At least in one sense, the bane of drought has become a boon that has spurred the austerity drive. The pontification of the Congress high command saw the two reluctant ministers leaving their cozy suites of five-star hotels in the capital. Pranav Mukherjee and Sonia Gandhi led the government and the party by flying in economy class to enforce the ascetic discipline. Writing on his twitter, Shashi Tharoor justified his stay in a five-star hotel on the ground that he did not squander public money, but spent his personal savings. The two ministers did not find their plush bungalows worth living. Spending own money is fine, but it stares in the face of the principle of voluntary poverty enunciated by Mahatma Gandhi whose ideals his party professes to propagate. Gandhi, a hugely successful barrister, whose income, at the present rate of exchange, as estimated by Rajmohan Gandhi, was Rs. 1 crore per month, preferred to wear a langoti in order to identify himself with the masses. Moral foundation of the society collapses if physical comforts are taken to be the end, rather than the means of living,
It is amazing that austerity has become such a major issue in a country like India which has a tradition of monarchs prostrating before hermits. The Congress party followed this tradition of simplicity assiduously till late 1960s. Every year, there were three sessions of AICC and one general session of the party in different cities, and even the Prime Minister and the Congress President stayed in camps. Leaders were supposed to lead lives of sacrifice and austerity. In 1937, when the Congress party formed governments in provinces, ministers travelled in the third class of trains.
Somehow, the ideal was forgotten. Bureaucrats led luxurious lives right from the beginning, and slowly, even ministers took to it. Since the British came to rule over India, they introduced a flabby administration in which doing job was a luxury. The Regulating Act of 1773, the first essay in constitution-making for India by British Parliament, established the new concept of partnership between the Crown of England and the East India Company. It created a Supreme Council in Bengal comprising a Governor-General and four councilors. Exorbitant salaries were attached to these posts, the Governor-General receiving 25,000 pounds a year while Councillors were paid 10,000 pounds each. It was repulsive, to say the least, in a poor country like India. No wonder, Mahatma Gandhi, in a letter to Viceroy Lord Irwin, dated March 2, 1930, wrote that he held the British rule to be a curse which had impoverished the dumb millions by a system of progressive exploitation and by a ruinously expensive military and civil administration. Then he wrote about the inequality in income, “Take your own salary. It is over Rs. 21,000 per month, besides many other indirect additions. The British Prime Minister gets 5,000 pounds per year, i.e., over Rs. 5,400 per month at the present rate of exchange. You are getting Rs. 700 per day against India’s average income of less than annas 2 per day. The Prime minister gets Rs. 180 per day against Great Britain’s average income of Rs. 2 per day. Thus you are getting much over five thousand times India’s average income. The British Prime Minister is getting only ninety times.” Later, on 29 March at Bhatgam, he said, “How could he probably do justice to that salary? And how can we tolerate his getting salary out of all proportion to our income?” Again, addressing the Chatham House meeting (London) on 20 October 1931, he criticized the civil expenditure citing the Viceroy’s salary: “From this one example you can work out for yourselves what this civil expenditure also means to India. India cannot support this service, however efficient and able it may be. It is quite likely that I could send medical experts to every village in India, we should have no disease whatever, but since we cannot afford medical experts for every village in India, we have to be satisfied with quacks that we can get in our own village.”
Even after independence, the expenditure on the establishment is so huge that hardly any money is left for development. How can we justify this hefty hike in salaries of government employees when, according to the Report of the Committee on the Unorganized Sector headed by Arjun Sengupta, 77 per cent people are living on Rs. 20 or less per day. The government must make endeavours to reduce disparity and raise per capita income for inclusive growth which the government keeps talking about. Per capita income is misleading when the disparity is so horrendous. Raising the per capita income was foremost on the agenda of our national leaders from the pre-independence days. Planning occupied the centre stage of Indian thinking as the Second World War neared its end. A Plan of Economic Development for India, prepared by a body of distinguished industrialists, was published in 1944. More popularly known as Bombay Plan, it envisaged an investment of Rs. 10,000 crore spread in three successive five-year stages. It said that only through heavy investment in the economy and through a concerted drive to raise the living standard of the people could the challenge of the appalling backwardness of the country, the indigence and illiteracy of its people and the high mortality rate be combated. They estimated that a per capita income of Rs. 74 at pre-war prices was essential to secure a minimum standard of living. It was a modest goal and yet it was so arduous, for the per capita income in British India at the time was Rs. 65. A comparison of this figure with that of other countries in the same period throws adequate light on our condition then: USA Rs. 1406, Canada Rs. 1038, UK Rs. 980 and Australia Rs. 792.
It is good that Congress President Sonia Gandhi is trying to revive the legacy of simplicity but it is to seen how long it continues.
