Daily Excelsior... Editorial

EDITORIAL

By Vinod Vedi

By R.K. Mishra

The UPA Government is planning to bring forth a legislation further codifying the privileges of members of parliament and state assemblies. This will further accentuate the conflict between the judiciary and the legislature. As it is, the decisions of the courts are not accepted as binding by the legislature in matters of privilege, nor the decisions of the House by the courts. The old dualism, thus, remain unsolved... .......more

‘Committed judiciary’
Men, Matters & Memories

By M L Kotru

A succession of Law Ministers, particularly during the long tenure of Indira Gandhi, has often sought to make the nation's judiciary to bend to the whims, mostly politically motivated of the Executive. One such was the late Mohan Kumaramangalam who enunicated the theory of "committed judiciary" as a consequence of ......more

EDITORIAL

No time to rest

A conference of directors-general and inspectors-general of police in the national capital has clearly brought home a grim reality. There is no time yet for rest in the war against terrorism. This is because enemies of peace have run amok. Off and on they exhibit their desperation. Since they don't suffer from any qualms of conscience they do carry out surprise attacks against unsuspecting individuals and security forces. Prime Minister Manmohan Singh has plainly told the officers in uniform that the terror threat has spread beyond Jammu and Kashmir. Union Home Minister Shivraj Patil has at the same time shared shocking intelligence inputs with the nation. According to him, Lashkar-e-Toiba (LeT)) operatives are being trained specifically to strike at the country's vital installations. As a result oil networks, refineries, atomic power plans, defence, communications and information technology sectors have become "highly vulnerable." Coastal areas too run a risk of being used as infiltration routes. This has necessitated a constant vigil on uninhabited islands so that they don't become launching pads for terror outfits. Not surprisingly, therefore, littoral states have been asked to establish marine police stations. The North Block has sanctioned Rs 400 crores for the purpose. "Some chilling and dastardly actions" of the Naxalites have given a new dimension to what has largely been seen in the past as a movement born of socio-economic disparities. Rocket shells and launchers have been seized from them in Andhra Pradesh. In the faraway north-east the depredations by militant bodies remain a cause of concern. There are close inter-linkages among them in spheres of weapons procurement and training. Besides they do enjoy some sort of patronage in the neighbouring countries notably Myanmar and Bangladesh. It is a sweeping generalisation to say that the terror everywhere is indigenous. The fact is that the outsiders are not at all averse to fomenting trouble in the waters of the Chinab, Jhelum and Brahmaputra and keep them on the boil.

We in this State are well aware of this phenomenon. Nowhere foreign mercenaries have exposed themselves to such large extent as they have done on either side of the Pir Panjal. The Union Home Minister has correctly summed up the situation with his observation that the increase in incidences of infiltration and demonstrative acts of violence by militants "intent on a well calibrated agenda" have "vitiated the environment" in the State. To quote him: "Targeting by terrorists of vulnerable groups like tourists, non-State subjects and minorities including a high-profile suicide attack … were clearly attempts by the terrorists to thwart the political processes aimed at reconciliation." He has expressed the view that "the safety of soft targets" is a priority for the security forces in view of the terrorists' penchant to indulge in wanton violence in Jammu and Kashmir. It is not considered politically correct at this point in time to mention Pakistan by name as the fountainhead of all mischief in this part of the globe. The truth nevertheless is bitter. The neighbouring country either by a deliberate design or sheer helplessness continues to be the favourite playfield of the monstrosities like the LeT and Jaish-e-Mohammad. How else can one explain their unbridled existence in and around Islamabad and their frequent war cries?

With this background in view there is, as the Prime Minister himself has said, the need for speaking up against the terrorism with one voice. Few will disagree with his assertion: "We need a firm response from our security forces. We also need a resolute response from civil society and all our political parties." For his part, he has held out the assurance: "Our Government is determined to fight and root out terrorism and its ideologies that justify and seek to sustain it." This should be broadly the guideline for the security forces to zealously pursue their task of exorcising the country of this evil. In fact, this is one issue on which there should be no differences among the people. Those who want to dictate terms by holding guns in their hands must be given a firm response. They deserve no sympathy. Actually greater punishment should be handed out to those who seek to spread and justify bloodshed in the name of any religion. Very rightly the Prime Minister has said: "No religion sanctions the killing of innocent citizens." It needs to be understood that normalcy is pre-requisite to ensuring genuine and meaningful social, economic and political activities in the country. Anyone striving to breach it by employing arms and ammunition is not a friend of the people and the country. He is an adversary and a terrorist. He must be taught the lesson meant for his ilk.

