Thursday, June 30, 2011

CBI’s exemption from RTI Act: Is the AG’s opinion justified?

By Arushi Garg

The government’s notification exempting the CBI under Section 24 of the RTI Act (which allows exemption of intelligence gathering agencies from the RTI Act) has sparked a controversy. A PIL has been filed in the Madras HC challenging its constitutional validity. In the light of the above, the Attorney General’s opinion on the same becomes pertinent, since the exemption has been granted solely based on his opinion. This exemption is in contradiction of the reports of both the Law Ministry as well as the Department of Personnel and Training.

The primary argument in the AG’s opinion, a copy of which is with the LAOT, is that the CBI’s investigation affects the security of the nation and the term “intelligence” extended not just to information gathered for the prevention of the occurence of events, but also post-event intelligence gathering. The AG has used the term `intelligence’ primarily to refer to information relating to the security or defence of a nation.

Since many cases investigated by the CBI are related to the security of India, he concluded that CBI was eligible for an exemption. Even if it is assumed that intelligence gathering need not always be preventive, and covers investigation, his opinion fails to take into account the fact that no investigation would be hindered by covering the CBI under the RTI since information relating to pending investigations has already been exempted under Section 8(1)(h) (as I have argued on June 16 on the Legal Notes page).

There could be no interference with the process of investigation, or with the security of India, even if the information is related to substantive aspects of the investigation, let alone the other procedural aspects (such as administration, personnel, accounts/finance budget and training) for which no exception is carved out in the AG’s opinion. The CBI investigation would already be complete at the time any RTI application is filed.

The least convincing part of the AG’s opinion is his refusal to recommend notification of only those parts under Section 24 as are related to intelligence gathering. He justifies it because Section 24 exempts not just intelligence agencies but also organisations dealing with the security of the country. This seems to imply that even if the investigation of the CBI doesn’t concern intelligence gathering, it will still magically be connected to the security of India. This argument crumbles in the face of numerous Supreme Court rulings that have iterated over and over again that the scope of matters dealing with security is extremely narrow, and not all breaches of public order and law and order are concerns related to security.

Case law on the subject, as cited by the AG, can be traced to the judgment of Hidayatullah, J., in the Ram Manohar Lohia case, wherein it was stated:

“One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State.”

It was also observed that “When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder.”

The import of this statement (which later developed into the “Even Tempo” test, as it has been referred to by the AG) is that if the disruption of law and order involves only certain individuals, and not the society at large, only then can it be regarded as a disturbance of public order. The scope for what is to be regarded as a threat to security is then even smaller, and cases involving individuals cannot be included within this narrow scope.

This observation has been quoted with approval till very recently by High Courts as well as the Supreme Court. In fact, just last year, a division bench of the Supreme Court reaffirmed this understanding. Thus, while public order is a broad area, only the “most serious and aggravated forms of public disorder” endanger public security.

This distinction has been acknowledged and in fact, explored in rather comprehensive detail by the AG. But his opinion then goes on to enumerate the cases investigated by the CBI which have a bearing on national security while not dealing with the fact that a substantial number of them don’t. Many of these cases involve allegations of specific crimes committed against specific people that do not meet the threshold for cases involving national security.

The most famous example that comes to mind is the Aarushi Talwar case that was handled by the CBI. The CBI has also dealt with the charges of kidnapping and attempted rape against Noida based businessman Moninder Singh Pandher. Both are instances of brutal and shocking crimes, but had no ramifications on the “security” of the State as has been understood by the courts of this country. Curiously, AG's opinion expressly states that a separation of the various types of cases investigated by the CBI is not possible because “we are concerned not just with intelligence but also with the security of the State.”

The fact that the provisos to Section 24 anyway forbid exemption of information relating to corruption and violation of human rights has also been wilfully overlooked by the blanket exception that has been carved out for the CBI. Even commentators who have defended the inclusion of the CBI have advocated laying down rules that limits this exemption in accordance with the Section 24 provisos, and providing the exemption only during the pendency of the investigation.

