Thursday, October 25, 2007

Gmail - Padha Orissa.JPG by Sudarshan Das

Gmail - PadhaOrissa.JPG

The Telegraph - Calcutta : Opinion - Grain of Truth - with a table of starving people per 1000

The Telegraph - Calcutta : Opinion

The Telegraph - Calcutta : Opinion - Grain of Truth - with a table of starving people per 1000 by Abhirup Sarkar, ISI, Kolkata.

"What you do for others is more important than what you do for yourself" - Annonymous

"What you do for others is more important than what you do for yourself" - Anonymous

A voyaging ship was wrecked during a storm at sea and only two of the men on it were able to swim to a small, desert like island. The two survivors, not knowing what else to do, agree that they had no other recourse but to pray to God.
However, to find out whose prayer was more powerful, they agreed to divide the territory between them and stay on opposite sides of the island.
The first thing they prayed for was food. The next morning, the first man saw a fruit-bearing tree on his side of the land, and he was able to eat its fruit. The other man's parcel of land remained barren.
After a week, the first man was lonely and he decided to pray for a wife. The next day, there was a woman who swam to his side of the land. On the other side of the island, there was nothing.
Soon the first man prayed for a house, clothes, more food. The next day, like magic, a! ll of these were given to him. However, the second man still had nothing.
Finally, the first man prayed for a ship, so that he and his wife could leave the island. In the morning, he found a ship docked at his side of the island.
The first man boarded the ship with his wife and decided to leave the second man on the island. He considered the other man unworthy to receive God's blessings, since none of his prayers had been answered.
As the ship was about to leave, the first man heard a voice from heaven booming, "Why are you leaving your companion on the island?"
"My blessings are mine alone, since I was the one who prayed for them," the first man answered. "His prayers were all unanswered and so he does not deserve anything." "You are mistaken!" the voice rebuked him. "He had only one prayer, which I answered. If not for that, you would not have received any of my blessings."
"Tell me," the first man asked the voice, "what did he pray for that I should owe him anything?"
"He prayed that all your prayers be answered."
For all we know, our blessings are not the fruits of our prayers alone , but those of another praying for us.
This is too good not to share...
My prayer for you today is that all your prayers are answered. Be blessed.
"What you do for others is more important than what you do for yourself"

Friday, October 19, 2007

INDIA: Judicial Accountability: No Adjournment, Please! - Salar M. Khan

“The Lord is only one and he is the God above all of us. I am not God. Judges are not Gods”, said Justice Y.K.Sabharwal, former Chief Justice of India. And that was not very long ago.

Justice Sabharwal was dealing with a petition, as the Chief Justice of India, suggesting that the practice of addressing judges of high courts and the Supreme Court as “my lord” or “your lordship” should be done away with. He was right. What he said was entirely compatible with the democratic norms India aspires for.

People in India have lauded the role of the Supreme Court of India in advancing the Constitutional rights of the common citizenry. The Supreme Court of India has actually infused life into the letter of the Indian Constitution by its brilliant exposition of fundamental rights enshrined therein. The power exercised by it has been so enormous and wide-ranging that almost every sphere of life in India has been transformed. Its contribution to the development of contemporary jurisprudence has been acknowledged world over.

The Judiciary enjoys enormous respect and credibility in India. People look towards it for realisation of their dream of democratisation of the Indian society. The courts, especially high courts and the Supreme Court have also come forward and have enunciated “public interest” jurisprudence. The courts relax rules of locus standi when issues relate to the common good of society. The courts actively promote rule of law and force other state institutions to adhere to the rulebook.

They have been quick in enforcing accountability whenever there is any breach. The Supreme Court of India has ruled that the state is in a fiduciary relationship with the public, and any breach or negligence in public duties amounts to breach of trust. Thus, it has been held that the institutions of the state are under an obligation to perform their duties strictly in accordance with law and are accountable to the people for their actions.
However, unfortunately somewhere between this zealous promotion of transparency and accountability among all other institutions of the state, the Indian judiciary has failed to develop sound mechanisms for promoting these values within itself. Is this proverbial darkness under the lamp?

Proverbial darkness

This darkness, fairly visible to all in India but seldom discussed for fear of inviting action under the contempt of court law, has suddenly got illuminated by the conviction and sentencing of four journalists of the English evening daily Mid-Day, by the Delhi High Court. That is, the Delhi High Court on September 21, 2007, awarded four months imprisonment to these journalists for publishing an investigative story and a cartoon touching upon the conduct of former Chief Justice of India Y.K. Sabharwal. The court, however, directed them to be released on bail in view of the Supreme Court Order. Significantly, the story, primarily based upon documentary evidence, was published after Justice Sabharwal had retired.

