Vivek Issues n Options April 2013

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VIVEK : Issues and Options April2013 Issue: II No: IV 2

Peace In Afghanistan: Decoding Th

London Trilateral

- Monish Gulati

EVENTS

VIF Delegation Visits Beijing For

Seminar OnAfghanistan Post 201

Perspectives From The Region

Interaction Of VIF Delegation With

China Institute For International

Strategic Studies At Beijing

Vimarsha:Decolonising The IndiaMind

Interaction With Members OfGoodwill Delegation From China

Association For International

Friendly Contacts (CAIFC)

Joint VIF GIMI Seminar On

Response To Terrorism And

Situation In West Asia

Interaction On Indo-Israeli

Cooperation: Prospects And Issue

ARTICLES

ndia In Global Affairs

- Kanwal SibalNeed For A Collegium To Choose The

Next CAG

- A. Surya PrakashThe Justice System

- Dr M N Buchrom Look East To Engage East: How

ndias Own Pivot Will Change Discourse

n Indo-Pacific Region

- Nitin GokhalePakistans Lame Lawmakers Resolution

On Kashmir: A Challenge For India

- Sushant SareenRBI Cannot Undo Executive Damage

With Rate Cuts

- V Anantha Nageswaran

Turning India Into An AerospacePowerhouse To End Defence Import

cams

- Radhakrishna Rao

3

13

23

33

38

43

47


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India In Global Affairs

- Kanwal Sibalhe back to back visits ofFrench President FrancoisHollande and British Prime

Minister David Cameron to Indiain February call attention to theEuropean dimension of ourforeign policy. Many in ourestablishment have a tendency todismiss the importance of Europe.

It is argued that Europe istrapped in low growthstructurally, its population isageing, its welfare system isbecoming unsustainable, itsproducts are not sufficientlycompetitive, it has reached a levelof comfort that makes reforms

difficult, it has lost its edge ininnovation, its defence capacitieshave got eroded with the declinein defence budgets and peace inthe continent. The Eurozone crisishas strengthened the alreadynegative perceptions.

Such thinking is fed by the

conviction that global economicpower is shifting from the West to

Asia, and, along with that,political and military equationsare also changing. Sooner or later,

it is believed, the US/Europeanhold over international politicaland economic institutions will beloosened. On the issue of values-those of democracy, pluralism,human rights and the like- boththe aggressive manner in whichUS/Europe propagate them andthe double standards adopted in

this exercise has eroded theirappeal, not to mention thatChinas economic success inmoving hundred of millions out ofpoverty under an authoritarianregime offers a competing modelfor numerous countries that haveno tradition of democracy and noattachment to it.

Indias own high growth rates inthe last few years, thetransformation of its image from apoverty stricken country to anengine of growth for the globaleconomy hit by recession, thebracketing of India with China ineconomic discussions in the

perspective of these two countriessteadily recovering their share ofthe global economy which was lostto Europe after the 16th century,the projections that India will

T

* Kanwal Sibal, Dean, Centre for International Relations and Diplomacy,VIF


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become the third largest economyin the world by 2030, has led tothe development of a certainworld view in which Europe no

longer looms as large as before.The US still retains its hold onthe mind of those looking atIndias future.

Despite its current financial andeconomic troubles, it is believedthat the US is still capable ofinnovation and that its recoverywill be quicker than that ofEurope. US military strength andits presence in all regions of theworld also givesassurance thatthrough goodunderstandingwith it many of thechallenges Indiafaces can be met oralleviated, whether that ofterrorism or the threats posed bythe rise of China. Europe,militarily dependent on the US, isnot considered as a potent enoughpartner in this and hence acertain amount of disdain for thevalue of the strategic relationshipwith it.

Some commentators arepresumptuous in arguing that forFrance, for instance, to become apartner more in synch with a newpost-liberalisation India, the key

would be to make itself meanerand leaner at home, a referenceto hard decisions it needs to takeon welfare costs and government

spending. It is not clear whetherwith some 300 millions below thepoverty line, urban decay,inadequate sanitation and theanguish in the country about poorgovernance we can smugly referto the new post-liberalisationIndia.

Our declining growth rates, largefiscal deficit, expanding currentaccount deficit, the fall in the

value of the rupee,are problems weneed to addressurgently before weare in a position togive lessons on

economicmanagement to Europe. Snipingat the French economic modelthat is ceaselessly attacked by the

Anglo-Saxons who believe in lessgovernment, less regulation andweak trade unions hardly clarifiesthe debate on the Indian situationand the economic and socialpolicies we should pursue. It isnot clear where calls for inclusivegrowth in India figure in thethinking of those who findcontinental Europes welfaremodel incompatible with the newIndian economy.

Despite its current financialand economic troubles, it isbelieved that the US is stillcapable of innovation and thatits recovery will be quicker thanthat of Europe.


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Europe, in which France and theUK are key countries, is ourbiggest trade and investmentpartner as a whole. It is for this

reason that the crisis in theEurozone has affected us, whereaswe were able to weather betterthe impact of the 2008 financialcrisis in the US. France and theUK are the worlds fifth and sixthlargest economies. To believe thatour economic ties with them canbe neglected is being myopic. Both

countries have much to offer us byway of high and advancedtechnologies, both civil andmilitary; they provide markets forour products; two-way investmentflows are important for ourgrowth and for Indian companiesto acquire assets that wouldstrengthen their international

profile and make them morecompetitive globally. In the WTOnegotiations and those on ClimateChange and the linked issue ofgreen and carbon technologies,both countries are undeniablyimportant. In the India-EUnegotiations on a Free Trade

Agreement, the role of thesecountries cannot be under-estimated, which is why duringboth visits India has called for abroad-based and balancedagreement in 2013.

French President Hollande choseIndia as his first destination in

Asia and arranged to come earlyinto his tenure. He wanted to

signal that France attached highimportance to its relations withIndia, more so the upsurge in therelations at the strategic leveloccurred during the presidency ofhis two predecessors belonging tothe Gaullist tradition. As aSocialist president he wished tosignal continuity in the

relationship. There is good reasonfor France to focus on India asopportunities are immense forFrench equipment and productsin an emerging market like India,with a growing middle class avidfor consumer goods, with anindustry in need of modernizationand technological up-gradation

and an infrastructure desperatelyrequiring improvement for whichthe government plans 1 trillion $of investment in the next fiveyears.

French economic presence inIndia is already considerable. Thelevel of two-way trade at Euros 8billion is not high. The target setin 2008 to double the trade thento Euros 12 billion by 2012 hasnot been met. French economictroubles and lower growth inIndia will not make it easy toincrease trade volumes


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dramatically. On the investmentside, while official figures show$3.5 billion French investments inIndia and $300 million Indian

investments in France, the realfigure of French investment, ifinvestment from all sources by itsglobal companies- from Mauritius,Singapore etc- is taken intoaccount and not only mainlandFrance, the figure is animpressive 17billion.

A similar study ofIndian investmentsin France wouldshow a differentfigure, though itcan be said thatFrench regulatoryrequirements andlabour lawsdiscourage Indianinvestments inFrance ascompared to theUK, for instance. The problemsfaced by Laxmi Mittals steelbusiness in France could not buthave dampened enthusiasm,though the fall-out from the issueseems to have been contained.Some 750 French companies areimplanted in India, employingaround 240,000 skilled workers.Much R&D work is being done bycompanies like Lafarge, Alsthom,

LOreal, Cap Gemini,STMicroelectronics etc. Francehas strengths in the areas ofurban development including

infrastructure, water and wastemanagement, transport andurban planning, apart fromrailways, and the presidents visitfocused on them.

The civil nuclear dimension inIndo-French relations is of

particularimportance. TheJaitapur NuclearPower Project,when finalized, willcrown theconstructive policyFrance haspursued on thenuclear issueinvolving Indiawithin the

constraintsimposed by thewestern policy of

sanctioning India for non-adherence to the NPT, cultivatingthe ground for the eventual NSGexception for which the US playedthe most critical role. The new1650 French EPR reactors, six ofwhich will be located at Jaitapur,have undergone an intensivesafety review after Fukushima, toIndias satisfaction. The issue ofcost remains and so far there is no

The civil nuclear dimension in

Indo-French relations is ofparticular importance. TheJaitapur Nuclear PowerProject, when finalized, willcrown the constructive policyFrance has pursued on thenuclear issue involving Indiawithin the constraints imposedby the western policy ofsanctioning India for non-adherence to the NPT,

cultivating the ground for theeventual NSG exception forwhich the US played the mostcritical role.


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closure. Ways to reduce costs bymanufacturing some componentsin India have been explored. Oureffort is to bring the tariff figure

as close as possible to theKudankulam 3 and 4 tariff; thereis also the issue of periodicescalation of cost of Frenchsupplies whereas the Russiandeal is on a fixed price basis.

