Friday, December 25, 2009

The 15% Solution

Reservations for Minorities

The 15% Solution

Rajeev Dhavan

Like a Christmas present to expected-to-be-grateful minorities, the Ranganathan Mishra National Commission on Religion and Linguistic Minorities emerged from forgotten shelves. Envisaged on 29 October 2004, Mishra Commission was constituted on 21 March 2005 with Mishra as chair, Tahir Mehmood, Anil Wilson, and Mohinder Singh as members and Asha Das as Secretary. The Report arrived on 10 May 2007 and was tabled in Parliament on 21 December 2009. Most of the Report recommends the usual remedies of coordination, implementation and good will. Since such Reports invariably recommend the prevalent diseases of ‘Chairmanitus’ and ‘Committiatus’, these are handsomely rewarded in the Mishra report in the form of a Parliamentary Committee, National Committee, similar bodies in the States, National Coordination Committee, State Minority Commissions, Minority Welfare Departments and Minority Welfare Committees in all districts (pr.16.4.5). This is in addition to the existing statutory National Minority Commission (1993) and National Commission for Educational Institutions (1983). Rules and procedures were recommended for the National Minorities Development and Finance Corporation and the Maulana Azad Education Foundation to uplift the minorities economically, with, possibly, the creamy layer licking off the cream (pr.16.4.5). In all this, the report is like countless reports which shelve dust; and, if implemented create sinecure posts for absentee members whose offices suffer paperonic decay. All goody-goody programmes are not for serious implementation.

The basic approach of the National Commission is to exorcise affirmative action programmes of Hindu notions of caste. The Commission was “convinced that any religion based discrimination in selecting particular castes for affirmative action will conflict with the letter and spirit of the constitutional provisions”. But this was exactly the view of the minority judges in the famous Mandal case (1992). The Commission notes that ‘castes’ exist in all religions to ask why affirmative action is restricted only to Hindus. It suggests that the Hindu monopoly on affirmative action be broken in favour a secular estimate of similarity placed castes in other religions. The Mishra Commission wants the Scheduled Caste (1950) and Tribes (1951) Orders to be amended accordingly. What the Supreme Court failed to do in the Mandal case (1992) is now attempted by the Mishra report (2009).

Mandal had spoken of the possibility of Muslim and Christian reservations (see (1992) Supp. 3 SCC 217 prs. 757, 761, 769, 777, 778, 782 and 788). But it is precisely the attempt to include Muslim as ‘Other Backward Classes’ (OBC) which failed to pass muster before two 5 judge benches of the Andhra High Court. A 7 judge bench decision is awaited. The problem has been that the High Court has applied much more rigorous tests of backwardness to Muslim disadvantaged than their Hindu counterparts. Most OBCs are unquestioningly appointed by way of largesse and patronage. Both the Mandal (1992) and the Nagaraj decisions (2006) want rigour as did initial decision in the OBC case (2007). Eventually, a lax approach seems to have continued. My own experience of arguing the Andhra Reservation cases for the Muslims is that Muslim demands for reservations are treated with greater strictness than Hindu demands.

But the Mishra Commission’s approach may defy acceptance. We know that the purpose of reservations on public posts is to ensure that those not adequately represented in the services can share the power of the State [see Mandal decision (prs. 694, 788)]. The Mishra Report wrongly invokes the “full sanction of the Article 16(4) of the Constitution” (pr.16.2.16) for 15% reservation for government jobs for Muslim, Christian and other minorities is on the assumption that all minorities must necessarily be backward (pr.16.2.17). But all Muslims, Christians and others are not backward – only some groups amongst them.

What is being insidiously resurrected is ‘communal representation’ under the rubric of ‘under-representation’. Communal electoral quotas in Parliament and the State assemblies are not being suggested. The 15% solution applies to empowerment in bureaucracy on the basis of in adequacy of representation. There are many communities and faiths which though notionally backward, are inadequately represented in the services. Emphasis on inadequacy of representation on the assumption of backwardness changes the ball game completely to encourage communally inspired demands for all. Such communal approaches were specifically excluded from the Constitution and smack of a barely disguised communalism. It is not clear whether this new quota will be an OBC quota or SC or ST quota? Or whether minority quotas will be written into these quotas or added to them? If added, the overall quotas will become 64%; if assimilated, they will cause heart burning in the OBC, SC and ST who will have their quota reduced from 50 percent to 35%. Muslims and Christians cannot generally be admitted to reservation. Reservations have to be of backward groups amongst them.

The 15% solution is also suggested for education. The St. Stephens case (1992) indicated a 50% cap on preferentially recruited minority students in minority aided institutions. In TMA Pai (2002) this cap was retained for these aided institutions but subject to the further limitation of getting minority students only from within the State where the institution was geographically located. Thus, a nationally renowned St. Stephen’s could recruit preferred minority students almost exclusively from Delhi! The Mishra Commission comes up with a 15% solution so that all “non-minority educational institutions should have ear-marked” 15% seats for minorities (pr.16.2.7). This is tit (15%) for tat (loss of 50% out of 100). It has no plausible constitutional basis and will make a further mess out of the existing jungle. Even after the 93rd amendment protecting the minority institutional rights in this way is not permissible. The 15% is to be divided into 10% for Muslims and 5% for other minorities to pure communal quotas in all non-minority institutions is contrary to both secularism and settled principles of affirmative action. The Mishra Commission assumes that the National Education Policy of 1986 identified Muslims and Neo-Buddhists as most educationally backward (pr.16.2.2.). That was 23 years ago without recommending a religion based quota.

However, the Mishra Commission rightly insists that SC and ST quotas must not only extend to Hindus but all similarly placed castes or groups in minority communities. Equally religious conversion does not change caste standing. The SC order (1950) was consciously designed for Hindus and later extended to Buddhists and Sikhs. The Commission is right. Castes are part of the Muslim social fabric. It should extend to Muslims and other minorities so that SC and ST lists become ‘religion’ free. Here Asha Das’s dissent seems to be misplaced. Such a religion free approach should exist for SC, ST and OBC. Equally, the Supreme Court’s decision in Soosai (1997) making it more difficult for converts from Hinduism to retain reserved status merits examination in the light of the Mishra report.

Proliferating language is important. A language dies every day. But for Pakistan, Urdu would have slowly died as a living language. A better prognosis was needed than implementing existing constitutional dispensations and the three language formula.

Without actually saying so (and suggesting the contrary), the Mishra report has moved away from rigorous ‘backwardness’ standard into a clumsy communalism. Lifting minority communities require a much more pointed and focused policy. The Mishra Report is a political report – a testament to political parties seeking communal vote banks by declamation rather than planned implementation. Beware of ‘wisemen’ bringing gifts.

Saturday, November 28, 2009



At last after 17 years, 399 settings, 48 extensions, a cost of Rs.17 crores, embarrassing differences between the Commission’s counsel and Chairperson, litigation in Court to delay it, the Liberhan Report on the destruction of Babri Masjid has arrived. Submitted on 30th June 2009, Home Minister Chidambaram held on to it until, it was leaked on 23rd November 2009 amidst accusations of conspiracy and finally tabled on 24th November.

First, the leak. It was a coup for a newspaper. If anyone knows about the leak, surely it is that newspaper which stole a march to make a coup. In fact, what was wrong was the archaic law of non-disclosure. It is an absurd relic from English practice. There is no reason why reports should be disclosed to parliament first. On one occasion in 1960 or so, Pandit Nehru was accused of breach of parliamentary privilege because he pre-disclosed to the press a comment he was to make in the Parliament. This part of Parliamentary privilege should be removed by legislation. An Act should be enacted which simply says “All reports to Parliament shall be submitted to the Speaker and Chair of each House; and simultaneously published straightaway; (2) Any Action Taken Report (ATR) shall be declared to Parliament within one month”. This cat-and-mouse game of publication will disappear consistent with RTI principles of transparency. No report should be withheld from the public by either the government or the parliament.

Second, the spat between the Chairperson and Liberhan Counsel Anupam Gupta is unnecessary. Self-advertisement is not unknown to Gupta who acquired notoriety in other controversies over judicial corruption in 1993. Liberhan appointed Gupta. There is no reason to doubt Liberhan’s integrity. Making media capital out of personal recriminations is not right morally, under lawyer-conduct rules or otherwise.

Everytime a report comes out, we do not have to wail that all commissions are useless and designed to gather dusts. Reports are of many kinds: on corruption, riots, events or people. Corruption reports on Kairon and TT Krishnamachari were given to Nehru who took action. Today, Prime Ministers and all political parties tolerate corruption. Parliament’s own Joint Committee Report on Bofors, on Rajiv Gandhi’s involvement, has never been accepted as true or convincing. Commission reports should not become political toys. The Babri Masjid report explores a damning event of our history. It is easy to dissolve its findings in acerbic party-political acid. But this should not happen.

Let us look at the Report and the political antics designed to obfuscate its message. This is a peoples’ report for the people to find their way around a peoples’ issue on an event that divided India. 6th December 1992, when the Masjid fell, is a watershed in India’s contemporary history. Through the demolition, the Sangh Parivar legitimized the politics of a destructive communal hate. Hitherto, communal tension was regarded as an evil in governance. After Babri Masjid, BJP leaders and the Parivar set a new political standard which declared that the destruction of Masjids, killings of peoples, destroying of art works were a legitimate pursuit of a communal pseudo-Hindu nationalism advancing the cause of the “true Aryan” people.

Liberhan was not examining a “who-done-it”. He was looking at a phenomenon that shook India’s secular, multicultural people and polity. What Liberhan found was what we already know but need to know better. His conclusions in chapter 14 were (1) Babri Masjid was not an unintended spontaneous event except for “self-serving hyperbole”; (2) Logistically, given the total preparedness of the Karsevaks, there was a well planned conspiracy to destroy the Masjid; (3) Financial support came from Sangh Parivar funds including bank accounts operated by various named persons; (4) The, then, Chief Minister Kalyan Singh and his handpicked bureaucrats were involved in the conspiracy to destroy the Masjid and allowed a “parallel government” and “cartel” to facilitate the campaign which infiltrated the government; (5) The state (of UP) had become a willing ally and co-conspirator in the joint common enterprise…(of) demolishing the structure.”; (6) The conspiracy arose from the single-minded efforts of the RSS and VHP ideologues and theologians to manipulate ordinary people into a frenzied mob; (7) The campaign had nothing to do with a popular mandate from the people who were manipulated to support it; (8) The police fell in line with this conspiracy; (9) The union government was crippled by failure of intelligence and the “all-is-well reports by its rapporteur Tej Shankar”; (10) Not a single video camera was put in place; (11) The media “and journalists were subjected to systematic harassment”; (12) Leaders like Vajpayee, MM Joshi and L.K. Advani, and Govindacharya knew of the designs of the Sangh Parivar and lent their support in various ways; (13) Muslim leaders “wittingly or unwittingly” did not counter the plans of the RSS and VHP, effectively to make the latter’s task easier; (14) 68 persons are found “culpable”, including Advani, Vajpayee and Joshi, but not Narsimha Rao.

