Danger: When an institution crosses the limit By H K Dua

H K Dua (Nominated,MP,Rajya Sabha):  Sir, in our Constitutional scheme of things, there is a clear demarcation between various institutions – namely, Parliament, the Judiciary and the Executive.  Whenever any organ  of the State, any one of these three, exceeds its limits, the people sense danger.

In the 1970s, there was a talk of committed judiciary.  And later, of the supersession of judges. An eminent Judge, Justice H R Khanna, resigned on a matter of principle and conscience.  There was turmoil and the people were concerned because the Executive, at that time, was crossing the limits prescribed for it.

In the 1993 Judgement, the judiciary had crossed the limits.  The Brother Judges went on to appoint the Brother Judges.  And, you know, when Brother Judges appoint other Brother Judges, nepotism creeps in, favouritism comes in, and, in a Collegium, there can be instances of bargaining taking  place between one Judge and another Judge, with a Chief Justice taking  a better share.

Justice J S Verma was on the 1993 Bench, which set up the Collegium, a novel institution, which is not prescribed in the Constitution.  He was for setting it up.  Later on, he regretted this decision of the Supreme Court in public.  I think, he appeared before the  Parliamentary Committee and also  expressed this view. Also, in public statements, and in private conversations, he went on saying that a wrong decision was taken by the Bench in 1993, of which he was a Member. His regret was that the Supreme Court approved of a Collegium.

Sir, nowhere in the world the judges appoint themselves.  Always, it is an Executive decision but there are checks on the misuse of the Executive power.  That aspect, I think, is taken care of by the Judicial Appointments  Commission, which is being provided for.

Sir, I won’t take much time.  But, I would say that there has been considerable lobbying with the Collegium members by judges from all over the State High Courts. Those who are aspiring to be Supreme Court Judges, don’t leave any stone unturned to get into the Supreme Court. In the High Courts they retire early and since they want to be in the Supreme Court, they visit the houses of the Collegium members, try to bring influences of all kinds. String pulling is the name of the game in Delhi. That kind of culture which prevails in the judiciary leads to malpractices, should be corrected.

The quality of justice has declined in the country in the process.. I would like to cite two or  three cases. For example, take the Jessica Lal case, or the  Priyadarshini  Mattoo case.  Now, there was miscarriage of justice. Only after public concern and the media noises, ultimately, the superior courts had to intervene, the highest court had to intervene to provide justice.  Also, I can’t understand as to how in the trial courts, and, at even at High Court level, a BMW car became a truck along the way, and, the man who killed six people on Lodhi Road in the capital of India got away very lightly.  This is because the right kind of people are not being appointed in the highest judiciary.

Sir, the Collegium has never laid down the criteria for appointment of judges to say, as to what kind of judges you need in  High Courts or in the Supreme Court. The Delhi High Court has come out with judgements which spell out criteria even  for admission to nursery schools. But the people do not know as to what criteria are there for getting admission into the High Courts or the Supreme Court . (Time-bell). Just half-a-minute more, Sir. That is all.

H K Dua (contd): Sir, I am a little worried when a recognised organ of the state exceeds its limit and when a recognised organ of the state thinks that whatever it says, is always right. I get equally worried about the individuals  who think they are always right, worried about the institutions when they think they are always right.  Now, this aberration of a Collegium.  It was wrong on the part of the Supreme Court to arrogate to itself the power to appoint  judges — is being set right in the Constitution, and that is why I support this Bill.

Thank you very much, Mr Deputy Chairman.


(Transcript of a speech by H K Dua during the debate on the Constitution Amendment Bill to set up National Judicial Appointments Commission in the Rajya Sabha on August 14, 2014.)

Defence: The need to fill the gaps

Transcript of a speech by Mr H K Dua made in the

Rajya Sabha during the budget debate  on July 23, 2014

H K Dua (Nominated): Mr Vice-Chairman, Sir, it is an interesting debate that has been going on for hours and it will continue tomorrow. I will pick up an aspect which has not been touched so far.  A chunk of the Budget relates to Defence and cannot be neglected.

Sir, It is an interesting situation in the country that the Defence Minister is also the Finance Minister.  It can be used very creatively.  But I find from the Budget and the allocations for Defence that while the Defence Minister has been demanding greater allocation, Finance Minister, Arun Jaitley, has been cutting into the demand and reducing the expenditure. I don’t know on how many projects and how many schemes he has been conservative and become more pragmatic. I thought as a Defence Minister, Arun Jaitley should be more demanding, and, as a Finance Minister, he should be less restrictive. But he must be having some compulsions.

The Defence expenditure should be related to two specific factors – one is the present threat to the country’s security; and the second is, what is the likely scenario over the next few years and how far we are prepared to meet future threats.

Unfortunately, no Government, in the past or till now, has really spelt out its own assessment of threat to the Defence forces – leave aside to the country –  or explained that  this is the threat perception over a period of time and this is what we are going to do, or want to be done. That would have helped the Defence forces, if they do it; even now it is not too late; and it helps the country to prepare in advance, allocate resources, make plans and detailed preparations to meet any threat.

