Venu Sundaram

Why CJI Gogoi Should Step Away From Judicial Work Till In-House Inquiry is Complete

Convention and propriety demand that a judge should voluntarily desist from performing judicial work when allegations against him are being examined.

A three-member in-house committee headed by Justice S.A. Bobde has been constituted to probe the allegations of sexual misconduct against the Chief Justice of India (CJI) Ranjan Gogoi. This has risen the question of whether the CJI ought to be restrained from exercising his judicial authority till the work of the committee has been completed.

The in-house committee does not enjoy the legitimacy, powers and stature of the Inquiry Committee, to be set up by the speaker of the Lok Sabha or the chairman of the Rajya Sabha under the Judges Inquiry Act.

However, there is nothing preventing the in-house committee or the judge who is facing the allegations from following certain principles laid down in the context of the pendency of proceedings before the Inquiry Committee, set up by the presiding officers of either of the Houses of parliament.

Justice V. Ramaswami case

Justice V. Ramaswami, the then chief justice of the Punjab and Haryana high court, was elevated as the judge of the Supreme Court on October 6, 1989. Charges of financial impropriety had been levied against him by the Comptroller and Auditor General of the state – committed prior to his elevation to the apex court and while functioning as the chief justice in that state.

He was chief justice of the high court for 20 months. It was alleged that he did not account for all the furniture and furnishings supplied by the government. He had replaced superior quality items with inferior ones at the time of handing over possession of the official residence, and that the purchases were shown at inflated prices.

It was also alleged that he had incurred excessive expenses at the cost of the state on account of utilisation of staff cars, consumption of petrol and high telephone bills, presumably because of his son’s marriage in Madras. All the allegations indicated gross impropriety regarding monetary basic instincts, but none mercifully related to any act of judicial dishonesty.

Also read: As Lawyers, We Cannot Accept How CJI Handled Sexual Harassment Allegations

To maintain the unsullied image of the apex court, the then CJI Sabyasachi Mukherjee took the unprecedented step of announcing in open court that the concerned judge against whom charges had been made should proceed on leave till he was cleared of them. The CJI successfully isolated the concerned judge from the rest of the members of the court.

The chief justice was responding to the demands of the legal fraternity. The chief justice of India had also constituted a committee consisting of three of his own colleagues in the court to examine the matters. On its prima facie view, the tentative decision against Ramaswami was reversed. The in-house committee opined in favour of Ramaswami.

But during the interregnum when the in-house committee was examining the allegations, the convention of the judge concerned going on leave was established by the then CJI Mukherjee. This convention has now been reversed by the current CJI, Ranjan Gogoi, as he finds himself an accused before an in-house committee.

A motion for the removal of Justice Ramaswami was initiated in the Lok Sabha with 108 members presenting an address to the president. The motion was defeated in 1993 in the Lok Sabha because the Congress and AIADMK members abstained from voting.

Sub-Committee on Judicial Accountability vs Union of India

In Sub-Committee on Judicial Accountability vs Union of India, a constitution bench on October 29, 1991 – comprising Justices B.C. Ray, L.M. Sharma, M.N. Venkatachaliah, J.S. Verma and S.C. Agrawal – dealt with the question whether during the pendency of the proceedings before the committee set up by the speaker of the Lok Sabha under the Judges Inquiry Act, the concerned judge should be restrained from performing judicial functions and from exercising judicial powers.

Also read: Charge Against CJI Gogoi Should Be Handled Correctly If SC Wants to Keep People’s Faith

The bench held in that judgment that while a direction to the judge facing the allegations to desist from judicial work cannot be granted, propriety and convention would, however, suggest such temporary withdrawal of judicial work during the interregnum – till the allegations are examined by the statutory committee. The bench held in that case as follows:

“It is true that society is entitled to expect the highest and most exacting standards of propriety in judicial conduct, and any conduct which tends to impair public confidence in the efficiency, integrity and impartiality of the court is indeed forbidden. But, the proposition that, apart from the constitutional machinery for removal of a Judge, the judiciary itself has the jurisdiction and in appropriate cases a duty to enquire into the integrity of one of its members and restrain the Judge from exercising judicial functions is beset with grave risks. The court would then indeed be acting as a tribunal for the removal of a Judge and is productive of more problems than it can hope to solve.

“The relief of a direction to restrain the Judge from discharging judicial functions cannot be granted…. Since the Constitutional scheme is that the Judge’s conduct cannot be discussed even in the Parliament which is given the substantive power of removal, till the alleged misconduct or incapacity is proved in accordance with the law enacted for this purpose, it is difficult to accept that any such discussion on the conduct of the Judge or any evaluation or inference as to its merit is permissible according to law elsewhere except during investigation before the Inquiry Committee constituted under the statute for this purpose. Therefore, it is difficult to accept that there can be any right in anyone running parallel with the Constitutional scheme for this purpose contained in clauses (4) and (5) of Article 124 read with Article 121. No authority can do what the Constitution by necessary implication forbids.

“The question of propriety is, however, different from that of legality. Whether the Judge should continue to function during the intervening period is to be covered by the sense of propriety of the concerned Judge himself and the judicial tradition symbolised by the views of the CJI. It should be expected that the Judge would be guided in such a situation by the advice of the CJI, as a matter of convention, unless he himself decided as an act of propriety to abstain from discharging judicial functions during the interregnum. It is reasonable to assume that the framers of the Constitution had assumed that a desirable convention would be followed by a Judge in that situation which would not require the exercise of a power of suspension.

“It would also be reasonable to assume that the CJI is expected to find a desirable solution in such a situation to avoid embarrassment to the concerned Judge and to the Institution in a manner which is conducive to the independence of judiciary and should the CJI be of the view that in the interests of the institution of judiciary, it is desirable for the Judge to abstain from judicial work till the final outcome under Article 124(4), he would advise the Judge accordingly, and the concerned Judge would ordinarily abide by the advice of the CJI. All this is, however, in the sphere of propriety and not a matter of legal authority to permit any court to issue any legal directive to the CJI for this purpose.”

The bench made a clear distinction between the plea for restraining the judge and the expectation that the judge concerned should voluntarily desist from performing judicial work when allegations against him are being examined by the committee set up for the purpose. The bench observed:

“Certain submissions advanced in the prayer seeking to restrain the Judge from functioning till the proceedings of the committee were concluded lacked as much in propriety as in dignity and courtesy with which the Judge is entitled.

In the event of the charges being found baseless or insufficient to establish any moral turpitude, the Judge does not suffer irreparably in the very process.

The approach should not incur the criticism that it was calculated to expose an able and courteous Judge to public indignity even before the allegations were examined by the forum constitutionally competent to do so.

The constitutional protection to Judges is not for their personal benefit; but is one of the means of protecting the judiciary and its independence and is, therefore, in the larger public interest.”

The last sentence in the above passage is prescient in that the CJI Ranjan Gogoi is now facing the criticism of having used the constitutional protection to judges for his personal benefit by constituting a bench comprising himself and two of his chosen judges to sit last Saturday, to defend himself against the allegations levelled by a former employee.

It is, therefore, debatable whether CJI Gogoi has lost the right to “constitutional protection” discussed in the above judgment by virtue of his questionable conduct.

In a sense, CJI Gogoi faces two allegations – one of personal misconduct, unconnected with his judicial work, and the other directly impinging on his judicial competence, as shown by the Saturday hearing by the bench presided by him.

While the S.A. Bobde committee has been entrusted with the task of examining the allegations of sexual misconduct against the CJI, the judicial misconduct evident from the Saturday hearing also needs to be separately probed by an in-house committee to establish his fitness to continue in office as the CJI.

Sadhvi Pragya as BJP Candidate: How the SC Missed an Opportunity to Cleanse Politics

Her candidature is a lesson to the court that symbolic reforms are unlikely to deter candidates accused of heinous crimes.

New Delhi: Sadhvi Pragya Singh Thakur, a key accused in the 2008 Malegaon blast case is the Bharatiya Janata Party’s candidate against the Congress’s Digvijaya Singh. Thakur, who is now on bail, faces charges under the Unlawful Activities (Prevention) Act for conspiring and abetting a terror act, and also faces charges ranging from murder to criminal conspiracy.

The BJP could not have fielded her as a candidate had the Supreme Court last year not abandoned its responsibility to prevent those charged with heinous offences from becoming legislators. In Public Interest Foundation & Others v Union of India, a constitution bench of the court held on September 25 last year that parliament alone is competent to enact a law for the purpose. This, after the bench found that the concerns expressed by the petitioners are valid.

The bench, comprising the then Chief Justice of India, Dipak Misra and Justices Rohinton Fali Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, instead appealed to Parliament to make a law for this purpose on priority and issued a slew of directions to the Election Commission and the political parties to make the disclosure of the criminal antecedents of candidates contesting elections sufficient and clear to the voters, so that the latter could be warned not to vote the candidates, charged with serious offences.

The bench recommended that parliament bring out a strong law whereby it is mandatory for political parties to revoke the membership of persons against whom charges are framed in heinous and grievous offences and not to set up such persons in elections, both for parliament and state assemblies. “This, in our alternative and plausible view, would go a long way in achieving decriminalisation of politics and usher in an era of immaculate, spotless, unsullied and virtuous constitutional democracy”. By first admitting Pragya to the party, and later fielding her a candidate immediately, the BJP has ridiculed the Supreme Court’s optimism, and naïveté.