There are several recommendations for the future on both the inadequacy of response and the need for new changes. None of the 68 indicted culpably should hide behind procedure (even if those like Vajpayee have a genuine grievance of not being called a witness in his defence) or the leak of the report. Let them replace artful defence with honesty and candour. The indicted persons face two alternatives other than criminal proceedings. The first alternative for them is to candidly state: “I was involved in the destruction of the Babri Masjid and I am proud of it”; and face the social, legal and political consequences. Alternatively, if they are innocent, then each individual in this group of 68 should be prepared to say: “I never intended or participated in any conspiracy to destroy the Masjid; I denounce and condemn its destruction as illegal and unconscionable; I express my regrets over its destruction and promise never to be involved in any conspiracy and actions to destroy religious structures or victimize people of other faiths and religions.” There is no other alternative. Its truth or nothing.

India must put this divisive event behind it. The Supreme Court decisions on the Ayodhya Act and Presidential reference case of 1994 have stated that the vesting of the Babri Masjid area in the Union Government makes the latter trustees and not owners of the structural area until the Lucknow court decides this issue. At least court proceedings have brought temporary peace. But, following the Liberhan Commission report there should be a ‘truth and reconciliation’ in which statements and regrets are talked through.

The BJP and Sangh Parivar must be truthful. The nation cannot move on until the truth is told. The Liberhan Commission invites a premium on truth not for further divisiveness but to heal a nation which was split open. But if obtaining political power is more important than governance, these games will continue to infiltrate our psyche. The most frightening part of the Liberhan report is how the ‘state’ and ‘governance’ can be hijacked into manipulation and control. Fascism began in this way.

Saturday, November 14, 2009

Even prisoners have rights


India’s prison law and policy needs total revaluation. For example, India’s Prison’s Act 1894 permits “whipping” for prison indiscipline. This remains on India’s statute book though abolished in Andhra, Assam, Bihar, Gujarat, Madhya Pradesh, Maharashtra and West Bengal. Such laws and policies represent a prevailing attitude towards prisoners. The irredoubtable Justice Krishna Iyer carried forward the case for humanity, respecting the life and liberty during confinement. In the Sunil Batra cases, Krishna Iyer J deemed solitary confinements, bar fetters and whipping “barbaric”. In 1966 the Supreme court granted convict Prabhakar to publish a book on the atom. A prison is not a dungeon in the Bastille. Kiran Bedi has shown that prisoners have talents, need opportunities and need creative and humane treatment. Constitutionally the message is: “Even prisoners have rights”

The Manu Sharma parole has excited all kinds of passions. The reactions are quite typical of our reactions to cricket. If our team or some player wins, we accord glory to them. If not, we are inconsolably depressed. While evaluating Manu Sharma’s parole, we should not put the entire system of parole into jeopardy.

Parole is a right (perhaps, in strict legal parlance, a privilege) that inheres in every prisioner. There are two broad views on parole. Justice Krishna Iyer’s expansive view in Dharambir (1979) was that parole is a humanizing necessity, which should be allowed for two weeks to every prisoner every year to prevent prisoners from becoming hardened criminals. The second ‘strict necessity’ view is that parole should be granted for personal necessity. In both views, good behaviour is a pre-condition. In the expansive view every peccadillo by a person is not bad behaviour heralding a disentitling fall from grace.

Even Manu Sharma who is in jail for the killing of the beautiful and innocent, Jessica Lall, is entitled to be considered for remission and parole with strict conditionalities. Our Prisoners Act 1900 is woefully deficient on the subject of parole. Under the Constitution “prisons” are a state subject (List II, Entry 4). So, it is left to the states to devise rules. Rules of varying dimensions have been devised by law in Bihar, Madhya Pradesh, Tripura and West Bengal. Parole terms usually require serving one year of a larger term, considering the nature of the offence and good behaviour in prison. Tripura even allows release of upto 2 years, whilst others usually permit parole for 15 to 30 days. But apart from statutory provisions, there is also the general power of pardon in the President (article 72) and the Governor (article 161) which extends to granting parole. In addition there is also State Government’s power under the Criminal Procedure Code 1973 (section 432) to suspend or remit sentences. This latter judicialised procedure is somewhat different from the pure bureaucratic procedure requiring the state to seek the opinion of presiding judge of the convicting court. This diversity of legal and constitutional options is as haphazard as the results they produce.

The Delhi system seems to encounter many difficulties. The relevant circular is that of 7 March 1958. No changes have been made. If we look at the last four years, newspaper estimates suggest about 4 out of 5 parole applications fail. Reportedly in 2009, out of 132 applications, 11 were granted, 33 rejected and 88 are pending. This system of denial is being examined by the Delhi High Court. In Sumedh Singh’s case (of Connaught Place shooting fame) Justice Kailash Gambhir strongly disapproved delay in processing parole applications. The High Court has itself issued a suo motu petition (WP 1121/2009) to resolve this. It will be heard on 25 November 2009. whether a final court verdict with guidelines will emerge on that day is doubtful.

In Manu Sharma’s case, Chief Minister Dikshit reports that the decision was taken after processual consideration by the Prison Department, Police, Home Department, Chief Minister. The Delhi Legal Services Authority criticised this approach whereby applications are often considered after the necessity (e.g. attending a marriage, sickness within family etc) is over! The High Court in October 2009 was absolutely right in demanding a review of the procedures. What we need is a single committee working full time to examine applications. Granting parole is not a part time job for a busy Chief Minister following hastily put together reports of uneven depth and significance. The Lieutenant Governor affirmation becomes a mere signature behind which he can hide his non-application of mind.

The Manu Sharma affair should not take the public gaze away from the need of a fair, just, quick and efficient parole system for deserving prisoners. In fact, Justice Krishna Iyer’s view that parole should not just be grounded on necessity but as a matter of practice for at least two weeks every year for long-serving prisoners deserves high consideration.

Manu Sharma’s personal case was clearly botched up. Consistent with what I have argued earlier, prima facie Manu Sharma deserved bail subject to conditionalities (including, perhaps against armed visiting of pubs). He had been a model prisoner and had been in jail for a considerable period. There was a difference of opinion between the Delhi Police (which said “no”) and the Chandigarh Police (which said “yes”). It was to Chandigarh that Manu was heading. There was no serious flaw in granting him bail. But there is a serious doubt about how his application was prioritised. Was it that his mother was ‘seriously ill’? This could be a reason for accelerated consideration. Was it that he had to attend business? That, by itself, is not a reason for prioritised consideration? But the grant of parole to Manu Sharma created suspicion on at least two counts. First, there appears to have been political influence in prioritizing his case. His father is an influential businessman and politician. Second, his parole was extended by a month till 22 November 2009 - with a three day in between the two months of parole without permission. An oversight, perhaps, but deliberately so.

There is a distinction between the granting of parole and its abuse. Did Manu abuse his parole? There seems little doubt that the very granting of parole was tainted. His mother, Shakti Rani, was far from ill and she was organising press conferences for under-19 women’s cricket competition. But Manu’s case has acquired public notoriety because he went to a pub in Delhi’s Samrat Hotel. This was certainly news, but was it a breach of parole? By itself, I do not think so. Not visiting a bar should have been a express condition of his parole. Suppose a spy found that Manu was drinking whisky and champagne everyday at home, while playing rummy with his mother. Would this be a breach of his parole? Manu’s singular trip to a club is not by itself a breach of parole (even if the media thinks otherwise) because of the absence of a strict condition of parole to this effect which should have been put in his case. Equally Manu should have had better sense than flaunt his parole in a bar.

The parole system is a salutary system. Prisoners have rights and duties. A proper full time system of parole must replace the present ad hoc system. Our reactions to prisoners and their parole are as medieval as our minds on the subject.

Thursday, November 12, 2009



Rajeev Dhavan

Eight percent growth does not define India. It is living people who do. For decades, it is poor who have made India proud. Harassed and manipulated, they cling on to their identities of faith, group and culture in ways that both assimilate and divide.

To accommodate regional and historical claims, India evolved flexible boundaries and ideas for its federalism. From 1950-1956, there were class ‘A’, ‘B’ and ‘C’ states. A States Reorganization Committee (1956) abolished this framework to create new States and Territories. After Nehru gave up his resistance, linguistic federalism went further with the creation of Maharashtra, Gujarat (1960), Punjab, Haryana (1966) and Himachal (1971). Cultural and political pressures led to the reorganization of the North East creating Nagaland (1962), Meghalaya, Manipur and Tripura (1972), Mizoram, Arunachal, Goa (1987), Chhatisgarh, Jharkhand and Uttarkhand (2000). Indian federalism is a-symmetrical with special status to Jammu and Kashmir (article 370), and to various other states (article 371A) and the Tribal Areas (Vth and VIth Schedule). Each reorganization has worked well despite the disapproving flutter that India is splitting into unmanageable pieces.

The Constitution accommodatingly allowed geographic restructuring by the Union, requiring no more than the legislature of the affected state to “express its views” (article 3). The people were not involved. There was no referenda. But should Indian federalism be re-written by agitational politics? Is there no limit to redrawing state boundaries? Just because Potti Sriramalu’s fast to death created linguistic Andhra, it does not follow that K. Chandrasekhar Rao’s (KSR) fast should yield a similar shot gun result. Conceding Telengana has triggered off a chain reaction of demands including Rayalseema within Andhra, Bundelkhand, Harit Pradesh and Purvanchal in Uttar Pradesh, Gorkhaland in West Bengal, Bodoland in Assam, Coorg from Karnataka, Vidharba from Maharashtra, Saurashtra in Gujarat, Mithilanchal in Bihar, Mahakhosala in Orissa and Ladakh and Jammu in J&K.

Demands do not implement plans. The 1956 States Reorganization Commission drew detailed plans. A lesser exercise went into the split up of Punjab in 1966 and the North East in 1971. With no role given to the people, their will is eclipsed by demonstrations, slogans and political aggrandizement – with each political party wondering how its electoral chickens will hatch. But, if the will of the people is an un-Gandhian fast unto death, KSR’s 11 day fast is now to be out-matched by 21 Gorkhas launching a hunger strike unto death.

The peoples’ will should be given effect to by a Second States Reorganization Commission (SSRC) 2010 - initially to examine the claims of Telengana, Rayalseema and Andhra. The SSRC 2010 should then examine other claims to statehood – dealing not with legislators but the people, economists, geographers and technical experts. Without overlapping with the Punchi Commission on federalism, the SSRC would concentrate on geographic federalism so that state boundaries are settled by 2015 – after which changes should be by referendum.

