indian polity - may 2019 polity.pdf · watched the young lawyer’s conduct on full display in open...

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Source : www.thehindu.com Date : 2019-05-01

WHAT IS DISSOLUTION OF LOK SABHA?Relevant for: Indian Polity | Topic: Parliament - structure, functioning, conduct of business, powers & privileges

and issues arising out of these

In India, the Lok Sabha has a five-year term, but can be dissolved earlier. According to Article83(2) of the Constitution, completion of five years from the first day of its meeting amounts todissolution of the Lower House. In this case, an election is held to elect the new Members ofParliament. The Lower House can also be dissolved earlier by the President on the advice of thePrime Minister. It can also be dissolved if the President feels that no viable government can beformed after the resignation or fall of a regime.

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All it wants to do is to demolish secular India and the Gandhi-Nehru state to erect a Hindutvastate instead

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WHAT IS LOTTERY IN ELECTIONS?Relevant for: Indian Polity | Topic: Elections, Election Commission and the Electoral Reforms in India Incl.

Political Parties

What happens when two candidates in a constituency poll the same number of votes?According to Section 102 of the Representation of the People Act, if there is equality of votesand if one additional vote would entitle either of them to win, and if no decision has been madeby the Returning Officer under the provisions of the Act, then the High Court decides by a lot.The candidate who wins the lottery wins the election. In 2017, for instance, in the election toward number 220 of the Brihanmumbai Municipal Corporation, Shiv Sena's Surendra Bagalkarand the BJP's Atul Shah got the same number of votes. The result was decided by lottery, andMr. Shah won.


Ensuring his freedom is essential to uphold free speech and media freedom on a global scale








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J. BOBDE PANEL HEARS CJI ON SEXUALHARASSMENT ALLEGATIONS

Relevant for: Indian Polity | Topic: Judiciary in India: its Structure, Organization & Functioning, Judges of SC &High Courts, Judgments and related Issues

Ranjan Gogoi

The Justice S.A. Bobde in-house inquiry committee heard Chief Justice of India Ranjan Gogoi inan over two-hour session on Wednesday.

In the hearing, Chief Justice Gogoi refuted before the panel the allegations of sexualharassment levelled against him by a court employee, sources said.

The committee, including Justice Indira Banerjee and Indu Malhotra, covered every fact,allegation and ground raised by the former staffer against the CJI.

The examination of the CJI, an unprecedented occasion, by the committee comes a day afterthe complainant “walked out” of the hearing on Tuesday. A letter of request was sent to the CJIand he had responded to it by meeting the committee, sources said.

She had refused to further participate in the “informal” proceedings after the panel allegedlyrefused her request to have a lawyer or a support person accompany her during the hearings. “Iwas compelled to walk out of the committee proceedings today (April 30) because thecommittee seemed not to appreciate the fact that this was not an ordinary complaint but acomplaint of sexual harassment against a sitting CJI,” she said in a press release on April 30.

The committee had nevertheless decided to go ahead with its hearings without her. Sourcessaid the committee would soon come out with a report, which would be placed before a FullCourt and vetted by all the Supreme Court judges.

The crisis in the Supreme Court began when a clutch of websites published her allegationsagainst the CJI on Easter day morning. Within an hour of the articles coming online on April 20,the CJI held an “extraordinary and unusual hearing” in the Supreme Court, during which herefuted that the allegations were part of a larger plot to make the judiciary a “scapegoat”.








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WHO IS INDEPENDENT CANDIDATE?Relevant for: Indian Polity | Topic: Elections, Election Commission and the Electoral Reforms in India Incl.

Political Parties

An independent candidate is one who contests polls without being affiliated to any political party.Independents often support policies that are different from major political parties. More and moreindependents have been contesting Lok Sabha elections since the first general election of 1951-52, but the number of winners has been decreasing. The vote percentage polled by them hasalso been decreasing. It is difficult for independent candidates to campaign and influence largenumbers of voters in India with little money and influence. In its 255th report, the LawCommission of India sparked a debate when it recommended that independent candidates bebarred from contesting elections as “they are either not serious or contest elections just toconfuse the voters.”


Ensuring his freedom is essential to uphold free speech and media freedom on a global scale








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Source : www.indianexpress.com Date : 2019-05-03

ACCUSATIONS AGAINST CJI ARE A TEST — AND ANOPPORTUNITY — FOR SUPREME COURT


© 2019 The Indian Express Ltd.All Rights Reserved

Meenakshi Arora is a senior advocate at the Supreme Court of India

Payal Chawla is founder of JUSCONTRACTUS, India’s first and only all-women law firm

As the world watched with horror the appointment of Brett Kavanaugh to the US Supreme Court,in the face of accusations of sexual assault by the credible and poised Christine Blasey Ford,we, in India, remained quietly proud of our Supreme Court. And then all that changed. On April20, an aghast nation watched the Saturday morning “massacre” of the Constitution and naturaljustice in open court.

The allegation against the Chief Justice of India (CJI) was disheartening, but it is the post-allegation conduct, that too by the Supreme Court (SC), that was truly alarming. The criticismthat followed, particularly in regard to being a judge in one’s own cause, was sharp and swift. Tomany, constitutional principles were at risk — but for women, it was personal.

The despondency amongst women grew with each development. The SC said “theindependence of the judiciary was under very serious threat and there is a larger conspiracy todestabilise the judiciary”. This serious charge was followed up with the emergence of clumsystories. Allegations flew fast and loose, at “Jaguar” speed. Rumours and conspiracy theoriesabounded. There were developing allegations, traversing “disgruntled judges” on social media,which finally settled, on affidavit, to a “corporate figure” and “disgruntled employees and formeremployees of the Supreme Court”.

Curiously, even without the initiation of an inquiry into the allegations by the victim, thegovernment showed its solidarity with the judiciary. A healthy tension between the three arms ofthe state that marks the separation of powers has been the hallmark of our democracy. Towomen, it appeared the “big boys” had closed ranks.

With the constitution of the Bobde Panel, it appeared that good sense had prevailed. This panelis not in terms of the Vishakha guidelines or the Sexual Harassment of Women at Workplace(Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”), since neither applies to SCjudges. But even before a debate around this issue could begin, another bench was constitutedto enquire into the allegations of a “conspiracy” against the CJI. As members of the Bar, wewatched the young lawyer’s conduct on full display in open court, which included a refusal toapologise and a protest walk-out. In all fairness, the hearing concluded on a positive note, withthe constitution of the Justice A K Patnaik (Retd.) Committee, which brought with it a sense ofrelief and calm.

However, as the drama continued to unfold, on April 25, the front page of a leading newspaperproclaimed, “many SC judges request all-male staff at their residential offices”.

Here is what we, as women, heard: One, If you are being sexually harassed, stand back and

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bear with it. Two, if you rebuff an advance, we will go after you, your family, your livelihood andcredibility. Three, if you somehow garner the courage to complain, we will marginalise you, andcreate the narrative that women have the propensity to make false complaints. Four, we willsquash every credible allegation by closing ranks, playing the victim and question yourantecedents.

It is imperative to mention that the statements made by judges, if any, are unverified. However,spoken and unspoken words from the SC matter. Even insinuations can adversely impact notonly the morale of women, but also their economic rights — leading to denial of equalopportunity at the workplace, inequitable pay — and that continues the cycle of an inequitabledomestic balance. Importantly, it legitimises the excesses of men and the disparate treatment ofwomen.

Remember, the road to equality for women has been a long and arduous one. The first majorbreak-through came in 1996, with the landmark judgment of Vishakha v. State of Rajasthan,which filled a glaring lacuna in the law. It held fort for 16 long years till the enactment of thePOSH Act in 2013.

Vishakha, paradoxically, had both an empowering and debilitating impact. It empowered womento pursue their careers under the protection of law; but debilitated women who took recourse toit, branding them social outcastes. For example, a senior bureaucrat found it impossible to beaccepted back at work, even though her allegations against her superior officer were found to betrue by the SC. Her male colleagues refused to have closed-door one-on-one meetings with her.Her suffering was belittled, and her credibility undermined, making it impossible for her tocontinue working. It broke her spirit and ultimately, she resigned.

Fear of false accusations by men are wholly exaggerated, particularly when it comes to the SC.In 69 years, only two former judges have been accused of sexual harassment. Not a singlesitting judge has been accused prior to the present allegations. Even with regard to allegationssurrounding retired judges, the statements of the victims were distrusted by many and said to be“motivated”. The incidents caused men to close ranks, and their offices, to women. Rumoursabounded that no woman lawyer will be allowed to clerk with judges, that practising womenlawyers will find it difficult to obtain one-on-one meetings with male colleagues. Members of theBar were “advised” by “well-wishers” that women should a witness to every interaction.

That was 2014. This is 2019. We are on the heels of the #MeToo and #TimesUp movements.But nothing has changed. These movements have been built on the premise that the victim, atthe outset, must be believed, and a free and fair investigation must ensue. It is imperative toremember that sexual offences usually take place behind closed doors, where the victim is oftenthe only witness. If a woman is brave enough to make her allegations public, we must at leastextend to her the basic courtesy of listening. Disbelieving victims emboldens abusers anddissuades women from taking legitimate recourse to the law. The first attack is still to thecredibility and integrity of the victim. She has to first establish her own credibility, beforeproceeding to establish her case.

In the darkness of these circumstances, there was an opportunity to change the manner inwhich the credibility of the victims is perceived. And this change could have been driven from thehighest judicial office of the land. The CJI could have chosen to lead that change from the front.But alas!

Briefly, hope rested with the Bobde Panel. But in less than six days, the victim withdrew from theproceedings. The future is uncertain.

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Whatever course the SC takes, its actions will have lasting consequences. The lack of a fairinquiry will lead to deeper divides, greater misogyny and thicker glass ceilings and wider glasswalls. As the most powerful court in the world, our Supreme Court still has the uniqueopportunity to show how free and fair investigations can be conducted, paving the way for a newera of equality and dignity for women, and to leave a lasting legacy for the world to follow.

We implore our eminent jurists, legal scholars, and judges — both sitting and former, who haveso often said that in a democracy institutions are only answerable to the “people” who aresupreme, — to come out in support of women. Your silence at the moment is deafening. Let itnot reach such a crescendo that you can no longer hear the voice of your conscience.

This article first appeared in the print edition on May 2, 2019, under the title ‘The Court’sconscience’. Arora is a senior advocate at the Supreme Court of India. Chawla is founderof JUSCONTRACTUS, India’s first and only all-women law firm.

Download the Indian Express apps for iPhone, iPad or Android

© 2019 The Indian Express Ltd. All Rights Reserved



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A MISCARRIAGE OF JUSTICERelevant for: Indian Polity | Topic: Judiciary in India: its Structure, Organization & Functioning, Judges of SC &

High Courts, Judgments and related Issues

Finally, the in-house committee has spoken: “No substance in the allegations contained in theComplaint dated 19th April, 2019 of a former Employee of the Supreme Court.” In the absenceof any known procedure, the non-observance of the principles of natural justice and the absenceof effective representation of the victim, the report, even though not for the public, is non-est andvoid ab initio.