The bench also issued the following directions on September 25 last year:

Each contesting candidate shall fill up the form as provided by the Election Commission and the form must contain all the particulars as required therein;

It shall state, in bold letters, with regard to the criminal cases pending against the candidate;

If a candidate is contesting an election on the ticket of a particular party, he/she is required to inform the party about the criminal cases pending against him/her;

The concerned political party shall be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents;

The candidate as well as the concerned political party shall issue a declaration in the widely circulated newspapers in the locality about the antecedents of the candidate, and also give wide publicity in the electronic media. When we say wide publicity, we mean that the same shall be done at least thrice after filing of the nomination papers.

These directions, the bench made it clear, ought to be implemented in true letter and spirit and right earnestness in a bid to strengthen the democratic set-up. The bench held: “It is one thing to take cover under the presumption of innocence of the accused, but it is equally imperative that persons who enter public life and participate in law making should be above any kind of serious criminal allegation… Substantial efforts have to be undertaken to cleanse the polluted stream of politics by prohibiting people with criminal antecedents so that they do not even conceive of the idea of entering into politics.”

Pragya’s candidature only vindicates the petitioners’ concerns in this case, and shows that the Supreme Court’s judgment remains what it is: pious hope.

On March 29, the Supreme Court bench of Justices Nariman and Vineet Saran issued notice to the Centre and the EC on a plea seeking initiation of contempt proceedings for alleged violation of Supreme Court’s September 25, 2018 judgment. Interestingly, the plea was filed by BJP member and public interest litigation advocate Ashwini Kumar Upadhyay, who too was a petitioner in the Public Interest Foundation case. On October 10, 2018, the EC had issued a notification revising Form-26 seeking fresh information from candidates on their criminal antecedents. Upadhyay alleged that the EC neither amended the Election Symbol Order, 1968 nor the Model Code of Conduct (MCC), leaving the notification an empty formality.

Upadhyay further submitted that due to the EC’s less than pro-active role, the candidates published details about their criminal antecedents in newspapers with poor circulation, and on news channels which are not very popular, or at odd hours, not considered as prime time. Besides, he alleged that political parties did not comply with the Supreme Court’s judgment by publishing details of criminal antecedents of candidates on their websites, or in newspapers and on television channels during the recent assembly elections, but the EC looked the other way.

The contempt petition filed by Upadhyay is coming up for hearing before the Supreme Court on April 22.

Even as the court prepares itself to haul up the EC and the political parties for their non-compliance with judicial directives, it should introspect over whether the petitioner’s plea for a direction to the EC to deprive party symbols to candidates with serious criminal charges could have made better sense than the kind of toothless directions which they issued to ensure pre-election publicity about criminal antecedents of candidates in the media. It is naïve to imagine that Bhopal’s voters wouldn’t know of Pragya’s criminal antecedents but for the compliance with the Supreme Court’s directives by the party and the candidate herself to ensure better disclosure.

The Supreme Court missed an opportunity to outrightly reject the Centre’s outrageous contention during the hearing of this case that political parties have a right to be associated with MPs with criminal charges under Article 19(1)(c) of the constitution, guaranteeing the fundamental right to form association. The question which the court ought to have posed to itself is whether political parties fighting elections should have the freedom to be associated with those charged with heinous offences.

Clearly, the Centre had the likelihood of the ruling party fielding Pragya as its candidate in mind when it resisted the Supreme Court’s modest direction that parties declare the criminal antecedents of their candidates on their websites on the grounds that it would have serious impact on her privacy. Although the bench implicitly rejected this contention by ruling otherwise, Pragya’s candidature is a lesson to the court that symbolic reforms are unlikely to deter such candidates.

Criminalisation in Politics: Did the Supreme Court Miss the Wood for the Trees?

The question the apex court did not answer was why it had to appeal to Parliament to make a law, if it felt there was no legislative void, to achieve this purpose.

The Supreme Court’s constitution bench, in its judgment in Public Interest Foundation & Others v Union of India on Tuesday, explains its limitations in preventing those charged with heinous offences from becoming legislators and finds that Parliament alone is competent to do so. It satisfies itself by appealing to Parliament to make a law for this purpose on priority and issues a few directions to the Election Commission and the political parties to make the disclosure of the criminal antecedents of candidates contesting elections sufficient and clear to the voters, so that the latter could be warned not to vote the candidates, charged with serious offences.

The bench, comprising the Chief Justice of India, Dipak Misra and Justices Rohinton Fali Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, in its unanimous judgment, said:

In a multi-party democracy, where members are elected on party lines and are subject to party discipline, we recommend to the Parliament to bring out a strong law whereby it is mandatory for the political parties to revoke membership of persons against whom charges are framed in heinous and grievous offences and not to set up such persons in elections, both for the Parliament and the State assemblies. This, in our alternative and plausible view, would go a long way in achieving decriminalisation of politics and usher in an era of immaculate, spotless, unsullied and virtuous constitutional democracy.

The bench then directs that the EC’s form to be filled up by each candidate must state in bold letters details of criminal cases pending against him or her; the candidate is required to inform the party about the criminal cases pending against him; the party has an obligation to put up on its website the information pertaining to candidates with criminal antecedents. The candidate as well as the political party shall issue a declaration in the widely circulated newspapers in the locality about the criminal antecedents of the candidate and also give wide publicity in the electronic media. “When we say wide publicity, the same shall be done at least thrice during the campaign”, the bench says.

Clear case of inconsistency

The judgment is disappointing because of its inconsistency and the fact that it misses the woods for the tree. The bench shares the petitioners’ concern about the growing criminalisation of polity, which is a threat to the basic structure of the constitution. Still, it expresses its inability to go beyond what it did, on the ground that it is bound by the doctrine of separation of powers between the legislature and the judiciary not to cross the ‘Lakshman Rekha’. There are enough reasons to believe that the bench not only confounded the issues before it, but ignored the many precedents which it had set to determine what constitutes Lakshman Rekha.

The primary question to be answered is whether the petitioners wanted the Court to cross the Lakshman Rekha, by adding even through the backdoor, an additional ground of disqualification of the legislators. The petitioners and the interveners repeatedly told the bench during the hearing that they did not seek an additional ground of disqualification to be imposed on the legislators, beyond what have been laid down in the Constitution and the law.

Given the sharing of perception between the bench and the petitioners that criminalisation of politics must be eschewed, both implicitly admit that there is a void in law, which has resulted in this malaise and it needs to be filled by a law made by Parliament. However, while the petitioners felt that in the context of Parliament not enacting the requisite law to fill the void for so many years, it was time for the court to step in. The bench, however, found that there was no void in law, which needed to be filled by the Court. The question which it did not answer was why it had to appeal to Parliament to make a law, if it felt there was no legislative void, to achieve this purpose. Clear case of inconsistency?

Did the petitioners’ plea for a direction to the EC to deprive party symbols to candidates with serious criminal charges amount to adding an additional ground of disqualification of legislators to the existing list of grounds of disqualification, as laid down in the Constitution and the law?

The bench cites Section 7 (b) of the Representation of People Act, 1951, which defines ‘disqualified’ as follows:

“disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State, under the provisions of this Chapter, and on no other ground”.

The bench then says that the words ‘no other ground” in Section 7(b) are of immense significance. Section 8 deals with disqualification on conviction for certain offences. Section 8(a) provides for disqualification on ground of corrupt practices. Section 9 provides for the disqualification for dismissal for corruption or disloyalty. Section 9(a) deals with the situation where there is subsisting contract between the person and the appropriate government. Section 10 lays down disqualification for office under government company and section 10(a) deals with disqualification for failure to lodge account of election expenses. Disqualifications are provided on certain and specific grounds by the legislature. Therefore, the bench suggested that the law, as it stood, meant to be exhaustive of all the grounds of disqualification, and nothing more could be added, or contemplated by the law.

While reasoning thus, the bench ignored its own principle, laid down in several previous judgments, that if there is a conflict between two provisions, one statutory and another Constitutional, the latter will prevail over the former.

Petitioners contended that the doctrine of fiduciary relationship has been extended to several constitutional posts and that if members of Public Service Commission, Chief Vigilance Commissioner and the Chief Secretary can undergo the test of integrity check and if “framing of charge” has been recognised as a disqualification for such posts, then there is no reason to not extend the said test of “framing of charge” to the posts of Members of Parliament and State Legislature as well. Such persons, they argued, hold the posts in constitutional trust and can be made subject to rigors and fetters as the right to contest elections is not a fundamental right but a statutory right or a right which must confirm to the constitutional ethos and principles.

In its reasoning, the bench ignored its own principle, laid down in several previous judgments, that if there is a conflict between two provisions, one statutory and another Constitutional, the latter will prevail over the former. Credit: PTI

The bench did not disagree with this proposition.

Interveners in the case argued that persons charged for an offence punishable with imprisonment for five years or more are liable to be declared as disqualified for being elected or for being a Member of Parliament as a person chargesheeted in a crime involving moral turpitude is undesirable for a job under the government and it is rather incongruous that such a person can become a lawmaker who then control civil servants and other government machinery and, thus, treating legislators on a different footing amounts to a violation of Article 14 of the Constitution.

The bench did not disagree with this contention either. Should not Article 14 of the Constitution prevail over Section 7(b) of the RPA? The bench has no answers, because it did not seem to have noticed a conflict between these two.

Confusion confounded and the bench’s naivete

The petitioners did not seek derecognition of a political party under section 29 of RPA. They only sought that the EC must ask a political party not to field a candidate with its party symbol, if he or she is chargesheeted for a serious offence. The bench, however, erroneously agreed with the contention of the Attorney General, K.K. Venugopal, representing the Centre, that denial of symbol to a party candidate is tantamount to derecognition of a political party. Clearly, the option to replace a candidate, charged with serious offences, with a clean candidate, once the facts are brought to the notice of the party leadership, remains with the party.

