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Saluting
the Sardar Justice
delayed |
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Prickly
challenge
Taking
stock of PM’s visit
When
Diwali can lead to diwala
Let the
best person be Judge
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Justice delayed Almost
three decades later and tucked behind the assassination of former Prime Minister Indira Gandhi, several hundred families continue to await justice for what is one of the lowest points in India's post-Independence history; the organised killing of hundreds of Sikhs across Delhi and some Congress-ruled states following the ghastly assassination by two of her Sikh bodyguards this day 29 years ago in 1984. The worst affected was Delhi, the very capital of the country administered as it was then by the Union Government headed by Rajiv Gandhi and his Congress party. Referred variously to as anti-Sikh riots, pogrom, carnage, massacre and even genocide, the brutal revenge killings were organised by Congress leaders, some of them prominent names in the Grand Old Party, with some assistance from the Delhi Police which either turned a blind eye or, at best, watched indifferently while mobs swarmed across Sikh neighbourhoods killing, lynching and burning alive Sikhs leaving behind a trail of widowed women, orphaned children, grieving parents, and burnt, damaged and looted property over four long days before the Army was called in to restore order. The official death toll is 2,733 in Delhi and about 4,000 overall. Unofficial figures are much higher as are the number of those who were injured. What cannot be quantified or erased, respectively, is the effect on the psyche and the memories it has generated. Which is why this time every year that black moment in contemporary history returns to haunt the nation with protests in India and overseas. Since that terrifying incident, as many as 10 commissions and committees have been appointed by various governments at the Centre belonging to every political dispensation. Some accused have been convicted and sentenced. But the prime accused, many of them senior Congress leaders, have either been acquitted or are still awaiting trial. There is a dire need for a closure to this horrific incident. But that will only be possible when those who played a key role in instigating and organising the killings are brought to justice. Else, it will remain a blot on the world's largest democracy that takes pride in its pluralistic society and its history of providing refuge to the persecuted.
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Prickly challenge
There
is no dispute among all parties concerned that stubble burning — putting to flame the straw left in the field after harvesting paddy — is extremely harmful in multiple ways. Pollution of the air in the surrounding area and addition of carbon dioxide in the larger atmosphere are the foremost damage. They may not, however, bother the farmer as much. What needs to concern him, though, is the huge amount of nutrition loss he causes his fields. The carbon, nitrogen and sulphur present in the biomass go up in smoke, when it could have been worked into the soil for the subsequent crop. Micro-organisms useful for crops are scorched. Replacing all this nutrition through fertilisers entails a cost in cash. Why then does a farmer not abstain from this practice? This is a question that needs to be pondered over by the government as well as the farm research establishment. No one would like to violate the law if possible; and burning straw in the fields is often prohibited under district-level orders. Farmers are advised to bring the straw to biomass-burning power plants set up for the purpose. This means the straw has to be first closely cropped, and then transported to a collection site. That will have a cost and require special machines, which are yet not commonly available. Alternatives of desiccating and ploughing the straw into the soil have similar challenges. These need to be addressed to a workable level, keeping in mind the financial capacity and education level of the farmer. There is obviously yet a gap. While biomass-based power plants are one solution, they face the limitation of collecting and holding a huge stock of dry straw. Also, the nutrition contained in the straw is still lost. The ideal solution would be to retain the straw in the field by introducing and fine-tuning practices. ‘Happy Seeder’, a device designed to sow the succeeding wheat crop with the paddy straw still in the field, has found reasonable success. It helps save water too. Education on this, arranging the finances to provide the numbers required, and continued research to improve the technology should be the primary focus.
