Prime Minister's statement prior to his departure for USA:

" I  leave today for Washington for a bilateral summit meeting with President Obama on 27th September. I will, thereafter, travel to New York to address the General Debate of the 68th session of the United Nations General Assembly.

Over the past decade, our relationship with the United States, which is one of our most important relationships, has transformed into a global strategic partnership.

The intensive, high-level bilateral visits over the last few months reflect the strong momentum of our engagement. We have also registered impressive progress in our cooperation across the full spectrum of the relationship.

We see the US as a long-term partner in our development efforts, and in fostering a global environment that is conducive to our growth. For India, the US remains a key source of technology, investment, innovation and resources, and one of the most important destinations for our goods and services. We have productive and deepening partnerships in trade and investment, defence, counter-terrorism, intelligence, internal security, cyber security, civil nuclear energy, environment, health, higher education, space, science and technology and culture. People-to-people contacts are a strong feature of our engagement. We have also launched development partnership in third countries.

My visit is an opportunity to review our joint efforts and chart a course for our future cooperation.

I also look forward to discussing a broad range of global and regional developments, and how we can work together to advance our shared interests.

The UN General Assembly will focus this year on the follow up to the 2012 UN Conference on Sustainable Development held in Rio de Janeiro, which marked the 20th anniversary of the Earth Summit. The General Assembly will also look at drawing up the global development agenda after 2015, which is the target date for the Millennium Development Goals (MDGs) set in 2000. Despite successes on many parameters, the world as a whole is unlikely to meet the MDGs, and it is important that we sustain our efforts. I will emphasize the importance of maintaining poverty eradication and inclusive development at the core of the post-2015 development agenda. The Sustainable Development Goals that are expected to be drawn up as part of the follow-up to the Rio+20 Conference should ensure a holistic approach to sustainable development objectives, ensuring a balanced treatment of its economic, social and environmental dimensions as well as universal applicability.

The UN General Assembly will also meet at a time of enormous political upheaval, particularly in West Asia, coupled with a global economic slowdown that has now affected even the emerging economies. I will convey our strong conviction that global challenges are best addressed through multilateral approaches, with the United Nations at its centre. I will also stress the pressing need for early reform of institutions of global political and economic governance, particularly the United Nations Security Council, so that the UN can play an effective and credible role. The year 2015 will mark the 70th anniversary of the founding of the United Nations, and it would be a fitting occasion to conclude the ongoing reform efforts.

During my visit to New York, I also look forward to bilateral meetings with the leaders of some of our neighbouring countries, including Bangladesh, Nepal and Pakistan. " 

