One fearless bus driver of Amarnath victims, Saleem Mirza, who saved several lives by continuing to drive till he reached a point of safety despite being under attack was enough to foil the plans terrorists who wanted still larger casualties much as Brigadier Usman, the highest ranking officer of the Indian Army martyred in the Indo-Pak was of 1947 after resisting all pressure to opt for the Pakistani Army was enough to shame the Pakistani Army. The separatists and Pakistanis are yet persisting with the delusion of dismembering India. Every attack on India, however, brings forth the valour of an ordinary Indian and affirms that as a country India will remain indomitable. Every Indian has made himself count against aggression of enemies and artifices of conmen. And it is in this spirit of the ordinary Indian that India resides It is time we raise a memorial to the ordinary Indian and celebrate the everyday humdrum life of our fellow countrymen because it is that mingling, in the shared joys and common frustrations, in our fears and unfulfilled aspirations and in the realisation that India alone is home that India truly resides. The common man remains the crucible of all identities and is the quintessence of the country. We relate to the him, identify with him and will fight to preserve him. He may be a Saleem who save Hindu pilgrims or be a Shail Devi a frail old widow who saved Muslims from marauding mobs. Such memorials can be the sacred spots dotting the country for every Indian to pay homage be developed as tourist attractions and help foster a truly unique Indian identity. This could well be be the modern equivalent of Adi Shankar’s uniting holy spots across India through Jyotirlings, Shaktipeeths and Vishnu Dhams. We have spent a lot of time celebrating differences, It is time there is an acknowledgment of the nationalist identity based on a civic bond and commonalities.
The editorial “The Morning Knock” in The Indian Express (June 7, 2017) on the CBI raid NDTV founders Prannoy Roy and Radhika Roy was disappointing. The newspaper failed to make a fair assessment. The editorial raises the issue of media-transparency – the “why” behind the editorial – and the need for accountability on the part of the media itself.
The editorial, correctly stated that the “media house is not expected to be above the law” but proceeded to invoke the epithet “caged parrot” for the CBI and draw upon the “relics of a dark time to which no one wishes to return”. The illustrations given would have been justified if the facts of the case in question showed that the raid was unwarranted. The newspaper, however, chose not to commit to this position yet suggested the possibility of raid being of questionable intent! Any search for information which confirms one’s preconceptions is nothing but cherry picking – using information which confirms one point of view while ignoring all data which can contradict it. And having itself acknowledged that “ownership of most media today is defined by vertiginous web of cross-holdings involving corporates and entities for whom media is not primary business” the newspaper would have done to maintain the difference between the interest of the media from the commercial interests of the media owners which it chose not to do.
The editorial raised what it called “disquieting questions”. The CBI, it said, stepped in seven years “after the event”! “Event” is a value neutral description and is inapposite considering the subject of the editorial. It is interesting to note the absence of any word (criminal?) modifying the noun “event” and attributing to it any quality (crime?) as to justify initiation of an investigation. If it was an “event” seven years is a long period of time for it to be worthy of interest or attention but if the event was a “crime” the passage of seven years is irrelevant and the more disquieting issue is its being hidden for the period.
The editorial next regrets that “there is no original investigation”. Investigation, however, follows and does not precede registration of information concerning commission of an offence. And if “original investigation” is the key how can the newspaper without even touching the facts of the case leave aside investigating the same call the initiation of the process “disquieting”?
ICICI, the editorial says, has not complained and the loss is described as a “private loss” to be decided by the “law of torts” with which the government is not expected to “weigh in”. Firstly, the concept of locus standi is alien to criminal law and anyone can put the criminal law into motion unless contra-indicated by the statute. Secondly even private banks perform public duties and their officials can be prosecuted for corruption or otherwise abusing their authority. Thirdly, even torts can be simultaneously be criminal wrongs and there is no bar to proceed under the latter. In fact as banks have the power to create money, shape economy and manipulate investments the need for accountability and control is higher in “events” involving banks which consequently cannot be called “private wrongs” to individual victims (to which law of torts applies) but “public wrongs” which need to be prosecuted on behalf of the society and placed clearly in the realm of criminal law.
