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Master of the next steps

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In an unprecedented move, seven Opposition parties finally initiated the process to impeach the Chief Justice of India (CJI), Dipak Misra. Vice-President, and Rajya Sabha Chairman, Venkaiah Naidu has rejected the motion. Whether the Vice-President can himself examine the merits of the impeachment motion in itself is debatable as this is the job reserved for the inquiry committee under the Judges (Inquiry) Act, 1968.. The matter may soon be in the Supreme Court. And if it is, the CJI should not constitute a Bench to hear this petition if the credibility of our judiciary is to be preserved.
One charge against Justice Mishra pertained to the arbitrary use of his powers as ‘master of the roster’. On April 11, a three-judge Bench headed by the CJI had given a judgment upholding absolute power of CJI in the constitution of benches. A similar order was passed by a five-judge Bench again headed by the CJI in November 2017, when for the first time in the Supreme Court’s history, administrative powers were used within 24 hours to overrule a judicial order of a Bench, in this case headed by Justice J. Chelameswar. Another two-judge Bench of Justices A.K. Sikri and Ashok Bhushan is scheduled to hear Shanti Bhushan’s petition later this week. Thus, Bench constitution is at the core of current crises and something must be done about it without attributing motives to the CJI.
“As a repository of constitutional trust, the Chief Justice is an institution in himself,” said Justice D.Y. Chandrachud, who authored the 16-page April 11 order. Thus we are told not to question the CJI’s decisions. But then by the same logic, is Rashtrapati Bhavan not an institution? Is the Prime Minister’s Office not an important institution of our democracy? Is Parliament not the most important institution? If the answer to these questions is in the positive, then how come decisions by these high constitutional functionaries are routinely struck down by the judges of High Courts and Supreme Court?
In fact if men were angels, there would be no need to limit the powers of public officials through constitutional means. Judges too are humans like us and thus are fallible. Judges are our last resort against governmental authoritarianism and that’s why they must be insulated from the governmental control. But similar protection at times may be needed against at least the ‘administrative actions’ of Chief Justices. Thus if civil liberties are seen to be under threat due to potential abuse of powers by Chief Justices, a review of earlier judgments like Prakash Chand (1998) that held the Chief Justice as an ‘absolute’ master of the roster should be urgently taken up.
Constitutionally speaking, the judiciary is not ‘state’ under Article 12. But in Naresh S. Mirajkar (1967), the apex court itself made a distinction between ‘judicial’ and ‘administrative’ powers of the court. Thus when the CJI acts in his ‘administrative’ capacity, his actions are certainly subject to fundamental rights, including the right to equality.
Right to equality includes right against arbitrariness. In E.P. Royappa (1973), the Supreme Court itself expanded the protection of equality when it observed that “From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch.” In Tulsiram Patel (1985), the Supreme Court itself held that non-observance of the principles of natural justice too violates right to equality. Thus the CJI’s participation in cases about his own powers has not gone well with those who believe in the fundamental rule of natural justice that ‘no one shall be a judge in his own case’. His recusal could have enhanced his own credibility and saved the judiciary from the crises.
The Supreme Court Rules, 2013, framed under Article 145 of the Constitution, do state that CJI is master of rolls. But since constitution of Benches is an ‘administrative’ function, this function cannot be exercised at the CJI’s whims and wishes. Thus the cherry-picking in Bench constitution may not be violative of ‘the rule by law’ but is definitely contrary to the ideals of ‘the rule of law’. Spirit of law at times is more important than letter of law.
An interpretation accepting no limitations on the exercise of the powers of the CJI and justifying even power to act in an arbitrary manner means a re-writing of the entire jurisprudence developed by the Supreme Court on the exercise of ‘administrative discretion’. Isolated cases of even improper use of power should never be criticised, and the Vice President rejected the motion because of this. But if there is pattern in which Benches are being constituted, it is to be more closely examined.
In Prem Chand Garg (1962), the apex court held that rules made by the court violative of fundamental rights may be struck down as ultra vires of the Constitution. Thus if the rule of the CJI being master of rolls is used in an arbitrary manner, such a rule should either be read down or there should be safeguards built into it.
Certainly, all judges are equal and seniority has no bearing on the constitution of Benches. But then equality also means that senior judges be treated equally with junior judges. Their exclusion from all constitutional Benches has certainly sent the wrong signals. Since in the roster prepared by the CJI after the press conference by four senior-most judges, some subjects have been assigned to more than one judge, the CJI again decides on his own who gets which matters and thus has not in any way improved the situation in reducing his discretion. Moreover, all important matters have been reserved for the CJI.
The CJI yet again has this opportunity today which he should proactively use to bring in real reforms by amending the Supreme Court Rules on constitution of Benches. Any CJI would have a fairly good idea about the ideological positions of all the brother judges and therefore even if there is no malice on his part, he can always constitute a Bench with judges who are likely to go this way or that. This power therefore has a huge impact on the justice delivery system. In the wake of the current crises, some mechanism can be evolved to ensure that one individual does not have absolute power to make or unmake Benches. We may disagree with a number of judicial and administrative decisions of the CJI. But none of his actions can really amount to ‘incapacity or proved misbehaviour’, i.e. grounds of impeachment, and thus the rejection of the notice by the Vice-President.
Let the CJI himself come forward in leading the process of developing the mechanism that will exclude the remotest possibility of arbitrariness by future CJIs.
(The Hindu)