Based on the above, despite the AG’s faith in this exception, it is unlikely that it is justified in law.

(The author who has just completed an internship with LAOT, is a IV Year student of the NALSAR University of Law, Hyderabad)

Wednesday, June 29, 2011

Justice Verma and the Appointment of Justice Punchhi

A recent interview of Justice J.S.Verma's on CNN-IBN, with Karan Thapar, seems to suggest that, as the Chief Justice of India, he was against Justice Punchhi's elevation to the Supreme Court, and even wrote a letter recommending an inquiry into the charges against Justice Punchhi. But former Prime Minister I. K. Gujral's autobiography suggests that the facts are more complicated. The relevant extract is as follows:

From I. K. Gujral, Matters of Discretion: An Autobiography (Hay House India, 2011) at 478-479.

"
In January 1998, one more cause of worry was the appointment of the next chief justice of India, which had been mired in controversy as a result of determined opposition to the proposed name (Justice M. M. Punchhi) by highly respected advocates such as Shanti Bhushan and Ram Jethmalani. They along with Justice V. M. Tarkunde (a renowned civil rights activist known for his anti-Emergency stand) and some others had made serious allegations of misdemeanor against Justice Punchhi. However, the Supreme Court Bar Association had come out strongly in Justice Punchhi’s support and had even gone to the extent of expelling those who had levelled charges against him.

The present chief justice of India, J. S. Verma, was also against Justice Punchhi’s elevation. However, he had faltered in his duty in that he had not made the needed recommendation regarding his successor one month prior to the date of his own retirement, i.e., 17 January 1998.

After many hiccups, Justice Verma had told me in the third week of December 1997 – before he went on a holiday (as the Supreme Court was having a ten-day winter break) – that he would meet Justice Punchhi on his return and then make the required recommendation. All the same, he had orally stated that he would obstruct Justice Punchhi’s elevation. Ultimately, on January 4 1998, Chief Justice Verma sent me a letter exonerating Justice Punchhi of all charges and recommending his appointment as the next chief justice of India. On 5 January, in an official communication to the president, I recommended Justice Punchhi’s appointment.

The same day, after the Gandhi Peace Prize Function – awarded to Gerhard Fischer, a German diplomat known for his efforts to combat lepresy and polio – that was held in Rashtrapati Bhavan, Justice Verma met the president and me informally. He requested us to hold back the official appointment of Justice Punchhi’s appointment as the next CJI since he had summoned Shanti Bhushan and Ram Jethmalani to persuade them not to presist in their anti- Punchhi campaign. We agreed to his request.

In the meantime, the president asked me to submit the full file and not merely a summary of my recommendation.

Justice Verma telephoned me late on 5 January night to say that he had met Bhushan and Jethmalini but had failed to persuade them to change their stance and felt that the two might file a public interest litigation (PIL) against Justice Punchhi, which could lead to further complications. He had not disclosed to them that he had already recommended Justice Punchhi’s name. Meanwhile, he suggested that I should hold back the recommendation. This was an odd suggestion. I brought Justice Verma’s suggestion to the president’s notice first over the telephone and later when I met him at a formal lunch hosted by him.

Both Jethmalini and Bhushan believed that we needed to stop the process of Justice Punchhi’s elevation on the basis of an informal suggestion made by Justice Verma. In this context, I declared unambiguously: ‘We are not a group of conspirators to act for or against Punchhi. We must uphold the constitutional requirements.’ I planned to submit the full file to the President on 7 January. Around that time, Shanti Bhushan – who had helped me in 1991 in fighting a case against the Election Commission’s arbitrary order cancelling my election from Patna – expressed his strong displeasure that I was unwilling to go along with his campaign against Punchhi. He wrote a letter to the President that, as a ‘caretaker prime minister’, I should be barred from using Indian Air Force planes for electoral purposes. He also announced that he would stand against me from the Jalandhar Lok Sabha constituency. This upset me a great deal since I held Shanti Bhushan in high esteem.

President Narayanan agreed with me that I was constitutionally bound to elevate Justice Punchhi as the next chief justice of the Supreme Court on the basis of the written advice given by Justice Verma."

