Law – Lost in Translation

The outcome of a case is determined by two factors: fair minded judges, and good laws. Ideally both.

ByPrashant Sareen
Law – Lost in Translation
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In the wake of the 2G judgment, a number of articles and editorials have pointed to how little Team Anna achieved by taking the issue of corruption to the people and putting pressure on parliament, as opposed to what Subramaniam Swamy, Prashant Bhushan and Ram Jethmalani have accomplished in bringing to light fraud and illegal actions of ministers, bureaucrats and crony capitalists.

In an ideal world, fair minded judges and good laws are needed to complete the recipe to fight corruption.

The spectacular outcome of Mr. Swamy’s case would make anyone believe that on both fronts we are good. That the Supreme Court is strong, independent, and committed to correct injustice. And that the laws are adequate.

In this moment of euphoria it is easy to forget that the PMO sat on Mr. Swamy’s plea for prosecuting A. Raja for sixteen months. The law that requires the PM’s sanction before a public official can be prosecuted, does not prescribe a time frame within which a decision has to be made. This was the situation till the Supreme Court in its recent judgment set that limit to no more than four months, at the end of which sanction would be deemed to have been given.

However, it would also be wrong to burnish the image of the Supreme Court in light of its recent judgment because an institution, any institution, is only as good as the sum of its parts. In and of itself, it is nothing but the accretion of the collective wisdom of the people who lead it. The present Supreme Court is led by extraordinary men who are fiercely independent and fair minded. But it was not always so.

In 1976 during the Emergency a person in Jabalpur filed a Habeas Corpus petition before the High Court challenging his detention. The High Court admitted it. High Courts of Rajasthan, Andhra Pradesh, Allahabad, Karnataka, Madras, Bombay, Delhi, Madhya Pradesh and Punjab hearing petitions of other detainees, ruled the Governments actions violative of the Constitution. Indira Gandhi’s government decided to appeal the matter in the Supreme Court. What happened next was described by New York Times as a “milestone in the dismantling of India’s democratic institutions.” On 28th April 1976 four of the five Justices on the constitutional bench overruled the decision of all nine High Courts, and held the right of Indira Gandhi’s government to suspend all fundamental rights including the right to file Habeas Corpus. In essence, the Supreme Court put its stamp of legality on the Emergency.

One of the judges who ruled in favor of suspending fundamental rights was Justice PN Bhagwati. In a recent interview, Justice Bhagwati characterised his judgment as “an act of weakness.”

Fast forward to 1980 – Sunil Batra writes a letter to the Supreme Court from his cell in Tihar central jail complaining of torture. In an unprecedented move the Supreme Court admits the letter written on plain paper as a petition. In that one moment the seed for a Public Interest Litigation (PIL) as a means of seeking justice was sown. In pre-RTI days (and even now) PILs were a powerful tool to hold authorities accountable to citizens. Who pioneered the PIL? The same Justice Bhagwati. The unintended consequence of the PIL was that the Supreme Court could now step proactively into areas of governance.

Same Justice Bhagwati. Two different moments in time. With very different outcomes.

In 1995 the Supreme Court heard a petition from concerned environmental and citizens groups regarding the flouting of environmental norms in the case of the Vasant Kunj malls in New Delhi. In its 2006 judgment, the court took the view that “the confusion arose because DDA all through gave an impression to the parties participating in auction (mall owners, Maruti, Bharti, etc.) that all requisite clearances had been obtained.” This was not correct because a Court appointed committee in its report referred to the DDA advertisement in The Hindu (12 Dec 2003) that, “purchaser would be required to obtain necessary clearance for the project from the EPCA and/or DPCC before submitting the plans for sanction to the Building Dept of DDA.”

However, for some reason the Court felt that, “had such parties inkling of an idea that such clearances were not obtained by DDA, they would not have invested such huge sums of money. The stand that wherever constructions have been made unauthorisedly demolition is the only option cannot apply to the present cases, more particularly, when they unlike, where some private individuals or private limited companies or firms being allotted to have made contraventions, are corporate bodies and institutions and the question of their having indulged in any malpractices in getting the approval or sanction does not arise… In most of these cases the constructions are already complete and have become functional… That being so, it is submitted that the recommendations made by the Expert Committee should be accepted.” And the recommendation was to pay the fine and continue as if no law was broken. Here was a case of clearly in favouring the rich and powerful.

The judiciary only interprets the law. It did badly in the case of the emergency (by the admission of one of the Justices who upheld it). Did good in the case of setting up the process of filing PILs. Came under a cloud in the case of the Vasant Kunj Malls. Stood up to the might of the State and powerful corporate interests in its landmark judgment in the 2G scam case.

The outcome of a case is determined by two factors: good, fair minded judges, and good laws. Ideally both conditions should be met. But in a world less than ideal, at least one condition should be met. In the 2G scam case the Justices set right the bad law behind which the government hid and did not sanction the prosecution of A. Raja. In the case of the Emergency the majority view of the justices suspended fundamental rights. However, the good law allowed the decision to be challenged and corrected.

In corruption cases, existing laws test the patience and fortitude of the complainant to the limit. Why should you have to have a pit bull type attitude to seek justice against a dishonest civil servant?

In the present system if you complain against a public servant to the Central Vigilance Commission (CVC), the complaint is referred back to the same department for investigation by the CVC. The situation gets even more surreal if the complaint is made against the head of a department. In such a case the person against whom the complaint is made is asked by the CVC to examine the complaint! This is one of the bizarre situations that the Janlokpal Bill addresses.

Bribe-taking is a polished act in India. Now imagine that the officer is not asking for a bribe but is needlessly sitting on your ‘file’ hoping that you will offer speed money. So he gives you a run around and uses all the tricks he has up his sleeve to delay the resolution of your application. In such a case the Janlokpal through its provision of a Citizens Charter, lays down that all public services have to be completed within a stipulated time frame. If the request for service is not met within that time and no reason for the same is provided, the Lokpal may take suo moto action against the public servant by levying fines and even dismiss the officer for deficiency in service. Under the present system, since a bribe has not been asked for, you can do virtually nothing. That there is intention to harass and get you to pay for a public service, has no relevance under the present law. The UPA in a sleight of hand presented the Citizens Charter. But torn out of the Janlokpal bill, it is nothing but a statement of good intentions. It has no power to curb harassment by public servants.

There are several other reasons that make the Janlokpal Bill a real need of the hour. The strongest opposition is coming from people who have learnt to manipulate and work the present system. Let’s call them the 1%. An uncle once told me that corruption makes the system work smoothly because everyone knows the price of every service. Pay and get work done. Just see it as a fee and never mind whose pocket the money goes into.

This class believes that everything is up for sale, and perhaps it is. So by paying someone, they show us they have an upper hand in the social ladder, so why humble yourself and ask for what is yours? Asking or demanding is so infra dig. If they do not get what they pay for, they have the power and influence to get it anyway. For this class Janlokpal is just unnecessary noise. For the other 99% it is no less than the last straw of hope.

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