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It is now Judges vs CJI

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Justice V D Tulzapurkar, an eminent retired judge of the Supreme Court, had observed that “sycophantic Chief Justices” were a threat to the independence of the judiciary because they could easily pack the court or withdraw cases from one bench to another. “The Chief Justice is a man with all the failings, all the sentiments and all the prejudices which, we as common people have,” B R Ambedkar had said in the Constituent Assembly, opposing giving the Chief Justice veto power in appointing judges.

In the National Judicial Appointments Commission (NJAC) judgment, four judges of the Supreme Court struck down the Modi government’s first major legislative initiative on grounds of compromising the “primacy of Chief Justice’s opinion” in the appointment of judges of the Supreme Court and high courts. The lone dissent was authored by Justice J Chelameswar.

With four senior judges now questioning the authority of the Chief Justice even in administering the court, things have come full circle. It is indeed the worst crisis of our judicial history and the entire legal fraternity is in shock with such divisions within the collegium. Decisions on appointment and transfer of judges may now come to a standstill.
The SC has faced similar moments of crisis in the past, but those were confrontations between the government and the court. In the 1967 Golaknath case, the SC in a 6:5 ruling asserted itself and denied Parliament power to amend the Constitution and fundamental rights. In the 1972 Keshvanand Bharti case, the SC by a 7:6 majority subjected Parliament’s power to amend the constitution only to the doctrine of “basic structure”. Thus Parliament cannot anymore change the basic structure of the Constitution.

 

Soon after this order, the Indira Gandhi government appointed Justice A N Ray, a committed judge, as the new CJI superseding three judges, who immediately resigned in protest.

On May 12, 1973, M Kumaramangalam, Indira Gandhi’s cabinet colleague, in a speech to Parliament defended Ray’s appointment as CJI: “We had to take into account what was a judge’s basic outlook on life… Was it not right to take all these aspects into consideration? Was it not right to think in terms of more suitable relationship between the court and the government?

As CJI, Justice Ray did try to overturn Keshavanand Bharti. After two days of tense hearing, the review bench was abruptly dissolved after it realised that no one had approached the court with a review petition.

Then came the 1976 ADM Jabalpur case where four judges held that during Emergency a citizen has no remedy against illegal arrest due to suspension of right to life and personal liberty under Article 21. Justice H R Khanna was the lone dissenter, and was soon superseded by another committed judge, Justice Hamidullah Beg. Khanna resigned. This judgment was recently overruled in the privacy case.

But the current crisis is of different magnitude as the four judges have raised some very pertinent issues about the administrative functions of the CJI. So it is now judges versus CJI. It is a fight within. The integrity of the apex court is now at its lowest ebb and it will take years to regain people’s confidence.

To the credit of the four judges who called a press conference on Friday — J Chelameswar, RanjanGogoi, M B Lokur and Kurian Joseph — they did not say much except this is an “extraordinary” event in the judicial history and that circumstances compelled them to reach out in order to discharge their “debt to nation” as the credibility of the highest judiciary was at stake. They repeatedly asserted that they did not want to “politicise the issue” and were not seeking any action against the CJI. They only made public a seven-page letter jointly written to the CJI recently.

They did say that all is not well with the administration of the court for the last two months and they did make sincere efforts in sharing their concerns with the CJI and did everything within their powers to persuade him to take necessary remedial measures. But their efforts were in vain and therefore, reluctantly, they were sharing their pain and disappointment with the people, the ultimate sovereign.

They also said that they are convinced that unless the SC’s independence and integrity is preserved , democracy would not survive as an independent judiciary is the hallmark of a successful democracy. They also justified their strange action of reaching out to people due to the fear that future generations of so called “wise men” may blame them for not rising up to the occasion. They also asserted that they have not sold their souls.

Without giving any concrete details they repeatedly referred to a “particular case” and “particular manner” in which it was handled. Since Friday, the SC was to hear the matter of Judge B H Loya’s mysterious death which has been assigned to a relatively junior judge ignoring several senior judges. It seems they were probably referring to this high-profile case. These senior judges did meet the CJI Friday morning but nothing came of this meeting and out of sheer desperation or possibly in a knee-jerk reaction, on a working day, they decided to leave their judicial work and reach out to the nation.

It seems at least two judges, in response to a pointed question about Judge Loya’s case being the “particular case”, nodded their head in agreement. In a welcome order, the SC bench hearing the matter Friday sought Loya’s autopsy report.

