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Combating rain
shortfall Back to square one |
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Wind power Encourage alternative sources of energy It is, indeed, heartening, that India is among the top five nations that exploit wind power. With an installed wind power capacity of around 17,600 mw, the Ministry of New and Renewable Energy has much to be happy about, but there is still more to be done. The government has done well to provide various fiscal incentives that make commercial wind power projects viable.
Unfair to armed
forces
An encounter with
‘C’
Should the
executive judge? The scepticism and
suspicion remain
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Back to square one The
tug of war between the government and the judiciary in Pakistan has taken an interesting turn with the Supreme Court striking down the Contempt of Court Act-2012 on Friday. The new law was enacted with the aim of primarily saving the new Prime Minister, Raja Pervez Ashraf, from contempt of court proceedings. Now Raja Ashraf faces the threat of being disqualified by the apex court like former Prime Minister Yousuf Raza Gilani for his refusal to approach the Swiss authorities to re-open the bank account-related graft cases against President Asif Zardari. What next step the government takes will be watched with curiosity as Pakistan Chief Justice Iftikhar Mohammed Chaudhry appears to be bent on ensuring that Mr Zardari gets his just deserts. Raja Ashraf obviously cannot afford to reopen corruption cases against Mr Zardari, who is also the de facto chief of the ruling PPP. If the Prime Minister does not act in accordance with the directive issued by the Pakistan Supreme Court, he must get ready to face the court’s music. The government might have expected the new law to be declared null and void by the court as the Bench that heard the case was headed by Chief Justice Chaudhry. There is the possibility of the government ready with a plan to approach the court again regarding the constitutional immunity to the President of Pakistan. Earlier, the court had held that the President had no such protection. This course may give the government some time to finalise its new action plan. Even if the Pakistan government goes in for fresh parliamentary elections, without waiting for the present National Assembly’s term to end in February 2013, Mr Zardari’s skin is unlikely to be saved. The situation may change for the better for him only when Justice Chaudhry retires. But the Chief Justice has enough time to nail the President. He has the silent backing of the Pakistan Army. If the judiciary ultimately wins and legal proceedings begin against Mr Zardari, it will be good for the overall system in Pakistan. The message will go across the country that anyone committing a crime cannot escape the clutches of the law.
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Wind power
It
is, indeed, heartening, that India is among the top five nations that exploit wind power. With an installed wind power capacity of around 17,600 mw, the Ministry of New and Renewable Energy has much to be happy about, but there is still more to be done. The government has done well to provide various fiscal incentives that make commercial wind power projects viable. Indeed, not only did the Centre provide a 10-year tax holiday on the income generated by investments in renewable energy projects, it even exempted various mechanical parts of these windmills from excise duty. While, overall, the government has adopted an investor-friendly policy framework, recently there has been a decline in the installation of more capacity for wind power. Industry advocacy groups point towards the decrease in the tax benefits that were enjoyed by the sector earlier as one of the major causes. There may be some weight in the suggestion that most of the investment in the sector is because of the fiscal incentives, but even then it must be recognised that sustainable energy is a goal for which all encouragement must be given to the industry. Investment in renewable sources of energy is a necessity now. The government has proactively and generously given sops like accelerated depreciation and generation-based incentive to companies engaged in both wind and solar energy projects. However, various companies have found it difficult to get payments, even as they tackle land acquisition issues for setting up new plants. The picture is not all that rosy, but the government needs to ensure that the momentum that has been built up till now continues. Given the tremendous shortage of power and the high cost of fossil fuel energy, the need for clean, green and renewable power becomes even more alluring.
