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Transfer of judges: Need for a transparent policy On Record |
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Free power
to farmers at what cost?
Profile Reflections Diversities — Delhi Letter
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Transfer of judges: Need for a transparent policy THE Patna High Court got a new Chief Justice after the Supreme Court asked the Centre to make its stand on the appointment of the new Chief Justice clear. A petition was filed challenging the continuation of Justice Nagendra Rai as the acting Chief Justice for over a year which negated the government’s policy of having Chief Justices from outside the state. How could the Centre stall the appointment of the new Chief Justice? This brings to the fore the issue of transfer of judges. Article 222 provides that the President may, after consultation with the CJI, transfer a judge from one High Court to another. But it was not generally resorted to. There was no specific provision in the Government of India Act, 1935, for the transfer of judges. The supersession of three Supreme Court judges in 1973 jolted the independence of the judiciary. The next CJI was also appointed superseding Justice H. R. Khanna during the Emergency. Justice Rajinder Sachar and Justice S. R. Rangarajan were transferred from the Delhi High Court to Rajasthan and Guwahati respectively. In Union of India v. Sankalchand (1977), Justice Y. V. Chandrachud ruled that a judge could be transferred in the public interest and not for the purpose of providing the executive with a weapon to punish a judge. High Court Judges are government servants in the ordinary significance of that expression and hence the government has to follow the procedure laid down in the Constitution with regard to their appointment and transfer. It cannot take any decision unilaterally and judges can be transferred only in consultation with the CJI without which it will be unconstitutional. Transfer of High Court judges became a normal affair after the Supreme Court upheld the Union Law Minister’s circular dated March 18, 1981. It read thus: “It has repeatedly been suggested by several bodies and forums including the States Reorganisation Commission, the Law Commission and various Bar Associations to further national integration and to combat narrow parochial tendencies bred by caste, kinship and other local links and affiliations, one third of the judges of High Court should as far as possible be from outside the state in which the High Court is situated…” Chief Justice K. B. N. Singh of the Patna High Court was transferred to Madras in 1981 as there were charges of nepotism against him. He challenged it as it was the first case of transfer of a CJ against his wish. He filed an affidavit against Justice Y. V. Chandrachud, then CJI. In S. P. Gupta v. President of India (1982), a seven-judge bench held his transfer valid, but added that the personal inconvenience and the language problem should be taken into consideration. However, the SC left the final power of appointment and transfer of judges in the hands of the executive. Justices A. C. Gupta, V. D. Tulzapurkar and R. S. Pathak ruled that primacy should be given to the CJI’s opinion but they were overruled by Justices P. N. Bhagwati, D. A. Desai, S. M. F. Ali and E. S. Venkataramiah. The scenario changed after 1993 when the SC in Advocates-on-Record v. Union of India and others (also known as the Second S. P. Gupta case) decided that the recommendation of the collegium, comprising the CJI and two senior most SC judges, was binding on the President. Major political parties termed it as a blatant negation of the spirit of the Constitution. However, the SC’s supremacy in the matter remains undiluted. In the Second S. P. Gupta case, Justice J. S. Verma, writing for the majority, ruled that the power of transfer of judges could be exercised only in the public interest, i.e. for promoting better administration of justice throughout the country. He also laid down guidelines to be followed. It was clarified that the transfer was not justiciable on any ground, including that of bias, except when it was done without the CJI’s recommendation. A three-judge SC bench reiterated it in K. Ashok Reddy v. Government of India (1994). It ruled that a decision made by the collective exercise of several judges on objective criteria was an in-built check against arbitrariness and bias, and so no judicial review was required. In matters of transfer of judges, the CJI and other judges perform the administrative function, not judicial. Thus, excluding the scope of judicial review of administrative decisions militates against the basic structure of the Constitution as the SC itself has decided in several cases that judicial review is part of the basic feature. Justice B. L. Hansaria finds it atrocious: “The position, therefore, is that a High Court Judge who has (been) transferred has no remedy available to him. His position is thus worse than a Grade IV Government employee who can challenge his transfer order on the ground of bias.” There are instances when not only political parties but the judges themselves have alleged mala fide against their transfer. An Allahabad HC Judge resigned in protest against his transfer to Jharkhand. Another judge was transferred only three months prior to his superannuation. On December 16, 1999, Justice G. Palsikar of Rajasthan HC appeared in the court with his own petition. Challenging his own transfer, he said that it was unjust and discriminatory. Article 222 had not drawn much public attention before transfers on a big scale were done in 1994 keeping in view the policy of having one-third judges in every High Court from outside. Justice Venkatachaliah formed a Peers’ Committee to give effect to such transfers. As the exercise was criticised, such large-scale transfers were not repeated. A few years after these transfers, a sitting CJI told this writer that there was a need to review the policy of transfer as it sent a message that a judge who has been transferred is inefficient or tainted and there is also a protest from the High Court where he is transferred why he was being dumped there. The policy of having one-third judges from outside cannot be faulted especially when there are reports that there is a tacit understanding among judges to promote the wards of one another whose annual incomes run into crores though they are pretty junior. But the policy should be well-defined and transparent and should be strictly adhered to so that no one feels victimised.
