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, October 3, 2009
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.
- 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
SECRECY AND THE SUPREME COURT
- RAJEEV DHAVAN
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.
- RAJEEV DHAVAN
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.
- 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.
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
HIDDEN ASSETS IN THE IVORY TOWER
- RAJEEV DHAVAN
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.
- RAJEEV DHAVAN
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.
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.
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