Election system ain't broke, no point in (media) trying to fix it

Freedom of the press does not mean that the editorial board can report whatever they want to. Media has the right to report the 'news' and let people know the current position of that 'news'. The moment they start reporting their 'opinion', the very foundation of press freedom is shaken. Right of media lies in right of people to be informed about the truth. The way recent controversy, over Chief Election Commissioner's 'recommendation' for the removal of Election Commissioner Navin Chawla, is being reported reflects media's apathy towards analyzing constitutional provisions and the truth behind CEC's recommendations.

Media must not prevaricate the truth by taking biased stands. It must not create the confusion and panic by projecting it's biased views and opinions. Blame it on unprecedented competition in the media (print as well as electronic). I honestly believe that attitude of the media can be changed neither by stricter laws nor by self regulation but only by commercial failure of the 'news market'. Media must treat the ongoing election commission issue as learning curve raised due to 'constitutional confusion'. Office of the Election Commission is truly sacred in democracy and it should never be tampered with.

There are three important questions we need to answer before deciding whether CEC's recommendation can potentially tamper the integrity of election commission and threaten it's functioning.

1. Is constitution clear about removal of Election Commissioner?
2. Does Mr. Gopalaswamy has all the necessary evidences to show that Mr. Navin Chawla is 'not clean'?
3. Can the standards, procedures established in EC and the legacy left behind by likes of T.N.Seshan allow any threats to EC's functioning?

1. Is constitution clear about removal of Election Commissioner?

"The Constitutional provisions governing the appointment and removal of election commissioners were drafted at a time when only the Chief Election Commissioner was given a full-time appointment and the election commissioners were appointed on a short-term basis, only during election time, when full-time election commissioners were appointed, the government was informed of the discrepancy and that it must be corrected with suitable amendments" says ex CEC T S Krishnamurthy. Such amendments to the constitution were not made so far.

Article 324(5) of the constitution says, "Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner (CEC)." In case of Chief Election Commissioner, impeachment (or removal) is explicitly mentioned in Article 324 of the constitution. But in case of other Election Commissioner(EC), constitution is not clear. In the legal circle it is well known that, if the procedure for removal is not explicitly mentioned in the constitution, then appointing authority is solely responsible for removal too. Now, the President of India is appointing authority for EC, only he can remove the EC. In order to provide a check on the executive’s powers and safeguard the independence of the Election Commission, clause (5) was added in Article 324 making CEC's recommendation as a necessary evil. Now, whether CEC has the suo moto (on his own) power to recommend EC's removal is not clear. CEC, Mr. Gopalaswamy thinks he has the suo moto power, while the government thinks he does not.

Ex CEC "Mr. B.B. Tandon and the Election Commission took the provisions to mean that since the appointing authority is the President, the CEC comes into the picture only when a proposal for the removal of an Election Commissioner comes before him from the President for his recommendation." What does Supreme Court (SC) think? In T.N. Seshan, Chief Election Commissioner v Union of India (1995) SC held that, "recommendation for removal must be based on intelligible and cogent considerations which would have a relation to the efficient functioning of the Election Commission." It also opined that if the powers of removal of EC (and Regional Commissioners) is vested with CEC, it "would destroy the independence of the Election Commissioners and the Regional Commissioners if they are required to function under the threat of the CEC recommending their removal." Thus, it is clear that Supreme Court too did not take any position on suo moto power of CEC. It's opinion is equivocal.

2. Does Mr. Gopalaswamy has all the necessary evidences to show that Mr. Navin Chawla is 'not clean'?

While talking about "evidential value" of his recommendation, Mr. Gopalaswamy said, "I have no regrets. One should not have any regrets in speaking the truth. My evidence is legally strong and morally stronger". Gopalaswami's letter to the President is 93 pages long, its annexures run through some 500 pages and also include a 150-page response from Chawla to the charges raised by members of Parliament against him. It must be noted here that, the report is not yet made public and media obviously has not read the report before coming to conclusion about validity of CEC recommendations. Even well respected editor of The Hindu, Mr. N Ram, erred by taking pro Congress position (Read More here). Here are some well known facts about Mr. Navin Chawla.