The historical demand for Telengana suffers many inexactitudes. In princely Hyderabad, the ‘land of the Telugus’ was distinct. Today Telangana has 10 districts, including Hyderabad, a population of 35 odd million, an area of 114,800 Sq. Kms and the mighty Krishna and Godavari rivers flowing through it. Land locked, it produces 119 out of 294 MLA’s and tips the balance with 17 out of 42 MPs. For political parties, the future will remain a puzzle. This is the probable reason why the Congress is hesitatingly willing to risk the Telengana gamble. The BJP is happy either way. It will criticize Congress if the movement fails and take the credit if Telengana becomes a reality. There is more to creating a state than party politics. Many questions arise: (i) Will the creation of the new state bring peace and a lasting solution for the area? (ii) Will the new state be financially and economically viable? (iii) Will the sharing of resources be equitably worked through? (iv) Will the developmental prospects and peoples’ rights and development be enhanced? (v) Where will State institutions and the capital city be allocated. The Chandigarh solution for Punjab and Haryana remains disputed as a lasting solution. In our context, who will claim Hyderabad? This cannot be worked out by a special session of the state legislature to affirm a Union Parliament Bill which is the only constitutional requirement.

Across the border, Nepal is trying to create a federal system. Its assembly members are concerned that small states may not generate a sufficent Consolidated Fund to pay for minimal infrastructure of a legislature, courts, police and administration. The poorer the state, the greater the need for distribution of federal revenues and grants. When I went to Iraq to discuss federated units with Iraqi legislators, they wanted to know who would control oil revenues. In Canada, oil rich Alberta shares with other provinces by negotiation. Dreams get shattered by an impoverished federal structure unable to meet just demands with federal equity.

India is now committed to a multi-tier federal structure including a panchayat system. At this point, many states are still dealing with issues concerning the representation of dalits, tribals, women and OBC’s rather than the panchayat’s real empowerment and control over development, planning, welfare and resources. Why is this important? The geographic distribution of power does not vouchsafe a real and live democracy. If many federal units induce alienation, despair and disillusionment, it is because even amongst the new units, real power eludes the real people. Koda’s Jharkhand is a classic example of how new states break down into corrupt politics. Eventually, the true test of electoral democracy is local government. If England, Europe and America breed democracy it is because local government is strong, responsive, transparent and participatory. To build new states without assuring resources to and empowering local government is to surrender these states to the zamindari of party politics immersed in the ping-pong swerves of periodic elections.

What direction will the new spate of demands for new states take? The federal reorganization of 1956, 1960 and 1966 was along linguistic lines. The North East (1971, 1975) and the recent new states taken out from Madhya Pradesh, Bihar and UP (2000) sported new cultural identities. Even amongst the linguistic states, Mahrashtra and Punjab display xenophobic truculence in ways that exasperate India’s quest of unity and diversity amidst migratory movements. Even if Nehru’s apprehensions about linguistic states were not well founded, he was right in forewarning the dangers of micro-splitting India without reserve. The message: nothing in haste.

Indian federalism’s geographic boundaries cannot be resolved by fasts unto death, stoning trains, burning buses or bringing all business and traffic to a halt. The Constitution makers (article 3 and 4), created an easy method to create new states without referenda. They did not imagine that such a process would become absurdly facile. The silences of the Constitution were to be filled with wise solutions. Each reorganization has to be thought through as viable, necessary and truly democratic and not just shifting MLA’s from the old state to the new. Carrying ‘Telengana’ further requires skill, patience and a democratic approach to divide resources and empowerments. The answer is a Second States Reorganization Commission to meet all demands so that India’s federal structure is not perpetually in unstable equilibrium. Wisdom must sober the shrill demands of politics. 10 Janpath’s knee jerk solutions cannot define the will of the nation.

Wednesday, November 11, 2009

What's in an oath?

What’s in an oath?
- Rajeev Dhavan

The unnecessary controversy over Abu Asim Azmi taking his oath in the Maharashtra Assembly, has eclipsed the issue of taking action against the goondaism that brutally disrupted proceedings in the Assembly. Should such action go unpunished? And, remain uncorrected? Are such blemishes in India’s parliamentary democracy to remain? There can be little doubt that such action constitutes a breach of privilege. The cameras recorded the entire embarrassment of events. They can identify exactly who is responsible for what. No democracy can survive to maturity, if this kind of nonsense holds it to ransom. The correct course of action is for the Speaker to issue breach of privilege notices to those who directly participated in this breach, as well as those who conspired to make it happen. This means notices should go to Raj Thackeray to ask him of his complicity in the conspiracy. If he says he was not part of the conspiracy to disrupt the Assembly, he would knock himself down a peg or two on this issue. If he admits his involvement in the conspiracy, he must be punished along with the others, albeit by token suspension for the legislators and censure for the non-assembly conspirators. At this stage, to punish by imprisonment would make martyrs of such persons. But, issuing process of breach of privilege is a must. Indian legislative democracy has been bruised too often. The fact that indisciplined elements may react with further disruptions, is precisely the reason for issuing process promptly and dealing with the disrupters and conspirators wisely.

No institution, meeting or game can survive without the imposition of such a discipline. Erring football stars are sent off the field. Cricketers are fined and banned. Court proceedings take place with dignity and free expression, precisely because of the law of contempt does not permit such disruption in the face of the court. It cannot take place at cabinet meetings or any meeting for that matter. There is a time and place for protest. The Legislative Assembly is not a place for disruptive protest with impunity. Democracy works through governance by institutions. If the institutions collapse or become unworkable, democracy will also slowly collapse.

I now turn to the oath. The Third Schedule of the Constitution prescribes such an oath for all Ministers, all legislators, judges of the High Courts and Supreme Court, the Comptroller and Auditor General of India. The President’s oath is separately prescribed (article 60), as also of the Vice-President (Article 69) and, the Governor (article 159). There was always a Hindi version of the Constitution. But if there is any doubt, the 58th amendment to the Constitution mandates the President to publish an authoritative text of the Constitution and every Constitutional amendment of it in Hindi (article 394A). If someone wants to take their oath in Hindi, they are doing no more than following authoritative text of the Constitution itself!

It should not be necessary to go into the language policy of the Constitution. The Constituent Assembly wrestled with this question with a fear that separatist language demands could prove divisive. Mahatma Gandhi, who wrote evocatively in Hindi, English and Gujarati, put Hindi on the agenda. The Congress adopted a Hindustani (a mixture of Hindi and Urdu) policy in its meeting. When in 1946, R.V. Dhulekar insisted that the Assembly’s rules be in Hindi, denying non-Hindi speakers the right to remain in the Assembly, his intervention was cut short and a Committee’s compromise of Hindi and English was accepted. With foresight Ambedkar foresaw Hindustani being ‘Sanskritized’ by Hindu writers and ‘Arabicized’ (by Muslim writers) . The debate on Hindi and English was fast and furious to a point where tempers got frayed. While, initially, Nehru did not want a provision on language in the Constitution and discussion on the future language to be used in Parliament and State Legislatures was postponed, Munshi and Gopalaswami Ayyangar made proposals. In the debate over 300 amendments were made over Hindi, Hindustani, English and the State languages. The initial constitutional compromise was to continue English for 15 years – to be replaced by Hindi as the official language, with the states being given freedom to develop their own language (article 343). A National Language Commission would further these goals. Meanwhile, the states were re-organised in 1956 and 1966 on linguistic grounds. There are detailed provisions for both state languages (articles 345 and 346) and special provisions for minority language within states in the Constitution (articles 347, 349). Linguistic claims and minorities were to be protected (article 29, 30 and 350B). The Eighth Schedule of the Constitution now recognises 22 languages which are to be developed and preserved. Hindi was to be developed drawing from Sanskrit and other state languages (article 351). While parts of the Constitution are also a dustbin for expressing concerns, the language policy was pragmatic with a preference for Hindi and with protection for not just state languages, but those of the minority too. Hindi speakers in Maharashtra cannot be denied a constitutional choice.

The practice of various assemblies in India have concentrated on the content rather than the linguistic form of the oath. The important value attached to the oath is to defend the Constitution and accept the rule of the Constitution as not just the rule of law but also the rule of the heart. It is reported that in Madhya Pradesh and Punjab members have taken their oath in Sanskrit. In Chattisgarh, MLA’s took the oath in their own dialect. Proud of Bengali, in West Bengal oaths have been taken in various non-Bangla languages including Nepali. In Andhra Pradesh, MLA’s have taken their oaths in Hindi and Urdu.

Sometimes ‘oath-taking’ in a particular language becomes a symbolic political statement. In Punjab, the BJP MLA Lakshmi Kanta Chawla took his oath in Sanskrit – an odd favourite from time to time. In 2008 in Jammu Kashmir, 11 members of the BJP insisted on oath taking in Dogri whilst Abdul Rashid took his oath in Kashmiri.

Most important to our present controversy is the fact that the Maharashtra Ekikaran Sangam members in Karnataka took their oath in Marathi. So, a Marathi speaker can take an oath in Marathi in some other state, but in the latest fracas a linguistic minority speaker was denied the right take his oath in a language of his choice in Maharashtra! What is even more ironical is that even in the Maharashtra Assembly, two BJPs member took their oath in Sanskrit (Girish Bapat and Girish Mahajan). Congress members took their oath in Hindi (Amin Patel and Ramesh Singh Thakur) and English (Baba Siddique). It is said the Samajwadi Party MLA, Abu Asim Azmi, drew attention to himself and his choice of language. Suppose he did, so what?

India is a multi-lingual country whose Constitution affords linguistic choice as a constitutional right. To make a plea for a language is permissible. To do so with violence in the State legislature with disruptive and divisive aims and ends, is not.

Saturday, October 31, 2009

Exile or Home Arrest?


Maqbool Fida Husain, an art icon, has become a political toy. The Congress led Union Government has flashed support for his return to India. On 29 October 2009, it declared that it would approach the Supreme Court for a quick disposal of his cases. On 30 October 2009, he was assured ‘Z’ security. This is clearly a change of heart. In May 2006, Mr. Patil, the Congress Home Minister, issued an advisory to the Police Commissioners of Delhi and Mumbai that “there are grounds to believe that certain paintings of painter M.F. Husain which hurt the religious sentiments of the majority community, and, therefore might be a provocation for communal disturbance”. In other words: “Prosecute Husain. Criminalize his art as hate speech”. Karan Thapar reminded us of an old earlier interview where Congress Spokesperson, Jayanthi Natrajan responded on the need for protecting Husain by saying, “I don’t think it’s the highest thing on our list of priorities at the moment given the act of terror against our country (and) given (the) particular situation we find ourselves (in). It’s simply not the job of the government in my view.”