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Growing old is mandatory. Growing up is optional. — Chili Davis
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Taking stock of PM’s visit Prime
Minister Manmohan Singh undertook a five-day trip to the major countries of Russia and China on October 20. Though the visit was an annual event, this time it turned out to be a farewell visit as there will be a change of Government after the election next year. The Prime Minister’s discussion with his Russian counterpart Vladimir Putin on the supply of two more nuclear reactors was inconclusive, since the issue of civil liability in the event of accidents in any of the nuclear reactors could not be resolved. The matter will be negotiated further by the officials. However, the ONGC of India and Gazprom of Russia successfully negotiated a 20-year gas deal for supply of gas through pipeline travelling through several West Asian countries to India. The agreement also envisages long term co-operation on the hydrocarbon sector between the two countries. India has also sought Russian support for concluding a Free Trade Agreement between the Customs Union of Russia, Kazakhstan and Belarus. The bi-lateral trade between India and Russia is only $11 billion but both sides stressed that it had risen 25 per cent in the last year despite the adverse global situation. The Russian President also stressed on the quality of Russian trade with India and said that it was a matter of satisfaction and, that it included machinery and equipment. There was also an agreement between two sides to study the possibility of an overland gas pipe line. The positive personal chemistry between Prime Minister Manmohan Singh and Russian President Putin was evident from a Tsar-era gift, the Russian President gave to Dr Manmohan Singh and in the finesse with which they glossed over the failure to link contracts relating to the sale of two more nuclear reactors. On a more important political level, a clear signal was given to Pakistan on its support to Kashmir jihadi groups, India and Russia agreed that “terrorist attacks perpetrated under misleading slogans amounted to undermining the territorial integrity of nations”. Russia was also experiencing jihadi attacks from Chechen rebels for some years in its southern region and could therefore appreciate India’s problems with Pakistan provoking jihadi’s attacks in Kashmir. After concluding his visit to Moscow, Prime Minister Manmohan Singh proceeded to Beijing. The Chinese Prime Minister Wen Jiabao met Prime Minister Manmohan Singh with considerable warmth. Though, India and China failed to resolve the issue of the stapled visa for those hailing from Arunachal Pradesh, there was substantial progress in other areas. The memorandum of understanding speaks about nine deals signed during the visit of Prime Minister Manmohan Singh. Describing his meeting with the Chinese Prime Minister as historic, said Prime Minister Manmohan Singh, “When India and China shake hands, the world notices.” With the Chinese premier standing beside and applauding appreciatively, nine deals were signed. One of them dealt with the dams on the river Brahmaputra and other dams, if they come up in future. The proposal to have a hotline between the military headquarters of the two countries was agreed upon. Another agreement dealt with the setting up of an economic corridor between China and India via Bangladesh and Myanmar. This was described as the revival of the Southern Silk Route. President Xi Jinping hosted a banquet dinner for the Indian premier and said that India and China were looking at a “unique moment” in history, one which belonged to both of them, and that they should “grasp that moment”. The Chinese President also quoted a Chinese proverb saying that “a journey of a thousand miles began with a single step”. The Chinese premier Li Keqiang escorted Prime Minister Manmohan Singh to the Forbidden City in Beijing and guided him to the pavilion named after Chinese Emperor Qianlong. There, Li pointed out a 3,000-year-old Tibetan statue, an artefact from the Pala dynasty which ruled Bengal in the 19th century to underline the deep historical roots of China’s relationship with eastern India. The Indian delegation drew satisfaction from the fact that the Chinese side did not mention the question of Tibet even once. Among the various pacts signed between India and China there was one pertaining to border agreement. The new border agreement, called the new Border Defence Cooperation Agreement (BDCA), may not prevent face-offs between the Indian and Chinese armies along the Line of Actual Control (LAC) but it provides a more robust protocol to defuse confrontation and build trust between the rival armies along the 4,057-km LAC. The pact provides a template to manage and defuse face-offs and also seeks to ensure that local issues are settled between local commanders. Other important CBMs dealt with establishment of a hotline between the two military headquarters to ensure peaceful movements along the Line of Actual Control. The pact holds that both the armies will exercise maximum self-restraint, and if a face-to-face situation develops, they should seek clarification from the other side so that there was no confrontation. In the background of the incident into the Despang valley in the Ladakh sector, the new agreement is a great step forward. Three Indian cities and three of China have been paired under a “sister city” programme that will allow them to connect and learn from each other. New Delhi was paired with Beijing, Bangalore with Chengdu and Kolkata with Kunming. These cities were also being air- linked after negotiation between two countries. In yet another move, India has offered to let Chinese authorities or companies modernise two Indian railway stations as well as improve the movement of freight on the railway lines. It has been revealed that during the discussion between India and China on the border pact, India referred to Pak-based terror. Indian authorities disclosed that China is quietly and steadily cooperating with India on terrorism. China was apprehensive of terror groups originating from the Afghan – Pak border region operating in the Chinese southern fringe areas and disturbing peace. The Indian delegation was happy that the Chinese were clearly in a mood to mend fences and rolled out the red carpet as was seen when Premier Li himself offered and conducted his Indian counterpart to the Forbidden City. A rare honour was extended to the Indian Prime Minister by asking him to address future leaders at the Chinese Communist Party’s Central Party School. Dr Singh spoke of opportunities for cooperation between the two countries, especially in the fields of agriculture, infrastructure and the energy sector. Dr Singh also said that two-way trade was growing to $66 billion and that the growth continued. During his return journey from Beijing on October 24, Prime Minister Manmohan Singh told pressmen who were on board about his disappointment that Pakistan Prime Minister Nawaz Sharif did not keep his word on maintaining peace on the LoC as was agreed upon during the meeting in New York after Prime Minister Manmohan Singh’s address at the UN General
Assembly.
