THE HINDU EDITORIAL : MAY 29, 2018
THE HINDU EDITORIAL : MAY 29, 2018
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Looking for a new clarity
The Supreme Court, this past month, provided us with a useful reminder about its worth to our constitutional democracy. Its intervention in the imbroglio over government formation in Karnataka was flawless. The hearings conducted in the early hours of the morning may have been theatrical, but the court’s ultimate decision certainly helped avert a subversion of the Constitution. Yet, much as its decision here deserves appreciation, we must be careful not to allow any ascription of credit to veil the deeper wounds that afflict it, for a litany of problems continues to strike at the court’s independence.
Three of these are especially salient. The first involves the rejection by the government of the collegium’s recommendation of K.M. Joseph, currently Chief Justice of the Uttarakhand High Court, for elevation to the Supreme Court. The second concerns the need for a systemic mechanism to deal with allegations of corruption in the higher judiciary. The third area of worry concerns the embroiled state of Chief Justice of India Dipak Misra, his position as the master of the roster, and the critical question of whether such powers ought to be vested in the hands of one individual.
At first glance, these issues might strike us as unique to the times that we live in, as examples of crises that will eventually pass. But, on closer examination, it becomes clearer that these are, in fact, recurring problems left unaddressed for decades. In trying to resolve the issues, therefore, we must ask ourselves how we got here. As A.G. Noorani recently wrote in Frontline magazine (“Crisis in Judiciary,” May 11, 2018): “We have not reached the nadir all of a sudden. The decline was long in process.”
In his seminal book, America’s Unwritten Constitution: The Precedents and Principles We Live By, Akhil Reed Amar points to how the written constitution often invites us to heed what’s unwritten, which in turn, he writes, “refers us back in various ways to its written counterpart. Like the Chinese symbols yin and yang, America’s written Constitution and America’s unwritten Constitution form two halves of one whole, with each half gesturing toward the other.”
India’s Constitution is possibly the longest written constitution in the world, but it too leaves much unsaid. Take, for example, Article 124. It states that judges of the Supreme Court shall be appointed by the President, after consultation with certain authorities, including the CJI. But it does not tell us how these consultations are to be made, or what criteria ought to be applied in deciding who becomes a judge.
Filling the voids
Filling these voids, therefore, requires the building of conventions that nonetheless maintain a fidelity to the written word. In 1977, in Union of India v. Sankalchand Sheth, the Supreme Court sought to do precisely this, when it ruled that the word “consultation” can never mean “concurrence”. But yet it held in the same case that the President can depart from the CJI’s opinion, in making a transfer or an appointment, as the case may be, only in exceptional circumstances. And when the government does so, it must, wrote Justice V.R. Krishna Iyer, in his concurring opinion, be prepared to establish in court that it possessed “cogent and convincing reasons” for rejecting the CJI’s advice. As a result, in a bid to secure judicial independence, the court, as H.M. Seervai wrote, had read into the Constitution “a requirement which is not there, but which is implicit in the whole object of providing for consultation with the Chief Justice of India.”
Unfortunately, though, the court has in a series of cases rendered the verdict in Sheth nugatory. The informed wisdom of Justice Krishna Iyer has been replaced by the undemocratic excesses of the “collegium system”. This method grants primacy to the judiciary (specifically to the CJI and his four most senior colleagues) in choosing its own members but allows government the power to reject recommendations on any ground whatsoever, with only one caveat: if the collegium were to re-recommend the same name, the government is obligated to accept the proposition.
Now, in the present environment, for the immediate purposes, there is no doubt that the collegium must re-recommend Justice Joseph’s name, to protect at least a veneer of the court’s independence. But this still begs the question, what happens if the government vacillates in conforming Justice Joseph’s elevation even after such a re-recommendation?
In all of this, therefore, one thing has become abundantly clear: the collegium system is simply unworkable. Its ills are plain to see. It’s not only opaque and inequitable, containing not a single constitutionally provided check or balance, but it has done nothing to either improve the judiciary’s independence or provide a seamless system of elevating well-qualified persons to the bench.
Efforts to introduce a judicial appointments commission have already been scuttled, after the court struck down the 99th constitutional amendment. But the trend across liberal, constitutional democracies is towards such a commission. Hence, what we need now is a renewed debate on how to reshape the composition of a potential judicial appointments panel, which will preserve, in some regards, the judiciary’s primacy (which the Supreme Court now enjoins us to do), while also divorcing its membership completely from the executive.