Friends turn foes

Only the naïve will be surprised by the report of a clash between two separatist groups outside the headquarters of the moderate Hurriyat Conference in Srinagar's posh Rajbagh locality. Leaders and workers of the Islamic Student League (ISL) and the Democratic Political Movement (DPM) had taken on each other in a free-for-all. The fight it seems was over the control of the premises that the DPM, a constituent of the Syed Ali Shah Geelani-led Hurriyat, presently occupies. The ISL came out the worst sufferer as its leader and his associates were mercilessly beaten up. It is a case of friends having turned foes with the passage of time. This is not the first time that such an occurrence has taken place on the secessionist spectrum in the Kashmir region. There have been fierce clashes between the Jammu-Kashmir Liberation Front (JKLF) and Hizbul Mujahideen (HM) in the 1990s. This was when the two leading militant bodies had fought a last-ditch battle for supremacy on the home turf. Hundreds of young persons were killed on both sides. The JKLF was then let down by its one-time sympathisers across the Line of Control who ostensibly wanted to put the HM in the driver's seat. The Front declared a unilateral ceasefire which in retrospect has turned out to be a wise and sound decision. Not very long ago there have been mysterious murders of several leading ideologues of two factions of the Hurriyat Conference. These have been attributed to their differences. One can thus clearly see that the militancy does not spare even its practitioners and supporters. It is further corroborated by divisions and sub-divisions in not only the Hurriyat but also its constituents down the line.

Mutual trust is a serious casualty at the hands of violence. Gun or faith in it fuels egos and leads in exaggerated notions. It needs to be kept out of the way to stay together.

Threat perception and defence

By Vinod Vedi

It would be short-sighted indeed if the parameters of procurement of wherewithal for national security are dictated by the venality of arms suppliers rather than national interest and nothing illustrates this better than the Bofors scandal: The gun suited the demands of national security to perfection as proved in Kargil. The threat to national security thus rose not from the procurement of this particular weapons platform but the "fear of corruption" that made it impossible to utilise optimally the potential of the technology and redounding adversely on defence finance and economics. The nation paid a political price as well and continues to do so in trying to acquire upgraded versions of the 155 mm Bofors howitzer technology even as middlemen keep popping up inspite of "integrity clauses".

Time and cost overruns will continue to plague the system inspite of a pristine Defence Procurement Policy 2006 (unveiled early October), or rather because of it, if contracts have to be shelved because the arms manufacturer used agents to help secure the contract. It may yet turn out that the only way to break out of this vicious cycle would be to forge government-to-government compacts that would put the onus of rectitude on the government of the nation where the arms manufacturer is based not just on the issue of payment of commissions but also on the sanctity of timeframes and abjuring the proclivity to impose sanctions at the drop of a hat.

A case in point would be the government-to-government understanding that pervaded the Indo-Soviet military relationship where the phenomenon of middlemen and agents—the ostensible cause of corruption in defence deals—was anathema.

In national security, there are certain truisms that cannot be wished away. Like no nation can afford to let its guard down and comprehensive defence of a nation will continue to be the inescapable function of the State; that security comes at a cost and that unless costs are met national security will remain vulnerable. Also true is that only a proper assessment of threat can make for cost-effective defence be it within the "external factors and internal considerations" parameter

In the Indian context the external factor has impinged on internal considerations when Cold War politics dictated military pacts where the concept "if you are not with us, you are against us" had full play. India paid the price to retain its independence of thought and action but the external assaults created complications in assessment of required force levels and the best logistics to support that defence paradigm.

