SELECTED ARTICLES FROM VARIOUS NEWSPAPERS & JOURNALS
(October + November 2014)
Of fact, Procedure, and Principle
The practice followed by the collegium of the higher courts,
before a candidate is recommended for elevation and a panel of names is sent to
the government for appointment, is as follows. The Chief Justice initiates a
consultation with the legal fraternity. Speaking in confidence to senior
advocates and fellow judges, to both the bar and the bench, a long list of
possible candidates for elevation is prepared. Based on these recommendations
the Chief Justice then invites the candidates to determine their willingness to
be considered. If the candidates are willing then they are required to furnish
details about themselves, such as their contributions to the law especially with
respect to important cases, the extent of their legal practice, their annual
income, their legal history, etc. These details are then processed by the court
administration, during which time, I suppose, the court gets inputs from
relevant investigating agencies about whether they have any legal proceedings
against the candidate, etc. other inputs that may make them ineligible for
consideration.
Based on (i) the recommendations of the legal fraternity,
(ii) the willingness of the candidate, and (iii) the hard data relating to the
legal practice and public standing of the individual, the file is placed before
the collegium.
The collegium then scrutinises the information on record and, based on the
highest standards of judicial scrutiny, arrives at a decision on whom to
recommend and whom to ignore, from the names before it. Not every name that
comes up through this process gets the approval of the collegium. The shortlist
prepared by the collegium is then sent up to the government for its approval.
This I am told is the standard process that is followed. Gopal Subramanium’s
case, I suppose, went through the same process.
The principle for such empanelment was enunciated by the
Supreme Court in the case of P.J. Thomas, nominee for the Central Vigilance
Commission (CVC), whose candidature was rejected in 2011 when it described in
detail the process to be followed in the appointment to a position of authority.
Appointments to the Supreme Court, I expect, fall into this category. Here is
what the judgment said — (vi) The empanelling authority, while forwarding the
names of the empanelled officers/persons, shall enclose complete information,
material and data of the concerned officer/person, whether favourable or
adverse. Nothing relevant or material should be withheld from the Selection
Committee. It will not only be useful but would also serve larger public
interest and enhance public confidence if the contemporaneous service record and
acts of outstanding performance of the
officer under consideration, even with adverse remarks is specifically brought
to the notice of the Selection Committee. (vii) The Selection Committee may
adopt a fair and transparent process of consideration of the empanelled
officers.
Assuming complete information was available to the collegium,
we now have to consider the contrasting positions of the collegium and the
government. Based on the same facts considered by the collegium, the
government is at liberty to give an alternative reading and argue for the
unsuitability of a particular candidate. This is legitimate since the political
lens of the government may be at variance with that of the collegium. The
disagreement, at this stage, has to be on political grounds and not on facts.
The procedure then requires the government to place its disagreement before the
collegium which can either restate its earlier recommendation or revise it in
the light of the arguments made. This second stage is constitutionally
sacrosanct since contained in it is the core principle of the separation of
powers. The collegium has to deliberate on this contrary opinion of the
government and decide whether, by accepting or rejecting it, the independence of
the judiciary is eroded or enhanced. Both parties must give clear reasons for
their positions so that the final decision taken can educate the
public on the core issue of separation of powers. The government’s reasons and
the collegium’s views, as well as the facts of the matter, should be made public
to serve, as the Supreme Court in the P.J. Thomas case said,
the larger public interest.
Three basic issues for our democracy emerge from this
controversy. The first is the issue of public attitude. Are we prepared to let
it lie, to blow over because another headline has grabbed its place or are we
prepared to interrogate it further? This is not a partisan issue, of UPA versus
NDA, since it perhaps points to a growing disregard for our constitutional
culture. When the confidentiality of the collegium’s recommendation is treated
lightly, when the intelligence reports are leaked, when the President’s
confidential actions are public knowledge, we have reason to be concerned about
the disregard for constitutional propriety. Will those who leaked information be
punished to restore the sanctity of the process? Or are we moving toward what
Paulo Friere calls the “culture of silence”?
The second issue concerns the doctrine of separation of
powers. By segregating the names, did the President give primacy to the
executive over the judiciary? Was this a question of political expediency
trumping constitutional principles? With whom should the final decision, on who
should be elevated, lie? The executive or the judicial fraternity? Since the
Emergency, when it had touched its nadir, our democracy has been struggling to
restore the balance between the executive and judiciary.
We hope that the moment has not passed for the collegium to
enunciate on the principle of finality. Mr. Subramanium’s withdrawal also
highlights one of the knottiest problems of political philosophy. Should he have
been pragmatic, and withdrawn to fight another battle, or principled, since a
foundational principle was at stake? Is the cost of standing up for the
principle too high, undermining other values that are also important, or is it
necessary to stand up for them regardless of the cost since it would take
society to new and higher morality?
Laying out Space Goals
The Polar Satellite Launch Vehicle (PSLV), in its
twenty-sixth consecutive successful flight and the fourth wholly commercial
launch, put the French earth observation satellite, SPOT-7, as well as four tiny
satellites from Germany, Canada and Singapore, into orbit with characteristic
élan. On hand at Sriharikota to witness the launch was Prime Minister Narendra
Modi. In a forceful speech immediately afterwards, the Prime Minister lauded the
space programme and held it up as an example of what the country could achieve,
observing that “our space scientists have made us global leaders in one of the
most complex areas of modern technology.” India must, he said, share “the fruits
of our technological advancement with those who do not enjoy the same.” He
called for the development of a “SAARC [South Asian Association for Regional
Cooperation] satellite” that would provide useful applications and services to
neighbouring countries. China, it should be noted, already uses its space
capabilities for soft-power diplomacy, one example being an agreement with
Brazil to jointly build earth observation satellites. Mr. Modi clearly intends
to deploy India’s space technology as part of the country’s diplomatic outreach.
However, before turning the prime ministerial suggestion into hardware, ISRO
would do well to get inputs from the other South Asian nations about their
pressing needs that could be effectively addressed with space technology.
In
a move that could affect thousands of civil service aspirants across the
country, the Centre intends to reduce the upper age limit and number of attempts
of applicants with effect from 2015. Going by the new norm, the upper age limit
will be 29 years for SC/ST candidates, 28 years for OBC and 26 for the
unreserved category. There will be an additional two years for physically
challenged candidates in each category.
