THE HIMALAYAN MAIL QTHURSDAY Q SEPTEMBER 17, 2020 6 THE EDITORIAL PAGE PAK’S ANTICS Judiciary is being disparaged for akistan’s obsession with India as an enemy and especially PKashmir will become the cause of its fall. The country has lost stature, personal and political gain friends, and opportunities and goodwill of the world because of its involvement The Supreme Court is not a political organ of the state. To attack the independence of the Supreme Court in terrorism and blatant anti-India pos- and to continuously attack its authority is the true unravelling of the rule of the law. Hitesh Jain (NJAC) or the Goa mining case, the ing rule of law. for their decisions, or referring to their turing. Like in the latest meeting of the udicial independence goes hand Supreme Court gave verdicts that can- The judiciary has surprisingly been ac- caste, or saying that the judiciary was National Security Advisors of the in hand with judicial account- not be deemed as favourable to the gov- cused of being overly aggressive against subservient to the government or toeing Jability. However, some have ernment. Similarly, in the Aadhaar case, a certain political dispensation when it a party line, cannot be construed as le- Shanghai Cooperation Organisation at confused judicial independence with the although the Supreme Court upheld its was in power. Observing the rule of law gitimate criticism. Seeking recusals on- Moscow, it deliberately used a map proclivity to strike down legislation or constitutional validity, the judgment and calling out illegality is not bias. The demand as seen in the Judge Loya case showing the Indian territory as its. executive action in a cavalier fashion. went against the government’s policy quashing of a Central Vigilance Com- or on the PIL on Assam’s detention cen- The job of the judiciary is to be account- objective of stemming leakage, while af- missioner (CVC) appointment was not tres are prime examples of wanton poli- Such forums are not for raising bilater- able by dispensing justice. But some fecting the then-nascent fintech industry. a political decision — it was a result of tics for ulterior motives and creating al issues since the mandate of the SCO self-anointed people feel the judiciary The Supreme Court also struck down procedural illegalities surrounding the doubt where none exists. should be accountable by playing to the the Reserve Bank of India’s framework act in question. Similarly, quashing the One must be able to distinguish be- is for international and multilateral galleries. This is understandable, given resolution plan for debt recovery that spectrum allocation or striking down tween a narrative of distrust being ped- cooperation. All the member countries how they were disappointed with the na- was proposed to ease the pains related the allocation of coal mines was an act dled for personal and political gains tion’s rejection of a listless political oppo- to stranded assets. of calling out the loot of India’s re- from reality. The Supreme Court is not a try to build bridges and cultivate each sition. This does, though, raise ques- Some people have expressed their sources. political organ of the state. It is not the other for businesses and to find com- tions on the logic behind their covert grief at certain Supreme Court judg- Those making deprecating comments duty of the Court to appease the aspira- mon grounds. So, in a way, it’s an demand for a remote control on the judi- ments or the lack of appointment of about the judiciary should realise that tions of political proxies and under no ciary. judges of their choice despite the gov- an independent judiciary is a basic fea- circumstances can retributive attacks on opportunity for all member countries to The people of India have believed that ernment having a very limited role in ture of our Constitution. It is the its integrity and independence be con- understand each other’s perspective on the venerable judges objectively dis- such appointments. Moreover, we have guardian and protector of our funda- doned. To attack the independence of pense justice. Now, there is an ongoing certainly not witnessed an aggressive mental rights, a role which, barring the Supreme Court and to continuously international issues and not a forum for attempt to browbeat the judiciary mani- government, as we did during the dark some exceptions, it has performed with attack its authority is the true unravel- bringing in their pet hates or national festing itself in the uncalled-for attacks days of the Emergency. It would be a courage and vision. Issuing threats such ling of the rule of the law. Moreover, obsessions. NSA Ajit Doval rightly on the Supreme Court. travesty if anyone denies that during the as impeachment for deemed “misbehav- lawyers