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Opinion

Some baffling decisions of the SC

The Kashmir Monitor

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By Manini Chatterjee

Of the three pillars of the state, the judiciary has always evoked much greater respect from ordinary citizens than either the legislature or the executive. Since the legislature comprises elected representatives of the people, we — the people who elect them — feel justly entitled to criticize them at will. The executive, similarly, is more often pilloried than praised when it fails to deliver on its many promises.

The judiciary, on the other hand, has usually been treated as a hallowed institution. Judges, unlike politicians, are seen not only as wise but also possessed of thinner skins. The fear of being hauled up for contempt of court (what construes contempt remains a mystery to most of us) acts as a deterrent to commenting on the judiciary.

 

But that silence was broken last year. And not by an irreverent media or crusading activists or outspoken lawmakers. It was members of the highest judiciary who dealt the blow, coming out with home truths whose reverberations have yet to subside.

On January 12, 2018, the then four senior-most judges of the Supreme Court — J. Chelameswar, RanjanGogoi, Madan B. Lokur and Kurian Joseph — held an unprecedented press conference in the capital. In the course of the press conference, they revealed the letters they had written to the then Chief Justice of India, Dipak Misra, questioning his style of administration and the manner in which he allocated cases to difference benches of the court. Expressing dismay at the CJI’s refusal to address their grievances, they said, “Unless the institution of Supreme Court is preserved, democracy won’t survive in the country.”

That press conference, which alluded to government interference in the workings of the court, was not a one-off affair. Soon after, in separate letters to the CJI, J. Chelameswar and Kurian Joseph expressed concerns about the judiciary’s independence in face of the executive’s encroachment.

But what made waves in circles well beyond the judiciary was RanjanGogoi’s speech on July 12 to a packed auditorium in Delhi.Delivering the RamnathGoenka memorial lecture, Gogoi spoke at length on the “Vision of Justice” and the role of the judiciary in upholding constitutional ideals.

In the course of the lecture, he quoted an article from the Economist which said, “…independent judges and noisy journalists are democracy’s first line of defence.” Gogoi went on to say, “I agree but will only suggest a slight modification in today’s context — not only independent judges and noisy journalists, but even independent journalists and sometimes noisy judges.” Those words made headlines then and have been quoted frequently since.

Pointing out that the judiciary had been endowed with great societal trust, he said, “This very fact gives it its credibility and this very credibility gives it its legitimacy… I will only say that if it wishes to preserve its moral and institutional leverage, it must remain uncontaminated. And, independent. And, fierce. And, at all times. A chain is only as strong as its weakest link. So is an institution.”

Gogoi’s speech was remarkable because he was in line to be the next Chief Justice. In fact, many feared that he had risked his career with that speech and the government might not elevate him to the post of the CJI after Dipak Misra retired.

Those fears were belied. Gogoi became the Chief Justice of India in early October. But, truth be told, hopes that a feisty judiciary would force more transparency on opaque and questionable executive decisions have also remained unfulfilled.