Worse, by issuing directions to the political parties and the EC to enhance voters’ awareness about the criminal antecedents of the parties, the bench has exposed its naivete that more disclosure can dissuade the voters from voting for a candidate charged with serious criminal offences. In fact, the bench cites the Law Commission study, to show that the opposite is true.

The commission, the bench says, found that candidates charged with a crime actually fare better in elections than clean candidates: Only 12% of candidates with a “clean” record win on an average, 23% of candidates with some kind of criminal record win which implies that candidates charged with a crime actually fare better in elections than ‘clean’ candidates. This, as per the commission, has resulted in the tendency for candidates with criminal cases to be given tickets a second time and not only do political parties select candidates with criminal backgrounds, but there is also evidence to suggest that untainted representatives later become involved in criminal activities and, thus, the incidence of criminalisation of politics is pervasive, thereby making its remediation an urgent need.

The bench noted that the Law Commission’s recommendations for amendment of law never saw the light of the day, but they vividly exhibited the concern of the society about the progressing trend of criminalisation of politics that has the proclivity and the propensity to send shivers down the spine of a constitutional democracy.

Despite all these, does the bench want us to believe that voters vote candidates charged with serious criminal offences because they are unaware of this fact, and therefore, more and better disclosure of information could help?

The petitioners did not seek the EC to deprive the membership of political party, but only disentitle the candidate charged with criminal offence for the party symbol. Both are not the same. A party member can continue to be so, but being entitled to a symbol as a candidate requires he or she is free of any criminal charges. Symbol obvious has a very valuable advantage, as the Court puts it. But how does its deprivation on the ground of criminal charge of a candidate, become “grave”, as the bench puts it? The court does not explain it beyond linking the membership of a party with automatic entitlement to its symbol. The petitioners’ nuanced distinction between these two did not register on the bench.

Absurd justification

Worse, the Centre justified criminalisation of politics on the ground that parties have a right to be associated with MPs with criminal charges under Article 19(1)(c) and the Supreme Court didn’t disagree with such a view. Even if the Centre’s view, absurd though it is, is correct, the petitioners did not seek any restriction on this right, as those MPs with criminal charges can continue to associated, although they cannot become its candidates fighting on party’s symbols. The Centre as well as the Court confused membership of the party with the right to contest on a symbol.

“Every citizen has a right under Article 19(1)(c) to form associations which includes the right to be associated with persons who are otherwise qualified to be Members of Parliament under the Constitution of India, and under the law made by the Parliament. This right can only be restricted by law made by Parliament and any direction issued by the EC under Article 324 is not law for the purpose of Article 19(1)(c)”, the Centre told the Supreme Court. Fair enough. But the question is whether political parties fighting elections should have the freedom to be associated with those charged with heinous offences. If this is permissible, there can be no legitimate ban on ultra-left parties like the CPI (Maoist), right?

Requiring every member of a political party to disclose information as criminal antecedents irrespective of whether he/she is contesting election will have serious impact on the privacy of the member, the Centre claimed. Clearly, it is tantamount to turning the right to privacy on its head. The bench fortunately did not agree with this contention, as it insisted that the party disclose the details on its website.

Article 142 of the Constitution does not empower the Supreme Court to add words to a statute or read words into it which are not there and it does not confer the power upon the Court to make law, the Centre told the bench. However, it is well recognised that if there is a legislative void, the Court could fill in till Parliament enacts a law. There are many precedents to this, which the Court could have followed.

The bench concludes that substantial efforts have to be undertaken to cleanse the polluted stream of politics by prohibiting people with criminal antecedents so that they do not even conceive of the idea of entering into politics. “They should be kept at bay. Such a malignancy is not incurable. It only depends upon the time and stage when one starts treating it; the sooner the better, before it becomes fatal to democracy”, the bench avers. Why then, it gave up its opportunity to address it, and left it to Parliament when the political class has shown no interest to clean the augean stables for decades?

SC’s No to NOTA in Rajya Sabha Elections is Riddled With Contradictions

By appearing to prevent indiscipline by individual legislators of a political party, the Supreme Court has given a licence to wholesale corruption by the leaders of political parties.

The Supreme Court bench consisting of Chief Justice of India Dipak Misra, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud, on Tuesday quashed the Election Commission’s circulars introducing the None Of The Above (NOTA) option to the electors in the Rajya Sabha election in the case, Shailesh Manubhai Parmar v Election Commission of India Through The Chief Election Commissioner & Others.

Making NOTA applicable in Rajya Sabha elections is contrary to Article 80(4) of the constitution and the Supreme Court’s judgment in PUCL v Union of India (2013), the bench held. Article 80(4) states that the representatives of each state in the council of states shall be elected by the elected members of the legislative assembly of the state in accordance with the system of proportional representation by means of the single transferable vote.

The Election Commission contended that as per the pronouncement in the PUCL case, there is no distinction between direct and indirect elections and the provision of NOTA in the ballot paper of the elections has been made applicable by the EC to Rajya Sabha to effectuate the right of electors guaranteed to them under Section 79A of the RPA. The EC issued a circular on January 24, 2014, and reiterated it by another circular dated November 12, 2015 that the option of NOTA would be applicable to elections in Rajya Sabha.

Citing the court’s previous rulings, the bench held that the vote of an elector in the Rajya Sabha election has certain value, and that there is transfer of surplus votes.

The Supreme Court, in the PUCL case, directed the EC to introduce NOTA in direct elections in order to provide an opportunity to the elector to express his or her dissent or disapproval against the contesting candidates and to reduce bogus voting.

The court reasoned in that case that when political parties realise that a large number of people are expressing their disapproval with the candidates being put up by them through NOTA, gradually there would be a systemic change and the political parties would be forced to accept the will of the people and field candidates who are known for their integrity.

In direct elections, a dissatisfied voter ordinarily does not turn up for voting which, in turn, provides a chance to unscrupulous elements to impersonate, and cast a vote. The Supreme Court, therefore, directed the EC to make necessary provision in the ballot papers/EVMs for another button called NOTA so that voters who come to the polling booth and decide not to vote for any of the candidates in the fray, are able to exercise their right not to vote while maintaining their right of secrecy.

Representational image. Credit: PTI

In the PUCL case, although the Supreme Court pronounced its judgment, by referring to the direct elections, it did not specifically rule out NOTA’s relevance in indirect elections. But on Tuesday, the three-judge bench has clearly ruled it out by distinguishing indirect elections to the Rajya Sabha from the direct elections to Lok Sabha and state assemblies.

In the Rajya Sabha, the bench reasoned that the nature of the representative is different, for he becomes a representative of the state. In contrast, a candidate who is elected by voters in a direct election represents a constituency. The bench did not explain how this distinction matters for the purpose of extending or denying NOTA.

The court noted that in the wake of “emerging trend of cross-voting in the Rajya Sabha and legislative council elections”, elections “by open ballot” were incorporated. Election for filling up of seats in the Rajya Sabha is held by open ballot and the requirements of maintenance of secrecy of voting is now made subject to this exception.

Parliament found that in election to the Rajya Sabha, members of the electoral college, though elected on behalf of political parties, misuse the secret ballot, and cross-vote and there had been breach of discipline by political parties for collateral and corrupt considerations. Therefore, parliament legislated to provide for an open ballot. The Supreme Court held that the principle of secrecy is not an absolute principle, though it is meant to ensure free and fair elections. The higher principle is free and fair election, and purity of election, it held.

The Supreme Court has held that its judgment in the PUCL case relates to direct elections, which are constituency-based. The bench did not explain why the same judgment could not apply to a non-constituency based election. The PUCL judgment thus justifies NOTA on the ground that it is similar to the option of abstention, apart from options ‘Yes’ or ‘No’, which are available to the members of parliament and state assemblies.

If the Supreme Court’s judgment on Tuesday is any guide, then members of parliament and state assemblies cannot exercise their right to abstain from voting on any issue, because the same grounds invoked against NOTA in the Rajya Sabha elections could be used against abstention by legislators.

Misreading of anti-defection Act

The Anti-Defection Act, which inserts Tenth schedule to the constitution, maintains a fine balance between the freedom of a legislator to express herself, and the consequence of disqualification on the ground of defection. Thus a legislator can vote against a party’s direction, or abstain from voting and can still avoid disqualification, if she had obtained prior permission of such political party, or such voting or abstention has been condoned by the party within 15 days (Paragraph 2(1)(b)).

More important, the Act does not prevent defiance of party’s direction by a member, or her action of voluntarily relinquishing the membership of the party. It only seeks to impose disqualification of membership of the house on such a member, after a due process of inquiry by the chairman of the house.

In other words, a legislator voluntarily gives up her membership of a political party, or violates the direction of the party whip, knowing fully well that she might have to resign or face disqualification from the membership of the house, if her conduct satisfies the ingredients mentioned in the Act. The Act does not consider the conduct itself as anathema to democracy; it only requires that it be visited with disqualification, if required.

The Supreme Court, likewise, could have let the rigours of Tenth Schedule to be used against state assembly legislators, who use the NOTA option in the Rajya Sabha elections, in violation of the party’s direction, if any. What if the party decides against issuing directions to its members to vote or not to vote a particular candidate in the Rajya Sabha election? Why should the court deny NOTA option to such legislators?