and politicians seeking to cast There are multiple recent examples to Emergency, all bail applications were iour” is a serious matter and not to be aspersions on the independence of the walked out of the digital meeting in demonstrate how the judiciary has stood rejected by the courts, despite their used so casually, as it can adversely im- judiciary ought to remember that the protest against Pakistan’s misuse of the contrary to the government of the day. awareness of the falsehood of those pact the judiciary by questioning the Supreme Court is not a vessel to navi- Be it the striking down of the National cases. That is a classic example of when trust of the nation in the institution. gate the seas of their personal ambi- platform for its anti-India campaign. Judicial Appointments Commission the courts abdicated their role in enforc- Therefore, imputing motives to judges tions. Islamabad has ruined itself on security and economic front because of its obsession. Its successive regimes used To be a ‘constant irritant’ to untrammelled terrorism trying to give India death by thousand cuts, believing in its own power is the very essence of judicial duty rhetoric that USSR was defeated and Upendra Baxi Article 368’s amending power to the implied bandied about in marbled halls say much but Kenya’s Supreme Court has probably said divided through this. Its successive limitation) and Ray 6 (conceding all plenary fail to achieve as much.” the last word. In nullifying President Uhuru regimes spent millions and invested all ot many who speak, write, or think powers of amendment including repeal of the In Waman Rao, he performed a constitu- Kenyatta’s election for a second term (while about religion and law recognise how Constitution). This made the task of ratio tional miracle by validating all amendments also giving 50 days to plan and hold free and the energies into hating India. What is Nreligious institutions have affected hunters difficult and they were not enabled retrospectively and achieved this feat by in- fair re-election, whose results in the incum- tragic is that its Army used poor and the law and shaped interpretation in enduring by the heroic Justice H R Khanna. Still, the voking the BSEF doctrine. Closely read, the bent’s favour were later upheld), Justice ways. His Holiness Swami Kesavananda basic structure and essential features (BSEF) discourse in, and since Kesavananda, insists Maraga said: “However burdensome, let the radicalised youth of Pakistan to become Bharati Sripadagalvaru, then a senior head govern now the political and juristic destiny of that basic structure is the power of judicial majesty of the Constitution reverberate of Edneer Mutt in Kasaragod district Kerala, Indian constitutional development. review and essential features are what the across the lengths and breadths of our jihadis and go to Kashmir for fighting made possible the landmark decision of the Theological fervour animates the BSEF dis- Court identifies as such in exercise of that motherland; let it bubble from our rivers the Indian Army. Islamabad is the only Supreme Court (though other petitions were course. Justice Y V Chandrachud, while up- power. For example, Justice Bhagwati re- and oceans; let it boomerang from our hills also bunched together). I call the judgment holding the absolute amending power, had markably enunciated as an essential feature and mountains; let it serenade our house- country in the world that deliberately the second most important text after the to invent a resounding judicial curse: “We the “harmony” between fundamental rights holds from the trees; let it sprout from our Constitution of India. have given you vast powers for the welfare of and directive principles. Similarly, Parlia- institutions of learning; let it toll from our pushed its youth into death traps as the The mutt is believed to have been established the country, but woe betide you if you mis- ment amended Part III — deleted the right sanctums of prayer; and to those, who bear agencies involved in raising and push- by Thotakacharya, among the first four disci- use these powers”. And Justice S N Dwivedi to property under Article 31 and demoted it to the responsibility of leadership, let it be a ples of Adi Shankara. It blossomed under his spoke of the “reverence for the Constitution” the status of mere constitutional right. The constant irritant.” ing them into Indian for jihad know it leadership. No mukadamabaz himself, Ke- as a public virtue. In the assembly dissolu- crucial message though is that the apex court The seer would have agreed. The ultimate well that they will be killed sooner or savananda Bharati protested the validity of tion case, Justice P K Goswami described the has, in the rarest of rare cases, the