Sunday, August 20, 2017

Silence in Defence: Defence Ministry is haemorrhaging its own human resources


All specialist and super-specialist human resources are precious, yet internal dynamics seem more precious for the Ministry of Defence (MoD). It has been more than 14-months since the Prime Minister ordered to enhance the superannuation age of Non-teaching, Public Health Specialists and General Duty Medical Officers sub-cadres of Central Health Service (CHS) to 65-years with effect from May 31, 2016, but this has had no effect on the MoD. This is puzzling. The PM’s order issued under Rule 12 of the Transaction of Business Rules, 1961, is rarely invoked as Departure from Rules. The urgency can be seen from the Cabinet Secretariat most immediate ID dated May 31, 2016, which, while conveying enhancement of superannuation age with immediate effect, directed the Department of Health and Family Welfare (DoHFW) to seek ex-post facto approval of the Cabinet. The DoHFW implemented the PM’s directive immediately on May 31, 2016, as did the Ministry of Railways. Among other ministries, Ministry of Home Affairs with a sizeable number of doctors working in the Central police forcesCRPF, BSF, CISF, ITBP, NDRF-India, NSG, and SSBtoo implemented the same from June 30, 2016. Bafflingly, the MoD hasn’t, yet. 

Today Lieutenant Colonels (and equivalent in Air Force/Navy) in the AFMS retire at 56, Colonels (and equivalent) at 58, Brigadiers (and equivalent) at 59, Major Generals (and equivalent) at 60, Lieutenant Generals (and equivalent) at 61 (with 2-year tenure) and the Director General Armed Forces Medical Services (DGAFMS) at 62 (with 3-year tenure). Note the pensioning of the Lieutenant Colonels of specialist/super-specialist non-combatant at 56! And 99.5 per cent of AFMS doctors retire at the age of 59 or belowsix years before their civilian counterparts! There is an acute shortage of doctors12–15 per centin the AFMS. The recruitment scenario is gloomy going by recent figures: of 2000 candidates who applied for 675 vacancies, 800 appeared in interviews, 300 were selected, and 175 joinedless than 26 per cent of the vacancies. Such is the dismal picture, yet such is MoD’s burden of silence. 

Doctors are a rare human resource. Youngsters loathe joining medicine due to long gestation period and delayed employment, apart from the hard life it entails. Compare the medical graduates’ tuition fee with engineering and the 4x higher fee for the former over the latter will exemplify why doctors don’t fancy joining the AFMS. Not to speak of specialisation courses (MD/MS) or the super-specialisation courses (DM/MCh), which today costs a bomb, plus the 3+3 years consumed. The AFMS doctors can undertake the PG courses after 4 years of service, the time they serve in field areas. Medical science is stochastic; patients today bid fair to see specialists for their limbic and neural issues. The Internet and smart phones have wizened them. Given their regimented thinking, I can see the services headquarters sensing unease. How doctors serving under them, work beyond theirincluding service chiefs’superannuation age? This is old paradigm, long atrophiedpass√© today. It stems from the hoary perception that taking order from a junior in age, rank notwithstanding is improper. 

The perception is invalid. Today in the services, younger officers of higher ranks supervise elders lower in pecking order, due to differentiated promotional timelines. It is endemic in organisations encompassing multifarious expertise. Levelled field is a mirage. The services’ retirement age had always varied with doctors retiring at a higher age vis-√†-vis others. When services chiefs retired at 56, AFMS doctors retired at 60since 1936. The retirement age of Major/Lieutenant Generals in army and their equivalents in navy/air force has over the past years gone up to 60 with the three chiefs presently retiring at 62. In the AFMS, the retirement age at these two ranks has gone up from 60 to 61 with only the DGAFMS retiring at 62. The issue goes far beyond this disquiet over perception. AFMS is a specialised servicemore healthcare than armed discipline. True, they’re part of the services set-up and important support arms, crucial for the Services wellness. But they belong to a different worldof patient care, empathy, curing, healing. This world demands different competencies/prescriptions, reason why the government has given them an extended run. With similar job profile, what’s applicable to the CHS is applicable to AFMS. What’s sauce for the goose is sauce for the gander! There can’tand shouldn’t –be two different standards across ministries. 

To retire AFMS officers at an age that’s lot younger than their civilian counterparts is both discriminatory and a cumulative loss; it inexorably haemorrhages precious resources. During a recent visit to two central universities as member of the UGC-appointed team, I was bemused to learn the vast difference in tuition fee (for all four-and-half-years) of a government-funded MBBS course and a private one. While the government-funded hugely subsidised course was Rs 1.5 lakh, the private institute’s was Rs 80 lakh. No mismatch for any professional course is more glaring than this. Not to say of specialist/super-specialist courses, where the mismatch is equally humongous. 

Transfer to the pension establishment earlier than their counterparts paid from the same kitty is an irreparable loss of government spends for making them graduates/specialists/super-specialists; it tantamount to lateral brain drain of precious taxpayers’ human resources. Walk into corporate hospitals and you’ll likely bump into former AFMS doctors remunerated far higher than what they received in government. Public’s loss is corporate gain, feeding the latter’s billowing profit off taxpayers’ money. 

