quarterly news magazine of akhil bharatiya adhivakta · pdf filequarterly news magazine of...

Vitalizing Constitutional

Democratic Institutions&

Vitalizing Constitutional &

Democratic Institutions

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Quarterly News Magazine of Akhil Bharatiya Adhivakta Parishad

VOL. XI ISSUE 44 OCTOBER-DECEMBER 2012

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SPECIAL ISSUE ON

THE THIRTEENTH NATIONAL CONVENTION OF

AKHIL BHARTIYA ADHIVAKTA PARISHAD, BHUBANESHWAR, ODISHA

Nyaypravah ◆ October-December 2012 ◆ 3

EDITORVinayak J. DixitSenior Advocate

•

EDITORIAL BOARDSaurabh Shyam Shamshery

Advocate,Jyotika Kalra, Advocate

Vikramjit Banerjee, AdvocateDr. Amarpal Singh

•

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Disclaimer : Any opinions or views onany contemporary or past topics, issuesor developments expressed by thirdparties, whether in abstract or ininterviews, are not necessarily sharedby editor/publisher. All Disputes aresubject to the exclusive jurisdiction ofcompetent courts and forums in Delhi/New Delhi only.

Editorial 04

Vitalizing our Constitutional and DemocraticInstitutions : Parliament, Parties and Judiciary 07

Need To Vitalize Parliamentary Democracy 12

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Vitalizing Judicial System : Need of the Hour 19

Election Commission : Role, responsibilityand challenges 23

'Comptroller and Auditor General is aninstitution competent to vitalize the Constitution' 26

Mind it, CAG is a Constitutional Institution 29

The Democratic Institutions and theAdivasi Communities of India 32

Legal History of Orissa 36

Role and Responsibilities of PublicService Commission 39

Judicial Reforms – driver for all other reforms 41

Protecting Womanhood : Not By Law Alone 44

Bharat as seen by the West 49

The perceptions of Swami Vivekananda aboutthe social, economic and political state of India 51

Globalization and the Judicial Sovereignty of India 55

xfrfof/;k¡ 59

Madhusudan Das : The Legend Of Odisha 70

Vol. XI Issue 44 October to December 2012

INDEX

4 ◆ Nyaypravah ◆ October-December 2012

Trial by Media

EDITORIAL

India is a democratic state and thepeople are their own masters.People have a right to rule over

themselves or to be ruled in the waythey like and by the people theychoose.

Though, we have a writtenConstitution, what is important is theconcept of constitutionalism. Thecountry may have the Constitution butnot necessarily constitutionalism.Constitutionalism connotes limitation onthe use of power. It imposes restraintsand limitations on the arbitrary exerciseof the power.

The freedom of speech andexpression is a natural right, whichhuman beings acquire on birth.Therefore, it is a basic human right, theright to freedom of expression includesseveral specific rights such as (i) rightto voice one's opinion, (ii) right to seekinformation and ideas (iii) right toreceive information and (iv) right toimpart education. The State is under anobligation to create conditions in whichthe above mentioned rights flowing fromArticle 19 (1) (a) of the Constitutioncan be effectively enjoyed by thecitizens.

Communication needs are very vitalin a democratic society. The Press andother Media have played a great rolein maintenance of rule of law and inupgrading democratic values and ruleof law. The importance of the Press in

a democratic set up can neither beminimized nor curtailed. The confermentof freedom of speech and expressionon the press pre-supposes theirresponsibilities, limitations andaccountability. Today, media is morepowerful, press can gather informationand spread them. The press often goesbeyond the role of communication bytaking the role of a "Watchdog". Thepress watches carefully the affairs of theStates and criticizes the administrationof the Governance. The Press is oftencalled as the "Fourth Estate".

The press is entitled to exercise itsfreedom of speech and expression bypublishing matter which does not invadethe rights of other citizens and whichdoes not violate the sovereignty andintegrity of India, the security of theState, public order, decency andmorality. The liberty of the press isindeed essential for free State.Freedom of press is regarded as the"mother of all other liberties" in ademocratic society, however it isnecessary that the freedom must beexercised with utmost responsibility. Itshould not be treated to createsensation, any attempt to make newsout of nothing, has to be deprecated.

We have seen many controversiesin media. In recent past, we have seenthe media trial of big personalitiesbelonging to corporate and politicalworld. Breaking news is the new coin

The ApexCourt has saidthat under ourconstitution noright in part-IIIof theConstitution isabsolute.Freedom ofexpression isnot anabsolute valueunder ourConstitution.


searched by media. Media trial is notnew now. In the past, Manu Sharma'scase was widely circulated in press.

In Sahara India Real EstateCorporation case, Supreme Courtconsidered the issue of press freedom.The Supreme Court has specificallymade it clear that freedom of expressionis one of the most cherished values ofa very democratic society and freedomof expression is not an absolute valueunder our constitution. The Apex Courthas said that under our constitution noright in part-III of the Constitution isabsolute. Freedom of expression is notan absolute value under ourConstitution. All important values underour Constitution, therefore, must bequalified and balanced against, otherimportant and often competing values.It was mentioned that freedom ofspeech has got to co-relate with fairtrial. The Supreme Court hasconsidered that in appropriate casesone right (say freedom of expression),may have to yield to the other right likeright to a fair trial.

The case of prior restraint wasconsidered in the light of two Judgmentsnamely Reliance Petrochemicals Ltd.Vs. Proprietors Indian ExpressNewspaper Bombay Pvt. Ltd and inthe matter of Naresh Shridhar MirajkarVs. State of Maharashtra.

So far as prior restraint isconcerned, the Indian approach is ofbalancing act. Under our Constitutionno values are absolute. The questionof prior restraint was considered in'Reliance Petrochemicals' in the contextof publication in one of the nationaldailies of certain articles whichcontained adverse comments on theproposed issue of debentures by apublic Limited Company. The validity

premises of District Jail Siwan wouldbe place of sitting of the Court ofSessions for trial of Sessions Casepending against Mr. Shahabuddin. Thereason given in the Notification forshifting to the District Jail as a venuefor conducting the trial against Mr.Shahabuddin was "expeditious trial ofSessions Cases". It was contended onbehalf of Mr.Shahabuddin that, hecannot be denied a trial in open Courtwhere there is presence of the media.The presumption of openness waspleaded, which is very vital in a criminaltrial under the system of justice.Secrecy is inimical to the demonstrativepurpose of the trial process. Open trialassured the public that the proceduralrights are respected and that justice isafforded equally. It was contended onbehalf of the prosecution that thecriminal acts of the person had createdterror, he had earned enemies and theremay be a danger to his life if the trial isconducted in general court. It was alsopleaded that the criminals owingallegiance to Mr. Shahabuddin are likelyto create a law and order problemincluding communal tensions andendanger the life of common publicduring his trial in general Court. It wassubmitted that after assessing the entiresituation, the Notification was issued bythe High Court and by the StateGovernment for sitting andestablishment of Courts for expeditioustrial of cases pending against Mr.Shahabuddin.

The Supreme Court hasconsidered that public access isessential if the trial adjudication is toachieve the object of maintaining publicconfidence in the administration ofjustice. The public have inherentdistress for the secret trials. One of the

of the debentures was subjudice in theSupreme Court. Initially, the Courtgranted injunction against the pressrestraining the publication of articles onthe legality of the debenture issue. Thetest formulated was that any preventiveinjunction against the press must be"based on reasonable grounds forkeeping administration of justiceunimpaired and that there must bereasonable ground to believe that thedanger apprehended is real andimminent". The Court considered theconcept of "clear and present danger".The Court later vacated injunction orderafter the subscription to debentures hadclosed.

In Mohd. Shahabuddin's casereported in 2010 (4) SCC 653, theSupreme Court was seized of thematter of a person namely Mr.Mohd.Shahabuddin who was involved in largenumber of criminal cases right datingback from the year 1990-2007. Mr.Mohd. Shahabuddin was aggrieved byNotification issued by Patna High Courtunder Section 9 (6) of the CriminalProcedure Code declaring that

So far as priorrestraint is

concerned, theIndian approach isof balancing act.

Under ourConstitution no

values are absolute.�

�


demands of the democratic society isthat the public should know what goeson in the Court and the public mayjudge whether our system of criminaljustice is fair and right. The importanceof public trial was noted by SupremeCourt and emphasized the fact that theprimary function of the judiciary is todo justice between the parties whichbrings the causes before the Court.

The Court has said that in cases ofextraordinary nature, the universal ruleof open trial may not be adhered to. Itwas noted that the Jail is not a prohibitedplace for trial of criminal cases, nor canjail trial be regarded as an illegitimatetrial. There can be a trial in jail premisesfor reasons of security to the parties,witnesses and for other valid reasons.The enquiry trial however must beconducted in open Court; there shouldnot be any veil of secrecy in theproceedings. There should not even bean impression that it is a secret trial. Thedynamics of judicial process should bethrown open to the public, at everystage and the public must havereasonable access to the place of trial.

In case of Naresh ShridharMirajkar, Supreme Court dealt with thepowers of Court to conduct courtproceeding in Camera under its inherentpowers and also dealt with the issueincidentally prohibiting publication ofpart of the proceedings of the caseoutside the court by the Media. TheSupreme Court has observed that openjustice is encouraging the faith of thepeople in the judicial and legal system.However, the right to open justice isnot absolute, it can be restricted by theCourt if necessities of administration ofjustice so required.

The Supreme Court considered theratio of the Judgment in the matter of

an absolute value under ourConstitution. Recently the Hon'bleSupreme Court decided the matterknown as 'Mohammed Ajmal AmirKasab'. While writing the Judgment, theSupreme Court has commented on therole of the media. Supreme Court hassaid that the terrorist attacks on TajHotel, Oberoi Hetel and NarimanHouse were covered by the mainstreamelectronic media and shown live on T.V.screen which was not appropriate. TheCourt observed that the terrorists wereentrenched at places and theircollaborators across the border werewatching the full show on T.V. TheControllers came to know aboutterrorist being caught alive from IndianT.V. They came to know about killingof high ranking Officers from IndianT.V. Controllers advised the terroristand gave direction with regard to firing.The Court has recorded many instancesin the Judgment indicating that thecontrollers were watching everymovement of the security forces, whichwere called to tackle the terrorist. TheCourt felt that the conduct of T.V.channels by citing the right to freedomof speech and expression would betotally wrong and unacceptable in suchsituation, therefore, it was held by theSupreme Court that coverage by IndianT.V. channels of the said attack had notserved any national interest or socialcause. On the contrary, the T.V.channels were engaged in their owncommercial interest putting nationalsecurity in jeopardy.

Therefore, there is a need todeliberate and to strike a balancebetween the freedom of press andadministration of justice. ■

– Vinayak DixitSr. Advocate

Naresh Mirajkar in Sahara India's case.The Court said that it is for the particularCourt to decide that trial may continueto be a public trial but evidence of aparticular witness should not receiveexcessive publicity affecting moral of thewitness from speaking the truth.

Trial by Media is the issue causingconcern to everybody. The SupremeCourt considered whether it is desirableto specify the guide lines on reportingby media. However, after taking noteof all the cases in the past, the SupremeCourt in Sahara India's case did not laydown any guide lines on reporting ofcases by media.

It is held in Sahara India's case thatno values are absolute. Free speech inappropriate cases has got to correlatewith fair trial. Article 14 and 21 aresubject to the test of reasonableness,therefore freedom of expression is not

Trial by Media is theissue causing concern

to everybody...However, after taking

note of all the cases inthe past, the SupremeCourt in Sahara India'scase did not lay down

any guide lines onreporting of cases by

media.�

�


Vitalizing our Constitutional andDemocratic Institutions : Parliament,Parties and Judiciary

❑❑❑❑❑ Justice S. Parvatha Rao (Retd.)

It is important to note that in our electoral system, the voters virtually have nopart in selecting the candidates. Independent candidates have bleak chancesof getting elected against the candidates set up by established parties.Therefore, the established political parties are the real culprits for setting upcorrupt, criminal and muscle powered candidates.

Under our Constitution the threebasic institutions of the State are

Legislature (Parliament for the Unionand Legislatures for the States), theExecutive and the Judiciary. The otherimportant institutions are the ElectionCommission, the Controller & AuditorGeneral of India and the Public ServiceCommissions for the Union and theStates. There are also local self-government institutions likeMunicipalities and the Panchayats. Byan amendment in 1976, provisions aremade under part XIV(a) for setting upof Tribunals by a legislation foradjudication of matters mentioned inArt. 323A and Art. 323B. The mostimportant democratic institutionsplaying an important part in the workingof our democracy are political partiesand the media - print and electronic.Informed public/society also have a partin the working of the democracy.

Art. 326 of the Constitutionprovides that elections to the House ofPeople and to the Legislative Assemblyof every State shall be on the basis ofAdult Suffrage; ie. every person whois a citizen of India and who is not lessthan 18 years of age on such date asmay be fixed in that behalf by or underany law made by an appropriateLegislature and is not otherwisedisqualified under the Constitution orany law made by appropriateLegislature on the grounds of non-residence, unsoundness of mind, crimeor corrupt or illegal practice, shall beentitled to be registered as a voter atany such election. Prior to 28/3/1989,the qualifying age was 21 years(reduced to 18 by the 61st AmendmentAct, 1988). It is well settled now thatright to elect, right to contest electionand the right to dispute election are notfundamental rights or common law

rights: they are only statutory rightsregulated by the Representation ofPeoples Act, 1961. The Constitutionhas given the citizens of India only aright to be entitled to be registered as avoter. If he does not get registered as avoter, he cannot vote. Parliamentarydemocracy is a part of the basicstructure of the Constitution.

It is now well recognized thatpolitical parties play an important rolein Parliamentary form of democracy. InKanhiyalal Omar Vs. R K Trivedi[1985(4) SCC 628], Supreme Courtobserved;

"It is true that till recently theConstitution did not expressly refer tothe existence of the political parties. Buttheir existence is implicit in the natureof the democratic form of Governmentwhich our country has adopted. -(They) ultimately help in theestablishment of Westminster type of


democracy which we have adoptedwith a Cabinet responsible to theelected representatives of the peoplewho constitute the Lower House. Thepolitical parties have to be there if thepresent system of Government shouldsucceed --- the working parts ofpolitical system are so organized onparty basis --- That is the essence ofour system and it facilitates setting upof a Government by the majority.Although till recently the Constitutionhad not expressly referred to theexistence of political parties, by anamendment made to it by theConstitution (52nd Amendment) Act,1985 there is now a clear recognitionof political parties by the Constitution".The tenth Schedule to the Constitutionwhich is added by the above AmendingAct acknowledges the existence ofpolitical parties and sets out thecircumstances that a member ofParliament or the State Legislaturewould be deemed to have defectedfrom his political party and wouldthereby be disqualified for being amember of the House concerned".

In the 'Statement of Objects and

Reasons' for this amendment, it wasstated that "The evil of politicaldefections has been a matter of nationalconcern. If it is not combated, it is likelyto undermine the very foundations ofour democracy and the principles whichsustain it -- The Bill is meant foroutlawing the defections". This isvirtually the first corrective to theworking of our democracy introducedto prevent frequent frog - jumping byelected members from one party toanother. In the 1967 elections nopolitical party could secure an absolutemajority to form the Government at theCentre and also in several States. Thisgave rise to widespread politicaldefections by elected MPs and MLAsfor monetary gains and for ministerialberths. A Committee of Defections wasset up to suggest remedial measures toprevent political defections. It gave itsreport on 7/1/1969 observing that inthe short period of 12 months betweenMarch 1967 and February 1968 asmany as 438 defections occurred asagainst 542 defections in the entireprevious period before March 1967,and that out of 210 defecting legislators

of the States of Bihar, Haryana,Madhya Pradesh, Punjab, Rajasthan,Uttar Pradesh and West Bengal, 116legislators were included in the Councilof Ministers which they helped to bringinto being by defections. There weremultiple acts of defections by the sameperson or set of persons and corruptionand bribery were behind most of thesedefections. Between 1967 and 1972,there were about 2000 defections andcounter defections to grab politicaloffice. This exemplifies the quality,character and propensities of theelected representatives of the peoplein the law making bodies of the nation.The Tenth Schedule to the Constitutionbarred individual defections but savedgroup defections.

In the Union of India vs.Association for Democratic Reforms[2002(5) SCC 294] the SupremeCourt considered the decision of theDelhi High Court holding that formaking a right choice it is essential thatthe past of the candidate should not bekept in the dark and that the votershould be informed about:

"1. Whether the candidate isaccused of any offence(s) punishablewith imprisonment. If so, the detailsthereof.

2. Assets possessed by acandidate, his or her spouse anddependent relations.

3. Facts giving insight into thecandidate's competence, capacity andsuitability for acting as a parliamentarianor a legislator including the details ofhis/her educational qualifications.

4. Information which the ElectionCommission considers necessary forjudging the capacity and capability ofthe political party fielding the candidatefor election to Parliament or the State


Legislature."

The Supreme Court held that:"The jurisdiction of Election

Commission is wide enough to includeall powers necessary for smoothconduct of elections, and that theConstitution has taken care of leavingscope for exercise of residuary powersby the Commission in its own right as afeature of the Constitution in the infinitevariety of situations that may emergefrom time to time in a large democracyas every contingency could not beforeseen or anticipated by the enactedlaws or rules, and the Commission canfill the vacuum".

The Supreme Court further held:"The fair election contemplatesdisclosure by the candidate of his pastincluding the assets held by him so asto give a proper choice to the (voter)according to his thought and opinion.As stated earlier, in the Common Causecase [1996(2) SCC 752] the Courtdealt with a contention that elections inthe country are fought with the help ofmoney power which is gathered fromblack sources and once elected topower it becomes easy to collect tonsof black money which is used forretaining power and for reelection. Ifon an affidavit the candidate is requiredto disclose the assets held by him atthe time of election, the voter can decidewhether the candidate can be re-elected even in case where he hascollected tons of money". In the resultthe Court directed the ElectionCommission to call for information onaffidavit (by issuing necessary orderunder Art. 324) from each candidateseeking election to Parliament or a StateLegislature as necessary part of hisnomination paper, furnishing therein

information of the following aspects inrelation to his or her candidature:

1. "Whether the candidate isconvicted/acquitted/discharged of anycriminal offence in the past - if any,whether he is punished withimprisonment or fine.

2. Prior to six months of filing ofnomination, whether the candidate isaccused in any pending case, of anyoffence punishable with imprisonmentfor two years or more, and in whichcharge is framed or cognizance is takenby the court of law. If so, the detailsthereof.

3. The assets (immovable,movable, bank balance, etc.) of acandidate and of his/her spouse and thatof dependants.

4. Liabilities, if any, particularlywhether there are any overdues of anypublic financial institution or governmentdues.

5. The educational qualificationsof the candidate.

Subsequently the Representation ofthe Peoples (Amendment) Ordinance,

2002 was promulgated by the Presidentand later it was replaced by theRepresentation of the Peoples (3rdAmendment) Act, 2002 incorporatingthe amendments under the Ordinance.The Amendment Act introducesSections.33A & 33B with certainmodifications of the directions of theSupreme Court by omitting therequirements relating to disclosure ofassets and liabilities of the contestingcandidates etc. Section 33B providedthat notwithstanding anything containedin any judgment etc of any court or anydirection, order or any other instructionissued by the Election Commission, nocandidate shall be liable to disclose orfurnish any such information, in respectof his election, which is not required tobe disclosed or furnished under this Actor the rules made therein. This wasquestioned under Art. 32 in PeoplesUnion for Civil Liberties vs. Union ofIndia [2003 (4) SCC 399]. It washeard by a three judges Bench, theCourt struck down s.33B as violativeof the voter's fundamental right toinformation under Art. 19(1)(a) toknow the antecedents of the candidateas held in the earlier decision (whichwas also of three judges) in Union ofIndia vs. Association for DemocraticReforms. The Court further held thatthe right of the voter to know the bio-data of the contesting candidate as thefoundation of the democracy. TheCourt referred to the report of the LawCommission submitted in 1999 and thereport of March 2002 of the NationalCommission to Review the Working ofthe Constitution and theirrecommendations. In the course ofarguments in that case, it was pointedout that in 2002 about 700 legislatorsand 25 to 30 MPs were having criminal

The Supreme Court haspointed out time and

again about theimportance of speedytrial of criminal cases

and that depends uponprompt investigation by

independentinvestigating police.

�

�


record. That number has substantiallyincreasing now. It was also contendedthat almost all political parties declarethat persons having criminal recordshould not be given tickets, yet for oneor the other reason political partiesunder some compulsion give tickets tosome persons having criminal recordand some persons having no criminalrecords getting support from criminals.The speech of Shri. Atal Bihari Vajpaiwas also referred to. In that heexpressed that barring exceptions,those who get elected to the democraticinstitutions were neither trained formallyor informally, and that they do not havean inclination to develop the necessaryknowledge and competence in theirprofession.

It is important to note that in theworking of our electoral system, thevoters virtually have no part in selectingthe candidates and almost all candidatesare set up by political parties.Independent candidates have virtuallyno chance of getting elected against thecandidates set up by establishedparties. Therefore, the establishedpolitical parties are the real culprits forsetting up corrupt, criminal and musclepowered candidates. Establishedpolitical parties should make abeginning in bringing a change byselecting good candidates with goodreputation and character in advanceand training them to be goodrepresentatives of their constituenciesand good numbers of the legislativebodies.

The Constitutional Courts aretaking a lead in checking corruption atthe highest places by initiating PILproceedings and in the investigation ofserious cases like 2G scams,Obulapuram Mining scams Now

National Law Universities are set up inmany States. Judicial Academies arestarted in several States and a NationalJudicial Academy is also started atBhopal to train the members ofjudiciary at different levels.

The Law Commission in its 120threport of 1987 and the StandingCommittee of Parliament in its 2002report recommended that the numberof Judges should be increased so thatthe strength goes up from about 10.5to 50 Judges for every 10 Lac people.As these recommendations were notgiven effect to, the All India Judges'Association moved the Supreme Courtand in that case the Supreme Courtdirected by its order dated 21/3/2002that the Judges strength should be

increased to 50 for 10 Lac people in aphased manner within a period of fiveyears and that the existing vacancies inthe Sub-ordinate Courts should be filledup. Even this direction is not yetimplemented. Because of this theproblem of arrears of cases anddelayed disposal of cases continues. In2007, it was reported that out of thesanctioned strength of 725 Judges inthe 51 High Courts, only 597 wereworking and there were 128 vacanciesas on 1/3/2007 and that out of thesanctioned strength of 14,447 Sub-ordinate Courts / Judges, only 11,767were working as on 31/12/2006. Asof now, as per the New Indian Expressof 9/7/2012, out of the sanctionedstrength of 895 Judges of the 51 HighCourts only 629 Judges are workingand 266 sanctioned posts remainvacant. There are six vacancies in theSupreme Court now.

Pressure on the Courts is soughtto be reduced by resorting tosettlements and deciding cases throughLok Adalats and also by AlternativeDispute Resolution (ADR) i.e. throughmediation and conciliation. The disputesand differences are also sought to beresolved through counseling partieseven before they approach Court.

Pendency of criminal cases in theSub-ordinate Courts was about 1.32Crore in 2006 and the strength ofJudges in those Courts was 12,205only. About 19% pending criminal casesare being disposed off each year onaverage. Over 2 Lac under-trials arein prisons, whereas convicts in prisonsare less than 70,000. Not even 45%of the people charged with seriousoffences are being convicted. Becauseof high rate of acquittals in criminalcases, people were losing faith in the

It is important to notethat in the working ofour electoral system,

the voters virtuallyhave no part inselecting the

candidates and almostall candidates are setup by political parties.

Independentcandidates have

virtually no chance ofgetting elected againstthe candidates set upby established parties.

