Monday, July 31, 2017

An Open Letter to the Prime Minister of India: Let Transparency and Openness Prevail

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Respected and Hon’ble Prime Minister,

Let me at the outset most humbly say that there is nothing personal and ad hominem about the issue raised in this letter. Also a DISCLOSURE upfront: I know none of the eminent people referred here; neither have I ever met – even seen – them, personally or in a gathering – social or official or in the courtroom. The issue discussed concerns institutional integrity and rectitude of a revered institution as the Supreme Court of India that we citizens of this country look up to and repose boundless faith in to uphold public ethics and the rule of law. Hence this open letter.

I must admit it is with a sense of great disquiet and dismay that I write to you, consequent to the CJI Justice J.S. Khehar’s recommendation of Justice Dipak Misra’s name as his successor. It is both surprising and intriguing, because as has been reported in the media, there is an ongoing case against Justice Misra for fraudulently and through misrepresentation of facts acquiring land in 1979 when he was an advocate. The DNA newspaper only a few days ago on July 17, 2017 had broken this news on its front page and reported that “A three-member committee of judges, constituted by the Supreme Court to conduct an in-house inquiry against two sitting judges of the Orissa High Court, has halted its proceedings after the name of a senior Supreme Court Justice cropped up during the course of the probe,” and that “The panel, headed by Punjab and Haryana High Court Chief Justice SJ Vazifdar, has now written to the Chief Justice of India for guidance and directions.” Soon thereafter the news was picked up by other newspapers and magazines.

The charges violate the high judicial ethics and values that judges are expected to follow. Shortly after the CJI had sent his recommendation to the government, the CatchNews reported that there is a “Cloud over Dipak Misra as Chief Justice: ICJ claims he is tainted” and “there is a roadblock that must first be passed before such an appointment is made… The obstacle in Misra's path is the International Council of Jurists (ICJ), which has sought a probe against alleged irregularities during his career. ICJ also plans to approach the Centre to oppose his appointment. ICJ had submitted a petition urging Justice Khehar to appoint an in-house committee consisting of Supreme Court judges to look into allegations of Justice Misra’s alleged involvement in a land scam in Orissa while he was an advocate.” The news portal The Wire has also in an article titled Old Land Allotment Case Casts Shadow on Justice Dipak Misra’s Nomination as CJI” published on July 31, 2017, brought out the facts of this case.

It is not for me to go into the details of the alleged land scam involving illegal transfer of large tracts of government land which Justice Misra is alleged to have acquired with false declarations. Nor the CBI report placed before the Orissa High Court which allegedly had indicted him for “fraudulently” acquiring the plot of land in Cuttack. Nor the fact that, as alleged, he wrongly held on to the land till 2013, even after his elevation to the Supreme Court and even after the CBI had indicted him, and only “quickly gave up the possession of the land to save himself.”

What’s troubling is that the Supreme Court as an institution seems to be following different standards in matters of appointment – one for the oligarchy of the robes, and one for all other institutions. Let me elaborate. In March 2011, a Bench headed by the then Chief Justice S.H. Kapadia and two other judges set aside the appointment of P.J. Thomas as CVC on the ground that “eligible persons should be without any blemish whatsoever and they should not be appointed merely because they were eligible to be considered for the post.” This was despite the fact that Thomas had been appointed as per recommendation of a high power committee (HPC) of three, headed by then Prime Minister Manmohan Singh. Justice Kapadia, who wrote the judgment, held the HPC's decision invalid and the Supreme Court had also inter alia directed that:

i.     All… persons empanelled should be outstanding… persons of impeccable integrity.

ii.        The empanelment should be… on the basis of rational criteria, which has to be reflected by recording of reasons and/or noting akin to reasons by the empanelling authority.

iii.     The empanelling authority, while forwarding the names of the empanelled …persons, should enclose complete information, material and data of the concerned officer/person, whether favourable or adverse. Nothing relevant material should be withheld from the Selection Committee.

iv.    The Selection Committee may adopt a fair and transparent process of consideration of the empanelled officers.

The Court had further observed that it was concerned with the institution and its integrity including institutional competence and functioning and not the desirability of the candidate alone who is going to be the Central Vigilance Commissioner, though personal integrity was also held to be an important quality. It reiterated that the independence and impartiality of the institution like CVC which had to be maintained and preserved in larger interest of the rule of law [Vineet Narain case].

The decision of the Supreme Court to inject transparency in appointment to high public offices was indeed praiseworthy. The conditions it laid down for empanelment too was unimpeachable and beyond reproach. Those were for a statutory post of CVC. Here though the concern is for the constitutional high office of Chief Justice of India. If CVC is an extremely important office for monitoring propriety in public office, the office of the CJI, encompassing as it does today almost all aspects of citizens’ life, is an office like no other. Interestingly, the Constitution is silent on the processes to be followed in appointment of the CJI. Conventionally though the retiring CJI recommends the name of the senior-most judge for appointment by the President of India as his successor. This too has been incorporated in the Memorandum of Procedure – all the more reason why the SC’s directions in the CVC appointment case becomes binding on the CJI.

