Who will humbly ask CJI whether he is exempted from Code of Conduct?

                           (Edited Picture of PM with CJI. Image Courtesy: PIB) 

                                             

Did Chief Justice of India (CJI) T. S. Thakur breach the Judiciary’s own voluntary code of conduct (CoC) when he ridiculed Prime Minister Narendra Modi’s Independence Day (ID) speech?

The answers to this and certain other prickly questions on judicial accountability lie in the court of CJI. And national enlightenment on these issues can come only if civil society files public interest litigation (PIL) in the Supreme Court (SC).  A Big If indeed.

To best of my knowledge, Vocal NGOs have not yet implored CJI to give verdict on applicability of CoC on him? Has PIL industry petitioned SC to admonish the Executive-Legislature combine to not delay further enactment of judicial accountability law?  

Clarity on this count can also emerge if Modi Government advises the President to seek SC’s opinion on these issues. Another Big If!  

A Layman’s reading of CoC named ‘Restatement of Values of Judicial Life’ (RVJL) shows that Justice Thakur prima facie violated two of its 16 principles when he derided PM’s speech.  These are: 1) “A Judge shall not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination.” 2) “Every Judge must, at all times, be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held.”

Another occasion when CJI deviated from former principle was during the last winter season. Justice Thakur first endorsed #OddEven scheme of Delhi Government outside the Court. He later trashed PIL against the scheme, which rides roughshod over citizens’ right to earn one’s livelihood and physically challenged persons’ right to travel safely. After all, these rights can be interpreted as right to life just as right to fresh air is interpreted to rationalize the scheme.    

Civil Society might well dismiss all this as nitpicking of no consequence in the absence of statutory CoC.

SC had unanimously adopted RVJL/CoC in its full court meeting held on 7^th May 1997. In April 2015, Chief Justices’ Conference discussed agenda item ‘judicial values – a need for re-examination’ and tersely “resolved to reiterate the Declaration of Restatement of Judicial Values, 1997.”

Notwithstanding this reiteration, RVJL enforcement lacks transparency.  Instances of it being invoked against deviant judges are rare. RVJL is not even mentioned on SC’s website!

Compare this with Pakistan apex court. The latter’s website not only hosts its CoC but also disclosed the fact that it has been notified through a gazette.

It is apt to note that Law Commission, in its report on lapsed Judges (Inquiry) Bill, 2005 submitted in January 2006, recommended that CoC to be issued by Judicial Council under the proposed law should be published in the Gazette of India.

LC also recommended that “till such time as the Judicial Council comes to be constituted under the proposed Bill of 2005 and such Judicial Council publishes a Code of Conduct, the Bill must provide that the ‘Restatement of Values of Judicial Life’ adopted by the Supreme Court in its Resolution dated May 7th, 1997 shall be treated as the Code of Conduct for the purposes of the proposed law.”
The Report continued: “It should also contain a provision that the Code of Conduct could be modified from time to time by the Judicial Council by amendments that could be notified in the Official Gazette.”

Administrative Reforms Commission (ARC) echoed LC’s concern for RVJL in its 4th report on Ethics in Governance submitted in January 2007. Under the chapter ‘Ethical Framework for the Judiciary’, ARC observed: “mere prescription of a Code of Conduct is not an end in itself. Along with the Code of Conduct, a mechanism for enforcing the code needs to be evolved. It would be desirable to designate a senior Judge of the Supreme Court as the ‘Judicial Values Commissioner’ (JVC).”

ARC added:  JVC should be empowered to enquire into cases of violation of the Code of Conduct and report the matter to CJI for taking action. JVC should have jurisdiction over the judges of the Supreme Court, and members of other judicial and quasi-judicial bodies. A similar institution should also be constituted at the state level.

Though UPA Cabinet accepted ARC recommendation relating to JVC, it is not known whether the Government communicated it to SC and if so, whether JVC was notified. Google search for Judicial Value Commissioner throws up disappointing result.

When UPA returned to Power in 2009, it decided to substitute lapsed Judges (Inquiry) Bill with the Judicial Standards and Accountability Bill (JSAB), 2010. The Bill incorporated RVJL into proposed judicial standards.

A proposed standard that has direct relevance to Justice Thakur’s dig at PM’s ID speech is worth pondering. It reads as: “no Judge shall make unwarranted comments against conduct of any Constitutional or statutory authority or statutory bodies or statutory institutions or any chairperson or member or officer thereof, in general, or at the time of hearing matters pending or likely to arise for judicial determinations.”

