Chapter in detail:

Supreme Court

The Supreme Court of India was constituted under Article 124 of the Constitution. It commenced its

sittings on January 28, 1950.

The original Constitution of 1950 provided for a Supreme Court with a Chief Justice and 7 puisne Judges

-(―puisne judge ―is a judge of the Supreme Court other than the Chief Justice). Parliament is given the

power to increase this number there was progressive increase in the total strength of the apex court to 26

in 1986. Supreme Court (Number of Judges) Amendment Act, 2008 increased the number of judges to 31

including the Chief Justice of India.

The proceedings of the Supreme Court are mainly in English and the procedure is regulated by the

Supreme Court Rules, 1966.

The Supreme Court of India comprises the Chief Justice and not more than 25 other Judges appointed by

the President of India.

Qualifications

In order to be appointed as a Judge of the Supreme Court

a person must be a citizen of India and must have been:

For at least five years, a Judge of a High Court or of two or more such Courts in succession, or

An advocate of a High Court or of two or more such Courts in succession for at least 10 years, or

in the opinion of the President, a distinguished jurist.

Appointment of Judges to the Supreme Court: Details

Art. 124 of the Constitution of India deals with the appointment of Supreme Court Judges.

Art 124(2) says that every Judge of the Supreme Court shall be appointed by the President by warrant

under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High

Courts in the States as the President may deem necessary. In the case of appointment of a Judge other

than the Chief Justice, the Chief Justice of India shall always be consulted. However, the actual process

of appointment has gone through changes due to apex court verdicts.

Ques. 1 : What is ‘Three Judge Case’ in the context of Indian judiciary and how it has influenced

the appointment of judges of Supreme Court in India?

Ans. In the SP Gupta case (1982) a seven-judge Constitution Bench held that the President is the final

authority to appoint. He need not follow the advice of the judges whom he consults. In other words,

consultation‘ is not ‗concurrence‘.

It is known as the First Judges case.

In 1993, a nine-Judge Constitution Bench of the Supreme Court in the Advocates on-record Association

case, over-ruled the decision given in S.P. Gupta. The Supreme Court observed that when the President

consulted the judges of the Supreme Court and the High Courts, the advice received by him is binding on

him ‗consultation‘ is concurrence‘. It held that the recommendation for appointment should be made by

the Chief Justice of India in consultation with his two senior-most colleagues and that such

recommendation should be followed by the President. In case of any divergence between the judicial

advice and the Presidential opinion, the former will prevail. Article 50 is quoted to give substance to the

verdict— divesting the executive of its judicial powers.

It is known as the Second Judges Case.

The 1993 decision was reaffirmed with minor modifications in 1998, on a reference made by the

President under Article 143 of the Constitution. It was held that the recommendation for appointment etc

should be made by the Chief Justice of India and his four senior-most colleagues (instead of the Chief

Justice of India and his two senior-most colleagues) referred to as the ‗Collegium‘ for the purpose of

appointment of Judges to the Supreme Court.

It is known as the Third Judges Case.

So far as the appointment of the Chief Justice of the Supreme Court of India is concerned, both the 1993

decision and the 1998 opinion lay down that the senior- most judge should always be appointed as the

chief Justice of India.

The Constitution also provides for the appointment of a Judge of a High Court as an ad-hoc Judge of the

Supreme Court and for retired Judges of the Supreme

High Courts to sit and act as Judges of that Court.

Retirement, resignation and removal

Supreme Court judge retires when he attains the age of 65 years. He may resign addressing the letter to

the President of India. He may be removed by an order of the President based on parliamentary vote.

Removal of Supreme Court Judge

Supreme Court Judge may be removed from his office by an order of the President passed after an

address by each House of Parliament supported by a majority of the total membership of that House and

by a majority of not less than two-thirds of the members of that House present and voting on the ground

of proved misbehaviour or incapacity. Article 124(5) specifically Lays down that Parliament may by law

regulate the procedure for the presentation of an address and for the investigation and proof of the

misbehaviour or incapacity. In pursuance of Article 124 (5), Parliament passed the Judges (Inquiry) Act,

1968. The Judges (Inquiry) Rules, 1969 lay down the details of procedure for investigation and inquiry

into the allegations against a judge.

Judges (Inquiry) Act, 1968 regulates the procedure for the inquiry into an allegation of misbehaviour or

incapacity of a Judge of the Supreme Court or High Court and for the presentation of an address by

Parliament to the President for removing him from office, if charges have been proved.

The Act authorizes the constitution of a three-member committee once a motion for presenting an

address to the President seeking the removal of a Judge is admitted in Parliament. The motion can be

admitted only if 100 Lok Sabha or 50 Rajya Sabha members propose it. The committee includes the

Chief Justice or one of the Judges of the Supreme Court, a Chief Justice of one of the High Courts, and

one distinguished jurist.

The committee, after giving reasonable opportunity to the Judge concerned to defend himself/herself, has

to submit its report to the Parliament. If the committee finds the Judge guilty- fully or partly, then its report,

along with the motion, has to be considered by Parliament. The motion should be adopted by each House

of Parliament by a majority of that House and by a majority of not less than two-thirds of the members of

that House present and voting. The address shall be presented to the President during the same session

of Parliament for the removal of the judge. The guilty Judge is removed from office by Presidential Order.

Acting CJI

Art.126 says that when the office of the Chief Justice of India is vacant or when he is not in a position to

perform his duties, they are performed by such other judge of the Supreme Court that the President may

appoint.

Adhoc and Acting Judges

Art.127 says that if there is no quorum of the Supreme Court judges to hold or continue any session of

the Court, the CJI, with the previous consent of the President and in consultation with the Chief Justice of

the High Court concerned can request in writing a judge of the high Court who is qualified to be a judge of

the Supreme Court, to function as ad hoc judge of the Supreme Court. While so attending as the judge of

the Supreme Court he shall have all the jurisdiction, powers arid privileges, and shall discharge the

duties, of a Judge of the Supreme Court.

Art. 128 says that retired High Court and Supreme Court judges may be requested by the CJI, with prior

consent of the President to sit and function as the judge of the Supreme Court. Every such person so

requested shall, while so sitting and acting, be entitled to such allowances as the President may by order

determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be,

a Judge of that Court. His consent is necessary for attendance as the acting judge.

Seat of Supreme Court

Art.130 says that the Supreme Court shall sit in Delhi or in such other place or places, as the Chief

Justice of India may, with the approval of the President, from time to time, appoint.

Benches of Supreme Court

To dispose of the cases before Supreme Court the matters are placed before various Benches of

Supreme Court.

The Bail applications in appeals are heard by single-Judge (also known as Chamber Judge).

Most of the matters are decided by Division Benches

of the Supreme Court- two judges. If the two judges disagree- which is rare- the view of the senior judge prevails. Three-Judge Bench - Matters placed before three-Judge Bench are considered priority matters. Appellate jurisdiction of the Supreme Court is given in Art. 132, 133 and 134 for Constitutional, civil and criminal cases respectively.

Constitutional cases

Art 132 of the Constitution provides for an appeal to the Supreme Court from any judgment, decree or

final order of a High Court, whether in civil, criminal or other proceedings, if the High Court certifies that

the case involves a substantial question of law as to the interpretation to the constitution.

A substantial question of law means a question on which two or more High Courts have differed.

Civil Cases

Appeals lie to the Supreme Court in civil matters (Art. 133) if the High Court concerned certifies

(a) that the case involves a substantial question of Law of general importance, and

(b) that, in the opinion of the High Court, the said question needs to be decided by the Supreme Court.

The term ‗general importance‘ means that the case holds interest for a wider section of the society other

than the litigants.

Criminal Cases

According to Art. 134 and Criminal Procedure Code provisions, an appeal lies to the Supreme Court if the

High Court

a. has on appeal reversed an order of acquittal of an accused person and sentenced him to death or

to imprisonment for life or for a period of not less than10 year, or

b. has withdrawn for trial before itself any case from any court subordinate to its authority and has in

such trial convicted the accused and sentenced him to death or to imprisonment for life or for a

period of not less than 10 years, or

c. certifies that the case is a fit one for appeal to the Supreme Court. Earlier, life imprisonment

meant an imprisonment of 14 to 20 years, but of late, the courts are interpreting it as

‗imprisonment until the end of the natural life of the convict‘, unless remitted.

Parliament is authorised to confer on the Supreme Court any further powers in criminal jurisdiction, under

Art. 134.

All cases involving Constitutional Inter-pretation and Presidential references are placed before a five-

Judge Bench, popularly known as a Constitution Bench.

The largest Bench so far was the 13-judge bench that delivered the Kesavananda Bharati case verdict in

1973. There has not been a 13 judge bench since then or till then.

Another landmark verdict — Golaknath case (1967) was determined by eleven - Judge Bench.

Ques. 2 : Explain the original jurisdiction of the Supreme Court. Is the writ jurisdiction of the

Supreme Court original and exclusive? If not why?

The Supreme Court has original, appellate and advisory jurisdiction.

Original Jurisdiction

Original jurisdiction means that a case originates in the court. It may be exclusive or otherwise.

Under Art. 131, exclusive original jurisdiction of the Supreme Court is one where no other court in the

country enjoys the same power. It extends to all federal disputes- any dispute between the Government

of India and one or more States or between the Government of India and any State or States on one side

and one or more States on the other or between two or more States.

It also involves clarification as to whether-a certain item is in the ‗residuary‘ category or not. To explain,

the Constitution distributes legislative powers to the Union parliament and State Legislature in the VII

Schedule. Any item that comes up subsequently and is not covered by the three Lists. Union, State and

Concurrent is in the ‗residuary ‗category and belongs to the Union Parliament.

The writ jurisdiction of the Supreme Court is original but not exclusive as the power is also available to the

High Courts (Art.226). Article 32 of the - Constitution gives an extensive original jurisdiction to the

Supreme Court in regard to enforcement of Fundamental Rights. It is empowered to issue writs in the

nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari to enforce them.

Appellate Jurisdiction

SLP

The Supreme Court has a very wide appellate jurisdiction over all Courts and Tribunals in India as it may,

in its discretion, grant special leave to appeal under Art. 136 of the Constitution from any judgment,

decree, determination, sentence or order interim or final-in any matter from any Court or Tribunal in the

territory of India. However, SLP cannot be filed to challenge any judgement, determination, sentence or order passed by any court or tribunal constituted under any law relating the Armed Forces. Any one can file an SLP if the High Court refuses leave to appeal to the Supreme Court But such an appeal should be made within 60 days of refusal.

Art. 138

Art.138 says that the powers of the Supreme Court can be enlarged by the Parliament.

Power to transfer a case

Article 139A(1) of the Constitution provides that where cases involving the same or substantially the same

question of law are pending before the Supreme Court and one or more High Courts or before two or

more High Courts and Supreme Court is satisfied, on its own motion, or on an application made by the

Attorney General of India or by a party to any such case, that such questions are substantial questions of

general importance, the Supreme Court may withdraw the case or cases and dispose of all cases itself.

Article 139A(2) of the Constitution provides that the Supreme Court may in pursuit of justice, transfer any

case, appeal or other proceedings pending before any High Court to any other High Court.

Code of Civil Procedure and Code of Criminal Procedure provide that Supreme Court may transfer any

case from a High Court or other subordinate Court in one State to a High Court or other subordinate

Court in any other State.

Art. 140

It enables Parliament to confer ancillary powers on Supreme Court consistent with Constitution to make

the Court more effectively discharge its Constitutional duties.

Art. 141

It says that the law declared by Supreme Court is binding on all courts within the territory of India.

Art. 142

It says that the Supreme Court, in the exercise of its jurisdiction, may pass such decree or make such

order as is necessary for doing complete justice in any cause pending before it, and it shall be

enforceable throughout the territory of India.

Advisory jurisdiction: Art.143

The Supreme Court has special advisory jurisdiction in matters which may specifically be referred to it by

the President of India under Article 143 of the Constitution.

According to Art. 143, if it appears to the President that

a question of law or fact has arisen, or is likely to arise

which is of public importance and that

it is necessary to take the opinion and advice of the Supreme Court on it

The President of India may seek the advice of the Supreme Court on such a matter. The Supreme Court

may render its advice or it may decline to do so. But in one case such advice is to be mandatorily given

pre-Independence agreements and accords that India entered into.

The advice of the Supreme Court is not binding on the President but it has the value of a judgement.

The advisory powers of the Supreme Court have been of enormous value so far in clarifying on various

matters Constitutional and legal matters as can be seen from the list of references given below.

Presidential references so far

• 2004

SYL canal and unilateral termination of all agreements by Punjab

• 2002

Gujarat Assembly and Art. 174

• 1998

Judges appointment

• 1993

Rama Janma Bhoomi

• 1991

Interim Order of Cauvery Water Disputes Tribunal

• 1990

Member, Punjab State Public Service Commission.

• 1983

Chairperson Punjab Public Service Commission

• 1978

The Special Courts Bill, 1978

• 1974

Presidential reference whether election to the post of President could be held when the Gujarat Assembly

was dissolved.

• 1964

Parliamentary privileges and fundamental rights

• 1963

The Bill To Amend The Sea Customs act 1878 and Central Excises and Salt Act, 1944

• 1959

The Berubari Union and exchange of Enclaves

• 1958

Kerala Education Bill, 1957

• 1951

The Delhi Laws Act, 1912, the Ajmer-Merwara (Extension of Laws) Act, 1947 and the Part C States

(Laws) Act, 1950

Art.144

Art 144 says that it is the duty of every person and authority in the country to act in aid of and render

necessary assistance for the enforcement of the orders of the Supreme Court.

Miscellaneous Powers

Election disputes

Article 71 of the Constitution, provides that all doubts and disputes relating to election of a President or

Vice-resident are required to be enquired into and decided by the Supreme Court.

Public Service Commission Member’s Removal

Article 317 of the Constitution, provides that the Chairman or any other member of a Public Service

Commission can be removed from his office

by order of the President, on the ground of misbehavior, after the Supreme Court on reference being made by the President, has on enquiry reported that he ought, on such ground, to be removed from his office.

Ques. 3 : Bring out the instances where the Supreme Court Judgement have became laws. Does

this means that Supreme Court is an important arm of law-making?

Ans. A judgement of the Supreme Court has the force of law. For example, the doctrine of basic features

was introduced by the apex court in the Kesavananda Bharati case verdict in 1973. It is accepted as a

part of law. Similarly, any law made by the legislature/ parliament can be added to or subtracted from, by

the apex court. For example, the amendment act 2005, the supreme court made it operational subject to

the concept of creamy layer.

In the ADR case 2002, it made it mandatory for a contestant in the Lok Sabha and Assembly elections to

disclose certain details related to education, properly and criminal record. There was no law on the

subject and the apex court filled the void.

Similarly, it affirmed the power of the judiciary over cases of is qualification related to defections by setting

aside para 7 of anti defection law in the Kihoto Hollohan case in 1 992.The apex court ruled that the

power to disqualify on grounds of defection can not be taken away from the judiciary and the verdict of

the Presiding Officer is subject to judicial review.

Ques. 4 : Does the increasing instances of criticism of judiciary forms a contempt of court or is a

part of popular will which is required to strengthen the parliamentary democracy in India?

Ans.

Contempt of Court

Acts which willfully seek to disrupt the normal judicial process constitute contempt of court. In India,

Supreme Court and High Courts are given the power to punish contempt of court as shown below:

Article 129: ―The Supreme Court shall be a Court of record and shall have all the powers of such a court

including the power to punish for contempt of itself.‖

Article 215: Every High Court shall be a court of record and shall have all the powers of such a court

including the power to punish for contempt of itself.

Need for contempt of court powers

Effective discharge of Constitutional and other legal duties demands that the majesty of law and the

dignity and authority of the courts should be respected and protected. It in turn helps uphold the rule of

law and Constitutional governance. Contempt powers are necessary for the higher courts to enforce rule

of law and judicial orders contempt powers are a balance between the right of an individual to criticize the

judiciary and the need of the judiciary to enforce respect for the law.

Civil and criminal contempt

Contempt of court may be civil contempt or criminal contempt

―Civil contempt‖ means willful disobedience to any judgement, direction, order, writ etc of a court or willful

breach of an undertaking given to a court. Civil Contempt normally attracts a fine and not imprisonment

unless there are special circumstances.

―Criminal contempt‖ means saying or doing anything that

scandalizes or lowers the authority of court, or

interferes with the due course of any judicial proceeding, or

obstructs the administration of justice in any other manner.

Willfulness is necessary to constitute contempt. Mere disobedience without a willful element is not

sufficient to constitute contempt. Partial non-compliance of a court order also amounts to contempt.

Superior courts of record. -Supreme Court and High Court: set their own jurisdiction in the exercise of

constitutional powers: which includes contempt powers. Their powers can not be limited by statute.

Supreme Court has inherent power under Article- 129 of the constitution to take suo motu action to

proceed against contempt.

Of itself

Of High Court and

Of a subordinate court.

High Court being a court of record has inherent power in respect of contempt

of itself as well as

of subordinate courts.

