life in financial markets: (part 2) indian telecom 2g spectrum scam cases have complexities

(part 1 of this series was posted yesterday, on 10 October 2011)

One major telecom-scam-cases-related news yesterday was a 2-judge Supreme Court bench (hearing Subramanian Swamy's application before it asking for investigation of P Chidambaram's role and also hearing Prashant Bhushan's application before it asking for appointment of independent observers to supervise the CBI probe) reserved its order. The 2-judge bench comprises of Justice G. S. Singhvi and Justice A. K. Ganguly.

Just before this news broke out among the media sites yesterday, I had stumbled upon a website called legallyindia.com which had a 4 October-dated report (unsubstantiated though) on a party thrown by Congress Party spokesperson and senior lawyer Abhishek Manu Singhvi in Delhi where lawyers and judges were invited. The report mentions, among other things, the attendance of Supreme Court judge Asok Kumar Ganguly in the party. The report stated that this judge was the junior member of the bench hearing the 2G case and that India's Law Minister, Salman Khursheed, was seen interacting with this judge in the party.

As per this Supreme Court website page on individual judges, among other things stated was given the information that Justice Asok Kumar Ganguly is due to retire on February 3, 2012. This date is less than four months away.

Anyway, I am giving below the legallyindia.com report on the party for legal fraternity thrown by Singhvi:

http://www.legallyindia.com/Supreme-Court-Postcards/supreme-court-insider-manu-singhvi-invites-to-party-delhi-bench-bar-politicos-answer

Supreme Court Insider: Manu Singhvi invites to party, Delhi bench, bar, politicos answer

Written by Supreme Court Insider  |  Tuesday, 04 October 2011 17:25

Congress Party spokesperson and senior lawyer Abhishek Manu Singhvi hosted a dinner for the upper echelons of the legal fraternity in Delhi on Saturday night. Found wining and dining at the seemingly non-descript but ultra-high profile occasion were judges of the Supreme Court and Delhi High Court, senior advocates and well-connected lawyers from the Delhi-Bombay Bar.

Significantly Jayant Bhushan, a senior lawyer in his own right, attended the dinner but the absence of his brother, Prashant and father Shanthi Bhushan (the former law minister) did not go unnoticed. Prashant and Shanti Bhushan are integral members of Team Anna of course, which is in stormy negotiations with a Parliamentary committee presiding over the Lokpal Bill headed by Congress’ Singhvi.

Law minister Salman Khursheed’s interaction with Supreme Court judge Asok Kumar Ganguly, who is the junior member of the bench hearing the 2G case, raised some eyebrows too.

2G or not 2G

Khursheed recently issued an opinion from his ministry on the definition of ‘associate’ companies - a move that bolsters the prospects of chargesheeted Reliance, Swan and their executives in the on-going criminal case before a trial court.

Ganguly along with his brother judge GS Singhvi had obliquely referred to the law ministry’s opinion last week during a hearing in the Supreme Court, saying that such interventions from government departments were “not appropriate”.

And so, with this as a backdrop on everybody’s mind, Khursheed and Ganguly sat together at a table and those assembled could only wonder what they spoke about.

Absent friends

All the other usual suspects were present, except of course members of the anti-Singhvi camp that includes the BJP's Arun Jaitley and Congress's Manish Tiwari.

Attorney General Goolam Vahanvati and Solicitor General Rohinton Nariman were absent, although the senior Nariman (Fali) made an early entry and exit. Senior advocates Mukul Rohatgi, Harish Salve, Rajiv Nayar, Gopal Subramanium and C. S. Sundaram did not attend.

Collegiate

Discussions on the controversial issue of judicial appointments and the collegium system, which is so strongly defended by the higher judiciary, were heard from various corners of the room.

This is not surprising since AM Singhvi’s parliamentary committee is also presiding over the Judicial Standards and Accountability Bill, which contains a recommendation to create a National Judicial Commission for the appointment of judges.

Another chapter in the constitutional war between Parliament and the Supreme Court might be in the offing if the government reclaims its right to preside over judicial appointments.

life in general: human rights: a facade of action

Human Rights Watch has just released a World Report (downloadable here) highlighting events in about 90 countries with every country covered in a separate chapter. Out of three thematic essays accompanying the report is one titled "A facade of action" that I found very insightful.

I want to connect what this essay says with what a three-judge bench of India's Supreme Court remarked earlier this month on 20 January. A newspaper reported, "The Supreme Court (SC) on Thursday pulled up social activist Teesta Setelvad, who has been fighting for Gujarat riots victims, for approaching an international human rights body raising the issue of protection for witnesses. The court, which was seized of a law suit seeking transfer of cases from Gujarat to another state, expressed its displeasure on Setelvad’s move. “We do not appreciate that other organisations interfere in our functioning. We can take care of (them) ourselves and cannot get guided by others. It is a direct interference in our functioning. We do not appreciate it,” a bench of justices DK Jain, P Sathasivam and Aftab Alam said. Setelvad-run NGO, the Centre for Justice and Peace (CJP) had sent a letter to the Geneva-based office of the high commissioner for human rights, associated with United Nations, giving details of the proceedings in the Godhra riots cases. When Harish Salve, who is assisting the court in this case, drew the judge’s attention towards Teesta’s letter, an anguished bench told her counsel Kamini Jaiswal that CJP chief seems to have “more faith in foreign organisations than this court”. “It seems that witnesses would be protected by these organisations,” the bench remarked, adding if such letters are written then the court would pass the order without hearing the contentions of the CJP”. “If you send such letters then we would hear the amicus curie and pass the order (without hearing you),” the court warned. "All the cases are being monitored by us, we do not like any correspondence of her with foreign agencies’’, the court added. We do not appreciate letters sent to a foreign country. We do not approve of such a letter. Tomorrow, you will report these (SC) proceedings to them. This letter shows that you have more trust in them.”"