Some of the Supreme Court’s decisions, such as in the case relating to the removal of the Central Bureau of Investigation chief, has left even retired judges puzzled.

On October 23, the government conducted a midnight raid on the headquarters of the CBI and seized a whole lot of material related to pending investigations. It then summarily removed the CBI chief, AlokVerma, from his post. Since Verma had been appointed by a three-member selection committee (comprising the prime minister, the leader of the largest Opposition party and the CJI), he contended that only that committee could remove him — and not the central vigilance commissioner. Verma moved the Supreme Court with alacrity against his arbitrary removal.

The apex court chose not to adjudicate on the removal. Instead, it appointed a retired Supreme Court judge, A.K. Patnaik, to supervise a CVC probe into the allegations of corruption levelled against Verma by his bête noire, the then CBI special director, Rakesh Asthana. It directed the probe be completed within two weeks. The three-judge bench of Gogoi, Sanjay KishanKaul, and K.M. Joseph passed no strictures against the manner in which the raids were conducted by the government nor asked why and what materials had been seized.

Although the probe was completed in two weeks and the report presented to the court, it was not till January 8 that the judges delivered their verdict. On the face of it, the verdict was a victory for Verma. It said that only the three-member selection committee could transfer or divest Verma of his powers, and not the CVC or the Centre.

Again, puzzlingly, it passed no strictures against the government for removing him in the manner it did. Instead, it asked the selection committee to go through the contents of the CVC probe report and decide in a week whether Verma should be exonerated or indicted.

The government convened a meeting the very next day and less than 48 hours after he was reinstated as CBI chief, Verma was once again given marching orders. The CJI had recused himself from the panel, and appointed the judge, A.K. Sikri in his stead. Sikri and the prime minister, Narendra Modi, voted to remove Verma while MallikarjunKharge dissented.

What followed has been extremely unflattering for the apex court. A.K. Patnaik, the judge who had supervised the CVC probe, told The Indian Express that “[t]here was no evidence against Verma regarding corruption”, that the decision to remove him was “very very hasty”, and that the committee “should have applied their mind thoroughly, especially as a Supreme Court judge was there.”

Speaking to The Telegraph, two highly respected former Chief Justices of India also expressed misgivings on the way the committee took the decision without giving Verma a chance to present his side of the case. Former CJI, T.S. Thakur, underlined that if a decision was being taken on the basis of an adverse report against an individual, that individual must be given an opportunity to present his point of view. “If that process has not been followed… then any decision based on such adverse findings will be contrary to the principles of natural justice.”

Another former CJI, R.M. Lodha, said much the same thing: “He (Verma) needs to be heard. Ordinarily, he should be heard. Principles of natural justice deserved to be followed.”

In other words, the Supreme Court’s failure to explicitly state that Verma should be given a hearing violated the principles of natural justice.

Similarly, a CJI-headed bench’s verdict on the Rafale deal has also raised eyebrows. While the government, understandably, has hailed the verdict as a “clean chit”, the detailed review petition filed by ArunShourie, Yashwant Sinha and Prashant Bhushan points out how the “the government has blatantly misled the Hon’ble Court and the Hon’ble Court has grossly erred in placing reliance on false averments in the note not even supported by an affidavit.” In layman’s language, it questions the touching faith the apex court placed in the assertions of the government in spite of evidence to the contrary.

The Supreme Court collegium’s decision to appoint two judges to the apex court after retracting an earlier selection of two other judges is the latest controversy to hit the judiciary.

The CJI, reportedly, is “very upset” over the “media leaks” on the collegium’s functioning. Last week, he also advised the advocate, Prashant Bhushan — who wanted the government to disclose the names shortlisted by the search committee for the post of Lokpal — not to “look at things from a negative point of view” and to “be positive” instead.

