Cloud over prospective judges

BRP Bhaskar
Gulf Today

The two-year-old tussle between the Executive and the Judiciary over filling the vacancies in the superior courts has entered a new phase with the Supreme Court collegium insisting on the appointment of all 43 persons whose names the Government had rejected. 

The Constitution vests the power to appoint superior court judges in the President, with the stipulation that there should be consultations with the Chief Justice of India. Since the President, as constitutional head of state, is required to act on the advice of the council of ministers, the Executive had the last word until the Supreme Court through a series of judgments arrogated primacy to the Judiciary.

Successive governments went along with the court-designed scheme mainly because, in the absence of a firm majority in Parliament, the Executive was too weak to pose a challenge. On coming to power the Narendra Modi government enacted a law to set up a National Judicial Appointments Commission to select new judges.

It sought to put an end to the system of judges appointing judges by abolishing the collegium, comprising the CJI and four seniormost judges, which was created by the apex court, and create a commission to make recommendations on appointment and transfer of judges. The commission was to have six members – the CJI and two seniormost judges, the Law Minister and two eminent persons to be selected by a committee consisting of the CJI, the Prime Minister and the Leader of the Opposition.

The CJI blocked the formation of the commission by refusing to join the committee to select its two independent members. Later, acting on petitions challenging the new law, the Supreme Court struck it down and restored the collegium.

That led to a standoff between the Executive and the Judiciary. Vacancies in the superior courts kept rising as the Government delayed sending up to the President the names recommended by the collegium on procedural grounds. The CJI’s exasperation found expression in a speech at a function attended by the Prime Minister and in some harsh observations in the courtroom. At one stage he even warned that the court might summon the bureaucrats in charge of the Prime Minister’s office and the Law Ministry to appear in person to explain the cause of delay.

The only procedural duty cast on the government is to make a background check on the persons chosen by the collegium to ensure that there is nothing in their record that disqualifies them. This is done on the basis of inputs from intelligence agencies.

The CJI’s tongue-lashing caused the government to relent but in a final attempt to insinuate a role for the Executive in the appointment of judges, while sending to the President 34 of the 77 names recommended by the collegium, it asked that the collegium reconsider the remaining 43 names. Last week the collegium sent back all the 43 names, leaving the government with no option but to forward them to the President. 

While the Judiciary can thus have its way, the shadow this episode casts on the prospective judges is bound to linger for long. Since transparency is lacking in the entire process, the public remains in the dark about the reasons why the government was unwilling to approve their names as also about the factors which prompted the collegium to overlook its objections.

This was not the first time that the Modi government refused to go along with the collegium. Soon after assuming office, it had refused to send to the President the name of a respected jurist, Gopal Subramanium, whom the collegium had chosen for the post of Supreme Court judge.

It was clearly a vindictive act. Gopal Subramanium had assisted the apex court as amicus curie in the investigation of the Sohrabuddin Sheikh encounter case in which Modi’s chief lieutenant Amit Shah, currently president of the Bharatiya Janata Party, was arrested along with a few top police officers of Gujarat. The government could have its way then as Gopal Subramanium withdrew the consent he had given earlier to serve as judge, citing the administration’s mala fide intent. That precluded the collegium from renominating him.

Gopal Subramanium’s case illustrates the danger inherent in giving the Executive a decisive role in the appointment of judges. But leaving the appointments entirely in the hands of a few judges is, by no means, a satisfactory alternative. Experience shows that under political compulsions the Executive makes efforts from time to time to give representation to all sections of the society in the Judiciary. On the other hand, the collegium system tends to work to the disadvantage of the socially disadvantaged groups. -- Gulf Today, November 22, 2016.

Disastrous currency switch

BRP Bhaskar
Gulf Today

A week after the government abruptly invalidated the two highest-denomination currency notes, vast sections of the people of India are in a state of virtual penury, several sectors of the economy are paralysed and retail trade is disrupted.

Prime Minister Narendra Modi announced the immediate withdrawal of currency notes of Rs1,000 and Rs500 in an unscheduled telecast last Tuesday. He also outlined the procedure laid down for surrender of the invalidated notes and collection of new notes of Rs2,000 and Rs500 by the year end.

Within days it became evident that the switch had been made without giving adequate thought to the logistical aspects and making sufficient preparations to effect the change smoothly. Critics are already dubbing the demonetisation a Tughlaqian reform --- an allusion to the failed attempt by a 14th-century Sultan, Muhammad Bin Tughlaq, to shift the capital from Delhi to Daulatabad in the middle of the subcontinent.

The demonetisation came soon after the closure of a scheme for voluntary disclosure of concealed incomes. Tax evaders disclosed a total income of Rs652 billion.

Initially, the demonetisation decision was welcomed enthusiastically by not only Modi’s loyalists, who reflexively cheer every act of his as something only he can do, but also by many others who viewed it as a step to eliminate black money, which was one of the promises that had helped the Bharatiya Janata Party to win the 2014 elections. 