• At the time of Indian Emergency (1975 - 77) he was secretary to the Lieutenant Governor of Delhi. Shah Commission which inquired into the excesses during the Emergency, indicted Mr Chawla for having been 'authoritarian and callous' and for gross misuse of power "in cynical disregard of the welfare of citizens". Further, it declared that he was "unfit to hold any public office which demands an attitude of fair play and consideration for others"
  
• Mr. Navin Chawla and his wife Rupika Chawla ran the Jaipur-based Lala Chaman Lal Education Trust which had secured MPLADS funds from Congress MPs — A.A. Khan, R.P. Goenka, Ambika Soni, Dr Karan Singh and Mr A.R. Kidwai. Exclusive: Chawla accepted funds for private trusts. The trust was allotted six acres of land by the Congress government in Rajasthan when Mr Ashok Gehlot was the Chief Minister.
  
• Mr. Navin Chawla's wife Ms. Rupika Chawla's friendship with Madam (Sonia) Gandhi spans over 30 years! Whether that has any impact on Mr. Navin Chawla (and his alleged loyalty to Congress) is open to debate. Read more here.
• CEC has reported that Mr. Chawla's loo breaks in between the meetings led to Congress leaders' phone calls. Read More here.
• Mr.Gopalaswamy has said that, "irrespective of whether Chawla consents to a decision or finds himself singled out by a majority of Gopalaswami and S Y Quraishi, the other Election Commissioner, he appears to be in the habit of conveying all the minutes of their internal meetings to the Congress leadership."
• More will surely come out when CEC's report is made public.

Now, it's obvious that CEC's report has some merit in it and one cannot decide whether CEC's report was against the functioning of election commission without going through his 800+ page detailed report.

I honestly feel that, though Mr.Navin Chawla is not yet proved guilty, the allegations surely question the integrity of his position in the election commission. As the old saying goes, there can't be smoke without fire. Mr. Gopalaswamy's recommendation throw light on politicization of election commission. Hope Supreme Court can take a clear view and resolve the confusion. I am guessing that Supreme Court will uphold Mr. Gopalaswamy's move if the evidence provided by him are sufficient to prove Mr. Chawla's loyalty to Congress.

3. Can the standards, procedures established in EC and the legacy left behind by likes of T.N.Seshan allow any threats to EC's functioning?

"The Indian elections were conducted by over five million civilian employees, two million policemen keeping guard and everyone of them has acquitted himself with a tremendous sense of duty that not one whisper of doubt on the freedom of the election process has been uttered [T N Seshan]".  We have moved from ballot boxes to Electronic Voting Machines, We have learned to suppress the goons and prevent the violence (recent J & K election is the testimony to the effective functioning of Election Commission), We have gone to the extent of banning ostentatious campaign displays and noisy rallies and required candidates to clean up walls and buildings defaced with their slogans. We have enforced spending limits and made the candidates to submit full accounts of their expenses for scrutiny by independent government inspectors. Our standards and procedures of election are of highest democratic standards in the world. Despite all this, of course, "there were attempts to damage the system but every such attempt has been met and successfully overcome by the will of the people". Thus our standards and procedures established in the functioning of election commission simply does not allow blatant misuse of the very process of election. More over voters of our generation (at least majority of them) are knowledgeable enough to decide who is worth their votes.

Thus it's conspicuous that, there is no reason whatsoever why we should be worried because of CEC's recommendation for removal of Mr. Navin Chawla. "Much graver than Chawla’s alleged bias is the appointment of M S Gill, former CEC, to a ministerial post. But nobody accused Mr. Gill of unfair bias when he was CEC. Indeed, T N Seshan, for long seen as part of the Gandhi camp, proved to be the most fearlessly independent CEC ever. The system ain’t broke, so don’t try to fix it [ET]."