High Courts have power to punish for contempt of subordinate courts under Article-215 but that does not

affect or abridge the inherent power of Supreme Court under Article-129. The Supreme Court and High

Court both exercise concurrent jurisdiction under the constitutional scheme of punishing for contempt of

any subordinate court and contempt of High Court. Generally, cases relating to contempt of subordinate

courts are matters for High Courts. However, under rare circumstances affecting the entire judiciary,

Supreme Court may directly take cognizance of contempt of subordinate courts.

Defence

Contemnor may defend himself on the basis of truth and public interest.

Under the contempt of law, to protect principles of natural justice, it is necessary that the

• procedure is fair

• that the contemnor (one who commits contempt of court) is made aware of the charge against him and

is

• given a fair and reasonable opportunity to defend himself.

When a person defies the orders of a High Court in a place that is outside the Court‘s normal jurisdiction,

the High Court‘s powers extend beyond the normal territorial limits to punish for contempt.

Court of record

Under Art. 129 of the Constitution the Supreme Court is a court of record. It means it has the following

attributes-

its proceedings are recorded and can be quoted as evidence in any court in the country.

it sets its own jurisdiction and

it can punish for contempt of court including contempt of itself.

Ques. 5 : ‘An independent judiciary is essential for the strength of a federal democracy like India’.

Examine?

Ans. An independent judiciary is essential for the strength of a federal democracy like ours. Our

Constitution establishes it on the basis of the following

Appointment of judges of Supreme Court is kept above politics as the President appoints

Supreme Court and High Court judges in consultation with the CJI and such other judges of the

SC and HCs as he deems necessary

Removal is possible on grounds of proved misbehaviour or incapacity and the parliament should

vote with special majority followed by Presidential Order of removal

Salaries etc are charged on the Consolidated Fund of India and are non-votable

Administrative expenses of the Supreme Court are charged on the Consolidated Fund of India

Conditions of service can not be varied to the disadvantage of judges after their appointment

After retirement, Supreme Court judge can not practise in any court in the country and a High

Court judge can not practise in the High Court where he retires

Parliament can only enhance the powers of the Supreme Court and can not reduce the same

Art. 141 says that the SC judgements are binding on all courts in the country

Ques. 6 : Critically examine the need for constituting All-India Judicial Service (AIJS) for

improving the efficiency of the subordinate judiciary?

Ans. The subordinate courts/subordinate judiciary is a State subject (an item in State List (List II). The

appointment of the members of the subordinate judiciary is made by the Governor. Such appointment is

to be made in the case of district judge, in consultation with the High Court and in the case of other posts,

in consultation with the Public Service Commission and the High Court There has been a suggestion for

many decades that an AIJS should be constituted to attract the best young talent that can improve the

efficiency of the subordinate judiciary. Law commission recommended that AIJS should be constituted,

essentially for manning the higher services in the subordinate judiciary. The Supreme Court in 1995 had

endorsed the recommendation.

Article 312 deals with the All-India Services. Constitution (Forty-second Amendment) Act, 1976 inserted

All-India Judicial Service into the Article. The Amendment Act says that the All-India Judicial Service shall

not include any post inferior to that of a district judge as defined in article 236.

The process of creation of an All India Service needs to be noted. If the Council of States (Rajya Sabha)

declares by resolution supported by not less than two- third of members present and voting that it is

necessary or expedient in the national interest to do so, Parliament may by law provide for creation of an

All India Judicial Service (AIJS) common to the Union and the States and also to regulate the recruitment

and conditions of service of persons appointed to such All India service (Art. 312). Law of the Parliament

to create AIJS is not to be deemed to be an amendment of the Constitution within the meaning of Article

368.

Three main objections are raised in this matter

inadequate knowledge of regional language would dampen judicial efficiency

promotional opportunities of the members of the State judiciary would be severely hurt

erosion of control of the High Court over subordinate judiciary would impair

independence of the judiciary.

The objections have been answered effectively by, among others, the Law Commission. Learning the

regional language has never been a problem as seen in our experience with the IAS and IPS. It also

furthers cultural integration.

With respect to the second objection, only a portion of the total vacancies are to be filled through the All

India competitive examination while the remaining are open to be filled by promotion from the lower

cadres.

Control of the High Court will remain as, on allotment to a State, the allottees (members of AIJS) would

become members of the State Judicial Service for all practical purposes.

Ques. 7 : ‘To ensure accountability and transparancy in the appointment and functioning of

judiciary, it is necessary that it is made broad-based. Examine?

Ans. The process of appointment to the higher judiciary and transfer of High Court judges has been a

point of national discussion in the last many years, particularly the Second Judges case in 1993 when the

primacy was given to the Collegium of judges in this matter. There is a large section of opinion that

believes that members of the executive and the judiciary at the highest level should be involved in the

process of appointment and transfer, for the process to be transparent and broad-based.

Another issue related to higher judiciary is to ensure its accountability in matters of conduct.

To address the twin issues, National Judicial Commission has been under consideration.

The 67th Constitutional (Amendment) Bill, 1990 proposed the creation a National Judicial Commission

composed of serving judges headed by the CJI for judicial appointments. But it lapsed with the dissolution

of Lok Sabha.

In 2003, the Constitution (98th Amendment) Bill was introduced in the Lok Sabha during the Budget

session seeking to set up a National Judicial Commission (NJC) by including Chapter IV A in Part V of the

Constitution with the following main functions

Appointment of Judges to the higher judiciary

transferring High Court Judges

draw up a code of ethics for Judges

inquire into cases of minor misconduct of a Judge (major cases of misconduct attract removal

under Art. 124) and advise the Chief Justice of India (CJI) or the Chief Justice of a High Court

appropriately after such inquiry.

The composition of the proposed NJC is

CJI, who is chairperson

two Judges of the Supreme Court next to the CJI in seniority

Union Minister for Law and Justice and

one eminent citizen to be nominated by the President in consultation with the Prime Minister, who

will hold office for a period of three years.

in the case of appointment or transfer of a High Court Judge, the Chief Justice of that court and

the Chief Minister of that State (or the Governor, if - the State is under President‘s Rule) shall be

associated with the NJC.

National Commission to Review the Working of the Constitution (NCRWC) (2002) recommended it.

The Bill lapsed with the dissolution of the 13th Lok Sabha.

Ques. 8 : The removal of judges has been one of the most cumbersome, there is a need to make it

simpler and faster.’ Critically examine?

Ans. Judges (Inquiry) Bill, 2006 : The Judges (inquiry) Bill, 2006 establishes a National Judicial Council

(NJC) to conduct inquiries into allegations of incapacity or misbehaviour by High Court and Supreme

Court judges.

The NJC shall consist of the Chief Justice of India, two Supreme Court judges and two High Court Chief

Justices to investigate High Court judges; or the Chief Justice of India and four Supreme Court judges to

investigate Supreme Court judges.

The NJC shall investigate complaints submitted by any person, or upon receiving a reference from

Parliament based on a motion moved by 50 Rajya Sabha or 100 Lok Sabha MPs. It may also entertain

complaints from any other source. The complaint has to be filed within two years of the alleged

misdemeanor. If the complaint is found to be frivolous, the complainant may be punished with up to one

year imprisonment and a fine up to Rs 25,000.

After inquiry, if the Council is of the opinion that the charges proved do not warrant removal of the Judge,

it may impose following minor measures:

issuing warnings; withdrawal of judicial work for a limited; request that the Judge may voluntarily

retire;

censure or admonition, public or

private.

If the charges that are proved warrant removal in the opinion of the Council, Council shall advise the

President accordingly. The President shall cause the findings of the Council to be laid before both Houses

of Parliament. If both the Houses of parliament pass the resolution, the President removes the judge.

There is judicial review after the minor punishment or removal.

NJC is necessary to bring about accountability among the higher judiciary for actions which may not be

grave enough to warrant impeachment but serious enough for minor punishment. Another purpose NJC

serves is that it can also be involved in the impeachment process if the Parliament so desires.

Criticism

It is considered inappropriate that NJC is entirely composed of judges. There should be wider

participation in the process.

Judicial review after Government action undermines the effectiveness of the Presidential Order.

Unlike the NJ Commission for which a CAB was introduced in 2003, the NJ Council has no role in the

appointment of judges.

The Bill lapsed with the dissolution of the 14th Lok Sabha.

Ques. 9 : 'Justice delayed is justice denied’. In this context examine the causes responsible for

pendency of cases and suggest resources to improve it?

Ans. Supreme Court ruled that speedy trial is a part of right to life (Art. 21). Judicial delays and huge

backlog have the effect of emboldening anti-social elements common man loses faith in the judicial

system; loss of important evidence is possible because of fading of memory or death of witnesses.

By 2009, over 25 million cases were pending in trial courts, while the number of cases pending in 21 High

Courts stood at 3.7 million. Backlog is increasing for many reasons like

Increasing number of laws and increasing levels of literacy lead to mounting litigation

judicial impact assessment(JIA) is inadequate. That is, it is not estimated for every Bill passed as

to the impact on caseload, judges/staff, infrastructure and financial needs.

Judge - population ratio is low at 13 judges per 1 million. Law Commission recommended to

raise it 5-fold Approved strength of High Courts is 877 (2008) but there are about 300 vacancies.

Similarly, against a sanctioned strength of 15,917 trial court judges, there are only 12,524 judges

available leaving a shortfall of 3,393 judges (2008)

Judicial infrastructure is inadequate - both in terms of courts or adoption of new technology (IT

etc.)

Procedures permit unwarranted adjournments (postponements)

Chief Justice K G Balakrishnan suggested higher budgetary allocation to set up new courts like evening

courts and special magistrate courts to combat pendancy of cases. 59 lakh petty cases are pending and

they can be disposed off in a short time, if special magistrates could be appointed. In Andhra Pradesh,

morning courts are functioning before the normal office hours. In Gujarat, ‗evening courts‘ are functioning.

They have disposed off lakhs of cases.

Gram Nyayalayas Bill, 2007 aims to set up over 5000 courts to provide justice in relatively simple civil and

criminal cases in 90 days.

Pendency can also be reduced through alternative settlement of disputes mediation and conciliation.

Lok Adalats have proved to be useful in mass disposal of cases.

State governments should set up at least one family court in every district as it means adoption of a

conciliatory approach in such cases, giving preference to mutual settlement over adjudication by court.

The country now has only 190 family courts.

The judiciary has recently adopted some measures, including increase of the working hours of High Court

judges.

During the Tenth Plan (2002-2007) 0.078 per cent of the total plan outlay was spent on judiciary. It needs

to be increased substantially for the reforms to take effect.

Video-conferencing should be allowed in the judicial process. It is common for the criminal cases getting

adjourned on account of inability of the police or jail authorities to produce the accused in court.

Sometimes the witnesses are residing at far off places or even abroad. It is not convenient for them to

attend the court. Video conferencing is a convenient, secure and less expensive option and can speed up

the trial, among other advantages.

National Judicial Infrastructure Plan prepared by the National Judicial Academy, Bhopal for upgrading

judicial infrastructure to enable access to justice for common man is under consideration. The plan

proposes new initiatives such as fast track courts, second shift in existing courts, etc

for speedy disposal of cases

Moily Commission

Second Administrative Reforms Commission (ARC) headed by Veerappa Moily made the following

recommendations-

fixing a time limit for various stages of trial by suitable amendments to the Criminal Procedure

Code

cases under the Prevention of Corruption Act are held on a day-to-day basis for quick disposal

guidelines to avoid unwarranted adjournments

endorsement of Malimath Committee proposal for increasing the working days of High Courts.

Judicial Reforms

In order to make the judiciary more responsive to the needs of people; speed up the process of justice; be

accessible, accountable; improve the very low rate of prosecution in criminal cases; and reduce costs, the

following must be done.

pendancy must be drastically pruned

Computerization of the courts

fill up vacancies in High Courts and subordinate courts.

competent and able members of bar are to be ‗attracted‘ to the judicial posts

the high level of court fees prescribed by many state governments must be reduced as it adds to

the cost of justice

judicial accountability needs to be strengthened

witness protection

Laws need to be modernized as some of them are more than 100 years old

Many reforms have already been initiated and are in progress. Some have already taken effect as shown

below:

CPC amendments

CrPC amendments 2008

Lok Adalats

Gram Nyayalayas Act 2008

B-judiciary

It is suggested that the jury system like in the US should be adopted where the common public

can be asked to work as jurors (judges) and decide cases on the basis of facts. It will reduce

pressure on courts.

CPC Amendments 2002

In a move to speed up justice delivery, the Centre amended the Civil Procedure Code which provide for

time-bound disposal of civil cases. The following amendments make for speedier disposal of cases

Only three adjournments are permitted.

The court is also empowered to fix a time limit for oral arguments and to

avoid delay, it may ask the parties to file written submissions.

a judgment is to be pronounce within 60 days from the date on which the hearing concludes .

ADR- conciliation and arbitration- should be encouraged

Code of Criminal Procedure (Amendment) Act, 2005

It introduced plea bargaining to reform the criminal justice system

prohibits arrest of a woman after sunset and before sunrise except under rare circumstances

requires police to give information about the arrest of a person as well as the place where he is

being held to anyone nominated by him

The State government may establish a Directorate of Prosecution.

allows the use of DNA and other techniques during medical examination of the accused.

It entitles an under trial, other than those accused of an offence for which death penalty is

prescribed, to be released with or without surety if he/she has been under detention for more than

half the prescribed period of imprisonment. It also provides for release of under trials who are

detained beyond the maximum period of imprisonment provided for the alleged offence.

The amended Act would tone up the investigating machinery and process, strengthen the prosecution

machinery, tackle problems of under trials, safeguard the interests of women and stipulate bail conditions.

Plea Bargain

It is was introduced in India by amendment of the Code of Criminal Procedure. Under plea bargain,

criminal defendant and prosecutor reach an agreement subject to court approval. The accused admits

guilt without a trail, and return is given a lighter punishment.

This allowed for cases in which the maximum punishment is imprisonment for seven years. However,

offences in socio-economic area like sati are not covered and offences committed against a woman or a

child below the age of fourteen are also excluded.

The rules say the court would examine the accused in camera to determine if he has willingly opted for

plea bargaining.

Critics of the system point out that it puts strong pressure on defendants to plead guilty to crimes that they

know that they did not commit. Furthermore, the system encourages lawyers to overcharge.

Ques. 10 : ‘The Criminal Procedure Code (Amendment) Act, 2008 provides for a number of path-

breathing measures in the existing law’. Discuss?

Ans. Major changes in the Criminal Procedure Code were made to take away the powers of the police to

arrest in

the essential for making justice accesible to people‘. In this context eleborate on the measures taken by the government?

Ans. Gram Nyayalaya Act 2008 aims at providing inexpensive justice to people in rural areas on their

doorstep.

It provides for first class judicial magistrates dispensing justice.

At least 3000 judges, who will be the judicial magistrate first class (JMFC) will be appointed; They will be

called ‗Nyaya Adhikaris‘ Nyaya Adhikaris will be appointed by the states in consultation with the high

courts.

They are strictly judicial officers. They will be drawing the same salary, deriving the same powers as the

first class magistrates working under the High Courts.

Gram Nyayalayas will try criminal cases, civil suits, claims or disputes concerning all the offences not

punishable with death, imprisonment for life or imprisonment for a term exceeding two years.

Theft, receiving or retaining stolen property, assisting in the concealment or disposal of stolen property

where the value of property does not exceed Rs 20,000 -, dispute relating to purchase of property,

cultivation of land, right to draw water from a tubewell or well are some of the offences which could be

tried in the Nyayalayas.

An appeal from the judgment of the Gram Nyaylaya will lie with the sessions court which will be heard

and disposed of within six months from the date of filing of the appeal.

For the Grain Nyayalayas, the Centre will bear the full cost on capital account. These courts will sit at the

district headquarters and in taluks. They will go in a bus or jeep to the village, work there and dispose of

the cases. The cost of litigation would be borne by the state and not by the litigant.

Rs. 6.4 lakh would be the recurring expenditure, including salary of the staff, per annum while total capital

expenditure would be met by the Centre.

Tribal areas are not covered

Fast Track Courts

Fast track courts were set up, on the recommendation of the 11th Finance Commission to deal with

criminal cases involving undertrials (there are 1.8 lakh undertrials in jails around the country) and other

cases pending for more than two years. The aim is to setup five fast track courts in each district.As per

the latest available information received from the High Courts/State Governments, 32.34 lakh cases have

been disposed off by these courts, out of 38.90 lakh transferred to these courts leaving 6.56 lakh cases

pending for disposal.

The scheme of central assistance for Fast Track Courts was extended for a period of one year i.e. upto

31.3.2011. It was decided that there will be no central funding for Fast Track Courts beyond 31-03-2011.

Alternative Dispute Resolution

Alternative dispute resolution encompasses a range of means to resolve conflicts short of formal litigation.

The modern ADR movement seeks to reduce cost and delay and avoid adversarial nature of litigation.

The interest in ADR essentially centres around Lok Adalats.

