Kapil Sibal JUSTICE FOR NONE!

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TTHE END OF ONE YEAR of the Modi dispensation, justice for all is still a distant dream. The measure of the gap between promise and delivery: the index of non-performance. ‘Justice for all’ was yet another Modi sloga: before the elections and ‘justice for none’ is the outcome after one year.

The Modi government has not even begun to address issues relatin. to the justice delivery system. The 3 crore pendency of cases, the allege, increase in levels of corruption within the judiciary, the inability of the! common man to get an effective judicial redressal system, delays of cour procedures, the inability to set up ‘commercial courts’, increasing cost? involved in the justice delivery system and other related issues are in the government’s radar.

The uppermost priority of this government is to exercise control over appointments in the higher judiciary. It has proposed changes to ensure that the executive holds the trump card in matters of appointment.

Article 124 (A) has been inserted in the Constitution by setting up a National Judicial Appointments Commission (NJAC) consisting of the Chief Justice of India, two senior judges of the Supreme Court next to him in hierarchy, the Union minister oflaw and justice and two eminent persons to be nominated by a high-powered committee.

Article 124 (B) provides for the NJAC making recom­mendations for the appointment and transfer of judges of the higher judiciary. These constitutional amendments suggest that neither the judiciary nor the executive will have primacy in the appointment of judges to the higher judiciary.

However, the National Judicial Appointments Com­mission Act (the Act of 2015), which too has been passed and notified, gives a veto power to any two members of the commission if they do not agree with the recommen­dations of the NJAC. This suggests that if the law minis­ter along with an eminent person objects to a particular nomination by the NJAC, it cannot go through. This veto power ofthe execu­tive will be a lethal weapon in its hands to block any appointment which the government of the hour perceives to be ‘inconvenient’. Also, the fact that the judiciary does not have primacy in matters of appointment strikes at the root of the independence of the judi­ciary. Instead of addressing the issues that affect millions of people in this country who are crying for justice in a system which is tardy, slothful and inefficient, the govern­ment has chosen to spar with the judiciary. Its intent and priorities are clear. It is least concerned with the travails of th eAamAadmi in accessing justice and more concerned with its own primacy in the appointment process. This is not just reflective of its priorities but exposes its desire to change the system to its advantage so that in the remaining period of its term, it can hope to fill the judicial corridors of power with incumbents who are perceived to be closer to this dispensation. This augurs ill for our judicial system.

Some might argue that the same veto can be exercised by the judiciary if the government of the day wishes to push particular individuals to man the higher judiciary. The logic of that argument is weak. It breaks down at the altar of our experience. We have instances from the past where those responsible for appointment to the higher judiciary have succumbed to executive pressure. The results stare us
in the face. Together the executive and the judiciary will make compromises to accommodate favourites at both ends and the justice delivery system will be the casualty.

While we can be critical of the intent of this government in pushing its agenda in the manner suggested above, we must be mindful of the tardy manner in which the col­legium system has worked. Far from passing the test of scrutiny with flying colours, its working has disappointed one and all.

Its fundamental flaw is that it has destroyed the inde­pendence of judges in the high courts, especially those who aspire to be elevated to the Supreme Court. They look up to the judges ofthe Supreme Court and seek their approbation. They lobby with judges as well as ministers in the hope that they be elevated. Sitting judges have in the past been suc­cessful in appointing those whose proximity with them is a matter of public knowledge. The collegium system has not done justice in discharging its responsibilities.

So what is the answer? If we are unhappy with the colle­gium system, we need to substitute it with a more effective mechanism. The NJAC provides a remedy, which, perhaps, is worse than the ailment. The fact is that the judiciary is loathe to give up its power to appoint members of the higher judiciary. This is why they have resisted the attempt to refer the matter to 11 distinguished judges to have a relook at the 1993 judgment in which the judiciary arro­gated to itself the power to appoint members of the higher judiciary. Ifthe judges uphold the NJAC, it will destroy the substratum of the 1993judgment. If they strike down the NJAC, it will be difficult to revive the collegium system.