I recall the lack of appreciation of AFMS doctors’ role even inside MoD conveyed in a letter from Rear Admiral A. A. Pawar, then Commandant, INHS Asvini, Mumbai. This was in 2015 when I was the Controller General of Defence Accounts. The new delegation of power had caused serious disquiet. His tone was one of exasperated injured pride. It was late evening when I read this letter. As a cancer survivor who had spent months in hospitals undergoing surgery after surgeries and associated treatments over an excruciating five-year period, I was scorched. I put myself in the patient’s shoes, visualising his pain and despair, and the rooted helplessness of treating doctors. I’m happy we rid these anomalies in the revised delegation of financial powers, 2016. Today’s issue too has the same ring of similarity: the lack of appreciation of AFMS doctors’ role, typecasting them under the armed forces overarching canopy and their cachet of regimentation. It’s time for course correction. 

The Services must appreciate the changedand ever-changingdynamics of the specialised world we live in today, and introspect to change their perception; and the MoD must mull over the issue in a holistic vein and actto stanch soundless, even relentless, haemorrhaging of rich human resource for the wellness of the armed forces and veterans who look up to the AFMS for medical succour.

(The writer is former Controller General of Defence Accounts and former Financial Advisor to Defence Services in the MoD. Views are strictly personal.)

(Reproduced from Millennium Post)

Sunday, August 6, 2017

When Differential Approach and Differentiated Treatment Converge!


The allegation against Justice Dipak Misra for illegally acquiring lease of land meant for the landless poor through “misrepresentation” and “fraud” has shocked the nation. One fervently hopes that this doesn’t join the endless saga of corruption, but instead acts as a shining beacon of hope that such misdemeanor and fraud shall no more be tolerated in India.