Sunday, September 27, 2009
Justice Dinakaran issue: CJI's authority and independence of judiciary
In recent years, the issues of appointment and that of accountability of judges have touched off storm in the legal and political circles. The two are inextricably liked together and the Prime Minister had rightly suggested to improve the quality of appointment to overcome the problem of corruption in the judiciary. The controversy surrounding the proposed elevation of Justice D. P. Dinakaran, chief justice of the Karnataka high court, to the Supreme Court, is the latest body blow to the credibility of the judiciary. He has allegedly amassed huge wealth and grabbed several hundred acres of land. As per press reports, Dinakaran met the Chief Justice of India and rebutted all charges levelled against him. This raises a third issue whether the CJI is the boss of other judges. It is also related to the other two issues. Recently, Justice Shylendra Kumar of the Karnataka high court created sensation by questioning the authority of the CJI to speak on behalf of all judges in regard to declaration of assets.
So, it will be desirable to examine the authority of the CJI vis-à-vis other judges of the higher judiciary as it has serious implications for the independence of the judiciary. Justice Kumar’s stand that the CJI is not authorized to speak on behalf of all judges amounts to questioning the status of the CJI as the head of the judiciary. Constitutionally speaking, the high court is not subordinate to the Supreme Court. On this premise, Justice Sabyasach Mukherjee, then a judge of the Calcutta high court, had rebuffed the Supreme Court which had directed it to dispose of Indira Gandhi’s petition within the stipulated time period. He clearly wrote in the judgment that the Supreme Court has just got an appellate jurisdiction over the high courts, but has no right to direct them. In a way, it is true that high courts do not become subservient just because their orders can be challenged before the Supreme Court. Even in the high courts, Letters Patent Appeals lie against the order of a single judge before a division bench of the same court. It does not mean that the single-judge bench is subordinate to the division bench. In the Supreme Court also, the larger bench overrules the smaller bench. It is a method of correction as individuals may go wrong.
However, the Supreme Court is not just the apex court in the normal hierarchy of courts, but is much more than that as it has original, appellate as well as advisory jurisdictions. Further, Article 144 clearly mandates that all authorities, civil and judicial, shall work in the aid of the Supreme Court. The term, judicial authorities, also covers high courts. Moreover, the Chief Justice of the Supreme Court is called the Chief Justice of India (Art. 24 of the Constitution). This nomenclature is meaningless if he is not the head of the judiciary. So, by convention, he is the paterfamilias of the judicial fraternity even though the Supreme Court has no supervisory jurisdiction over any court.
However, in matters of appointment and transfer of judges, the CJI plays the most crucial role. Under Articles 124 and 217, consultation with the CJI is a must for the appointment of judges. In 1993, the Supreme Court, in its controversial decision in the Second Judges’ case, ruled that the recommendation of the CJI would be binding, but clarified that the opinion of the CJI means the opinion of the collegium consisting of the CJI and two senior most judges. The Third Judges’ case upheld most of the formulations of the Second Judges’ case but ruled that in case of appointment to the Supreme Court, the collegium would consist of four senior most judges besides the CJI. In fact, the snatching of power of appointment and transfer of judges from the hands of the executive and transferring it to the collegium by judicial interpretation has virtually made the high court judges subservient to the CJI and other members of the collegium as they have to keep them in good humour for getting promoted as chief justices of high courts and elevated to the Supreme Court. Justice Dinakaran has made the position of other judges more vulnerable by meeting the CJI to explain his position.
This is not a healthy trend for the judiciary. Fear of supersession is bound to affect the independence of judges. Here again comes the question of the independence of the judiciary which faces threat not only from without but also from within. A high court judge has the same protection as the CJI under the Constitution. But the fear of being left out makes high court judges feel insecure. In the words of Milton, ambition is but the last infirmity of a noble mind. Judges also nurture the ambition of promotion and elevation. Earlier, if the CJI visited a state, the chief justice of high court did not go the airport to receive him. If both, the CJI and the chief justice of the high court, were invited to some party, the two would enter from opposite doors at the same time so that none of them would receive each other. But the situation has undergone a colossal change after the introduction of the collegium system. Independence of judges must be maintained, and obviously then, the CJI cannot speak on behalf of all judges, even though symbolically, he may represent the judiciary as its head.
Earlier, the Standing Committee of Parliament attached to the Ministry of Law and Justice in its 21st Report made many recommendations for making the judges of the Supreme Court and High Courts accountable. But the members of the Committee felt that for it the system of the appointment of judges to the higher judiciary has to be rectified first. So the crux of the problem lies in the process of the appointment of judges. If competent and honest people are appointed judges it will address the problem of accountability, overreach and delay. The Committee has recommended that the power of appointment of the judges should be in the hands of the executive as was the position till. In 2006, two Parliamentary Committees made the same recommendation to restore the pre-1993 position.
