If criminals become law makers
Men, Matters & Memories

By M L Kotru

The lynching of local don Akku Yadav by 50 women in the premises of a Nagpur court some weeks back was no ordinary murder. And as one had feared, there have been repeats of the incident in some other parts of the country with the aggrieved women taking the law into their own hands. My sympathies, let me state categorically, are with the women. The simple reason is that having been at the receiving end of the criminals' foul intentions they usually run into a wall of hopelessness, with the law giving them a blind eye and society unfailingly willing to stigmatise the aggrieved women.

Yet however reprehensible the deeds of the dons, the incidents do signify a total collapse of law and order and public disenchantment with the legal system. If the State does not provide the rule of law, it has lost its moral right to exist. If the law finds itself helpless in preventing the likes of Pappu Yadav and Arun Gawali to become legislators one is afraid Nagpur may well be the precursor of an era of lawlessness. If known criminals are to become our law-makers it would be simpler to hand over the reins of power to this emerging class of lawmakers. There are several hundreds of them already in place in Parliament and in the State Assemblies.

The mild-mannered Dr Manmohan Singh recently highlighted the need to improve governance in order to make economic reforms successful. Pinpointing several areas for improved accountability he also noted that whether it was in accelerating the rate of economic growth or dealing with law and order and the internal security challenge, the real task at hand was reform of the three arms of governance - the executive, the legislature and judiciary. He reminded the judges of the need to weed out corruption from judiciary (well aware that he can't stop politicians' being corrupt). Having said that he left unchanged the present system wherein judges are ultimately responsible to politicians. Chief Justice Lahoti responded with a solemn assurance that the end of 2005 would find not one corrupt or indolent judge. Even if Lahoti turns out right how sure can he be that the Chief Justices who follow him will keep up the good work. What is needed in the end is a systemic change. For the law and order system to work honestly and effectively, the police and the judiciary must be made accountable. And they should not be accountable to politicians who see both these instruments of State as their very own.

What can be done? Take the police as the case in point. It has the legal powers to act against crime. Even the Station House Officer has all the powers, the SHO's troubles begin when his senior leans on him to please the politician by scuttling/subverting an investigation, The senior can obviously over-rule the man of a lower rank and assume responsibility. The Minister can overrule the senior and assume responsibility. But the over-ruling is accomplished without the assumption of responsibility. It's so because all such orders are never written orders. One would normally expect everyone from the bottom upwards to insist on written orders but that would mean putting careers at risk. Sadly officials are held in thrall by politicians.

Take the CBI. All the skills of its officers come to naught because of political interference. The CBI's record in prosecuting important cases of political corruption is abysmal. But is it reasonable to expect that those who are being probed by the CBI will allow it to proceed unfettered with an investigation which might end their own careers? If the Dr. Singh is serious about containing corruption by making the justice system accountable, he should initiate systemic changes both for the police and the judiciary.

A law requiring every order by a senior to a junior or by a minister to an official should be recorded regardless of whether it is written or oral. Any unrecorded order would be deemed illegal and therefore punishable.

Constitutionally the President need not be a mute witness. It must be noted that all decisions on personnel taken by the Union or a State Government are in the name of the President or Governor. Therefore the power of transfer, promotion or demotion by any Government at the Centre or in a State must be subject to veto by the President or Governor if it violates any established norm or service rule. Officials should have the right to appeal to the President or Governor against any decision on personal taken by the Government which is allegedly motivated. This measure would protect officials from political manipulation.

It must be understood that the Governor is accountable to the President and not to the Union Cabinet. Flawed interpretation of the constitutional clause that makes it incumbent for the President to abide by the advice of the Council of Ministers has led to huge confusion about the accountability of Governors. According to the Supreme Court ruling on the Raghulal Tilak case (1979); "His (the Governor's) office is not subordinate or subservient to the Government of India. He is not amenable to the direction of the Government of India, nor is he accountable to them for the manner in which he carries out his functions. His is an independent constitutional office, which is not subject to the control of the Government of India. He is constitutional head of the State without whose assent there can be no legislation in exercise of the legislative powers of the State."

An Assembly cannot impeach a Governor. Is the Governor therefore sovereign and not accountable to anyone? He is accountable. He is accountable to the President who appoints him. But, according to the Supreme Court's ruling in the Shamsher Singh case (1974), the "aid and advice" tendered by the Prime Minister shall be binding on the President. If the SC ruling in the Raghulal Tilak case is to be followed, the Prime Minister cannot dictate policy reading the Governor's role. It follows therefore that it is the President who has the power to monitor the Government who is appointed to the State as his representative. Serious reappraisal of the President's role is needed if the Constitution is to be followed in letter and spirit, and not be subverted by irrational conventions introduced mostly for political expediency.