After all this, the government now wants to protect Husain and expedite his trials. The hype apart, the offer is a limited offer: the process of criminalization of his work will continue. He should give up his freedom in exile, give effect to his sentiment to return to India and virtually become a prisoner under home arrest with ‘Z security’. Husain pithily remarked that the government has not been able to protect his paintings, leave alone himself.

These new proposals are minimalist. They offer little by way of ‘law’ and an alluring feeler to civil libertarians, secularists and Muslims that the Union Government is prepared to go an inch or two forward. This controversy started thirteen years ago in 1996. In September 1996, Mr. V.S. Vajpayee called Husain a ‘butcher’ for allegedly painting Hindu goddesses in the nude. No real protection emerged when the Herwitz Gallery was attacked in 1996 and 2004. Husain’s South Mumbai home was invaded in May 1998. These sites remain unprotected. Mr. Ashok Pandey offered UP Minister Qureshi Rs. 100 crores to kill Husain or when in February 2006, Jashubhai Patel from Gujarat offered 1 kg of gold for gorging Husain’s eyes and cutting his hands off. Around the same time the Congress Minority Cell of Madhya Pradesh offered 11 lakhs for any patriot who would chop off Husain’s hands for hurting Hindu sentiments. What did the Union Government and State Governments do about these criminal exhortations to maim and kill Husain? An official party political protest? None. Legal action? None.

Instead eight complaints were filed against Husain all over India. In turn, in April 2006 warrants were issued in Surat and proceedings going on in Rajkot which were temporarily injuncted by the Supreme Court allowing Husain to appear through counsel to apologise. Had this dispensation not been granted, Husain would have been assaulted, possibly killed. Husain’s humiliation continued. Eventually on December 2006, all cases were transferred to Delhi. In August, 2008 his paintings were not displayed in an art summit even though the government had taken a mildly positive stance that his paintings be displayed. When Minister Ambika Soni inaugurated this summit on 22 August 2008, the Husain issue fell to silence. On 2 March 2009 Himachal removed a chapter on Husain’s life from an NCERT book on the basis that this would not “inspire students”. In fact, if anything, Husain’s ascent from footpath to India’s greatest artist is nothing if not inspiring. The point is that even protest by political parties was minimal even non-existent.

Meanwhile the legal processes churned on. We know that on 4 December 2006 complaint cases were transferred to Delhi by the Supreme Court. Then, on 8 May 2008 came a remarkable decision by Justice Sanjay Kishan Kaul which dismissed the case against Husain after balancing protecting art and free speech against the allegations of obscenity, and communalism under the Indian Penal Code. This is one of the most significant decisions on artistic free speech for a long time. Clearly, the rest should follow suit. Now, the government wants to expedite the cases. Surely this should have been done a long time ago.

There is a difference between the “law” and the “use and abuse” of the law. Unfortunately, our law is complainant based. In both civil and criminal law the ground of “vexations and frivolous” litigation has been narrowly construed to surrender to the view that even if a worthless case has something in it, the trial will go on. The concept of malevolent litigation is limited. The ‘abusers’ of the law and legal processes have the upper hand. Perhaps, heavy costs in such cases to meet actual expenses and for violation of fundamental rights might deter such ‘abusers’ of the law. But judges, imbued by their own biases and predilections are mild except in dealing with contempt law in the judges’ defence.

Equally significantly, India’s substantive law on hate speech (whether anti-feminist, obscene, racist, anti-dalit or tribal or communal) is drifting from a strictly applied concept of “hate” and what is “objectionable” to a more lax approach of “hurting sentiments and sensitivities”. This further strays into virtually forbidding what others do not like. Many people may not like something. They may misconstrue motives. They may politically invent sensitivities to gather support and votes. These are realities of ‘hate’ speech litigation which is usually inspired by hate. The Husain litigation is an example of this– nothing more, nothing less.

Into all this, we have to bring in the concept of apology. Nelson Mandela saved South Africa by his policy of truth, reconciliation and apology. In Indian law there is little scope for apology at pre-litigation and trial stages. Some minor criminal cases are compoundable. Even “hate litigation” has no scope for “reconciliation” and “mercy”. I say this because Husain has genuinely apologised to a point of removing all paintings within his gift from public purview. That a Muslim is prevented from painting Hindu gods and goddesses in forms which they have depicted for centuries is tragic. But he has apologised.

What weight do we give to this genuine apology? One complainant in the Supreme Court agreed to withdraw his complaint because of the apology. Why cannot the others do the same? If they do not, it is because they are diehard fundamentalists committed to being unreasonable. These ‘die-hards’ are vulnerable to pressure – not just from secularists (whom they ignore) but from the BJP which should bring peace by publicly declaring that Husain’s apology be accepted. Many are not happy with Husain being driven to apology. But Husain has apologised. What we need is a campaign: “Accept Husain’s apology”.

As far as legal processes are concerned the High Court’s jurisdiction be invoked. Justice Kaul has already given a landmark judgment. The High Court be urged to decide expeditiously. This litigation has to be brought to an end.

Unrelenting fanatics can only be kept at bay by providing security for Husain. In the meanwhile, 1969 painting of Husain was sold at Christies, London for Rs. 3.1 crores. But commercial justice cannot be a substitute for a real remedy.

Monday, October 12, 2009

When should judges not hear cases

When Should Judges Not hear Cases
- Rajeev Dhavan

Justice Kapadia has raised an obscure but interesting question, on when judges should recuse themselves from hearing a case. Sometimes Supreme Court judges do this because they have participated in the case in the High Court below; and, do not want to sit in appeal on their own decisions. Attitudes differ. Some judges feel that if they have only passed a minor order in the Court below, they should not hear the matter. However, in a matter from Rajasthan, where he had been Chief Justice, Justice Lakshmanan disarmingly asked the lawyers at the bar: “Do you object to my hearing this matter?” Dutifully, the lawyers invariably say: “We have full confidence in your objectivity.” Some judges, however, will not touch a case which they considered in any capacity in the court below.

The second class of cases is where the judge recuses himself because he has a personal interest in the case. The obvious example is where it is the judge’s own case, or that of his family or a close friend. The more indirect example is where a judge has some truly remote nexus with a case which has nothing to do with the issues of the matters before them. Irrespective of what the case, Justice Sujata Manohar in the Supreme Court would not hear matters concerning a big Bombay Corporate where she had shares.

An irresponsible controversy was raised about Justice Kapadia participating in the controversial Vedanta case where he was a member of Forest Bench which allowed the mining of bauxite in Orissa in a eco-sensitive tribal area subject to various concessions and conditions. I say the controversy was irresponsible because I must candidly state, that Justice Kapadia is an upright judge whose integrity is unquestionable. Disclosing his interest, Justice Kapadia disclosed that he owned some shares in Vedanta and with candour asked the lawyers appearing in the case whether he would recuse himself from hearing the case if the lawyers had any objections. Or words to that effect. Distinguished lawyers told the judge that he may proceed to hear the matter. Without casting any aspersion on the judge (and there are none), the question is : was this the right thing to do?

My pen travels in the direction of Pinochet case (1999). Five Law Lords heard the case, affirmed Pinochet’s extradition by a majority of 3:2 and declared he had no immunity. Lord Hoffmann was with the majority. After this decision, it was suggested that Lady Hoffmann was connected with Amnesty International. Amnesty had been heard in the case. It was further clarified that Lord Hoffmann was a Director and Chairperson of a sister charity of Amnesty. In the follow up on Hoffmann’s recusal House of Lords observed: “However, close these links are, I do not think it would be right to identify Lord Hoffman personally as being a party to the appeal”; and added that cases of automatic disqualification were not limited to cases of proprietary and pecuniary bias. Indeed, this question arose over Lord Denning not hearing Barclay’s Bank cases because Lady Denning had shares in that Bank.

Similar questions have arisen in India. Prefacing the due process requirements of natural justice, the law declares that justice should not only be done, but must appear to be done. The usual test is: was there a real likelihood of bias? The higher you go in the judiciary; the confidence of the people becomes more and more important because the fate of the nation is often in the hands of a bench of the Supreme Court where one judge can tilt the balance. In Lord Hoffmann’s Pinochet case, the Lords took the view the judge’s interest should be disclosed; and added that “(i)t is no answer for the judge to say that he is in fact unpartial and that he will abide by the judicial oath”. At this level, it is better that even if there is no likelihood of bias and no opposition from any lawyer and litigant, justice must appear to be done.

The Pinochet case came to India through the Punjab Civil Service (2006) case before the Supreme Court of India. Here judges, who had decided a service matter in the Punjab High Court on the administrative side, heard the case on the judicial side. Justice Sinha in the Supreme Court plaintively asked: “We also fail to see as to why two senior Judges who had headed the Committee should have been made part of the Bench (that decided the case)”. The Punjab judges, with disarming candour, asked lawyers appearing in the case if they had any objections. There were none. The judges heard the case. What can any Counsel say under these circumstances? If he says the judge should recuse himself, there would be a mild accusation of bias? If he says the judge should continue to hear the matter, justice may not appear to be done even if there is no bias. Equally, no lawyer wants to lose favour with the judge. Justice Sinha took a tentative view that this was a fit case for judges to automatically recuse themselves. However, Justice Dalveer Bhandari held that the lawyers green-signalled the judge to continue waived their right to future objection. Raising the defence of waiver seems strange. All this was not over just winning or losing a case. It was a question of justice; and confidence in the judiciary.

Personally, it is not fair for a judge to ask lawyers whether he should recuse himself from a case. No lawyer can truthfully answer such a question either on his own behalf or on behalf of a client. It is a question that the judge himself alone can answer. To pass this on for advice from a lawyer in the case is self defeating.

With this, I return to the Vedanta case. Justice Kapadia impeccably followed a practice that if no one objects, a judge may proceed with the matter because his interest in the matter is too remote or incidental to affect the outcome. The practice is not wholly settled. Some judges seek clearance from the bar and the parties; some judges do not. The latter judges do not put the issue to consensual resolution. Justice Kapadia left it to the Bar after stating his interest. That in itself was admirable. But it is not for the bar to decide whether the judge should sit on the bench for a particular matter or not. For those who want to embarrass Justice Kapadia, let them forbear. He is unimpeachable and straightforward.

If a judge has shares in a company, and a case comes before him which affects the company’s prospects and standing, the judge should refuse to hear the matter. This should be a case of automatic recusal. This is what I argued half successfully in the Punjab case – convincing one judge. In the Vedanta matter, any permission was going to enhance Vedanta’s standing and prospects.

There may be cases where the doctrine of necessity requires a judge to hear the matter because no other judge is available. But that is not the case here and would depend on the nature of the judge’s interest.

This article is not about Justice Kapadia or the Vedanta case. This important issue surfaces all the time.

