THE HINDU EDITORIAL:NOVEMBER 25, 2017

The mandates of natural justice

It was on November 26, 68 years ago, that the chairperson of the Constitution drafting committee, B.R. Ambedkar, put to vote the following motion at the Constituent Assembly: “That the Constitution as settled by the Assembly be passed.” The motion, as the minutes of the day’s meeting recorded, was adopted amidst “prolonged cheers.” In the ensuing decades, though, the day was scarcely recognised as forming an occasion of any particular note. But, in 1969, the Supreme Court Bar Association declared November 26 as Law Day, “a red-letter day,” in the words of the association’s then president, L.M. Singhvi, which the government has now designated as Constitution Day. But call the day what we might, Singhvi’s intention in declaring it as an occasion for annual observance is certainly worthy of paying heed to. “Our purpose in designating 26th November as Law Day,” said Singhvi, in his inaugural address, “is to emphasise the role and importance of law in the life of our Republic, to review the state of law and administration of justice, to suggest ways and means of improving our laws and our legal and judicial system, to establish better and more meaningful equations between the Bench and the Bar, to strengthen the principle of the independence of the judiciary… and to maintain, reinforce and augment public confidence in our legal and judicial system.”

A necessary appraisal

Were we to today conduct an introspection of the kind that Singhvi thought necessary, what might our appraisal be? This question attains particular salience given recent events in the Supreme Court, which have not only sounded a national alarm, but have also threatened the confidence that the public might repose in the judiciary. The court’s collective actions, in undermining every notion of good ethical conduct, has struck a potentially irredeemable blow at the principles highlighted by Singhvi in his speech, each of which goes to the root of the constitutional morality that Ambedkar held so dear. The firestorm in this case was triggered by a first information report in which a retired Orissa High Court judge, I.M. Quddusi, was implicated for allegedly taking bribes to secure favourable orders from the Supreme Court. As it happened, these matters which Justice Quddusi is alleged to have claimed he could fix were heard by a bench presided by the Chief Justice of India (CJI). These claims supposedly made by Justice Quddusi might well be humbug. But how are we to know their veracity unless a reasonable investigation is conducted? This precisely was the question that a pair of petitions filed respectively by the Campaign for Judicial Accountability and Reforms (CJAR) and the advocate Kamini Jaiswal raised. Given that any involvement of the Central Bureau of Investigation could impinge the autonomy of the judiciary, the petitions suggested that the court might consider appointing a special investigation team to conduct an inquiry into the FIR, under the supervision of a retired CJI, independent of all executive interference. When the original petition was filed by the CJAR, it might have been reasonable to expect the CJI to recuse himself altogether from the matter, including from any involvement as the master of the roster, as the person responsible for both determining which judges hear a case and when they do so. But his failure to do so prompted the filing of a second petition, this time by Ms. Jaiswal. With a view to avoiding any intervention by the CJI, this case was separately mentioned before a bench presided by the court’s second most senior judge, Justice J. Chelameswar, who ordered that the petition be heard by a bench comprising the five most senior judges of the court. This, however, led to a series of other consequences, with the controversy spiralling into successive episodes of unseemliness, each apparently more damaging than the previous. Ultimately, the CJI not only set aside Justice Chelameswar’s order, by constituting a five-judge bench of his own, over which he himself presided, but he also thereby reaffirmed his power and authority to make administrative choices.

Justice seen to be done?

If we were to view the controversy rationally, the entire issue ought to boil down to these questions: under what circumstances does a litigant’s claim in court translate into a claim that interests a judge? Does the CJI ever have a duty to recuse himself as the “master of the roster”? To determine these questions, the court has no explicitly binding rules to apply; it’s guided partly by precedent, but mostly by discretion. In ordinary circumstances, this discretion would be governed by the general principle expressed by Lord Chief Justice Hewart of the King’s Bench nearly 100 years ago: that “justice should not only be done, but should manifestly and undoubtedly be seen to be done.” But, on November 14, when a three-judge bench constituted by the CJI, which included a judge who had originally heard the cases that Justice Quddusi claimed he could influence, conducted a hearing, it barely considered the basic tenets of this principle. Instead, it dismissed Ms. Jaiswal’s petition, as an attempt at “bringing disrepute” to the court. What’s more, the bench also held that the petitioner’s request for a recusal by one of the judges hearing the case amounted virtually to contempt of the court.