Restoring the Supreme Court’s exclusivity

The Supreme Court of India is perceived by the lay public as the most potent institution in the Constitution by its appellate authority over all courts and tribunals and by its striking orders correcting and supervising government actions. In the public euphoria over this functioning of the Supreme Court, there is no awareness that the Supreme Court has radically changed its character and stature which was prescribed by the makers of the Constitution.
When the Supreme Court was established in 1950, the Constitution conferred on it limited but important functions of deciding cases involving fundamental rights, cases of Constitutional importance and substantial questions of law of general importance. The Supreme Court was given a residuary power to grant special leave to appeal, in its discretion from any judgment of any Court or Tribunal (Article 136 of the Constitution) sparingly and in exceptional cases. The Supreme Court was not to be the apex court to decide ordinary disputes between litigants. Only exceptionally, such disputes between litigants would be decided by the Court. The lower courts and the High Courts were considered as generally competent and adequate for the dispensation of justice between litigants.
Small and Compact
Consistently with this restricted jurisdiction of the Supreme Court, the Constitution provided that the Supreme Court, like Supreme Courts in other jurisdictions, would be a small, compact court of the Chief Justice and not more than seven judges unless Parliament otherwise provided. Further, as substantial questions relating to the interpretation of the Constitution were of the utmost importance, the Constitution provided that such questions should be decided by large benches of judges and the minimum number of judges who were to sit for deciding such questions should be five.
From 1950 to about 1990, the Supreme Court generally retained this character comparable to the character of Supreme Courts in other jurisdictions. Special leave to appeal from a decision of a High Court or tribunal was sparingly given in the discretion of the Court. The composition of the Court was of benches of three judges, and five judges and, exceptionally, benches of seven judges and even 13 judges, as in the famous case of Kesavananda Bharati, decided important cases.
Progressive Dilution
Today, all this has changed. The Supreme Court of India has lost its original character by a vast self-enlargement of its jurisdiction making itself a general court of appeal by routinely entertaining special leave petitions between litigants which do not involve important constitutional issues or issues of law of general importance. Up to June 2013, 35,439 special leave petitions which do not involve such issues are pending in the Court. Public Interest Litigation (PIL), which was laudably innovated by the Supreme Court in 1970 to redress the rights of disadvantaged sections of the society, has been converted into litigation for correcting government actions from corruption scams to banning tinted glasses on automobiles. Writ petitions to enforce fundamental rights under Article 32 of the Constitution are less than one per cent of the petitions annually admitted by the Court.
Cases of constitutional and national importance have been sidelined and not heard for years. The last major Constitutional case with a bench of nine judges was decided in 2007 in I.R. Coelho vs. State of Tamil Nadu which considered Parliament’s power to amend the Constitution by including statutes in the Ninth Schedule of the Constitution. Important Constitutional cases referred to nine judges such as the scope of Interstate Trade, Commerce & Intercourse, the Right of States to Tax Minerals have not been heard for several years. At least five cases for consideration by seven judges, and 36 cases for consideration by a bench of five judges are pending for several years. Only 15 cases were decided by five judges between 2011 to 2013.
Bench Strength
With the increasing load of appeals from High Court decisions the number of judges have had to be increased periodically from eight judges in 1950 when the Constitution came into force to 31 in 2008. Presently, the Supreme Court is composed of one bench of the Chief Justice’s Court of three judges and 13 or 14 benches of two judges in 13 or 14 courtrooms sitting regularly day after day. In no Supreme Court of other jurisdictions are there benches of 13 to 14 courts of two judges each as the Indian Supreme Court now has. Supreme Courts of other jurisdictions such as the United States, the United Kingdom, Canada, Australia and South Africa sit either en banc, i.e. of its full strength, or in large benches of five or more judges considering the importance of the case, as such a large composition of judges is considered fitting for deciding important cases in the highest court.
By contrast, the Supreme Court of India today decides cases of major importance by benches of two judges. Recently, the Supreme Court nullified Section 8(4) of the Representation of the People Act, 1951. This important decision on the interpretation of Parliament’s legislative powers on members of legislatures convicted of offences was delivered by a bench of two judges of the Court despite the Constitutional requirement that substantial questions of interpretation of the Constitution should be decided by not less than five judges. Important policy matters are decided by a bench of two judges of the Court. In the 2G Spectrum Case, a bench of two judges prescribed a national policy for disposing of all public resources by public auctioning. A bench of two judges has laid down the law in the vexing cases of inordinate delay in the disposing of petitions for clemency by the President in death penalty cases. The important question of decriminalising homosexuality under the Indian Penal Code has been heard, and the judgment which is reserved will be given by a bench of two judges.
When Sir B.N. Rau, the Constitutional Advisor at the time of the framing of the Constitution met Justice Frankfurter of the U.S. Supreme Court, he was told by Justice Frankfurter that the jurisdiction exercisable by the Supreme Court should be exercised by the full court and the highest court of appeal in the land should not sit in divisions. The Drafting Committee of the Indian Constitution also drew attention to the practice in the U.S. Supreme Court of not sitting in divisions and how the judges of the Supreme Court of the U.S. attached the greatest importance to this practice.
Separate Court
In most of the other Supreme Courts, the cases decided by them are few and are of constitutional and national importance leaving the lower Courts to decide finally the cases which the Supreme Courts do not consider deciding to overload themselves with. The Supreme Court of the U.S. selects from among 7,000 petitions for certiorari (admission) around 100 cases in which certiorari is granted. On an average per year about 80 cases are decided by the Supreme Court of the U.K., the Supreme Court of Canada and the High Court of Australia. The Constitutional Court of South Africa — which has been ably functioning since 1994 deciding major constitutional cases and cases of national importance — decides on an average 38 cases per year. In contrast in 2012, the Supreme Court of India decided 898 cases, with few cases of constitutional or national importance.
The Supreme Court of India understandably is compelled to take up cases from 24 High Courts whose judgments increasingly require correction, and litigants have no forum for their correction except the Supreme Court. In this situation, the only solution to preserve the exclusivity and standing of the Supreme Court is to create a separate National Court of Appeals distinct from the Supreme Court in which appeals from High Courts and Tribunals can be entertained. Such a provision for a Supreme appellate court at the highest level distinct from a Constitutional Court is provided by the Constitution of South Africa. Simultaneously, the number of judges of the Supreme Court can be reduced from 31 to a smaller strength and the Court can function with benches of three and five judges as it functioned earlier. Above all, it is imperative to create awareness by lawyers, judges and informed public opinion of the necessity for restoring the character and standing of our Supreme Court comparable to the Supreme Courts in other jurisdictions.
( T.R. Andhyarujina is a senior advocate of the Supreme Court and former Solicitor General of India. )

Can a trustee of natural resources claim he is no custodian of files?