Let me begin with a Whatsapp forward I’ve received recently titled A New Zealander’s view on reason for corruption in India: (Incidentally, New Zealand is one of the least corrupt nations in the world and there are plenty things for us to emulate.)
Indians are Hobbesian (Culture of self interest). Corruption in India is a cultural aspect. Indians seem to think nothing peculiar about corruption. It is everywhere. Indians tolerate corrupt individuals rather than correct them.
To know why Indians are corrupt, look at their patterns and practices.
Firstly: Religion is transactional in India. Indians give God cash and anticipate an out-of-turn reward. Such a plea acknowledges that favours are needed for the undeserving. In the world outside the temple walls, such a transaction is named “bribe”. A wealthy Indian gives not cash to temples, but gold crowns and such baubles. His gifts cannot feed the poor. His pay-off is for God. He thinks it will be wasted if it goes to a needy man. Indians believe that if God accepts money for his favours, then nothing is wrong in doing the same thing. This is why Indians are so easily corruptible. Indian culture accommodates such transaction.
Morally, there is no real stigma. An utterly corrupt Jayalalita can make a comeback, just unthinkable in the West.
Secondly: Indian moral ambiguity towards corruption is visible in its history. Indian history tells of the capture of cities and kingdoms after guards were paid off to open the gates, and commanders paid off to surrender. This is unique to India. Indians’ corrupt nature has meant limited warfare on the subcontinent. It is striking how little Indians have actually fought compared to ancient Greece and modern Europe. The Turk’s battles with Nadir Shah were vicious and fought to the finish. In India fighting wasn’t needed, bribing was enough to see off armies. Any invader willing to spend cash could brush aside India’s kings, no matter how many tens of thousands soldiers were in their infantry. Little resistance was given by the Indians at the “Battle” of Plassey. Clive paid off Mir Jaffar and all of Bengal folded to an army of 3,000. There was always a financial exchange to taking Indian forts. Golconda was captured in 1687 after the secret back door was left open. Mughals vanquished Marathas and Rajputs with nothing but bribes. The Raja of Srinagar gave up Dara Shikoh’s son Sulaiman to Aurangzeb after receiving a bribe. There are many cases where Indians participated on a large scale in treason due to bribery.
Question is: Why Indians have a transactional culture while other ‘civilized’ nations don’t?
Thirdly: Indians do not believe in the theory that they all can rise if each of them behaves morally, because that is not the message of their faith. Their caste system separates them. They don’t believe that all men are equal. This resulted in their division and migration to other religions. Many Hindus started their own faith like Sikh, Jain, Buddha and many converted to Christianity and Islam. The result is that Indians don’t trust one another. There are no Indians in India, there are Hindus, Christians, Muslims and what not. Indians forget that 1400 years ago they all belonged to one faith. This division evolved an unhealthy culture. The inequality has resulted in a corrupt society, in India everyone is thus against everyone else, except God and even he must be bribed.
See the recent issue concerning appointment of the new CJI through the prism of these observations and ask if Differential Approach and Differentiated Treatment aren’t emblematic of all problems concerning our country today. Does it not vindicate the foreigner’s observation that Indians don’t believe that all men are equal? And hasn’t this inequality resulted in a corrupt society in India where everyone is against everyone else, except God and even he must be bribed? Why should one organ of democracy be accorded separate and special treatment? Any overriding justifications? Doubtless none. Differential Approach for judges of the High/Supreme Court, as senior advocate Shanti Bhushan says, owes its origin to the Supreme Court, which while violating the statutory provision in the CrPC gave “direction in its Constitution bench judgement in the Veeraswamy case of 1991 that no FIR would be registered against any judge without the permission of the Chief Justice of India. In not a single case has any such permission ever been granted for the registration of an FIR against any judge after that judgement.”
In effect, it upholds one of the two things: either all members of the higher judiciary were/are squeaky clean or there have been cases deserving of filing of FIRs but the CJI didn’t accord his approval. “Quis custodiet ipsos custodes? Or in English: “Who will guard the guards themselves?” The guards themselves? Doesn’t it then give rise to institutional conflict of interest? Does it resemble elements of any modern democratic state based on cardinal principles of separation of power and checks and balances and believes in equality and rule of law?
“The filing of that affidavit by Justice Misra is… a very serious matter” and cries out for an answer. This brings me to my next paradigm that is a besetting narrative of India: Did any Differentiated Treatment spawned off nepotism and venality brooking no rules or unassailable principles for privileged people — well-heeled, well-oiled, and well-connected, well-networked — kick in when antecedent verification and police reports were done before his elevation to the High Court bench? I guess the same check too must have been exercised prior to his elevation as Chief Justice of a High Court and then the Supreme Court. How serious offence of “misrepresentation of facts” and “fraud” detected and indicted upon that led to cancellation of land allotment was overlooked not once but many times over, when the offence antedated every stage of police check? These are disturbing issues for our society and our governance apparatus. They speak volumes of our loose and porous governance ecosystem. Not to speak of the nepotistic spread and sway it commands like a potentate that sadly has reduced public service into one of private service and private interest. The lack of an arm’s length system and culture surely has helped such aberrations.
While it may be presumptuous on my part to draw inferences here in the case of Justice Misra, the ineluctable question that crops up and needs answering is this: How could a person, who, as per information available in public domain, made a false statement in a declaration, “which is by law receivable as evidence, and using as true such declaration knowing it to be false, are serious offences under Section 199 and Section 200 of the IPC, punishable with up to seven years of imprisonment and a fine” could be appointed as a High Court judge? What sort of antecedent check was carried out by the earlier collegiums and by the then government through their statutory investigating agencies when the CBI had recorded its conclusive findings against Justice Misra and the case had attained finality by nullifying allotment of the land leased to him? Of relevance here is the fact that in the recent past, the present government has rightly refused to agree with the recommendations of the SC collegium based on adverse intelligence reports against few of the names proposed by the latter. There obviously cannot be different standards and approaches. Now that adverse information against Justice Misra have come to light and put out in the public domain, the government must take note of these facts and information, and “right” the string of glaring past “wrongs” of (i) blatant shrouding of facts and details post-cancellation of land leased to Justice Misra; (ii) willful non-cognizance of information available on government records/documents against Justice Misra; and (iii) letting a “wrong” getting perpetuated time and time again over the past two decades and more. Agreeing with the CJI’s recommendation on the part of the present government will sadly tantamount to perpetuating the past “wrongs” with yet another egregious “wrong” added to it — only made worse many times over, in the wake of adverse information against the concerned judge already available and assiduously debated about in the public sphere. That will be extremely unfortunate and it shall obscure a chronic malaise that may be timelier to smother now than we would like to think.
The saga of Justice Misra career progression despite grievous wrongs amounting to fraud makes for a perfect case-study in law schools in India and abroad. It is now for the government and the Prime Minister to pluck the high-hanging fruit to “right” the “wrongs” committed thus far for institutions to emulate, so that the fear of an overarching check and balance architecture that’s inviolate bounces across the nation vociferously and unequivocally. Let me wind down by quoting the words of wisdom of Justice (as he then was) Khehar from the NJAC judgment: “The judiciary has to be manned by people of unimpeachable integrity, who can discharge their responsibility without fear or favour.” In his action the CJI may not have lived up to his own words, but as citizens we cannot but emphasize that people of unimpeachable integrity must man the judiciary and without a shadow of doubt the man who helms it — the Chief Justice of India.
(Reproduced from medium.com)