Update - 12/02/09: CEC Mr. N. Gopalaswamy wrote a letter to the editor in chief of The Hindu Mr. N. Ram defending his suo motu power. (In his reply) N. Ram goes on to explain complicated judicial interpretations to prove that CEC wasn't right in his suo motu act. The bottom line is, one can quote the laws to prove some one guilty, but the question here is of natural justice which is above the normal laws of the land. If Mr. Chawla is proved guilty based on evidences given by Mr. Gopalaswamy, then Mr. Ram's case is justifiable only on techinical (legal) grounds, Mr Chawla (if proved guilty) must be punished for his alleged inclination towards Congress.

Why our Munna (aka Sanjay Dutt) cannot step into parliament...

Samajwadi Party was quite lucky to have secured the victory of actress Jayaprada in the last election. But, can the star power work again? History might not repeat this time. Amar Singh's whole intention might not be to get Lucknow into SP's kitty, but use Sanjay Dutt as a scapegoat to achieve his party's political ends by making him a 'start campaigner'. Amar Singh knows that Sanjay Dutt  cannot get a suspension order from Supreme court (will tell you why) and even if he manage to get such order, he might not win the election due to the fact that Lucknow is a traditional strong hold of BJP and no one has challenged Atal bihari Vajpayee. Even if BJP's patriarch (Vajpayee) doesn't contest election from Lucknow this year, chances of Sanjay Dutt's win are bleak as many sections of the society in Lucknow are divided over support to Sanjay Dutt.

It is not clear if Vajpayee will contest. There were rumours Shatrughan Sinha might enter the ring if Vajpayee calls it a day. "We want him to contest. Even a child will tell you he just has to fill his nomination papers to win," says BJP leader and Vajpayee's election manager Lalji Tandon. 

The SP has tried to counter Vajpayee's charisma with star power before. Raj Babbar in 1996 and Muzzaffar Ali of Umrao Jaan fame in 1998 challenged him and failed. In recent times, only Congress nominee Karan Singh gave him a decent contest in 1999. Lucknowites are divided on Sanjay Dutt.

"It is strange that the party (SP) which is threatening to withdraw support (to UPA) over terrorism is fielding a person charged under Tada," says former Lucknow University vice-chancellor Roop Rekha Verma. "Where are we taking the standards of politics if we have convicts like Sanjay Dutt against Vajpayee," asks playwright Mudra Rakshas [DNA]

The idea of giving ticket to convicted star like Sanjay Dutt sounds like a death blow to the very foundation of Samajwadi party's socialist democratic ideology. Amar Singh and his party has shown that in today's competitive politics only 'ends' matter, no one gives a damn about means; ethics and morality never to be talked about. Legally, as of now, Sanjay Dutt cannot contest elections since he has already been convicted for a "serious offense" and also served the jail term. He can contest only if he gets a stay order from Supreme Court for his conviction and election commission has to approve his candidacy. If one analyse the intensity of Dutt's offense and the context, it will be quite conspicuous that he won't get a chance to contest elections.

1. Article 8 of Representation of People act says
   
• Clause (3): A person convicted of any offence and sentenced to imprisonment for not less than two years shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.
  
• So, clearly, Election commission will not entertain Dutt's candidacy unless there is an extraordinary ground provided by supreme court.
  
2. "I see no reason when my brother Sidhu can be allowed to serve the nation why I cannot be allowed to do the same", says Sanjay Dutt. But the fact is Sidhu's case and Dutt's case are completely different and not even comparable.
   
• Sidhu was accused of unintentional murder, but Dutt has been accused of keeping weapons at his house and was convicted by the Supreme Court which upheld the judgment of the trail court. 
• Also, Sanjay Dutt has served sentence and he is barred from contesting.
  
