Quote Gems :Stephen Hawking

'' It matters if you just don't give up.''

-Stephen Hawking

Crisis of Governance

IBN Live : Blog :Bimal Jalan : February 13, 2012 

I have chosen this topic for discussion as I believe that, as we look deeper and wider in the functioning of our polity, we have to recognise that we are at cross roads. Unless we tackle some of the emerging problems, the process of national integration, which is a hallmark of India's democratic heritage, may itself be at stake. Already 170 districts in India (out of 560), according to official sources, are ungovernable. Some years ago, the Prime Minister himself referred to this as the "single biggest internal security challenge faced by our country".

On the prevailing crisis of governance, let me emphasise that what makes the present situation much more alarming than during earlier decades is that it is no longer "episodic", that is, confined to some outrageous event now and then. Over time, it has become "systemic" and spreads across practically all segments of the society, including governments at center and states, public institutions, corporate sector, sections of the media, and so on. There is widespread deterioration in administrative and public accountability, prevalence of corruption, income disparities among various sections of the people, rising power of criminals in politics, and the emergence of small parties as primary factors in determining the survival of multiple-party coalitions in power.

Let me mention a few core and pragmatic issues relating to emerging crisis of governance in the administrative and political system, and suggest some measures to improve the working of our government. Many of the recent developments in the working of the vital institutions of the state were not visualized at the time of the framing of our Constitution. Some of these have substantially reduced the responsibility and accountability of multi-party governments for what they do, or for that matter, what they do not do.

A fundamental "systemic" change, which dominates the working of India's politics today - unlike the first four decades after Independence - is the emergence of coalitions as a "regular" form of government since 1989. India has had as many as 9 governments during past 21 years - with an average life of less than two and a half years. Of these, 3 multi-party coalitions survived their 5-year terms with occasional set backs and shifts in the composition of parties supporting them from inside or outside. Excluding these three and the present government in office, the average term of five governments with enormous powers to allocate resources, control public enterprises and decide inter-state allocation of investments - was less than one year.

The crucial point here is that at the time of formation of a multi-party coalition government, general expectation of small and regional parties is that enormous powers that their nominees, as ministers, enjoy may not last very long - or that it may change if a more powerful leader of one or two large parties in coalition so decides.

Under the present Constitutional provisions, as a consequence of amendments carried out in 1985 and again in 2003 to prevent defections, now there is also a built-in incentive for fragmentation of political parties at the time of election. This is because smaller a party, the greater the power of an individual legislator to defect to another party in search of political power without having to relinquish his or her seat in Parliament or State Assembly. On the other hand, a member elected from a large national party has very little discretion to defect without the support of a substantial number of other members, who also wish to defect. Thus, the smaller a party the easier it is for a few of its members or all of them to switch from one coalition to another, and maximize their political capital.

Unfortunately, over the past two decades in particular, politics has also become a career of choice by persons with criminal records. The investigative and prosecution machinery for suspected criminal activities is under direct control of departments of the government. There is a natural reluctance to speed up investigations and the prosecution of persons who are leaders of political parties and/or members of the cabinet. According to the statistical survey of elections to the Lok Sabha in recent elections, it has been found that nearly 20 per cent of the candidates surveyed, cutting across party line (excluding independent candidates) had criminal antecedents. In the present Lok Sabha which has 543 seats in all, well over 100 members had criminal cases pending against them.

Recently, there has been widespread public outrage about corrupt ministers at the Centre and states about scams relating to allocations of public resources, such as, land, mines and gas. Some ministers have also been sent to jail by the Supreme Court and High Courts because of involvement in bribery and other illicit practices. To see our so-called Hon'ble ministers in jail is a sad commentary about the functioning of India's democracy. But let us also ask ourselves - how is it that these Hon'ble ministers had the opportunity and such enormous discretionary powers to accept massive bribes from corrupt corporates? Who gave them this opportunity? Was it the intention of our Constitution to confer such powers on elected representatives of the people?

If we wish to tackle the spread of corruption and ineffectiveness of proper governance by government in India, it is necessary to introduce some political reforms to reduce corruption, power of small parties to destabilize multi-party coalitions, and attractiveness of politics as a career for persons with criminal antecedents. I have dealt with these and other political issues which require urgent attention in some detail elsewhere (please see my new book "Emerging India: Economics, Politics and Reforms" which has just been published by Penguin, cover page of which is attached). Let me just mention three urgent political reforms which require to be undertaken as early as possible.

