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The Hindu Editorial Analysis | PDF Download

Date: 19 February 2019

 

Not without an explanation

  • Judges must give their reasons in writing for recusing themselves from specific cases When must a judge disqualify herself from hearing a case? Must decisions of this gravity be left to the wisdom of individual judges? Under what circumstances does a decision of recusal transgress a judge’s general responsibility to sit and deliver impartial justice? Should not a judge who disqualifies herself be compelled to deliver an order explaining her reasons for recusal? Cases at hand These questions have been brought to sharp focus with a rash of recusals made by judges of the Supreme Court over the course of the last few weeks. In one case alone — challenging the appointment of M. Nageswara Rao as interim director of the Central Bureau of Investigation — three judges recused themselves. First Chief Justice Ranjan Gogoi disqualified himself, purportedly because he was set to be a part of the selection committee tasked with choosing a new CBI Director. He then assigned a bench presided by Justice A.K. Sikri to hear the case. But Justice Sikri too recused, on grounds, one assumes, that he was part of a panel that removed the previous CBI Director Alok Verma from his post. Next, Justice N.V. Ramana recused himself for apparently personal reasons. “Nageswara Rao is from my home state and I have attended his daughter’s wedding,” he told the petitioner’s counsel. However, none of these orders of recusals was made in writing, and, by themselves, the professed oral reasons for the decisions do not quite point to why the judges ought to have thought themselves incapacitated.

 

  • The recusals in the CBI case weren’t the only ones to make the news. Last month Justice U.U. Lalit recused himself from hearing the dispute over land in Ayodhya after senior advocate Rajeev Dhavan pointed out that the judge had appeared for former Uttar Pradesh Chief Minister Kalyan Singh in a related contest. Although Mr. Dhavan said he had no specific objection to Justice Lalit continuing to hear the case, the judge, the court’s order notes, “expressed his disinclination to participate in the hearing any further.” But because we don’t have a written order specifically justifying the recusal, it’s difficult to tell whether the disqualification was really required.

 

  • Last September two judges of the Gujarat High Court withdrew from a set of controversial cases by merely saying, “not before me.” Similar orders were passed by three judges of the Nagpur bench of the Bombay High Court, who refused to hear a plea filed by a lawyer Satish Uke concerning the death of Judge B.H. Loya. Unsurprisingly, though, none of the judges recorded their reasons in writing, allowing, in the process, plenty of scope for conjecture and surmise. In taking oath of office, judges, both of the Supreme Court and of the high courts, promise to perform their duties, to deliver justice, “without fear or favour, affection or ill-will”. While “fear and favour”, as Stephen Sedley, a former judge of the Court of Appeal of England and Wales, has written, are “enemies of independence, which is a state of being”, affection and ill-will “undermine impartiality, which is a state of mind”. The purpose of recusal, Mr. Sedley added, is to underpin these twin pillars of independence and impartiality. A decision, therefore, on a demand for a judge’s disqualification is an especially solemn one. A gratuitous recusal, much like a failure to recuse when faced with genuine conflicts of interest, traduces the rule of law. To withdraw from a case merely because a party suggests that a judge do so impairs judicial fairness. It allows parties to cherry-pick a bench of their choice.

 

Formulating rules

  • Given these implications, one can be forgiven for thinking there exists a set of concrete rules that tell us when a judge must recuse herself. But as T.R. Andhyarujina wrote some years ago, what we really have are different elucidations of a principle against an apprehension of bias. No doubt, in some cases, prejudice is presumed — for example, where a judge has appeared for one of the litigants at some stage in the same dispute. It’s also by now an axiomatic rule that no person should be a judge in her own cause. But there are cases where somebody else’s cause becomes the judge’s own.