ADR today falls into two broad categories

court-driven options and

community-based dispute resolution mechanisms (Lok Adalats) Court-driven ADR includes

mediation/conciliation—the classic method where a neutral third party assists disputants in

reaching a mutually acceptable solution.

Supporters argue that such methods decrease the cost and time of litigation, improving access to justice

and reducing pressure on courts, while at the same time preserving important social relationships for

disputants.

Community-based ADR is often designed to be independent of a formal court system that may be

expensive and inaccessible. India set up lok adalats in the 1980s.

Arbitration, conciliation and negotiation:

Conciliation

Conciliation is an informal process designed to create an environment where negotiations can take place.

If the parties fail to reach and agreement, the case is referred to mediation.

Mediation

Mediation is a voluntary and confidential process where a neutral third party assists negotiation. The

parties are responsible for reaching an agreement and the mediator cannot impose a settlement. The

mediator‘s role is to facilitate communication, promote understanding, and use problems solving

techniques with the goal of assisting the parties to reach their own agreement. If the mediation fails to

reach agreement, the case is referred to arbitration.

Arbitration

Arbitration is a form of private adjudication where a mutually acceptable third party hears arguments from

either side in a dispute, and renders a judgment. The judgment, known as an award, is confidential and

binding.

Ques. 12 :

What are Lok Adalats and how these adalats have helped in improving justice to the people?

Ans. Lok Adalat literally means "people's court‖. It is an alternative dispute settlement mechanism which

settles disputes through conciliation and mediation. It helps in quick disposal of cases and the process is

simple and carries no fees. Lok Adalats are statutory forums since the enactment of Legal Services

Authorities Act, 1987.

All legal disputes pending in civil, criminal, revenue courts or a tribunal can be taken to Lok Adalat for

amicable settlement except criminal cases which are non-compoundable (that is, serious offences where

charges cannot be dropped without the consent of the judge).

Legal disputes can be taken up and settled by Lok adalats at pre-litigative stage also i.e. before the

parties have entered into litigation by filling a case in a regular court.

Lok Adalats, generally, consist of a judicial member a legal practitioner and a social worker (generally, a

woman). They follow their own procedure. They have the power of a Civil Court, in respect of summoning

of evidence and, examination of witnesses, requisitioning of public records, etc.

No lawyers are involved in the process. The procedure, followed in the Lok Adalats for the settlement of

cases, is simple, informal and flexible.

In 2008, the Supreme Court ruled that the Lok Adalats set up under the Legal Services Authority Act have

no adjudicatory or judicial functions and they cannot decide cases referred to them on merits.

A Bench comprising Chief Justice K.G. Balakrishnan and Justices G.P. Mathur and R.V. Raveendran said

that "Lok Adalat determines a reference on the basis of a Compromise or settlement between the parties

at its instance and puts its seal of confirmation by making an award in terms of the compromise or

settlement.‖

But when the Lok Adalat is not able to arrive at a settlement, the case would be returned to the court from

which the reference was received for disposal in accordance with the law.

No Lok Adalat has the power to ―hear‖ parties to adjudicate cases as a court does. it discusses the

subject matter with the parties and persuades them to arrive at a just settlement.

If the case is settled in the Lok Adalat, that is, if the litigants agree to a settlement in the Lok Adalat, it will

have to be complied with, within a month.

It is enforceable like the decrees of a civil court and are binding on the parties to the dispute. It is final as

there does not lie any appeal against it.

Lok Adalats are monitored by the State Legal Aid and Advisory Boards.

Parliament in 2002 made the Legal Services Authorities (Amendment) Act 2002, which provides for the

constitution of permanent Lok Adalats. The Act seeks to establish permanent Lok Adalats with maximum

monetary jurisdiction of Rs. 10 Iakhs for conciliation and settlement of cases relating to public utility

services like electricity boards, transport corporations etc.

In their conciliatory role, the Lok Adalats are guided by the principles of justice, equity and fair play. The

Lok Adalats have delivered inexpensive and expeditious justice and need to be extended further.

Judicial Accountability

In a Constitutional democracy, every institution is subject to accountability, including the judiciary.

Accountability of the judiciary in respect of its judicial functions and orders is provided for by an appeal

and review of orders. The mechanism for accountability for serious judicial misconduct, for disciplining

errant judges is removal, in the Indian Constitution (Art.124). It is so difficult that it is not practical and so

does not function as a deterrent. Therefore, National Judicial Council is being considered for minor

offences. The Judges Inquiry Bill 2006 introduced in the Parliament is an important step in this direction

as it seeks to set up NJC. The National Commission to Review the Working of the Constitution (NCRWC)

made similar recommendations in the matter in its report in 2002.

The accountability question has the following dimensions:

Judicial accountability under which the lower court verdicts are open to challenge and nullification by the

higher court.

In matters related to death sentence and other punishments handed by the judiciary, there is Presidential

mercy available under Art.72.

Where the judicial members suffer from misbehavior or incapacity, Art. 124 prescribes removal by

Parliamentary address and Presidential order.

Ques. 13 : ‘Judicial activism as a corollary of Public Interest Litigation

has on the one hand ensured justice to the weak and vulnerable and on the other has checked the executive from being arbitrary‘. Critically examine the statement in context of the instances of judicial overreach.

Ans. Judicial review is the power of the judiciary to review the laws made and executed by the legislature

and executive to make sure that they are in line with the Constitution and statute. If they are not, judiciary

strikes them down partly or wholly. The power of judicial review is given to the judiciary by various

provisions of the Constitution and law. For example, Art. 13 says that no law is valid if violates

Fundamental Rights. Art.131 says that if there is a federal dispute between states and centre or between

states, Supreme Court has exclusive power to settle it. Art.32 and 226 give power to the Supreme Court

and High Courts to restore Fundamental Rights (Supreme Court) and all rights (High Courts) in case they

are violated.

The PIL movement in the country is a classical case of judicial activism whereby the judiciary- the higher

rungs- take justice to the doorstep of the weak and vulnerable. Since the exploited and the illiterate do not

have the means of moving the courts for their rights, the apex court allowed any public spirited body to

take up the case on their behalf. It is a case of the judiciary being actively interested in taking justice to

the door step of the marginalized.

The Supreme Court since late seventies has been expanding the scope of FRs - particularly Art. 21 (right

to life and personal liberty). It is also interpreted as judicial activism.

Judicial overreach, on the other hand, is a case of judiciary encroaching into the territory of the other two

organs- legislature and executive. Continuous mandamus, questioning the expulsion powers of the

legislature and so on are a part of it, according to the former Speaker of Lok Sabha, Shri Somnath

Chatterjee.

While activism is welcomed as it helps the weak, keeps the Executive on its toes and makes it efficient

and by and large sustains the faith of the people in the Government, it is criticized for the following

reasons.

Judiciary has no resources to monitor the tasks it assigns to the executive

Judiciary can not think that it can solve all the problems

It upsets the delicate balance among the three organs of the government

Judiciary must turn its attention to solving its own problems like arrears.

Public Interest Litigation

Justice Krishna Iyer, in Mumbai Kamgar Sabha vs. Abdulbhai Faizullabhai (1976) used the expression

PIL for the first time. Justice Bhagavathi added momentum to PIL in the late seventies.

PIL must be differentiated from private litigation. In private litigation, courts are approached for the

redressal of wrong or injustice of a private person (or a company which is a legal person). He has to show

that he has locus standi- that he is connected to the case and has the right to act or be heard. No one can

approach the court without locus standi.

But in PIL, the victims of violation of constitution and law may be weak, vulnerable and illiterate. There are

many cases where public interest is violated-for example, child labour, bonder labour; criminals in election

process; environmental damage, pollution, children not being able to go to school, people in high places

being corrupt and so on. In such a case involving public interest, Supreme Court since late 1970s,

allowed the principle of locus standi to be set aside. Any socially spirited individual is allowed to bring it to

the notice of the court. Procedural rigidities have not been insisted on. The reason is that the victims are

weak and illiterate and can not approach the courts themselves. The aim is to bring justice to the

doorstep of the weak. It is called public interest litigation or social interest litigation.

PIL means a legal action initiated in a court of law for the enforcement of public interest in which the

public as against private individuals have interest in the form of protection/restoration of their rights.

It is meant to catalyse progressive socio-economic change; make administration responsive; lead to

better environmental practices ; make civil society active; and so on.

In the famous Asiad Labour case 1982, the apex court accepted a letter written by an NGO as writ

petition and ruled in favor

of workers. Newspaper reports can also be the basis for initiation of action. Affidavits have not been asked for.

There are many cases in which the SC and the HCs ruled for popular welfare tightening norms for the

blood banks; coming to the rescue of the under-trials who were imprisoned without trial for unduly long

periods, setting guidelines for introduction of CNG based buses etc in Delhi; cleaning Yamuna etc;

directing Delhi industrial units to lake care of the child labourers; release of bonded labourers; recently(

2008) the construction of Mundra SEZ was stopped in Gujarat by the Supreme Court on a PIL filed by

fishermen; In 2009, The Supreme Court asked the Union government to respond to the PIL accusing it of

inaction in bringing back black money kept secretly in foreign banks by Indians.

Public interest Litigation is the power given to the public by courts through judicial activism. It is a case of

judicial activism as the judiciary activates the public to approach the courts in social interest.

While the PIL instrument has great potential to help the ordinary people, there is concern about misuse of

PIL

it is being used for publicity; private interest is being projected as public interest

individuals and organizations are trivializing and politicizing the PIL by questioning various

government decisions without justification

has led to loss of precious court time

It has become a tool for obstruction, delay and sometimes, harassment.

The Supreme Court ruled that PIL was not a fundamental right implying that the courts had the right to

reject appeals on the basis of public interest.

A two judge Bench of the apex court (2008) observed that frivolous PIL cases should be imposed a

penalty of Rs 1 lakh. There is a wing in the apex court that screens out frivolous PILs. Some frivolous

PILs are: India should be renamed Hindustan; the Arabian Sea should be called Sindhu Sagar; the

national anthem Jana Gana Mana should be replaced by the one offered by the petitioner (and partly

sung before the Chief Justice); the Prime Minister should be summoned to the court to respond to these

requests; and so on.

Ques. 14 : Seperation of power is the basic feature of the Constitution which of only has been

breached’. Elaborate?

Ans. Indian Constitution provides for a parliamentary democracy and the essential features of federalism.

Separation of powers among the three organs of the government is a basic feature. There is a clear and

delicate balance of power between the three organs. In their respective jurisdiction, the three organs are

independent and the Constitution bars any interference.

Articles 121 and 211 bar the legislature from discussing the conduct of any judge in discharge of his

duties except when impeachment proceedings are being take up, Articles 122 and 212 on the other hand

preclude the courts from interfering in the internal proceedings of the legislature. Article 105 (2) and 194

(2) privileges protect the legislators from interference of the Courts with regards to freedom of speech and

freedom to vote.

However, in recent years, the phenomenon of judicial activism was seen to disturb the delicate balance

and the judiciary overstepped into the domain of the legislature.

For example, in 1998, when there was contention for the Chief Ministership of Uttar Pradesh -

Jagadambika Pal and Kalyan Singh, the apex court directed the Speaker to conduct the Composite Floor

Test in the State Assembly. A similar situation in 2005 in the case of the Jharkhand Assembly, the apex

court directed the Protem Speaker to conduct a Composite Floor Test to ascertain the majority in the

House. The recent verdict of the Supreme Court on the expulsion of MPs from Parliament is another such

instance

There have been other incidents where courts and legislators found themselves on opposite sides. In

2003, on the issue of the mandatory disclosure of educational qualification, assets/liabilities and the

details of criminal antecedents (if any) by candidates filing nominations for elections, there was a series of

assertions and counter-actions by Parliament and the apex court, in which the judges finally prevailed and

establishing the need for such disclosures. Similarly, the very recent verdict of the SC on extending the

concept of a ‗creamy layer‘ to reservations for Scheduled Castes and Scheduled Tribes, and on

invalidating the immunity of legislations (passed after 1973) placed in the Ninth Schedule of the

Constitution from judicial review, were

not taken well by Parliamentarians who treated these verdicts as usurpation of power by judges.

Comments on judicial over-reach:

In the Conference of Presiding Officers of Legislative Bodies convened by the Speaker of the Lok Sabha,

Somnath Chatterjee in 2005, the Presiding Officers expressed concern over court orders that disturbed

―the delicate balance of power‖ between the legislature and the judiciary. They drew attention to the

gradual ascendancy of the judiciary over the other two other branches.

Former Attorney General of India Soli Sorabjee said ―judges must not instill in themselves that the

judiciary can solve all problems‖.

In the conference of Chief Ministers and Chief Justices held in New Delhi recently the Prime

Minister cautioned the Courts not to cross their limits. His remarks came in the backdrop of

various legislations being struck down by the Courts; the most recent being the stay on the

implementation of 27 per cent reservation for Other Backward Castes in Centrally financed elite

educational institutions.

Other instances of tension between the Two Institutions are

Protection of journalists who are ordered to be punished by the legislature and are protected by

the courts as Art. 21 demands that procedure established by law is followed and there is no such

statutory procedure laid down in the case of privileges as they are not codified

Continuous mandamus is being followed occasionally by the courts.

Continuous mandamus

If any public or semi-public authority refuses to discharge its duty, high Court or Supreme Court can be

approached to issue mandamus writ to enforce the duty. It is one time order. Not acting on the writ

constitutes contempt of court and is punishable. Under ―continuing mandamus‖, Courts keep on passing

orders and directions with a view to monitor the functioning of the executive. The executive becomes

continuously accountable to the court. Recent instances have shown that, courts resorted to continuous

mandamus in rare cases in public interest. But it OSCS problems like disturbance in the separation of

powers; officers being accountable to judiciary instead of the political executive while the political

executive is accountable to the legislature; power without responsibility; concentration of powers in one

organ and so on.

Ques. 15 : Judicial Impact Assessment (JIA) of every bill will go a long way in solving backlog of

cases in Indian Courts?

Ans. The Task Force constituted by Government to study the feasibility of Judicial Impact Assessment in

India under chairmanship of Shri Justice M. Jagannadaha Rao has submitted its report in 2008.

Mandatory judicial impact assessment of every bill will have a fair estimate of extra caseload, judges/staff,

infrastructure and financial needs a new law is likely to generate.

The committee recommended that Judicial Impact Assessments must be made on a scientific basis for

the purpose of estimating the extra case-load which any new Bill or Legislation may add to the burden of

the Courts and the expenditure required for adjudication of such cases must be estimated by the

Government and adequate budgetary provision must be made therefore.

Such impact assessments must be made in respect of Bills that are introduced in Parliament as well as

Bills introduced in the State legislatures. If implemented, it will be for the first time that India follows a

system that is in vogue in the USA. The panel recommended that the Centre must establish additional

courts for implementation of central laws made in respect of subjects in the Union List.

The expenditure on fresh cases likely to be added to the Supreme Court and high courts by new laws

must be reflected in the Financial Memoranda attached to the Central State Bills. The panel proposed

setting up of a judicial impact office in Delhi and similar offices in states to carry out the assessment by

involving social scientists, legal experts and NGOs. Indian courts are disposing of 1.5 crore cases

annually and there were 2.5 crore eases still pending in lower courts.

―The. backlog does not get wiped out because fresh cases...get filed in courts every year. There is no

point in blaming the judiciary for case arrears, the blame must also lie with other departments that help

(create) it,‖ The report said.

Ques. 16 : Malimath Committee on Criminal Justice System. Its recommendations?

Ans. Criminal justice system involves the police, prosecution, judiciary and the jails along with the

witnesses. If it functions well efficiently, crime rate will decline and conviction rate

increases. Otherwise, the country faces the risk of erosion of people‘s faith with the increase in the crime rate. The Malimath Committee, constituted in 2000 to recommend revamping of the criminal justice system in the country gave its report in 2003.The two volume report makes 158 recommendations with regard to the police, prosecution, the judiciary and criminal jurisprudence. It has, to a large extent, incorporated the recommendations made by in various reports of the Law Commission and the National Police Commission.

It recommended the following:

Shift from the current adversarial system to inquisitorial system where the court be empowered to

summon and examine as a witness any person it considers appropriate and to issue directions to the

investigating officers as may be necessary to assist it in its search for the truth.

The right of the accused to silence (the right not to be compelled to be a witness against oneself) must

also be amended with the court given the right to draw adverse inferences if he refuses to answer the

questions put to him by the court.

The committee also concluded that the current standard of proof ―beyond reasonable doubt‖ put a ―very

unreasonable burden‖ on the prosecution. It has suggested that the standard of proof be set midway

between the current standard in India and the much lower standard current in continental Europe, namely

―preponderance of probabilities‖, at ―clear and convincing‖ proof.

With reference to the investigation of crimes, the committee called for a separation of the investigating

wing of the police from the law and order wing.

To ensure that the investigating agency was insulated from extraneous influences it has suggested the

setting up a National Security Commission and State Security Commissions.

It suggested setting up-permanent benches in the Supreme Court and High Courts to deal with criminal

cases to be presided over by judges specialised in criminal jurisprudence.