This stipulation is of no consequence at present as JSAB lapsed with the dissolution of 15^th Lok Sabha in May 2014. NDA Government has disclosed its intent to resurrect the Bill but has not unveiled the revised bill, factoring in suggestions of different stakeholders including Parliament Standing Committee (PSC).

In its report on JSAB submitted during August 2011, PSC recommended: “The Committee feels that Clause 3(2)(f) should be expanded by specifically mentioning that judges should restrain themselves from making unwarranted comments against other Constitutional / statutory bodies/institutions/ persons in open Court while hearing cases.”

The urgency for independent oversight of judicial standards can be driven home well by recalling what legendary Leftist MP, late Bhupesh Gupta, stated during August 1972 while participating in a debate on The Constitution (13^th Amendment) Bill, 1972.

Mr Gupta observed: “The moment you (judges) sit on the Bench you do not become angels or divine creatures. You see, you are either taken from the Bar or you are recruited directly or promoted from below or some such method is there. Therefore, you have all the virtues and vices associated with others. You carry them with you, you carry your past with you, you carry your qualifications and attendant disqualifications, you carry all of them with you.”

Kejriwal’s sack Drama Pales Against ‘PM sacked Deputy PM’ case

(Edited Image Courtesy: delhi.gov.in)

Now that #AAPWalksTheTalk twitter party is over, we can dish out some sobering thoughts for Aam Adami Party (AAP) Supremo-cum-Delhi Chief Minister Arvind Kejriwal and his fans.

The anti-bribery jubilation also has an embedded message for a section of the mainstream media, which projected Mr. Kejriwal's  “live” sacking of Food Minister Asim Ahmad Khan as “unprecedented” and refrained from asking critical questions to CM. 

First fact first. Mr. Kejriwal is not the first Chief Minister/Prime Minister to sack a minister. In March this year, tainted Tamil Nadu Agriculture Minister S.S Krishnamoorthy was not only sacked from the Cabinet but also stripped of all AIADMK party posts. He was later sent to judicial custody too. (http://bit.ly/1QfU66s)

Certain CMs in different States have sacked ministers of dubious reputation without flaunting corruption charges as that might later be trashed by the courts. Even the so-called “weakest” Prime Minister Dr. Manmohan Singh had goaded Union Environment Minister Jayanthi Natarajan of the alleged ‘jayanthi tax’ fame resign from UPA Cabinet in December 2013.

Way back in August 1948, PM Jawahar Lal Nehru had dropped (sacked according to one version) India's first Finance Minister R.K. Shanmukham Chetty for allegedly being soft towards certain business houses in pursuing taxation cases against them. Later, Mr. Nehru kept the finance portfolio with himself for about a month. (http://bit.ly/1jV9uem & http://bit.ly/1L5D61x )

 If these instances appear weak in theatrics which is Kejriwal’s trademark, let me take him and AAP's teenyboppers to a unique case of Prime Minister sacking Deputy Prime Minister on grave charges of misconduct: Late Mr. V.P. Singh had sacked the No.2 man, Late Chaudhary Devi Lal, in the National Front Government in August 1990.

At that time, private TV news channels had not cropped up. There was obviously no online social media. Mr. Singh had to thus sack Mr.Lal through an official release. And yet Mr. Singh's sacking of his Deputy PM was more credible and dramatic than Mr. Kejriwal's action.

PM had slapped three charges on Mr. Lal: 1) Quoting a forged letter in an interview with a weekly magazine. The letter was allegedly written by Mr. Singh in November 1987 to the President of India when he was a minister in Rajiv Gandhi Government, levelling charges against the then cabinet colleagues. 2) In the interview, Mr. Lal made serious, unsubstantiated allegations against his Cabinet colleagues. 3) He also made derogatory remarks against PM in the interview.

In a letter addressed to Mr. Lal on 1st August 1990, Mr. Singh stated: “For these acts of yours, of violations of all cannons of collective responsibility of the Cabinet, I have recommended to the President of India to drop you from the Council of Ministers.”

Consider now the second fact. In this case, Mr. Singh had given an opportunity to Mr. Lal to defend himself on these charges through a letter dated 29th July 1990. Mr. Lal failed to answer razor-sharp queries on the forged letter. Nor did he provide evidence to substantiate allegations against other ministers.

