Men, Matters & Memories
Selection of Judges

By M L Kotru

Some two weeks ago Supreme Court Justice J N Variava suo moto decided to clarify that the inference drawn from his statement during a hearing that attempts were made to approach him in the fodder scam cases, involving Laloo Prasad Yadav, was wrong. The clarification came two days after his revelation, while hearing a PIL on cancellation of bail granted to Laloo Yadav and his wife Rabri Devi, led to stir in Parliament with the BJP-led NDA staging a walkout alleging that Yadav was trying to interfere in judicial matters.

The clarification by Judge Variava, heading a three-judge bench, was read out by him in a packed court room. In sum he spelled out that what he had actually meant by initially saying that someone from the Patna High Court had called him inquiring if the trial court judge at Patna could be promoted and moved out. ''It is to be clarified that no one from the Patna High Court or on its behalf had inquired of me. The person concerned has since clarified that the inquiry was just an academic inquiry. I am satisfied that the explanation was correct and my original inference that there was an attempt to influence me was wrong'', the honourable Judge explained.

No bones broken and no insinuation intended. It was very good of the learned judge to have clarified the position at the earliest opportunity. But there was the case of a former Chief Justice of the Supreme Court, hearing the infamous Hawala diaries case, who stunned a packed court room with the observation that approaches had been made to him by some unnamed people. The unnamed continues remain so to this day but the Chief Justice, more startlingly, added that some of the people mentioned by him were present in the court room even as he was making the revelation. It remains a mystery who was the one who had made the approach, or, why he should have gone unnamed? Was it a lawyer or someone else, a party perhaps involved in the case ? The Chief Justice of India, in my humble opinion, owed it to his high calling to name the person (more so when he was present in the court room) and have him arraigned. The former Chief Justice chose to give him a Nelson's eye.

We, lay men, can only ask forgiveness for looking askance at such goings on in the rarefied atmosphere of high judiciary. And as a lay man, with no intention to distort the image of the judiciary (it still remains the last hope for people at large), may I ask why didn't the judges in the two instances name the approachmakers, if only to put the fear of law and of the higher courts in any future transgressor? There also was the case of the Punjab and Haryana High Court Chief Justice who openly named two of his brother judges as recipients of special favours from a Chandigarh golf club which was facing legal problems and who had thus compromised their high judicial position, according to Chief Justice Roy. The bar rallied behind the Chief Justice, not hesitating to make a public display of is total support for the CJ and disapproval of the conduct of two judges. Sadly a large number of the High Cout judges resorted to tactics hardly becoming of holders of high judicial office. In the event, much to the disappointment of the bar, while the two judges were transferred elsewhere, Justice Roy, too, was transferred from the Punjab and Haryana High Court. Why Justice Roy ?

This said, it is equally true that the common man's faith in the judiciary continues to persist as could be seen in the constant demand for judicial inquiry into all cases of public misdemeanour ranging from police firings to bribe-taking by public servants. On the formal plane, no doubt, the Supreme Court's role as the guardian of the Constitution is acknowledged by the country. But while we comply to the letter of the Constitution, we have to ask ourselves if we really adhere to the spirit behind it that enjoins the supremacy of the judiciary. Recent years have witnessed serious inroads by the executive that cuts into the independence of the judiciary.

Whatever be the constitutional position, it is an open secret that the executive plays an enormous role in the selection of judges both at the High Court and the apex court levels. This was brought out in a most brazen form in the notorious supersession of judges in the early seventies though that was covered with a surfeit of radical rhetoric. The deletrious fall-out of that action could be seen during the Emergecy when the Supreme Court hardly covered itself with glory as the custodian of our democracy. In fact, the executive's impatience to interfere into the precincts of the judiciary came even before the Emergency as could be seen in its anxiety to save Indira Gandhi's position after the Allahabad High Court ruled against her on June 12, 1975.

Whatever might be the loopholes in the constitutional arrangements for the selection and appointment of judges of the high courts of appex court, a very considerable body of opinion has come up in recent years in favour of strengthening the constitutional provisions that could eliminate the scope for the executive influencing appointment of judges. This tendency of the executive to promote docile judges is not confined to the apex court. Rather the malady is more prevalent at the entry point, in the case of appointment of high court judges in the States. The executive has been acting irresponsibly when it comes to selecting judges of the high courts in different States.

This problem was not so acute during the first two decades of freedom. That was largely because the leaders manning the executive in those early years were conscious of the need to preserve the independence of the judiciary, and did not permit blatant partisan considerations to interfere in the appointment of judges. While the subjective factor could not be totally eliminated, the national leaders in those days were aware of the imperative that the judiciary must appear to be impartial, above partisan considerations, in the eyes of the common people.

Times however have changed. As corruption has invaded the political arena at every level, the judiciary can hardly claim to be quarantined from the deadly infection. The case of the Supreme Court Justice, V Ramaswami (his impeachment by Parliament in early 90s was defeated only by self-serving politics of the then Congress Party) brought this out before the public which had long been accustomed to the belief that the judges are above petty larceny. I leave it at that and without in any way inviting the charge of being guilty of contempt of the judiciary but taking serious note of the infection of corrupt practices spreading in the judiciary.

