Chanda Kochhar and Carlos Ghosn

ICICI Bank's Board continued to express confidence in the bank's CEO despite serious allegations against her which were believed to be true by everyone except the wise Board. Nissan's Board threw out its Chairman relying on accusations believed perhaps only by the Board.

As yet, we do not have the response of Carlos Ghosn to allegations of financial misconduct against him. He was taken into custody the moment Nissan reported the findings of an enquiry. The accused in India are lucky to have the kind of police we have here who will not dare to arrest any influential person whatever be the gravity of offense. In fact, greater the gravity, the lesser the chances of arrest !

It is said that the offences that Ghosn is deemed guilty of, namely underreporting of income and personal use of company's assets, are not uncommon even in Japan and therefore do not invite the wrath of law-enforcing agencies. It is further argued that the Japanese do not want a French company, Renault, to dictate to Nissan. This 'nationalistic spirit' has led to the downfall of Carlos Ghosn reputed for his cost-cutting efficiency.

Japanese are known to be loyal to their bosses. It is therefore surprising that Ghosn's protege Saikawa, Nissan's CEO, let him down by propagating the alleged charges. Does it mean that the Japanese are loyal only to Japanese bosses?

Born in Brazil to Lebanese parents, Ghosn is a French citizen leading, among others, a Japanese company. Truly a global citizen, it is ironic that he has come to grief the way he did falling a prey perhaps to 'Japanese jingoism'.

Viral Acharya's fulmination

Delivering the A.D.Shroff Memorial Lecture in Mumbai recently, Viral Acharya, a Deputy Governor of RBI spoke at length about the importance of independent regulatory institutions. He emphasised that the risks of undermining the independence of a central bank are potentially catastrophic.

He classified economies as either value-enhancing or rent-extracting. Reduced independence of the central bank would promote rent-extraction and thus corrode economic efficiency.

Methods adopted to rob the central bank of its independence include a)appointment of non-technical people in senior management, b)erosion of statutory powers of the central bank, c)preference for discretionary policies over rules-based policies and d)establishment of parallel regulatory agencies.

In order to ensure independence from the government, the central bank needs sufficient reserves of funds and definite rules for apportionment of profits including transfer of profits to government.

Governments that do not favour independent central bank attract market wrath and ignite economic fire whereas others enjoy cheaper funds and support of international investors.

All these are unexceptionable motherhood statements. Acharya  wants the government to desist from seeking higher share of profits (present and past) from RBI and interfering with central bank's guidelines on delinquent borrowers.

Is Acharya justified in expressing his angst in a public forum? Independence of RBI has to be reflected in the strength of RBI's Board of Directors to be unswayed by extraneous influences. Acharya as a member of RBI's Board ought to have taken the Board into confidence and it was for the Board to send a message to the government.

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.

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. 

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.

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.

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?