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Judicial activism Of corrupt individuals, media trial and justice

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PUBLISHED IN GREATER KASHMIR

The recent past has witnessed a good measure of writs, orders and directions from the Supreme Court of India which could be termed classical examples of Judicial Activism, an expression used invariably to connote meaning when courts pronounce on matters which usually and in the ordinary course of things do not fall within their well defined areas of operation or jurisdiction. Legally the courts in these matters may not be lacking jurisdiction totally, but as a matter of practice which over a long period of time has hardened into an unwritten rule, the courts do not interfere in such matters as are best left to the discretion or powers of the Executive or Legislature.
There might have been instances of judicial activism in the country in the past but then the constitutional doctrine of separation of powers was never lost sight of. The Supreme Court of India while dealing with various matters and while giving new dimensions to the concept of rule of law and taking the concept of rule of law to higher legal heights had always refrained from making pronouncements on matters of public policy followed by the executive. Thus the often spoken about doctrine-of-separation of powers between the judiciary, executive and parliament was respected and clearly kept in mind.
Without going into finer details as to what could be termed as judicial activism or pure judicial functioning and not trying to lay down lines of distinction between the two, let us come straight way to the recent unusual decisions or directions of Supreme Court which have once again brought the debate to the fore. All this started when in the recent past Mr. Subramanium Swami approached the Supreme Court of India seeking directions on to CBI to probe in to the 2 G Scam. In his petition Mr. Swami maintained that he had written to the Prime Minister of India to grant sanction for the prosecution of Mr. Raja the then Telecom Minister but the Prime Minister did not grant the same, he further said that he had written to the Prime Minister in this connection in November, 2008. Till then no FIR was lodged in 2G Scam. One wonders as to how the Prime Minister could grant sanction to prosecute Mr. Raja merely on the petition of Mr. Swami. However, an FIR was lodged in 2G Scam in October, 2009 and the Supreme Court started to monitor investigation into the case. What followed is history.
The accused in 2G Scam where subjected to media trial on the one hand and on the other hand the Supreme Court of India while monitoring the investigation acted in a method and manner, that gave rise to many legal ponderables, for instance that one of the cardinal principles of criminal jurisprudence, ‘an accused is presumed to be innocent till his guilt is proved beyond doubt at the trial of the case’ was given a burial and an impression was created that whatever the investigating agency comes forthwith is the gospel truth and that as if the guilt of the accused was already proved, so much so that the concession of bail to the accused persons was also denied to them. Though the case even if proved, does not carry death penalty not even life imprisonment as punishment. In thousands of cases across the country which are heinous in nature and where the allegations are grave, but do not carry death penalty as punishment accused are enjoying the benefit of bail because in the legal system in this country bail and not jail is the rule, especially at the pre-trial stage. However, in the case under discussion again the cardinal principal of law relating to bail that (bail is not to be with held as a matter of punishment) was given a good bye. That the accused is presumed to be innocent and the presumption of innocence is in favour of the accused till proved guilty beyond any shadow of doubt and he has right to remain on bail as a presumable innocent person, all this and many other principles of criminal jurisprudence and criminal justice system received a burial.
Any one belonging to legal profession with even slight understanding of the criminal jurisprudence and criminal justice system, can safely say that in the heat and dust created by such cases as 2G Scam, the courts of the country have allowed the long respected cardinal principles of criminal justice system to become a causality and in fact have made these so.

 

A pertinent question stares one in his or her eye that as to what purpose of law and justice is served by keeping Kalanmozi in continued judicial custody, would she flee justice if she was allowed bail? Women are allowed bail even in cases which involve death penalty or life imprisonment as punishment. Kalanmozi is an ML P. and very well known person in her own rights and has very strong roots in society. Therefore, there is no reason in law to withhold her bail.
Another disturbing instance is Hassan Ali’s case, why is he still in jail, when the allegations against him are failing apart in spite of what the investigating agency had to publicize about him and in spite of very strong observations of the Supreme Court in his case. He was put to media trial much before his actual trial in a court of law would start and people were given to believe that Hassan Ali is involved in money laundering in a big way and that he is the king pin in the matter of stashing black money in foreign banks. He was publicized to be owing Rupees Seventy Two Thousands crores of income tax to the country by the investigating agency and in a rush perhaps the Supreme Court not only formed a S.I.T. to investigate the black money stashed in foreign banks but also at one point in time observed that why shouldn’t the government invoke terror laws against him. His bail was cancelled and he was jailed. His rights which the Constitution gives him were violated by the very judiciary which is supposed to protect tire fundamental rights of the citizens, which includes the accused persons also.
(The author is advocate J&K High Court)

ORIGIN: http://www.greaterkashmir.com/news/2011/Sep/15/judicial-activism-83.asp

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Why the land acquisition bill is flawed

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GOPAL KRISHNA IN REDIFF NEWS

The Land Acquisition Rehabilitation and Resettlement Bill 2011 argues for a perfect land market, unrestrained urbanisation and industrialization, says activist Gopal Krishna.

On September 7, Jairam Ramesh introduced the Land Acquisition Rehabilitation and Resettlement Bill 2011 in the Lok Sabha within six days of the end of the public comment period on the bill that is to replace a 116 year old colonial law. This bill argues for a perfect land market, unrestrained urbanisation and industrialisation.