The Delhi High Court on September 11, 2007 had held these journalists guilty of contempt of court stating that they had crossed the limits. According to the court, the journalist had “tarnished the image” of the Supreme Court of India.

The Delhi edition of the English daily the Mid-Day had published detailed investigative stories and a cartoon alleging that Justice Sabharwal had committed serious judicial misconduct during his tenure in office. The report alleged that he while a judge in the Supreme Court but before he became Chief Justice, called for and dealt with the sealing of commercial properties case in Delhi—this was improper as only the Chief Justice could do so.

It was further alleged that his sons forged partnerships with two major mall and commercial complex developers of Delhi at a time when he was ordering sealing of residential properties being used for commercial purposes. It is a matter of common knowledge that sealing orders had caused a big push in the prices of shops and offices in the malls, thereby benefiting his sons and their partners. It was pointed out that he should have recused himself from hearing the sealing case because of conflict of interest.

The report also informed that at the time when Justice Sabharwal was ordering the sealing of residential properties in Delhi, his sons were having offices of their companies at his official residential address. Justice Sabharwal’s sons Mr. Chetan and Mr. Nitin had three companies namely Pawan Impex, Sabs Exports and Sug Exports. Initially these companies had their registered offices at their home at 3/81, Punjabi Bagh, New Delhi but then were shifted to their father’s official residence at 6, Motilal Nehru Marg, New Delhi.

The report gave many instances of alleged unjustifiable pecuniary benefits obtained by his sons. It was alleged that the Union Bank of India, a public sector bank, advanced a loan of Rs. 280 million on a collateral security that was non-existent. It was further alleged that the Uttar Pradesh government allotted a number of industrial and commercial plots in NOIDA, a suburb of Delhi, to his sons’ companies at throw-away prices. The report also mentioned purchase of a house in Maharani Bagh colony of Delhi at a price of Rs. 154.6 million. The report alleged that the source of this money was unexplained.

Defence of truth

The report was based upon documentary evidence like registration deeds, documents obtained from the union ministry of company affairs, certificates of incorporation of the various companies, published lists of shareholders, notices declaring increased share capital in his sons’ companies, and notices from the Income Tax Department. The reporter of the Mid-Day also talked to Justice Sabharwal and recorded the conversation.

After publication of this report, the Delhi High Court took suo motu cognisance and issued notice to the editor, the resident editor, the publisher and the cartoonist of Mid-Day for contempt of court. On September 11, 2007, it found them guilty of criminal contempt of court. The court said: “We find the manner in which the entire incident has been projected appears as if the Supreme Court permitted itself to be led into fulfilling an ulterior motive of one of its members.

The nature of the revelations and the context, in which they appear, though purporting to single out former Chief Justice of India, tarnishes the image of the Supreme Court. It tends to erode the confidence of the general public in the institution itself. The Supreme Court sits in divisions and every order is of a bench. Imputing motive to its presiding member automatically sends a signal that the other members were dummies or were party to fulfil the ulterior design.”

The order of the Delhi High Court neither gives any finding on the defence of truth taken by the journalists nor on the issue of these publications being in public interest. It is relevant that the Contempt of Courts Act, 1971 was amended to include certain safeguards. The Amendment Act replaced Section 13 of the original Act and provided that the contempt would not be punishable “unless it (the court) is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice” and that it “may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bona fide.” Looking at the present case pertaining to Mid-Day journalists, it seems that the 2006 amendment in the contempt law of India is not of much consequence.

While convicting the journalists, the court relied upon the judgement of the Supreme Court of India in Haridas Das Versus Smt. Usha Rani Banik and Others (Civil Appeal No. 7948 of 2004), despite it being related to the period prior to the amendment of the Contempt of Court Act, 1971, in 2006 allowing the truth as a defence.

Justice Sabharwal has denied the allegations contained in the publications. Thereafter, the Campaign for Judicial Accountability and Reforms (CJAR) issued a rejoinder rebutting his claim of innocence. The journalists also took truth as a defence in the contempt of court proceedings.

The Campaign for Judicial Accountability and Judicial Reforms (CJAR) was formed in March 2007 by many civil society groups and eminent jurists who felt that there was an urgent need to enforce accountability in the judiciary. Thus, the position as of now is that there are certain serious allegations against Justice Sabharwal and his sons and these require proper inquiry into to get to the truth.