MEN AND MATTERS
A mere Rs 1,000 crores won’t suffice

By B L Kak

It is simply the compulsion of circumstances that the three countries are noteworthy and newsworthy, more often than not. India, America and Pakistan. Each country is—and will undoubtedly be—in the news for one reason or the other.

And the main subject which has the potential of louder noises and irritations, relates to the outflow and inflow of high-grade arms and equipment—better known in military parlance as war material. Even as the United States of America (USA) is also known for its potential to take other countries by surprise, something unusual has been allowed by Washington this time. It relates to kits acceptance of the need to keep India in good humour while further boosting Islamabad’s morale.

On the one hand, Washington announced its decision about the sale of F-16 fighter planes to Islamabad. On the other hand, Washington divulged its intention to help India become a ‘major’ power in the 21st century. True, the Bush administration has, once again, assured Islamabad of Washington’s moral and material support in the ongoing ‘war’ on terror. But there is little chance of any US help or encouragement to Pakistan for augmenting its nuclear capability.

In face, Washington has made its intention clear: No encouragement to Islamabad for acquiring nuclear weapons. Washington has, at the same time, let it be known that the US, which wants a decisively broader strategic relationship with India, will appreciate if New Delhi supported America’s drive against the production and sale of nuclear weapons and technologies.

Indications are by no means uncertain that Washington will, in the coming days and weeks, engage itself in purposeful negotiations with New Delhi. These can take shape of strategic dialogue, discussions on regional security issues and India’s defence requirements and expanding the current high technology cooperation and manufacturing licences.

However, as Washington has finally committed itself to providing F-16 aircraft to Pakistan, New Delhi is left with no choice but to acquire next generation of multi-role combat aircraft. Even as New Delhi did not spurn the US offer to sell sophisticated F-16 or F-18 warplanes to India, the need was strongly felt by India for ‘early’ measures to modernise and adequately equip the Armed Forces.

No wonder, the Government of India was left with no option but to announce its decision to buy 11 Dornier aircraft from Germany and hold price negotiations for purchase of a dozen French-made Mirage 2005 fighters from Qatar. The decision was taken at the meeting of the Cabinet Committee on Security (CCS), which was chaired by Prime Minister, Manmohan Singh. Nor was it all. The CCS also cleared induction of nine off-shore petrol vessels for the Navy, purchase of one C-303 submarine-fired torpedo decoy system from Italy and upgradation of 14 aircraft carrier based British-made Sea Harrier planes.

Action generally triggers reaction. This exactly is the state of affairs for the past some days. Things would possibly have remained static if the USA had not turned yet another leaf in its defence relationship with Pakistan. New Delhi—the Ministry of Defence (MoD), to be precise—will have to admit that despite many a challenge all these years, visible efforts have not been in place that could convince the people that the successive governments at the Centre understood the need to treat defence and development as complimentary. The security of the nation needs to be given the same priority as other sectors.

This kind of emphasis is more visible in Pakistan than in India. Pakistan’s defence expenditure has amounted to more than 52 per cent of the total annual allocation. Precisely, it has outpaced development expenditure which stood at about 40 per cent during the first half (July-December 2004). As against this, the mindset of the policy planners in Delhi’s power corridors has remained unchanged.

In other words, the Ministry of Defence, which had projected a higher demand, received from the Finance Ministry Rs 83,000 crores only for the 2005-2006 financial year. Clearly, from Rs 77,000 crores during 2004-2005 to s 83,000 crores this yea, the hike in defence budget is just Rs 6,000 crores. If one were to take into account the inflation hovering at around five per cent, the increase is not encouraging at all.

True, the Defence Minister, Pranab Mukherjee, has talked of the Manmohan Singh Government’s keenness on ensuring modernisation of the country’s three Services. But the question which is yet to be clearly answered is: Will the capital outlay of Rs 34,375 crores meet the pressing needs of the Armed Forces? This outlay has been set aside in the 2005-2006 Union budget for capital expenditure.

Will a mere Rs 1,000 crores more than last year’s capital outlay help the Government achieve the objective? Perhaps not, when one takes into account the requirements of the three Services. The Indian Air Force (IAF) requires 126 fighter planes worths billions in order to fill the ever-increasing gap due to the persistent delay in the induction of the LCA (Light Combat Aircraft).

While the requirement for the anti-ballistic missiles is equally pressing, the Navy is seeking maritime patrol and strike aircraft to enhance its long-range ocean surveillance capabilities. The requirements of the Army will also take away a sizeable chunk of the earmarked financial allocation.

The demand of the Armed Forces for new equipment and modernisation arises out of necessity. Two things just cannot be ignored. First, of course, is to maintain a competitive edge over the adversaries. Second, the Government must ensure that there is no political connotations to any weapons’ deal.