Saturday, October 3, 2009

Mumbai not Bombay

Mumbai not Bombay
- Rajeev Dhavan

How long will this continue? To what extent will the Thackeray family usurp and function of the Censorship Board? In the present milieu, why did it become necessary for Karan Johar to seek and agree to follow the censorius advice of Raj ‘Censorship’ Thackeray? Is this the real state of affairs in India? Does ‘social censorship’ override legal censorship? In the past apologies had come from Amitabh Bachchan. Michael Jackson paid a visit to Bal Thackeray, Deepa Mehta’s Water found a watery grave even before filming in Varanasi. After release, film theatres have been targeted in Gujarat over films Modi did not agree with. Social censorship has become easier and more dominating than legal censorship.

The latest addition to social censorship is over Karan Johar’s ‘Wake up Sid’. At places, the film described the famous city by its old name (Bombay) instead of the new one (Mumbai). The new one is ostensibly the name of the old village of centuries ago. The actual new city of Bombay has known no other name than Bombay until now. A statement made by Raj Thackeray objected that the film used the word “Bombay” (which it has been for several recent centuries or decades) instead of Mumbai (which was, allegedly, the name of a pre-Bombay village) to describe the city. The film itself has nothing whatsoever to do with the Bombay/Mumbai controversy. It is not a political statement. It is the story of a rich person’s son who finds himself out of favour for insolence to the family and looks to find a job of his struggling choice. But, the use of the word ‘Bombay’ enraged Raj Thackeray, the Sena and their friends. May be, it didn’t enrage them. Divisive politics has become emotionless in the hands of its patrons. But Raj Thackeray made sure that until Raj was appeased by apology and compliance, the film was in jeapardy. It was not Thackeray who went to Johar’s house for making a request for removing the word ‘Bombay’ from the film. It is Johar who came in the contrite proverbial sack cloth and ashes to seek forgiveness and leave pre-censorial justice to Raj. The latter was insistent, uncompromising and self satisfied that a great wrong had been committed. The solution was a disclaimer apologizing for the use of Bombay instead of Mumbai. Thackeray so ordered, Johar had no choice but to obey. If he had not followed these prescriptions, protests would have been organized in Mumbai – even Maharashtra. He was the self appointed custodian of Mahrashtrian rage. The film would have picketed, the prospects of the film’s release would have been blighted. The loans on the film would have mounted. Pirated versions would have finished off the commercial prospects of the film.

State censorship is bad enough, but politicized social censorship is ‘nasty, brutish and short’. In India, various legal forms of censorship exists – under the Indian Penal Code, Customs Act, Criminal Procedure Code (which has ban provisions) local statutes and so on. The incidence of censorship is high. The list is endless: Salman Rushdie’s book, Taslima Nasreen’s novels, the film Black Friday. The celebrated Raj Kapoor was taken to court for the film ‘Satyam Shivam Sundaram’. Many TV films were liberated into broadcast or circulation by the Supreme Court and other courts including ‘Aakrosh’ on Gujarat violence, ‘Chand Bujh Gaya’ on rioting, Anand Patwardhan’s ‘Ram Ke Nam’ and his documentary ‘In memory of Friends’ on Bhagat Singh, the TV serial on ‘Tamas’ by Bhishma Sawhney, Ore Ore Gramathile on casteism and many more. The courts have been vigilant for free speech – including cinema and TV speech.

Earlier, the Supreme Court’s in the celebrated Romesh Thappar case (1950) suggested that pre-censorship was prima facie invasive of free speech. We are concerned here with speech before publication, distribution or circulation. However in KA Abbas’s case, (1971) the court allowed pre –censorship in cinema because of the nature of the medium. The only form of legal censorship permissible is by, and under, a law which is reasonable and within the constitutional categories of public order, the sovereignty and integrity of India, defamation, decency, morality, contempt of court and incitement of offence. But the exercise of this power has not been given to Raj Thackeray, but to the film Censorship Board set up under the Cinematograph Act 1952 which was upheld in the Abbas case. The principles to guide the Board are the very same as the limitations that are in the Constitution. The film is reviewed by experts under the Cinematograph (Certification) Rules 1983. The process is rigorous including viewing. There have been misgivings that the Board has been over-bearing, angular and conservative. But, the complaint is that it goes over the top. The view of the Board is final. It can be challenged as it was in the case of the Bandit Queen and other films. But some deference has to be given to the Board.

The Supreme Court went one step further. In Shankarappa’s case (2001), an argument was made that if the film was released there would be a law and order problem. The court rejected this facile objection. Such factors were taken into account by the Board. It was the duty of all authorities to follow the Board’s decision. The Court went on to say: “It is for the State Government concerned to see that law and order is maintained. In any democratic society there are bound to be divergent views. Merely because a small section of the society has a different view, from that as taken by the Tribunal, and choose to express their views by unlawful means would be no ground for the executive to review or revise a decision of the Tribunal. In such a case, the clear duty of the Government is to ensure that law and order is maintained by taking appropriate actions against persons who choose to breach the law.”

The government could review the decision of the Board. But it could not disobey. There can always be protests about a film, but not threatening violence. Criticism is maximally permitted. But it can never be blackmail. Don’t see the film if you do not want to. The legal censor is the Censor Board not Raj Thackeray. Or any one else. To allow Raj Thackeray the right to pre-censorship defies both democracy and the rule of law; and signals the end of governance.

So far, our Constitution has been Inida’s framework of governance. Unlike other new constitutions, India’s constitutionally directed governance has succeeded where others have failed. Social attitudes and pressures will always exist. But for social censorship to topple legal governance is an invitation to chaos.

One curious tail piece. Because the High Courts of Bombay, Calcutta and Madras are chartered and not amenable to simple statutory changes. Even after Mumbai replaced Bombay for all other purposes, the High Court of Maharashtra is still called the “High Court of Bombay’!

Beyond that, if this is how constitutional governance is gazumped in what was Bombay and is now Mumbai – I cry for you.

Saturday, September 19, 2009

Dinakaran Affair

The Dinakaran Affair
- Rajeev Dhavan

If Justice Dinakaran is not fit to be a Supreme Court Judge, why is he fit to be a High Court judge? Did the collegium slip up when they made him Chief Justice of Karnataka? Or, indeed, when he was appointed a judge? What now? What next?

India has a grand higher judiciary, with enormous powers which it has expanded by appropriation. The good judges get on with what they have to do. The ‘bad’ judges rest content that they are immune. No one can touch them. They cannot be removed except by impeachment which is long drawn and imperfect. Some judges resign, such as Shamit Mukerjee. Some fight their way through the legal process such as Justice V. Ramswami (who was saved by Parliament) or his father-in-law, K. Veeraswami (who was saved by the Supreme Court). The good judges are becoming mediocre. The bad judges under-perform and are suspect. At many levels, judicial decision making is inept. Judicial office carries pomp and ceremonies on a daily basis. Compared to the Bar, judges are poorly paid, confronted with temptation and with post retirement blues. Some hanker for government jobs after retirement. Some make lakhs after retirement as arbitrators. The era of the great judge seems over. This pessimistic account is a painful honest assessment.

The ‘Dinakaran’ imbroglio brings many of the problems of the new method of appointment into focus. The charges against him are: (a) land grabbing on his estate to enlarge his holdings to 550 odd acres where he is sign-posted as an “Emperor,” (b) corruption in judicial decisions by (i) granting bail to hardcore criminals under suspicions circumstances and (ii) in various cases especially in the Binny Cotton case (where alleged concessions made by government counsel are denied). He is also challenged for petty things such as not allowing Justice Shylendra Kumar to declare his ‘assets’ on the Karnataka High Court website. Justice Paul Daniel Dinakran’s declaration: “I’m wealthy, I don’t need to be corrupt” is not sufficient. I once asked a rich uncle: “What does one give to the man who has everything”. The rich birthday boy replied: “A little more of everything”. Theoretically being rich is not a defence for bad financial behavior. Justice Dinakaran has a case to answer on disproportionate assets in violation of the law and suspect decision making. Advocate G.S. Visweshwara of Bangalore is right in asserting that allegations are not proof. But, how do we proceed? The Advocate Association of Bangalore says he be denied work. There is a more serious move to boycott the Dinakaran bench. The Bar Council of India has expressed doubts about his appointment to the Supreme Court. Some Madras High Court lawyers have long list of possible charges. The Tamil Nadu farmer’s association wants his alleged appropriation of government waste land in Kaverarajapuram in Thiruvalluvar examined not just as a land grab, but in total violation of the land ceiling Act. Some lawyers support the judge; some are hostile.

Justice Dinakaran has declared that he will not accompany the ‘judges exchange’ delegation to Australia. There is a lot of doubt whether he deserved to be a delegate over others in the first place. Someone seems to have a soft spot for him. But the process of his appointment needs scrutiny. Under the Supreme Court’s dispensation the collegium (at present Balakrishnan CJI, B.N. Agarwal, S. Kapadia, Tarun Chatterjee and A. Kabir JJ) decides. In addition, the collegium should know the views of other Supreme Court judges who had knowledge of the judge – in this Katju and Ganguly JJ. who had been Chief Justices of Madras and Cyriac Joseph and Ravindran JJ who had been at Karnataka. Rumour has it that this full consultation did not take place with these judges. The CJI had called in Justice Dinakaran on 15 September 2009 to get a full explanation backed by documents. On 18 September, his case went to the collegium who were unable to come to a view.

How did this insular and insulated collegium come into place? In Supreme Court decisions of 1982, 1993 and 1998, the Supreme Court hijacked the power to make High Court and Supreme Court appointments. Was this hijack constitutional? The answer is ‘No’ – except that the Supreme Court made it the law of the land. Five ex-Chief Justices of India have told me that it was a dream solution, which is now not working. But judges do not want to give up this exclusive mastery over judicial appointments.

The collegium has not investigated the potential appointments, properly. Apart from reading some judgments of such potential appointees, the collegium has nothing to go on except rumours and their own biases or prejudices. If there was ever an ill informed and skewed method of judicial appointments, it is this. High Court Chief Justices and judges (including sitting judges of the Supreme Court) make it a point to call on the CJI and other Supreme Court judges to win favour. One successful appointee going for an appointment with the CJI before his appointment asked: “What should I call him: ‘My Lord’ or ‘Brother’!” The collegium claims to go on seniority and exceptional merit. This is not followed. The executive, which has both knowledge and bias has minimal significance due to the Court’s hijack which selects a lowest common denominator basis.

Judges are scared that the present system of exposure by a few lawyers through the Committee of Judicial Accountability (COJA) is an unfair bloodhound method. My chamber senior Kapil Sibal clearly thought this was the case, when he argued the V. Ramswami case into stalemate. I believe that this ‘private’ lawyer ombudsman method is not totally fair. For me, Fali Nariman and Anil Divan leading the case against Justice Dinakaran gave greater credibility to a process that otherwise crucifies judges in the media. Yet lawyer inputs into the process are important, meaningful and cannot be denied.

