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LATEST NEWS UPDATES | Reckless activism by AG Noorani

Reckless activism by AG Noorani

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published Published on Nov 2, 2011   modified Modified on Nov 2, 2011

Comptroller and Auditor General Vinod Rai in his address to recruits at the National Police Academy sought to enlist them in his campaign.

BAGEHOT'S classic explains why and how a genre of civil servants mushroomed in India latterly as executive power, authority and prestige declined. None of them had earlier revealed a particularly strong spine. T.N. Seshan bared his traits once he was appointed Chief Election Commissioner (CEC). Others need not be mentioned save one. N.K. Singh had his moment of fame during the Bharatiya Janata Party regime when the BBC repeatedly had him say of its predecessor that it had a “foreign policy [that] was out of sync”.

The situation today is far worse. Parliament is held hostage seemingly to L.K. Advani's ambition to become Prime Minister. It is not allowed to function. The political divide does not make for a non-partisan approach to institutions when men who run it behave badly. This clime fostered “judicial outbursts” and judicial excess. Civil servants took their cue. One of the worst in this line is Vinod Rai, Comptroller and Auditor General of India. His address to young police officers at the Sardar Vallabhbhai Patel National Police Academy in Hyderabad on October 11 richly qualifies as a misdemeanour that renders his continuance in office untenable ( The Hindu, October 13).

Yet, continue he will, assuredly. Our permissive atmosphere ensures that. To appreciate the enormity of his misdemeanour one must consider the place of the office of CAG in our scheme of things. Significantly, Chapter V of the Constitution, on the CAG, comes immediately after Chapter IV on the Union Judiciary. Article 148(1) establishes the office and provides that “he shall only be removed from office in like manner and on the like grounds as a judge of the Supreme Court”. The Comptroller & Auditor General's (Duties, Power and Conditions of Service) Act, 1971, supplements Article 148(1).

The proviso to Article 324(5) imposes an identical condition on the removal of the CEC. However, the CAG is advisedly subjected to a bar by the Constitution, which it did not impose either on judges of the Supreme Court or on the CEC. Article 148(4) lays down that “the Comptroller and Auditor General shall not be eligible for further office either under the Government of India or under the government of any State after he has ceased to hold his office”. It is not difficult to appreciate the raison d'etre of this bar.

Of course, it is open to him to carve out a career in politics after retirement, as T.N. Chaturvedi did. He joined the BJP, which accepted him with open arms and made him Governor of Karnataka.

When Article 148 was debated in the Constituent Assembly on May 30, 1949, the Chairman of its Drafting Committee, Dr B.R. Ambedkar, said: “I am of opinion that this dignitary or officer is probably the most important officer in the Constitution of India…. His duties, I submit, are far more important than the duties even of the judiciary…. I personally feel that he ought to have far greater independence than the judiciary itself” ( Constituent Assembly Debates, Volume 8, pages 407-8).

Hence the additional curb on his freedom after retirement. Ought he not be subject to the same restraints while in office, if not, indeed, greater?

Ask yourself a simple question: Would a judge of the Supreme Court have escaped censure if he had spoken in the language Vinod Rai deployed? The norms that bind the judges surely apply a fortiori to the CAG. A judge who flagrantly flouts them in a speech on a public platform, on an issue related to one which he has pronounced or is about to pronounce on the Bench as a judge, inescapably incurs doubts on his impartiality and integrity. The CAG is not immune to this; the greater the transgression, the graver the doubt.

The norms are clear and well settled. “Judges are by reason of their office and nature of work expected not to get involved in controversial matters or to concern themselves with political issues or policies undertaken by political parties as a part of their political programme,” the Supreme Court said on August 19, 1976, while rejecting charges of contempt of court against 15 lawyers who had criticised a High Court judge for controversial statements outside the court.

The basic principle was well stated by the Law Commission in 1958 in its 14th report: “A judge has to maintain an aloofness amounting to self-imposed isolation…. It has to be realised that if the public is to believe that justice is being impartially administered, judges cannot rub shoulders with one and all in a manner which any other person may do. Their public activities and even their pronouncements outside the court have to be consistent with the isolation which their office demands.”