The editorial contradicts itself by saying, “disputes concerning defaults bigger by order of magnitude are being heard by courts and the government has made no attempt to short circuit the process by letting the CBI loose.” The grievance thus shifts from an “event” to a “private wrong” to eventually a wrong which many others have also committed a plaintive attempt following this change in perception at seeking parity in illegality and perpetuation of criminal order – something which does not behove a newspaper which proudly proclaims “journalism of courage”. The newspaper should be more concerned about those left out rather than those reined in. Besides how can the newspaper complain simultaneously about “letting CBI loose” AND its being a “caged parrot”? Did the newspaper want the CBI to be caged in rather than being free to investigate the wrong. Does this not entail conviction being replaced by preferences and position on principles shifting with the personalities involved creating the very crisis of credibility for the newspaper which it apprehends is being faced by the CBI? Besides “disputes” of “bigger defaults” are weasel words stripped of specifics which can be manipulated according to one’s biases and written without threat of contradiction with no means of knowing which disputes and defaults the editorial had in mind to test whether its opinion was in fact correct.
Any tampering of information by the government is wrong. However a correct portrayal of it by the media is as equally mandated. And both need to be wary of giving it a spin manipulate opinion rather than inform it and allow it to reach its own conclusions about the issues which confront it. The case of the Roys is a test not only of the “commitment” of the CBI to investigate fairly as the editorial rightly opines but its reporting by the media is equally a test of its commitment to transparency and reliability of information purveyed by it.
The judgment rendered by the Special Court betrays complete ignorance of the constitutional fundamentals of a Parliamentary form of Government.
A minister is responsible to Parliament for whatever goes on in his department, whatever the extent of delegation and whether he is personally involved or not. It is this accountability, which provides legitimacy to governance and justifies retention of confidence of the Parliament and consequently consent of the governed. It is thus the minister alone who is the final decision making authority and remains liable to account to Parliament for all mishaps and operational failures of his ministry.
There cannot, therefore, be a presumption that a Minister does not know what is happening in his ministry. The presumption, in fact, is to the contrary because his office is predicated on the affirmation of the principle of accountability, which negates the supposition that he need not know the affairs of his ministry. And an emphatic reiteration of this principle arises where power is exercised by the minister personally as in that event there is no displacement of authority to take decisions and of the consequential liability for the same.
In the case where the Coal Secretary has been convicted, he merely recommended allocation of coal blocks but the eventual approval was granted by the Minister of Coal who also happened to be the Prime Minister.
Yet the Special Judge records in his order, “there was no reason in the facts and circumstances of the case for the Prime Minister as Minister of Coal to presume that the guidelines issued have not been complied with. It is not only apparent from the record but it is certainly permissible to draw a presumption in the overall facts and circumstances of the case that Prime Minister as Minister of Coal proceeded to consider the recommendation of the Screening Committee on the assumption that the applications must have been checked in MOC for their eligibility and completeness or that the guidelines must have bee duly followed even by the Screening Committee.”
Moreover he conflated the PM with the Government of India. He framed an issue thus: “Whether dishonest representation continued before the PM and thereby cheating Government of India.”
The PM is NOT the government of India and the comment betrays complete lack of understanding about what the government is.
Even where functions entrusted to a minister (or PM) are performed by an official there is in law no delegation because the official’s act is constitutionally that of the minister.
And should an official may act in a manner the minister disapproves, the minister has then to act to show his disapproval of the same and should he choose not to so act despite having the opportunity, the reason and ability his omission becomes part of the blameworthy act itself. In the instant case the minister did not so act. If the civil servant is culpable so will the minister.
Thus not the secretary alone but he along with the Prime Minister can be liable to the Government of India.
In fact in the instant case the responsibility was more onerous on the PM for the Special Judge himself records that “the fact that the then Prime Minister of the country Dr. Manmohan Singh thought it appropriate to retain the charge of Ministry of Coal with himself only, clearly shows as to how important the work of said Ministry was.” If it was admittedly very important for him how can it be presumed in his favour that he left it to the discretion of the Screening Committee to make recommendations and then blindly follow them? The presumption would be that he was alert and was fully informed!