Friday, August 4, 2017

Land and Property as Distillate of Human Conscience




How much land does a man need? Leo Tolstoy’s story of human avarice written more than 131 years ago in 1886 comes back to one’s mind now. Six feet from his head to his heels was all he needed! Yes, that was exactly the area that Pahom’s servant dug to make a grave for him, as he lay on the hillock dead, blood spouting from his mouth out of sheer exhaustion in trying to acquire as much land as he could before the sun dipped into the horizon. It was our first year in Ravenshaw College in Cuttack we read this, a story told so unobtrusively in sibilant tone, yet said with such unmistakable telling effect that it remains a tinnitus in my head, conveying a universal message: love and greed for land — add buildings/apartments for good measure — have been man’s nemesis, and, I’m afraid, shall always remain that way. That’s human greed — emblematic of man’s epicurean self.
Travel no further back than 2010–11 and recall the Adarsh land scam details. How a housing society meant for Kargil war widows in Colaba, Mumbai was shamelessly appropriated by influential people — politicians, senior armed forces officials and bureaucrats! The Comptroller and Auditor General of India(CAG) in its Report had remarked that “The episode of Adarsh Co-operative Housing Society reveals how a group of select officials, placed in key posts, could subvert rules and regulations in order to grab prime government land — a public property — for personal benefit.” Ashok Chavan, the then Maharashtra chief minister lost his job, some bureaucrats were suspended and jailed for a few months, few service officers were charge-sheeted and proceeded against, but despite all the hullaballoo, the memory and lesson learnt from the scam (as with other scams) has fast faded away from public memory.
Around the same time, recall the events that were brewing around Justice Dinakaran’s case when he almost made it to the Supreme Court. The Chennai-based Forum for Judicial Accountability, in September 2009 had raised its voice against the then Chief Justice Dinakaran of Madras High Court. The issue again was illegal acquisition of land and it remained on the boil for good two years before he finally resigned from the post of chief justice of Sikkim high court on 29 July 2011 after the Chairman of the Rajya Sabha had admitted a motion for his removal. Interestingly, it was only after this that the Supreme Court collegium dropped Justice Dinakaran’s name for elevation.
Little before it was the turn of another judge of Calcutta High Court, Justice Soumitra Sen who quit when he found an impeachment motion staring him in his face. As a court-appointed receiver, he had kept the amount of about Rs 33 lakh in his personal account. With the benefit of hindsight, one can say that Justice Soumitra Sen’s act, unacceptable and unbecoming, was far less serious than what has now come to light concerning Justice Dipak Misra.
Let me briefly recapitulate Justice Misra’s case that dates back to 1979 when he was an advocate in the Orissa High Court. In order to provide succour to the poor and landless, the government of Orissa had come out with a policy of leasing land to them based on certain criteria. In the government notification, a landless person was defined as “…one who and his family members do not hold land more than two acres and who have no profitable means of livelihood other than agriculture…” To make himself eligible as a recipient for the leased land meant for the landless, Justice Dipak Misra in his affidavit tried subverting the rule to subserve his personal interest by testifying that: “…the extent of landed property held by me including all the members of my family is nil.” This Nil landed property was later found to be false; he had in another affidavit to the government of Orissa had sworn that his family owned 10 acres of land. Consequently, the lease granted for a “fodder farm” as reported, was cancelled on February 11, 1985, in proceedings under the Orissa Government Land Settlement Act, 1962 with the additional district magistrate of Cuttack indicting unequivocally that “…I am satisfied that the lessee has obtained lease by misrepresentation and fraud.”
This indeed is serious indictment — because the intent to mislead and circumvent the rule is unmistakable, as can be seen from the CBI’s closure Report of May 30, 2013. Shanti Bhushan, senior advocate and former union law minister, is forthright in his observations: “A false statement made in declaration, which is by law receivable as evidence, and using as true such declaration knowing it to be false, are serious offences under Section 199 and Section 200 of the IPC, punishable with up to seven years of imprisonment and a fine. The filing of that affidavit by Justice Misra is thus a very serious matter.” Despite all this, how he was considered for a judgeship where police verification and antecedent checks are crucial and mandatory speaks volumes of the system we have in place.
Against this background, it would be clear that it was imperative for the CJI to set up an in-house inquiry committee to investigate the case for, paradoxical as it may sound, this is where we enter into an exclusive and sequestered territory. The Supreme Court has directed in its Constitution bench judgment in the Veeraswamy case of 1991 that no FIR would be registered against any judge without the permission of the CJI. In a case as egregious as this, with the CJI not instituting an in-house inquiry and instead recommending him as his successor, coupled with no limitations placed by the Constitution (or any SC judgments) or the Memorandum of Procedures, it’ll naturally be incumbent upon the elected sovereign government to set things right to ensure judicial rectitude, as enjoined upon in the Constitution and its values, which they have been sworn to uphold.
Perhaps it is all the more imperative — and let me say this in parenthesis — because should one look at the issue of false affidavit through a psychologist’s eyes, one will discern that the tendency to mislead with the intent to circumvent the rule/procedures to make personal gains is doubtless a part of a person’s DNA and make-up that shall refuse to go away and always stay with him, surfacing as and when opportunities present themselves. Land and property are indeed the distillate of human conscience. Human beings by nature are obsessive, possessive individualists. The lack of transparency and professionalism in India, coupled with the age-old Indian tradition of promoting sub-national/clan/family loyalty — the sub-culture of biradiri in the larger template of the culture of materialism that’s gotten more pronounced with economic liberalization in today’s globalized world to get-rich-fast — have sadly distorted our priorities. Ethics is at the heart of the issue, more for a judge, still more for a Supreme Court judge — and doubtless many times over for the CJI. Ethics and morality are attributes that can neither be compromised nor wished away in public service, as the Supreme Court itself had rightly observed in the Second Judges case (1993) that “…persons of unimpeachable integrity alone are appointed to these high offices and no doubtful persons gain entry.”
Must then the President, and the council of ministers headed by the Prime Minister to aid and advise him, not scrupulously follow the extant SC order in the Second Judges case (1993) and ensure that the Supreme Court lives up to its own judgment so that its image of being unimpeachably fair and transparent shines through as a exemplar for other democratic institutions in the country to emulate?
(Reproduced from medium.com)