The complaint made by the victim of sexual harassment to the judges of the Supreme Court hadtwo equally serious facets. One related to sexual harassment, a very serious charge. The otherrelated to the victimisation of the complainant and her family “at the hands of the Chief Justice ofIndia [CJI]”, as claimed by her. It is this latter charge to which the nation needs to pay equal, ifnot greater, attention. The charge on this count, as per her affidavit, involves the following: afterthe alleged incident on October 11, 2018, her transfer to the Centre for Research and Planningon October 22, change of position to “Admin, Material Section” on November 16, issuance of amemorandum on November 19 by Deepak Jain, Registrar, accusing the victim of violatingconduct rules and seeking an explanation, her third transfer to the Library Division on November22, the issuance of a memorandum on November 26 rejecting her explanation and proposingfurther action, her suspension on November 27, and the communication of December 18 fromthe Registrar that the charges against her stood proved. On December 21, she was dismissedfrom service.

Meanwhile, according to her affidavit, on November 27, her husband, a head constable with theDelhi Police, Crime Branch Division, was transferred to the Third Battalion. On December 8, herhusband, and the latter’s brother, also a constable with the Delhi Police, were suspended overtelephone, and the orders followed the next day. On January 2, 2019, an inquiry was initiated bya Deputy Commissioner of Police against her husband on the ground that “unsolicited calls weremade to the Office of the Hon’ble Chief Justice amounting to official misconduct”. On January11, the victim and her husband were summoned to Delhi’s Tilak Marg police station by StationHouse Officer (SHO) Naresh Solanki. In their presence, the SHO called the Registrar, Mr. Jain,to discuss ways to reach the residence of CJI Ranjan Gogoi. The SHO, the victim and thehusband went there, and in the presence of Mr. Jain, the victim was forced to fall at the feet ofthe CJI’s wife.

In his own cause: On complaint against CJI Ranjan Gogoi

Upon their return to the police station, the SHO had a long conversation with the victim and herhusband. On January 14, the disabled brother-in-law of the victim, who had been appointedtemporary Junior Court Attendant under the orders of the CJI himself on October 9, 2018, wasremoved from service. On March 3, an FIR was registered on a complaint by a person namedNaveen Kumar at the Tilak Marg police station in respect of an alleged demand made by thevictim in June 2017 for a bribe of 10 lakh for getting him a job in the Supreme Court and hispayment of 50,000 as advance. Based on this FIR, the victim and her husband were arrestedfrom their village in Rajasthan, hand-cuffed and subjected to cruel and inhuman treatment. Thevictim was remanded for a day on March 10. She was released on bail on March 12.

The affidavit in support of the complaint appears truthful and honest. The details are heart-rending and extremely troubling, and reflect a deep malaise that appears to have set in in highoffices. These incidents are all corroborated by official records. Collectively, they establish

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beyond doubt the victimisation of the woman, her husband and other family members at thehands of the state machinery, including the Registry of the Supreme Court.

Each of these actions is either unconstitutional or illegal or criminal in nature. Clearly, theyestablish a well-designed conspiracy to victimise the victim beyond redemption so as to ensurethat neither she nor her husband and her family members could raise their heads again to seekjustice in respect of the complaint made against the CJI. Together, they constitute grossviolations of the constitutional and fundamental rights of the victim and her family members,including those guaranteed under Articles 14 and 21. Clearly, the motive behind ensuringgrossly inhuman, illegal, unconstitutional and disproportionate punishment to the victim and herfamily members seems to be to suppress her will and spirit so that she does not raise anycharge about the incident of October 11, 2018.

One thing is clear: complainant Naveen Kumar, who alleged that the victim demanded a bribeand willingly offered, according to his own case, 50,000, has made himself an accomplice to thealleged bribery to secure public employment. He must therefore face the rigour of the law. Thecase on its own showing appears to be concocted and its timing raises serious questions aboutits authenticity. If the bribe was demanded in June 2017, it is a curious coincidence that thecomplainant from Jhajjar, Haryana surfaces in March 2019 and that too in Tilak Marg policestation to make the complaint. It activates the entire police machinery against the victim and herfamily.

This was the final nail in the coffin, as the proverb goes, pushing the victim and her family to thewall and igniting in them the courage to stand up against the CJI and make the complaint onApril 19. Those who have doubts about the so-called delay in the complaint must be prepared toput themselves in the shoes of the victim, a Class III employee pitted against the Chief Justice ofIndia, one of the highest and the most powerful constitutional functionaries. Her approachinglawyers who are widely respected as human rights activists was natural and cannot be viewedwith suspicion under any circumstances.

The Constitution Bench of the Supreme Court in Olga Tellis v. Bombay Municipal Corporationrecognised procedural safeguards as necessary and said they have “historical origins in thenotion that conditions of personal freedom can be preserved only when there is someinstitutional check on arbitrary action on the part of public authorities”. In Uma Shankar Sistani v.Commissioner of Police, Delhi (1996), the Supreme Court ordered the Central Bureau ofInvestigation to investigate the circumstances under which a false complaint was registeredagainst the petitioner, leading to his arrest. The FIR against the victim in this case needs thesame treatment. Equally, the punishment of dismissal imposed on her is grosslydisproportionate, even assuming that the charges against her were proved. The Supreme Courthas consistently frowned upon such punishments. In Ranjit Thakur v. UOI (1987), the courtinterpreted the doctrine of proportionality “as part of the concept of judicial review” to ensure thatif the sentence is an outrageous defiance of logic, then it can be corrected.

Irrationality and perversity are recognised grounds of judicial review. The court has held that ifthe punishment is outrageously disproportionate and the court considers it arbitrary in that it iswholly irrational or “a punishment is so excessive or disproportionate to the offence as to shockthe conscience of the Court the same can be interfered with”. On each one of these counts thepunishment of dismissal imposed upon the victim is completely arbitrary and perverse. It mustgo.

Where can she and her family members get justice if the police at the highest level is pittedagainst them? Will they ever get a fair investigation and fair reports in the criminal cases? It isdoubtful. Can she and her family get justice at all at the hands of the judiciary, considering the

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respondents would be the CJI and the Supreme Court? Only time will tell. But certainly for thepresent, the picture is dark for them.

All these raise extremely troubling and discomforting thoughts in the minds of many. Is it theSupreme Court as an institution that is responsible for what has happened, or is it the CJI? Thedichotomy will emerge only when other Justices act independently, uphold the majesty of thelaw and steer the institution out of troubled waters. If they fail, the institution is doomed toserious loss of face and credibility. It is time the collective conscience of the Justices prevails.

Dushyant Dave is a senior advocate and the former President of the Supreme Court BarAssociation









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RETURNING OFFICERRelevant for: Indian Polity | Topic: Elections, Election Commission and the Electoral Reforms in India Incl.

Political Parties

A Returning Officer is responsible for overseeing the election in a constituency, or sometimes intwo constituencies, as directed by the Election Commission (EC). The EC appoints theReturning Officer and Assistant Returning Officer for a constituency in consultation with thegovernments of the State or Union Territory as the case may be. The Returning Officer’s dutiesinclude accepting and scrutinising nomination forms, publishing the affidavits of candidates,allotting symbols to the contesting candidates, preparing the list of contesting candidates,preparing the EVMs and VVPATs, training polling personnel, designating counting centres, andcounting the votes and declaring the result.


More than a ‘more jobs’ approach, addressing structural issues which keep women away fromthe workforce is a must








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THE SUPREME COURT BELONGS TO EVERYONERelevant for: Indian Polity | Topic: Judiciary in India: its Structure, Organization & Functioning, Judges of SC &


I had been quietly watching the Supreme Court’s latest crisis play out despite young lawyers andlaw students asking me to speak up. Watching because I did not want any prematureadjudication to hurt the prestige of the court that I so dearly love. Each time I climb its massivestairs, I am reminded of a client who used to bend down and touch the top stair, as an act ofworship and devotion, whenever he had a hearing due.

I have seen people go away happy from here, I have seen them go shattered, but I never hadreason to doubt the institution as a fair arbiter. I never doubted the institution’s fairness, becauseproceedings were always conducted in courts open to all parties, where trained lawyerspresented their sides of the cause. Despite aberrations, most judges here are determined to fullyhear whatever relevant submissions parties to the cause have to offer. All these requirements ofprocedural fairness seem to have been suspended in l’affaire Chief Justice of India (CJI).

I am agnostic on the question of whether there was an act or two on the part of the CJI or by thewoman who complained against him. It may boil down to a ‘he said, she said’ situation, wherethe standard of proof beyond reasonable doubt cannot be met. An impartial arbiter might rightlyconclude that the presumption of innocence requires the benefit of the doubt to be given to theaccused. But he or she must arrive at this conclusion only after an open and fair inquiry. Theinquiry in this case, which has now concluded, did not meet the open and fair standard. And so Ifeel compelled to speak.

The complainant had walked out of the inquiry saying that she “found the atmosphere of thecommittee very frightening”. She said, “I was very nervous because of being confronted andquestioned by three Supreme Court Judges and without even the presence of mylawyer/support person. Also because of my impaired hearing I was at times unable to followwhat was being dictated as my statement. I was also not shown what was being recorded andno copy of my statement recorded on 26th and 29th April has been given to me till date.”

The complainant walked out and the inquiry proceeded ex parte. The inquiry committee couldnot have compelled her to participate. Yet, by proceeding further and rendering an ex-partefinding, its report, while legally defensible, will still remain wanting in public perception. Theinquiry could well have paused to consider whether the complainant’s concerns could beaddressed. It could have also broad-based itself to bring on board an independent amicus curiaeto stand for the complainant’s interest. The independence of the judiciary rests on public trust,and public trust is not maintained by one-sided inquiries.

It matters not that the respondent is the head of the judiciary. He or she must be held to thesame standard that is used in all other such cases. The independence of the judiciary andconstitutional protections given to judges do not transform into an immunity shield. If theaccusation was not of sexual harassment, but of any other grave charge like violence, would aconfidential, in-house inquiry have been resorted to? Such an inquiry, if it had proceeded exparte after the complainant’s withdrawal, would not have been deemed sufficiently fair. Justiceneeds not only to be done, but needs to be seen as manifestly done.

The inquiry committee was headed by a person who in all probability will be the next CJI. Two ofhis immediate predecessors have come under public scrutiny of an unwelcome kind. The courthas now chosen a status quoist denial over a serious exploration of the truth, regardless of risk.

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How will its actions be seen?

I ask this because of a little incident in my chamber. A one-time junior of mine was arguingbefore a consumer tribunal. The presiding member was a former senior bureaucrat. At somepoint in the hearing, the member lost his temper and shouted at the lawyer, “Get out of mycourt!” It is a matter of pride for me that my pupil responded, “It is my court too.” That is the onlymessage that I have for the Supreme Court judges — those involved in the inquiry and thoseaway from it. Members of the Bar, the staff of the court registry and the general public haveenough of a stake in an independent judicial system to say, “It is my court too.”

Sanjay Hegde is a senior advocate of the Supreme Court










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POLLING AGENTRelevant for: Indian Polity | Topic: Elections, Election Commission and the Electoral Reforms in India Incl.