The committee recommended that evidence recorded in video and audiotapes before a police officer of

the rank of a superintendent should be admitted as evidence. At present, confessions recorded by police

are not admissible as evidence.

He also recommended that from now on, criminal laws be reviewed every 15 years so that they are in

tune with the ―changing times‖.

It recommended amendments to Section 125 of the Criminal Procedure Code (CrPC) so that ―a woman

living with a man like his wife for a reasonably long period is also entitled to the benefit of maintenance‖.

It further suggested life sentence for the rapist and it should not be commuted; lenient law for women and

child convicts. Other recommendations are:

Special Courts

Special courts are set up under various acts to expedite justice.

The special courts are created under Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989.

Immoral Traffic Prevention Act 1956 provides for special courts. The National Investigation Agency set up

in 2008 after the Bombay terror attacks in November 2008 allow special courts to be set up and function

continuously. Evening courts in Gujarat and Fast Track courts are also special courts.

Special courts essentially speed up justice.

Difference between a Criminal Case and Civil Case - There are two fundamentally different types of

court cases - criminal and civil. Among the important differences between criminal and civil cases are

these:

In a criminal case a State prosecutor, not the crime victim, initiates and controls the case. This

method of beginning the case contrasts with civil cases where the injured party is the one who

files the case.

A person convicted of a crime may pay a fine or be incarcerated or both People who are held

responsible in civil cases may have to pay money damages or give up property, but do not go to

jail or prison.

Advocates on Record

Only these Advocates are entitled to file any matter or document before the Supreme Court. They can

also file an appearance or act for a party in the Supreme Court.

Curative petition

The apex court may entertain a curative petition and reconsider its judgment, in order to undo gross

miscarriage of justice. Such a petition can be filed only if a Senior Advocate certifies that it meets the

requirements of this case. Such a petition is to be first circulated before a Bench comprising of three

senior most judges and such serving judges who were members of the Bench which passed the

judgment/order,

subject matter of the petition.

Ques. 17 : ‘Information technology is the hub around which spokes of judiciary will revolve in

future? In this context elaborate on the steps taken in Indian judiciary in this direction?

Ans.

E-judiciary

The e-Judiciary initiative is taken up- computerization and connectivity to help in meeting the needs of the

citizens in a transparent manner and enable quicker disposal of cases.

The Supreme Court took up the ―e-courts‖ project under the-National e-Governance Plan (NeGEP) for

linking about 15,000 courts in the country. It is planned to provide necessary infrastructure and

concentrate on capacity building, judicial process from filing to execution and finally making the

information available online between the courts, prosecuting and investigating agencies, persons, land

records and registration offices thereby accelerating disposal of civil and criminal cases.

From the time the case is filled till it is disposed of with judgment, the entire processing must take place

electronically. This will enable easy search, retrieval, grouping, information processing, judicial record

processing and disposal of the cases The proposed action for connecting all the 15,000 courts from the

District Court to the Supreme Court through will enhance the efficiency of the judicial system. COURTIS

(Court Information System) Project.

Court is project undertaken by MC has streamlined registries at various courts. With the implementation

of the system the number of pending cases in the Supreme Court has come down.

COURTNIC

COURTNIC is an information system designed to provide the information, on the status of cases in the

Apex Court to a wide variety of users, from anywhere in the country.

Computerisation of all 21 High Courts and 10 Benches on the lines of Apex Courts Computerisation has

been done. All High Courts‘ Cause List are also available on Internet.

District Courts Computerisation

In 1997, NIC took tip the computerisation of all 430 District Courts in the country on the lines of High

Courts Computerisation Project.

CASE-STATUS

This website provides Supreme Courts‘ pending and disposed case status information to

litigants/advocates on Internet.

JUDIS

NIC brought out Judgement Information System (JUDIS) on CD-Rom consisting of complete text of all

reported judgement of Supreme Court of India from 1950 to 2000. The Judgements of 2001 onwards are

available on Internet.

Cause Lists on Internet

Cause lists contain information on the scheduling of cases to be heard by the courts on the following day.

Daily Orders on Internet

The daily orders of Supreme Court, Delhi High Court are available on the web, immediately after they are

signed by the Judges.

High Court

High Court stands at the head of the State‘s judicial administration. There are 21 High Courts in the

country. High courts have jurisdiction over a state, a union territory or a group of states and union

territories. Three High Courts have jurisdiction over more than one state Bombay High Court has the

jurisdiction over Maharashtra, Goa, Dadra and Nagar Haveli and Daman and Diu. Guwahati High Court,

which was earlier known as Assam High Court, has the jurisdiction over Assam, Manipur, Meghalaya,

Nagaland, Tripura, Mizoram and Arunachal Pradesh. Punjab and Haryana High Court has the jurisdiction

over Punjab, Haryana and Chandigarh.

Among the Union Territories, Delhi alone has a High Court of its own. Other six Union Territories come

under jurisdiction of different state High Courts. Each High Court comprises a Chief Justice and such

other Judges as the President may, from time to time, appoint.

High Courts are sanctioned under Part VI, Chapter V, Article 214 of the Indian Constitution.

The Chief Justice of a High Court is appointed by the President in consultation with the Chief Justice of

India and the Governor of the state. Since 1993, after the Second Judges case, the system of collegial

appointment began.

Every High Court shall consist of a Chief Justice and such other judges as the President of India from

time to time deem it necessary to appoint. High Courts are headed by a Chief Justice. The Chief Justices

are ranked 14 (in their state) and 17 (outside their state) in the Indian order of precedence.

The number of judges in a court is decided by dividing the average institution of main cases during the

last five years by the national average.

The Additional Judges are appointed for a period not exceeding two years taking into account the

temporary increase in the business of the High Court. Such judge shall also not hold

office after attaining the age of 62.

The Calcutta High Court is the oldest High Court in the country, established in 1862.

Each High Court has powers of superintendence over all courts within its jurisdiction. High Court judges

retire at the age of 62.

To be eligible for appointment as a judge, one must be a citizen of India and should have held a judicial

office for 10 years or must have practiced as an advocate of a High Court or two or more such courts in

succession for a similar period.

The High Court is a Constitutional Court in terms of Article 215. It is a court of record and has all the

powers of such court including the power to punish for contempt of itself.

The High Courts entertain all cases including the Constitutional cases except the federal ones which go

exclusively to the Supreme Court. High Courts can try all offences including those punishable with death.

High Courts, however, mainly deal with appeals from lower courts and writ petitions in terms of Article 226

of the Constitution of India.

Each High Court has power to issue any person or authority and government within its jurisdiction,

direction, orders or writs, including writs which are in the nature of habeas corpus, mandamus,

prohibition, quo warranto and certiorari, for enforcement of Fundamental Rights and for any other

purpose.

The High Court shall also have superintendence over all Courts and Tribunals throughout the territory in

relation to which it exercises jurisdiction, as provided in Article 227 of the Constitution.

Tenure

The Judges of High Court can remain in office till the completion of 62 gears of age. Besides on the

following grounds he can be relieved from this office.

1. If he is promoted and transferred to Supreme Court,

2. If on the basis of misbehavior or disqualification, if the Parliament in a Single Session passes a

resolution by a majority of the total membership which is more than two-thirds of the members

present and voting in each House of Parliament separately.

3. If the resign. After his retirement, he can practice in any High Court other than his own court.

Salary etc.

There is a provision for the payment of uniform salaries to the judges of all High courts in India. The

Parliament approved a bill facilitating salary hike of the Supreme Court and the High Courts judges in

2009. The Act increased the salary of the Chief Justice of India (CJI) from Rs 33,000 to Rs. 1 lakh month,

while other Apex court judges will get Rs. 90,000 from their earlier Rs 30,000 per month salary.

It increased the salary of the Chief Justice of High Courts from Rs 30,000 to Rs 90,000 per mouth, and

HC judge‘s salary from Rs 26,000 to Rs 80,000 per month.

Below the High Court at the district level, the ‗District and Sessions Judge‘ heads the subordinate

judiciary. He is known as a District Judge when he presides over a civil case, and a Sessions Judge when

he presides over a criminal case.

At the district and sub-district level, below the High Courts, stand the subordinate courts- the civil courts,

family courts, criminal courts etc.

Benches: permanent and circuit

If a High court entertains a large number of cases of a particular region, it has a permanent bench

(branch). Benches also exist in states which come under the jurisdiction of a court outside its territorial

limits.

Smaller states with few cases may have circuit benches. Circuit benches (circuit courts) hold proceedings

for a few selected months in a year. Thus cases built up during this interim period are judged taken up

when the circuit court is in session. In 2008, in Dharwad and Gulbarga in north Kamataka, circuit benches

were set up.

Article 214 of the Constitution of India says that there shall be a High Court for each State.

Article 230 enables the Indian Parliament, by law to extend the jurisdiction of a High Court to any Union

Territory. By virtue of this the High Court of Kerala is also the High Court having jurisdiction over the

Union Territory of Lakshadweep.

Appointment of Acting Chief Justice

Under Article 223, if the office of the Chief Justice of any State High Courts falls vacant or if the Chief

Justice is absent or for some reason is not in a position to discharge the responsibilities of the

office, then the President is empowered to appoint any one of the judges of that Court as ‗Acting Chief

Justice‘.

Appointment of Additional and Acting Judges

Under Article 224 (1) if for some temporary reason the functions of a High Court has increased

temporarily and the President feels the necessity to increase the number of Judges temporarily for these

functions, then he can appoint those who fulfill the requisite qualifications as ‗Additional Judges‘ for a

period not exceeding two years. In the like manner, under article 224 (2) during the absence of some

judge, the President can appoint acting judge.

Transfer of Judges in Other State

According to article 222, the President in consultation with the Chief Justice of a India, can transfer a

judge from one High Court to any other High Court.

Subordinate Courts

Criminal Courts:

The highest court in the district is that of District and Sessions judge. It is empowered to hear both the

civil as well as criminal cases. It should be noted that the district and the session court is one and the

same court and the same person acts in both the civil and criminal capacities. When he deals with civil

cases, he is known as the District Judge and when he hears criminal cases, he is called the Sessions

Judge.

He is appointed by the Governor of the state in consultation with the Chief Justice of the High Court. The

appointments to this post are made in two ways. In the first place, those persons are appointed to this

post who are not in government service; the persons who have worked continuously as lawyers or

advocates for seven years, are appointed. Secondly, government servants in judicial service commission.

These government employees include Munsiffs who by getting promotions are appointed.

The District and Sessions Court is the highest court of the district. The District and Sessions Judges

hears appeals from subordinate courts under it. He can hear appeals regarding grave crimes like

dacoities and murder and is empowered to sentence the culprits to death, but such punishment must be

confirmed by the High Court. The lowest criminal court in the district, is that of Third class Magistrate‘s

Court. This magistrate hears petty cases like those of beating and quarrels etc. He is empowered to

sentence one months imprisonment and maximum fine of some petty amount.

Civil Court:

The Highest Civil Court in the district is that of a District Judge. The same person hears the civil and the

criminal cases. When he hears criminal cases he is called the Session Judge; but when he deals with civil

cases, he is called the District Judge. There are Courts of many sub-judges under him. They possess

original jurisdiction and also can hear appeals against the Munsiff‘s Court.

High Courts by state / union territory

State & UTs Court City

Andaman and Nicobar Island Calcutta High Court Kolkata

Arunachal Pradesh Guwahati High Court Guwahati

Andhra Pradesh Andhra Pradesh High Court Hyderabad

Assam Guwahati High Court Guwahati

Chandigarh Punjab and Haryana High Court Chandigarh

Dadra and Nagar Haveli Bombay High Court Mumbai

Daman and Diu Bombay High Court Mumbai

National capital territory of Delhi Delhi High Court New Delhi

Goa Bombay High Court Mumbai

Gujarat Gujarat High Court Ahmedabad

Himachal Pradesh Himachal Pradesh High Court Shimla

Jammu and Kashmir Jammu and Kashmir High Court Srinagar/Jammu

Jharkhand Jharkhand High Court Ranchi

Karnataka Karnataka High Court Bangalore

Kerala Kerala High Court Ernakulam

Lakshadweep Kerala High Court Ernakulam

Madhya Pradesh Madhya Pradesh High Court Jabalpur

Maharashtra Bombay High Court Mumbai

Manipur Guwahati High Court Guwahati

Meghalaya Guwahati High Court Guwahati

Mizoram Guwahati High Court Guwahati

Nagaland Guwahati High Court Guwahati

Orissa Orissa High Court Cuttack

Pondicherry Madras High Court Chennai

Punjab Punjab and Haryana High Court Chandigarh

Rajasthan Rajasthan High Court Jodhpur

Sikkim Sikkim High Court Gangtok

Tamil Nadu Madras High Court Chennai

Tripura Guwahati High Court Guwahati

Uttrakhand Uttarakhand High Court Nainital

Uttar Pradesh Allahabad High Court Allahabad

West Bengal Calcutta High Court Kolkata

Bihar Patna High Court Patna

Benches of the High Courts

Lucknow for Allahabad High Court

Nagpur, Panaji, Aurangabad – for Bombay High Court Port Blair (circuit bench)

Kohima, Aizwal & Imphal. Circuit Bench at Agartala & Shillong for Guwahati High Court.

Circuit Benches at Hubli-Dhawrad & Gulbarga for Karnataka High Court

Gwalior, Indore for MP High Court

Madurai for Tamil Nadu High Court

Jaipur for Rajasthan High Court

Chapter in detail:

Lokpal is synonymous to the institution of Ombudsman existing in the Scandinavian countries. The office

of the ombudsman originated-in Sweden in 1809 and has been adopted by many nations. The Swedish

word Ombudsman means ―a procurator or agent of civil affairs‖, may be interpreted as ―the people‘s

advocate‖.

Ombudsman is a government official who investigates citizens‘ complaints against the high government

functionaries. Though appointed by the legislature he is an independent functionary - independent of all

the three organs of the state, but reports to the legislature. The Ombudsman can act both on the basis of

complaints made by citizens, or suo moto- that is on his own initiative. He can look into allegations of

corruption as well as maladministration.

Rationale for the institution

The mechanisms available in the regular process of government are inadequate check corruption: in

administrative departments, for example, any decision of an official can be appealed to a higher official.

On the legislative side, an individual can approach the member representing his constituency for his

demands. These remedies have limited value. Judicial delays leave the recourse to courts ineffective.

The Central Vigilance Commission (CVC) is designed to inquire into allegations of corruption by

administrative officials of the Union Government only. The CBI, the premier investigating agency of the

country, functions under the supervision of the Ministry of Personnel, Public grievances and Pensions

(under the Prime Minister) and is therefore not immune from political pressures during investigation. All

these have necessitated the creation of an independent and high powered Lokpal with its own

investigating team.

It should adopt simple, independent, speedy and inexpensive means of delivering justice by redressing

the grievances of the people.

Ombudsmen in other nations

The functionary is called by different names in different countries; its power and functions also vary. In the

Scandinavian countries (Sweden, Denmark, Finland, Norway) he is called the ‗Ombudsman‘. However, in

the U.K., he is known as the Parliamentary Commissioner. He can receive complaints only through

members of parliament. The European Ombudsman (or sometimes Euro-Ombudsman) is an ombudsman

for the European Union, based in Strasbourg. The Office was created by the Maastricht treaty (1992).

In the former USSR, ombudsman was the Procurator. The word ‗procurator‘ is derived from the Latin verb

procurare, which means ‗to take care‘.

Lokpal

The Administrative reforms Commission (ARC) set up in 1966 recommended the constitution of a two-tier

machinery of a Lokpal at the Centre, and Lokayuktas in the states as it will remove the sense of injustice

from the minds of citizens and also install public confidence in the efficiency of administrative machinery.

Following this, the Lokpal Bill was for the first time presented during the fourth Lok Sabha in 1968, and

was passed there in 1969. However, while it was pending in the Rajya Sabha, the Lok Sabha was

dissolved and the Bill lapsed. The bill was revived in 1971, 1977, 1985, 1989, 1996, 1998 and most

recently in 2011. The Bill could not be passed for a variety of reasons- Lok Sabha was dissolved, or the

Bill was withdrawn, there was no consensus etc.

The Lokpal was visualized as the watchdog institution on ministerial probity. Broadly the provisions of

different bills empowered the Lokpal to investigate corruption cases against Government political

functionaries at the highest level in the Central government.

Essential features of the Lokpal Bill 2001 are:

Objective is to provide speedy, cheaper form of justice to people.

Members: Lokpal is to be a three member body with a chairperson who is or had been a chief

justice or judge of the Supreme Court; and its two other members who are judges or chief justices

of high courts.

Appointment: The chairperson and members shall be appointed by the President on the

recommendation of a committee consisting of the following persons. (a) The Vice-President

(Chairman) (b) The PM (c) The Speaker of LS (d) Home Minister (e) Leader of the House, other

than the house in which PM is a member (f) Leaders of Opposition of both the houses.