• In Sidhu's case Supreme court "observed that the 1988 Patiala incident happened all of a sudden without pre-meditation and it was not a case where he took advantage of his position as MP in the commission of the crime. The court said he had set "high standards" in public life by vacating the seat after the Punjab and Haryana High Court ruling [The Hindu].
• In case of Sanjay Dutt, his involvement in the 1993 blast, directly or indirectly, is a threat to the national security. In Sanjay Dutt's case, the whole offense was not an accident. This is obvious from the fact that arms and ammunitions were recovered from Dutt's residence.
3. In 2007, Sanjay Dutt narrowly escaped the conviction under TADA act but he was convicted under Arms Act which is slightly lesser crime. It must be noted here that, Representation of People act  disqualifies the person convicted under TADA, for contesting elections. "It was alleged that justice P D Kode discriminated Sanjay Dutt by not convicting him under TADA act. It's well know fact that, Aziz Ahmed Shaikh, a 1993 Mumbai serial bomb blasts convict, had moved the Supreme Court challenging his conviction under the TADA and alleged favour shown by the designated judge to film star Sanjay Dutt [report]" though Mr. Dutt was committed similar offense. So, the questions relating to intensity of Mr. Dutt offense are still not completely answered. We can, for a significant extent, conclude that Supreme court will not be soft on Sanjay Dutt to suspend his six year jail term.

Suppose, in worst case, if Sanjay Dutt gets a chance to contest elections, and if he manages to win (which is most unlikely), then it really doesn't make any difference and after some time, no one gives a damn about his win and "he making any difference to the society", which anyway he is not going to make! Sanjay's Dutt's episode is just a tip of the iceberg. There are already over 120 (alleged) criminals sitting in Parliament and making the laws for innocents! I recommend every one of you to take a look at this document (criminal cases.doc) which tells you the story of widespread criminals in our political system. To give you a glimpse of it, "there are 120 MPs with criminal cases against them out of 543, or 22.1%. Among the major parties, the BJP has 29 MPs with a criminal record, the Indian National Congress (INC) 24, the SP 11, RJD 8, CPM 7, BSP 7, NCP 5 and CPI 2."

We, the people of India, end up electing criminals to make laws for innocents and pass on the blame to those very lawmakers and the government in power. Let's ask not what the Netas have done for us, but what we have done to elect them. Get your voter ID, cast your vote and make it count!

Read More:

1. Sidhu's conviction stayed (Supreme Court's observations) - The Hindu.
   
2. TADA Court favored Sanjay Dutt.
3. Criminals in Indian Politics, Social Watch Report.
4. Criminals cases statistics document  from From Association for Democratic Reforms. Alternative link.
5. Candidates's Criminal and financial background report submitted by Election commission of Karnataka. Alternative link.
6. SP to field Sanjay Dutt from Lucknow - The Hindu.

Gram Nyayalay Bill: Taking justice to Aam Admi's doorstep

Six decades of Indian democratic history tells us the story of political parties who have managed to win elections based on the promise of "Bijli-Sadak-Paani" (Electricity-Roads-Water). Successive governments promised the same "Bijli-Sadak-Paani" over and over again, Aam-Admi (Common man) went on voting for the same promises, election results repeatedly shown that 'Bijli-Sadak-Paani' philosophy has worked only until recently. The issue of 'Justice' to Aam Admi was never raised as an election issue. "Justice - Social, Economic, Political", enshrined in the preamble of our constitution, was not that easy for the common man to get. Madam (Indira) Gandhi promised the much awaited justice during the time of emergency. Her government only managed to insert a new article in the constitution, "Article 39(A): Equal justice and free legal aid" [42nd Constitutional Amendment, 1976]. But, Madam Gandhi's government was careful enough to insert that clause in Part-IV of the constitution, i.e. in Directive Principles of state policy, so that if government cannot provide free legal aid, it cannot be challenged in the court of law. Unlike the fundamental rights, "Free legal aid" is not an enforcible right, but it's left to the policy makers to ensure as and 'when they feel necessary'.