 

  • In disputes where a judge has a financial interest in the litigation, where a judge owns shares in a company which is party to the case, the fact of owning shares is, in and of itself, considered a disqualification. This rule is derived from an 1852 House of Lords judgment, which held that Lord Cottenham ought not to have delivered a verdict in a case where he owned shares in one of the parties to the litigation. The tenet here appears clear enough, but it’s today muddled by the ubiquity of shareholdings by judges and judges’ relatives — Mr. Sedley cites the example of a 1980 appeal against Shell and BP in which “the registrar of civil appeals was unable to assemble three judges who had no shares in either defendant.” Invariably, therefore, when a judge owns shares in one of the litigants what we expect is disclosure of the fact, and if neither party objects one might think it’s acceptable for the judge to hear the case. But in the absence of a well-defined rule that helps establish a basic standard, a decision of this kind can prove troubling somewhere down the line.

 

  • The closest we’ve come in India to carving out a definite rule was a formulation made by Justice J. Chelameswar in his opinion in Supreme Court Advocates-on-Record Association v. Union of India (2015). Here, the 99th constitutional amendment was challenged, and a claim was made seeking Justice J.S. Khehar’s recusal. The plea was rejected, but Justice Chelameswar attempted to establish something akin to an elementary canon. “Where a judge has a pecuniary interest, no further inquiry as to whether there was a ‘real danger’ or ‘reasonable suspicion’ of bias is required to be undertaken,” he wrote. “But in other cases, such an inquiry is required, and the relevant test is the ‘real danger’ test.”
  •  Even with this formulation, what constitutes real danger of bias remains a matter of construal. And whether an individual judge should be allowed to decide for herself on pleas of recusal is equally a point of contention. Yet the test does provide a plausible solution, so long as judges make their choices by reducing their reasons to writing. For when judges choose without a rational motive, without expressing their decisions in writing, they hurt the very idea of judicial rectitude.

 

Equally destructive

  • Ultimately, a mistaken case of recusal can prove just as destructive to rule of law as those cases where a judge refuses a recusal despite the existence of bias.

 

  • We mustn’t allow recusals to be used as a tool to manoeuvre justice, as a means to picking benches of a party’s choice, and as an instrument to evade judicial work. As the Constitutional Court of South Africa held, in 1999, “the nature of the judicial function involves the performance of difficult and at times unpleasant tasks,” and to that end judicial officers “must resist all manner of pressure, regardless of where it comes from. This is the constitutional duty common to all judicial officers. If they deviate, the independence of the judiciary would be undermined, and in turn, the Constitution itself.” The contractual functionary Sanitation workers represent a wider phenomenon of exploitative contractual work Sewage pipes and drains represent the bleaker side of India’s struggle to modernise its cities. Last month, Kishan Lal, 37, a sanitation worker, died inside an underground drain in the nation’s capital. Called to repair a blocked drain in the Wazirabad area of Delhi, he had no safety kit with him. The details of his death that have appeared in newspapers make for sordid reading: he died of asphyxiation. When he did not come out, the police and fire department were called. They could not find him. It was the National Disaster Response Force that found his body after an eight-hour search. Reports of deaths in similar circumstances appear regularly in the local press in different cities. They attract public attention for a day or two, but fail to sustain it. Caste and contract work

 

  • Reports identified Kishan Lal as a ‘contract worker’. The meaning of this term has grown and the scope of its use has greatly expanded over recent decades. Depending on who your contractor is, you could have a vastly different experience of work under a contract. There was a time when the term was used only in the context of private sector employment because the government alone gave ‘permanent’ appointments. Economic reforms introduced under liberalization changed that.

 

