CJI is the 'Master of roster'

  

• Earlier, the Constitution Bench declared, on Nov 10, 2017, that it is the prerogative of the Chief Justice of India to decide what case has to be heard by which judge.
• The Constitution Bench held that “there cannot be any kind of command directing the CJI to constitute a Bench”. The Bench held that no judge can take up or post matters on his own. That authority is the Chief Justice's exclusive domain.
• The judicial institution would crumble if every judge acts like the Chief Justice of India.
• Judges have to act within their parameters set down by rules and precedents of the Supreme Court to protect judicial integrity and decorum.
• Constitution Bench recorded that the CJI is indeed the first among equals on the judicial side, but on the administrative side, he is the master of the roster.

  

• The judges acknowledge the CJI is the master of the roster.
• Given the context of the January 12, 2018 press conference by rebel 4 judges, the judges also feel that there was a need to make the assignment of cases more transparent, even though the CJI could reserve the right for keeping to himself hearing on certain extraordinarily important cases of national importance. 
• The four senior judges had said that listing of the PILs on judge Loya’s death before a select bench headed by a “junior” judge pushed them to hold the press conference for highlighting the systemic irregular manner in which successive Chief Justices of India have assigned important cases to handpicked benches headed by junior judges.
• There is a not a single judge who supported the four senior judges’ idea of holding a press conference to highlight the grievance.
• The CJI and judges are also aware that despite a roster system, there would always be room for a judge to be dissatisfied about the nature of the cases getting allocated to him/her and could still go ahead and hold a press conference airing grievances.
• The novel way of “discharging debt to the nation” through a press conference could turn out to be contagious, with personal ambitions and perceived irregularities fueling similar occurrences in the high courts, which have far greater number of judges than the apex court and, thus, greater possibility of disagreement with the chief justices.

Read SC Judges revolt raises more questions

PSU Boards being filled with BJP workers

 

 

• The decision to nominate BJP workers as non-official directors makes a mockery of the party’s 1998 manifesto and the government’s own guidelines issued in 2015.
• In an interview, Modi repeated his favourite maxim, “minimum government, maximum governance.” He went on to state, “in a developing economy, state enterprises do have a role in some sectors. They have to be managed professionally and efficiently. We have given them operational freedom and brought in talent from the private sector as well to facilitate this.”
• Modi's decision that ONGC acquire 80% stake in debt trapped GSPC, by investing Rs.7,738 crore badly hurt its finances and its credibility. The decision is apparently imposed on the company by those whose primary objective was to bail out GSPC and obfuscate its shortcomings. A nominee director on the board of ONGC would have found it difficult to resist the extraneous pressure.
• A year after Modi’s interview with the WSJ, his government took the patently retrograde step of nominating BJP spokespersons and party workers as non-official directors of eleven odd CPSEs, many of which are ‘Maharatna’ and ‘Navaratna’ companies, which are expected to have a great deal of functional autonomy and be managed by professionals with experience.
• These include ONGC (Sambit Patra), Engineers India Ltd (Shazia Ilmi), Cotton Corporation of India Ltd (Rajika Kacheria), Hindustan Petroleum Corporation Ltd (Asifa Khan), Bharat Heavy Electricals Ltd (Surama Padhy), Bharat Petroleum Corporation Ltd (Tamilisai Sounderarajan), State Trading Corporation (Bharatsinh Prabhatsinh Parmar), Export Credit Guarantee Corporation Ltd (S. Malathi Rani), Andrew Yule & Company Ltd (Sipra Goon), National Handloom Development Corporation Ltd (Shikha Roy) and National Aluminium Company Ltd (K.G. Sinha).
• The credentials of each one of these persons are prima facie unimpeachable. But the question is to what extent will they be able to add value to the management of the CPSEs?
• Companies Act Section 166 requires the government to nominate any person who fulfills the criteria. While it no doubt provides a great deal of discretion, such a discretion cannot evidently be arbitrary and injudicious. The discretion so provided in the Companies Act enables the government to nominate persons who have sufficient domain knowledge relevant to the operations of a given CPSE.
• In its 1998 manifesto, the BJP, led by Atal Bihari Vajpayee, committed itself to managing the public sector “professionally”, “with least interference by government”.
• The department of public enterprises (DPE) advised all ministries that “non-official directors are to be drawn from the public men (sic), technocrats, management experts and consultants, and professional managers in industry and trade with a high degree of proven ability.” Further guidelines stipulate that persons nominated as non-official directors of CPSEs should be “professionals of repute having more than 15 years of relevant domain experience in fields relevant to the company’s area of operation”, “persons of eminence with proven track record from industry, business or agriculture or management.”
• The decision taken now by Modi government to nominate BJP workers as non-official directors clearly makes a mockery of the BJP’s own manifesto of 1998 and the guidelines issued more recently by the NDA government itself.
• Lord Denning, the greatest English judge of modern times, said, “there is nothing wrong with a director being nominated by a shareholder to represent his interests, so long as the director is left free to exercise his best judgment in the interests of the company which he serves. But if he is put upon terms that he is bound to act in the affairs of the company in accordance with the directions of his patron, it is beyond doubt unlawful.”
• It was reported that the present government had tried to appoint a BJP worker as a member of the National Human Rights Commission (NHRC) and it would have gone ahead with that move but for a PIL filed before the apex court.
• If Modi is earnest about reforming the CPSEs, he should walk the talk by distancing the government and his party from them. CPSEs needs professional management, competition and public accountability to perform its crucial role to play in nation building for decades to come and this kind of tinkering with their management is bound to hurt the economy.