Monday, July 31, 2017

An Open Letter to the Prime Minister of India: Let Transparency and Openness Prevail

Image result for transparency and justice

Respected and Hon’ble Prime Minister,

Let me at the outset most humbly say that there is nothing personal and ad hominem about the issue raised in this letter. Also a DISCLOSURE upfront: I know none of the eminent people referred here; neither have I ever met – even seen – them, personally or in a gathering – social or official or in the courtroom. The issue discussed concerns institutional integrity and rectitude of a revered institution as the Supreme Court of India that we citizens of this country look up to and repose boundless faith in to uphold public ethics and the rule of law. Hence this open letter.

I must admit it is with a sense of great disquiet and dismay that I write to you, consequent to the CJI Justice J.S. Khehar’s recommendation of Justice Dipak Misra’s name as his successor. It is both surprising and intriguing, because as has been reported in the media, there is an ongoing case against Justice Misra for fraudulently and through misrepresentation of facts acquiring land in 1979 when he was an advocate. The DNA newspaper only a few days ago on July 17, 2017 had broken this news on its front page and reported that “A three-member committee of judges, constituted by the Supreme Court to conduct an in-house inquiry against two sitting judges of the Orissa High Court, has halted its proceedings after the name of a senior Supreme Court Justice cropped up during the course of the probe,” and that “The panel, headed by Punjab and Haryana High Court Chief Justice SJ Vazifdar, has now written to the Chief Justice of India for guidance and directions.” Soon thereafter the news was picked up by other newspapers and magazines.

The charges violate the high judicial ethics and values that judges are expected to follow. Shortly after the CJI had sent his recommendation to the government, the CatchNews reported that there is a “Cloud over Dipak Misra as Chief Justice: ICJ claims he is tainted” and “there is a roadblock that must first be passed before such an appointment is made… The obstacle in Misra's path is the International Council of Jurists (ICJ), which has sought a probe against alleged irregularities during his career. ICJ also plans to approach the Centre to oppose his appointment. ICJ had submitted a petition urging Justice Khehar to appoint an in-house committee consisting of Supreme Court judges to look into allegations of Justice Misra’s alleged involvement in a land scam in Orissa while he was an advocate.” The news portal The Wire has also in an article titled Old Land Allotment Case Casts Shadow on Justice Dipak Misra’s Nomination as CJI” published on July 31, 2017, brought out the facts of this case.

It is not for me to go into the details of the alleged land scam involving illegal transfer of large tracts of government land which Justice Misra is alleged to have acquired with false declarations. Nor the CBI report placed before the Orissa High Court which allegedly had indicted him for “fraudulently” acquiring the plot of land in Cuttack. Nor the fact that, as alleged, he wrongly held on to the land till 2013, even after his elevation to the Supreme Court and even after the CBI had indicted him, and only “quickly gave up the possession of the land to save himself.”

What’s troubling is that the Supreme Court as an institution seems to be following different standards in matters of appointment – one for the oligarchy of the robes, and one for all other institutions. Let me elaborate. In March 2011, a Bench headed by the then Chief Justice S.H. Kapadia and two other judges set aside the appointment of P.J. Thomas as CVC on the ground that “eligible persons should be without any blemish whatsoever and they should not be appointed merely because they were eligible to be considered for the post.” This was despite the fact that Thomas had been appointed as per recommendation of a high power committee (HPC) of three, headed by then Prime Minister Manmohan Singh. Justice Kapadia, who wrote the judgment, held the HPC's decision invalid and the Supreme Court had also inter alia directed that:

i.     All… persons empanelled should be outstanding… persons of impeccable integrity.

ii.        The empanelment should be… on the basis of rational criteria, which has to be reflected by recording of reasons and/or noting akin to reasons by the empanelling authority.

iii.     The empanelling authority, while forwarding the names of the empanelled …persons, should enclose complete information, material and data of the concerned officer/person, whether favourable or adverse. Nothing relevant material should be withheld from the Selection Committee.

iv.    The Selection Committee may adopt a fair and transparent process of consideration of the empanelled officers.