Independence of the Office: In order to ensure the independence of functioning of the august

office, the following provisions have been incorporated.

be made on the recommendation of a committee.

b. The Lokpal is ineligible to hold any office of profit under Government of India or of any state, or similar

such posts after retirement.

c. Fixed tenure of three years and can be removed only on the ground of proven misbehaviour or

incapacity after an inquiry made by CJI and two senior most judges of SC

Lokpal will have its own administrative machinery for conducting investigations.

Salary, allowances etc of Lokpal is to be charged on the Consolidated Fund of India.

Jurisdiction of Lokpal: The central level political functionaries like the Council of Ministers including the Prime Minister, the Members of Parliament etc.

He can not inquire into any allegation against the PM in relation to latter‘s functions of national security and public order.

Complaints of offence committed within 10 years from the date of complaint can be taken up for investigation, not beyond this period.

Any person other than a public servant can make a complaint.

The Lokpal shall complete the inquiry within a period of six months.

The Lokpal has the power of a civil court to summon any person or authority.

He can order search and seizure operations.

After investigation; the ombudsman can recommend actions to be taken by the competent authority.

A number of safeguards have been taken to discourage false complaints or complaints of malafide intent.

He shall present annually to the President the reports of investigation and the latter with the action take report has to put it before the both houses of parliament.

It may be noted that the Lokpal is to investigate cases of corruption only, and not maladministration.

Group of Ministers (GoM) headed by External Affairs Minister Pranab Mukherjee was entrusted with the

work of going into the Bill in 2005.

There is a debate whether the speakers and chairpersons of the houses or the committees of the houses

(like the Ethics Committee in Parliament) should be vested with powers to refer cases of MPs and MLAs

to the Lok Pal.

Why Lokpal Bill has not been passed in the last more than 4 decades:

Reasons for the delay in enactment of the Bill centre around lack of consensus on the following

Whether the office of the Prime Minister be brought under the purview of Lokpal

Whether the Lokpal should have its own investigation machinery, or it should depend on the

existing ones

Whether proceedings should be held in camera or otherwise

Whether the recommendations should he binding or not

NCRWC

The National Commission to Review the Working of Constitution (NCRWC)2000-2002- in its report

submitted in 2002 stressed the need to enact legislation on Lokpal. It recommended that the Constitution

be amended to incorporate a provision making it obligatory on the state governments to set up the

institution of Lokayukta.

Second ARC and Rashtriya Lokayukta

The second Administrative Reforms Commission (ARC) set up in 2005 recommended that the Lokpal be

given a constitutional status and renamed the ―Rashtriya Lokayukta.‖ In its fourth report on ―Ethics in

Governance,‖ (2007) the Commission recommended steps to bring about greater transparency and

accountability in governance at all levels and root out corruption

For enforcing ethical conduct in high places, the report recommended that the Rashtriya Lokayukta‘s

jurisdiction be extended to all Union Ministers (except the Prime Minister), all Chief Ministers, all those

holding public office equivalent to the rank of a Union Minister, and MPs.

The Rashtriya Lokayukta should be headed by a retired Supreme Court judge, have an eminent jurist as

member and the Central Vigilance Commissioner as the ex-officio member.

The reasons for excluding the Prime Minister are

The Prime Minister is accountable Parliament and on his survival depends the survival of the

Government. If the Prime Minister‘s conduct is open to formal scrutiny by extra-parliamentary authorities,

it will erode the Government‘s viability and Parliament‘s supremacy is in jeopardy.

Any enquiry into a Prime Minister‘s official conduct by any authority other than Parliament would severely

undermine the Prime Minister‘s capacity to lead the Government. Such weakening of the Prime Minister‘s

authority would surely lead to a serious failure of governance and lack of harmony and coordination, and

would severely undermine public interest.

However, the counter argument is that if the Prime Minister is included in the ambit of the Rashtriya Lok

Ayukta it will enhance the credibility of the institution.

Corruption and maladministration

Corruption includes bribery, extortion, cronyism, nepotism, patronage, graft, and embezzlement.

Maladministration includes:

• delay

• incorrect action or failure to take any action

• failure to follow procedures or the law

• failure to provide information

• inadequate record-keeping

• failure to investigate

• failure to reply

• misleading or inaccurate statements

Ques. 1 : The debate over Lokpal and Lokayuktas has spanned over four decades without any

conclusion. In this context trace the evolution of the Lokpal in India.

Ans. Administrative Reforms Commission (ARC) 1966-68 under the Chairmanship of Shri Morarji Desai

recommended a two-tier machinery, namely, Lokpal at the Centre and one Lokayukta each at the State

level for redressal of people‘s grievances.

The first Lokayukta institution was established in the State of Orissa in the year 1970 ‗There after, this

institution was established in different States in different years namely: Maharashtra (1972), Bihar (1974),

Uttar Pradesh (1977), Madhya Pradesh (1981), Andhra Pradesh (1983), Himachal Pradesh (1983),

Karnataka (l984), Assam (1986), Gujarat (1988), Delhi (1995), Punjab (1996), Kerala (1998),

Chhattishgarh (2002), Uttaranchal (2002) and West Bengal (2003) and Haryana (2004).

Kerala State has an Ombudsman for Local Self Government institutions like Panchayaths, Municipalities

and Corporations. He can enquire/investigate into allegations of action, inaction, corruption and mal

administration. A Retd. Judge of the High Court is appointed by the Governor for a term of 3 years. The

appointment is made under the provisions of the Kerala Panchayat Raj Act.

Lokayukta laws are in force in seventeen States today.

However the power, function and jurisdiction of Lokayuktas are the not uniform in the country. In some

states it has been applicable to all the elected representatives including the CM. in some other states

legislators have been kept out of his purview. In some states, Lokayuktas have not been provided with

their independent investigative machinery making them dependent on the government agencies

infrastructure is inadequate and so is staff.

In some states, the Lokayuktas have overcome the problems and worked well. In Karnataka, especially,

the Lokayukta, despite small budgets and limited authority, has emerged effective, visiting government

offices regularly and proactively examining corrupt practices. Here too, however, MLAs remain beyond his

jurisdiction.

The issues with reference to Lokayukta are:

Time bound installation of Lokayukta institution

Providing it with adequate infrastructure

Providing it with an independent investigative agency

Giving it scope that includes the highest government functionaries— political and administrative

Empowerment of the Lokpal/Lokayuktas to facilitate and become an effective instrument of clean

and transparent governance

Methodology of implementation of recommendations of Lokpal/Lokayuktas whether they should

be binding etc.

NATIONAL

A new ‘freedom’ awaits tribal groups

AARTI DHAR SHARE · PRINT · T+

A three decades-old official order, issued for restricting targeted sterilisation of the primitive tribal

groups (PTGs) in Chhattisgarh to check their dwindling numbers, appears all set for a re-look. This

follows a Planning Commission directive to the State government to issue clarificationsto ensure that

desirous PTGs will not be denied sterilisation facilities.

“It appears that the order has been construed as a blanket restriction on the PTGs, thereby denying

them the facility,” Planning Commission Secretary Sindhushree Khullar has written to the

government, following a representation by health activists.

The order was issued on December 13, 1979 by the undivided Madhya Pradesh government during

the time when targets were set to achieve population control. However, an exemption was made for

26 blocks, which had a high population of PTGs, now re-named Particularly Vulnerable Tribal

Groups (PVTGs), as the infant mortality rate was very high in the tribal areas and their numbers

were fast decreasing. These groups are Behor, Pahari Korvas, Abhujmadias, Kamar and Baiga.

While the order said an exception should be made for tribal communities whose population was

either stagnant or was decreasing and that they should have access to other contraceptives if they

required, it was construed as a total ban on sterilisations for these groups and has been implemented

as such since then.

The order, nevertheless, said if anyone insisted on undergoing sterilisation, he/she should be

provided the services upon permission from the Block Development Officer.

“The State government shall take a call if we have evidence that the reason for which the Particularly

Vulnerable Tribal Groups are sought to be protected through the ban on irreversible interventions —

namely decline in population — is no more valid,” Chhattisgarh Chief Secretary Sunil Kumar told The

Hindu . “In any case, to the best of my knowledge there is no ban on practice of other methods like

the use of contraceptives, if the PVTGs so choose to space births.”

Rights violation

However, Sulakshana Nandi of the Public Health Resource Network, which took up the issue as a

violation of women‟s reproductive rights, said studies showed that the fertility rates of these groups

were the same and even higher than the rest of the population. But, their mortality rates were several

times more than others.

“So, instead of trying to decrease the number of deaths in these communities, the government chose

to make them have more children. So now the PTGs, along with dealing with the destruction of their

traditional livelihoods, poverty and lack of access to services, have to struggle with large families

which have been forced on them,” she explained.

Nearly a fourth of all LPG connections are fake

SUJAY MEHDUDIA

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Subsidy leakage estimated at Rs. 12,000-15,000 cr annually

Nearly a fourth of all domestic cooking gas connections in the country are fake. The government has

unearthed as many as three crore “ghost” domestic cooking gas connections (out of a total of 14

crore) following the launch of the transparency portal by the Petroleum Ministry. These connections

caused a subsidy leakage of about Rs 12,000-15,000 crore every year which will now be plugged

saving precious money for the government. Assuming an average consumption of 7.5 cylinders per

connection every year, there has been a diversion of more than 22 crore domestic subsidised

cylinders for commercial purpose every year.

„Tip of the iceberg‟

“The country today has around 14 crore LPG connections and nearly one-fourth connections have

turned out to be fake. This is only the tip of the iceberg. Further efforts are on to detect more such

fake connections. This whole game of deceit was being indulged in mostly by dealers,‟‟ a senior

government official said.

In Delhi, a 14.2 kg domestic LPG cylinder costs Rs. 399 and a 19 kg commercial cylinder costs Rs.

1,536.

The huge difference in the price of domestic LPG vis-à-vis commercial/auto LPG is one of the main

reasons for pilferage of domestic LPG. It has also been seen that the domestic cylinder is used with

industrial burners by using a spring loaded fitting which allows unrestricted flow of LPG vapour for

commercial burners or even for use in automobiles.

“The recent drive has brought to fore the corruption practices adopted by the dealers who issued

majority of these fake connections. They were issuing cylinders for these “ghost connections‟‟ and the

same were being diverted for commercial use by charging money equivalent to a commercial LPG

cylinder,‟‟ sources said.

Preventing pilferage

The oil industry has been looking for a device which can be installed on domestic cylinders so that

the pilferage of LPG from domestic cylinders could be prevented. The device is proposed to have the

provision to restrict the flow of LPG so that it becomes unviable to use domestic cylinders for

commercial burners/auto LPG.

A recent drive by Karnataka government, revealed that more than one in four domestic LPG

connections in the State were fraud. It had uncovered over 24 lakh fake domestic gas connections

among 79 lakh in the State.

Cauvery panel asked to study issues

J. VENKATESAN

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Asks Karnataka counsel to complywith CMC recommendations The Supreme Court on Tuesday directed the Cauvery Monitoring Committee (CMC), which is

meeting here on Wednesday, to examine all questions raised by Tamil Nadu and Karnataka and

make appropriate recommendations.

A Bench of Justices D.K. Jain and J.S. Khehar also recorded an undertaking from senior counsel Fali

Nariman, appearing for Karnataka, that the State would comply with the recommendations which

might be made by the CMC in letter and in spirit.

Earlier senior counsel C.S. Vaidyanathan, appearing for Tamil Nadu, said that as per the interim

award of the Cauvery Water Disputes Tribunal the deficit as on October 26 was 116.8 tmcft and as

per the distress-sharing formula, the deficit was 42 tmcft. But the CMC did not take any decision on

shortfall in water releases, nor was it deciding on the distress-sharing formula.

Counsel said the Water Resources Secretary on October 25/26 wrote to the State Chief Secretary,

stating shortfall of receipt of water by Tamil Nadu during the southwest monsoon was an issue

before the Supreme Court and the matter was sub judice. Mr. Vaidyanathan wanted the court to

direct the CMC to consider all issues and evolve the distress-sharing formula.

During the last hearing on October 12, the court questioned Karnataka‟s action in releasing 3,000

cusecs on some days and increasing the quantity over and above the stipulated 9,000 cusecs on some

other days. “It might result in problem as some areas may be flooded or submerged because of the

excess releases”, the court said.

Clarifying the position, Mr. Nariman said the water released would reach only the Mettur reservoir,

irrespective of the quantum released by Karnataka on a particular day, and it would not have any

impact in Tamil Nadu. For, the release of water to the Cauvery delta was done by Tamil Nadu. He

said cumulatively Karnataka had complied with the directions on release of water.

Justice Khehar intervened and observed, „What is clear to us is it is very difficult to decide this

problem.” Mr. Nariman agreed and said, “Every single political party in the respective States takes a

particular line.” Justice Jain retorted in a lighter vein, “It is heartening to note that at least on one

issue there is no politics.” Justice Khehar asked Mr. Nariman to use his good offices with Karnataka

to resolve the issue to the satisfaction of both sides.

Even as Mr. Vaidyanathan disputed Mr. Nariman‟s assertion that cumulatively total releases had

been maintained, Justice Jain told counsel for the parties: “First let us concentrate on some interim

arrangement. Since the CMC is meeting tomorrow [Wednesday], we will clarify that CMC can go into

all issues.”

In a brief order, the Bench said: “Counsel for TN and Karnataka stated that since the CMC is meeting

on October 31, the hearing on the applications may be deferred to await its recommendations.

Counsel for TN has placed before us a letter written by the Water Resources Secretary to the State

Chief Secretary that the issue of shortfall of receipt of water by TN is an issue before the Supreme

Court and is sub judice. Counsel says the CMC may be directed to go into all issues.”

Mr. Nariman intervened and told the court that the question of shortfall in receipt of water by Tamil

Nadu was not sub judice as it had been conclusively decided by the Cauvery River Authority headed

by Prime Minister Manmohan Singh.

The Bench then directed the CMC to examine all questions raised by both States and make its

recommendation. While posting the matter for further hearing on November 26, the Bench made it

clear that it would be open to both States to seek clarification from the court at an appropriate stage.

CMC did not take any decision on shortfall in water releases: TN

TN disputes Karnataka’s assertion that cumulatively total releases maintained

INTERNATIONAL

Sandy wreaks havoc on east coast

NARAYAN LAKSHMAN

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17 killed as hurricane makes landfall in New Jersey

Up to 17 people were reported dead and millions left without electricity on Tuesday morning, as

residents of the U.S. East Coast awoke to confront the extensive destruction wreaked overnight by

hurricane Sandy.

The hurricane made landfall in New Jersey on Monday night with sustained, 130-kmph gusts,

leading to six million homes losing power.

New York City took most of the pounding, with major damage to its subway system and financial

district remaining shuttered for a second day. However, the fatalities occurred across seven States.

President Barack Obama had declared an emergency in the District of Columbia, Massachusetts,

New York, Connecticut, Pennsylvania, Maryland, Rhode Island and New Jersey.

Mr. Obama also declared a state of “major disaster” in New York City, New Jersey and Long Island,

which, along with the emergency declaration, allows for federal assistance to supplement cities‟

efforts to provide temporary housing and repairs, low-cost loans to cover uninsured property losses,

and other disaster recovery measures.

New York City had a post-apocalyptic appearance with debris-littered streets, a damaged crane

hanging limply above a 90-storey building, and blocked bridges and subway tunnels. According to

reports, the American Red Cross estimates that approximately 11,000 people spent Monday night in

258 shelters across 16 States.

However, winds dropped by Tuesday morning and Sandy, reclassified as a post-tropical cyclone after

landfall, was expected to take a northwards path towards Canada later in day and bring heavy

snowfall along its path.

The hurricane also forced an abrupt pause in the full-paced campaigns for next week‟s presidential

election.

Addressing media at the White House, Mr. Obama had said: “I am not worried at this point about the

impact on the election. I‟m worried about the impact on families, and I‟m worried about the impact

on our first responders. I‟m worried about the impact on our economy and on transportation. The

election will take care of itself next week.”

The campaign team of Republican nominee Mitt Romney said they would be moving forward with a

planned event in Ohio but that its focus would be storm relief.

Nepali parties inch back to poll option

PRASHANT JHA SHARE · PRINT · T+

Differences persist over unity government to hold polls Nepali parties have formally resumed their negotiations to determine the political roadmap after a

long festival break. While they have been swinging between two options, of either holding fresh

elections for a new Constituent Assembly (CA) or reviving the old CA to promulgate a constitution,

the momentum has shifted clearly in favour of fresh polls.

In the past week, Maoist chairman Pushpa Kamal Dahal „Prachanda‟ put forward a proposal to the

Nepali Congress (NC) and Communist Party of Nepal (Unified Marxist Leninist). As the “best

option”, Maoists suggested promulgating a constitution incorporating all issues agreed upon before

May 27, when the CA expired, and leaving contentious issues for the next elected Legislature-

Parliament. The proposal added, “If no understanding evolves on the above-mentioned solution, or

is not possible, there is no other option than to go for fresh elections.”

NC president Sushil Koirala and UML chairman Jhalanath Khanal have categorically rejected the CA

revival option. A group of former Supreme Court Chief Justices warned the Prime Minister that CA

revival to promulgate the statute would be unconstitutional. President Ram Baran Yadav too has

spoken in favour of fresh polls.