Today, “We, the people of India…” look up to the Supreme Court with awe and respect. This unqualified and abiding faith puts an onus on the Supreme Court as an institution and especially on the CJI as a person holding this high office. Given this backdrop, one wonders if the CJI has followed the spirit and directions of this very august court he helms today, in recommending the name of his successor to the government. This assails a citizen’s mind today, as brought out below.

i.         In the light of the DNA’s news of July 17, 2017 about the Supreme Court-appointed 3-member in-house panel headed by Chief Justice Vazifdar seeking the CJI’s guidance, how has the CJI established that all the above conditions have been fulfilled?

ii.      Placing reliance on non-availability of information in the public domain, about directions provided to the in-house panel headed by Punjab and Haryana High Court Chief Justice Vazifdar and more importantly even before the issue concerning Justice Misra has been probed by a Supreme Court committee and found to be without any basis, doesn’t the CJI’s recommendation become non-est in law, as the bench of Chief Justice Kapadia had held in the case of appointment of P.J. Thomas as CVC? Ironically, the power to grant permission to proceed against any judge of the Supreme Court/High Court lies on the CJI. Recall how the Supreme Court has dealt with the statutory provision in the CrPC, which while making corruption a cognizable offence requires that whenever an FIR is filed, it is the statutory duty of the police to investigate the offence, collect evidence against the accused, and charge-sheet him in a competent court and, if found guilty, deal with it appropriately. To recall Shanti Bhushan, the respected senior advocate’s words: “The Supreme Court has however by violating this statutory provision in the CrPC given a direction in its Constitution bench judgment in the Veeraswamy case of 1991 that no FIR would be registered against any judge without the permission of the Chief Justice of India. In not a single case has any such permission ever been granted for the registration of an FIR against any judge after that judgment.” This is closeted and “cloistered justice” at its very best that is not open to “suffer the scrutiny and outspoken comments of ordinary men” and institutions. That’s the nub of the problem.

iii.    Since the issue raised by Justice Vazifdar panel seeking guidance hasn’t been addressed yet by the CJI, does the latter’s recommendation of his successor’s name not tantamount, by implication, to brush aside the concerns expressed by the panel, and bringing a closure to the case? Sadly his action echoes the concerns articulated by Shanti Bhushan, who in his 2010 affidavit had publicly stated that out of the last 16 Chief Justices of India, eight of them were definitely corrupt: “…that the judiciary has adopted the policy of sweeping all allegations of judicial corruption under the carpet in the belief that such allegations might tarnish the image of the judiciary. It does not realize that this policy has played a big role in increasing judicial corruption.” Are we institutionalizing this practice?

iv.      How has the Supreme Court’s prescription in their 2011 CVC judgment with regard to institutional integrity and institutional competence and functioning, apart from personal integrity, been addressed? This too is unclear and hence very disturbing.

v.       While it will be presumptuous on one’s part to second guess the content of his letter recommending his successor, one can safely conclude that the CJI hasn’t yet set up any in-house enquiry committee to examine the issues. Nor has he possibly given any direction to the Justice Vazifdar panel. Must we then, in the absence of information available in public domain, conclude that there are two standards for appointments to high public offices in vogue: one for the judiciary, the other for other institutions? If it’s so, isn’t that unfair and inequitable?

vi.    My mind, disquiet and far from stilled, travels back to Justice C.K. Prasad’s judgment, which in 2014 had created a nationwide controversy. As reported, he pulled out the 35-hectare Cidco prime land allotment case of public land originally listed before a three-judge SC bench, and on an oral plea, decided within a couple of minutes a 12-year-long battle, at a throwaway price of Rs 33 crore in favour of the winning bidder. The market value of the 35-hectare land was said to be about 100 times more – so glaring was the case that it prompted senior lawyer Dushyant Dave to question the bench's judicial propriety. It is this aspect of institutional integrity that Justice Kapadia had laid emphasis on in his March 3, 2011 CVC judgment. The CJI is much more than the primus inter pares vis-a-vis other SC judges. He exercises administrative powers, assigns cases to other SC judges and thus plays an extremely important role in the nation’s judicial life.

Now, it’s for you, Hon’ble Prime Minister, as the head of the government, to act and do the appropriate course correction. Para 2 of the Memorandum of Procedure amply makes it clear that it is for the government to decide and own responsibility for the CJI’s appointment. Let Transparency and Openness prevail in public governance. We fervently hope you will ensure that.

