Daily Excelsior... Editorial

Euphoria in Congress
camp
COMMENT
From B.L.Kak

NEW DELHI: Euphoria in the congress camp. Gloom in the Bharatiya Janata Party. All this in the wake of the spectacular victory of the former in the just .......more

BJP's moment of truth
By Kedar Nath Pandey

There is no ambiguity about the verdict delivered by the electorate in the four states which went to the polls: An overwhelming ....more

Constitution amended unconstitutionally
basic structure destroyed
By : Justice V G Palshikar

It has been universally accepted truth that the Constitution of a country whether written or unwritten should always be a dynamic organism meant for firm establishment of human rights and rule of law for its protection. The Indian Constitution has acquired the status as the best written Constitution in the democratic world.......more

Saving our economy
from foreign assault
By S. V. Vaidyanathan
A country has many defining moments in its history...more

EDITORIAL

NO GOING BACK

Finance Minister Yashwant Sinha has Explained to the party stalwarts including RSS leadership the correct position of liberal economy vis-a-vis opening up insurance sector to foreign equity participation. According to him the country needs inflow of foreign capital to the tune of 25 billion dollars annually to meet the requirements of massive infrastructural developments in hand and on the anvil. This is simply next to impossible to achieve from indigenous resources. Technologies have to be constantly upgraded to retain our competitiveness. If some die-hards within the Sangh Parivar find drift in the swadeshi concept, it bears no relevance to fast moving integration of all economies to acquire global connotations. Isolationism is a primitive course and the current trend is opening up worldwide. He makes it amply clear that decision to allow 40% equity participation to foreign investors in insurance sector is prompted more by our own requirements of rapid economic strides than any pressure from any corner. He elaborates that foreign investors are reluctant to enter India in a big way because of non-opening of insurance sector. As soon it is through there are wide expectations of large flow of FDIs to this country.

Even LK Advani who was present during the session agreed that economic approach cannot be subjected to rigidity and ideological over-dose. In support thereof he quotes the vast changes in Congress policies pursued for four decades in favour of socialistic pattern of society with massive State control of infrastructure sectors and all vital inputs to economic growth. But Narasimha Rao Government after assumption of power in 1991 with Manmohan Singh as the Finance Minister reversed it wholesale and started moving quickly for decreasing State monopoly and opening up the economy to integrate it with global economies. This meant open criticism and condemnation of policies pursued by the Congress Government since 1947 and many stalwarts termed the old policies quite destructive and counter-productive. The Congress realised the futility of isolation and overstress on State control.

The case of CPI (M) in W. Bengal is also cited when Jyoti Basu felt the need of inviting foreign capital. The fact remains dogmatic approach followed by successive Leftist Governments in W. Bengal led to flight of even Indian capital to other States. It may be relevant to mention that today, W. Bengal has the largest investment from Japan in India. If these parties can change and become pragmatic in the fast changing world economies, there is no reason for BJP to harp on themes of swadeshi that have failed in the past and for which the nation had to pay heavy price in terms of lagging far behind. Even Communist China has opened up in terms of liberalisation in almost all sectors with very large foreign participation. The case of erstwhile Soviet Union where socialist prescriptions totally failed leading to balkanisation into many smaller States and the massive economic crisis faced by Russia amply prove that only liberal and pragmatic course serves the purpose better.

In fact, there is the imperative need to understand swadeshi in correct perspective. One should be more than satisfied if three vital areas are addressed. First, India should under no circumstances become the dumping ground for foreign goods/technologies. Second, level playing field should be available to Indian industry. Third, there ought to be strict compliance with the WTO regime and all restrictive and punitive actions of some industrialised countries against India must be effectively fought at WTO and other forums. Swadeshi does not imply that our goods should become incompetitive qualitywise and pricewise. That is possible only through wilder inter-action with global giants which would make all our swadeshi products more competitive and qualitative.