Political Parties

It is not possible for a candidate to be physically present at every polling station on the day ofvoting in her constituency. Therefore, the law allows her or her election agent to appoint apolling agent to act as her representative at every polling station to watch her interests. Thework of polling agents includes ensuring that EVMs and VVPATs are in order, detecting andpreventing impersonation of voters, and helping to secure and seal the EVMs, VVPATs andelection records after polling is over. Those holding government positions and those who havebeen given security cover at the state’s expense, including Ministers, are not allowed to bepolling agents.










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JUSTICE BOBDE PANEL GIVES CJI CLEAN CHITRelevant for: Indian Polity | Topic: Judiciary in India: its Structure, Organization & Functioning, Judges of SC &


She said she was “extremely scared and terrified”. “I and my family members remain vulnerableto the ongoing reprisals and attack,” she said. The woman said she would consult her lawyerson the future course of action.

The woman’s apprehensions may stem from the fact that a three-judge Bench led by JusticeArun Mishra has already ordered a probe into claims about a “larger conspiracy” against ChiefJustice Gogoi by a gang of “disgruntled” former Supreme Court employees.

The pending committee hearings did not deter Justice Mishra from lauding Chief Justice Gogoiin open court as a “CJI who wants to clean up the system”.

“No CJI had dared to take such an action, but this CJI has the courage to take a decision. ThisCJI is taking action after action after action,” Justice Mishra had stated to an assembled courtroom.

The committee had seen many unprecedented twists, turns and happenings over the past week.The roller-coaster hearings of the committee saw the woman “walk out” of the hearings after shewas refused a lawyer. The committee chose to carry on ex parte without her and went on toexamine Chief Justice Gogoi, which is a first in the country’s history.

The crisis has tested the Supreme Court since Easter day when several online websitespublished excerpts from the woman’s complaint made out in affidavit form and sent out to 22judges of the Supreme Court. The woman had sought a fair and free inquiry into her allegations.

Within hours of the publication of the article, a Bench led by Chief Justice Gogoi himselfpresided over a suo motu hearing on the allegations. The hearing saw several disparaging oralcomments made about the woman in her absence. The CJI had also indicated that a “largerplot” was on to besmirch the judiciary. The hearing later drew much flak with many claiming thatthe CJI had acted as “a judge in his own cause”.








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CURRENT CRISIS IN SC IS AN OPPORTUNITY TOADDRESS SERIOUS GENDER DISPARITY ON THEBENCH



The writer is senior resident fellow, Vidhi Centre for Legal Policy, Karnataka.

The Indian judiciary is facing its worst hour of crisis. The allegation of sexual harassment andvictimisation levelled against the Chief Justice of India by a former Supreme Court staffer,followed by what can only be termed as a mockery of due process and law, has brought thejudiciary to a tipping point. It is now left with no choice but to undertake a massive exercise inintrospection and reform. Judicial reforms are no longer empty rhetoric. They are essential tokeep the judiciary from becoming irrelevant and severed from the idea of justice. Nothing can bemore damaging to this idea than going unheard and unrepresented before the judiciary — a fearthat constantly plagues all disadvantaged sections of the society, especially women.

In the context of the apathy shown towards the woman complainant by an all-male bench(headed by the CJI) in the immediate aftermath of the allegations, and by the in-housecommittee which has given a clean-chit to the CJI, one cannot help but ponder: Would thisincident have been handled differently if the judiciary was not as male-dominated as it alwayshas been?

The judiciary is one of the least diverse institutions in India, with the lack of gender diversitybeing the most visible yet ignored aspect. Since 1950, the SC has had only eight female judgesout of 239, with the present three out of 27 being the highest concurrent representation womenhave ever had on the SC bench. In the subordinate judiciary, merely 27.6 per cent of the judgesare female. This lack of women on the bench, at all levels of the judiciary, is at the very root ofthe impunity with which the top court has, in a single stroke, destroyed decades worth ofprogress made in deterring sexual harassment of women from all walks of life.

The stark gender disparity on the bench is reflected in, and in fact, stems from the minimalrepresentation of female advocates in the bar as well. The deep-rooted systemic issues that actas barriers for women to enter and remain in the legal profession are all too well known. Even ifa female advocate crosses these barriers to continue and thrive in her profession, the currentcollegium system for the appointment of judges is simply not designed to ensure her elevation tothe bench. At present, the appointment of a judge to a high court is based on a recommendationmade by a collegium of the three senior-most judges of that HC, and approved by a collegium ofthe three senior-most judges of the SC. Although the state and central governments have a roleto play in the process, the final say, for all practical purposes, rests with the SC collegium.

This appointments process in itself is severely lacking in women’s representation. In 25 HCcollegiums across the country, there are just five senior female judges with 19 of the collegiumshaving no female judge at all. Only one woman so far has been a member of the SC collegium(Justice Ruma Pal), with Justice R Banumathi set to become the second later this year; and, atleast until 2025, no female judge is going to occupy the CJI’s position.

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This nearly all-male composition of the highest decision-making bodies in the judiciary has madegender disparity a self-perpetuating phenomenon which becomes amply clear when one studiesthe decisions made by the SC collegiums in the recent past.

This author undertook a study of 80 (out of 191) SC collegium resolutions made public sinceOctober 2017, pertaining to elevations of judges to the SC and various HCs, and, it shows thatthe gender gap in the judiciary is here to stay.

The data shows that out of the 363 persons recommended for elevation, merely 39 were female(just over 10 per cent). Of these, only 21 were confirmed with the remaining 18 names eitherbeing remitted to the HCs or deferred for later appointments. Interestingly, for both male andfemale candidates, the conversion rate from recommendation to elevation is the same, around55 per cent: It would be tempting to conclude from this that the all-male SC collegium is immuneto the gender of the recommended candidates. However, what it actually signals is that this bodyis simply not invested in correcting the prevailing gender disparity.

In the current scheme of things, the chances of female judges occupying decision-makingpositions, either as chief justices or as part of the HC and SC collegiums in significant numbers,is very bleak. Hence, the only way out of this vicious cycle is for the nearly all-male collegiums togo beyond their inherent biases and take affirmative measures to improve gender diversity onthe bench. The HC collegiums should consciously recommend more female names for elevationand the SC collegium must consider such recommendations more favourably. Further, thefemale judges should be elevated early enough in their careers so that they make it to thecollegiums and become decision makers (the average age of the 19 female judges elevatedsince October 2017 is 53 years).

Lack of gender diversity is not just a perception problem. It is seen to have a real impact on themanner of proceedings and the nature of the final verdict — as is evident in the presentinstance. Especially in the judiciary, gender diversity is a virtue in itself — it reassures litigantsthat diverse opinions are taken into consideration and re-instils their trust in the justice-deliverysystem. The present calamity in the judiciary, as unfortunate as it is, also provides anunprecedented opportunity to course correct on several accounts. Here’s hoping the men inpower have the wisdom to seize it.

This article first appeared in the print edition on May 8, 2019, under the title ‘No courts forwomen’. The writer is senior resident fellow, Vidhi Centre for Legal Policy, Karnataka.Inputs by Anamika Kundu and Alok Prasanna Kumar





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PRISONER OF PROCEDURE: ON CJI SEXUALHARASSMENT CASE


It was a test of great import that one of India’s great institutions failed. The main question waswhether the Supreme Court would live up to the standards of fairness it expects of all authoritieswhile inquiring into a former woman employee’s complaint of sexual harassment andvictimisation against the Chief Justice of India, Ranjan Gogoi. An ad hoc committee,following an informal procedure, has concluded that the allegations have “no substance”, but thefindings will not be made public. The report cannot be reviewed judicially. No one else, not eventhe complainant, knows what evidence was examined and who else testified apart from herself.All that is known is that she was heard, and questioned, at two sittings. She later withdrew fromthe inquiry, saying she was denied the help of a lawyer or a representative, that she found thequestions from a panel of three sitting Supreme Court judges quite intimidating, and that shewas not clear how her testimony was being recorded. There is no doubt that the committeeremained impervious to the power imbalance in the situation. Perhaps she ought not to havepulled out from the probe, despite these grievances. The panel’s conclusion would have beeneven starker had she been present to hear how Justice Gogoi defended himself; and whoamong the court officials, if any, answered her specific and documented charges about theadministrative harassment she was put through following the alleged incident of sexualharassment. The most relevant parts of the complaint were the transfer orders and disciplinaryinquiry against her, the role of the court administration in dismissing her, and that of the DelhiPolice in arresting her on a complaint of alleged bribery and initiating disciplinary action againsther husband and his brother, both police personnel. It is not known if any of these officials wereexamined.

Justice Bobde panel gives clean chit to CJI in sexual harassment probe

The manner in which the court dealt with the complaint on the administrative side has been lessthan fair. It is true that the in-house procedure devised in 1999 envisages only a committee ofthree judges to deal with allegations against serving Supreme Court judges. The fact that aspecial law to deal with sexual harassment at the workplace is in force since 2013 appears tohave made no difference. The court could not bring itself, even in the interest of appearing fair,to adopt a formal procedure or allow the complainant to have legal representation. For all itsjudicial homilies on fairness, when it comes to dealing with its own the Supreme Court has comeacross as a prisoner of procedure and displayed an alarming propensity to mix up its institutionalreputation with an individual’s interest. “The abuse of greatness is when it disjoins remorse frompower,” wrote Shakespeare. The decision by the ‘in-house committee’ is an egregious instanceof a hallowed institution abusing its own greatness by letting its power speak, and not thecompassion for which it is renowned.


The Telangana exam fiasco necessitates a fresh review of all the papers



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NOT JUSTICERelevant for: Indian Polity | Topic: Judiciary in India: its Structure, Organization & Functioning, Judges of SC &



The three-member panel probing charges of sexual harassment against Chief Justice RanjanGogoi had a task much broader and more critical than its stated remit. Given that it wasinvestigating allegations levelled against the highest office of the country’s apex court, the panelneeded to answer questions that pertained, inevitably, to the integrity of the institution itself.Upon it also lay the onus of instituting procedures that mitigated the unequal power relations in acase where a former junior employee of the court was ranged against the CJI. In a reportsubmitted on Monday, the panel has given a clean chit to CJI Gogoi. It has “found no substance”in the charges. But this denouement — an ex parte report, which will not be made public —raises more questions than it answers.

The committee comprising Justices S A Bobde, Indira Banerjee and Indu Malhotra wrapped upthe inquiry in sittings over four days, three of which were devoted to questioning thecomplainant. On the third day, the complainant withdrew from the probe alleging that the paneldid not adopt “a procedure that would ensure fairness and equality”. She accused the committeeof not informing her about its procedures, denying her legal help, not recording its proceedingsand not providing her with a copy of her depositions before it. Each of these four points raisesissues of power asymmetry. The committee’s task was, no doubt, complicated by the fact thatthe SC’s “in-house procedures” do not have provisions to deal with charges against the CJI. Butthe apex court has, over the years, also interpreted and re-interpreted Articles 14, 15, 19 and 21of the Constitution to lay down the rights of working women. The probe was a chance to extendsuch jurisprudence to a situation inside the institution of the court.