Mr. Kejriwal, on other hand, did not give an opportunity to Mr Khan to reply to the alleged case of bribery, which is based on a recorded telephonic conversation. This is evident from his initial reaction immmediately after a Press Conference. A daily quoted Mr. Khan as saying: “I have not heard the recording and am in a state of shock. The party said that till the inquiry is on, I should not be in office.”

The very next day, Mr. Khan trashed Kejriwal's charges at a Press conference. He attributed his sacking to AAP’s internal politics and an attempt to save some big gun within the party. He reportedly said: “I am the sacrificial goat”. He also resolved to expose the conspiracy against him in a few days.

 In playing a taped conversation in which Mr. Khan is allegedly seeking bribes at the Press Conference, Mr. Kejriwal not only showed contempt for the Law but also rationalized media lynching of suspects.

It is here pertinent to quote what the then Chairman of Law Commission Justice M. Jagannadha Rao, stated in its 200th report captioned ‘Trial by Media: Free Speech Vs. Fair Trial Under Criminal Procedure (Amendments to the Contempt of Court Act, 1971)’ submitted in August 2006.

Mr. Rao observed: “According to our law, a suspect/accused is entitled to a fair procedure and is presumed to be innocent till proved guilty in a Court of law. None can be allowed to prejudge or prejudice his case by the time it goes to trial.”

If Mr. Khan drags Kejriwal Government to the court and wins a defamation suit, would Mr. Kejriwal resign as CM? Was this question raised in the feted Press conference?

Third, if Mr. Kejriwal is sincere in battling corruption at top echelons of power, why has he not made public all the files on corruption complaints in which some of his ministers are suspects, the latest case being that of alleged nepotism towards a firm owned by a kin of Delhi Deputy Chief Minister Manish Sisodia?

Any clean head of a government would have no hesitation in suo moto disclosure of all files on all commercial deals. After all, transparency is the key to prevention of bribery.

Why has Mr. Kejriwal left the post of anti corruption ombudsman, Lokayukta, vacant for several months? Why has he dragged his feet over Jan Lokpal bill? Why has he not referred to CBI several cases of irregularities that happened during the previous Congress regime at Delhi? And what about the donations scam that rocked AAP on the eve of Delhi Assembly elections?

Fourth, Kejriwal deserves praise for outsmarting Prime Minister Narendra Modi in anti-corruption theatrics. It remains to be seen whether Mr. Modi/BJP would accept Kejriwal’s gauntlet and take decisive political steps in Lalitgate, VyapamGate, Rajasthan mining scam, etc.  

Aadhar’s pure magic gone; Congress banks on rights & commissions gimmickry

Manifesto image: courtesy Congress

A Right for Everybody; A Commission for every issue. This is the key message of the Congress Party’s manifesto for the Lok Sabha polls.

The implied message is indeed a survival kit for the Congress that once dreamt of big-leap victory in the 2014 and 2019 elections on the strength of aadhar card-enabled delivery of services.   

The nursery rhyme ‘Humpty Dumpty had a great fall…’ appears to be now reverberating at Congress offices across the Nation.  The Congress, the country’s most Machiavellian Party, is now realizing that an average Indian cherishes dignified work.  

The humble voter cannot be always won (or rather bought) with freebies, notwithstanding rationalization of this practice by the Supreme Court. The apex court last year observed that electoral promises fall under the domain of Directive Principles of the Constitution and do not constitute corrupt practices.  It, however, directed the Election Commission (EC) to frame guidelines on drafting of manifestos and EC recently acted accordingly. 

EC should give verdict promptly on manifesto of each major party to show the extent of non-compliance with SC-mandated guidelines.  

Except for the realization that dole-outs have lost the sheen, there is no other plausible explanation for the Congress bigwigs’ failure to orchestrate their claims on Aadhar.

The name ‘Aadhar’ figures only twice in the Manifesto. So does the term ‘direct benefit transfer’. The term ‘cash transfer’ finds no mention.  As put by the Manifesto, “The Indian National Congress will ensure that all Indian residents have a unique Aaadhar number. This will serve as a proof of identity and proof of residence. It will also enable access to services (like opening a bank account) for a vast majority of Indians.”

It adds: “The Indian National Congress is committed to using the Aapka Paisa Aapka Haath platform for all government programmes. Direct Benefit Transfer will ensure time-bound delivery of benefits at the individual’s doorstep, and remove corruption and leakages.”

Compare this subdued resolve with Eureka frenzy that gripped the Congress top brass in 2012-13.  Finance Minister P. Chidambaram had then dubbed Aadhaar-enabled cash transfers as “pure magic”. He now appears to be becoming wiser by the day. He has not only opted out from the electoral race but is also giving bytes of wisdom. The other day, for instance, he reportedly said that given a choice, people want jobs over subsidies. 

