.... the brain is not a vessel to be filled,
It is something to be IGNITED

BURNING BRAIN NEWSLETTER - August 2006

A clean and corruption-free judiciary! What?

Last fortnight a lawyer friend of mine jokingly shared an anecdote about the boastings by the brother of a newly appointed High Court judge. He mentioned how the brother boasted about the grease payment of 1.5 Crore rupees for the appointment as a High Court judge and how he claimed that the money would be recovered within six months. This refreshed in my mind what I wrote about the judiciary in my book "Towards a Perfect Democracy" in 1999. It also reinforced my opinion about the faulty system of appointment of judges followed in the Indian judiciary. I would like to share with you what I wrote many years back.

The appointment of Judges itself preannounce the position of judiciary. There is not the slightest doubt that the judicial appointments must be totally on the basis of talent, intelligence and knowledge and not on any other criteria, lest it may defeat the purpose of judiciary. Appointment of all level of Judicial Officers and/or Judges should be only through a competition of merit and intelligence at all times. Such examinations can be clubbed with psychological assessment/psychometric testing but there mustn't be any other criteria and/or standard. A nomination of a reputed or known advocate to the position of a Judge is nothing but a joke on democratic setup and more so on a independent judiciary.

The regretful scenario in India can be gauged from the fact that despite proving their merit in state judicial examinations only one third of the judicial officers appointed through the exam-of-merit are able to reach the High Court and almost no-one is able to reach the Supreme Court (To my knowledge only three judges from the judicial services could ever reach the Supreme Court in the last 55 years). These judicial officers are invariably superceded by their batch mates who were left behind on the basis of merit at the first stage but however who in the long run prove smart enough in socializing and maintaining the right connection in the political and social world.

This practice of nomination was adopted by the oppressors of my Country at the time of devising of a judicial system. This was done mainly because they wanted to be in-charge of the most powerful institution of the State and wanted only those officers/Judges who would endorse to their views and follow instructions. Moreover at that time there was no qualified standard criteria for selection of even the people in the lowest or any court at any level. After the independence of India from the foreign oppressors, the aristocrats adopted more or less the same structure as it suited their purpose. At the time of independence most of the people in-charge of the framing and drafting of the legal process were lawyers, aristocrat and big shots and they knew the power of judiciary. They knew that they would be in power and in a position to manipulate the system to give power to people who were close to them and could safeguard their interest. They preferred to include the clause of nomination of Judges in its vaguest form, so that it added to their power. The framers of the Constitution preferred to safeguard the interest of a few (including the political interest of that time and which is carried to this date) over the interest of millions, who in good faith, had given them power to act.

But many questions remain to be answered. How can one expect the judiciary to be free and fair if such people are appointed as the dispensers of justice, who till some time back as a law practitioners had their biases and business interest; Who were in the profession of law for financial gains and interest; were members of parties and unions; supported a political ideology; had religious biases; asked political leaders for support for nomination for the post of Judge; and what not?

Does the State assume that these nominated judges will get some divine enlightenment and they would be automatically debriefed after their appointment? Or is it thought that after their appointment they will totally become unbiased and judicious? Can we assume all such judges to be corruption free too? Is the skill-set required to be a good and successful lawyer the same as that required for a good Judge? We must answer these questions if we want an unbiased and good judiciary.

In any State where majority of the Judges are nominated (specially in the superintending courts); where the majority of Judges in a High Court are nominated and almost all the Judges of a Supreme Court are nominated (it wouldn’t be wrong to say, indirect political appointments), and where there is no foolproof system of nomination, the judiciary of that State can never be free, fair and corruption-free.

It may be argued in favor of nominated appointments that the lawyers who work in the higher courts know and understand the functioning and procedures of higher courts better. But I am afraid that such excuses can not be bought because we are not talking about ordinary people but highly intelligent and efficient people selected through a well thought and implemented procedure (the State judicial services), and are used to working under extreme pressures. A simple training after every promotion will add to the talent of the promoted Judges and they will prove to be better in most of the cases over their mates who opted for the profession of a lawyer and later-on owing to their contacts or after a second thought opted to be Judge.

The high work load in the lowest court will always provide the ideal platform for these Judicial Officers to polish themselves and learn more of the practical application of law. It shall be of great help to them in the higher courts of justice. The promotion structure should be such that those who join young into Judicial Services, have a fairly good chance of reaching the top and staying there for considerable time and themselves carry the objective of judiciary further.

If there are people who still think that it is plausible and that there is nothing wrong in the thought that the State requires some Judges (say 10%) even at the second level, who have some experience of advocacy and have seen the things from the other side of the table: still in such a case, direct appointments of Judges; immaterial of the method of such appointments; is not recommended. It is always possible to have an examination among the lawyers aspiring for the position of Judge. Lawyers successfully qualifying the examination may be recommended by an appropriate procedure for recommendation.

