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December 12, 2010

WikiLeaks: Information in the public good

Julian Assange's fatal mistake was the interview he gave last month to a journalist. In this, he claimed to have information about a major American bank that would cause a scandal to rival the one about Enron. Assange had already taken on the establishment; now he was daring the big business as well.

But if governments vacillate in face of a challenge, big business is unforgiving.

For the latter, every threat has an existential dimension. Still, locking up Assange has not stemmed the flood; the leaks continue, like the American television series 'Dallas' to give us our daily dose of surprises.

Perhaps at some point the general public may tire of the cables, but professional diplomats across the world would be delighted by the abundance of material that this flood from Wikileaks has provided to them. Never before was it so easy to get first hand and candid information about people, places and policies in such enormous quantities.

Once, not too long back, spies would stake their lives to get just a single secret document concerning a foreign state, especially a hostile one. They would trawl the waste-paper bins outside an embassy for the shredded and discarded documents to get just one tiny link that could lead them to a whole chain. Spies stopped at nothing; from money to honey traps, all this was fair game in this battle for illicit information. Nor is it a matter of remote past, in fact the trade craft is alive and thriving even now.

Just a few weeks back the Americans discovered to their horror that a Russian spy ring, inclusive of a femme fatale, had been operating for years on the American soil. And the British are just beginning to discover that their bearded black-cab driver is actually an off duty Taliban marking his time till he makes his next bombing run on behalf of Taliban/ ISI. And why just the West, we ourselves were duped by a reverse honey trap when a female staffer at our mission in Islamabad finally confessed to being run by the Pakistanis for years.

It is true that intelligence agencies around the world continue to regard human intelligence as invaluable. But look at what the internet has done. America's contribution to the world is now threatening to turn its own world upside down. With just a single effortless click of the mouse, anyone, and that includes the Chinese hackers as well, will be able to access close to a quarter million diplomatic cables. Some of them trash the leaders they are commenting on; from the obvious ones like Berlusconi the stallion and arrogant Sarkozy to mercurial Gadaffi who prefers being nursed by a blonde bombshell from Ukraine.
As a matter of fact, a quick sampling of some of the cables only proves the point:

- Since 2007, the United States has mounted a highly secret effort, so far unsuccessful, to remove from a Pakistani research reactor highly enriched uranium that American officials fear could be diverted for use in an illicit nuclear device.

WikiLeaks hackers threaten UK government

- Saudi donors remain the chief financiers of Sunni militant groups like Al Qaeda, and the tiny Persian Gulf state of Qatar, a generous host to the American military for years, was the 'worst in the region' in counter-terrorism efforts, according to a State Department cable last December. Qatar's security service was 'hesitant to act against known terrorists out of concern for appearing to be aligned with the US and provoking reprisals', the cable said.

- Cables describe the United States' failing struggle to prevent Syria from supplying arms to Hezbollah in Lebanon, which has amassed a huge stockpile since its 2006 war with Israel. One week after President Bashar al-Assad promised a top State Department official that he would not send 'new' arms to Hezbollah, the United States complained that it had information that Syria was providing increasingly sophisticated weapons to the group.

These instances serve to prove the point that America is no longer feared; that chancelleries sometimes listen to American diplomats only to defy them. But the variety of problems that they detail also point to the complex, often deceitful and dangerous world that we are living in. The issue therefore is twofold; whether the publication of these cables will make the world a less dangerous place, and second whether the sanctity of sharing information with the foreign diplomats in general, and the Americans in particular, has been compromised forever?

The answer to the first derives from the age old battle between the censors and those who believe that societies can truly flower in an atmosphere free from fear and censorship. To the latter, freedom of expression means axiomatically the ability to share all that becomes available. And a main quality of internet is availability of information in large dollops.

The second issue concerns the confidentiality of diplomatic communication. There is no doubt that people will be on their guard at first. Some leaders may be hesitant to open up. But in the end, need overcomes all obstacles, even the risk of exposure to public scrutiny.