The issues arising out of this case are obvious—judicial accountability, sweep of judiciary’s power to punish for contempt, and the extent of freedom of speech under the Indian Constitution.

“Warrants for cash”

Another recent instance of use of power to punish for contempt against a journalist pertains to “warrants for cash” episode. A TV journalist Vijay Shekhar conducted a sting operation in a Ahmadabad court and had got warrants issued against the then President of India, the then Chief Justice of India, and many others by paying “bribes” to court officials. He recorded the entire episode on tape where some lawyers and court officials were shown negotiating for issuing warrants through a magistrate. The tape was telecast.

After the telecast, the Supreme Court took a strong note of it and asked the Gujarat High Court to conduct an inquiry. The Gujarat High Court conducted the inquiry and absolved the concerned judicial officer without calling the journalist. Thereafter, the Supreme Court proceeded against the journalist for contempt. The poor journalist had to apologise to avoid a jail term.

Many instances of corruption in the higher judiciary have become public. Some of the allegations include involvement of three Karnataka High Court judges, accompanied by women, in a brawl at a Mysore wayside eatery, soliciting sexual favours from a female litigant by a Rajasthan High Court judge and a court staffer in return to settling the case in her favour, abuse of their official status by three Punjab and Haryana High Court judges to get their nominees selected by Punjab Public Service Commission ex-chief and scam accused Ravinder Pal Singh Sidhu, use of abusive language by a drunk Madhya Pradesh High Court judge in a club in Bhopal, and homosexual molestation of a male police constable by a Rajasthan High Court judge (since transferred).

Prevalence of corruption in judiciary is not a secret anymore. Various judges have raised concerns about the same; some have even tried a guess. According to Justice S.P. Bharucha, former Chief Justice of India, around 20 percent of the judges are corrupt. Another judge, Justice Michael Saldalma of the Karnataka High Court said the percentage is 33 percent. Justice Saldahna also said that the public perception about corruption in the judiciary is much more important than its actual incidence.

Contempt of Courts Act--1971

It is significant that such instances have been reported despite having a law like Contempt of Courts Act, 1971. Power to punish for contempt was also used by the Supreme Court against some newspapers for reporting some of the above instances.

Under the prevailing law, the definition of contempt is very wide. As per Section 2 of the Contempt of Courts Act, 1971, the contempt has been categorised as “civil” and “criminal”. Civil contempt has been defined as “willful disobedience to any judgement, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court. The Act defines “criminal contempt”, amongst others, as the publication of any matter or the doing of any other act whatsoever which “scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court”. Such a vague provision is prone to misuse.

There is also an instance where a journalist and a news channel were restrained by court from carrying out a story related to the impeachment motion against the then Chief Justice of Tamil Nadu being circulated among Members of Parliament. Kumar Rajesh of the TV news channel Aaj Tak had sent a fax to the then Tamil Nadu Chief Justice to get his response to the charges against him in the impeachment motion. The High Court immediately issued contempt notice to the correspondent and issued an injunction against him and his channel restraining them from carrying any story related to the impeachment motion.

Therefore, the position in India is that if any person makes adverse comments, the power to punish for contempt for “scandalising the court or lowering the authority of the court” can be utilised. If one seeks information about the charges contained in a formal impeachment motion, he finds himself in deep trouble.

Despite many instances of misconduct by judges becoming public, the judiciary in India has consistently refused demands for accountability. So much so that former Indian Chief Justice M.N. Venkatachaliah, when asked to give his comments, recently told an English daily from Delhi, “I would not like to comment on any particular case, but judicial accountability is merely a term for debate now. There is no point in wasting time on it.”

Another former Chief Justice A. S. Anand has also maintained that the “code of conduct” formulated for self-monitoring of conduct of judges has failed and legislative sanction for its enforcement is overdue. Justice Anand has said that enactment of statutory mechanism to deal with complaints against the judiciary is in its own interest. He said, “credibility is a judge’s (the) greatest asset. To maintain it, all allegations must be probed.” It is another matter that Justice Anand himself faced charges of judicial misconduct, regarding land deals in J&K and Madhya Pradesh, and he chose not to defend himself in public.

Presently the only mechanism available to take action against erring judges in the higher judiciary is impeachment by Parliament. This provision has proved ineffective and impracticable. No judge has ever been impeached in India. The impeachment motion initiated against a Supreme Court judge V. Ramaswamy failed in the Parliament.
This state of affairs has now galvanised civil society groups, and demands for proper mechanisms for ensuring transparency and accountability in the higher judiciary, is gathering momentum. The CJAR has specifically taken up judicial accountability as a campaign point.

