Friday, October 26, 2018

CJI's faux pas

CBI Director Alok Verma's petition was heard by a three judge bench in the supreme court today. CJI Ranjan Gogoi was one of the three judges. Alok Verma has pleaded that CVC does not have the authority to insist on his proceeding on compulsory leave. Only the Appointments Committee of which CJI is an ex-officio member has the power to do so.

So the plaint was in effect telling the CJI, "Your powers are misused by the CVC." CJI himself cannot sit in judgment over usurpation or otherwise of his own joint-powers. This would amount to clear conflict of interest. It is a different matter that the court came to an impartial view that they would await report of the enquiry against Verma.

Lawyers like Prashant Bhushan who invent conflict of interest even if there is none preferred to be silent. Perhaps they do not want to be offensive towards the new CJI so early in his tenure as CJI and thereby antagonise him. Rahul Gandhi's demonstration for restoration of Alok Verma's powers and subsequent courting of arrest betray lack of appreciation of crucial issues involved. His consistent inability to rise to the occasion and play a responsible role as an opposition leader makes him undeserving of presidentship of the Congress party.

Thursday, October 25, 2018

Masterstroke or manipulation?

CBI is suffering from autoimmunity. Instead of acting against corruption among public servants which is its mandate , it is attacking itself. The internecine battle between the Director Alok Kumar Verma and Additional Director Rakesh Asthana has been momentarily halted by CVC's order issued during October 23- 24 noctural hours. The scene now shifts to the Supreme Court which will have a preliminary hearing on October 26th on Alok Verma's petition against the CVC order forcing him to go on leave. The Chief Justice cannot hear the petition because he is ex-officio a member of the committee in charge of selection and transfer of CBI Director.

Congress party which opposed Verma's appointment as CBI Director is now 'making amends' by condemning the action against him. Political opportunism? Opposition parties do not question Verma's action of divesting Asthana of his duties at 9 p.m. but they are outraged that CVC passed its order late night.

Verma vs Asthana is only a proxy for the bigger battle that is raging between Congress and BJP. BJP's repeated attempts to 'prove' the 'corrupt deeds' of Congress leaders are checkmated in various institutions by individuals allegedly owing allegiance to Congress. It is no wonder that a politically polarised institution like the CBI is functionally paralysed. What is even more worrisome is the possibility of political balkanisation of even the judiciary. Serial reliefs extended to P.Chidambaram from custodial interrogation is a painful pointer.

There is a view that the Committee in charge of appointment of CBI Director alone could have taken the decision to ask Verma to proceed on leave. It appears that the government did not exercise this option because the government would have been helpless if the CJI and the Congress representative did not favour CVC's proposal. 

Wednesday, October 17, 2018

Sabarimala

As the Ayyappa temple is about to reopen today after a scheduled recess, there is a lot of tension not only in and around Sabarimala but in entire Kerala. Could this imbroglio have been avoided?

In the year 1991, the Kerala High Court decided that the traditions of the temple could not be trifled with. After many years, the Supreme Court took up a case seeking permission for all women to enter the temple on the plea of gender equality.

The courts in a secular country ought to avoid pronouncing on religious issues as much as possible. In order to side-step the issue and in view of preponderant aversion even among women in Kerala for allowing all women to enter this particular temple, the right thing for the Supreme Court would have been to get the views of aggrieved party. The aggrieved party is the woman of Kerala and not the publicity-seeking activist-tourist-provocateur. A referendum among women of Kerala should have been ordered.

The Supreme Court did not take this sensible decision because it did not have the benefit of having any judge who understands the traditions of this particular temple on the Bench. Governments - centre and the state - could have suggested this fair and logical step. Unfortunately, even the Supreme Court is not free from the desire to look like a champion of women's rights. If the SC is really a champion of women's rights, it would have opted for the referendum route.

A question might arise as to whether our Constitution provides for a referendum. The court could have relied on its contemporary fetish for 'constitutional morality' and 'silence of the constitution'. It is an irony that the only female judge on the Bench alone could understand the relevance of tradition while ostensibly enforcing gender-equality.

Monday, October 15, 2018

The Hindu LitFest 2018 Dialogue

Gopalkrishna Gandhi and Shashi Tharoor engaged in a freewheeling discussion on "India: Issues and opportunities" in Chennai on October14th. The event was to start at 6 p.m. The discussants were called to the dais around 5.55 p.m. Tharoor remarked that Chennai is the only place where programmes start even ahead of schedule. But that was not to be. Gandhi delayed coming to the dais. Was it because of Rahu Kalam ending only at 6 p.m.?

The discussion started on a neutral note with Gandhi equating BJP and Congress for their misdemeanours. He referred to corruption as 'swaroopa' of our politics, hypocrisy its 'svabhava' and inefficiency its style. Tharoor quoted his father telling him that India was not only the world's largest democracy, but it was also the largest hypocrisy. Probably apocryphal.

Gandhi observed that Delhi anti-Sikh riots were Congress's shame analogous to BJP's Gujarat riots. Tharoor's response that the difference lay in Congress learning from its mistakes and reforming itself unlike BJP was rather unconvincing. Gandhi was also critical of Congress trying to impeach the former CJI. Tharoor wriggled out of this claiming he was not privy to this since he is not a Rajya Sabha member. This escapist argument was seen as a honest disclosure by Gandhi !

Perhaps to Gandhi's hidden delight, Tharoor narrated instances of BJP's contempt for democratic politics. He compared BJP's aversion to dissent in the party with Congress's acceptance of dissent. Pot calling the kettle black?

When Shashi Tharoor and Gopalkrishna Gandhi discuss especially under the auspices of The Hindu, one cannot expect the discussion to be anything but one-sided. And so it was. It was disappointing for one more reason. The focus was rarely on opportunities.

Saturday, October 13, 2018

Judicial overreach

Congress party keeps accusing Narendra Modi of crony capitalism and corruption in the Rafale story. BJP wonders why the Congress is not approaching the courts. Congress may similarly wonder why the BJP is not seeking judicial remedy in case Modi is honest and he is defamed by the Congress.

The answer is simple. People want to avoid approaching police and judiciary as much as possible. Police would harass the complainant. Courts would test the patience of petitioners. Filing cases in our courts would result in loss of money, waste of time and all these without a guarantee that justice would be delivered.

In this milieu, it is distressing to note that the Supreme Court is widening its powers by invoking concepts like constitutional morality and constitutional silence.

What is constitutional morality? We understand constitutional principles. Who knows what is constitutional morality? It is what the judge says it is ! Is morality not indivisible? Do we have political morality, administrative morality, medical morality and so on? We have overarching principles like primacy of truth and merits of  honesty which are applicable across the board. Inventing a new kind of morality like constitutional morality will only make the legal conclusions unpredictable and more at the mercy of subjective views of judges.

Under the concept of constitutional silence, courts will go beyond interpreting the constitution's various articles and start guessing what the constitution-framers intended but failed to provide for. Are judges so exclusively empathetic of the constitution-makers?