It must be borne in mind that any going back on economic liberalisation is bound to prove fatal to our economy and that is something no Indian can rightfully prescribe to.

ON COURSE

Discussions and directions during the Congress Parliamentary general body meeting brings forth several aspects very clearly. First, Congress has been asked not to be in a hurry to capture Delhi throne and make no move to dislodge present BJP Government at the Centre. Even though some party zealots have been in a hurry to exploit BJP reverses at the husting in the recently held Assembly elections in four States, the saner elements under the overall stewardship of Sonia Gandhi, Chairperson of CPP, makes it amply clear that the time is not opportune for such power game and that it is best for the party and the country to wait and watch. Second, Congress President has given the go-ahead for attacking BJP-led Government on all lapses and policies that adversely affect the common man or the country's economy. This means constructive criticism in and outside Parliament. That implies full throttle thrust on pointing glaring mistakes and anti-people policies as perceived by Congress party and not as conceived by Vajpayee Government. This also has the implied inference that Congress as on now offers no solutions to the problems faced by the country and its teeming millions. Their role will be confined to only having massive dig at Government failures. The time for offering remedies is not now but only when the ruling combine has been dwarfed in public esteem as unfit for governance. That time is the election time or when Congress is in power. It however promises constructive support on all vital issues that affect the country.

Third aspect of Congress conclave of CPP is quite pertinent and has direct bearing on many things. This relates to formation of alternative Government led by Congress with the active help of miniscule parties that make a total of 22 which is more than what the Vajpayee Government has. It has been finally rejected by Congress President Sonia Gandhi to head the amalgam of 22 odd parties working at cross purposes. Hence the latest theme is mid-term poll. Here too party is no in hurry but this is the most plausible and sensible option in case Vajpayee Government falls under the weight of its own heavy-weights. In fact, the more mid-term poll is delayed the better are the prospects for Congress comeback on its own. The party hates to stand on crutches of Jyoti, Mulayam, Laloo, Mamta or Jayalalitha. To that extent and uptil that time Vajpayee Government continues.

Fourth one pertains to party build up in Bihar and UP, the two largest States without which no party can govern at the Centre. Sonia has already given the go-ahead for targetting RLM (Mulayam and Laloo) as enemy number one. BJP is second. This is being done to ensure comeback of minority and BC vote to Congress fold. Then and then alone Sonia would like to bid for mid-term poll to capture Delhi throne on its own. It appears politically and sensibly Sonia is right on course.

Euphoria in Congress camp
COMMENT
From B.L.Kak

NEW DELHI: Euphoria in the congress camp. Gloom in the Bharatiya Janata Party. All this in the wake of the spectacular victory of the former in the just concluded Assembly polls and the humiliating reverses suffered by the latter.

The outcome of the polls has naturally evoke a mix of reactions among political parties, expectations of an imminent change alternating with hopes that the status quo will remain. The instant reaction within most of the major parties after the final results were known was that the emerging situation was pointing towards the inevitability of snap Lok Sabha elections.

This reaction was also linked to the fact that Prime Minister Mr Atal Behari Vajpayee had hinted at such a contingency in the post-poll situation which he thought was "pregnant with many possibilities". However , judging by the official stand which the congress has taken and also by the statement made by some BJP leaders and its allies, the inevitability of a snap poll has receded somewhat, yielding place to the sentiment that though elections may not be in the offing all that soon, the polity is again under test and the situation will have to be monitored carefully.

The fact remain that despite all the claims by the leaders of the BJP-led coalition that the poll outcome has not affected political stability at the centre, the central government has been considerably weakened by the debacles which the dominant partner of the coalition has suffered at the Assembly polls, and the coalition will no has suffered at the assembly polls and the coalition will no more be able to absorb the kind of shocks which the alliance partners administer it from time to time.