That is fine advice from a spiritual guru. But advocating such a course in today’s India can also be construed as unquestioning faith in a majoritarian government’s intents and actions. The apex court has baffled us on many counts in the last few months. But that someone who spoke in praise of noisy judges and independent journalists should now worry about adverse media reports and negative attitudes to the government is, perhaps, the most bewildering of them all…

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Opinion

Growing menace of corruption

The Kashmir Monitor

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By Tawfeeq Irshad Mir

“One who listens to truth is not less than one who utters the truth”

With glued memories of my infantile period, hardly I could retrieve the surroundings and the events happening around, Brought up in a very small village “Goripora” in Sopore town of Kashmir, a village with meticulous presence, conscious, a mixture of intellect and a think tank of its own, whenever I revert my memory lane through times, I find myself in the nap of my grandfather, an image of an old man enveloped in “chadar” yet young by mind, he was the then head of village, people of all ages enjoyed his presence, igniting the debate pertaining to different issues, being the head of the village, so mostly revenue matters were discussed and the consistent content of all debates used to be “corruption” the word that recurrently vibrated my neurons and propelled me as to what is this corruption all about, initial understanding was like this, “to get your work down, have a chicken to please” and sometimes “the person inflated the pocket to get the work down” in common Kashmiri language, you might have encountered the word most frequently “channel, like the person has channel,designated to corruption. As being in rural area, the incentives for corruption used to be” chicken “an apple box” sometimes red beans “probably due to lack of money as people used to exchange their daily needs rather than money. As I grew up, exposed myself to the environment, what I found was interesting, now an updated version of corruption :every now, people discussing the scourge of corruption, as like a curse, preferably in revenue department, to have an income certificate, an amount of 2 to 3 hundred rupees was a prerequisite, with the time I found people paying huge amounts to get their land acquisitions settled, even to get a driving licence, driving skill hardly mattered, as the time passed by, now the word “corruption” was a constant encrypted into the minds of people, a peculiar picture of engulfing in corruption was most obvious from electricity department, then it was not digitalized, the new house holder enjoyed the bless even without registration by simply paying a meagre amount to officials in the department. “Not a single institution is prone to corruption” but it’s deleterious effects on education and recruitment system “has perturb and monstrous consequences. As I observed during the years, it was evident during the board exams, every one among us might have witnessed the special privilege being offered to some students in the examination Hall, a corruption of intimate level, eventually with the enlightenment of newspapers, social media, the youth Began to lay their repercussions on corruption pertaining to selection process whether it be for further education or selection of job process, like the ‘x’ person got selected because the said person had paid a huge amount for it, it swept the general consensus of youth, dredging them to denial resorting to premature statements that “now this education is futile as you won’t get any things unless you don’t have enough money, there is no place for poor fellows, we can’t continue with this” and the consequence was such that many talented ones dredged in drug dependency, heralding their further education.

 

Here I am talking about corruption on the local level, attached to the ground where I am the self-observant of this scourge, many a times I have been a part of discussions locally regarding this remorse, but in an alienated elite.

Social networking sites are filled with tons of data regarding corruption, gallons of ink have been spent on news papers to reflect this horror, while everyone apparently and seemingly attacking the subsequent political discourse and the concerned administrative systems,

“I have a virtual opinion, I believe, “every human being has encoded traits, and has a natural tendency to express these traits, both positive and negative as like in all other animals, but the best thing about humans is to differentiate between right and wrong and the ability to direct their energies toward humanity, that’s why called humans, but one’s the person is exacerbated by materialistic influence, the person tends to express the negative trait to fulfil the Ill designed desires, and simply the person who endorses or resorts to such mischievous act of corruption, the person is engulfed my this wild trait “
Now what astonishes me the most,” while everyone seemingly denigrates this scourge, then who supports it, I mean everyone is raising in objection to it, then who constitutes to the corruption.

I would like to prove my content with objective analysis, suppose I am the person, and I am asked to give some amount to secure a place in any govt. department, despite irrelevant educational qualifications and out of any fearful selection procedure, now it’s all about me, would I agree or not, so surely the moment I am in such a position, I will surely opt for it, likewise I believe every single person on the planet not only in the valley, will opt the same, I jus made an analogy and it almost pertains to every aspect. So literally, I mean to say that corruption is from within, not a system is corrupted, in fact the people with this thinking make the system corrupt and that’s how it seems that the whole system is overwhelmed with corruption, it is engrained in the minds of people, “the humans have rbcs, wbcs, and platelets in blood, but I suspect we have one more” corruption cell “in our blood and we have genes encoded with it dominantly.