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The best way to predict the future is to invent it. — Alan Kay
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Unfair to armed forces
Often
the political executive appears to find solutions to difficult problems with the help of a group of secretaries. In some cases, this group of secretaries may not have complete knowledge and grasp of the issues under examination. In the late eighties the Army evaluated a number of indigenously developed diesel engines for the Vijayanta tank. A committee of secretaries was constituted to select the best out of the engines thus evaluated. At the presentation of the trial results to this group, one was horrified to discover that not one amongst the secretaries knew even the difference between a “cam shaft” and “crank shaft” of an engine! Sometimes this group could be prejudiced against the case and is thus unable to conduct a fair examination and give unbiased recommendations. The more recent recommendations of the Naresh Chandra Committee (Naresh Chandra, former Cabinet Secretary, has been in one or the other government job since he retired some 20 years back) is known to have concluded that India does not need a Chief of Defence Staff. Thus, the Indian Army will continue to have no single authority to synergise the full potential of various components of the armed forces in the face of emerging complex security challenges. During World War II, the unity of command had become imperative. When, before operation ‘Over Lord,’ (invasion of Europe by the allied forces), it was proposed to keep the Strategic Bomber Command outside Eisenhower’s control, he told the President that in that case he might find someone else to take charge of ‘Over Lord.’ Now some 68 years later Naresh Chandra does not find the need for a unified command for the Indian armed forces. In the case of successive Central Pay Commissions (CPCs), bias against the military has prevailed all through, resulting in recommendations to the total disadvantage of the military. Much has already appeared, over the years, in the Press highlighting the anomalies in the recommendations of successive CPCs as these related to the military and, therefore, need no recalling. In the case of the 6th CPC, there are 39 anomalies relating to the military which are still to be addressed. The issue of “one rank, one pension” (OROP) was considered by a committee of secretaries headed by the Cabinet Secretary and rejected. Not one among the present committee members has adequate knowledge of matters military, such as conditions under which troops and officers serve, the risk factor, casualties during operations, turbulence and the effect on children’s education, early retirement, extremely limited promotions, etc. Almost all of those on this committee, after they retire at 60/62 years of age, will be re-employed, and if they play their cards well, may, continue to work on one or the other job for another 20 years! So, how can this group possibly understand what it means to retire at age 35/37 years or even 54 years. Consider the case of non-functional upgradation (NFU ) which is applicable to all Central services but not the military because, it is argued, that military is not a central service! If so, then why a common CPC? This NFU has created serious functional problems with the military in working with the MES, BRO, MEO, the central police, Defence Accounts, the Ordnance Factory Board, etc. It was pressure from the Group A services of the Central government that the Sixth Pay Commission gave them this largesse. A large number of people from these services were on the staff of the 6th CPC (though none from the military) and helped themselves to all manner of perks. NFU implies that if the 1992 batch IAS officer climbs into the Joint Secretary’s grade in 2012, then every Group A central service officer of the 1990 batch would automatically get the pay and allowances equivalent to the 1992 IAS batch officers, irrespective of the post he may be occupying. This would happen at the approximate service of 20/22 years, whereas an Army officer will get to that level if he is among the top 1 per cent after 32 years of service. Every single central service officer will retire at age 60 with the pension of an Air Vice Marshal, whereas less than 1 per cent in the armed forces get to that scale of pension. This has also led to lowering the status of armed forces officers vis-à-vis Group A central service officers. With over 97 per cent armed forces officers retiring in the grade pay of Rs 8700, their exclusion from the NFU is seen as grossly unfair. This differential disturbs financial parity and further lowers the status of defence services officers. Even directly recruited officers of Group B services attain a better pay and promotional avenue and manage to reach the level of Joint Secretary/ Maj-Gen before retiring. Even if NFU is granted to the military, it will not, unlike the civil services, come into full play due to early retirement for a vast majority. The committee of secretaries, now formed under the chairmanship of the Cabinet Secretary, is required to look into only six of the 39 anomalies and submit recommendations by August 8 so that, if need be, the Prime Minister may throw some crumbs at the military from the ramparts of Red Fort on Aug 15. These may include the following: Fixing common pay scales for all JCOs and ORs; grant of NFU to commissioned officers; correcting the difference in the rank pay of commissioned officers; extending the HAG+ (Higher Administrative Grade Plus) scale to all three star officers in the armed forces and OROP to retired personnel. During the Prime Minister’s visit to Chandigarh, I briefed him at Raj Bhavan on some of the anomalies such as brigadiers given more pension than Maj-Generals and the absurdity of equating military service with that in the civilian areas where living conditions and the risk factor apart, 82 per cent or so retire at the age of 35/37 years and another 12 to 17 per cent at 42 to 58 years of age. So, for anyone to contend that giving OROP to the military will result in a similar demand from all civilian employees who retire at 60 is illogical, repugnant and misleading. The PMO has now constituted this new committee of secretaries. The impression is gaining ground that the PM is poorly served by the PMO. Many Prime Ministers and parliamentary committees have accepted the rationale for the grant of OROP to retired military personnel and recommended its implementation. So, now this committee of secretaries will re-examine those recommendations and pass judgment. This then is the Indian democracy for you! Any attempt to downgrade the military in matters of pay, perks and status will surely have a long-term effect on the quality of intake into the
military.