The Court had further observed that it was concerned with the institution and its integrity including institutional competence and functioning and not the desirability of the candidate alone who is going to be the Central Vigilance Commissioner, though personal integrity was also held to be an important quality. It reiterated that the independence and impartiality of the institution like CVC which had to be maintained and preserved in larger interest of the rule of law [Vineet Narain case].

The decision of the Supreme Court to inject transparency in appointment to high public offices was indeed praiseworthy. The conditions it laid down for empanelment too was unimpeachable and beyond reproach. Those were for a statutory post of CVC. Here though the concern is for the constitutional high office of Chief Justice of India. If CVC is an extremely important office for monitoring propriety in public office, the office of the CJI, encompassing as it does today almost all aspects of citizens’ life, is an office like no other. Interestingly, the Constitution is silent on the processes to be followed in appointment of the CJI. Conventionally though the retiring CJI recommends the name of the senior-most judge for appointment by the President of India as his successor. This too has been incorporated in the Memorandum of Procedure – all the more reason why the SC’s directions in the CVC appointment case becomes binding on the CJI.

Today, “We, the people of India…” look up to the Supreme Court with awe and respect. This unqualified and abiding faith puts an onus on the Supreme Court as an institution and especially on the CJI as a person holding this high office. Given this backdrop, one wonders if the CJI has followed the spirit and directions of this very august court he helms today, in recommending the name of his successor to the government. This assails a citizen’s mind today, as brought out below.

i.         In the light of the DNA’s news of July 17, 2017 about the Supreme Court-appointed 3-member in-house panel headed by Chief Justice Vazifdar seeking the CJI’s guidance, how has the CJI established that all the above conditions have been fulfilled?

ii.      Placing reliance on non-availability of information in the public domain, about directions provided to the in-house panel headed by Punjab and Haryana High Court Chief Justice Vazifdar and more importantly even before the issue concerning Justice Misra has been probed by a Supreme Court committee and found to be without any basis, doesn’t the CJI’s recommendation become non-est in law, as the bench of Chief Justice Kapadia had held in the case of appointment of P.J. Thomas as CVC? Ironically, the power to grant permission to proceed against any judge of the Supreme Court/High Court lies on the CJI. Recall how the Supreme Court has dealt with the statutory provision in the CrPC, which while making corruption a cognizable offence requires that whenever an FIR is filed, it is the statutory duty of the police to investigate the offence, collect evidence against the accused, and charge-sheet him in a competent court and, if found guilty, deal with it appropriately. To recall Shanti Bhushan, the respected senior advocate’s words: “The Supreme Court has however by violating this statutory provision in the CrPC given a direction in its Constitution bench judgment in the Veeraswamy case of 1991 that no FIR would be registered against any judge without the permission of the Chief Justice of India. In not a single case has any such permission ever been granted for the registration of an FIR against any judge after that judgment.” This is closeted and “cloistered justice” at its very best that is not open to “suffer the scrutiny and outspoken comments of ordinary men” and institutions. That’s the nub of the problem.

iii.    Since the issue raised by Justice Vazifdar panel seeking guidance hasn’t been addressed yet by the CJI, does the latter’s recommendation of his successor’s name not tantamount, by implication, to brush aside the concerns expressed by the panel, and bringing a closure to the case? Sadly his action echoes the concerns articulated by Shanti Bhushan, who in his 2010 affidavit had publicly stated that out of the last 16 Chief Justices of India, eight of them were definitely corrupt: “…that the judiciary has adopted the policy of sweeping all allegations of judicial corruption under the carpet in the belief that such allegations might tarnish the image of the judiciary. It does not realize that this policy has played a big role in increasing judicial corruption.” Are we institutionalizing this practice?

iv.      How has the Supreme Court’s prescription in their 2011 CVC judgment with regard to institutional integrity and institutional competence and functioning, apart from personal integrity, been addressed? This too is unclear and hence very disturbing.

v.       While it will be presumptuous on one’s part to second guess the content of his letter recommending his successor, one can safely conclude that the CJI hasn’t yet set up any in-house enquiry committee to examine the issues. Nor has he possibly given any direction to the Justice Vazifdar panel. Must we then, in the absence of information available in public domain, conclude that there are two standards for appointments to high public offices in vogue: one for the judiciary, the other for other institutions? If it’s so, isn’t that unfair and inequitable?

vi.    My mind, disquiet and far from stilled, travels back to Justice C.K. Prasad’s judgment, which in 2014 had created a nationwide controversy. As reported, he pulled out the 35-hectare Cidco prime land allotment case of public land originally listed before a three-judge SC bench, and on an oral plea, decided within a couple of minutes a 12-year-long battle, at a throwaway price of Rs 33 crore in favour of the winning bidder. The market value of the 35-hectare land was said to be about 100 times more – so glaring was the case that it prompted senior lawyer Dushyant Dave to question the bench's judicial propriety. It is this aspect of institutional integrity that Justice Kapadia had laid emphasis on in his March 3, 2011 CVC judgment. The CJI is much more than the primus inter pares vis-a-vis other SC judges. He exercises administrative powers, assigns cases to other SC judges and thus plays an extremely important role in the nation’s judicial life.

