Back to the court
The dragon beckons again
Back to the court
Synoptic line: It throws light on issue of ongoing impeachment controversy of CJI.
(GS paper II)
- In the recent time several opposition parties had considered filing an impeachment motion against the CJI towards the end of March 2018 on the basis of his failure to address concerns raised by four senior judges of the apex court.
- However, the unprecedented rejection of the motion for impeachment has raised multiple questions, but the wider context of the unfolding spectacle includes a range of related matters.
Process of Impeachment
- The process of impeachment is described in Article 124(4) of the Constitution and the Judges (Inquiry) Act 1968. This process is the same for all judges of the Supreme Court and high courts of the country, including the Chief Justice of India.
- A judge can be removed on the grounds of “proved misbehaviour or incapacity”. Neither misbehaviour nor incapacity are defined, but would include any criminal activity or other judicial impropriety.
- An impeachment motion against the judge needs to be raised in either of the Houses of Parliament. The motion can only be admitted by the Speaker in the Lok Sabha or Chairperson in the Rajya Sabha if it has the required levels of support- 100 MPs in Lok Sabha or 50 MPs in Rajya Sabha.
- If the motion is admitted, a three-member committee is set up to investigate the allegations. The committee is to be made up of a Supreme Court judge, the Chief Justice of any high court, and a ‘distinguished jurist’.
- Once the committee prepares its report, this has to be submitted to the Speaker/Vice-President, who then also shares it with the other House.
- Both Houses of Parliament then need to pass an ‘address to the President’, asking for the judge to be removed. To succeed, this needs to be passed by a 2/3rds majority of the MPs present in each House during the vote, and must also exceed the 50 percent mark in each House.
- If both addresses succeed, then the President can remove the judge from his position by Presidential Order.
- With the Rajya Sabha Chairman rejecting the notice given by 64 Opposition members for the impeachment of the Chief Justice of India, the focus has shifted to the presiding officer’s power to admit or reject a motion. Section 3 of the Judges (Inquiry) Act, 1968, says the presiding officer may admit or refuse to admit the motion after holding consultations with such persons as he thinks fit, and considering the material before him. The law is open to interpretation on whether he can reject the motion on merits without sending the charges to a committee for investigation.
- The Rajya Sabha Chairman and Vice-President M held there is little merit in any of the accused charges. He has cited the Supreme Court ruling in M. Krishna Swami v. Union of India (1992), which directed the Speaker (or Chairman) to act with utmost care, circumspection and responsibility and to keep equally in mind “the seriousness of the imputations, nature and quality of the record before him, and the indelible chilling effect on the public administration of justice and the independence of the judiciary in the estimate of the general public”.
- Taking the matter to court may result in a judicial resolution, but it is unlikely to end the controversy over the functioning of the Supreme Court, an issue that has unfortunately assumed a very political and polarised character.
Question –Discuss the process of impeachment of chief justice of Supreme Court. Explain whether the process have any implications for judicial independence or not?
Synoptic line: It throws light on the issue of the Fugitive Economic Offenders Ordinance, 2018.
(GS paper II)
- The Union Cabinet approved the promulgation of the Fugitive Economic Offenders Ordinance, 2018, which would empower the government to seize the domestic assets of those deemed by a court to be fugitive economic offenders.
- The ordinance would lay down the measures to empower Indian authorities to attach and confiscate proceeds of crime associated with economic offenders and the properties of the economic offenders and thereby deter economic offenders from evading the process of Indian law by remaining outside the jurisdiction of Indian courts.
- The ordinance has a provision for a ‘Special Court’ under the Prevention of Money Laundering Act, 2002, to declare a person as a Fugitive Economic Offender.
- A Fugitive Economic Offender is a person against whom an arrest warrant has been issued in respect of a scheduled offence and who has left India so as to avoid criminal prosecution, or being abroad, refuses to return to India to face criminal prosecution,” the release said. “A scheduled offence refers to a list of economic offences contained in the Schedule to this ordinance.”