” We have to deter this menace from within, the moment we object to this greed, it needs to be abolished from within, sanitising the systems won’t yield any results, because it’s already ingrained in the minds of people, so we have to interpret and analyse and suppress this wild trait only then we will get rid of this wild menace infesting our spirituality, ethos”

(The writer is pursuing graduation in Nursing at G M C, Srinagar and can be reached at: [email protected])

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Opinion

Why the JNU story won’t die

The Kashmir Monitor

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By Rakesh Batabyal

Not too long ago in the history of the Republic — 1974 to be precise — a large body of students entered the lobby, and later the room of Vice-Chancellor G Parthasarathy, the founding head of Jawaharlal Nehru University, a man charged with the setting up of a world-class university, and announced that they were gheraoing him. They wanted the barriers of gender separating the girls’ and boys’ hostels to be done away with, as it smacked of a feudal society based on patriarchy. They were expressing the most progressive ideas agitating the young mind — the gendered barricades encompassing society. Parthasarathy, who had interacted with the most powerful people in the world, found this group of students, many of whom did not even speak English (the language of the diplomatic elite that he was familiar with), more powerful than all who had come before — they were students, yet their demands were not for their own interests, nor even for something euphemistically called national interest. They were protesting for something which in their minds they thought would make society better all-in-all. He did not ask for the police, did not chide them, neither was he demurred — he talked to them about social, bureaucratic and other miscellaneous issues that would not permit such a great idea to be immediately pursued in a traditional society; it would in fact be harmed through the vicious constrictions of traditional society. Its time would come, though, one fine day, and then the society would remember the pioneers — those JNU students. Such was the spirit embodied in the foundation of the university that is JNU. There are many other instances that reinforced these values and established the spirit of dissent and dialogue that became the signature of this great institution.

In the mid-1980s, a Dean of Students introduced a register for women students/ guests entering the men’s hostel, where the purpose of visit was to be recorded. Many uncharitable remarks made the administration understand its own lack of practical wisdom, and this rule was never strictly enforced.

 

Then, in the late 1980s, an ever-watchful body of students discovered that a senior official was drawing salary from two sources. In the pre-RTI age, they made efforts to get at the source. The Vice-Chancellor, a stickler for rules, had to disown the officer; at no point was a student either issued a show-cause notice or shown the door.

In the early 1990s, students wanted to strike against the administration and they were sitting on a hunger strike when the Vice-Chancellor himself joined them in the strike, saying this was his cause too. Professor Yoginder K Alagh, the Vice-Chancellor, was no mean scholar and knew that the students were not demanding something out of the world.

Thus, through such acts, the young were indicating the new and emerging mores, which led to the university not being ossified. Teachers had their individual political and intellectual predilections and students too had their own, but one saw the campus, like the nation, carry on with the variety and colour of these differences.
There were shouts and slogans to drown the other, but they were more a demonstration of intellectual prowess than threats to physically eliminate the other. When the State imposed Emergency in 1975, JNU students became part of street agitations. Their refusal to allow then prime minister Indira Gandhi into the campus is the stuff of legends.

The story of an institution is a story of shared memories and shared ideals. JNU, as it has grown in the last 50 years, is one such great story. Within this story lay millions of small lives and their careers as they have woven the narrative of this country in the last half century.

A university reflects the character of a nation: its moral self, its confidence and its resolve to face the world. When we sat at the table in our hostel mess, when we all talked about our larger vision and smaller plans — about fighting the capital and its sway, our resolve to finish off shades of Apartheid or the discriminating caste hierarchies — we were speaking of the society and for a future society. The shared memories of those talks, of the politics that gave us the language to express those visions and plans, are small stories in the big world.

As the University celebrates its 50th anniversary, it is these shared memories of the collective self that will keep the beauty of the institution intact. All that is beautiful needs to be cherished and the memories are those beautiful things that direct us towards a great future. It is unfortunate that those who do not cherish the memory and what JNU stands for, are at the helm of affairs today. But memories fortunately cannot be killed, only repressed in some circles.

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