Monday, June 27, 2011

Detailed comparison of Lokpal Draft Bills

By Anuj Kapoor

In the last Joint Committee meeting of the members of the drafting committee for Lokpal Bill on 21st June, the government members and the members from the civil society were unable to reach a consensus. Thus, both the parties came up with their own version of the bill. The government's bill and the bill prepared by Team Anna are available on the Primary Sources page. There are a lot of agreements as well as disagreements, some of them fundamental. There are areas in one bill which are not even touched upon in the other. Which bill propopes a better, more workable institution of an ombudsman, and which itself would not suffer from the infirmities that it proposes to eliminate, are intractable questions.

In my opinion, there are positives and negatives in both the bills and it would be improper to aim at enactment in a hurry. The government does need to be commended for coming this far, but it should encourage and engage in more debate if it is truly desirous of tackling the menace of corruption. Here is a brief provision-by-provision comparison of the two bills in a tabular form which will hopefully assist the reader in forming an opinion on the two bills.

[Anuj Kapoor, IV Year student of Symbiosis Law School, Pune, is currently an intern with LAOT]

Tuesday, June 14, 2011

Corruption and Constitutional Rights

While we are discussing corruption in India, it may be interesting to look at the recent decision of the Constitutional Court of South Africa in Glenister v President of the Republic of SA [2011] ZACC 6, drawing a duty to effectively tackle corruption from the duty to respect constitutional rights. Some excerpts follow:

[83] Corruption is a scourge that must be rooted out of our society. It has the potential to undermine the ability of the state to deliver on many of its obligations in the Bill of Rights, notably those relating to social and economic rights.

[84] As will be discussed later, this judgment recognises an obligation arising out of the Constitution for the government to establish effective mechanisms for battling corruption.
The establishment of an anti-corruption unit is one way of meeting the obligation to protect the rights in the Bill of Rights. The Constitution is not prescriptive, however, as to the specific mechanisms through which corruption must be rooted out, and does not explicitly require the establishment of an independent anti-corruption unit. The amicus and the applicant conceded this in the course of the hearing. Nevertheless, they contended that the obligation to establish an independent anti-corruption unit is implicit in the Constitution when viewed in the light of South Africa‘s international treaty obligations. Lest I be misunderstood, while I am prepared to hold that there is a constitutional obligation for the state to take effective measures to fight corruption, I am not prepared to narrowly construe the options available to the state in discharging that obligation.


After discussing South Africa's obligations to tackle corruption under international law, in particular the UN Convention Against Corruption, the Court goes on to say:

[105] As I understand it, the argument of the amicus that there is a constitutional obligation to establish an independent anti-corruption unit rooted in section 7(2) of the Constitution proceeded along the following lines. Section 7(2) of the Constitution creates an obligation on the state to ―respect, protect, promote and fulfil the rights in the Bill of Rights. This obligation goes beyond a mere negative obligation not to act in a manner that would infringe or restrict a right. Rather,it entails positive duties on the state to take deliberate, reasonable measures to give effect to all of the fundamental rights contained in the Bill of Rights. As corruption and organised crime have a deleterious impact on any number of these rights, the amicus contended that among the state‘s positive duties under section 7(2) is an obligation to prevent and combat these specific social ills. The obligations contained in the Convention, the amicus argued, give content to the state‘s duty to protect and fulfil its obligations in terms of section 7(2).

[106] I accept that corruption has a deleterious impact on a number of rights in the Bill of Rights and that the state has a positive duty under section 7(2) to prevent and combat corruption and organised crime. I also accept that, in giving content to the obligations of the state in section 7(2), a court must consider international law as an interpretive tool as required by section 39(1)(b).

[107] Under section 7(2), there are a number of ways in which the state can fulfil its obligations to protect the rights in the Bill of Rights. The Constitution leaves the choice of the means to the state. How this obligation is fulfilled and the rate at which it must be
fulfilled must necessarily depend upon the nature of the right involved, the availability of government resources and whether there are other provisions of the Constitution that spell out how the right in question must be protected or given effect.

