With all due respect, My Lords

"It is not for the Supreme Court to decide how the government should ensure the right to water; in any case, the connection between this right and the river linking project is tenuous."

The Hindu : Opinion / Lead : With all due respect, My Lords: Supreme Court, in its order, explicitly directs the Executive Government to implement the Inter-Linking of Rivers (ILR) Project, and to set up a Special Committee to carry out that implementation; it lays down that the committee's decisions shall take precedence over all administrative bodies created under the orders of this court or otherwise; it (graciously) authorises the Cabinet to take all final and appropriate decisions, and lays down a time-limit of 30 days for such decision-making (though it has the saving grace to say “preferably”); and it grants “liberty to the learned Amicus Curiae to file contempt petition in this court, in the event of default or non-compliance of the directions contained in this order”.

The Supreme Court was clearly entitled to ask the government to state categorically where it stood on this project. What it was not entitled to do was to issue a direction to the government to implement the project. It has done so since the Supreme Court is convinced that the project is good and urgently needed; and that a very important national initiative is getting bogged down because of various reasons and needs to be galvanised.

The view that the country faces a looming water crisis; that the answer lies in augmenting supplies; that given the magnitude and distribution of India's future water requirements, the ILR project is the best possible answer; and that it is in the national interest to implement it quickly. It is that conviction that provides, in the Supreme Court's view, the justification for its intervention. If that view of India's water crisis and its solution is challenged, the whole basis for the Supreme Court's order collapses. There is a diversity of views on it, which the Supreme Court has failed to consider.

A case for judicial lockjaw

"Judgments should speak for themselves; when judges justify them in public, they run the risk of sounding like politicians."

The Hindu : Opinion / Lead : A case for judicial lockjaw: Justice Asok Kumar Ganguly, a judge of the Supreme Court, who retired recently, has, since leaving office, actively engaged with the media. As well as raising questions of individual propriety, it contains possible portents of the slowly changing nature of the Indian higher judiciary. His statements, especially to the extent they clarify and defend his judgment, raise deep questions regarding the proper role of judges in post-retirement public life.

The judge, after rendering judgment, becomes 'functus officio' and the judgment speaks for itself, is a long established principle in the Indian judicial system. Any engagement with the media by a judge in a judicial capacity, whether while holding office or post-retirement, fundamentally erodes the extent of the institutional detachment, which allows judges to be immune from the passions of popular sentiment and political machinations, thereby facilitating the independence of the judiciary as an institution.

Justice Ganguly's comments, unwarranted as they may have been, perhaps provide an early sign of the subtle transformation of the Supreme Court into an overtly political institution, owning up and reacting to the immense political ramifications of its actions. Equally, they raise deep questions regarding the interaction between judges and the media, arguably two of the most powerful pillars in Indian democracy today.

Supreme Court should issue official media summaries of important decisions. Not only will this facilitate wide comprehensibility of key judgments, but it will also ensure that judicial decisions are not wantonly misinterpreted. Most importantly, it will mean that judges, whether in office or speaking in their judicial capacity immediately post-retirement, will have an additional reason to remain lockjawed, allowing their judgment together with its officially authorised summary to do the talking.

Capital gains, everyone else loses

"In the Vodafone case, the Supreme Court has again made a wrong call on tax avoidance, setting a precedent that jeopardises thousands of crores of potential revenue for the exchequer."

The Hindu : Opinion / Lead : Capital gains, everyone else loses: Tax avoidance through artificial devices — holding companies, subsidiaries, treaty shopping and selling valuable properties indirectly by entering into a maze of framework agreements — has become a very lucrative industry today. A large part of the income of the ‘Big 5' accountancy and consultancy firms derives from tax avoidance schemes which flourish in the name of tax planning.

Many foreign institutional investors (FII) avoided paying taxes citing the Double Taxation Treaty with Mauritius. This treaty says a company will be taxed only in the country where it is domiciled. All these FIIs, though based in other countries and operating exclusively in India, claimed Mauritian domicile by virtue of being registered there under the Mauritius Offshore Business Activities Act (MOBA). Since there was no capital gains tax in Mauritius, most FIIs and most of the foreign investment in India, by 2000, came to be routed through Mauritius.

High Court rejected Vodafone's contention that the transaction with Hutchinson was not liable to tax. But in appeal, a Supreme Court bench headed by Chief Justice accepted Vodafone's claim. With such welcoming winks towards tax avoidance devices, it is unlikely that any foreign company would be called upon to pay tax or at least capital gains tax in future in India. Thousands of crores of tax revenue, and the future attitude of the courts towards innovative tax avoidance devices, will be shaped by these two judgments.

Our courts must send a clear signal that India is not a banana republic where foreign companies can be invited to loot our resources and even avoid paying taxes on their windfall gains from the sale of those resources.

The best way out

"While the Supreme Court may have forced General V.K. Singh to withdraw his petition, it is important to highlight there was no slur on his integrity, which the Bench said it had complete faith in. Nothing can take away from General Singh's ability and accomplishments. He is widely recognised as a brilliant strategist and as a reform-oriented officer who tried hard to restore the image of an Army whose image had been blighted by corruption scandals such as Adarsh and Sukna."