With kind regards,

Yours sincerely,

Sudhansu Mohanty

(Reproduced from

Monday, July 24, 2017

An Open Letter to the Chief Justice of India

Respected and Hon’ble CJI Justice Khehar,
As a concerned senior citizen who is a former civil servant and retired last year at the apex level of bureaucracy, I write this letter with great anguish and with a stab of pain in my heart. All my life I have fought against corruption and dishonesty, including the not-so-visible and not-so-palpable part of intellectual dishonesty in public life. Frankly, it wasn’t one bit easy for me, but I persevered nonetheless and regardless of my professional career. Hence I thought I must share my thoughts that disturbs me no end and, which, you, as the CJI, are in a position to address.
The DNA newspaper on July 17, 2017 broke the news on its front page that “A three-member committee of judges, constituted by the Supreme Court to conduct an in-house inquiry against two sitting judges of the Odisha High Court, has halted its proceedings after the name of a senior Supreme Court Justice cropped up during the course of the probe.” And that “The panel, headed by Punjab and Haryana High Court Chief Justice SJ Vazifdar, has now written to the Chief Justice of India for guidance and directions.” Soon thereafter the reputed legal news magazine Bar and Bench picked up the story and inter alia reported that “Flummoxed at this development, the three member panel of high court judges, headed by Punjab and Haryana High Court Chief Justice S.J. Vazifdar has written to CJI Justice Khehar seeking his guidance. The panel has stated that despite allegations of the Supreme Court judge’s proximity to these two judges, it is unable to proceed because its mandate excluded probing charges against a sitting Supreme Court judge.” On 18.07.2017 the Times of India also carried the same news item under the caption Graft probe against HC judges has panel in a fix.
You will agree that of the four putative pillars of democracy, in India the one institution that cries out for immediate reform, perhaps more than the other three — executive, legislature and media — is doubtless the judiciary. Because today judiciary has become ubiquitous — omnipotent in its sweep, omniscience in its wisdom and prescience, omnipresent in every walk of life that affects a common citizen. Open any newspaper or surf any TV channel or browse the net and you will get to read or hear the erudite words of learned judges of the Supreme Court or one of the High Courts. The faith in judiciary and especially the apex court is, as is supposed to be, unflinching, full and absolute. We ordinary citizens look up to the Supreme Court with great faith and respect, something not ordinarily accorded to other organs of governance.
Appropriately, therefore, this blind, undying faith puts an onerous responsibility on the Supreme Court as an institution and especially on you who helms the same as the CJI. But recent developments, even the developments in the past few decades, do not fortify the citizen’s faith. I can do no better than bring to your attention a few of the averments (given below in italics) made in an affidavit by Mr. Shanti Bhushan, the respected senior lawyer — who in 2010 while impleading himself in the case publicly stated that out of the last sixteen Chief Justices of India, eight of them were definitely corrupt — when he wrote those immortal lines on the need to enforce judicial rectitude, and pleaded that he “be added as a respondent to this contempt petition so that he is also suitably punished for this contempt. The applicant would consider it a great honour to spend time in jail for making an effort to get for the people of India an honest and clean judiciary.” I have no idea what came of the case. Since nothing is available in public domain, I assume perhaps no corrective action has been taken by the apex court yet.
“…that the judiciary has adopted the policy of sweeping all allegations of judicial corruption under the carpet in the belief that such allegations might tarnish the image of the judiciary. It does not realize that this policy has played a big role in increasing judicial corruption.”
“That the Constitution prescribed removal by impeachment as the only way of removing judges who commit misconduct since it was believed at the time of the framing of the Constitution that misconduct by judges of the higher judiciary would be very rare. However those expectations have been belied as is apparent from the surfacing of a series of judicial scandals in the recent past. The case of Justice V. Ramaswami and subsequent attempts to impeach other judges have shown that this is an impractical and difficult process to deal with corrupt judges. The practical effect of this has been to instill a feeling of impunity among judges who feel that they cannot be touched even if they misconduct.”
“That corruption by judges is a cognizable offence. The Code of Criminal Procedure requires that whenever an FIR is filed with respect to a cognizable offence, it is the statutory duty of the police to investigate the offence. The police has to collect evidence against the accused and charge-sheet him in a competent court. He would then be tried and punished by being sent to jail. The Supreme Court has however by violating this statutory provision in the CrPC given a direction in its Constitution bench judgement in the Veeraswamy case of 1991 that no FIR would be registered against any judge without the permission of the Chief Justice of India. In not a single case has any such permission ever been granted for the registration of an FIR against any judge after that judgement.”
“That the result of this direction has been that a total immunity has been given to corrupt judges against their prosecution. No wonder that judicial corruption has increased by leaps and bounds.”
“That an honest judiciary enjoying public confidence is an imperative for the functioning of a democracy, and it is the duty of every right thinking person to strive to achieve this end.”
“That unless the level of corruption in the judiciary is exposed and brought in the public domain, the institutions of governance cannot be activated to take effective measures to eliminate this evil.”
“That it is the common perception that whenever such efforts are made by anyone, the judiciary tries to target him by the use of the power of contempt. It is the reputation of the judge which is his shield against any malicious and false allegations against him. He doesn’t need the power of contempt to protect his reputation and credibility.”
Today citizens of this country know that the malaise runs deep. An advocate indulging in crass shenanigans gets elevated through the collegium system, a system which doubtless was established with all good intent, but quickly degenerated to one of give-and-take so much so that the author of the collegium system, the revered Justice J.S. Verma had regrets about its efficacy. Imagine there are no records of collegium meetings available! Recall how not too long ago, Justice Chelameswar, one of the collegium members, had dissented and raised his voice against the prevalent practice and demurred to attend meetings of the collegium; and instead wanted views to be recorded on files. Never in my fallible memory of government past, working in the much maligned Indian bureaucracy, did I ever see any decision of value, let alone important decisions, not recorded or views not expressed and controverted, even dissented openly. The sad thing is everyone knows what goes on in judiciary. Almost everyone talks about it in high-pitched exasperating decibels in private confabulations but stops short of saying so even in whispered tone in public — lest they crossed the lakshman rekha and breached the contempt law. Because there is no appeal beyond the apex court — no matter how right or wrong such orders are. Ask the honest, no-nonsense, upright and knowledgeable former Supreme Court judge, Justice Markandey Katju!
This calls for extreme caution and self-restrain. You know better than I do Lord Atkin’s immortal lines, “Justice is not a cloistered virtue. It must suffer the scrutiny and outspoken comments of ordinary men”. Especially in today’s time when the clamor for transparency in public life is surging ahead.
Look at the sorry state of judiciary’s functioning. The judges refuse to bring the Supreme Court Registry under the RTI purview; Justice A.P. Shah, a rare independent and conscientious judge of unimpeachable integrity is not elevated to the apex court because he was perceived as too independent, too impartial, and too honest for anyone’s comfort. Whither are we bound? Judiciary is mandated to uphold the rule of law, to speak the moral vocabulary with its internal moral compass perennially ticking to dispense justice; what happens when the upholder of the law starts eating the crop!
If my memory serves me right, some six-eight months ago, the Economic Timeshad carried news about a Supreme Court judge acquiring land in a fraudulent manner or by misrepresentation of facts and continued to hold the same even much after his elevation. I don’t even know if the present case concerns him. I didn’t know till moments ago the name of the judge, but I have wised up now, but given the sensitivity and that the charges are yet to be looked into, I do not wish to commit solecism by disclosing the name. But all these past months I didn’t hear anything in the media. Nor, if the matter was at all inquired into by the Supreme Court to get to the bottom of the complaint. This is what citizens of this country would expect from public officials, more so from a judge of the apex court. We aren’t a banana republic after all!
Your Lordship, as the CJI the ball is in your court now. Given that, as things stand today, no FIR can be registered against any judge without the permission of the Chief Justice of India, I would urge and plead with you to appoint a Committee comprising of a few senior judges of the Supreme Court with the direction to carry out an immediate in-house inquiry to find out the truth. It has to be immediate — Justice delayed is justice denied! — and your decision in the matter put out in the public domain to restore citizens’ faith in the judiciary. I will humbly like to nudge you to remember the first and the last codes of RESTATEMENT OF VALUES OF JUDICIAL LIFE, as adopted by Full Bench of Supreme Court on May 7, 1997.
Justice must not merely be done but it must also be seen to be done. The behaviour and conduct of members of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly any act of the judge of the Supreme Court or a High Court, whether in official or personal capacity, which erodes the credibility of this perception, has to be avoided.
Every Judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held.
If the alleged judge is innocent the public must know; if found guilty, he should be dealt with the severest punishment that can be sanctioned against a public official and a Supreme Court judge at that, so that the exemplary punitive action meted out rings down the corridor of Indian nation and democracy that prides in its rule of law. Sunlight is the best disinfectant. After all, judges, given the important role they play in a nation’s life, are expected to follow the punctilio of a higher code and, as the saying goes, judges must like Caesar’s wife be absolutely and always above board. And all along, we as citizens and you occupying one of the highest offices in this nation need to stay ineffably humble regardless of the position we hold and the perch we speak and act from, and chant the prescient words of Thomas Fuller, the 17th century English churchman: “Be you ever so high the law is above you”!
Your Lordship, as I said before, it is now your turn to act and make the right move. We wait with bated breath the transparent outcome of your action.
With regards,
Yours sincerely,
Sudhansu Mohanty
(Reproduced from