First, the anti-defection law should be made applicable to small parties and independent members who choose to join the government. In other words, those who join the government cannot defect (as has happened in several states of India in past few years) without having to seek re-election. At present, as mentioned above, there is a built-in incentive for fragmentation of political parties at the time of elections as the anti-defection law applies only to members of a particular political party irrespective of their numbers in Parliament or Legislatures.

Second, highest priority should be given by Courts to hearing cases of elected leaders with criminal antecedents. Their cases should be mandatorily decided within six months after their election. Such a procedure would effectively "reverse" the incentive for criminals to choose politics in order to delay investigation of their cases and possible conviction. In fact, they may choose not to contest elections so that they are in a position to delay hearings through normal legal procedures!

Finally, in view of the high cost of periodic elections, governance can not be improved without reducing the compulsion of political parties to raise funds through illicit means. This is one of the primary causes of political corruption. State funding of elections is urgently required to help those - however few they may be - who wish to remain in politics without having to indulge in corrupt practices. The budgetary costs of funding elections by the state are unlikely to exceed 0.3 to 0.4 per cent of the total annual budget expenditure.

There is a great deal to be done in all these areas. In conclusion, let me just add that notwithstanding our past performance, I am sanguine about India's economic potential and our ability to achieve high growth with financial stability. The reason for this confidence is that, despite problems in governance, the innate ability of our people is immense and has been demonstrated beyond reasonable doubt. The open, participative and democratic system ensures that a change, where necessary can be delayed, but it cannot be avoided altogether.

Raja acted on his own in 2G case: Justice Ganguly

Karan Thapar, CNN-IBN

: Feb 19, 2012 at 07:22pm IST

Karan Thapar: Justice Ganguly, let me start with the comment made about your recent landmark sanctions judgement and 2G judgement, both of which were delivered in last thirty days. 

The first was reserved in November 2010 and made public thirteen months later and second was reserved in March 2011 and delivered eleven months later. 

Both were delivered during an election campaign and in some quarters, this has led to people being suspicious about the timing and the delay. 

How do you respond to that sort of comment?

Ashok Kumar Ganguly: Well I understand that the judgment had to be delivered during my tenure, since I was a party to the judgment. I was retiring on February 2, 2012, that date can't be altered. So I thought it is better to deliver the judgment than to keep it undelivered. In my tenure as a judge of eighteen years, I have not kept any judgment undelivered which were reserved by me. Now these two judgments were heard by a bench of Justice Singhvi and myself, but both the judgments was reserved by my learned senior colleague Justice Singhvi. I can tell you if the judgment had been reserved by me, they would have been delivered long ago.

Karan Thapar: So in others words the reservations was not done by you, it was done by your brother judge?

Ashok Kumar Ganguly: Yes, senior brother judge

Karan Thapar: And you were determined to deliver it before you retire?

Ashok Kumar Ganguly: Otherwise it would have been huge loss of time. Because these cases can't be dismissed off the cuff, these cases were heard…at least more then thirty days were devoted. Again when judicial time is so precious, I would have felt very sad and people would have criticised the system, if these judgments were not delivered.

Karan Thapar: So the suspicion in some quarters about the delay or the timing is unwarranted?

Ashok Kumar Ganguly: Absolutely

Karan Thapar: And the delay is just because your fellow judge, your senior fellow judge wanted to reserve it for a while?

Ashok Kumar Ganguly: Yes, because judges are under tremendous pressure, specially the Supreme Court. So as a result of this pressure, it must have been delayed. I am sure the delay is not intentional.

Karan Thapar: Now one of the important judgment was the 2G judgment where you found that the first come first service fundamentally flawed. You believe it's a violation of constitutional principles and you say when it comes to allocation of scarce natural resources, the state must always adopt of method of auction. Are you prepare to accept any exceptions to that rule, is that any room for discussion?

Ashok Kumar Ganguly: First of all let me tell you I am not here to defend the judgment.

Karan Thapar: Absolutely, I am only asking for explanations, I am not asking you to defend.

Ashok Kumar Ganguly: I will tell you, the judgment is a reasoned one. The reasons are all there, of course you are right and true that there are no such absolute propositions. All propositions have to be considered in the facts of the case. In the facts of the case which were discussed in the judgment, we thought that is the only viable option.

Karan Thapar: Is the ruling that the state must always adopt the method of auction, the ruling should apply to all natural resources?

Ashok Kumar Ganguly: I can't say that because it has been said in the context of the facts considered in the judgment.

Karan Thapar: So this is in the context of the spectrum?

Ashok Kumar Ganguly: Yes.

Karan Thapar: It is possible therefore that in the context of other scarce natural resources, for instance water or land for hospitals and schools, auction may not be the best way to handling those?