The answer is to (i) give up the collegium, (ii) have a transparent system of selection, (iii) allow comments by the bar and various jurists, (iv) give the executive a better role, (v) make a decision with the full input of all Supreme Court judges (some of whom learn of new appointments through the newspapers), (vi) give the judge a hearing before the whole court where an adverse decision is possible. These proposals can be implemented now.

For the future, we have the following alternatives: (i) Senate confirmation – following the US method (which is inappropriate to India), (ii) an ombudsman over the collegium suggested by Fali Nariman which is also inapposite, but exposes the need for an investigative tool and (iii) a National Judicial Commission with inputs from lawyer, and others. This last solution has been aired since 1973 after the supercession controversy. This is the appropriate solution.

Constitutional governance succeeds because of a system of renewal. Parliament is renewed by the people through elections. The civil service is renewed by selection through the Public Service Commission. Judges are selected by a closed, inept and irresponsible process. Yet they decide matters that invalidate laws and ever constitutional amendments. The National Judicial Commission is the answer. But will judges give up the cozy, but dangerous, power which they have mis-appropriated.

Saturday, September 5, 2009

Secrecy and the Supreme Court


What will the Supreme Court do now? Will it appeal to itself in its own case? And decide in its own favour?

Adding vulnerability to embarrassment, the Supreme Court laid its confidential soul bare in a writ petition to the Delhi High Court challenging the order of disclosure by the Central Information Commission (CIC) under the Right to Information Act (RTI). The issue: disclosure of assets and dragging the Chief Justice of India into the vortex of the RTI. The highest court of the land was at the doors of a subordinate court. This must have been done at the instance of the CJI even though filed by the information officer. Curiously, the information officer who was so ordered by the CJI to approach the Delhi High Court, claimed that under the RTI, the Supreme Court was quite distinct from the CJI who ordered the litigation. We must assume that the CJI, who must have given the orders to file the Delhi High Court petition, was the real behind-scenes litigant before the High Court.

On 2 September 2009, Justice Ravinder Bhatt displayed great erudition and clarity in telling the CJI and the Supreme Court that (i) the CJI was a public authority under the RTI; (ii) Information on assets falls under the RTI; (iii) the information given to the CJI is not confidential or in a ‘fiduciary’ capacity; (iv) the content of assets declaration is not personal information unrelated to the judges’ work and status; and (v) the CJI could easily provide greater clarity on assets declaration in consultation with his brother judges if he wished.

This is a brave decision, brilliantly analysing the law in terms of constitutional democracy by saying that the RTI is “one of the most important pieces of legislation, in the post-independence era, to effectuate democracy…like a powerful beacon which illuminates unlit corners of state activity and of public authorities which impact citizens’ lives, to which they previously had no access”. To this Justice Bhatt reminded his own brethren (including the Supreme Court): “The underlying promise of every modern constitution is that power, whenever given, is held and exercised in trust”. This is equally true of the CJI and the Supreme Court. This is a sobering thought judges should so well to remember. Just last week a Supreme Court judge listening to a case suggested that as a Supreme Court judge he was Supreme, could do the legally impermissible because there was no appeal to any higher authority! Power cannot be allowed to go to anyone’s head – least of all judges.

Justice Bhatt’s judgment reminds us that under the present law judges have no obligation to disclose their assets to anyone. This is in contrast to America, where the Ethics in Government Act 1978 and the Judicial Disclosure Responsibility Act 2007, provide a balanced public interest approach to obligate the judges to put information on themselves in the public domain. In India, Law Minister Moily withdrew the Judges (Declarations of Assets and Liabilities) Bill 2009 under pressure of public opinion and we are still in the lurch about its future. Clearly in India, the system of disclosure about the judiciary has been devised by judges, is imperfect, self serving and half hearted. It is better to have a proper system set up by Parliament than wait for judges to stumble on the right solution.

The “judges assets” decision has not arisen because judges are under an obligation to reveal assets, but because judges have volunteered this information in a ‘Judges Declaration’ of 7 May 1997. It is the High Court rebellion led by Justice Shylendra Kumar that has consolidated into public promise. After 12 years, the issue of “judges assets” still flounders for style. The simple answer: “Step in Parliament and resolve the mess”. But, it is important that Parliament should be balanced. At present, the judiciary is not one of the institutions exempted from RTI (Section 24). Total exemption may be warranted in some cases (the schedule is already too wide), but not for the judiciary which prides itself on accountability through openness. Today, even information on the workflow, complaints against judges and budget of the Supreme Court is not available. When Fali Nariman tabled a bill for disclosure of such information, Law Minister Bhardwaj denied support!

But, Justice Bhatt’s judgment leaves one or two issues open. In the operative order, the Supreme Court’s information officer is directed to “… release the information sought by the respondent applicant, - about the declaration of assets, (and not the contents of the declaration, as that was not sought for) made by judges of the Supreme Court, within four weeks”.

What happens about the contents of the declaration? It was not asked for, so it was not given? But if it is asked for, will it be given? Justice Bhatt has made it clear that the information does not come under the broad exemption of information in a “fiduciary relationship” (Section 8 (1)(e)). Technically, he is right because “fiduciary relationship” vest in guardians, trustees, company directors and so. The CJI comes under the RTI. But, while cabinet papers are specifically exempted under RTI (Section 8(1)(i)), the judiciary’s deliberations are not. The privacy exemption relates to personal information not related to official work (Section 8(1)(j)).

But Justice Bhatt has, perhaps unwittingly, set a cat amongst the pigeons. If the CJI is under RTI, what happens to the information about appointing High Court and Supreme Court judges? Following the Supreme Court’s 1993 and 1998 decisions, the CJI and the collegium make many crucial decisions which have changed the face of the judiciary. Will this information be available during or after this decision process? Or will the CJI and collegium judges claim a new found constitutional immunity of information which they devise for themselves?

The Supreme Court’s 1998 decision says that the opinions of judges should be sent to the Law Ministry and Cabinet and even disclosed to a recommended judge whose appointment has been shot down by the Cabinet. The Cabinet’s deliberations are exempt from RTI, but the Supreme Court’s paper work is not.

As things stand, the people of India are baffled at judicial appointments even, and especially, to the Supreme Court. Justice AP Shah, Chief Justice of Delhi – arguably one of the best judges in India has not been elevated to the Supreme Court. Why? Is it because of an intuitive needle of suspicion festering in one or two members of the collegium. In recent years, while making appointments to the higher judiciary, the Supreme Court’s criteria of seniority or exceptional merit have been flouted on the basis of personal preference.

Basically, the Supreme Court and judiciary are highly secretive, but hugely empowered high profile institutions. Justice Bhatt steps in the right direction. The real controversies will follow about appointments complaints made against judges to the High Court or Supreme Court and even assets declaration.

Will the Supreme Court, a litigant before Justice Bhatt, appeal to the Delhi High Court Division Bench; and, then to the Supreme Court in its own cause. It should not. But, that drama is yet to unfurl. Wisdom not obstinacy or grudges should rule the future.

Thursday, August 27, 2009

The Brethren

The Brethren
- Rajeev Dhavan

There is a myth about the brotherhood of judges. In India, the higher brotherhood consists of High Court and Supreme Court judges. Although the Supreme Court is supreme, it is self confessedly not infallible. Justice Reddy’s account of Keshvananda’s case is hilariously disturbing. The ‘right’ and the ‘left’ judges opened up in acerbic dispute. It words could wound, they did. Way back in the 1960’s, a Gujarat judge judicially declared that he was duty bound to follow the Constitution not the Supreme Court. The High Court judges are bound to follow the law laid down by the Supreme Court (Article 141). But the brethren do not have to like each other. The pretence to do so increases when High Court judges have to be on best behaviour if they want to be Chief Justices of High Courts or on the Supreme Court. The relationship may be feudal; and caste based and affiliation considerations do not elude judicial appointments. Chief Justices are first amongst equals.

Public disagreement began when Justice D.V. Shylendra Kumar declared that the Chief Justice of India (CJI) could not speak for all the judges. Frankly, he was right. The judges were not individually consulted. There is no law that asst cannot be declared. The CJI probably does not even know the names of all the High Court judges. True, as former CJI Verma put it, the CJI must lead, but he must lead by example. Perhaps, initially this is a case where the CJI should not have gone to the press at all especially as the issue was before Parliament and the Supreme Court itself was in litigation in respect of the Right to Information application before the Courts. But the CJI is a public person and he is constantly asked questions by the press. So he answers their queries. Thus, without being controversial, he gets involved in controversy.

But, for the Chief Justice of India (CJI) to say of a brother judge that he was “publicity crazy” on the 23 August 2009 seems embarrassing not just for the judge but also for the brethren. The CJI’s view that the declaration of assets should not be made public was defensive – seeking to avoid embarrassment for the brethren. But, it so happened that the brethren were more embarrassed by the ‘half secret’ strategy of declaration without publication. Some judges felt they had nothing to hide. In fact, this was the view of many Supreme Court judges - made clear in the conclave meeting of the Supreme brethren on 26 August 2009. The question in the public minds on merits was: which was more embarrassing - the half secret policy or the full disclosure policy. The judiciary has a lot of power which it exercises with both courage and craft as well as to ambitiously enlarge the judicial power. This has already made the Indian judiciary the most powerful in the world. But, in a democratic set up in an open society, confidence for the judges and the judiciary has to be won. It does not fall like constitutional manna from heaven. The more ambitious an institution and the more broad based its popular appeal, all the more essential that the confidence of the people be ignited and continued.

A small needle of suspicion in the minds of the people about hidden assets and the last bastion of the rule of law would collapse. It cannot be over looked that there are already allegation of corruption against the judiciary. Enter the famous 1 in 5 (20%) of judges are corrupt; former CJI Bharucha’s deprecatory, but flamboyant, estimate. From the Bombay crisis of the early 1990’s to the Delhi crisis of the early 2000’s and the recent lingering crises in Allahabad and Chandigarh, many controversies have surfaced. But what is worse, is not the controversies that attracted publicity, but the rumours; and, they are many. The worst way to quell these rumours is to have a half secret policy whereby the judges reveal assets to the CJI, who will keep it under lock and key.

The public are as curious about their judges as they are about parliamentarians. It is the Supreme Court in the Common Cause and Association of Democratic Reforms cases which set the norm for public disclosure. Why should judges not be part of this open policy? In fact, judges who collectively decided lakhs of cases every year have greater reason to declare that their income has not gone up during their tenure. Many judges were successful at the bar. Some were not. Market place selection does not always choose ability best. Judges sacrifice a lot to become judges. Earlier High Court judges were often appointed in their 30s, now they are usually appointed in their forties – some in their fifties. The sacrifice is immense – combined the life of cloistered virtue they have to lead. But, the brethren, like Caeser’s wife, have to be above suspicion. In these troubled times, it is essential.