Hollande would have ideallywanted some demonstrableprogress in negotiations in thecontext of his visit. The positivelanguage of the joint statementwould have given somesatisfaction to the French, as itstates that the status in regard tothe first two EPR units wasreviewed and the hope expressedfor an expeditious conclusion ofthe negotiations. The PrimeMinister in his joint press briefingstated reassuringly that bothleaders reviewed progress on theJaitapur Nuclear Power Projectand reiterated their commitmentto its early implementation assoon as the commercial andtechnical negotiations, whichhave made good progress, arecompleted.

Indo-French defence cooperationhas been long-standing, withFrance supplying over the lastalmost 60 years a whole range of

defence equipment. Ourrelationship with France in thissensitive domain has been time-tested, with France proving a

reliable defence partner. Francenevertheless has to contend withstrong competition, not only fromfellow Europeans, but also theIsraelis and the Americans.Winning the 126 fighter aircraftcontract against the Eurofighterhas been a remarkable Frenchsuccess. Resistance from the

British has not ended though, asthey still look for an opportunityfor re-entry should negotiationswith Dassault falter.

It is believed that Cameron hadintended to flag Eurofighters caseto the Prime Minister, butstatements during Hollandesvisit that contract negotiationswere proceeding smoothly mayhave deterred him. The Frenchhad been told in advance ofHollandes visit though that theRafale contract would not beready for signature. The Frenchpresident would have wantedsome statement from our sideduring the visit that would givehim assurance of progresstowards finalization, which he gotin the joint statement thatmentions that both sides notedthe progress of ongoingnegotiations on the MMRCA


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programme and look forward totheir conclusion. PMs statementto the effect that discussions onthe MMRCA contract are

progressing well would haveadded to the satisfaction.

The French could havelegitimately hoped that at leastthe finalization of the muchdelayed SR-SAM project would beannounced during Hollandesvisit. Here too the French had tolive with disappointment, thoughthe positive language in the jointstatement- steps are being takenfor early finalization of theSRSAM Project- would have beenre-assuring, as would have beenPMs statement that we havealso concluded negotiations on theShort Range Surface to AirMissile, which, once approved bythe Government, will be co-developed and co-produced inIndia. The PM noted additionallythat there is a welcome shiftfrom defence trade to co-development and co-production ofadvanced defence items in India,which will help expand ourdomestic production base andstrengthen the India-Francestrategic partnership.

In the domain of space, anothersignificant area of Indo-Frenchcooperation, the next step after

the successful launch of theSARAL satellite is the ambitiousfollow-on space cooperationproposals drawn up the respective

space agencies in early February,which the Indian side expects,should open up prospects forexchanges in satellite technology.Hollandes visit focusedconsiderably on education,scientific & technologycooperation. About 16 agreementswere signed in these areas.

France will be the partnercountry for the 2013 GlobalTechnology Summit to be held inNew Delhi. The French are keento increase the number of Indianstudents in France and vice versaas the economical/commercialadvantages of this is recognized,by Hollande himself in his public

remarks.Camerons visit followed closelyon the heels of that of Hollandeand therefore invited comparison.The UK possesses a wide range ofdefence technologies andcooperation in this area isconsiderable. However, unlikeFrance which is buildingsubmarines in India and hugeaircraft and missile programmesare under discussion, besidesbeing a contender for a majorhelicopter contract, the UK is notinvolved in such big ticket


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programmes. It does not havenuclear reactors to offer, nor is itinvolved in space cooperation withIndia.

The strategic content of its tieswith India is therefore lesssubstantial. During Cameronsvisit it was decided to beginnegotiations on a civil nuclearagreement. It was also agreed tostep up cooperation betweenDRDO and the UK DefenceScience and TechnologyOrganisation, already agreed inSeptember 2011, but it wouldseem visas havebeen denied toDRDO scientistsbecause of the workDRDO does onstrategicprogrammes.

Unlike France, which is relativelymore liberal in technologytransfers, the UK has beenrestrictive and this has to changeto boost technological cooperation.Cameron committed the UK tomake available to India thecutting edge British technology,

civil and military, that the UKcurrently shares with its topinternational partners, but itremains to be seen how much thisgets translated into reality.

On a more positive side, the co-investment made by bothcountries in supporting jointresearch activities has risen from

1m in 2009 to over 100m todaywith advanced manufacturing,bio-energy, smart grids, energystorage, next generation wirelesssystems and applied mathematicsas areas of collaboration. Theenergy sector including oil andgas, renewable energy, energyefficiency, the power sector, low

carbon technologies are areasidentified for fruitful exchanges,with India welcoming the

substantial Britishinvestment in itsenergy sector.

On the economicside, whilepreparing for

Camerons visit, it was thoughtthat a signature project such asthe Mumbai-Bangalore industrialcorridor for British investmentwas needed for creating a realimpact. India has been interestedin British investment in itsinfrastructure, for which a jointInfrastructure Committee set upin 2011 has not produced muchresult so far.

Sceptics in India have felt thatthe economic crisis in the UKhardly gave hope of any major UK

The strategic content of itsties with India is therefore lesssubstantial. During Cameronsvisit it was decided to beginnegotiations on a civil nuclearagreement.


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investment. Cameron actuallyspoke of British architects,planners and designers for theproject, not the kind of financing

made by the Japanese in theDMIC. In the event this signatureproject was treated in highly non-committal language in the jointstatement as well as our PMsstatement, which said,respectively, that both leadersnoted the UKs interest incooperating with India for the

development of a new Bengaluru-Mumbai Economic Corridor(BMEC). The leaders agreed toexamine and evolve themodalities and content of afeasibility study of this projectconcept through mutualdiscussions and to work out aroadmap for a possible

partnership in this area and thatwe have asked our officials toexplore British participation inIndias National Manufacturingand Investment Zones and in apossible industrial corridor in theMumbai-Bangalore sector. Thisis verbiage indeed.

The UK has strength in servicesand Camerons accent was onthem as a driver for enhancingIndia-UK exchanges. While hepromised to further reducebarriers for Indian investment inthe UK, he wanted India to

reduce barriers for Britisharchitectural, legal, accountancy,financial and banking services.He emphasized UKs interest in

the education and health sectors(an over-arching MOU at thegovernment-to-government levelwas concluded to strengthencooperation in this sector), notingthat Indias 500 million peopleunder the age of 25 had to beeducated and British educationalinstitutions were open to them.

To set at rest concerns about UKsimmigration and visa policies, heemphasized that there was nolimit to the number of Indianstudents going to Britain anddoing graduate jobs. He alsopromised same day visa servicesfor Indian businessmen to attractmore Indian investment in theUK, noting that 50% of Indianinvestment in Europe was inBritain. In the field of investment,UK is Indias 3rd largest FDIinvestor country with over $ 8billion of investment in the lastsix years. India is the 5th largestinvestor in the UK, with Cameronpushing them to invest more andsignaling that the British did notbelieve in economic nationalism.

About 700 Indian companies areoperating in the UK, with theTata group being the largestemployer. The UK is the largest


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market in Europe for Indian ITservices.

On political and security issues

there was considerableparallelism in the documentsissued at the end of the two visits.Both leaders reiterated supportfor Indias candidature forpermanent membership of the UNSecurity Council as wellmembership of the NSG, theMTCR, the Australia Group andthe Wassenaar Arrangement, thefour export control bodies. Withboth countriesenhancedcooperation incyber security andcounter-terrorismwas underlined.Terrorism wasdeplored stronglyand Pakistan askedto expeditiously try those guilty ofthe Mumbai terrorist attacks. Theconstitutional principles on whichthe inter-Afghan dialogue shouldbe conducted were stressed duringboth visits. This was importantfor India in the case of the Britishwho are seen as pushing foraccommodating the Taliban in thepower structure in Kabul andbeing insufficiently transparentwith the Indian side. It is in thiscontext that with the UK it wasagreed to establish a new Joint

Working Group for a regularbilateral dialogue on peace,security and development in

Afghanistan.

Where there wasnt parallelismwas in India and the UKexpressing their commitment toworking towards a world free ofnuclear weapons and holdingregular consultations ondisarmament and non-proliferation issues. The Frenchhavent joined the bandwagon ofGlobal Zero and hence this subject

did not figure inthe documentsissued duringHollandes visit.Surprisingly, the

joint documentwith France did notspeak of Syria andIran, whereas in

the case of the one with the UK,called, significantly, for a peacefulresolution of the Iranian nuclearissue.

In the case of Mali, Indiasupported action againstterrorists there, earning

Hollandes public appreciation ofthis support for French militaryaction. It is not surprising thatIndia and France reaffirmed theirindependence and strategicautonomy, a language

With both countries enhancedcooperation in cyber securityand counter-terrorism wasunderlined. Terrorism wasdeplored strongly and Pakistanasked to expeditiously try thoseguilty of the Mumbai terroristattacks.


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understandably missing in thejoint India-UK statement givenUKs strong commitment toNATO and its trans-Atlantic ties.