To insulate both the judiciary and CBI from political interference, there is needed a Judicial Commission comprising legal luminaries to oversee decisions regarding appointment, transfer and conduct of judges. This Commission should be a self-regulating constitutional body ultimately accountable to the President. Similarly, the CBI should be made a constitutional body insulated from interference by politicians, and accountable to the President. Permission to the investigate or prosecute ministers should be outside the purview of the Cabinet, to be granted only by the President.

All this would be possible only if the President actually has a role reflecting the powers conferred on him by our written Constitution.

Bush and Kerry ignore Pak nuke threat

By P N Khera

As the US presidential election moves into its final weeks, neither candidate has mentioned a vital threat to national security: the vulnerabilities of Pakistan's nuclear arsenal. Iraq's supposed nuclear program proved to be non-existent, but Pakistan's nuclear weapons and technology are very real. If the U.S is serious about keeping the world's most dangerous weapons out of the hands of the world's most dangerous terrorists, it must demand a full accounting of Pakistan's nuclear proliferation activities, say Christopher Prebles, director of foreign policy studies at the Cato Institute, and Subodh Atal, an independent foreign policy analyst in an article in The Chicago Sun-Times.

Soon after Sept. 11, amid reports that Pakistani nuclear scientists had links to Osama bin Laden, President Pervez Musharraf declared that he had complete control over the country's arsenal. However, it is now known that Pakistan's nuclear technology was being exported to North Korea as late as spring 2002, and to Libya in the fall of 2003. Thus, either Musharraf was not in control of Pakistan's nuclear program or he was using it in ways that contradict U.S. policy toward at least two dangerous countries.

Musharraf blamed Pakistan's leading nuclear scientist, Abdul Qadeer Khan, for the technology exports, claiming Khan was leading a rogue operation for personal gain. That explanation strains credulity, given Musharraf's tight control over the Pakistani military.

That fact -- coupled with the recognition that al-Qaida has sympathizers in Pakistan's military, intelligence, nuclear and political establishments -- should have prompted the Bush administration to demand that Pakistan unravel the full details of its proliferation network.

Instead, the Bush administration supported Musharraf's assertion last February that the proliferation network was Pakistan's ''internal matter.'' Absent U.S. pressure, Musharraf has refused to cooperate with International Atomic Energy Agency investigations into the network. The two presidential candidates have been strangely silent on this matter.

The White House may be giving Musharraf a pass, since his regime has recently taken significant steps in eliminating some of the al-Qaida cells in Pakistan. However, al-Qaida-affiliated groups such as Jaish-e-Mohammed continue to operate in Pakistan. So does the much larger Lashkar-e-Taiba, which has some terrorist ties, and which may still have relations with al-Qaida. According to al-Qaida expert Peter Bergen, such groups may be responsible for hiding al-Qaida fugitives, including bin Laden himself. There have also been persistent reports that elements of Pakistan's military and intelligence services are facilitating the Taliban's quest to regain some of its power in Afghanistan. Significantly, former Pakistani intelligence chiefs such as Hamid Gul and Lt. Gen. Mahmud Ahmed have worked against U.S. interests and have helped shape the Pakistani regime's policy directions.

Some have advised against pressuring Musharraf too much, out of concern that he might be overthrown by a new government far more hostile to U.S. interests. That is a legitimate concern. But Musharraf, under pressure from the Bush administration, has cooperated in the war on terrorism by aiding in the overthrow of the Taliban and by attacking al-Qaida cells inside Pakistan. If he can survive those steps, which are unpopular with the Pakistanis, there is little reason to believe that an international effort to understand the details of Khan's nuclear network would lead to Musharraf's downfall.

While we should be mindful of potential scenarios for Pakistan, including what might happen if Musharraf loses his grip on power, the threat of the proliferation of Pakistani nuclear technology already has materialized. We cannot know the extent of that threat without a full accounting of the Khan network's operations. It is irresponsible to defer to Musharraf and a Pakistani establishment that has, at best, suspect loyalties on a matter of the utmost importance to American national security.

A more responsible U.S. policy would honestly acknowledge the Pakistan problem and lead a multinational drive to pressure Pakistan to provide a complete, verifiable accounting of its nuclear proliferation activities. Though Western powers have had differences of opinion regarding the threats posed by various actors, no one should proceed under the illusion that al-Qaida affiliates in possession of nuclear weapons do not pose a clear and present danger.

U.S. acquiescence in Musharraf's coverup was crucial to forestalling such an international effort. Both President Bush and Sen. John Kerry should be asked about Pakistan. It is vital that the American people appreciate the gravity of the situation and have a clear understanding of the candidates' plans to tackle the problem. -- ADNI