It sounds strange that rural development ministry is working for urban development as if latter is unquestionably the pre-condition for the well being of rural people and their ecosystem. Will the prime minister reveal the role of urban development ministry if what rural development ministry is doing is indeed its mandate?

Will Ramesh explain as to whether what he said as secretary, economic affairs, Indian National Congress remains relevant or not? Ramesh, a representative “of a generation that was created by public investment” and as a key player in developing India‘s 1991 economic reforms said in 2001 that “in 1715 they (India) accounted for 25 percent of world industrial output, so it’s always been an industrial nation in that sense of the term.”

Caught in the time warp and frozen with the contested develop-mentality, corporate fund driven political parties and NGOs are out to decisively put the State and the natural resources on sale unmindful of its cognitive and ecological cost and intergenerational inequity that it promotes almost forever. Both ruling parties and most of the opposition parties are hand in glove in this regard.

These anti-citizen entities are acting as if present and future citizens, gram sabhas, panchayats and zilla parishads do not matter. Their responses to enactment of Special Economic Zone Act, 2005 and its implementation is a case in point.

The Special Economic Zones and land acquisition by companies are about generating financial wealth with naked political patronage at the cost of natural and human wealth. The Land Acquisition Act, 1894 has been useful for it. It is indeed “painfully evident that the basic law has become archaic”. It used to be said that company is an artifact of law, it now appears that law such as this is an artifact of companies. Every act of privatisation of the government through legislations like these is quite painful too.

If that is not the case why should State use its sovereign power to acquire land for companies either partially or fully in the name of industrial and urban development or legislate to facilitate the same? If ‘development’ wasn’t a notorious and negative word why has a benign and positive word ‘sustainable’ pre-fixed to it unmindful of this the bill cites developmental imperatives with the assumption of its innocence.

The argument of Cabinet Committee on Economic Affairs that acquisition of land for industrial and urban development is a necessity — is driven by corporate funding of ruling and opposition parties since 2003 when the ban on company donations was lifted. Clause 59 of the Land Acquisition Rehabilitation and Resettlement Bill, 2011 deals with the provision of ‘penalty for obstructing acquisition of land’ seems to be about punishing the protesters and dissenters.

It reads: “Whoever willfully obstructs any person in doing any of the acts authorised by section 9 or section 15, or willfully fills up, destroys, damages or displaces any trench or mark made under section 15, shall, on conviction before a magistrate, be liable to imprisonment for any term not exceeding one month, or to fine not exceeding five hundred rupees, or to both.” Ramesh argues that this is required because “Land markets in India are imperfect.”

Is it a coincidence that Ramesh who is also a member of the Cabinet Committee on Unique Identification Authority of India related issues has introduced UID provision in Section 10 and 36 of the Land Titling Bill, 2011?

Will CCEA and CCUIDAI reveal all the proposed legislations that are aimed at creating property based democracy?

Can parliament, all its standing committees, state governments and state’s legislative bodies ever exchange notes to unearth the legislative web being woven at the behest of transnational financial institutions before it is too late?

In the backdrop of such unanswered questions, the 70-page LARR Bill has 74 Sections and 3 schedules in its English version to deal with the grievance accumulated since 1894. Clause 69 of the bill deals with the ‘Return of Unutilised Land’.

It reads: “(1) The land acquired under this Act shall not be transferred to any other purpose except for a public purpose, and after obtaining the prior approval of the appropriate government, and any change in purpose made in violation of this provision shall be void and shall render such land and structures attached to it liable to be reverted to the land owner.

(2) When any land or part thereof, acquired under this act remains unutilised for a period of five years from the date of taking over the possession, the same shall return to the land owner by reversion;

(3) The appropriate government shall return the unutilised land or part thereof, as the case may be, to the original owner of the land from whom it was acquired subject to the refund of one fourth of the amount of compensation paid to him along with the interest on such amount at such rate, as may be specified by the appropriate government, from the date of payment of compensation to him till the refund of such amount; and

(4) The person to whom the land is returned being the owner of the land shall be entitled to all such title and rights in relation to such land from which he has been divested on the acquisition of such land.”

Dr Usha Ramanathan, a noted jurist, asks, “What happens when they (the displaced) are unable to buy it back” when the unutilised land is returned. This section permits the transfer of land for another public purpose. This particular clause is not acceptable and has to be removed from the draft bill. Unmindful of widespread concern in the academia and among citizens, the bill has been approved in a tearing hurry by the Union Cabinet which gives rise to valid questions about player behind the curtain in the backdrop of declaration of assets by billionaire ministers.

Schedule I of the bill deals with “compensation for land owners”, Schedule II deals with the “list of rehabilitation and resettlement entitlements for all the affected families (both land owners and the families whose livelihood is primarily dependent on land acquired) in addition to those provided in Schedule I and Schedule III deal with “provision of infrastructural amenities” for resettlement of populations “to minimise the trauma involved in displacement.”

Referring to schedule II, Ramaswamy R Iyer, former secretary, union water resources aptly concludes that “The principle of ‘land for land’ has been abandoned” because it is applied for irrigation projects alone that too with a provision that is inferior to the ones made for the displaced in the Sardar Sarovar Project. The Cabinet Committee on Economic Affairs appears to be under undue influence from the funders of ruling political parties both at the centre and the states to exclude projects for power, mining, flood management, SEZ, urban development and several other ‘multi-purpose’ projects that cause displacement. So far neither the ministry nor the CCEA has responded to it.