The Gajendragadkar way

Here, it may have been instructive for the court to hark back to an incident from August 1964, when a group of intervenors represented by the lawyer Purushottam Trikamdas — a ‘tiger’ at the bar, by Fali Nariman’s reckoning — made what was at the time an odd request to a bench presided by the CJI, P.B. Gajendragadkar, which was hearing a case concerning the validity of a Bombay land acquisition law. Gajendragadkar, they argued, should not hear the case, since its outcome would affect a cooperative housing society of which he was a member. As Mr. Nariman recounted in his memoir, “Before Memory Fades,” Gajendragadkar eventually agreed to recuse himself from the case, but he nonetheless expressed an intention to hear a similar dispute that emanated from Madras, where he himself had no personal interest. It was then that the Attorney General, C.K. Daphtary, who was appearing for the Union of India, stood up to point out to the judge that it wouldn’t be ethical for him to hear either of the cases, given that any decision in the Madras case would have likely bound the court later when it heard the challenge to the Bombay law. The next day the bench was promptly reconstituted, with Justice K. Subba Rao presiding. As Mr. Nariman pointed out, there could be little doubt, not then, and not today, and certainly never in Daphtary’s mind, that had Gajendragadkar heard the cases, Dapthary’s client, the government, would have succeeded. But, as it happened, the two cases — N.B. Jeejeebhoy v. Assistant Collector and Vajravelu Mudaliar v. Special Deputy Collector — were both decided against the state. In H.M. Seervai’s words, the Chief Justice, in recusing himself, had thus “affirmed in India the principle, well settled in England, that the requirements of natural justice apply to the most exalted judicial officer as they do the humblest.” Now, Gajendragadkar’s recusal still leaves certain questions unanswered. In particular, it doesn’t tell us much about the CJI’s role as the master of the roster. But, were we to place the Chief Justice’s position as an administrative head above ordinary mandates of natural justice, we would be violating the basic constitutional morality that holds together the entire structure of our Constitution, the idea that we are a country governed by the rule of law.

  1. b) The China plan — On Myanmar-Bangladesh deal on Rohingya

The agreement reached between Myanmar and Bangladesh to repatriate Rohingya refugees suggests that the Chinese proposal has found some traction as a solution to the crisis. It has been sealed after a three-month military operation by Myanmar in Rakhine, which resulted in around 600,000 Rohingya fleeing the province to Bangladesh, leading to a humanitarian crisis and a war of words between Dhaka and Naypyidaw. It is against this background that China stepped in with its three-point plan. Earlier this month, Chinese Foreign Minister Wang Yi travelled to Bangladesh and Myanmar with the proposal; Beijing later claimed both countries had accepted it. Under the plan, Myanmar and Bangladesh were to hold bilateral talks and reach a repatriation agreement – which has been achieved. However, the first step in Beijing’s approach – which involved a declaration of ceasefire in Rakhine to halt further displacement and bringing immediate relief to the state’s devastated Rohingya – has not taken effect. If this were to happen, the third part of the proposal will presumably take effect, with China providing economic assistance for the development of the Rakhine region as part of a long-term solution. China, which has historically been wary of stepping into domestic conflicts in other countries, is being proactive in this case. Its own interest is at stake. Beijing enjoys good relations with both Bangladesh and Myanmar; also, Rakhine is an important link in its Belt and Road Initiative. China is building a $7.3 billion deep-water port in the province and has invested $2.45 billion to build an oil and gas pipeline connecting coastal Rakhine to Yunnan. China has put pressure on Myanmar because a protracted conflict in Rakhine will be decidedly against Beijing’s economic interests. The signing of a repatriation deal suggests this pressure tactic is working. But details of the agreement, including the number of Rohingya who will be sent back, and the timeline, have not been revealed. It is also not clear whether the refugees themselves want to go back to a place they had fled in such perilous circumstances. Or in the event they do, where they will be resettled. From the details of the plan it is clear that China sees the Rohingya crisis as an economic problem, given that its solution is centred on development. While economic assistance is essential, the real problem is arguably deeply political, and there needs to be an accompanying political solution. Any proposal can only make limited headway unless Myanmar is willing to roll back the institutional barriers that render Rohingya second-class people. Unless they are accepted as equal citizens, there is unlikely to be a long-term solution to the Rakhine unrest.

WORDS/VOCABULARY

1) Drafting

Meaning: Select (a person or group of people) and bring them somewhere for a certain purpose.

Example: “riot police were drafted in to break up the blockade”

Synonyms: Choose, Select

2) Amidst

Meaning: In the middle of or surrounded by.

Example: On the floor, amid mounds of books, were two small envelopes.

Synonyms: Among

3) Ensuing

Meaning: Happen or occur afterwards or as a result.

Example: “the difficulties which ensued from their commitment to Cuba”

Synonyms: Result, Develop

4) A red-letter day

Meaning: A special, happy, and important day that you will always remember.

Example: The day I first set foot in America was a red-letter day for me.

5) Designated

Meaning: Appoint (someone) to a specified office or post.

Example: “he was designated as prime minister”

Synonyms: Appoint, Nominate

6) Heed

Meaning: Pay attention to; take notice of; careful attention.

Example: “he should have heeded the warnings”

Synonyms: Notice, Consider

Antonyms: Disregard

7) Emphasise

Meaning: Give special importance or value to (something) in speaking or writing.

Example: “they emphasize the need for daily, one-to-one contact between parent and child”

Synonyms: Foreground, Highlight

Antonyms: Understate

8) Judiciary

Meaning: The judicial authorities of a country; judges collectively.

Example: “the independence of the judiciary”

9) Reinforce

Meaning: Strengthen or support (an object or substance), especially with additional material.

Example: “the helmet has been reinforced with a double layer of cork”

Synonyms: Strengthen, Underpin

10) Introspection

Meaning: The examination or observation of one’s own mental and emotional processes.