That the BJP is quite aware of this fact is available in the pious hopes which its leaders have been repeatedly articulating from the moment the counting of votes began, that the allies will not change loyalties at this time but continue to extend the fullest co operation to the BJP to run the government efficiently. Similarly, the BJP which had initially denounced the linkage between the central government’s performance and the assembly poll outcome has now veered around to the view that the Vajpayee government’s record is not flattering and that there was negligence in handling the situation resulting from unprecedented hikes of prices of essentials.

At least in the BJP camp, the adverse poll result appears to have induced a sense of realism in evaluating the state of relations between the party and its allies. Hopefully, these equations will change in the immediate future, and allies like Mamta Banerjee may not to resign from bodies like the central coordination committee in protest against BJP’s inaction.

Considering the enormous pressure within the party in favour of the launch of immediate ‘toppling efforts’ to dislodge the Vajpayee government, the Congress Working Committee must be given credit for adopting a sober, well-considered and detached attitude towards the gains accruing from the Assembly polls. Both prudence and realism demand that the party avoid adventurism of any kind merely on the basis of triumphs in three States.

By acknowledging that restraint and humility are the need of the hour, the CWC has conceded that viewed against the background of the battles yet to be fought against the BJP on an all-India plane, poll successes in three states do not warrant a major initiative like dislodging the BJP coalition from office.

The CWC has also rightly drawn the conclusion that the popular vote in Delhi, Rajasthan and Madhya Pradesh was in the nature of an indictment of the BJP’s sectarian policies, against its performance wherever it was in power, and supportive of the Congress commitment to secularism and democracy. The CWC resolution also took note of the fact that the pro-Congress vote in the three States from women, minorities, Dalits, backward classes and other sections of society has marked a beginning in their return to the party from which it had got alienated in recent years.

It was not without significance that the Congress did not extend support to the demand voiced on the floor of the Lok Sabha on Monday by some Opposition parties for the resignation of the Vajpayee government. For the Congress, which is the second largest party in the Lok Sabha after the BJP, and on whom a number of smaller parties are dependent for initiating moves against the BJP coalition, raising a formal demand in Parliament has serious connotations, not the least of which is that the party must be in a position to carry through its destablisation threat inherent in the demand for resignation to its logical conclusion.

The BJP is on test once again, not only in respect of its capacity to deliver the goods through the serious implementation of the national agenda for the governance but also in respect of the frenetic promotion of the sectarian polices of the Sangh Parivar at the cost of communal harmony. The BJP should do some soul-searching to determine why a party which was popular in the beginning of the year has been rejected to soon by the voters.

BJP's moment of truth
By Kedar Nath Pandey

There is no ambiguity about the verdict delivered by the electorate in the four states which went to the polls: An overwhelming majority of the 83 million voters has voted against the Bharatiya Janata Party. As the party grapples with the painful aftermath of comprehensively losing Delhi and Rajasthan to the Congress and abjectly failing to wrest Madhya Pradesh from it, it cannot even take refuge in a politically-neutral "anti-incumbency factor" -- that quasi-mechanical law of nature which habitually claims incumbent governments as its helpless victim. The reiteration of popular faith in the Digvijay Government in Madhya Pradesh has proved once again that the much-abused term actually seethes with very real voter discontent on very real issues; it cannot fell a dispensation which is seen to have delivered. The BJP must, therefore, face the writing on the wall -- this is a vote on its governance. More specifically, on the lack of it.

The party cannot escape another bitter truth either. The turn of the ballot in Rajasthan, Delhi and Madhya Pradesh is also a verdict on the eight month old BJP-led government at the Centre. Though senior BJP leaders continue to protest that the setback in the states is not a referendum on the party's performance at the Centre, the amputation of one from the other is too bloodless to be true. The Vajpayee Government can ill-afford this schizophrenic distancing from the electorate's anger in Delhi. Rajasthan, and Madhya Pradesh. The vote cast against the BJP in the states has also registered the voter's disillusionment with the Government it leads at the Centre.