�

�


judicial process. Capacity of theprosecution to bring culprits to bookand secure their conviction has comedown. This was mainly because ofpolitical interference at various levels fortransfer and posting of favourable policepersonnel, misuse of police for partisanpurposes and political patronage quiteoften extended to corrupt policepersonnel, as per the letter dated 3/8/1997 of the then Union Home Ministerto State Governments which wasreferred to by the Supreme Court inPrakash Singh's case, 2006 (8) SCC1. In that case the Supreme Courtreferred to eight reports of the NationalPolice Commission submitted between1979 & 1981, Law Commissionreport of 1994, reports of NationalHuman Rights Commission, RibeiroCommittee, Justice PadmanabhaiahCommittee and Justice Malimath'sCommittee on "Reforms in CriminalJustice System" and the draft outline fornew Police Act prepared by SorabjeeCommittee in September, 2006. TheSupreme Court observed that all theseCommissions and Committees wereunanimous on the issue of urgent needfor police reforms, and that "There is aconvergence of views on the need tohave (a) Security Commission at Statelevel; (b) transparent procedure forappointment of Police Chiefs and thedesirability of giving him a minimumfixed tenure; (c) separation ofinvestigation work from law and order;and (d) a new Police Act which shouldreflect the democratic aspirations of thepeople."

Sorabjee Committee alsorecommended establishment of a StateBureau of Criminal Investigation by theState Governments under the charge ofa Director who shall report to the

Director General of Police (DGP).Most of the Committees recommendedthat for appointment and posting, aPolice Establishment Board comprisingthe DGP of the State and four othersenior officers should be constituted,and that there should be a PublicComplaints Authority at district level toexamine the complaints from the publicon police excesses, arbitrary arrests &detentions, false imprisonments etc. Inview of the gravity of the problem,Supreme Court issued a direction forminimum compliance so as to beoperative till new Police Acts areenacted by the Central and the StateGovernments. The Supreme Courtobserved that: "That the quality of thecriminal justice system in the country

to a large extent depends on theefficient working of the police." In theresult the Supreme Court directed StateGovernments to constitute a StateSecurity Commission in every State, aPolice Establishment Board in eachState and a Police Complaints Authorityat the district level in each State. TheSupreme Court also gave directionsregarding composition of these bodies.The Supreme Court also gavedirections regarding the selection andminimum tenure of DGP of the Stateand the minimum tenure of InspectorGeneral of Police and other officers.The Supreme Court further directed theCentral Government to set up aNational Security Commission at theUnion level for selection and placementof Chiefs of the Central GovernmentPolice Organization etc. The SupremeCourt specifically directed that "Theinvestigating police shall be separatedfrom the law and order police to ensurespeedy investigation, better expertiseand improved rapport with the people,"beginning with town / urban areas whichhave population of 10 Lacs or moreand gradually extended to smaller townsand urban areas also. In spite of theimportance of these directions, veryfew States have implemented thesedirections. This is a reform whichcannot be delayed and the workingof the criminal justice system verymuch depends upon independentand efficient investigating police freefrom any external influence andinterference. The Supreme Courthas pointed out time and againabout the importance of speedy trialand early disposal of criminal casesand that depends upon promptinvestigation by independentinvestigating police. ■

The Law Commissionin its 120th report of

1987 and theStanding Committeeof Parliament in its

2002 reportrecommended that

the number ofJudges should be

increased so that thestrength goes up

from about 10.5 to 50Judges for every 10

Lac people.

�

�


Our Constitution came into force ontwenty sixth January, 1950.

Democracy is one of the elements ofthe basic structure of the Constitution.The experience arising out of theworking of the Constitutionaldemocracy for six decades has shownthat certain weaknesses have crept intothe working of the Constitution whichshould be removed with the object ofvitalising our Democratic System.following are some of them.

Appointment of Prime Minister orChief Minister:-

The appointment of Prime Ministerfor the Union of India and ChiefMinister for each of the States onwhom the good governance at theUnion and the concerned Statesdepends, should be on democraticprinciples. Article 74 of the Constitutionstates that there shall be a council ofministers as Prime Minister as its headto aid and advice the President in

be a person elected by the people andwho commands majority in thelegislative assembly. However, "onaccount of the fact that there is nospecific provision regarding the eligibilityfor being appointed as Prime Minister/Chief Minister, weakness has crept intothe matter & that is persons who arenot elected to the House of the Peopleor to the Legislative Assembly are attimes being appointed. This anomalyshould be removed in the interest ofdemocracy."

Another question which arises inthe context of appointment of PrimeMinister under Article 75 and of ChiefMinister under Article 164 is whetherthe word 'minister' used in clause (5)of Article 75 and clause (4) of Article164 which enables a person who is nota member of the legislature for beingappointed as a minister for a maximumperiod of six months only, whichincludes the Prime Minister or the ChiefMinister as the case may be.

Need To Vitalize ParliamentaryDemocracy

exercising his functions. Article 75provides for appointment of PrimeMinister by the President and otherministers on the recommendation of thePrime Minister. Article 75 (3) expresslyprovides that Council of Ministers shallbe responsible to the House of thePeople [Lok Sabha]. As far as theStates are concerned. Article 163 and164 are corresponding provisionsregarding appointment of Chief Ministerand council of ministers. Article 164(2)expressly provides that council ofministers shall be responsible to thelegislative assembly. Article 75(1) andArticle 164(1) do not specify as to whois eligible to be appointed as PrimeMinister/Chief Minister. However, asunder our constitution we have adopteddemocratic system which presupposesthat a person elected by the people andcommanding majority in the House ofthe People should be appointed asPrime Minister and similarly a personto be appointed as Chief Minister must

❑❑❑❑❑ M. Rama Jois

On account of the fact that there is no specific provision regarding the eligibilityfor being appointed as Prime Minister/Chief Minister, weakness has creptinto the matter & that is persons who are not elected to the House of thePeople or to the Legislative Assembly are at times being appointed. Thisanomaly should be removed in the interest of democracy.


This question first came up forconsideration in a petition in which thevalidity of appointment of TribhuvanNarayan Singh as the Chief Ministerof Uttar Pradesh though, he was not amember of the legislature wasquestioned. This question wasconsidered by the High Court ofAllahabad, on the concession made bythe advocate for petitioner that theword minister used in Article 164(4)includes the Chief Minister. In view ofthis, the High Court held thatappointment of T.N. Singh who wasnot a member of the legislature as ChiefMinister was valid. He and his councilof ministers ceased as he was notelected within six months. The samewas confirmed in appeal by theSupreme Court in 1971 (1) SCC 616on the basis word 'minister' in Article164(4) includes Chief Minister as wasconceded by the Writ Petitionersbefore the High Court. In view of this,in several cases persons who are notmembers of the legislature came to beappointed as Chief Ministers.

After more than two decadesthereafter, the crucial question relatingto the appointment of Prime Minister,under Article 75 came up forconsideration when the appointment ofH.D. Deve Gowda as Prime Ministerwas challenged on the ground that hewas not a member of the Parliament.This question was considered anddecided by a bench of two judges,Chief Justice A.M. Ahmadi and JusticeSujatha V. Manohar and as can beseen from the judgment, the Benchproceeded on the assumption that theexpression minister includes PrimeMinister and therefore as a ministercould be appointed without being amember of the Parliament for a period

of six months, a Prime Minister couldalso be appointed, though he was nota member of the Parliament. In doingso, Article 145(3) of the Constitutionwas overlooked which make itmandatory that for interpretation of theprovisions of the Constitution, theminimum number of judges to sit fordeciding it was five. Article 145(3) wasnot brought to the notice of the Courtand as a result the two judge benchinterpreted Article 75 and upheld theappointment of H.D. Deve Gowda asPrime Minister though he was not amember of the Parliament. This is howthe practice which is inconsistent withthe principles of democracy and alsoregarding the correct interpretation ofArticles 75 and 164 has led to theappointment of a person who is not amember of the Parliament beingappointed as Prime Minister and aperson who is not a member of theState Legislature being appointed asChief Minister.

In the absence of this importantdifference between a Minister and aPrime Minister/Chief Minister broughtto its notice, the Supreme Courtproceeded on the assumption that justas a non-member could be appointedas a minister, a non-member could alsobe appointed as Prime Minister.Subsequently when Bhupinder SinghHooda who was not a member of theHaryana Legislative Assembly wasappointed as Chief Minister, theconstitutional validity of his appointmenthas been challenged before theSupreme Court by AdhivakthaParishad and 13 Senior Advocates ofdifferent parts of the Country pointingout to this difference in Writ Petition[C] No. 168/2005. The SupremeCourt has admitted the same recording

The two judge benchinterpreted Article 75

and upheld theappointment of H.D.

Deve Gowda as PrimeMinister though he was

not a member of theParliament. This... led

to the appointment of aperson who is not a

member of theParliament, being

appointed as PrimeMinister and a person

who is not a member ofthe State Legislature,being appointed as

Chief Minister.

�

H. D. Deve Gowda

�


that judgment in H.D. Deve Gowda'scase requires reconsideration. The saidmatter is still pending before theSupreme Court.

Calling upon the appointed PrimeMinister/Chief Minister to takevote of confidence within the timeprescribed by the President or theGovernor

We have also experienced thatthere are cases in which the Presidentor the Governor appoints a person asPrime Minister/Chief Minister on beingsatisfied that he commands majority inthe Lok Sabha/Legislative Assemblyrespectively and administers oath ofoffice and also appoints ministers on hisadvice, calls upon the Prime Ministeror Chief Minister appointed, to takevote of confidence within a specifiedtime by him. This is wholly unauthorizedby the Constitution. Once a person isappointed as Prime Minister by thePresident or as Chief Minister by theGovernor, the President/Governor asthe case may be becomes functiousofficio. If in a given case, any political

party considers that a person who isappointed as Prime Minister or ChiefMinister does not enjoy majority in thehouse, it is open for them to demandthat he should seek vote of confidence.Further, there should be a cleardifference between 'vote of confidence'and a 'vote of no confidence'. As faras the vote of confidence is concerned,whenever it becomes necessary, itshould be taken without any debate.The practice of a debate for 'vote ofconfidence' is not a good practice anda waste of time as it is intended only totest whether the leader has the majority.Whereas in the case of 'vote of noconfidence', a debate becomesnecessary in support of the reasons forbringing in no confidence resolution.

Necessity of simultaneous electionto State Legislatures and the LokSabha

From the date of commencementof the Constitution, the first fourGeneral Elections to the Lok Sabhaand elections to the State Legislatureswere held together. But in 1971, for

political reasons, the elections to theLok Sabha was separated. Theexplanation for this however has beenthat, in the elections to the Assemblies,the local issues would get prominenceand, therefore, it was necessary tohave the elections to the StateLegislatures and the Lok Sabhaseparately. The argument is ingeniousbut not convincing. The Indianelectorate are quite mature and theyare capable of distinguishing electionsto the State Assembly and to the LokSabha, even if held together as it wasdone in the first four general elections.It is in National interest and also in theinterest of the candidates that electionsto the State Legislatures and the LokSabha should be held together. Thiswill not only avoid enormous electionexpenses and waste of nationalresources, but also avoid disturbanceof administrative machinery both atthe Centre and the States on accountof general elections in one or moreStates every year in which Ministersat the Centre and the States getinvolved. It is also a fact that on


account of frequent election, peopleare fed-up, which has resulted in lowerpercentage of voter turnout.

Fixed election periodAnother problem the Nation has

been facing on account of prematuredissolution of the State Legislatures orthe Lok Sabha for political reasons isthat the elections are held sometimesduring utmost cold winter andsometimes during extreme hot weatherthereby causing considerable hardshipto the electorate, and the party workersas also to the leaders of political parties.Therefore, it is necessary that the periodof election for the Assemblies and forthe Lok Sabha should be fixed in theconstitution without giving any room formanipulation. It should be during themonths of February and March, asduring that period in almost all parts ofthe Country there would be congenialclimate and should be held only oncein five years.

Premature dissolution of electedlegislature:

The Nation has suffered politicaland administrative instability, by way ofholding premature general elections onaccount of political manipulations andanimosity by the abuse of power underArticle 356 and premature dissolutionof elected Legislatures of the States asalso of the Lok Sabha. Apart from this,the election expenses incurred both bythe State and the candidates hasresulted in enormous waste of ournational resources. If a commission isappointed to find out how much lossthe nation has suffered financially rightfrom the date when the power underArticle 356 was misused first time inthe year 1959 in Kerala and thereafter

more than hundred times, the figures willbe astounding. This will show oureconomy has greatly suffered becauseof electoral politics. Our countrycannot afford to indulge in such wastefulexpenditure. Therefore, it is essentialthat the Constitution should be amendedto ensure that the elected StateLegislative Assemblies as well as theLok Sabha cannot be dissolvedprematurely and that they would getdissolved only after the term for whichthey were elected comes to an end.This would also make it obligatory tohold general elections to both LokSabha and Legislative Assemblies ofthe States together.

Problem arising out of no bar fromcontesting from more than oneconstituency:

It is in National interestand also in the interestof the candidates thatelections to the StateLegislatures and theLok Sabha should beheld together. This will

not only avoidenormous election

expenses and waste ofnational resources, butalso avoid disturbance

of administrativemachinery.

�

�

In the absence of any bar on thecandidates to contest from more thanone Assembly or Lok Sabha seat orfor contesting in Assembly seat as wellas the Lok Sabha seat, experience hasbeen that after election if they have wonfrom more than one constituency, theyare required to resign for one seat,retaining only one seat. On account ofthis, State has to bear the expenses ofanother election. Therefore, thereshould be a bar on the candidates fromcontesting from more than oneconstituency in the elections to the LokSabha or the State Assembly, as alsoon contesting simultaneously for theLok Sabha and the State Assembly.

Influence of money should beremoved:

Right from the first general electionin 1952 the influence of money hasbecome a major evil in having a freeand fair elections. These influenceswhich were marginal in the beginninghas now reached colossal scale. It isimpossible for any ordinary citizen withhis ordinary income to contest theelection either to the Lok Sabha or tothe Legislative Assembly. This is themain reason for rampant corruption.Therefore, simultaneous with theenacting of Lokpal for controlling themenace of corruption, appropriateamendments should be made to theRepresentation of People Act toeradicate the influence of money in theelections without which we cannot havea true and fair representation of goodpeople in the Lok Sabha and LegislativeAssemblies.

These loop holes or weaknesses inthe working of the ParliamentaryDemocracy should be removed tovitalise our Democratic System. ■


Hkk"k tks'kh th dh ,d fo'ks"krk ;g Hkh Fkh fd ftls os ns'k] lekt vkSj i=kdkfjrkds fy, t:jh le>rs Fks mlds fy,[kwu&ilhuk ,d dj nsrs FksA vfHk;ku pykrsFksA muds ç;kl ls gh isM U;wt dh tkap gqbZAvkt os gksrs rks esjk ekuuk gS fd rhljs çslvk;ksx ds fy, tuer cukrsA ns'k ds tku&ekusyksxksa dks lpsr djrsA çcq¼ tuer dk fuekZ.kdjrs vkSj dksf'k'k djrs fd yksxksa dk erifj"dr gks ftlls rhljs çsl vk;ksx dhckèkk,a HkjHkjk dj fxj tk,aA

dksbZ Hkh ;g iwN ldrk gS fd çslvk;ksx D;ksa t:jh gS\ çsl vk;ksx dh ekax ijvusd rjg ds Hkze dk vkoj.k iM+ x;k gSAi=kdkj bls ikcanh ds :i esa ns[krs vkSjle>rs gSaA tgka Lora=krk dk okrkoj.k gks vkSjtks LoPNanrk dk :i ys pqdk gks ogka vxjçsl vk;ksx ls ikcanh dk vFkZ fudys rks fiQjdkSu bldk leFkZu djsxkA blds mnkgj.k geijLij ckrphr esa ikrs gSaA ysfdu vthcvuqHko rks rc gqvk tc fiNys lky bankSj esa^çHkk"k çlax* ds volj ij Hkk"kk;h i=kdkfjrkegksRlo ds ,d l=k esa ikfjr çLrko dksçèkkuea=kh dk;kZy; Hkstk x;kA ;g tqykbZ2011 dh ckr gSA rc ogka ,d Js"B i=kdkjgjh'k [kjs çèkkuea=kh ds nÝrj esa gqvk djrsFksA muds ekè;e ls çèkkuea=kh eueksgu flagdks og çLrko fHktok;k x;k vkSj vuqjksèk

rhljs çsl vk;ksx dk xBu D;ksagksuk pkfg,\

❑ jkecgknqj jk; (ofj"B i=kdkj)

rhljk çsl vk;ksx jkg fn[kk ldrk gS lafoèkku dh jkg ij pyus] cS[kkSiQ ljdkj dks ckaèkusvkSj csyxke ehfM;k ?kjkuksa dh lÙkk ij udsy dlus dkA

fd;k x;k Fkk fd i=kdkjksa dk ,d çfrfufèkeaMy bl ckjs esa ckr djuk pkgrk gSA blfy,le; nssaA vusd ckj ;kn fnyk, tkus dsckotwn çèkkuea=kh ls feyus dk le; ughafeyk vkSj gjh'k [kjs ogka ls fudy vk,A tkstkudkjh feyh og lpeqp vthcksxjhc gSfd çèkkuea=kh eueksgu flag bl ckr ls nwjjguk pkgrs gSa fd mudh ljdkj çsl ijfdlh rjg dh ikcanh dk fopkj dj jgh gSArhljs çsl vk;ksx dh ekax D;k ikcanh yxkusdh fgek;r gS\ bls le>us ds fy, ogçLrko i<+s tks ogka ikfjr gqvkA jktuhfrd]lkekftd] vkfFkZd] lkaLdfrd Lrj ij gks jgscnyko esa ns'k dks tSlh ehfM;k pkfg,mldk fu.kZ; rks rc gh lehphu gksxk tcgekjs lkeus iwjk ,d 'kksèkijd vè;;u gksA,slk vè;;u vdknfed ugha cfYd çpfyrdkuwu ds nk;js esa gksuk pkfg,A ;g dkerhljk çsl vk;ksx gh dj ldrk gSA blhdkj.k igyk vkSj nwljk çsl vk;ksx tks cuk,x,] os tkap vk;ksx dkuwu ds vèkhu FksA

igyk çsl vk;ksx çèkkuea=kh tokgjykyusg: dh igy ij cukA bls i=kdkjksa uscuok;kA lalnh; yksdra=k dh ;k=kk esa tks'kq:vkrh dne t:jh Fks muesa ,d og HkhFkkA ml vk;ksx dh fliQkfj'k ij çsl ifj"kn]jftLVªkj U;wtisij] i=kdkjksa ds fy, osruvk;ksx cusA le; vkSj lanHkZ cnyrs gh nwljs

çsl vk;ksx dh t:jr iM+hA mldh fjiksVZ 29lky igys vkbZ FkhA rc çsl dk eryc gksrkFkk&v[kckj] vkWy bafM;k jsfM;ks vkSj mRloiwfrZtSlk nwjn'kZuA vkt çsl gks x;k gS ehfM;kAblesa v[kckj] jsfM;ks] Vhoh pSuy] vkWuykbuehfM;k bR;kfn 'kkfey gSaA vc ;g lekos'khgks x;k gSA bl rjg bls pkSFks [kaHks ugha] igys[kaHks dh gSfl;r çkIr gks xbZ gSA bl rjgehfM;k u, nkSj esa gSA bls ljdkj dh vkfFkZduhfr;ksa ls cy feyk gSA ;g uhfr Hkh 20lkyksa ls gSA ftlesa fujarj lqèkkj] la'kksèku gksjgs gSaA ehfM;k esa Hkh uhfrxr cnyko dsfu.kZ; ljdkj us le;≤ ij fy, gSaA tSlsfons'kh iwath ds ckjs esaA ysfdu ,slh uhfr;kaljdkj ds rnFkZokn dh |ksrd gSaA bl le;dqN elys fcYdqy u, gSaA dqN igys ls pysvk jgs eqís Hkh gSaA ge ;g Hkh tkurs gSa fdigys çsl vk;ksx dks rF; tqVkus esa cgqrdfBukb;ksa ls xqtjuk iM+k FkkA os dfBukb;kamlh :i esa u lgh ij u, :i esa vk ldrhgSaA gekjk er gS fd laln xaHkhj eaFku ls rhljsçsl vk;ksx dk xBu ljdkj ls djok,A gekjk;g Hkh er gS fd uhfr&fu;eu fu;a=k.k ughagksrk] og fn'kklwpd gksrk gS ftlls jkgh,d&,d dne pyrs gq, eafty ij igqaprkgSA lgh uhfr;ksa ls ehfM;k Lora=k gksdj viuklkekftd nkf;Ro iwjk dj ldsxkA

u, lanHkZ esa ehfM;k ds fy, uhfr vkSj

ç


igyk izsl vk;ksx (dk;Zdky&3 vDVwcj1952&14 tqykbZ 1954)

U;k;ewfrZ th- ,l- jkT;kè;{k vè;{k

1- Lkh- ih- jkekLokeh vÕ;j lnL;2- vkpk;Z ujsaæ nso lnL;3- Mk- tkfdj gqlSu lnL;4- oh- ds- vkj- oh- jko lnL;5- ih-,p- iVoèkZu lnL;6- Vh-,u- flag lnL;7- t;iky flag lnL;8- ts- uVjktu@,-Mh- efu lnL;9- ,-vkj- HkV~V lnL;10- ,e- psykifr jko LknL;

izFke izsl vk;ksx dh eq[; fliQkfj'ksa

1- çsl jftLVªkj dh fu;qfDr gksA2- U;wt isij m|ksx ds vkadM+s ds fy, laLFkk cusA3- le;≤ ij çsl ist lhM~;wy fuèkkZfjr gksA4- i=kdkjh; dkeksa ds vuqfpr fu;eu ij jksd yxs vkSj mls

ifjHkkf"kr fd;k tk,A5- ,d ls vfèkd v[kckjksa dks pykus okys vius dkjksckj ds

vkadM+s le;≤ ij çdkf'kr djasA6- foKkiu esa tkylkth naMuh; vijkèk ekuk tk,A7- deZpkfj;ksa ds fy, u;k dkuwu cusA ftlls osru] lsok 'krksaZ

vkSj vU; lqfoèkkvksa dk fuèkkZj.k gksA8- çsl m|ksx ds equkiQs ds vkadyu dh fofèk fuèkkZfjr gksA9- v[kckjksa ds fy, vfuok;Z gks fd os LokfeRo vkSj fu;a=k.k

ds ckjs esa le;≤ ij ?kks"k.kk djsA

u, fu;ked laLFkku rHkh lkFkZd jhfr lscuk, tk ldsaxs tc gekjs lkeus çsl vk;ksxdh fjiksVZ vkSj laLrqfr;ka gksaA* ;g og çLrkogS tks bankSj ds Hkk"kk;h i=kdkfjrk egksRlo esaxaHkhj eaFku ds ckn ikfjr gqvkA ml foe'kZ esadbZ ukeh vkSj vuqHkoh i=kdkj&laiknd FksAblls lHkh lger FksA mlesa jke'kj.k tks'kh usdgk fd fiNys rhl lkyksa esa gekjs jk"Vª jkT;dk pfj=k iwjh rjg cny x;k gSA blfy,rhljs çsl vk;ksx dh t:jr gSA ijkatkW; xqgkBkdqj us dgk fd ikjnf'kZrk ds fy, bldkxBu gksuk pkfg,A vkse Fkkuoh dk er Fkk fdlaiknd laLFkk ds m¼kj ds fy, ;g t:jh gSA,p-ds- nqvk dk fopkj Fkk fd çsl lgh jkLrsij pys blds fy, çsl dh ekStwnk fLFkfr dkvè;;u t:jh gSA ;g dke çsl vk;ksx djldrk gSA lkiQ gS fd ,p-ds- nqvk tSlsvuqHkoh yksx eglwl djrs gSa fd çsl us mYVhjkg idM+ yh gSA bu yksxksa ds vykok ogkagfjoa'k] jkgqy nso vkSj ukeoj flag vkfn HkhcksysA D;k dksbZ lksp ldrk gS fd ;s yksx,slh ckr djsaxs ftlls çsl dh vktknh ijfdlh Hkh rjg ls vkap vk,\ ;s os yksx gSa tksçsl dh vktknh ds fy, yM+rs jguk pkgrs gSaAgka] ;g t:j gS fd ;s yksx vkSj os lHkh yksxtks çsl vk;ksx dh ckr mBk jgs gSa os çsl dh

vktknh ds lkFk tqM+h jk"Vªh;] lkekftd vkSjlkaLdfrd ftEesnkfj;ksa ds çfr Hkh lpsr gSaA;s yksx çsl dh vktknh dks ukxfjd dhvktknh dk fgLlk ekurs gSaA gekjk lafoèkkuHkh ;gh dgrk gSA tc lwpuk dk lekt cujgk gS vkSj lwpuk ds gj lzksr dks [kksyk tkjgk gS rc ;g ugha gks ldrk fd çsl ?kjkuksads ckjs esa lwpuk,a u ikbZ tk,aA ogka tks r;gqvk Fkk mls geus FkksM+k cnykA lkspk x;k Fkkfd ;g çLrko laln dks lkSaik tk,A

laln ds lkB lky esa igyh ckj 6 ekpZ]1975 dks ,d Kkiu vVy fcgkjh oktis;hlfgr dqN lkalnksa ds gLrk{kj ls yksdlHkkvè;{k dks lkSaik x;k FkkA yksduk;d t;çdk'kukjk;.k ds usrRo esa tks tuekpZ gqvk Fkkmldh vksj ls og Kkiu FkkA oSlk gh Kkiuge nsuk pkgrs FksA ysfdu laln dh vkt tSlhgkyr gks xbZ gS mls ns[k&le>dj ;gh mfprle>k x;k fd lhèks viuh ckr çèkkuea=kh lsdh tk,A og ç;kl foiQy jgkA blls ;gvFkZ ugha fudkyk tkuk pkfg, fd ç;kl ghO;FkZ gSA ;g rks le>k tk ldrk gS fd le;cny x;k gSA ,d le; og Fkk tc lalncuh gh ugha Fkh] cuus dh çfØ;k esa Fkh vkSjmls rc varjdkyhu (çksfotuy) laln dgrsFks rc 1 twu] 1951 dks çèkkuea=kh tokgj

yky usg: us ,d cgl ds nkSjku ladsr fn;kfd ljdkj fczVsu ds jWk;y deh'ku dh rtZij ,d tkap vk;ksx cSBkus ds fy, rS;kj gS tksçsl ds cM+s lokyksa dks ns[ksxk] tkapsxk vkSjfjiksVZ nsxkA mlh ckr dks ;kn j[kk gekjsjk"Vªifr usA