The following core issues were raised in this letter:

BENCH CONSTITUTION

They did acknowledge the power of the CJI as master of the court’s roster to ensure disciplined and efficient transaction of the business of the court but pointed out that there were established conventions which have not been adhered to lately in some sensitive matters. They explicitly asserted that master of roster does not in any way mean “recognition of any superior authority, legal or factual of the Chief Justice over his colleagues”.

The letter went on to boldly state that “Chief Justice is only the first amongst the equals — nothing more or nothing less.” The letter also said that details of bench formations are deliberately withheld to avoid embarrassment to the court. The most damaging statement of the letter is “there have been instances where cases having far-reaching consequences for the nation and the institution had been assigned by the Chief Justice of this Court selectively to the benches ‘of their preference’ without any rational basis for such assignment. This must be guarded against at all cost.” The underlining of the last sentence shows bench hunting is the central issue.

Lately, bench formation in the SC has been against the text of the Constitution. The Constitution says a constitutional issue shall be heard only by a five-judge bench but recently a number of two- or three-judge benches have heard and decided matters involving issues of constitutional interpretation.

DELAY IN MoP

The judges also took notice of the strange order of October 27, 2017, passed by a two-judge bench of Justice A K Goel and Justice U ULalit on the delay in the finalisation of the MoP on the appointment of superior judges. Since the NJAC matter was heard by a constitution bench, this matter should have ideally been given to the same bench as with the exception of Justice Khehar, the other four judges are still available. The judges also made an interesting point in stating that since the MoP was finalised with extensive discussions within the collegium as per the NJAC decision of October 16,2016, and was sent to the government by the then Chief Justice J S Khehar in March, 2017, the government’s silence indicated it has accepted it and therefore reopening this issue by the two-judge bench was not proper. The government will not be happy with this interpretation of its silence.

They also said that in the contempt matter of Justice C S Karnan on July 4, 2017, none of the seven judges raised the issue of MoP though two judges did raise the issue of need to evolve methods of judicial accountability other than impeachment. As a matter of fact, in Indian history no judge has so far been impeached for “misconduct or proved misbehaviour”. These are the only grounds on which judges can be impeached.

Towards the end of the letter, the four judges have said that once the CJI takes corrective measures about this two-judge bench order in the R P Luthra case on the MoP, they will apprise him of other similar judicial orders which “require to be similarly dealt”. As a matter of principle, judges are not supposed to comment on the judicial order of brother judges, but this is an unprecedented moment.

Most probably there is no truth in the allegations against CJI but with this press conference, people’s confidence in the judicial system has now reached rock bottom and the SC is suffering from a serious crises of legitimacy.

In a rule-of-law-based legal system, no one including the CJI is above law. The CJI does have the power to form benches but this power is to be exercised judiciously, not arbitrarily. Arbitrariness is antithesis to rule of law and constitutionalism. The SC itself has come down heavily on litigants on of “bench hunting”. It is difficult to believe the CJI himself is doing it.

Most probably there is no truth in the allegations against CJI but with this press conference, people’s confidence in the judicial system has now reached rock bottom and the SC is suffering from a serious crises of legitimacy.

The government has refused to intervene and termed it an internal matter of the judiciary. One hopes that judges will sit together and amicably resolve this crisis. Let the CJI demonstrate his leadership qualities which he has in abundance to take brother judges along. The CJI should use this opportunity to bring in judicial discipline. In a number of cases, smaller benches have overruled decisions of larger benches.

Judges must realise that the government may use this crisis to have greater say in judicial appointments and transfers. It may come up with another version of NJAC. Whether these judges have strengthened or destroyed the judiciary, only time will tell.

(Indian Express)


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Opinion

Why EVMs must go

The Kashmir Monitor

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By G. Sampath

The recent Assembly elections — the last major polling exercise before the 2019 Lok Sabha polls — were not devoid of Electronic Voting Machine (EVM) malfunctions.

Though the discourse at present makes no distinction between a ‘malfunction’ (which suggests a technical defect) and ‘tampering’ (manipulation aimed at fraud), there were several reports of misbehaving EVMs. Alarmingly, in Madhya Pradesh alone, the number of votes polled did not match the number of votes counted in 204 out of the 230 constituencies. The Election Commission’s (EC) explanation is that the votes counted is the actual number of votes polled — a circular logic that precludes cross-verification.

 

A discrepancy of even one vote between votes polled and votes counted is unacceptable. This is not an unreasonably high standard but one followed by democracies worldwide. It might therefore be helpful to briefly look beyond the question that has hijacked the EVM debate — of how easy or tough it is to hack these machines — and consider the first principles of a free and fair election.