India and France agreed toestablish an annual bilateraldialogue between the two FinanceMinistries on economic andfinancial issues, but no suchdialogue was instituted with theUK. Finally, our PM conveyed hisvery serious concern to Cameronregarding allegations about

unethical means used in securingthe 2010 contract for AgustaWestland helicopters. Theeruption of this scandal wasuntimely for the Cameron visit.

All said and done, both visits weresuccessful. No major agreementswere announced during thesevisits and to that extent theylacked dramatic outcomes. Thevisits were more an expression byboth leaders of their desire toinvest in the India relationship in

a longer term perspective.Cameron exuded a lot of goodwillfor India, rather earnestly, and sodid Hollande in his own style.

France has no history to live downin India, unlike the UK, whichmakes the relationship withFrance easier to handlepsychologically. India has beenoffered political and economicspace by both countries tocapitalize on. We should play ourhand intelligently and derive the

maximum benefit from theseimportant bilateral relationshipswith two of the worlds leadingpowers. However important theUS may be, the importance ofEurope should not be minimized,especially at a time when India isin transition and needs as manypartners as possible for securing a

bright future. Back to Contents


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Need For A Collegium To Choose The

Next CAG

- A. Surya Prakashpeaking on the role andfunctions of the Comptrollerand Auditor General (CAG)

of India in the ConstituentAssembly on May 30, 1949, Dr.B.R. Ambedkar, Chairman of theConstitution Drafting Committee,

said that this officer was probablythe most important officer in theConstitution of India because heis the one man who is going to seethat the expenses voted byParliament are not exceeded orvaried. If this functionary is tocarry out the duties- and hisduties,

I submit, are far more importantthan the duties even of the

judiciary I personally feelthat he ought to have far greaterindependence than the Judiciaryitself.

Without exception, every memberof the Constituent Assembly whospoke on the articles relating tothe CAG, including T.T.Krishnamachari (TTK), PanditHirday Nath Kunzru, K.T. Shah

and R.K. Sidhva fully endorsedDr. Ambedkars sentiments. Theprimary objective of the assemblyappeared to be to clothe the CAGwith such powers that theexecutive would in nocircumstances be able to weaken

his independence and objectivity.As a result, the first amendmentmoved that day was to change thenomenclature of the AuditorGeneral to Comptroller and

Auditor General, because as TTKsaid, the function of the AuditorGeneral is not merely to audit butto have a control over the expenses

of government. The nomenclature,he said, should be in consonancewith the duties that are entrustedto him by the constitution. TheHouse also took some moredecisions in this regard, includingthe decision to put theadministrative expenses of theoffice of the CAG including

salaries, allowances and pensionspayable on the charged account(meaning that these expenseswould not be voted upon by

S

*A. Surya Prakash, Distinguished Fellow, VIF


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parliament); to have the presidentappoint the CAG by warrantunder his hand and seal; to affirmthat the CAG can only be removed

from office in like manner and onthe like grounds as a Judge of theSupreme Court; and to direct thatthe appointee shall, beforeentering office, make andsubscribe before the President, anoath or affirmation as set out inthe Third Schedule. The debate inthe Constituent Assembly and the

final wording ofthese Articles inthe Constitutiontells us a lot of theexalted perch thatthe foundingfathers gave to theCAG.

This background is

essential in orderto understand themischief that maybe afoot at this juncture toundermine the independence ofthis institution while choosing asuccessor to Mr. Vinod Rai, theincumbent CAG, with whom theCongress Party- led United

Progressive Alliance (UPA)government at the Centre hasbeen having a running feud. Theunion government has repeatedlylocked horns with the CAG overthe last two years because its

image has taken a beating overthe scams exposed by the countryssupreme audit agency includingthe ones relating to the conduct of

the Commonwealth Games andthe scandalous and unfair mannerin which 2G Spectrum and coalblocks were sold to privateentities. Since they had no credibledefence, several ministers in theunion government and someleading members of the CongressParty have gone on the offensive

and tried, withoutmuch successthough, to accusethe CAG of havinga political agenda.

GovernmentsDiscomfort with anIndependent CAGMeanwhile, sincethe incumbentCAG, Mr. Rai is

due to retire in May, 2013, there isa lurking fear that the uniongovernment may see this as a godsend and try to have acommitted CAG in place, justlike the committed judiciary that

the Congress Party wanted duringthe Emergency. This fear is notwithout basis. In fact, Mr. V.Narayansamy, the Minister ofState in the Prime MinistersOffice let the cat out of the bagsome months ago when he told

This background is essential inorder to understand themischief that may be afoot atthis juncture to undermine theindependence of thisinstitution while choosing asuccessor to Mr. Vinod Rai, theincumbent CAG, with whomthe Congress Party- led UnitedProgressive Alliance (UPA)

government at the Centre hasbeen having a running feud.


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PTI, the reputed news agency,that the government intended tomake the office of CAG a multi-member body. In that interview

the minister had claimed that thegovernment was considering therecommendations made by the

V.K. Shunglu Committee onbroad-basing the CAG and makingit a multi-member body. Theministers statement, coming as itdid in the wake of the financialscandals unearthed by the CAG,

caused a political uproar forcingthe minister to retract and evenclaim that he had beenmisquoted. But, this was enoughfor all to realize that thegovernments intentions were notsanguine.

There is a history to these fearsbecause the Congress Party, which

enjoyed a two-thirds majority inParliament in the 1970s, turnedIndias democracy into adictatorship, made drasticconstitutional changes to weakenthe judiciary and virtuallywrecked the independence of manyconstitutional authorities,including the CAG. The mantra in

those days, as stated earlier, was acommitted judiciary meaning a

judiciary committed, not to theConstitution, but to the primeminister of the day Ms.IndiraGandhi. Similarly, the

government, which had imposedthe Emergency in 1975, passedorders to weaken the office of theCAG. We have it on the authority

of Mr. Y. Krishnan, former DeputyCAG, that until 1976, all papersand documents pertaining to thesubject matter under auditscrutiny were made available toCAG and this included secret andconfidential records. However, in1976 the government decided thatonly books and accounts need be

made available to Audit and it wasnot obligatory for government tofurnish records or paperscontaining discussions withingovernment, leading to aparticular decision or formulationof a particular policy. Luckily theJanata Party which was voted topower in 1977 repaired much of

the damage done to our democraticConstitution by restoring theoriginal articles and deleting theobnoxious amendments introducedduring the Emergency. Similarly,the orders passed to weaken theCAG in 1976 were withdrawn andthe original authority of the CAGwas restored by the Janata Party,which put democracy back ontrack.

However, it would be unwise tothink that these undemocratictendencies are now part of history,because the ruling dispensation


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has often laboured to remind usthat the Emergency mindset isstill alive and kicking. Two recentdecisions of the government the

appointments of Mr. NavinChawla as Election Commissionerand Mr. P.J. Thomas as Central

Vigilance Commissioner go toestablish that the CongressPartys discomfort with healthydemocratic norms andindependent constitutionalauthorities persists. The damage

that these appointments did to thedemocratic environment will bediscussed a littlelater.

Meanwhile, if weare to prevent theexecutive(politicians) fromundermining the

constitutional scheme, a collegiumapproach to the selection of theCAG becomes an urgent necessity.The CAG is fully empowered by

Articles 148-151 to discharge hisfunctions independently andfearlessly. But if the choice of theCAG is left to the government ofday, specially in times such as

these, there is every danger of thegovernment choosing a person whois not strong enough morally andethically to leverage the powersvested in him by the Constitutionand act without fear or favour.

Some retired bureaucrats andMembers of the Forum of RetiredOfficers of Indian Audit and

Accounts Service have fired the

first salvo in this regard bywriting to the President Mr.Pranab Mukherjee and the PrimeMinister demanding that the needof the hour is a transparent,institutionalized selectionmechanism for choosing the nextCAG.

They have suggested that a

Committee headed by the PrimeMinister and comprising the

Finance Minister,the Lok SabhaSpeaker, theLeader of theOpposition in theLok Sabha, theChairman of the

Public Accounts Committee andthe Chief Justice of India or alegal luminary should beconstituted to select the CAG. Thesignatories to this memorandumhave also referred to theprecedents that now exist foradopting the collegium approachto appointing persons to high

offices. They refer to thecommittees constituted to choosethe Central VigilanceCommissioner and the Chairmanof the National Human Rights

Meanwhile, if we are to preventthe executive (politicians) fromundermining the constitutionalscheme, a collegium approach tothe selection of the CAGbecomes an urgent necessity.


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Commission. The same procedureshould be adopted to select theCAG, they say. Does this not meritconsideration in view of the past

record of the UPA?Left to the PM, it could be anotherP J Thomas!The National Commission toReview the Working of theConstitution (NCRWC)deliberated on the procedure tochoose the Comptroller and

Auditor General.In its report, it said A fairlypersuasive school of thought hasargued that to upholdtransparency and integrity inpublic life, the appointment of theC&AG should not be the exclusivepreserve of the executive but acommittee consisting of the PrimeMinister, the Union FinanceMinister, the Speaker of the LokSabha, the Leader of theOpposition and the Chairman ofthe Public Accounts Committeeshould be empowered to make theappointment.