[113] In the result, I conclude that there is no constitutional obligation to establish an independent anti-corruption unit as contended by the applicant and the amicus.

[116] Section 205(3) of the Constitution requires the establishment of a national police service in order to ―prevent, combat and investigate crime. Section 205(2) requires that the legislature ―establish the powers and functions of the police service in order to ―enable the police service to discharge its responsibilities effectively. I accept that for the police service to effectively discharge its responsibilities under the Constitution, it must not be subject to undue influence. That is the extent of the obligation imposed by the Constitution,and it is in this context that the obligation imposed by section 7(2) must be understood. The question for determination, therefore, is whether the impugned laws establish an anti-corruption unit that has the capacity to ―discharge its responsibilities effectively, as required by the Constitution.

[121] Ultimately therefore, the question is whether the anti-corruption agency enjoys sufficient structural and operational autonomy so as to shield it from undue political influence. I do not understand these instruments to require absolute or complete independence.

[177] The Constitution enshrines the rights of all people in South Africa. These rights are specifically enumerated in the Bill of Rights, subject to limitation. Section 7(2) casts an especial duty upon the state. It requires the state to respect, protect, promote and fulfil the rights in the Bill of Rights.It is incontestable that corruption undermines the rights in the Bill of Rights, and imperils democracy. To combat it requires an integrated and comprehensive response. The state‘s obligation to respect, protect, promote and fulfil the rights in the Bill of Rights thus inevitably,in the modern state,creates a duty to create efficient anti-corruption mechanisms.

Sunday, June 12, 2011

Review of George H.Gadbois Jr.'s book




By Arushi Garg

Judges of the Supreme Court of India (1950-1989) by George H. Gadbois, Jr.,(OUP, 2011) seeks to study the background and life of the ninety three judges who were elevated to the Supreme Court from 1950 to 1989. The book, in its two parts, seeks to achieve the following-first, to present a brief sketch of the lives of each of the judges, and second, to paint a collective portrait.

Sure enough, the aims of the book have been modestly defined, and the boundaries strictly drawn. The author seeks to provide biographical essays, and consider why or why not the elevation of some judges was carried through, but others were not. This is followed by his “collective portrait.” Judges have been grouped according to who the Chief Justice was, at the time of their appointment. The judges are also broadly divided into two ‘generations’ (from 1950 to 1970 and from 1970 to 1989), mainly because of the perceived increase in the role of the executive in the appointment of judges post-1970. The methodology that was followed by the author was either interviewing the judges themselves, or their family. Reliance was placed on Supreme Court files, as well as the Supreme Court Reporter.

Indeed, the sources referred to by the author set this book apart. The records he gained access to during the course of his research are not available to the public. Justice AN Ray granted to him, the only interview he ever gave to anyone. The book therefore contains a more complete account of events than is likely to be found compiled in many other places.

But at the very beginning, Gadbois specifies that his aim is to provide the “life experiences, professional and otherwise” that have socialized the judges whose lives he has studied. The idea behind doing this is to examine how these backgrounds and life experiences have shaped the personalities of these judges. By the end of the book, the reader is left with a list of the achievements, degrees and often publications of these judges, but rarely an examination of how these may have moulded each one of them.. The book is undoubtedly useful in the sense of being a collection of biographical notes, but this is hardly something one would hope to study in a vacuum, divorced from the real impact this has had on the jurisprudence of Indian courts.

It is likely that this restraint is deliberate. Gadbois himself admits that he means this book to be only a kind of reference book. But he does go on to analyse the similarities and differences among these judges; he only chooses to be selective in his analysis. So he talks about the second generation of Indians being more “Indian” in the outlook they brought to Delhi than the first generation and attributes this difference to the fact that the latter were mostly educated in the West. But he does not talk about the impact of other sensitive characteristics. For instance, he does not offer any comment on what ramifications the essentially Hindu (and mostly Brahmin) composition of the Court might have had on the judicial outlook. When he talks about 40% of the judges studied by him being sons of lawyers and judges, he refrains from discussing the possibility of nepotism.