The bill fails to address the question of transfer of agricultural land to non-agricultural use and the implications for food security although it does refer to multi-cropped irrigated land but it is hardly sufficient. It seems to be pursuing the path of regressive Bihar Agriculture Land (Conversion for Non Agriculture Purposes) Act, 2010 which is facing bitter opposition especially in cases where widely acknowledged and awarded fertile lands are being acquired for hazardous asbestos factories amidst paid news journalism and studied silence of opposition parties in the state.

If this is the fate of a state government whose head keeps referring to Ram Manohar Lohia’s four tier governance, it is understandable why most of the socialist experiments become an exercise in sophistry. Instead of ensuring that private purchases of agricultural land be subject of state regulation from the point of view of land-use, water-use, soil health and food security, such legislations are indulging in a myopic exercise of according priority to creation of financial wealth at any non-financial cost and risks.

Section 2 of the LARR Bill deal with the definition of the expression “public purpose” includes- (i) the provision of land for strategic purposes relating to naval, military, air force and armed forces of the Union or any work vital to national security or defence of India or state police, safety of the people; (ii) the provision of land for infrastructure, industrialisation and urbanisation projects of the appropriate government, where the benefits largely accrue to the general public; (iii) the provision of village or urban sites, acquisition of land for the project affected people, planned development or improvement of village sites, provision of land for residential purpose to the poor, government administered educational and health schemes, (iv) the provision of land for any other purpose useful to the general public, including land for companies, for which at least 80 per cent of the project affected people have given their consent through a prior informed process; provided that where a private company after having purchased part of the land needed for a project, for public purpose, seeks the intervention of the appropriate government to acquire the balance of the land it shall be bound by rehabilitation and resettlement provisions of this Act for the land already acquired through private negotiations and it shall be bound by all provisions of this Act for the balance area sought to be acquired. (v) the provision of land for residential purposes to the poor or landless or to persons residing in areas affected by natural calamities, or to persons displaced or affected by reason of the implementation of any scheme undertaken by government, any local authority or a corporation owned or controlled by the State”. This definition of “public purpose” or common good to destroys “the distinction between private use and public use”.

In a text “Some notes on the Draft Land Acquisition and Rehabilitation Bill 2011”, Ramanathan states that “The eminent domain power in India is not, and in any event should not be, so wide” wherein an inverted Robin Hood is created which takes from the poor to give to the rich.

The draconian black law of 1894 which is proposed to be replaced in the backdrop of massive bitter opposition to Special Economic Zones and environmentally damaging projects in Jaitapur, Haripur, Ghaziabad, Andhra Pradesh, Tamil Nadu, Karnataka, Bihar and Goa where lessons have not been learnt from the bloodshed and violence in Nandigram and Singur.

The proposal to amend the Atomic Energy Act, 1962 in the aftermath of West Bengal’s denunciation of Haripur nuclear power project in the aftermath of Fukushima and abandonment of nuclear power projects in Germany, Japan and other countries is uncalled for. But strangely, the Nuclear Safety Regulatory Authority Bill, 2011 was introduced on September 7 itself without any public comments on the Bill. Both these Bills should be deferred till it provides for moratorium on acquisition of land for nuclear power projects.

Unlike in US, the Supreme Court of India observed, “The Act, which was enacted more than 116 years ago for facilitating the acquisition of land. However, in the recent years, the country has witnessed a new phenomena. Large tracts of land have been acquired in rural parts of the country in the name of development and transferred to private entrepreneurs, who have utilised the same for construction of multi-storied complexes, commercial centers and for setting up industrial units. Similarly, large scale acquisitions have been made on behalf of the companies by invoking the provisions contained in Part VII of the Act. The resultant effect of these acquisitions is that the land owners, who were doing agricultural operations and other ancillary activities in rural areas, have been deprived of the only source of their livelihood. Majority of them do not have any idea about their constitutional and legal rights, which can be enforced by availing the constitutional remedies under Articles 32 and 226 of the Constitution.”

If the bills are not sensitive to these observations in a context of corporate funding to political parties even if passed by the Parliament, they can be struck down by the apex court as contrary to the Preamble of our Constitution.

Admittedly, there is “asymmetry of power (and information) between those wanting to acquire the land and those whose lands are being acquired” but the role of futures markets in land within India and the land being acquired in African countries does not find any mention. Also “asymmetry of power and information” is acknowledged only to be ignored as if it’s a merely an exercise in lip-service. The bill ignores how acquisition of land affects acquisition of water as well. The ministry has failed to provide a white paper on the impact of 1894 Act since its enactment before independence and after independence. A compensation and rehabilitation regime is needed with “reference not to the nature of the project but to the nature of the impact.”

The parliamentary standing committee on rural development must ask for the status of the total land acquired and the total number of internally displaced persons till the introduction of the Bill in Parliament. Without such a paper and data, the ministry’s rush to get the bill passed is an act in haste which generations to come will repent and it will be considered a monumental failure of Ramesh if he does not undertake rigorous outreach before arriving at a research based decision.