That is why after the Chinese aggression of 1962 defence finance and economics was sought to be put within a stable context by resorting to indigenous production of military wherewithal through the much-maligned Defence Research and Development Organisation. That DRDO continues to retain a monopoly with the private sector finding it uneconomic to make the heavy investments in setting up defence industries is a reality. It cannot be wished away whether we like the DRDO. Major arms suppliers in the west are willing to sell but were mostly unwilling to set up joint ventures here in India during the cold war era.

Some attempts were made to keep middlemen and agents within control by trying to open a register no one came forward; the blacklist of suspects grew and the fruits of self-reliance in military hardware have remained elusive. As External Affairs Minister Pranab Mukherjee told the high profile seminar on Defence Finance and Economics held in New Delhi, "there is no escape from modernisation of defence capabilities. What is required, however, is a close look at the options that present a fine blend of economic sense and military sensibility."

Fresh from a stint in the Ministry of Defence, Mukherjee enunciated the problem succinctly enough: There is direct correlation between investment in research and development particularly in Defence R and D. It would encourage indigenisation, reduce reliance on uncertain sources of supply, increase military capabilities in the long run and, most importantly, give a fillip to the economy because of the inevitable spin-offs from such investments.

Needless to say this is a costly affair. Not every country can afford to invest heavily in defence research more so when the results are not guaranteed. The need is therefore for greater synergies between the public spending and private enterprise in defence production. The spin offs would bring immense benefit to the social sector and reduce the cost of defence through such initiatives (as enshrined in the Defence Procurement Policy) making offsets integral to defence purchases. Mr Mukherjee held this up as a useful paradigm to make defence expenditure more sustainable and at the same time creating a growth spiral in the economy—the benign fall-out of the "guns and butter" imperative.

Thus, even while there is a perceived requirement for acquisition of technology from abroad for some weapons, it is the interaction between the indigenous research and development laboratories and private sector production units that will best serve national interests. It will help reduce dependence on foreign sources. Already in a limited way, such transfers of technology between the DRDO and the public sector led by the Confederation of Indian Industries (CII) have taken place.

However, the lure of 27 per cent foreign direct investment appears to have spawned the phenomenon best represented by the Naval War Room Leak where private enterprise is being sought to be promoted by filching national secrets and selling them to foreigners. This would enable the foreign arms manufacturers to pre-empt the procedures laid down in the Defence Procurement Policy which is where we come full circle again.

(Syndicate Features)

Judiciary-versus-Legislature

By R.K. Mishra

Article 105 and 194 of the Constitution dealt with the powers, privileges and immunities of the Member of Parliament and state legislatures. Sub section 3 of both these articles refers to the privileges of British House of Commons at the commencement of the Constitution. These Articles were amended by the 42nd amendment Act. These amendments were subsequently deleted by the 44th amendment Act. But the 44th amendment also amended articles 105 and 194. The departure made from the original sub clause (3) by the 42nd amendment Act was to add that the privileges may also be such as may be evolved by the Houses of Parliament or the state legislatures. This was an attempt to create new privileges for Parliament and state legislatures. But we know that Parliament or state Legislatures cannot create new privileges.

The amendment to article 105 and 194 are merely symbolic and cannot be effective to create new privileges, which is impossible.

The privileges of the House of Common has been defined by May Redlien as "some of the fundamental rights of the House and of its individual members as against the prerogative of the crown, the authority of the ordinary court of law and special rights of the House of Lords."

He opined that "when any of these rights and immunities" of the members, individually and of the assembly in its collective capacity, which are known by the general name of privileges, are discarded or attacked by any individual or authority, the offence is caused by breach of privilege and is punishable under the law of Parliament.

These privileges provide protection from civil arrest - 40 days before or after the meeting of Parliament; freedom of speech, debate and proceedings in Parliament. It is primarily a privilege of the individual members; protection from evidence as regards proceedings of the House without prior permission. It is also a privilege of the individual member; privilege of excluding strangers and prohibiting publication of parliamentary proceedings; the power to enforce its privilege and to protect itself from insult, indignity or obstruction is itself a privilege of the House.

Some years back the Manipur and Tamil Nadu assembly Speakers went into an unfortunate confrontation directly with the Supreme Court after deciding either to ignore the court's stay order or wilfully not obeying the same. The Tamil Nadu Speaker even directed its legislature secretary not to respond to the summons issued by the Supreme Court in a writ petition challenging the order of the Speaker himself.