In my view, Justices D.V. Shylendra Kumar, K. Kannan, Chandru and B.H. Marlapalle led the way in stating their intention to declare their assets. We can cavil that they are “publicity seekers”. But, in this case, they have been rebels. They have, in fact, cut the guardian knot of this long lingering controversy which has engaged the RTI authorities, the Delhi High Court and the Supreme Court.

It is to the credit of the CJI that even though he adopted a variant ‘half secret’ view or ‘hidden-from-the-public’ approach that he was amenable to listening to his colleagues and change his mind to adopt the ‘full disclosure’ approach. The Supreme Court’s conclave discussion of 26 August 2009 also shows the openness and balance that we expect from the judiciary. This is, in fact, the governing principle of judicial decision making: firmness in decision making but always with an open mind.

The Supreme Court has also made it clear that judges will not entertain queries from the disclosure made on the website. This stresses that the disclosure is for the public interest and not to enable litigants, lawyers and the media to harass judges.

The Supreme Court and the rest of the higher judiciary have still a long way to go in the matter of judicial appointments and oversight over judicial indiscipline (including corruption). Our present methods to deal with these issues are weak. We need a National Judicial Commission.

Monday, August 24, 2009

Publish and Be Damned

Publish and be Damned

Rajeev Dhavan

India guarantees free speech, but takes it away at will. Free speech is expensive. Censorship free. If the government does not get you, the goons will. If the goons are unleashed, their party bosses will act as pontiffs. The spiral of social and state censorship in India is increasing.

Jaswant Singh is an amiable man – not normally controversial. But he is a caught in the worst controversy of his life – humiliated by his political friends and unceremoniously expelled from the BJP without the dignity of courtesy or due process. His book Jinnah: India- Partition-Independence (Rupas, 2009) presses the case for Nehru, Sardar Patel, Gandhi and Mountbatten as the guilty men of Partition – to partially absolve Jinnah. Here, I am not really concerned with the merits of the controversy espoused by politicians like Lohia, lawyers like Seervai, historians like Ayesha Jalal, British apologists like Campbell-Johnson. History’s laws of causality are not so remote from commonsense or law. It seems incongruous to totally absolve Jinnah of his blackmail and insist that only the blackmailed goofed. Yet the latter cannot be given absolution. This argument will continue. No one can stop or silence it.

In our times the forces of censorship have been apocalyptically unleashed themselves like the dogs of war. India suffers two kind extreme censorship: social and state. The advent of social censorship is as frightening as it is spectacular. Hindutva’s protest against Deepa Mehta’s Fire and the Water. The filming of the latter stopped in Benares. Hussain’s paintings targeted for destruction. Art galleries destroyed in Gujarat. The library of the Bhandarkar Institute in Poona ransacked. An academic work on Shivaji banned in Mahrashtra which even the Supreme Court dealt with circumspectly. Even actors like Amitabh Bachchan are immediately and respectfully apologetic lest their films meet tension on the circuit. The now immortalized Michael Jackson paid respects to the Shiva Sena supreme to safeguard his concert. The BJP has impliedly supported this thuggery since its political existence depends on maintaining this vitriol. What was silent emerges in Arun Jaitley attack on Jaswant Singh’s book that his political party cannot “allow any member, more so a frontline leader to write and express views against the party’s core ideology”.

It is idle to contend that it is the RSS that is holding the BJP back. It is the BJP that flaunts its hindutva based censorship and uses it to political advantage. Disciplining Jaswant Singh is one thing, banning his book quite another.

With this we move to state censorship. To ban and burn books seems medieval. Under Indian law banned published material suffers forfeiture under Section 95 of the Criminal Procedure Code (Cr.P.C.) - to lie in government godowns with rats, mice; and eventually to be pulped or burnt. Books and material can be banned in three principle ways : (i) ban import and export under customs laws by the Union Government, (ii) ban by state governments, (iii) ban under local laws. Salman Rushdie’s Satanic Verses was banned in 1988 under customs law. So, too, in 1951 a photograph of Nehru wearing imperial robes! The book and film Nine hours to Rama. Earlier during the British period Katherine’s Mayo’s Mother India, Mrs. Gandhi banned Michael Brecher’s biography of Nehru in 1975. This is a deadly power.

But the real ban and forfeiture power vests with the states under the Cr.P.C. against publications on sedition, national integration, obscenity, promoting religious and other enmity between groups, or deliberately and maliciously outraging religious feelings. There is a rich history of bans including parts of Dayanand Saraswati’s Satyaratha Prakash, books on Islam and Christianity, the Communist Manifesto, Lenin’s Imperialism and so on. After independence, various states exercised this power principally to deal with communal situations, obscenity or political bans. In the later category was a ban on Congress Ka Khuni Itihas upheld by the Rajasthan High Court in 1951 and Sheikh Abdullah’s speeches in Nawa-i-Kashmir protected from ban by the Patna High Court in 1963 on a technicality. The courts were reasonably vigilant. In 1971, a ban on Agnee Pareeksha based on the Jain Ramayana was quashed by the Madhya Pradesh High Court, as also the Periyar Ramyana by Justice Krishna Iyer’s path breaking judgment in the Supreme Court in 1977. The ban on the play Me Nathuram Godse Boltoy was quashed by the Bombay High Court in 1971. Sahmat’s poster on the several versions of the Ramayana was quashed in the year 2000 by the Delhi High Court. Conversely the Supreme Court upheld the ban on Lady Chatterji’s Lover in 1965 which continues today.

The power of ban is irresponsibly exercised. In 1995, Maharashtra banned Salman Rushdie’s The Moor’s Last Sigh because Bal Thackeray felt that a character had similarities to him. The Supreme Court over turned this ban. In 2003, West Bengal banned Taslima Nasreen’s Dwikhandito.

In 2004, Maharashtra banned Laine’s Shivaji which was objected to by the High Court and the matter is before the Supreme Court. In 2009, the UP banned Jaishree Mishra’s Rani. Curiously apart from State censorship, court ordered litigation bans on grounds of defamation were imposed. Such as the Delhi High Court on Kuldip Nayar’s India House on lawyers objections, Khushwant Singh’s book on Maneka Gandhi’s objection which were later lifted. A Madhya Pradesh Police officer managed a MP High Court in 2009 on Dominique Lapierre’s It was Five Minutes Past Midnight. McDonald’s Polyester Prince on Dhirubhai Ambani is also enmeshed in litigation bans.

The state’s ban power, devised by the British in 1899 has become an irresponsible shoot- from-the-hip power as we can see in the UP ban of 2008, the West Bengal ban of 2003 and the Maharashtra bans of 1955 and 2004 – as deserved earlier.

Modi and the Sangh Parivar have violently supported an abuse of social and state censorship, statutory bans require (a) an exact delineation of the offending material, (b) clear reasons for the ban and (c) in the specific categories of sedition, communalism, obscenity and the like. Bans should come after due process, but most states rely upon a “ban-first-and-judicial-process” later clause.

Modi’s ban seems outrageous. It is clearly for party political reasons. The excuse of inspiring enmity between groups to breach public order is a hoax. Gujarat has become a state where the ruling party manufactures disorder and then, appropriates draconian powers for communal use. If the ban is to safeguard Sardar Patel’s reputation and win the vast ‘Patel’ vote, this smells of political malafide. Modi would like to be seen as the ruthless chhota sardar who acts decisively. But abusing such use of the state power is a roguish exercise.

What do we do with this power? After 110 years, these provisions empowering the state to exercise vicious powers for party political purposes need to be reviewed. Pre-censorship powers should not exist at all. Even if a ban is absolved, it takes years through the judicial process. Arguments and thoughts should be answered as arguments and thoughts. Censorship is never the answer. Take away free speech, Indian democracy would be fatally bruised. Elected dictators like Modi are ill equipped to exercise this brahma astra which should suffer new direct statutory safeguards against political abuse. Alternatively they should be abolished altogether.

Monday, August 10, 2009

Hidden Assets in the Ivoy Tower


Judges enjoy the opaqueness of their ivory tower. They are hugely powerful, having added to their armoury of power through the public interest law (PIL) movement, which has long since ceased to grow from the people. The power hunger continues. We can no longer presume that judges are above temptation. Chief Justice Bharucha’s deprecatory, but flamboyant, estimate - that 20% (1 in 5) of judges are corrupt - has not been dislodged from the public imagination. At all levels, judges can be rude, hasty and arbitrary – or even corrupt. This is not just the view of losing litigant or the frustrated lawyer. Fali Nariman’s frank advice: we have to take judges as we find them. But, judges cannot hide behind ivory curtains and demand confidentiality and judicial immunity from everything, including disclosing information which every public servant must disclose. The reason is obvious: immunity leads to impunity.

Over the last one year, public confidence in the judiciary is falling. The UP crisis of 2007-2009, alleging that a Supreme Court judge, High Court judges and District Court judges had received benefits from siphoned off employee funds, shook the nation. The Punjab crisis of 2008-2009 astounded the public. On 13 August 2008, a Rs. 15 lakh bribe intended for Justice Nirmal Yadav found its way to an innocent Nirmaljit Kaur – ignoring, as we must, saucy stories about the misadventure. A huge land deal was involved. In 2009, the CBI intimated the need for prosecuting Yadav. Nothing happened. In 2002, the State Chief Justice’s (Saharya) report deprecated the conduct of Justice Mehtab Singh Gill. In April 2006, the Vigilance Department taped two conversations between the judge and private persons. Earlier three Punjab and Haryana judges were taken off work. Justice Amarbir Singh Gill was asked to proceed on leave before retirement. Justice M.L. Singhal was absolved. The third was Justice Mehtab Gill. After this, nothing happened.

There were proceedings against Justice Shamit Mukherjee of the Delhi High Court, who resigned in 2003. In Madras, in 2009, Justice Reghupati disclosed he had been approached by a Minister. Recently, the Supreme Court denied Justice Kannadasan a post-retirement job because he was under suspicion, and not confirmed as a permanent judge of the High Court of Madras. This is the tip of the iceberg. Internal mechanisms of transfer of judges to other High Courts, non-allocation of work, or early retirement have not worked. Sometimes the wrong people are transferred, such as Justice Roy to Sikkim.

What will work? First: we cannot pretend we do not have a corruption problem in the judiciary. Second: secret informal solutions to deal with corruption and wrong behaviour by the Chief Justice of India (CJI) and other Chief Justices may continue; but they offer no real solution – in practice or theory. Third: what embarrasses judges is their financial lives being placed in the public domain – through the media. Fourth: a practical solution has to be found which will confront the real problem than misplaced notions of judicial self-embarrassment.