Perhaps in his gratitude for all the information provided by the judges he interviewed, Gadbois has been generous in his adulation, where deserved, but silent on the criticism. By way of example, his discussion on Justice P.N. Bhagwati contains one stray reference to the adulatory letter written by him to Indira Gandhi on her re-election, and that is also prefaced with a remark about how controversy seemed to have followed the revered judge everywhere. Other authors have not been this polite.

He starts his book with the disclaimer that it is not meant to be an “expos√©” and then seems to go out of his way to make sure he stays within the lines.

It is refreshing to see someone who wants to turn down the sensationalism, but it would have been even more refreshing to break away from the dearth of sociological studies on the lives of these judges that has been lamented time and again in Indian scholarship.

In terms of being a “who’s who” of the judges studied, the book is instructive. It contains a useful summary of the life of these judges and, given the lack of biographical data that has impeded a more detailed examination of the composition of the Supreme Court, this fills in many gaps. As the author himself concedes, “this is the first, not the last word.” Unfortunately, this concession seems more like an excuse for avoiding controversy through linkages that might have otherwise made the book seem more complete. As of now, it remains more informative than insightful.

Saturday, June 11, 2011

National Advisory Council's Prevention of Communal and Targeted Violence Bill

The Bill has led to differences among even secular minded people. A press release from Anhad has been placed on the Primary Sources page. It offers a detailed critique of the Bill, signed by several activists. The Bill can be accessed at the NAC's site or here.

Friday, June 10, 2011

Tackling Corruption: The Bihar Way

By Arushi Garg

Recently, the Supreme Court has refused to stay the operation of the Bihar Special Courts Act, 2009 (hereinafter “the Act”), while agreeing to hear the SLP against the Patna High Court judgment upholding the constitutional validity of the Act.

The text of the Act is available here.

The Act provides for the setting up of special courts in order to try the offence specified under Article 13(1)(e) of the Prevention of Corruption Act, 1988, which deals with owning disproportionate assets. Under the Act, assets of public officials can be attached even while the probe is under way if the authorized officer concludes that the assets were obtained as a result of corruption.

This judgment is specifically important in the light of the movement against corruption that has gripped the civil society today. The Jan Lokpal Bill, available here specifies in section 18(v) that once a complaint has been made against a person, a list of all his moveable and immoveable assets is to be made and notified, after which no transfer of these assets will be permissible in law. This is somewhat similar to the authorized officer under the Bihar Special Courts Act, being able to confiscate property which prima facie seems to be the fruit of corruption. Both deal with action taken against the property of the accused before the conclusion of the trial. This is not strictly in consonance with the presumption of innocence.

The primary objection before the High Court was that if it was assumed that there was a prima facie case against the accused, it would prevent him from getting a fair hearing since a bias would be created in the mind of the judge after confiscation had been carried through on the basis of this assumption. This was rejected by the Court since the authorized officer (who decides on the confiscation) is a distinct authority from the judge who would be presiding over the main issue. This is also true in case of the Lokpal Bill. The Lokpal, which is supposed to decide upon the question of freezing the assets of the accused, is a distinct authority from the judge before whom prosecution will ultimately be initiated.

The second objection was that there was no way to appeal the decision for confiscation; but the High Court held that the jurisdiction of the High Court as well as the Supreme Court remained under Article 226 and 32 respectively, so the procedure remained just. The same can be said of the Jan Lokpal Bill.

While the Supreme Court is yet to rule on the issue, it seems unlikely that such provisions suffer from legal infirmity. But it seems the government is following the progress of this case closely before reaching a final decision on the introduction of such a provision into the Lokpal Bill.

Apart from the other challenges to the Act, another aspect of the judgment that stands out is the strange manner in which the High Court dealt with the provision relating to the return of the confiscated property. It was claimed that the provision allowing the State to return the price of the property (with 5% interest) instead of the property confiscated could inflict “humliation and suffering” on the accused and should be struck down on the ground of Article 21. The High Court opined that this cannot be done without seeking a special order from the High Court or the Supreme Court, and if the property could not be returned, then the interest paid on the compensation should not be 5% but whatever the prevailing bank rate is. The most the High Court could have done is to strike down the offensive provisions, and not substitute the number decided upon by the Legislature with whatever the judges thought was more just.

