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Separation Of Powers Is A beautiful Theory: Jasti Chelameswar

The executive enacts laws through the legislature and furnishes the infrastructure to the judiciary

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Separation Of Powers Is A beautiful Theory: Jasti Chelameswar
Separation Of Powers Is A beautiful Theory: Jasti Chelameswar. Flickr

That the executive and the judiciary are insulated from each other is a beautiful theory which does not work in practice if iconoclast judge Jasti Chelameswar is to be believed. He may be right because democracy, too, is a beautiful theory which fails in practice when judges and politicians mingle.

Chelameswar reiterated on June 23 that nothing had changed after the four judges’ press conference on January 12, which was the proverbial last straw after the allegedly unacceptable functioning of the Supreme Court registry in case allotment. It is true that the Chief Justice of India (CJI) is the master of the roster but sensitive cases must be allotted with the public interest uppermost rather than the subjective wisdom of the CJI in selecting benches to decide certain cases.

Chelameswar was responsible for ensuring that the resolutions passed by the Supreme Court collegium are uploaded for the country to see and indirectly sparking a controversy after his January 12 press conference which led to a failed impeachment motion against Chief Justice of India (CJI) Dipak Misra by the Congress. Nevertheless, Dipak Misra is the first CJI to  face an impeachment motion.

The point here is that every law student learns the judiciary is independent of the executive although the judges’ salaries are paid by the state exchequer. However, this is a theoretical concept because the names of lawyers who will be sworn in as judges are sent by the chief justice of the parent high court to the chief minister and governor for vetting by the Intelligence Bureau before the file reaches the office of the CJI.

After all, the state provides judges with their housing, cars and other perks which are all withdrawn after retirement. Most judges accept post-retirement benefits such as chairing commissions or heading arbitration panels which Chelameswar and Kurien Joseph have refused.

Few know that when a judge is sworn in at the Raj Bhavan of any state, the swearing-in ceremony is attended by the chief minister, and sometimes, senior cabinet ministers. The governor administers the oath of office to the incumbent judge who then makes an acceptance speech. Hence, insulating the judiciary from the executive is a chimera.

The executive enacts laws through the legislature and furnishes the infrastructure to the judiciary. Hence, although the judiciary interprets the laws, it will never cross the laxman rekha of directly striking down partisan laws unless there is a clear violation of fundamental rights. This is because the judiciary is accountable only to itself whereas the executive and legislature is directly responsible to the people for its partisan policies.

Hence, the fact that at least a few judges in the past were known to be close to the executive is beyond dispute because the late CJI A N Ray was allegedly known to have even phoned Prime Minister Indira Gandhi to elicit her views on national issues placed before him. Indira Gandhi superseded Justices J M Shelat, A N Grover and K S Hegde to appoint Ray as the CJI. All three judges resigned in protest and Hegde went on to join the executive as speaker of the Lok Sabha.

Indira Gandhi’s Union law minister in 1980, Punjala Shiv Shankar, was a former high court judge from Andhra Pradesh. He issued a controversial circular dated March 18, 1981, to the governors of all states asking them to seek the consent of additional judges (on probation) to be transferred to any high court outside their state. He allegedly issued this circular without consulting the then CJI Y V Chandrachud. The transfer policy, presently followed by the Indian judiciary, was the result of this circular which was justified as eradicating partisanship, casteism and promoting national integration within the judiciary.

In 2010, a controversy broke out when Justice Hemant Gokhale, who was the Madras high court chief justice and later elevated to the Supreme Court, pointed out that the then CJI K G Balakrishnan had apparently lied when he said he did not receive a letter from Justice R Reghupathi of the Madras high court dated July 2, 2009 that a lawyer R K Chandramohan had tried to influence his granting of bail to a DMK murder accused by using the name of former Union telecom minister A Raja.

This DMK lawyer-politician was later acquitted by the courts of causing a loss of Rs 1.76 crore to the country for awarding spectrum at throwaway prices to telecom operators in exchange for bribes. His accomplices, Kanimozhi and Dayanidhi Maran were acquitted last year by a CBI special court.

Supreme Court judge Justice Jasti #Chelameswar and High Court Judge Justice Devan Ramachandran taking a ride on Kochi metro
Supreme Court judge Justice Jasti #Chelameswar and High Court Judge Justice Devan Ramachandran taking a ride on Kochi metro. flickr

Significantly, Prime Minister Narendra Modi flew to Chennai and invited the ailing DMK chief, Karunanidhi to occupy the PM’s official residence for medical treatment. Finally, the fact that Union law minister Ravi Shankar Prasad, a senior advocate of the apex court himself, stated at a press conference that when CJI Dipak Misra recommends the name of the seniormost judge as his successor, the government would consider it. “…But the intentions of the government cannot be questioned,” sounds sinister.

Also read: The Trailer of Rajinikanth’s new Film ‘Kaala’ Shows He Is Serious About Politics

These statements suggest Justice Chelameswar’s contention of a bon homie between the judiciary and the executive endangering democracy may be true. This may be why former CJI T S Thakur wept like a child before Narendra Modi in 2016 and why the Bar Council of India has attacked Justice Chelameswar for pointing out that democracy had become a beautiful theory within India. (IANS)

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Only A Strong Leader Can Control The Mobocracy

Today we need a strong leader and strong nation. But this doesn't mean that it has to be against the culture of political pluralism. Such a leader need not be against federalism, need not run an unitary government.

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Narendra Modi, modi biopic
EC bans online streaming of web series on Modi. Pixabay

BY: JAYANTA GHOSAL

I am a human being – Homo sapiens. But does that mean I am poor, brutish, nasty and small? That is what Thomas Hobbes had thought. Machiavelli’s prince had also said that if you want to control people, the masses, the electorate – then you’ve to keep a whip in your hand like the ringmaster in a circus. Only a strong leader can control the mobocracy.