I think if Indian court judges are confident that they are doing their job properly then why have any apprehensions of any international human rights body being updated with any detail of any court case in India. This betrays arrogance on the part of Indian judiciary and is very unfortunate.

I connect with what the writer of the essay "A Facade of Action" in the Human Rights Watch's World Report, which I refer to above, says, "In last year's World Report, Human Rights Watch highlighted the intensifying attacks by abusive governments on human rights defenders, organizations, and institutions. This year we address the flip side of the problem-the failure of the expected champions of human rights to respond to the problem, defend those people and organizations struggling for human rights, and stand up firmly against abusive governments.
There is often a degree of rationality in a government's decision to violate human rights. The government might fear that permitting greater freedom would encourage people to join together in voicing discontent and thus jeopardize its grip on power. Or abusive leaders might worry that devoting resources to the impoverished would compromise their ability to enrich themselves and their cronies.
International pressure can change that calculus. Whether exposing or condemning abuses, conditioning access to military aid or budgetary support on ending them, imposing targeted sanctions on individual abusers, or even calling for prosecution and punishment of those responsible, public pressure raises the cost of violating human rights. It discourages further oppression, signaling that violations cannot continue cost-free.
All governments have a duty to exert such pressure. A commitment to human rights requires not only upholding them at home but also using available and appropriate tools to convince other governments to respect them as well.
No repressive government likes facing such pressure. Today many are fighting back, hoping to dissuade others from adopting or continuing such measures. That reaction is hardly surprising. What is disappointing is the number of governments that, in the face of that reaction, are abandoning public pressure. With disturbing frequency, governments that might have been counted on to generate such pressure for human rights are accepting the rationalizations and subterfuges of repressive governments and giving up. In place of a commitment to exerting public pressure for human rights, they profess a preference for softer approaches such as private "dialogue" and "cooperation.""

life in financial markets&general: unhealthy judiciary-corporate nexus

There is a deadly and unhealthy nexus between industry and judiciary that is among other few aspects that makes a mockery of the claims by India that it is the largest democracy of the world. There are two things going on, with regard to the rulings by the judges of various High Courts in the country and the judges of the Supreme Court of India, since a few years now and these have got accentuated in recent weeks and months.
1) When they have passed judgements in cases filed by citizens/villagers groups or NGOs against land grab (whether for SEZs or any other so-called 'development' (that, according to me, is a myth perpetuated by industry, blindly believed by urban/semi-urban consumers and aggressively supported by all the top media editors in India), protection of property rights and equal and fair treatment of their human rights they have ruled against. Two examples are one recent (early September 2008) judgement by Supreme Court judges dismissing a petition that strove to stop the illegal grab of farmers' land by Andhra Pradesh state government for a supposedly 'infrastructure' project (see here), and the 8 year old judgement by the Supreme Court on the Narmada dam issue when the Narmada Bachao Andolan filed a petition (in that ruling, two Supreme Court openly pimped for government claims and completely overlooked the major problems and development&environment rules violations that were going on).
2) On the other hand, when they have decided on cases filed by companies or government bodies, on similar issues or issues connected with property rights of companies and rich landlords, they have ruled in favour of them. Just today there has been one (see here). The companies ridicule NGOs and activist groups for using the courts often but reveal their hypocrisy when they themselves approach the courts to protect their vested business interests. Reliance Industries, for instance, last week filed a petition against a Maharashtra district's (Raigad's) collectors decision to hold a villagers' referendum on the SEZ that Reliance wants to build there. Then, Tata Motors, is asking the Calcutta High Court that details of the pact between the company and the West Bengal government for the Singur car plant not be made public. The judiciary of India protects the property rights of the rich and the industry but denies the same to the poor or not-for-profit NGOs.
Here is something I wrote on the same matter and emailed it to 3-4 newspapers for their 'Letters to Editor' section:
In the last 10 years the Supreme Court (SC) of our country has repeatedly handed out shocking treatment to the powerless rural citizens of India as well as to our country's voiceless ecology. In the name of large or small development projects the SC judges have denied the rural people their right to property and cared two hoots about preserving the fragile ecological balance of our country's rivers, mountains, seas, rivers and forests.
The latest case of two Supreme Court judges dismissing a petition that strove to stop the illegal grab of farmers' land by Andhra Pradesh state government for an infrastructure project is yet another nail in Indian democracy's coffin. To justify such verdicts, the central government of India, state governments, the Supreme Court and the various High Courts, have often resorted to the myth of employment generation.
All these bureaucrats, politicians and judges are either lying or they are ignorant of the vast potential that rural lands have for the people residing there in generating agri-based employment. In fact, about 50 per cent of this potential is already being tapped by local people in the remote lands of India. If the politico, bureaucracy and judiciary can not assist in tapping the remaining 50 per cent potential the least they should do is to keep off from killing the existing 50 per cent tapped potential.
The latest SC judgement resorts to 'public good' argument. According to me, 'public good' is a myth. There is no objective assessment of the benefits and harms/pitfalls in any SEZ or other project. The state and bureaucracy is completely beholden to the industry lobby and oblivious to the repeated concerns expressed by ecologists and civil NGOs. The so-called 'development' benefits are, in my view, far lower than the benefits that would accrue if we were to even just leave the rural people alone and allow them to use their land and resources as per what they think is appropriate. Forcing city-centric development mindset on rural India is criminal.
The time has come for Indian civil groups and affected people to lodge a complaint against the Supreme Court of India in some relevant international courts. The Indian judiciary has lost its credibility.