MkW- jktsaæ çlkn us igyh laln dkslacksfèkr djrs gq, 16 ebZ] 1952 dks nksgjk;kfd ljdkj tYnh gh ,d vk;ksx çsl ds fy,xfBr djsxhA ljdkj dh jtkeanh vkSj i=kdkjksadh laLFkk vkbZ-,iQ-MCyw-ts- ds çLrko us jaxyk;kA igyk çsl vk;ksx cukA ftlls çsl esayksdra=k ds pj.k iM+sA nwljs çsl vk;ksx us mlyksdra=k ij tks [krjs eaMjk jgs Fks mldhleh{kk dhA mik; lq>k,A vc tks ifjfLFkfrgS mlesa çsl dh nqfu;k iwjh rjg cny xbZ gSAmls le>us vkSj le>kus dh t:jr gSA lclscM+h t:jr rks çsl dh çfr"Bk dh iqu%LFkkiukgSA bldk vè;;u t:jh gks x;k gS fd blle; ns'k&lekt dks dSlk çsl pkfg,A D;kmls cktkj ds Hkjksls NksM+k tk ldrk gSA D;kmls fliQZ equkiQs ds fy, pykus okys yksxksa dsHkjksls NksM+k tk ldrk gS\ loky fliQZ çsl dkugha gSA yksdrkaf=kd Hkkjr dk jk"Vª jkT; viuhvkarfjd lajpuk esa og ugha gS tks gksuk pkfg,Aog gks x;k gS tks cktkj mls cuk jgk gSA


lafoèkku gekjk ,d gn rd vktknh dsliuksa dk vèkwjk gh lgh nLrkost gSA çsl usmls vius ;gka dy rd ftank j[kk FkkAljdkj Hkh lafoèkku dks ekurh FkhA mllslapkfyr gksus dk Hkko çdV djrh jgrh FkhAD;ksafd lafoèkku tks gS vkSj lafoèkku dh tksNfo gS] bu nksuksa esa gkykafd tehu&vklekudk iQdZ gS fiQj Hkh ljdkj lafoèkku dh Nfodks thus dk ges'kk fn[kkok djrh jgh gSAequkiQkokn ds nkSj esa ljdkj us og fn[kkokHkh can dj fn;k gSA ,sls le; esa çsl dhigyh ftEesnkjh gS fd og ljdkj dks ;knfnykrk jgs fd ftl lafoèkku ls og lapkfyrgksrh gS og ,d lerkewyd lekt cukus dkoknk djrk gSA mlh y{; ds fy, yksdra=kdh laLFkk,a cuh gSa vkSj mudks mlls ghfu;af=kr vkSj lapkfyr gksrk jguk pkfg,] ufd fons'kh iwath lsA gks Bhd blds foijhrjgk gSA igys çsl vk;ksx us bl elys ijfopkj fd;k Fkk fd D;k v[kckjksa esa fons'khiwath dks btktr nsuh pkfg,\ ml vk;ksx usbls ns'kfgr esa ugha ekukA fliQZ jhMlZ MkbtsLVdks viokn cuk;kA vc ;g lcls igyht:jr cu xbZ gS fd bl ckr dh Hkh tkap gksfd D;ksa 25 twu] 2002 dks Hkkjr ljdkj usfiazV ehfM;k esa 26 çfr'kr fons'kh iwath dsfy, njoktk [kksy fn;kA vc ;g ljdkj rksmls 100 çfr'kr djus tk jgh gSA loky ;ghgS fd rhljs çsl vk;ksx ls dkSu Mj jgk gS\

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Vitalizing Judicial System :Need of the Hour

❑❑❑❑❑ Jagdeep Dhankhar

The Judiciary holds a uniqueposition in our set up. It is an

integral and vital component of ourdemocratic system. In a sense it is thespinal strength of the democratic fabric.The judiciary is one of the pillars onwhich the edifice of the constitution isbuilt. The special thing about thejudiciary is that it is the guiding pillar ofdemocracy. Inspite of its obviousfailings, the judiciary commandsconsiderable respect and continuesto be a repository of the confidence ofthe people. Unfortunately, the judicialsystem today has almost stoppedfunctioning. The scenario is indeedbaffling. The horrendous arrears ofcases in courts is a disgraceful blot onour legal system, especially the criminaljustice system. The entire Indian justicedelivery system is now in a nearcollapse. Be it the justice deliverysystem existent in criminal side or civilside, there is no hope for justice for thecommon man. People wait for severalyears even to secure adjudication at theprimary level. It consumes decadesbefore there is quietus to thecontroversy. Our constitutional essence

of speedy justice enshrined in Article21 of the Constitution is honoured onlyin breach, not with standing umpteenjudicial fiats by the highest court of theland. How can a nation that believes initself countenance several thousands ofits citizens languishing in jails for yearsawaiting either completion of trial ordecision of their appeal? The spectacleis a sad commentary of the state of ruleof law in the country. The country payshugely on account of delayed, poor andinefficient judicial system in severalfacets including the terms of loss ofmillions of mandays that go in attendingunproductive hearings.

Pathology of the SystemIt may be worth noting that there

are over 16,000 trial courts in ourcountry struggling hard to cope with ahuge pile of over 3 crore cases to bedisposed of. Unfortunately, there is notime bound system to fill the vacantposts of judges and staff much beforethe vacancy occurs or is likely to occur.This system is compounded by the factthat on one hand the sanctionedstrength is awfully inadequate and on

the other hand there are significantvacancies even in the sanctionedstrength. The system of recruitment andappointment of staff and judges is soarduous and lengthy that it takes toolong to serve the desired purpose as aresult of which the courts remain vacantfor a long time adding to the woes ofthe poor litigants and increasing thependency of cases many folds. Indiathus, has to suffer the scourge of theworld's largest backlog of cases.

Backlogging, apart from thereasons stated above, is a product of"Inadequate judge-population ratio"and lack of infrastructure. Reportedly43.22 lakh cases were pending beforethe country's high courts as onDecember 2011. Incidentally, thegovernment in reply to a question inParliament had admitted that there were3.2 crore cases pending before HCsand subordinate courts across thecountry last year. According to theMinistry of Law Justice & CompanyAffairs, the total approved strength of21 high courts and the Supreme Courtwas 895. There were 262 vacancieson July 2012. This means nearly one

It may be worth noting that there are over than 16000 trial courts in our countrystruggling hard to cope with a huge pile of over 3 crore cases to be disposedof. Unfortunately there is no time bound system to fill the vacant posts ofjudges and staff much before the vacancy occurs or is likely to occur.


third vacancies in the sanctionedstrength. This aspect is all the moreserious as the appointments to theseposts have become an exclusivepreserve of the Supreme Court and theHigh Courts after third judges transfercase in 1999 . This does not reflect wellon the intent of those enjoined with thetask.

Article 39A of our Constitutionseeks to secure equal justice and freelegal aid to the poor litigants, thepurpose of this noble provisionhowever seems to be getting defeatedfor want of adequate number of courts,infrastructure like police stations,forensic labs, other necessarywherewithals to secure speedy justice,time bound system of appointment,promotion of judges & supporting staff,machines, libraries and chambers of thelawyers as also for want of provisionof litigant's sheds with facilities of toilets& drinking water etc. etc.

Endeavours for SolutionDuring the tenure of Shri Atal

Bihari Bajpayee as Prime Minister, anovel experiment aimed at clearing themassive backlog in court cases hadbegun in the country with the setting upof nearly 450 'fast track' courts invarious states. This number went upto1,700 over a period of time. Fast trackcourts were meant to expeditiouslyclear the colossal scale of pendency inthe district and subordinate courts undera time-bound programme. The fasttrack courts worked well in terms ofdisposal of pending cases. However,the Government of the day came outwith a policy to stop funding 1700 fast-track courts, which were created adecade ago to speed up trial in pendingcases. The Supreme Court, whilesustaining the aforesaid policy directed

the Centre and states to create 10%additional posts in lower judiciary. Itis noteworthy that the move of theCentre to disband existing fast trackcourts and not to sanction any budgetfor any more fast track courts to beset up is a grave pointer to the scantregard of the government towards thehealth of the justice dispensationprocess.

The Honourable Supreme Court ofIndia in All India Judges Associationcase observed a decade ago that thejudge strength should be increased by10 per million people every year for 5years to meet at least the desired ratioof 50 to a million people. Thisexpectation did not fructify. Thesituation has only shown a downwardtrend. The Law Commission in its 120thReport recommended that the strengthof judges per one million populationmay be increased to 50 judges permillion population. There was nolooking up. It might be instructive tonote that our 'judge-population ratio'is behind even that of Bangladeshwhere there are 12 judges for every10 lakh people.

Our Constitution has not givenpower to the Supreme Court toexercise superintendence over the Highcourts or subordinate judiciary.However, by virtue of articles 227 and235 of Constitution, High Courts arevested with power to supervise the

working of all subordinate courts. Byand large no notice is taken of pitiableconditions under which the subordinatecourts work. The most these HighCourts do to discharge theirconstitutional obligation towardssubordinate courts is often to resort tohigh sounding rhetorics to exhortsubordinate courts to dispose of casesexpeditiously without paying any heedto their ground realities. Thesepreachings are divorced from theground realities and hence fail to haveany impact whatsoever in sprucing upthe system. Disposal mania in the nameof "speedy justice" or "justice delayedis justice denied" also does not augurwell for the qualitative dispensation ofjustice. There are inherent dangers inthe statistical disposal. One cannotdispose cases for the sake of numbersas this for sure ruins the system. TheHigh Courts often prescribe disposalof a certain number of cases by the TrialCourts generating pressure on the TrialCourts thus impacting justice thewrong way. It becomes a case of'Justice Hurried is Justice Buried".

For independence of judiciary it isquintessential that it is free from anyform of executive interference.Executive interference in criminal justicesystem is also a cause for worry. Anindependent judicial system andimpartial criminal investigationalmechanism are hall mark of a functionaldemocracy. These constitute spinalstrength of the rule of law doctrine. Inan astoundingly inappropriate andunprecedented move the former UnionLaw Minister indicated through mediathat the CBI would not oppose the bailplea of some accused ( including theDMK MP Kazimozhi) in the 2G scam.The law does not permit the Union LawMinister to act in this manner. His fiat


to the CBI cannot be legally premised.To the shock of those subscribing tothe rule of law, the agency succumbedto the unconstitutional tactics of theUnion Minister. The CBI, rather thanrepelling the unwholesome move, actedin consonance with the wishes of theUnion Minister and did not oppose thebail pleas of these 2G accused.

Former Union Home Minister whohad on umpteen occasions highlightedthat NIA is independent and beyondhis control had no hesitation in indicatingin public domain that bail pleas of theMalegaon accused, who suffereddetention also owing to theirconfessional statements, would not beopposed by the NIA. and the NIAobliged by complying this interventionexecutive fiat, indeed a low ebb in thedischarge of constitutional functions.This also marked the beginning of theculture of politics of bail.

The blatant interference by theUnion Ministers, the constitutionalfunctionaries, constitutes whollyunwarranted interference in the workingof the criminal justice system and fullyexposes the myth of independence ofthe CBI/NIA and other investigatingagencies. Their interference makesmockery of the independence of theinvestigating agencies.

We are witnessing with gain theincursion of technology in our daily life.This has eluded the judiciary at theprimary level. Lakhs of people use itdaily with the Railways to find the statusof their reservation. It is for surefeasible for a litigant to know the dateof hearing and status of his case in thismanner. Technology would destress thesystem. Whatever steps have beentaken to inject technology in the justicesystem are only on paper. Even theelementary infrastructure is lacking.

Technology can be used to help alayman understand laws andinformation on citizens' rights. Practicalmeasures should be adopted, such ascomputerization of court files.Experience from Karnataka suggeststhat the computerization of case fileshelps in reducing immensely theworkload of the single judge. It alsospeeds up the administration of justice.This mechanism would promotetransparency.

The Government recently approvedthe setting up of 'National Mission forJustice Delivery and Legal Reforms'that is aimed at increasing access byreducing delays and arrears in thesystem and enhancing accountabilitythrough structural changes and bysetting performance standards andcapacities. However, the impact of thisproject is still to be effectively felt. Theobjective of the Mission is to increaseaccess to justice by reducing delays andarrears in the system and enhanceaccountability through structuralchanges and by setting performancestandards. While our existing courts arein bad shape, avoidable expensiveinnovative steps such as "GramNyayalayas" are being launched only

to buttress political prospects. Thereare no adequate budgetary provision sfor the judiciary.

A Supreme Court benchcomprising Justices Markandey Katjuand Gyan Sudha Misra quoted WilliamShakespeare to say "something isrotten" in the Allahabad High Court andthat it needs to be cleaned up.. Theyreflected "We are sorry to say but alot of complaints are coming about kithand kin practicing in the same court andwithin a few years of starting practicethe sons or relations of these judgesbecome multi-millionaires, have hugebank balances, luxurious cars, hugehouses and enjoy a luxurious life," theApex Court said without naminganyone. This unwholesome scenario isvirtually all pervasive. It has come to belabeled as "Uncle Judges Syndrome." Atperiodical intervals the issue is agitatedby the Bar Associations and the BarCouncils. However, no concertedendeavour has thus far taken place tocleanse the system of this menace.

State and its instrumentalities are amajor litigant at all levels. A study willreveal that progeny/associates ofjudges, senior politicians andbureaucrats manage to be positionedas Government Counsels, PanelLawyers and even top Law Officers ofthe Government. A vast fleet ofcompetent professionals are thuspainfully deprived of a level playingfield. It does not require any greatintellect to decipher as to how the rawprogeny of these bigwigs inspireconfidence of the corporate andMNCs as also the Government. This"industry" must not flourish in nationalinterest.

Questions of AccountabilityThere is no system for disciplining

Judge strength shouldbe increased by 10per million people

every year for 5 yearsto meet at least the

desired ratio of 50 to amillion people.

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corrupt judges. Impeachment is next toimpossible. One cannot even registeran FIR against a judge taking bribesopenly without the prior permission ofthe Chief Justice. There is no mannerof public accountability procedure,grievance reported by the public, nomonitoring or periodic performanceaudit and its annual reportage and publicdiscussion by concerned organs. On topof these, any serious criticism of thecloistered judiciary is Contempt ofCourt which legitimates as inhibitiveculture against exposure of 'robbed'misconduct. No systematic methodexists for the public to report and noopen means of proceeding by anyauthority against a Judge whoseculpable indiscipline deserveinvestigation, inquiry and action uponproof. There is a need to have animplementable mechanism of dealingwith the misconduct of judges.

The present constitutionalmechanism of removal of Judges bringsinto play the role of the Legislature andthus of politics. On an issue of suchmomentous import, the Congress party,then the ruling party at the centre,abstained from voting in the motion toremove Justice Ramaswami. How cana responsible political party have noviews on such an issue and just abstain?The evolution of an implementablemechanism is log jammed. There is noheadway on one pretext or the other.It is important to keep the judiciary inthe purview of scrutiny. Judges in theirconduct in some cases areincreasingly resembling ordinarypoliticians. There are media savyjudges. In one case a judge wasvirtually cajoled in to contesting thenext Lok Sabha Election from theplace where he attended a publicfunction. Intermingling with the media

and politicians which was earlierunheard of is now routine. The surestway to degenerate any institution is toimmunize it from accountability.

The manner of makingappointments particularly to the HighCourts and the Supreme Court needsa relook. In a minimal sense, theselection of Judges of the highest courtis done in an unprincipled manner,without investigation or study of theclass character by the members of thecollegium. There has been criticism ofthe judges so selected, but the collegiumis not answerable to anyone. Patronageaccording to some is in full swing.Appointment of kith and kin of judgesis being made in a manner to placatethem and thereby polluting the system.The institution of the "Chief Justice" ofa High Court has in the processbecome a vulnerable pawn. Manyrecommendations can only beexplained with the keenness to reachthe highest court. There is a need tohave a relook at the manner in whichappointments are made. Judgeshipshould not be a gift of the collegiums.

The present mechanism, that is howtwo-decades old, whereunder "judgesappoint judges" has not made anywholesome impact on the system. In asense, it has given rise to a new cultureof 'patronage'. This judicial incursionin the domain of the executive was onaccount of the weaknesses that hadvisited the Legislature in the aftermathof the "Bofors Controversy". It is hightime the situation is restored to itsappropriate original.

Post-Retirement AssignmentsPost retirement positioning of the

judges is a cause of major worry as itseriously cuts into the essence ofindependence of the judiciary. Framers

of our constitution never visualized anysuch degeneration. They, throughArticle 319, provided that theChairman or member of the Union orState Public Service Commission shallnot be ineligible for further employmenteither under the Government of Indiaor under the Government of a State.The purpose was to insulate them fromallurements while they discharge theironerous functions. It is in circulation thatthe executive obliges only pliant judgeswith post retirement assignments. Bethat as it may, not all who retire are soaccommodated as the avenues aremuch fewer. Thus there is a "pick andchoose" mechanism. This unwholesomemethodology of placating by doling outpost retirement assignments needs tobe done away with.

The nation is also paying a hugeprice for its poor justice system in thefield of commerce. Our justice systemis virtually "dreaded" and this hasscared investments. It is note worthythat foreign investors opt for arbitrationoutside the country so as to escape the"nightmare" of our system. Toning upof the justice system would be a gainfor all. It does not take much either interms of efforts or finances. Adetermined missionary zeal can realizeour constitutional goal of speedy justice.The sooner it is done, the better for thenation.

It needs to be remembered that noorgan or institution howsoever great orimportant it may be, can work properlyand deliver goods unless adequatelyequipped and strengthened,commensurate with the mandateassigned to it under the Constitution.An ailing institution itself ridden with ahost of impediments and constraintscannot measure upto constitutionalexpectations. ■


Election Commission : Role,responsibility and challenges

How do you analyse the role ofElection Commission in presentscenario?

The role of Election Commissionas on the date is to havesuperintendence direction and controlof the entire electoral process.Superintendence, direction and controlmeans that you are not to do the thingsyourself but you have to supervise overthe situation. If the Election Commissionbecomes so active and conducts theelection itself, the role is that of executiveand not of superintendent, director orcontroller.

In the present days, what are theproblems before the ElectionCommission?

Problems have been createdbecause of the language used in theconstitution which does not providespecified procedure to be followed by

residences for party work. Today wefeel all elections prior to Sheshan eraas fraud on the constitution andimmoral. It is a welcome step when allthis was changed. But it should havebeen changed appropriately. TheElection Commission could not haveassumed wide powers akin to thedictator during the time when theelection process is on.

In the year 2009 General electionsshowed that 275 serious criminalcases were pending against 76 ofthe successful candidates, how wecan stop such types of candidatesto participate the election?

It is very difficult to stop a personagainst whom criminal cases arepending from contesting election, if weaccept the principle that nobodyshould be deemed to be guilty till hehas been held to be so by court of law.

There is a great confusion about what can be done or can not be done by theElection Commission and from time to time peculiar problems have arisenand have been taken to the court expecting the court to define the roll of theElection Commission every now and then.

Akhil Bharatiya Adhivakta Parishad in its 13th National Conference isendeavouring to explore the role played by Election Commission inindependent India. Mr. Amit Singh Sisodia, Advocate, High Court of M.P.Bench, Indore on behalf of Nyayapravah took an interview of Justice Kokje,former acting chief Justice of Rajasthan High Court and former Governor ofHimachal Pradesh.

the commission.T.N. Sheshan introduced for the

first time the concept of model code ofconduct. Earlier the governmentmachinery was freely used by the rulingparty and all the development planswere declared during election process.The ministers used to stay in circuithouses, they use to use their official


We cannot on the basis of pendingcases declare a candidate disqualified.Therefore, according to me thereshould be speedy trial in case ofpolitician and those who want tocontest election. The basic principleof law must not yield to populardemands and branding of a personguilty even before the court haspronounced against him is notjustifiable in any circumstances. Ifpendency of the case is taken to be adisqualification there will be a spateof motivated criminal cases againstpoliticians and no one will be able tocontest election in that scenario.Another issue is role of moneypower in election. Section 77 of theRepresentation of People Act 1951whether should be amended forstopping of the black money in thepolitics?

You see once the money is shownby the political party to have beenreceived by it, it does not remain black,it becomes accountable. Money willcontinue to be a power in the societyso long as people are after money. It isvery difficult to eradicate influence ofmoney in elections and so long as thecitizens do not vide under the allurement

of getting money its menace cannot beeradicated. For fighting elections,money is necessary because withoutmoney a candidate cannot reach everyvoter in the constituency. In aconstituency having lacks of voters it isdifficult for a candidate to contact eachone of his elector without spending anamount of money on publicity andpropaganda. If direct elections arereplaced by indirect elections, theinfluence of money can be brought

down to some extent but even then ifthe number of voters is small, thecandidates will try to influence thevoters again.

What do you think aboutcompulsory voting?

There is no need to make itcompulsory. The question is when avoter is not able to decide to whomvote is to be given. It is one and thesame thing whether A is elected or Bis elected.

Right of rejection can be introducedas an electoral reform?

There is no question of rejection.It is inviting chaos. You have to acceptruler. It is your right to chose and youmust choose. I want to vote the part ofthat vote that is both equally good andequally bad and I have no choice whyshould I use my power which leadsnowhere. Nothing can be achieved bythat.

Are you satisfied from thefunctioning of the ElectionCommission?

To a larger extent I am satisfiedkeeping aside the abortion and thewhimsical orders made at time. Thevery same officers who work withgovernment, they have discharged theirduties impartially and I think it is acompatible role.

What do you think about quasi-judicial function of the ElectionCommission?

Whatever the functions they havebeen given is under the enactment underthe constitution or other enactmentwhether they have discharged properlyso it will depend case to case whether

The basic principle oflaw must not yield to

popular demands andbranding of a personguilty even before thecourt has pronounced

against him is notjustifiable in anycircumstances.

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they discharge properly or not. Generalremarks cannot be passed whetherthey have acted well or not. I think thosequasi judicial things like rejecting thenomination paper, declaration of result,what everyone should follow principlesof natural justice because they are partof process. According to due processshould be done.

What is role of EelectionCommissions for free and fairelection?

As I said article 324 vests in themthe superintendence, direction andcontrol all elections matters i.e. theirrole and because they have been doingimpartially and it results in working wellthey have important role.

What do you think about theprocess of registration of politicalparties in Election Commission?

