Wednesday, November 04, 2015
The Supreme Court Revives Collegiums System — a Fresh Debate Begins
Saturday 24 October 2015, by
The much-awaited judgment of the Supreme Court has held on October 19 that the Constitution (Ninetyninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014, are unconstitutional and void and the consequence is that the ‘Collegiums System’ existing prior to the Constitution (Ninetyninth Amendment) Act, 2014 has been declared to be operative.
The Court found fault with the constitution of the National Judicial Appointment Commission, mainly for its composition. The reason given was that if the inclusion of any one of the members of the NJAC is held to be unconstitutional, Article 124A will be rendered nugatory in its entirety. The Court’s reasoning was that membership of the Chief Justice of India, Chairperson Ex Office and (a) and (b) of Article 124A (1) do not provide an adequate representation to the judicial component in the NJAC and are insufficient to preserve the primacy of the judiciary in the matter of selection and appointment of judges to the higher judiciary.
Similarly clause (c) of Article 124A (1) is ultra vires of the provisions of the Constitution because of the inclusion of the Union Minister in charge of Law and Justice as an ex-officio member of the NJAC. It also held that inclusion of two “eminent persons” as members of the NJAC is ultra vires of the provisions of the Constitution.
Though I must say that the judiciary itself has a lot of explanation for previous bad appointments, the self-exculpatory effort at bad appointment is hard to sustain in view of the information given in 1959 by the Home Minister that in 1950, as many as 211 judges were appointed to the High Courts and these, except one, were made on the advice, with the consent and concurrence of the Chief Justice of India. And out of the 211, 196 proposals which were accepted by the government had the support of all persons who were connected with this matter.
It is conceded in the judgment that no one can claim the Collegiums System to be perfect. The Court has, however, held that the constitutional amendment alters the basic structure of the Constitution of the India. The Court found objection to the situation where the decision of the Chief Justice of India is, in one sense, made to depend upon the opinion of two members of the NJAC, who may in a given case be the two eminent persons nominated to the NJAC in terms of Article 124A(1)(d) of the Constitution. These two eminent persons can actually stymie a recommendation of the NJAC for the appointment of a judge by exercising a veto conferred on each member of the NJAC by the second proviso to sub-section (2) of Section 5 of the NJAC Act, and without assigning any reason. In other words, the two eminent persons (or any two members of the NJAC) can stall the appointment of judges without reason. That this may not necessarily happen with any great frequency is not relevant—that such a situation can occur is disturbing. As a result of this provision, the responsibility of making an appointment of a judge effectively passes over, in part, from the President and the Chief Justice of India to the members of the NJAC, with a veto being conferred on any two unspecified members, without any specific justification. To make matters worse, the President cannot even seek the views of anybody (other judges or lawyers or civil society) which was permissible prior to the 99th Constitution Amendment Act and a part of Article 124(2) of the Constitution prior to its amendment.
The role of the Chief Justice is reduced to a very low position because the suitability of a person for appointment as a judge, even if is acceptable to a majority of members of the NJAC, can be thumbed down by two of its other members in terms of Section 5 of the NJAC Act. These two persons might be the Law Minister (representing the President) and an eminent person or two eminent persons neither of whom represent or purport to represent the President, the other pre-eminent constitutional authority in the appointment process under Article 124(2) of the Constitution prior to its amendment.
The opinion of the Chief Justice of India had ‘graded weight’ or the ‘greatest weight’ prior to the 99th Constitution Amendment Act. But now with the passage of the 99th Constitution Amendment Act and the NJAC Act the Chief Justice of India is reduced to a mere voting statistic. Designating the Chief Justice of India as the Chairperson of the NJAC is certainly not a solace or a solution to downsizing the head of the judiciary.
The Court also found valid the apprehension expressed by some learned counsel appearing for the petitioners that since no guidelines have been laid down for the nomination of the two eminent persons, there is a possibility that persons who are not really eminent may be nominated to the NJAC or that their appointment will be politically motivated.
But notwithstanding this, I do not subscribe to the view that the judiciary is a holy cow and an exclusive club for which only the lawyers and judges are competent to take decision. The fear that the presence of a few lay persons will interfere with the independence of the judiciary is misplaced. As the Annual Reports of the Judicial Commission of New South Wales (Ireland) said caustically: “Judicial independence is not some kind of industrial benefit generously extended to judges and magistrates, it is fundamental principle of our society’s constitu-tional arrangements.”