The panel’s recourse to an ex-parte investigation is problematic. Aside from the fact that such aprobe is against the principles of natural justice, the apex court has, in February this year, ruledthat an ex parte verdict can be set aside under the Code of Civil Procedure. And by not makingits report public, the panel has come up short on the requirement of transparency that shouldhave been fundamental in a case of such gravity. It has argued that the verdict in Indira Jaisingvs Supreme Court of India does not enjoin placing in public “the report of a committeeconstituted as a part of the In-House Procedure”. But surely a probe into an issue where theinstitutional propriety of the SC is in question cannot hearken to pre-RTI jurisprudence — whichIndira Jaising is. The panel’s verdict goes against the Court’s tradition of interpreting the lawcreatively for the sake of upholding and strengthening constitutional morality. The Court hascorrected itself in the past. It should do so again.





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A TRAVESTY OF JUSTICERelevant for: Indian Polity | Topic: Judiciary in India: its Structure, Organization & Functioning, Judges of SC &


On May 6, the “in-house” panel of the Supreme Court gave a clean sheet to the Chief Justice ofIndia (CJI), Ranjan Gogoi, after an allegation of sexual harassment was levelled against him bya former female staffer of the court.

Let us assume, for example, that an average employee in a government department is accusedof sexual harassment at the workplace. If at the outset reasonable material is found in favour ofthe complaint, the accused is suspended from employment pending an inquiry. This isconsidered necessary in administrative law to ensure that the accused does not tamper withevidence or intimidate or influence witnesses. Usually, an independent inquiry will follow whichwill give both parties an opportunity to present evidence and arguments and to examine andcross-examine witnesses. If the allegations are found to be true and grave, the accused’semployment is terminated; if not, other forms of departmental penalties are imposed.

Prisoner of procedure: on CJI sexual harassment case

So why does the entire body of procedural safeguards and legal principles disappear when theaccused is the CJI? It was on April 19 that the complainant sent affidavits to the judges of theSupreme Court accusing Justice Gogoi of sexual harassment. The complaint is specific, detailedand supported by documentary and other forms of evidence. The account seems, prima facie,consistent, warranting an inquiry.

The first reaction was by the court’s Secretary General quickly discarding the complaint as oneby “mischievous forces”. The second was unprecedented in the constitutional history of India.The CJI himself constituted an extraordinary hearing in the Supreme Court, along with two otherjudges, on a non-working day in a case titled “Matter of great public importance touching uponthe independence of the judiciary”. The complainant, in her absence, was defamed and hermotives questioned. The highest law officers of the country, the Attorney General and theSolicitor General, joined this judicial proceeding. Within no time, an allegation of sexualharassment turned into a matter of judicial independence.

The third development was the constitution of an “in-house” panel comprising three judges of theSupreme Court. It did not seem to be of concern that to ensure independence of the inquiry andcheck for bias, members other than judges should have constituted the committee. How canjudges inquire into allegations against a colleague, no less the CJI, who is the ‘master of roster’assigning cases to fellow judges and, most significantly, the highest judicial authority in thecountry, wielding an enormous amount of power and influence?

A miscarriage of justice

The constitution of the “in-house” panel was not in compliance with the provisions of the SexualHarassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, aspecial legislation to curbharassment. Nor was not in accordance with any requirements underthe existing framework of law. Thereafter, the complainant was forced to abstain from the panel,citing various reasons such as the refusal of the panel to allow the presence of her lawyer,refusal to record the proceedings or to inform her of the procedure followed and prohibition onconveying the details of the proceedings to anybody else, including her lawyer. The panelcontinued the proceedings in her absence and then met the CJI. Now, the panel has concluded

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that the allegations are without “substance”.

The finding of the panel that the allegations are baseless is the final blow in a process that hasviolated all principles of fairness, due process and impartiality. The panel’s report is not availableto the public on reasons of confidentiality. What grounds did the panel cover to reach itsconclusion? What evidence did it examine and rely on? The public have been kept in the dark,having no access to and no knowledge of what transpired in the proceedings. This hashappened at a time when the Right to Information Act, 2005 has revolutionised access toinformation by the public.

The institution of the judiciary has a strong counter-majoritarian character. It is consideredneutral — free from self-interests. It is supposed to protect individual rights and adjudicate freelyand fairly. But the current episode points to a larger problem in Indian democracy: theemergence of judicial oligarchy. An allegation against a sitting judge is inquired into by threeother judges of the court, the accused is exonerated, the panel report is made available only tothe CJI and the seniormost judge of the court, and this secrecy is justified by relying on ajudgment of the Supreme Court itself. The judges must not reduce the institution to a privateclub where certain interests are privileged at the cost of judicial integrity.

The Chief Justice of India is not above the law.

Thulasi K. Raj is a lawyer at the Kerala High Court


It is sad that the debate now is about the Commission rather than the appalling conduct of ourleaders








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BY ESTABLISHED LAW AND PROCEDURERelevant for: Indian Polity | Topic: Judiciary in India: its Structure, Organization & Functioning, Judges of SC &


A well-publicised case of a complaint by a former employee of the Supreme Court of Indiaagainst the Chief Justice of India (CJI) has raised questions about legal provisions, proceduralpropriety and different facets of what could be categorised as principles of natural justice. As aconstitutional institution, the Supreme Court had to respond to the same. In my view theresponse will satisfy the requirements of the law, though I have seen that several opinions havebeen published to the contrary.

A travesty of justice

The procedure that was being followed cannot be criticised as being either illegal or otherwisearbitrary. A procedure had to be devised as the circumstances were unique, without anyprecedent. The only guidance available was a ‘Report of the committee on in-house procedure(in brief “procedure”), drawn up by a meeting of the full court of the Supreme Court onDecember 15, 1999. The procedure adopted is a public document available on the courtwebsite. It deals with situations involving a High Court judge, a Chief Justice of a High Court anda judge of the Supreme Court separately. The procedure specifically states that even in the caseof an inquiry into a complaint received against a judge of the Supreme Court, the committeeshall hold an inquiry on the same pattern as the committee constituted to examine a complaintagainst a judge of the High Court. The procedure does not expressly deal with the case of theCJI but it definitely would be applicable to the case of the CJI as well because the CJI is also ajudge of the Supreme Court. Thus, the procedure does not contemplate the participation of alegal practitioner because it would not be a formal judicial inquiry involving the examination andcross-examination of witnesses by lawyers. It has to be remembered that the committee wasbound by the rules under which it has come into being, and though as per the report it is entitledto devise its own procedure (where certain parameters have been laid down in the in-houseprocedure), the same cannot be deviated from.

Prisoner of procedure: on CJI sexual harassment case

The complainant did appear before the committee three times, as newspaper reports wouldshow. It seems she did ask for permission to engage a lawyer, but it was denied. It also seemsthat she decided to stay away. It is her choice. But it is difficult to countenance an opinion thatthe complainant felt intimidated by three Supreme Court judges being present, to hear andconsider her version. We would do well to remember the obvious. The members of thecommittee are Supreme Court judges, comprising the seniormost judge of the Supreme Courtand two women judges. Is not the fact that two of the members of the committee are women,one which would serve to make the complainant give her version in a more relaxedatmosphere? Is it right on our part to be sceptical about the propriety and correctness of theprocedure followed by three Supreme Court judges, persons with unblemished reputations, intheir character, conduct and integrity? A trust deficit would be counterproductive in thesecircumstances.

A claim for a copy of the inquiry report will have to be turned down going by the law laid down bythe Supreme Court in Indira Jaising v. Supreme Court of India & Anr [(2003) 5 SCC 494]. Thereport in the said case was made to the CJI and the report was confidential and discreet, only forthe purpose of his information and not for disclosure to any other person. Because the inquiry inthe present case was into the allegations made against the CJI, the report has advisedly been

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given to the next seniormost judge (next in seniority to Justice S.A. Bobde and Justice N.V.Ramana).

The Supreme Court belongs to everyone

The procedure laid down in the in-house procedure has been adhered to in the present case.The law in Indira Jaising has also been adhered to. The complainant does have remedies in law.The principles of natural justice which are alleged to have been violated in the present case, bythe refusal on part of the committee to afford the complainant a right of legal representation andthe decision not to publish the report of the committee, do not and cannot have astraightjacketed approach. What has been done by the committee is in accordance with theprocedure that is laid down. In doing so, it cannot be said that there is a violation of naturaljustice for the simple reason that what is involved is not a judicial inquiry but a fact-finding one. Aright of legal representation is not inherent in such an inquiry.

The higher judiciary of this country is an institution to be cherished and its reputation is a matterdear to every citizen of this country. Some of us are more vocal than the rest, but all of us arestakeholders. The Supreme Court and the High Courts are constitutional institutions and themen and women who occupy positions in the higher judiciary are required to be persons ofimpeccable integrity. But men and women are not infallible, and why should judges alone be anexception thereto? The founding fathers of the Constitution were wise persons and constitutionalprotection is afforded to the judges to see that they are able to discharge their duties for thebenefit of the citizens of the country, without fear or favour, but this is not to say that there canbe no complaint against a judge of the Supreme Court or the CJI. When such complaint ismade, it has to be inquired into in accordance with the procedure that is laid down by the fullcourt of the Supreme Court itself, and the said in-house procedure has been laid down keepingin mind the constitutional ethos. The said in-house procedure has all the attributes of law. It is alaw governing such situations. Where the law is adhered to, claims for deviation therefrom orcomplaints of adherence to it cannot be countenanced.

V. Giri is a senior advocate in the Supreme Court


It is horrific and undemocratic for a nation to be putting the onus on citizens to prove theirIndianness








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SC MUST RE-EXAMINE PROCEDURE TO PROBEALLEGATIONS AGAINST CJI GOGOI



The writer is a former judge of the Delhi High Court

A panel of three Supreme Court judges has cleared the Chief Justice of India of the allegationsof sexual harassment levelled by an ex-staffer of the Court. While the CJI stands vindicated, theprocedure adopted by the panel in arriving at its conclusion has left much to be desired. In fact,one of its own, Justice D Y Chandrachud, had reportedly written to the panel to broadbase itsmembership by including an external member. He also asked the panel to allow legal assistanceto the complainant. The Hon’ble judge, it seems, went by the call of his conscience, and echoedthe sentiments of a large majority, both within and outside the judicial circles. Given thesensitivities of the case, and the fact that it involves someone as high as the CJI, the standtaken by Justice Chandrachud is highly courageous and deserves kudos.

In 1997, in the Vishaka case, the SC laid down that a committee inquiring into allegations ofsexual harassment at the work place should be headed by a woman, and not less than half of itsmembers should be women. To rule out pressure or influence from senior levels, the Courtdirected that such a committee should comprise a member from a third party. After the Vishakajudgment, came The Sexual Harassment of Women at Workplace (Prevention, Prohibition andRedressal) Act, 2013. This piece of legislation was enacted, keeping in view the Vishakaguidelines.