Major differences, however, persist between the parties on the question of government leadership.

While the Maoists have said Prime Minister Baburam Bhattarai should lead a unity government to

hold polls, the opposition has made it clear that this would not be acceptable. “We will not accept

either a budget or elections from this government. A new consensus government should work out a

package deal on polls, and constitutional process to hold elections,” said former Premier and UML

leader Madhav Kumar Nepal. The Maoists have said they will not accept the leadership of the NC,

and Mr. Prachanda has floated the idea of a “neutral figure” leading the election government as a

compromise.

Agreement on election system yet to be reached

EC: Political deal must by November-end for next summer elections

India-U.S.-Japan meet rankles China

ANANTH KRISHNAN

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Chinese state media outlets and strategic analysts have expressed wariness at the India, Japan and

the U.S. trilateral meet held in New Delhi on Monday describing it as aimed at exerting pressure on

China over its regional ambitions.

The Communist Party-run Global Times , a widely-read tabloid known for its nationalistic views,

said in an editorial on Tuesday that Japan — embroiled in a dispute with China over East China Sea

islands — was seen as driving the trilateral initiative, being the “most anxious” of the three countries

about China‟s rise.

The newspaper added that it believed China‟s relations with India were, in comparison, on a better

footing.

“Japan is causing problems for China, but it is not the country‟s foremost worry,” said the editorial.

“China has some hopes of carrying out strategic cooperation with India. If Asia falls into chaos

because of how to deal with China, the result will be good for nobody.”

The newspaper said the U.S. was “trying to ensnare China in the Asia-Pacific region”, even as the

business community in Washington was becoming increasingly “integrated” with China. “The U.S.

often holds an ambiguous strategy on China. It seems Washington hasn‟t made it clear how it should

deal with China‟s rise.”

Monday‟s talks, according to media reports, focused on maritime security issues, and did not

explicitly discuss the three countries‟ relations with China besides their common interests in

ensuring the freedom of navigation in the disputed South China Sea. The trilateral meeting was the

third of its kind, following the first round in Washington in 2011 and a second in Tokyo.

“India a diversion”

According to Su Hao, director of the Asia-Pacific Research Center at China Foreign Affairs

University, Tokyo was “using India to create a diversion to the west of China” amid ongoing tensions

over the disputed Diaoyu or Senkaku islands in the East China Sea. Mr. Su told the Global Times in

an interview that India had “piled pressure on Beijing hoping to gain from the tensions”.

“However, China didn‟t soften its stance over the border issue. As a result, India is trying to keep up

the pressure,” he said.

In another news report titled “Trilateral talks „target‟ China”, the Global Times noted the recent

consultations between India and Japan on diplomatic and defence matters and the joint naval

exercises.

Shi Yinhong, the head of the Centre for American Studies at Renmin University, was quoted as

saying while the trilateral talks would place “growing strategic pressure” on China‟s foreign policy,

the three countries themselves had “great divergences as to their individual their priorities, with

India more focused on South Asia, for instance”.

Scotland Yard up for sale

HASAN SUROOR

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Scotland Yard could soon disappear from London‟s tourist map as the cash-strapped Metropolitan

Police Service (Met) is considering selling off its historic headquarters in Victoria Street to raise

money.

The surprise move, announced on Tuesday, prompted comparisons with impoverished “nabobs” of

yesteryears forced to pawn the family silver to get through hard times. One senior police officer

likened it to losing the Crown Jewels.

Officially known as New Scotland Yard and home to the Met for more than half a century, it derives

its name from a street called Great Scotland Yard, the site of the original Met headquarters. Its

revolving blue neon sign, regarded as one of London‟s most recognisable sights, apocryphally does

14,000 revolutions a day. If the plan,goes ahead, the Met will move to a smaller building nearby;

though it is not clear whether it will carry the New Scotland Yard sign with it.

Sweeping budget cuts

The move, forced by sweeping anti-recession budget cuts ordered by the Mayor‟s office, is expected

to help the Met save £500 million over the next two and a half years.

John Tully, chairman of the Metropolitan Police Federation, said it was “regrettable” that “an iconic

building like New Scotland Yard is going to bite the dust”.

Announcing the plan, Met‟s deputy commissioner Craig Mackey said it was “an expensive building to

run”.

“New Scotland Yard costs £11 million a year to run and we now need to invest over £50 million into

it,” he said.

The move came days after another of London‟s tourist landmarks — the 100-year-old Admiralty Arch

on the Mall just yards from Buckingham Palace — was sold to a Spanish investor for £60 million to

build a luxury hotel. Nothing, critics said, seemed safe as the government pressed ahead with its

controversial austerity policy to beat the recession.

Khartoum attack escalates Iran-Israel covert war

ATUL ANEJA

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The covert war between Iran and Israel, being fought along a broad front, escalated on Tuesday with

Tehran again drawing international attention to the aerial bombardment of a weapons

manufacturing unit in the Sudanese capital, Khartoum.

On Tuesday, Iran‟s Foreign Ministry spokesman Ramin Mehmanparast slammed international

organisations and western powers for being silent about Israel‟s “aggressions against regional

countries”.

Sudan‟s Information Minister Ahmed Belal Osman had on Wednesday accused Israel of using its

warplanes to attack the Yarmouk Complex where weapons were being manufactured. Two people

died in the attack.

Analysts say the alleged strike by Israel, which Tel Aviv has neither confirmed nor denied, contained

a bigger message for Iran. If Israeli planes could target a facility 1,900 km away with no one raising

an alarm, they had the ability to strike Iranian nuclear facilities at Fordo, which is around 1,600 km

away. After the strike, sections of Israeli media are talking about their country‟s advancement in

mid-air refuelling that allowed their planes to travel such a long distance undetected.

The Iranians are fuming about the complicity or incompetence of countries in the region which

enabled the suspected Israeli flights to pass through their airspace unscathed as they headed towards

Khartoum. “The regional countries must be vigilant and not allow their airspace [to be used] for such

crimes,” observed Mr. Mehamanparast.

The Sudanese side raised the principle of national sovereignty, when it urged the United Nations

Security Council to condemn Israel for bombing the factory.

The Iranians also rejected the allegation of connivance between Khartoum and Tehran in building

weapons. Israeli media have alleged that the factory was being used to build additional stocks of the

Iranian Shihab missile that has the range to attack Israel. Mr. Mehmanparast rubbished the notion,

saying Israel “usually fabricates such excuses to cover up the crimes it commits” .

Sending a strong message of support for Sudan, Iran on Monday docked two of its warships — the

helicopter carrier Kharg and destroyer Admiral Naqdi — at a Sudanese port on the Red Sea.

Observers say the Khartoum attack has a larger context. It was meant as an equaliser to the recent

demonstration by Iran of its ability to penetrate Israeli airspace — highly protected by an array of

radars — undetected using one of its drones flown by Lebanese ally Hizbollah. The bold intrusion

raised a storm in Israel, whose unrivalled technological superiority seemed to have been suddenly

dented. Media reports suggested the drone may have filmed Israel‟s crown jewel — the Dimona

nuclear complex.

Ismail Kowsari, a prominent Iranian lawmaker, breathed fresh life into the incident by alleging that

Iran was in possession of pictures of Israeli “forbidden sites”. “These drones transmit the pictures

online,” said Mr. Kowsari on Monday as quoted by Iran‟s semi-official Mehr news agency. Mr.

Kowsari‟s assertion appeared to warn Israel that Iran was equipped to target specific Israeli sites. He

also said Hizbollah was “definitely” equipped with more sophisticated drones.

In another round of shadow-boxing, Iran began a two-day ground-and-air military exercise, which

involves paratroopers, near the Iraqi border in the west. These manoeuvres, though on a much

smaller scale, may have been timed with the largest-ever war games that Israel and the U.S. began on

Monday. Iran has also begun to engage the Israel-.U.S combine in cyberspace, with a virus —

apparently designed by Iran — infecting in August, an array of computers of Aramco, the oil giant

belonging to Saudi Arabia, a top Washington ally.

Factory was building Iranian missiles: Israeli media

Iran claims drone captured images of Israeli bases

India-Pak cricket series cleared

SANDEEP JOSHI

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The Home Ministry on Tuesday said it has cleared the Pakistan cricket team‟s India visit later this

year after detailed discussions with the Board of Control for Cricket in India (BCCI) officials on

issues related to security and visas for fans who will be visiting for the limited-overs series.

“We have discussed all security aspects… the tour is on,” BCCI senior official and Union Minister

Rajiv Shukla told journalists here after the Indian cricketing body‟s delegation met Union Home

Secretary R.K. Singh to discuss modalities of the India-Pakistan series.

The limited-overs series is likely to begin on December 2012 and continue till January 2013.

The two teams will play three one-day internationals and two Twenty-20 international matches. The

ODI matches are likely to be played in Chennai, Kolkata and New Delhi.

India, U.S., Japan talk cooperation

SANDEEP DIKSHIT

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Senior officials from India, U.S. and Japan discussed trilateral cooperation in maritime security and

a route through middle or north of Myanmar leading up to Hanoi for over five hours on Monday.

The third trilateral which met till late in the night also exchanged proposals on doing projects

together in Africa as well as cooperating on the economic side in Afghanistan with reliable sources

asserting that “China was not really discussed in great detail except as part of the region.”

With this meeting, the three countries completed a cycle of talks that began with the first meeting in

Washington in December last year followed by the next one in Tokyo this April.

In the area of maritime security, they touched upon some specific areas of cooperation which will

fructify in the next cycle of talks that will begin after the U.S. Presidential elections are over and the

next administration has settled down.

The trilateral began with each side giving a strategic overview of the Asia Pacific. While presentations

by India and the U.S. covered a wide swathe from the Gulf of Aden to the South China Sea, the

Japanese briefing was narrower with the focus primarily on its dispute with China over the Senkaku

islands.

Discussions on Myanmar were of great interest to India. While India has taken up a trilateral

connectivity initiative with Myanmar and Thailand, this meeting touched on a route through upper

Myanmar that would lead into Vietnam. Discussions were of a perfunctory nature and are likely to be

aired when Prime Minister Manmohan Singh meets his counterparts from South East Asian

countries in Phnom Penh after a fortnight.

While the U.S. and India have already taken the first steps to join hands in select African countries

and India has been raising the issue bilaterally with Japan, the trilateral appreciated India‟s solo

efforts in the continent and felt all sides could collaborate on some projects to ensure their money

was better spent. Sources insisted that since all three countries were active in providing economic

assistance to Afghanistan, discussions about the country mainly revolved around economic issues.

Briefing newspersons, Ministry of External Affairs spokesperson Syed Akbaruddin said officials also

deliberated on the East Asia summit and Association of South East Asian Nations the (Asean). All

three countries along with China, South Korea, New Zealand, Australia and Russia are dialogue

partners of the 10-member Asean.

The three countries have completed a cycle of talks that began in Washington in

December 2011

Officials also deliberated on the East Asia summit and the Association of South East

Asian Nations

India, U.K. amend convention on avoidance of double taxation

HASAN SUROOR

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India and the United Kingdom on Tuesday signed a protocol amending the 1993 bilateral convention

on avoidance of double taxation and prevention of fiscal evasion related to taxes on income and

capital gains.

The protocol, signed by India‟s High Commissioner Jaimini Bhagwati and David Gauke, Exchequer

Secretary to the U.K. Treasury, streamlines the provisions related to partnership and taxation of

dividends in both the countries.

The Indian High Commission said in a statement here that the amended protocol would provide tax

stability to the residents of the two countries, and facilitate mutual economic cooperation besides

stimulating flow of investment, technology and services between the two countries.

“The protocol incorporates in the convention, provisions for effective exchange of information

between the tax authorities of the two countries in line with latest international standards, including

exchange of banking information and supplying of information irrespective of domestic interest. It

now also provides for sharing of information to other agencies with the consent of the supplying

state,‟‟ the statement added.

BUSINESS

We will „walk alone‟ if need be: Chidambaram

ASHOK DASGUPTA

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Keeping key policy repo rate unchanged,RBI has belied his expectations

That Reserve Bank of India Governor D. Subbarao and Finance Minister P. Chidambaram are not on

the same page on the growth-inflation dynamic has been known for months now. But the sharp

differences in perception came to the fore on Tuesday when the RBI, despite the government‟s fiscal

consolidation road map unveiled a day before, chose to keep the key policy repo rate unchanged in

view of high inflation and Mr. Chidambaram decided to “walk alone” to face the challenge of growth.

“Growth is as much a challenge as inflation. If the government has to walk alone to face the challenge

of growth, then we will walk alone,” said an apparently upset Finance Minister in his comments to

the apex bank‟s second quarter policy review, an event that both India Inc. and the markets had been

eagerly looking forward to, for its announcement on easing interest rates to boost investor

sentiments and spur growth.

At his press conference on Monday to unveil the five-year fiscal consolidation plan marking

acceptance of the Kelkar Committee recommendations, Mr. Chidambaram made it abundantly clear

that he would like to see reciprocal action on the part of the RBI by easing interest rates and working

in tandem with the government to push growth.

“Well, I am making the statement so that everybody in India acknowledges the steps which we are

taking. And also acknowledges the government is determined to bring about fiscal consolidation.

And I sincerely hope that everybody will read the statement and take note of that...” he had said

when queried on the timing of his announcement.

RBI may be able to ease interest rate only in January: Rangarajan

Need to push growth is little higher on agenda than the concern about inflation:

Ahluwalia

RBI leaves policy rate unchanged, cuts CRR

OOMMEN A. NINAN

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The central bank releases Rs.17,500 crore into the system The Reserve Bank of India (RBI), on Tuesday, kept the indicative policy rates unchanged even while

reducing the Cash Reserve Ratio (CRR) — the portion of deposits that banks keep with the central

bank — by 25 basis points from 4.5 per cent to 4.25 per cent. This is expected to release liquidity to

the tune of around Rs. 17,500 crore into the banking system.

This reduction will be with effect from November 3.

“In reducing CRR, the Reserve Bank intended to pre-empt a prospective tightening of liquidity

conditions, thereby keeping liquidity comfortable and supportive of growth,” said D. Subbarao,

Governor, RBI, while announcing the review of its monetary policy for 2012-13.

However, the RBI revised downwards the projection of GDP growth for 2012-13 from 6.5 per cent to

5.8 per cent. The Governor said that industrial outlook remained uncertain. Further, he said that the

RBI was concerned about the surging Non-Performing Assets (NPAs) of banks. “NPAs are not

alarming but disturbing,” he said. The apex bank hiked banks' provisioning requirement to 2.75 per

cent from the existing 2 per cent on restructured standard loan accounts.

The Governor said that systemic liquidity deficit had been high because of several factors - the wedge

between deposit and credit growth, the build-up of Government‟s cash balances from mid-

September, and the drainage of liquidity on account of festival-related step-up in currency demand.

However, Dr. Subbarao felt, “the liquidity situation will be comfortable for next few months.”

He said the present CRR cut would improve liquidity, helping banks to cut lending rates further.

The central bank preferred not to reduce the policy rates as it was not seeing easing of inflation in the

near future. Inflation turned up again in September, reflecting a partial pass-through of adjustment

of diesel and electricity prices, and elevated inflation in non-food manufactured products.

“It is critical that even as the monetary policy stance shifts further towards addressing growth risks …

the objective of containing inflation and anchoring inflation expectations is not de-emphasised,” he

added.

“In conjunction with the fiscal and other measures recently announced by the Government, the

Reserve Bank‟s monetary policy stance should work towards arresting the loss of growth momentum

over the next few months,” said Dr. Subbarao, adding, “yesterday‟s statement by the Finance

Minister reaffirming commitment to fiscal consolidation will open up space for monetary policy to

restrain inflation and support growth.” As under-pricing in several products was corrected as part of

the fiscal consolidation process, suppressed inflation was being brought into the open, he said. “This

correction is necessary and important. Nevertheless, it will result in higher inflation readings,” he

added.

The RBI also raised projection for headline WPI inflation for March 2013 to 7.5 per cent from 7 per

cent indicated in July. ``The baseline scenario suggests a reasonable likelihood of further policy

easing in the fourth quarter of this fiscal year,‟‟ he said.

India Inc left disappointed

SPECIAL CORRESPONDENT

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Big industrial houses, on Tuesday, expressed disappointment over the Reserve Bank of India‟s move

to keep the repo rate unchanged.

“I am disappointed that the repo rate has not changed. Cut in Cash Reserve Ratio (CRR) is a welcome

decision. It would have been much better if the repo rate was cut as well. You see the market has

reacted negatively,” said Adi Godrej, Chairman Godrej Group.

“The RBI should have cut repo rate. I am very disappointed. Banks do not pass on the benefits of

CRR cut to the industry.

This has been their practice. The CRR cut will only benefit the banks and not the industry, which is

suffering from high interest rates and slow demand. Finance minister P. Chidambaram must issue

strict instruction to banks to pass on the benefit of all past CRR cuts to the industry,” said Venugopal

N. Dhoot, Chairman, Videocon Group. “The industry is disappointed that RBI has not acceded to its

request for reduction in key policy rates. It is hoped that RBI will take bold action to accelerate

growth in tandem with recent initiatives taken by the Finance Ministry as it expects inflation to

soften in the fourth quarter of 2012-13,” said Harsh Pati Singhania, Director, JK Organisation.