The Court has finally directed that the result of the declaration that the Collegiums System postulated by the Second Judges Case and the Third Judges Case gets revived. But it has also held that the procedure for appointment of judges, as laid down in these decisions read with the (Revised) Memorandum of Procedure, definitely needs fine-tuning. It has now fixed this matter on November 3, 2015 to consider introduction of appropriate measures, if any, for an improved working of the “collegiums system”.
I may instantly give two immediate sugge-stions which may be considered—one of the most serious self-inflicted wound by the judiciary, namely, of appointing the Chief Justice of the High Court to outside his parent court. The second one is that full publicity be given on website and information to the Bar Associations, the names of those who are being considered and invite if there any objections from the public or the Bar. It would be necessary for the Chief Justices of the respective High Courts and the Chief Justice of India to invite for comments the concerned Bar Associations and to invite the concerned Bar Associations for any information.
I hope that Parliament and the legislatures will show balance and not start an anti-judiciary crusade. This decision should be taken as a constitutionally permissible normal feature.
The author, a retired Chief Justice of the Delhi High Court, was the Chairperson of the Prime Minister’s high-level Committee on the Status of Muslims and the UN Special Rapporteur on Housing. A former President of the People’s Union for Civil Liberties (PUCL), he is a tireless champion of human rights. He can be contacted at e-mail:rsachar1@vsnl.net/rsachar23 @bol.net.in
Source: Mainstream, VOL LIII No 44 New Delhi October 24, 2015
Misuse of sedition law
Once again the law of sedition has been misused, this time in Tamil Nadu. A folk singer associated with a radical leftist group has been charged with sedition and committing an act with an intent to cause a riot. His offence: disseminating two songs pillorying Chief Minister Jayalalithaa and her government for its policy of retailing liquor. There is nothing in the compositions that even remotely threatens the state or established government; neither is there anything that encourages violence, beyond calling for the closure of state-run liquor outlets as part of a campaign against government policy. The song has gone viral on social media, and many relate to its central theme. The song delineates with a great sense of irony, in tunes that are catchy, the idea of the state selling liquor while at the same time showering the people with freebies. In a sense, it has captured the present patronage paradigm in the political economy wherein the ruling party poses as the provenance of all welfare, but keeps the people disempowered through alcohol addiction and dependent on state doles. The artist, Kovan, whose real name is Sivadas, has managed to capture this reality in his songs. While the tenor of one of the songs, as well as caricatures in its video portraying Ms. Jayalalithaa in poor light, may appear defamatory of an individual, it should be remembered that small radical groups using folk forms for political propaganda communicate in strong, yet easily understandable language.
Powerful political figures ought to have it in them to take such criticism in their stride. They must act to address the underlying grievances rather than use repressive measures. The state’s response has been needlessly angry. Kovan’s arrest marks yet another instance of a pliant police force invoking Section 124A of the Indian Penal Code, which deals with sedition, with utter disregard for several judicial pronouncements limiting its scope. Courts have deprecated the tendency to invoke this grave charge for mere expressions of critical views. The Supreme Court has said that even words that indicate disaffection towards the government cannot be termed seditious, unless there is actual incitement to violence and intention to cause disorder. In this case, it is particularly disgraceful that the Chennai police have equated strident criticism of the Chief Minister with an alleged threat to the government established by law. It was only recently that the Maharashtra government withdrew a controversial circular to the effect that strong criticism of public servants could attract the charge of sedition. In 2012, cartoonist Aseem Trivedi was booked for sedition for a cartoon that highlighted corruption. In Meerut last year, the police initially invoked Section 124A, but later dropped it, against a group of Kashmiri students for, of all things, cheering the Pakistan team during a cricket telecast. Given its repeated misuse, it is time this unwanted, outdated, pre-colonial provision was jettisoned altogether.
Source: The Hindu, 4-11-2015
Syrian migrant crisis: The need for broad cooperation
A global security crisis of historic proportions is raging in the Middle East, and spreading by the day, as millions of refugees flee Syria and Iraq. The crisis is now affecting not just all of Syria’s immediate neighbours, straining their resources and exacerbating social and ethnic tensions; it now directly involves all of the current permanent members of the Security Council except China. It is time for all would-be permanent members of the United Nations Security Council – namely, Germany, India, Japan, Brazil, and Egypt – to step up.