The party must realise that it is a mandate against its visible fumbling on almost all major issues of popular concern, especially the failure to curb rising prices of essential commodities. Even as the BJP short-sightedly shirks the lessons from the verdict, however, the Congress's restraint in the face of its spectacular gains has shown unexpected maturity. It reiterates that it will do nothing to destabilise the Vajpayee Government; it continues to keep impatient kingmakers at arm's length. Though the Assembly wins may not immediately catapult the party to power at the centre, the verdict is certain to bring a new confidence in its efforts to resuscitate itself. It is surely ironical that at a time when the BJP's "Congressisation" -- in the worst sense of the term -- seems to be complete, the Congress has been able to pull itself together to successfully purvey a "new look" avtaar.

As the Congress raced back to power in Rajasthan and Delhi and reinforced its citadel in Madhya Pradesh, it is also clear that it has benefited from more than the anti-BJP vote. The huge swing in favour of the Congress -- about 14 per cent in Delhi, for instance -- is evidence that the party has retrieved a large section of its erstwhile constituency of minorities. Dalits and backward classes which it had lost to the United Front. As it cleanly divides the mandate between the Congress and the BJP, therefore, the verdict in the states points to a new political polarisation. The "Third Front" is all but dead. It can only tail the two major parties as they lock horns with each other.

The record of successive BJP governments in the states shows that it fails to appreciate the electorate's genuine, day-to-day problems and believes that people are driven to polling booths only by lofty moral values which the party claims to espouse. How else is it possible to explain the trebling of bus fares in Rajasthan just weeks before the Lok Sabha elections?

More importantly, however, the BJP's assertion of being a party with a difference has not just begun to wear thin but sounds deafeningly hollow. The same wheeler-dealers who thronged the corridors of power during the Congress and Janata/NF/UF regimes, lost no time in daubing themselves in a pale shade of saffron and crowding the very same corridors. Long years ago, in the immediate aftermath of Indira Gandhi's rout in the 1977 election, then foreign minister Atal Behari Vajpayee had pertinently told a Janata Party victory rally to guard against complacency because vyakti badle hain, vyavastha nahi badla (Only the people have changed, the system has not). Sadly, as Prime Minister, the same Vajpayee has not only forgotten his own remark but has even failed to change the people around him.

The BJP Government has been so vacillating and defensive about not going on a witch-hunt that it has allowed blue eyed bureaucrats of the Congress/UF regime not just to survive but even prosper. A section in the party is so obsessed with collecting fraudulent good character certificates from the "secular" intelligentsia that it now bends backwards to reward even unreformed Stalinists. The recent nomination of the new chief of the National Commission for Women reveals yet again the drought that afflicts the BJP's intellectual catchment area. Prasar Bharati lies without a head and direction for months because the governments cannot reconcile rival factional demands. Admittedly, these are not crucial to an election, but protracted prevarication on even such trivial issues of governance only lends credence to hyperbolic journal headlines such as, "Unfit to govern".

Perhaps the problem here is that the BJP leadership is not well versed with the relevant body of political theory, particularly the works of the Italian Marxist thinker, Antonio Gramsci. (Yes, there is more to Italy than Sonia Gandhi!) Had they comprehended Gramsci, they might have realised that "hegemony" is a comprehensive concept; that a regime rules through intellectual consensus, spawned by ideological hegemony of a particular class (or social group) over the rest of society. And the fact is that a Congress-Left intelligentsia (which nowadays operates under the beguiling label of secular intelligentsia) exercises a near-total hegemony at the level of thought. The Congress was intelligent enough to periodically co-opt this section through sops and offers of proximity to power -- the setting up of the monstrously expensive JNU in Delhi and lavish grants to AMU by Indira Gandhi being examples of this successful co-option. So, when the BJP looks around for people to man key hegemonic bodies like the ICHR or ICSSR, or even Prasar Bharati for that matter, it has to fall back either on intellectually unsophisticated loyalists or Congress turncoats. If it could not find a respectable name barring lifelong Congress sympathiser L. M. Singhvi to induct to the Rajya Sabha from Rajasthan, it must speak volumes for the party's politico-intellectual poverty.