US probing WikiLeaks-related hacking

The loss of credibility, if any, suffered by American diplomats after these leaks will be temporary. America is still enormously powerful, and leaders around the world need it, and its representatives, not just as their sounding boards but often also as their confidants and advisers. But long after the cables have been read by the curious, they will continue to serve as instruction material to succeeding generations of new diplomats because they are a fine example of brevity and a uniformly high standard in the information they convey. It is just too bad if in the process some dramatis personae appear sans clothes.

December 08, 2010

Bill on judicial accountability approved

The Union Cabinet on Tuesday approved a bill providing for a mechanism to deal with complaints against judges of the High Courts and the Supreme Court.

The Judicial Standards and Accountability Bill sets judicial standards and makes judges accountable for their lapses. It will also mandate the judges of the High Courts and the Supreme Court to declare their assets and liabilities, including those of their spouses and dependents.

The bill to replace the Judges Inquiry Act retains its basic features, contemplates setting up of a national oversight committee with which the public can lodge complaints against erring judges, including the Chief Justice of India and the Chief Justices of the High Courts.

At present, there is no legal mechanism for dealing with complaints against judges, who are governed by ‘Restatement of Values of Judicial Life,' adopted by the judiciary as a code of conduct without any statutory sanction.

The five-member committee will be headed by a retired Chief Justice of India, appointed by the President, and have a serving Judge of the Supreme Court and a serving High Court Judge, both nominated by the Chief Justice of India; the Attorney-General; and an eminent person nominated by the President. This marks a change from the earlier proposal, in which the committee was to be headed by the Vice-President and to have the Chief Justice of India, a High Court judge and two distinguished jurists not involved in regular practice of law.

On receiving a complaint, the committee will forward it to a system of scrutiny panels. In the case of a complaint against a Supreme Court Judge, the scrutiny panel will consist of a former Chief Justice of India and two sitting Supreme Court judges, and in the case of a complaint against a High Court judge, the panel will have a former Chief Justice of the High Court and two of its sitting judges. The members of the Supreme Court panel will be nominated by the Chief Justice of India, and that of the High Court panels by the Chief Justice of the High Court concerned.

The scrutiny panels will have the powers of a civil court. For instance, they can call for witnesses and evidences. They will be required to give their report within three months to the oversight committee. In the case of a complaint against a Chief Justice, the oversight committee itself will conduct the scrutiny.

On receiving the report from the scrutiny panels, the oversight committee will set up a committee to further investigate the case. Like the scrutiny panels, the investigation committee will have the powers of a civil court; it will have the power to frame definite charges.

If the charges are not proved, the investigation committee can dismiss the case. Otherwise, it will give a report to the oversight committee, which can issue an advisory or warning if the charges are not too serious. If the charges are serious, the committee can request the judge concerned to resign. If the judge does not do so, the oversight committee will forward the case to the President with an advisory for his removal.

In such an event, copies of all relevant documents will be laid in Parliament and an impeachment motion moved. In the Lok Sabha, not less than 100 members will be required to move the motion, and in the Rajya Sabha not less than 50 members will be needed.

Official sources said that besides declaring their assets, judges would be required to file an annual return of assets and liabilities. All the details would be put up on the websites of the Supreme Court and the High Courts.

The bill will also require the judges not to have close association with any member of the Bar, especially those who practise in the same court.

Picking their own men

Judges know best who can be trusted to join their ranks. The judiciary, therefore, assumed “primacy” in the appointment process in 1993. If an outsider is allowed to have a say in the selection of judges, it is bound to compromise judicial independence. Such are the rather self-serving assumptions on which the judiciary has been resisting all attempts to reform the appointment system in which a “collegium” of five senior-most judges of the Supreme Court, including the Chief Justice of India, make recommendations that are binding on the government.

But in the last year or so, this self-perpetuating oligarchy has unraveled like never before. This is due mainly to the scandals triggered by a couple of collegium decisions. Justice A P Shah, despite his internationally acclaimed judgment decriminalising homosexuality, was found unfit to be elevated to the Supreme Court. The then CJI, K G Balakrishnan, at the same time, spared no effort to promote Justice P D Dinakaran, despite allegations of corruption, land grab, and abuse of office.