The desire for a political settlement that could end the Syrian civil war is palpable; but just what that settlement would look like remains open to debate – or to further conflict. Indeed, Russia and the United States are circling each other like boxers before the contest actually begins, supporting different factions and trying to ensure that their allies in the multi-sided conflict are advancing, or at least holding ground.
The need for broad cooperation – and the support of the entire UN Security Council – is apparent. That is why US Secretary of State John Kerry is talking to the Russians, the Saudis, and the Turks to build support for a new round of international talks. And the UN and Arab League’s special envoy to Syria, Staffan de Mistura, has created a set of working groups, chaired by Europeans, to “create a framework for concrete talks between Syria’s government and opposition .”
In enabling a peace deal, a coalition of countries that are not yet directly involved in the crisis could be very helpful. Such a coalition – involving, say, Germany, India, Japan, Brazil, and Egypt – could increase the pressure on President Bashar al-Assad to negotiate by convincing Russian President Vladimir Putin that the world is watching his deal-making efforts closely and that his prestige is on the line.
Moreover, coalition members could convince other relevant regional players to push for a lasting peace. Germany, for example, already recognizes that the only long-term solution to Europe’s refugee influx lies in eliminating the need to flee, and has begun to make some moves. Foreign minister Frank-Walter Steinmeier travelled to Turkey in September to help broker a deal on keeping refugees in Turkey, in exchange for restarting talks on Turkish accession to the European Union. A leading German foreign policy expert, Volker Perthes , is chairing one of de Mistura’s working groups.
The other countries have yet to take action. But they, too, have plenty of motivation – and plenty to offer.
India – as well as Pakistan – has a great deal to gain from strengthening Southwest Asian trade, energy, and investment ties. Since the signing of the Iran nuclear deal, India has been contemplating renewing the plan for an Iran-Pakistan-India gas pipeline, with the participation of China and Russia. But that will be impossible without a settlement in Syria and a decision by Iran to stop supporting Hezbollah.
India has a strong relationship with Iran, underpinned by long-standing cultural, social, political, and economic ties, with India now funding an overhaul of the Iranian port of Chabahar, which will give it direct access to Afghanistan. This places India in a strong position to push Iran to put pressure on Assad. Likewise, India can leverage its relationship with Russia – it remains a major importer of Russian arms – to help drive progress.
Japan’s potential contribution also involves Iran, with which Japan has lately been pursuing a closer relationship – not least because Japan needs Iranian oil and gas. Earlier this month in Tehran, the Japanese and Iranian foreign ministers agreed to begin negotiations on a bilateral investment treaty. Japan also wants to speed up implementation of the Iran nuclear deal, so that it can take advantage of the business opportunities that will result when economic sanctions on the Islamic Republic are lifted.
But if Iran is truly to rejoin the international community, it must play a constructive role in its region. Japan, which now aspires to enhance its own role on the world stage, must not shy away from making that clear. A bonus here is that Japanese and Indian interest in the Syrian peace process could spur China to play an active role in reaching, rather than blocking, a solution.
Brazil, despite confronting plenty of domestic problems right now, is also in a position to help. Not only does it have substantial ties with Russia; it is also linked to Turkey, exemplified by the two countries’ 2010 effort to broker a deal with Iran over its nuclear program.
Moreover, in 2011, Brazil put forward a concept paper at the UN outlining how countries seeking to implement the “responsibility to protect” doctrine should behave. With the Syrian government – through its murder of tens of thousands of civilians with barrel bombs and poison gas – having more than fulfilled the criteria for triggering the international community’s obligation to intervene, Brazil could suggest what an intervention that reflected the principle of “responsibility while protecting” might look like.
Finally, Egypt – a perennial candidate for a permanent or rotating African seat in a reformed Security Council – has important relationships throughout the region, particularly with Saudi Arabia and other Gulf countries that are directly supporting some Syrian opposition groups. The government of Egyptian President Abdel Fattah el-Sisi, who has emphasized the need for a comprehensive political settlement, is tacitly supporting Assad, but is also deeply concerned about the Islamic State. Egyptian diplomats are thus excellent candidates to exert pressure for compromise.
Many of these countries’ governments might say that the Syrian conflict is too far away to affect them directly. But global leadership does not simply mean enjoying the prestige that accompanies presumed power. The UN Charter requires countries to use their power to identify “any threat to the peace, breach of the peace, or act of aggression,” and to decide which measures must be taken “to maintain or restore international peace and security.” The Syrian crisis is a major “threat to the peace,” and the world must address it together.