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On Record
Professor Deepak Pental, the new Vice-Chancellor of Delhi University, is an eminent Professor of Genetics. He has earned recognition for his work in the field of breeding crop plants by conventional and molecular methods. An alumnus of Punjab University, Chandigarh, he is an elected member of the National Academy of Agricultural Sciences, the National Academy of Sciences and the Indian National Science Academy. He has done extensive work on the practical implications in crops like mustard, cotton and tomato. In an interview to The Sunday Tribune, Prof Pental talks of his vision for the university. Excerpts: Q: How do you plan to bring the university at par with the best universities of the world? A:
I would like to first strengthen the library and laboratory systems. We have already introduced significant changes like the revised courses at the undergraduate level. Their successful implementation will indeed be a challenge. There is need for overall improvement in research and education. Good education and good research go hand in hand; some of the best known universities in the world have an excellent research profile. Then, we will focus on development of course materials. In terms of research, the emphasis would be on sprucing the libraries, laboratories and allowing access to data banks all over the world. Our students and faculty should be able to make full use of the information available on any subject through Internet. We look forward to improvement in educational standards. Q: What is your opinion about the resentment among teachers and students over the hurried introduction of the revised curriculum and reforms like internal assessment? A: I am not aware of any resentment. These changes were long overdue. Why should someone with a first division be given a degree that reads Pass Course? The BA Pass Course should have been revamped years ago. How long can we continue teaching things that are not interesting or relevant? As regards early or hurried implementation of these courses, how long should we have waited? When is the right time? There is a need to change the mindset. Internal assessment in itself has given the teachers and students an opportunity to connect and it helps in bridging gaps. Moreover, it involves transparency and both teachers and students become responsible and accountable. Yet, if there are concerns about changes that have been proposed after much effort, then we can sit together and work out solutions. Q: Given your interest in research, do you propose to set up new programmes or departments? A: We have a number of research areas and in many spheres we are doing very well. Research papers from our colleagues and scholars are being published in journals of international repute. The idea right now is not to expand, but to strengthen. We need to consolidate what we have and innovate. Besides, there is a new trend emerging. The colleges are offering add on courses along with the main course of study. This way, students learn more. In Life Sciences, for instance, we are doing well. The plant molecular department, working on the rice genome, is doing commendable work. We need to encourage departments and projects like this. Q: Do you think students are not keen to go for higher studies and research? A: Research is time consuming. The economy is booming in sectors like banking, IT, management and BPOs. Naturally, there is a drift towards these options rather than for research. Our aim should be to think of modules that cost less, but produce maximum knowledge. We are facing the situation similar to most developing nations, where research and development need uplift. We need to entice good students towards research. Our science curriculum is unimaginative, the facilities in laboratories not too good and there is also parental pressure. All parents want their children to settle down fast. We need to increase the quantum of grants and encourage competitive grant system for universities. Instead of a combined grant, let there be grants for individual departments, because collective grants do not cover expenses like repair and replenishing. Q: How will the IT sector address issues concerning India’s growth? A:
IT can contribute to national success tremendously. Any sector can work for the nation by first realising what its basic requirements are. For us where a majority of population lives in rural areas, everyday information needs to be relayed and this is where IT can lend a helping hand. They could begin by helping people get basic information like weather forecasting, information to farmers on seed kinds and quality, consumer rights, where and how people can get their work done like registering births and deaths. India’s potential in the IT sector has been recognised abroad, but it should help bridge the divide within the country. This can be done with valuable inputs from the recently set up Knowledge Commission.