According to me it is very difficult.This is a very important aspect that weare having democracy in which they are

parties, national parties, regional partiesthat do not have internal democracy.Therefore there should be lawregulating political parties. If you openshop there will be 20 inspectors whowill supervise your work. If you opena political party there is no such control.There has to be some regular authoritywhich regulate the political parties andconduct the elections freely. ElectionCommission has the power to superviseinternal election of the political parties.A party does not hold electionaccording to its own constitution thenit should be debarred.

Do you think the electoral reformis the only way to approach toeffective democracy?

Politics has now become a full timeprofession. There was a time whendoctors, lawyers were part timepoliticians. It is now a full time job andshould be recognized as a profession.Machinery should be established.They can rule the country very well.

They will be governed by certainthings. Today politicians are notgoverned by anything. Because thereis no body over it. If you are in jailyou still remain a politician. If you aredebarred from elections all these thingswill have to be stopped. He should bedebarred from following otherpoliticians. Now a days all politicians,agriculturists, lawyers, doctors are inthe profession of politics.

What are the suggestions you maygive for electoral reforms?

The first thing is that they have todefine the role of the ElectionCommission. What is exactly theirrole. What they can do and theycannot do. Nothing should be left totheir own will. Other thing is that thereshould be law to regulate politicalparties. It should be made aqualification that if you want to contestelection you will have to enroll aspolitician. If this is done, half of thetrouble will be over. ■

Pravasi Bhawan, 50, Din Dayal Upadhyaya Marg, New Delhi-110002.Ph. : 011-23213469

E-mail : [email protected] visit us at : www.adhivaktaparishad.org

Nyayapravah invites articles in Hindi or English (along with a photograph and a

brief introduction of the author), suggestions, comments, interview, photographs

and letters for publication in its upcomming issues.


'Comptroller and Auditor General isan institution competent to vitalizethe Constitution'

An interview with Sri T. N. Chaturvedi, former Comptroller and Auditor General(CAG) of India and former Governor of Karnataka.

Among the several institutionsenvisaged in the Constitution of

India, the Supreme Audit Institution(SAI) otherwise known as theComptroller and Auditor General(CAG in short), has gained immensecontextual importance. When theConstitution was put in place in 1950,the institutions which became thecynosure of all eyes were the threepillars of the State viz Legislature,Executive and Judiciary. As theRepublic proceeded with its odysseyin the high seas of democracy, the issueof functional autonomy of otherconstitutional institutions like PublicService Commission, ElectionCommission, Finance Commission,Comptroller and Auditor General etc.began to hog the limelight. Economy isthe prime mover of a State and itsGovernment. The Government as thecustodian of national and individualinterests takes mandate from theLegislature for spending every pie dulyaccounted with the Public Exchequerthrough the process of budgeting. TheBudget is the Annual FinancialStatement showing receipts andexpenditure on major Heads of

Account operated by differentdepartments for purposes endorsedearlier. Whether the amounts soallocated are spent correctly byconforming to the standards of quantityand quality is examined by the CAG.Aberrations, deviations, failure,wrongs, mismanagement, mis-utilisation etc. are examined by theCAG microscope. A Report issubmitted to the President for causingit to be laid before the Legislature everyyear.

For the first time in the eighties, the

institution of CAG began to draw theattention of the public. The Boforscontroversy was a bomb exploded bythe CAG; the reverberations of whichare heard even today in the corridorsof power. The person who wasinstrumental to this new discovery ofthe latent power of this constitutionalinstitution and the vitality it embodiedwas the then incumbent – Shri. T. N.Chaturvedi. A civil servant parexcellance, Shri. Chaturvedi who wasin the know of things pertaining to theadministration of the nation through hisreport on the faulty accounting ofDefence purchases in which BoforsGuns was a major item opened up asupreme controversy which ultimatelyassumed political proportions and ledto historic events. Today, the Office ofthe Comptroller and Auditor Generalis in the limelight and the institution hasconsolidated its power beyond anyincursions.

In connection with the forthcomingNational Conference of Akhil BharatiyaAdhivakta Parishad, the office holdersof the Supreme Court Unit of theAdhivakta Parishad – Senior AdvocateDr. K. P. Kylasanatha Pillay, President,


Advocate Rajiv Singh, GeneralSecretary, Advocate Barun Sinha,Member Executive, on behalf ofNyayapravah met Shri. Chaturvedi athis residence in Delhi where the latteropened up his mind and disclosedmatters of interest regarding thefunctioning of the Comptroller andAuditor General. A few excerpts of thediscussion with relevant commentary isgiven hereunder as the same shedsmore light on the institution ofComptroller and Auditor General.

The institution of CAG is of latefiguring in the news and drawingimmense public attention. Whatare the reasons for thisdevelopment ?

The CAG or the Supreme AuditInstitution is a professional Auditingbody which can trace its existence toabout 150 years. The British gave greatimportance to accounting. When Indiabecame independent and theConstitution was enacted the institutionof Comptroller and Auditor Generalwas accommodated within theconstitutional scheme. Chapter 5 PartV from Articles 148 to 151 of theConstitutions specifically deals with theestablishment, functioning and natureof the institution. In the beginning, theinstitution worked as a routine auditingagency. So also the quantum of publicfund was scant when compared to thepresent day. As the PlanningCommission and the GovernmentDepartments embarked upondevelopmental projects incurring hugeexpenditure and as the economyqualitatively grew the amounts involvedbecame huge. This optimized thefunction of the CAG. It became anagency of surveillance in the matter of

public expenditure accountable to theParliament. In the eighties the CAGReport on the Bofors Gun dealunearthed unanswerable deviations andfailures by the decision makers and theauthorities involved. Thereafter theCAG became a prominent institutionfunctioning as a watch dog of theeconomic health of the nation. The restis present history.

Do you mean to say that the officeof the CAG has worked without anypartisan interest at all in thepresent issues?

There is no question of any partisaninterest to the CAG while tackling thequagmire of financial transactions. Hisstyle is to be dispassionate, objective,balanced and rational to the core. This,I believe has been the dominant qualityof functioning of the present CAG also.

Can you explain the functionaldynamics of the auditing processundertaken by the CAG ?

The CAG prepares a Calendar forevery financial year, tries to adhere tothe same as far as possible. In theStates, the Accountant General is theChief Auditing Officer. CAG and AGswork in coordination with theGovernment departments and CAGalso works in consonance with theworking of Public Accounts Committeeof the Parliament. The CAG preparesquestionnaire and circulates this to allGovernment departments and calls forresponses. This is followed by physicalverification through inspection andraising of queries. The queries arecommented by the concerneddepartment. This process leadsultimately to the preparation of thereport of the CAG which is to besubmitted to the President forpresentation before the Parliament.

Do you mean to say that theconstitution makers had intended togive the office of CAG greatprominence in the scheme ofthings?

The very fact that CAG has beenincorporated in Part V of theConstitution dealing with premierinstitutions like Union Parliament, UnionExecutive and Union Judiciary isevidence sufficient to underline theimportance given to the institution.Article 124 of the Draft Constitutiondealt with CAG. The members whotook part in the deliberations like T. T.Krishnamachari, B. Das, R. K. Sidhwa,K. T. Shah etc. had attempted todissect and display the significance ofthe institution.

What exactly is the work doneby the CAG in the matter ofauditing?

Government as thecustodian of national

and individual intereststakes mandate from the

Legislature forspending every pieaccounted with thePublic Exchequer

through the process ofbudgeting.

�

�


To answer this question truthfullyand figuratively, I would say that theCAG is holding a mirror unto theGovernment where every ministry seesthe manner in which the Parliament’smandate has been respected in thematter of public expenditure.

There is a section of public opinionholding that CAG is becominghyperactive ?

When you understand that youhave done a wrong through thecomments of another you getinfuriated. When CAG calls a spadea spade in public expenditure thosewho failed in the test indulge ingimmicks. The Audit Report has ledto several instances of public interestbeing saved and secured.Veeraswamy’s case decided by theSupreme Court is one instance, BoforsGun deal is another instance. Thencomes a cavalcade of scams likeCommon Wealth Games, 2 GSpectrum, Coalfield, ISRO issue,Defence purchase. As corruption isrampant, the work of the monitorbecomes complex and huge. TheUmpire has to show red cards, ifblowing of the whistles does not pay.

How cordial and secure are theequations between the Governmentand the CAG in independent India?

Except a few catcalls theatmosphere was placid and theaccounting process proceededpeacefully. When we had statesmenat the helm of affairs, institutions weresafe from attacks. When V. K. KrishnaMenon criticised CAG vehemently inthe Parliament, Pandit Nehru, the PrimeMinister castigated him and came to therescue of CAG and Krishna Menon

had to apologize.

What was your personal experiencevis-à-vis the Bofors issue?

Bofors Report of CAG wasunpalatable to several people. ItsItalian connection made the then PrimeMinister Rajiv Gandhi and his familyvulnerable. Then 2nd rank, 3rd rankand rank-less leaders shouted againstCAG in and outside Parliamentprobably to steal the attention of thefirst family of the ruling party andcurry favours with it. One gentlemanN. K. P. Salve even went to the extentof shouting against CAG anddenigrated himself saying that (referringto CAG) “…this Charly… is to bekicked in the back”. As the situationreached a boiling point, unilateralattack on CAG mounted day by day,I wrote a letter to the Presidentexplaining the helplessness of theCAG to reach out to the public andexplain his position and if things aregoing like this, I would offer myresignation. Letters were sent to theChairman of the Rajya Sabha andSpeaker of the Lok Sabha. TheChairman of the Rajya Sabhaexpunged all vitriolic remarks againstthe CAG from the records of theRajya Sabha. The Speaker of LokSabha Sri. Balram Jhakkar fell intoprocrastination mode and did nothing.

From your experience can you saythat CAG keeps absolute fidelityand confidentiality as there arereports of leakage of vitalinformation?

Leakage will never occur fromCAG and the signed reports never leak.What leaks is the unsigned draft reports.It travels through several Government

departments and personnel of differenthierarchies and “transmission loss”occurs and this is leakage.

Do you have any suggestions toimprove the performance of CAG?

Yes, The institution can improvea lot, or has to improve a lot. It hasto become technology savvy in thisage of electronic data processing.There should be right personsdeployed for top CAG to the lowestrungs of the organisation. TheGovernment rather than seeing it withnervousness must look to the CAGas a source of inspiration inmaintaining financial discipline. CAGmust be taken as a Guide,Philosopher, Friend in matters ofexpenditure of public money. Theprocess of de-institutionalization mustbe checked and the homogenousnature of the institution must bemaintained. To score short-termpolitical gains, long term structuralreorganization should be desisted.For example making CAG a multi-member body would be disastrous asat the top there is provision for onepost and one individual i.e. CAG. Aswe have one President and one PrimeMinister, we can have oneComptroller and Auditor General.Leave the institution to its freedom.Accounting and Auditing in India willbe safe. If this is done India’sprestige in the comity of nationswould only be enhanced as we willbe regarded as a nation respectingethics, morality and consummation inmatters of Public Auditing andAccounting. ■

Interview byKailash Nath Pillai

Sr. Advocate


Mind it, CAG is aConstitutional Institution❑❑❑❑❑ B.H.R. Choudhary

An idea is mooted that CentralGovernment is considering to

make CAG a multimember body on thelines of Election commission which hasmet with serious resentment and stirredup a national controversy. Mr. VNarayana Swamy, Minister of state hasdistanced himself from this idea statingthat he was misquoted. Every one smelta conspiracy to undermine theindependent functioning of the CAG.The Shunglu committee report headedby Mr. Shunglu former Comptrollerrecommended certain structuralchanges in the CAG, which is knownfor controversial reports such as reporton IIM Ahmadabad and onrehabilitation issue in Sardar Sarowarproject. Sensing a backlash the Hon'blePrime Minister Mr. Manmohan Singhstated on record that there is no urgentneed to consider the changes in theprocess of appointment of the CAG.

According to Dr Ambedkar, CAGis a constitutional institution and a

functionary like the Parliament,executive and judiciary and any attemptto undermine the respect and powersof CAG would cause imbalance in theconstitutional arrangement and weakenthe "built-in- checks and balances". Healso opined that over a period executivewould become greedy for more powerand also become intolerant to anyquestioning. The auditing of governmentcompanies are brought within thepurview of the CAG by introducingsuitable provision in The Companies Act1956. Now, CAG seeks, right to auditclause included in all the commercialagreements entered by government, onthe heels of the controversy over Mr.Mukesh Ambani owned RelianceIndustries Ltd (RIL) creating oneobstacles after another in carrying outaudit of KG D6 block up to 2012. Thetalk of the town is that Mr. Jaipal Reddywas shifted from the Ministry ofpetroleum in the recent reshuffle ofcabinet in October 2012 to please

Ambani. RIL wants to enjoy theprivilege of exceptional circumstancesand confidentiality clause, under whichit wants to inflate the cost of productionand wants to keep the quantum ofproduction a secret, where by its wantsto defeat the Product Sharing Contract(PSC).

Art 148 of the Constitution of Indiasays that there shall be a comptrollerAuditor General of India (CAG) whoshall keep the accounts of the Unionand States and submit the accounts ofthe Union to the President of India andaccounts of the States to the respectiveState Governors. He shall be appointedby the President of India for a periodof 6 years and assumes office on oathdeclaring that he shall try to uphold theConstitution of India. The incumbentcomptroller Mr. Vinod Rai has theterm up to the end of 2014 beyond thenext Parliamentary elections. Thejurisdiction of the CAG is furtherclarified by an enactment, The CAGS

"CAG is a constitutional institution and a functionary like the Parliament,executive and judiciary and any attempt to undermine the respect and powersof CAG would cause imbalance in the constitutional arrangement and weakenthe "built-in- checks and balances" – Dr. Ambedkar


(Duties, Powers and Conditions ofservice) Act 1971. Under this act, theconditions imposed by RIL for auditingare rejected by the CAG asserting thatauditing would be impossible and alsostated that CAG has unfettered right tocarry audit and also directed theministry to with hold all approval toRIL.

CAG reported that the allotment of2G spectrum on the first-come-first-served (FCFS) by the then Telecomminister Mr. A. Raja resulted in hugeloss of Rs 1, 76,000 Crores (176Billions) to the national exchequer.Based on the assessment of CAGseveral doubts are raised against theUPA government. The Supreme Courtordered to cancel the allotment madeunder 2G Spectrum on FCFS base.Now as per the directions of SupremeCourt, 2G spectrum is reauctioned inNovember, 2012 which could net onlyRs 9,400 crores against the revenuetarget of 40,000 crores. UPA got ascapegoat to cover up. Mr Digvajaysingh noted that the CAG shouldrecheck the figures of notional loss.

The loss calculated by the CAGwas in relation to the year 2008. Thenthe potential was substantially higherthan it is in 2012. India then had only234 million mobile subscribersamounting to 24% level of teledensityalong with a potential market of 800million customers. Whereas by 2012demand is fulfilled and growth is flat.Because the subscriber base hasreached 900 million and with ateledensity of 70%. The market hasreached optimum level and chance forfurther growth has become bleak. Theaverage revenue per user (ARPU) hasalso dipped to Rs 97 per month in 2012from Rs 316 per month in 2008. The

falling of income rate has driven awaythe substantial investors. The stockmarket also reflected this reality. Fewdays before the announcement of scam,the BSE sensex hit the peak of 21,078and foreign funds were flooding in toIndia and 575 applicants were standingin queue in 2008.

When 3G auction was conductedin 2010 the ex-chequer garnered Rs1, 00,000 crores (100billions). Thisindicates UPA government deliberatelymissed an opportunity to collect largerevenue and also inattracting investorswith good track records while keepingthe telecom sector free from litigationand the Nation free from guilt-strickenconsciousness. Instead of lamentingfor lost of opportunity the UPAgovernment questioned that what is thebasis for the figure of Rs 1, 76,000Crores? It claimed that these figuresare a fantasy.

The UPA government toying withthe idea that the CAG standsdiscomfited by the outcome of thereauction of 2G spectrum inNovember, 2012. It wants to projectthe figure of presumptive loss is nothingbut inadvertence of CAG. Thequantification of presumptive loss ornotional loss to the Union Governmentor wind fall gain to the bidders is adifficult task. The safest course would

have been to express its opinionwithout putting a number on it. If nofigure is put on the loss, citizens of Indiamight fail to recognize the seriousnessof the matter. The current practicethroughout the world is to quantify thehypothetical loss.

While auditing 2G auctions of 2008CAG adopted three well knownmethods for calculating the loss undervarious assumptions. Finally whatmatters is not the number but theunderlying impropriety. The intention ofCAG is to point out, that decisionmaking had not been done in the publicinterest and proper procedures are notfollowed. The spirit of the constitutionis that, the audit by CAG shall transcendthe mere legal aspects of audit andincludes what may be called "Efficiencycum propriety audit". Thus it is also amoral check-up.

Once a large figure is mentioned,the attention of the media and publicgets riveted to that figure. Unfortunatelyneither the Parliament nor mediadebated whether the three types ofcalculations done by CAG were basedon rational assumptions or not. Now,the question is, whether the failure ofthe reauction would invalidate thecalculation of the CAG reportretrospectively? The answer is aresounding "NO". The marketconditions in 2012 are vastly differentfrom those prevailing in 2007- 2008financial year. The UPA governmentdoesn't want to compare the marketconditions of 2008 when teledensity isonly 24% and 70% of teledensity in2012. The demand for cell phones isfully met and more or less reachedsaturation. 'The law of diminishing utilityand marginal returns' came in tooperation, as there is no scope for


further expansion, because theremaining population are not eligible forusing cell phones either as they arechildren or persons belonging to belowpoverty line (BPL).

Be that as it may Mr RP Singhformer director General of CAG madea disclosure in the last week ofNovember, 2012, that the presumptiveloss was only Rs 2,645 Crores. Thisminimalist figure takes the away thesting out of the colossal figure of 1,76,000 Crores and has become themain stay of Congress party. But MrSingh ignored the recommendations ofTRAI which also agreed with CAGthat the estimated loss is at 1.76 lakhs.

The secret and confidential noterecorded that undue haste had takenplace in processing of applications fornew Unified Access Service License(UASL) due to FCFS policy. The lossof 2,645 Crores is based on indexationof 2001 prices and wrongly applied thesame in 2008. On the cover note ofthe same document Mr. RP Singh notedthat the presumptive loss is 1.2 lakhCrores based on the 3G spectrumprice. Mr. Singh is inconsistent andcherry- picks from TRAIsrecommendations depending on whathe needs to prove.

Mr Singh also appeared on severalTV channels that Rs 37,000 Crores isthe estimated loss. The true figures ofloss forwarded by Mr RP Singh arebased on completely different data. Thelater figure is based on 3G pricingwhich he himself opposed as lossescaused by 122 illegal licenses given byMr. A. Raja former Minister ofTelecom. As a DG, if Mr. Singhbelieved that some additional guidelineswere needed, he had every right tobring the audit to a halt but he did not

do so. Moreover Singh failed tounderstand that 2G and 3G spectrumsare based on the same GSMtechnology. The spin in the argumentof Mr. Singh is that he ignores marketconditions mentioned above.Prevarication and ambivalence are twolegs on which Mr. Singh is standing.

Meanwhile SC issued notices tothe Union Government and CBI on apetition for a probe by a SpecialInvestigation team (SIT) in to thealleged irregularities of Coalgate scamwhich became necessary on accountof CAG's report because of thecancellation of allocation of 194 coalblocks. A report of the CAGsubmitted to Parliament in the lastweek of November, 2012 hasdetected discrepancies in five offsetcontracts worth about Rs 3,410 Croreinvolving foreign defense firms. Thereport also added, the army hasrelinquished 5,166 Sq.m of land worth

Rs 6 Crore situated within the vicinityof military head quarters near Mumbaiwhich was under its active possessionsince 1942. Previously the fodderscam in Bihar came to light of thenation through the effort of the CAG,wherein several IAS officers and Mr.Lallu Prasad Yadav the then CM ofBihar lost their offices.

CAG among other things is thecustodian of consolidated fund of India(CFI). The receipts and expenditureon CFI shall undergo the scrutiny ofCAG. It prescribes the format in whichaccounts of the Union & State are tobe kept. It has absolute discretion inregard to the accounts to be includein the reports to Parliament and StateLegislatures. Union government can inno way object to the discretion ofCAG in this matter. Public accountscommittee (PAC) consider the reportsof the CAG in the first instance andlater by the house as the case may be.In order to strengthen parliamentarycontrol over executive it is necessaryto devise a system which envisagesthat PAC examines all the reportssubmitted by CAG and submits itsrecommendations to legislature with ina time limit of one year.

Episodes narrated above provethat: corporations within and withoutwants grab and loot public money.They offer sops to electedrepresentatives and officials who closetheir eyes. To check such a situation,Constitution of India created a "Watchdog" in the form of CAG. If the dogbarks in the midnight on noticingmovement of the thief, the duty castupon the watch man is to catch, arrestand recover the stolen goods from thethief, but not to punish the dog fordisturbing sleep. ■

Corporations withinand without wants graband loot public money.

They offer sops toelected representativesand officials who close

their eyes. To checksuch a situation,

Constitution of Indiacreated a "Watch dog"

in the form of CAG.�

�


I once had come across an old adivasiperson by name Bachali Dabbaya

who was lementing that the Britisherswere better in admistration then ourown Indians and went on to tell anincident before independence when hewent to the Sub Collector atNarsipatnam " It took me time to meetthe sub collector but when I finally methim he heard me and settled theproblem and passed an orderimmediately but now a days we are sentfrom pillar to post even for small things"This incident was told to me in the year1987 when I first went into the tribalarea of eastern ghats where AlluriSeetharamaraju the legendryrevolutionary had fought the british for3 long years on behalf of the adivasipeople till he was killed by the British.

Working with samata since 1987till now when I look back on the aspectof adivasi communities anddevelopment I am always reminded ofBachali Dabbaya's words and

The Democratic Institutions andthe Adivasi Communities ofIndia

If we see the history of independent India starting from the first five year plantill now in the context of the Vth schedule and the progress of tribal peoplevis-à-vis the other sections of Indian population one can say that they haveborne the brunt of development and the extent of displacement of tribal peoplehas been the maximum.

❑❑❑❑❑ Ravi Rebbapragada

wondered if he was right? Were theBritishers better? Is the Indian Stateanti adivasi? Let me outline why I saythis- as per the constitution we have theV schedule that prescribes how thetribal areas have to be governed. Thetribes advisory council, The Governerof the states that have Vth scheduledareas, the scheduled tribes commission,the admistrative setup in districts thathave Vth scheduled areas, the variouslaws that have been enacted for theprotection of tibal areas and tribalpeople including the forest rights act of2006! Not to forget the supreme courtin the Samata judgment .

If we see the history of independentIndia starting from the first five year plantill now in the context of the Vthschedule and the progress of tribalpeople vis-à-vis the other sections ofIndian population one can say that theyhave borne the brunt of developmentand the extent of displacement of tribalpeople has been the maximum (Walter

Fernandes). First came themultipurpose projects like dams andlarge infrastrutral projects all over theVth schedule areas, at the same timesthe mining started …. The tribal peoplewere promised Land for land andrehabilitaion but all have seen brokenpromises so far.

One has to question what were thestatutory bodies and authorities doing(then and now) when large numbers oftribal communities were being forcefullydisplaced. I guess the rethoric of "weneed development" was beinghighligted so does that mean the tribalpeople don't deserve the samedevelopment that has benefitted all ofus?

If one takes a look at the Vthschduled areas one can see that thereare conflicts in every state overresources as the land, water forest andmineral wealth is situated in these areaspre dominently and all laws and rulesare being set aside for the so called


ST commision is also there to help thetribal people but the Government is notbothered and does not consult thecommission?

When it comes to implementationof the land laws in Vth scheduled areasthe district admistrative set up is neithergeared nor willing. If you take theexample of the Forest Rights Act andits level of implementation it is evidentthat the admistration is not so interestedin a proper survey and settlement whereas at the same time the private playersare given proper land rights using theland acquisition act even against thelocal peoples wishes like in SEZ. TheSupreme court passed the samatajudgment in 1997 and every state isreluctant to implement the same thoughit is not an anti mining judgment it onlyprescribed a method in mining thatwould benefit the tribal communities.