I know it would be aggressively argued that senior or reputed advocates qualify by virtue of their experience and that it is a insult for the reputed senior advocates to apply for examination and qualify it; but then people who do not apply or feel ashamed to be a part of procedure, or feel afraid of appearing, or have some inhibitions about a procedure, do not qualify on account of their unreasonable emotional expressions.

The structure of appointment of Judicial Officers and dispensing of justice should be absolutely transparent and perfect, least people will loose faith in justice and the Government at large. The loss of trust in judicial proceedings will reflect in all departments of the State (as is the present state of affairs). An odd Judicial Officer, here and there, acting more because of his/her personal guts, than any other reason, may not be able to change the scenario. It may kindle a ray of hope, but the broader change is the ultimate solution.

Yours,
Hemant Goswami
Chairperson,
Burning Brain Society

An Article by Magsaysay award winner Arvind Kejriwal

Information about the money spent on various civil works carried out by the Municipal Corporation of Delhi (MCD) in three areas of Delhi, obtained under the Right to Information Act, is quite revealing. These three areas are: Defence Colony, Rajinder Nagar and Sundernagari. Defence Colony is an upper class colony, Rajinder Nagar is a middle class colony and Sundernagari is a slum in East Delhi. Strangely, the findings are the same in all areas.

First, public funds are spent on things that are not needed by the people. And when people demand a particular work, the government claims shortage of funds. The following example could throw some light. The government constructed some fountains in totally decrepit parks in Sundernagari for Rs 60 lakhs. The fountains didn’t work for a day. The people did not need them at all. They had been demanding sewerage, better sanitation, a post office and a secondary school for the past several years. Their demands were ignored and the government spent money on fountains not needed by the people.

In Defence Colony, the people obtained a list of all the works that the government proposes to do during current year. Several streets in this list proposed to be rebuilt are in good condition and do not need any repairs. Then why is the government wasting money on these streets? Why can’t it put this money to better use?

Secondly the more obvious finding is that hardly a fraction of the money, on whatever projects, is actually spent. The proportion of corruption is roughly the same in all three areas. The incidence of corruption has no co-relation to the income levels of the people staying in that area. Several instances of ghost works were found when the records were verified. Some works were half done. In others, the quality was so bad that they crumbled within a few days of construction. One street was made with fly ash bricks in Defence Colony. The quality of the bricks used was so bad the bricks became powder within a few days. Several streets in Rajinder Nagar are shown to have been made thrice within a span of a few months. Payments have been made for non-existing handpumps and electric motors in Sundernagari.

The third finding is that when people reported such large scale corruption to various government authorities, no action was taken. The Defence Colony people personally met the Deputy Commissioner, who promised strict action. The Rajinder Nagar Resident Welfare Association wrote to the MCD Commissioner, the police, State Vigilance Department and the vigilance wing of MCD. The Sundernagari corruption was reported to the Chief Minister, Municipal Commissioner and the police. Either no action was taken or they tried to cover it up.

Therefore, the myth that the government is short of funds was conclusively broken. There could be shortages, but they are not crippling as projected by the government. For instance, during the FY 2001-02, the MCD spent more than Rs 2 crores on repairs of roads, public toilets, parks, handpumps and construction of fountains in a small slum like Sundernagari. Around Rs 1.5 crores were spent, mostly for repair of roads in Defence Colony in 2002-03. These are not small amounts. These are roughly the levels of expenditures made every year by just the engineering wing of the MCD. The horticulture, sanitation, street lighting wings have separate allocations.
Who decides where the public money should be spent? In rural areas, these decisions are taken (or supposed to be taken) by a body called the gram sabha, which is the general body of all adults of that village.

However, in urban areas, there are no such platforms. Therefore, these decisions are taken either by the MLA or the Municipal Councillor or the Deputy Commissioner of that area or some local official like the Junior Engineer etc. A panchayat is a small area typically consisting of 1500 people. It is, therefore, possible for the people in a panchayat to meet and discuss the affairs of their village. But the constituency of an MLA, with an average population of 2 lakh people and the ward of a Municipal Councillor, with an average population of 1 lakh people, are so big that it is practically impossible to have regular meetings of people in a ward or a constituency. Therefore, the decisions of an MLA or a Municipal Councillor, even when taken with the best intentions, do not reflect people’s aspirations.

What is the way out? Give three powers to the Resident Welfare Associations (RWA). The power to decide the list of works where the money would be spent in any area, should vest with the RWA. Payment should not be made to a contractor unless an RWA certifies it as satisfactory. The power to initiate disciplinary action against local officials for any wrongdoings should also vest with the RWAs. These decisions should be taken by RWAs in their General Body Meetings, which should compulsorily take place at regular intervals.