There is no doubt that the SC’s in-house panel in the case against the CJI was not constitutedaccording to the Vishaka guidelines; it also did not go by the provisions of the 2013 Act. Wehave been told that the panel was set up under the SC’s own procedure to examine whether theallegations warranted an inquiry. The intention behind adopting this procedure is to protectjudges from motivated and false allegations. Such charges can, of course, tarnish the reputationof the judge concerned and more importantly, embroil the court in a controversy. But this givesrise to another question: Should the law of the land be ignored when it involves high-rankingindividuals? By the same logic, many other organisations and institutions may adopt their ownset of procedures on the plea that a non-internal inquiry may bring into disrepute not only theindividual concerned but also the institution itself. Would the SC be comfortable with such aprocedure? I, therefore, humbly suggest that the Court revisits its procedure in the case againstthe CJI.

Meanwhile, the complainant has suffered on two counts. The in-house panel was not constitutedas per the law and she was not allowed the assistance of a lawyer. It is true that the matterwhich the panel was dealing with was unprecedented since it involved the highest judicialfunctionary of the country. Therefore, it was quite likely that everyone involved was under strain.However, even then, the rules of the game ought not to have been given a go-by. While it wasimperative that the reputation of the CJI did not suffer because of allegations, it was equallynecessary to give the complainant a fair deal. After all, she was merely asking for legalassistance, and now, a copy of the report of the panel.

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As I wrote in an earlier piece (‘Let the truth prevail’ IE, April 24), the truth must come out,however bitter it maybe for either side. May we, in the meanwhile, also hear from those leadinglights of the Bar who have been quiet so far.

This article first appeared in the print edition on May 10, 2019, under the title ‘An unfairprocess.’ The writer is a former judge of the Delhi High Court. Views expressed arepersonal





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FOR A FULL BENCH: ON RECOMMENDATIONS FORJUDICIAL APPOINTMENTS


The government and the Supreme Court collegium seem to disagree on recommendations forjudicial appointments quite frequently these days. It has become routine to hear that somerecommendations for High Court appointments, as well as elevation to the Supreme Court, havemet with disapproval from the government. In such instances, it requires reiteration by thecollegium for the names to be cleared. This need not always be a cause for concern if it is a signof some serious consultation on the suitability of those recommended. However, it acquires thecharacter of a controversy if the government’s objections suggest an oblique motive to thwart ordelay the appointment of particular nominees. The latest development concerns Jharkhand HighCourt Chief Justice Aniruddha Bose and Gauhati High Court Chief Justice A.S. Bopanna, whowere on April 12 recommended for elevation to the Supreme Court. The government had soughta reconsideration of the two names. The collegium has now repeated its recommendations,emphasising that there is nothing adverse against the two judges in terms of their “conduct,competence and integrity” and that there is no reason to agree with the government. Under thepresent procedure, the government is now bound to accept the recommendation. The SupremeCourt is keen to fill up the current vacancies. It has also recommended two more judges, JusticeB.R. Gavai of the Bombay High Court and Chief Justice Surya Kant of the Himachal PradeshHigh Court, for appointment to the apex court. If all these four recommendations go through, thecourt will have its full complement of 31 judges.

Open up the Supreme Court

While this will be welcome, some issues persist. In systemic terms, the advisability of retainingthe collegium system of appointments is a major concern; and in terms of process, the hugenumber of vacancies in the various High Courts and lower courts is another. The process offilling up vacancies depends on the relative speed with which the collegium initiates proposalsfor appointments and makes its recommendations after internal deliberations, and the time thegovernment takes to process the names. As on May 1, the total number of vacancies in all theHigh Courts is 396. It is true that the filling up of vacancies is a continuous and collaborativeprocess involving the executive and the judiciary, and there cannot be a time frame for it.However, it is time to think of a permanent, independent body to institutionalise the process. Theknown inadequacies of the collegium system and the mystery over whether a new memorandumof procedure is in the offing are reasons why the proposal for a constitutionally empoweredcouncil to make judicial appointments ought to be revived — of course, with adequatesafeguards to preserve the judiciary’s independence. The time may have come for a systemicand processual overhaul.


With Masood Azhar listed as a terrorist, India must work to ensure the mandated sanctions




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WHAT DOES INSTANT RUN-OFF MEAN?Relevant for: Indian Polity | Topic: Elections, Election Commission and the Electoral Reforms in India Incl.

Political Parties

This is a voting method used in a single seat-election in which there is not just a choice ofcandidates, but also a preferential ranking of them. Ballots are initially counted for each voter’stop choice. If a candidate has more than half of the votes, she wins. If no candidate secures50% of the votes, the candidate with the fewest first choices is eliminated and a second round ofcounting takes place. The votes of supporters of the eliminated candidate are not “wasted”.Instead, their vote counts for their next favourite candidate as indicated on their ranked ballot. Ineach round of voting, a voter’s ballot counts for whichever remaining candidate is ranked higheston the ballot. Eventually one candidate emerges as a majority winner. This system has beenused to elect Australia’s Lower House, The Republic of Ireland’s President and a number ofofficial bodies. Nobel laureate Amartya Sen has touted this system as ideal for democracies as italways allows for a majority vote which is closer to the preferences of the electorate.










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WHO ARE ELECTION COMMISSIONERS?Relevant for: Indian Polity | Topic: Elections, Election Commission and the Electoral Reforms in India Incl.

Political Parties

Election Commissioners are members of the Election Commission (EC), the constitutional bodytasked with ensuring the conduct of free and fair elections. They are usually retired civilservants, and are appointed by the President. The EC was helmed by a single Chief ElectionCommissioner (CEC) since the body was set up in 1950. In 1989, two more ElectionCommissioners were appointed but their tenure ended in 1990. Thereafter, in 1993, two ElectionCommissioners were again appointed. Since then the EC has been a three-member panel. Thetenure of the CEC and Election Commissioners lasts six years, or up to the time they attain theage of 65, whichever is earlier. They receive the same pay as a judge of the Supreme Court.Their decisions are taken by a majority vote.










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REDACTIVE PRICING AUDIT AND THE CAG’S DUTIESRelevant for: Indian Polity | Topic: Audit & CAG of India

The Supreme Court’s observations in connection with the Rafale fighter aircraft deal by citing theComptroller and Auditor General of India’s (CAG’s) report on redacted pricing, and subsequentmedia reports and the controversy over “stolen files” brought back into the spotlight the role ofthe supreme audit institution of India.

Many questions arise before the stakeholders: What is redactive pricing? Does the constitutionalmandate provide redactive pricing to be included in the CAG’s audit reports submitted to thePresident to be placed before Parliament? Do any supreme audit institutions (SAIs) such as theNational Audit Office, the Government Accountability Office or Commonwealth countries followredactive pricing in audit reports?

Redaction is the selection or adaption by ‘obscuring or removing sensitive information’ from adocument prior to publication. The CAG is mandated to audit all receipts and expenditures of thethree-tier governments in India and report to the legislature judiciously, independently,objectively in compliance with applicable laws, rules and regulations, without fear and favour. Heconducts financial compliance and performance audits and submits his reports to the legislatureto help people’s representatives in enforcing legislative oversight and public accountability of theexecutive. Legislative committees such as the Public Accounts Committee and Committee onPublic Undertakings examine the CAG’s selected reports.

In the preface of the audit report, the CAG stated that redactive pricing was unprecedented buthad to be accepted due to the Ministry’s insistence citing security concerns. Consequently, thefull commercial details were withheld and the figures on the procurement deal were blackened. Itwas unprecedented that an audit report submitted by the CAG to the President under Article 151of the Constitution suppressed relevant information. Whether the Ministry’s insistence citingsecurity concerns could have been accepted by the CAG can be examined only by the SupremeCourt in the light of the constitutional provisions on the CAG’s duties and parliamentaryprivileges and prerogatives.

Rafale cost is 2.86% lower, but Dassault benefited without bank guarantee: CAG

Redactive pricing is nowhere used in SAI audit reports. It does not seem to have been used in agovernment audit by any SAI of any country. Redactive pricing in the ‘Performance Audit Reportof the Comptroller and Auditor General of India on Capital Acquisition in Indian Air Force (UnionGovernment – Defence Services, Air Force, Report No. 3 of 2019)’ suppresses more than itreveals. For example, in the Rafale deal, Parliament, its committees, the media and otherstakeholders of the CAG’s reports cannot obtain complete, accurate and reliable information dueto redactive pricing. The reduction in the original requirement, to 36 aircraft, a waiver of theearlier decision to involve Hindustan Aeronautics Limited, observations of the Indian NegotiatingTeam, cost escalation due to inclusion of bank guarantee and performance guarantee were notcompared properly to arrive at the audit conclusion.

Pricing is the quintessence of any procurement decision. Along with quality and quantitativespecifications, comparative merits and demerits are ascertained, and the pricing of comparableproducts are compared in decision-making. Pricing is an integral part of the procurementdecision-making process of any equipment, product, goods or service. A strategic competitiveadvantage of a product, how best it should be procured, how many at a time are to bepurchased and at what price and under what conditions, terms, instalments, along with after-

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service conditions, discounts, commissions and other conditions are evaluated to arrive at apurchase decision. Therefore, price integrity and comparative competitiveness are at the heartof any procurement decision.

Govt. denies perjury charge in Rafale case

The CAG is mandated to get into the nitty-gritty of procurement terms, procedures, comparativeadvantages and disadvantages without fear and favour to form an objective, independent andjudicious audit opinion. An audit is expected to analyse the facts and comparative pricing chartsto highlight the financial propriety and prudence of the procurement decision. The institution isconstitutionally mandated and empowered to do its duties covering all essential factors aboutthe procurement, customised end-to-end pricing assessments, legal requirements, escrowaccounting, terms and conditions and arbitration clauses in compliance with legal and otherregulations.

The executive procurement decision is expected to be completely analysed in the CAG’s audit topinpoint inaccuracies, non-compliance of essential procurement procedures, conditions andpricing errors which may have a negative financial impact and cause potential damage to thecountry’s interests.

Given the dynamics of international competition in competitive products and pricing in today’smodern market scenario, pricing, delivery and post-delivery service and other conditions areessentially covered in an SAI audit. It is a complex audit, demanding exceptional insight,expertise, knowledge and skills. In case the CAG’s office lacks expertise to conduct aperformance audit, expertise can be sought from the pool of resources or credible organisationsto be coopted in the audit team.

Pricing decisions must be subjected to detailed analysis, without resorting to redactive pricing.Parliament is constitutionally privileged to know what the executive had done and how andunder what conditions a procurement was decided. The CAG’s audit is expected to highlightvalue for money in purchase decisions.

A performance audit is done to establish whether the procurement activity was executedkeeping in mind economy, efficiency, effectiveness, ethics and equity. Only a thorough pricingaudit can bring out the credibility and integrity of a purchase decision, thereby achieving anSAI’s constitutionally mandated responsibilities.

K.P. Shashidharan is a former DG, CAG Office. The views expressed are personal







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WHAT DOES ELECTION PETITION MEAN?Relevant for: Indian Polity | Topic: Elections, Election Commission and the Electoral Reforms in India Incl.

