Hindu Editorial Analysis 25th April 2018

THE DRAGON BECKONS AGAIN

News :-

• Prime Minister Narendra Modi is going to China on April 27.

Background :-

• Some domestic disquiet about “softening” of India’s China policy.
• Turbulence in global geopolitics and as The face-off between the U.S. (and its allies) and Russia is arguably worse than during the Cold War. They confront each other, through proxy forces, in three active conflict zones — Ukraine, Syria and Afghanistan. The recent U.S.-French-British missile strikes in Syria were a stark reminder. .

US imposition of Sanctions on Russia :-

• According to the new U.S. legislation, CAATSA (Countering America’s Adversaries Through Sanctions Act), under which it can impose sanctions on any company which engages with Russia in the defence or energy sector & Recent American sanctions on major Russian multinationals, whose stocks are internationally traded, widened the target beyond Russian oligarchs to a larger body of shareholders within and outside Russia.   

Impact on India :- 

• India has been warned that its defence and energy links with Russia could attract U.S. sanctions under CAATSA — a development which could have a major impact on our defence preparedness. 
• Russia’s intensifying defence cooperation with China and its actions in Afghanistan and with Pakistan are areas on which serious and delicate high-level India-Russia dialogue is being pursued.

Trade issues with USA :-

• India is being asked to address its trade surplus of about $25 billion with the U.S.
• Whereas China is being asked to reduce its massive trade surplus of about $375 billion with the U.S. by just $1 billion! 

In 2017 alone, the U.S.’s trade imbalance rose by about $28 billion. America’s decision to withdraw from the Trans-Pacific Partnership (TPP), a free trade grouping excluding China, effectively benefited China.

India - China :- India itself, running a trade deficit of over $50 billion with China, is in difficult negotiations on the Regional Comprehensive Economic Partnership (RCEP).

Unpredictable U.S. Foreign Policy :-
Mr. Trump withdrawal from the TPP and uncertain about the consistency of U.S. policy in the south-asia region led

• Japanese Prime Minister Shinzō Abe (Closest ally of US) and Mr. Xi to exchange visits in the near future. Japan (like India) is concerned about China’s assertiveness in its neighbourhood and the geopolitical implications of its Belt and Road Initiative (BRI) but Mr. Abe sees benefit in sustaining a dialogue with China after US unpredictable policy.

Mutual interest in Peace :-
With a strengthening Russia-China axis and with the U.S. taking its eye off China to deal with Russia, it is prudent for India to maintain a harmonious dialogue with China. China’s motivation in extending the reconciliation may be similar, to maintain peace in relations while it deals with its other challenges like

• Chinese designs in our neighbourhood — from Doklam to the China-Pakistan Economic Corridor (CPEC), Nepal, Bangladesh, Sri Lanka and the Maldives. 
• Larger geopolitical threat posed by the land and sea corridors of the BRI to India. 

Importance of Public Messaging :-

• It is a valid point that the public messaging on this change in tone of the India-China relationship could have been better.
• The transformation in the international environment, creating opportunities for non-confrontational dialogue, could perhaps have been better explained. 

Foreign policy can be pursued far more effectively when it is supported by public perceptions.

Conclusion :- India has to maintain a pragmatic balance in its relations with the three major powers, remaining conscious of the fact that elements of these relations will be continuously impacted by the dynamic flux of today’s global geopolitics.

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MASTER OF THE NEXT STEPS

Issue :-

• In an unprecedented move, seven Opposition parties finally initiated the process to impeach the Chief Justice of India (CJI), Dipak Misra where as Vice-President, and Rajya Sabha Chairman, Venkaiah Naidu has rejected the motion. 
• Whether the Vice-President can himself examine the merits of the impeachment motion in itself is debatable as this is the job reserved for the inquiry committee under the Judges (Inquiry) Act,1968. 
• All judges are equal and seniority has no bearing on the constitution of Benches but Equality also means that senior judges be treated equally with junior judges. Their exclusion from all constitutional Benches has certainly sent the wrong signals. Moreover, all important matters have been reserved for the CJI.

On the Bench :-
One charge against Justice Mishra pertained to the arbitrary use of his powers as ‘master of the roster’. & there are several incidents like :-

• On April 11, a three-judge Bench headed by the CJI had given a judgement upholding absolute power of CJI in the constitution of benches. 
• A similar order was passed by a five-judge Bench again headed by the CJI in November 2017, when for the first time in the Supreme Court’s history, administrative powers were used within 24 hours to overrule a judicial order of a Bench, in this case headed by Justice J. Chelameswar. 
• Another two-judge Bench of Justices A.K. Sikri and Ashok Bhushan is scheduled to hear Shanti Bhushan’s petition later this week. 

Thus, Bench constitution is at the core of current crises and something must be done about it without attributing motives to the CJI. Thus if civil liberties are seen to be under threat due to potential abuse of powers by Chief Justices, a review of earlier judgments like Prakash Chand (1998) that held the Chief Justice as an ‘absolute’ master of the roster should be urgently taken up.

Constitutional Provisions :-

On Judiciary :- Constitutionally speaking, the judiciary is not ‘state’ under Article 12 but

• In Naresh S. Mirajkar (1967), the apex court itself made a distinction between ‘judicial’ and ‘administrative’ powers of the court. 

Thus when the CJI acts in his ‘administrative’ capacity, his actions are certainly subject to fundamental rights, including the right to equality.

On equality :-
Right to equality includes right against arbitrariness.

• In E.P. Royappa (1973), the Supreme Court itself expanded the protection of equality when it observed that “From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch.” 
• In Tulsiram Patel (1985), the Supreme Court itself held that non-observance of the principles of natural justice too violates right to equality. 

Thus the CJI’s participation in cases about his own powers has not gone well with those who believe in the fundamental rule of natural justice that ‘no one shall be a judge in his own case’. His recusal could have enhanced his own credibility and saved the judiciary from the crises.

Supreme Court Rules 2013 :-

• The Supreme Court Rules, 2013, framed under Article 145 of the Constitution, do state that CJI is master of rolls but since constitution of Benches is an ‘administrative’ function, this function cannot be exercised at the CJI’s whims and wishes. 

Thus the cherry-picking in Bench constitution may not be violative of ‘the rule by law’ but is definitely contrary to the ideals of ‘the rule of law’. Spirit of law at times is more important than letter of law.

Prem Chand Garg Case (1962) :-

• In Prem Chand Garg (1962), the apex court held that rules made by the court violative of fundamental rights may be struck down as ultra vires of the Constitution. 

Thus if the rule of the CJI being master of rolls is used in an arbitrary manner, such a rule should either be read down or there should be safeguards built into it.

Conclusion :- The CJI yet again has this opportunity today which he should proactively use to bring in real reforms by amending the Supreme Court Rules on constitution of Benches but Let the CJI himself come forward in leading the process of developing the mechanism that will exclude the remotest possibility of arbitrariness by future CJIs.