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When Diwali can lead to diwala Diwali
and diwala, except sounding similar, like the imaginary names of a sister and brother in some fairytale meant for kids, needless to say, are actually two entirely different words in Hindi. Diwali to most people celebrating it, means the festival of lights, celebration of victory of good over evil, doing puja, wearing new clothes and, of course, bursting deafening, ear-drum shattering fire crackers. The word diwala has somewhat negative and opposite connotations, and is a rather sad situation to be in. Here by some quirk of fate or one’s own acts of grave financial stupidity, from a reasonably respectable status, one is legally reduced to being a penniless pauper. There is nothing left to pay to all those to whom money is owed. Although one may utilise the situation to mock the lending bankers and others, overall it is quite a thumbs-down situation to be in. The diwala person is quickly disowned and dropped like a piece of red-hot coal, even by the near and dear ones. Could there be any connection between these two? I am not sure. However that does not preclude the possibility that at times one may follow the other in quick succession. Sometimes even a cheerful event like Diwali can actually trigger the ominous and dreaded diwala. The following would illustrate my point. On Diwali night among other rituals, it is a common practice for the devout believers to pray and invite goddess Lakshmi to their homes (preferably for making it her permanent residence), to bestow on them her blessings in the form of riches, money and gold included. Fearlessly they leave the windows and doors of their homes open all night to give the goddess a warm welcome. They then wait patiently for that fortune-changing visit. Thieves and robbers scouting the area for some quick business may find this rare open-door policy very hard to resist. They strike and decamp with all the booty they can lay their hands on, thus forcing upon the unsuspecting blissfully sleeping family a big unofficial diwala. Also, it is not uncommon to get news of fire cracker units being reduced to ashes, at times accompanied by the loss of precious human lives and millions of rupees, all caused by accidental fires due to negligence or lack of safety measures. This is worse than any diwala, legal or not. Around Diwali time another hobby, which has potential to bring on diwala quite fast— catching on like wild fire in all circles of society, poor and rich — is the deadly practice of heavy gambling. Stakes can be directly proportionate to how rich you happen to be. A single hand can range from a few rupees to a few lakhs. There are no limits. As the festive season is on and drinks flow freely at such events, the realisation of a near diwala could dawn on the losers much after it has happened. Something similar happened to the Pandavas when they did not stop rolling the dice well in time. I recall a cartoon by the great R.K. Laxman around Diwali time many years back. In that cartoon, a rich dad is shown handing out currency notes to his young boy with the advice to burn them instead of firecrackers so that like a good citizen he helps to reduce the unbearable high-decibel noise and heavy air pollution. This is an example of ensuring diwala with a difference. On a national scale, in terms of money destroyed as firecrackers on the Diwali day by millions of households all over the country, the loss would definitely run into billions of rupees. Enough to make some small budget country in the world simply go bankrupt without a whimper just the way many dud firecrackers do. Celebrate Diwali by all means but avoid anything that could lead to a
diwala.
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Let the best person be Judge
Rejection
of some names of advocates recommended for elevation to the Bench of the Punjab and Haryana High Court by a collegium may not necessarily be an adverse reflection on the collegium system as such. Repeated rejection of names sent by collegiums from various High Courts and wholesale rejection of the third list in a row from this court would tend to indicate that there is something amiss somewhere in the working of this system. The second judges’ case while overruling the majority opinion in SP Gupta’s case gave primacy of the role in the matter of appointments and transfer of judges to the Chief Justice of India. As per this judgment, initiation of the proposal for appointment to the Supreme Court must be by the Chief Justice of India, and in the case of High Court by the Chief Justice of that High Court. In the event of conflicting opinion of the constitutional functionaries, the opinion of the judiciary, symbolised by the view of the Chief Justice of India, was given primacy. The opinion of the Chief Justice of India was held determinative in the matter of transfer of High Court judges/Chief Justices. This judgment led to the advent of the collegium system for the appointment and transfer of judges. One cannot affirmatively state that this system of appointment of judges to the Supreme Court or the High Court has worked satisfactorily. Unblemished record The service rendered by judges demand the highest qualities of learning, training and character. It is unnecessary to stress the importance of highly trained, in-corrupt and fearless judiciary. Sir Winston Churchill in his speech had said that these qualities of judges were not to be measured in terms of pounds, shillings and pence according to the quality of work done. A form of life and conduct far more severe and restricted than that of ordinary people is required from judges and though unwritten, has been most strictly observed. They are at once privileged and restricted. They have to present a continuous aspect of dignity and conduct. Society will have to pay heavily if the Bench cannot get finest characters and the best legal brains. Articles 124 and 217 of the Constitution would hardly throw any light on the aspects of qualities needed for appointment as judges. These Articles do provide for consultation but do not explain the nature of consultation and the functions and the position of the authorities inter-se. A