Political Parties

An election petition calling in question any election can be presented on one or more of thefollowing grounds: a) that on the date of the election a returned candidate (a candidate who hasbeen declared elected) was not qualified; b) that some corrupt practice was committed by areturned candidate or his election agent; c) that any nomination was improperly rejected; and d)that the result was materially affected. If any of these is true, the High Court where the petition issubmitted declares the election of the returned candidate to be void. A petition can be submittedby any candidate or elector within 45 days of the declaration of the result.










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THE NEED FOR JUDICIAL RESTRAINTRelevant for: Indian Polity | Topic: Judiciary in India: its Structure, Organization & Functioning, Judges of SC &


The recent trend in the Supreme Court is to rely more on the sociological school ofjurisprudence and less on the positivist school. In other words, the court is resorting more tojudicial activism rather than judicial restraint, which is problematic. This is seen in its recentjudgment on ordering time limits to burst firecrackers on Diwali, which is a function of thelegislature; its judgment on linking rivers, for which there is no parliamentary legislation; and inits unpredictable decisions in cases relating to freedom of speech and expression, such as therecent one in which a BJP Yuva Morcha leader was asked in the bail order to apologise forsharing a meme, despite the guarantee in Article 19(1)(a) of the Constitution.

According to the positivist theory laid down by jurists such as Jeremy Bentham and John Austinin the 18th and 19th centuries, and continued by H.L.A Hart, Hans Kelsen and others in the 20thcentury, law is to be distinguished from morality and religion. However bad a particularlegislation is, it is law at the end of the day, provided it emanated from a competent legislature(according to the earlier natural law theory, bad law was not law at all).

In positivist jurisprudence, the centre of gravity of the legal system is statutory law, i.e., lawmade by the legislature. It holds that lawmaking is not the job of the judges, but of thelegislature. Hence, judges should be restrained and not activist in their approach. In view of thewell-established principle of separation of powers of the three organs of the state, judges shouldnot perform legislative or executive functions, and each organ of the state should remain withinits own domain, in order to avoid chaos.

On the other hand, sociological jurisprudence, as developed in Europe and the U.S. by juristssuch as Rudolph Ritter von Jhering, Eugen Ehrlich, Léon Duguit, François Geny, Roscoe Poundand Jerome New Frank, shifts the centre of gravity of the legal system from statute to laws madeby judges. It gives wide discretionary powers to judges to make laws.

Sociological jurisprudence and natural law have the same problem. Kelsen argued that withnatural law, one can prove everything and nothing, and Bentham regarded natural law asmetaphysical nonsense. Similar criticisms can be made of sociological jurisprudence, which theSupreme Court seems to be relying on. In other words, the court can lay down anything as lawaccording to its own subjective notions.

Positivist jurisprudence places heavy reliance on the literal rule of construction, becausedeparting from it would give a free handle to each judge to declare the law according to his ownnotions, and this would result in legal anarchy. For example, the Second Judges Case (1993)and Third Judges Case (1998), which created the collegium system of appointment of judges,were not based on any provision in the Constitution. Article 124, which prescribes how SupremeCourt judges are to be appointed, does not talk of any collegium system. Yet, it is the collegiumwhich decides the appointment of judges, despite the founding fathers of the Constitution notenvisaging the same anywhere. In fact, despite the unanimous will of Parliament in favour of theNational Judicial Appointments Commission (NJAC), the Supreme Court declared the NJAC Actto be unconstitutional on the grounds that it would affect the judiciary’s independence.

In recent times, the Supreme Court has increasingly adopted the sociological school ofjurisprudence in an aggressive manner. In a parliamentary democracy, the buck ultimately stopswith the citizens, who are represented by Members of Parliament. The Supreme Court was

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never envisaged to perform the role of an unelected, third legislative chamber. Yet it isperforming this role not in exceptional circumstances, but in its everyday functioning. Of all thethree organs of the state, it is only the judiciary that can define the limits of all the three organs.This great power must therefore be exercised with humility and self-restraint.

The usage of sociological jurisprudence can be justified in very rare circumstances, such as inthe Supreme Court’s decision to strike down Section 377 of the Indian Penal Code.

In Griswold v. Connecticut, Justice Hugo Black of the U.S. Supreme Court warned that“unbounded judicial creativity would make this Court into a day-to-day ConstitutionalConvention”. In his book, Nature of the Judicial Process, Justice Cardozo of the U.S. SupremeCourt wrote, “The Judge is not a knight errant roaming at will in pursuit of his own ideal of beautyor of goodness”. And as Chief Justice Neely of the West Virginia State Supreme Courtobserved: “I have very few illusions about my own limitations as a Judge. I am not anaccountant, electrical engineer, financier, banker, stock broker, or systems managementanalyst. It is the height of folly to expect judges to intelligently review a 5000 page recordaddressing the intricacies of a public utility operation. It is not the function of a judge to sit as asuper board or with the zeal of a pedantic schoolmaster substituting his own judgment for that ofan administrator.”

The Supreme Court should limit its usage of the sociological school of jurisprudence to only themost exceptional situations, and employ the positivist school as far as possible.

Markandey Katju is a former Judge, Supreme Court of India. Aditya Manubarwala is Law Clerk-cum-Research Assistant at the Supreme Court










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WHAT DOES CASUAL VACANCY MEAN?Relevant for: Indian Polity | Topic: Elections, Election Commission and the Electoral Reforms in India Incl.

Political Parties

When the seat of a member of the Lok Sabha or the Rajya Sabha or a State LegislativeAssembly or a State Legislative Council becomes vacant, or when his or her election is declaredvoid, the constituency from where the member was elected can vote for another person to fill upthe vacancy. If the vacancy is in a seat reserved for Scheduled Castes or Scheduled Tribes, theperson to fill that seat must also belong to a Scheduled Caste or Tribe, as the case may be. Aby-election to fill up such a vacancy should be held within a period of six months from the date ofthe occurrence of the vacancy.










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WHAT IS A COALITION GOVERNMENT?Relevant for: Indian Polity | Topic: Elections, Election Commission and the Electoral Reforms in India Incl.

Political Parties

A coalition government is one in which multiple political parties come together and often reducethe dominance of the party that has won the highest number of seats. Coalition governments areformed as seldom does a political party win the necessary number of seats to form thegovernment on its own. In India, the first coalition government to complete its full-term was theAtal Bihari Vajpayee-led National Democratic Alliance from 1999 to 2004. While some say thatcoalition governments generate more inclusive policies, others believe that coalitions imposeconstraints on policymaking.










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WHAT IS 'NEGATIVE CAMPAIGNING'?Relevant for: Indian Polity | Topic: Elections, Election Commission and the Electoral Reforms in India Incl.

Political Parties

Negative campaigning is a type of political advertising whereby a political party chooses tohighlight the flaws or another candidate in its campaign instead of showcasing its owncandidates or the achievements of its governments, present or past. Sometimes suchadvertising can be subtle, while at other times it can be quite overt. Negative campaigns typicallyfocus on a candidate's political record, or lack of it. Negative campaigns are powerful and canespecially persuade floating voters to make up their minds, but divisive campaigns can alsobackfire.










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WHAT IS 'VOTER APATHY'?Relevant for: Indian Polity | Topic: Elections, Election Commission and the Electoral Reforms in India Incl.

Political Parties

Voter apathy is perceived apathy among those eligible to vote in an election. This can happenwhen voters are disillusioned with the electoral process or with the political parties andcandidates, or when don't think their vote will count, or when they don't care much for the issuesaround them. In India, voter turnouts have been going up in the past decade largely due to theElection Commission's efforts to enhance voter participation in the country.










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NO DISSENT NOTES IN ORDERS, SAYS ECRelevant for: Indian Polity | Topic: Elections, Election Commission and the Electoral Reforms in India Incl.

Political Parties

The Election Commission of India (ECI) on Tuesday decided by a majority of 2:1 that dissentingopinions in the Model Code of Conduct (MCC) disputes will not be made part of any final orderand will only be included in internal files, as per previous practice.

“In the meeting of the Election Commission held today, regarding the issue of MCC, it was interalia decided that proceedings of the Commission meeting would be drawn, including the viewsof all the Commission Members. Thereafter, formal instructions to this effect would be issued inconsonance with extant laws and rules,” the ECI said.

It is learnt that Election Commissioner Ashok Lavasa had maintained his stand that minorityviews should get reflected in the MCC orders.

The issue came up before the full bench comprising Chief Election Commissioner Sunil Arora,Mr. Lavasa and Election Commissioner Sushil Chandra, after Mr. Lavasa raised objections overhis dissenting opinions not being included in the orders on certain speeches of Prime MinisterNarendra Modi and BJP chief Amit Shah.

Mr. Lavasa wrote thrice to Mr. Arora, conveying his decision to stay away from the proceedingsrelated to the MCC if dissenting views were not incorporated in the orders.

No precedent

“However, there is no such precedent. According to the existing rules, only the majority decisionin case of non quasi-judicial issues like the MCC is communicated to the parties concerned. Thedivergent opinion is recorded in files,” said a senior EC official.

Following news reports that Mr. Lavasa had recused himself from MCC matters, Mr. Aroraearlier issued a statement saying: “It needs to be mentioned that in the last meeting of theCommission on May 14, it was unanimously decided that some groups shall be formed todeliberate the issues that arose in the conduct of Lok Sabha Elections, 2019, just as it was doneafter the Lok Sabha elections of 2014. Of the 13 issues and areas identified, Model Code ofConduct is one of them.”

“The three members of the ECI are not expected to be template or clones of each other. Therehave been so many times in the past when there has been a vast diversion of views as it canand should be,” he had said.

Former Legal Advisor to the EC S.K. Mendiratta, who has worked with the poll body for about 53years, had also told The Hindu that in case of a difference of opinion on MCC matters, thedissent note is recorded in the files and only majority view is communicated through an order.

The dissenting ruling is made part of the order only in quasi judicial matters like the disputesrelated to the Representation of the People Act and election symbols.



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THE PROBLEM WITH JUDICIAL LEGISLATIONRelevant for: Indian Polity | Topic: Judiciary in India: its Structure, Organization & Functioning, Judges of SC &


Several southern states of the United States — Georgia, Alabama and Missouri — have passedpieces of legislation banning abortion, though with some differences. These laws areinconsistent with the judgments of the U.S. Supreme Court in Roe v. Wade, which laid down atrimester test, and Planned Parenthood v. Casey, which laid down the undue burden andviability tests. The constitutional validity of these legislations will almost certainly be challengedin the U.S. Supreme Court, which will have to examine whether Roe and Casey were correctlydecided. It is our submission that they were not.

The right to choose

The sheet anchor of Roe (and of Casey, which followed Roe in invalidating the ban on abortion,though with different directions) is the decision in Griswold v. Connecticut, in which the U.S.Supreme Court created a new constitutional right — the right to privacy.

The Bill of Rights in the U.S. Constitution talks of freedom of speech and of the press, liberty andequality, but it nowhere mentions any right to privacy. So, by a judicial verdict, a right wascreated which in our submission was wrong, since according to the principle of separation ofpowers in the Constitution, only the legislature can create a right.