Simultaneously, as we make an endeavour to be rid of the collegium system, we must also work towards putting in place an independent mechanism to deal with allegations of corruption in the judiciary. The quandary on how to guard the autonomy of the court while ensuring judges remain accountable is age-old. The Roman satirist Juvenal famously asked, Quis custodiet ipsos custodes? (Who will guard the guardians themselves?) Impeachment, as Ronald Dworkin wrote in the context of American Presidents, is a “constitutional nuclear weapon”. It ought to be restricted only to the grimmest of emergencies. But, in India, absent any other apparatus to inquire into a charge of judicial corruption, it becomes the only viable option. We must, therefore, strive to find a device that will straddle our concerns for the judiciary’s autonomy with a necessity for greater fairness and transparency. Any claim made against a judge of dishonesty, howsoever trivial, must be investigated by a properly constituted panel, which ought to be granted a status separate from all three established wings of government.
Issue of the roster
Finally, the CJI’s position as the “master of the roster” requires serious rethinking. The Constitution is silent on the administrative role that the CJI performs. The central authority that he now enjoys, in deciding which cases get to be heard by which benches, is essentially a product of custom (since codified into the Supreme Court Rules of 2013). But the framers could not have possibly envisaged the Supreme Court sitting in a multitude of panels of two and three judges. The court’s poly-vocal character has been built over a period of time and has now resulted in the CJI wielding enormous power over what might have been originally thought of as a simple managerial task.
Any doctrine that looks to fill the gaps in the Constitution must conform to its basic idea of fairness; seeing the CJI as the master of the roster sans any concomitant accountability simply doesn’t fit with a proper constitutional imagination. Thus, there’s a burning need to define with greater clarity the precise role of the CJI, and to amend the existing framework of rules and regulations on how benches are to be created, and on how work ought to be divided between the different panels.
The Constitution embodies a rousing vision. But it stands on brittle foundations. Protecting its text and its values requires an independent judiciary that is not only committed to constitutionalism but that is also democratically accountable. We cannot rely simply on good fortune to see us through today’s crises. To do so would amount to inviting an annihilation of our republican ethos.
b) Talk it over: the Centre’s role in J&K
Home Minister Rajnath Singh’s statement offering talks to the Hurriyat and Pakistan puts a seal on a series of moves by the Centre that signal a softer Jammu and Kashmir policy after two particularly violent years. His offer came a week into the Centre’s suspension of operations, with the condition that terror must end. Just a day earlier, Army Chief General Bipin Rawat had suggested the ‘cease-ops’ plan could be extended. This in itself was significant, as he had earlier taken a very tough line. Last year, launching what he called “Operation All-Out”, General Rawat had said the Army would look “helter-skelter” everywhere for terrorists and anyone sympathising with them. Statistically, the hardline policy saw successes, as more than 200 militants were killed in the period after the death of Hizbul Mujahideen commander Burhan Wani in July 2016, which had set off a wave of violence in the Valley. However, according to police estimates, 230 more young men picked up the gun during that time, many of them at funerals of militants. In fact, this became a cycle: as the level of disaffection among the population continued to grow, locals would gather in thousands at funerals, which became recruitment sites. In the past few months, however, the Modi government appears to have taken stock of its J&K policy and changed course rather dramatically. To begin with, the government authorised an interlocutor to speak with “all sections of society”, and he appears to have opened several conversations in the Valley, and nudged the government to declare an amnesty for first-time stone-pelters. Next, the Centre has taken care to back Chief Minister Mehbooba Mufti on a wide range of political issues, including replacing the Deputy Chief Minister, a post held by a BJP legislator. The cease-operations order, that came days before Prime Minister Narendra Modi’s speech in Srinagar, has also helped recast the narrative, and given a pause to the seemingly unending cycle of violence, funeral, encounters and recruitment.
More needs to be done, and soon. To start with, the Centre must review actions by security forces that unfairly stifle ordinary life, such as cordon-and-search operations, restrictions on access to orchards during the fruit harvesting season, and suspension of Internet services. Second, it must act to rebuild the ceasefire on the border with Pakistan, and discuss the issue at a bilateral level. At the same time, it must be alert to all attempts at subverting the cease-ops initiative, which could come from Pakistan or from vested interests within J&K. Finally, the government should get its message out on its vision for a longer-term resolution to reverse alienation amid a polarised debate in sections of the media on the value of the ceasefire, which adds to the sense of anxiety in Kashmir. A window of opportunity has been created. The need now is to move quickly and seize it.
Meaning: An extremely confused, complicated, or embarrassing situation.
Example: “The abdication imbroglio of 1936”
Synonyms: Complication, Problem
Meaning: Without any imperfections or defects; perfect.
Example: “Her smooth flawless skin”
Synonyms: Perfect, Unblemished
Meaning: Turn away (one’s eyes or thoughts).
Example: “She averted her eyes while we made stilted conversation”
Synonyms: Turn aside, Turn away
Meaning: The attribution of something to a cause.
Example: “The ascription of effect to cause”
Meaning: A thing that conceals, disguises, or obscures something.
Example: “Shrouded in an eerie veil of mist”
Synonyms: Covering, Cover
Meaning: (Of a problem or illness) cause pain or trouble to; affect adversely.