As a part of judicial accountability the CJAR has demanded the declaration of assets by judges, transparency in the appointment and transfer of judges, amendment to the Contempt of Courts Act, establishment of an independent commission having disciplinary powers over judges, and the removal of restriction on registration of First Information report against judges.

The Law Commission of India came out with its l95th Report dealing with The Judges (Inquiry) Bill in 2005. Thereafter, The Judges (Inquiry) Bill, 2006 was introduced in the Parliament. The Bill sought to amend the Judges (Inquiry) Act, 1968. Under the 1968 Act, only the Lok Sabha (House of People) Speaker or the Rajya Sabha (House of States) Chairman could admit a complaint relating to the misbehaviour or incapacity of a judge and constitute a committee to inquire into it. Further, under this law, only Members of Parliament can register complaints of judicial misconduct.

National Judicial Council

The provisions of the Bill include the establishment of a National Judicial Council (NJC) to undertake preliminary investigation and to inquire into allegations of misbehaviour or incapacity against a judge of the Supreme Court or of a High Court. The Bill also provides for regulation of the procedure for such investigation, inquiry and proof. The Bill provides for two procedures, reference and complaint. Under the reference procedure, the Rajya Sabha Chairman or the Lok Sabha Speaker can make a reference to the NJC for an initial inquiry into allegations contained in a notice for removal of a judge admitted in the Parliament.

The Bill further provides that under the reference procedure a notice for the removal of a judge can be admitted in the Lok Sabha only if it has the signatures of not less than 100 members and in the Rajya Sabha only if it has the signatures of at least 50 members. The Presiding Officer of the House makes a reference to the NJC to probe the allegations only after the notice is admitted.

Under the complaint procedure, any person can complain to the NJC against a judge. The NJC will initiate further action if a prima facie case was made out on preliminary scrutiny and verification of the material. It has been further provided that if the complaint is found to be false, vexatious and not made in good faith, the complainant shall be liable to be punished with imprisonment for a term up to one year and also a fine up to Rs. 25,000.
If the allegations are proved against the judge in question, the NJC will submit its report to the President, who shall forward it to the Parliament for appropriate action, which includes removal.

The differentiation has been made between serious lapses and minor ones of a judge. It has been provided that the NJC itself will have power to impose minor measures in cases where misbehaviour or incapacity does not warrant removal. The minor measures enumerated in the Bill include, issuing advisories, request for retirement, stopping the assignment of judicial work for a limited time, warring, censure or admonition, public or private. As per the Bill the NJC shall have no power to impose minor measures in a case of serious misconduct, where the matter is referred to by the Speaker of Lok Sabha or Chairman Rajya Sabha on a motion of removal.

The Bill exempts the Chief Justice of India from the purview of the NJC. It further provides that in case of inquiry against Supreme Court judges, the NJC would consist of the Chief Justice of India and four senior-most judges of the apex court. For any probe against High Court judges, it would comprise of the CJI, two senior-most judges of the Supreme Court and two Chief Justices of the High Courts, to be nominated by the Chief Justice of India.

This variation in composition of the NJC has been proposed apparently on the basis of the recommendation of former Chief Justice of India Mr. R.C. Lahoti. Mr Lahoti had said that the inclusion of two High Court Chief Justices in the probe against the apex court judges would be violative of the protocol. The Bill was referred to the Standing Committee on Personnel, Public Grievances, Law and Justice on December 19, 2006. The committee has now submitted its report to the Monsoon Session of Parliament.

The Standing Committee report has suggested some drastic changes in the Bill. The committee has found that under the reference procedure the threshold requirement in terms of obtaining the signatures of Members of Parliament was excessive and has said that it amounts to equating one common person to 100 members of the Lok Sabha and 50 members of the Rajya Sabha.

Besides recommending inclusion of the Chief Justice of India within the ambit of complaint procedure, the report has also recommended formation of a broad-based empowered committee having representation not only from the Judiciary but from the Executive, Parliament and the Bar as part of the NJC. The report recommends that this committee must be entrusted with the responsibility of screening complaints, including those referred by the Presiding Officers of Parliament after the admission of a notice for removal of a judge.

The report has objected to the provision of voluntary retirement as one of the minor measures in cases where the NJC is “satisfied that all or any of the charges regarding a judge have been proved and if it is of the view that the charges do not warrant his or her removal”. The report argues that it would amount to enabling the judge to bypass the accountability process.