A solid framework of justice for rural India is one of the most fundamental instrument essential to achieve socio-economic freedom. It took over sixty years for the parliament to start contemplating about speedy and timely justice to the rural poor. Parliament (only Rajya Sabha as of now) has unanimously passed Gram Nyayalaya Bill 2008 which is aimed at providing inexpensive justice to people in rural areas on their doorstep. The story is not over yet, it's only after Lok Sabha passes the bill and President approves, the bill will become law. One can only hope that the process will get over soon, at least before Dr.Manmohan Singh's government completes it's term.

The journey leading to the passage of bill wasn't that easy. It wsa in August 1997, Lokasatta movement raised voices for fundamental democratic reforms. The key goals of the movement included "establishment of local courts for speedy, accessible and affordable justice [Loksatta]". A brief history of it's journey can be found here. It's very interesting to note that the Lokasatta movement was started by Dr.Jayaprakash Narayan, not the famous freedom fighter-politician Jayaprakash Narayan but a former IAS officer who quit his prestigious Administrative post to fight for social justice and fundamental democratic reforms.

Highlights of Gram Nyayalaya Bill

1. It is aimed at providing inexpensive justice to people in rural areas on their doorstep.
2. For Gram Nyayalayas, Centre will bear the full cost on capital account. The cost of litigation would be borne by the state and not by the litigant.
3. The Bill provides for first class judicial magistrates dispensing justice.
4. It establishes Gram Nyayalayas (Rural Courts) as the lowest tier of the judiciary for rural areas.
5. These courts will sit at the district headquarters and in taluks. They will go in a bus or jeep to the village, work there and dispose of the cases.
6. Each Gram Nyayalaya shall be headed by a Nyayadhikari, who shall have the qualifications of a first class magistrate and be from a cadre created by the Governor and the High Court.
7. Nyayadhikaris “are strictly judicial officers. They will be drawing the same salary, deriving the same powers as the first class magistrates working under the High Courts.”
8. Gram Nyayalayas shall try those cases whose maximum punishment is a year’s imprisonment, is only a fine, or in which offense is compoundable. They shall also settle civil suits dealing with land, water, etc.
   
9. In civil disputes, Gram Nyayalayas shall not be bound by the procedure in Code of Civil Procedure, 1908, or the rules of evidence in the Indian Evidence Act, 1872. In criminal cases, the court shall follow procedures for summary trials.
10. Appeals in civil and criminal cases shall be heard by the senior civil judge and the assistant sessions judge, respectively. Further appeals are not permitted.

If the Gram Nyayalaya idea is successfully implemented, it will be a revolutionary step for bringing justice to the doorstep of rural poor. It can fulfill the vision enshrined in our constitution - "to secure to all citizens the Justice - social, economic, political [Preamble]."

Read More:

1. Journey of Gram Nyayalaya Bill - Loksatta page.
2. News reports on Gram Nyayalaya bill: The Hindu, Times of India.
   
3. About Loksatta, Jayaprakash Narayan - founder of Loksatta.

Ajmal Kasav is lucky, he was caught alive in India

"I think there should not be a legal process and it’s useless in our country. Such terrorists (Kasav) should be hanged publically in front of Gateway of India. That's our demand", says Shiv Sena MP and party spokesman Sanjay Raut. I wonder what would have happened if the same statement was given by MNS's "Raj Thackeray and his band of goons"*. I feel, the young blood of Bombay [read Mumbai if you are Raj Thackeray or his fan] would have wrecked "Raj and his band of goon's"* neck! Law maker Sajay Raut should have at least remembered laws of his own land before he made such pedantic statement.

Ajmal Amir Kasav is extremely lucky to have been caught alive in a country where fundamental right of "life and liberty" is never denied to anyone. Many people, like Shiv Sena's Sanjay Raut, who feel Kasav should be deprived of legal assistance, are right in some way. Simply because he was caught red handed and the crime he committed is conspicuous. His Pakistani nationality has nothing to do with this denial; terrorist is a terrorist no matter which country he belong to. There are other section of people who say, however heinous his crime may be, he should be given legal assistance at least for the sake upholding the law of the land and morally defeating those who preach hatred and violence. The legal experts say, the dilemma of whether to provide legal assistance to Kasav can be solved by declaring Kasav as "enemy alien" under the Article 22(3), so that he can no longer have the fundamental right of life and liberty.