There were two demonetisations before this — one by Nehru’s government in 1948 and the other by the post-Emergency Janata government in 1978. Curbing black money was the motive on both occasions. On the second occasion, notes of Rs5,000 and Rs10,000 were withdrawn. After that there was no currency note of a denomination higher than Rs1,000.

Modi had met the three Service chiefs and the National Security Adviser before announcing demonetisation. This suggested that the move was also aimed at denying funds to domestic as well as Pakistan-based extremist groups who have been using fake Indian notes. 

The experience of 1948 and 1978 showed that demonetisation has only limited value as a step against the black money menace. A good part of the money hoarded by Indians is held abroad. Official studies have indicated that only about six per cent of the black money within the country is in cash. The rest is invested in various assets, including gold and real estate.

Demonetisation turned currency notes worth Rs14,000 billion into scraps of paper. As much as 86 per cent of all money in circulation ceased to be legal tender. From the next morning people started crowding at banks and post offices to surrender the old notes and collect new ones.

The only new notes that were immediately available were of the denomination of Rs2,000. The authorities placed restrictions on the value of currency that can be exchanged and set ceilings on amount that can be withdrawn from banks and ATMs. All this resulted in an abominable situation: millions of people were still stuck with old notes and millions of others possessed notes of Rs2,000 which they could not use for small purchases as shopkeepers did not have change to give.

Many of the country’s 200,000-odd ATMs were empty. When the machines were loaded, waiting customers emptied them quickly. At present the ATMs are able to dispense only small denomination notes. Finance Minister Arun Jaitley said it would take about three weeks to recalibrate them to be able to handle new notes of Rs2,000 and Rs500 which differ in size and weight from the demonetised ones.

What was supposed to be a surgical strike on fake money hurt honest citizens as well. The worst hit were families with planned weddings or surgeries.

Life was smooth for those who are into net and mobile banking, but then their number is small. A recent official study found that while there are about 450 million mobile connections in rural India, mobile banking attempts (the figure includes failed transactions) in a month numbered only 3.7 million. It identified high costs and complexity of operations as the reasons for the low reach of mobile banking.

At least three persons collapsed and died during the week while waiting in queues to exchange notes. A sick child died as a private hospital refused treatment since the family had only old notes. In many places drivers did not take out trucks as there was no money to meet expenses on the road. The traders’ association in Kerala has called an indefinite strike from today (Tuesday).

The authorities clearly had failed to understand the magnitude of the problem and make arrangements for painless transition.

Bid to tame free media

BRP Bhaskar
Gulf Today

The Modi government last week ordered a Hindi news channel to cease transmission for 24 hours this week for contravening the year-old broadcast guidelines on live coverage of terror attacks. 

The unprecedented action has the making of a surgical strike calculated to tame sections of the media which have been reluctant to go the whole hog with the government and its Hindutva supporters who constantly invoke national sentiments for partisan purposes. 

The channel which has been handed down the punishment is NDTV India, a Hindi channel belonging to the oldest and arguably the most professional of the private national networks. The cause of action, ostensibly, is a report it telecast during the terrorist attack on the Pathankot air force base in January.

According to the government, an inter-ministerial committee found that in a near-live telecast on January 4 NDTV India “revealed strategically sensitive details.” Its report had said, “Two terrorists are still alive and they are next to an ammunition depot, And the jawans who are under fire are concerned that if the militants make it to the ammunition depot it will be even harder to neutralise them.”

This information was given to the media earlier by security officials themselves, and other channels and newspapers too had reported it. However, NDTV India was singled out for punitive action.

The inter-ministerial committee rejected the channel’s contention that other media too had carried similar reports on the specious ground that it had mentioned the exact location of the terrorists with regard to the ammunition depot.

As Information Minister, the task of defending the action against the channel fell on M Venkaiah Naidu, who has an infinite capacity to confuse issues in the guise of clarifying them.

Within 24 hours of the government order against the channel, the Editors Guild of India condemned the action, describing it as reminiscent of the Emergency of 1975. Naidu dubbed it a belated response and an afterthought.

He said that during 2005-2014 the Congress-led United Progressive Alliance government had directed various channels on 21 different occasions to suspend telecasts for periods ranging from one day to two months. The comparison was odious for they were penalised not for airing any news reports but for showing obscene or violent movies.

There could be no UPA precedent for the Modi government’s action since the rule relating to live telecast of anti-terrorist operations did not exist in its time. It was brought in by the present regime last year through an amendment to the Cable Television Networks (Regulation) Act of 1995.

The entire opposition and the entire media barring the government’s partisan supporters raised their voice against the action against NDTV India. That, however, didn’t prevent Venkaiah Naidu from claiming that the people were broadly with the government on this issue.