Given its secretive style of functioning, there has been no word of explanation from the collegium on why Justice S H Kapadia, who has since become CJI, opposed the candidature of Justice Shah, who has since retired. Or why it was only after the Rajya Sabha initiated impeachment proceedings against him that the collegium abandoned its efforts to promote Justice Dinakaran to the Supreme Court and instead transfered him from Karnataka to Sikkim. The credibility of the Supreme Court suffered another blow in the course of the impeachment proceedings against Dinakaran. One of its judges, V S Sirpurkar, withdrew under a cloud in September as the chairman of the statutory probe related to the impeachment motion.

The withdrawal followed allegations of bias against Justice Sirpurkar on the ground that he and Justice Dinakaran had developed a close friendship during the seven years they had worked together at the Madras high court. The last straw was the disclosure that even after both had left Chennai, Justice Dinakaran reportedly attended the wedding of Justice Sirpurkar’s daughter in Nagpur, while Justice Sirpurkar reciprocated by attending Justice Dinakaran’s daughter’s wedding in Bangalore.

If judges are facing such a trust deficit, the lack of transparency in the appointment system is surely a contributory factor. Yet, law minister Veerappa Moily never followed up on his one-year-old “vision statement”, which proposed that the executive and legislature should be involved in selecting judges. His much-touted but yet-to-be-introduced Judicial Standards and Accountability Bill is meant to deal with allegations against those already in the judiciary.

Much as it is important to strengthen accountability safeguards, Moily seems to have adopted a symptomatic line of treatment as his Bill does not address the actual ailment, namely, deficiencies in the method of recruitment. He is persisting in his folly of limiting himself to accountability even after he suffered the mortification of withdrawing his earlier Bill, which sought to exempt the courts from disclosing assets of judges under the Right To Information Act.

It is time the government mustered the courage to undo the 1993 Supreme Court judgment through which the judiciary appropriated the authority to decide judicial appointments. There is no reason to believe that the collegium misused this authority only in the cases of Shah and Dinakaran. Shah was as much a casualty as Dinakaran was a beneficiary of the give-and-take negotiations that have become endemic in the collegium.

It is clear that the collegium system is flawed as it contains no checks and balances to ensure that the judges entrusted with the responsibility of choosing successors always act in public interest. This is not to suggest, however, that India revert to the pre-1993 situation when the likes of H R Bharadwaj misused the constitutional power conferred on the executive to appoint judges in “consultation” with the judiciary.

In its game-changing 1993 verdict, the Supreme Court swung to the other extreme by interpreting “consultation” as concurrence. As a corollary, the judiciary usurped the prerogative to select candidates. Things are unlikely to be any better if the prerogative is restored to the executive. What is needed is a system that is transparent and inclusive, so that all stakeholders are allowed to have a say on who should man the crucial institution that renders justice.

Such radical reform would require a constitutional amendment, which may be a tough task for a coalition government, but it is a worthwhile cause for mobilising an all-party consensus. Lawyers and judges profiteering from the existing opacity are bound to question the wisdom of opening up the appointment system. They would, however, be hardpressed to justify India’s dubious distinction of being probably the only country in which judges choose their own successors.

When our founding fathers empowered the executive to select judges, they were following the example of the UK, the mother country in matters constitutional. The UK too has taken away judge-selection power from the executive. But it did not hand it over to the judiciary. For the past five years, new judges have been selected by an autonomous body.

Only a third of the 15 members of the UK’s Judicial Appointments Commission (JAC) are from within the judiciary. Of the remaining 10 members, two are from the bar, one from among the tribunals, and seven are statutorily required to be ‘lay persons’. The remit of the JAC – which incidentally is headed by Usha Prashar, a PIO – is to select judges “through fair and open competition, from the widest range of eligible candidates”.