Example: “His younger child was afflicted with a skin disease”
Synonyms: Trouble, Bother
Meaning: A tedious recital or repetitive series.
Example: “A litany of complaints”
Synonyms: Recital, Recitation
Meaning: An organization for people who have similar interests or who do similar work, especially in a university.
Example: “No one wanted to miss the inaugural meeting of the Collegium of Black Women Philosophers at Vanderbilt University”
Meaning: A claim or assertion that someone has done something illegal or wrong, typically one made without proof.
Example: “He made allegations of corruption against the administration”
Synonyms: Claim, Assertion
Meaning: Involve (someone) deeply in an argument, conflict, or difficult situation.
Example: “The organization is currently embroiled in running battles with pressure groups”
Synonyms: Involve, Entangle
Meaning: Give (someone) the legal right to power, property, etc.
Example: “The local planning authorities are vested with powers to regulate land use and development”
Meaning: A previous case or legal decision that may be or ( binding precedent ) must be followed in subsequent similar cases.
Example: “We hope to set a legal precedent to protect hundreds of miles of green lanes”
Meaning: Faithfulness to a person, cause, or belief, demonstrated by continuing loyalty and support.
Example: “His fidelity to liberal ideals”
Synonyms: Loyalty, Fealty
Meaning: (Of an argument or case) clear, logical, and convincing.
Example: “They put forward cogent arguments for British membership”
Synonyms: Convincing, Compelling
Antonyms: Vague, Muddled
Meaning: Make an effort or attempt to achieve.
Example: “She’s now bidding to become a top female model”
Meaning: Suggested though not directly expressed.
Example: “Comments seen as implicit criticism of the policies”
Synonyms: Implied, Indirect
Antonyms: Explicit, Direct
Meaning: Provide or give (a service, help, etc.).
Example: “Money serves as a reward for services rendered”
Synonyms: Give, Provide
Meaning: A decision on an issue of fact in a civil or criminal case or an inquest.
Example: “The jury returned a verdict of not guilty”
Synonyms: Judgement, Adjudication
Meaning: Of no value or importance.
Example: “A nugatory and pointless observation”
Synonyms: Worthless, Unimportant
Meaning: A warning or proviso of specific stipulations, conditions, or limitations.
Example: “There are a number of caveats which concern the validity of the assessment results”
Synonyms: Warning, Caution
Meaning: Something that hides something unpleasant or unwanted.
Example: “She managed to hide her corrupt dealings under a veneer of respectability”
Meaning: Deliberately cause (a scheme) to fail.
Example: “Some of the stockholders are threatening to scuttle the deal”
Meaning: A state of perplexity or uncertainty over what to do in a difficult situation.
Example: “Kate was in a quandary”
Synonyms: Dilemma, Plight
Meaning: The action of calling into question the integrity or validity of something.
Example: “The prosecutor’s detailed impeachment of the character witness”
Meaning: Capable of working successfully; feasible.
Example: “The proposed investment was economically viable”
Synonyms: Workable, Feasible
Meaning: To be unable to decide which of two opinions about a subject is better and so partly support both opinions.
Example: “It’s not the first time this year that the president has been accused of straddling an issue”
Meaning: A list or plan showing turns of duty or leave for individuals or groups in an organization.
Example: “Next week’s duty roster”
Synonyms: Schedule, Agenda
Example: “A picture of Maughan sans specs”
Meaning: Naturally accompanying or associated.
Example: “She loved travel, with all its concomitant worries”
Synonyms: Attendant, Associated
Meaning: Make minor changes to (a text, piece of legislation, etc.) in order to make it fairer or more accurate, or to reflect changing circumstances.
Example: “The rule was amended to apply only to non-members”
Synonyms: Revise, Alter
Meaning: Exciting; stirring.
Example: “A rousing speech”
Synonyms: Stirring, Inspiring
Antonyms: Dull, Half-hearted
Meaning: Complete destruction or obliteration.
Example: “The threat of global annihilation”
Meaning: The characteristic spirit of a culture, era, or community as manifested in its attitudes and aspirations.
Example: “A challenge to the ethos of the 1960s”
Synonyms: Spirit, Character
Meaning: A militant person.
Example: “Militants became increasingly impatient of parliamentary manoeuvres”
Synonyms: Activist, Extremist
Antonyms: Centrist, Conformist
36) Set off
Meaning: To cause a device to explode or a signal to start.
Example: “I accidentally set the alarm off”
Meaning: A person who takes part in a dialogue or conversation.
Meaning: An official pardon for people who have been convicted of political offences.
Example: “An amnesty for political prisoners”
Synonyms: Pardon, Reprieve
Meaning: Undermine the power and authority of (an established system or institution).
Example: “An attempt to subvert democratic government”
Synonyms: Destabilize, Unsettle
Meaning: Surrounded by; in the middle of.
Example: “Our dream home, set amid magnificent rolling countryside”
Synonyms: Among, Between
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