Now, it’s for you, Hon’ble Prime Minister, as the head of the government, to act and do the appropriate course correction. Para 2 of the Memorandum of Procedure amply makes it clear that it is for the government to decide and own responsibility for the CJI’s appointment. Let Transparency and Openness prevail in public governance. We fervently hope you will ensure that.

With kind regards,

Yours sincerely,

Sudhansu Mohanty

(Reproduced from medium.com)

Monday, July 24, 2017

An Open Letter to the Chief Justice of India

Respected and Hon’ble CJI Justice Khehar,
As a concerned senior citizen who is a former civil servant and retired last year at the apex level of bureaucracy, I write this letter with great anguish and with a stab of pain in my heart. All my life I have fought against corruption and dishonesty, including the not-so-visible and not-so-palpable part of intellectual dishonesty in public life. Frankly, it wasn’t one bit easy for me, but I persevered nonetheless and regardless of my professional career. Hence I thought I must share my thoughts that disturbs me no end and, which, you, as the CJI, are in a position to address.
The DNA newspaper on July 17, 2017 broke the news on its front page that “A three-member committee of judges, constituted by the Supreme Court to conduct an in-house inquiry against two sitting judges of the Odisha High Court, has halted its proceedings after the name of a senior Supreme Court Justice cropped up during the course of the probe.” And that “The panel, headed by Punjab and Haryana High Court Chief Justice SJ Vazifdar, has now written to the Chief Justice of India for guidance and directions.” Soon thereafter the reputed legal news magazine Bar and Bench picked up the story and inter alia reported that “Flummoxed at this development, the three member panel of high court judges, headed by Punjab and Haryana High Court Chief Justice S.J. Vazifdar has written to CJI Justice Khehar seeking his guidance. The panel has stated that despite allegations of the Supreme Court judge’s proximity to these two judges, it is unable to proceed because its mandate excluded probing charges against a sitting Supreme Court judge.” On 18.07.2017 the Times of India also carried the same news item under the caption Graft probe against HC judges has panel in a fix.
You will agree that of the four putative pillars of democracy, in India the one institution that cries out for immediate reform, perhaps more than the other three — executive, legislature and media — is doubtless the judiciary. Because today judiciary has become ubiquitous — omnipotent in its sweep, omniscience in its wisdom and prescience, omnipresent in every walk of life that affects a common citizen. Open any newspaper or surf any TV channel or browse the net and you will get to read or hear the erudite words of learned judges of the Supreme Court or one of the High Courts. The faith in judiciary and especially the apex court is, as is supposed to be, unflinching, full and absolute. We ordinary citizens look up to the Supreme Court with great faith and respect, something not ordinarily accorded to other organs of governance.
Appropriately, therefore, this blind, undying faith puts an onerous responsibility on the Supreme Court as an institution and especially on you who helms the same as the CJI. But recent developments, even the developments in the past few decades, do not fortify the citizen’s faith. I can do no better than bring to your attention a few of the averments (given below in italics) made in an affidavit by Mr. Shanti Bhushan, the respected senior lawyer — who in 2010 while impleading himself in the case publicly stated that out of the last sixteen Chief Justices of India, eight of them were definitely corrupt — when he wrote those immortal lines on the need to enforce judicial rectitude, and pleaded that he “be added as a respondent to this contempt petition so that he is also suitably punished for this contempt. The applicant would consider it a great honour to spend time in jail for making an effort to get for the people of India an honest and clean judiciary.” I have no idea what came of the case. Since nothing is available in public domain, I assume perhaps no corrective action has been taken by the apex court yet.
“…that the judiciary has adopted the policy of sweeping all allegations of judicial corruption under the carpet in the belief that such allegations might tarnish the image of the judiciary. It does not realize that this policy has played a big role in increasing judicial corruption.”
“That the Constitution prescribed removal by impeachment as the only way of removing judges who commit misconduct since it was believed at the time of the framing of the Constitution that misconduct by judges of the higher judiciary would be very rare. However those expectations have been belied as is apparent from the surfacing of a series of judicial scandals in the recent past. The case of Justice V. Ramaswami and subsequent attempts to impeach other judges have shown that this is an impractical and difficult process to deal with corrupt judges. The practical effect of this has been to instill a feeling of impunity among judges who feel that they cannot be touched even if they misconduct.”
“That corruption by judges is a cognizable offence. The Code of Criminal Procedure requires that whenever an FIR is filed with respect to a cognizable offence, it is the statutory duty of the police to investigate the offence. The police has to collect evidence against the accused and charge-sheet him in a competent court. He would then be tried and punished by being sent to jail. The Supreme Court has however by violating this statutory provision in the CrPC given a direction in its Constitution bench judgement in the Veeraswamy case of 1991 that no FIR would be registered against any judge without the permission of the Chief Justice of India. In not a single case has any such permission ever been granted for the registration of an FIR against any judge after that judgement.”
“That the result of this direction has been that a total immunity has been given to corrupt judges against their prosecution. No wonder that judicial corruption has increased by leaps and bounds.”