Therefore when the tribal areas arein conflict and the tribal people are upin arms, it means that the democraticinstitutions, bodies and safe gaurds arenot working the way they should. This

development. The role of theconstitutional bodies needs to bequestioned and the rule of law has tobe established other wise it will give riseto situations like in Bastar district wherehundreds of villages have been deserteddue to the on going conflict.

Let me list out various conflicts insome of the Vth scheduled areas formore clarity:-

1. Andhra pradesh - conflict overbauxite, iron ore and coal mining,conflcit over the large Polavarm damthat will affect thousands of tribal peoplein 3 states

2. Chattisgarh - conflict betweenstate and Maoists, conflicts over powerprojects, mining

3. Orissa - Mining in variousdistricts of orissa is leading to a lot ofconflict for example vedanta , adityabirla, POSCO, the sponge iron Plantsin sundergaragh , Chromite mines ofSukinda have the notority of being oneof the most polluted areas in the world.

4. Jharkhand - all over the statethere are conflicts with tribal people onvarious projects that want the land andwater for profits.

5. Maharastra - Vidharbha regionhas an ongoing conflict between stateand Maoists added to that will be newconflcts arising from power projectsand mining.

Now let us examine the roles of thedemocratic institutions under theconstitution for protection of the tribalpeople and see if their are doing theirjob as prescribed. The governor issupposed to be the coustodian as perthe constitution and can take action forpeace and good governance of the Vthschedule areas but no governer so farhas ever used this power. The governerof Andhra Pradesh recently refused to

use this power though the centralminister has written to him.

The tribe's advisory council issupposed to be convened andpermission has to be obtained for anyact or law but the Andhra Pradesh govthas passed a law on tribal sub Plan lastweek without consulting the TAC? The

While the nation mustbenefit from the

exploitation of mineralresources, we will

have also to take intoconsideration the

questions ofenvironmental

protection and therights of tribals.

�

�


situation gives oppurtunity for varioussections in society to make use fortheir own purposes and history repeatsitself.

As middle class people we haveno idea of the trauma the displacedtribal people go through and I see thatgovernament officials make a big issueof a transfer which is not displacment.

This reminds the words one of ourlearned presidents, Shri K.R.Narayanan, delivered to the nation onthe eve of Republic Day, 2001 :

"It is through enlighteneddevelopmental policies that we canresolve such dilemmas ofdevelopment…….One pre-conditionfor the success of developmentalprojects in our extensive tribal areas is

that we should take into confidence thetribals and their representatives, explainthe benefits of the projects to them, andconsult them in regard to the protectionof their livelihood and their uniquecultures. When they have to bedisplaced the resettlement schemesshould be discussed with them andimplemented with sincerity. This couldavoid many critical situations, and wewill be able to carry the tribals with us."

We cannot ignore the socialcommitments enshrined in ourConstitution. In eastern India, theexploitation of minerals like bauxiteand iron ore is causing destruction offorests and sources of water. Whilethe nation must benefit from theexploitation of these mineral

resources, we will have also to takeinto consideration questions ofenvironmental protection and the rightsof tribals. Let it not be said by futuregenerations that the Indian Republichas been built on the destruction of thegreen earth and the innocent tribalswho have been living there forcenturies. A great Socialist leader hasonce said that a great man in a hurryto change the world who knocks downa child commits a crime. Let it not besaid of India that this great Republic isin a hurry to develop itself isdevastating the green mother earth anduprooting our tribal populations. Wecan show the world that there is roomfor everybody to live in this country oftolerance and compassion. ■

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vf/oDrk ifj"kn] iatkc] tkya/j bZdkbZ }kjk vk;ksftr cSBd esa vf/oDrk cU/q

Nyaypravah u October-December 2012 u 35

uring the British rule Bihar and Odissa were parts of DBengal. The partition of

Bengal in 1905 was an extremely unpopulous measure which caused great resentment and agitation. Viceroy Lord Hardings proposed revocation of the partition of Bengal. Since reunion of Bengal would have resulted in creating a state larger in size and population, Lord Hardings suggested the separation of the Hindi and Oriya speaking people from Bengal. Thus, in 1912, Bengal was reunited and provinces of Bihar and Orissa was formed being separated from Bengal.

Under the leadership of Utkal G a u r a v M a d h u s u d a n D a s , Utkalmani Gopabandhu Das, Rajendranarayan Bhanjadeo, Brajasundar Das, Sudam Charan Nayak and Harihar Panda, a memorandum was submitted to British Administration through Montague for creation of a separate Oriya province having Oriya speaking areas under one separate administration. In support of the above demand, large public meetings were held at different

places making consistent efforts and tremendous pressure on British administration. Govt. of India appointed an administrat ive committee under the Chairmanship of Sir John Hubback to suggest administrative reforms incidental to the creation of Orissa as a separate province. The above committee

threported on 20 December 1933 recommending Cuttack to be the provincial capital. Thereafter, the British Parliament passed the Constitution of Orissa Order, 1936. It got the approval of the king on 3rd March 1936. New provinces Orissa (now Odisha) came into existence on 1st April 1936 being separated from Bihar with Sir John Austin Hubback as the first Governor.

Orissa Province was thus created but Orissa and Bihar remained under one High Court having its sitting at Patna.

Sir Hubback administered the oath to Sir Courtney Terel as the Chief Justice of Bihar and Orissa at inaugural function organized at Ravenshaw College situated at Cuttack.

Gradually the concept of circuit

courts came into existence for administration of justice in Orissa. Two judges of Patna High Court held sessions at Cuttack at least four times in a year, each session extending over at least a fort-night. This arrangement certainly helped to bring justice within easy reach of the people. But in urgent criminal matters where bail was required, people cannot wait for the coming of the judges and they used to be forced to go to Patna undergoing huge expenses. As only two judges were coming to Orissa for disposal of cases, there was no atmosphere of judicial experience as a whole. Earlier the administrative officers were also having the judicial power. This was against the very basic principle of independent judiciary. However, this scenario continued for a considerable period due to want of permanent high court for the state of Orissa.

At the relevant point of time there were high courts in Bengal, Bombay, Madras, Patna and Lahore constituted by their letters patent in accordance with the provision of the Indian High Courts Act, 1861.

Legal History of Orissaq Anup Kumar Bose

The concept of the circuit court was the first of its kind and was introduced in Orissa on an experimental basis. On February 9, 1916 it was decided that one or more judges of Patna High Court would visit Orissa by way of circuit in order to exercise the jursidcition and power vested in the high court. First sitting of the circuit court was held at Cuttack on 8th May 1916.

36 u Nyaypravah u October-December 2012

This Act empowers Her Majesty in council to erect and establish high courts of judicatures by letters patent, provideing for possibilities of modification in these letters patent and for the alteration of the jurisdiction of the high courts. This charter Act was further enlarged and modified in the Government of India Act, 1915. Under the above provision there were Chief Courts consisting of 3 or more judges. Unlike the charter High courts created by letters patent, there were provisions for creation of the courts of judicial commissioner who derived their power not from the Parliament of the United Kingdom but from the government of India. Appeals against the decision of any of these 3 kinds of judiciary lied only to his Majesty in council.

After the creation of Bihar and Orissa State in the year 1912, it was deemed imperative by the Govt. in 1916 to give a high court to make it self contained. Earlier there was only one district Judgeship at Cuttack having jurisdiction over three districts i.e. Puri, Balasore

and Cuttack. Sambalpur was under the jurisdiction of Sambalpur-Manbhum judgeship. Utkal Gourav Madhusudan Das became the Chief Architect for establishment of a separate high court in Orissa and under his leadership the scheme for the above purpose was included in clause 35 of letter patent of Patna High Court giving rise to circuit court for Orissa. The concept of the circuit court was the first of its kind and was introduced in Orissa on an experimental basis. On February 9, 1916 it was decided that one or more judges of the Patna High Court would visit Orissa by way of circuit in order to exercise the jursidcition and power vested in the high court. First sitting of the circuit court was held at Cuttack on 8th May 1916.

In the above process the Orissa High Court was established on July, 26, 1948 under the “Orissa High Court Order, 1948” made by the Govt. of India. Unfortunately Madhu Babu could not see the birth of new Orissa province as well as establishment of High Court as he breathed his last on 4th February,

1934. The Orissa High Court order,

1948 said “As from 26th day of July 1948 there shall be a high court for the province of Orissa which shall be a court of record and shall consist of a Chief Justice and such other judges as the Governor General may from time to time, whether before or after the prescribed day, appoint in accordance with the provisions of section 220 of the Act”.

At present the State of Orissa is having the population of 4 crores 20 lakhs in 30 districts. At present the Honourable V. Gopalagowda is functioning as the Chief Justice of Orissa High Court.

Under the jurisdiction of Orissa High Court, there are 16 District Courts, although the state is having 30 Revenue Districts. The strength of Judicial Officers are as follows : -1) District Judge : (98DJ/ADJ/

Spl.Post)2) Senior Civil judge : 1343) Civil Judge : 2634) Special Judicial Magistrate : 185) Nyayadhikari of Gramya

Nyayalaya : 8 n

Nyaypravah u October-December 2012 u 37

dk;ZØe esa cksyrs gq, tfLVl ,e-,u- Hk.Mkjh

National Law Day Celebrations at Thrissur, Kerala Keynote address by Adv. V. Girissan BAP State Secretary,sitting near by R. Venugopal, C. Sadanandan Master, Adv. T.R. Sivan and T.C. Sethumadhavan

38 u Nyaypravah u October-December 2012


Role and Responsibilities ofPublic Service Commission

Considering the onerous work whichthe Public Service Commission issupposed to perform, whataccording to you are the steps thatneeds to be taken in order tostrengthen the institution of PublicService Commission?

Public Service Commission is therepository of public trust and peoplehave faith and believe in the institution.It is essential in order to strengthen theinstitution that the Public ServiceCommission is given full functionalautonomy, including financialautonomy, with regard to deputation.In the Public Service Commission, itis normally seen that people who areput on deputation from theadministration are not interested inleaving their main stream administrativework, thus any deputation made in thePublic Service Commission should be,with the consultation and consent ofcommission. It is also of greatimportance to see that a personappointed with the Public ServiceCommission is having unimpeachableintegrity and commitment.

Do you think that there has been aqualitative difference inappointment of member/chairmanof the Public Service Commissionover a period of time?

There is some change in the qualityof appointments of the Chairman/Member of the Public ServiceCommissions and that is related to theoverall change of values in the society.There are times when different

establishments want their persons to beappointed as Chairman/Member of thePublic Service Commission, howeverit is of great importance to keep in mind,while making appointments, that thisinstitution commands a lot of respectwith the people and thus this trust shouldnot be defeated. In the recent past, wehave come across some unfortunateincidences with regard to questionablefunctioning of the some Public ServiceCommission's, It should be seen thatsuch cases should not reoccur. It is thusimportant that the least bench mark thatneeds to kept in mind while makingappointments is that the person soappointed should be qualified,meritorious and efficient.

What other functions does a PublicService Commission perform apartfrom the function of makingappointments for the state.

The work of the Public ServiceCommission is quite onerous and thatapart from the role of appointment thePublic Service Commission’s alsoperform advisory role especially in

Union Public Service Commission as well as State Public Service Commissionsplay an important role under the constitution of India. To get first handinformation about the functioning of these institutions, Mr. Rajeev Kumar Singh,Secretary, Adhivakta Parishad, Supreme Court Unit talked to Prof. PradeepJoshi, Chairman, Chhattisgarh State Public Service Commission. Followingare the excerpts of the interview.


respect of Departmental PromotionCommittees (D.P.C) and DepartmentalEnquiry Committee (D.E.E). TheGovernment at times even seeks advicein framing service rules.

Should Public Service Commissionsbe given the authority forappointment in relation to PublicSector Units and other GovernmentBodies.

There are certain bodies for whichappointment is not made by the PublicService Commission. I, from mypersonal experience can say this, duringmy stint as Chairman, Public ServiceCommission in Madhya Pradesh,certain appointment in healthdepartment and engineering collegeswere assigned to specializedAutonomous Bodies. However, the

State Government subsequently foundthat these appointments were betterhandled by the Public ServiceCommission and thus subsequentlytransferred this work to the PublicService Commission. The PublicService Commission being a specializedbody in making selections, theendeavor is to bring in maximum amountof objectivity in decision makingprocess.

Does the Public ServiceCommission incorporate thechanging criteria with regard tomerit assessment of candidates?

Answer- Public ServiceCommission does takes into accountthe change in criteria with regard tomerit assessment of candidates. PublicService Commission, over a period of

time, has evolved innovative ways ofassessment of merit of candidates likewe have based assessment of merit,considering the nature of activity to beundertaken by a selected candidate andalso the work profile of the post forwhich a candidate is to be selected.

Over a period of time there hasbeen an issue with regard toselection of candidates who aredisabled/differently able ingovernment jobs what is your viewon it?

This has to do more at the levelof policy making which is theprerogative of the Legislature and theExecutive and it is my wish that theGovernment will be more sensitive tothe needs and desires of the differently-abled people. ■


The role of fair and impartialjudiciary is indispensable for good

governance irrespective of nature andform of Government. For keeping thestream of justice pure and clean,judicial wing of Government needs aconstant change as the law is dynamicand keeps on changing with time?Today’s judicial system in India ispassing through cries and needs certainreforms as an old saying goes “solutionlies within the problem itself”. Hencefor suggesting the reforms, the first stepwould be to explore the judicial systemitself.

Earlier function of government wasnot divided into separate bodies and itwas done by the King alone, he himselfwas performing the task of dispensationof justice and the same was being doneas a divine task. Montagu, a Britishphilosopher introduced the reformswhich basically emphasized onseparation of power, these reformswere introduced in 1918 and on theirbasis, Government of India Act 1919

Judicial Reforms - driver forall other reforms

was passed. India adopted Britishsystem and is continuing with the sameprincipals of Government and laws tilldate.The British pattern of governmentand legislation was alien to our country,as the laws of British were not inaccordance with the aspirations ofIndian people but the people were madeto adjust according to those laws.

Owing to the ambiguity of languageand rationale, the meaning of laws arenot clear therefore judges are requiredto explain the intention of legislature.Apart from interpreting legislature, therole of the judiciary is also to ascertainthe rights and duties in a given set offacts and circumstances. Ideallyspeaking, the sole aim behindperforming this exercise is to protectthe innocent from injustice and topunish criminals and establish certaintyfor promoting equity and justice in thesociety. Under these circumstances, inorder to enable the judiciary to performit’s duty, it is a must that there shouldbe an independent and impartial

judiciary and a speedy, efficient and justsystem only then judiciary would beable to protect private, civil andConstitutional rights.

The failure of the civil and criminaljustice system is manifesting inabnormal delays in litigation and hugependency in courts. While accuratestatistics are not available, it is estimatedthat approximately 38 million cases arepending in various law courts all overthe country. While 20 million cases arepending in district courts, High Courtsand Supreme Court, about 18 millioncases are said to be pending in lowercourts. The conviction rate isabnormally low with only 6 percentcases resulting in conviction.

The worst part of the system ispendency of cases continued forgenerations and at times even decadesthereafter, the aggrieved is left withouta remedy, the justice is not dispensed,the wrongdoer is not penalized reasonscan be numerous either because theclaim was not fulfilling the statutory

❑❑❑❑❑ Jyotika Kalra

The failure of the civil and criminal justice system is manifesting in abnormaldelays in litigation and huge pendency in courts. While accurate statisticsare not available, it is estimated that approximately 38 million cases arepending in various law courts all over the country.


requirements, the claim was not beinglooked after by a legally sound lawyer,or the opposite lawyer was legally moreequipped, the judicial officer disposingoff the matter was more technical,appropriate attention could not be paidas the judge or the lawyer wasoverburdened which results indismissal of the suit and the aggrievedparty might be required to initiate thelitigation afresh i.e. to say burdening thesystem again with another round oflitigations.

Judiciary can serve its role in thebest possible manner only if thefollowing are ensured:

1. Pendency and backlog of casesin the Courts is reduced.

2. The justice delivery system ismade affordable, accessible, costeffective and transparent; and

3. Judicial productivity isenhanced both quantitatively andqualitatively.

4. The final outcome of the systemis justice delivery.

I suggest the following reforms :On the Legislative side:

It is being felt that there are largenumbers of legislative enactments someof which have become redundant.Abundance of legislative enactmentsalso result in more complicated justicedelivery system as a consequent thereofcases are lost on technical grounds fornon-compliance of one or the otherprovision of law, to make the legislativeside more effective following aresuggestions:

1. Let there be a totalreorganization of all the legislativeprovisions, all the provisions/ lawswhich are no more in use should beremoved and this final list of legislations

should be published.2. Legislative provisions should

be classified and laws pertaining to onecategory should be kept in one classso as to facilitate the statutorycompliances of the provisions.

3. Appropriate provision shouldbe made in law to scrutinize the casesat the stage of filing, technical defects,if any, be removed and thereafter thereshould not be any scope for raising anyobjections on the technical side.

4. Dispensation of justice shouldbe the aim and accordingly ampleprovisions should be made in the lawsthat the relief is not declined ontechnicalities and the legal systemultimately dispenses justice

Alternative dispute redressalsystem

a. Appropriate law should beenacted to facilitate the compromisesat pre-litigation stage.

b. Appropriate provision shouldbe made for the enforcement of

compromises arrived at between theparties at the prelitigation stage.

c. Compounding of offenceshould be encouraged.

d. The resolution throughmediation and conciliation be madecompulsory in Judgement of M/S.Afcons Infra. Ltd. &Anr. vs M/SCherianVarkeyConstn . the Hon’blejudge Ravindran had laid down “thatconsent of parties is not required forreferring the dispute to (a) LokAdalat;(b) mediation by a neutral third partyfacilitator or mediator; and (c) ajudicial settlement, where a Judgeassists the parties to arrive at asettlement.”.

e. The mediations and conciliationproceedings as far as possible shouldbe handled by the trained lawyers andnot judges because the judges arealready overburdened and judgesshould focus more on deciding as towhich matter can be referred tomediation and also making the litigantsunderstand about the advantages ofmediation.

f. For making any alternativedispute redressal system more effectivethere must be adequate number of welltrained neutral arbitrators or mediators,for ensuring this as far as possible, thelist of mediators or arbitrators shouldbe maintained by the respective courts.

g. As felt the present Arbitrationsystem is not much effective as in manycases, the arbitrator is not neutral hencethe judicial system should select thearbitrators, train them adequately andmaintain a list of such arbitrator so thatlitigants get the systematic and neutralarbitration system.

Reforms in the judiciary :As suggested by the


recommendations in the 230th Reportof the Law Commission bythe Hon’bleShri Justice Ashok Kumar Ganguly, aJudge of the SupremeCourt, which arelaid down as under:

There must be full utilization of thecourt working hours. The judges mustbe punctual and lawyers must not beasking for adjournments, unless it isabsolutely necessary. Grant ofadjournment must be guided strictly bythe provisions of Order 17 of the CivilProcedure Code.

Many cases are filed on similarpoints and one judgment can decide alarge number of cases. Such casesshould be clubbed with the help oftechnology and used to dispose othersuch cases on a priority basis which willsubstantially reduce the arrears.

Similarly, old cases, many of which havebecome infructuous, can be separatedand listed for hearing and their disposalwill not take much time. Same is truefor many interlocutory applications filedeven after the main cases are disposedof. Such cases can be traced with thehelp of technology and disposed of veryquickly.

Judges must deliver judgmentswithin a reasonable time and in thatmatter, the guidelines given by the apexcourt in thecase of Anil Rai v. State ofBihar, (2001) 7 SCC 318 must bescrupulously observed, both in civil andcriminal cases.

Considering the staggering arrears,vacations in the higher judiciary mustbe curtailed by at least 10 to 15 daysand the court working hours should be

extended by at least half-anhour.Lawyers must curtail prolix and

repetitive arguments and shouldsupplement it by written notes. Thelength of the argument in any caseshould not exceed one hour and thirtyminutes, unless the case involvescomplicated questions of law orinterpretation of Constitution.

Judgments must be clear anddecisive and free from ambiguity,and should not generate furtherlitigation.

Lawyers must not resort to strikeunder any circumstances and mustfollow the decision of the ConstitutionBench of the Supreme Court in thecase of Harish Uppal (Ex-Capt.)v.Union of India reported in (2003)2 SCC 45. ■


Protecting Womanhood : NotBy Law Alone

❑❑❑❑❑ Dr. A. P. Singh

Latest censure figures of 2011records the child sex ratio

between 0 to 06 years of age at thelowest since independence, i.e. at 914.This goes on to prove that despite bestof efforts at preventing abortion offemale foetus, diagnostic techniques arebeing rampantly used to eliminate femalefoetus in almost every parts of thecountry, resulting in a very adverse kindof sex ratio that might result in varietyof distortions in the socio-economicand politico-cultural set up of thecountry in the days to come.

Article 14 guarantees all kinds ofequality including equal voting rights andpolitical participation to both men andwomen. As reflected in the preamble,the Indian Constitution is firmlygrounded in the principles of liberty,fraternity, equality and justice andcontains a number of provisions for theempowerment of women. Article 15gives assurance to women’s right toequality and non-discrimination and

there is enough room for affirmativeaction programmes for women.Equality of opportunity in mattersrelating to employment or appointmentto any office under the State is also afundamental right. The DirectivePrinciples of State Policy stresses onthe right to an adequate means oflivelihood for both men and womenequally, equal pay for equal work forboth men and women, provision for justand humane conditions of work and formaternity relief. Directives forpromoting harmony and renouncingpractices derogatory to the dignity ofwomen are also provided for in theIndian Constitution. The political rightsof women are recognized without anydiscrimination, or distinction and theyhave the right to participate in decisionmaking at all levels equally with men.The right to constitutional equality hasbeen supplemented by legal equality bythe passage of a number of Acts throughwhich the traditional inequalities in

respect of marriage, divorce andproperty rights are sought to beeliminated.

However, in spite of theseconstitutional and legal provisions, theground reality is that womanhood is stillsubjected to a variety of discriminationsand actions derogatory to her status andhas not obtained adequate andproportionate representation in theservices, legislatures and otherdecision-making bodies.

There are basically three separatequestions and strategies that I seek toargue in this paper, firstly that the useof legal instrumentality in improving thewomen’s has so far proved to be afailure and continuing use of thisstrategy is not likely to bring about asignificant change in the life of the nation,as regards the status of women andtheir role in the socio-economic andpolitico-cultural life of the country.Secondly, it has to be appreciated thatthe use of legal instrumentality in

The political rights of women are recognized without any discrimination, ordistinction and they have the right to participate in decision making at alllevels equally with men. The right to constitutional equality has beensupplemented by legal equality by the passage of a number of Acts throughwhich the traditional inequalities in respect of marriage, divorce and propertyrights are sought to be eliminated.


transforming the social organism attheoretical level has its own limitationsand proper strategies have to beworked out to effect some kind of aneffective strategy to manage the socialtransformation process in a better way.The third argument is just a sequel ofthe first two arguments. Law has twoaspects of its application process.

Use of Legal Instrumentality : Isthat the only way out?

There is no gainsaying of the factthat there is certainly a need forwomen’s more effective role indecision-making processes for thedemocratic and constitutionalassurances of equal citizenship andrights in the Indian Constitution tobecome a reality at the operational level.Citizenship is linked to politicalparticipation and representation. Lackof ability and opportunity to participatein the political system implies a lack offull membership in the system. For trueequality to become a reality for women,the sharing of power on equal terms withmen is essential. But the reality is thatwomen continue to be marginally

represented even in areas where varietyof policies have a direct impact onthem. There is still a great gap betweenConstitutional guarantees and the actualrepresentation of women in the politicalsystem in India.

However the million dollar questionis as to how do we ensure that womenplay effective role in the decisionmaking process at the political level? Ithas been proposed and argued morethan once that providing quota forwomen probably would do the trick.And therefore the Women’s Quota Billis still hanging fire in the Parliament. The73rd and 74th Constitutionalamendments have already beenimplemented and thus theexperimentation on women’s role inpolitical decision making process at thelowest level of Indian Democracy i.e.Panchayati Raj and Municipality levelshas commenced. One has to concedethat, at least in absolute terms if nothingelse, the political representation ofwomen has substantially increased in thewake of implementation of 73rd and74th Constitutional Amendments.However that has not led to an overall

improvement in the political decisionmaking process in terms of role ofwomen.