I feel Kasav's case may have far reaching impact on domestic laws for preventive detention. Today, "exceptional" status of Kasav's case is unquestionable, "the trauma resulting from the terrorist attacks may be used as a justification for undue curtailment of individual rights and liberties. Instead of offering a considered response to the growth of terrorism, a country may resort to questionable methods such as permitting indefinite detention of terror suspects, the use of coercive interrogation techniques, and the denial of the right to fair trial....the most prominent example...is the treatment of the detainees in Guantanamo Bay who were arrested by U.S. authorities in the wake of the 9/11 attacks. It is alleged that they have detained hundreds of suspects for long periods, often without the filing of charges or access to independent judicial remedies. [CJI of India]"

So, the point here is, denying legal access to Kasav may just be a pretext to the misuse of preventive detention laws in the name of terrorism. "In some circles, it is argued that the judiciary places unnecessary curbs on the power of the investigating agencies to tackle terrorism. In India, those who subscribe to this view also demand changes in our criminal and evidence law — such as provisions for longer periods of preventive detention and confessions made before police officials to be made admissible in court. While the ultimate choice in this regard lies with the legislature, we must be careful not to trample upon constitutional principles such as ‘substantive due process.’ This guarantee was read into the conception of ‘personal liberty’ under Article 21 of the Constitution of India by our Supreme Court.** The necessary implication of this is that all governmental action, even in exceptional times, must meet the standards of reasonableness, non-arbitrariness, and non-discrimination [CJI of India, K.G.Balakrishnan]."

Thus, at least for the sake of completing legal procedures under our laws, Kasav should get legal access, so that the perpetrators can be brought to the book soon, so that the souls of many innocents and brave officers who lost their lives may rest in peace.

* Excerpts from widely circulated SMS: Where was Raj Thackeray and his band of goons when South Mumbai was burning? He should have been at the forefront of action trying to save Mumbai from the terrorists! How on earth did he allow north Indians and Indians from some other locations who are in the NSG to dare come and save Mumbai???!!!! Go get the terrorists Raj! Go get 'em!!].

** This idea of ‘substantive due process’ was incorporated through the decision in Maneka Gandhi v. Union of India, AIR 1978 SC 597. In a way this was an answer to Madam Gandhi's misrule during infamous emergency. The law of preventive detention was widely misused. All the opponents of Madam (Indira) Gandhi, like Jayaprakash Narayan, Morarji Desai, Charan Singh, Atal Bihari Vajpayee, were put behind the bars. Madam Gandhi even ensured that her opponent Maneka Gandhi was deprived of her passport. Maneka Gandhi challenged the "reasonableness" of denial of her passport. Supreme Court intervened and upheld Menaka Gandhi's appeal. Ultimately, government had to give passport to Maneka Gandhi. The apex court simply said, why only Maneka Gadhi, out of thousands of others who had applied for passport? That's where the question of "reasonableness" of government's action lies.

Appointment of judges to Supreme Court: A tug of war?

Framers of our constitution judiciously avoided the supremacy of any organ of our democracy. Our parliament is not supreme unlike in United Kingdom, Judiciary is not supreme unlike in United States, Executive is not autocratic like any military ruled states. The perfect balance sought by the framers of Indian Constitution saved the infant democracy in spite of madam Gandhi's misrule during emergency. Every now and then, each organ (Executive/Judiciary/Parliament) of our democracy made significant attempts to prove their supremacy.

Yet again, by refusing to reconsider its decision on elevation of three High Court Chief Justices as apex court judges, Supreme Court has asserted judiciary's primacy over executive[The Hindu]. Was the apex court acted adamantly by refusing to reconsider it's recommendation? Was Dr.Manmohan Singh's government wrong in asking supreme court to reconsider it's recommendation? Legally, both supreme court and government exercised their right, there is no need to sensationalize the matter. Whatever has happened, has happened for good.

