Goverment In India

by T S R Subramanian

  Practically all professionals in India come under severe public scrutiny. The work of bureaucrats, doctors, and engineers come in public view in one context or the other – all being human, many irregularities come to light. The public forms its own opinion, well or ill, against each professional class in India. There is none at all to supervise or to watch over the activities of the lawyer community. There is some controlling authority over every profession. One can understand the bar association, which is a friendly society not being interested in wielding the rod. But what about the Bar Council, which has the statutory backing of the Advocates Act? Has it acted as a responsible professional guild in any state, to bring some order and propriety in the behaviour of its members, and to punish deviants? One would expect that the courts would keep a close watch on the goings-on amidst the lawyer community. However, it appears that the judiciary is unwilling to take up any matter against members of the Bar – indeed in the Allahabad High Court, there used to be a joke that the lawyer community was the only one about which the judiciary was scared. In any case, the searchlight is never turned on the lawyer community. It is high time the media and other public-spirited agencies examine closely the attitudes, practices and general behaviour of lawyers with their clients. It will be interesting if such studies were made, and the results broadcast.

  Prudence demands that one rotten apple in a barrel should draw urgent attention to the entire content. The shocking public revelation of the conduct of the counsel concerned with prosecution and defence, and their apparent collusion ought to have set alarm bells ringing in all responsible quarters to the need to examine every element and take remedial action as required. It will be futile to expect the bar councils to undertake this exercise. Indian experience of self-regulatory mechanisms has been abysmal. One cannot point to a single professional institutional structure that has effectively self-regulated itself and retained high standards. The BMW revelations unfortunately have been apparently seen and accepted by all in authority as isolated alleged violations, to be investigated and punished; the latter most reluctantly, and in the mildest possible manner. This is astonishing abdication of responsibility. All anecdotal information points to widespread malpractices by the lawyer community. Sectoral professional associations have found themselves unwilling initially, and in due course thoroughly unable to discipline their own brethren. Indian experience indicates that every institution needs a strong element of outside supervision for it to retain even minimum standards. I cannot think of the exception. It is not suggested here that every member of the legal community indulges in malpractices – there are certainly many noble souls in that group and a large number who are no more selfish than normal human instincts would dictate, given the opportunity. However, there is a strong suspicion that the innards are not in pristine condition. The judiciary should have found a mechanism to institutionalise the processes and enforce new directions for improving standards. The failure of government in this regard, especially the Ministry of Law and Justice, is palpable and grave.

  It is high time that light be focused on the functioning of the lawyer community. This is probably in their own interest. It is well known that where sun rays never reach, underneath the crevices, cockroaches and insects flourish. A dose of sunshine will do a lot of good to clear up the air.

  Commissions of Inquiry/Arbitration – How to send the issue into orbit? . . .

  A year or so back, I read with mixed feelings the brief announcement in the press, about the '43rd extension to the Liberhan Commission'. I was amused to read this; probably this may constitute some kind of a world record in the number of extensions given to a Commission of Inquiry. I subsequently recall a brief mention in the papers about the 46th extension. I may stand corrected; but forty-six extensions do appear ridiculous. My other emotion was one of sadness – how sacred institutions have been trivialised, and how the system has rendered meaningless the most important institutional devices. I do not know if we will ever see the final report of the Liberhan Commission. A commission of inquiry is, under ideal circumstances, meant to provide a high quality, dispassionate look at the events leading up to the situation, in a major matter of high public interest. A commission's findings are expected to highlight and analyse the issues, illuminate the facts and circumstances, apportion blame; but most importantly suggest changes, which will reduce the chances of recurrence of major blunders. It is unlikely that any of these objectives will be met if and when the Commission's report sees the light of day. It will certainly seem to many as not being worth the time, energy and resources that had been used for it, if it does eventually come out. It may now only recreate new controversies, not likely to throw any new light. I would not be surprised if the report, by sheer 'coincidence', is released just before the next general elections!

  Nor is this the only commission which has taken years on end to perform the simple and straightforward task assigned to it. Many other Central and state commissions have made heavy weather of dealing with the tasks entrusted to them; it would be impolite to suggest that it may be in the interest of the presiding officer of the commission, frequently a retired member of the judiciary, to prolong the work of the commission ad infinitum– though this indeed is likely to be the truth .

  Commissions of inquiry may not strictly be a part of judicial processes. However, in the public eye, they do figure as judicial proceedings; at any rate, the commissions are first cousins to our judicial systems. One has seen similar dilatory, never-ending proceedings in a large number of arbitration cases. Many of these go on for years on end, and never seem to terminate. Again the irony is that these proceedings are meant to bring a quasi-judicial, neutral view on disputes with the objective of finding a compromise or a settlement. However, once the arbitration proceedings start, they go on forever. It will be impolite to suggest that the interest of the arbitrator(s) is to prolong the proceedings as long as it could stretch; the fact remains that this is an ineffective, frequently counter-productive process, often resorted to by unscrupulous parties whose interest is to delay the settlement of the dispute. The arbitrators frequently become willing partners.