“That an honest judiciary enjoying public confidence is an imperative for the functioning of a democracy, and it is the duty of every right thinking person to strive to achieve this end.”
“That unless the level of corruption in the judiciary is exposed and brought in the public domain, the institutions of governance cannot be activated to take effective measures to eliminate this evil.”
“That it is the common perception that whenever such efforts are made by anyone, the judiciary tries to target him by the use of the power of contempt. It is the reputation of the judge which is his shield against any malicious and false allegations against him. He doesn’t need the power of contempt to protect his reputation and credibility.”
Today citizens of this country know that the malaise runs deep. An advocate indulging in crass shenanigans gets elevated through the collegium system, a system which doubtless was established with all good intent, but quickly degenerated to one of give-and-take so much so that the author of the collegium system, the revered Justice J.S. Verma had regrets about its efficacy. Imagine there are no records of collegium meetings available! Recall how not too long ago, Justice Chelameswar, one of the collegium members, had dissented and raised his voice against the prevalent practice and demurred to attend meetings of the collegium; and instead wanted views to be recorded on files. Never in my fallible memory of government past, working in the much maligned Indian bureaucracy, did I ever see any decision of value, let alone important decisions, not recorded or views not expressed and controverted, even dissented openly. The sad thing is everyone knows what goes on in judiciary. Almost everyone talks about it in high-pitched exasperating decibels in private confabulations but stops short of saying so even in whispered tone in public — lest they crossed the lakshman rekha and breached the contempt law. Because there is no appeal beyond the apex court — no matter how right or wrong such orders are. Ask the honest, no-nonsense, upright and knowledgeable former Supreme Court judge, Justice Markandey Katju!
This calls for extreme caution and self-restrain. You know better than I do Lord Atkin’s immortal lines, “Justice is not a cloistered virtue. It must suffer the scrutiny and outspoken comments of ordinary men”. Especially in today’s time when the clamor for transparency in public life is surging ahead.
Look at the sorry state of judiciary’s functioning. The judges refuse to bring the Supreme Court Registry under the RTI purview; Justice A.P. Shah, a rare independent and conscientious judge of unimpeachable integrity is not elevated to the apex court because he was perceived as too independent, too impartial, and too honest for anyone’s comfort. Whither are we bound? Judiciary is mandated to uphold the rule of law, to speak the moral vocabulary with its internal moral compass perennially ticking to dispense justice; what happens when the upholder of the law starts eating the crop!
If my memory serves me right, some six-eight months ago, the Economic Timeshad carried news about a Supreme Court judge acquiring land in a fraudulent manner or by misrepresentation of facts and continued to hold the same even much after his elevation. I don’t even know if the present case concerns him. I didn’t know till moments ago the name of the judge, but I have wised up now, but given the sensitivity and that the charges are yet to be looked into, I do not wish to commit solecism by disclosing the name. But all these past months I didn’t hear anything in the media. Nor, if the matter was at all inquired into by the Supreme Court to get to the bottom of the complaint. This is what citizens of this country would expect from public officials, more so from a judge of the apex court. We aren’t a banana republic after all!
Your Lordship, as the CJI the ball is in your court now. Given that, as things stand today, no FIR can be registered against any judge without the permission of the Chief Justice of India, I would urge and plead with you to appoint a Committee comprising of a few senior judges of the Supreme Court with the direction to carry out an immediate in-house inquiry to find out the truth. It has to be immediate — Justice delayed is justice denied! — and your decision in the matter put out in the public domain to restore citizens’ faith in the judiciary. I will humbly like to nudge you to remember the first and the last codes of RESTATEMENT OF VALUES OF JUDICIAL LIFE, as adopted by Full Bench of Supreme Court on May 7, 1997.
Justice must not merely be done but it must also be seen to be done. The behaviour and conduct of members of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly any act of the judge of the Supreme Court or a High Court, whether in official or personal capacity, which erodes the credibility of this perception, has to be avoided.
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.
If the alleged judge is innocent the public must know; if found guilty, he should be dealt with the severest punishment that can be sanctioned against a public official and a Supreme Court judge at that, so that the exemplary punitive action meted out rings down the corridor of Indian nation and democracy that prides in its rule of law. Sunlight is the best disinfectant. After all, judges, given the important role they play in a nation’s life, are expected to follow the punctilio of a higher code and, as the saying goes, judges must like Caesar’s wife be absolutely and always above board. And all along, we as citizens and you occupying one of the highest offices in this nation need to stay ineffably humble regardless of the position we hold and the perch we speak and act from, and chant the prescient words of Thomas Fuller, the 17th century English churchman: “Be you ever so high the law is above you”!
Your Lordship, as I said before, it is now your turn to act and make the right move. We wait with bated breath the transparent outcome of your action.
With regards,
Yours sincerely,
Sudhansu Mohanty
(Reproduced from Medium.com)