Mere political representation maynot serve the ultimate goal of women’sempowerment, if that is the goal of thesystem. The line of argument adoptedhere is to highlight the limitations anddrawback of the state intervention toaffect social change and ensure thatwomen’s participation in socio-economic and politico-legal life of thecountry is ensured. This goes withoutsaying that the purpose of reservationsfor women is neither to increaseemployment opportunities for thewomen nor to improve their economicconditions, but is to give them a chanceto participate in the affairs of thecommunity and in decision makingprocess thereby enhancing the sense ofparticipation so that others may emulatethem and move ahead in the ladder ofsocio-political power game. Apartfrom this it also entwines a notion ofhistorical restitution or reparation tooffset the systemic and cumulativedeprivations suffered in the past.8

The state system no doubt broughtin many a social reform, but they are atthe most facial and superficial and theiracceptance in the social arena is neitherdeep and comprehensive nordistributed evenly amongst all thesections of society. Political reforms onthe other hand whenever brought aboutat the instance of social reformmovement or social institutions havebeen both deep and comprehensive.

Further it must be understood veryclearly that whereas women’sreservation may bring about a swiftquantitative jump in legislatures, it isunlikely to improve the overall qualityof the governance in the country on


benefit the women in any significantmanner. The argument that theparticipation of few women in thedecision making process might give asense of participation to a large sectionof women presumes that the publicinstitutions are the resources at thedisposal of their members for alteringthe distribution of power in thedirections that they consider desirable.While this does not serve the purposeof empowerment in any significantmanner, this leads to the misplacementof objectives of the institutions andwastage of public resources. This alsoentails the question of efficiency of thesystem as a whole.

It may be noted that women’sreservation shall have its own logic ofoperation. According to the informationprovided by the National Commissionfor Women the new scheme shall bemodeled on the scheme alreadyoperative at Zila Parishad andPanchayat levels. Reservedconstituencies of women shall beselected through a draw of lots whichmeans that they shall keep on changingwith every election. Thus no oneincluding women who get elected oncefrom a particular area would have anyincentive to nurse their constituencybecause they would be no knowingwhich are the constituencies that wouldbe earmarked for women next. At atime when political accountability isalready at a discount, even measuresshall lead to further deterioration of thesituation and there shall be no incentiveto be accountable to the constituencyconcerned.

It may also be noted that once thespecial constituency for women areearmarked it shall be highly unlikely thatany political party shall field additional

women candidates. Women shallforever be pitched against women andthey will view each other rivals ratherthan as potential allies to work with onthe issues of common concern. This ina way would ghettoize the women. Weshall have no scene like we witnessedsometime back in Parliament whereinwomen, irrespective of party allegiancegathered and raised their concernsunitedly.

Limitations of Law : A TheoreticalUnderstanding

Turning to the theoreticalunderstanding of instrumentality of law,an important point one needs tounderstand is the role of politico-legalstructures in the life of a nation. I wouldfiguratively put it in a different format.Law, broadly understood can be talkedof in two ways, ‘lead law’ and ‘lag law’.Lead law is one where law determines

the nature and direction of the goaltowards which the system is to move.Lag law on the other hand would followthe social mechanism and woulddevelop a rule to handle the emergingproblem.

Turning to the ‘lead law’ ‘lag law’debate for the purpose ofunderstanding the impact of law on thesocial dynamic, it has to be understoodthat instrumentalist vision of law treatsLaw as an agency of power and aninstrument of government, in so far asgovernment is centralised in the state.It is seen as an independent agency ofsocial control and social direction,autonomous and separate from thesociety it regulates. In this sense lawacts upon society rather than as anaspect of society. It is considered toderive its effectiveness not from itscongruence with popular moves butfrom the concentration of politicalpower, which the state represents.“Major ages of social change andmobility almost always involve great useof law and litigation”, writes Nisbet, butin modern societies law’s capabilitieshave been seen as vastly greater thanappeared to be in earlier eras. Puttingof law into written form might beconsidered historically as one of the firststeps towards developing its potentialas a precise instrument of government.Apart from this, accumulation of statepower available for enforcement,professionalization of interpretation andapplication of legal doctrine,instrumentalisation of elaborateadjudicative processes, etc. havehelped in consolidating theinstrumentalist role of law.

‘Lag law’ on the other hand relieson sociological vision of law, and looksat the capacity of law as an instrument

The new welfare state,dispenser of goodsand services and

provider of employmentetc. has used the

master-key of political/state intervention for allsocio-economic issuesthough the particular

problem may notconcern the political

domain.�

�


of social control, as severely limited byemphasizing upon the fact that if thelegal rules are not in congruence withsocial mores they are not only in-effective, but are doomed tostultification almost at birth, doomed bythe over ambitions of the legislator.“Law is vital”, writes Nisbet, “but whenevery relationship in society becomespotentially legal relationship expressedin adversarial fashion the very juice ofsocial bond dries up, and the socialimpulse atrophies.

Social phenomenon has its owndynamic and any law that seeks toaffect certain changes into it withouttaking into consideration thefundamental realities around is boundto result in failure. Sumner, talks aboutthe folkways and mores of life, whichchange gradually as the conditions oflife change. There is little scope forchanging them fundamentally throughany conscious act of legislation.

Soft Law versus Hard LawApproaches

The third limb of the argument asto the protection of womenhood not bylaw alone consists of soft vs hard lawapproaches. Prof David BenjaminOppenhiemer is one who talks aboutsuch a vision of law. This is the approachhe adopts for the purpose of classifyingvarious measures of affirmative actionprogramme available in the US system.According to Prof. Oppenhiemer thepractice of affirmative action iscomprised of five methods: quotas,preferences, self-studies, outreach andcounseling, and anti-discrimination.Hard law method would cover the firsttwo i.e. quotas and preferences and thesoft law would encompass variousoutreach, self-evaluations, marketing,

and labor market developmentprogrammes etc. Hard law approachbasically comprises of strict legalcategories where norms are providedfor strict implementation by way of legalsanctions. Soft law on the other handwould rely on the welfare state optingfor policies to ameliorate the conditionsof the deprived sections of the society.Under Indian Constitution, the wholearray of affirmative action programmesare divisible into hard and soft lawcategories. Article 15 & 16 and 330 to334, 340-342 can be categorized as‘hard’ law approaches as theyprescribe certain legal norms wherebythe historical injustices have sought tobe done away with or provided withsome kind of reparation element by wayof protective action or affirmativeaction. Article 15 along withpreferences in resources distributionand amelioration programmes that canbe designed in pursuance of DirectivePrinciples of State Policy, are divisible

into ‘soft’ law category affirmativeaction programmes for the reason thatthey are not implemented through strictsanctional methods, rather they requirea policy evolution by state system andimplementation of the measures throughmethods involving persuasion andefforts at change of habits of mind.

An example for the purpose ofclarity could be the provisions ofarticle 15 (3) “nothing in this articleshall prevent the State from making anyspecial provision for the protection ofwomen and children or the expressionof article 15 (4)……special provisionsfor the advancement of socially andeducationally backward classes ….”These are open ended and very wideprovisions and can be used both assoft or hard law way. It is unfortunatethat it has not been utilised for otherpurposes. The underlying assumptionof the interpretation of article 15 (3)and (4) and by implication of article16 (4) so far appears to be that unlessseats and posts, including promotionalposts are reserved for women andbackward classes in publicemployment, their status can never beimproved. It cannot be said that thereare no other methods to by whichstatus can be improved because to saythis is to overlook the wide scope ofthese provisions. The language ofarticle 15 (4) for example shows first,that reservations as such are notexpressly mentioned there, but fallwithin the wide expression “specialprovisions for the advancement of…”It is overlooked that special provisionsinclude every kind of assistance whichcan be given to backward classes andscheduled castes and scheduled tribesto make them stand on their feet or asis commonly said to bring them into

Social phenomenonhas its own dynamics

and any law that seeksto affect certain

changes into it withouttaking into

consideration thefundamental realitiesaround is bound to

result in failure.�

�


the mainstream of Indian life.Illustratively those measures wouldinclude grant of land either free or onnominal rent, the supply of seeds andagricultural implements, the supply ofexpert advice as to how to improvethe yield of land, provisions formarketing the produce and the like.Those measures would also includeschemes for training the backwardclasses to pursue trades or smallbusiness which would fetch areasonable income. In relation toeducation itself, under article 15 (4)the state can give free education, freetext books free uniforms andsubsistence allowance, meritscholarships and the like, starting fromthe stage of primary education andgoing right up to University and postgraduate education.

The second group of articles whichcan be said to be the storehouse ofsoft law approaches and thereby acatena of affirmative actionprogrammes can be constructed outof Directive Principles of StatePolicies. It may be noted that thePreamble to the Indian Constitution ofIndia, has enjoined the “sovereign,socialist, secular, democratic Republicof India, to secure to all its citizens,social economic and political justice”.Reserving seats and ensuring aminimum representation to deprivedand exploited sections of society in thelegislatures and other political bodiesensure political justice. Social andeconomic justice is intended to beachieved by the State in pursuance ofthe Directive Principles of state policycontained in chapter IV of theConstitution, which command the stateto remove existing socio-economicinequalities by special measures. All

these provisions are intended topromote the constitutional scheme tosecure equality.

Concluding ObservationsThis does not amount to saying that

the law with an instrumentalist visiondoes have no utility. There have beensubstantial number of studies about themain factors that make social controlthrough law effective. For exampleYehzkel Dror distinguishes betweendirect and indirect uses of law inpromoting change, Dror accepts thatseeking social change through lead lawapproach is fraught with danger, but heemphasizes that law can and does playan important, albeit indirect role infostering social change in many ways.First it can shape various socialinstitutions, which in turn have a directinfluence on the rate or character ofsocial change. For example lawstructuring a national education systemand providing for a national curriculumfor schools influence the scope andcharacter of educational institutions,which may help in affecting socialchange. Secondly law providesinstitutional framework for agenciesspecifically set up to exert influencechange. Thus for example setting upboards, agencies of various kinds may

be resorted to charged with promotingparticular policy goals and finallycreation of legal duties to establishsituations in which change is fostered.

American sociologist, William MEvans, writing in the light of Americanexperiences, shortlists some basicconditions, which may provide aframework of such a system of rulesthat may lead to social change. Firstsource of new law must beauthoritative and prestigious. Secondlythe rationale of the new law must beexpressed in terms of compatible andcontinuity with established cultural andlegal principles. Law in fact can bepowerful force for change, when thechange derives from a principle deeplyembedded in our heritage. Thirdlypragmatic models of compliance mustbe identified. The underlying idea of thiscondition is that law must not appearutopian but practical in its aims. Anotherimportant condition that Evans talks ofis the element of time in legislativeaction. But this condition appears to berather unenlightening answer to acomplex question. The appropriatetiming and strategy depends on theextent and complexity of change thatlaw seeks to bring about. ■

(Author is associate professor inIP University, New Delhi)

With best complimentsfrom

Auro ApparelsPunjagutta, Hydrabad, Andhra Pradesh

❈❈❈❈❈❈❈❈❈❈


Bharat as seen by the West

An interview with Dr. Ved Prakash Nanda, Director, International Legal StudiesProgram at the University of Denver and an internationally renowned jurist.He was also the former president of the World Jurist Association and Presidentof the World Association of Law Professors.

Recently Achin Jakhar, Advocate met Mr. Nanda when he was visitingBharat and took his interview for Nyayapravah.

Sir, What was the catalyst behindyour move to United States ofAmerica?

I was a Pracharak of RashtriyaSwayamsevak Sangh and in 1960'sone of my teacher's had come back afterdoing his doctorate from US and he isthe one who suggested I should go tothe United States and do the doctorate.I discussed the same with Param PujyaGuru Ji. After his approval of thethought I came from Bharat toUniversity of Chicago, and then I wentto Northwestern University, and thenwent to Yale.

How receptive was the UnitedStates to a newcomer from Bharat?Please share if there anychallenges while settling down in thenew country?

I always felt right at home from thetime I landed in United States. I havenever felt any discrimination or any sortof foreign behavior. It was always likeliving at home just the environment wasdifferent.

After college I started working for

the UN, State Department etc. andBharat people who work in academiaare taken very seriously so I neverfaced any issues of being from Bharatas a matter of fact I got a lot of respectbecause of my origins.

Yale sent me to UN initially as anintern, one of my professors at Yale wasa legal director at the UN so when Iwas finishing my doctorate he was the

one who invited me to work at the UNand it was such a wonderful opportunityso I took it.

So there was absolutely no suchincident which felt unwelcoming. It wasand still is a pleasant experience.

Can you please tell us a little bitabout your family?

My wife Kathrine is an Americanby birth and a very proud Hindu. As amatter of fact when we decided to getmarried she learnt more about cultureand being Hindu then I did. And mydaughter Anjali is a proud Hindu girl,especially because of her mother andnot me as I didn't have much timebecause of very busy schedule.

We are aware of Ved Nanda Centerfor International and ComparativeLaw, please indicate some of itssignificant role?

We have four major goals, firstly Iwant my students to go abroad andwork with international organizations soeach year we send about 5-10 studentsto work on organizations like


International War Crime Tribunals, inthe Hague, in Rowanda, InternationalCriminal Courts etc.

Secondly, I like to have studentsand people in Colorado to have theopportunity to have prominent legalfigures from around the world comeand work with them. So we have had,from the International Court of Justice,the Judges, Vice Presidents, prominentlegal advisors and other people to comeand spend time with my students andcommunity.

Thirdly, I want my students to beable to do some professional work soeach year we take some issues ofHuman Rights and they work with meand we Petition to the United Nations.

Lastly, we organize conferences oninternational law issues like Syria, Libiaand the responsibility to protect therights, sustainability and sustainablegrowth and where do we go on climatechange, international terrorism etc.

"Modernization withoutwesternization" What are yourcomments on it as a generalperception today in our countryamong youth is that to be modernyou have to be western?

In the present time it's actually verydifferent. The westerners are veryeagerly looking towards us. We haveso many yoga and meditation centersin United States. In business houses,yoga and meditation are becoming apart of daily routine.

So my answer would be that to bemodern you have to be western is abig illusion. But if by westernization youmean that we adopt certain values likeefficiency, punctuality, hygiene, don'tlitter on the street, etc. then those arevery good values and there is nothing

wrong in adopting them. Things arechanging rapidly world over. Evensimple things like being vegetarian is verywell respected everywhere.

We have seen many incidents ofhate crime recently the world over.What would you like to say aboutthe Sikh temple killing in Wisconsinrecently? What can we do to curbthe religious hate crimes especiallytargeted against Hindus?

It is a question of education. Weshould create awareness about Indiantraditions and who we are. In the UnitedStates, as you know there is always agroup which is extreme-rightist and theydon't want anyone but Anglo-Saxonpeople to be there. But their time has

gone. You can not stop all races fromliving and growing together.

Hate crimes will not stop itself butat the same time there is a great deal ofpreponderance against these kinds ofhate crimes. These things will take timeto totally stop but in the mean-while wehave to stand up against them stronglyand firmly. If you see closely, we havea wonderful and exceptionaly kind ofheritage but we just have to show it tothe people and educate them.

Bharat is the largest democracywhile the US is a democracy andworld power. In the present globalscenario please indicate the politicalmindset in American Leaders forBharat?

We have many wonderful friendsof Bharat in US like newly electedsenator Tulsi from Hawaii. In aninformal chat with her she told me thatshe has always been inspired by twothings Geeta and Shri Krishna. And shewill ensure she talks about both in theSenate. As a matter of fact she will takeoath on the Geeta. Even others likeCondoleeza Rice have always beenvery affectionate towards Bharat.

As far as the President isconcerned, we just have to wait andsee what happens but at the outset Ican say that things are looking goodfor Bharat because with time more andmore senators and secretaries havestarted showing a lot more respecttowards us which is a very good sign.Not only that, I think there will be aglobal pressure on the administrationin US to be a close associate ofBharat. So things are looking prettygood as of now and we are hopefulpresident Obama will walk the walknot just talk the talk. ■

'To be modern youhave to be western',this is a big illusion.

But if bywesternization youmean that we adoptcertain values like

efficiency, punctuality,hygiene, don't litter on

the street etc. thenthose are very goodvalues and there isnothing wrong inadopting them.

�

�


The perceptions of SwamiVivekananda about the social,economic and political state ofIndia

❑❑❑❑❑ Vikramjit Banerjee

Swami Vivekananda is alsointerestingly a person whose

philosophy and reading of theconception of India , Hinduism and thepeople of India, is very much touchedwith his experiences in the United Statesof America and the New World , unlikemost of India's other politicalphilosophers like Mahatma Gandhiwhose experience of the west camefrom the British or Britain.

Swami Vivekananda is amanyways engaged with the ideaswhich still haunt us today. He is also aperson who had traveled extensivelyacross the world , speaking about India. He is possibly the foremost person ofhis times who confronts the question ofcaste, religion, minorityism, modernism, economics and politics of India and

he brought a refreshing viewpoint to thesame. He was articulate and very clearand with his writings and sayingsmanaged to set the agenda which is stillwith us today .

Vivekananda is a radicaltraditionalist. His version andinterpretation of high religiousphilosophy was also marked with a veryspecific political / economic outlookwhich arose from his concern about thepeople of his country , or his co-religionists . His vision is still relevantand broadly and startlingly stillapplicable in India today . However hethrough out because of his curiouspredicament remained scrupulously"apolitical" in that he always never tookstrong "political" stands against theGovernment at that time , being the

British , since he realized that hisintention to spread mass awarenesswould not be possible if the Britishbecame a hindrance to the same , yethis actual views and his sympathy forthe goals of the Indian NationalCongress was barely hidden , as maybe apparent from an interview whichhe gave to various of his disciples andfollowers. His trenchant views onColonialism is apparent in his essaytitled "East and West".

Interestingly his exploration ofHinduism and the condition of thepeople of India leads him to two broadpresumptions , one that religion cannotbe given on an empty stomach and two, the poor of India or as he would liketo term the "sudra" should beawakened . This has lead to attempts

Vivekananda believed the caste system to be one of the greatest socialsystems possible but in his own words "that through unavoidable defects,foreign persecutions, and, above all, the monumental ignorance and pride ofmany Brahmins who do not deserve the name, have thwarted in many ways,the legitimate fructification of this most glorious Indian institution".


by socialists and communists toappropriate the legacy of SwamiVivekananda . However Vivekanandawas clearly and completely againstformal rigid equality though he did claimto be a socialist in a very colloquialsense . Vivekananda recognized clearlythat for a society to work in the longrun , man had to be given theopportunity to excel and make money… and he has memorably and famouslyequalized the Grihasta (householder)making money with an anchorite(sadhu) praying in his cell .

Vivekananda believed that theconception of caste was present inevery society of the world , however inIndia it was the responsibility of thoseat the top of the pyramid in India ,namely the Brahmin to raise those whoare lower than him. He believed thecaste system to be one of the greatestsocial systems possible but in his ownwords "that through unavoidabledefects , foreign persecutions , and ,above all , the monumental ignoranceand pride of many Brahmins who donot deserve the name , have thwartedin many ways , the legitimatefructification of this most glorious Indianinstitution". Infact Vivekananda was ofthe view that the institution of caste wasthe most effective resistance whichallowed India to defend it againstinvaders and the objective should beto raise the lower classes to higher classto Brahminhood.

Vivekananda had a very strikinganalysis of time and societies , hebelieved that societies havepreponderance of qualities wheresometimes either the Brahmin ,Kshatriya , Vaisya or Sudra valuespredominate , all such societies havetheir advantages and their

disadvantages . He also stronglybelieved that all societies moved incycles of one age followed by the other.

He antedates Gandhi's thinking onnon violence his view being nonviolence and passive resistance is anaction by the very brave and should notbe an excuse by the weak , almost tothe very specifics echoed by MahatmaGandhi to justify passive resistance asa means of political action . He talksabout democracy and self rule and theneed to be rational in the application ofour history and culture but he wasskeptical of the rule of the majority .He vehemently opposes the Aryaninvasion theory ( both on the groundsthat it is not sound and on the groundthat India is a composite entity ) andpromotes the cause of the Shudra andthe untouchable .

Vivekananda was extremelyperceptive of the problems of the"untouchable community "in India andhis criticism was trenchant onBrahminism in that regard .He is theoriginator of the word "Dalit", a wordto be used for the pariahs , since it is adirect translation from the word"suppressed" to describe the situationof the "pariahs" of his time. Interestinglyhe realized as well that the only way todestroy the caste system in India wasthrough "free market."

Vivekananda is unique in that he isneither in thrall of the past , nor is hewilling to discard everything from it .He says clearly that India needs to learnfrom the west but he is worried thatwesternization should not sweepeverything that is worthy and good inIndia. Gandhi himself realized thatthough Vivekananda looked to the pastfor inspiration he did not want toreplicate the past. In that way he is the

"middle path" between Gandhi andAmbedkar ,and therefore reflective ofthe true Indian mean in society.

Swami Vivekananda's reading bothon modern and ancient texts is vast andhis capability of drawing apt practicallessons from them is unparalleled.

In relation to the question ofreligion, it is striking that whatVivekananda had to say , he was clearlypro religion and was of the view thatwhat was behind what goes as ill effectsof religion was not due to religion perse , but the politics behind religion .In amost interesting paragraph he states thedilemma of the intermixture of religionand politics and the pitfalls that arise asa result .He was of the specific viewthat religion " is neither talk nor theorynor intellectual consent" . Howeverpresciently he was extremely specificand clear that in India religion is integraland possibly the key element to publiclife and even if you have to explainpolitics you have to do it throughreligion.

Most interestingly Vivekanandawas very clear that the greatestchallenge in India was to assimilate allthe constituents of India, however hewas also clear that attempts to use forceto enforce a common culture would failas would attempts to impose acommon language however a laudableobjective it may be .

His perception of monotheism asindeed of absolutism remains extremelyperceptive "Monotheism like absolutemonarchy is quick in executing orders, and a great centralization of force ,but it grows no farther , and it's worstfeature is it's cruelty and persecution .All nations coming within it's influenceperish very soon after a flaring up of afew years." The solution he suggests is


something which is still reflected in thewords of the Supreme Court of Indiaand the great cliché repeated adhominem by the Indian state (EkamSadvipra Bahuda Vadanti) which hesaid was the keynote to everythingwhich has succeeded ,and the keystoneof the arch.

In the present tumultuous timestherefore he stands as an inspiration ofa very unique philosophy which is notinward looking yet very proud of beingwhat it is. He is the person who putsthe markers which comprise the clearboundaries of modern popularHinduism as well modern Indiannationalism. He also recognizes theeconomics of his age and the impacton India.

Vivekananda and the Ideals of theIndian state

The question here is what sort ofan Indian state would SwamiVivekananda have envisaged? It is adifficult to answer since SwamiVivekananda deliberately kept out ofpolitics and consciously so. Yet , wecan summrise some of the broadoutlines that he would have lookedforward to. I no doubt realize that myguess is as good as anyone else's as towhat sort of a grundnorm wouldVivekananda have wanted, but for thesake of the present article I am puttingforward my thoughts .

One thing is certain he would havedefinitely wanted a more equal society, both in economic terms as well as insocial terms , that much is clearlyapparent from his writings. But as hewanted say that he was not againstinequality per se as it was the nature ofthings , but he was against "privilege".It would seem however he would not

have wanted a state under a plannedeconomy , he was clearly of the viewthat the duty of a Grihasta was to createand distribute wealth . He perhapswould have focused the constitution onthe Grihasta and the family and put onthem the onus of creating anddistributing wealth in the society . Hewould have perhaps wanted the rich tobe more integrated in the developmentof the society . It seems he wanted astrong independent Indian state , a statewhich used it's mechanism to help thepoor. He always said that he would notbe against modern technology if it wasfor the benefit of the poor , which wasvery unlike Mahatma Gandhi's stand onmodern technology and civilization inhis famous work " Hind Swaraj".

It is possible that he would havepreferred a country which recognizedthe importance of religion and the Hindureligion to the society but which wouldbe based on the eternal truth of "EkamSadvipra Bahuda Vadanti" , that is thereis one truth and the wise call it by manynames …in other words genuine anddeep tolerance for all methods ofworship.

Vivekananda would have wanted

a country in which caste which isattached with privilege did not exist andindeed saw the future of caste as weknow it today doomed , however hewould have been definitely against warin the name of caste consciousness andthe annihilation of caste . He saw thesolution to India's problems not in theabolition of caste per se but in theending of privileges and by attemptingto raise everyone to Brahminhood andnot by bringing any one down .