When, in October 1968, Chief Justice of India M. Hidayatullah criticised Nath Pai's Bill, he was strongly criticised by the doyen of the Bar, M.C. Setalvad. “These observations clearly involved a lack of propriety… there was also a want of judicial decorum…. It was said that the observations were justified inasmuch as the Chief Justice made them in his capacity as a citizen. That view is unsound. A citizen assuming judicial office necessarily agrees to impose certain restraints upon himself. One of these is complete isolation from all controversial matters particularly those likely to form the subject of legal proceedings before him.” This applies to the CAG also.

The familiar plea of “spoke in a personal capacity” is puerile. It is reminiscent of the defence of the President of the Temperance Society when he was found drunk in a public place. He was drunk in a purely “personal capacity”, he argued.

Instructive Canadian case

A Canadian case is most instructive. In August 1983, Justice Thomas Berger resigned from the Supreme Court of British Columbia. He was a man of considerable learning and of deep sympathy for the underprivileged. He resigned because the Canadian Judicial Council, consisting of the country's 27 senior judges, ruled that “it was an indiscretion on the part of Mr Justice Berger to express his views as to matters of a political nature, when such matters were in controversy”. The council stopped at a reprimand for it felt that the indiscretion provided “no basis for a recommendation that he be removed from office”. This was an endorsement of the report of its committee of investigation.

The complaint against Justice Berger was made by Justice George Addy of the Federal Court of Canada. On November 18, 1981, he wrote to the Chief Justice of Canada, Justice Bora Laskin, Chairman of the Canadian Judicial Commission, enclosing a clipping from Ottawa Citizen of November 10 reporting a speech by Justice Berger. He had characterised as “mean spirited and unbelievable” the compromise arrived at by the provincial premiers on the Charter of Rights because, in his view, it did not protect minority rights, especially those of the natives, the “poor and powerless”. He was touring to promote the sale of his book Fragile Freedoms: Human Rights and Dissent in Canada, a severely critical survey of “the actions that governments at all levels have taken against minorities”. The speech, Justice Addy complained, violated “the bounds of propriety”.

The next day, Justice Addy lodged another complaint, enclosing a page of The Globe and Mail of November 18 containing an article written by Justice Berger on the same subject. Either he had “not the faintest idea of the position and role of a judge” or, if he had, Justice Addy angrily remarked, “then he is guilty of misconduct which, in my view at least, would tend to cause far greater harm to the administration of justice than sleeping with a prostitute or driving whilst impaired”. It was purely a question of judicial behaviour for, Justice Addy conceded, “the views expressed therein are quite logical and acceptable and are also very relevant to the serious political problems currently facing our country”.

The Canadian Judicial Council, set up under the Judges Act, was activated. Justice Berger wrote to Chief Justice Laskin on December 3, 1981, justifying his conduct in terms which have a familiar ring. “What I have done may be unconventional. But it was not a venture into politics in any ordinary sense. It is not as if I had discussed the ordinary stuff of political debate – inflation, interest rates, the budget, or the nationalisation of the Asbestos Corporation. The issues which I discussed transcended partisan politics.”

This exceptional feature apart, the rest of the reply squarely raised the issue of a judge's right to speak in public. “I believe it is a mistake to think it is possible to place fences around a judge's conscience. These are matters that no tidy scheme of rules and regulations can encompass, for all judges are not cast from the same mould. These are matters that individual judges must decide for themselves.”

Justice Berger cited precedents of public pronouncements by judges, including his own. The council, however, proceeded with the complaint, whereupon Justice Berger wrote again to its Chairman, Chief Justice Laskin, on March 2, 1982, in his defence. “I do not dispute that, in a given case, a judge's public statements may constitute grounds for his removal from office.” If the council considered that the appropriate course, it could say so.

In any case “there can be no difficulty in establishing the facts in my case”. They were not in dispute. An inquiry was unnecessary and he would not participate in it. But he circulated an elaborate memorandum, dated March 15, 1982, to his colleagues, in which he asked defiantly: “If a judge were to say in public that he was opposed to the imposition of martial law in Poland, notwithstanding that the Government of Canada apparently takes a different view, would this be misconduct? Would such activities bring the judiciary into disrepute? I doubt it.”

Unconvinced, the Judicial Council resolved on March 8, 1982, to set up a committee of investigation consisting of three Justices. It received a most erudite memorandum from Chief Justice McEachern of British Columbia in defence of his colleague.