The writer is a former Deputy Chief of Army Staff.
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An encounter with ‘C’ Sweet
nostalgia! One of the prime blessings God has bestowed us with. A perennial source of sweet sensations, indeed. We love opening the wraps of time gone by. Some incidents get etched on the mind forever. No wonder, we travel back to them time and again. One such incident resurfaces before me quite often. Yours truly can't help sharing with you. With the arrival of summer I feel myself in the seventh heaven. We entered into wedlock in May. The day arises with a peculiar euphoria and revives the golden moments ticked by and some otherwise too. Dear hubby and myself were back from a memorable honeymoon just the other day. The family was still in a festive mood. By sheer chance arrived a cousin of my father-in-law. Quite a senior official in the police department. Gladly I offered to make tea for the guest without knowing what lay ahead of me. The very next moment something obnoxious, rather hideous, in deep red colour fluttered in the boiling hot tea. Ah me! In the cup meant for the guest. Virtually nauseating and repulsive. All eyes stared hard at me. I felt absolutely perplexed and shaken as if the very heavens had fallen upon me. I couldn't utter even 'sorry' and rushed to my room. As if it wasn't enough, my hubby followed me to the room, bursting out. “Hell with you clumsy woman. Crossed all limits. How did that ugly thing enter the kettle?” Utterly dumbfounded, poor me shed copious tears cursing my stars. For a moment I was determined to pack up my things and leave for my parents’ place. I felt a sudden gentle pat on my shoulders. Who could it be? The honourable guest himself! “Dear child, I am afraid soon waters from your eyes will drown us here only. Let’s get a boat instantly”, he intoned with a twinkle in his eyes. Thereafter he presented me an exotically embroidered peach sari. I managed to thank him somehow amidst tears rolling down my cheeks. “I never imagined such a nasty creature existed on the planet. The servant prepared tea… me… simply… p-o-u-r-e-d”, I fumbled sobbingly. And he beamed, “So it is your first encounter with a ‘cockroach’! Bravo! You killed it sans any effort… Never heard of such a marvellous feat! Very clever of you. I never achieved my mission without nakas, hiding in wait and finally firing shots. Ladies and gentlemen, three cheers for the new bride…” The room resounded with laughter and clapping. Hailing from a small town sans the modern sewerage system and, therefore, sans cockroaches too, it was an unfamiliar phenomenon for me. But now I am the first to spray HIT — the moment I spot even a single 'C'. The incident remains a perennial source of laughter and fun in the family. Above all, I myself enjoy the most relating the “grand” tale to my grandchildren, purposely making it more juicy
and succulent.
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Should the executive judge?