Congress Vice-President Rahul Gandhi also appears to be on the same wavelength, if his emphasis on employment generation is to be relied upon. Mr. Gandhi has thus refrained from reiterating what he said in December 2012. He had reportedly told Congress office-bearers that the direct cash transfer scheme was a “revolutionary step” which if  implemented properly would win the party not just the 2014 election but also the next one in 2019. 

A news report had quoted Mr. Gandhi as saying that every 10 years, the Congress comes up with a scheme that shakes up the nation, and the party is now giving a revolutionary delivery system to people in the 21st century.

Can the Congress shake the BJP now by dangling vaguely defined rights before the public and by promising several commissions to address issues faced by different groups.

To expose Congress gimmickry and falsehood on the rights, a detailed quote from the Manifesto is required. 

The Manifesto says: “We will endeavour to bring around two thirds of our population – the skilled hands that build India – into the middle class, through a package of basic rights for all workers – formal and informal, organized and unorganized, regular and contractual. Our aim will be to provide them and all low-income families with economic security and a minimum standard of living to uplift their condition. The charter of minimum socio-economic rights we will put in place includes: a. Right to Health b. Right to Pension c. Right to Homestead or Housing d. Right to Social Security e. Right to Dignity and humane working conditions f. Right to Entrepreneurship that will protect and assist all those who seek to become entrepreneurs.”

 It continues: “These new rights will supplement the other rights established under UPA-I and UPA-II - Right to Food; Right to Information; Right to Education; Right to Employment; Rights to fight corruption (Lokpal and Lokayuktas Act as well as Whistleblower Protection Act); Right to Identity (Aadhaar) and the Right to direct receipt of welfare benefits (Aapka Paisa, Aapke Haath – Direct Benefits Transfers).”

The Manifesto adds: “Together, these rights will provide an economic platform for people below the middle class to transform their lives and to transform India primarily through their own effort, not through any handouts of the government.”

The Congress affirms: “At the turn of the millennium, we brought about a ‘Regime of Rights’ marking a paradigm shift in India’s politics and development. Beginning with the Right to Information, Right to Work (Mahatma Gandhi National Rural Employment Guarantee Act), Right to Education and the Right to Food, we have launched a radical progressive economic and social development discourse.”

The Manifesto, does not say a word about lakhs of beggars including alms-seeking kids in cities.  They do not have Voter’s identity card and aadhar card. Hence, they do not figure in the political strategy of Congress and most of the other parties. The right to free and compulsory education is not implemented in their case. The mid-day meals are a dream for children who seek alms or ‘earn’ some money at all major traffic signal crossings in National Capital Region. They earn either by doing either modest stunts or by forcibly cleaning the cars waiting for green signal.   

While promising new rights and articulating existing ones in the Manifesto, the Congress failed to disclose that all this is provided for in the Indian constitution.  It is the Constitution that has specified the rights of citizens that have been effectively interpreted and enlarged by the judiciary over the years.

It also the Constitution that specifies the citizens’ duties, a subject which all political parties avoid for obvious reasons.  It is also the Constitution which defines the duties and responsibilities of the State. The fact is that the Executive at the Centre and at the States has failed to protect the rights of citizens especially the poorest ones. 

If the Congress High Command wants clarity on this issue, it should read a report captioned ‘Need for ameliorating the lot of the have-nots – Supreme Court’s Judgments’ that the Law Commission (LC) released in April 2009. Had the Party’s think-tank read this report and certain other documents that nail Congress Party’s wrong claims on certain statutory rights, the Manifesto would not have been loaded with lies and half-truths and self-praises. 

The LC Report says: “Every man and woman has the human right to a standard of

living adequate for health and well-being, to food, clothing, housing, medical care and social services. These fundamental human rights are defined in our Constitution. On 10 December 1948, the United Nations General Assembly adopted and proclaimed the Universal Declaration of Human Rights “as a common standard of achievement for all peoples and all nations”. 

The Report says: The right to be free from poverty includes:

The human right to an adequate standard of living;

The human right to work and receive wages that contribute to an adequate standard of living;

The human right to a healthy and safe environment;

The human right to live in adequate housing;

The human right to be free from hunger;

The human right to safe drinking water;

The human right to primary health care and medical attention in case of illness;

The human right to access to basic social services;

The human right to education;

The human right to be free from gender or racial discrimination;

The human right to participate in shaping decisions which affect oneself and one’s community.”

