporations for commercialisation in the guise of airport development, construction of highways, creation of Special Economic Zones and so on, at prices that are less than 10 per cent of the value of those tracts of land.

Apart from creating huge incentives for corruption, such policies have resulted in the involuntary displacement of lakhs of the poorest people, leaving them on the brink of starvation and forcing many of them to join the Maoists. The beneficiaries have stripped the land of natural resources (a good deal of which is exported) and destroyed the environment. Most ominously, such deals have resulted in the creation of monster corporations that are so powerful and influential that they have come to influence and virtually control all institutions of power — as we see from the Radia tapes.

While adopting policies that thus create huge incentives for corruption, we have not set up effective institutions to check corruption, investigate and prosecute the corrupt and bring them to justice. The Central Bureau of Investigation (CBI) continues to be under the administrative control of the government, which is seen as the fountainhead of corruption. Thus, no action is usually taken by the CBI to effectively investigate high-level corruption — except once in a while when the court forces its hand. Often we see the CBI itself behaving in a corrupt manner, with no other institution to investigate that. The Central Vigilance Commission (CVC), which is supposed to supervise the CBI, has failed to act, since its own appointment process is riddled with conflicts of interest. The Prime Minister, the Home Minister and the Leader of the Opposition (who has been a Minister and hopes to become Prime Minister one day) want to avoid their own accountability and are thus interested in having weak and pliable persons to man the institution that is expected to supervise the CBI. Moreover, the CVC and the CBI have to seek the government's sanction to investigate and prosecute wrongdoers; such sanction is usually not given when it comes to high-level corruption. The CVC depends on vigilance officers in various government departments. They are often middle-level officers from the same departments and cannot be expected to exercise vigilance over their bosses who write their confidential reports. The judiciary, which must try and convict the offenders, has become dysfunctional and is afflicted with corruption due to lack of accountability of the higher judiciary.

The draft Jan Lokpal bill seeks to create an institution that will be largely independent of those it seeks to police, and which will have effective powers to investigate and prosecute all public servants (including Ministers, MPs, bureaucrats, judges and so on) and others found guilty of corrupting them. Since corruption involves misconduct and gives rise to grievances, the draft proposes that the Lokpal will supervise the machinery to pursue disciplinary proceedings against government servants (the Vigilance Department) as well as the machinery to redress grievances. Thus, misconduct by government servants, and grievances, will come under the ambit of an independent authority rather than the government — where the machinery has become ineffective due to conflicts of interest. It is proposed that if the Lokpal finds that a contract is being given for corrupt considerations, it can stop the contract. It cannot otherwise interfere with government decisions or policy.

It has been said that this would create a super-cop with enormous powers and no accountability. There is a misconception that the proposed Lokpal will have judicial powers; there is no such provision in the bill. The need of the hour is to have an effective cop who can investigate and prosecute the high and mighty without interdiction from the very people who need to be prosecuted.

The bill seeks to make the Lokpal accountable. First, it is mandated to function transparently so that everything related to its functioning is known to the people (without compromising the investigation itself). Exemptions from disclosure provided in the Right to Information Act could be included. Secondly, the Lokpal's orders will be subject to review in the High Courts and the Supreme Court. Lastly, the members of the Lokpal could be removed for misconduct, by a five-member bench of the Supreme Court.

There has been some criticism of the Lokpal selection committee and the selection process. Given the erosion in the integrity of most of our state institutions, it was thought that the best bet would be to have a broad-based selection committee and build transparency and public participation into the selection process, while trying to keep out those who are most likely to be within the ambit of the Lokpal's investigations. That is why in the draft bill Ministers were sought to be kept out.

One criticism has been that this shows contempt for democracy. We have seen how the “democratically elected” Prime Minister, Home Minister and leaders of the opposition have normally selected weak and pliable CVCs. So the draft bill proposes a selection committee comprising the Lok Sabha Speaker, the Rajya Sabha Chairman, the Comptroller and Auditor General, the Chief Election Commissioner, the two seniormost judges of the Supreme Court, two seniormost Chief Justices of High Courts, the Chairman of the National Human Rights Commission and the outgoing members of the Lokpal. This proposed composition of the committee will certainly be discussed, and perhaps improved upon, during public consultations and discussions within the drafting committee that will now take place.