Has his ministry bothered to send this bill to all the sarpanchs and mukhiyas of the country in their language to ascertain its implications and provide suggestions? The passage of the bill in its current shape must be deferred till this is done. The minister can check with his ministry, there is a precedent in this regard, a rural development minister had written such letters to sarpanchs.

This author was shown one such letter in a panchayat at a gram sabha meeting of Mendha Lekha, Dhanora tehsil in Gadchiroli district in July-August 2001. It would indeed be a sad commentary on the ministry and the standing committee headed by Sumitra Mahajan of Bhartiya Janata Party if they fail to genuinely reach out to villages before finalising the bill. The bill must factor in the provisions of Article 243 (G) of the Indian Constitution and Panchayat Extension to the Scheduled Areas (PESA) Act, 1996. It must desist from “forced industrialisation” and forced urbanisation.

This is required to deal with an uncertain future being manufactured by real estate, food and water companies to safeguard agricultural land from being grabbed by powerful national and transnational companies that can undermine parliament, state assemblies, gram sabhas, panchayats, zilla parishads and the government for good by depriving us of our food sovereignty. If our legislature can legislate on land use, water use, land acquisition, rehabilitation, resettlement and land titling with the memory of country’s past share in world trade, it will be acting to restore the sovereignty of our Parliament and ensure that companies of all ilk remain subservient to its legislative will.

ORIGIN: http://www.rediff.com/news/column/why-the-land-acquisition-bill-is-flawed/20110913.htm

 


 

Jan Lokpal Bill and Parliament

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SHANTI BHUSHAN IN THE HINDU

Social activist Anna Hazare having a word with his team members Prashant Bhushan and Shanti Bhushan during the fast for Jan Lokpal Bill at Ramlila Maidan in New Delhi.

Is the Bill within the legislative competence of Parliament? Yes.

All provisions in Anna Hazare’s Jan Lokpal Bill are within the legislative competence of Parliament, including the provisions relating to Lokayuktas in the States. Some confusion is being spread in the media that Parliament cannot enact all the provisions of the Jan Lokpal Bill, particularly those relating to the Lokayuktas in the States, a law for which will have to be enacted by the State Legislatures themselves. Any constitutional jurist would confirm that there is no substance in this impression and that Parliament is fully competent to enact all the provisions of the Jan Lokpal Bill.

Parliament can enact any law if the “pith and substance” of that law is covered by any entry in the Union List or any entry in the Concurrent List. Entry 97 of the Union List is as follows: “Any other matter not enumerated in list 2 or list 3 including any tax not mentioned in either of those lists.”

The effect of this is that unless the pith and substance of the Jan Lokpal Bill falls squarely under any of the entries in the State List, Parliament cannot be denied the legislative competence to enact the provisions of the Jan Lokpal Bill. Even a student of law would tell you that the pith and substance of the Jan Lokpal Bill does not fall under any entry in the State list.

One of the entries in the Union List is entry No.14: “entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries.” Article 253 provides that “Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.” The effect of Article 253 is that even if the pith and substance of an Act is squarely covered by an entry in the State List, even then if the enactment is for implementing a U.N. Convention, Parliament would still be competent to enact the legislation.

As the statement of objects and reasons of the Jan Lokpal Bill would show, the object of the Jan Lokpal Bill is to implement the United Nations Convention on Corruption, which has already been ratified by India (http://www.unodc.org/unodc/en/treaties/CAC/index.html).

The definition of “public official” in the U.N. Convention includes any person holding a legislative, executive, administrative, or judicial office, whether appointed or elected. This is quite similar to the definition of “public servant” in the Prevention of Corruption Act, 1988, enacted by India’s Parliament, which covers all Ministers including the Prime Minister, all judges of the High Court and the Supreme Court as well as all elected Members of Parliament and State Legislatures. Incidentally, it may be mentioned that the Prevention of Corruption Act was enacted by Parliament and not by any State Legislature, even though it is applicable not only to Central government servants but also to servants of the State governments. The main object of the Jan Lokpal Bill is to set up an independent authority as required by the U.N. Convention to investigate offences of corruption by all public servants covered by the Prevention of Corruption Act, 1988.

Entry 1 of the Concurrent List refers to criminal law, including all matters included in the Indian Penal Code. As bribery and corruption were covered by the Indian Penal Code, Parliament had full competence to enact the Prevention of Corruption Act.

Entry 2 of the Concurrent List relates to criminal procedure, including all matters included in the Code of Criminal Procedure. Since the investigation of bribery and corruption was included in the Code of Criminal Procedure, Parliament is fully competent to enact a law to provide for alternative methods of investigation of offences under the Prevention of Corruption Act.

Article 8 (2) of the U.N. Convention requires each state that is a party to the Convention to apply, within its own institutional and legal systems, codes or standards of conduct for the correct, honourable, and proper performance of public functions.

Article 8 (5) further requires the states to establish systems requiring public officials to make declarations regarding their outside activities, employment, investments, assets, and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials.

Article 8 (6) further requires the states to take disciplinary or other measures against public officials who violate the codes or standards established in accordance with the convention.

Article 12 (2) requires the taking of measures for preventing the misuse of procedures regulating private entities, including procedures regarding subsidies and licences granted by public authorities for commercial activities. It further requires the imposition of restrictions for a reasonable period of time on the professional activities of former public officials after their resignation or retirement, where such activities of employment relate directly to the functions held or supervised by those public officials during their tenure.