Saturday, July 22, 2017

Audit Ain’t the Demon you think it is, if you haven’t Strayed!

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In our genteel government ecosystem, audit is reviled, punned, demonized – and rarely welcomed. There are many humours that keep bobbing up from time to time to subtly soften the brutalities of its findings. Some are malicious, some humorous to a T; but for me, the one that takes the cake concerns the four-legged animals. The orders on the subject prescribed that when an animal died, the hide and skin of the dead must be accounted for in the ledger. Some animals had strayed, enquiry was conducted, and their loss was duly noted. But the auditor was horrified. Enquiry was fine, but what about the hides and skins that remained unaccounted for. Livid, he shot off his observations. Riled, the executive officer otherwise known for congenital analgesia with no innate pain sensors exhaled a small laugh and sprung into action: “I’m sorry the animals’ hides and skins couldn’t be accounted for in the ledgers, for the poor dears didn’t leave them behind when they strayed!”

But, now on to the sombre part. Audit indeed is serious business, as much for the auditor as for the auditee. Not too long along, the audit findings of the CAG on Commonwealth Games, 2G, Coalgate and a string of others that followed in close succession brought to the fore the shenanigans that otherwise would not have been put out in the public domain. Notwithstanding the laughable “zero-loss” statement of Kapil Sibal, it is well to remember that in a democratic set-up, along with executive and legislative separation of powers, there are conscious in-built institutionalized checks and balances in the form of constitutional audit and judicial review, not to speak of the media oversight. Each role while being separate and distinct with boundaries drawn is subject to and relies on the other to keep the wheel of accountability well-oiled and ticking. It calls for respecting others’ role in fulfillment of their assigned mandate; and with the judiciary playing the umpire overseeing transgressions and interference, if any, by any of the institutions.