Ashok Kumar Ganguly: Well I am not here to sort of predict those lines. It all depends on the facts; normally the lands for hospitals and schools are acquired on the land Accusation Act, that's the procedure in our country.

Karan Thapar: So the auction does not apply on there?

Ashok Kumar Ganguly: Naturally.

Karan Thapar: So there is infact room for discretion because this is the issue that many people have asked themselves, is there a room for discretion or is this an inflexible rule, a rigid principle? You are suggesting to me that there is clearly room for discretion; each case is a case on its own?

Ashok Kumar Ganguly: Yes, discretion as you know is the life blood of any judicial decision . There can't be any straitjacket.

Karan Thapar: So people who threw up their hands in the air and said ' oh dear this judgment has lay down an inflexible rule, all natural resources have to be auctioned there is not room for discussion hereafter'. Those people have misunderstood the judgment somewhere?

Ashok Kumar Ganguly: Well I do know. But see the judgment has to be understood as I am telling you repeatedly; it has to be understood as the facts which were discussed and decided in the case.

Karan Thapar: And it has to be understood in the context of the case?

Ashok Kumar Ganguly: Of course.

Karan Thapar: Now a second concerned that has been expressed and you must have heard and read it in the paper, is that your judgment have found Mr Raja behaved wholly arbitrarily and unconstitutionality. And people say in effect Justice Ganguly and Justice Singhvi have tried and found Mr Raja guilty. Although he wasn't in front of them and he wasn't being defended, people say this is unfair and looks like a miscarriage of justice.

Ashok Kumar Ganguly: Well I don't think so. There is a trial going on, and in the trial he is getting opportunities to prove his innocence. But here we are considering the matter on a question of a executive decision. The decision of the minister concerned was defended by the government. So it's nothing personal, it was a decision of the government and he happened to be the minister. So therefore he was defended.

Karan Thapar: How was he defended?

Ashok Kumar Ganguly: Because the ministry was defended, he acted as the minister and the ministry was defending him.

Karan Thapar: So you are saying that the government lawyer who appeared before you would be defending Mr Raja's action, that would have been his defence?

Ashok Kumar Ganguly: Yes.

Karan Thapar: Except that the same government is prosecuting him. So Raja would consider that the government was defending him in one instance?

Ashok Kumar Ganguly: It is open to him to come and defend himself, if he wanted too.

Karan Thapar: He had that option?

Ashok Kumar Ganguly: Of course he had, the court never shut out anybody.

Karan Thapar: So if he wanted to he could have exercised that option and that was up to him to decide?

Ashok Kumar Ganguly: Yes.

Karan Thapar: I know your judgment ends in the last paragraph saying that 'nothing in the judgment in any manner shall prejudice the defence of those who are facing prosecution'.

Ashok Kumar Ganguly: That's right.

Karan Thapar: But are you absolutely confident that the trial court won't be influenced, by what is at the end of the day, a strong and unequivocal finding of guilt against Mr Raja?

Ashok Kumar Ganguly: Certainly, the court is a court, that's why we made it clear that these findings are the purpose of official business. The criminal case is slightly different, it goes in a different perspective. He is entitled to get his defence.

Karan Thapar: Except the trial court judge is a junior judge, two Supreme Court judges right at the top of the chain have given a verdict…

Ashok Kumar Ganguly: Well there is nothing word is called junior or senior, he is doing his duty. He is a judge and every judge is independent of anything and you made that clear by saying this is not fixed.

Karan Thapar: So you are really confident that this won't affect and prejudice Mr Raja's case?

Ashok Kumar Ganguly: No it cannot. That is how the judiciary functions.

Karan Thapar: But the people who turned around and say and you must have read this, that you virtually decided the lower court trial as well, are being unfair to you?

Ashok Kumar Ganguly: No, I don't think so. The trial is an independent trial and after the trial he has further opportunity of going higher up.

Karan Thapar: So you are confident that you have not prejudiced Mr Raja's trial at the lower court?

Ashok Kumar Ganguly: Certainly not.

Karan Thapar: Now your judgment and this is the another concern that has risen in the papers, it is a concern that worries the telecom sector in particular, has struck down licences awarded by first-come-first-served post January 2008. But you said that nothing about licences awarded in the same way between 2001 and 2007. Because as your judgment says they were not party to the petition before you and the legality wasn't being questioned. Doesn't it also therefore follow that the legality of those judgments remains unresolved?

Ashok Kumar Ganguly: Things which are not challenged before the court, again you are asking me on the merits of the judgment.

Karan Thapar: I only ask you to explain what is the position is to regarding earlier license.