The crash of '98 might prompt the BJP into taking some swift corrective measures. While the immediate priority must be governance, it is true that good governance, being essentially a subjective perception, does not necessarily qualify as the principal criterion for re-election. But it is not the prospect of re-election that should concern the mauled party now. At least it needs to govern with a difference so when that inevitable mid-term poll descends, the party is at least able to credibly defend its record in government. In other words, politics has to be in command as Mao Zedong had decreed decades ago.

Today both BJP's politics and its cadre has become virtually indistinguishable from those of the Congress. Thus, the party is fighting its principal adversary on the latter's home turf and facing a natural disadvantage. For a party that so aggressively and impressively rose from the ashes of the 1984 Lok Sabha poll to become India's party of government, this is a pathetic denouement. The loss of a few states in a mid-term shock therapy by the electorate need not be critically debilitating for the BJP's long-term prospects. But that's provided it still retains the will to fight. INAV

Saving our economy from foreign assault
By : S V Vaidyanathan

A country has many defining moments in its history and India is now facing one such moment. Since the nuclear tests in May, there have been attempts to bring India in line with the demands of geo-political forces of capitalism.

History has shown that capitalism cannot survive without the developing world, its huge markets and its huge reserves. Capitalism is an empire by itself not just an economic designer tag. In a book When Corporations Rule the World, David Korten says that ''of the top 100 world economies, 51 are corporations. Two-thirds of the international trade now involves transnational companies and one-third involves trade within a single transnational.'' So when we let such corporations enter our country it is, in a sense, like an alien government coming in and dominating us very subtly.

These geo-political capitalist forces (GPCF) have divided the world into four convenient zones as it were-- the US, Russia, the Islamic states, and Japan. India and China are not included because their economies are not entirely opened to these forces like the other were. The Japanese generally oversaw the south-east Asian countries, it had a symbiotic relationship primarily through exports and imports.

Germany put, after its reunification, large investments into Russia and the US oversaw Latin America, India and China got funds from Japan, the US, IMF and World Bank, but not one of them could really dominate either of the two largest countries in the other were. The foreign institutional investors were welcomed with tremendous advantages over their Indian counterparts.

Before we Indians realised what was happening the West started dumping everything in the name of globalisation- from washing machines and refrigerators to Cartier watches and pens and whiskey into the market. Some of them rode piggyback on Indian corporates to get in but as the economy liberalised they set up 100 per cent owned subsidiaries. The result was over capability in several industries.

The stock market for one saw a harrow son et lumiere show by the FIIs. Their ability to manipulate the market became evident: When they bought, the index went up; and when they sold, the sensex dropped. They could play god with the market which is dominated by bears who have a vested interest in keeping the market bearish.

Most of the stocks that the FIIs own were bought from Indian financial institutions in bulk directly or through brokers. Earlier, the market had floating stocks of just Rs 2000 crores to Rs 3000 crores. After the FIIs came and bought institutional stock as well as stocks inthe market, the market became a little more liquid but the shares in the hands of the FIIs upset the whole balance and gave them tremendous leverage with the index scrips. The result of all this is that the FIIs or any one wanting to destroy the sentimet of the market, create economic panic and chaos, destroy the confidence of the investing market.

The geo-political capitalist forces would like to tame India which, now more than ever under the BJP rule at the Centre, tries to take a nationalist stand. The BJP government is probably the first government in 50 years that has stood up to the United States and the rest of the world and said that it would pursue an independent nuclear policy. There are even second thoughts on India joining the World Trade Organisation (WTO) which is nothing more than a glorified serf of the International Monetary Fund and the US Treasury.