The Hindu : Opinion / Editorial : The best way out: In a way, the Supreme Court has pulled off a diplomatic coup. By ensuring that the petition is withdrawn, it has avoided the ugly situation. The Court must have been aware of the implications of making an exception for General Singh on the age issue viz. promotions of other senior Army officials, and the morale of the entire 13 lakh strong army.

All in all, the Court found the best way out of a tricky impasse.

Not The Done Thing

Gen V K Singh has put self before institution, and the government is not blameless either

Not The Done Thing

Retired Major General and founder member of Defence Planning Staff, Gen Ashok K Mehta, says

"Gen Singh may have set an unhealthy precedent for the rank and file: to challenge decisions of superiors to which he had previously acquiesced, which goes against the ethos and ethics of the army"

-The Times of India, February 13, 2012

Welcome show of judicial muscle

"The 2G judgment goes beyond telecom, spoiling the party for corrupt politicians, bureaucrats and big business."

The Hindu : Opinion / Op-Ed : Welcome show of judicial muscle: The reverberations of the judgment actually extend far beyond telecom, crushing the subjective power of the government to issue licences and contracts in any sector like power, coal, minerals, mines, land, and even special economic zones (SEZ), that allocates scarce national resources.

This effectively attacks the fountainhead of all large corruption linked to government contracts.

Mess In Telecom

Following Supreme Court verdict, government needs to bat for the consumer

Mess In Telecom

-The Times of India, February 3, 2012

By cancelling all of the 122 2G spectrum licenses, the Supreme Court has sent a "tough message." That it pursues zero tolerance towards irregular grant of spectrum licenses is clear and welcome.

However, by directing TRAI to propose new allocation process, is the judicial branch stepping into the executive domain?

The government now faces the need to bat for the consumer, who may undergo some trouble through a change in telecom policy. The apprehension in the telecom policy may well lead telecom giants to incorporate changes that may not suit the customer, in which case, the government has to frame "pricing policy in ways that facilitate rather than inhibit expansion of mobile connectivity in the country."

Welcome Ruling

Citizens can seek sanction to prosecute public servants

Welcome Ruling

-The Times of India, February 2, 2012

The supreme court recently upheld a "citizen's right to file a complaint leading to the prosecution of public servants for corruption, including ministers, MPs and MLAs."

This is most certainly a welcome change.

Ninety days too many

"The three-month deadline set by the Supreme Court for grant of sanction to prosecute corrupt officials is a step forward, but why not do away with prior sanction altogether?"

The apex court directive that the sanction for prosecuting a public servant under the Prevention of Corruption Act 1988 should come within three months of a request from an investigation agency is a shot in the arm for all those standing for probity in public life. Also welcome is the ruling that every citizen has a fundamental right to file a complaint under the PC Act. The Hindu : Opinion / Op-Ed : Ninety days too many.

Many governments in the past had been holding on to a request without passing any orders or by raising a few inane questions to the CBI to delay the whole process and to help a favourite civil servant in the docks, who was not only personally dishonest but was a man ‘who knew too much'!

This direction by Supreme court makes severe inroads into the Executive's discretion and capacity to protect corrupt elements in government. However, a question allied to the apex court decision is whether the Executive enjoys absolute authority to refuse or accord sanction. This is a serious lacuna in the drive against corruption. A dishonest public servant can and will be protected by a government that used him in dishonest adventures.


Public opinion should prevail upon the Lok Sabha that the requirement for government sanction should be dispensed with. Only this would take the fight against corruption one step further in the right direction..!

R. K. Raghavan,the author, is a former CBI Director.

Prosecution, power, principle

"Section 19 of the Prevention of Corruption Act prevents courts from taking cognizance of offences allegedly committed by a public servant without prior sanction of the government. Such provisions were conceived to ensure that public servants are not harassed and their work not stymied by vexatious and frivolous complaints."

In practice, these protective measures have functioned as a shield against prosecution, encouraging dishonest to flout the law with impunity. The Hindu : Opinion / Editorial : Prosecution, power, principle: Should prior sanction be required to prosecute public servants at all? Surely, the decision about whether a particular prosecution is vexatious or not is better left to the judiciary.

The idea that the law must differ for public servants and private citizens is an anachronism, one that has no basis in principle and has no defence in practice.

Taxing Question

Transparent laws will boost investments


Taxing Question

-The Times of India, January 23, 2012

"The Supreme Court ruling in favour of Vodafone in its tax dispute with the government - the whopping amount of Rs 11, 800 crore is at stake - should bring cheer to foreign investors as it sends a reassuring signal about the prevalence of the rule of law in India."

The recent landmark case will instill hope and courage in making investments in India. Transparent laws are needed, and so are predictable rules and regulations, which together make investors aware of "what they are in for when they choose to operate in India."

For the people

New Master Plan for Delhi must reflect India's republican spirit


Article - For the people

-The Times of India, December 26, 2011