If cross voting is an offence in itself, parliament can make it invalid. But as parliament has not declared it so, can the Supreme Court take it upon itself, and consider cross voting as being inconsistent with purity in the election process and the core values of democracy and fair election? If the Supreme Court is convinced that cross voting is such a serious aberration, why not declare it unconstitutional? The court does not do so, and instead, assumes that NOTA would encourage it. The court has held in many cases that mere possibility of abuse cannot be a ground against the validity of any law or rule.

The judgment erroneously equates party discipline with purity in the election process. Indian politics is synonymous with some of the great splits which have occurred in many political parties. If party discipline is considered a core virtue in itself, then most splits should be considered as unethical, if not unconstitutional. But splits, resulting from party indiscipline, have enriched Indian democracy, and made it vibrant.

The judgment not only elevates party discipline as a principle of democracy, but considers open ballot as its essential ingredient. The bench conveniently ignores the reality of party leaders behaving like autocrats in the garb of maintaining party discipline, thereby crushing intra-party democracy. Open ballot sustains foundational value of party discipline, and avoids any kind of cross voting, besides ensuring purity in the election process, the bench observes. “The party discipline in this kind of election is of extreme significance, for that is the fulcrum of the existence of political parties. It is essential in a parliamentary democracy. The thought of cross voting and corruption is obnoxious in such a voting.”, the bench adds.

The counsel for the petitioner, Abhishek Manu Singhvi argued that an elector belonging to a particular party might not voluntarily give up the membership but could exercise his choice of NOTA despite his political party setting up a candidate. This, he contended, created an anomalous situation and brought in horse trading, corruption and use of extra constitutional methods which were sought to be avoided by the introduction of the Tenth Schedule to the constitution.

The mere possibility of horse trading, corruption and use of extra constitutional methods cannot be a ground for denial of NOTA, which the court assumes, will have a negative impact.

But this argument misses the point that the action of voluntarily giving up the membership may be inferred from the conduct of a legislator, and need not be explicit. The exercise of NOTA by a legislator in the Rajya Sabha election could be an instance of voluntarily giving up the membership, which could lead to the disqualification of the member. The mere possibility of horse trading, corruption and use of extra constitutional methods cannot be a ground for denial of NOTA, which the court assumes, will have a negative impact.

In many cases, the courts have grappled with the question of what constitutes voluntarily giving up membership of a political party, to determine whether a legislator has suffered disqualification on the ground of defection. Whether the exercise of NOTA by a legislator in the Rajya Sabha elections amounts to voluntarily giving up membership of a political party depends on the facts and circumstances of a particular case, and any such question has to be decided in accordance with law, first before the presiding officer of the house concerned, and if challenged before a court later, by the judiciary. It is not for the Supreme Court to assume before hand that NOTA would amount to that, and make that option unavailable to an elector on that ground.

The bench is correct in finding that in the Rajya Sabha elections, an elector, though a single voter, has a quantified value of his vote and the surplus votes are transferable and that there is a formula for determining the value of the vote. From this, the bench leaps to the conclusion, without any basis, that NOTA in Rajya Sabha election will be an anathema to the fundamental criterion of democracy, which is a basic feature of the constitution.

The introduction of NOTA in the Rajya Sabha election, the bench adds, will not only run counter to the discipline that is expected from an elector under the Tenth Schedule to the constitution but also be counterproductive to the basic grammar of the law of disqualification of a member on the ground of defection. “It is a well settled principle that what cannot be done directly, cannot be done indirectly”, it says. To elaborate, if NOTA is allowed in the election of the members to the council of states, the “prohibited aspect of defection” would indirectly usher in with immense vigour, the bench suggests. The Act, the court must remind itself, does not prohibit defection, but only seeks to impose disqualification on members who defect, under certain circumstances.

NOTA is directly relatable to a direct election, one man, one vote and one value, but in Rajya Sabha elections, it would not only undermine the purity of democracy, but also serve the Satan of defection and corruption, the bench concluded and quashed the EC’s circulars.

By appearing to prevent indiscipline by individual legislators of a political party, the Supreme Court has given a licence to wholesale corruption by the leaders of political parties, who will now have a free hand in negotiating support to candidates in Rajya Sabha elections by virtue of their unchallengeable control over the party electors.

When It Comes to Master-of-Roster, SC Does U-Turn on Vesting Power in Single Person

The Supreme Court lost an opportunity to implement in its own quarter a principle that it chose to preach to Delhi’s LG recently.

“It is a well recognised principle of a true democracy that the power shall not remain vested in a single person….”

“The authorities in power should constantly remind themselves that they are constitutional functionaries and they have the responsibility to ensure that the fundamental purpose of administration is the welfare of the people in an ethical manner. There is requirement of discussion and deliberation. The fine nuances are to be dwelled upon with mutual respect.”

∼ Chief Justice of India, Dipak Misra, in his lead judgment delivered on July 4 in Government of NCT of Delhi v Union of India

New Delhi: The landmark judgment delivered by the Supreme Court’s constitution bench to resolve Delhi’s power struggle is just two days old. However, the fine sentiments expressed by the bench in that judgment, appear to have had no effect on two judges of the same bench, who delivered a judgment on Friday on the Chief Justice of India’s powers to allocate cases oblivious of its relevance.

The bench of Justice A.K. Sikri and Justice Ashok Bhushan dismissed senior advocate and former Union law minister Shanti Bhushan’s petition seeking directions to read the expression, ‘Chief Justice of India’ as ‘the collegium of five senior-most Judges of the Supreme Court’, so that the power to allocate cases among the judges, and constitute different benches of the Supreme Court does not remain vested in a single person, that is, the CJI.

Although the CJI, Dipak Misra, made the observation in the context of the lieutenant governor (LG) of Delhi and his relationship with Delhi’s council of ministers, there is no valid reason why the principle can’t apply to himself, in his relationship with the other judges of the Supreme Court. After all, the CJI is considered as the first among the equals on the judicial side of the Supreme Court. Bhushan’s plea to ensure similar equality among the judges of the Supreme Court, on the administrative side, therefore, made sense.

In their separate judgments, both Justice Sikri and Justice Ashok Bhushan expressed their unease with Bhushan’s plea, merely calling it impractical. They also expressed their helplessness, because they are bound by the recent decision of a three judge bench in a recent public interest litigation case, which raised a similar plea.

That PIL, filed by one advocate, Asok Pande, raised considerable eyebrows because it was heard by a bench headed by Chief Justice Misra himself, and without issuing notice to the respondents, the judgment was reserved. That the CJI did not find it necessary to recuse himself from hearing that case, and the unusual haste with which the petition was heard and concluded, attracted adverse comments from observers.

“In case the expression ‘Chief Justice’ is to be interpreted as ‘Collegium’, it would be difficult to have smooth day to day functioning of the Supreme Court, or for that matter, the high courts…meeting of collegium for the purpose of assigning the cases to a particular bench on daily basis is clearly impracticable,” Justice Sikri observed in his judgment.

“Non-containing of any specific provision in the constitution empowering the Chief Justice to frame the roster to allocate the cases is inconsequential since the entire subject was to be covered by rules made under Article 145…. We, thus, are not impressed by the submission of [Dushyant] Dave that the roster should be prepared by the entire court”, Justice Ashok Bhushan held in his separate and concurring judgment.

Supreme Court of India. Credit: PTI

During the hearing of the case, it was submitted by Bhushan, through his senior counsel, Dushyant Dave, that the Supreme Court Rules, framed under Article 145 of the constitution, confer powers on the registrar under Order III Rules 7 and 8 to deal with preparations of list and fixing of hearings and petitions, which would include appropriate listings. The role assigned to the chief justice, he told the court, is extremely narrow and limited. Order VI, he said, does not confer any further powers on the chief justice in this regard. In any case, the rules being delegated piece of legislation, cannot travel beyond the statute, the constitution of India and must, therefore, be interpreted in tune with the parent Act, he had submitted.

The Sikri-Ashok Bhushan judgment is silent on this submission, and instead merely draws attention to the recent judgment in the Asok Pande case, saying it is binding on them.

Also, Bhushan had brought to the notice of the bench that the Handbook on Practice and Office Procedure published by the Supreme Court which contains disturbing provisions in Chapter XI conferring special power on the chief justice to issue directions for listing of important and sensitive cases as also in fresh cases is wholly outside the ambit of the constitutional scheme and the Supreme Court rules.

“It is void ab initio, and cannot be interpreted to confer any such power on the Chief Justice when the powers are conferred on the Supreme Court under the constitution,” he had explained in his submission.

Bhushan had contended that functions such as “framing of roster” and “listing of important and sensitive matters” are extremely crucial and cannot be left to the sole discretion of the chief justice as per the law in S.P. Gupta’s (First Judges) case. “In any case, such exclusive discretion is anathema to the constitutional scheme,” he had submitted to the bench.

Bhushan, therefore, found it imperative that the expression ‘chief justice’ must mean the Supreme Court or as held by the Supreme Court in series of judgments in the First, Second, and Third Judges cases, the collegium of five senior-most judges to provide appropriate checks and balances against any possible abuse of this power by the CJI as the master of the roster.

Friday’s judgment chooses to be silent on this contention as well, relying solely on the judgment in Asok Pande.

Instead, it shares the submission of Attorney General K.K.Venugopal that such matters of constituting the benches and allocating cases to the respective benches has to be left to the sole discretion of the CJI, acting in his individual capacity, for the smooth functioning of the court, by reposing faith and trust in the Chief Justice, who occupies the highest constitutional position in the judiciary.

The bench found that the collegium system, being followed for appointment of judges, cannot be replicated when it comes to the role of the Chief Justice as the master of the roster.