The reason a nation chooses to be a democracy is that it gives moral legitimacy to the government. The fount of this legitimacy is the people’s will. The people’s will is expressed through the vote, anonymously (the principle of secret ballot). Not only must this vote be recorded correctly and counted correctly, it must also be seen to be recorded correctly and counted correctly. The recording and counting process must be accessible to, and verifiable by, the public. So transparency, verifiability, and secrecy are the three pillars of a free and fair election.

Regardless of whether one is for or against EVMs, there is no getting away from the fact that any polling method must pass these three tests to claim legitimacy. Paper ballots obviously do. The voter can visually confirm that her selection has been registered, the voting happens in secret, and the counting happens in front of her representative’s eyes.

EVMs, however, fail on all three, as established by a definitive judgment of the German constitutional court in 2009. The court’s ruling forced the country to scrap EVMs and return to paper ballot. Other technologically advanced nations such as the Netherlands and Ireland have also abandoned EVMs.

If we take the first two criteria, EVMs are neither transparent nor verifiable. Neither can the voter see her vote being recorded, nor can it be verified later whether the vote was recorded correctly. What is verifiable is the total number of votes cast, not the choice expressed in each vote. An electronic display of the voter’s selection may not be the same as the vote stored electronically in the machine’s memory. This gap was why the Voter Verifiable Paper Audit Trail (VVPAT) was introduced.

But VVPATs solve only one-half of the EVMs’ transparency/verifiability problem: the voting part. The counting part remains an opaque operation. If anyone suspects a counting error, there is no recourse, for an electronic recount is, by definition, absurd. Some believe the VVPATs can solve this problem too, through statistics.

At present, the EC’s VVPAT auditing is restricted to one randomly chosen polling booth per constituency. In a recent essay, K. Ashok Vardhan Shetty, a former IAS officer, demonstrates that this sample size will fail to detect faulty EVMs 98-99% of the time. He also shows that VVPATs can be an effective deterrent to fraud only on the condition that the detection of even one faulty EVM in a constituency must entail the VVPAT hand-counting of all the EVMs in that constituency. Without this proviso, VVPATs would merely provide the sheen of integrity without its substance.

The third criterion is secrecy. Here too, EVMs disappoint. With the paper ballot, the EC could mix ballot papers from different booths before counting, so that voting preferences could not be connected to a given locality. But with EVMs, we are back to booth-wise counting, which allows one to discern voting patterns and renders marginalised communities vulnerable to pressure. Totaliser machines can remedy this, but the EC has shown no intent to adopt them.

So, on all three counts — transparency, verifiability and secrecy — EVMs are flawed. VVPATs are not the answer either, given the sheer magnitude of the logistical challenges. The recent track record of EVMs indicates that the number of malfunctions in a national election will be high. For that very reason, the EC is unlikely to adopt a policy of hand-counting all EVMs in constituencies where faulty machines are reported, as this might entail hand-counting on a scale that defeats the very purpose of EVMs. And yet, this is a principle without which the use of VVPATs is meaningless.

Despite these issues, EVMs continue to enjoy the confidence of the EC, which insists that Indian EVMs, unlike the Western ones, are tamper-proof. But this is a matter of trust. Even if the software has been burnt into the microchip, neither the EC nor the voter knows for sure what software is running in a particular EVM. One has to simply trust the manufacturer and the EC. But as the German court observed, the precondition of this trust is the verifiability of election events, whereas in the case of EVMs, “the calculation of the election result is based on a calculation act which cannot be examined from outside”.

While it is true that the results come quicker and the process is cheaper with EVMs as compared to paper ballot, both these considerations are undeniably secondary to the integrity of the election. Another argument made in favour of the EVM is that it eliminates malpractices such as booth-capturing and ballot-box stuffing. In the age of the smartphone, however, the opportunity costs of ballot-box-stuffing and the risk of exposure are prohibitively high. In contrast, tampering with code could accomplish rigging on a scale unimaginable for booth-capturers. Moreover, it is nearly impossible to detect EVM-tampering. As a result, suspicions of tampering in the tallying of votes — as opposed to malfunction in registering the votes, which alone is detectable — are destined to remain in the realm of speculation. The absence of proven fraud might save the EVM for now, but its survival comes at a dangerous cost — the corrosion of people’s faith in the electoral process.