He asserted that the legislature is independent, sovereign and beyond interference from any external institution. The Manipur Speaker, with certain reservations reached a respectable compromise with the order of the Supreme Court. Hence that matter ended happily but the matter of the Tamil Nadu Speaker had caused a furore.

The framers of the Constitution had before them the privileges of the British House of Common or the limited privileges of the certain legislatures created by British Parliament.

Dr. Ambedkar, the chairman of the drafting committee was aware of the claim made by the British House of Commons to commit for contempt by an unspeaking warrant and he left the constituent assembly in no doubt of his view that very power was being conferred on the legislatures in India. Hence the privileges of the British House of Commons were conferred on Indian legislatures.

The first case in which the Supreme Court dealt with the warrant issued by the Speaker was GK Reddy Vs Nafisul Hasan. This case laid down no law about the privileges of legislatures because no question was raised before the court.

It is important that after the judgment of the Supreme Court in the presidential reference, the committee of privileges of the Vidhan Sabha of Uttar Pradesh disregarded the order of the Allahabad High Court as unauthorised interference in the proceedings of the House and the committee did not take cognizance of it.

The committee observed, "Having held that the respondents were guilty of the contempt of the House by the above mentioned acts. The committee feels confident that the respondent would not have done what they had done had they realised the importance of implementation of the matters at the time. But in view of the importance of the harmonious functioning of the two important organs of the state - the legislature and the judiciary and the recent judicial pronouncement, the committee feels that justice would be done and the dignity of the House vindicated if the House expresses displeasure. The committee accordingly recommended that displeasure of the House be expressed." This displeasure was accordingly confirmed which is still on the law books. No one challenged this displeasure in any court of law and it stood finalised.

The Supreme Court once again in the case of Tej Kiran Vs. Reddy held that once it was proved Parliament was transacting its business anything said during the course of that business was immune from the proceedings in any court and no question arose whether what was said was relevant to the business or not.

It is clear that whatever happened in Supreme Court with regard to the Speakers of the Manipur and Tamil Nadu assembly was highly unfortunate and it had created a constitutional crisis.

The demand of codification of the privilege had been raised for the first time in 1959 before the first Lok Sabha Speaker, GB Mavlankar. He was against the codification of the privileges of members because they were not to be conceived with the reference to this or that party. Secondly, an attempt will be made to curtail substantial privileges as they exist today and thirdly, the legislation might crystallise the privileges leaving no scope to widen or change them. He, therefore, opined that it is better not to define specific privileges at the moment.

Hence it is advisable that instead of aiming to codify privileges, the organs of the Government should have the prudence to act within their jurisdiction and respect each other's authority. INAV

‘Committed judiciary’
Men, Matters & Memories

By M L Kotru

Shiv Shankar authored the transfer of Chief Justices and the appointment of outsiders as judges of the High Courts and H. R. Gokhale was the one who pushed the infamous 42nd amendment through the Parliament. H. R. Bhardwaj, the present incumbent has not lagged behind by displaying his capacity to defend the indefensible, falling back on legalese which for the most part is not understood by the majority of our legislators.

Transfers of some of the upright judges during the Emergency, the supersession of Justice H. R. Khanna by Justice Beg, a circular issued by Shiv Shankar, in his capacity as Law Minister, to Chief Justices asking them to obtain the consent of additional judges if sent to any other High Court on confirmation; these and many other were the tools Indira's Law Ministers used to bend the judiciary. It's also a fact that many Justices, luminaries at that, were not loath to pay court to the presiding deity of the day, one of them, even managing to send a congratulatory missive to Indira Gandhi on her return to power.

A former Chief Justice of Jammu and Kashmir, Mufti Baha-ud-Din Farooqi, who later resigned, some two decades ago alleged that the Indira regime had wanted him to strike down the Jammu and Kashmir Anti-Defection Act, which had been challenged before his court and as a reward promised his confirmation as Chief Justice, since he decided to keep his pledge with God and dispense justice without fear or favour, he was victimised and transferred to Sikkim High Court. Mr Farooqi at the time alleged that his "tormentors" did not hesitate to compromise the high position of the Chief Justice of India and even the Supreme Court only because they (the Executive) had wanted to embarrass him.