The reason cited by it was that while the meetings of the collegium for the purpose of appointment of judges are infrequent, the CJI is expected to assign cases to benches on a daily basis, and holding collegium meetings for this purpose on a daily basis, is “clearly impracticable”.

The Supreme Court clearly lost an opportunity to implement in its own quarter a principle that it chose to preach to Delhi’s LG, merely two days ago. It is not as if the July 4 judgment was not on the minds of the judges who delivered Friday’s judgment. Justice Sikri, indeed, cites the July 4 judgment, to emphasise the role of the court as final arbiter of the constitution and upholder of the rule of law.

But both the judges, however, appear to have missed the crucial sentence in which the CJI expresses his serious reservations over vesting powers in a single individual. Or, at least, they did not consider it relevant enough to decide the case before them.

Why Naidu’s Refusal to Admit Impeachment Motion Won’t Survive Judicial Scrutiny

It is not for the vice president to decide whether the charges levelled by MPs in their motion amount to “proved misbehaviour” on the part of the chief justice. That prerogative, by law and precedent, belongs to parliament.

New Delhi: In refusing to admit the motion seeking initiation of impeachment proceedings against the Chief Justice of India, Vice President M. Venkaiah Naidu – who is also ex-officio chairman of the Rajya Sabha – provided a reasoned decision running into 10 pages. However, his reasoning is not likely to withstand legal scrutiny, if challenged via a writ in the Supreme Court.

Section 3 (1) of the Judges Inquiry Act says that the speaker of the Lok Sabha or, as the case may be, the chairman of the Rajya Sabha may – after consulting such persons, if any, as he thinks fit and after considering such materials, if any, as may be available to him – has the power to either admit the motion or refuse to do so.

Thus it is clearly envisaged that the chairman may refuse to admit a motion duly presented to him by MPs. If he refuses to admit the motion, he is, of course, not under any obligation to constitute a committee consisting of three members for the purpose of making an investigation into the grounds on which the removal of a judge is prayed for.

The Act, however, is silent on the circumstances under which the chairman or the speaker can refuse to admit a motion.

Mistaken assumption

The first flaw in Naidu’s decision is that he erroneously assumes that his responsibility to admit – or reject – the motion is a parliamentary procedure. Thus Naidu cites the phrase “proved misbehaviour” used in Article 124(4) of the constitution on impeachment, and contends that the prefix “proved’ places an obligation of actually proving the misbehaviour before the actual procedure for removal of a judge can come into play. “At the stage of admission, I have to apply a test that if every statement stated in the petition is believed to be true, would it still amount to a case of “proved misbehaviour” within the scope of Article 124(4) of the constitution of India”, he writes in his order.

This is where he has gone wrong.

Article 124(4) reads:

“A judge of the Supreme Court shall not be removed from his office except by an order of the president passed after an address by each house of parliament supported by a majority of the total membership of that house and by a majority of not less than two-thirds of the members of the house present and voting has been presented to the president in the same session for such removal on the ground of proved misbehaviour or incapacity.”

Based on this standard of “proved misbehaviour”, Naidu punches holes in the motion by pointing out references which suggest that the MPs, who lent their signatures to the motion, are themselves unsure about whether the allegations can be substantiated.

He refers to the use of phrases such as the CJI “may have been involved in a conspiracy of paying illegal gratification”, the CJI “was likely to fall within the scope of investigation”, and “the CJI appears to have ante-dated an administrative order” in the motion, and concludes: “The phrases used by the hon’ble members of parliament themselves indicate a mere suspicion, a conjecture or an assumption. The same certainly does not constitute proof “beyond reasonable doubt”, which is required to make out a case of “proved misbehaviour” under Article 124(4).”

Naidu may well be correct in his analysis of the motion. But it is not for him to insist on proof of misbehaviour. This is because the parliamentary procedure for the removal of a judge does not come into play with the mere admittance of a motion, as he assumes.

For his erroneous assumption, Naidu relies on the Supreme Court’s judgment in In Re: Mehar Singh Saini (2010). This is his second mistake.

The 2010 case involved the removal and suspension of a member of the Public Service Commission under Article 317 of the constitution. The expression in clause (1) of Article 317 used for describing the ground of removal is ‘the ground of misbehaviour’ while in clause (4) of Article 124 dealing with judges, it is, ‘the ground of proved misbehaviour or incapacity’.

The adjudication of the ground of misbehaviour under Article 317 (1) is to be by the Supreme Court, whereas in the case of a judge, who is a higher constitutional functionary, the requirement of judicial determination of the ground is reinforced by the addition of the word ‘proved’ in Article 124(4) and the requirement of law for this purpose under Article 124(5). The Supreme Court adds in this judgment that the expression ‘misbehaviour’ generally refers to a conduct which might erode the faith and confidence of the public at large in such constitutional office.

Thus In Re: Mehar Singh Saini does not throw any light on when a parliamentary procedure to remove a judge kicks in after the motion is presented by the members of the house to its presiding office.

The Ramaswami precedent

However, In Re: Mehar Singh Saini relies on another previous judgment of the Supreme Court, Sub-Committee on Judicial Accountability v Union of India, delivered by a constitution bench on October 29, 1991. In this case, the speaker of the Lok Sabha had admitted the motion for the removal of Justice V.Ramaswami of the Supreme Court, upon a notice given by 108 members of 9th Lok Sabha, for his alleged misconduct during his term as the chief justice of the Punjab and Haryana high court. Subsequently, the Lok Sabha was dissolved, and its term came to an end.

The Centre, after the constitution of the 10th Lok Sabha following general elections in 1991, had taken the view that the motion – as well as the decision of the speaker admitting it – had lapsed consequent on the dissolution of the previous Lok Sabha. Therefore, it did not let the inquiry committee set up by the previous speaker to probe the allegations against Justice V.Ramaswami discharge its functions.

At that point, the Sub-Committee on Judicial Accountability – constituted by the All India Convention on Judicial Accountability, and the Supreme Court Bar Association – filed writ petitions in the Supreme Court, seeking to prosecute the matter in the larger public interest. The petitioners sought directions to the Centre to take immediate steps to enable the inquiry committee to discharge its functions under the Judges (Inquiry) Act and, second, that during the pendency of the proceedings before the committee, Justice Ramaswami should be restrained from performing judicial functions and from exercising judicial powers. The petitioners also contended that impeachment motions were sui generis in their nature, and, therefore, did not lapse.

The constitution bench by a majority of 4:1 held that a motion under section (2) of the Act does not lapse upon the dissolution of the Lok Sabha. The bench, however, refused to restrain Justice Ramaswami from performing judicial functions, and exercising judicial powers, leaving it to his sense of propriety, and to the judicial tradition symbolised by the views of the CJI. The bench expressed the hope that a desirable convention would be followed by the judge in that situation, which would not require the exercise of a power of suspension, during the inquiry.

But what the bench observed on the question of when the parliamentary procedure for impeachment would kick in, is relevant to understand the present controversy. The bench held:

“The constitutional process for removal of a judge up to the point of admission of the motion, constitution of the committee, and the recording of findings of the committee are not, strictly, proceedings in the houses of parliament.”

The bench further explained:

“The scheme of Articles 124(4) and (5) is that the entire process of removal is in two parts – the first part, under clause (5) from initiation to investigation and proof of misbehaviour or incapacity is covered by an enacted law, parliament’s role being only legislative as in all the laws enacted by it, the second part under clause (4) is in parliament and that process commences only on proof of misbehaviour or incapacity in accordance with the law enacted under clause (5). Thus the first part is entirely statutory, while the second part alone is the parliamentary process.”

The bench then added:

“The constitution intended a clear provision for the first part covered fully by enacted law, the validity of which and the process thereunder being subject to judicial review independent of any political colour and after proof it was intended to be a parliamentary process. It is this synthesis made in our constitutional scheme for removal of a judge.”

Precedent distorted

In his third mistake, Naidu wrongly cites the Supreme Court’s judgment in M.Krishna Swami v Union of India (1993), which also revolved around Justice Ramaswamy’s impeachment matter. As he relied on this judgment for guidance, let us examine the relevant paragraph cited by him. The crucial sentence is this:

“He (the chairman) need not weigh the pros and cons to find prima facie case. He acts neither as a quasi-judicial nor an administrative authority but purely as a constitutional functionary and with high sense of responsibility and on due consideration of ‘the record’ and arrives at a decision to admit or refuse to admit the motion to remove the judge.”

However, the factual matrix of M. Krishna Swami is such that it does not support Naidu’s reliance on it. The petitioner in this case was aggrieved that the then speaker of the Lok Sabha had admitted the motion for removal of the Justice V. Ramaswami. In other words, the Supreme Court made these observations to justify the admission of the motion by the speaker. Naidu, however, uses the same observations to justify his refusal to admit the motion! After reading it again and again, one wonders which part of the paragraph convinced Naidu that the motion deserved to be rejected.

Merely claiming that he consulted many constitutional experts, as required by the Act, is not sufficient to show why his decision is justified. Naidu seems to have emphasised these procedural aspects to answer the possible challenge that he did not apply his mind before refusing to admit the motion. Still, the speed with which he took the decision – in order to make it public before 10.30 in the morning when the Supreme Court judges begin hearings for the day – is surely astonishing.

Had Naidu cited the entire paragraph 44 of the Supreme Court’s judgment in M. Krishna Swami – he has cited only one part of this paragraph, that too selectively – he could have got the necessary guidance as to how to decide the motion before him. The portions which he did not cite, read as follows:

“Existence of definite material or evidence in support of the grounds of the motion, before initiation of the motion – for removal of the judge is, thus, a condition precedent. Lest it would be an open invitation to initiate, for obvious reasons, proceedings to remove the judge and then resort to collecting perjured evidence in support thereof against the judge which is subversive of judicial independence and a death-knell to rule of law. Action in any other way, the speaker would forfeit the trust reposed by the founding fathers of the constitution in that office as well as the confidence of the House of People, i.e., the people of Bharat themselves.”