It however stopped short of

making that recommendationbecause it felt that in oursituation it would be counter-productive to undermine theconstitutional and moral authorityof the Prime Minister by

stipulating a mechanism thatwould supplant his decision-making. Instead, it recommendedthat a healthy convention be

developed to consult the Speakerof the Lok Sabha beforeappointing the CAG. This wouldensure that the views of thePublic Accounts Committee arealso taken into account, whilechoosing a person for that office.

The Commission submitted itsreport 11years ago, long before the

ministers of UPA-II displayedbrazen favouritism and rankirresponsibility in the sale of 2GSpectrum or coal blocks andSuresh Kalmadi presided over theCommonwealth Games Scandal.One can be fairly certain thatJustice M.N. Venkatachalaiah,who presided over this

Commission, and other memberswould have been far morecircumspect on the issue ofprotecting the moral authority ofthe Prime Minister if they were tobe writing the Commissionsreport today.

In all probability, the scandals

that have tumbled out of thegovernments cupboards over thelast two years and the politicalattack on the office of the CAG byministers in the governmentwould have persuaded theCommission to go along with the


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opinion expressed by Dr. P.B.Mathur, former Deputy CAG, inthis regard in the consultationpaper he submitted to the

Commission. Dr. Mathur had saidthat in India, it would benecessary to keep the office ofCAG outside the exclusive purviewof the executive.Recommendations regarding hisappointment should be made byan independent committee. Onecould suggest that the committee

should consist of the PrimeMinister, Finance Minister, theLeader of the Opposition of theLok Sabha andChairman of thePublic AccountsCommittee. Thereis also need toprescribe

qualifications forappointment to the post and aperson who has substantiveexperience of public sectoraccounting and auditing systemsshould only be appointed.

The collegium approach toappointment of the CAG isnothing new. Several other

democracies have already adoptedit in one form or the other. Dr.Mathur explains that in the U.K,the Prime Minister and Chairmanof the Committee on Public

Accounts jointly select the CAG

and get it ratified by the House ofCommons. In Australia, he says,the CAG is appointed by theGovernor.

General on the recommendation ofthe Minister, after the Ministerhas referred his recommendationto the Joint Committee of Public

Accounts and Audit and theCommittee has approved thesame. Dr. Mathur says that in theU.S, the Comptroller General ofthe United States and the

Assistant Comptroller General ofthe United States are appointed

by the Presidentwith the advice andconsent of theSenate. The

Congressparticipates in theselection of the

Comptroller General by providinga list of candidates from which thePresident may choose and byconfirming the appointment.

Unfortunately, the Prime Ministerhas already rejected the idea of acollegium choosing the next CAG.Replying to a letter from a

member of parliament, whosuggested that a collegium beconstituted, he said that thesystem in vogue over the sixtyyears has stood the test of timeand there is no need to review it.

The collegium approach toappointment of the CAG isnothing new. Several otherdemocracies have alreadyadopted it in one form or theother.


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The Prime Ministers claim thatthe system of appointment of theCAG, which has been in vogue forlong years, need not be revised, it

needs to be contested. As he ishimself aware, the process ofappointment of the Central

Vigilance Commissioner hasundergone a change in recentyears. It is not what it used to be.Following directions from theSupreme Court, the uniongovernment has to now appoint a

committee comprising the PrimeMinister, the Home Minister andthe Leader of the Opposition in theLok Sabha to choose the CVC. Mr.Singh and his colleagues adheredto this direction of the SupremeCourt and constituted such acommittee to appoint the CVC in2011, but the Prime Minister

failed to the grasp the spirit of thecourts direction. As a result, heand the Home Minister togetherover-ruled the objections of theLeader of the Opposition, Ms.Sushma Swaraj and took theshocking decision to appoint Mr.P.J. Thomas as the CVC, knowingfully well that he was an accusedin the Palmolein Import Scandalin Kerala. Eventually, Mr.Thomass appointment was struckdown by the Supreme Court.While doing so, the court said, thetouchstone for the appointment ofthe CVC is the institutional

integrity as well as the personalintegrity of the candidate,meaning thereby that these werewanting in the governments

decision. Can there be a greaterindictment of a governmentdecision?

Unfit for Public Office, but fit tobe Chief Election Commissioner!Prior to this, the Manmohan Singhgovernment appointed Mr. NavinChawla, a person whose

democratic credentials weresuspect and who had beendeclared by the Shah Commission,that probed Emergency excesses,as a person unfit to hold anypublic office as an ElectionCommissioner. Mr. Chawla laterwent on to become the ChiefElection Commissioner. Mr.

Chawla stood accused of grossmisuse of office during thedreaded Emergency. This is whatthe Shah Commission had to sayabout him:

It is clear on the evidence thatS/Shri P.S.Bhinder, K.S.Bajwaand Navin Chawla exercisedenormous powers during the

emergency because they had easyaccess to the then prime ministershouse. Having acquired thatpower, they used it withoutconsidering whether the exercisewas moral or immoral, legal or


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illegal. The commission is of theopinion that though theinvolvement of these officers mayvary slightly in degree, their

approach to the problems of theperiod relating to the citizens wasauthoritarian and callous. Theironly anxiety was to preserve andprotect their proximity to the seatof power and towards that endthey did everything which theythought would lead to their ownadvancement. They grossly

misused their position and abusedtheir powers in cynical disregardof the welfare ofcitizens and in theprocess renderedthemselves unfit tohold any publicoffice whichdemands an

attitude of fair playand considerationfor others. In their relish for powerthey completely subverted thenormal channels of command andadministrative procedure.

In its concluding remarks on theconduct of Mr. Chawla and otherofficers during the emergency, the

commission had this to say:Effective dissent was smothered,followed by a general erosion ofdemocratic values. Highhandedand arbitrary actions were carriedout with impunity Tyrants

sprouted at all levels overnight tyrants whose claim to authoritywas largely based on theirproximity to power..

Given this indictment, it wasobvious that this decision of thegovernment, which constituted amonstrous folly, betrayed non-application of mind and rankpartisanship. This conclusion wasfurther reinforced by Mr. Chawlasconduct as Election Commissioner.In an unprecedented move, the

then Chief Election Commissioner(CEC) Mr.

Gopalaswamiwrote to thePresident inJanuary, 2009,accusing Mr.Chawla of

"partisan

behaviour" and"lack of political neutrality" andrecommending his removal fromoffice.

Referring to many instances citedby him in his detailed report to thePresident, Mr. Gopalaswami saidtaken individually, these instances

appear to indicate Mr. Chawla'spolitical partisanship.Collectively, they point to acontinuity of consistent thoughtand action in furthering theinterest of one party with which heappeared to be in constant touch

In its concluding remarks onthe conduct of Mr. Chawla andother officers during theemergency, the commission hadthis to say: Effective dissentwas smothered, followed by ageneral erosion of democraticvalues.


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raising serious doubts about hispolitical detachment. The CECfurther said it was not only thathe appeared to be lacking in

political neutrality but morepernicious were his attempts toinfluence Election CommissionerDr Quraishi, not by dint of validarguments, but by spreadingstories that Dr Quraishi wassupporting the opposite views."

No other Election Commissioner

in India has the distinction ofbeing indicted in this manner bythe CEC. Yet, despite the gravityof the charges the CEC hadleveled against Mr. Chawla, theManmohan Singh governmentrejected the CECs report andwent on to appoint Mr. Chawla asChief Election Commissioner.

These actions of the governmentbetrayed its complete contempt forconstitutional and democraticprinciples. The danger is that thiscould become a precedent thatcould do considerable harm to thedemocratic process in the future.

The question before us therefore

is: Can a government whichappointed Navin Chawla asElection Commissioner and P.J.Thomas as CVC be trusted withthe appointment of the CAG. Theconstitution makers did not

suggest a collegium approach 63years ago to choose the CAGbecause they lived and drafted theConstitution in more honourable

times when Jawaharlal Nehru,B.R. Ambedkar and SardarVallabhai Patel, to name a few,were at the helm. That was alsothe time when we had civilservants like Mr. V.P. Menon whosupervised the integration of 563states under Sardar Patelsdirections. Todays government is

peopled by Mr. Manmohan Singhand Mr. Chidambaram, whobrazenly used their 2-1 majority ina committee to outvote the Leaderof the Opposition and appoint aperson who was an accused in acorruption case as the Central

Vigilance Commissioner of thecountry. Frankly speaking, though

Nehru, Patel and Ambedkar werebrilliant men, even they couldnever have realized that Indiawould have a Prime Minister andHome Minister who would,probably at the behest of theirpolitical master, take a decisionthat was so blatantly perverse.

Therefore, these appointments of

Thomas, Chawla et al by the UPAknock the bottom out of theargument that the system hasstood the test of time.