So, when judiciary, the constitutional umpire of matters just and transparent, refuses to audit itself and recuses to be the Caesar’s wife, there indeed is a cause for concern. It is like the fence eating the crop! The recent Jharkhand High court’s order of June 20 recalling its earlier order directing the Principal Accountant General to audit the accounts of three judicial institutions is puzzling; it ex facie smacks of shielding the Jharkhand Legal Services Authority (JHALSA), the Jharkhand Judicial Academy (JJA), and the National University of Study and Research in Law (NUSRL), Ranchi from seeming mis-and-malfeasance. This, naturally, has evoked sharp criticism from lawyers and the Jharkhand high court advocates’ association has submitted a petition, signed by 50 practicing lawyers, to the state bar council seeking its intervention.

Worse still that this was done against the background that not too far ago, NUSRL students had launched protest demanding complete administrative overhaul, audit and publication of financial records. This makes it hugely troubling. “It is well established that review jurisdiction,” as the legal magazine Bar and Bench said, “should be exercised by courts sparingly. The Supreme Court, in Sow Chandra Kanta And Another vs Sheik Habib had held: ‘A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility’. In this case, it seems that the High Court has protected these institutions from scrutiny.”

Regularity and propriety audit are diagnostic tools aimed at looking at innards of an institution, much as medical equipments help sight the body’s health, with its warts and all – zeroing on how much the cancer has metastasized. How wrong the order is can be seen metaphorically just by boxing the risible lines of an English court cited in the judgment: “Even God himself did not pass sentence upon Adam before he was called upon to make his defence,” with “Caesar’s wife should always be above suspicion!” The surmise is telltale. As is said, not only must you be honest but you’ve to be seen to be so. The audit directed by the earlier bench headed by the Chief Justice – who ex officio is the Patron of the Jharkhand Legal Services Authority (JHALSA) and of the Jharkhand Judicial Academy (JJA), and the Chancellor of the National University of Study and Research in Law (NUSRL), Ranchi – was a step in the right direction to set the house in order.

There is no better institution to audit than the constitutional auditor. In any case, as per extant subject orders, any organization receiving full or partial funding from the government of India (read public funds) is subject to audit by the Comptroller and Auditor General or by offices under his charge. As the Chief Justice’s order of June 7, 2017 said in directing the audit, it was to ensure “transparency in the administration” and in the “interest of justice”. Whoever can complain of transparency and/or justice in public spending? Regularity and propriety audit can thrown up and bring to light all instances of wrong doings, if they are any.

The recall of this order by another bench in such unholy haste – within 10 days of retirement of the Chief Justice who passed the order – to say the least, is reprehensible: not only does it negates transparency and impugns justice but very likely shrouds the goings-on in the three institutions by shielding them from audit and foisting summary opacity. It seeds the suspicion that there possibly are things to hide from audit. Any honest Chief Executive of an organization welcomes audit to beware of the ground under his feet. No head of an organization shies away from getting to know the quicksand it stands on. No one blanches from audit if there is nothing to hide – audit ain’t the demon for the upright and the straitlaced. Far from eroding “public confidence in these Institutions” and not being in the “public interest” as the second order of June 20 says, the truth is just the contrary: sunlight is the best disinfectant, and audit sunshine can only enhance the “reputation” of these three institutions, and not detract from it. The simple inference one is apt to draw is that perhaps the institutions have strayed and indeed have things to hide! Rectitude and internal moral compass do not seem to be their ethical vocabulary.

It is about time for the Supreme Court to take note of such transgressions and zero in on the fallacies and flaws of the Jharkhand High Court judgment of June 20, 2017, issues strictures and directs a special audit. Such desecrations of budgetary outlays from the Consolidated Funds of India cannot – and shouldn’t – be allowed to go on with impunity. It needs no stressing that the taxpayer must get to know how his own precious money is spent by the judicial archbishop of the nation. In the wake of Justice Karnan’s case when judicial reputation has taken a severe beating, it shall doubtless help restore greater credibility – even bring laurels – to the apex Court, on whom ordinary citizens of this country repose such unremitting faith and respect.

Tuesday, July 18, 2017

India Desperately Needs a Full-Time Defence Minister

The defence ministry is far too big and complex to be managed part-time as an additional charge by another minister, no matter how competent and cerebral he may be.