The assault on India's economy was sought to be engineered by the sanctions, but it did not hurt India much. Then came Standard and Poor's act of downgrading India because of the perceived repercussions of the sanctions. That too didn't do much damage. So they decided to hit at India's largest financial institutions and this will be followed next by an assault on India's development banks and nationalised banks. They are the pillars of India's economy.

A broker who is well versed in the techniques of the market tells us of this assault that took place on October 5, which brought down the BSE to its third largest fall of 224 points. He said almost all the pivotals went into lower freeze levels. There was unprecedented panic among market participants, particularly the small investors. This was the first ever attempt to undermine a powerful financial institution with the media and the market working in tandem. It must be remembered that the financial institutions are the only bulwark against huge buying or selling pressures in a market that is devoid of retail investors. On the October 5 attack, this broker describes the machinations: A campaign was initiated of using the disclosure of the NAV of the US-64 Scheme with devastating impact on the market. After planting media reports that there was a huge erosion in the value of the US-64 Scheme portfolio because of the scheme being mismanaged, they proceeded to goad the investor into redeeming his holdings while simultaneously battering the stocks in which the US-64 scheme had large holdings. This fulfilling cycle, said the broker, is a sure fire formula for ensuring a continuous state of panic in the market.

On Tuesday, September 29, the media reports appeared about the low NAV of the US 3.15 pm on that day a first round of hammering of prices was performed followed by a further fall on Wednesday. Thereafter the markets were closed for holidays till October 5.

On October5, Morgan Stanley Asset Management, one of the largest and hyperactive FIIs, resorted to large scale selling of stocks. About a week earlier it had reportedly effected a purchase of stocks of upwards of Rs. 200 crores as a sequal to its upgrading India in their reputed MSCI index. The bears in tandem with, Morgan Stanely also hammered down the stock prices. It circulated rumours that UTI was liquidating four percent of its holdings. The selling, said this broker, was purposely effected in a manner to create disproportionate fall in prices.

The relationship of the bears with the FII can easily be established by Sebi, though there seems to be some reluctance on the part of the regulator to act with alacrity. It seems to be worried more about what the BSE board members will say or what the foreigners will think, abandoning its duties to the investing public.

According to this broker and many others like him who follow the market closely, there is a definite nexus between the bears and the FII. They reportedly work in tandem in effecting sales and purchases. A genuine and sincere probe of the bear cartel transactions, they say, will establish that their selling and purchasing have either frontrun or run in parallel with the transactions of the fund.

For example, the FII has been selling SBI stock for the last six months in bits and pieces at which time the bear cartel has remained heavily short from a level of upwards of Rs. 300 even still today at a level of Rs. 166, thereby making a killing. It was no surprise that a very limited group on October 5 made a killing after designing the fall. These facts are well known in the market. October 5 will not be the last assault. They are preparing the same treatment for banks and Indian FIs which have NAVs as their Achilles' heel.

That is why one says that this is India's defining moment BJP's nationalism will have to have flesh and the party has to take very firm decisions to clean up our prestigious financial institutions. Corruption will have to be weeded out and the politicians will have to stop dipping into the FI funds for themselves or the crony capitalists. Will this Government live up to its claim to national fervour and get down immediately to tackling this job? (INAV)

Constitution amended unconstitutionally
basic structure destroyed
By : Justice V G Palshikar

However, in the span of last 48 years it has been amended almost 80 times. In effect it is regularly amended twice a year. It was this onslaught of Constitutional amendments that led Mr N A Palkiwala, the noted jurist to write the book Constitution of India-defaced and defiled. Mr Palkiwala alongwith others were repeatedly critical about the casual mamner in which the Constitutional amendments were undertaken. Little did the critics know that this defacing and defiling of the Constitution will continue and will be lended a supporting hand by the Supreme Court of India which has the duty of protecting the Constitution from such unwanted onslaughts. The Supreme Court in Golak Nath's case in 1967 held that the Constitution of India can be amended only via Article 368. 'Amendment of the Constitution is made only by legislative process with ordinary majority of with special majority, as the case may be. Therefore amendments either under Art. 368 or under other Articles are made only by Parliamentary by following the legislative process adopted by it making other law.''