In more than a dozen judgments, the Supreme Court has crystallized ‘Public Trust Doctrine’ and ruled that people are the owners of natural resources and the government exercises control over these resources as a trustee to achieve the greater common good.

    Four years ago, dispute over division of family assets between the Ambani brothers boiled down to the KG basin and the matter came for adjudication before the SC. The Centre had argued that “natural resources are vested in the government, as a matter of trust, in the name of the people of India and it was the solemn duty of the state to protect the national interest”.

    In its judgment in the case, the SC picked the thread from the government’s arguments had held that natural resources were in fact national assets. It had said, “In a constitutional democracy like ours, the national assets belong to the people. The government holds such natural resources in trust.”

    This means, we the people are real owners of natural resources — coal, minerals, petroleum, natural gas, spectrum, forests, land and water. We allow our elected representatives to hold our property, the natural resources, in trust to enable them to utilize them scrupulously for the greater common good.

    When the Prime Minister, as the head of the government, distributes portfolios among his trusted lieutenants, he transfers with it the trusteeship over natural resources. The PM himself held trusteeship over coal when he held charge of the coal ministry during 2006-09.

    The Comptroller and Auditor General reported that irregular allotment of coal blocks to big players cost lakhs of crores of rupees to the exchequer. The CAG report raised a massive stink even before the one left behind by the alleged irregular allotment of 2G spectrum had died down.

    Like the spectrum scam, the coal controversy too landed in the Supreme Court, which is monitoring the CBI investigation into the allotments. But even before the court could appraise itself of the details of the inquiries conducted by the agency, an ever itching government was caught red-handed tinkering with the probe status report.

    The court ordered the CBI to insulate itself from political interference and scrupulously examine each and every file relating to allocation of coal blocks, with a direction to the coal ministry to hand them over to the agency. The ministry audaciously said many important files relating to coal block allocations were missing from its closets.

    As the coal-washed black water breached the gates of the government and threatened to smear it, the PM nonchalantly told Parliament that he was not the custodian of the coal files.

    This is akin to a situation where, you and I — the people — entrust our property in trusteeship to another person to deal with it in the best possible manner to benefit us. But the trustee, who is responsible to keep records of all dealings relating to the property, tells us that he is not the custodian of the files which contain details of the dealings and that many of these files have gone missing!

    The PM as coal minister says he is not the custodian of the files. The coal ministry says it does not have the files and has constituted a high-powered committee, the proven panacea for all controversies, to locate them.

    The PM’s “I am not the custodian of files” excuse must have brought smiles on the faces of many ministers, who tomorrow can give the same excuse about files relating to allocation of licence to exploit natural resources like petroleum, natural gas, spectrum, iron ore and many other important natural resources which could go missing.

    The government, with the PM’s statement about missing files, stands at a crossroad — one gets guidance from SC enunciated public trust doctrine holding the government to be trustees of natural resources, and the other that meanders through dingy bylanes crowded by unscrupulous elements ever ready to drain the country for private gain. Would it not have been a momentous occasion for a democracy like ours, if the PM had said “I am responsible for the coal files and it will be my government’s business to find them and hand them over to the CBI for a through probe?”

    This would also have done the PM and his party a great service instead of his cahoots parroting the ‘clean image’ of the PM forgetting that muddied waters seldom reflect a clean image, howsoever beautiful the face might be.

    There is no one to own responsibility for the missing coal files as majority from the ruling political class lack the humility of an elected representative. Instead, intoxication of power has made them display brazen arrogance.

    They can take a lesson or two from Abraham Lincoln who on his election as president of the US had said, “I have been selected to fill an important office for a brief period, and am now, in your eyes, invested with an influence which will pass away. But should my administration prove to be a very wicked one, or what is more probable, a very foolish one, if you the people are true to ourselves and the Constitution, there is but little harm I can do, thank god.”