The plan to set up a Judicial Appointments Commission for replacing the present collegium system has raked up the controversy of
giving the executive a say in the appointment of High Court and Supreme Court Judges. A Tribune analysis
The
government seems to be quite confident of effecting the Constitution amendment necessary for setting up an independent Judicial Appointments Commission (JAC) to replace the present collegium system of judges appointing judges. This was evident from the expressions used by Law Minister Salman Khurshid, while making the announcement on the issue on Friday. “We are fully committed to changing the procedure for the appointment of Judges. The decision had been taken after wide consultations with retired Judges, Attorney General GE Vahanvati and legal experts,” he said. “We have more or less firmed up our opinion after discussions with a large number of retired Chief Justices of the Supreme Court and High Courts,” Khurshid said. “The AG, whose opinion had been sought, had indicated that the procedure could be changed with the consent of the Chief Justices,” the minister said. Under the collegium system, senior-most Judges in each HC recommended the appointment of advocates as HC Judges while a similar set of Judges in the SC decided on the elevation of HC Judges to the apex court. The government was bound to accept these recommendations. Acknowledging that going back to the SC seeking a review was an option, Khurshid said the government had, however, decided to go in for the Constitution amendment by taking up the proposal with the Cabinet “very quickly and as soon as possible”. Under the present proposal, the JAC members would include the Prime Minister, the Leader of the Opposition in the Lok Sabha, the Union Law Minister and the Chief Justice of India, besides a few more representatives from the judiciary. The government’s announcement has not come all of a sudden as the demand for the change has been raised time and again by legal experts. Even Khurshid’s predecessor, M Veerappa Moily, had said the government was considering bringing about a change in the procedure for appointment of judges to the higher judiciary. The demand had become quite vociferous following allegations of misconduct levelled against the then Karnataka HC Chief Justice PD Dinakaran and Calcutta HC Judge Soumitra Sen, both of whom had to subsequently quit. Lack of transparency in the selection procedure under the collegium system was resulting in the appointment of several advocates with doubtful credentials as Judges, votaries of the change have contended. Asked about Khurshid’s announcement, senior advocate Pravin H Parekh, President of the Supreme Court Bar Association (SCBA), acknowledged that some changes are necessary in the present system. “The selection needs to be deliberated upon so that the best persons are appointed as judges. But at the same time the government (in the JAC) should not interfere with the independence of the judiciary,” he said. Welcoming the government move, senior advocate and Constitutional expert CS Vaidyanathan said, “The collegium has not worked successfully as there is no transparency. Unfortunately, politics in the judiciary has allowed communal, caste and parochial bias in the selection of Judges. There is a need to broad-base the selection committee with representatives from the executive and the Bar, besides the judiciary.” At a recent function in Delhi former SC Judge Kuldeep Singh had gone a step further by suggesting that the appointment of the Chief Justice of India should not be on the basis of seniority alone. Some of the former CJIs and other legal experts have gone on record stating that Judges’ appointment should be done through a transparent and participatory approach. Neither the judiciary nor the executive should be allowed to have a final say. A few have suggested that the selection should be done by the Judges while the antecedents should be verified by the executive. While Britain has an appointments commission, federal judges in the United States are appointed after scrutiny by the Senate. Khurshid said the government was only trying to bring in transparency in every constitutional body in the larger interest of democracy and good governance. The government was not bothered about the “problems” it would have to face as it happened in the case of the Right to Information (RTI) Act.
What experts say — Justice Manmohan Singh
Liberhan, former Chief Justice of the Andhra Pradesh High Court — Justice
R.S. Mongia, former Chief Justice of the Gauwahti High Court — Justice Mehtab Singh Gill, former acting Chief Justice of the Punjab and Haryana High Court — Justice JS
Sekhon, former Judge of the Punjab and Haryana High Court Judge
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The scepticism and suspicion remain Union Law Minister Salman Khurshid’s declaration on the Judicial Appointments Commission has in it the ingredients of executive intrusion sought to be introduced in the system, first by the then Prime Minister Indira Gandhi, and then by the Atal Behari Vajpayee government. Both times, the move was seen as a remedy worse than the malady. Opinion has hardly changed over the years. Even now it is apprehended in legal circles that the move in reality could see the appointment of “convenient”, rather than “just” judges. The background Way back in 1949, Dr B. R. Ambedkar in the Constituent Assembly debates asserted: “There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself.” But, the independence of the judiciary became a subject matter of debate during Indira Gandhi's regime. Her election from the Rae Bareli constituency was set aside by the Allahabad High Court in 1975. She filed an appeal in the Supreme Court; and to nullify the Allahabad High Court's verdict, the government amended the Constitution to the effect that the courts would have no jurisdiction to try election petitions against the Prime Minister. The judgement of the Allahabad High Court, under appeal before the Supreme Court, was declared void; and the election was validated by the legislature. The executive prevailed. But, the Supreme Court declared the amendment unconstitutional by holding that the power to amend the Constitution could not be exercised to destroy or mutilate its basic structure. It was then the procedure of appointment and transfer of the Judges attracted the attention of politicians. The executive started to make efforts to have its own people in the judiciary. In 1981 even the Supreme Court in the Judges transfer case S.P. Gupta versus Union of India abdicated its powers by ruling that Constitution functionaries had merely a consultative role and that the power of appointment of Judges was “solely and exclusively” vested in the Central Government. The Supreme Court, in the historic SC Advocate-on-Record Association versus the Union of India in 1993 reversed the position. A nine-Judge Bench, by a 7-2 majority, overruled the judgment in the S.P. Gupta case and held that in the matter of appointments of the Judges of the Supreme Court and the High Courts, the Chief Justice of India should have primacy.