Yet there doesn’t have to be incontrovertible evidence of EVM-tampering for a nation to return to paper ballot. Suspicion is enough, and there is enough of it already. As the German court put it, “The democratic legitimacy of the election demands that the election events be controllable so that… unjustified suspicion can be refuted.” The phrase “unjustified suspicion” is pertinent. The EC has always maintained that suspicions against EVMs are unjustified. Clearly, the solution is not to dismiss EVM-sceptics as ignorant technophobes. Rather, the EC is obliged to provide the people of India a polling process capable of refuting unjustified suspicion, as this is a basic requirement for democratic legitimacy, not an optional accessory.

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Opinion

Doctor to serve the Humanity but ……….

The Kashmir Monitor

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By Sheikh Umar Ahmad

Doctors profession is regarded as a noble profession world over and is given due dignity and honor in global community for their selfless service to humankind.Every educated person aims to become a doctor in order to serve humanity in best and better of their capacities, but as it is, everybody can’t become a doctor and there are other professions as well to serve the humanity in general. Among all other professions, the medicine is regarded as one of the coveted both in terms of requirement of its service as well in terms of monetary benefits. This profession is only among existing ones that cater to global community involvement as well as service dissemination. Every person has expectations from doctors to deliver in close coordination anytime, rather 24*7 when the need arises without any internal or external excuses, including personal ones. There is a deeper dissatisfaction & grudges when any person from medicine community refuses any other person of consultation when it is time for them to serve. If they are unable to deliver to society with utmost satisfaction, then their purpose of serving the society through this profession only does not hold any merit. A similar kind of episode some days before than happened at state’s premier maternity hospital, so called as Lal Ded has shaken the whole Kashmiriyat that is otherwise known world over for their hospitality and generous behavior but some doctors who in literal sense are there to grab the greater public shearing and for their mere monetary benefits, have deceived and decimated the expectations of one of economically, socially and educationally backward section of our society who yet hold equal weightage at the measures table when it comes to Kashmir diversity and harmonious ethnicity.

Their refusal to admit a women in labor pain and then her parturition at a roadside, has shackled the immediate conscience of whole educated lot of Kashmir who now think that there should be a humanity course for every doctor before only he is allowed to practice medicine. A doctor in true essence should be ready to work in any society, with any person, and to serve any other person in need irrespective of his caste, creed, colour, religion, sect and above all ethnicity. If a doctor is unable to work in any multi-cultural society, he loses his position in the eyes of society to be called as a doctor. This person dashes the hopes of weaker section of society as they think that such persons can never pay attention towards them being economically and culturally senile. The death of a newborn on the roadside at Srinagar area speak volumes about those gross irregularities that still exist in best of our essential & emergency services. This should not have been the case and nothing such things happen in world over but are common in Kashmir only and there is a greater need to overhaul the whole system so to debug these bogus and nefarious elements in society that tarnish the whole image.

 

There should have been a commission in place to look at those gross malicious activities thatdiscord the whole organisational setup. Now as we know, the enquiry will be put in place and at the end what will be seen, nothing but the ball will be put in the court of victim by falsifying & negating the whole episode. The little one has gone now and no one on earth can bring him back. This episode brings this message forth, that doctor being the representative guardian of life our earth, protect lives every day in every part of world and there is a greater sense of satisfaction and this dealing makes the person feel happy internally & eternally for this greatest benefit to mankind. But for us, it is high time now, that we repent of our past sins and relook at our duties to disseminate it properly at every time it is required. Every person will be suitably rewarded for his good deeds and kind gestures that he has done on humanity and doctors are none as exception.

They are the best representatives of selfless service and moral attitude, and kind reflection of ultimate hope. State administration in Kashmir at the helm of affairs need to reaffirm their responsibilities and duties, so that utmost discipline is maintained in hospitals both from public & doctors end. If public outrages over anything that may be the reflection and agony of intermix of pain and grief. It is the responsibility of doctors on duty to deal with those situations quite humbly and morally, so that the professionals deliver their duties in its true essence and totally error free. There should be limited biasness in dealing with culturally and economically down-centric groups of society. We need to be first ambassadors of humanity before guardians of life through practising medicine to protect the lives of people. We need to safeguard the hopes and expectations of our ethnic groups before we deliver our best to save the lives.

These episodes nevertheless should be repeated in the times to come, else this profession will loseits dignity and honor world over for not withstanding with the requirements of and fulfilling the criteria of being a doctor humanely. There are doctors who treat animals even, this never mean that we need to make an animal human first to be treated by a human doctor as animals are animals, rather we need to be real doctors to understand the physiology of animals before only we can treat them. This is the only message I can conclude with… ! Hence a change is imperative.