The road ahead is difficult. Solutions will be hard to find but executive interference in the appointment process must be rejected.

I wonder why the Modi government took up this issue as its primary concern when millions in India are waiting for justice. Yet another instance in which Modi has not been able to usher in the Achche Din he promised, ffl

Shravan Garg CHANGING THE RULES OF THE GAME

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OW DO WE DESCRIBE the story of Narendra Modi’s one year in office as the Prime Minister seeking to address the aspirations of 1.22 billion people? Should we analyse the contributions of the former Gujarat chief minister in improving the lives of millions of Indians or should we try to describe how India will look like when the NDA completes its term of five years? Also, what are the chances of Modi still continuing as the unchallenged leader?

While we may not dwell on the successes or failures of Modi’s rule, one thing is certain: Modi has successfully changed the dynamics of politics that was in play over the past six decades or so. Modi cannot be expected to return to Gujarat now, to indulge in state politics. He has successfully shed his 2002

image. Although he was an RSSpracharak in the past, he would not want to return to the Sangh’s organisational fold.

There was no opposition in Gujarat during the Modi Raj. While the Bharatiya Janata Party was the ruling party in the state, one cannot recall who the state president of the party was during Modi’s regime in Gandhinagar. Pravin Togadia’s VHP was almost non-existent or invisible during Modi’s chief ministership. Modi decided how the Sangh would function in Gujarat. Had Modi decided not to try his luck in Delhi, he would have continued for as long as Jyoti Basu’s unchallenged rule in West Bengal. But neither Modi was Basu nor the B JP CPM.

Narendrabhai is now repeating his Gujarat experiment and experience in a ‘Modified’ and customised manner which could well suit both the health and fears of Delhi. Modi knows well how the nation’s capital behaved when Emergency was imposed in June 1975 by Indira Gandhi. He had also seen how people started crawling when they were asked to merely bend. Mrs Gandhi was both the prime minister and the ‘Congress party’. There was no space for any kind of dissent in the party. She was a firm believer in the country needing a strong Centre. As a re­sult, the Congress did not have any strong chief ministers in the states.

Mrs Gandhi had every other advan­tage except one that Narendra Modi has. While Mrs Gandhi may have been leading a weak party, she was faced with a determined Opposition which ultimately ensured her ouster from power in 1977-

Modi has potential to establish himself as another Mrs Gandhi, Mrs Margaret Thatcher or Golda Meir of Israel, but for that the country will have to wait till the Bihar elections are over. This election will decide whether Nitish Kumar can prove to be another Arvind Kejriwal or if Patliputra will give way to Modi to fulfil his global ambitions. The revolt of Jitanram Manjhi against Nitish was not engineered in Patna and must have been part of a grand Amit Shah strategy. If Manjhi succeeds in dividing the vote bank of Nitish and Lalu, nothing will stop Modi from taking over an important state.

Uttar Pradesh would then pose no problems for Modi. Polarisation of voters is already deep rooted in the state. Therefore, there is no reason for Modi to get perturbed by what Arun Shourie or Deepak Parekh may have publicly pronounced about his government’s performance.

In fact, Modi may still be judging the mood of the country, his own party, the Sangh, opposition parties, captains of industry and world leaders in general and
our neighbours in particular, before he actually starts working on his hitherto undisclosed agenda. On would not be surprised if Modi is doing his own assessment of his government’s performance, caring two hoots for people like Rahul Gandhi. The Congress vice-president gave zero out of ten to the prime minister as far as farmers and labourers were concerned and ten out of ten to the government for dolling out benefits to corporates. Con­trary to what Rahul Gandhi has alleged, HDFC chairman Deepak Parekh only said that impatience had begun to show among businessmen as nothing had changed in the first nine months of the Modi government.