It has been said that putting the function of redress of grievances on the plate of the Lokpal would make its work unmanageable. Though the Lokpal will only reorganise and supervise the grievance redress machinery (rather than dealing with each grievance itself), this is an issue that will be discussed openly by the committee. By next week, a website that will formally take in all the opinions and suggestions on the Jan Lokpal bill will be launched and announced. People are welcome to read, understand and send their comments on it, to be taken note of.

One must not, however, be under any illusion that the Lokpal law by itself would solve the problem of corruption. Unless we tackle and change the policies that create enormous incentives for corruption and monster corporations that become too powerful for any institution to control, the fight will be incomplete. The judiciary too is in need of comprehensive reforms.

But an independent, credible and empowered Lokpal is a necessary, though not a sufficient, condition to effectively control corruption. Let us work at least to put that in place.

(Prashant Bhushan is a senior Supreme Court lawyer and member of the joint committee to draft the Lokpal bill.)

The High Court of Judicature at Madras at 150 - The Hindu

The Hindu : Opinion / Lead : The High Court of Judicature at Madras at 150

August 15, which we celebrate as our country's birthday, is also incidentally the birthday of the Madras High Court. It was born 85 years before India got its Independence. The Indian High Courts Act, 1861 passed by the British Parliament enabled the colonial government to establish High Courts of Judicature in India. It merged the earlier Supreme Courts functioning in the Presidency Towns along with Sadar Adalats and established High Courts in the three Presidential Towns of Bombay (Mumbai), Calcutta (Kolkata), and Madras (Chennai). The Act authorised Queen Victoria to issue letters patent under the great seal of the United Kingdom to erect and establish High Courts of judicatures.

The court at the time of its establishment was required to discharge cases with “justice, equity and good conscience.” Though the charter for the establishment of the High Court of Madras was issued on June 26, 1862, the Madras High Court was inaugurated on August 15, 1862. After its initial functioning at the present Chennai Collectorate, it moved to the present campus in 1892.

The High Court initially administered its jurisdiction only within the Presidency town. Its jurisdiction got extended to the entire Presidency subsequently. Being the High Court established by the Act of the British Parliament, it had the power to issue prerogative writs. The power to issue writ in the nature of habeas corpus was curtailed by Section 491 of the Cr.P.C. (1898). After the enactment of the Government of India Act, 1935, the power to issue habeas corpus writ was restored. Subsequent to the enactment of the Constitution (1950), the High Courts were recognised by the Constitution and the power to issue writs, orders or directions was conferred on it under Article 226. The power under Article 226 became a potent weapon in the hands of citizens as against acts of States to keep it under check. It was held to be part of the basic structure of the Constitution. No constitutional amendment can divest that power [L. Chandrakumar's case – (1997)].

After the States Reorganisation, many parts of the Madras Presidency went away to form Andhra Pradesh, Karnataka, and Kerala. Those High Courts were called the Andhra Pradesh High Court, the Karnataka High Court, and the Kerala High Court, and named after those States. But the name of the Madras High Court remained unchanged notwithstanding Madras becoming Chennai. It is incongruous that even after the establishment of the Madurai Bench of the Madras High Court (2004), it is still called the Madras High Court. It is high time it was called the Tamil Nadu High Court.

Since 1892, many changes have taken place. The beach opposite to the High Court, popularly known as High Court Beach, disappeared thanks to Port Trust cornering the place. The Light House beaming its light over the city, which was housed within the High Court building, was closed. It is ironical to have facade lighting arrayed to see the old Light House in the evenings.

But within the High Court, many things have remained unchanged: the Silver Mace bearers going in front of the judges to the Court, lawyers and others addressing judges as My Lords and Lordship and wearing colonial robes (black coat and gown). Even women judges are to be called My Lord and Her Lordship. Even after the Bar Council of India resolution No.58/2006, dated April 9, 2006, lawyers continue to address the court with honorifics such as My Lords. Strangely, though there is no law prescribing robes for the judges, they adorn the same attire and refuse to change the customary practice.

