Selected Articles from Various News Paper: Civil Services Mentor Magazine October + November 2014


(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.

The Indian space agency is well-placed to provide the sort of assistance that the Prime Minister envisages. From its inception, the raison d’être of the Indian space programme has been the harnessing of space technology to meet the dayto- day necessities of a developing nation. Today, India is able to build and launch satellites for meteorology, earth observation and communications. Mr. Modi paid a tribute to the vision with which the
space programme was established, pointing out how modern communications, space imaging and disaster management capabilities provided by Indian satellites had benefited the common man and transformed policy planning and implementation. The Prime Minister was emphatic about enhancing these capabilities, as well as maximising their utilisation for governance and development. Apart from developing more advanced satellites,
he wanted to see India become “the launch service provider of the world.” Turning these goals into reality will not be easy; at present, the country is able to cater to only a small segment of the international launch market and must launch its own heavy communications satellites abroad. But ISRO has risen to challenges before, and can do so again.

Minimum Deterrent and Large Arsenal

It is well-known that the BJP lays great importance on national security, of which nuclear policy forms an important component. Sooner or later the new government will undertake, perhaps quietly, a review of our nuclear doctrine. The current official nuclear doctrine, released by the Cabinet Committee on Security on January 4, 2003, summarises our nuclear policy in eight succinct points. Of these, only a few of them really call for significant modification, because in recent years things have been relatively stable on the South Asian nuclear front.

This is despite the fact that both India and Pakistan continue to produce weapons-usable Plutonium at the Dhruva reactor and the Khushab reactors respectively. Pakistan may also be continuing to produce some weapons-grade Uranium at its centrifuge plants, despite its overall Uranium ore constraints. All this fissile material is presumably being assembled into warheads. So both arsenals have been growing, as have all the attendant dangers of maintaining a nuclear force. Nevertheless the situation has, by and large, just been “more of the same.” Therefore there is no call for any radical change of our nuclear doctrine. But a few features do need to be clarified and others underlined.

No First Use

Maintaining a doctrine of NFU, apart from being generally in tune with India’s non-aggressive ethos, has considerable diplomatic value. After our 1998 nuclear tests elicited the anticipated international opprobrium, the inclusion of NFU thereafter in the 1999 Draft Nuclear Doctrine helped soften the criticism, especially in comparison to Pakistan, which till today retains the option of a first strike.

However, although NFU has moral and diplomatic value, there should be no illusions about its impact on hard strategic decision makers on the other side. What matters to them is not any statement of intentions (like NFU) but the actual capabilities of the adversary. Pakistani colleagues one meets in Track II invariably say they set little store in our NFU. It makes no operational difference in their nuclear plans.

What matters more for nuclear confidence building is the actual state of alert. India has been sensibly following a system of keeping its warheads de-mated from their missiles and delivery aircraft. This introduces a minimum built-in delay in launching an attack after the decision to do so has been made. It greatly reduces the risk of an accidental or hastily decided launch. The new government should continue our policy of a de-mated dealerted posture. One clause currently in the Doctrine merits some revision. It states that “ ....[our] nuclear weapons will only be used in retaliation against a nuclear attack on Indian territory or on Indian forces anywhere...retaliation to a first strike will be massive.” Now, threatening retaliation “against a nuclear attack on Indian territory” is one matter. It is the basic component of nuclear deterrence and should apply whether the attack on our territory is small or big, as long as it is nuclear.

However, a battlefield nuclear attack will place India in a dilemma. Having threatened in our Doctrine to inflict a “massive” nuclear retaliation, can we really go ahead and kill lakhs of their civilians in response to a much smaller attack, that too on their own soil? It would be a disproportionate response, which would go against our national sensibilities and attract widespread criticism from around the world. Surely, there are more proportionate non-nuclear ways of inflicting punitive retaliation. Yet, if we do not counter attack after having threatened to do so, that would invite derision that we are “a soft state” incapable of hard nuclear decisions and would erode the credibility of our future deterrence, not only against Pakistan, but also against China.

It may therefore be better to limit massive nuclear retaliation only against nuclear attacks on our country and say nothing in the Doctrine, one way or the other, about attacks “on Indian forces anywhere.” Should the latter take place, we always have the option of some appropriate, measured retaliation.

Next, consider the characterisation in our Doctrine of our nuclear force as a “credible minimum deterrent (CMD)”, where the requirement of “minimum” has been spelt out as what is needed to “inflict unacceptable damage” to the adversary. These represent a very judicious choice of words selected, in fact, by the last BJP administration. It is designed in part to temper overzealous weapon enthusiasts from going on an endless spree of building nuclear bombs. It recognises the dangers of possessing an unnecessarily large arsenal of nuclear weapons, beyond what is essential for deterrence. The new government must ensure that the agencies concerned respect CMD in spirit and substance.

Unfortunately, our arsenal of nuclear bombs has already gone way over the minimum required to “inflict unacceptable damage” on any rational government, be it Pakistan or China. (Should Pakistan someday be taken over by irrational extremists to whom death of lakhs of civilians is “acceptable”, then no arsenal, however large, will deter them anyway. With respect to China, what deterrence needs is not more bombs than what we already have, but longer range missiles capable of reaching major Chinese cities.) As to credibility, large arsenals, beyond a point, do not enhance it. What does is a show of determination and toughness on other non-nuclear fronts, such as terrorism or border incidents.

Courtesy: Various News Papers

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