Thus it is the existence of definite material or evidence in support of the grounds of the motion – and not whether the material submitted constitutes “proof” of the misbehaviour of the judge concerned – which should have been the criterion for Naidu to accept or reject the motion.

Unfortunately, Naidu’s order smacks of poor understanding of the law and precedent, and pre-empts the role of the inquiry committee – which he did not set up, and which alone can determine whether the material submitted by the MPs constitutes proof of misbehaviour of the judge in question.

It is true that the motion to remove the CJI has no prospect of being carried, with the proposers of the motion being vastly outnumbered by those against. But, as pointed out by the eminent academic, Mohan Gopal – who was the jurist member in the inquiry committee set up to probe the allegations against Justice P. D. Dinakaran – the first goal envisaged in the constitutional and statutory provisions is establishing the truthfulness of the charges of misbehaviour or incapacity of a judge. This is an end in itself – and not merely a means to the end of removal from office – because the polity of any country will be severely harmed if serious allegations of misbehaviour of high officials are allowed to be left unaddressed.

Of Micro-Finance and Women’s Empowerment

Last year, women’s self-help groups got Rs 38,000 crore in loans from private and public banks. Here’s how these groups got started.

Mysuru: Around 200 women hoot and cheer as one of them jots down numbers on a blackboard. These, women, gathered under one roof, are the representatives of 120 self-help groups from around 50 villages in H.D. Kote, one of the most backward taluks in the Mysuru district. They are here, in Beechanahalli village, for their routine monthly meet, and are currently engaged in a friendly competition to see who saved the most the previous month.

There are many rules here – if you come late for the meeting, you’re fined Rs 10. If you don’t turn up, you’re fined Rs 25. If you use your mobile during the meet, you’re fined Rs 10 and so on. Yet, the air is thick with mirth.

Each month these women manage to save away a small part of the amount they have taken on loan (anywhere between Rs 2,000 to Rs 2 lakh, at significantly low interest rates) and contribute these savings to the federation’s functioning.

They get handsome gains for their trouble – the federation provides them with basic ration, milk and water. And each school-going child gets four notebooks and two pens.

While most members borrow money for personal purposes, like their children’s education, weddings and so on, others borrow to run their businesses.

Lakshmi, a 32-year-old woman from Beechanahalli, borrowed money for her dairy farming business. “Earlier, I used to milk other people’s cows and help sell the milk. Now, I own four cows myself and get at least 10 litres of milk per cow daily,” she says.

Pushpamani, the 40-year-old owner of a chicken shop, says the concept of SHGs goes beyond finance. “It is not just about the money. We share a bond. Women who wouldn’t otherwise step out of their homes are all a family now,” she says.

SHGs were first started three decades ago, in a place not too far from here. These groups were meant to ensure a free flow of micro-credits for women and to create a sense of collective responsibility among borrowers. SHGs have clearly achieved that. And much more.

How it all began

In the early 1990s, many of the region’s farmer cooperatives were going broke and credit systems failing. “There were many defaulters. Farmers, especially those growing cash crops had no ready money, and they had to turn to private lenders and loan sharks,” recalls William D’Souza, who was then working as an extension manager with Myrada (the NGO that started SHGs) and helping mobilise funds for farmers.

At the time, Myrada, then called the Mysore Resettlement and Development Agency, was working with around 300 co-operatives, helping and training their members in handling finances.

One of the problems was unwieldy loan recovery – each cooperative had at least 50 members and keeping track of each one’s finances was a task. So, Myrada broke these groups into smaller ones of about 20 people each, and named them ‘credit management groups’. “The idea was that a group would be made collectively liable for the credit taken. This was new and was welcomed by the members. The number of defaulters drastically reduced after this,” explains D’Souza.

As Myrada went out to promote their model from village to village, they began to notice that women were more interested in the idea than men. Sensing potential, they shifted focus towards empowering women through financial independence.

“Rural women really wanted to contribute to household earnings. We began to teach them skills and fund these skills with loans to give it wings,” says D’Souza. Soon enough, the NGO started imparting skills like basket-weaving, mat-making and knitting to the women in these groups as well.

Myrada’s idea built upon a similar one instituted in Ahmedabad way back in the 1970s. Ela Bhatt, a cooperative organiser and activist, had engineered a similar model there with her NGO, Self-Employed Women’s Association (SEWA).

Bhatt, who was then working with a textile labour association in the city, started a self-help group under the association’s women’s wing. She was inspired by similar groups in Israel, where self-employed women unionised to assert their rights.

The model, though successful, was limited to a few dozen women. Myrada expanded the concept and pitched the idea to the National Bank for Agriculture and Rural Development (NABARD) in 1986. The project received an amount of Rs 10 lakh for micro-financing SHGs. The pilot project became so successful that in 1992-93, NABARD went on to initiate an SHG-bank linkage programme.

Several state governments, starting with Tamil Nadu, quickly adopted the concept. Karnataka and Kerala followed suit, and soon enough, every state was following the model.

Fast forward to today – there are more than 8.5 million registered SHGs in India. They were loaned a total of Rs 38,000 crore by private and public sector banks in 2016-17. What started in the small town of H.D. Kote continues to touch millions of lives across the country.

Kathlene Reena is a student of journalism at the Asian College of Journalism, Chennai.

Amar Singh Expulsion Case: SC Misses Chance to Interpret Anti-Defection Law

Had the court chosen to interpret the Act, it could have ruled on the distinction between the illegitimacy of applying the party whip to an expelled legislator and incurring disqualification when the same legislator joins another party.

The Supreme Court’s three-judge bench, comprising Justices Ranjan Gogoi, Arun Mishra and Prafulla C. Pant, decided on August 3 not to interpret the Anti-Defection Act to determine the status of MPs and MLAs expelled by the parties on whose nomination they were elected to parliament or state assemblies. The court refrained from doing so on the ground that the petitions referred to the bench have become infructuous, with the petitioners – Amar Singh, Jaya Pradha and Pyarimohan Mohapatra – completing their terms in parliament during the pendency of their petitions.

While Singh and Pradha were expelled by the Samajwadi Party, Mohapatra suffered a similar fate at the hands of the Biju Janata Dal leadership.

Ironically, on August 2, another bench of the Supreme Court decided a public interest matter, even though the facts of the case suggested it had become infructuous.

In Educational Consultants India Ltd SC/ST Employees Welfare Association v Union of India, the bench, comprising Chief Justice T.S. Thakur, and Justices R. Banumathi and Uday Umesh Lalit, dismissed the challenge to the extension of tenure to a civil servant without clearance from the central vigilance commissioner, although the officer in question had completed her extended term eight months ago.

Whether a matter has become infructuous depends on the facts of the case, which were obvious to both the bench and the counsel during the hearing of this case. Still, the bench went ahead and heard the counsel at length, probably to lay down certain principles, while answering the questions referred to it by a two-judge bench in 2010.

Such principles would have been relevant to pre-empt litigation in the future, and also to guide presiding officers in parliament and state assemblies who function as quasi-judicial officers under the tenth schedule to the constitution.

Therefore, the bench’s decision to refrain from answering those questions because the matter has become infructuous took the counsel by surprise and also left them disappointed that their well-researched arguments to persuade the bench to decide the issue either way were in vain.

“Questions referred are kept open for decision in an appropriate case”, the bench has observed in its order.

Indeed, the very basis of Singh’s writ petition in the Supreme Court became vulnerable during its pendency when in 2011, he and Pradha floated a new political party, the Rashtriya Lok Manch, which contested the 2012 assembly elections in UP unsuccessfully. By launching this party, Singh could have suffered disqualification under the tenth schedule because his action amounted to voluntarily quitting the party and thereby attracting disqualification as a member.

However, as he and Pradha enjoyed the protection of the Supreme Court from disqualification during the pendency of the petition, they did not invite any disqualification proceedings.

With the Samajwadi Party taking Singh back into its fold in 2016 by nominating him for another term in the Rajya Sabha, the clock has turned full circle; but the issues he raised in his petition will continue to resonate in our representative bodies, until the Supreme Court gets another opportunity to resolve them.

Deeming fiction

Singh’s 2010 petition in the Supreme Court was prompted by the court’s previous decision in G. Viswanathan v. Hon’ble Speaker, Tamil Nadu Legislative Assembly (1996).

In that case, the Supreme Court held that an elected member would continue to belong to the political party that set him or her up as a candidate for the election as such member. This is notwithstanding the fact that he or she had been expelled from that party.

The court justified this view because of the deeming fiction contained in explanation (a) to paragraph 2(b) of the tenth schedule.

Paragraph 2(b) says that if a member votes or abstains from voting in the House, contrary to any direction issued by the party to which he belongs, then he would be disqualified from being a member of the House.

An explanation, carried in the schedule, to this sub-paragraph says that an elected member of the House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member.

It is fairly well settled that a deeming provision is an admission of the non-existence of the fact deemed. The legislature is competent to enact a deeming provision for the purpose of assuming the existence of a fact that does not even exist. It means that the courts must assume that such a state of affairs exists as real, and should imagine as real the consequences and incidents that inevitably flow therefrom, and give effect to the same.