Friday, June 03, 2011

Legal Education in India

By Arushi Garg

Recently, in an interview of Professor Upendra Baxi, the Rainmaker explored the condition of legal education in India, and his sustained endeavours to make legal education in India socially relevant.

Professor Baxi’s concern started with his first teaching assignment in India when he realized “with a degree of astonishment, if not horror” what passed off as legal education in India. The basic reason was the focus of Indian education on doctrinal modes of study and the law as it is, coupled with the relegation of the exploration of the law, as it ought to be to optional and “wayside” courses. He drew upon his activist experience in Sydney and Berkeley to have a meaningful dialogue about how to proceed in his attempt to provide a social-science base to the understanding of law.

His efforts received support from both pioneers in the field of legal education as well as from young, upcoming scholars. The idea was to promote a healthy academic environment aimed at legitimating a different perspective as co-equally important as doctrinal research without debunking the importance of the latter. It was in such an environment that the idea of a National Law University (NLU) first emerged.

On the question of the Bar Council of India (BCI) and the NLUs, Professor Baxi was somewhat restrained in his responses. He did talk about being invited to help in the proposal of an NLU by the Ram Jethmalani, Chairman of the BCI at that time. While there was no question of his leaving DU at that stage, he reminded them of how the BCI has a special stake in legal education. Today, he is disturbed that hardly any senior counsels keep this fundamental fact in mind. While the BCI is mostly willing to regulate legal education in India, they are strangely reluctant when it comes to contributing resources.

This point raised by him is specifically important because in real terms, this means that often, law students are incapacitated from seizing the opportunities that are available to them, with many of the brightest minds in the country being simply incapable of financing themselves through international moots, summer schools or exchange programmes.

The direct consequence of the BCI’s general unwillingness to provide aid also means that a lot of institutions that were meant to be centres of excellence are practically privatized bodies, with little regard being given to equity. Mediocrity has been accepted as the norm, especially when it comes to faculty. There is either a dearth of good faculty, or the unwillingness to look for them actively.

The Vice-Chancellor of one of the best-known law schools in the country has been known to respond to complaints of incompetent faculty by saying, “If you can find them, I will appoint them.” Hardly the job description of a law student, but when you hear these responses often enough, slowly, and sadly, they stop sounding outrageous.
The failure to achieve culture of “excellence” that the NLUs sought to create remains the bitterest disappointment of all. Legal education has been broken down to CVs, and unhealthy, cutthroat competition. The average NLU student will learn how to answer the question, rather than solve the problem. A common lack seems to be the ridiculous emphasis on handwriting and presentation in exams—a problem other places have solved by digitizing exams with the help of anti-cheating softwares.

This is not to say all is lost. As a student of these Universities, I can vouch for the fact that I have sat through at least some courses that have changed me in very fundamental ways and challenged me to think in innovative ways about issues of justice and equity. I am sure a lot of other students in my position feel the same way. But this should not take away from the fact that there is a long way to go.
Professor Baxi’s only hope is that these institutes will realize that it is time for introspection, to examine their faculty as well as their original goals in the light of their current structure. In saying this he echoes the hope of NLU students across the board.

When asked about the new generation of legal education in India, Professor Baxi expressed his impatience when it came to ministerial “mission statements” and some “excess known as the Knowledge Commission.” In his words, “What do new generations signify? Growth in self-reflection, wisdom, and capacity to serve the underprivileged. Now by this criteria, there is no new generation - broadly speaking - of legal education.”

This is an apt summation of the crisis in legal education that has hit the country. After all the lofty goals we read about, for the average NLU first year, law school can stand to symbolize very bitter disillusionment. The emphasis on learning by rote, statutory provisions, case names and bench strengths can be stressful as well as meaningless. This is in sharp contrast to most other Universities in the world, where most students are given the option of take-home exams, research papers and at the very minimum, are allowed to take in external material for classroom exams that shift the burden from mugging up to understanding.