number of qualities may have to be considered and weighed before appointing a proposed candidate as a High Court judge. These qualities include integrity; intellectual capacity; a sound knowledge of law; good temper; judicial approach to matters to be decided; and a good health, to mention only a few. To look for an appropriate person for appointment, thus, there may be a need to have a wider field for collecting information. Earlier even people were not fully satisfied with the constitutional provisions regarding the appointment of judges. The Law Commission of India in its 14th report had stated that regional and communal influences and the interference of the executive had procured appointments to the Supreme Court and that the best talent has not been mobilised. Some people may still not share the view that the executive should not have a say in the appointment of judges. They may cite the examples of systems in the US and England in support of their viewpoint. HM Seervai, however, after discussing various constitutional provisions governing the appointment of judges, has expressed: “The State Governments were not intended to take any direct part in the selection of persons to be appointed as High Court Judges.” Evidence would show that the scrutiny for the appointment of good judges lies not in the nature of the appointing authority but in the sense of duty of those charged with making the appointment and in a vigilant public and professional opinion. Judge-made law The Constitution only provides for the appointment of the High Court judges by the President, after consultation with the Chief of India, the Governor of the State and the Chief Justice of the High Court. The consultation with two senior judges of the High Court in fact is not provided for in the Constitution. It has come into being due to judge-made law. If the purpose is to look for a quality appointment, then there may not be any harm in going in for wider consultation (not concurrent) with other stakeholders like other judges in the same court. Before recommending any name for appointment, the Chief Justice is to look for those qualities which are expected of a judge. Mere knowledge of law, which the collegiums judges may come to learn from the performance, is only one of the qualities. No Chief Justice would be prepared to recommend a name of a performing advocate if he is found lacking in other qualities like integrity, good temper and a judicial approach. Apart from legal competence and eminence, personal character and conduct is an equally important aspect to be kept in mind. The other stakeholders like judges and some elements from the Bar or the Bar Council, who may be in the know of the qualities in a proposed candidate or lack thereof in him, can definitely be of help. No one is benefiting from the secrecy which is now kept while considering the names for appointment. Keep no secrets Experience would be a witness to this fact that no other stakeholder is asked even informally. Rather, the names under consideration are kept a closely guarded secret and the colleague judges of the members of the collegium learn about the recommendation, either from the newspaper or from the Bar which has far more greater access to the names recommended as these reaches the government offices. The functioning of the collegium system would become more transparent and vibrant if the collegium at least shares these names with other judges, who can then give their inputs. Such inputs, if any, can help in formulating the recommendations. After all, the person finally appointed has to work with other judges and the Bar. I recollect an experience shared by a Chief Justice, who while being part of the collegium in the court of his origin, happened to share the name of an advocate who was being considered for elevation by the collegium with a newly appointed judge in that court. The newly appointed judge disclosed some facts, which when probed, proved to be true. That name was then dropped. Had that name been sent by the collegium, it was bound to have been rejected as the adverse information about him would have definitely reached the collegium at the Supreme Court. The Chief Justice of this court has been quoted in one of the newspapers as saying that the collegiums do seek inputs from senior members of the Bar. If it is being done, then it sounds good. One would have doubts if any member of the Bar is asked to give his inputs about the names which are under consideration in this court. If it had been so, then some of the names, as recommended, would never have gone. The need is to look beyond the relations of those who have been part of the system. The Chief Justice is expected to ensure that local sectarian and other irrelevant considerations do not influence the choice of the person recommended. These may have been a cause for earlier rejections. The system of appointment, now of course, is on for a change as the amendment to the Constitution is being sought by the government. I have serious doubts if the proposed changed system would secure more satisfactory appointments, because even the most admirable provision must fail as long as it is possible for the appointing authority, judicial or executive or both, to say that though ‘A’ is the best incomparably, but we will appoint ‘B’. The constitutional provision regarding the appointment of judges was designed to eliminate political, executive and legislative pressure to secure the independence of the judiciary. The need, therefore, is to correctly work the system which may be going in for a wider consultation with all the stakeholders, specially the other judges of the court, and give it due weightage. There would be no harm to go in for inputs from all, including the Bar Council or the Bar Association. That practice, if followed, may remove the criticism of subjectivity or favoritism, as is being levelled. That is the way the system of appointment should be made to work. There is a need to work the systems efficiently for it to succeed to the satisfaction of all stakeholders — the Institution, Bar and the public. The writer is a retired Judge of the Punjab and Haryana
High Court.
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