India is perhaps the only country which does not have a law to regulate the working of the electronic media. After it came to light that the live telecasts of the 2008 Mumbai attack had provided the terrorists’ handlers in Pakistan with valuable inputs on real time basis, there was general agreement in the country on the need for a law to curb irresponsible competition-driven coverage. At that stage, two groups of channel owners set up separate bodies of their own to look into complaints against their coverage. This was done to forestall the creation of a regulatory mechanism by the government. 

The self-regulation experiments have been a failure. The arbitrary and ham-handed manner in which the government has acted against NDTV India reveals the dangers inherent in vesting the regulatory power in the government. 

The action against NDTV India has come more than 10 months after the indicted report. Viewed in the context of calls by ministers to journalists to put national interest above freedom of expression, it can be seen as a not-so-subtle attempt to send a message to all media.

The attempt to juxtapose national interest with freedom of expression is mischievous as there is actually no conflict between them. The government’s discomfort arises from the conflict between its own political interest and exercise of freedom by the citizens and the media.

On Saturday, in a bid to ward off criticism that NDTV India has been singled out for punishment, the government announced that a regional channel of Assam has also been asked to go off the air for 24 hours --for revealing the name of a minor who had been tortured.

On Monday, following a protest meeting by journalists in New Delhi and the filing of a petition by NDTV in the Supreme Court challenging the order, the government put it on hold pending a review of the decision.

A mechanism is needed to regulate the working of channels. It is not a task that can be left to politicians and bureaucrats. A credible statutory mechanism with due representation for media professionals is needed.  -- Gulf Today, Sharjah, November 8, 2016.

Making justice affordable

BRP Bhaskar
Gulf Today

Jurists never tire of repeating the old maxim “Justice delayed is justice denied”. The saying has special relevance for India, which has a history of judicial delays that goes back to the early days of colonial rule.

Speaking in the context of the stand-off between the Supreme Court and the Central government which has slowed down judicial appointments, Chief Justice of India TS Thakur recently said executive inaction was decimating the judiciary.

Responding to his references to the issue in the courtroom and elsewhere, the Narendra Modi government last week leaked to the media some data to dispel the impression that there had been an abnormal increase in vacancies in the higher courts. 

The standoff is the result of differences between the Executive and the Judiciary on their roles in the process of appointment of judges of the higher courts. The Supreme Court, through three judgments over the last few decades, had virtually reduced the Executive’s role to that of a postman delivering the Judiciary’s communications to the President, the appointing authority.

The Modi government enacted a law to put an end to the practice of a collegium comprising a few senior judges deciding on appointments and transfers and to entrust the task to a national judicial commission. The Supreme Court struck it down as unconstitutional. 

Things have not been going smoothly since then. About 80 appointments have got stuck as the Centre is taking its own time to forward to the President the names finalised by the collegium.

Court delays are already a serious problem. Shortage of judges is bound to add to the delays. 

At present more than 30 million cases are pending in various courts, mostly those at the lower levels. According to Justice Thakur, judges from the lowest to the highest courts dispose of, on an average, 2,600 cases in a year, as against only 80 handled by a Supreme Court judge in the USA. Going by this figure, close to 12,000 more judges will be needed to wipe out the arrears within a year and ensure that new backlogs do not arise.

The tussle between the Executive and the Judiciary relates to filling of vacancies in the Supreme Court and the High Courts. Lower court appointments are not involved in it.

More than 3.8 million cases are pending in the 24 high courts. Close to 1,500 judges will have to work for a year to dispose of them. Currently the high courts have a sanctioned strength of 1,079 judges, including 173 posts created last June. However, the effective strength is only 620. Justice Thakur is, therefore, justified in raising an alarm over shortage of judges. 

However, the issue is not one of number of judges alone. Their quality is also a relevant factor. There is nothing to indicate that the collegium system has been able to produce better judges than the earlier one. If anything, there has been deterioration in quality. The courts’ inability to rein in unruly lawyers points to erosion of the moral authority of judges.

Since the quality of justice depends to a large extent on the quality of the judges, care must be taken to ensure that the courts get the right kind of people.

The Constitution has a provision which can help meet the current shortage of judges. It allows Chief Justices of high courts to appoint retired judicial officers as ad hoc judges. They must invoke this provision to clear the arrears

All the good work done by the Judiciary since the Constitution came into force 66 years ago cannot negate the fact that it has failed to make justice easy and affordable. The Supreme Court’s refusal to entertain the idea of regional benches has put it physically beyond the reach of vast sections of the population. The high cost of litigation in the higher courts effectively denies access to justice to the poor.

In the 1950s the Supreme Court’s eight judges had to handle only about 1,200 cases filed in a year. Now its 31 judges have to cope with more than 60,000 cases filed in a year. 

The steep rise in the number of cases is not the result of population explosion alone. The cumbersome court procedures are also to blame. There is urgent need to reform the procedures to speed up delivery of justice.

All too often the higher courts allow themselves to be dragged into issues which can be settled at lower levels or left to other bodies, like those with expertise in the areas of mediation and arbitration. -- Gulf Today, November 1, 2016.