  • From the early 1990s, government jobs could also be given on contract. Among sanitation workers, thousands in each major city are serving on contract. Few statistics exist to guide us in the jungle of norms and procedures governing contractual work. We also don’t know the share of permanent staff in the total sanitation staff in the country. What we do know for certain is the relation between caste and contract work in the sphere of sanitation. Sanitation workers on contract mostly belong to the Scheduled Caste (SC) category. Surveys indicate a small proportion of other castes in permanent sanitation staff. It is also reported that these non-SC permanent functionaries often get proxy workers from SC backgrounds to do the actual work. So, the bond between caste and work continues to be strong decades after B.R. Ambedkar had analysed and highlighted it. In the case of sanitation, contract work means gross vulnerability and exploitation. The terms of contract are minimalist, and a contractor feels free to enhance his own share of the contract with impunity, by nibbling away the worker’s share. Though the government is supposed to regulate the functioning of this contract, it does not show much active interest in doing so. It has been following the general policy of privatisation as a matter of faith, without putting in the effort it takes to work out the details for different sectors and departments. The realisation that one solution does not solve every problem is absent. Such a realization is also unpopular, especially among people who present themselves as the gurus of efficiency. A tacit pact guides their relations with the bureaucracy. Hardly any politician in office has the time or the inclination to disturb this pact and force both sides — the efficiency gurus and the civil servants — to take stock of different nooks and crannies of the vast apparatus of the state. Decline in efficiency and quality of different services is quite apparent to the public, but it is flatly denied by political leaders, civil servants and consultants. Quality takes a hit They also deny the urgency of reviewing the working of the contractual system in areas directly related to welfare, such as sanitation, health and education. Little attempt has been made to study how contractual work has affected reliability in the postal services, railways and accounts. Even in functions such as data gathering, which are crucial for economic planning and decisions, the contractual workforce has proved detrimental to quality. In a paper published in the Economic and Political Weekly (February 15, 2014), Professor Sheila Bhalla made this point with reference to the use of contractual enumerators in the National Sample Survey Office. In many spheres, contractual appointments do not involve a private contractor, but that makes little difference to the quality of work done. In education, for instance, many State governments have been hiring teachers on contract. Their service conditions are totally different from those serving as permanent staff, yet they are expected to deliver higher quality in teaching. The mantra upholding this expectation is that contractual teachers will work harder because they are insecure. In State after State, this mantra has not borne fruit, but no one wants to acknowledge that. Nor do governments want to admit that contractual work in professions such as teaching discourages motivation to improve one’s performance. The reason is that contractual functionaries see no definite prospect of a career or future in the same profession. Also, their wage is much too small to sustain the growth of substantial professional commitment.

 

  • The case of sanitation workers on contract is worse. They work for small-time contractors who have absolutely no idea of the role of a sanitation worker. The contractor feels free to exploit the worker, conveniently hopping over whatever barriers and checks, including digital devices, that the government attempts to use for providing financial security to the worker. The government — in the case of sanitation, it is often the municipality — shows little sustained interest in imposing stringent norms for provision of equipment, including those for safety, necessary for sewer cleaning. As for training, no one seems to believe that sanitation involves complex work, requiring both knowledge and training. Such a thought is fully precluded by the strong and enduring bond that exists between caste and sanitation. Sanitation campaigns do not articulate an acknowledgement of the relationship between the caste system and cleaning jobs. An ideological barrier prevents such articulation. The media too does not highlight the connection between caste and cleaning. That is why whenever sanitation workers die in underground drains, the news simply passes into unsorted history. India’s options after Pulwama India would do better than Pakistan in a conventional war, but it may or may not remain conventional The deadly terror attack against a Central Reserve Police Force (CRPF) convoy in South Kashmir’s Pulwama district, which was orchestrated by a Jaish-eMohammad (JeM) suicide bomber, Adil Ahmad Dar, 22, has once again brought nuclear-armed India and Pakistan close to a potential armed confrontation. There are widespread calls to respond to the attack which killed 40 CRPF personnel. The question, however, is how. The general election may complicate the answer to this question. The BJP leadership knows that if it plays its cards well, it might stand a chance to form the next government. If it bungles, that chance would become weak. This makes the situation far more dangerous in terms of payoff structures and associated risks.

 

Pakistan needs to act

  • So far, Pakistan’s response to the attack has been a blanket and unhelpful denial. Prime Minister Imran Khan has chosen to be quiet about it despite the seething anger in India, even as his Ministers are issuing unconvincing denials. Pakistan needs to stop issuing denials and start acting. Let us be clear: the JeM’s leaders are roaming about freely in Pakistan. This is unacceptable. They must be taken to task immediately and there should be a clampdown on other terror organisations as an emergency measure. The Pakistani establishment’s usual answers — ‘we will come to them eventually’ or ‘we are also already fighting them’ — won’t cut ice any more. If Pakistan truly desires peace with India, it needs to play its part honestly. Pakistan should realise that it would be doing a favour to its citizens by cracking down on terror organisations that are thriving on their soil. And why has Pakistan still not invited India’s National Investigation Agency to investigate the Pathankot terror attack even though India had allowed the visit of the Pakistani team to Pathankot in 2016? Pakistan needs to take action against the terror elements on its soil, now.