It requires boldness to admit the failure of the stated policy, but a Government claiming to bring cleanliness in administration should not be lacking in it.

There has been instances in the past of judges and even Chief Justices not having a year or a little more to retire being transferred. On the other hand the executive, and sadly the legislature as well, have not hesitated to protect their own fiefs. Illegalities are hidden behind the cloak of Parliamentary privilege and if need arises the two do not hesitate to bring in hastily drafted legislation to safeguard their own interests.

In the case of judiciary there have been many recommendations made among others, by the Law Commission and most eminent jurists to set the norms for the appointment, transfers and accountability of the judiciary. Most of these always seemed to fall on deaf ears.

But a beginning, however, belated, appears to have finally been made by the UPA Government to come up with a piece of legislation that will for starters seek to regulate the procedure for investigation and proof of incapacity of a judge of the Supreme Court or a High Court. According to the Government the enactment will bring transparency in the functioning of the judiciary and hence add to its prestige.

Recent events have only gone to underline the role played by the judiciary in turning the light on issues of vital public concern. The proposed National Judicial Commission, as outlined in the Bill, one hopes, will go a long way in ensuring the credibility and impartiality of the institution. The structure of the Council has been revised in keeping with the sensitive of the judiciary and after incorporating the suggestions made by the Chief Justice of India.

Given the many instances of Executive overreach some in extremely poor taste, one hopes, the new measure will put to rest the anxiety on the part of the judicial community to keep the judiciary independent of Executive control. The National Judicial Council, once it is formed, is to draw up a code of ethics for judges which itself is a complex process. One hopes that the Commission will be empowered enough to remove judges guilty of gross indiscretions, corruption etc.

How can one forget the so-called impeachment of Justice Ramaswami where everyone in the Lok Sabha, which was to adjudicate on the matter, seemed agreed on the malfeasance on the part of the Judge. When it came to voting political divisions took over the Congress Party and Mr Ramaswami's counsel then, a Union Minister now, Mr Kapil Sibal ensured that the judge went away unpunished.

To that extent I am happy that the Judicial Council, as conceived in the Bill, will not be saddled with the presence in its ranks of the Speaker of the Lok Sabha, Leader of the House (ruling party) and the leader of the Opposition as had once been suggested. It's better that the matter be left to the Chief Justice and other members of the Council, namely apart from the Chief Justice of the Supreme Court, two most senior judges of the apex court and two most senior High Court Chief Justices to be named by the Chief Justice of India. If a complaint is made against a Supreme Court Judge, the Council will consist of the CJI and four senior most judges. If the complaint is against the CJI then he will not be part of the Council in which case the President will name the most senior judges of the Apex Court. Any one can make a complaint to the Judicial Council against Judges of the Supreme Court (except the CJI).

The Council is empowered to issue from time to time a code of conduct including guidelines for the conduct and behaviour of judge. The code also provides for annual disclosure of assets and liabilities of the Judges to the Chief Justice of India or the Chief Justice of the High Courts. All to the good. But I am not sure that Law Minister H R Bhardwaj will not spring a last minute surprise. After all the MPs would love to have a toehold, at least, in the Council. There is always the chance that an amendment(s) may be brought in to give the politicians an excuse to find a berth or two for themselves. The MPs, as it is, have a few bones to pick up with the Supreme Court. And they will always do it in the name of the democracy; as people's representatives they want some kind of watch-dog role and Mr Bhardwaj is not the kind of person to disappoint.

Finally, a reminder, and I am sure the judiciary is very aware of it. The present Chief Justice will be retiring early next year and it follows that the next CJI will be the next most senior judge. The executive doesn't have a choice but then there was the case of a CJI whose very a scension to the cost was in doubt because he was part of the majority that some had earlier decided in the judges' case that the final word in appointments rested with the Government. Not that it can happen now. But there you have a ruling by the Apex Court which conceded that right to the executive. It's an ugly thought, one that should be borne in mind.