Article 34 of the Convention requires the states to consider corruption a relevant factor in legal proceedings to annul or rescind a contract, withdraw a concession or other similar instrument, or take any other remedial action. It would be crystal clear to any constitutional jurist that even if the Jan Lokpal Bill had not been for the purpose of implementing the U.N. Convention, all its provisions would be squarely covered by the Union List and the Concurrent List.

While one can understand the anxiety of political parties to somehow attempt to dilute the provisions of the Jan Lokpal Bill by reducing its coverage or to weaken it, they owe it to the people of India not to mislead the gullible people that Parliament is not competent to enact the provisions contained in Anna Hazare’s Jan Lokpal Bill. Even the claim that at the least the States are required to be consulted has no basis at all. The Constitution-makers had foreseen that in a federal or quasi-federal country, the States’ views had to be taken into consideration by Parliament when enacting a law. They had, therefore, provided for the Council of States and a Bill cannot be enacted by Parliament unless it is passed both in the Lok Sabha and the Rajya Sabha. The constitution of the Rajya Sabha provides that each State elects its representatives to this House. Thus all States are represented in the Rajya Sabha. The MPs in the Rajya Sabha are there to represent the views of the states on any Bill that comes before it and there is thus an inbuilt mechanism in the Constitution itself to provide for taking into consideration the views of the States on a Bill that is being enacted by Parliament.

(Shanti Bhushan, a constitutional expert, is a former Union Law Minister and member of the Joint Drafting Committee on the Lokpal Bill.)

Origin: http://www.thehindu.com/opinion/lead/article2430078.ece?homepage=true

Half a victory

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Abhishek Manu Singhvi, Indian politician, spea...

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VENKITESH RAMAKRISHNAN  IN THE FRONTLINE

Team Anna wins the first round, but the way ahead in the fight against corruption is full of uncertainties.

“A BATTLE has been won in the campaign for cleansing public life through the rallying of vast sections of people across the country. But a purposive piece of legislation has finally to be passed by Parliament even to rate this victory as truly meaningful. Indeed, the state of peace that has descended after the tumult is pregnant with uncertainties. Uncertainties of such dimensions that no one has a clue as to what this will ultimately deliver.” These words spoken by a key player in the negotiations between Team Anna and the United Progressive Alliance (UPA) government during the tumultuous 12-day fast undertaken by Anna Hazare, which rocked the national capital and most other parts of the country, sum up the mood prevailing among individuals and groups that would play a role in the drafting and passage of a new Lokpal Bill. The government, the big and small opposition parties with representation in Parliament, Team Anna and various other institutions and bodies that have come up with suggestions on the proposed Bill, such as the Aruna Roy-led National Campaign for People’s Right to Information (NCPRI) and the Udit Raj-led Justice Party, all share these uncertainties and the lack of clarity about the future.

At the moment, of course, the prime mover is the Standing Committee of Parliament, chaired by Congress leader Abhishek Manu Singhvi. The committee is expected to take up and initiate negotiations on the various proposals from different sides sometime in September itself. Central to these negotiations are the three points on which Parliament expressed its sense-of-the-House agreement in response to Team Anna’s demands. The sense-of-the-House resolution stated that the issues of “Citizens’ Charter, Lower Bureaucracy also to be under the Lokpal through appropriate mechanism, and establishment of Lokayuktas in the States” would be taken up by the Standing Committee. This process itself has historic dimensions because it is for the first time that the members of the Standing Committee will be discussing the provisions of an already introduced government Bill in response to a sense-of-the-House resolution suggesting incorporation of new provisions.

The mainstream political parties and Team Anna expect this process of the Standing Committee to be completed before the winter session of Parliament. On their part, both Union Finance Minister Pranab Kumar Mukherjee, who emerged as the most important player on the government side during the latter stages of the anti-corruption agitation, and Anna Hazare himself have come up with public postures that have signified a sense of caution and accommodation, which in turn is considered conducive to the smooth conduct of deliberations. In repeated comments to the media after Anna Hazare concluded his fast on August 28, Mukherjee made it clear that the government had bowed before people’s power and its genuine representative leader. Anna Hazare responded by agreeing that there was a lot more to be done peacefully to take the negotiations to the level of fruition. Asserting that “this is only half a victory”, he said he was confident that Members of Parliament would not go back on their word to provide “an effective and strong Lokpal”.

While this sense of accommodation and optimism bodes well for deliberations in the future, large sections of public opinion still harbour apprehensions as to how things will unfold. Speaking to the media immediately after Anna Hazare ended his fast, Infosys founder V. Narayana Murthy hailed the ‘in principle’ agreement of Parliament to the demands put forward by Team Anna but added that it was only the first step. “We have to go through the process of implementation and take it to success. And that is the toughest part. For implementation is the Devil.”