constituent message of BSEF doctrine is not merely to the 29th amendment which immunised, in Supreme Court as the “last resort for the op- power to pronounce a constitutional amend- set limits to the power of the managers of later. the Ninth Schedule, Kerala’s takeover of the pressed and the bewildered” citizens of In- ment invalid. people, but to make little by little the tasks of mutt’s property. The seer lost the battle but dia. Kesavananda, and its progeny, has yet to This scarcely means that the Supreme Court emancipation less onerous. The BSEF does After August 5 big changes in Jammu won the war because the amending power be visited as constitutional secular theology of may exercise its power just as it pleases. The not betoken any arrogant judicial overreach and Kashmir, it appeared that many was made subject to the basic structure. law. Court is bound by the “golden triangle” of or sovereign judicial despotism as the Court The legendary barrister, M K Nambiar, a na- As the chief survivor of Kesavananda, and rights created by Articles 14, 19, and 21 of the has not obstructed the tasks of just devel- Pakistanis have becomes conscious of tive of Kasaragod, and father of K K Venu- also as the longest-serving CJI, Justice Y V Constitution. Further, the Court must derive opment and governance. It has shown con- the self goals that their country had gopal, now the Attorney General of India, Chandrachud developed the doctrine in chis- the “spirit” of the Constitution by scrupu- siderable accommodation for executive and persuaded Kesavananda Bharati to consult elled prose and with the strict discipline of a lous and meticulous reference to the provi- legislative power. But to be a “constant irri- been making on Kashmir and losing the Nani Palkhivala, who then urged before the constitutional soldier. Cases like Raj Narain, sions of the Constitution. Since l973, the ev- tant” to untrammelled power is the very Supreme Court that the seer’s rights to reli- Waman Rao, Minerva Mills mark the pil- idence shows the Apex Court has shown essence of judicial duty. The BSEF rules that match too. Now it appears, the estab- gious freedom, equality, and property were grim’s progress to the shrine of basic struc- utmost democratic responsibility and rec- constitutional dismemberment is not al- lishment is so frustrated that it’s resort- violated. The seer later described the verdict ture. Boldly questioning Parliament’s ple- titude in interpreting the doctrine of BSEF, lowed in the name of an amendment. Per- as “God’s decision” — it was so to many people nary power to accord primacy to all Directive perhaps more than can be said of other missible remains the enhancement of the ing to quixotic ways like using a fabri- of faith. The seer passed away on September Principles over Articles 14 and 19, Justice branches of co-governance. arcs and arts of governance, but if only ex- cated map to poke India. Where will 6. Chandrachud said in Minerva that an eter- The spirit of the Constitution is a vexed posed to the “constant irritant” of constitu- A hearing for 68 days by the full court of 13 nal deferral of constitutional promises invites question. But my favourite passage is Para tional good governance. Truly a “God’s deci- this approach lead Pakistan to? justices yielded 11 separate opinions com- “a lurking danger that people will work out 399 in Raila Amolo Odinga (2017), where sion”, as the seer said. monly grouped together as Sikri 6 (subjecting their destiny”. He poignantly added: “Words Chief Justice David Kenai Maraga of With high inflation, capital inflows, currency appreciation, tough decisions are needed It has allowed large capital inflows, the money multiplier. But if the RBI Rajeswari Sengupta then intervened in the foreign ex- continues to ignore the Impossible change market to prevent the ap- Policymakers in all sophisticated economies face trilemma, it will eventually fail. n a recently released report, the preciation of the rupee. These ac- There are two main ways this could Reserve Bank of India men- tions are incompatible, and will this trilemma, forcing them to make choices about happen: It might need to give up on Itioned that an appreciating cur- eventually generate a serious policy its exchange rate objective, as the rency will help contain imported in- dilemma. recently released report hints. Or it flationary pressures. This has given One of the corners of the trilemma which targets they are going to pursue. might need to give up on its infla- rise to a fervent debate as to has to do with capital inflows. In the cial borrowing (ECB) by Indian cor- June, RBI’s net dollar purchase in by buying government securities tion objective. whether the RBI is no longer able to first few months of the pandemic