The old system no longer serves uswell. We need a new system that


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is at least bi-partisan if not non-partisan. Also, in the light of Mr.Manmohan Singhs and Mr.Chidambarams track record, it is

not in the larger interests ofIndias constitutional well-being tolet the Prime Minister and hissenior colleagues be the soledecision makers when it comes tochoosing a constitutional authoritylike the CAG. We must have acollegium in place to choose Mr.Rais successor. A pliable or

committed CAG cannot fulfill theConstitutions mandate. Also wemust bear in mind that bothinstitutional integrity as well asthe personal integrity of thecandidate matter the most insuch appointments, as the three-

judge Supreme Court Benchheaded by Chief Justice Kapadia

said in the P.J. Thomas case.References:Constituent Assembly Debates,May 30, 1949, Vol VIII, pp.403-415Constitution of India, Articles 148-151

The Comptroller and AuditorGenerals (Duties, Powers andConditions of Service) Act, 1971

Report of the NationalCommission to Review theWorking of the Constitution,Chapter 5, Volume I, Paras 5.6.1 -5.17 B.P.Mathur, ConsultationPaper on Efficacy of Public AuditSystem in India, Report of theNational Commission to Reviewthe Working of the Constitution,

Volume II, Book I

Y.Krishnan, Audit in IndiasDemocracy, Y.Krishnan, ClarionBooks, New Delhi, first hardcoveredition, 1990, p.38)

Report of the Shah Commission ofInquiry, August, 1978

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The Justice System

- Dr M N Buchhe justice system in India ispassing through anextremely difficult period,

for which there are a number ofreasons. Let us start with thebasics, that is, the separation ofpowers. In this a very specialposition is given to the Judiciary

which makes it totallyindependent of the Executive. Thisis most praiseworthy, but it wouldbe futile to deny that the system isunder stress. As the Executivefails to perform its functions ofgoverning, as people develop afeeling that they cannot expectfairness, impartiality andefficiency from the Executive,recourse to the courts hasincreased substantially and inmatters in which the Executiveshould have taken a decision theJudiciary is being forced tointervene so that people receivetheir due, especially in terms ofdelivery of services. Because it isimpossible to maintain anabsolutely fine-tuned balancewhen one constituent of the Stateis forced to order another, equalconstituent to act in a particular

way or desist from acting inanother way, there are bound to becomplaints that the Judiciary isintervening in executive matters.Looked at from the citizens pointof view this is just fine because heis interested in his legitimate workbeing done. That, however, is not

how the Executive views it. Therehave also been instances of clashesbetween the Judiciary and theLegislature, but fortunately thestand-off has never reached thepoint of irreversible crisis.However, the Executive mustbegin to govern and its lowliestfunctionary must begin to do hisduty as mandated by law, rules orexecutive order. If that happenspeople will find it unnecessary goto the Judiciary for remedy andcourts can then go back to theirmain function of deciding issuesbetween adversaries.

One of the areas of conflict is inthe appointment of judges of the

Supreme Court and the HighCourts. Article 124 of theConstitution states how a judge ofthe Supreme Court may be

T

*Dr M N Buch, Dean, Centre for Governance and Political Studies, VIF


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appointed. Article 217 provides forthe appointment of High Court

judges. The operative part ofArticle 124 (2) reads, Every judge

of the Supreme Court shall beappointed by the President bywarrant under his hand and sealafter consultation with such of the

judges of the Supreme Court andof the High Courts in States as thePresident may deem necessary forthe purpose and shall hold officeuntil he attains the age of sixty-

five : Provided that in the case ofappointment of a judge other thanthe Chief Justice, the Chief Justiceof India shall always beconsulted. Under Article 217 forthe appointment of a judge of aHigh Court the President is theappointing authority and he isrequired to decide on such

appointment in consultation withthe Chief Justice of India,Governor of the State and, in thecase of appointment of a judgeother than the Chief Justice, theChief Justice of the High Courtconcerned. The Supreme Courthas ruled that consultation withthe Chief Justice of Indiaestablishes the primacy of theChief Justice in determining whoshall or shall not be appointed a

judge of the Supreme Court or aHigh Court. The Supreme Courthas further ordered that it is acollegium of judges, to be selected

by the Chief Justice which willhelp the Chief Justice todetermine what advice should berendered to the President

regarding the appointment of ajudge.

I have serious objection to theconcept of a collegium of judgeswhich limits the power of thePresident to consult such judges ofthe Supreme Court and the HighCourts as he deems necessary,which is what Article 124 (2)states. I do not think that theSupreme Court can thus limit theauthority of the Presidentregarding consultation which vestsin him through the Constitution,though the Chief Justice of Indiawould be free to set up a collegiumto advise him on therecommendations to be made onconsultation. The question stillremains about how a conflict willbe resolved where the collegiumadvises the Chief Justice in aparticular way and the judgeswhom the President consults givesome other advice. The thirdplayer would be the Council ofMinisters, whom the President isbound to consult before taking adecision because under theConstitution he is bound by theadvice of the Council. This wouldapply to the Governor of a Statealso who, when consulted by the


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President about appointment of aHigh Court judge, would naturallyhave to abide by the advice givento him by his Council. In other

words, the present provisions ofthe Constitution and theirinterpretation by the SupremeCourt do leave open the gates ofdisagreement and even conflictbecause whereas the Presidentmay not appoint a judge whom theChief Justice of India and thecollegium have found unfit, he

need not appoint apersonrecommended bythe Chief Justice.In fact manyvacancies in theHigh Courts andthe Supreme Courthave not been filled

on account of suchconflict.

Government has been trying to setup a National JudicialCommission, to be headed by theChief Justice of India and withadequate representation of theSupreme Court and High Courts.The Commission, as envisaged,would have the Law Minister, theLeader of the Opposition of one ofthe two Houses of Parliament andan eminent jurist nominated bythe President as members. JusticeJ.S. Verma, Justice V.N. Khare,

Justice V.R. Krishna Iyer andJustice M.N. Venkatachalliah areall opposed to the collegiumsystem. Perhaps the issue could be

resolved if the proposed NationalJudicial Commission could have amajority of judicial members, withthe Chief Justice having a vetopower and if the eminent jurist isnominated by the Chief Justice ofIndia rather than the President.Suitable constitutional and legalarrangement could be made for

the advice of theNational JudicialCommission beingfinal, with neitherthe President northe Prime Ministerbeing authorised tooverrule it.Without bringing

the Executive intothe process for theappointment of

judges of the Supreme Court andHigh Courts, such an arrangementwould widen the scope of therequired consultation with theChief Justice and by bringing thegovernment, the opposition andthe Bar on board through aneminent jurist, the system ofappointment of judges could bemade more broad based and morecredible.

In other words, the presentprovisions of the Constitutionand their interpretation by theSupreme Court do leave openthe gates of disagreement andeven conflict because whereasthe President may not appointa judge whom the Chief Justiceof India and the collegium havefound unfit, he need not

appoint a person recommendedb the Chief Justice.


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An independent judiciary is a sinequa non of a true democracy.However, the only system ofgovernance in which authority

does not go hand in hand withaccountability is a dictatorship ofthe type established by Hitler orStalin. This means that the moreindependent the judiciary themore should it be accountable.

Accountability which does not leadto penalty for failure to dischargeaccountability satisfactorily is no

accountability. Under Article 227courts and tribunals locatedwithin the jurisdiction of a HighCourt work under thesuperintendence of the High Courtand in exercise of the power ofsuperintendence the High Courtcan call the court or tribunal toaccount. Under Chapter 6 of Part

VI of the Constitution the Districtand Sessions Courts and theCourts of Magistrates and CivilJudges are termed as subordinatecourts and under Article 235control over subordinate courtsvests fully in the High Courts. TheConstitution, therefore, providesfor High Courts to decide howsubordinate courts will function, toprescribe measures to ensureaccountability and to punish forfailure to render account, in termsof finance, efficiency, judicialcompetence, etc. But what aboutthe High Courts and the Supreme

Court? Their judicialpronouncements are open toappeal, revision and review, butadministrative and personal

conduct are not subject to thesuperintendence, supervision orcontrol of any judicial authority. Ifa judge does little or no work, isnot regular in attendance, delays

judicial pronouncements, does notpromote efficient judicial processin his own court or in subordinatecourts the maximum that can

happen is that under Article 222,on the advice of the Chief Justiceof India, the President maytransfer a judge from one HighCourt to another. If there isserious misconduct the procedurelaid down in Article 124 (4), itwould be applicable. For HighCourt judges Article 218 would

apply, which means that aSupreme Court or High Courtjudge can only be removed throughimpeachment proceedings. Thereis no other penalty prescribed, butas the Justice Ramaswamy casehas proved, if equations inParliament are such that thenecessary majority cannot bemustered, a judge found guilty ofmisconduct by a tribunalconstituted under Article 124 (4and (5) the judge may still escaperemoval. Carried one step further,if a judge is found guilty in acriminal trial, convicted and given


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a jail sentence, the impeachmentproceedings can still fail and theconvict would continue to be a

judge of a High Court or the

Supreme Court. This may happenin the case of a lady judge of thePunjab and Haryana High Courtwho has been accused of taking abribe. Government, Parliamentand the Supreme Court mustrealise that what could never bedreamt of when the Constitutionwas drafted, that

is, a judge of aHigh Court orSupreme Courtcommitting acriminalmisdemeanor, canno longer beignored and,therefore, we must

have aconstitutionalprovision wherebyin such cases, whiletaking great care toensure that the independence ofthe judiciary is not therebycompromised, such a judge can bemade to demit office.