The social relevance of the law cannot be restricted to adding subjects to the course even though this is the all-important first step. Understanding and writing about law and poverty in India can be an exercise entirely divorced from internalizing what you learn.

Professor Baxi has talked of realizing the dream of having both kinds of law persons—“those who are technocratically competent and those who can perform the roles of soldiers of justice.” This is the laudable aim with which the NLUs started off, but as of now, this goal remains largely elusive.

Corruption in Brazil and India

By Arushi Garg

On May 31, the renowned political scientist Eduardo Graeff was at the Centre for Policy Research, New Delhi to present his paper entitled “A Chronicle of Corruption and Transparency in Brazil.”

The gist of this paper is summarized in his own words as “Institutions matter, but history also matters.” Much of his paper focuses on how attitudes to corruption are moulded by the history of a place, and any institutions that seek to redress this problem have to take this into account.

His talk started with the hard-hitting statistic that 96% of the Brazilians surveyed by the BBC in 2010 think that corruption is a very “serious problem.” He went on to debunk the myth that democracy means an adherence to rules, while corruption means an absence thereof. Corruption has its own ground rules of greed, and of choices to be made after analyzing the costs and benefits.

This broke at the very outset, the relationship between corruption and regime types, a question he came back to later in the day when he spoke of the military government’s aim to stop communism and corruption—they stopped communism, but they only stopped the debate on corruption! He did add though, that involvement and awareness levels definitely vary with regime types. The Constitution that Brazil came up with in 1988 was the first one which involved the common people. The rise of President Lula was an important development in this regard, since he came with a humble background and started his political journey as a union leader. These were manifestations of the transition in Brazil from oligarchy to democracy, a transition that is yet to be completed.

The question of whether democracy has improved or worsened corruption in Brazil is also raised in his paper, but left deliberately unanswered. He does seem to be issuing a caveat about the role of media being a double edged sword, and how it’s easier to allege rather than prove allegations through the media. The manner in which unverified press statements have been issued with respect to the violence surrounding land acquisitions in UP for the Yamuna Expressway is a reminder of how the journalism in India too can worsen a situation rather than focusing on constructive solutions.

Corruption in Brazil, according to him, arose because of conflicting loyalties, i.e., loyalty to the nation-state on one hand and loyalty to the family, community, nationhood, class or political boss on the other. This last point in particular is the legacy of the colonial period in the 1500s in Brazil, when loyalty to your boss was paramount and it became acceptable to enjoy personal profit from your office as long as you were loyal to your boss.

Another factor that is instrumental in shaping the discourse around public attitudes to corruption is the period of slavery in Brazil. This led to the acceptance of an elite, upper class that was somehow above the law. The slaves had neither the means, nor the moral attachment to abide by the law, but did not have the social standing to abide by it. This persists in the form of what Graeff describes as “corporatism” in Brazil today, where the upper class is somehow deemed to be exempted from following the letter of the law.

This situation seems reminiscent of the lack of a culture of legality with respect to the some strata of the society in India. No one can deny that whose patronage you enjoy will have a major role to play in what law enforcement agencies expect of you.

While talking about enhancing mechanisms to facilitate transparency in Brazil, he spoke of some that are common to most of the democratic world (media, civil society, Congressional enquiries etc.) and some that are creative solutions to the particular problems of Brazil. For instance, the process of “reverse auctions” has been adopted in Brazil where instead of asking for tenders and deciding on the lowest bid, these bids are made online so that all actors involved can see the kind of prices being offered and adjust their own offer accordingly. Another illustration is the Integrated Financial Management System that provides real-time financial information that can be used for efficient utilization of resources.

Given the similarities in the nature of corruption between the two countries, perhaps we would do well to incorporate some such mechanisms in India as well, especially at this time when public discussions around corruption have reached their peak. The use of technology is catching up in India all too slowly and this pace could surely be advanced by the sort of measures that have been suggested in Brazil. Although statutes such as the Right to Information Act, 2005, talk about the digitizing information, this is not something that has been implemented in most places. The potential for using technology to encourage transparency remains largely unrealized.