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Free power
to farmers at what cost? THE Prakash Singh Badal government in Punjab gave free power to farmers for 60 months, but lost power in the 2002 Assembly elections. What feat can the Amarinder Singh government achieve by giving free power for just 16 months? The cost of free power far exceeds its benefits. There will be no incentive to save power. Even if a farmer switches off the tube well and the accompanying light bulb at the tube well hutment, he will go in for the water-guzzling paddy cultivation as no other kharif crop is remunerative. Small farmers, unfortunately, opt for similar cropping pattern. When the aquifer gets exhausted, the farmer has to replace the water pump by some high-powered submersible devise by spending over Rs 1 lakh to draw more water from the mother earth. How long would the new pump remain submerged in water, God alone knows. There is no harm in exporting agricultural commodities but for cultivation of 1 kg of rice, we require 1000 litres of water. Aren’t we exporting water for nothing, that too, at exorbitant social cost? Technically, water may be termed as “flow” resource but sustainability issues don’t permit this type of classification. Of the total agricultural exports, the share of rice is 13 per cent, the value being US $ 456.3 million for 2004-05, next only to marine products. Rice is not Punjabi’s staple food; the state’s contribution to the Central pool has always hovered around 50 per cent. The Punjab government says it has funds following the successful implementation of VAT. But has it reckoned the refunds after which the increase in revenue on account of VAT may take a dip? Trade-offs are certain in a developing economy; we can’t avoid them. Giving free power to farmers will be a myopic attempt. But earmarking Rs 439 crore (the additional burden on the state’s coffers due to free power) to rural development programmes will be a rational and realistic option. Comparatively, rural development programmes will have long gestation vis-à-vis populist measures and thus may not help any political party including the Congress. But there is an alternative. Punjab can announce effective remunerative bonus per quintal of pulse and oilseeds in addition to the effective MSP announced by the Centre. For this, only one fourth of Rs 439 crore is sufficient to help farmers cultivate oilseeds and pulses in the coming rabi and kharif seasons. In the subsequent seasons, more funds to this project may be granted. Procurement of pulses was earlier mooted when Markfed was selected as the nodal agency. Agriculture is too serious a matter to be used for political whims. Let’s empower farmers instead of giving them free power. |
Profile He also gave impetus to the commercialisation of India’s space capabilities through international marketing of IRS data and a major multi-million dollar contract with INTELSAT for leasing INSAT transponders. Aptly, Prime Minister Manmohan Singh honoured last week Kasturirangan with the prestigious award, named after Aryabhata, as a mark of recognition of his life-time contribution to promotion of astronautics. Fittingly, India’s first satellite too was named “Aryabhata”. India’s “moon mission” continues to be yet another dream project of ISRO and Dr Kasturirangan even though he no longer heads the space research organisation. The Prime Minister too looks forward to the successful launch of the unmanned moon shot from this centre, using Polar Satellite Launch Vehicle, ‘Chandrayan-I’. The Prime Minister too has a dream for India’s research programme. He hopes the scientific community to embark on more ambitious plans of exploring the universe. Two years back, Dr Kasturirangan had made a sensational announcement that India was launching a Moon exploration programme; the expectation was that first Indian would march on moon surface in the coming years. India has all the necessary means available to launch a lunar mission. Critics wonder if it is worthwhile spending so much money on Moon mission. In the 21st century, Moon does not represent an object of predominant interest. Heaps of data have been accumulated about the Moon and Moon ground fragments are on display in various museums throughout the world. Indispensable as he was, Dr Kasturirangan got numerous extensions as ISRO Chief. He retired two years back. He was nominated to the Rajya Sabha by President A.P.J. Abdul Kalam. His long years of experience in space science is now being utilised by Bangalore’s National Institute of Advanced Studies which he heads. As an astrophysicist, 65-year-old Kasturirangan’s interest includes research in high energy X-ray and gamma ray astronomy as well as optical astronomy. He has made significant contribution to studies of Cosmic-ray sources, celestial gamma-ray and effect of cosmic X-ray in the lower atmosphere. The success of space research programmes at ISRO has been attributed to what his admirers call “Kasturirangan magic”. Indeed, his important contribution has been positioning India’s space industry as one of the six major programmes in the world. It is considered a giant step forward for a nation where bullock-drawn ploughs heavily outnumber tractors and where 38 per cent of the population is illiterate. Subsequently, the government announced a major political policy shift, gradually handing over the once highly protectionist industry to the private sector. One of Kasturirangan’s dream has been to begin educating this mostly illiterate nation by broadcasting educational programmes. Television and radio will play a major role in achieving this objective. As Director of ISRO from 1990, he oversaw the development of the indigenous second-generation communication satellites, INSAT-2A, 2B and 2C. Born on October 24, 1940 at Ernakulam in Kerala, Dr Kasturirangan was a brilliant student. He took his Bachelor of Science with Honours and Master of Science degree in Physics and a Doctorate in High Energy Astronomy. In his long research career, he made fundamental contribution in X-ray and Gamma-Ray Astronomy, effect of X-Ray in lower atmosphere, in satellite instrumentation as well as optical astronomy. After joining ISRO in 1971, he played key roles in programmes such as “Bhaskara” and Indian Remote Sensing Satellites (IRS) as well as in the building of satellite capabilities. He won several outstanding awards including Padma Shri, Padma Bhushan and Shanti Swarup Bhatnagar Award in
Engineering.