- In recent weeks, banks have been asked to mandatorily collect passport details of those borrowing above ₹50 crore, and the passports of some wilful defaulters are being impounded too.
- While presenting Budget 2017-18, the Finance Minister referred to instances of offenders fleeing the country to escape its justice system, and said the government was looking at a law to confiscate the assets of such persons till they return to face the law.
- By September, the Finance and Law Ministries had agreed on a draft Bill, but it was only introduced in the Lok Sabha this March, in a session that proved to be a washout. The government is no doubt conscious of the clamour for tough action on absconding offenders, particularly those involved in financial misdemeanours and wilful defaulters of bank loans.
- In the recent incident diamond merchants Nirav Modi, the government agencies have attached the diamond merchant duo’s assets in India, but an American court has disallowed the sale of their assets in other jurisdictions while allowing their U.S.-based entity to offload its assets.
- The reason: India is yet to pass a model law mooted by the UN for cross-border insolvency cases. It is not clear whether this ordinance can tide over this major handicap. The government may have opted for the ordinance route to deflect the heat from these cases of fraud.
- The ordinance is expected to re-establish the rule of law with respect to the fugitive economic offenders as they would be forced to return to India to face trial for scheduled offences,” the release added. “This would also help the banks and other financial institutions to achieve higher recovery from financial defaults committed by such fugitive economic offenders, improving the financial health of such institutions.”
- Also to ensure that the court is not over-burdened, only those cases where the total value involved in such offences is Rs. 100 crore or more will be within the purview of the ordinance.
- India needs to present a coherent vision about its plans to bring back those fugitives who have already got away and plug the remaining loopholes in the system.
Question – Critically examine the provisions of the Fugitive Economic Offenders Ordinance, 2018.
The dragon beckons again
Synoptic line: It throws light on the issue of India-China issue.
(GS paper II)
- The course of India-China relations in the past couple of years had created a public narrative of bilateral frictions over CPEC, Doklam, our Nuclear Suppliers Group membership and other issues, on which India had to take strong public positions.
- Against the background of turbulence in global geopolitics and some domestic disquiet about “softening” of India’s China policy, the Indian Prime Minister is going to visit China in the recent week.
- Though, the international backdrop is worrying in many respects. But there is also a lurking danger that miscalculation or brinkmanship might spark off a direct conflict at a local level.
- 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. It now emerges that prior communication to the Russians had ensured that equipment, personnel and civilians had been evacuated in advance.
- 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 impart a sharper edge to the confrontation. This weapon was not wielded in anything like this form in the Cold War; its impact could be far more devastating in today’s globalised world.
- 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.
- Also India is being asked to address its trade surplus of about $25 billion with the U.S., Mr. Trump asked China to reduce its massive trade surplus of about $375 billion with the U.S. by just $1 billion! He probably meant $100 billion, as has been suggested by his Administration, but it is worth noting that 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 itself, running a trade deficit of over $50 billion with China, is in difficult negotiations on the Regional Comprehensive Economic Partnership (RCEP), a free trade grouping that includes China, ASEAN (Association of Southeast Asian Nations), Japan, Korea, Australia and New Zealand.
- Also, the sharpening of U.S.-Russia acrimony has complicated India’s relations with both countries. Besides pressure to address the India-U.S. trade imbalance, 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.
- Countries do not publicly admit adverse asymmetries in relations, but their policymakers have to factor them into their policies and actions. Of course, even countries in adverse asymmetric relationships have levers which can and should be used to further their vital interests. In most cases, this is best done through quiet dialogue instead of public airing of differences, which hardens attitudes.
- 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, even as we deal with the wrinkles in our relations with the other two great powers. China’s motivation in extending the olive branch may be similar: to maintain serenity in relations while it deals with its other challenges.
Question – Foreign policy can be pursued far more effectively when it is supported by public perceptions. 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.