Reading these together, the Supreme Court held in G. Viswanathan that this deeming fiction has to be given full effect otherwise the expelled member would escape the rigour of the law, which was intended to curb the evil of defections. The expulsion of a member from the political party will have no bearing on this deeming fiction, the court had held in G.Viswanathan.

Legislative intent

If legislative intent holds the key to the interpretation, however, those members who are expelled from their political parties should not come within the ambit of the tenth schedule. This is evident from the parliamentary debates that followed the tabling of the Anti-Defection Bill in 1985, which ultimately resulted in the introduction of the tenth schedule.

In the Constitution (52nd Amendment) Bill 1985, besides clauses (a) and (b) to paragraph 2(1) of the tenth schedule, clause (c) had also been included. The entire paragraph 2(1) deals with grounds on which disqualification of a member because of defection occurs.

Clause (c), which did not make it to the Act finally, said: “If he has been expelled from such political party in accordance with the procedure established by the Constitution, rules or regulations of such political party.”

The above clause was the subject matter of heated debate when the Bill was tabled in parliament and moved by then law minister Ashok Sen. The then government agreed to omit this clause in the Act, in deference to the wishes of the members who participated in the debate.

Sharad Dighe, a former speaker of the Maharashtra legislative assembly and a Congress member of the Lok Sabha at that time, participated in the debate and expressed his concerns thus:

“It was very much necessary to delete paragraph (c) because if a Member has to be expelled from a political party in accordance with the procedure for anything done outside the House, it would have created several practical problems and it would have given a handle especially to the bosses of similar parties.”

Finally, only two grounds were retained: (a) when a member voluntarily gives up his membership of such political party, and (b) when he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs.

In G.Viswanathan, however, the court brought in clause (c) through the back door, purportedly, in order to give effect to the deeming fiction in the explanation to paragraph 2(1)(b). The court had completely overlooked the parliamentary debate on the subject.

Since the legislative intent in enacting the Anti-Defection Act was not to make members expelled from their parties to suffer disqualification on the ground of defection, treating them as members of the same political party that had expelled them would leave them completely vulnerable to the whims and fancies of the leaders of their parties.

Knowing fully well that expulsion of a member from the political party by itself would not result in disqualification of that member, party bosses would apply the party whip to challenge such members to violate it and suffer disqualification as a consequence.

The status of the ‘unattached member’ is an innovation, with the aim to protect the members expelled from their parties from the rigours of Anti-Defection Act. Since the G. Viswanathan ruling will come in the way of presiding officers giving effect to the legislative intention, it is important that the Supreme Court resolves this issue sooner or later.

It makes no sense to suggest that political parties, even after expelling its members from their parties can subject such members to its directions within the House, just to inflict the further punishment of disqualification on them. Such members are likely to violate the party’s directions if they think they are justified in doing so because of their expulsion and their missing an opportunity to express their dissent within the party forums as a result.

Therefore, subjecting such members to the additional punishment of disqualification from the membership of the House would be disproportionate to the nature of their so-called offence in the first place. Such members are bold enough to express dissent and invite expulsion from their parties. The legislative intent is not to punish them twice for that behaviour, if they already suffered humiliation by way of expulsion from their parties.

If the legislative intent in enacting the Anti-Defection Act has any message for the party bosses, it would be against expelling the members from their parties for mere dissent and later applying the party’s directions within the House to them, which would expose their inconsistency.

However, if such expelled members opt to join other parties, or float their own parties, they may be said to have suffered disqualification under paragraph 2(1)(a) of the tenth schedule for voluntarily leaving the parties, which fielded them as candidates at the time of elections. The legislative intent will not come to their rescue at this point.

During the hearing of Singh, Pradha and Mohapatra’s case, Additional Solicitor General P.S. Narasimha told the bench that while there is no automatic disqualification of a member expelled by his party, the member would attract the provisions of the tenth schedule if he or she joins any other political party voluntarily or defies any whip of the party that fielded him as a candidate at the elections.

This is because, as Narasimha argued, the tenth schedule contemplated an “overarching principle” that “a legislator who is born into a House through a political party or as a nominated member or even as an independent candidate shall retain his birth mark and shall continue as such till the dissolution of the House.”

Narasimha submitted before the bench that legislators expelled from a party do not operate in the House as “nomads” joining an existing political party at will without attracting the tenth schedule.

It is this nuanced, valid distinction between the illegitimacy of applying the party whip to an expelled legislator and incurring disqualification when the same legislator joins another party, leaving his unattached status, that required the Supreme Court’s authoritative ruling.

The Supreme Court’s reluctance to deal with the issue, mainly because the case was pending for the past six years, making it an academic exercise for the petitioners, does not make it any less significant.

The Congress’s Masterstroke in Arunachal Was a Retrospective Vindication of the SC’s Judgment

Had the rebel MLAs not rejoined the Congress, the Supreme Court’s restoration of the state government to its December 15 form would have soon lost legitimacy.

Supreme Court. Credit: Shome Basu

The Congress’s unexpected decision to change its chief minister in Arunachal Pradesh on July 16 was a masterstroke that caught its main adversary, the BJP, unaware. But the Congress perhaps did not realise that its decision to welcome back all the rebels and reward one of them, Pema Khandu, with the chief ministership to ensure party unity, led to an unintended legal consequence. This decision restored the status quo ante in the state as on December 15, 2016, not only de jure, as directed by the Supreme Court on July 13, but also de facto.

The Supreme Court’s five-judge constitution bench, while delivering its judgment in the Nabam Rebia and Bamang Felix v the Deputy Speaker and others case, not only restored the status quo ante as on December 15, but also quashed all the subsequent steps and decisions taken by the state assembly pursuant to the governor’s December 9 message that brought the state assembly session forward by one month.

This had led to an anomaly. The judgment did not refer to the merger that took place on March 3, between the rebels’ faction comprising of 30 MLAs (who constituted two-thirds of the Congress’s strength of 45 in the assembly) with the People’s Party of Arunachal (PPA). This merger was protected by paragraph 4 of the tenth schedule of the constitution, dealing with the disqualification of MPs and MLAs on the ground of defection.

Fourteen of the 30 rebel MLAs were disqualified by the speaker, Nabam Rebia, on December 14 (under the tenth schedule) for voluntarily leaving the party by publicly identifying themselves with the opposition. The rebels also asked the governor to direct the then chief minister Nabam Tuki to seek a trust vote in the assembly.

The Gauhati high court, after initially staying these disqualifications, set them aside on March 30 on the ground that the speaker had exercised his powers under the tenth schedule, without regard to natural justice and fair play. The Supreme Court took note of the high court’s decision in its July 13 judgment, but ignored the rebels merging with the PPA on March 3.

This anomaly made the Supreme Court’s judgment restoring Tuki’s government, as it stood on December 15, appear all the more incongruous. It had the effect of rewarding someone who clearly did not have the numbers on his side. Thus the Supreme Court’s de jure restoration of the status quo ante stood the risk of losing its legitimacy sooner rather than later, with the legitimate merger of the rebels with the PPA threatening to undo it.

Had the 30 rebels stood together, in view of the tenth schedule’s protection of their merger with the PPA, the infirmities in the Supreme Court’s judgment would have been exposed. Fortunately for the apex court, the return of the rebels en bloc to the Congress served as the ex post facto justification for its direction.

The rebels might have returned to the Congress but they did not necessarily do so with a view to respect the Supreme Court’s July 13 judgment restoring the status quo ante. Indeed, reports suggest that the Congress played upon their insecurity resulting from its threat to use the tenth schedule to disqualify those who vote against the confidence motion. The threat appears to have succeeded, even though the rebels’ merger with the PPA on March 3 would have made them immune from disqualification for violating a party direction in the assembly.

Salient aspects of the judgment

The return of the rebel faction to the Congress, however, brings the curtains down on the seven-month-long political crisis, which saw the Supreme Court’s five-judge constitution bench deliberate on the role of the governor and the scope of his discretionary powers under the constitution.

The judgment, resulting from the month-long hearings in January-February, will remain a significant contribution to Indian democracy, even if the political denouement was a damp squib. Although the bench reserved its judgment on February 22 after the hearings were complete, it took almost five months to deliver its judgment, an inordinate delay that many felt did not give relief to the aggrieved party.

The bench appeared helpless when the Centre imposed President’s rule in the state during the hearing of the case on January 26. The court also seemed indifferent when on February 19, towards the close of the hearings, the government revoked President’s rule and paved the way for the installation of a puppet regime, with the support of defectors.

Yet, the judgment in Nabam Rebia and Bamang Felix v. the Deputy Speaker may be hailed because it defends the primacy of the elected government over the unilateral actions of the governor, taken without the aid and advice of the council of ministers. The judgment quashed the governor’s decision to advance the session of the state assembly, because it was taken without the aid and advice of the council of ministers by misreading his discretionary powers under the constitution.

The bench reached this conclusion by relying on constituent assembly debates as an aid to interpreting Article 163 (2), the literal meaning of which would confer unlimited discretion on the governor. The bench, however, held that the governor does not enjoy such unlimited discretion.

Having restored the government as it existed on December 15, the bench found no reason to examine the merits of the subsequent developments, including the imposition and restoration of President’s rule, the installation of a puppet regime, its success in securing the vote of confidence and the like. In the court’s view, these occurred because of the governor’s decision to bring forward the assembly session from January 14, 2016 to December 16, 2015.

The judgment rightly indicted the governor, Jyoti Prasad Rajkhowa, for pursuing a larger role than what is envisaged under the constitution.

Speaker’s role

But there is also a subtle indictment of the petitioner, Rebia, which many have missed. This lies in the fact that the speaker ought not to have disqualified the 14 Congress members on the ground of defection on December 14, when a resolution for his own removal from office was pending.