As the Court enters its 150th year and celebrations are being planned on a big scale, it is high time a social audit was done on its performance. The 150 years period will have to be necessarily split up into two parts, that is, the colonial and the post-colonial period. At the time of its establishment, judges were solely appointed by the Crown, two-thirds of the vacancies were to be filled up by English and Irish barristers and bureaucrats drawn from the covenanted civil services. Judges had to serve during Her Majesty's pleasure. While the Government of India Act, 1935 provided some changes, it was only after the Constitution was adopted in 1950 that a constitutional framework for High Courts was evolved.

Any study on this institution must cover the functioning of the Court under the colonial government to know its role during the two World Wars and how far it had acquitted itself. There were instances when lawyers who participated in the freedom struggle were punished and had their names removed from the bar roll. The cases of detenues' appeals during World War II were dealt with by British judges in a secret manner and records relating to appeals under the Public Safety Act are yet to be explored by historians.

Undoubtedly, the Madras High Court is the first in many respects. It is the first High Court whose judges have declared their assets and put it up at the official website. The judges have also adopted the “statement of values” evolved by the Supreme Court (1997). The judiciary here represents a wider cross section of society compared with many High Courts in India.

The Madras High Court tops in the rate of disposal of cases in India. But the ever-increasing load of cases has created problems of space not only for lawyers and litigants, but also for the system of keeping records and maintaining them. The number of Tribunals created has taken away the powers of the High Court. The systematic deprivation of the High Court's power is not conducive either to the independence of the judiciary or to the rule of law.

Even after 61 years of the Constitution, the High Court is still not allowed to have Tamil as the additional court language. Though the Court gave its consent in the year 2006, the presidential notification is nowhere in sight.

The colonial practice of having a summer vacation and working 210 days in a year is clearly a huge waste of human resources. It is high time the courts functioned like any other public offices round the year. Being sentinels of justice, the doors of the courts should never remain closed. They can be operated in such a way that leave can be granted on a rotational basis to judges.

Work stoppages by lawyers are another evil that has crept in. Even after the Supreme Court's judgment in Harish Uppal's case (2003), the High Court continuously lost 30 to 40 days due to work stoppage by lawyers in the last few years.

The role of lawyers is an essential adjunct for proper maintenance of the court system. Unbecoming scenes that are witnessed in courts are largely on account of lack of proper training in law and ethical values. The justice delivery system depends on the quality of the Bar. The improvement of legal education in the country must be taken up as a priority.

All stakeholders must ponder over the ills plaguing the justice delivery system and strive for a people-oriented justice delivery system. This is the imperative need of the time when the entire nation debates on the Judges' Accountability Bill and vociferous cries are heard for inclusion of the higher judiciary under the Lok Pal's ambit.

With mounting arrears and a huge backlog of cases, we are sitting over a volcano. The latest statistics given to the press by the High Court reveal that there are more than 400,000 civil cases and around 50,000 criminal cases pending for disposal.

In the words of the Supreme Court of India: “People in India are simply disgusted with this state of affairs, and are fast losing faith in the judiciary because of the inordinate delay in disposal of cases. We request the authorities concerned to do the needful in the matter urgently to ensure speedy disposal of cases if the people's faith in the judiciary is to remain” (See: (2007) 11 SCC 37). The Supreme Court once again warned that “many people have started thinking that justice will not be done in the courts due to the delays in court proceedings. This is indeed an alarming state of affairs” (See: (2007) 14 SCC 452).

The top priority must be to find effective ways and means in bringing down the pendency so that people at large and litigants in particular are assured of a proper and prompt justice delivery system.

“To none shall we deny justice

To none shall we delay justice

To none shall we sell justice”

The ‘Magna Carta' in which these words are found was repealed by an official Act of Parliament, yet it must reverberate in our zeal for justice and must not be forgotten in the year-long festivities to celebrate the High Court's 150th year.

(Justice K. Chandru is a Judge of the Madras High Court.)