If the British idea of demystifying the judiciary seems unrealistic in India, the UPA government could at least take a fresh look at the NDA’s lapsed Bill seeking to create a selection panel consisting of judges, the law minister, and an eminent person. The NDA model could be improved by expanding the panel to include representation from the legislature, bar and civil society. Another model worth emulating is the American system, under which the president nominates federal judges subject to open and rigorous questioning by the bipartisan Senate Judiciary Committee.

Whatever the shortcomings of the American and British systems, the important thing is their judges, unlike ours, are democratically selected. Democracy in the context of the judiciary is not about judges representing popular aspirations or being prone to partisanship. The lessons that can be drawn from the US and the UK demolish the assumptions on which the Indian judiciary has been running its collegium system. We can no longer be kept in the dark about why a Shah has been rejected or a Dinakaran selected.

Judicial corruption: Pulling punches

The recent decision of the committee appointed by the Rajya Sabha Chairman has held that a judge of the Calcutta High Court, Soumitra Sen, was prima facie guilty of grave financial offences and must face impeachment proceedings in Parliament. This has been showcased as a much-needed curative to tackle corruption in the country’s higher judiciary (the High Courts and the Supreme Court).

Indeed, the stench of graft and malfeasance from India’s palaces of justice was becoming all-pervasive. Even judges were feeling the heat, although the reaction of most of them was the usual strategy adopted by people whose privilege and status are under scrutiny. Their castles were fortified and defensive salvos were fired. However, public indignation forced the legislature and the executive (the two other constitutional branches of the Republic) to introduce some measures for judicial accountability. A wishy-washy bill was passed by Parliament and may become law in the near future.

We need to examine the backdrop. Supreme Court and High Court judges are covered under the provisions of Article 124 (4) of the Constitution and cannot be removed from office except by an order of the President, passed after a judge has been impeached by Parliament. The rules of impeachment are like a hurdle race — the accused must be pronounced guilty of “misbehaviour or incapacity” by both the Rajya Sabha and the Lok Sabha, and in each case, the verdict has to be supported by a majority of the total membership of each House and by a majority of “not less than two-thirds of the members of the House present and voting”. Article 124 (5) gives Parliament the power to frame laws that govern the entire impeachment mechanism. Pursuant to this Article, Parliament passed the Judges (Inquiry) Act in 1968.

These two Articles of the Republic’s Constitution make our senior judiciary one of the planet’s most protected species. The luminaries who framed the guiding document of the young nation with an ancient history of justice and jurisprudence would have been horrified if they had witnessed the judiciary’s peccadilloes, which we have been experiencing. And they would have been outraged that this group had extended its constitutional immunity by a self-serving pronouncement, 41 years after the Constitution came into effect. This is, of course, the Supreme Court’s landmark verdict in K Veeraswami vs Union of India and Others, {(1991) 3 SCC 655}, in which a majority of judges (4 to 1) decided on a vital issue that affects us all.

In a 100-page document, the bench ordained that any criminal case against a Supreme Court or High Court judge will be registered only after the President sanctions the prosecution, after consulting the Chief Justice of India (CJI) and in accordance with his advice. The stated rationale was that the judiciary needed to be protected against any interference by the executive. The bench went on to assert that “care should be taken that honest and fearless judges are not harassed” but are “protected”.

The operative part of the pronouncement reads as follows: “It is accordingly directed that no criminal case shall be registered under Section 154, CrPC against a Judge of the High Court, Chief Justice of High Court or Judge of the Supreme Court unless the Chief Justice of India (CJI) is consulted in the matter…If the CJI is of opinion (sic) that it is not a fit case for proceeding under the Act, the case shall not be registered…It is necessary that the CJI is not kept out of the picture of any (emphasis added) criminal case contemplated against a Judge”.

With these few lines, the Indian judiciary carried out a virtual coup against the Republic’s citizens. The ramifications are staggering; Section 154 of the CrPC deals with the dreaded First Information Report (FIR) that is every law-abiding citizen’s nightmare. This is the document that empowers any thanedar in the country to knock on your doors, even at night, and take you to a lock-up in the police station where the FIR was lodged, if the offence recorded in the FIR is non-bailable. In such an eventuality, we can forget the standard Hindi film dialogue where the victim bravely asks the police posse for the “arrest warrant”.