At present, some of the judges have a halfway house answer to these embarrassing facts – being more concerned about personal self-protection than public confidence in their work. On 7 May 1997, a Chief Justices’ conference declared that all judges should declare their assets to the CJI. Some did. Most did not. Successive CJIs have never examined the declaration given. The defaulters went scot free. So, the entire experiment of voluntary declarations failed. Judges did not keep their promise – in some cases not at all; in others without annual restatements of assets.

By 2009, the entire enthusiasm for transparency failed. On 6 January 2009, when the RTI Commission decided that the declarations of judges be revealed by the CJI, the Supreme Court rushed to the High Court to get an injunction order from Justice Ravinder Bhatt which he granted on 20 January 2009. So voluntary disclosure and RTI have both failed – all the more so because Attorney General arguing for the court hid behind the fact that the solemn promise of the judges of 7 May 1997 did not have the force of law!

Now, we have the Judges (Declaration of Assets and Liabilities) Bill 2009, which no one is happy with. Attorney General Vahanvati thinks “corruption in the judiciary is over-blown by the media”. On 1 July 2009 the CJI opposed the declaration of assets being made public-seeking some kind of procedural immunity. This was reiterated in an interview of 4 July. The Bill itself denied the declarations the disinfectant of candour, transparency and exposure to the public domain. On 20 July 2007 Law Minister Moily seemed to accept this pressure to accede to the CJI’s view.. On 21 July 2007, a suggestion was attributed to the cabinet that the declaration to the CJI be reposed in the President (which means the Cabinet). This was like taking milk to the cat. On 3 August 2009, a stormy debate followed in the Rajya Sabha. Arun Jaitley objected to clause 6 of the Bill on non-disclosure to the public and immunity from enquiry or query. He lambasted the government for leaking the Bill to the judiciary before introducing it before Parliament, which the government denied. MPs on all sides (eg. Brinda Karat, Jayanthi Natrajan, D. Raja and others) demanded a rethink. The irrepressible Ram Jethmalani called the Bill “a conspiracy in corruption”. Faced with a possible defeat in the votes, Law Minister Moily deferred the introduction of the bill.

We have to discuss this on principle. Principle I: Every public servant – judicial, executive, legislative or otherwise should declare assets, including receiving any presents from anybody, as a matter of public duty. Principle II: To support a system of such declarations, the voluntary duty should be supported by a statutory duty. Principle III: All declaration of assets of the public servant should be published and accessible through RTI, subject to exclusions which in the case of judges relates to the judicial decision making process. Principle IV: Since such declarations are similar to income and related tax returns, the declaration should also be sent to the tax department. Principle V: There can never be immunity from prosecution, but investigations and prosecutions should be subject to the sanction of the Chief Justice of India for High Court and Supreme Court judges; and the Chief Justice of the High Court for the lower judiciary. Investigations can be made by a special agency. Principle VI: Mechanisms must exist for informal investigations ordered by the CJI and other Chief Justices of High Courts. But the existence of such mechanisms cannot provide impunity or immunity from prosecution. Principle VII: A Judicial Commission is necessary with powers and mechanisms for appointments, investigation, reprimand, punishment and removal which will eventually be done through the impeachment process.

It is the judiciary that has taught us the value of freedom of information for governance. For judges to exclude themselves from RTI or object to bringing these declarations of assets in the public, is a volte face in the wrong direction.

Tuesday, July 28, 2009

Time to Act

PILSARC Editorial

How do we protect our heritage? On what basis? Through whom? India has a rich heritage which goes beyond the tourist money earning monuments in Delhi, Jaipur, Fatehpur Sikri, Bodh Gaya, Rajasthan, Khajuraho and various temples. The 'active' sites are protected by their use and endowments. The tourist sites have been privileged, but the neglected sites suffer from dilapidation and decay.

The Ancient Monuments and Archaeological Sites and Remains Act 1958 (originally enacted in 1904 by the British government in India) and the Antiquities and Art Treasures Act 1972 do not provide an adequate framework and are jumbled in their empowerment and aims. Separate legislation like for Hampi, Champaner and Majuli experiment with originality, functionability and conservation. Meanwhile, private parties have extended into the fray – some sophisticated and some with the mind set of business contractors.

In the absence of comprehensive and rigorous laws regulating heritage conservation in India, the Supreme Court has been more advanced than the executive or legislature in providing protection to heritage in India. The Supreme Court has established that heritage is part of Article 21 of the Constitution, and in numerous cases involving conflicts between heritage conservation and industrial development, the Court has ruled in favour of heritage conservation. But the Court cannot really deal with the how-to-do features of heritage conservation.

Heritage extends beyond monuments and sites to landscapes, customs, paintings, traditional knowledge, living areas, and other facets of intangible heritage such as songs. The National Commission for Heritage Sites Bill 2009 has defined the term “heritage site” under section 2 (c) of the Bill. This definition is essentially similar to the 1972 World Heritage Convention definition and limits its scope to heritage of ‘outstanding universal value.’ Therefore heritage of national and local importance is outside the purview of this Bill.

PILSARC is involved in an ongoing project on heritage conservation and law in collaboration with the School of Planning and Architecture. It is hoped that this project will lead to a draft national law which incorporates broader understandings of heritage conservation. For more details on the project, please contact the PILSARC office.

Thursday, July 23, 2009

Mother's Right to Choose

Mother's Right to Choose

Rajeev Dhavan

Should the pregnancy of a mentally retarded rape victim be terminated? Can one go one step further and order her sterilization? On 21 July 2009, the Supreme Court reversed the Punjab and Haryana High Court’s decision of 17 July 2009 to rule that such a mentally retarded may have a baby. This is Chief Justice Balakrishnan’s victory for justice and common sense to prevent society from abdicating its responsibility to unborn children and those yet to be born. The rape victim was born on 8 December 1991, and, being mildly mentally retarded, placed under the guardianship of the Missionary of Charity till 28 December 1991 and then to the government’s Institute of Mentally Retarded Children in Chandigarh. Restless, she ran away on 20 March 2005 to be returned by the police to the Nari Niketan and then on 13 March 2009 to Ashreya – both being government institutions. Unfortunately, a Roshan Ara Khatun claimed, and then rejected, her as a long lost daughter. It is now clear that the victim was repeatedly raped by an employee. That part of the story remains hidden and needs to go further. On 18 May 2009, a Medical Board found her to be 8-10 weeks pregnant.

What was to be done with the unborn child? The two State governments and the medical authorities descended like a ton of bricks against the birth of the unborn child. On 27th of May 2009, the Medical Board recommended the abortion of the foetus on the basis that she was a mild retard, would have difficulty looking after the baby, genetic traits could visit the baby. Eugenics is a frightening reason for disinheriting the future in the case of a mild retard. But, the ‘termination’ of unborn baby was supported by the Chandigarh administration (through lawyer Anupam Gupta) claiming to act as the parent (parens patriae) to the woman; and, perforce, grand parent-in-law to the unborn child. The Advocate General of Punjab, Mr. H.S. Mattewal, spoke of humanity in favour of killing the foetus. It was left to the amicus curiae before the High Court, my friend, former Advocate General, R.S. Cheema assisted by his junior Tanu Bedi (who argued the case in the Supreme Court) to “debunk … the eugenic myth” and urge that the womb-baby could be totally normal. This set the stage for the second argument that, in any event, humanity required society to take care of even orphaned babies! Cheema was supported by Attorney General Hooda from Haryana.

The Abortion Act (on Medical Termination of Pregnancy) 1971 is harsh in presenting both eugenic and welfare aspects of the matter. Abortion is made easier in rape cases; but eugenics values are brought to abort if there is a substantial risk of physical and mental abnormalities being passed on, to cause serious handicaps for the child. But, here the Chandigarh government wanted to apply it to a mildy retarded person for whom it was acting as a guardian parent. What a parent? Unfortunately, the law, governments and people can be merciless towards people with disabilities. You cannot kill the living, but charity towards the unborn is easily blighted. Some humanity in attitudes was brought in by the Disabilities (Equal Opportunities and Full Participation) Act 1995 followed by the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act 1999. These latter legislations set the tone for society and state acting as a true parent for the disabled. In its attitudes, Indian society and government is miles behind. Instead of resolving its own humanitarian duties, Chandigarh Administration thought the problem be passed on to the Court.

The High Court having received one set of medical report invited an expert medical body to consider a twelve points parameter. The experts found her a mild retard incapable of raising a child; and leaving it open as to whether abnormalities can be passed on to the child. What was taken against her was also her lack of family and wealth. Thus, this becomes a class and poverty issue as well in favour of the rich and privileged.

This whole approach could result in society killing of unborn babies of retard or disabled mothers from poor or orphaned background. Whatever happened to society and the State’s responsibility! There are few social policy discussions on this. American Justice Holmes’s advocacy of sterilization in Buck vs. Bell (1927) where “Three generations of imbeciles were enough” was based on 19th century eugenics and humanity. The whole approach of the Punjab and Haryana High Court (supported by two governments) as seen through its 12 point grid seemed to ask how ‘inconvenient’ would it be for society to allow the birth of and rear this possibly mentally retarded child of a poor orphan? The original India’s abortion act of 1971 confined the mentally ill provisions to “lunatics”. After 2002, it included “mentally retarded persons”. This was a cry for a less rigid approach. Without getting into Catholic Christian and Muslim views on abortion, there is a vast difference between the right of abortion of women based on consent and the state or courts ordering the death of an unborn baby. We have to start with the assumption that all babies have a right to be born except if the mother does not consent. Some argue that this is enough; other nations say that there must be some public interest risk to the mother. Good or bad eugenics is not the answer. It smacks of “survival of the fittest” through a process of de-selection of children of even the mildly mentally retarded! If we go this far, should there be a sterilization programme also?

If history has been unkind, especially to mentally disabled, there are also stories of what such disabled are capable of, if given equal opportunities. Theoretically we may exhort society and the state to promise to look after the disabled. But we know that, in fact, this is done under miserable circumstances. Money, time and resources are needed – especially in India where care systems collapse and drift and sink into entropic decay. But is that a reason for removing unborn babies from our social midst? If that argument is taken further, it can be extended to those alive, who are too old, too difficult to look after or ‘redundant’ or a drain to the political economy and of no ‘use’.

All this seems like an event where medical experts act as Roman emperors and put their thumbs down for those whom they feel society does not need; and are better off dead.

For the moment, the Supreme Court has stepped in and allowed the baby to be born – indicating that institutional care and help is necessary. A stern warning needs to be given to institutions and courts who order abortions for the mentally ill on the anvil of inconvenience.

Implicit in the Punjab High Court’s decision was an attitude that deals with life and death in too pragmatic a way. Fortunately, the Supreme Court was there to reverse the damage. But it cannot monitor all decisions; nor can it totally shift our focus from an inconvenience approach to something on a surer moral foundation.