The two former Chief Justices have categorically opined that the Constitution cannot be amended by judicial pronouncement. Their opinion unfortunately was not even taken note of while answering the Reference under Article 143 and the Constitution was judicially amended. Article 368 of the Constitution of India in Part XX is the sole Article dealing with the power of the Parliament to amend the Constitution and provide procedure therefor. Amendment of the Constitution is made only by legislative process with ordinary majority or with special majority, as the case may be. Therefore, amendments either under Art. 368 or under other Articles are made only by Parliament by following the legislative process adopted by it in making other law. It was then observed by the Supreme Court in Golak Nath's case.

''It is declared that the Parliament will have no power in future i.e. from the date of this (27.2.67) to amend any of the provisions of Part III of the Constitution so as to take away or obridge the fundamental rights enshrined therein. Any further inroad into these rights as they exist today will be illegal and unconstitutional unless it complies with Part III in general and Art. 13 (2) in particular.''

This aspect of the Supreme Court decision in Golak Nath's case was specifically overruled by a 13 Judges' Bench deciding the petition of Keshwanand Bharti when the 13 judges' Bench of Supreme Court of India laid down that Constitution of India can be amended only by recourse to Article 368 and basic structure of the Constitution cannot be amended.

It was held by a nine Judges Bench of the Suprme Court while deciding second S P Gupta's Case (AIR 1994 SC 268) that in consultation with Chief Justice of India means according to the opinion of the Chief Justice of India as formed by him in consultation with two senior most judges of the Supreme court of India. One of the questions referred to the Supreme Court of India for opinion under Article 143 was whether the Consultation as contemplated by the Constitution for appointment and transfer of Judges was to be plural consultation and it has been held or opined by the nine Judges Bench of the Supreme Court of India that the consultation must be plural and it must be with four senior most Judges of the Supreme Court. In effect the Supreme Court has modified the decision of the nine Judges Bench in S P Gupta's second case. It tantamounts to reviewing that order which could not be done by that Bench.

Similar is the case in the matter of maintainability of judicial review in relation to matters of transfer of High Court Judges. It was held in S P Gupta's case that the matter is not justiciable and no judicial review is possible or permissible. Now it hs been held that judicial review is permitted to a limited extent. It is permissible to ascertain whether the plural consultation as dictated by the Supreme Court had taken place in the matter of transfer or not. As a necessary corollary therefore, the nine Judges have found atleast on two counts, the other judgement of nine Judges in S P Gupta's second case (AIR 1994 SC 268) as no longer good law. With deepest respect to the Supreme Court of India it is not permissible even for the Supreme Court of India to overrule earlier judgement of its own in such a manner without constituting a larger Bench for that purpose.

Submissions in writing have been filed by the Rajasthan High Court where objection were raised regarding correctness of the second S P Gupta's case and submissions were made in reference being dealt with by the Larger Bench. However no reference is foud in the order to the pleadings made on behalf of the Rajasthan High Court.

I fail to under stand how the legal luminaries like Attorney General Mr Soil Sorabji, K Parasaran, K K Venugopal mentioned in the reference failed to point out that the answers sought from the Supreme Court in the reference that no constitutional amendment can be brought about by interpreting the provisions of Articles 124,217 and 222 but recourse will have to be taken to Article 368. Looking to the galaxy of the legal luminaries appearing before the Supreme Court and whom the Suprme Court thanked for their submissions and in sights it appears that it is not they but I am basically wrong in what I have said hereinbefore which raises to my mind two basic questions:

How it is that such obvious was not noticed by any of the nine Hon'ble Judges of the Supreme Court? How is it that such obvious was not pointed out by the legal luminaries thanked by the Supreme Court?