The report notes: “To make right to life meaningful and effective, the Supreme Court put up expansive interpretation and brought within its ambit a myriad of rights. Various laws have been enacted to eradicate poverty: some of them directly deal with them and some of them indirectly. Nevertheless, their tardy implementation makes us lag behind in effectively dealing with the problem.”

It adds: “In spite of the constitutional safeguards and State legislative intervention in favour of the poor and the needy, their socio-economic condition is deteriorating. Social and economic equality still remains a mirage for them.”

LC thus recommended that “the Union and the State Governments should accord top priority to implementation of the judgments rendered by our Supreme Court in their letter and spirit in order that the lot of the have-nots is ameliorated.”

Why has the UPA not issued the action taken report (ATR) on this report? Why has it not transformed Law Commission into a statutory body? Is it due to the fact that LC stands for the truth that the Congress in particular and politicians in general find unpalatable? 

Apart from the Constitution and the judiciary, non-congress Governments at the Centre and the States have contributed to articulation of different rights, both statutory & non-statutory. A lot of facts are available in the public domain to counter the Congress’ proprietary rights over the Aam Aadmi’s rights. 

Coming to the issue of Commissions, the Congress has made a crass attempt to woo different sections of the society by promising to set up statutory or non-statutory commissions. 

The Manifesto says: “The Indian National Congress will establish Special Commissions for Scheduled Castes, Scheduled Tribes and Other Backward Classes to identify communities within each group which have not benefited from reservations and other affirmative action programmes and which need to be given a special focus.”

This promise is like adding salt in the wounds of SCs/STs. Many recommendations made for protection of their rights and for development made by National Commission for Scheduled Castes (NCSC) and National Commission for Scheduled Tribes have not been acted upon. 

UPA’s lip-service towards SCs/STs gets further confirmed by the fact it has not made public the annual reports of these two statutory commissions for the last several years! One can write a thesis on this. 

When UPA is not sincere about its constitutional and statutory obligations towards SCs/STs and their institutions, the other marginalized sections of the society are unlikely to get carried away by the Manifesto’s promise to “strongly protect the interests of the Other Backward Classes, especially those amongst them that are most deprived.”

It says: “We will establish a new commission to inquire into the condition of the most backward and marginalized Other Backward Class communities who have not adequately received the benefits of government programmes; and will recommend corrective measures.”

The Manifesto has also promised to set up a ‘National Commission for Students’, a ‘National Youth Commission’, ‘National Commission for Ex-Servicemen’ and a commission on labour law reforms. 

Why the existing Governance mechanism has not been used effectively by the UPA to solve the problems faced by different sections of the society? If the existing institutions have failed to deliver the desired services, what is the guarantee that the new ones would also not turn out to be white elephants. 

The suspicion would appear justified if we take into account another ridiculous claim made by the Congress. The Manifesto says: “The Indian National Congress will ensure that the recommendations of the second Administrative Reforms Commission (ARC) are implemented in letter and spirit and monitored at every step.”

The fact is that the UPA Government had put in public domain in 2010-11 its decision to reject several crucial recommendations made by ARC!  The disclosure is made in the action taken report (ATR) on each specific recommendation made in 12 of the 15 reports submitted by ARC. 

The UPA has, however, till today not made public its decision on the recommendations of the remaining three reports which are the most sensitive and crucial ones. 

The three reports are: ‘Public Order’ report submitted in June 2007, ‘Refurbishing Personnel Administration – Scaling New Heights’ report released in December 2008 and the report titled ‘Combating Terrorism-Protecting by Righteousness’ that was released in June 2008. This is yet another proof of the Congress’ disrespect for the right to information.

In its zeal to woo voters, the Congress perhaps forgot to mention that it has been sitting of the recommendations of   Commission on Centre-State Relations (CCSR) that submitted its seven-volume report in April 2010. CCSR had its origin in National Common Minimum Programme (NCMP), the agenda for UPA-I that was unveiled in May 2004.
NCMP stated: "The Sarkaria Commission had last looked at the issue of Centre-State relations over two decades ago. The UPA government will set up a new Commission for this purpose keeping in view the sea-changes that have taken place in the polity and economy of India since then."

After this analysis, the discerning voter should decide what to make of the Party’s claim which reads as: “For the Indian National Congress, a Manifesto is more than a catalogue of promises and pledges to be forgotten after elections are over.”