Chanakya's New Manifesto: To Resolve the Crisis Within India (20 page)

  3.27  The solution becomes clear once the causes are known. US Supreme Court Judge Louis Brandeis once said that sunlight is the best disinfectant in such matters. We need sunlight to penetrate the shrouded corridors of government decision-making. To this end, the first imperative is to make all government transactions in this domain completely transparent
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Secondly, and as part of this process, clear-cut rules and procedures must be worked out and their enforcement strictly monitored and enforced.

  3.28  There is no doubt that competitive auctioning conducted in a transparent manner is one tool to eliminate cronyism in the disposal of state resources. In the 2G case, the Supreme Court has pronounced that auctions must be the route for fresh allocation of spectrum.

  3.29  However, it does not follow from this that all state resources must be compulsorily and invariably auctioned. For instance, resources such as water or food could conceivably be disposed off on the basis of a policy whereby the goal is not the maximization of resources for the government, but other equally valid goals such as social justice or equitable distribution or subsidized disbursement.

  3.30  Thus, while competitive auctioning is an option that must be exercised when needed, what is more important is to have a clearly-defined policy, rules and procedures, available for full public scrutiny whenever such transactions are made.

  3.31  It must also be emphasized that, while in the wake of the 2G scam, the Supreme Court rightly intervened, the onus of devising and implementing a definitive policy framework to ensure transparency and fair play must lie with the government and not the highest judicial body.

  3.32  To this end, it is essential that Parliament passes an umbrella act providing comprehensive rules for the disposal in any form of all state resources. (This would be in addition to specific acts already enacted relating to specific sectors). The new act must lay down precise norms, including provisions for full public disclosure, for the following, among other things: (a) the enunciation of a policy framework for transactions (b) the rules and procedures to be followed (c) the qualifying criteria to bid (d) the modalities for the selection process (e) the conditions that may require the creation of an independent regulatory authority for a specific transaction (f) the use of e-technology to ensure verifiable public scrutiny (g) the timely and full public disclosure of all details (h) and the penalties that unethical practices would invite.

  3.33  Unless social policy imperatives dictate the contrary, a competitive online auctioning system is the most effective methodology to ensure fair play and provide the best returns to government. This must be clearly spelt out in the act.

  3.34  It would also help if an independent Transparency Commission with national jurisdiction to oversee major transactions was set up. The success of other regulatory bodies, such as the Competition Commission and the Securities and Exchange Board of India (SEBI), provides reason to believe that this Commission too would be useful. The Transparency Commission could be chaired by a retired judge of the Supreme Court. The other members could be the chairpersons of SEBI and the Competition Commission, and the attorney general of India. The term of the chairperson would be for a period of three years, while the other members would be ex officio.

  3.35  All transactions of state resources independently assessed at a monetary value beyond
100 crore would need to be compulsorily submitted to the Transparency Commission prior to implementation for vetting with regard to transparency and fair play. If required, the commission could recommend the setting up of an ad hoc regulatory authority specific to a particular transaction. The commission must convey its findings to the government within thirty days of first reference, and make such findings public.

  3.36  Of course, judicial recourse to an aggrieved party would always be available; equally, all the transactions would continue to be in the audit jurisdiction of the CAG.

  3.37  Another area for vast corruption is in the sale and acquisition of land by the government. A comprehensive Land Acquisition Bill is of the greatest importance; this bill must clearly spell out the criteria for acquisition, the rates for compensation, and the processes that must be followed for the sale or disposal of land. It is essential that this law itself be transparent, in order to avoid the interpretational and procedural loopholes that allow corruption to take place.

  3.38  In the area of government procurement, the union cabinet has already taken the right initiative of clearing a Public Procurement Bill, 2012 that would make the process of awarding civil work, service contracts and goods purchases above
50 lakh open and transparent. The bill states that there should be no restriction on the number of bidders, other than on specified conditions, and all details of contracts awarded must be made public. Under its provisions, an open electronic auction system will be used, so that the entire process is subject to full public scrutiny. Rightly, emergency purchases made during natural calamities such as earthquakes and floods will be kept outside the purview of the bill, as would procurements for defence and strategic purposes. The principle that sunlight is the best disinfectant is a truism. But that maxim can only translate to reality if the right institutional framework is created.

  3.39  The fourth measure is to ensure exemplary and deterrent punishment for corruption. Nothing emboldens the corrupt more than the belief that there will be negligible or no consequences for their criminal behaviour.

  3.40  It must be clarified that arguing for deterrent punishment is not to advocate either an excessively punitive state or an undemocratic polity. On the contrary, it is to set up an effective state, which demonstrates its ability, within the democratic framework, to punish the guilty commensurate to the nature of their crime.

  3.41  Our track record, thus far, in punishing the corrupt is abysmal. In fact, it is so poor that it would not be wrong for an outside observer to conclude that the apparatus of the state is in collusion with the corrupt. The Law Commission in its 166
^th
Report (1999) stated bluntly—and this is endorsed by the 2
^nd
Administrative Reforms Commission (ARC), 2007—that: ‘The Prevention of Corruption Act (PCA) has totally failed in checking corruption. In spite of the fact that India is rated as one of the most corrupt countries of the world, the number of prosecutions and more so the number of convictions are ridiculously low. A corrupt minister or a corrupt civil servant is hardly ever prosecuted under the act, and in the rare event of his/her being prosecuted, the prosecution hardly reaches conclusion.’