Vivekananda , was always aproponent of individual liberty andfreedom , yet based on Bharatiyatradition .He was also a democrat andwas clearly against the rule of kings. Hewas also quite skeptical of the rule ofmajority and in a fantastic paragraphhe clearly states that the danger ofparliamentary democracy is that itbecomes hostage to business interests.

Swamiji would have also possiblypreferred Sanskrit as the nationallanguage for all India , though he wasagainst the imposition of any specificlanguage policy.

However undoubtedly he wouldhave wanted a strong resurgent India .An India which would enjoy it's rightfulplace in the world .However he wouldhave wanted a spiritual India and anIndia which has not forgotten it's olderculture and wisdom .

In the end if there could be an"ideology" of Swami Vivekananda (though I am sure he himself would haveskeptical of any ideology ) it can besaid to be encapsulated by oft quotedfollowing quote which still haunts ustoday :

"O India! With this mere echoingof others, with this base imitation ofothers, with this dependence on othersthis slavish weakness, this vile


detestable cruelty - wouldst thou, withthese provisions only, scale the highestpinnacle of civilisation and greatness?Wouldst thou attain, by means of thydisgraceful cowardice, that freedomdeserved only by the brave and theheroic? O India! Forget not that theideal of thy womanhood is Sita, Savitri,Damayanti; forget not that the God thouworshippest is the great Ascetic ofascetics, the all-renouncing Shankara,the Lord of Umâ; forget not that thymarriage, thy wealth, thy life are not forsense-pleasure, are not for thyindividual personal happiness; forget

not that thou art born as a sacrifice tothe Mother's altar; forget not that thysocial order is but the reflex of theInfinite Universal Motherhood; forgetnot that the lower classes, the ignorant,the poor, the illiterate, the cobbler, thesweeper, are thy flesh and blood, thybrothers. Thou brave one, be bold, takecourage, be proud that thou art anIndian, and proudly proclaim, "I am anIndian, every Indian is my brother." Say,"The ignorant Indian, the poor anddestitute Indian, the Brahmin Indian, thePariah Indian, is my brother." Thou,too, clad with but a rag round thy loins

Quartely News Magazine of Akhil Bharatiya Adhivakta ParishadR.N.I. No. DELBIL/2002/9703

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proudly proclaim at the top of thy voice:"The Indian is my brother, the Indian ismy life, India's gods and goddesses aremy God. India's society is the cradle ofmy infancy, the pleasure-garden of myyouth, the sacred heaven, the Varanasiof my old age." Say, brother: "The soilof India is my highest heaven, the goodof India is my good," and repeat andpray day and night, "O Thou Lord ofGauri, O Thou Mother of the Universe,vouchsafe manliness unto me! O ThouMother of Strength, take away myweakness, take away my unmanliness,and make me a Man!" ■


There is a growing view that thepower of the nation state is being

eroded by globalisation, but one neverknew that it would go to the extent ofan Award being passed by an arbitraltribunal in Singapore criticizing theSupreme Court of India for its delay inhandling cases and directing theGovernment of India to compensate aninvestor from Australia for such delay.The Award would send shock wavesto any right thinking person and wouldcompel him to wonder at the way inwhich the babus sitting in Delhi signInternational Treaties and also themanner in which our Governmentconducts international arbitrations.

The case aforementioned arose inthe following circumstances: InSeptember, 1989 an AustralianCompany called White Industriesentered into a contract with Coal IndiaLtd., for the ‘supply of equipment toand development of a coal mine atPiparwar’ in the state of Uttar Pradesh.

Globalization and the JudicialSovereignty of India

Over a period, certain disputes arosebetween the parties and as providedby their contract, the disputes werereferred to arbitration. In May, 2002,an arbitral tribunal in London, by itsmajority opinion passed an award infavour of White Industries for a sum of$ 4.08 Million. Coal India challengedthe award in the Calcutta High Courtand White Industries made anapplication to the Delhi High Court forthe enforcement of the Award. Theproceedings in both the courts went onfor some time. In the meanwhile, theSupreme Court rejected White’sapplication for transferring the Calcuttacase to Delhi. White Industries had alsofiled an application in the Calcutta HighCourt to reject the application filed byCoal India as not maintainable. Thatapplication was rejected and finally thematter was taken up to the SupremeCourt. The Supreme Court after hearingthe matter at length found that animportant question arose as to whether

a proceeding against an internationalaward passed outside India could beentertained here. The case was,thereupon, referred to a larger benchalong with a few other cases as thebench doubted the correctness of itsearlier decision in Venture Global Vs.Satyam Computers wherein it was heldthat the award passed outside India wasamenable to the jurisdiction of IndianCourts. It was only during the first weekof Septemeber, 2012, that the SupremeCourt rendered a judgment in the abovecases by prospectively overruling thedecision in Satyam.

In the meanwhile, White Industriesinvoked the provisions contained in abilateral treaty executed by andbetween the Governments of India andAustralia in the year 1999 and launcheda claim for compensation from theGovernment of India. It was alleged thatthe claimant could not enforce theaward it obtained against Coal Indiabecause of the delays on the part of

The judicial function is one of the major sovereign functions of a State. Noperson or authority can be allowed to sit in appeal against the functions of theJudiciary except in accordance with the provisions of the Constitution of India.No outside agency can be allowed to evaluate the orders of the Indian Courtsand to pronounce their judgment over the same. No International Treaty couldcontain any provision or clause which enables any such agency to do so.

❑❑❑❑❑ P.K. Suresh Kumar


“The Tribunal has no difficulty inconcluding the Indian judicial system’sinability to deal with White’sjurisdictional claim in over nine years,and the Supreme Court’s inability tohear White’s jurisdictional appeal forover five years amounts to undue delayand constitutes a breach of India’svoluntarily assumed obligation ofproviding White with ‘effective means’of asserting claims and enforcing rights.”

“Having reached the conclusionthat an Indian court, acting reasonablyand complying with India’s internationalobligations, would conclude that CoalIndia had not established that the Awardought to be set aside or not enforced,the Tribunal determines that White isentitled to full compensation for the lossit has suffered as a consequence ofIndia’s breach of the BIT. Thiscompensation includes: a) the amountof A$ 4,085,180 payable under theaward; b) interest on this amount at therate of 8% from 24 March 1998 until

the Indian Judiciary and therefore theGovernment of India was liable tocompensate the Company. In anarbitral proceeding held at Singapore,the arbitral tribunal passed an awardaccepting the claim of WhiteIndustries and directed theGovernment of India to pay aroundFifty Crores Rupees to it.

It is not the monetary part of theAward that is important but the basisof the award. It is the incompetence ofthe Indian Judiciary that is taken as thebasis for awarding compensation. Thefollowing words of the Arbitral Tribunalwould send shudders down the spineof any Indian who believes that hisnation is still a sovereign State:

“The most recent delay in this casestems from the apparent inability of theSupreme Court to impanel a threeJudge Bench in a timely manner andfrom the stay ordered of theenforcement proceedings by the DelhiHigh Court.”

the date of payment; c) the amount ofUS $ 84000 payable under the Award(for the fees and expenses of theArbitrators); and d) the amount of A$500000 payable under the Award (forWhite’s costs in the ICC arbitration).”

Thus, an arbitral tribunal criticisedthe Indian Supreme Court and theIndian Judiciary in general and madethe Government of India liable tocompensate a company for the lapseson the part of the judiciary. This isnothing but an attack on the judicialsovereignty of the nation. The judicialfunction is one of the major sovereignfunctions of a State. No person orauthority can be allowed to sit in appealagainst the functions of the Judiciaryexcept in accordance with theprovisions of the Constitution of India.No outside agency can be allowed toevaluate the orders of the Indian Courtsand to pronounce their judgment overthe same. No International Treaty couldcontain any provision or clause whichenables any such agency to do so.

The Indian Judiciary functionsindependently of the ExecutiveGovernment of the State. Suchindependence is a basic feature of theConstitution of India. The concept ofindependence of judiciary, according tothe Supreme Court of India, is a nobleconcept which inspires theconstitutional scheme and constitutesthe foundation on which rests the edificeof Indian democratic polity. TheExecutive Government cannot,therefore, enter into any treaty, whetherdomestic or international, which wouldaffect such independence of thejudiciary. It is a shame on whoever haspaved the way for a bilateral treatybeing instrumental in awardingcompensation on account of a sovereign


function. The babus who sign thetreaties should go through the variousclauses in the treaties and agreementsbefore putting their signatures andbefore fastening the whole nation withvarious liabilities.

Now, another aspect to beexamined is that whether the 1999agreement between Australia and Indiawould in anyway entitle an investor tomake a claim of the present nature? Onreading the whole agreement, I feel thatthe counsel who appeared for Indiacould have very well argued that whatwas protected by the agreement wasonly the investor’s right to be treatedfairly and justly as per the laws and thesystem prevailing in the country andtherefore, the delay on the part of the

judiciary would not give rise to a causeof action in favour of the claimant. But,no such argument was seenaddressed. Anyway, it is not the meritof the Award that is the subject matterof this article.

The question is as to whether theExecutive Government could haveentered into an agreement which wouldempower an investor from a foreignnation to sue for compensation onaccount of the delay in our judicialsystem? If the agreement has such aneffect, does it not amount to surrenderof our sovereignty? According to me,the entire matter deserves a nationwidedebate and those who are responsiblefor irresponsibly signing suchagreements have to be made

answerable.If those who entered into the treaty

had applied their mind they could havevery well avoided the arbitration clausewhich enables an ‘Investor’ also toraise a dispute. The dispute resolutionclause in the agreement between twoGovernments should have conferredrights in that regard only on thecontracting Governments and not onanyone else. Similarly, the agreementshould have specifically clarified that theprotection given to an investor is inaccordance with the system prevailingin the country. It is due to a lack ofapplication of mind on the part of thebureaucracy to such aspects thatsituations like the ones mentioned herein arise. ■


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eË; izns'kXokfy;j % vfèkoDrk ifj"kn Xokfy;j }kjk lafoèkku fnol ds

volj ij Xokfy;j gkbZdksVZ ds ckj lHkkx`g esa ^^Hkkjr dk lafoèkku,oa tEew d'ehj** fo"k; ij dk;ZØe vk;ksftr fd;k x;kA vfèkoDrkifj"kn~ }kjk vk;ksftr dk;ZØe esa fopkj O;Dr djrs gq, vfèkoDrkfoosd Bkdqj us dgk fd 1988&2011 rd d'ehj esa 15000

ukxfjd ekjs tk pqds gaS vkSj 6000 ls vfèkd gekjs lqj{kk toku'kghn gks pqds gSaA ia- usg: dh O;fDrxr&fgrksa ds fy, jk"Vª&fgr dksfrykatfy nsus okyh xyr uhfr;ksa ds dkj.k vkt ge d'ehj leL;kdk na'k >sy jgs gSaA mUgksaus dgk fd d'ehj HkkSxksfyd lajpuk dhn`f"V ls iwjs ,f'k;k ij utj cuk, j[kus dk egRoiw.kZ dsUnz gSA d'ehjdks fo'ks"k ntkZ nsus okyh lafoèkku dh vLFkk;h èkkjk 370 ds dkj.k'ks"k Hkkjr ds fdlh Hkh fgLls dk fgUnq ;k eqlyeku ogka tkdjtehu ugha [kjhn ldrkA Hkkjr ljdkj }kjk d'ehj esa 9700 #Ik;sizfr O;fDr lgk;rk ds :Ik esa fn;s tkrs gSaA blds ckn Hkh d'ehjesa vyxkooknh ,oa ikfdLrku ijLr rkdrsa gkoh gSaA mUgksaus dgk fd;g le> ls ijs gS fd D;ksa vuqPNsn 370] ftls lafoèkku esa vLFkk;h:Ik esa j[kk x;k Fkk] vHkh Hkh lafoèkku dk LFkk;h ,oa vfofPNu vaxcuk gqvk gS\ d'ehj ls vuqPNsn 370 gVkus ds fy, tuer cukukvko';d gSA

dk;ZØe ds izkjEHk es vfèkoDrk ifj"kn~] eè; izns'k ds izns'kegkea=kh nhisUnz flag dq'kokg us dk;ZØe dk lapkyu djrs gq,eapklhu izeq[k dk;ZdÙkkZvksa dk ifjp; djk;k vkSj dgk fd fdlhlafoèkku dh liQyrk vliQyrk dh dlkSVh ;gh gS fd jk"Vªh;y{;kas ds ge fudV x;s ;k nwj\ lafoèkku dh Hkwfedk jk"Vª dks mldsfuèkkZfjr y{;ksa rd ys tkus okys ekxZ dh gksrh gSA vfèkoDrk ifj"kn~ds mDr dk;ZØe esa izeq[k :Ik ls jk"Vªh; laxBu ea=kh deys'k flagmifLFkr FksA dk;ZØe dh vè;{krk ofj"B vfèkoDrk ';kefcgkjhfeJk us dhA dk;ZØe dk lapkyu vfèkoDrk ;ksxs'k ijk'kj us fd;kA

ujflagiqj % vfèkoDrk ifj"kn~ }kjk lafoèkku fnol ds voljij ujflagiqj ckj ,lksfl,'ku lHkkxkj esa ^^U;k; pkfg, fujkdj.kugha** fo"k; ij dk;ZØe dk vk;kstu fd;k x;kA mDr dk;ZØe esaeq[; oDrk ds :Ik esa cksyrs gq, iwoZ egkfèkoDrk vkj-,u- flag usdgk fd vfèkoDrkvksa ,oa U;k;kèkh'kksa dks mu ekeyksa dks xaHkhjrk lsysuk pkfg, ftuesa ckj&ckj LFkxu fy;k tkrk gS o okn o"kks± rdyfEcr iM+s jgrs gSaA blls ,d vksj rks i{kdkjksa ds lkFk U;k; ughagks ikrk gS ogha nwljh vksj U;k;ky;ksa ij Hkh izdj.kksa dk vuko';dcks> c<+rk gSA vfèkoDrk ifj"kn~] eè; izns'k ds izns'k vè;{k Vh-,l-:ijkg us dgk fd orZeku le; esa U;k;ky;ksa ds ikl vko';dbUizQkLVªDpj dh deh ,d egRoiw.kZ leL;k gSA mUgksaus dgk fdU;k;ky;ksa ls yksxksa dks fu.kZ; ugha cfYd U;k; feyuk pkfg,A

egw (bUnkSj) % vfèkoDrk ifj"kn~ egw (bUnkSj) bdkbZ }kjklafoèkku fuekZrk Mk- Hkhejko vEcsMdj dh tUeLFkyh egw esa mudhizfrek ij ekY;kiZ.k (iq"ikatfy) dj lafoèkku fnol dk;ZØe dk'kqHkkjEHk fd;k x;kA bl volj ij dk;ZØe dks lEcksfèkr djrs gq,eq[; vfrfFk] vfrfjDr ftyk U;k;kèkh'k 'k'kkad gqíkj us dgk fdlafoèkku vktknh vkSj [kq'kgkyh ds ok;ns dk nLrkost gSA ;g

ck,a ls Jh 'kkafrLo:i feÙky] U;k;ewfrZ Jh nhid xqIrk]Jh yksdsUnz Bkdqj ,oa Jh rkjk flag pkSgku


lq'kklu ds fy, fyfic¼ Hkkoiqat Hkh gSA bls etcwrh nsus ds nkf;Rodk fuogZu lHkh ukxfjdksa dks djuk pkfg,A dSUVksUeSUV cksMZ dsmikè;{k dSykk'knÙk ik.Ms us dgk fd lafoèkku fdlh Hkh ns'k dhloksZPp fofèk gksrk gSA ns'k dks dkuwu dh lhekvksa esa ckaèkrs gq, mldslqpk: lapkyu ds fy, lafoèkku dh vko';drk gksrh gSA blvolj ij cksyrs gq, dk;ZØe ds eq[; oDrk ofj"B vfèkoDrk'ks[kj cqUnsyk us dgk fd ns'k ds lafoèkku ds vuqPNsnksa vkSjvuqlwfp;ksa esa fy[ks 'kCnksa ls ns'k dk orZeku vkSj Hkfo"; fuèkkZfjrgksrk gSA vfèkoDrk ifj"kn~ ds izns'k ea=kh foØe nqcs us ^lafoèkkufnol* ds fo"k; esa tkudkjh nsrs gq, lafoèkku dh ewyHkwr fopkjèkkjk]vkn'kks±] fl¼karksa vkSj izkFkfedrkvksa ij izdk'k MkykA bl ekSds ijckj ,lksfl,'ku vè;{k euh"k tk;loky] lfpo jfo vk;Z izeq[k :Ikls mifLFkr FksA

μ nhisUnz flag dq'kokgizns'k egkea=kh] gkbZdksVZ Xokfy;j

iatkctkyaèkj % vfèkoDrk ifj"kn~ tkyaèkj bZdkbZ }kjk fnukad 18

uoEcj 2012 dks iatkc esa cSBd dk vk;kstu fd;k x;kA cSBd dkvkjEHk nhi izTToyu dj fd;k x;kA cSBd esa iatkc ds dbZ ftyksa lsvfèkoDrkvksa us Hkkx fy;kA cSBd esa eq[; vfrfFk] jk"Vªh; dk;Zdkjhvè;{k cynso egktu] ofj"B vfèkoDrk iatkc ,oa gfj;k.kk gkbZdksVZ

ds lkFk fodkl egktu] vfèkoDrk mPpre U;k;ky;] ubZ fnYyhizns'k egkea=kh fnYyh Hkh mifLFkr jgsA

cSBd ds izFke l=k esa fodkl egktu us dgk fd vf[ky Hkkjrh;vfèkoDrk ifj"kn~ dk jk"Vªh; vfèkos'ku] 26&28 fnlEcj 2012 dksHkqous'oj] mM+hlk esa gksxk ftlesa ftyksa o rglhy Lrj ds vfèkoDrkvksadks Hkh igqapuk pkfg,A f}rh; l=k esa foosd Bkdqj] vfèkoDrk uslafoèkku fnol dks euk, tkus dk vkSfpR; crk;kA Jh cynso egktuus ih-vkbZ-,y- dks èkkjk 91 ,oa èkkjk 92 (U/S 91 & U/S 92 of

CrPC) ds fo"k; esa crk;k vkSj bls ftys Lrj ij fdl izdkj iQkbyfd;k tk;s] bldh Hkh tkudkjh nhA lqHkk"k yqVkok us cSBd esa vk;slHkh vfèkoDrkvksa dk èkU;okn fn;kA

jktiqjk % vfèkoDrk ifj"kn~ jktiqjk dh vksj ls ckj ,lksfl,'kujktiqjk esa fnukad 27&10&2012 dks ekuo vfèkdkj o vfèkoDrk dhHkwfedk* fo"k; ij lsehukj dk vk;kstu fd;k x;k ftlesa dbZ izeq[kvfèkoDrkvksa us Hkkx fy;kA

Jh cyftUnj flag Bkdqj (ekuo vfèkdkj vk;ksx lnL;] iatkc)us dgk fd iatkc ekuo vfèkdkj deh'ku ds ikl vyx&vyxekeyksa esa 1 yk[k 83 gtkj f'kdk;rsa 30 flrEcj 2012 rd vkbZ Fkha]ftuesa ls 1 yk[k 73 gtkj f'kdk;rksa dk fuiVkjk dj fn;k x;k gSAvfèkdrj f'kdk;rsa iqfyl foHkkx ls lacafèkr Fkha ij mlds lkFk&lkFkf'k{kk] uxj fuxe o uxj dkSaf'ky] fctyh foHkkx ls lacafèkr f'kdk;rsaHkh deh'ku ds ikl vkrh gSaA mUgksaus dgk fd yksxksa dks vius ekuovfèkdkjksa ds izfr tkx:d djus ds fy, ,sls lsehukjksa dk vk;kstu

vf/oDrk ifj"kn] iatkc] tkya/j bZdkbZ }kjk vk;ksftr cSBd esa vf/oDrk cU/q


dk;ZØe esa cksyrs gq, tfLVl ,e-,u- Hk.Mkjh

vfr vko';d gS vkSj blds fy, vfèkoDrk egRoiw.kZ Hkwfedk fuHkkldrs gSaA jk"Vªh; dk;Zdkjh vè;{k Jh cynso egktu us jktiqjk bZdkbZdks bl lsehukj ds liQy vk;kstu ds fy, c/kbZ nsrs gq, dgk fd,sls lsehukjksa dk vk;kstu dsoy iatkc esa gh ugha cfYd iwjs Hkkjr o"kZesa djuk pkfg, rkfd yksxksa dks vius vfèkdkjksa ds ckjs esa tkudkjhfey ldsA jktiqjk bZdkbZ ds vè;{k ,MoksdsV fd'ku flag us ogka vk;svfèkoDrkvksa ,oa ckj ,lksfl,'ku jktiqjk ds lHkh vfèkdkjhx.k olnL;ksa dk lg;ksx nsus ds fy, èkU;okn fn;kA

μ cyjkt 'kekZegkea=kh

jktLFkkulafoèkku fnol % vfèkoDrk ifj"kn~] jktLFkku dh vksj ls

jktLFkku izns'k esa lafoèkku fnol* ds miy{; esa 26 uoEcj dks izns'kHkj esa dk;ZØe vk;ksftr fd;s x;sA t;iqj] tksèkiqj] vyoj] lokbZekèkksiqj] èkkSyiqj] Vksad] chdkusj] pq:] [ksrM+h] >qa>quwa] HkhyokM+k]vtesj] mn;iqj o jk;flag uxj lfgr iwjs izns'k esa vk;ksftrlafoèkku fnol ds dk;ZØeksa esa lekt ds fofHkUu oxks±] lkekftdlaxBuksa ds izfrfufèk;ksa] vfèkoDrkx.k] U;k;kfèkdkjhx.k] fofèkosÙkk]lekt fpUrd&fopkjd] fofèk Nk=kksa ,oa tu lkekU; dh mifLFkfregRoiw.kZ jghA

xaxkuxj esa lafoèkku fnol dh iwoZ laè;k ij 25 uoEcj dks ckj,lksfl,'ku gkWy] U;k;ky; ifjlj esa dk;ZØe vk;ksftr gqvk ftlesaeq[; oDrk Jh xqjpj.k flag fxy] jk"Vªh; vè;{k] jk"Vªh; fl[k laxrjgsA

tksèkiqj esa 26 uoEcj dks ckj ,lksfl,'ku gkWy] U;k;ky; ifjljesa vk;ksftr dk;ZØe esa eq[; oDrk fgekpy mPp U;k;y; esavfrfjDr egkfèkoDrk Jh foosd flag Bkdqj us U;kf;d lqèkkj fo"k;ij fopkj O;Dr fd;kA

t;iqj esa 26 uoEcj dks ,l-,l- tSu lqcksèk LukrdksÙkj egkfo|ky;ds lHkkxg esa lafo/ku fnol vk;ksftr gqvkA dk;ZØe esa eq[; oDrk,oa eq[; vfrfFk jktLFkku mPp U;k;ky; t;iqj ihB esa U;k;kèkh'ktfLVl ,e-,u- Hk.Mkjh FksA lekjksg dh vè;{krk Jh j?kquUnu[k.Msyoky] ofj"B vfèkoDrk] t;iqj us dhA tfLVl ,e-,u- Hk.Mkjhus ^^Hkw&laj{k.k] pqukSfr;ka ,oa lekèkku** fo"k; ij fopkj O;Dr djrsgq, lafoèkku fnol ij fo"k; ds egRo dks js[kkafdr dj vfèkoDrkifj"kn dks lafoèkku fnol tSls izsjd ,oa jpukRed dk;ZØe vk;ksftrdjus ds fy, cèkkbZ ,oa èkU;okn Kkfir fd;kA mUgksaus Hkw&laj{k.k esafofHkUu fu.kZ;ksa dk mYys[k djrs gq, U;k;ikfydk ds ;ksxnku dksegRoiw.kZ crk;k rFkk dk;Zikfydk o foèkkf;dk dh ea'kk ij iz'umBk,A tfLVl HkaMkjh us vfèkoDrk ifj"kn ls tufgr ds ekeyksa esa vkxsvkus dk vkàku fd;kA Jh clar Nkck] izns'k egkea=kh] vfèkoDrkifj"kn~] jktLFkku us lafoèkku fnol ij izns'k o ns'k Hkj esa vk;ksftr


dk;ZØeksa dh tkudkjh nhA dk;ZØe esa ièkkjs vfrfFk;ksa dks Lefr fpUgHksaV dj lEekfur fd;k x;kA

mn;iqj esa 26 uoEcj dks ckj ,lksfl,'ku gky esa vk;ksftrdk;ZØe esa eq[; oDrk Jh 'kkafryky piyksr ,oa dk;ZØe ds vè;{kJe U;k;ky; ds U;k;kèkh'k Jh rkjkpan lksuh jgsA dk;ZØe esa yksdra=kdh pqukSfr;ka* fo"k; ij fopkj O;Dr fd;s x;sA

vyoj esa 26 uoEcj dks ckj ,lksfl,'ku gky esa dk;ZØevk;ksftr gqvk ftlesa eq[; vfrfFk ds :i esa lsokfuor ftykU;k;kèkh'k Jh fo".kq nÙk nqcs mifLFkr jgsA dk;ZØe dh vè;{krk ckj,lksfl,'ku ds vè;{k Jh jkds'k 'kekZ us dhA dk;ZØe esa iwoZ vè;{kfouksn 'kekZ] ckcw flag jk?ko] lfpo] ckj ,lksfl,'ku o ds-th-[k.Msyoky us Hkh fopkj O;Dr fd;sA

blh Øe esa vtesj bZdkbZ }kjk ckj ,lksfl,'ku lHkkxkj esavk;ksftr dk;ZØe esa eq[; oDrk Jh Mh-ds- flag] izkpk;Z] jktdh;fofèk egkfo|ky;] vtesj] eq[; vfrfFk Jh guqeku flag] {ks=kh;dk;Zokg o Jh txnh'k flag jk.kk] izns'k vè;{k vfèkoDrk ifj"kn~]jktLFkku mifLFkr jgsA

izns'k vfèkos'ku&2012vfèkoDrk ifj"kn~] jktLFkku dk izns'k vfèkos'ku fnukad 27 ,oa