Finance minister Arun Jaitley. Credit: Reuters
Finance minister Arun Jaitley. Credit: Reuters
Amongst India’s ministries, defence, finance, home and external affairs occupy a particularly special place. They are housed in the imperial and imposing North and South Blocks – finance and home in the North and defence and external affairs, along with the all-powerful PMO, in the South.
The state of these ministries  – in particular defence – are an indicator of how well the nation is being served and consequently exude the state of India’s overall wellness.
Sadly, of the 38 months that the present government has been in power, it has been without a full-time raksha mantri (defence minister) for close to ten months – more than 25% of its tenancy. Surreal, but that’s how it has been. The government started its innings without a full-time defence minister in May 2014. The finance minister at the time held the additional charge for the first five-and-a-half months, and now continues to hold charge for more than four months since March. The clock keeps ticking and is likely to tick some more.
Changing face of Indian defence establishment 
This is rather unfortunate. The Ministry of Defence (MoD) is among the larger ministries of the Indian government, both in terms of manpower and budgetary outlay. Historically, it goes back to the military department of the East India Company at Kolkata created in 1776. Through the Charter Act of 1833 to the unification of Bengal, Bombay and Madras presidencies in 1895, to creation of two separate departments (army department and military supply department) in 1906 and to the subsequent merging of the two into one army department in 1909, the face of the Indian defence establishment has changed over time.
The army department was rechristened as the defence department in 1938 and became the MoD in August 1947, with each service placed under its own commander-in-chief, topped by a cabinet minister. Sardar Baldev Singh was the first defence minister of independent India. The government of India is responsible for ensuring the defence of India through the cabinet. The defence minister heads the defence ministry; and the president is the supreme commander of the armed forces.
This is one ministry that is truly gargantuan in size, literally and metaphorically sprawled across the country’s territorial soil, air and water. It is responsible for framing government policy on defence and security issues for effective implementation of these programmes by the services headquarters, inter-service organisations, production units and defence research within the allocated budgetary outlay.
Scope of defence ministry
The sheer range of responsibility can be appreciated from the fact that the integrated defence staff, the three services (of more than 1.5 million strong) and various inter-service organisations, the defence budget (FY 2017-18: Rs 3.6 lakh crore), establishment matters, defence policy, defence co-operation with foreign countries, defence production activities of ordnance factories and defence PSUs come within the ministry’s mandate, as do issues of welfare, resettlement and pension of ex-servicemen.
While the range of activities, impressive in its reach and spread is one thing, so too are its personnel. The civilian bureaucracy and the services headquarters (with their panoply of commanders, in the level of secretary) make this ministry singularly top-heavy.
Not just that. Truth be said, there is an unspoken but palpable undercurrent of difference in approach and perception between the civil and defence bureaucracy. Often the dialectics are resolved by the political master. These two, naturally, meet courtesy the raksha mantri.
There are many such areas in this brick-and-mortar ministry where the raksha mantri remains the lynchpin of all governmental actions and activities.
Ministry’s fund requirement
On budget, setting aside committed expenditure on salary, pension and maintenance of the forces and of the support departments/organisations, what essentially remains is the modernisation budget – the current fiscal year outlay of Rs 86,488 crore rupees. This is the area of high visibility, and loud debates, within the ministry and without. How futile and atmospheric the issue of outlay is can be gauged from a simple example of a roll-on plan.
The parliamentary standing committees have over the years, beginning April 2003, been impressing upon the defence ministry to set up a non-lapsable defence modernisation fund or a roll-on plan to take care of the inevitable fund lapse on capital acquisition at the end of every fiscal. Even the finance minister in the interim budget speech of 2004-05 went ahead and announced creation of the non-lapsable defence modernisation fund with a corpus of Rs 25,000 crore. Someone seemed to have wisened up and gotten real thereafter and the general budget of 2004-05carried no provision for the same. Yet, committee after committee, year after year, has persisted to buzz with this bee in its bonnet. Last year in April 2016, when the parliamentary standing committee got too insanely persistent for inadequate funds on modernisation, I could hold myself no further. I explained that notwithstanding the general impression of paucity of funds available for modernisation, the truth is just the contrary: the MoD isn’t in a position to spend the funds allocated.
The revised estimate for 2015-16 had been reduced in the wake of non-materialisation of contract for Rafale aircrafts. This frankly wasn’t a new trend but the reality – the way it had panned out over the past many years. So where was the need to create a non-lapsable modernisation fund keeping a certain quantum of funds aside, especially when we resort to deficit budgeting and borrow some more at a far too higher rate to keep the roll-on plan going? But no, they persisted: the fund must be in place. I remember getting back and exasperatingly briefing former defence minister Manohar Parrikar about the whole raft of logic adduced to persevere with the idea. He smiled, exhaled a snort of laughter and said he rather expatiate on capital acquisition in the parliament. And he did in great detail the nuts and bolts and nuances of defence capital acquisition.
Interestingly – and this hasn’t been highlighted in the media for lack of appreciation for what it entails – shortly before Parrikar resigned and moved back to Goa, the financial powers of the raksha mantri were enhanced in February from Rs 500 crore to Rs 2000 crore for services capital annual acquisition plan proposals, and corresponding raise in the financial power of the finance minister from Rs 1,000 crore to Rs 3,000 crore. Contracts above Rs 3,000 crore are to be approved by the Cabinet Committee on Security (CCS). On a personal note, I must confess I was stupefied that the proposal was agreed to by the ministry of finance before seeking cabinet approval when under the extant delegation more than 88% of cases of capital acquisition were within the MoD’s delegated power.
The reality is processing of cases in finance ministry had not only instilled greater diligence and discipline but also benefited the MoD in every which way of procurement. In my vision, I saw apparitions of the exacting standards diluted in seeking exemption from the purview of the Ministry of Finance (MoF) for such huge sums up to Rs 2000 crore on individual cases – more than the entire budget of most civil ministries.
