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EC versus Govt of India

As long anticipated, the Election Commission has set itself on a collision course with the Government of India. Whatever the merits of its decision to postpone polls in Gujarat, I think it went too far in recommending President's Rule in the state.

I am happy that the Union Cabinet has decided to ask the Supreme Court for a clarification through the medium of the President, but I cannot help feeling that it is a no-win situation for all concerned. Either Gujarat shall be denied its democratic rights to be administered by a government of its own choosing, or the Chief Election Commissioner -- the man charged with conducting 'free and fair' elections in Jammu and Kashmir -- will be condemned as a bit of an ass. I can only hope the Supreme Court reacts quickly before any more bitterness is generated.

At the same time, the episode reinforces the role of the judiciary as a balancing force. It, and the Supreme Court specifically, is the one arm of the State which is almost universally trusted by everyone in India. And this makes it all the more necessary for the judiciary to police itself ruthlessly.

Of late, some judges have made the headlines for all the wrong reasons. There have, for instance, been unproven allegations that judges' wards were beneficiaries in the Punjab Public Service Commission scam. These rumours have been angrily denied by those concerned, they continue to disturb many. And now we have the strange case of the petrol pump allocations...

In the days of the last Congress regime in Delhi it was an easy matter to ensure that these allotments were made to the 'right' people. Satish Sharma, petroleum minister in P V Narasimha Rao's ministry, enjoyed a 'discretionary quota'. This was supposed to be used for the benefit of war widows, those injured while battling terrorism, and so on. It did not quite work that way to put it mildly.

Times have changed. The concept of the 'discretionary quota,' to be used at the whim of a given minister, no longer exists. Even as Congressmen scream themselves hoarse, the simple fact is that they cannot point to a single case where the current petroleum minister has signed an allotment in favour of any friend or family member. The allocations have been made by a duly constituted committee, with a retired judge as the chairman, helped by two other officers.

An interesting point is the weightage given to each member of the committee. The chairman had 200 points, with each of his colleagues having 100 points. Suffice it to say that not a single allocation could have been made without the consent of the retired judge.

What does this indicate? I put it to you that the allotments, all now cancelled (pending a judicial review following a stay order from more than one high court), were 'judicious.' Or, if not, the former judge was a party to the proceedings.

From beginning to end nobody has said that the allotments were illegal, merely that they might have been unethical. So, the chairman of the allotment committee did not participate in anything that broke the law. But this raises another question: should a member of the judicial profession, even one who had retired, have put himself into such a position in the first place?

There is no way that a judge would know the intricate details of which allottee was linked to which political party. Even a political maven would have trouble knowing all of that, but a politician would have better ways of finding out if his suspicions were correct.

I know there is a (probably well-justified) suspicion of politicians in general these days. ('Politicians are free to do what they want!' was our beloved Chief Election Commissioner's dismissive reaction on hearing that the Union Government was approaching the Supreme Court. As if bureaucrats are any more trusted!) But the politician is a necessary evil.

So it is that I put forward the radical idea that India should look beyond retired judges and superannuated bureaucrats when filling up all these commissions and committees. Don't give them to politicians by all means, but do consider other professionals too. Is there any reason, for instance, why a retired corporate official shouldn't have served on the petrol pump allocation body?

In the long run, I believe this will serve to guard the reputation of the judiciary at any rate. (How much of a name do bureaucrats have left to lose anyway?) If a retired judge is caught in an embarrassing situation, even if it isn't one of his own making, people will start asking questions of sitting judges too sooner or later. Can India afford to let that happen?

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Gujarat Elections 2002

T V R Shenoy