The collegium system The apex court, in the judgment, laid down detailed guidelines governing the appointment and transfer of Judges and held that the greatest significance should be attached to the view of the Chief Justice of India, formed after taking into account the views of two senior-most Judges of the Supreme Court. The majority judgment read: "The executive element in the appointment process has been reduced to minimum and political influence is eliminated. It is for this reason that the word consultation instead of concurrence was used in the Constitution but that was done merely to indicate that absolute discretion was not given to anyone, not even the Chief Justice of India as an individual, much less to the executive”. But that was not the end of it. The Atal Behari Vajpayee government decided to set up a National Judicial Commission for the appointment and transfer of the Judges of the Supreme Court and the High Courts as a purported solution to the twin problem of increasing incidents of misconduct by judicial officers and heavy pendency of cases. The UPA government’s stand on the collegium system too was not very supportive. Salman Khurshid’ predecessor M Veerappa Moily in June 2010 asserted: “Everybody agrees that the collegium system has failed and it needed to be changed.” In his “Vision Statement”, Moily made it clear that the government wanted to have a greater say in the appointment of Judges. The Union Law Ministry, in fact, wanted the government to be given powers to “suggest outstanding lawyers and jurists” for elevation as Judges. Explaining the need for making the recommendations, the statement said the increased number of members of the collegium has made the consultation process cumbersome and, hence, there was a delay in the selection and elevation of Judges. Also, there were no guidelines dealing with situations of a deadlock or lack of a consensus among the members of the collegium, or dealing with situations where the majority members of the collegium disagree with the Chief Justice of India. Former Law Minister H.R. Bhardwaj too had described the system as a “give and take” between the government and the judiciary, often leading to delay in judicial appointments. The government, in April last year, again asked the Supreme Court to reconsider its 1993 verdict that gave primacy to the judiciary over the executive. Maintaining there were certain apparent inconsistencies in the 1993 SC Advocate-on-Record Association case judgment, Attorney General GE Vahanvati said the appointment process needed to be reconsidered. Khurshid’s latest declaration has once again brought the issue into sharp focus. But it needs to be seen if the move will eventually withstand the test of judicial scrutiny.
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No system is perfect, and all have in-built dangers. The proposed Judicial Appointments Commission too will have the in-built danger of encroaching upon judicial independence. Straightaway, it cannot be said that the new system would be good. But at the same time, the new system is worth giving a try. 
Any change is good. If the new system works for the betterment of the judiciary, why not have it? In the Constitution the method of appointment clearly says that the recommendation has to be made by the Chief Justice of India in case of Supreme Court Judges, and the Chief Justice of the State in case of High Court Judges. The collegium system was introduced by the Supreme Court through interpretation. But the collegium system, as interpreted, has not been a very good experience. The possibility of likes and dislikes creeping in cannot be ruled out in the existing system. The new system should at least be given a try. 
The collegium system has withstood the test of time; any move to change it now would expose it to the risk of destabilization. The system is completely democratic and transparent; and also gives the executive enough say in the matter of appointment of High Court and Supreme Court Judges. The names recommended by the High Court collegium go to the Chief Minister, the Union Law Minister and even the Prime Minister. All of them have the authority to pen down their comments, and even objections. 
The collegium system been successful and effective as the Judges can tell better than anyone else about the lawyers appearing before the Benches. Moreover, the judgments of the judicial officers too come under the scrutiny of the Supreme Court Judges. The executive would not have the capabilities of judging the calibre of a lawyer or a judicial officer. In case the collegium needs some background information before making recommendations, it already has at its disposal the Intelligence Bureau reports.