(The author is Doctoral Research Scholar, currently working as DST INSPIRE Fellow at CSIR Indian Institute of Integrative Medicine Jammu)

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Opinion

The angry Pakistani

The Kashmir Monitor

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By Arifa Noor

IT takes an outsider to point out the anger within us. Last week, a former US ambassador to Pakistan, Cameron Munter, spoke at an event, arguing that our anger prevents us from telling the good story about Pakistan to the world.

It reminded me of an interaction that took place nearly 20 years ago. Back in 2000, a soft-spoken Indian professor from Delhi had asked why the Pakistani people were always so pessimistic about their country — present and future — despite the fact that till the 1990s, Pakistan had always enjoyed better social and economic indicators (including a higher growth rate) than India. It was a question I had no answer to. The hostile questions about Kargil and military rule were easier to answer during that trip to India than this gentle insight and a sense of bewilderment about our state of being.

 

But since that morning in New Delhi, there have been so many moments when the professor’s question has come back to mind. Countless memories that came spilling out echoed what former ambassador Munter said. Some as clear as the question asked by the Indian professor; some a little less sharp. But each one testifies to our despair, anger or lack of confidence in what is known as Pakistan.

We have been living in an age of anger, decades before Pankaj Mishra wrote about it.

Fast forward from 2000 to the last months of 2007 or the beginning of 2008: a faded memory, I am unsure of the exact month, but it was during the days of that heady yet difficult transition from dictatorship to democracy. Musharraf was fighting for his survival. Benazir Bhutto and the Sharifs were clawing their way back to relevance (followed by the devastating assassination of the former). A lawyers’ movement had caught Pakistan’s imagination. And there were terrorist attacks galore.

In the midst of these trying yet hopeful times, an op-ed had discussed Pakistan as a possible failed state. I was told that the writer had gotten a call from an amused friend in Afghanistan who said that despite all that had happened in and to Afghanistan, no Afghan would ever call his country a ‘failed state’.

We, of course, have used this term so often for the country that many of us believe it is a failed state — despite the term’s problematic origins as one used by Washington to describe countries it ‘disapproved’ of rather than an empirically established concept.

Then there are jumbled up memories of various track II dialogues. Each such seminar or conference is coupled with at least one discussion (on the sidelines) of how the Indians (and more recently the Afghans) present a united stand unlike Pakistanis. There is always a sense of frustration at how we end up helping ‘their’ cause rather than supporting our interest.

Why do we do this, as the professor asked?

Perhaps it stems from our long bouts of dictatorships. Denied their due and rightful say in policymaking has made entire swathes of the populace angry, hostile and critical of the state. They are angry at being left out: it’s an anger that is accompanied by a sense of helplessness at the direction that the country and society have taken. And in recent times, too, there is a sense of outrage because course correction (if there is any in their opinion) has not included their input. Hence, many refuse to believe that there has been any course correction, or criticise it for moving too slowly.

This is why perhaps the anger is most palpable when it comes to foreign policy, especially relations with India, and the radicalism that has engulfed state and society.

Being denied a voice, there is little left to do but express rage at the state, what it has come to stand for and to also conclude that there can be little hope for the future. (Pakistan has not just been at the crossroads ever since I can remember, it has also forever been in danger of being torn apart).

The rage has gotten worse post-2008, for the hope that accompanied the transition then has turned bitter. We thought that the worst was over, that ‘true’ democracy had returned to Pakistan and politicians would now rule — fixing all that had gone wrong. The 10 years of exile and powerlessness had also given the politicos a sheen of competence and maturity. But it was yet another shab gazida sahar (night-bitten dawn).

Ten years later, the anger has grown for it seems that decision making was never transferred. But because the hope this time was greater, so has the rage been too. And perhaps because the urban middle class fought for this transition in greater numbers than before, the disappointment is greater. They are angry for they cannot see the change they had fought for or protested against.

The judiciary turned out to have feet of clay. The military didn’t really share as much as they had promised. And the politicians didn’t deliver the reform or show any inclination for democratic norms once in power. And we continue to rail, against all of them or the one we had placed most hope in, or the one we hated most.

In addition, the rage has turned into hatred of the institution that has disappointed us the most. Indeed, the anger is expressed with malicious glee at times: the Sahiwal incident is a case in point, as was the controversial statement by a former high court judge, Shaukat Aziz Siddiqui, or any terrorist attack which reveals chinks in the armour of the security forces. And, of course, the various JITs revealing the shenanigans of our political ruling class.

It is as if we have no option but to express our rage, so all energy is poured into it.

But expressing outrage, however cathartic it may be, is not a strategy, which is what Cameron Munter was trying to say.

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