 

  • Having said that, let’s face some facts: Dar was a local Kashmiri boy, the vehicle used in the attack was local, we do not yet know the source of the explosive, and there is a raging insurgency in Kashmir today. Don’t these facts tell us that New Delhi’s Kashmir policy has been a failure? That it has been unable to calm tempers in Kashmir in the past four and a half years? If so, we must ask the difficult but important question: How did we get to where we are today in Kashmir? Here is some perspective: While in 2013, only 6 local Kashmiris had joined the ranks of militancy, last year, the figure was close to 200; between 2014 and 2018, ceasefire violations increased five times; between 2015 and 2018, the increase in infiltration attempts more than doubled; and, terroristrelated violence in the Valley has spiked drastically over the past five years.

 

  • Despite all this, the government was hardly keen to initiate a serious dialogue process with the Kashmiri dissidents. The BJP-PDP government, which fell last year, ensured that the so-called soft separatist space was given away to militants, and the use of aggressive tactics turned south Kashmir’s popular opinion against India. Make no mistake: India finds itself in a bind in Kashmir, and it will take a great deal of political sophistication, backchannel reaching out, and comprehensive political vision to get Kashmir back on track. Do the politicians in New Delhi realise this? I am not sure. Even as the nation stands behind its government, the Central government, when reflecting on the next steps, must accept that its politically unimaginative policy was a failure.
  • Then there is intelligence failure. How is it that a plan to carry out such a major attack, by a local who was on the radar of the local police and other agencies, on a national highway in a troubled State went undetected? Why is that 78 buses with CRPF jawans were allowed to travel in one convoy?

 

India’s options

  • If New Delhi seeks to respond to Pakistan for the Pulwama attack, what options does it have? For the BJP government, given that the elections are so close, its retaliation has to be credible, prompt and visible, thereby limiting its options. Stopping the flow of waters to Pakistan is neither practical nor possible. Withdrawing the Most Favoured Nation status would hardly hurt Pakistan, given the low trade volume involved.

 

  • Isolating Pakistan internationally is easier said than done — China is closer to Pakistan today than ever before, Russia is warming up to it, and given the impending American drawdown in Afghanistan, there is a sense of triumphalism in Pakistan. This is especially so because of the geopolitical importance of the region — it won’t be long before the U.S. makes a comeback

 

  • One possible way out is perhaps to talk to China discreetly to get Pakistan to crack down on the JeM, but that will take patience, persuasion and discretion. A government caught in an election season may have too little of any of it. What about military options? One can think of four types of kinetic options. The first could be to carry out surgical strikes, like India did in 2016. However, while the Pakistani side did not respond to it then, the reaction this time could be different. If Pakistan responds, the two sides may soon find themselves in an escalating military crisis with little clarity about the outcome, something an election-bound government might fight shy of. The second option is to use strike aircraft to carry out precision strikes in locations across the Line of Control (LoC). But such air incursions are likely to be detected and intercepted by Pakistani radars and air defence systems. If an aircraft is shot down or pilots are captured, it could become a bigger headache for the government. Pakistani retaliatory strikes cannot be ruled out either. The third option is to go in for stand-off strikes without physically crossing the border, using heavy artillery or other precisionguided weapons such as rockets. Stand-off strikes, or fire assaults, across the LoC would be responded to in kind and eventually might not achieve anything. The final option is to carry out covert operations inside Pakistan to take out high-value human targets such as leaders of terror outfits. This might be the least costly and most optimal strategy. However, this would require a great deal of preparation and might not be domestically useful given the amount of secrecy and lack of optics surrounding it. In short, the fundamental problem with kinetic options is uncertainty with regard to what those options would lead to if Pakistan decides to respond. India would do better than Pakistan in a conventional war of attrition, but it may or may not remain conventional and there would be attrition on both sides. Would New Delhi be willing to run those risks so close to a crucial election?