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Reflections THIS fortnight I have two experiences to share. Both occupy a unique position in the social fabric of our society. The first one concerns those who are getting ready to “govern” or “administer” the country, the other the “bonded” who need to be liberated and cared for! Who are they both? You will know as you read on… The first one: An encounter with the present batch of over 300 young probationers, men and women of the IAS, IPS, IFS, IRS, and all other All India Civil Services, currently under training in the Lal Bahadur Shastri National Academy of Administration in Mussoorie. I was invited to address this group at their Foundation Course on Leadership. However, before I got to Mussoorie to speak with the officer cadets, I had six hours to myself travelling by the Shatabdi Express from Delhi to Dehradun. The journey gave me the time and space to reflect for the interaction ahead. Questions started to swell within me while I envisaged this assembly of 300+ young men and women who had arrived this far after a grueling process of countrywide selection conducted annually by the Union Public Service Commission. Inwardly, I had started to ask from these new entrants some fundamental questions. I was surprised at how long the list had become. I began my address by asking the young and the brightest if they realised they were the “best” which the current national examination had produced. And for the rest of their lives they will have to prove the result right! Also did they know that they were the very few? Millions take the exam but just the few hundred make it to the Academy. Was it also not a case of their prayers being answered? Were not huge costs involved? All invested by parents, teachers, friends, well wishers and the country as a whole? Obviously, there were hopes and aspirations linked with all the investments. Now here in the Academy they were being additionally invested in to deliver for those from whom national resources were diverted. “You were already a privileged class? You will have what others merely dream to get”, I told them. Salary, house, transport, staff to support, health care, travel, status! Once at work, experience shows you begin as a demanding class seeking better office? Bigger house? Higher position? Selective postings? Additional personal staff? Expensive transport? More dowry, if you are a man? Will you also prioritise work content? Will the people waiting for you be important? Will you mind dirtying your shoes walking the villages and the slums? In case your work demands? I ended up asking and left them thinking! I had requested them to keep notes of these questions so that they could return to them as they go along. They may choose to ignore, silence or forget but these questions will come to haunt them. That was the purpose! I was amazed at their response. Almost all had written down these thoughts. Now they wanted to have my personal signatures on this. They formed a fairly orderly queue and I signed on the pages one by one. While getting me to do this, many touched my feet and I do not know why? I had never ever seen this humility before here in this “Temple of Learning”. Many came up and said they will prove to the country that they were really the best! To give this day an easy recall we decided to call this encounter 9/14, for it was September the 14th. The second encounter: Was just a simple meeting with the Domestic Workers’ Union. These were all women from the Jharkhand Tribal Areas. These women came/brought to Delhi to work as domestic help (hopefully). They were hundreds of them present. They were celebrating their annual festival of karam. I was informed that there were nearly a hundred thousand of them in Delhi itself. But not known where all, hence beyond reach. During my interaction with them I learnt with horror many aspects of their work life in Delhi. These women have little or denied access to telephones or messages coming from their loved ones in remote areas: They are not encouraged by their employees to read newspapers or watch and hear the television for news or otherwise. They have no rest hours. They do not personally possess a copy of their contract with their agent or employer. They have no clue what their rights are. They do not get their salary in time. They have to part with one month salary for the agent or the broker who transports them. Their complaints of harassment, including sexual, are linked to the degree of sensitivity of the respective police officers receiving the complaint, if ever. They had no idea of which Government Hospital was closest to them in case of need. They also did not know there was a women’s helpline 1091. So much for our publicity campaigns, ‘With You for You Always’. I am convinced that if the commitment expressed by the “Administrators of today and tomorrow” is fulfilled there would be no ‘bonded’. These thousands of women would not be trafficked and would not leave their homes in the first place. While this takes time, Navjyoti, my NGO, has decided to fully back them up. Their issues cannot wait! So much for these two encounters. Plenty to
reflect…!