Trump ‘pro-life’ except in cases of rape and incest

We regret to say that both the U.S. as well as the Indian Supreme Courts have not beenobserving the judicial restraint expected of judges of superior courts and have been encroachingon to the domain of the other two organs of the state, the legislature and the executive. Someexamples.

In State of Tamilnadu v K. Balu, the Supreme Court banned liquor shops within 500 m ofhighways, which was a legislative order. In K. Puttaswamy v. Union of India, it created a right toprivacy, which is nowhere mentioned in the fundamental rights laid down in the Constitution. InSubhash Kashinath Mahajan it amended the SC/ST Act. In the NCT, Delhi, Sabarimala andLGBT cases it laid down the ‘constitutional morality’ test. In other decisions, the court fixedtimings for bursting crackers on Deepavali, directed interlinking rivers and laid down regulationsfor the Board of Control for Cricket in India. In the Judges cases it created the collegium systemfor judicial appointments.

We submit that this judicial activism requires reconsideration, for it entails unpredictability in thelaw apart from violating the principle of separation of powers. It entitles each judge to lay downthe law according to his own subjective notions. We submit that courts should be restrained andfollow positivist jurisprudence, which advocates judicial restraint, and in which the centre ofgravity of the legal system is statutory law, rather than sociological jurisprudence, whichadvocates judicial activism and shifts the centre of gravity in the legal system to judge-made law.In our view, judicial legislation is an oxymoron.

Markandey Katju is a former judge of the Supreme Court. Aditya Manubarwala is a law clerk andlegal assistant in the Supreme Court

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WHAT IS A STRONGROOM?Relevant for: Indian Polity | Topic: Elections, Election Commission and the Electoral Reforms in India Incl.

Political Parties

At the end of voting, the electronic voting machines (along with VVPATs) are kept in designatedstrongrooms, which are sealed with double locks. This process is done in the presence ofcandidates and observers of the Election Commission of India. CCTVs are installed in thestrongrooms and they are also guarded with security provided by the Central armed policeforces round the clock. Candidates can send designated agents or present themselves at thestrongroom for vigil as well.










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A ONE-SIDED JUSTICERelevant for: Indian Polity | Topic: Judiciary in India: its Structure, Organization & Functioning, Judges of SC &



The writer retired as a justice of the Supreme Court of India in December 2018.

Eleanor Roosevelt said: “Justice cannot be for one side alone, but must be for both.” Was justicedone to the Supreme Court staffer who made two allegations on affidavit — first of unwantedphysical contact by the Chief Justice of India (CJI) and second, of victimisation? For the presentpurposes, I would only like to consider the allegation of victimisation. The allegation ofvictimisation relates to a departmental inquiry that continued despite the hospitalisation of thecomplainant; her dismissal from service for expressing dissatisfaction about her frequenttransfers and not reporting for duty but taking unauthorised half-day casual leave; the dismissalof her brother-in-law from service in the Supreme Court; the suspension from service of herhusband and another brother-in-law and her arrest in an unrelated case.

Institutional bias: Judges and lawyers are aware of institutional bias, that is to say a procedureinfluenced by decision-makers in an institution which casts a doubt on the judicial oradministrative process. Among the first reactions to the publication of the allegations was anemail sent by the Secretary-General of the Supreme Court to The Wire early morning on April20. This was surely not an individual response but a response given by the Secretary-General inhis capacity as a representative of the Supreme Court or the CJI or both, otherwise he couldvery well have denied any concern with the allegations while allowing the law to take its owncourse. But no, the Secretary-General wrote: “The allegations regarding 11 October 2018, aswell as other allegations as can be discerned from your emails, are completely and absolutelyfalse and scurrilous and are totally denied.” The denial clearly indicated that, officially, all theallegations were denied.

Unfortunately, the matter was reopened the same day (Saturday) at 10:30 am in Court No 1 ofthe Supreme Court on a mention having been made by the Solicitor General of India. It is notclear before whom he mentioned the matter, when and why was the mention entertained andwhat procedure was followed. In the normal course, it would be fair to assume that the SolicitorGeneral mentioned the matter before the Secretary-General, who in turn brought it to the noticeof the CJI, who gave an order to have the matter “touching upon independence of judiciary”listed in court. As per the notice brought out by the Supreme Court, the Bench was presidedover by the CJI. The Bench would have been constituted by the CJI, being the Master of theRoster, and he nominated himself as the Presiding Judge.

On the Bench, the allegations were described by the CJI as unbelievable and that he would notstoop so low as to deny the allegations. He also stated that some bigger force wanted todeactivate the office of the CJI. In short, the CJI rubbished the allegations.

Though the sitting was unprecedented and extraordinary, what is even more unprecedented andextraordinary is that the record of proceedings did not indicate the presence of the CJI on theBench. In other words, either the news reporters were seeing and hearing the equivalent ofBanquo’s ghost in Court No 1 or the record of proceedings was incorrect — tampering with therecord may be too strong a word. Either way, the misreporting of the proceedings by thejournalists or by the Registry of the Supreme Court was something extremely serious. I say this

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because earlier in the year two officials of the Registry of the Supreme Court had beendismissed from service for tampering with the record of proceedings in a case.

On April 22, the Supreme Court Employees Welfare Association, on behalf of all the employees,strongly condemned the allegations against the CJI as false, fabricated and baseless. Giventhese events, could it not be said that institutional bias had crept in, in the manner in which theallegations of the lady staffer were initially dealt with? To me, the trappings of institutional biasare clearly made out whichever way one looks at the events of April 20.

On April 22, the Supreme Court Advocates on Record Association (SCAORA) as well as theSupreme Court Bar Association (SCBA) were sufficiently perturbed by the events that had takenplace and they passed independent resolutions. While SCAORA was unhappy with theprocedural impropriety, it strongly disapproved the manner in which the staffer’s complaint wasdealt with. It also requested for the appointment of a committee by the Full Court to investigateand enquire into the allegations and give an independent finding. The SCBA did not approve theprocedure adopted for conducting the court proceedings and requested the Full Court to takenecessary steps required by law. In other words, according to the SCBA, the proceedings werenot in conformity with the law and along with SCAORA, they were quite disturbed by what hadtranspired.

Mandate of the internal committee: Perhaps in view of the strange events and the resolutionspassed by SCAORA and SCBA, a decision was taken to set up a committee to enquire into theallegations made by the staffer. According to a website, the CJI appointed Justice SA Bobde onApril 23 to conduct an in-house inquiry into the allegations of sexual harassment levelled againsthim and Justice Bobde confirmed the development. From the confirmation, it appears that thedecision to set up a committee was a decision taken by the CJI and not the Full Court. Thatapart, the so-called in-house inquiry is a complete misnomer. With respect to the allegedmisconduct by the CJI, there is no in-house inquiry procedure or any other remedial procedurelaid down at all. So, the decision by the CJI can only be understood as a decision to set up somekind of an ad hoc committee, which I would prefer to call an internal committee of sorts.

Please note, the internal committee was set up by a person charged of unwanted physicalcontact with a lady staffer and that person chose the judge to inquire into the allegation. Equallysignificantly, the mandate given to the internal committee was limited to the allegation ofunwanted physical contact, itself difficult to prove. The mandate did not include the allegation ofvictimisation. Why was the mandate limited? If there was to be an inquiry by an internalcommittee, then it should have been in respect of both the allegations, particularly since theaffidavit of the staffer does contain verifiable documentary evidence which could lead (if proved)to a conclusion of victimisation.

What is equally mysterious is the rejection of the sane advice given by the Attorney-General onApril 22 to the CJI and the next four senior judges to constitute an outside committee of threeretired judges of the Supreme Court. We have several eminent retired judges, including womenjudges. It would have been to the credit of the Supreme Court if the advice had been accepted,thereby negativing the belief of possible institutional bias. Moreover, the carefully thought outview expressed by SCAORA and SCBA would also have been accommodated if an outsidecommittee had been set up. But it was not to be.

Report of the internal committee: Again, as reported on a website, the proceedings before theinternal committee were informal and that is why the staffer was not permitted legalrepresentation. However, given the enormous power imbalance between the CJI and the staffer,could not the internal committee have been a little charitable and conditionally permitted asupport person? In matters of alleged sexual offences, judges try to protect the victim from re-

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victimisation. It is for this reason that various protections have been provided to victims ofalleged sexual offences. In this case, surely the internal committee could have been a littlemagnanimous and permitted the staffer the comfort of a support person, particularly in view ofthe power imbalance and since the internal committee proceedings were informal.

The report of the internal committee was submitted to the next most senior judge on or aboutMay 6. The contents of the report have not been disclosed, but a notice issued by the Secretary-General stated that the in-house committee found no substance in the complaint made by thestaffer. Obviously, given the mandate of the internal committee, this relates to the allegation ofunwanted physical contact and not the allegations of victimisation. Now, what about theallegations of victimisation? Will another internal committee be set up or will these allegations beforgotten and not looked into, as not worthy of consideration? There is no way of knowing this.

The Secretary-General declined to give a copy of the report to the staffer by referring to ajudgment in Indira Jaising v. Supreme Court of India. That decision is not at all relevant. First,the internal committee was not an in-house inquiry of the kind understood by the judges of theSupreme Court in 1999-2000, when the in-house procedure was adopted. Second, the decisionwas rendered in the context of a formal in-house inquiry and not in the context of informal in-house proceedings or internal committee proceedings. Moreover, the judgment of the SupremeCourt does not say that the complainant is disentitled from getting a copy of the report of the so-called in-house committee. The procedure for conducting an in-house inquiry merely says that acopy of the report shall be furnished to the judge concerned. There is no prohibition in giving acopy of the report to the complainant — neither the in-house procedure refers to any prohibitionnor does the judgment of the Supreme Court refer to any such prohibition. Besides, under whatlaw can the report be denied to the complainant? A similar question came up in a case beforethe Supreme Court and the government claimed privilege under the Indian Evidence Act to denya copy of the report to the complainant. The defence was rejected since a report on anallegation of sexual harassment does not (and cannot) concern the affairs of state. Accordingly,a direction was given to the government to hand over a copy of the report along with all othermaterial to the complainant. Therefore, can a copy of the report on allegations of sexualharassment be denied to the complainant merely on the say-so of the Secretary-General? Underwhat law does he get the power to give a copy of the report to the person charged but at thesame time deny a copy to the complainant, thereby making justice one-sided? In my opinion, thestaffer must be given a copy of the report of the Committee so that she gets answers to thequestions that she and others have raised.

Finally, has the report of the internal committee been accepted by the concerned judge? Is therean order to this effect? Can the concerned judge disagree with the report of the informal so-called in-house committee? In my view, the in-house procedure (assuming it applies) postulatesa decision by the concerned judge to either accept the report or reject it or decide to take nosubstantive and follow up action on it. Either way, the concerned judge must apply his mind andtake a decision on the report. It appears that no such decision has been taken and if it has beentaken, it has not been made public.