According to Professor Nil Rattan of the Patna-based A.N. Sinha Institute of Political Studies, the apprehensions about implementation have arisen essentially on account of the very track record of the players involved in the process. “Both sides have shown intransigence at different times. While the government has bumbled about from one mistake to another for long spells while addressing the issue, Team Anna had initially taken the obstinate position that nothing short of its version, the Jan Lokpal Bill, would do. The present atmosphere for deliberations could be arrived at only because the government rectified some of its mistakes and Team Anna was ready to come down on some of its demands like bringing the higher judiciary under the ambit of the Lokpal. What is the guarantee that this will stand? Who knows whether sections of the government will embark on some adventurist path again,” Nil Rattan told Frontline.

Indeed, the UPA’s track record in handling the early days of Anna Hazare’s August agitation is pathetic. Almost every section of the government, starting with Prime Minister Manmohan Singh, kept on making mistakes. Interventions by Home Minister P. Chidambaram and Telecommunications Minister Kapil Sibal made matters worse. Finally, Congress general secretary Rahul Gandhi contributed his mite to the rank confusion in the ruling establishment. These mistakes were in many ways directly proportional to the rising popularity of Anna Hazare.

Undoubtedly, the biggest mistake was the imprisonment of Anna Hazare on August 16, that too in Tihar jail, where people like Suresh Kalmadi and A. Raja, who were arrested on charges of corruption, are incarcerated. Subsequently, an official spokesperson of the Congress classified Anna Hazare as a “top to bottom” corrupt person.

Interestingly, the decision to take Anna Hazare to Tihar jail was made in an apparent effort to keep him away from the crowds. The political bosses and the administrative-bureaucratic leadership, especially of the Home Ministry, had reportedly considered different options, such as placing him in a government or private guest house or moving him out to Ralegan Siddhi (his hometown in Maharashtra), but finally decided against all these, fearing that his supporters would gather in front of the guest house or at Ralegan Siddhi. Informed sources said that they finally decided to shift him to Tihar because it was thought that the jail would not be accessible to Hazare’s supporters. But what happened was the exact opposite. Crowds gathered at Tihar in big numbers, forcing the government to order his release.

In the days following his release, and during the fast undertaken by him at the Ramlila Grounds, Anna Hazare was perceived as the symbol of all that is positive in society and in many ways the one-stop solution for all social problems. Various organisations, such as sections of the Rashtriya Swayamsewak Sangh (RSS)-led Sangh Parivar and non-governmental organisations of different hues and patterns of funding, pitched in for crowd mobilisation. Cumulatively, the impact of genuinely inspired participation and motivated organisational mobilisation resulted in massive crowds at the maidan.

Meanwhile, the government made another faulty move: it stated that Parliament cannot give up its supremacy. This when it had undermined Parliament in April by calling Team Anna to draft the Lokpal Bill and keeping the opposition parties out of the drafting committee. While this move was made by the Prime Minister, Rahul Gandhi made a facile attempt to score some brownie points through an intervention in Parliament highlighting the same supremacy-of-Parliament position.

Ultimately, it required the intervention of some youth power from the government side itself to untangle the mess that senior politicians such as Manmohan Singh, Chidambaram and Sibal had created. It was through the good offices of a young Delhi MP, Sandeep Diskshit, that the government built channels of communication with Team Anna and managed to bring about a solution. To start with, Dikshit’s intervention was followed by an appeal from Manmohan Singh to Anna Hazare to withdraw the fast. He made this appeal even while crediting Anna Hazare with valid slogans representing the people’s aspirations.

However, in the euphoria created by this collection of crowds day after day, shrill voices questioning the very legitimacy of political processes and leaderships were heard from the Ramlila podium – from Team Anna leaders including Anna Hazare, Kiran Bedi and Arvind Kejriwal, and supporters such as the actor Om Puri. The campaign was such that it sought to raise visions of an apolitical leadership replacing politics in the country. Voices like those of the social activist Swami Agnivesh, which emphasised the need to accord validity to political leaderships and elected representatives, were fiercely criticised by the volunteers of Team Anna and by sections of the crowd. Agnivesh’s comment that Hazare ought to have responded positively to Manmohan Singh’s appeal was targeted for special vitriolic treatment by many of Team Anna’s supporters.

Despite this, the government persisted with its efforts at negotiation. It was in this process that Pranab Mukherjee’s role came to the fore, even though Chidambaram and Kapil Sibal continued to argue that a tough line would ultimately compel Team Anna to compromise. This tussle on strategy reflected in a different manner within Team Anna too. Though voices like those of Swami Agnivesh had been sidelined, there also developed an impression that Kejriwal and Kiran Bedi were pushing things to the brink. A group within Team Anna, including senior lawyer Prashant Bhushan, took the lead in meeting a number of political leaders, particularly in the opposition BJP and the Left. These initiatives were supplemented by the Mukherjee-led negotiations.

Gradually, sections of Team Anna that had raised a rant against the political class as a whole had to listen to the less aggressive sections. And, it was this that finally led to the discussion of Anna’s demands in Parliament and the final passage of the resolution.

Notably, when Anna Hazare’s fast was withdrawn on August 28 following the passage of the resolution, Kejriwal made it a point to underline the fact that at no point of time had Team Anna sought to denigrate the entire political class as corrupt. While this was sought to be presented as a clarification, many observers perceived the effect of a corrective reverse pressure in this statement.

The passage of the resolution in Parliament and the acknowledgement of Anna’s agitation methods by parliamentarians have evoked high praise, especially from sections of the media, some of whom have described the agitation as the most phenomenal people’s movement to have happened in the history of independent India. In fact, some commentators have even gone to the extent of suggesting that there could be a classification of national politics as pre-Anna and post-Anna phases.