Ashok Kumar Ganguly: What have been explained in the judgment have explained in that. In an interview I am not going it to do it further, I am not going to defend it further. The judgment stands as it is. But I tell you every judgment has its territory things which were before the court, considered and the things which were not before the court were not considered.

Karan Thapar: And the licences awarded by first come first between 2001 and 2007, weren't before you and therefore weren't considered by you?

Ashok Kumar Ganguly: Precisely so.

Karan Thapar: If today or tomorrow, someone were to bring a petition in the Supreme Court. Questioning the legality of the first come first the license awarded between the 2000 and 2007. Do you believe that the Supreme Court would entertain that petition?

Ashok Kumar Ganguly: Well I can't predict.

Karan Thapar: What's your feeling?

Ashok Kumar Ganguly: I can't comment on something which may happen in future.

Karan Thapar: If the Supreme Court were to accept such a petition, does it not follow that to be consistent, it would have to apply the logic you have applied, all the way back to 2001

Ashok Kumar Ganguly: Well what logic will be applied in a given situation or in a future litigation, it's a very hypothetical question and I don't want to answer that.

Karan Thapar: Except that if the same logic wasn't applied, then the Supreme Court would be applying two different standards, one to licences post-2008 and another to licences to pre-2008.That would be inconsistent.

Ashok Kumar Ganguly: I don't know and I hope and believe Supreme Court won't be inconsistent but on a future litigation it's not for me to make any comment.

Karan Thapar: I understand you can't make a comment on a future litigation but equally you have said that you hope and pray that the Supreme Court won't be inconsistent.

Ashok Kumar Ganguly: Certainly, it is expected that court won't be inconsistent.

Karan Thapar: And to be consistent the Supreme Court would have to apply, the logic and conclusion of your judgment to any future petition as well.

Ashok Kumar Ganguly: I am very guarded in my reply that I cannot say what Supreme Court will do in the future litigation.

Karan Thapar: Except that the consistency would required that they apply the same principle and logic?

Ashok Kumar Ganguly: I do not know, consistency is a word of very wide import.

Karan Thapar: Alright you are leaving that open and this I raised only because it was an issue that concerns not just media, not just license holders but the telecom sector. Would I be right in concluding this way, that is as far as licenses is issue first come first served between 2001 and 2007 are concern, there are question marks about them and those question marks only be resolved when a petition is brought to the Supreme Court and till such time uncertainty will continue?

Ashok Kumar Ganguly: I don't know what is uncertainty if the licenses are not questioned, the licences remain.

Karan Thapar: But when they are questioned uncertainty will arise?

Ashok Kumar Ganguly: Again you are taking about future and on that I don't want to answer.

Karan Thapar: Now your judgment has serious impact on the foreign company such as Telenor, all of whom have invested billions of dollars in legitimate contract through government procedure, agreed by the government and with government permission and approval. Suddenly these people find that their contracts are in jeopardy. Does it worry you that they might now feel a need to go to court and challenge your judgment?

Ashok Kumar Ganguly: May be I can't say anything, if anybody feels that their rights have not been protected, it's for them to decide.

Karan Thapar: But if there is a plethora of challenges, would that raise question mark about your judgment ?

Ashok Kumar Ganguly: I am not here to certify my judgment, it's not my judgment, it's a court judgment. The judgment of the court… I am not here to certify that.

Karan Thapar: A second issue that arisen in press, is, has your judgment created doubt in the mind of foreign potential investors, who now before to come Indian may now say themselves, given that those sacrosanct contract overnight negated. Should be we going to India? Have you created doubts in minds in the foreign potential investors, the viability the investing in India?

Ashok Kumar Ganguly: We don't know this is not the first time that the contract is squashed though courts. This is nothing new. There were very many aspects of a contract. I am not taking of this particular judgment; it is happened in the past and would have happened in the future also. Every contract has certain legal parameters. Whenever anybody enters in a contract in this country, the law of the land has to be obeyed.

Karan Thapar: So are you saying to me that foreign investors should be reassured that untimely the rule of law and transparency will prevail and wrong doing will be rectified, rather then worried by the fact that three individual companies, who believed they had sacrosanct contracts, might have suffered?

Ashok Kumar Ganguly: I would like to think that way but again I am telling you, again what is going to be happened the fate of those foreign investors future depend on breach of contracts…

Karan Thapar: Justice Ganguly lets take a break at this point of time and when we come back, I want to talk about your other landmark judgment, the sanctions judgment. That's in a moment's time. Don't go away.