Slogans such as “Minimum Government, Maximum Governance” and “Reform, Perform and Transform” are laudable, easy to articulate but difficult to translate into tangible action. Intentions underlying such slogans are more important than the spoken words. Intentions will mean nothing, unless they get translated into genuine action. As the gap between words and deeds widens, the credibility of sloganeering will get eroded. It is very clear that BJP's hidden agenda is neither well being of the nation nor its people but saffronisation of India.

Judicial Activism in India

Judicial activism, refers to judicial rulings suspected of being based on personal or political considerations rather than on existing law. Judicial activism can best be described as rulings that are guided by the personal decisions or political interests of the individual judge. Judicial activism means different things to different persons. Critics denounce judicial decisions as activist when they do not agree with them. Public Interest Litigation is a good thing when it is used to enforce the rights of the disadvantaged.

In India, the opening up of access to courts to the poor, indigent and disadvantaged sections of the nation through Public Interest Litigation (PIL), is unexceptionable judicial activism. From 1979, the judiciary led by the Supreme Court in India became relevant to the nation in a manner not contemplated by the makers of the Constitution and became an active participant in the dispense of social justice. But it has now been diluted to interfere with the power of the government to take decisions on a range of policy matters. With PIL, the common man, the disadvantaged and marginalised sections of society had also easy access to the Court with the help of social activists.

Recently, the Supreme Court has directed the most complex engineering of interlinking rivers in India. The Court has passed orders banning the pasting of black film on automobile windows. The Court has ordered the exclusion of tourists in the core area of tiger reserves. All these managerial exercises by the Court are hung on the dubious jurisdictional peg of enforcing fundamental rights under Article 32 of the Constitution. In reality, no fundamental rights of individuals or any legal issues are at all involved in such cases. The Court is only moved for better governance and administration, which does not involve the exercise of any proper judicial function.

In its most activist and controversial interpretation of the Constitution, the Supreme Court took away the constitutionally conferred power of the President of India to appoint judges after consultation with the Chief Justice, and appropriated this power in the Chief Justice of India and a collegium of four judges. In no Constitution in the world is the power to select and appoint judges conferred on the judges themselves.

Even proceedings of Legislatures are controlled by the Court. In the Jharkhand Legislative Assembly case, the Supreme Court ordered the Assembly to conduct a Motion of Confidence and ordered the Speaker to conduct proceedings according to a prescribed agenda and not to entertain any other business. Its proceedings were ordered to be recorded for reporting to the Court. These orders were made in spite of Article 212 of the Constitution which states that Courts are not to inquire into any proceedings of the legislature.

The Court has for all practical purposes disregarded the separation of powers under the Constitution, and assumed a general supervisory function over other branches of governments. The temptation to rush to the Supreme Court and High Courts for any grievance against a public authority has also deflected the primary responsibility of citizens themselves in a representative self government of making legislators and the executive responsible for their actions. The answer often given by the judiciary to this type of overreach is that it is compelled to take upon this task as the other branches of government have failed in their obligations. On this specious justification, the political branches of government may, by the same logic, take over the functions of the judiciary when it has failed, and there can be no doubt that there are many areas where the judiciary has failed to meet the expectations of the public by its inefficiency and areas of cases.

Justice Jackson of the U.S. has aptly said: “The doctrine of judicial activism which justifies easy and constant readiness to set aside decisions of other branches of Government is wholly incompatible with a faith in democracy and in so far it encourages a belief that judges should be left to correct the result of public indifference it is a vicious teaching.” Unless the parameters of PIL are strictly formulated by the Supreme Court and strictly observed, PIL which is so necessary in India, is in danger of becoming diffuse, unprincipled, encroaching into the functions of other branches of government and ineffective by its indiscriminate use.

The three branches of government viz. Executive, Legislature and Judiciary should learn to respect each other and confine themselves to their jurisdiction, democracy might very well end up in peril.

There are injustices each and every day,
‘injustice anywhere threatens justice everywhere'.

It is emphatically the province and duty of the Judicial Department
to say what the law is, [not what the law ought to be].
This is the very essence of judicial duty ... John Marshall