While it is true that the agitation and the fast touched an emotive chord in large sections of the people, including the middle class which has never participated actively in political initiatives, the fact remains that many other movements, ranging from the struggle for land reforms to the empowerment of Dalits, have had more lasting historical impact on Indian society.

Professor Sudhir Panwar, an Uttar Pradesh-based social activist associated with the Kisan Jagriti Manch, who supported the Anna Hazare agitation as a significant effort to initiate a new democratic discourse in the country’s political system, also pointed out that the increased participation of the middle class had helped get enhanced media attention to the movement compared with other grass-roots initiatives such as those of farmers and agricultural workers.

“The fact is the issue of corruption, especially corruption by the political class, is so pervasive and the fight against it has such widespread resonance that even those who have never thought of the country and its people in a larger sense joined in,” he said.

Panwar pointed out that the middle class, which had assiduously kept away from politics and refused to respond to phenomenal political developments such as the demolition of the Babri Masjid and the Gujarat riots of 2002, was triggered into action on political and other forms of corruption also because of the global economic crisis and its impact on day-to-day life.

Panwar emphasised that the leaders of Team Anna should use this opportunity to broadbase the movement with a larger understanding of other social issues and an earnest incorporation of other social movements. “Only then will this have a lasting impact,” he stated.

Naturally, this would involve adopting a more open approach to issues such as the demands of Dalits and backward classes in relation to the Lokpal and looking at broader issues such as the impact of neoliberal policies. Team Anna has announced its resolve to continue struggles in new areas such as electoral reforms, which will include the right to recall and the right to reject legislators. It has also stated that it will strive for decentralisation of power through the greater empowerment of gram sabhas and mohalla sabhas.

A one-line overview of the national political situation in the context of the agitation and the related developments was provided by Pranab Mukherjee when he said, “We are at a crossroads.” It was with this phrase that Mukherjee began his speech marking the beginning of the August 27 debate in Parliament on the Lokpal Bill.

Clearly, as the statement implies, it is time to move with caution to enhance the democratic content of the nation and its institutions and systems. It is a message that applies equally to the largely discredited and beleaguered political class as also to the new civil society players who have had a modicum of success in initiating a corrective process.

And exactly because of this success, Team Anna needs to be extra cautious in what it preaches and practises. For, the hallucination among some of its leaders that India is Anna and Anna is India militates against the very concept of democratic discourse.

Justice Bedi voices concern for subordinate judiciary

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SC RETIRED, JUSTICE HARJIT SINGH BEDI

The Supreme Court Bar Association on Friday organised a farewell function for Justice Harjit Singh Bedi whose official term in office ends on September 5.
Speaking on the occasion, Justice HS Bedi said that the last two decades of his judicial career have been very satisfying. He said that his association with the Bar, such as Chandigarh, Bombay, and the Supreme Court would be a memory that he will cherish forever.

During the speech, Justice HS Bedi commented on the persistent sniping that goes on at the judicial system. Justice Bedi stated, “the criticism is sometimes justified and it has to be accepted in that spirit but I find that some of the remarks are unnecessarily sweeping and uncharitable as my experience shows that for every bad Judge there are many good ones whose contributions are completely ignored.”

Blaming the pressures, under which the Judges of the lower judiciary have to function, Justice HS Bedi said that it was responsible for the Judges to avoid taking decisions in controversial matters.

“The subordinate judiciary is at the receiving end not only from the litigant, as one side has to lose, but also from the public, the politician, the media, from unscrupulous lawyers, and, more importantly, from its superiors in the judicial hierarchy. It is this fear in the lower judiciary that is, in many ways, responsible for the creation of excessive and avoidable litigation in the higher courts as subordinate Judges play safe and let Judges higher in the hierarchy take decisions in controversial matters,” Justice HS Bedi said.

Justice Bedi during his speech also commented on the assessment made on the level of corruption in the judiciary. “We have High Court and Supreme Court Judges making assessments about the extent of corruption in the judiciary and offering widely differing figures from 20% to 80%.  How they come about these figures is a mystery to me. Undoubtedly allegations of corruption leveled against a Judge must be strictly dealt with, and that is invariably the case,” Justice Bedi said.

Chief Justice SH Kapadia, speaking on the occasion said that Justice Bedi has been a distinguished colleague who by joining the higher judicial office had continued the family tradition as his father Justice Jagjit Singh Bedi was a distinguished Judge of the Punjab and Haryana High Court.

The Chief Justice said that the judgments pronounced by Justice Bedi were always well structured and there was no element of judicial overreach. He said that his judgments and speeches were always appropriate and well balanced.

“He never crossed the lakshman rekha. His judgments indicate a very fine balance also between judicial activism and judicial restraint,” Chief Justice SH Kapadia said.

Sen courted trouble as Receiver

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FORMER CALCUTTA HIGH COURT JUSTICE SOUMITRA SEN

For the beleaguered Justice Soumitra Sen of the Calcutta High Court, trouble started in 1983, when the Steel Authority of India Ltd. filed a money suit in the court against the Shipping Corporation of India for sale of Periclase Spinal Bricks lying at the Bokaro Steel Plant.