Karan Thapar: Welcome back to Devils Advocate, an exclusive interview with one of the architect of the landmark 2G judgment, justice Ashok Kumar Ganguly

Let's come briefly Justice Ganguly to your sanctions judgment which gives the government a maximum of four months to respond to corruption complains against public servants. Now, critics turned around and say that wittingly or unwittingly you may have opened a Pandora's Box for spiteful and vengeful complaints which would end up harassing people and individual and innocent people rather than further justice?

Ashok Kumar Ganguly: Well every judgment is open to criticism, I don't say no judgment can't be criticised but we have given reasons. Those are suggestions by the court. As a present advice on the Prevention of Corruption Act, I think Section 19 where they have to ask for sanction and time limit is not fixed. So we have said that the government should do well to follow this timeline in order to have corruption free governance.

Karan Thapar: How do you reconcile the fact that you have given the government a four month timeline in which to respond the corruption cases against public servants, but there's absolutely no time bar when the chief justice is approached for permission to file FIR against a sitting judge. To be consistent, shouldn't be time bar in that instance as well?

Ashok Kumar Ganguly: Well I don't want to say anything but as far as the directions or the recommendations, these are not directions these are recommendations concern, they should apply across the board.

Karan Thapar: They should apply across the board?

Ashok Kumar Ganguly: Yes, we have not made this in our recommendations that is not legislation. Kindly make and understand the difference.

Karan Thapar: That is practice and convention ?

Ashok Kumar Ganguly: Yes we have suggested these by the recommendation to the government to consider this and make an amendment to the law.

Karan Thapar: But you are also suggesting or hinting that the same recommendation should be borne in mind by the chief justice when he is considering…..

Ashok Kumar Ganguly: I am not making a reference to any particular person or any particular……

Karan Thapar: But it should apply across the board?

Ashok Kumar Ganguly: It should apply across the board.

Karan Thapar: That is a very important thing you are saying. I don't want to embarrass you by making it too explicit. But the recommendation should apply across the board?

Ashok Kumar Ganguly: That's our views.

Karan Thapar: Now in this particular judgment you made a distinction between the PMO and the PM. Most people turned around and said that this is an invalid distinction. They say this distinction looks as if it is an attempt to exculpate the Prime Minister by any wrong doing by pinning the blame on his juniors and his subordinates, where as at end of the day as head of the PMO, he carries responsibility?

Ashok Kumar Ganguly: Certainly he does carry the responsibility but we have made a distinction considering the onerous duties of the PM and considering the fact, the particular facts of the case there were queries made by himself. But he was not assisted properly by his office.

Karan Thapar: So the fact that he made queries permits you to make this distinction?

Ashok Kumar Ganguly: Yes again in the facts of the case.

Karan Thapar: This doesn't mean that the similar distinction will be made in other cases. Those other case stands on other facts ?

Ashok Kumar Ganguly: You understands that the heavy business that the heavy business that the PM have to discharge, considering that and considering the fact that he made queries which was not properly answered. Therefore we have made this distinction.

Karan Thapar: Now my last question in the 2G judgment, it appears that you have pinned the blame entirely Mr Raja but you haven't paid sufficient heed to the principle of the collective Cabinet responsibility. Surely such a momentous decision requires that the Cabinet also accept the responsibility?

Ashok Kumar Ganguly: I think from the judgment, if you look at the judgment facts properly, you find that the minister concerns didn't pay heed to the request made by the another ministers, including the request made by the law minister to put the matter before the empowered committee.

Karan Thapar: As a result of which collective Cabinet responsibility, you are saying, doesn't apply?

Ashok Kumar Ganguly: In a way yes because that is the why we find that there is no proper policy.

Karan Thapar: What about the fact that in the three areas that Mr Raja has found to acted have wrongly, pricing, advancing the cut off date, determining the first-come-first-served in terms of letter of intent rather than in terms of date of application. He a) either informed the Prime Minister or the Prime Minister overlooked it or ignored it or the Prime Minister gave him advice which Mr Raja overlooked and Prime Minister didn't look. Doesn't that point the figure all the way to the PM?

Ashok Kumar Ganguly: You again asking me on the nitty gritties of the judgment. So there all discussed there so I don't want to go again in the interview.

Karan Thapar: But you are absolutely convinced that the this instance the principle collective Cabinet responsibility does not apply?

Ashok Kumar Ganguly: Possibly that is not followed.

Karan Thapar: It doesn't apply?

Ashok Kumar Ganguly: It was not applied to this particular case.

Karan Thapar: It wasn't followed? Raja acted unilaterally which is why his colleagues in Cabinet possibly don't share any blame?

Ashok Kumar Ganguly: Possibly yes.

Karan Thapar: Justice Ganguly, thank you very much