Not a healthy start

By Cleofato A Coutinho
03 July 2014 11:18 IST

The central government completed a month in office. A month is too short a period to assess the performance of any government. Serious parliamentary work has not begun. Fresh policy formulation on major issues has also not started. On completion of 30 days, the prime minister almost complained that he has not been given the normal honeymoon period. Narendra Modi came to power on media hype and will be scrutinized by that standard. The scrutiny shall be more intense due to the euphoria built around the victory. However a month in office may be a period to make critical analysis of the start and certain decisions which could have been avoided in furtherance of good governance.

The issue of governors could have been better handled particularly after the 2010 judgement of the apex court. The massive mandate had given an opportunity   to look at the position of governor from a nontraditional perspective of patronage.  To my mind, two serious legal issues that could have been avoided are the (a) the ordinance to amend the TRAI Act permitting ex of TRAI Chairman to become principal secretary to PM and (b) unnecessary controversy that has maligned the institutional integrity of the higher judiciary over the non elevation of Gopal Subramanyam.

It is now considered fair, that the judges of the High Courts and Supreme Court must not be permitted to occupy any office after their retirement like UPSC chairman. The present finance minister Arun Jaitley, as leader of opposition has often told us his embarrassing   experiences as the former law minister when he had to decide on certain postings. The TRAI chairman is a powerful position both in the corporate world and the government and in order to avoid misuse of power and creation of a post retirement quid pro quo, it was mandated that the chairman would not be entitled to hold office thereafter. That salutary principle needed to be emulated not only for judges but for all powerful offices.  By the ordinance the present government did away with that salutary principle sending a wrong signal on governance and ethical principles.

Bringing in of laws through the ordinance route was kept in the constitution only to deal with emergent situations which cannot wait for the parliament to meet. It is does not stand to reason as to why only Nripendra Misra had to be  principal secretary to the prime minister, that too when he was disqualified and had to be brought by changing the law.

The cacophony around the non appointment of Gopal Subramanyam was unwarranted. There is talk of the present government’s preference for a committed judiciary. There is almost unanimity in the higher legal fraternity in respect of eminence, competence and integrity of Gopal Subramanyan. He quit the post of solicitor general on the matter of principle. He took as an affront the request of the then law minister Kapil Sibal to R.F. Nariman to represent the prime minister in a matter which was till then represented by him. In 2011 he refused to be a judge of the Supreme Court to avoid a taint of nepotism as a relative happened to be in the Supreme Court.  

The succeeding government blocked his elevation. There is also unanimity that it was his ‘fierce independence’ that cost him the elevation. Mr. Gopal Subramaniyam has attacked the government for ordering the CBI to search for ‘muck’ against his to stop his elevation. The allegation that his character was deliberately sullied by leaks to media finds universal acceptance.

Under the system in place the government is certainly entitled to have its say but to depend on the type of accusations by the intelligence agencies when same agencies engaged his services  in extremely sensitive cases even after he quit as solicitor general  goes on to prove that there is something more that meets the eye.  The Intelligence agencies were always accused by BJP of doing a hatchet job for the ruling party.

As Amicus Curiae in the Sohrabuddin fake encounter cases Shri Gopal Subramanyam played a stellar role in sending the case from Gujarat police to CBI and convincing the apex court to extern Amit Shah from Gujarat for almost for two years. If the belief that the Sohrabudin case that cost him the elevation, – it is only because the type of allegations against a proposed Supreme Court judge are not even worth the paper they are written on.

It is shameful that the belief, being independent and honest is actually a disqualification to be a judge, is gaining ground. Another message that goes around is – those who do not toe the government line, the intelligence agencies could be used to bring them around. Is that type of society that we wish to build where there is no place for free thought?

 In 1973, after Mrs. Gandhi lost major battles in the Supreme Court she is supposed of have ordered her law minister to manage the apex court by what is called a ‘committed judiciary’ – committed to the government of the day. After 40 years, similar talk of a committed judiciary is doing around. In this case there is a view that by allowing delinking Gopal Subramanyam’s name from the three others, the Supreme Court itself has let down the man who it perceived to be honest, competent and whose integrity was beyond doubt. When the executive is powerful, the higher judiciary steps aside. Even during the infamous emergency, the Supreme Court let the country down!

The two controversies tend to fritter away the enormous goodwill brought by the landslide victory. 

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Cleofato A Coutinho

Cleofato Almeida Coutinho is a senior lawyer and one of the constitutional expert in Goa. A member of Law Commission of Goa, he also teaches at Kare College of Law in Madgao.

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