However, the Confederation of Indian Industry (CII) felt that the cut in CRR would help the liquidity

position. “This also sends a signal that the RBI is softening its stand on the monetary side,” said

Chandrajit Banerjee, Director-General of CII.

“CII also appreciates the position of the RBI on inflation and understands that it is higher than the

comfort level. However, since India does not follow a system of inflation targeting, the RBI has the

freedom to act in order to ensure that growth is provided some traction,” he added.

R. V. Kanoria, President of the Federation of Indian Chamber of Commerce and Industry, said that

the RBI move pointed to the fact that inflation remained a near-term concern for the Central banker.

Ashvin Parekh, National Leader (Global Financial Services), Ernst & Young, said “Inflationary

pressures continue to have a stronger effect on the monetary policy, forcing the regulator to persist

with the wait-and-watch policy.

“While the RBI revised its year-end target for inflation and GDP growth, persistent inflationary

pressures remain in the economy and the current growth inflation dynamics is likely to continue for

another quarter.”

A good prescription

Indrani Dutta reports from Kolkata:

Sanjiv Goenka, Chairman, RP-Sanjiv Goenka Group said: “The RBI has judiciously drawn up a road-

map which should be good for the country. The decision not to change the repo rate, while relaxing

the CRR by 25 basis points is a good prescription when the nation‟s economic health requires

constant monitoring.”

Easy liquidity

Ajay Srinivasan CEO, Aditya Birla Financial Services said, in his statement, that the central bank

focused on maintaining easier liquidity conditions in the system by effecting yet another CRR cut.

Despite a sharp reduction in GDP forecast for the current fiscal, RBI has not yet triggered a rate cut

cycle, in large part due to the heightened core as well as headline inflation, Mr. Srinivasan said.

MORE IN: BUSINESS | Today's Paper

TODAY'S PAPER » SPORT

BARCELONA, October 31, 2012

Messi receives Golden Boot award

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NUMERO UNO:Lionel Messi poses after receiving the European Golden Boot award for the 2011-2012 season on Monday in Barcelona.— PHOTO: AFP

Barcelona forward Lionel Messi was presented with his second Golden Boot award on Monday in

recognition for scoring the most goals in Europe‟s domestic football leagues last season.

The 25-year-old Messi scored a Spanish-league record 50 goals for Barcelona, edging out fellow

Spanish league star Cristiano Ronaldo of Real Madrid by four goals.

Messi dedicated the award to his teammates, with Xavi Hernandez and Carles Puyol present for the

ceremony in Barcelona.

“It is a prize for scoring goals, but without my teammates I couldn't have scored them,” Messi said.

“I share this award with them as I always do. “I don't fight for individual awards, I fight for titles. My

goals are reclaiming the league crown, winning the Copa del Rey and the winning the Champions

League again. Those are my goals, team goals.”

The Argentina international won his first Golden Boot in 2010 for his 34 goals that helped Barcelona

win the league title.

“We won‟t see another player like him, and if we do, it won‟t be for a very long time,” said Barcelona

coach Tito Vilanova.

“It‟s not just for the goals he scores, but for how he sees and understands the game, that is what

makes him so great.

“On Saturday, he ran 50 metres to defend a corner in the 89th minute with a 5-0 lead. Not many

players would have done that.”

Messi has scored 17 goals in all competitions to start this season, and has his sights set on yet another

milestone he is sure to reach very soon.

He is just two goals away from equalling Brazil great Pele‟s feat of 75 goals for club and country in

one calendar year, set in 1958.

“Obviously, it‟s an honour to be close to the numbers of a person who is so important to football,”

Messi said.

“But, again, they are only statistics. “My goal is to win as many titles as I can before the end of my

career.

“I have always been like that. Then I can look back at what I have won and take stock of my career.”

No ball hog

Meanwhile, Messi said he was not a ball hog in an interview published on Tuesday.

“I have never considered myself a ball hog, even if others thought so,” the 25-year-old Argentine

football wonder said in an interview with Spain‟s top selling sports daily Marca .

“But I have also taken those opinions into account to try to improve,” said Messi.

The Argentine is the second-best passer of the ball in the Spanish League so far this season, with four

passes ending in goals, behind only team-mate Cesc Fabregas who made six.

Messi also is the top scorer this season with 13 goals in La Liga, smashing through the 300 goals

mark for his career in just 419 matches.

“My playing style has always been the same. I have never looked for it, but it has been like that since

I was small,” Messi said.

Messi hailed the recent success of Argentina, which now leads its group in the qualifiers for the 2014

World Cup in Brazil with only one defeat, a 1-0 loss to Venezuela.

“What has changed is the results. Winning gives you a lot of confidence and you work differently.

“Winning the World Cup is the greatest.

“And if it‟s in Brazil, even better,” he added.

Messi, who will soon be the father of a son, had a few words for his offspring's future: “He should be

whatever he wants to be.

“When he grows up he will get to know what he wants and what he chooses will be fine for me, for his

mother and for everyone.” — Agencies

TODAY'S PAPER » SPORT

CHENNAI, October 31, 2012

Day-night Tests: ICC has disappointed with its

decision

S. DINAKAR

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The ICC approval to day/night Test and the manner in which this has been done is nothing less than

shocking.

How can the game‟s governing body leave it to the member boards to decide on the type and colour

of the ball to be used for a form of the game as important and prestigious as Test cricket?

ICC‟s principal job — more than conducting tournaments and raking in money — is to lay down rules

for the game that are wafer tight and not experimental in nature.

Colour of the ball

Is the ICC allowing Test cricket to be diluted? Even if it is keen on day-night cricket, the ICC clearly

needs to specify the colour of the ball.

For instance, we could have New Zealand and Pakistan playing a day-night Test with a pink ball and

in another part of the world, South Africa and the West Indies could be duelling it out with a blue

ball.

If this happens, it would trivialise and seriously damage Test cricket. Eventually, the ICC will be held

accountable.

Is it possible for us to visualise Test cricket in daylight played in any ball other than red? Every game

has its own character, its soul.

The idea behind the move is to attract more spectators to Test matches. But then, Test cricket is still

widely followed on television. It quite simply is the pinnacle of the sport.

And there are other ways of ensuring that Test cricket survives and does so in a manner that

underlines its glory.

Spaced out series

The ICC and the member boards should ensure that the Test series are well spaced out and have tour

games before and between the Tests.

It will ensure that the visiting teams will be well prepared for the Tests; this would also result in the

Test matches being better contested.

Hurried tours and brief two-Test series without side games adversely impact the longest form of the

game. Every series must have a context.

If a Test series is well presented with a proper build up, the expectations of the public, consequently,

are gradually raised ahead of a series. There is no reason why such a series should not attract crowds.

Every Test series should be a celebration in itself. Look how well, the Ashes, so well preserved, has

thrived over the years.

Despite ICC stating that England and Australia have been in the thick of things vis a vis preparing for

day/night Tests, one can be sure that the Ashes would never be played at night under artificial lights.

Symbiotic

Test cricket and natural light are symbiotic. Taking on the morning conditions, including the

movement, the natural wear and tear resulting in the formation of cracks on the pitch as the sun

beats down, the players battling exhaustion and match‟s natural progression over five days are some

of the elements that make Test cricket so fascinating.

Even the drama associated with the fading light as one side surges to win and the other strives to

save the match is a key ingredient of a Test. Indeed, these battles have thrown up so many

spellbinding tales that are now a part of the cricketing folklore.

And the differing conditions of a day lend to a game that fine balances the natural elements that is so

critical to a Test. This can go for a toss when one team bats or bowls in the afternoon or evening and

the other does so at night.

Aesthetics and purity

Artificial lights may be par for course in one-day or twenty20 formats where the emphasis is on

pleasing the spectators. Test cricket is about the game‟s aesthetics and purity.

There are several areas in day\night Tests that threaten the game‟s fabric. Spinners, operating with

light coloured balls and under artificial lights, could suffer heavily because of the dew factor at night.

They would find it hard to grip the ball.

In contrast, their counterparts from the opposition might have caused significant damage on the

same surface during the phase of the day when the match was played under natural light. So,

day/night cricket is not entirely fair on both the sides.

Truth to tell, the ICC has disappointed many with its decision.

TODAY'S PAPER » NATIONAL

KOLLAM/THIRUVANANTHAPURAM, October 31, 2012

Kerala issues bird flu alert

SPECIAL CORRESPONDENT

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Truck-loads of poultry from Tamil Nadu and Karnataka turned back at border check posts

The Government Turkey Farm at Kureepuzha in Kollam.— Photo: C. Suresh Kumar

Kerala‟s Animal Husbandry Department on Tuesday issued a red alert in the State following the

outbreak of avian influenza (bird flu) at the Hesaraghatta Farm of the Central Poultry Development

Organisation (CPDO) in Karnataka.

AHD Director K.G. Suma told The Hindu that a ban on the entry of all poultry products had come

into force. The order had been communicated to all the 18 border check posts.

The entry of chicken, eggs, poultry manure and other poultry products stood banned.

The period of the ban was expected to be decided at a high-level meeting convened by Minister for

Animal Husbandry K.P. Mohanan and Minister for Health V.S. Sivakumar.

Following the order, hundreds of truck-loads of chicken and eggs from Tamil Nadu and Karnataka

were denied entry.

The government also banned the entry of visitors to the nine regional poultry farms of the AHD at

Malampuzha, Chengannur, Mundayad (Kannur), Kolani (Idukki), Kodapanamkunnu

(Thiruvananthapuram), Koovapadi (Ernakulam), Chathamangalam (Kozhikode), Manarkkad

(Palakkad) and Athavanad (Malappuram), as well as the turkey farm at Kollam and the duck farm at

Niranom. There is no ban on the sale of poultry from the farms.

The parent stock for the turkey farm was procured from Hesaraghatta prior to 2010. Authorities of

the turkey farm said they had examined the birds and found them to be disease-free.

Private poultry farms in the State have been told to ban visitors and insist on masks and gloves for

employees.

The Commissioner of Food Safety ordered inspections at border check posts, farms and meat shops.

A circular directed district-level officers to seek police help to carry out raids, and submit daily status

reports.

Namakkal upset

Staff Reporter writes from Namakkal, Tamil Nadu: Facing loss of business, the poultry hub of

Namakkal was upset on Tuesday after trucks with eggs and other poultry products heading for

Kerala returned.

“We are recovering from the heavy loss incurred due to feed price escalation and this ban by Kerala

has come as a blow,” president of the Tamil Nadu Poultry Farmers Association R. Nallathambi said.

Industry sources said Kerala was the second largest market for Namakkal eggs, next only to Tamil

Nadu.

Over 19,000 chickens culled

Bangalore Staff Reporter reports:

As many as 19,154 chickens were culled on Tuesday at the CPDO at Hesaraghatta, near Bangalore.

This follows the decision on Monday to cull over 33,000 birds housed at the CPDO after the H5N1,

which was noticed in turkeys last week, spread to chicken resulting in the death of over 200 chickens.

The government has decided to cull all the birds within the one kilometre radius of the CPDO.

On October 25, the Union government notified the outbreak after the institute reported the death of

about 3,600 turkeys. In the last one week, over 250 samples have been sent to the Institute of Animal

Health and Veterinary Biologicals in Bangalore and the High Security Animal Disease Laboratory in

Bhopal. So far, no unusual death of birds has been noticed in the surveillance zone (areas falling

within 10 km radius of the CPDO) or in any part of Karnataka.

The State government has extended the ban on marketing and movement of poultry and poultry

products to and from the surveillance zone till November 15.

TODAY'S PAPER » NATIONAL

NEW DELHI, October 31, 2012

Malicious spam hits Indian users of Skype

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After a malicious spam hit the Indian users of the Internet-based audio-video communicator „Skype,‟

anti-hacking sleuths asked users to remain alert and cautious.

“A malicious spam campaign is on the rise targeting Skype users by sending instant message which

appears to come from friends in the Skype contact list,” said a government advisory to Skype users in

the country.

The Computer Emergency Response Team (CERT) under the Communications and Information

Technology Ministry, the government agency mandated to counter such threats, said the spam

“eventually controls the victim machine by opening a backdoor and communicating to a remote http

server.” “The worm was reported as stealing user credentials, engaging in click fraud activities and

pose as ransom ware,” the agency said. Cyber sleuths have asked Skype users not to “follow

unsolicited web links or attachments in Skype messages and install latest security updates.” — PTI

TODAY'S PAPER » OPINION

October 31, 2012

Pragmatic stance

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The second quarter monetary policy review has further reinforced the Reserve Bank of India‟s

credentials as a pragmatic inflation fighter, not swayed by either market expectations or overt signals

from the Finance Minister favouring a cut in policy rates. The traditional monetary policy dilemma

of supporting growth versus reining in inflation has remained. Growth considerations are behind the

decision to lower the cash reserve ratio (CRR) by 0.25 percentage points — to release Rs.17,500 crore

of primary liquidity — while leaving the repo rate unchanged. Thus over two consecutive policy

statements, the RBI has chosen to influence interest rates through liquidity-augmenting CRR

reductions rather than through the more traditional method of policy rate cuts. The expectation is

that fresh injections of liquidity will induce banks to lower interest rates. A repo rate cut, on the other

hand, might convey the impression that the central bank is loosening its monetary policy

prematurely. In the event, the RBI has done well to emphasise the point that managing inflation and

inflation expectations must remain the core focus of monetary policy, especially when inflationary

pressures have persisted even as growth has moderated. Headline inflation for September has been

at a 10-month high of 7.8 per cent and is expected to ease only by the fourth quarter of the year. Of

particular concern has been the stickiness of core inflation due to supply constraints and the cost-

push effects of the rupee‟s depreciation. The RBI has raised its inflation forecast for March 2013 to

7.5 per cent from 7 per cent indicated in July.

In line with expectations, the RBI has lowered its growth forecast for the current year to 5.8 per cent.

Almost all private forecasters and several international agencies, including the IMF, have already

downgraded India‟s growth prospects. The slowdown is attributed to the worsening global

environment, weak industrial activity and slower than anticipated growth in services. The large

current account and fiscal deficits continue to pose significant risks to both growth and

macroeconomic stability. The RBI has obviously not been swayed by the government‟s recent policy

announcements aimed at attracting foreign direct investment. They might have positively impacted

sentiment, but need to be followed up with concrete action on the ground to revive investment. Much

also depends on how efficaciously the government implements the fiscal consolidation map outlined

by the Finance Minister on Monday, according to which the fiscal deficit is to be contained to within

5.3 per cent of GDP by March 2013 and then to 3 per cent over a five-year period.

TODAY'S PAPER » OPINION

October 31, 2012

Mali on the brink

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The October 12 United Nations Security Council Resolution confirming the possibility, under

Chapter VII of the U.N. Charter, of military intervention in northern Mali is a clear sign of the severe

internal divisions in the country. The resolution requires the regional powers and the Economic

Community of West African States (Ecowas) to work with U.N. Secretary General Ban Ki-moon in

preparing a “detailed and actionable” plan within 45 days, without which the U.N. will not pass a

further resolution authorising intervention. Training and other support from the European Union

and the United States will also aid the proposed force of 3,200, which in any case will not be ready

until the end of the year. Meanwhile the African Union is trying to encourage political engagement;

its Peace and Security Council (AUPSC) has readmitted Mali following the suspension imposed when

a military coup on March 22 deposed the then President Amadou Toumani Toure. The military junta

under Captain Amadou Sanogo gave way to an interim government of national unity under

Dioncounda Traore, and elections are scheduled for the first quarter of 2013.

On the ground, however, regional states have shown little enthusiasm to contribute troops or actually

to take on the formidable task of intervention. First of all, relations between Mali‟s government and

its military are at best fragile. Secondly, the military‟s own justification for the coup, namely the

claim that the civilian government had failed to defeat the secessionist groups in northern Mali, was

itself hollow. The military themselves soon lost the cities of Timbuktu and Gao, and since then

Bamako has lost control of the northern part of the country, an area bigger than France or Texas. The

Islamist group Ansar Dine, which has now merged with Tuareg fighters, has declared northern Mali

an Islamic state, with the approval of al-Qaeda in the Islamic Maghreb (AQIM). Ansar Dine, which

imposes a very rigid form of the Sharia law, has destroyed world heritage sites in areas it controls,

and the International Criminal Court has launched an investigation into allegations of severe

brutality, particularly against women. In addition, weapons left over from the western-imposed

regime change in Libya are flooding into northern Mali, and any military action against the

secessionists will face fierce resistance. Yet it was Ecowas and the Malian government which had

themselves made the initial approach to the U.N.; but with little current prospect of decisive and

concerted action by Ecowas and major neighbours like Algeria, Mali remains likely to descend into a

terrible and catastrophic civil war.