Anne-Marie Slaughter is the President and CEO of New America. Her latest book is ‘Unfinished Business: Women Men Work Family.’
Source: Hindustan Times, 4-11-2015
A culture of tolerance can be a binding force
Apart from its scenic and strategic geography and Article 370, Kashmir, till 1990, also had the unique distinction of cultural tolerance. Much against the widespread impression that was sought to be created when independent legislator Engineer Rashid hosted a beef party to defy the ban and prohibition, the fact is that most Kashmiri Muslims do not eat beef.
No wonder Rashid reportedly served mutton at his ‘beef party’, apparently knowing well that not many people would eat beef, which would have defeated his purpose of making a religio-political statement.
Having lived in Kashmir for 19 years, until being forced out during the onset of the Islamic insurgency in 1990, I can say that Kashmiri Muslims, despite being in an overwhelming majority, had due respect for the minority sentiments (in Kashmir, as also in the state of Jammu and Kashmir, the Muslims are in a majority).
Beef never made it to the routine course. It was consumed, that too rarely, during marriages or Id-ul-Azha. Only the marginalised and underprivileged sections of society would slaughter a calf or two on occasions as they could not afford either sheep or lamb.
In our predominantly Muslim neighbourhood when someone would slaughter a calf, he would do it in a clandestine manner, more out of respect for our sentiments than for fear of the law.
During Muslim marriages, there would be a separate kitchen for the Hindu guests managed by Hindu cooks. And the same practice was followed in Hindu marriages, sometimes, even for a single guest.
Food habits are driven more by culture than religion. This is the reason why not many Kashmiri Muslims eat beef and not many Kashmiri Hindus eat pork, as it was never a part of their culture.
Even now, when Kashmiri society is considered to have been more radicalised, people strongly resist eating beef.
One of my Kashmiri Muslim friends recently refused to eat beef served by a Hindu secularist as he had never eaten beef in his life. The same friend was warned by his mother against eating or bringing beef at home.
Our daily lives are determined more by culture and less by religion. But the moment these roles are reversed and religion is imposed as culture, the entire social edifice threatens to collapse.
Culture, unlike religion, is a binding force, and the culture of tolerance is the strongest at that. This is what Kashmir taught me and it is something I will always remember with nostalgia.
(Vimal Sumbly is a former journalist based in Punjab. The views expressed are personal)
Source: Hindustan Times, 4-11-2015
Be Friends With Self
SWAMI KRIYANANDA
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When Jesus said, “The kingdom of God is within,“ what He meant was that heaven itself would be a disappointment to restless, worldly people. If a person has no true joy in his heart, he will not find true joy outside, though he be in heaven itself and in the company of angels. Heaven must be experienced right here, right now, within ourselves, if we are to experience it ever.A stream extending itself too far into a desert will go dry .Man too dries up inside, spiritually and emotionally , when he extends himself too far in his search for outward pleasures.The wellspring of enjoyment lies in his inner Self. What he is, inwardly , that he will find without. The more truly he lives in himself, the more rewarding will his outer life be, also.
A friend, young and restless, once planned to go around India to visit various saints. This might have been a laudable purpose, except that, so far, this boy had put forth very little effort to improve himself; his real hope was to find someone who would consent to do all his spiritual work for him.(I could imagine him rushing from ashram to ashram, collecting blessings like pine cones!) I said to him, “If you take a thimble to the ocean, you'll only get a thimbleful of water.No doubt those great saints have much to give you. But what of your own capacity to receive what they give?“ If you would change the wor ld for the better, first of all, be better yourself. You are the greatest responsibility the universe has placed in your hands.
A friend, young and restless, once planned to go around India to visit various saints. This might have been a laudable purpose, except that, so far, this boy had put forth very little effort to improve himself; his real hope was to find someone who would consent to do all his spiritual work for him.(I could imagine him rushing from ashram to ashram, collecting blessings like pine cones!) I said to him, “If you take a thimble to the ocean, you'll only get a thimbleful of water.No doubt those great saints have much to give you. But what of your own capacity to receive what they give?“ If you would change the wor ld for the better, first of all, be better yourself. You are the greatest responsibility the universe has placed in your hands.
Pick Up Stones And Turn Them Into Jewels
Janina Gomes
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In my growing up years, John Bunyan's Pilgrim's Progress left a mark on me. The book became a challenge for me. Even if i forgot all about the book in the intervening years, the message remained that i should learn to walk unencumbered in life.It is not easy to shed extra baggage, even if it weighs us down. Unpleasant memories of the past can become a burden and we would be better off without it. When weighed down by burdensome memories we could try not to pay them too much of attention.