  3.42  It is obvious that urgent action is needed to rectify this disgraceful state of affairs. But none of this will be possible until judicial reform takes place, because the judiciary is the primary arm of the State to mete out the required deterrent punishment.

  3.43  Judicial functioning in our country is, by any objective criteria, urgently in need of reform, and it is amazing that nothing substantive has been done about this for so long. At the latest count, 2.75 crore cases were pending in the district and subordinate courts; 49.2 lakh cases remain undecided in the high courts; and 54, 612 await disposal in the Supreme Court. In spite of these dismal statistics, there are 3,422 unfulfilled vacancies in the district and subordinate courts, and 276 in the high courts (out of a sanctioned strength of 895); even the highest court of the land, the Supreme Court, has two vacancies out of a total strength of 31. As many as six high courts in the country were without full time chief justices because the Supreme Court collegiums had failed to make any recommendations for the posts. Not surprisingly, cases drag on interminably, while the guilty use the dilatory judicial process to indefinitely delay or even escape punishment.

  3.44  A second major impediment to meting out punishment is corruption within the judiciary. In its rightful pursuit of judicial independence, the judiciary has largely escaped any investigation into its own functioning. This has been acknowledged by judges themselves; one former chief justice of India (CJI) has actually gone on record to say that one out of every five judges is corrupt. More recently, former CJI, V. N. Khare, has candidly admitted that corruption in the judiciary is rampant and bribes for bail are endemic.
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If those who are expected to punish the corrupt are corrupt themselves, what can we expect in the battle against corruption? Judges of the higher judiciary can be removed only by impeachment, and the process, requiring parliamentary endorsement, is so cumbersome that no judge has ever been impeached so far. The appointment of senior judges, through in-house collegiums within the higher judiciary, is exceptionally insular. ‘India is unique in the degree of judicial control over judicial appointments. In no other country in the world, does the judiciary appoint itself.’
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  3.45  In response to an RTI query, the justice department of the law ministry revealed in April 2012 that in the last year it had sent as many as seventy-five complaints of corruption against serving judges of the Supreme Court and high courts to the CJI or the chief justices of the respective high courts for ‘appropriate action’, but remained unaware if any action had been taken on the complaints.

  3.46  To raise these issues is not to devalue the respect the judiciary deserves or to prompt an assault on its independence. However, all institutions within a democracy must earn the respect that is their due; and, independence, as both the Law Commission and the 2
^nd
ARC rightfully point out, can never be absolute. Independence and accountability are two sides of the same coin. In fact, the bar of accountability and performance must be, if anything, even higher for the judiciary, because justice unethically subverted or unaccountably delayed is justice denied.

  3.47  The subject of judicial reform has been contemplated for a long time now, but with very little to show for it. The 67
^th
Constitution Amendment Bill was introduced in Parliament in 1990, for the creation of a National Judicial Commission. It did not see the light of day. The Judges Inquiry Act of 2005 and 2006 similarly lapsed before they were approved. The subject has also been dealt with exhaustively by the National Commission to Review the Working of the Constitution, the Law Commission, the 2
^nd
ARC, and most recently by the Planning Commission in its paper outlining the approach to the Twelfth Five Year Plan.

  3.48  The latest addition to efforts in this area is the Judicial Standards and Accountability Bill (JSAB). The basic features of the new bill are provisions for judges to declare their assets and liabilities, including that of their spouse and children, the creation of a National Judicial Oversight Committee, Complaints Scrutiny Panel and an investigation committee. Any person can register a complaint against a judge to the Oversight Committee on grounds of ‘misbehaviour’. This process does not preclude the existing procedure for removing a judge on grounds of misbehaviour through a motion in Parliament. The motion moved by Parliament will also be referred to the Oversight Committee. The complaints and inquiries conducted against judges will be strictly confidential and frivolous complaints will be penalized. The Oversight Committee is empowered only to issue ‘advisories’ or ‘warnings’ to judges, or recommend removal to the president.

  3.49  There are several problems with this bill: first, the Judicial Oversight Committee has no real powers except to pass on a complaint to another layer, namely the Complaints Scrutiny Panel. This scrutiny panel is to consist of three members, two of whom will be sitting judges of the same court as the judge against whom the complaint is made, clearly an unfair and unworkable proposition; thirdly, the composition or the modalities of the investigation team is undefined; fourthly, the penalties are merely in the form of advisories or warnings or, at best, a recommendation for removal to the president; fifthly, the Oversight Committee consists of the attorney general (how can someone who regularly appears before judges, including possibly the one being investigated, take an objective stance on the accusations made?); sixthly, the bill has no mention of a vital area of reform, viz., the procedure for the appointment of judges; seventhly, the entire lower judiciary is kept out of the ambit of the bill; eighthly, the CJI is excluded from the purview of the bill; ninthly, the bill evokes an atmosphere of total secrecy to the proceedings, going so far as to exclude the operation of even the RTI; and finally, the provision of an ‘eminent citizen’ as part of the Oversight Committee seems to serve no purpose except to allow for the inclusion of a nominee of government.