TODAY'S PAPER » OPINION

October 31, 2012

It is business as usual in Pakistan

ANITA JOSHUA

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World over, efforts are afoot to ensure that 15-year-old Malala Yousafzai‟s blood counts for

something. Hollywood actor Angelina Jolie suggested her name for the next Nobel Peace Prize and

an online campaign to advocate her case is being signed up by government representatives in various

countries.

Former British Premier and United Nations Special Envoy for Global Education, Gordon Brown, has

declared that November 10 — a month after the attempted assassination of Malala — will be

observed as „Malala and the 32 million girls day‟ to help realise her dream of educating the 32 million

out-of-school girls across the world.

And, of course, there is pop diva Madonna dedicating a song to Malala and inscribing her name on

her lower back; revealed during a striptease routine at a concert. These are just a few examples but,

ironically, all help build the narrative in Malala‟s home country that she was nothing but a western

agent, out to give Pakistan a bad name.

Consigned to news bulletins

A fortnight after the shooting, it is back to business as usual in Pakistan. Malala is now just a

mention in news bulletins, a face on posters being brought out by civil society organisations in an

effort to keep the issue alive, a hashtag on Twitter … Meanwhile, the might of the state has spoken

through inaction. No doubt, all concerned gave right-sounding statements but, together, they fell way

short of the resolve shown by the young teen in standing up to terrorists.

Malala and her father Ziauddin — who encouraged her to hold her ground in a milieu hostile to

speaking out, especially for women — can be dismissed as being foolhardy, but the question many

are asking is: can Pakistan‟s decision-makers ignore the writing on the wall even now, when children

are being marked for just wanting access to education? Another girl from Swat, 17-year-old Hina

Khan, is also apparently marked — this time on the outskirts of Islamabad — for the same reason.

At the risk of parroting the U.S. “do more” line, many had hoped that the revulsion triggered by

Malala‟s shooting would force the powers that be to abandon their use of terrorism as a tool of

statecraft and “do more” not for Washington‟s sake but for Pakistan‟s own survival.

But even as the platitudes were being served out by Pakistan‟s political and military leadership, the

counter-narrative had begun. No one is quite sure how an operation in North Waziristan got injected

into the mainstream narrative. But this became the expected response to Malala‟s shooting and that

was enough to generate all kinds of conspiracy theories — the sum and substance of which was that

the young girl was an American agent and the whole episode was orchestrated to mount pressure on

Pakistan to pursue Washington‟s agenda.

Now that the International Marxist Tendency has posted a report following the attack that Malala

had attended a National Marxist Youth School in Swat in July, another line of conspiracy theories is

sure to emerge regarding how she was a communist and la-deen (irreligious). Sometimes, these

conspiracy theories are actually inspired by Hollywood flicks for which there is a huge market in

Pakistan despite the widespread anti-Americanism.

Sample this. After Queen Elizabeth Hospital at Birmingham, where Malala is currently undergoing

treatment, put out a detailed bulletin on the nature of her injuries, including the trajectory of the

bullet, people immediately “saw a pattern” straight out of the movies featuring CIA agents. This is

how the theory goes as told by an owner of a restaurant frequented by upwardly mobile children of

Islamabad: “The hospital said Malala was shot at point blank range, still the bullet travelled

underneath the skin along the side of head and neck without penetrating the skull. Only the CIA

could have done such a neat job without actually causing too much damage. The Taliban couldn‟t

have done this.” This, after the Tehreek-e-Taliban Pakistan (TTP) issued not one, not two, but at

least half-a-dozen statements detailing the reasons for trying to kill Malala, and asserting that she

would be targeted again should she survive.

Even as die-hard optimists cried themselves hoarse in the hope that this would be the turning point,

Malala‟s shooting just ended up raising Pakistan‟s ability to absorb brutality by a notch or two. No

doubt the ranks of those anguished by the state of affairs in Pakistan swelled at the sight of the teen

being wheeled in and out of hospitals, but it also brought up close the warped thinking that has come

to dominate the nation‟s mindscape.

Pakistan‟s chattering classes often insist that the silent majority is not radical and this may well be

true. But in their silence, the other side is gaining in strength and getting emboldened. Emboldened

enough for a policewoman at an airport security post to tell a Pakistani woman that her marriage is

not in order because she had married outside the religion to a westerner. Emboldened enough for a

doctor in an Army hospital to insist on prayer as medication when a senior officer‟s wife went to him

with a medical condition. These can be dismissed as stray incidents but their frequency is growing by

all accounts. Together, they reflect a mindset that is no longer peripheral.

Blind to reason

In fact, the entire discourse generated by Malala‟s shooting showed how blind to reason the

apologists are becoming; rather, have become. One of the earliest off the mark was Samia Raheel

Qazi of Jamaat-e-Islami (J.I.). Daughter of former J.I. chief Qazi Hussain Ahmed, she is being held

responsible for a photograph circulating on the Internet showing Malala and her father with former

U.S. Special Representative to Afghanistan and Pakistan, Richard Holbrooke. She tweeted the

photograph with the comment “ Malala Amreeki fauji hukaam ke saath ” (Malala with American

military), insinuating that she was a CIA agent. This photograph was actually from a meeting the

American diplomat had with NGOs after the military had taken control of Swat from terrorists. At

the meeting, Malala was quoted as saying “if you can help us with education, then please do.”

Then there was the usual line of thinking which claimed that the Tehreek-e-Taliban Pakistan was a

creation of a mix of foreign intelligence agencies, predictably the CIA, Mossad and RAW. Of course,

no answers to the counter question why, then, should the TTP be treated with kid gloves.

Not to be left behind, cricketer-turned-politician Imran Khan and his supporters brought in their

choice arguments — that all this would end once the U.S. left the region and holding out an olive

branch was a better option than a military offensive. They completely ignore the historical fact that

the Swat Taliban, an offshoot of the TTP which is being held responsible by Pakistan for the attack on

Malala, pre-dates 9/11 and the U.S. Army‟s overt presence in the region. And that successive peace

deals have only allowed terrorists to consolidate at the expense of the state‟s writ.

In fact, Khan‟s Pakistan Tehreek-e-Insaf (PTI) — riding as it does on its steadfast opposition to the

U.S. presence in the region amid rising anti-Americanism — truly queered the pitch for the political

class as it is wary of upsetting the apple cart ahead of the elections.

As a result, a bid by the government to table a resolution in Parliament calling for action against

terrorism got scuttled by the main opposition party that feels most threatened by the PTI since both

are eyeing the Punjab electorate.

Barring the Muttahida Qaumi Movement and some leaders in the Pakistan People‟s Party and the

Awami National Party, all remained ambivalent in their response — condemning the attack without

naming the TTP which has links to jihadi organisations working within the country. Reports from

Punjab suggest that many mainstream political parties are exploring pre-election tie-ups with some

of these outfits to bag their captive votes.

The military leadership, for its part, lobbed the decision on a North Waziristan operation on to the

political class, literally setting the cat among the pigeons. Although the Chief of Army Staff Ashfaq

Parvez Kayani sought to take ownership of the war on terror earlier this year, nothing in subsequent

months has shown any change in Pakistan‟s Janus-faced policy on terrorism which, today, is

harming the country more than any other.

As the Malala Yousafzai effect fades away, Pakistan’s response to terror is in danger

of slipping into even greater levels of tolerance

TODAY'S PAPER » OPINION

October 31, 2012

For a clean vote in Afghanistan

LOUISE ARBOUR

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AVOID CONTROVERSY:The leadership in Kabul seems to understand that the coming elections will have an impact on the long-term stability and consolidation of democracy.The picture shows votes being counted at Khost in 2010.— PHOTO: AP

As the turning point year of 2014 approaches, Afghanistan faces enormous military and political

challenges. The former are well known: indeed, there is a robust international discussion of what will

happen when U.S. and NATO troops draw down and responsibility for the country‟s security passes

to Afghan forces.

However, the latter — the political transition — receives much less attention, despite being equally,

and possibly even more, important for the future of the country and the wider region.

President Hamid Karzai‟s second term ends in May 2014, and the country will elect a successor.

Demonstrably honest and transparent elections would establish the credibility of the system and

thus make an enormous contribution to political stability. Failure would deal the government of

Afghanistan a major blow.

Judging by the last two elections, the stage seems set for trouble. The 2009 and 2010 polls were

chaotic and controversial at best, outright fraudulent at worst.

The government needs to overcome suspicions of a repeat performance in 2014 with immediate,

credible measures. Clean elections are as crucial to Afghanistan‟s stability as a well-trained army and

professional police. And possibly more so: most governments have difficulty surviving without

legitimacy; few can survive solely on the strength of their security forces.

The country‟s leadership needs to demonstrate this time that elections are honest and well-

organised, and offer all who wished to do so a chance to cast their ballot.

Suggested reforms

The recent report by my organisation, the International Crisis Group, carefully examined the flaws

and problems in the organisation, oversight and supervision of previous elections, and we suggested

technical, detailed fixes for 2014. We talked about the need to reform the Independent Election

Commission (IEC), for example, as well as the importance of making the Electoral Complaints

Commission a permanent body. We said President Karzai should declare a date for the presidentials

as early as possible and resist any temptation to postpone them.

We discussed the role of the Supreme Court, the problems of election IDs and voter registration. We

called for careful forward planning to ensure the security of the elections.

We also pointed out that the government has very little time to make these vital changes. Elections

are due in little more than 18 months. Officials need to move away from circular discussions and

earnest pronouncements and start taking concrete measures to ensure clean elections.

The leadership seems to understand these issues. President Karzai is on record as noting that the

goal of a “stable, self-reliant and democratic Afghanistan” is still far from being achieved. He has

stressed the need for truly accountable national institutions. Late last year he called for the coming

elections to be “transparent, free, and insulated against fraud and interference.” And at the NATO

summit in Chicago last May, he singled out the importance of the coming elections, saying they

would have a “significant impact on the long-term stability and consolidation of democracy in

Afghanistan.”

But talking about it is not enough. The country‟s leadership has to act.

There are some reassuring signs: the day after our report was issued, the IEC promised that the date

of the presidential elections, which has been the subject of much anxious speculation, would be

announced next month [now set for April 5, 2014]. This is an important first step in a long process.

Ultimately, the best guarantee of Afghanistan‟s stability is its ability to ensure the rule of law during

the political and military transition in 2013-2014. If the leadership fails at this, the coming crucial

period will at best result in deep divisions and conflicts within the ruling elite that the Afghan

insurgency will exploit. At worst, it could trigger extensive unrest, fragmentation of the security

services and perhaps even a much wider civil war.

Some possibilities for genuine progress remain — and we have to remain hopeful — but the window

for action is narrowing.

(Louise Arbour is President of the International Crisis Group, www.crisisgroup.org )

The government in Kabul needs to demonstrate that the polls in 2014 will be honest

and well-organised

TODAY'S PAPER » OPINION

October 31, 2012

Victor‟s justice bedevils the new Libya

VIJAY PRASHAD

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OUTRAGED:Libyans register their protest against the various militias in Benghazi inSeptember 2012. —PHOTOS: AP

The death of U.S. Ambassador Chris Stevens in Benghazi, Libya on September 11 has focused

attention once more on the security situation in the country. No doubt, after 42 years of

undemocratic rule it is reasonable to expect a slow transition into normalcy. A new government

elected in July operates without control of its territory, and with institutions that are not yet fully

functional.

The central government based in Tripoli is an island linked to Libya‟s other towns and cities, where

urban militias govern through the armed force of two hundred and fifty thousand fighters. A U.S.

State Department cable from Tripoli to Washington on August 8, 2012 cautions that “the absence of

significant deterrence has contributed to a security vacuum that is being exploited” by various

elements, including former regime elements and Islamist extremists. The “individual incidents have

been organized,” writes the embassy official in this leaked cable, “but this is not an organized

campaign.” Rather, the violent incidents amount to “a confluence rather than a conspiracy.” It was

this confluence of violence that escalated the protest in Benghazi that led to the death of the

Ambassador.

Attempts to investigate the events of September 11 in Benghazi have come to naught. The Libyan

government has not been able to do more than a cursory study of the site. The U.S. team cannot go to

Benghazi, where the security situation remains unsettled. The day that the U.S. investigation team

arrived in Tripoli, three separate militia groups attacked the Rixos hotel, where the General National

Congress is based. Ahmed Abu Khattala, one of the leaders of the Ansar al-Shariah militia, sat down

with journalists in a Benghazi hotel on October 18 to mock the idea of an investigation of the fateful

hours at the U.S. consulate. Abu Khattala suggested that he had close relations with the pro-

government militias, such as the Rafallah al-Sahati Brigade, which was also on site during the

consulate attack. No investigation would take place, he suggested, because there was little that would

be found.

Hanging over the Libyan security situation is the lack of accountability for war crimes during the

February-October revolution of 2011. On May 2, 2012, the Libyan National Transitional Council

granted blanket amnesty to those who committed crimes during the revolution, including murder

and forced displacement. Law 38 (On Some Procedures for the Transitional Period) essentially

allowed the militias the confidence of impunity. It emboldened them to disregard the war crimes

conducted last year, and to consider that their actions in the present will also be similarly forgiven.

The danger of “victor‟s justice” is that it creates a political grammar that affects the new terrain,

allowing the militias institutional support for their lawless behaviour.

Rights report on militias

A new report from Human Rights Watch ( Death of a Dictator: Bloody Vengeance in Sirte , October

2012) details how the main Misrata-based militias ( al-Nimer , Tiger Brigade, al-Isnad , Support

Brigade, al-Fahad , Jaguar Brigade, al-Asad , Lion Brigade, al-Qasba , Citadel Brigade and Ussoud

al-Walid , the Lions of the Valley Brigade) not only conducted extrajudicial assassinations of

Muammar Qadhafi and his son Mutassim, but also killed over 66 prisoners in the Mahari hotel in

Sirte on October 20, 2011. Two NATO air strikes had already killed about 103 members of Qadhafi‟s

convoy (many of them wounded patients from the Ibn Sina hospital, trying to flee the scene of the

battle). Cellphone images and photographs, as well as interviews with survivors, showed the

investigators that the dead were killed in custody. Human Rights Watch‟s investigation is clear that

war crimes had been committed at Sirte. The Misrata chief prosecutor balked at an inquiry, saying

that it would be too “dangerous” to “carry out an investigation in Sirte at the time,” a situation that

seems unchanged.

The Misrata militias are particularly prone to lawlessness. They are accused of the forcible

displacement of the 30,000 dark-skinned residents of the town of Tawergha, and in the cellphone

images from Sirte, their members routinely use racist epithets (“black snake,” for example) against

their prisoners. There has been little attempt to resettle Tawergha.

The Misrata militia has laid siege to the city of Bani Walid, where there has been less enthusiasm for

the new Libya, and whose citizens have been accused of kidnapping and killing Omar Bin Shaaban, a

22-year-old Misratan credited with the murder of Qadhafi. Misrata‟s militias are acting with the

authority of the government, which passed Resolution 7 on September 25 to allow them to go in and

capture those who killed Bin Shaaban. The militias are not constrained to simply go and arrest the

accused. They want to subdue Bani Walid. As Mohammed el-Gandus, a spokesperson for the militias

put it, “If we win this fight, Libya will finally be free.”

The atmosphere of impunity does not only shroud the activities of the militias. The passage of

Resolution 7 and Law 38 demonstrate that the Libyan government has not taken the regime of

human rights seriously. The International Criminal Court (ICC), so eager to enter the conflict in

February 2011, has also taken a back seat. U.N. Security Council Resolution 1970 gives the ICC

jurisdiction over the Libyan theatre at least during the conflict phase; it has utterly failed to honour

these obligations. Furthermore, NATO entered the Libyan conflict to protect civilians in the name of

the human rights regime. Nevertheless, NATO and the Atlantic powers have refused to allow any

evaluation of their use of firepower against Libya with resulting civilian casualties whose numbers

are unaccountable (as I showed in “When Protector Turned Killer,” The Hindu , June 11, 2012).

NATO‟s casualties include the dead in Sirte. Its drones struck the convoy, leaving them at the will of

the Misrata militias.

U.S. presidential campaign

Benghazi entered the U.S. presidential campaign as a proxy for a debate over foreign policy between

Obama and Romney. Neither has taken honestly the consequences of the U.S.-led NATO

intervention, and neither is capable of understanding the grave situation in Libya where certain

militias act with impunity. A U.S. State Department document from August remarks that the Libyan

government “has acknowledged the problem of the Militias in torture and detentions, but it admits

that the police and Justice Ministry are not up to the task of stopping them. On Tuesday, it sent out a

text message on all cellphones, pleading for the militias to stop.” The U.S. worries that Libya might

become a “failed state.” What is not recognised is that it is precisely the lack of seriousness toward

accountability and law that fuel the failure of new institutions to emerge. Ambassador Chris Stevens

was not the only victim of this lawlessness. He is one among many.

(Vijay Prashad, a contributor to Frontline, is the author of Arab Spring, Libyan Winter, LeftWord,

2012.)

Blanket amnesty to those who committed crimes during the revolution is allowing

the militias to indulge in lawless behaviour