  In many cases of the Bureau of Industrial and Financial Reconstruction (BIFR), the proceedings used to go on interminably. W hen the BIFR was conceived in the 1970s or '80s, it was meant to provide a swift assessment by an expert group to see whether a loss-making enterprise was capable of turning around or not – if it was, a revival package was to evolve; if it was not, the unit was to be wound up. This was the noble intention of the BIFR. However, in practice, the BIFR again became the playground for unscrupulous business interests, in tandem with presiding officers (mostly retired government servants) in prolonging proceedings ad-infinitum, in subversion of the purpose with which these institutions were created. In all of these, a fundamental flaw has been that there was no rigid time limit fixed for a final decision. This gap, probably not accidental, coupled with the desire of the presiding officer to prolong proceedings in his own interest, have produced results diametrically different to what was intended when these bodies were set up. It is amazing how the Indian mind is able to zero in on form, at the cost of substance, and call it 'due process'.

  Use of Technology – Will the old lady learn to type? . . .

  Modern technology has entered every aspect of management. Thus rail, air bookings, election process and business management have all taken advantage of the computer, the internet, and in short, information technology (IT). Every ministry in the government is inducting some aspect of IT to improve decision-making processes. My impression is that a similar attitude has not been displayed by the judiciary. The process of examining witnesses, taking depositions, and a host of other activities connected with the judicial process could all dramatically speed up the proceedings and improve the situation drastically if IT is inducted with care, in a secure, sensitive and practical manner. The other day one read of a high profile accused who had been granted bail by the convicting court, having to spen
d a further week or so in detention since it took that long for an authenticated copy of the judgment to be made available to the lawyer of the accused, for him to present it to the jail authorities! Many years back, I used to come across constables and other district officials and even officers like sub divisional magistrate (SDMs) and DMs frequently absent from their duty stations for three or four days, since they had to go to another station where they were posted some years ago, to give 'evidence'. To the uninitiated, this means that they had gone there to verify their own signatures on some document or the other, which would have effectively taken five minutes, for which three days were required including travel. It was even more aggravating to learn that sometimes they had to do this repeatedly for the same case, some five or six times, since the 'case was adjourned' each time. This is a mindless loss in efficiency, and an example of ineffective use of manpower which surely could be remedied through use of technology, including the internet, live video evidence, etc.

  Clearly, there is considerable room for introduction of latest technology, nearly in every aspect of the judicial process. In the trial phase itself, expenditure of much time and energy could be saved by using the video camera to record statements (with due safeguards), mainly to dispose off routine depositions. Reference has been made to improve the quality of confessional and other statements by the accused before the police, or in the presence of a magistrate. In every walk of life, procedures have been revamped using modern day technological devices, like the computer, internet and the video camera; one wonders why such a major initiative has not been forthcoming in the judicial sector. Surely this deserves a good look, especially considering the huge delays in the process, and the imperative urgency of speeding up systems.

  Summoning the Executive for Contempt – barking up the wrong tree . . .

  There is another issue worth noting with respect to senior officials, particularly in state governments. One has noticed that high officials like the chief secretary or the director general (DG) of police, or the secretaries to state governments are frequently 'summoned' by the high courts, generally for alleged non-implementation of court's orders. This is a fairly widespread phenomenon in nearly every high court and every state. A principal secretary to the Education Department in one state told me that on an average, he is summoned by the high court or some other court about six times a month. On most of these occasions he stands in the court nearly till the end of the day's proceedings, when he is heard briefly, followed by some sharp comments from the bench – that is that! There are some aspects which are relevant in this context. Firstly, it can be surmised, or at least speculated, as to how many of these summons arise out of the need to show 'who is boss'. Secondly, such steps have become so routine that senior officials, sadly, are inured to such experiences, and unfortunately shrug it off as a humiliating part of their duties. Finally, and most importantly, it is critical to understand that final decision-making powers in the state governments are not with the secretaries to the government or even the chief secretary. Once upon a time, these were the real decision makers; over the last twenty-five years, nearly all decision-making has moved to the level of the minister or the chief minister.