    The unfeigned innocence reflected in Lincoln’s speech is quite a contrast to the feigned innocence over the files reflected in the PM’s speech.

Dhananjay Mahapatra 

Rajya Sabha is a relic of the past

While pleading with fellow members in Rajya Sabha to allow question hour to proceed smoothly, an exasperated chairman of the Upper House recently remarked: "Every single rule in the book, every single etiquette is violated." He went on to deem the Rajya Sabha as a " federation of anarchists ".

About a year ago, marshals were deployed to evict protesting members during the discussion on the Women's Reservation Bill. A couple of years ago, its members committed grave disservice to Indian citizens — the Lokpal Bill, the pre-eminent anti-corruption legislation, which had earlier been passed by the Lower House, was tragically killed in the Rajya Sabha. India can quite easily do away with this anarchy by abolishing the Upper House.

The Rajya Sabha's creation can be attributed to preserving the federal nature of the Union. According to its website, a single directly elected House was considered inadequate to meet the challenges of a vast and diverse India at the time of Independence. A "Council of States" that was smaller, composed of different members to be elected by the elected members of state assemblies and Union Territories, was required.

Increasingly, in 21st century democratic India, the Upper House is more symbolic, cosmetic and has lost its relevance. It should be eliminated for several reasons but primarily for the following four that are sufficient to demonstrate it to be superfluous and a relic of the past.

First, today's Lok Sabha looks a lot like the Rajya Sabha that was perceived at the time of Independence. The fear of states not having enough representation in Parliament is not true anymore. With our polity becoming increasingly fragmented, regions and states are well represented in the Lower House by various parties that have no national interests but narrow regional agendas.

Besides, many regional parties rule states and are here to stay for the long haul. The chief ministers of these states are quite powerful and issues raised by them can be heard around the country. These states actively pursue and protect their interests at the Centre as well as scuttle laws that are inimical to their interests.

The proposal for a National Counter Terrorism Centre was vehemently opposed by state governments that forced the Centre to withdraw the provision. Even in the recently introduced Food Security Bill, the concerns of states are loud and clear than those of parliamentarians. The federal structure of India is sound and regional interests are adequately represented in the Lower House, thus rendering the Upper House redundant.

Secondly, the Upper House has become a paradise for party fund-raisers, losers in elections, crony capitalists, journalists, retired CEOs and civil servants. Three of the last four prime ministers have been elected to the Rajya Sabha without having to face the electorate, clearly an anti-democratic way in the true sense. Governments in the past took advantage of the Upper House to hire lateral talent. Individuals of repute who were either talented or had private sector experience were inducted so they could bring fresh ideas and knowledge in various ministries that desperately needed them.

But, of late, political parties are exploiting the Rajya Sabha to reward power brokers who can raise funds for elections, journalists who support party positions on various issues and civil servants for servility and obeisance. More and more industrialists and former company heads are becoming members with the intention of gaining influence and sway policy. Thus, the Rajya Sabha has become a pseudonym for cronies and an institution that serves vested interests than strengthen the people's agenda.

Thirdly, it has become a platform for parties to further their political agenda than to debate and improve legislation. Important legislations that are passed in the Lok Sabha are scuttled in Rajya Sabha for political reasons. Contrary strategies are adopted by political parties in the Upper and Lower chambers to manoeuvre and manipulate in order to avoid embarrassment to parliamentarians on issues of importance to the country at large.

Meaningful debates are a rare and the Upper House contributes more than its fair share to a dysfunctional Parliament. Given the fragmented political environment of modern Indian politics, it is more of a hindrance to speedy legislative process that the country desperately requires for economic growth and progress.

Finally, the expenditure incurred on the functioning of the Upper House can be reallocated. Members of Parliament of both Houses are treated on equal footing as far as privileges and benefits are concerned. The 250 Rajya Sabha members are paid salaries, awarded perks and retirement benefits and provided local area development grants that run into hundreds of crores of rupees. Savings from elimination of the Upper House can be more gainfully deployed for either building infrastructure or enhancing social development or other meaningful projects.

For governance to improve, India needs to abolish certain institutions, reform others and create new ones. Today, the Rajya Sabha is one such frail institution that is no more required to preserve India's federal nature and in fact contributes more to the dysfunction of Parliament than to legislative process. The time has come to confine it to history and relegate it to our national archives. ( TOI )