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.