Justice J. S. Verma, who is the author of the majority judgment in the Second Judges’ case, recently wrote to the Chief Justice of India that the system of collegium had failed and a new system needed to be invented. The Administrative Reforms Commission headed by Veerappa Moily has recommended the constitution of a National Judicial Council (NJC) for the appointment and removal of judges. The previous National Democratic Alliance government had introduced the Ninety-Eighth Amendment Bill, 2003 for the setting up of an NJC which lapsed.
So, it will be desirable to examine the authority of the CJI vis-à-vis other judges of the higher judiciary as it has serious implications for the independence of the judiciary. Justice Kumar’s stand that the CJI is not authorized to speak on behalf of all judges amounts to questioning the status of the CJI as the head of the judiciary. Constitutionally speaking, the high court is not subordinate to the Supreme Court. On this premise, Justice Sabyasach Mukherjee, then a judge of the Calcutta high court, had rebuffed the Supreme Court which had directed it to dispose of Indira Gandhi’s petition within the stipulated time period. He clearly wrote in the judgment that the Supreme Court has just got an appellate jurisdiction over the high courts, but has no right to direct them. In a way, it is true that high courts do not become subservient just because their orders can be challenged before the Supreme Court. Even in the high courts, Letters Patent Appeals lie against the order of a single judge before a division bench of the same court. It does not mean that the single-judge bench is subordinate to the division bench. In the Supreme Court also, the larger bench overrules the smaller bench. It is a method of correction as individuals may go wrong.
However, the Supreme Court is not just the apex court in the normal hierarchy of courts, but is much more than that as it has original, appellate as well as advisory jurisdictions. Further, Article 144 clearly mandates that all authorities, civil and judicial, shall work in the aid of the Supreme Court. The term, judicial authorities, also covers high courts. Moreover, the Chief Justice of the Supreme Court is called the Chief Justice of India (Art. 24 of the Constitution). This nomenclature is meaningless if he is not the head of the judiciary. So, by convention, he is the paterfamilias of the judicial fraternity even though the Supreme Court has no supervisory jurisdiction over any court.
However, in matters of appointment and transfer of judges, the CJI plays the most crucial role. Under Articles 124 and 217, consultation with the CJI is a must for the appointment of judges. In 1993, the Supreme Court, in its controversial decision in the Second Judges’ case, ruled that the recommendation of the CJI would be binding, but clarified that the opinion of the CJI means the opinion of the collegium consisting of the CJI and two senior most judges. The Third Judges’ case upheld most of the formulations of the Second Judges’ case but ruled that in case of appointment to the Supreme Court, the collegium would consist of four senior most judges besides the CJI. In fact, the snatching of power of appointment and transfer of judges from the hands of the executive and transferring it to the collegium by judicial interpretation has virtually made the high court judges subservient to the CJI and other members of the collegium as they have to keep them in good humour for getting promoted as chief justices of high courts and elevated to the Supreme Court. Justice Dinakaran has made the position of other judges more vulnerable by meeting the CJI to explain his position.
This is not a healthy trend for the judiciary. Fear of supersession is bound to affect the independence of judges. Here again comes the question of the independence of the judiciary which faces threat not only from without but also from within. A high court judge has the same protection as the CJI under the Constitution. But the fear of being left out makes high court judges feel insecure. In the words of Milton, ambition is but the last infirmity of a noble mind. Judges also nurture the ambition of promotion and elevation. Earlier, if the CJI visited a state, the chief justice of high court did not go the airport to receive him. If both, the CJI and the chief justice of the high court, were invited to some party, the two would enter from opposite doors at the same time so that none of them would receive each other. But the situation has undergone a colossal change after the introduction of the collegium system. Independence of judges must be maintained, and obviously then, the CJI cannot speak on behalf of all judges, even though symbolically, he may represent the judiciary as its head.
Earlier, the Standing Committee of Parliament attached to the Ministry of Law and Justice in its 21st Report made many recommendations for making the judges of the Supreme Court and High Courts accountable. But the members of the Committee felt that for it the system of the appointment of judges to the higher judiciary has to be rectified first. So the crux of the problem lies in the process of the appointment of judges. If competent and honest people are appointed judges it will address the problem of accountability, overreach and delay. The Committee has recommended that the power of appointment of the judges should be in the hands of the executive as was the position till. In 2006, two Parliamentary Committees made the same recommendation to restore the pre-1993 position.
Justice J. S. Verma, who is the author of the majority judgment in the Second Judges’ case, recently wrote to the Chief Justice of India that the system of collegium had failed and a new system needed to be invented. The Administrative Reforms Commission headed by Veerappa Moily has recommended the constitution of a National Judicial Council (NJC) for the appointment and removal of judges. The previous National Democratic Alliance government had introduced the Ninety-Eighth Amendment Bill, 2003 for the setting up of an NJC which lapsed.
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