The ministry of defence had always been rooting for higher powers on capital procurement – power that is untrammelled, and without scrutiny and due diligence of any external body like the MoF or the CCS. The rationale and refrain for such a dispensation was the due diligence exercised by MoD (finance), headed by a secretary-level financial advisor, as part of the integrated financial adviser system.
Acquisition proposals are but based on future cash liabilities, much beyond the current fiscal year’s sanctioned budget and often going into many future years. To suggest architecture without examination of an independent body as the MoF on financial issues or on the likely budgetary support is hard to commend. In the space department, while the Space Commission includes cabinet secretary, principal secretary to the prime minister and the expenditure secretary amongst others as members of the commission, it does not approve cases of capital nature beyond Rs 1,000 crore. Similar too in the Atomic Energy Commission, projects beyond Rs 1,000 crore are submitted to the CCS despite the member finance of the commission being a secretary-level officer like the financial adviser of defence services.
It also militates against the very basis of checks and balances that is the hallmark of an arm’s length system and is the bedrock for due diligence in cases of humongous expenditure from the consolidated fund of India, that is often fraught with the risk of abuse and the scandal of corruption. The quality and fidelity of processes ought to be the gold standard for expenditure from public funds rather than mere speed in according approval on unceasing operational demands drummed up unremittingly by the services; it may likely turn out to be worse than the disease it seeks to cure, and will be hard to reverse in future.
Again does it not also preempt cross-pollination and cross-fertilisation of ideas and approaches from other sectors and lead to inbreeding of practices/processes in MoD, which doubtless will impact on openness and transparency? In effect, the onus today is greater than ever before on the defence minister on issues of capital acquisition.   
Unfinished business
Another important concern, as onerous as the one before, is to see through the implementation of the Shekatkar committee’s recommendations that have been accepted by the government: reviewing training, administrative and logistics to optimise defence forces manpower and increase ‘teeth to tail’ ratio; suggesting “redeployment, repositioning and restructuring of manpower and resources” to improve combat capability; suggesting integration of civil infrastructure and resources into the logistic system of the defence forces in war and peace to “avoid duplication and reduce expenditure” and suggesting measures to “correct the bias of defence budget towards revenue expenditure”.
There are many suggestions that are implementable: optimal use and integration of manpower and resources by re-deploying ex-servicemen including retired officers and JCOs in various organisations; increased financial powers to all three service chiefs; restructuring and downsizing of ongoing expenditure by trimming the existing manpower and even closing down certain organisations under the MoD; a joint services war college running a one-year combined course for the three forces to impart jointness; creation of a tri-service intelligence training establishment and a four-star chief of defence staff as the chief single-point adviser to the defence minister on matters military, and generating saving of Rs 25,000 crore annually to fund modernisation.  
No less significant is the strategic partnership issue – recently approved by the Union cabinet permitting domestic private companies to form joint ventures with foreign defence equipment manufacturers – on the defence minister’s table waiting to take shape and flight. If it pans out the way it is envisaged, it will open up the hugely lucrative defence industry business to Indian private sector and shoot up India’s self-reliance index in defence procurement. If carried through successfully and transparently, it’ll help whittling down MoD’s fund requirement.
But it’s a big “if” that stares MoD on its face, given that in the past, the ‘make’ and ‘buy and make (Indian)’ template hasn’t really taken off. Though the selection of strategic partnerships is initially confined to four segments – fighter aircraft, helicopters, submarines and armoured fighting vehicles/main battle tanks – it has the potential to change the grammar and syntax of Indian as well as global defence equipment industry. But it requires pigeon eyes to discern deficits, plug weaknesses and close monitoring, to ensure that the trajectory’s path lain with countless imponderables is not shambolic.
That said, it would be apt to say that the MoD is on the cusp of a paradigm shift and inevitable action. One wonders how all these important issues are to be handled without a full-time defence minister. The MoD is far too big and complex a ministry to be managed part-time as an additional charge by another minister, no matter how competent and cerebral he is.
With all due regard to the criticisms and reservations articulated by defence experts and commentators on Parrikar’s efficacy as the defence minister, it must be granted that he tried cleaning up the Augean stables and triggered many moves that have fructified or will likely fructify in the foreseeable future. Effacing a legacy of complete inaction isn’t easy, and reinvigorating the sundry cogs is truly an unenviable task. 
Today, we live in difficult times: heightened militancy in Kashmir, terrorism and infiltration from across the border, the much hyped and trumped-up “surgical strikes”, accusation of human rights violation in Manipur and Jammu and Kashmir under AFSPA and “the General Dyer moment”. The services are a very proud organisation, very obsessed and finicky with their tradition and legacy that they value dearly, and wouldn’t like to forsake. Ironically, even wrong practices that hegemonised during colonial rule and should’ve been long discarded in independent India sadly continue to persist and haemorrhage. But that’s another story and for another day.
Conflict of interest
Yet, more than anything put out here, what’s troubling is that India’s finance minister is holding additional charge of defence. In effect, he who approves as administrative head accords concurrence of a higher order. For the finance minister to double up as the defence minister ex facie impugns the very concept of checks and balances, not to speak of the in-built institutional conflict of interest in according financial concurrence and according due diligence for the CCS. In fact, a 2006 finance ministry order invokes an arm’s length system in processing of cases and captures the essence of the principle of check and balance.
To wit, financial advisers will in no case be assigned any routine administrative functions of the ministry. It is pretty much an incongruity that the finance minister, whose mandate, as per the Allocation of Business Rules, is to appraise and approve plan investment/expenditure of central ministries/CPUs has been mandated to grant administrative and financial approval up to Rs 2,000 crore on capital acquisition qua defence minister, while at the same time he accords enhanced financial approval up to Rs 3000 crore qua finance minister. 
And yet, 292 (167+125) out of a total of 1,148 days of the BJP government without a full-time raksha mantri – that is 25.43% of its time in power – isn’t surely what we Indians and the armed forces deserve as a nation.
                                                                                                              (Reproduced from The Wire)