Example: “quiet introspection can be extremely valuable”

Synonyms: Self-analysis, Self-absorption

11) Salience

Meaning: The quality of being particularly noticeable or important; prominence.

Example: “the political salience of religion has a considerable impact”

12) Repose

Meaning: The state of being calm and composed.

Example: “he had lost none of his grace or his repose”

Synonyms: Peace, Quiet

Antonyms: Stress, Strain

13) Undermining

Meaning: Lessen the effectiveness, power, or ability of, especially gradually or insidiously.

Example: “this could undermine years of hard work”

Synonyms: Weaken, Damage

Antonyms: Enhance, Improve

14) Irredeemable

Meaning: Not able to be saved, improved, or corrected.

Example: “so many irredeemable mistakes have been made”

15) Firestorm

Meaning: A very intense and destructive fire (typically one caused by bombing) in which strong currents of air are drawn into the blaze from the surrounding area making it burn more fiercely.

Example: “firestorms after a nuclear exchange”

16) Implicated

Meaning: Show (someone) to be involved in a crime.

Example: “he implicated his government in the murders of three judges”

Synonyms: Incriminate, Compromise

Antonyms: Absolve

17) Humbug

Meaning: Deceive; trick.

Example: “poor Dave is easily humbugged”

Synonyms: Deceive, Delude

18) Impinge

Meaning: Advance over an area belonging to someone or something else; encroach.

Example: “the proposed fencing would impinge on a public bridleway”

Synonyms: Infringe, Invade

19) Prompted

Meaning: (of an event or fact) cause or bring about (an action or feeling).

Example: “the violence prompted a wave of refugees to flee the country”

Synonyms: Induce, Cause

Antonyms: Deter, Restrain

20) Unseemliness

Meaning: Not seemly (= socially suitable and polite)

Synonyms: Unsuitable and unacceptable.

21) Boil down

Meaning: To reduce information, usually so that it contains only its most important part.

Example: The boss wants me to boil down the ten-page sales report to one page.

22) Discretion

Meaning: The quality of behaving or speaking in such a way as to avoid causing offence or revealing confidential information.

Example: “she knew she could rely on his discretion”

Synonyms: Care, Caution

Antonyms: Indiscretion

23) Amounted

Meaning: Be regarded or classified as; be the equivalent of.

Example: “their actions amounted to a conspiracy”

Synonyms: Constitute, Comprise

24) Hark back

Meaning: If someone harks back to something in the past, they talk about it again and again, often in a way that annoys other people.

Example: He’s always harking back to his childhood and saying how things were better then.

25) Intention

Meaning: The action or fact of intending.

Example: “intention is just one of the factors that will be considered”

Synonyms: Intent, Design

Antonyms: Accident

26) Emanated from

Meaning: To come out of or be produced by something or someone.

Example: Angry voices emanated from the room.

27) Stood up

Meaning: To be in an upright position on your feet; to get yourself into an upright position on your feet.

Example: I’ve been standing up all day and I’m really tired.

28) Exalted

Meaning: (of a person or their rank or status) at a high or powerful level.

Example: “it had taken her years of infighting to reach her present exalted rank”

Synonyms: High, Elevated

Antonyms: Low

29) Humblest

Meaning: Of low social, administrative, or political rank.

Example: “she came from a humble, unprivileged background”

Synonyms: Lowly, Mean

Antonyms: Noble

30) Repatriate

Meaning: Send (someone) back to their own country.

Example: “the last German POWs were repatriated in November 1948”

31) Fleeing

Meaning: Run away from a place or situation of danger.

Example: “to escape the fighting, his family fled from their village”

Synonyms: Escape, Abscond

32) Ceasefire

Meaning: A temporary suspension of fighting; a truce.

Example: “the latest ceasefire seems to be holding”

33) Devastated

Meaning: Cause (someone) severe and overwhelming shock or grief.

Example: “she was devastated by the loss of Damian”

Synonyms: Shatter, Demolish

34) Presumably

Meaning: Used to convey that what is asserted is very likely though not known for certain.

Example: “it was not yet ten o’clock, so presumably the boys were still at the pub”

Synonyms: Probably, Apparently

35) Conflicts

Meaning: A prolonged armed struggle.

Example: “regional conflicts”

Synonyms: War, Action

Antonyms: Peace

36) Proactive

Meaning: (of a person or action) creating or controlling a situation rather than just responding to it after it has happened.

Example: “employers must take a proactive approach to equal pay”

37) Protracted

Meaning: Lasting for a long time or longer than expected or usual.

Example: “a protracted and bitter dispute”

38) Perilous

Meaning: Full of danger or risk.

Example: “a perilous journey south”

Synonyms: Dangerous, Hazardous

Antonyms: Safe, Secure

39) Headway

Meaning: Forward movement or progress, especially when this is slow or difficult.

Example: “the ship was making very little headway against heavy seas”

Synonyms: Progress, Advance

Antonyms: Retrogress, Stagnate

40) Barriers

Meaning: A fence or other obstacle that prevents movement or access.

Example: “the mountain barrier between Norway and Sweden”

Synonyms: Fence, Barricade

 

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