On April 30, 1984, the court appointed Justice Sen, who was a lawyer at that time, as a Receiver to make an inventory, sell these goods, and keep the proceeds until the case was decided. Between April 1, 1993 and June 1, 1995, he received the sale amount of Rs. 33.23 lakh.

In 1996, though he was entitled to keep only five per cent, Rs 1.66 lakh, towards remuneration, he kept the entire money in a fixed deposit with ANZ Grindlays (which later merged into Standard Chartered) and later transferred it to Lynx India Ltd, a company authorised by the RBI.

On January 20, 1997, another High Court Bench directed Mr. Sen to be the Receiver in another case and to keep Rs. 70 lakh for distribution among workers of Calcutta Fans. But he deposited this amount also in Grindlays Bank. Between May 14, 1997 and August 6, 1997, he issued several cheques to the workers.

On February 26, 1997, he deposited Rs. 25 lakh (from out of Rs. 70 lakh) with Lynx India, which sank. The shortfall was made up by taking Rs. 25 lakh from the SAIL money and depositing it in the Calcutta Fans account

On February 27, 2003, the SAIL filed an application in the High Court asking the Receiver to return the entire sales proceeds and render true and faithful accounts. He failed to do so until he was appointed judge on December 3, 2003.

On August 3, 2004, the High Court appointed a new Receiver, without asking Justice Sen to refund money lying with him till then.

Subsequently on February 15, 2005 when the matter was posted before another judge, he issued notice to Justice Sen for return of the money. On June 30, 2005 after the High Court ordered an enquiry, it came to light that Justice Sen, as Receiver, never filed any accounts, though he was required to do so every six months.

On November 1, 2005 he deposited Rs. 5 lakh. On April 10, 2006, the court directed him to repay Rs. 57.65 lakh, which included an interest of Rs. 26.26 lakh. Justice Sen went on leave and on his return, he was not allotted judicial work. Between June 27, 2006 and September 5, 2006, he repaid Rs. 40 lakh and on November 21, 2006, he repaid the balance amount.

On September 25, 2007, a Division Bench quashed single judge’s order and expunged remarks. The Bench held that there was no material to hold that Justice Sen had misappropriated any amount or made any personal gain.

But on a report from the then Chief Justice of the High court, the then Chief Justice of India K.G. Balakrishnan formed a three-member committee to probe the charge

In February 2008, the in-house committee, found Justice Sen guilty of breach of trust and misappropriation. It said he did not have any honest intention since he mixed the money received as Receiver with his personal money. There was misappropriation, at least temporary, of the sales proceeds.

Acting on the report, he was asked to resign or to seek voluntary retirement, but he declined.

In August 2008, the then CJI, K.G. Balakrishnan, asked Prime Minister Manmohan Singh to initiate removal proceedings against Justice Sen for his misconduct.

On February 27, 2009, 58 MPs of the Rajya Sabha moved a motion seeking Justice Sen’s removal.

On March 4, 2009, the Chairman of the Rajya Sabha appointed a probe panel headed by the then Supreme Court judge, B. Sudershan Reddy.

On September 10, 2010, the committee held him guilty on two counts — misappropriation of money and misrepresentation of facts to the High Court — and recommended his removal.

On August 18, 2011 the Rajya Sabha voted the resolution to remove Justice Sen.

COURTESY: THE HINDU

Calcutta High Court Justice Soumitra Sen resigns

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JUSTICE SOUMITRA SEN & JUSTICE RAMASWAMY

Justice Soumitra Sen of the Calcutta high court resigned on Thursday, five days before his impeachment motion was to taken up in the Lok Sabha.

“I have put in my papers today,” Justice Sen, against whom the Rajya Sabha has approved an impeachment motion, said.

“I have decided not to go to the Lok Sabha and instead put in my papers,” Sen, who was to have appeared before the Lok Sabha on September 5, said.

In his letter to the President, Justice Sen has said that since Rajya Sabha has decided in its wisdom that he should not continue as a judge, he is resigning and wants to live as a common citizen, his lawyer Subhash Bhattacharya said.

The Rajya Sabha had on August 18 overwhelmingly approved the impeachment motion against Justice Sen. The Upper House made history when it initiated the process against the controversial judge  and when it passed by a majority of 172 votes a motion to impeach Justice Soumitra Sen of the Calcutta High Court for misconduct.

After the motion was passed by a voice vote, Rajya Sabha Chairman Hamid Ansari called for a division.

The electronic voting system showed 189 members in favour or the motion and 17 against it. Of the 207 membes present in the house at the time, one abstained. The law required for the motion to be passed by a two-thirds majority of those present and voting.

He has been held guilty on corruption charges by a specially constituted committee.

Justice Sen was held guilty of misappropriating Rs. 33.23 lakh in a 1983 case. 53-year old Sen is now the second judge against whom impeachment proceedings has been initiated when Rajya Sabha takes up the motion.

The first such case involved the impeachment motion in Lok Sabha of justice V Ramaswami of the Supreme Court in May 1993 which fell due to lack of numbers after Congress members abstained.

The first of the two grounds of misconduct against Sen being cited in the motion is misappropriation of large sums of money, which he received in his capacity as receiver appointed by the high court.

The second ground is that he misrepresented facts with regard to the misappropriation of money before the high court.