The major problem with oursubordinate courts from Districtand Sessions Courts down to aMagistrate First Class cum CivilJudge Class Two is that cases dragon for years. Formerly civil

litigations were considered to bevery lengthy and time consuming,but now unfortunately even thecriminal justice system has

become subject to inordinatedelay. I have perhaps quoted thiscase elsewhere, but it bearsrepetition. In Mach 1983 shortlybefore I left the Service wetrapped a lady who was trying tobribe a Deputy Secretary. He hadalready reported that such an

attempt was being

made and wearranged a trap,catching the ladyred handed. Myevidence wasproforma, butnecessary becausethe bribe was beingoffered for

expeditiousprocessing of a casein which theaccused personsapplication to me

had been forwarded by me to theDeputy Secretary for examination.It took eleven years for myevidence to be recorded becauseevery time I went for a hearing theaccused, by absence, bysubterfuge, by downright lies wasable to obtain adjournments. Thecase was finally decided fifteenyears after the event. What is thedeterrent effect of such

My evidence was proforma, but

necessary because the bribewas being offered forexpeditious processing of acase in which the accusedpersons application to me hadbeen forwarded by me to theDeputy Secretary forexamination. It took elevenyears for my evidence to berecorded because every time I

went for a hearing the accused,by absence, by subterfuge, bydownright lies was able toobtain ad ournments.


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proceedings? How can witnessesbe expected to remember an eventwhich happened several yearsearlier and give testimony which

could withstand crossexamination, the purpose of whichis to discredit the witness? Thiswas a simple case with only threeor four witnesses, but imaginewhat happens in a serious case inwhich a heinous offence has beencommitted and there are a largenumber of witnesses. No wonder

we have such a miserable record ofconvictions.

I have been trying to understandwhy cases are delayed. I am noteven attempting to look at civilcases because that will requireseveral volumes. In a criminaltrial the first delay occurs at thestage of investigation. Theavailable clues may be either sofew as to be almost nonexistent,witnesses may not be available,the forensic tests may beinconclusive, the investigatingofficer may be overburdened andcan give only limited time to aparticular offence, the accused andthe witnesses or even thecomplainant may come to somecompromise or there could besheer inefficiency. This is wheresuperior police officers have amajor role to play to ensure thatinvestigation is consistent,

sustained and done withintelligence. Forensic and othersupport must be made availablefreely to the investigating team.

The legal niceties of investigationmust also be taken care of. Thesubmission of the challan must beaccompanied by fulldocumentation so that the charge-sheet is complete in itself. Thishas to be followed up by properrepresentation of the prosecutionin court, with the public

prosecutor and his assistantsapplying due diligence to the case.If the public prosecutor is wideawake and proactive many of thedelays in court can be avoided.

One reason for delay is in theserving of process. The courtmoharrir, who would generally befrom the police, or the reader ofthe magistrate or judge, would beresponsible for issue of processwhich, in criminal cases, wouldgenerally be served by the police.The arrangement is notsatisfactory and most courts reportthat service of process is tardy andvery often summons and warrantsare just not served in collusionwith the accused or the witnesses.Surely, with modern means ofcommunications, with speed post,courier service, SMS texting andthe internet the High Courts canwork out a system whereby service


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of process becomes efficient andcannot be used as an excuse fordelay in court proceedings. Ourcourts cannot function in the

eighteenth century when thetwenty-first century gives suchexciting and innovative means ofcommunication, or are theywaiting for that happy day whenscience evolves a means ofapparatus-less communication ofthought process whereby what the

judge thinks is communicated to

the witness oraccused by a para-psychic process?Coming to the trialproper, defencecounsels are proneto pleading foradjournments,especially in those

cases where thedefence case isweak.

Adjournments must be avoidedbecause whereas an adjournmentwhich is unavoidable is given, inmost cases adjournment is denied.It is for learned counsel to adjusttheir cause list in such a way thatappearance in one court cannot beoffered as an excuse fornonappearance in another court.There is no reason for a judge togive an adjournment only for thesake of convenience of counsel.Every defence counsel is an officer

of the court and it is his duty toassist the court in speedy disposalof a case. A counsel who actsotherwise fails in his duty and

should be treated as such.

I have talked to a number ofjudges and magistrates about whythey are not strict in the matter ofadjournment. Under Article 21 ofthe Constitution every person,including one accused of a heinousoffence, is still entitled to be triedby due process before being

deprived of his lifeor personal liberty.Under Article 22 aperson who isarrested anddetained in custodyhas the right to beinformed of thegrounds for arrest,he has the right toconsult and be

defended by a legal practitionerand he cannot be detained inpolice custody beyond twenty-fourhours of arrest without the ordersof a magistrate. Under Article 39(A) every citizen is entitled toequal justice. This is enforceableby the provisions of Articles 139and 226 which confer writ

jurisdiction on the Supreme Courtand the High Courts. The Code ofCriminal Procedure prescribes theprocess of trial in criminal cases.

Adjournments must be avoidedbecause whereas anadjournment which isunavoidable is given, in mostcases adjournment is denied. Itis for learned counsel to adjusttheir cause list in such a waythat appearance in one courtcannot be offered as an excuse

for nonappearance in anothercourt.


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Chapters XVI and XIX of Cr.P.C.state how proceedings shall beconducted before a Magistrate andChapter XVIII does the same for

trial before a court of session.Under sections 231 and 233Cr.P.C. an accused person has theright to cross examine theprosecution witnesses and to enterupon his own defence and adduceevidence in this behalf. Supposean accused person deliberatelydelays the taking of evidence for

the prosecution and indefinitelydefers his own defence. Should thecourt indulge him and go on givingadjournments indefinitely, ashappened in the bribery case towhich I have earlier referred?Under Indian law a person isdeemed to be innocent till provedguilty but there is no provision of

law which says that an accusedand his counsel can go on creatingobstruction so that the trial isindefinitely delayed. In otherwords, an opportunity, amanifestly fair opportunity, mustbe given to the accused on trial topresent his case, but when theaccused tries to indefinitely delaythe matter the court need notsuccumb. Under section 309Cr.P.C. the provision is, In everyenquiry or trial the proceedingsshall be held as expeditiously aspossible and, in particular, whenthe examination of witnesses has

once begun, the same shall becontinued from day-to-day until allthe witnesses in attendance havebeen examined, unless the court

finds the adjournment of the samebeyond the following day to benecessary for reasons to berecorded. The proviso to thissection states that any trialrelating to an offence undersection 376 and 376(D) of IPC(sexual offence amounting to rape)must be completed within a period

of two months from the date ofcommencement of the examinationof witnesses. The scheme ofCr.P.C. is very clear, the accusedis entitled to a fair trial, but he isnot thereby entitled to indefinitedelay.

I have spoken to some judgesabout why they so readily giveadjournments. Even the mostconscientious of them state that ifthey do not give an adjournmentthere are many defence lawyerswho indulge in making complaintsagainst the judge and, by andlarge, the High Courts tend to bemore sympathetic to defencecounsel than to their own judges.Rather than face such complaintsmany judges take the easy wayout and adjourn the case. One ofthe things which many judgeshave forgotten is that bail is also aform of custody in which instead of


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physically holding the accused thecourt permits enlargement on bail,whereby surety of appearance issubstituted for physical custody. If

the accused person deliberatelydelays proceedings by nonappearance or such other tactics itwould be legitimate for the courtto hold the person in physicalcustody and to proceed with thecase on a day-to-day basis. TheSupreme Court and the HighCourts must try and move the

courts in this direction. Greateradoption ofevidence throughvideo conferencingand other means ofelectronic recordingof evidence wouldalso help inexpediting cases.

There are somerecentdevelopments which are causingme worry. The first is that recentrape cases have certainly shakenthe nation, with the Chief Justiceof India going as far as to say thathe would have personally liked toparticipate in the public protest.Perhaps he was ill advised tomake this statement because in away he thus pre judges even thespecific case under mention, whichmeans that no trial court in Indiawould hereafter readily acquit a

person in such matters unless nocase at all is made out and thiscould lead to mistrial of rape casesand denial of justice to the accused

persons. We have seen a wholespate of very speedy trials, somelasting only for ten days, in whichthe accused has been sentenced todeath. Murder, whether or notaccompanied by rape, is theultimate crime because itirreversibly deprives a person ofhis life. The accused also faces

possible judicial termination of hislife at the end ofthe trial and,therefore, courtshave to be extracareful to ensurethat the accusedhas full and fairopportunity to

represent his or hercase and that thereis no miscarriage of

justice through haste. TheSupreme Court and the HighCourts for years have ruled thatthere should be extreme caution inawarding the death penalty andthat, too, only in the rarest of rarecases. In sharp contrast in at leasthalf a dozen cases in the last twoor three months rapists have beenawarded the death penalty aftertrials which smack of thesummary. The judiciary cannotswing between two extremes

There are some recentdevelopments which arecausing me worry. The first isthat recent rape cases havecertainly shaken the nation,with the Chief Justice of Indiagoing as far as to say that hewould have personally liked toparticipate in the public

protest.