The bench interpreted Article 179 (c) of the constitution to mean that even MLAs who are liable to be disqualified have a right to vote on the resolution to remove the speaker from his office. Therefore, the speaker cannot prevent such members from voting on the resolution by disqualifying them beforehand.

Article 179 (c) reads as follows:

A member holding office as Speaker or Deputy Speaker of an Assembly may be removed from his office by a resolution of the Assembly passed by a majority of all the then [emphasis added] members of the Assembly.

The constitution bench held that the word ‘then’ as used in the Article clearly suggests that all those who were members of the house at the time when such a resolution is moved should have the right to vote on it. This, the bench suggested, restricts the speaker from going ahead with the disqualification proceedings when a resolution against his own continuance in office is pending.

There is no express provision in the tenth schedule of the constitution that places such a restriction on the speaker. But the Supreme Court has introduced this restriction through this judgment, which has led to further anomalies.

The first anomaly is that MLAs or MPs who are liable to be disqualified on the ground of defection can easily first give a notice for the removal of the speaker, before the speaker could consider an application for disqualifying them under the tenth schedule. This would effectively disable the speaker from deciding on their disqualification.

The disqualified MLAs in Uttarakhand, who did not get relief from the Uttarakhand high court, are appealing in the Supreme Court and are likely to rely on this part Supreme Court’s decision on Arunachal Pradesh to set aside their disqualification.

Once they move a resolution to remove the speaker, house members who are liable to be disqualified on the grounds of defection would be free to vote in the assembly, including on the resolution to remove the speaker and on the confidence vote that may be moved by the chief minister.

The sequence of these two events, therefore, would assume significance. If the resolution to remove the speaker is taken up first, after 14 days of notice as required, and if the resolution is defeated, the speaker will be in a position to decide the disqualification of house members first, before the vote of confidence is considered by the assembly. This will ensure that those members who are liable to be disqualified do not have the right to vote on the confidence motion.

A member can be disqualified on satisfying either of the two grounds under the tenth schedule. The first ground can be invoked if he has voluntarily given up his membership of the political party on whose ticket he was elected to the house. The second ground will be triggered if he violates the party whip on voting in the house on an issue without obtaining prior permission from the party or if his violation of party direction is not condoned by the party within 15 days from the date of such voting or abstention.

Ironically, however, the vote cast by a member in violation of the direction by the party will have to be counted as a valid vote, even though the member who cast that vote is liable to be disqualified on the ground of defection. Therefore, there is an element of compulsion on the ruling party and the presiding officer of the house to decide on the disqualification issue first, before the voting on the confidence vote is scheduled.

Courts, however, have looked with suspicion at the tendency of speakers to hasten disqualification proceedings – even at the cost of natural justice and fair play – in order to ensure that members who are liable to be disqualified do not vote on a confidence motion moved by the chief minister.

According priority to the disqualification proceedings over the voting on confidence motions may become necessary in order to achieve the objects of the tenth schedule, as the defectors could make a mockery of democracy by bringing down governments, even at the cost of losing their seats later.

Yet, the Supreme Court has not yet recognised that presiding officers must have the flexibility to schedule disqualification proceedings prior to the confidence vote, without the pressure to prove a majority on the floor of the house within a date arbitrarily chosen by the governor.

New Appointments, Transfers in Old Bottle Mar Collegium’s Image

The recommendations, on the face of it, fail to satisfy the criteria mentioned in Supreme Court’s December 16, 2015 judgment, and therefore, raise the question of whether the efforts of the constitution bench to reform the collegium have gone in vain.

Lawyers confer against the backdrop of the Supreme Court. Credit: Shome Basu

The more things change, the more they stay the same. The way the Supreme Court’s neo-collegium has begun to recommend the appointment and transfer of judges only serves to confirm this adage.

The Supreme Court’s judgment last year striking down the 99^th Constitution Amendment Act, and the National Judicial Appointment Commission (NJAC) Act was considered by many as a watershed event affirming its independence from the executive.

The constitution bench delivered its main judgment in the case, with a 4:1 majority, on October 16, 2015, and a consequential judgment on improving the existing collegium to recommend new appointments and transfers of judges, on December 16.

The government, and the chief justice of India, one would expect, have finalized the revised memorandum of procedure (MoP) to appoint and transfer judges, in the light of these twin judgments delivered last year. The non-finalisation of this MoP was a reason why the collegium had so far not recommended any new appointments, despite the number of vacancies in the high courts and in the Supreme Court gradually rising, threatening to disturb the justice-delivery mechanism seriously.

There was nothing to prevent the collegium, once it was revived by the October 16, 2015 judgment, from making recommendations as per the existing MoP which was being followed since 1999, after the Supreme Court’s judgment in the Third Judges case. In fact, the counsel for the lead petitioner, the Supreme Court Advocates-on-Record Association, Fali S Nariman told the bench that the collegium need not wait even for the consequential judgment, but should follow the old MoP to make its recommendations, after October 15, 2015, so that vacancies do not accumulate. The constitution bench had repeatedly made clear that it would not come in the way if the collegium wanted to meet and recommend new appointments.

However, both the then CJI, H.L. Dattu and the present CJI, T.S. Thakur, felt that propriety required the collegium not to meet and make recommendations, till the Supreme Court delivered its consequential judgment on improving the functioning of the collegium, and the revised MoP came into force after consultations between the government and the CJI.

This was because during the hearing of the NJAC case, the constitution bench acknowledged that there were many flaws in the functioning of the collegium that had eroded its credibility and required reform. Therefore, if new appointments and transfers were to be recommended under the old system, the appointees and the transferees would carry the same taint, which marred the image of the previous collegium, it was felt.

Although this explanation offered by Chief Justice Thakur made sense, the collegium soon had to meet and recommend transfers and new appointments, faced with the reality that revising the MoP was bound to take time – because of the requirement of consultation with all stake-holders, including state governments.

But having waited so long, and with reports suggesting that the revised MoP, after the required consultations with all the stake-holders, was almost finalised, should not the neo-collegium follow the revised MoP before making its recommendations public?

The constitution bench, in its consequential judgment in the NJAC case, out of deference to the government, said: “The Government of India may finalize the existing Memorandum of Procedure by supplementing it in consultation with the CJI. The CJI will take a decision based on the unanimous view of the collegium comprising the four seniormost puisne judges of the Supreme Court.”

The bench was careful not to call it a revised MoP, although if the factors suggested by the bench are taken into consideration, it would amount to a substantial revision.

The bench appears to have used “may” rather than “shall”, as the matter involves consultation among constitutional functionaries, including those in responsible positions in the Central and state governments and the members of the collegium.

What the court had itself indicated

Five factors were held by Supreme Court’s own consequential judgment to be very important.

First, the MoP, the bench said, may indicate the eligibility criteria, such as minimum age, for the guidance of the collegium (both at the level of the high court and the Supreme Court) for appointment of judges, after inviting and taking into consideration the views of state governments and the Government of India (as the case may be) from time to time.

Second, the eligibility criteria and the procedure as detailed in the MoP for the appointment of judges ought to be made available on the website of the court concerned and on the website of the Department of Justice of the Government of India. The MoP, the bench said, may provide for an appropriate procedure for minuting the discussions including recording the dissenting opinion of the judges in the collegium while making provision for the confidentiality of the minutes consistent with the requirement of transparency in the system of appointment of judges.

Third, in the interest of better management of the system of appointment of judges, the MoP may provide for the establishment of a secretariat for each high court and the Supreme Court and prescribe its functions, duties and responsibilities, the bench had said.

Fourth, the MoP, the bench said, may provide for an appropriate mechanism and procedure for dealing with complaints against anyone who is being considered for appointment as a judge.

Fifth, the bench said, the MoP may provide for any other matter considered appropriate for ensuring transparency and accountability including interaction with the recommended persons by the collegium of the Supreme Court, without sacrificing the confidentiality of the appointment process.

If the new MoP – whether you call it revised, or existing, but supplanted – includes these factors suggested by the bench, they were nowhere in display in the collegium’s recent recommendations of appointments of four judges to the Supreme Court.

Worse, if media reports are any indication, the draft MoP included a clause to empower the government to reject a recommendation of the collegium in the national interest, and in the interest of the security of the state. In the absence of transparency, one does not know whether this clause remains in the final draft.

The three high court udges whom the neo-collegium has recommended for elevation – Justices A.M. Khanwilkar, D.Y. Chandrachud and Ashok Bhushan– may indeed satisfy the eligibility criteria envisaged under the MoP, as they are senior-most in the all-India ranking of high court judges. The fourth judge to be nominated is senior advocate of the Supreme Court, L. Nageswara Rao

But the recommendations, on the face of it, fail to satisfy the other factors mentioned in the December 16, 2015 consequential judgment, and therefore, raise the question of whether the efforts of the constitution bench to reform the collegium have gone in vain.

The controversial transfer of the chief justice of the Uttarakhand high court, K.M. Joseph, to Hyderabad, also recommended by the collegium, close on the heels of his quashing of president’s rule in Uttarakhand (which is now under challenge before the Supreme Court) sends ominous signals. It is true that the consequential judgment in the NJAC case is silent on the proper guidelines to be followed in the case of transfers recommended by the collegium. But, as in the case of the other two controversial recent transfers, namely, Rajiv Shakdher (from the Delhi high court to the Madras high court) and Justice Abhay Mahadeo Thipsay (from the Bombay high court to the Allahabad high court), Justice Joseph’s transfer only cements doubts about the fairness of the collegium.