For this, RWAs would need to be restructured and given statutory status. The State Election Commission should hold elections to RWAs like it does for Panchayats in rural areas. And the people should have the power to replace any RWA representative during his/her tenure, if found deficient.

Representative democracy has failed us. Only direct democracy can provide solutions to people’s problems.

Presentations from the World Conference
 

Download presentations slides from the presentations given at the World Conference on Tobacco or Health 2006 at Washington.

Presentation on "Association Tobacco with Bravery and its Impact on Youth"

Download from http://gallery.globalink.org/d/14234-1/tobacco_bravery.pdf

Presentation on "Tobacco in Movies and Impact on Youth"

Download from http://gallery.globalink.org/d/14236-1/tobacco_movies.pdf

The World AIDS Conference Concludes
                                                              

A sense of hopefulness tempered with growing impatience marked the end of the XVI International AIDS Conference (AIDS 2006) on August 18, with scientists, clinicians, policymakers, people living with HIV/AIDS (PLWHA) and other community leaders and caregivers calling for an accelerated pace to scale up HIV prevention, care and treatment programs in resource-limited settings.

"The convergence of global stakeholders at AIDS 2006 has provided an ideal opportunity to examine the gap between what society is capable of doing in the face of this unprecedented humanitarian crisis and the actual level of response," said Conference Co-Chair Dr. Helene Gayle, outgoing President of the International AIDS Society (IAS) and President and CEO of CARE USA. "Despite important momentum over the past few years, the slow pace of progress has led to growing impatience. My hope is that we will use what we've learned here in Toronto to strengthen the global response."

"This conference cannot be deemed a success unless we collectively realize our theme of Time to Deliver," said Conference Co-Chair Dr. Mark Wainberg, Local Host Board Chair and Director of the McGill University AIDS Centre. "Indeed, we will have failed unless we dramatically and rapidly expand by millions the numbers of people around the world with access to antiretroviral drugs and simultaneously scale up prevention. Progress cannot be achieved if more people become infected by HIV each year than the numbers that are able to access treatment."

According to the Joint United Nations Programme on HIV/AIDS (UNAIDS), at the end of 2005 an estimated 39 million people worldwide were living with HIV/AIDS, the vast majority in developing countries. Last year, 4.1 million people became newly infected with the virus, and 2.8 million died of AIDS-related illnesses. Of the 6.8 million people living with HIV in low- and middle-income countries who are in need of antiretroviral medication (because the level of deterioration of their immune systems warrants beginning treatment), only 24% (1.6 million total) have access. The treatment access gap is even greater for children under 15. Just 8-13% of the 800,000 children in need of HIV treatment have access. Fewer than one in five-4% to 16%-of people at high risk for infection have access to effective prevention.

Become a vigilant citizen; Participate in the Citizens Report project

It appears that the unaccounted actions and arbitrary decisions of many government officials are going to face some real challenge ahead and may become a thing of the past. Burning Brain Society (BBS) and Society for Prevention of Crime & Corruption along with the support of many other national and international organisations has decided to use the Right to Information Act to bring out a citizen’s report on the functioning of various departments of the government.

Announcing this new project today, Mr. Hemant Goswami, chairperson of BBS revealed that beginning May 2006, every month at least one government department shall be thoroughly scanned, scrutinized and evaluated for its public functioning. An annual report on the overall health and functioning of the Administration shall also be brought out at the end of every year. The citizen’s report shall be freely available on the internet, published in associate newspapers and in book form. Mr. Hemant further revealed that the entire effort of preparation of the citizen’s report shall be totally done by public spirited volunteers.

Lamenting the recent arbitrary decisions by the administrations like the one on public transport, mushrooming of the liquor vends, proposal of a film city and amusement park, etc. Goswami said, “The bureaucracy is taking the general public for a ride and has become totally unaccountable and insensitive to the public sentiment which needs to be changed.”

The departments which are initially planned to come under the BBS citizen’s report are Law & Justice, Police, Education, Tourism, Sports, Health, IT, Municipal Corporation, Labour, Housing, Civic facilities and such other department providing citizens services.
BBS has also invited organisations and concerned citizens to volunteer for the project. Those interested can call 0172-5165555 or e-mail at info(at)burningbrain.org.  

Join BBS

Not a member of Burning Brain Society? Join BBS. Click Here.

Support Burning Brain

Friends,

You can support us in a number of ways. You can join the crusade, provide financial resources, contribute in cash or kind, donate resources, volunteer and be a contributing person.

You can send your payments/drafts/cheques and other contributions in favour of Burning Brain Society, payable at Chandigarh and addressed to:

Burning Brain Society
Glass Office 3, Business Arcade, Shivalikview, Sector 17-E, Chandigarh 160 017 INDIA

[Home] [Previous Page]