Despite these mechanisms, he pointed out that political struggles, police corruption and slow legal processes meant that transparency hasn’t completely been realized in Brazil. He suggested that alternation in political power, global cooperation and using the internet to disseminate information could go a long way in dealing with these problems. The experience in other fields such as the Human Rights Movement was instructive in learning how to effectively use global pressures to deal with local problems.

This lecture was followed by an interactive discussion. A member of the audience was quick to point out that in developing countries such as Brazil, China or even India, somehow, as long as there is enough money being made, public outrage seems to be toned down with reports about expanding economies being at the forefront. Graeff agreed with this, stating that even though 96% Brazilians had expressed that they realized the enormity of the problem of corruption in the BBC survey, this could not be taken at face value.

The crimes that lead to the impeachment of President Collor in 1992 in Brazil were no more serious than those that politicians are committing on a daily basis in Brazil today, but his inability to control spiraling rates of inflation led to his impeachment. This also led him to ask that perhaps global exposure and the comparative experience of developing countries was perhaps focusing on the wrong things, and leading to higher tolerance levels of corruption rather than lowering them. Communication must be aimed so that you “act to embarrass” rather than build immunity to stories of corruption.

Audience feedback also brought about several other points. Graeff’s paper has spoken of the “history” of a culture as if it were a monolith. But there are many classes, and many social groups and at the experience of all these groups is a history worth exploring. These variations have not been accounted for. Perhaps one could say that each of these histories has its own impact on the development of a system, but the very general observations made in Graeff’s paper fail to capture these nuances.

In fact, most of the problems pointed out in Graeff’s paper are equally true of India. There is a class of people above the law, political allegiances give people the implicit right to get away with things, and democratic tools are often abused to draw political mileage. The history of both nations is distinct and unique, but the problems of corruption are more similar than someone with Graeff’s hypothesis would care to acknowledge.

Moreover the whole tenor of the proceedings was conservative, something acknowledged by Graeff himself. By suggesting that it was a failure to account for the history of a place, rather than institutional shortcomings that was the problem, he had argued against the creation of altogether new institutions. While talking about the link between crime rates and police corruption, he identified a direct link, but then added that these rates had been lowered through repression, a reality that is “embarrassing for any left leaning sociologist” to recognize. He confined himself to talking about “high corruption” and large scale scams.

This last point is reflective of an attitude that also finds its place in the debate surrounding the jurisdiction of the recently proposed Lokpal authority. Critics have suggested confining this to only large scale scams while leaving “everyday” corruption out of the ambit of the new Bill so as to not overburden a newly constituted authority. The flipside to this is that a decrease in “high corruption” may have the direct consequence of increasing corruption of other kinds to make up for the black money that is lost. While Graeff does not undermine the nature of other kinds of corruption that “has less impact in the media but more direct impact on the daily life of citizens”, it is still worth noting that the treatment of such corruption was deemed dispensable by Graeff.

Graeff suggests that institutionally, the structure for progress in Brazil is there; but the mechanisms that are developed to counter corruption must keep in mind Brazil’s history of patrimonialism, slavery and the harsh lessons the country has hard to learn with respect to inflation. While there is some merit to this proposition, perhaps Graeff may well have understated the role an institutional overhaul could have on Brazil and overstated the role of history in trying to account or the lacunae in the current regime.

Thursday, June 02, 2011

Judges of Indian Supreme Court: Beyond biography?


George Gadbois' book on Supreme Court Judges is bound to invite mixed reactions from readers. My review is no exception. I welcome reviews by other contributors as well.

From the latest Frontline


On why the Supreme Court's judgment prescribing death penalty to the convicts in Encounter death cases does not really address the problem.

A tale of two dams. Why Jairam Ramesh's order lifting the stay on Maheshwar dam is not convincing.

The Land Acquisition (Amendment) Bill has an interesting trajectory.

Other articles can be accessed here.