I often have a recurring image in my mind of a pilgrim walking the lonely road to inner freedom. That image inspires me when i feel the road ahead is too long. How often have i allowed all kinds of encumbrances come in the way of just walking ahead! One such big encumbrance has been that i have given too much importance to those who view me negatively and who can never see anything good in me.Initially, i was discouraged and let the perceptions of others define me. But, deep down, in the core of my being, a voice would insist that these perceptions were not the real me; that what others chose to think of me was not my problem.
My own measure of evaluating myself was a pilgrim's progress. The pilgrim never starts with having it all. The pilgrim often starts with a modest set of baggage. But as she proceeds in life, the pilgrim collects things, memories, experiences along the way some of these are helpful to the upward climb and growth; others just come in the way .
The pilgrim's goal is never perfection, but the ability to use all that happens as steppingstones to a more enlightened way of life. The backdrop therefore is never one that is only hunky dory, but one where there is movement accompanied by struggle, pain and lapses of understanding.
The pilgrim's progress reaches no final cut-off date or time. The journey continues and the way ahead gets easier, because we choose not to listen to negative voices. We may never inherit a hostile free world. But, the pilgrim acquires the ability to pick up stones and turn them into jewels.
We have to learn to accept and transform circumstances.We have mountains to climb, rivers to cross and valleys and fjords to navigate, but the pilgrim's steps do not falter.And if they do, they are steadied by time and experience.
We are sometimes encouraged to keep daily logbooks in which we record our daily lives. This habit may help us as pilgrims to reflect and introspect on our experiences, turning them to our good. At the end of our earthly lives, we will not close the chapter, but continue the journey. Pilgrims must of course sometimes reach a destination. That is often described in tradition as heaven. The invitation is for all, but only some accept it. Others choose to travel with too much baggage of hate, animosity, vengefulness and anger. They cannot even get started on the journey.
Learning to walk unencumbered is the pilgrim's task. If we try it, we will find that we can move ahead and walk freely, less weighed down by baggage.We were meant to travel light. And so, as i am homeward bound, i shed more and more baggage on the way . I don't allow people's pre-judgments to stall me. I have my eye on the path ahead and the destination.
I often have a recurring image in my mind of a pilgrim walking the lonely road to inner freedom. That image inspires me when i feel the road ahead is too long. How often have i allowed all kinds of encumbrances come in the way of just walking ahead! One such big encumbrance has been that i have given too much importance to those who view me negatively and who can never see anything good in me.Initially, i was discouraged and let the perceptions of others define me. But, deep down, in the core of my being, a voice would insist that these perceptions were not the real me; that what others chose to think of me was not my problem.
My own measure of evaluating myself was a pilgrim's progress. The pilgrim never starts with having it all. The pilgrim often starts with a modest set of baggage. But as she proceeds in life, the pilgrim collects things, memories, experiences along the way some of these are helpful to the upward climb and growth; others just come in the way .
The pilgrim's goal is never perfection, but the ability to use all that happens as steppingstones to a more enlightened way of life. The backdrop therefore is never one that is only hunky dory, but one where there is movement accompanied by struggle, pain and lapses of understanding.
The pilgrim's progress reaches no final cut-off date or time. The journey continues and the way ahead gets easier, because we choose not to listen to negative voices. We may never inherit a hostile free world. But, the pilgrim acquires the ability to pick up stones and turn them into jewels.
We have to learn to accept and transform circumstances.We have mountains to climb, rivers to cross and valleys and fjords to navigate, but the pilgrim's steps do not falter.And if they do, they are steadied by time and experience.
We are sometimes encouraged to keep daily logbooks in which we record our daily lives. This habit may help us as pilgrims to reflect and introspect on our experiences, turning them to our good. At the end of our earthly lives, we will not close the chapter, but continue the journey. Pilgrims must of course sometimes reach a destination. That is often described in tradition as heaven. The invitation is for all, but only some accept it. Others choose to travel with too much baggage of hate, animosity, vengefulness and anger. They cannot even get started on the journey.
Learning to walk unencumbered is the pilgrim's task. If we try it, we will find that we can move ahead and walk freely, less weighed down by baggage.We were meant to travel light. And so, as i am homeward bound, i shed more and more baggage on the way . I don't allow people's pre-judgments to stall me. I have my eye on the path ahead and the destination.
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