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because our politicians, civilservants and the so-called civilsociety are already doing this.Certainly the judiciary should

enforce the law with greatstrictness and there should be nomisplaced and pseudophilanthropic attitude towardscrime and criminals. At the timesame justice has to be donebecause two principles of AngloSaxon Jurisprudence that wefollow are :- (1) An accused is

presumed to be innocent tillproved guilty, with the burden ofproof of guilt resting on theprosecution. (2) It is better that a

hundred guilty people go freerather than that one innocentperson be punished. It is for the

judiciary to ensure that the

balance is maintained, theinnocent are protected and at thesame time the guilty are broughtto justice in the shortest possibletime.

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From Look East To Engage East: How

Indias Own Pivot Will Change Discourse

In Indo-Pacific Region- Nitin Gokhale

uch before PresidentBarack Obamarediscovered Asias

importance to the world andannounced an American

rebalance towards Asia-Pacificregion in January 2012, NewDelhi had quietly upgraded its twodecade old Look East Policy toEngage East, demonstrating anew resolve to play a pivotal rolein its extended neighbourhood.

As India has pivoted towards the

East, the term Indo-Pacific hassuddenly gained currencyacknowledging Indias growingstature in Asia. At the moment,New Delhis surge to the East isdictated primarily by economicand trade ties with ASEANnations.

Its role in the East Asia Forumhas also become important for thestrategic balance in Asia.

In the three years since a FreeTrade Agreement (FTA) on goods

was signed between India andASEAN, trade has risen by 30 percent. Apart from Indias growingengagement with ASEAN, itseconomic relations with China,

Japan and, more lately, Australiahave also grown much faster thanbefore.

Inevitably, there is also a securitydimension to the Engage Eastpolicy. Indias tri-services

Andaman Nicobar Command,located closer to Indonesia thanthe countrys mainland, is fastemerging as a springboard for thecountrys growing strategic andsecurity forays into MalaccaStraits and beyond.

A rapidly modernising IndianNavy is a factor for stability in theregion. The US has been seekingto rope in New Delhi for

cooperative security arrangementin Asia, a prospect that is notrelished by China. Beijing isespecially wary of New Delhisbilateral military cooperation with

M

*Nitin Gokhale, Visiting Fellow, VIF


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Vietnam, Philippines, SouthKorea, Indonesia, Malaysia andJapan.

The Indo-Pacific has thus becomea key driver of global politics.Stretching from the Indiansubcontinent to the western shoresof the Americas, the region spanstwo oceans -- the Pacific and theIndian -- that are increasinglylinked by shipping and strategy.Indias outreach through bilateraland multi-lateral organisationslike the BIMSTEC (Bangladesh,India, Myanmar,Sri Lanka, andThailand EconomicCooperation) andthe little-knownIndian Ocean Rim

Association forRegional Co-operation is set toalter the geo-strategic landscapein not too distant future.

Engage East is thus not a uni-dimensional idea. It has manystrands, some seeminglydisparate, but they represent NewDelhis desire to play a more

constructive and dare one add, amore decisive role in Asia. I wantto concentrate on this relativelyless focused aspect of Indiasstrategic thought and explore the

roadmap that is bound to evolve inthe coming decade.

One of the key factors in Indias

Look-East-Engage East policy is ofcourse Myanmar. Last year, PrimeMinister Manmohan Singh wentto Myanmar and said India andMyanmar were "natural partners."

He suggested tapping the huge un-realised potential of the economicrelationship between the twocountries for mutual benefit.

During that two-day trip, Indiaand Myanmarsigned a number ofagreements andput in place a roadmap for the rapiddevelopment ofrelations in theyears ahead.

As diplomatic visits go, it was agreat success. But it takes morethan usual platitudes to translatea triumphant state visit into along lasting relationship, comingas this one does after a relativelylow profile engagement over thepast decade.

As the Prime Minister pointed out:" Myanmar, with its unique"geographic location, can be abridge linking South and Southeast Asia to east Asia and there is

The Indo-Pacific has thusbecome a key driver of globalpolitics. Stretching from theIndian subcontinent to thewestern shores of the Americas,the region spans two oceans --the Pacific and the Indian --that are increasingly linked by

shipping and strategy.


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much untapped potential in oureconomic relationship."

After all, India has a major

partnership with her neighbouringASEAN countries in trade andinvestment.

Myanmar, now a member ofASEAN has become a major linkbetween India and ASEANcountries. And North East,particularly Manipur, ought tobecome the center of thriving and

integrated economic space linkingtwo dynamic regions with anetwork of highways, railways,pipeline, and transmission linescrisscrossing the region.

Development of the northeast isthus integral to Indias policy onMyanmar. The North East is a

corridor and a transit route toSoutheast Asia. Infrastructurebuilding tops the priority-list. Abig project already under way isdesigned to turn the KaladanRiver into a shipping route,linking Mizoram to Myanmarsport of Sittwe, which India ishelping develop. India has also

agreed to upgrade an extensivenetwork of roads and bridges inMyanmar that would effectivelyconnect the Northeast (and therest of India) to Thailand as soonas 2016. Both sides are also

exploring the possibility of settingup train routes through thecountry. Facilitating bordertransit would make the Northeast

a gateway to Myanmar --apotential boon for trade as well astourism.

India's north eastern states andMyanmar should be the maintarget markets of many productsmanufactured in the SEZs to onceagain make Indias north easternstates and northern Myanmar anatural economic zone, which theyhistorically were, providing asustainable economic life line tothe north-eastern states. But thiswould require enormous fast-paced infrastructure developmenton the Indian side of the borderwith Myanmar which is primitiveand is hardly geared to handle thetraffic that would be generateddue to the Kaladan project.

Manipur shares a 398-km borderwith Myanmar. But moreimportantly the border town ofMoreh has been a traditionaltrading hub with Myanmar andtherefore has vast potential to

become a major export centre fromIndia for the South East Asianregion. Heres why: According toavailable statistics, bilateral tradebetween India and Myanmar morethan doubled between 2005 and


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2010, expanding from US$557million to $1.2 billion, most of itthrough Moreh. Disappointinglythough, it pales in comparison to

the bilateral trade between Chinaand Myanmar which in 2010amounted to an estimated $3billion.

In this context, the TrilateralHighway that aims at connectingIndias North-east with Thailandvia Myanmar becomes important.It could mitigate thedisadvantages of landlockedNorth-east India. Itis a component ofthe AsianHighway, which isscheduled forcompletion by2016. Proposed andimplemented bythe United Nations Economic andSocial Commission for Asia andPacific (UNESCAP), the AsianHighway Project includes the

Asian Highway 1 and 2 that wouldpass through the North-east,connecting India with its easternneighbours. Thus, with the comingof the Asian Highway, Myanmarwill become the point ofconvergence as well as the linkingroute between India and the otherSouth-east Asian countries. That,in turn, will lead to the creation ofmore secure and safe living spaces

for the populace residing on eitherside of the border.

But there are apprehensions too.

Local people in the Northeast fearthat with the opening of the AsianHighway and in the absence ofinadequate enforceable regulationon immigration, illegal migrationinto the region may increasemanifold.

It is the failure of actualizingintent that rankles in Manipur.

That, combined with multiplefrustrations emanating from

prolonged bouts ofeconomic

blockades, a stateadministration interminal atrophyand the continuedand unchallenged

writ of underground armedgroups, has left the peopledespondent. It is this hopelessnessthat the Centre and Stategovernment must work hard toovercome. For that, a solution tolong-standing ethnic insurgencieshas to be found in double-quicktime.

Now is the time to press for peaceand security in Manipur sincepolitics in Myanmar areundergoing a dramatic change.With the junta taking tentative

In this context, the TrilateralHighway that aims atconnecting Indias North-eastwith Thailand via Myanmarbecomes important. It couldmitigate the disadvantages oflandlocked North-east India.


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steps towards genuine democracyand showing signs of warmingtowards India, New Delhi mustseize this moment to re-establish

lasting trade and cultural tieswith its eastern neighbour. Butbefore India can play a larger rolein Myanmar, it needs to fixManipurs broken socio-politicallandscape.