Thanks to the Veeraswami verdict, the Indian senior judiciary has arrogated to itself a blanket immunity that the Constitution’s framers never contemplated. An unvarnished reading of the judgment leads to the conclusion that a judge can commit any offence under the laws of the land, but his or her prosecution can only be initiated with the CJI’s permission. This is certainly the interpretation that is being currently followed by the country’s judicial and political establishments.

To make matters worse, as the Sen case demonstrates, the judiciary has extended the ratio of the Veeraswami decision to offences alleged to have been committed before a judge assumed office. Nowhere does the otherwise tainted judgment say this. Sen is charged with committing swindles when he was an ordinary mortal like the rest of us. It is absurd that the procedure prescribed under the 1968 Act, read with the relevant Articles of the Constitution, should be followed to remove him from office. This is clearly an extreme example of shadow-boxing by the nation’s elites. Citizens must ask whether this charade should continue. Why has he not been charged, so far, under the relevant sections of the IPC, as would have been done in the case of any other citizen?

If this is a portent of how future proceedings will be conducted in cases of wrongdoing — such as the Commonwealth Games or the 2G spectrum scandals — we should all be running scared.

December 06, 2010

“Anticipatory bail can’t be restricted to small duration”

Observing that great ignominy attaches to the arrest of a person, the Supreme Court has held that it will not be proper for the trial court or the High Court to grant anticipatory bail for a limited duration and thereafter ask the accused to surrender and seek regular bail.
“Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage and the post-conviction stage. Life bereft of liberty would be without honour and dignity, and it would lose all significance and meaning, and life itself would not be worth living,” said a Bench of Justices Dalveer Bhandari and K.S. Radhakrishnan, allowing an appeal against an order declining anticipatory bail to a man.
Writing the judgment, Justice Bhandari said: “Right to life is the most fundamental of all human rights and any decision affecting human right or which may put an individual’s life at risk must call for the most anxious scrutiny.” He quoted a Constitution Bench judgment in Sibbia’s case, according to which there should not be any limitation on grant of anticipatory bail.
“However [subsequently], some Benches of smaller strength have erroneously observed that Section 438 Cr.PCshould be invoked only in exceptional or rare cases, that means the life of Section 438 Cr.PC would come to an end after that limited duration. This is not the correct view as no such limitation has been envisaged by the legislature,” Justice Bhandari said.
Arbitrary use of power
The Bench pointed out that the Law Commission, in its report, had severely criticised the police for arbitrary use of the power of arrest which, the Commission said, “is the result of the vast discretionary powers conferred upon them. The Commission expressed concern that there is no internal mechanism within the Police department to prevent misuse of law in this manner.”
The Bench said that by and large, nearly 60 per cent of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2 per cent of the jail expenditure. Arrest should be the last option and restricted to exceptional cases where it was imperative in the facts and circumstances of a case.
“While considering the prayer for anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to a free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; the court has to consider reasonable apprehension and must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.”
The Bench said: “Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the cases. All human beings are born with some unalienable rights like life, liberty and pursuit of happiness. The importance of these natural rights can be found in the fact that these are fundamental to their proper existence and no other right can be enjoyed without the presence of the right to life and liberty.”
In the instant case, Siddharam Satlingappa Mhetre was denied anticipatory bail by the Bombay High Court. The Supreme Court allowed his appeal and directed that he be granted anticipatory bail on certain conditions.

December 03, 2010

Corruption in judiciary: Time for action

Corruption is eating into the vitals of our polity. No institution is free of this menace. The Supreme Court’s observations on the rot in the Allahabad High Court are disturbing. A Bench consisting of Justice Markandey Katju and Justice Gyan Sudha Misra said on November 26 that most judges of this High Court are corrupt and collude with advocates.

With a strength of 160 judges, the Allahabad High Court has a rich history. Remember the historic judgement of Justice Jagmohanlal Sinha on June 12, 1975 when he quashed Indira Gandhi's election to the Lok Sabha from Rae Bareli? He declared her guilty of electoral corruption and disqualified her from contesting elections for six years. His bold judgement shook the country and led to the imposition of Emergency 13 days later.