  Remembering my early days in the Lucknow secretariat in the '60s, and my days as a middle official in the central commerce ministry in the late '70s, I would roughly surmise that about ten percent of decisions would be taken by the minister, and the remaining by the secretary concerned or at lower levels. In the first decade of the twenty-first century, this has totally reversed; over ninety percent of the decisions are taken by the minister personally, while facts are analysed and options proposed at the level of the secretary or lower levels. This is a situation well understood by all insiders, perhaps even the citizenry. Surely this is not unknown to our judicial system. It is a mystery as to why ministers are not summoned for explaining non-fulfilment of judicial orders; why should the helpless secretary be summoned to answer to a situation beyond his ken? The practice started from the British days when the secretary of a department would function effectively as its head, as he was reporting directly to the chief secretary or the governor, with no political head to supervise him. But, after Independence, the de jurė head of the ministry is the minister; and over the past three decades, emphatically in a de facto manner also.

  The argument that ministers are members of the legislature, and therefore courts are unable to interfere with their decisions or to question them, seems unacceptable. In the first place, a minister functions as member of the executive and not as a legislator while passing orders on a file. Indeed there is provision for individuals to hold ministerial positions for six months or so without being a member of the legislature. Sophistry in interpretation of the Constitution cannot be invoked to explain failure of the courts to chasten ministers for their acts performed as a part of the executive. Violation of court's orders, by a junior functionary, head of the department, secretary to government, or even the minister, ought to get equal treatment – ultimately the minister is the one responsible, literally and morally. I would bet that if ministers start getting summons from high court for being questioned for non-implementation of directions, there will be dramatic improvement in compliance with court orders.

  Soft on the Political Class – you leave me alone, I leave you alone…

  This is not the only area where the courts generally have treaded a soft line where politicians are concerned. One does not have to minimise the great constitutional significance of each of the three pillars of our Constitution (Legislature, Judiciary, and Executive) to be responsible for the areas entrusted to them. Nor can one over-emphasise the need for each of these institutions to tread with care, and not to intervene or interfere with the legitimate territory of the other. Having said this, the judiciary has a special responsibility to interpret what is extra-judicial activism and whether any step has encroached on other territory. One cannot escape the conclusion that the judiciary has been overly pusillanimous in defining the boundaries and in taking action where required, when it concerns the political class.

  Much commentary has been written on the JMM bribery case, involving an ex-prime minister as well as some Jharkhand members of parliament (MPs). Subsequent to the court's judgement, the impression has clearly gained ground that legislators can take bribes so long as it is in some way connected with their parliamentary duties, however remotely. I have been lectured that I am unable to understand the subtle nuances of the constitutional relationship between the legislature and the judiciary, and the constraints that hamper the judiciary's hands in taking action against legislators. There was a 'cash for parliamentary questions' scam where the courts could not intervene. Similarly, there was abuse of the member of parliament local area development (MPLAD) funds by some MPs, where the judiciary did not deem it necessary or find itself able to intervene. I find this astonishing. Are the MPs/MLAs not citizens any more? Once they take the oath in the legislature, do not the Indian Penal Code (IPC) and other acts apply to them. If the same crime is committed by an ordinary citizen, he faces the wrath of the judicial system – do the politicians transcend our legal environment by winning an election? Common sense dictates that there should be concurrent jurisdiction; there is no issue of double jeopardy involved in this. Any judicial proceedings in this regard would relate to the legislator's activities as citizen. Any House disciplinary committee or ethics committee proceedings would deal with his status as a member of the House. The unfortunate widespread understanding among the citizenry that politicians are above the law, in my view, has been largely contributed to by massive acts of omission by the judiciary in this regard.

  Perjury – 'terminological inexactitude' on oath, permitted . . .

  It is a well-known phenomenon that many witnesses in Indian courts perjure themselves during court proceedings. A number of such high profile occasions have been reported in the media every now and then. A large number of 'open and shut' cases have resulted in acquittal, because a ke
y witness changes his deposition. This is an endemic phenomenon – the malaise is compounded by an interminable judicial process. One does not get the impression that obvious cases of perjury are dealt with effectively and powerfully in general by the courts, to deliver an example to witnesses not to perjure. When a witness in the same court or in a different court makes conflicting statements, on oath (without any clearly valid cause), this is a clear case of perjury. I suspect that in western countries, perjury is not as common as in India. If this is true, this may be either due to fear of punishment or due to an innate respect for the judicial process which influences the witnesses to speak the truth on oath. Perhaps it is a legacy of a thousand years of foreign rule in India that the citizens are scared of the executive and the judicial process, witnesses are afraid that they may be brought to harm by aggrieved accused with the state standing by. Whatever may be the historical causes, this is clearly an area which needs to be tackled with some severity. One also needs to take strong note of the general unwillingness of the ordinary citizen to get involved with the judicial processes or the criminal justice system in any way – he is wary, unconcerned or apathetic. Very often, the citizen who stands by will not want to come and give information or evidence for fear of getting sucked up by the machine, for fear he may suddenly get transformed from the position of witness or observer to be treated as an accused, and become a victim of the process. Even if he stays merely as a witness, he could get dragged into the legal proceedings for years. Any reform of the judicial process needs to look into this.