Article 124 of Constitution says, Every judge of the Supreme court shall be appointed by the President of India. The president shall consider the advice of his council of ministers and shall consult the Judges of Supreme court and High court. Constitutionally the advice given by Supreme court is not binding on government. Until 1982 (First Judges Case), Supreme court held that consultation of president does not mean concurrence (meaning, Agreement of results or opinions). But in 1993 (Second Judges case), a nine judge bench of supreme court held that consultation means concurrence. So, if "consultation means concurrence", then, both government and the supreme court must mutually agree in the matter of appointment of judges. Supreme Court opined that, members of the judiciary are well qualified than others to give their opinion in the matter of appointing judges. In that historic judgment, Supreme court had virtually arrested the irregularities in the appointment of judges to supreme court. In fact, the judgment has made appointment of judges more transparent than ever. Supreme Court laid down a clear procedure in appointing judges. Here is a quick look,

1. The collegium comprising of Chief Justice of India and four senior most jusdges of the Supreme court has to be formed to render advice to the president (i.e. to the government).
2. View of the senior most judge (if he is not the part of the collegium) who hail from the High court where the person to be recommended (as judge to supreme court) is functioning as judge, must be obtained in writing.
3. The collegium must consider the following factors in recommending the judges for the appointment
• Merit should be the predominant consideration. On what basis the merit will be judged? Earlier judgments given by the judge, respect he commands in the legal fraternity, his legal qualifications, and any such considerations.
• Not only that, Cogent and good reasons should be recorded for recommending a person of outstanding merit regardless of his seniority.
• "For recommending one of several persons of more or less equal degree of merit, the factor of the High Courts not represented on the Supreme Court, may be considered."
• And any such factors may deem necessary.
  
4. Supreme court then prepares it's recommendations, everything in writing, stating all the factors cogently and with significant reasoning.
   
5. If two or more members of the collegium disagree with the names (to be recommended), then Chief Justice of India should not persist with the recommendation. If the collegium agrees to the names, the recommendation is sent to the executive.
   
6. Constitutionally, Supreme Court's recommendation is not binding on executive, so the executive may refuse to accept the candidates recommended by supreme court for the appointment. But government must provide genuine reason for it's refusal. In case govt accepts Supreme court's recommendations, matter ends there, the judges will be appointed as recommended.
   
7. If the government refuses to appoint the person recommended by supreme court, the materials and information conveyed by govt must be placed before the original collegium or the reconstituted one.
8. If the collegium accepts the opinion of executive, then CJI, in his discretion, informs the person earlier recommended for his non appointment. The names recommended by executive will then be final for appointment.
   
9. In case collegium refuses to reconsider the request (as it happened now) and unanimously reiterate that the appointment of recommended candidates must be made, then, government (President) has no choice but to appoint them.

Thus, the procedure seems to be transparent if one look at it without any bias. If the government think that it is smarter than Supreme Court and if Supreme Court is adamant with it's recommendation, then the conflict arises and harmony is lost between the organs of democracy.

In the recent case, "Prime Minister Manmohan Singh expressed his reservations about the elevation of three judges recommended by Supreme Court on the ground that seniority had been overlooked and certain States were not represented in the apex court [Read More]." But supreme court feels that merit of a judge is more important than relative seniority. Given the contemporary circumstances, merit must be the decisive factor without ignoring the seniority and that's exactly what Supreme Court is doing. Dr.Singh was absolutely right in asking Supreme Court for reconsidering it's recommendation. Executive has the legal right to express it's opinion and should be done with all respect to Supreme Court. On the other hand, Supreme court has done nothing wrong in refusing to reconsider the recommendation since it feels that meritocracy is more important than seniority and representation of the state (supreme court considers the states' representation factor even before recommending). The process of consultation must be treated as a routine legal activity and should not be sensationalized as it is being done these days.