Noted jurist Ram Jethmalani in the dissent note appended to the report has opposed the creation of the NJC. According to him the system of minor punishments would expose the entire judicial system to ridicule and be totally counterproductive. He has argued that changing the method of recruitment of judges could restore the prestige of the judiciary.
The issue of judicial accountability in India cannot be pushed under the carpet for long. Transparency and accountability are the values the judiciary of a democratic country can hardly refuse. There cannot be any justification for the judiciary of India to consider itself beyond scrutiny. Judicial independence does not mean the absence of accountability.

Accountability ensures transparency and, therefore, raison d’ĂȘtre for independence.
Mere statements of principles acknowledging need to have judicial accountability are not enough. Practicable mechanism for judicial accountability is necessary for preservation of judicial independence in India.

Courtsy: Asian Human Rights Commission, News Letter

Thursday, October 04, 2007

TCS, DGSD ... the list grows : how to deprieve India in the name of technology?

From: Umashankar C>
Date: Sep 30, 2007 11:42 PM

Subject: TCS, DGSD ... the list grows : how to deprieve India in the name of technology?

This write up is purely in the interest of the nation and it speaks about technology. The intention is not to cricitcise Government but to tell them that they should look at the technology which is cost effective. They should also learn to look through the cost pushing design of the IT companies/PPP Partners

Government of India's MCA (Ministry of Company Affairs) e-governance system which is implemented by TCS at a huge cost has built in digital signature tool which does not work on Mozilla Firefox or linux. TCS is unable to provide linux / Mozilla firefox support for the past 6 months. As Director of 2-3 companies, I am unable to use the digital signature supplied by NIC (service provided by TCS) for the past 6 months. ELCOT, as a matter of policy does not use any hardware that does not support linux. The next thing is to issue notice to TCS under MRTP. This is one side of the story.

The other side is the VSNL (TCS owned) supported REGINET software of Tamil Nadu which had a similar electronic signature provision. They wanted me to approve for extension of 79 such electonic signatures for the next one year. When I looked at the software design, it was meant to be used only by the intranet users and it had nothing to do with external users. But this system had been imposed by the vendors to sell over 500 such e-signatures at a cost of Rs.900 per e-sign every year. I was under pressure to approve the expenditure as the services came down after the expiry date.

I put a team to study the system design. Within two hours we got over the issue. The same e-signature dongles work for a different design. No need to pay TCS or anyone else. The beauty is that it can work forever, without payment to anyone.

Just because some American company wanted to sell its product we are blindly looking at e-signature for everything and thus end up pushing up the cost. Companies such as TCS look for pushing up the cost of e-governnace which is patriotic to the least.

TCS does not have any knowledge about platform independent technology, more so OSS technology and thus its costing is on the high side. Unfortunately the States as well as the central government do not have people who have hands on experience and hence e-gov solutions end up providing just revenues to the software companies without any tangible benefits to the citizens.

In the case of DCA, the users can simply do with user id and password. But they were forced to buy the digital signature from TCS. To use the digital signature the companies have to buy Windows OS! After all these, the user is not able to get any great service from them. Every year, the companies have to shell out user charges to TCS for the digital signature. For every director on the Board the amount is collected. With over 400000 registered companies in India employing roughly 4 million directors, TCS is happily collecting Rs.10000 for one time charge and Rs.6000 per director every year! As the money does not go from the exchequer, there is no question from the CAG/AG/Audit teams. But this is a leakage of citizens money which is to be prevented.

A similar deprievation is on through VISA card system when India could have its own payment gateway for credit card / debit card payments. Every time a VISA card is used a minimum of 1.6% of the collection goes to USA! Japan has prevented it by not allowing credit cards in its shopping operations. But India, as usual has been sleeping by allowing the rampant use of VISA cards. It should go for its own credit card gateway or encourage cash purchase following the Japan pattern.

I am told that now DGSD is adopting a similar stand by allowing C1 India to collect annual subscription charges from bidders for using their e-procurement portal which has not been decided through open tender. DGSD has to be asked to explain how it chose its partner and how it allows C1 India to collect at the rate of Rs.6000-9000 per bidder every year for being a bidder for DGSD?


C.Umashankar IAS., (TamilNadu Cadre)

e-governance expert & Managing Director, Electronics Corporation of TamilNadu Limited(ELCOT) (A Government of TamilNadu Undertaking)

Tehelka:: Free. Fair. Fearless - Welfare's willing Execurionsers

Tehelka:: Free. Fair. Fearless

Welfare's willing Execurionsers - Parsuram Rai

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Arise Awake Stop not till the goal is reached. - Swami Vivekananda Swami ji is my inspiration, not as a monk but as a social reformer and for his universal-ism.