The security situation at present is not congenial for us.  We continue to face the two front situation – in the West, from Pakistan and China from the North.  Both are nuclear powers and both are not well disposed to us as it is often comes out in public statements.  Along with these, there is a threat from terrorism.  That is an additional threat.  The country would like to be assured that this kind of Defence Budget ensures the kind of security in the present environment.

Sir, the increase in the Defence Budget over the previous year is 12.4 per cent. It is hardly an increase.  It is almost peanuts. A chunk of it goes to increase in the salaries and pensions; and a very limited amount is left for fresh expenditure. A paltry Rs 5000 crore have been provided for modernization, badly needed by the three Services. We are not having the kind of technology which a country like India should be having, with its ambitions to become a major power of 21st century – political, economic, military and even nuclear. This Rs 5,000 crore – just 5,000 crore! –for modernization is a very limited amount which the Finance Minister has provided for. This needs to be relooked even under the present economic circumstances.

Mr Vice-Chairman, we need to attend to the needs of Air Force and Navy.   I will particularly emphasize, the Navy, considering how China is venturing into the Indian Ocean and developing its Navy, Blue Water Navy, to reach right up to African coast.  They have got a base south of Burma; they have facilities in Sri Lanka, and in the Indian Ocean they are reaching otherwise also to Gwadar, the port they have developed for Pakistan – basically for themselves – and they are also trying to avail facilities in Seychelles and Eastern Coast of Africa.  The threat to India’s coast can become considerable over a period of time.  So, we have to spend more on the Navy.  We have a new aircraft carrier which is welcome, but much more needs to be done to make the Indian Navy a more effective Force.

Sir, in the last two years, the Navy has suffered as many as 17 accidents. Some of our ships, particularly submarines, have got damaged; our effective submarine strength has got depleted in a way.  That needs to be set right rather speedily, otherwise, it would be a dented Navy trying to meet a developing threat. Of the inquiries which have been conducted into the naval accidents, only four or five have come to some conclusions; all others are still going on, according to the Defence Minister’s reply to my question the other day in this House.  I want to know, why these inquiries, in a vital area should take that long.  I think, the Government needs to look into why the Navy should take that long to finish its inquiries and take necessary steps.

Sir, there are several key plans which have not yet been fully  implemented.  Thoughtfully, we did provide for another strike corps for the Eastern sector to meet the Chinese threat.  There is also a need for a second strike corps for the Western sector — for Ladakh and adjoining areas. I don’t think Parliament will grudge allocating extra money for doing that kind of an exercise urgently, because it takes about five years to develop a strike corps.

Sir, the Naresh Chandra Committee Report, recently, is said to have recommended three special commands to meet new kinds of threats. One is an Aerospace Command; another is a Cyber Command.  We face considerable cyber threat from the Chinese, and  some others also, who could launch a cyber attack on our facilities, which can be dangerous, can immobilize our capabilities. The third command in the Naresh Chandra Committee Report, which has not yet been made public but which is fairly in public domain, is that there should be a special command to counter terrorism. What it should do, how it should do, we don’t know, but there should be a separate command to counter terrorist threat coming from outside, which, for us, is a major challenge.

Sir, there is another proposal in the drawer. Over the years, no decision, has been taken and it calls for it, one way or the other.  The Kargil Review Committee had recommended a Chief of Defence Staff, who could integrate or coordinate the working of the Army, the IAF and the Navy.  A decision on the proposal has become urgent.  Most countries have gone in for a Chief of Defence Staff. We, with the large Army,  fairly large Air Force and a fairly large Navy, which is yet to be modernized in many ways, need a Chief of Defence Staff who could integrate the functioning of these forces.  Who it should be –  whether it should be, at times, the Army, the Air Force or the Navy – all those things could be worked out – but there ought to be this kind of a set up where integrated, coordinated decisions are taken without delay.  Of course, it has to remain accountable to the civil authority. (Time–bell). I will just take a couple of minutes.  Sir, I am conscious of the time factor.

Sir, the Budget provides for mere Rs 1000 crore for one rank-one pension.  It goes some way to meet the demand of ex-Service personnel but not all the way. I think, it is better to be through with that problem, which has been hanging fire for a long time. It affects a large number of people who have retired and who think they have been discriminated against in getting their due pensions.

What else do we need to do?  It is a long list, but I won’t take that much time. May be Parliament’s Standing Committee could look into these issues; may be we could talk about it when a regular debate on Defence is held, which is unlikely during the next couple of sessions. I don’t find this session provides for a full debate on the Ministry of Defence. It is a pity. The Budget allocations need to be relooked and possibly, some rearrangement can be made in the figures, depending on priorities.

Luckily, this Budget is possibly valid for only the next eight months. Maybe, the Defence Minister – or the Finance Minister – is working on an eight month time-scale.  But, in the November winter session of Parliament, if they come with a Budget, they should take care of the various kinds of threats, the kind of expenses we ought to incur and we are not able to incur.  And I plead the allocations should be seriously relooked into. Let there be a supplementary Budget in the Winter Session of Parliament. I am sure Parliament will not deny the Defence Minister or the Finance Minister the funds required.

Thank you, Sir. I am through.