On a consideration of the overall facts, it does appear that some injustice has been done to thestaffer. Martin Luther King Jr. famously wrote: “Injustice anywhere is a threat to justiceeverywhere. We are caught in an inescapable network of mutuality, tied in a single garment ofdestiny. Whatever affects one directly affects all indirectly.” I am reminded of this because of mybelief that the staffer has not been fairly treated. Many questions are left unanswered andactually many are trying to solve a riddle, wrapped in a mystery inside an enigma. Sometransparency is needed. Can any member of the internal committee or somebody from theSupreme Court please help?

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The writer retired as a justice of the Supreme Court of India in December 2018





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IT’S TIME TO TAKE STOCK OF THE ELECTORALPROCESS

Relevant for: Indian Polity | Topic: Elections, Election Commission and the Electoral Reforms in India Incl.Political Parties

The biggest election in the world has finally come to a successful end for which the threeElection Commissioners and their 12 million staff deserve appreciation. Unfortunately, whatdeserved to be remembered as a subject of national pride became mired in severalcontroversies. At the top of the list was the unprecedented attack on the Election Commission(EC) which was accused of being soft on the top leadership of the Bharatiya Janata Party (BJP)for repeated violations of the Model Code of Conduct (MCC).

Questions were also raised about the prolonged election of seven phases. The EC has alwaysmaintained that the most pressing concern is voter security. All political parties demand thatCentral armed police forces be deployed, but due to their limited availability they have to berotated, which necessitates multi-phase elections. If the numbers of these forces were adequate,the EC could conduct elections in one day. After all, the MCC is difficult to operationalise in theage of social media in staggered elections. This is a trade-off the EC is fully aware of. The cost-benefit analysis of multi-phase versus short phase elections in the face of new challenges canbe done afresh.

The highlight of 2019 was the highest ever voter turnout in a general election so far (67.11%),even though there was a lower turnout than usual in many constituencies, possibly because ofoppressive weather, and varied turnouts across phases. This proves that the EC’s votereducation programme (Systematic Voters’ Education and Electoral Participation) is effective.

In this election, the role of money power was alarming. It is becoming more and more expensiveto contest elections and the problem of black money is alive. Even before the first phase hadstarted, it was evident that Indian democracy is overwhelmed by the overarching role of money,media and mafia.

Disclosing dissent: on EC's decision to not record split opinions

The EC seized crores worth of money, liquor and drugs. As on May 24, money, drugs/narcotics,liquor, precious metals and freebies worth an estimated 3,475.76 crore were seized. The figurein 2014 was 1,200 crore. According to EC data, Tamil Nadu (952 crore), Gujarat (553.76 crore),Delhi (430.39 crore), Punjab (286.41 crore) and Andhra Pradesh (232.02 crore) were the top fiveStates/Union Territories that accounted for the total seizures. A cause for worry is thatdrugs/narcotics formed a large part of the seizures, with Gujarat topping the list (almost 524.35crore).

Personally, what was most painful was witnessing the EC repeatedly coming under the scannerdue to its delayed and often perfunctory actions on violations of the MCC. Once lauded for itsconduct of free and fair elections in the world’s largest democracy which have been held withprecision and integrity, this time it was criticised both nationally and internationally.

The aftermath of a nasty election

The check on the Prime Minister’s helicopter in Odisha on April 16 should have been used bythe EC to demonstrate its commitment to equality of all before the law. But it chose a different

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course.

The EC was also questioned for its stand on the sample size for Voter-Verified Paper Audit Trail(VVPAT) verification. Its line was that tallying VVPAT paper slips with the EVM count one perAssembly constituency was based on scientific methodology and endorsed by the IndianStatistical Institute. But the Opposition parties went to the Supreme Court which advised the ECto raise the mandatory random counting to five VVPATs per Assembly segment laying emphasison “better voter confidence and credibility of electoral process”. The court believed that the movewould ensure the “greatest degree of accuracy and satisfaction”. Rather than being on thedefensive, the EC should have discussed this issue with political parties, with an open mind.

As the election progressed, the Opposition made two more demands: The five machines mustbe counted in the beginning and in case of even one mismatch, all machines in the Assemblysegment must be counted. The EC examined these proposals only to reject them as beingunfeasable.

The task of restoring democracy

The top court’s repeated interventions (as many as six) also have long-term implications giventhat Article 329 of the Constitution bars courts from interfering in electoral matters after theelection process has been set in motion. But the court had to intervene repeatedly for coursecorrection. The Supreme Court expressed displeasure over the EC’s stand on April 15 when itsubmitted that it was “toothless” and “powerless” to act on hate speeches. When the court setthe EC a deadline of May 6 to act on this, the EC took strong and unprecedented action againstsome political leaders, debarring them from campaigning for up to three days by invoking Article324. This was laudable, but when it came to acting on complaints against the Prime Minister andthe BJP president, it reacted differently, giving the two leaders ‘clean chits’, and casting ashadow on its own reputation for fearless independence.

Much later, it was shown that at least one Election Commissioner had dissented in five out of 11EC decisions concerning violations of the MCC. In the absence of unanimity, decisions can betaken by a majority vote, and his dissent did not change the result. But dissent is good news fora constitutional body as it is a healthy sign of objective deliberation and democratic functioning.His demand for his dissenting note to be made public was worthy of positive consideration.

The ascendant role of money power, paid and fake news, communal polarisation and haterhetoric pose a serious challenge to the very foundations of our electoral system. As soon as thedust settles, India must introspect over these issues and find answers. A democracy is only ascredible as the strength of the institutions fundamental to its legitimacy. I have hope that the 17thLok Sabha will take it upon itself to reform the electoral process and enable the world’s largestdemocracy to become the world’s greatest.

S.Y. Quraishi is a former Chief Election Commissioner of India and the author of ‘AnUndocumented Wonder — The Making of the Great Indian Election’




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DISCLOSING DISSENT: ON EC'S DECISION TO NOTRECORD SPLIT OPINIONS

Relevant for: Indian Polity | Topic: Elections, Election Commission and the Electoral Reforms in India Incl.Political Parties

The rejection of the demand of one of the Election Commissioners that dissenting opinions berecorded in the orders passed by the three-member Election Commission on complaints ofviolations of the Model Code of Conduct may be technically and legally right. However, therewas indeed a strong case for acceding to the demand of Ashok Lavasa at least in regard tocomplaints against high functionaries such as Prime Minister Narendra Modi. The EC has beenrightly widely criticised for giving a series of ‘clean chits’ to the PM, despite some questionableremarks that appeared to solicit votes in the name of the armed forces. Added to the widespreadunease was the unexplained delay of several weeks in disposing of complaints against Mr.Modi. It is in this context that Mr. Lavasa’s dissenting opinion may have been relevant enough tomerit inclusion in the EC’s orders. After all, the public is aware of the allegedly offending actionsand remarks, and is entitled to be informed if the decision was not unanimous. In this hotlycontested election, one in which the level of discourse was abysmally low, the onus on the pollpanel to maintain a level-playing field and enforce the election code was quite high. Makingpublic a dissent in the final order would have deepened the popular understanding of the issuesin play.

The aftermath of a nasty election

The law requires the multi-member EC to transact business unanimously as far as possible —and where there is a difference of opinion, by majority. Therefore, there is nothing wrong ifdecisions are made by a 2:1 ratio. The apparent justification for excluding any dissent from thefinal order, but merely recording it in the file, is that the practice of including dissent is limited toquasi-judicial matters such as allotment of symbols. Should recording of a dissenting opinion bebased on such a distinction? A more appropriate distinction would be between decisions thatrequire reasoning — absolving the Prime Minister of an election code violation surely ought tobe one — and administrative matters that need to be resolved with dispatch. If members havespecific reasons for deciding for or against a particular course of action, there would surely beno harm in spelling out their respective positions. It would be unfortunate indeed if Mr. Lavasastays away from meetings concerning violations of the Model Code of Conduct. However, as hehas taken up the issue through as many as three letters, it is reasonable to infer that there issome basis for his grievance. At a time when the institution’s reputation is being undermined bysustained criticism, the EC should not shy away from making public any difference of opinionwithin. It would be unfortunate if the majority in the EC were to be afraid of any public reactionthat may result from disclosure of a split opinion.


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WHAT IS 'STRIKE RATE'?Relevant for: Indian Polity | Topic: Elections, Election Commission and the Electoral Reforms in India Incl.

Political Parties

This refers to the share of seats won by a party of the overall seats it contested in an election.The BJP had an extraordinary strike rate in 2014 despite only an overall vote share of 31%because of its performance in the northern and western regions (it won 190 of the 225 seats in10 States in the Hindi belt, which is a strike rate of 85%). The BSP, on the other hand, had avery poor strike rate (it did not win a single seat of the 503 seats it contested though it got thethird largest vote share of 4.2%).










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Source : www.prsindia.org Date : 2019-05-25

PRSINDIARelevant for: Indian Polity | Topic: Indian Constitution - Features & Significant Provisions related to The

Preamble, Union & its Territories and The Citizenship

IntroducedRajya SabhaFeb 11, 2019GrayReferredStanding CommitteeFeb 19, 2019GrayReportStanding Committee ReportWithin three monthsGray



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WOMEN’S STRENGTH IN LOK SABHA UP TO ARECORD 14.4%Relevant for: Indian Polity | Topic: Parliament - structure, functioning, conduct of business, powers & privileges

and issues arising out of these

At 78 elected women MPs, the 17th Lok Sabha would have the highest number of womenrepresentatives ever. They would account for 14.4% of the entire strength of the Lower House,an increase from the 12.5% (65) women MPs in the last Lok Sabha.

“This is for the first time in independent India that such a large number of women MPs are sittingin Parliament,” Prime Minister Narendra Modi said in a speech to the newly elected NDA MPsand senior leaders gathered in Parliament’s Central Hall on Saturday. “This has been madepossible due to women power,” he added.

With 40 women MPs, the BJP has the largest number of elected women representatives amongthe parties because of the sheer size of its victory. It is followed by Trinamool Congress (9),Congress (6), BJD (5) and the YSRCP (4), as per data compiled by the Association forDemocratic Reforms.

However, it is the regional parties that boast of a higher ratio of women MPs in the new LokSabha. Women account for 41.6% of BJD’s 12 Lok Sabha MPs and 40.9% of the TMC’sstrength in the House. TMC supremo Mamata Banerjee and BJD chief Naveen Patnaik hadpledged to respectively ensure 40% and 33% women’s representation among their party’scandidates.

Strike rate

Women account for 18.2% of the winning candidates for Jagan Reddy’s YSR Congress Party(YSRCP). Among the national parties, women make up a mere 13.3% of the BJP’s total strengthin the Lok Sabha and 11.8% of the Congress’s MPs.

Women candidates from the BJP also displayed a high winnability ratio, or strike rate, with75.5% or 40 of the 53 women fielded by the party bagging a Lok Sabha seat. Similarly, 71.4% ofwomen candidates fielded by the BJD won and 39.1% of women candidates given a ticket bythe TMC were elected. In case of YSRCP, DMK and NCP, all women candidates fielded bythem were elected as MPs.

The 78 women elected as MPs were from a total of 716 women candidates who fought the 2019Lok Sabha elections, which is a success rate of 10.9%. This is much higher than the 6.4%success rate for male candidates.

A higher success rate or winnability factor shown by women candidates is consistent with thepast record.




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