I endeavour to answer these questions myself, It is clear from the judgement in S P Gupta's II case that the entire exercise was taken up by the Government of India and the Supreme Court on the assumption that the Parliament has failed to suitably amend the Constitution in a period of more than a decade i.e. from the first S P Gupta's case 1982 to second S P Gupta's case 1884. It has been noted by the Supreme Court in Second S P Gupta's case that 67th constitutional amendment bill could not be passed due to dissolution of the ninth Lok Sabha. Thereafter attempt was again made in this behalf by the Government headed by P V Narasimha Rao but that Government also could not muster necessary support as the amendment was opposed by the Bhartiya Janata Party. Even thereafter the Lok Sabha could not pass any bill for constitutional amendment in its basic structure as the requisite majority envisaged by Article 368 could not be mustered by any ruling party at any point of time thereafter. It is a reasonable possibility and a reasonable expectation that such situation of Parliament functioning on multi-party coalition working on ice-thin majorities will remain busy in balancing the delicate stability of the government and carry on day to day administration of the country. It may not be possible in such situation to expect a comprehensive amendment to the Constitution altering its basic structure by amending Articles 124, 217 and 222 as desired by the Supreme Court for establishing a National Commission for judicial appointments.

Yet another reason which may appear to exist is the fact that former Chief Justice of India, Justice M M Punchhi recommended certain persons for appointment to the Supreme Court and High Courts without completing consultation with other judges of the Supreme Court as was desired by the 1994 judgement in II S.P. Gupta's case. It creates a feeling that inspite of the opinion of the Supreme Court that there should be a collegium to appointment to the higher judiciary but, the provisions of Articles 124,217 and 222 as they stand can always be plainly read and the opinion of the Chief Justice of India alone can be forwarded as evidently was done by Chief Justice Punchhi. It was probably in these circumstances that the Government required the President of India to make reference under Article 143 of the Constitution offering certain questions for its opinion and the Supreme Court promptly answered the reference unanimously, arguments being over in five days. The submissions made as pointed out above do not highlight the factual and legal position that he Constitution cannot be amended by judicial interpretation. It is in these circumstances that the opinion appears to have been delivered by the Supreme Court to establish a substitute for National Commission for Judicial appointments without waiting for Parliament to do its duty of amending the Constitution.

The necessary consequence of the opinion is that the power of the Chief Justice of India in the matter of primacy to his opinion in relation to appointments to the higher judiciary has been curtailed if two of the four senior most Judges disagree with the recommendation of the chief Justice of India which shall hereinafter be binding upon the President to accept the opinion of the differing Judges and not the recommendation of the Chief Justice of India. It not only destroys the primacy sought to be given to the opinion of the Chief Justice of India by the 1994 judgement but also effectively amends Article 124 of the Constitution. The second consequence is that the President's role in the matter of appointments is rendered nugatory. Hereinafter the President will have to sign the recommendation if unanimously made by four Judges of the Supreme Court. Thirdly, the checks and balances provided initially by the Constitution have been lost. The power of the President to negate recommendation of the Chief Justice of India or the collegium of Judges is taken away. It will thus be seen that due to peculiar political situation of instability that this opinion appeas to have been delivered. In my humble opinion whatever the reason for such a judgement the basic cannons of statutory interpretation do not permit such amendment of the Constitution without recourse to Article 368.

These are my views strongly felt by men on understanding of law as I could read it. The whole purpose of writing this article is not to criticise the action which in itself is unblemished. The purpose of seeking larger consideration in the matter of appointment of judges is undoubtedly laudable. Establishment of a collegium for that purpose is already a principle acquiring acceptance in the circumstances. It is certainly the right time now to have a public debate on the issue as to whether the Constitution can be amended by the opinion delivered by the Supreme Court under Article 143 when even according to the Supreme Court no such amendments of the Constitution is permissible. (INAV)