How does one know whether a government is perform­ing or not. When asked, a senior person close to the ruling party shared his personal thoughts thus: Modiji wants to do hundreds of things but an atmosphere has been created, deliberately or otherwise, of caution, apprehen­sion and fear, among ministers and bureaucrats in Delhi. There are ministers who were in the race for prime min­istership with Modi. While some states are being ruled by the B JP, there are others that are being ruled by parties op­posed to the B JP in general and Modi in particular. There are some B JP chief ministers who were being publicly equated with Modi in terms of competence and projected for the top post. All these factors are not being taken into account while assessing the performance of Modi.

Judging Modi’s performance on the strength of figures would be misleading. The loyalists would generate reams of paper to list out achievements. The detractors, on the other hand, will also play their part as stakes are high for both sides. But one thing is certain, whether one likes it or not, Modi is going to stay. The question is whether he is going to change himself and accommodate others. The result of the Delhi assembly elections had answered this question partly. Bihar will provide the full answer. Modi’s actual performance will start from the day Bihar results will be out. Let us wait and watch.

GLOBESCAN

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IN NEGATIVE ZONE: Britain’s inflation rate unex­pectedly fell below zero for the first time in more than half a century, as the drop in the food and energy prices depressed the cost of living. Consumer prices de­clined 0.1 per cent in April from a year earlier, the Office for National Statistics said. Economists had forecast the rate to be zero, according to the median of 35 estimates in a news survey. Core inflation slowed to 0.8 per cent, the lowest since 2001. With inflation so far below the Bank o: England’s 2 per cent target, policy makers are under pres­sure to raise the key interest rate from a record-low of 0.5 per cent for now. Governor Mark Carney said any period falling prices will be temporary and an expected pickup i: inflation at the end of the year means the next move in bo: rowing costs is likely to be an increase.

Britain in the event
of‘Brexit’

I LEGAL TROUBLE: Alibaba has

been sued by Kering, a luxury brands group that includes Gucci and Yves Saint Laurent, over counterfeits on its popular e-commerce platforms. The lawsuit, filed in New York, alleges that Alibaba and its related companies “know­ingly encourage, assist, and profit from the sale of counterfeits on their online platforms…(and) make it possible for an army of counterfeiters to sell their illegal wares throughout the world”. Counterfeits have long been a headache for Alibaba, which operates China’s most popular e- commerce shopping platforms Taobao and Tmall. Co-founder Jack Ma has even called fakes a “cancer” to the company.

 

vodafone
SMART BATTLE: Apple was handed a mixed === ruling by a US appeals court in the latest twist in a blockbuster intellectual property battle with Samsung Electronics, as a prior patent infringement verdict was upheld but a trademark finding that the iPhone’s appearance could be protected was thrown out. That means up to 40 per cent of a $930-mil- lion verdict, which had been won by Apple, must be reconsidered. In the ruling stemming from the global smartphone wars, the Federal Circuit in Washington upheld patent infringement violations including one which protects the shape and colour of its iPhone as well as the damages awarded for those violations.
QUID PRO QUO: Greece is

near a cash-for-reforms deal with its euro zone partners and the International Monetary Fund that would help it meet debt repayments next month, the country’s finance minister said, as worries persist over a possible bankruptcy. Athens has been defending its “red lines” in talks with lenders, refusing to yield on further pension cuts and more labour maket liberalisation to clinch a deal that would release remaining bailout aid, despite a pressing cash crunch. “I think, we are very close (to a deal)… let’s say in a week,” Greece finance minister Yanis Varoufakis said. “Another currency is not on our radar, not in our thoughts.”

TOTAL RECALL :Takata is nearly doubling the size of its massive recall for faulty airbags, making it the largest auto recall in history. It recalled airbags used in about 18 million vehicles. This move will bring that number up to 34 million autos. That is nearly one out of every seven cars on US roads.

The recall is one of the largest consumer product recalls ever.

At least five deaths have been tied to the faulty airbags. But Takata has previously resisted demands by regulators to get all the affected airbags off the road. The airbags have been known to explode and send shrapnel into the face and body of both the driver and front seat passenger.