The great Indian political circus has also had several Prime Ministers. From Jawaharlal Nehru to Narendra Modi. Each Prime Minister is unique The modus operandi is different. In 2014 when Modi entered Lutyen’s Delhi, the popular perception was that a strong man has arrived. Like the arrival of James Bond, after the World War II to dispel the darkness of the depressed British masses. Plato had preached that for a philosopher king who would also be the representative of God – that he will bring justice to mankind.

India
The Vajpayee era could easily be said as the beginning of the ‘swarna yug’ of Indian economy. It was under his leadership that India went for Pokhran 2, but was he a strong leader? The Indian mythology of strong leadership would dictate that he wasn’t. Pixabay

Today in a democracy, we chose our leader through the process of election. There is no monarch. Nor do we have a philosopher leader like S. Radhakrishnan. We have Modi and the popular perception persists that he is a ‘strong leader’. At the eve of another election, the discourse on strong leadership has started again. But we need to understand that strong leader doesn’t mean an undemocratic leader. I think that even in a coalition government one needs a strong leadership to run the coalition. A strong leader does not mean that he will be blunt to the ideas of others – that he or she will not listen to the voice of the people. Rather, if you want to frame policies, you’ve to talk to experts, bureaucrats and even other people.

After getting 282 seats, was Modi reluctant to listen any other opinion?

I think this belief is absolutely wrong. I know his style of functioning and I can say, bluntly, that each and every day he spoke to several people on different subjects. In Lutyen’s Delhi, there is a wrong perception that he takes his own decision – this isn’t correct. In Delhi, he begins his daily routine with briefing meetings. Principal Secretary Nripendra Mishra meets him first. Then P.K. Mishra and other PMO officials. He talks to his PS and APSs daily. Then, the PM conducts video conferences with his department secretaries. He would also hold such conferences with state government officials.

He also has his own unique way of taking inputs from the feedback from the ground; a team, a set-up that isn’t just restricted to social media like Twitter or Facebook. He seeks opinion from the chaupals of different villages. Before the declaration of the election, he conducted a review meeting. The PMO wanted to know the status of implementation of different Government of India schemes in the country’s 29 states and 7 union territories.

It is true that Modi didn’t encourage the Dalal Raj of the political system. In Maharashtra, what is the reason for the deteriorating relationship between Uddhav and Modi took in the past 5 years? Was it ideological? Was it the just the BJP’s single party mindset? An arrogance of big brotherhood? The informed political circle know that the actual reason is because Shiv Sena couldn’t get the malai of Delhi’s power. It started with the Mumbai corporation and ended in a cabinet birth for Shiv Sena.

When Atal Bihari Vajpayee was the Prime Minister, Balasaheb quarrelled on several issues. But the supply line for Shiv Sena was never disturbed. Vajpayee was the first NDA PM in 1998. The Vajpayee era could easily be said as the beginning of the ‘swarna yug’ of Indian economy. It was under his leadership that India went for Pokhran 2, but was he a strong leader? The Indian mythology of strong leadership would dictate that he wasn’t.

Vajpayee was, after all, a man of political consensus. How can such a leader be characterised as strong? Here lies the fallacy. Once the late Pramod Mahajan of the BJP told me: “Do you know what is our major problem in this party and government? And what is the advantage the Gandhi family of the Congress have?” He explained: “In our party it is a tyranny of democracy. Vajpayee may be the leader but there is an oligarchy. Advani, M.M. Joshi, Jaswant Singh, Yashwant Sinha. And beyond these leaders there is Nagpur. Humhara yaha fayasla lenese jada chintan manthan hota haye!”

In congress there is a working committee but only one Gandhi will take the final call. Nobody can object. Sharad Pawar and Purno Sangma raised issues and they had to leave the party. Only once Vajpayee did not disclose the decision to Advani also — and that was the Pokhran blast and that event made Indian leadership strong! See, Advani pressurised Vajpayee to hold general election six months early. And Vajpayee accepted. He lost the election.

democracy
Our Constitution suggests a quasi-federal structure, and such a leader can be a symbol of that political entropy. But creating a hate campaign against Modi, projecting him as an autocrat – is that democracy? Pixabay

Can anybody dictate Modi like this today?

In the party national executive meeting held at Palampur (Himachal Pradesh), the BJP leadership led by Advani took the resolution in 1989 to start Ramjanmabhomi movement. Vajpayee objected but he was a loner and a minority voice. Now this model of Vajpayee leadership is desirable? When a General cannot issue order to his soldiers forcefully? Second, when you are a victim of political blackmail. P.V. Narasimha Rao had to manage JMM MPs to win the no confidence motion in the Lok Sabha. How can he be the strong man? Manmohan Singh did not like it, but chargesheeted Lalu Prasad was in his cabinet. I recall that once, while accompanying him during a trip, he said on record that keeping Lalu in cabinet is coalition compulsion. Manmohan Singh wanted to go to Pakistan to talk. The party said no. How can he be a strong leader?

Also Read: Diabetes During Pregnancy Spikes up the Risk in Kids Later

Today we need a strong leader and strong nation. But this doesn’t mean that it has to be against the culture of political pluralism. Such a leader need not be against federalism, need not run an unitary government. Our Constitution suggests a quasi-federal structure, and such a leader can be a symbol of that political entropy. But creating a hate campaign against Modi, projecting him as an autocrat – is that democracy? Actually, till today, I have not seen one Devkant Baruah statement in the BJP saying ‘Modi is India’. (IANS)