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State must not only maintain, but also demonstrate transparency

A government, any government, needs to be more transparent in its actions, lest the obscurity shrouding its decisions turns itself into a matter of judicial challenge weighing down further the already overloaded scales of justice.

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A government, any government, needs to be more transparent in its actions, lest the obscurity shrouding its decisions turns itself into a matter of judicial challenge weighing down further the already overloaded scales of justice. Transparency here must not only be maintained, but also demonstrated by the state.

The fact that the judiciary cannot exclusively to be brought under attack for indulging in a losing battle against the ever-mounting pendency of matters fought on the judicial turf is an actuality that is no more in the domain of debate.

The government continues to be the biggest litigant in the country. Rough and ready estimates suggest that the government departments are a party to approximately 46 per cent of the court cases across the country.

The extent of the problem, springing from conflict between the populace and the governments, can also be gauged from the astounding number of writ petitions filed before the High Courts against the states and its functionaries under Article 226 of the Constitution.

The provision permits a national to move the court in his state for the redressal of his grievances against an authority, including the state, its corporations, local bodies and other instrumentalities, for violation or exercise of his rights.

National Judicial Data Grid data suggests no less than 4,456 writ petitions were filed in last one month in the Punjab and Haryana High Court alone. Otherwise, a total of 1,02,478 writ petitions are currently pending in the High Court, with 1,013 pending between 20 and 30 years.

An analysis of the petitions pending before the High Court is enough to bring to fore the fact that the writ petitions filed against the state and its instrumentalities primarily deal with government action, or inaction, in education, service, revenue and land acquisition matters.

A substantial number of avoidable litigation stems from the actuality that government actions are at times opaque enough for the people to see things that may not even have been hidden, or are at times not even in existence. The passing of non-speaking orders or no orders at all and failure to pass on the benefits available to other successful litigants, too, figure in the list.

The governments must remember their actions have to be crystal clear and in public domain, as obscurity and secrecy have no place in a democratic set-up. The sunlight is the best disinfectant and familiarity of the public with the facts of a matter will seldom breed contempt. A thing in open is a matter of satisfaction. Obscurity will almost always generate suspicion even if it turns out to be ill-founded and baseless after being subjected to judicial scrutiny. The fact that unwarranted confidentiality in government action may end up consuming court time and exhausting resources once exposed to legal challenge has never been in the territory of deliberation and conjectures.

The issue of openness in government action manifested itself only recently in the Punjab government’s move to appoint a Lokpal. The action, on the face of it, is cloaked in fairness. Meticulous adherence to the principles laid down for appointment, too, is apparent. But the appointment of a retired Judge whose name was not known to be in the zone of consideration to a majority of the people in the state turned out to be a matter of surprise for them.

Any reference to the appointment here stands the risk of being construed as digression from the subject of judicial scrutiny vis-à-vis government action. But the issue here is of display of fairness that was, apparently, not compromised with at the time of appointment.

Fairness should not only be done, but also seen to be done to instil a sense of confidence among the people. The Supreme Court in the case of “State of Punjab versus Salil Sabhlok and others” quoted the observation made by Justice Dalbir Bhandari in the case of “Inderpreet Singh Kahlon and others versus State of Punjab and others”.

Among other things, it was stated: “….before appointing the constitutional authorities, there should be a thorough and meticulous inquiry and scrutiny regarding their antecedents. Integrity and merit have to be properly considered and evaluated in the appointments to such high positions.

“It is an urgent need of the hour that in such appointments absolute transparency is required to be maintained and demonstrated. The impact of the deeds and misdeeds of the constitutional authorities (who are highly placed), affect a large number of people for a long time. Therefore, it is absolutely imperative that only people of high integrity, merit, rectitude and honesty are appointed to these constitutional positions.”

The courts have always insisted that integrity and honesty of persons to be appointed to high Constitutional position are of paramount importance. The governments, as such, like Caesar’s wife must always be above suspicion, particularly in the matters of appointment. The state and its authorities need to broad base the appointment process and bring about greater transparency and objectivity.

Even the Supreme Court collegium uploads its recommendations and decisions on appointments and transfers of High Court judges on its official websites. The information posted online also indicates reasons for its proposals or rejection of names for judicial appointments, transfers and elevation to High Courts and the Supreme Court.


BENCH MARK
by Saurabh Malik

Law, and the order

Fundamental right to get clean, fresh air

Clean and fresh air is as much a fundamental right as any other. The Punjab and Haryana High Court has ruled that every citizen has a fundamental right to get clean and fresh air under Article 21 of the Constitution of India. The Bench headed by Acting Chief Justice Rajiv Sharma has asserted that the municipal bodies and panchayats are required to dispose all waste and garbage in a scientific method to avoid contamination of rivers and seepage of harmful chemicals that pollute underground water. Justice Sharma has ruled that street cleaning, too, is a fundamental service for ensuring clean and hygienic urban conditions. The workers undertaking cleaning of municipal waste, too, are required to be provided with uniforms, shoes, gloves and other implements for safe and easy working. “The zenith of civilisation can only be gauged by how clean the cities and towns are. Every citizen has a fundamental as well as human right to clean and hygienic environment. Every citizen, at the same time, has a fundamental duty to maintain the cleanliness in and around his abode,” Justice Sharma has added.

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