porations. the spot market was to the tune of through its open market operations Both would be problematic. Ex- handle the Impossible Trilemma. and the associated lockdown, the At the same time, the combination $14.4 billion. In June, its net pur- and targeted liquidity injection pro- change rate appreciation will fur- The Impossible Trilemma, an im- Indian economy witnessed a net of weak economic growth, lacklus- chase in the forward market was grams such as the T-LTRO. In the ther damage the already hard-hit portant paradigm of open economy outflow of foreign portfolio invest- tre domestic demand, and low oil more than $4 billion. As a result of last couple of months, some of these export sector. But allowing high in- macroeconomics, asserts that a ment (FPI). However, this trend has prices have shifted the current ac- the RBI’s currency trading, India’s operations have been neutral, such flation is even more of a problem in a country may not be able to stabilise reversed in recent months, as policy- count balance from deficit into sur- foreign exchange reserves have in- as the Operation Twist programme country where the RBI has commit- the exchange rate, and conduct an makers in the developed world have plus. Imports have fallen more than creased by around $80 billion since wherein the RBI buys long-term ted to the public not to allow a re- independent monetary policy when adopted stimulative measures to re- exports suggesting that India is do- January, to reach an all-time high government securities and sells peat of what happened after the last it is financially integrated with the vive their economies, creating ex- ing worse than its trading partners. of $540 billion. short-term bonds in order to lower global financial crisis, when infla- rest of the world. cess liquidity in global financial These factors have changed the bal- When the RBI buys dollars in the the yields on the longer end of the tion soared to double digits. Policymakers in all sophisticated markets. ance of supply and demand in the FX market, it sells rupees. This in- maturity spectrum. But in total, the Already, the constraints of the foreign exchange markets as a result creases the domestic money supply net bond purchase by the RBI has economies face this trilemma, forc- Between June and August, Indian trilemma have tightened. Retail in- of which the currency has begun to and is therefore inflationary. In or- been positive. This implies that in- ing them to make choices about capital markets received a net FPI flation has now breached the upper face appreciation pressures against der to counter this inflationary pres- stead of sterilising its FX opera- which targets they are going to pur- inflow of close to $10 billion as for- limit of 6 per cent for more than the dollar. sure that is being generated by tions, the RBI is adding further liq- sue. The RBI has tried to avoid these eign investors returned to the stock three quarters. Core inflation has This brings us to another corner of RBI’s FX interventions, the central uidity into the system through its choices: It has tried to pursue all market. In September so far, for the been rising and inflation expecta- three objectives simultaneously in first time in the last six months, in- the trilemma — currency stability. bank will ideally sterilise its inter- bond market interventions. As a re- In the face of rising appreciation ventions. This entails the RBI sell- sult, liquidity has soared, reaching tions have jumped sharply. And an especially aggressive manner flows into the debt market have while credit to the private sector re- since the pandemic struck. It has re- turned positive. India also received pressure, the RBI has been actively ing government bonds to banks and as much as Rs 8 trillion at one point. intervening in the foreign exchange in the process absorbing excess ru- For the moment, this injection of mains depressed, credit to the gov- duced its policy interest rate to neg- close to $17 billion of foreign direct ernment has been strong, implying ative levels in real terms. It has investment (FDI) during April-July. markets to prevent the rupee from pee liquidity from the system. liquidity may not get readily con- strengthening further. It has been But the RBI has not been absorbing verted into broad money because that overall broad money is growing bought government securities to Capital has also been flowing to In- rapidly. The time for difficult deci- push down long-term interest rates. dia in the form of external commer- buying dollars both in the spot and the liquidity created through dollar the growth of credit to the private in the forward markets. In May and purchases, it has been adding to it sector has been weak, depressing sions seems to be approaching.