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Government apathy is destroying institutions, devouring our republic

Author: Jay Bhattacharjee
Publication: Niticentral.com
Date: April 3, 2013
URL: http://www.niticentral.com/2013/04/03/government-apathy-is-destroying-institutions-devouring-our-republic-61299.html

The last few weeks have seen some extremely unsavoury developments that have grave repercussions for the future of India.

To start with, there were sudden revelations from Italy about corruption and graft in a defence deal with India signed two years ago. Before the desi pundits and analysts could ask why a country and a political establishment as venal as ours would choose to wash its dirty linen in public, the nation was shaken by a couple of sucker punches from Rome in the case of the two Italian marines facing murder charges in India.

In the intervening period, the Government of India (GOI) ordered a CBI investigation into the tainted defence contract (involving the purchase of helicopters for VVIP movements), primarily based on information made available by the Italian authorities. The CBI, with commendable alacrity, not usually exhibited in most of its other assignments, proceeded to file a Preliminary Enquiry (PE) against some persons, including a former IAF chief, Air Chief Marshal S P Tyagi (SPT). The PE was soon converted into a regular FIR. It should be noted that the FIR has also named some cousins of SPT and other persons. Not a single bureaucrat in the Ministry of Defence (MOD) or other branches of the GOI has been charged. Neither has any politician been investigated or charged.

While this saga was being enacted, another prairie fire started raging. The two Italian Marines, accused of murdering two Indian fishermen last year, had been accorded permission by the Supreme Court to leave India for a few weeks in order to vote in the Italian general elections. The Italian Ambassador had given his personal undertaking to the apex court that he would ensure the return of these persons to India by the March 22. Suddenly, the Italian Government informed the GOI last week that the two marines would not return to our shores to stand trial.

This led to enormous breast-beating by senior Indian mandarins, including the PM and Mrs. Gandhi. The Supreme Court, which had granted furlough to the Italian accused, also huffed and puffed, started contempt proceedings against Rome’s envoy and ‘debarred’ him from leaving India until the case was decided. This looked like a classical Mexican stand-off, until the Italians sprang another surprise by deciding to send the two culprits back to India. As the devil in the fine print revealed, they had extracted a promise from the GOI that the accused duo would not be charged with the death penalty. The Union Foreign Minister, who has the same credibility level as a priest caught in a bawdy house, harrumphed that the trigger-happy fellows did not deserve the death sentence and their crime was not in the “rarest of rare” category. The score unambiguously read “Rome 2, Delhi 0”.

In this entire maze, involving almost the whole spectrum of institutions and structures of the Indian Republic, there is a clear strand that is easily perceptible. This is the gut feeling that the principal national institutions at the heart of our governance structure have not come out smelling of roses. These include the Supreme Court, the political executive, the civil bureaucracy and the higher echelons of the armed forces. The first three have had a chequered history in the last few decades and it is hardly surprising that they are again under the scanner. But this writer finds it sad to fire a salvo at our senior warriors. More on that later.

It would be apposite to start with the Supreme Court because this is an institution that can make an enormous difference to our national governance. Indeed, in certain cases, it has done so. However, the overall performance of the Apex Court has been far from exemplary in recent years. The deterioration in its standard has been nothing short of tragic. It is a futile exercise to try and pinpoint when the precipitous decline started ; most commentators would say that the habeas corpus judgment in 1976 during the Emergency would be a safe guess (Additional District Magistrate, Jabalpur v. Shivakant Shukla AIR 1976 SC 1283).

After the Emergency, the Supreme Court (SC) indeed passed some exemplary orders (including the concept of PILs) that contributed to India’s efforts to become the country that our founding parents wanted it to be. For example, the judgement in the spectrum case as recently as last year was a significant decision that enlarged and elucidated the concept of allocation of public goods in an ethical and principled manner. Unfortunately, these welcome developments cannot hide uncomfortable skeletons in the closet. The Apex Court and the High Courts have more often than not conducted themselves in a manner that has done no credit to their reputation. They have not upheld the highest standards of probity and justice that ordinary citizens expect from the higher courts.

Many observers feel that the SC now operates quite arbitrarily. High profile cases are given a fast-track treatment, while ordinary people have to wait for years for their turn. To complicate matters, the SC has been revisiting its earlier decisions much too frequently. This adds to uncertainty and creates a feeling that the law is fickle and short term. The saddest aspect is that the SC has enlarged the cloak of judicial immunity conferred by the Constitution and conferred blanket protection to its judges and those of the High Courts through the egregious Veeraswami judgement of 1991 (K. Veeraswami vs Union Of India And Others 1991 SCR (3) 189). As a result, judges in the Indian higher courts enjoy quasi-total protection, even when they are accused of criminal offences. If we add to this the enormous powers that they enjoy because of the law of contempt, we find a very disturbing scenario.

It is against this backdrop that one should view the SC’s lamentable decision to permit the accused Marines to go to Italy to exercise their voting right. It would be difficult to come up with any cogent justification under law or equity for this egregious order. What on earth was the SC Bench thinking of, when it made this howler? Didn’t the sordid Quattrocchi imbroglio urge them to be cautious when it comes to trusting the Italian State and its authorities? As the SC judges would say grandly about lower-court decisions, this was a classic example of complete non-application of mind.

One should now turn our lens to the political executive and the civil service. What is it about the netas and the babus that they think they can hoodwink Indian citizens about the Italian state’s characteristics and its recent dubious history? We are not talking here about the country of Garibaldi and Mazzini who inspired our freedom struggle. And certainly, we do not refer to the land that was the centre-point of the Renaissance and whose civilization goes back to the golden days of Rome, that produced so many examples of culture and thought which guide us even today.

No, it is the 20th – 21st century nation that we have to contend with, a vicious mélange of conflicting interest groups, thought processes and ideologies that justify every form of venality and egregiousness. This is a land that can, at certain levels, compete with our worst badlands in Haryana, UP, Bihar and Jharkand. Where the notional State apparatus is at the service of private fiefdoms and jagirdaris. The Italy that confronts us is the land of Machiavelli, although the current crop of netas would not even have a nodding acquaintance with their role model.

The contretemps with the Marines shows that India and Indians have been taken for a gigantic ride. The ugly underhand arrangement of our rulers with Italy makes a mockery of our constitution, our laws and the sovereignty of our courts. Let us not delude ourselves — they have taken the Mickey out of us.

Yet, it is the same bunch of characters whose testimony has convinced the CBI to book a former IAF chief.

The key questions that confront us are: Why is that a former air warrior faces criminal charges, based on Italian documents with very colourable origins? When did it become an offence for a service chief to carry out instructions from the PMO? If that be the case, why has the CBI not launched cases against a host of babus and netas, who were parties to decisions formally taken by SPT, and who have now been identified from official information released by the GOI itself? How does a decision that enlarges the list of competitors become a questionable one? Or is SPT an easy target and a fall guy while some other big sharks get away?

To expand the canvas, have we not noticed the timing of the selective Italian ‘disclosures’? Just when the IAF was finalising the Rafale deal, these information snippets from Rome might lead to a knee-jerk decision by the GOI to put it on hold, which would enable the British-German-Italian Eurofighter consortium to make another pitch? And leave the IAF under-equipped for another decade?

To wrap up on a sad note, why is it that these anomalies have not been highlighted by our senior retired armed forces officers? If they have done so privately, that would be a relief. If they have left one of their former comrades alone among the sharks, that would be a negation of all the principles laid down in the code of the soldier.
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