Sadly, many High Court judges are facing charges of corruption. The cases involving Justice Soumitra Sen of the Calcutta High Court, Chief Justice P.D. Dinakaran of the Sikkim High Court (formerly of the Karnataka High Court) and Justice Nirmal Yadav of the Uttarakhand High Court (formerly of the Punjab and Haryana High Court) are all at various stages. The charge that many former Chief Justices of India were corrupt has given a new twist to judicial corruption. The Supreme Court is seized of the matter (see box).

There is also the Rs 23-crore Ghaziabad PF scam in which a Supreme Court judge (since retired), seven Allahabad High Court judges, 12 judges of the subordinate courts and six retired High Court judges are allegedly involved. The key accused, Ashutosh Asthana, died in jail mysteriously in October, 2009. He had provided vital documents to the CBI that established connivance of these judges. Recently, the Supreme Court rejected the CBI’s plea for shifting this case to New Delhi.

Corrupt judges in the higher judiciary can be removed only by impeachment. However, this method is cumbersome. The problem is not just a question of devising proposals for removal. The Judges (Inquiry) Act, 1968, prefaces impeachment by judicial inquiry. In Supreme Court Judge Justice V. Ramaswamy's case, the inquiry indicted him but the impeachment motion fell through in Parliament in 1992.

The need for an institutional mechanism to deal with cases of misconduct against a High Court judge as also the question of interim arrangements on whether the judge be assigned work pending investigation has long been felt. A beleaguered judge continuing in office smacks of grave impropriety. Remember how Karnataka High Court Chief Justice P.D. Dinakaran continued to attend court, took decisions on the administrative side and even delayed his departure for Gangtok?

The government should fast-track all cases of moral turpitude, corruption and nepotism. The process of impeachment of a judge should be speeded up with a time limit for obtaining the President’s sanction and impeaching him/her.

The Centre’s decision to set up a National Judicial Oversight Committee (NJOC) to look into complaints against Supreme Court and High Court judges and impose “minor penalties” or recommend their removal is welcome. This has been provided for in the Judicial Standards and Accountability Bill 2010 tabled in the Lok Sabha on December 1. Significantly, the Bill is aimed at replacing the Judges (Inquiry) Act, 1968. The NJOC will consist of a former Chief Justice of India, a Supreme Court judge, the High Court Chief Justice, an eminent person to be nominated by the President and the Attorney-General of India (ex-officio).

The NJOC will send every complaint to a scrutiny panel which, in turn, will examine it and report back to it within three months. Based on its recommendation, the NJOC will get the complaint examined by an investigating panel. Both the scrutiny and investigating panels can summon people and ask for public records. They will also have the power of search and seizure.

It is debatable whether the executive should be given the power to retire judges. This power should remain in the hands of the judiciary itself to maintain the independence of the judiciary which is the cornerstone of the Constitution. Indeed, any amendment of the constitutional provision of impeachment will have to pass the test of judicial scrutiny. Otherwise, the Supreme Court will quash it as null and void for violating the basic structure of the Constitution.

Justice Katju and Justice Misra have directed the Chief Justice of the Allahabad High Court to stem the rot. But can a Chief Justice alone help improve things without the force of law? They also referred to the syndrome of “uncle judges”. The Union Law Ministry admits that this menace has spread to many High Courts, including those in Chandigarh, Shimla and Jaipur. In its 230th Report (2009), the Law Commission has recommended that in order to eliminate the practice of “uncle judges”, the judges, whose kith and kin are practicing in a High Court, should not be posted in the same High Court. Union Law Minister M. Veerappa Moily should help check this menace.

There is a need to change the method of selection of judges. The collegium system has failed to attract persons of impeccable integrity. The country deserves a more credible, transparent and broad-based institutional mechanism for selecting judges. As the UK Supreme Court had done early this year, our apex court, too, should advertise vacancies in the Supreme Court and High Courts in the newspapers.