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Diversities — Delhi Letter September 21 is UN International Day of Peace. That evening, United Nations Secretary-General Kofi Annan’s message was read out in New Delhi by Shalini Dewan, who is heading the United Nations Information Centre here. Also present was Vijay Amrithraj who is now better known as the “UN Messenger of Peace”. Apparently, he had especially flown for the occasion. Yes, he also gave a short and crisp speech on the usual lines. No, there was no mention in either of the two speeches what has been happening the world over. How nations are being intruded into with the UN keeping almost mum. The UN has been reduced to such a hopeless position that it cannot take on nor comment on the activities of the USA, the so-called super power. If the UN has become so helplessly weak, mere speeches and homilies sound like hollow words rendered for the sake of formalities. At this function, I craned my neck to see how many VVIPs were present (or absent). The front row had former politician Vasant Sathe (former politician, but then, politicians have the knack of never really retiring). I overheard Amrithraj telling him, “Sir, you haven’t changed!”. To this, Vasant Sathe responded by a tremendous chuckle! No, I couldn’t really spot any of the present-day politicians. And from the diplomatic community, the one familiar face was that of a well known diplomat from the Somali Embassy in New Delhi. Talks and seminars on Akbar This week, at the concluding day of the three-day conference of the International Commission for Historical Demography (ICHD), the Chairman of the Indian Council of Historical Research, Professor D.N. Tripathi made this rather pleasant announcement. The ICHR will host and co-host a series of talks and seminars and meets on Mughal Emperor Akbar. During the short tea break, I asked him the “whys” on this special focus on Akbar. Prof Tripathi said that he would like as many educational institutions so that students can participate in the series of programmes. A forum for the creative This brings me to write that there isn’t any shortage of platforms to let go of your feeling and thoughts and whatever has been lying curled up or else churning inside you. Last week I saw two short documentaries, both screened at the Alliance Francaise and both made by young film makers who would just let go of any apprehensions to give that final nod to their thoughts and emotional flow. I was particularly impressed by the documentary made by the young film maker Samina Mishra, where she focuses on today’s times and what does it mean to belong to one particular community, in sheer emotional and psychological terms. There is a subtle touch when a Muslim marries a non-Muslim. It was a very sleek production, made with a great level of sensitivity. Apparently, she had put in emotions into making it as the story revolved around herself, her family and the neighbourhood together with the settings at large. Incidentally, Samina Mishra is the great granddaughter of former President Dr Zakir Husain. This week, yet another young artist Saba Hasan has got another forum. This artist and activist is in focus with her solo exhibition, The Book of Disquiet. It will once again focus on the everyday struggles and realities that the human being faces — whether he is a citizen of the Kashmir valley or is living in the tribal belt of Madhya Pradesh. Meghna Gulzar’s new film
Just got the news that Meghna Gulzar is all set to direct a new film, titled Honeymoon. This got me thinking of the rather offbeat interview I had this summer with her father, the well-known writer and film maker, Gulzar. Whilst we got talking of his marriage and honeymoon, I had asked him where did he take his wife Rakhee for the honeymoon. He smiled in great abundance and said, “Srinagar. We had gone to Kashmir for the honeymoon and I often tease our daughter Meghna that she was conceived there”. With that, Gulzar got talking about the Valley and the tensions around. He is one of those who visits the valley regularly and seemed well aware of the tensions and the havoc around. Tears rolled down his cheeks when he recounted the decay. “The particular place where we always stay whilst visiting Srinagar has two huge chinar trees in its compound. I had named the two trees Begum and Badshah. And today I see these two trees drooping in sorrow.”
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Discrimination, Self-knowledge, non-delusion, forgiveness, truthfulness, control, over mind and senses, tranquility, pleasure, birth, death, fear, fearlessness, nonviolence, equanimity, contentment, austerity, charity, fame, disgrace, all these diverse qualities in human beings arise from God alone. —The Mahabharata If you spend all time worrying about heaven, when will you think about your earthy duties. Performed well and lovingly, these duties assure your place on height. These will all reflect in your life’s account. —The Buddha Say, “ I do not tell you I have the treasure of God; and I do not know the unseen. And I do not tell you that I am an angel. I only follow what was revealed to me.” Say, “Are the blind and the seeing equal? So will you not consider?” —Book of quotations on Islam
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IT may not be out of place to call Dr Krishnaswamy Swamy Kasturirangan “Aryabhata” of the 21st century. Aryabhata was the first of the great astronomers of the classical age of India. He was born in 476 AD. He gave the world the digit ‘0’ (Zero) for which he became immortal. He was first to deduce that the earth is round and that it has its axis, creating day. He declared that moon is dark and shines only because of sunlight. Kasturirangan steered the Indian Space programme gloriously for about a decade as Chairman of the Indian Space Research Organisation (ISRO). Under his leadership, the space programme witnessed major milestones including successful launching of India’s prestigious Polar Satellite Launch Vehicle (PSLV), which orbited IRS-P2, IRS-P3, IRD-ID, the world’s best civilian remote sensing satellite.