The report of the committee of investigation carefully considered all the issues that were raised. Its findings rest on both precedent and principle. “The principle that emerges from legal history is that the political and judicial spheres of action must remain clearly separate and apart if the fundamental premise of parliamentary democracy is not to be violated.”

It analysed dicta on judicial norms and pointed out that the restraint must be mutual. “The history of the long struggle for separation of powers and the independence of the judiciary not only establishes that the judges must be free from political interferences, but that politicians must be free from judicial intermeddling in political activities. This carries with it the important and necessary concomitant result – public confidence in the impartiality of judges – both in fact and in appearance.”

Applying the principle to the facts of Justice Berger's case, the report emphasised that what was in issue was his “use of his office as a platform from which to express those views publicly on a matter of great political sensitivity”.

‘Curb crusading zeal or resign'

To judges who are unable to curb their crusading zeal, the report offers this sage counsel – resign. For, “Not only must judges be impartial, the appearance of impartiality… must be maintained for the fair and proper administration of justice. If a judge feels compelled by his conscience to enter the political arena, he has, of course, the option of removing himself from office. By doing so, he is no longer in a position to abuse that office by using it as a political platform.”

The report refuted those facile and facetious pleas so completely that it bears quotation in extenso:

“A judge's conscience is not an acceptable excuse for contravening a fundamental rule so important to the existence of a parliamentary democracy and judicial independence. To say that not all judges are cast in the same mould, as does Justice Berger, is only to state the obvious. On every great matter of political concern it would be probable that judges would hold opposing views privately and, if Justice Berger's view is acceptable, it would be possible to have judges speaking out in conflict, one with the other, because they hold those opposing views from a sense of deep conviction.

“We say again if a judge becomes so moved by conscience to speak out on a matter of great importance on which there are opposing and conflicting political views, then he should not speak with the trappings and from the platform of a judge but rather resign and enter the arena where he, and not the judiciary, becomes not only the exponent of those views but also the target of those who oppose them. This is not a question, as Mr Justice Berger suggests, which each judge must decide for himself. That question has been answered for him from the moment he accepts the Queen's patent as a judge.”

The committee upheld the complaint but did not recommend Justice Berger's removal from office. The Judicial Council concurred. The judge resigned all the same.

Every line in that dicta applies to Vinod Rai. Indeed, even more so. For, the text of his speech shows that his was not an academic pronouncement. He spoke as an activist. He wanted to enlist the police officers in his campaign. This is what he said at the very outset: “I wish to make three propositions today and seek your reactions on whether you agree and whether you are in a position to be a participant [sic.] in ensuring that the All India Services regain their past glory. “First: That governance is at its lowest ebb. That the morale of the civil servants is low. That credibility of the government is at its lowest. That decision-making has become a casualty. Second: That this situation is deleterious for the nation. That too much is at stake for too many in such a situation. Third: On you and officers of the All India services, among others, rests the onus to remedy the situation.” (Emphasis added, throughout.)

It is not his place to speak on “governance” or on “the credibility of the government”. That crass impropriety apart, the speech reveals the insolence and ignorance that come very naturally to civil servants of a certain type. “On you [police officers] and officers of the All India Services, among others, rests the onus to remedy the situation.” That “onus” rests mainly on the people of our country, as Jayaprakash Narayan emphasised. No country was ever saved by its judiciary or its civil service alone.

Read this: “The public demand for shift of power from bureaucrats to citizens has led to change of governance structures. In fact, there are even demands for sharing of the legislative functions by moving from a representative raj to direct people's raj. All these demands stem from an increased awareness of the citizen to participate in decisions relating to governance, development and welfare entitlements through decentralised governance structures.” Ergo, power belonged to “bureaucrats” and not to elected Ministers. “The public demand” was to shift the power “from bureaucrats to citizens”.

These are the kinds of remarks that a person inebriated with power would make. They also cast doubt on his work as CAG though each report must be considered closely on its merits. Vinod Rai is by no means “a man to watch”, as the phrase goes. It will, however, be interesting to watch the trajectory of his career after he demits the office he has undermined so recklessly.

Frontline, Volume 28, Issue 23, 5-18 November, 2011, http://www.frontlineonnet.com/stories/20111118282309000.htm


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