28 vDVwcj] 2012 dks jktsUnz 'kkfUr fogkj] dk;k] mn;iqj esa vk;ksftrgqvkA nks fnolh; izns'k vfèkos'ku esa jktLFkku dh fofHkUu bZdkbZ;ksa ls273 izfrfufèk;ksa us Hkkx fy;kA vfèkos'ku dk eq[; fo"k; ^fofèkfuekZ.k izfØ;k&orZeku ifjn'; ,oa vfèkoDrkvksa dh Hkwfedk* j[kkx;kA

vfèkos'ku ds izFke fnu mn~?kkVu l=k esa iwoZ dsUnzh; ea=kh ,oamPpre U;k;ky; ds ofj"B vfèkoDrk Jh txnhi èkudM+ us eq[;oDrk ds :i esa lacksfèkr djrs gq, dgk fd ns'k esa o"kks± ls lekuvkpkj lafgrk dh ekax dh tk jgh gS ftldh vR;ar vko';drk gSAmUgksaus dgk fd tc dkuwu ds fuekZ.k gsrq igys ls gh laln] foèkkulHkk,a gSa] vè;kns'k Hkh bldk ,d ekè;e gS rks us'kuy ,MokbtjhdesVh tSlh laLFkkvksa dh D;ksa vko';drk gSA mUgksaus dgk fd ,slhlaLFkkvksa esaa fofèkosÙkkvksa dks ugha fy;k x;k vkSj fofèk ds vKkuh dkuwucuk jgs gSaA ;g ljdkjh ra=k dk nq:i;ksx gSA

Jh vkj-,u- ekFkqj ofj"B vfèkoDrk] jktLFkku mPp U;k;ky; us^^Hkw laj{k.k&pqukSfr;ka ,oa lekèkku** fo"k; ij fopkj O;Dr djrs gq,Hkw laj{k.k dks egRoiw.kZ crk;k vkSj dgk fd vxj Hkwfe nksgu ijfu;a=k.k ugha gqvk rks Hkfo"; vaèkdkje; gksxkA Jh ekFkqj us dgk fdiFoh ij Hkwfe dk lhekadu lhfer gSA

dk;ZØe ds vè;{k iwoZ foèkkulHkk vè;{k Jh 'kkafryky piyksrus dgk fd ns'k gj {ks=k esa nzqr xfr ls fxjkoV dh vksj gS ftls cpkus

dh ftEesnkjh vc vfèkoDrkvksa dh gSA mUgksaus dgk fd vc og le;vk x;k gS tc vfèkoDrk Lo;a ds fgr dks NksM+dj tufgrkFkZ eqíksa dksdkuwu ds tfj;s fuiVkus esa vketu dk lg;ksx djasA piyksr us lalnvkSj foèkkulHkkvksa esa c<+rs cfgxZeu ij fpUrk O;Dr djrs gq, dgk fdxr dbZ le; ls ,slh ?kVukvksa ls fcuk ppkZ ds fcy ikl gks tkrk gSftldk [kkfe;ktk vketu dks mBkuk iM+rk gSA

fofHkUu l=kksa ds varxZr ckj dkSafly vkiQ jktLFkku ds lnL;,MoksdsV MkW- iq"isUnz flag gkMk }kjk tufgr ;kfpdkvksa ij mn~cksèkuizLrqr fd;k x;kA ,MoksdsV jes'k uUnokuk }kjk xzke U;k;ky; ds ckjsesa fopkj O;Dr fd;s x;sA ,MoksdsV 'kkarhyky ikespk }kjk flfoyU;k;ky; esa tufgr lacafèkr ekeyksa ds izkoèkku o mipkj ij izdk'kMkyk x;kA uofuokZfpr izns'k vè;{k txnh'k jk.kk us vkijkfèkdizdj.k ,oa vuqlaèkku iz.kkyh ds ckjs esa vfèkoDrkvksa dk Kkuo/Zufd;kA lkFkZd jLrksxh us orZeku esa vR;Ur rhoz xfr ls c<+ jgsfeMh,'ku ,oa ekè;LFke vfèkfu;e dh tkudkjh miyCèk djk;hA

izns'k vfèkos'ku esa fnukad 28 vDVwcj 2012 dks Hkkjr esa izR;{kfons'kh iwath fuos'k ds fo"k; ij izksiQslj (Mk-) Hkxorh izdk'k 'kekZ]dqyifr] isflfiQd fo'ofo|ky;] mn;iqj us blds xaHkhj [krjksa dhvksj ladsr fd;kA Mk- Hkxorh izdk'k 'kekZ us Hkkjr esa izR;{k fons'khiwath fuos'k ij fpark tkfgj djrs gq, vkàku fd;k bl ns'k dk izcq¼oxZ gksus ds ukrs vfèkoDrk c<+rs gq, fons'kh iwath fuos'k dks jksdus dsfy;s vkxs vk,aA

vfèkos'ku esa eq[; fo"k; ds vfrfjDr ^Hkw laj{k.k&pqukSfr;ka ,oalekèkku*] ^xzke U;k;ky;&mís'; ,oa orZeku ifjn';* fo"k;ksa ijizLrko ,oa ^nhokuh fofèk esa tufgr ds ekeyksa esa fofèkd izkoèkku ofofèkd mipkj* ,oa ^tufgr ;kfpdk,a] vkijkfèkd izdj.k ,oavuqlaèkku iz.kkyh* fo"k;ksa ij ppkZ dh xbZA

vfèkos'ku esa ^Hkw laj{k.k&pqukSfr;ka ,oa lekèkku* o ^xzkeU;k;ky;&mís'; ,oa orZeku ifjn';* fo"k;ksa ij Øe'k% Jh nkeksnjyky 'kekZ] chdkusj o Jh jkts'k diwj] t;iqj us fopkj izLrqr fd,A

uofuokZfpr vè;{k ,MoksdsV Jh txnh'k jk.kk us dgk fd laxBuds ekè;e ls lekt dks ubZ fn'kk iznku djuh gksxhA mUgksaus dgk fdvfèkoDrk lekt dk j{kd gS vkSj ;fn U;k; iz.kkyh ls vfèkoDrk dksgVk dj ns[kk tk;s rks vjktdrk iQSy tk,xhA fo'o ds lcls cM+syksdra=k esa U;k;y; dh egrh Hkwfedk gS vkSj mlesa vfèkoDrkvksa dk;ksxnku egRoiw.kZ gSA

dk;ZØe dks lacksfèkr djrs gq, izns'k egkae=kh Jh clUr flagNkck us dgk fd vfèkoDrk ifj"kn~ dk ;gh Lo:i gS fd ge lc ,dlkFk feydj dk;Z djrs gSaA Jh Nkck us vfèkoDrkvksa ds Kkuo¼Zu gsrqLVMh ldZy ij tksj fn;kA

fofHkUu l=kksa ds varxZr ckj dkSafly vkiQ jktLFkku ds lnL;


,MoksdsV Mk- iq"isUnz flag HkkVh }kjk tufgr ;kfpdkvksa ij mn~cksèkuizLrqr fd;k x;kA ,MoksdsV Jh jes'k uUnokuk }kjk xzke U;k;ky; dsckjs esa fopkj O;Dr fd;s x;sA ,MoksdsV Jh 'kkarhyky ikespk }kjkflfoy U;k;ky; esa tufgr lacafèkr ekeyksa ds izkoèkku o mipkj ijizdk'k Mkyk x;kA Jh lkFkZd jLrksxh us orZeku esa vR;Ur rhoz xfr lsc<+ jgs feMh,'ku ,oa ekè;LFke vfèkfu;e dh tkudkjh miyCèkdjk;hA

lekiu l=k dks lacksfèkr djrs gq, jk"Vªh; laxBu ea=kh deys'kflag us dgk fd vke tu dks U;k; fnykus esa vfèkoDrk ,oa fofèk dhHkwfedk cM+h gks ldrh gSA vkt ds le; esa vfèkoDrkvksa dh Hkwfedklekt ds izfr Lora=krk vkUnksyu ls dgha T;knk gSA ;g ckr ih-vkbZ-,y- ds }kjk vuqHko esa vk jgh gSA

μ calr flag Nkck] vfèkoDrkegkea=kh

mŸkj izns'kizns'k dk;Zdkfj.kh cSBd esa 33 ftyksa ls 123 vfèkoDrk mifLFkr

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AnAnAnAnAndhrdhrdhrdhrdhra Pa Pa Pa Pa PrrrrradeshadeshadeshadeshadeshThe state executive meeting of Nyayavadi Parishad

A.P. Unit was held at Vijayawada on 13.10.2012 whereinthe discussions for preparation for the national conferencewas taken up and all the council members were informed toensure that there is representation from each district ofAndhra Pradesh. The meeting was chaired by P. Rama Raju,Vice President and 18 members of the state executiveattended the meeting which was held at Madhav Sadan,Vijayawada.

The Law Day Celebration was held atVisakhapatnam on 25.11.2012 which was attended by thegeneral public and Advocates of Visakhapatnam BarAssociation and judicial officers. At Hyderabad, Law Daywas celebrated on 26.11.2012. Chief guest was Hon'bleJustice B.Chandra Kumar, Judge, High Court of A.P.Function was presided over by the Family Court Judge,Vijay Mohan.

The main speaker, Hon'ble Justice Chandra Kumarexhorted the young lawyers to fight corruption and do theirduties sincerely and upheld the principles laid in theConstitution. The General Secretary, Nyayavadi Parishad,K.Mohan, Advocate spoke about the necessity of theAdvocates to protect the Constitutinal Institution which areunder attack, and exhorted the Advocates to activelyparticipate in their fight against protecting the ConstitutionalInstitution.

The city conference was held on 1-12-2012 atVivekananda Hall, Keshav Memorial College. The ChiefGuest was Hon'ble Justice (Retd.) S. Parvatha Rao. NewPresident and Secretary were elected for city unit. ShriGourish was elected President and Shri Bhuvansundar Reddy

as the Secretary and other members of the executive wereannounced.

— K. MohanGeneral Secretary

ChandigarhChandigarhChandigarhChandigarhChandigarhThe Adhivakta Parishad Chandigarh organized

Constitution Day which is celebrated throughout countryon 26 November, every year. On this occasion a seminarwas organized on the topic "Role of ConstitutionalInstitutions: Strengthening Thereof" in the High Court BarPremises. The chief speaker on the occasion was Mrs.Meenakshi Lekhi, Advocate, Supreme Court of India,while Sh. Baldev Raj Mahajan, Advocate, ActingPresident of Akhil Bhartiya Adhivakta Parishad presidedover the seminar. Mr. B.R. Mahajan talked about therequirement of strengthening of democratic institutionswhich are the backbone of our Constitution. He also toldthe advocates present, about the activities being carriedout by Adhivakta Parishad throughout the Country for thecause of justice.

— Padamkant DwivediGeneral Secretary

DelhiDelhiDelhiDelhiDelhiStudy circle, Supreme Court : A study circle was

organized by Adhivakta Parishad, Supreme Court Unitat Indian Law Institute New Delhi on 7.12.2012. Theprogramme was attended by Advocates with lot ofenthusiasm. Dr. Kailash Nath Pillai, President of SupremeCourt unit presided over the function. The Chief Guest of

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the study circle was the renowned speaker Dr.Subramanian Swamy. Apart from laying stress on thepillars of the constitution which are there from theinception of the Constitution i.e. 26th January 1950, Dr.Swamy aelaborately discussed on two important featuresof the constitution which are judicially evolved, one beingthe doctrine of basic structure of the Constitution,narrating the case of Golakhnath and Keshvanand Bhartiand the other being the power of the ConstitutionalCourts of judicial review. Regarding this a reference wasmade to the Public Interest Litigation filed before theHon'ble Supreme Court of India in the case of Ram Setu.

The programme was anchored by Advocate NishantKatneshwarkar, Secretary Patta B. Setaramaya, NationalOffice Secretary, Advocate Saurab Shyam Shamshery werepresent in the dias. Vote of thanks was delivered by advocateVikramjit Banerjee, National Executive Member.

— Rajeev Kr. SinghGeneral Secretary, Supreme Court Unit

��

Delhi State Unit : On the occasion of 'ConstitutionDay' Delhi State unit of Adhivakta Parishad organized asymposium on the topic of "Foreign Direct Investment(FDI) in Retail Sector" on 22nd November, 2011 in thePlenary Hall of the Indian Law Institute. The symposiumcommenced with Deep Prajjvalan followed byVandematram. Two renowned speakers on the subjectwere : (i) Sh. Bhagwati Prakash Sharma, Pro-VC of PacificUniversity, Udaipur & National Co-Convener of SwadeshiJagran Manch, and (ii) Sh. Shashank, former ForeignSecretary to Govt. of India. Sh. B.P. Sharma spoke atlength and gave deep insight into the reasons as to why thepresent Government is keen in bringing FDI in the retailsector and as to how foreign retail chains like Walmart,Metro AF of Germany, Tesco etc. would rapidly destabliselakhs of retailers and peddlers and other small businessesin India. On the other hand Mr. Shashank gave an overviewof the subject from a perspective of India's foreign policy.The programme was well attended as large number ofadvocates from various courts of Delhi remained presentthroughout the programme stretching upto about 1½ hourstill it concluded with National Anthem.

— Vikash MahajanGeneral Secretary

Jammu & KashmirJammu & KashmirJammu & KashmirJammu & KashmirJammu & KashmirAdhivakta Parishad J&K celebrated the Law Day on

25-11-12. Advocate Raghu Mehta, the state president ofParishad welcomed all the Adhivaktas and other participantswho attended the programme.

On the occasion, an interactive session was held andthe participants vowed to re-dedicate themselves to threecardinal principles - Rule of law, Independence of Judiciaryand Independence of legal profession, which formed the solidfoundation of Constitutional edifice. The achievements andchallenges before Judiciary in maintaining Rule of law werediscussed. The programme was formally concluded with avote of thanks proposed by General Secretary J & K.

— Vikas SharmaGeneral Secretary

KKKKKerererereralaalaalaalaalaTransparency in the process of selection of leaders and

bearing of election expenses by the government will help toeradicate the corrupt politics in India. Sri. M.Liju, All IndiaGeneral Secretary of Youth Congress expressed this view.He was talking in the Law day seminar organized byBharatheeya Abhibhashaka Parishad, Kollam districtcommittee on the subject ‘corrupt politics’. Now a daysthe criteria to be selected to the leadership is ability to collectmore money for the party. This criteria should go and theordinary workers should get the right to choose their leaders.Then only corrupt practices will be put to an end, says K.Surendran, State General Secretary of BJP. The seminarwas organized in the context of the National Law Day


Taruni Clothing Pvt. Ltd.Office : 1-7-347-349, Mahmood Chinoy Complex,

Parklane, Secunderabad, Andhra Pradesh

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celebration. State Vice president Adv. R. Rajendran deliveredintroductory speech and state secretary Adv. S. Rajendranalso spoke on the occasion. District president Adv. K. R.Ambili presided over the function. District secretary Adv. P.Arul welcomed the gathering and Adv. P. Usha expressedvote of thanks.

Zonal Study CampsLawyers zonal study camp and legal workshop:

Bharatheeya Abhibhashaka Parishad, Kerala hasorganised Lawyers study camp and legal workshops atfour Zones.

Trivandrum : The Trivandrum zonal study camp wasorganised at Thiruvananthapuram on 18-11-2012. The studycamp was inaugurated by Sri M. Nandakumar, IAS, TheCommissioner Of Rural Development, Govt. of Kerala.

Ernakulam : Ernakulam zonal study camp wasorganised at Alapuzha on 02-12-2012 and the camp wasinaugurated by Sri. R. Nadarajan, Member, Kerala StateHuman Rights Commission.

Thrissur : Thrissur zonal study camp was organised atpalakkad and the camp was inaugurated by Justice ChettoorSankaran Nair, Former Judge High Court of Kerala.

Calicut : Calicut zonal study camp was organised atKannur and it was inaugurated by Adv. Asifali, DirectorGeneral of Prosecution, Govt. of Kerala.

Law Day in Thrissur : "Lawyers want to protect thefollowers of Sanathana Dharma from forcible conversionto other religions." says Sri. Sadanandan Master , ThrissurDistrict Secretary of Bharatheeya Vichara Kendram , while

he was delivering the main speech.The National Law DayCelebration was conducted by the BAP Thrissur DistrictCommittee at Kerala Sahithya Academy Changamuzha Hall,Thrissur at 5.30 pm on 26th November 2012. Thevaledictory speech was delivered by MananeeyaRa.Venugopal , former working president of All India BMS.The programe was concluded with the vote of thanks.

— B. Rajesh KumarGeneral Secretary

OdissaOdissaOdissaOdissaOdissaAdhivakta Parishad, Odisha being a living Lawyers

organisation in the state, have succeed in making apresence in most of the important Bar's in the last fewyears by its various activities. Most of the Bar's inOdisha is celebrating Constitution Day, Netaji SubhashBose Jayanti, Lawyers Day and other nationalistprogrames. Through Seminars, Workshops, StudyCircles and other activities Adhivakta Parishad havegiven a nationalistic and prudent view to the legalfraternity. State units are motivating lawyers to extendfree legal support to the poor and deserving people.Our members are also giving day-to-day legal supportto the victims of the attack by the anti-nationalists.Adhivakta Parishad Odisha, is determined to strengthenthe Lawyer's Units in the state for the cause of theMother Land and Justice.

— Tushar Kanti SatpathyGeneral Secretary


Nyayapravah and its Kaleidoscope

In the year 2001, an idea was conceived to have a regular magazine of the AkhilBharatiya Adhivakta parishad which was earlier published only on the occasion of

National Conferences; it was called `Nyaya Path' then. The idea was crystallized tohave a magazine on a quarterly basis in English as well as in Hindi. But the name hadto be changed as 'Nyayapath' was already registered. After much deliberation, theword 'Nyayapravah' was considered appropriate since it represented regular flow ofjustice which resembles our motto `Nyaya Mam Dharma'.

The first edition of `Nyayapravah' consisted of 8 pages and was manually typedand, set by the regular lawyers who were not very adept at editorial functions. Totalmembers then were 100. Today, however, the number has moved on to more than1200 members (yearly as well as life members) and the magazine consists of at presentmore than 40 pages.

`Nyayapravah' enfolds all India activities conducted on behalf of the State and itsDistricts units. Being a bilingual magazine, it contains articles in both English as wellas Hindi.

Nyayapravah, though managed by novices in the field of journalism, has managedto come out every month regularly since its inception with the help of colleagues fromAdhivakta Parishad. The Editorial Board today, is proud to publish a very informativeand thoughtful magazine which contains articles contributed by distinguished personsin the field of law and otherwise.

Nyayapravah seeks the support and guidance of members of the AdhivaktaParishad to grow and nurture with the ultimate objective of becoming one of the toplegal magazine in the country. In pursuance of this objective, the Editorial Board looksupon and calls for your valuable comments, suggestions and inputs to be sent [email protected] or they can be posted at Nyayapravah B-50, ParvashiBhawan, Deen Dayal Upadhyay Marg, New Delhi.

Looking forwardEditorial Board

Nyayaparvah


❑❑❑❑❑ Srimanta Samantaray

One of the most talented, intelligent,lawyer and a patriot of Odisha

was Madhusudan Das. He was verymuch famous in the name ofMadhubabu, and became a legendaryman as a brilliant Lawyer in the mindsof Odias during his lifetime. He was thefirst Graduate and Post GraduateDegree holder of Odisha. Passed hisB.A. and M.A. in 1870's from CalcuttaUniversity, worked as an High Schoolheadmaster and was also engaged as aTranslator in High Court. In 1878 hepassed Law from Calcutta Universityand started his practice in Alipore Courtat Calcutta. Practised in Alipore Courtfor three years he left Calcutta on thesad demise of his wife, and came backto Cuttack.

It was very difficult for Madhubabuto find out a place in the the CuttackBar Association. With the interferenceof the then District Judge of Cuttack,Mr.Cocklan he was allotted a separateroom in the court campus. Madhubabuworked hard for earning name and famein the District Court of Cuttack. Laterhe became the President of the BarAssociation. Beside doing legalpractice he became a part time Lecturer

As an Advocate Madhusudan Das was very prestige-conscious. There areseveral examples where he fight against the British Judges for self-esteemand dignity.

Madhusudan Das : The Legend OfOdisha

of the prestigious Ravenshaw Collegefrom 1883 to 1890. Janakinath Bose,the father of Netaji Subhash ChandraBose was also the student ofMadhusudan in Law classes.

In his practice he helped the poorand needy people. He conducted manycases in his life and won most of them.Some of the prominent and leadingcases related to him are , Puri JagannathTemple Case, ManasinghpatanaDacoity case, The case ofKhandapada King, Keonjhar Rebellioncase, The case of Patia King, The caseof Puri King Ramchandra Dev andmany other cases. Madhubabu was anexpert to extract truth by cross-examining witnesses. As an AdvocateMadhusudan was very prestige-conscious. There are several exampleswhere he fought against the BritishJudges for self-esteem and dignity.

The modus operandi ofMadhusudan Das in arguing a case wasdifferent from that of other Advocates.He was not depending on his associateAdvocates' notes or collection ofprevious decision of different cases. Hehimself used to go through the detailsof the case records before arguing a

case in the court of law. He was anexpert of pointing out the legal andmoral questions of life. Madhubabu hadremarkable presence of mind anduncommon mental power. Once aBritish friend of Madhusudan boastingof British Rule over the whole world toldhim "Mr Das the Sun never sets in BritishEmpire" Madhubabu at once retorted"Because the British people cannot betrusted in darkness".

In order to encourage the studentsof Odisha, the following stanza of apoem of a Odia poet is taught withspecial emphasis:

"Patha padhibi, okila hebi,Madhubabu sange ladhibi,Jati daka suni chhati phulai mun,Kalia ghodare chadhibi"(I will learn my lesion, persevere, be

a lawyer and dare contend withMadhubabu. When my Nation gives mea call, I will proudly proceed to defendher riding on a black stallion.)

It is the right time that we shouldremember and salute a personality likeMadhusudan Das. His remembrance willdefinitely cross the boarder of Odishaand reach every corner of the countrywith great respect. ■

UTKAL GOURAV

MADHUSUDAN DAS

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