Humanities in the time of profiteering pursuits

The Noble Savage is dead, or dying! Humongous changes have occurred in the last two decades the world over, yet the course curricula on humanities in most universities haven’t changed sufficiently enough; when carried out, they don’t seem to have been thought-out.
The rapacity for profiteering and longing for a good balance sheet, and senseless competition among corporate firms have cast long shadows on educationists. The emphasis has shifted from the finer aspects of life to profit-making — skewing systems of education and discarding skills that are inviolate and inviolable to keep human beings humane.

The humanities and the arts — I consciously use humanity and art here as embracing everything that do not directly contribute to profit-making in business and commerce – have been given short shrift, in primary, secondary and tertiary education. Decision-makers see these as “useless frills” because they aren’t monetisable – they seem abstract and distant, at a time when cutting out these so-called “non-profiteering elements” that do not value-add to business to stay competitive and cost-effective in the marketplace is considered kosher.

Losing relevance

Consequently, they seem to be rapidly losing their relevance in course curricula and in the minds and hearts of parents and children. Indeed, the humanistic aspects of humanities, art and social sciences — the imaginative, creative dimensions not bound by crazy objectives of consumerism and possessive individualism – are getting buried and left asunder in our pursuit of short-term profit-making.

The result is that the impact of humanities and liberal arts on human action and day-to-day activities seems to be distinctly on the wane. Traditional and conventional approaches of teaching coupled with stasis that makes them traverse the same beaten path of course curricula isn’t helping society see the relevance of humanities and social science in a technology-driven, changing world. The approach inevitably will be nuanced and there will be a need to tweak the course content and fine-tune it to come up with newer products to stay relevant and act as a facilitator to business and industry.

Much as critical thinking can’t be wished away, so too imagination that brings in soft human skills and elements to focus on products to re-humanise humans amid the surfeit of technological practices and innovations inexorably hegemonising his mind and life today: compassion and empathy that’s fast becoming an endangered quality; the skewed work-life balance not conducive for children and family; the eternal human values such as decency and courtesy that seem to be under threat of extinction.

Course content, say in subjects of Empathy and Professional Ethics or Decency and Civility in Public Life or An ideal Work-Life Balance or Learning from the Past and Present, with their universal application at all times in all climes and in all professions amid the increasing complexity of the world we live and work in could be developed drawing lessons, say from history, politics, psychology, philosophy, literature(s), sociology and social work et al.

An example

The Harvard Professor-philosopher Michael Sandel’s course, Justice, which for a decade and a half has been a success with more than a thousand students joining the course and with his lectures placed online as open source, and turned into an eponymous bestselling book, comes to mind.

Be it in the medical profession or on the factory shop floor or in the litigating legal world, compassion and empathy indeed have — and will always have — a place for humankind. That needs to be kept alive because the package of life is much more than mere moolah and profit-making; these softer attributes that humanities offer are crucial to retaining the humaneness of human beings that far outstrip the craze for material goods, mindless consumerism and upward social mobility.

The same would hold good for the few illustrative cases suggested above. A case study method adopted with the study content drawn from life’s variegated experiences will help involve and sensitise students to simulate, internalise and imbibe lessons drawn from myriad disciplines and build architecture in their heads that will trigger their thinking in their primary areas of work. It will mainstream the humanities disciplines and make teachers and students feel relevant and connected, and prompt them to trigger thinking to conflate their ideas with the changing dynamics of the world today, and view their own specialties in a new light.

A need triggered by the globalising times concerns development of communication skills, verbal and written. This will not be the preserve and concern of language teaching departments alone, who though will need to get into the disciplines they are working on to understand, familiarise and internalise the latter’s contents and needs, and thereafter offer inter-disciplinary electives in collaboration with various disciplines. English having become a universal language of transaction and commerce, the English language teaching department will have an important role to play. These soft skills development should become an important part of the curricula of a good finishing school university.                                                                                                                                       (Reproduced from The Hindu)