Manipur and to a lesser extentNagaland must take advantage of

the liberalisation that is takingplace in Myanmar. But thatpotential can be fully realised onlyif New Delhi starts looking at

Manipur as an important startingpoint in Indias Look East policyinstead as a dead end of thecountrys road network

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Pakistans Lame Lawmakers Resolution

On Kashmir: A Challenge For India

- Sushant Sareenhe highly provocative,extremely offensive, andutterly reprehensible

resolution passed by the NationalAssembly of Pakistan condemningIndian state sponsored brutalitiesand demanding the handing over

the body of executed terroristAfzal Guru to his family, allowingpeople to freely practice theirreligion (this coming from a statewhere an open season has beendeclared on Shias, Hindu girls areabducted and forcibly convertedand Christians are subjected tothe worst sort of Islamofascism),

pulling out of security forces fromKashmir and repealing all blacklaws in the Indian state, release ofall political prisoners,implementation of the UNSecurity Council resolutions, andpromising political, moral anddiplomatic support to theKashmiris, has predictably enough

raised the hackles in India.

While on the one hand theresolution has given an indicationof the direction in which things

are likely to move as far asPakistan's export of terrorism inKashmir is concerned, on the otherhand it has exposed all themanufactured bonhomie anddouble-talk being indulged by thePakistani politicians who tried to

beguile Indian policy makers intobelieving that there was a politicalconsensus in Pakistan in favour ofnormalisation of relations withIndia. Since around 1997, Indiahas been sold the nonsense thatneither Kashmir nor India is anylonger an issue in Pakistanielections. The real reason why

India and Kashmir didnt figure asan election issue was that therewas a broad based politicalconsensus in Pakistan in favour ofexporting jihad and deliveringdeath by a thousand cuts toIndia. Since no one opposed thispolicy there was no gain to bemade by raking this issue at the

hustings.Over the last few years, however,an impression had gained groundthat the political consensus inside

T

*Sushant Sareen, Senior Fellow, VIF


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Pakistan in favour of export ofjihad was breaking down. Notsurprisingly, some politicalplayers smelled an opportunity to

agitate this issue to increase theirvote bank. But the moment oneplayer tries to exploit this issue,all others start falling over eachother to swear their commitmentto snatching Kashmir from India.The unanimous passage of thisresolution bears out that no one inPakistan is willing to question,

much less stand up against, theJihadist policy ofthe State. Whatthis does to thepolicy ofappeasementtowards Pakistanbeing followed bythe Manmohan

Singh governmentand to theexpressed desire of the IndianPrime Minister who had declaredthat he would think he had donehis job well if he managed tonormalise relations with Pakistancan well be imagined.

Apologists for Pakistan in Indiawill of course argue that too muchshould not be read into thisresolution which has been madefor purely political reasons bylegislators who are about to go infor fresh elections. After all,

notwithstanding all the hyperboleof this National Assembly havingmade the historic achievement ofcompleting it term, the fact

remains that in many ways it wasan effete and powerless collectionof people whose resolutions werenot worth the paper they werewritten on because theseresolutions were observed more intheir violation. What is more,these elected representatives ofthe people of Pakistan are perhaps

the meekest and weakest part ofthe Pakistani stateand are treatedwith contempt bythe overbearing

judiciary, meddlingmilitary and self-righteous media.

And yet, this is a

resolution thatcannot and shouldnot be ignored, both because itreflects the unremitting hostilitytowards India of the political classin Pakistan, as well as for whatthis resolution portends in termsof another upsurge in export of

jihadi terrorism to India.

To the extent that this resolutionis a mea culpa on part of thePakistani state for its involvementin the dastardly attack on theIndian Parliament, it needs to bewelcomed. Pakistan, it seems, has

Not surprisingly, some politicalplayers smelled an opportunityto agitate this issue to increasetheir vote bank. But themoment one player tries toexploit this issue, all othersstart falling over each other toswear their commitment to

snatching Kashmir from India.


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finally officially taken ownershipof Afzal Guru and his terroristaction and accepted that he was aPakistani agent working at the

behest of his Pakistani masters toattack the Indian Parliament. Theresolution is a tacitacknowledgement of Gurus linkswith the Jaish-e-Mohammed, oneof the terrorist outfits involved inthe Parliament attack. The moverof the resolution, Maulana FazlurRehman (better known as

Maulana Diesel for hisinvolvement in Diesel smuggling)is a Deobandi cleric who sharesfraternal links with Deobanditerror groups like the JeM,Harkatul Mujahideen, Sipah-e-Sahaba, not to mention theTehrik-e-Taliban Pakistan (TTP).Rehman also happens to be the

Chairman of the KashmirCommittee of the PakistaniParliament, which is basically anorganisation for providing foreign

junkets to Pakistani politicians atthe expense of the bankruptgovernment of Pakistan.

The Maulana, who also happens tobe leading an effort to effect arapprochement between thePakistani authorities and the TTP,probably intends to use thisresolution not only to cement hiscredentials as a dyed-in-the-wool

jihadist who stands firm on the so-

called Kashmir cause, but also toappease terror groups like TTPwhich have been threateningretaliation against India for the

hanging of Ajmal Kasab and AfzalGuru. The same Maulana had in2001-02 issued a fatwa calling forthe murder of Americans and thenotoriety as well as popularity hegained catapulted him to theposition of Leader of Opposition(he was actually more of a lap dogof the Pakistani military dictator

Pervez Musharraf) in the NationalAssembly that came into existenceafter the 2002 elections. TheMaulanas party, Jamiat UlemaIslam (JUI-F) also formedgovernments in the province ofKhyber Pakhtunkhwa andBalochistan, which were used topromote Talibanisation in both

these provinces.Perhaps, a similar game is onceagain being played by MaulanaFazlur Rehman, only this time itisnt the US but India which isbeing targeted. In the process, theMaulana, who has been a frequentvisitor to India where he has triedto convince his Indianinterlocutors of his bonafides andhis intense and sincere desire toplay a role in improving Indo-Pakrelations, has more or less burnthis bridges with India. He isunlikely to be welcome anymore in


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this country. He has only provedhis detractors, who pointed to theundesirable company he kept andhis links with extremist and

terrorist groups, right. For thesake of playing to the gallery backhome in the hope of winning somebrownie points and perhaps a fewextra votes, he has effectivelybecome a persona non grata inIndia.

But if people like Fazlur Rehmanare becoming an anathema forIndia, their acceptability isgrowing among the

Americans. Ifanything, the

Americans seem tohave given a freehand to PakistaniIslamists as part oftheir plan to exitfrom the region.Just recently, the US Ambassadorto Islamabad held a meeting withMaulana Fazlur Rehman.Subsequently, the US envoy toldthe Pakistani media that thesituation in Terror Central (NorthWaziristan) was something thatPakistan had to sort outdomestically, thereby indicatingthat the US was willing to turn ablind eye to a terrorist safe havenin return for Maulana FazlurRehman using his influence andcontacts to push forward with the

reconciliation process inAfghanistan. Worse, with twoutterly clueless apologists forPakistan now at the helm of

affairs at the State Departmentand Pentagon, the US policy onIslamist terrorism is likely toundergo a major transformationwith appeasement of Pakistan andturning a blind eye to its use ofterrorism as an instrument ofstate policy becoming the order ofthe day as a quid pro quo for safe

passage out of Afghanistan forWestern troops. The result is anemboldening ofPakistan, and itsnatural corollary isthe political and

militaryadventurism thatis being seen on

Kashmir and therecent acts of terrorism in otherparts of India.

India cannot afford to let thischallenge go unanswered. Not onlydoes India need to disabuse thePakistanis and the Americans ofthe notion that they can trifle withIndia for their own ends, but moreimportantly, the political class inIndia, especially theManmohanistas need to disabusethemselves of the notion thatPakistan is genuinely interested innormalisation of relations with

The result is an emboldening ofPakistan, and its naturalcorollary is the political andmilitary adventurism that isbeing seen on Kashmir and therecent acts of terrorism in otherparts of India.


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India. Instead of formulatingpolicy on the basis of the sweet-talk coming from Pakistanipoliticians who neither control any

wing of the ISI nor command asingle division of the Pakistanarmy (comprising of jihadis, somein uniform, others in mufti), Indiawould be better served by seeingaction on the ground by thePakistanis to prove theirbonafides. The unanimousresolution passed by the Lok

Sabha is the first right step in thisdirection. This needs to befollowed up by setting metrics onthe basis of which Pakistansintentions will be judged. Equallyimportant, India needs to stopgiving the unnecessary andunwarranted importance to the

mythical Pakistani civil societywhich is nothing more than apowerless, if also vocal, fringegroup comprising around 500 (and

if you want to be very charitable,5000) people. Most of all, Indianeeds to stop depending on the USfor pulling its chestnuts out of thefire. The US will do what is in itsinterest and if this meanssacrificing Indias interests, thenso be it. India, therefore, needs toprepare itself for the coming wave

of terrorism and developcapabilities to counter this scourgeas well as pay back the adversaryi

Documents

Vivek Issues n Options April 2013