The wrong becomes more significant still as the concerned minister was also the Prime Minister. Mr Parakh, however, has written that “on the 20th August 2004, the Prime Minister approved allocation through open bidding. He wanted a cabinet note on this. After the Prime Minister’s approval, we received a note from the Prime Minister’s Office (PMO), enumerating the possible problems in moving to open bidding. It is understood that this note from the PMO was based on an unsigned note given by the MoS to the PMO.” Instances such as these are cited to prove The PM’s innocence – the fact that he was helpless. This reputation enabled him to a get relief from the Supreme Court too. However no matter how good a person one is, if the act (or omission) is criminal goodness of disposition provides no amnesty from prosecution. The fact remains that the PM did not remove the minister, who he was entitled to do, and altered the decision to align with that of the minister! Apart from the fact that omission to act, being intentional, had a behavioral dimension, which took away from it the badge inactivity and firmly attached it to the unfolding criminality of conduct, the issue transcended from one of individual ministerial responsibility to one collective responsibility of the council of ministers for which, again, the PM is ultimately responsible.
If the secretary, as the head of the permanent civil service can be prosecuted, the PM who heads the political executive cannot be immune. In matters of policy the responsibility is always of the political executive. And where the political executive allows faulty implementation of policy, the wilful failure to act will make its liability joint with the civil servant. Let there be nothing arbitrary in drawing the bounds of criminality and never play favorites with the accused. Law after all is not to be like “a spider-web through which big flies pass while the little ones get caught.” Once the political executive is reigned in the permanent civil service can never go astray. If however law provides possibility of wagering a chance to defeat the system immunizing some and randomly targeting others it will remain a failure both instrumentally and normatively and the systemic rot will remain endemic.
A bench of five or more judges is constituted, under Article 145 of the Constitution of India, for the purpose of deciding a case involving substantial question of law as to the interpretation of the Constitution. In Justice Karnan’s case it is digressing into areas it need not move to.
It is indeed odd that seven judges should, sitting as such a bench, be ordering medical examination of the person being proceeded against. This is more so because his behavior is not in any manner different from what was known when proceedings against him commenced. Notwithstanding the self-evident deviance and aberrancy he was yet considered, by the very bench, as possessed of sufficient understanding and competence to be served with summons of the case, be heard in his defense and be further directed to file a reply – himself and not through a person taking responsibility for him – to the charges levied against him. If a person can be trusted with the ability to understand the nature of the proceedings and give rational testimony the basic test of his competence is satisfied as not to warrant his medical examination.
Medical tests have been ordered to resolve a lis a court is seized of to ensure, as was felicitously put, that “justice is not compromised to notions of delicacy”. The application of this principle to the case at hand can be the subject matter of serious dispute and in the circumstances of this case Justice Karnan has the right to refuse the taking of the test. More significantly the ordering of such a test suggests that the bench is having second-thoughts of the very propriety of proceedings initiated suo-moto by it. In any event “proved incapacity” – provided it is established in the manner prescribed under Article 124 – is a ground for impeachment not contempt and will, in fact, negate the charge of contempt. Proceedings will have to be kept in abeyance pending resolution of doubts about mental capacity. Inexplicably, however, the Supreme Court not only reiterates that Justice Karnan, the very person whose competence and capacity it doubts, should file a response but further records that should he “not choose” to file “it shall be presumed he has nothing to say.” How can freedom of choice be conceded to one who cannot be trusted with that responsibility and how can his failure to exercise that choice be deemed an intelligent exercise of discretion when an apprehended defective intellect is the reason for constituting the Medical Board?
The Supreme Court has, under the constitutional scheme, a special role in the administration of justice and is obligated to take steps to ensure free and fair administration of justice throughout the country. This explains the unusual step of constituting a bench of seven judges proceeding with suo moto contempt proceedings against Justice Karnan. Curiously the notice issued had not set out the charge against Justice Karnan and the contempt itself is described as “civil” though the reason for the proceedings is not violation of any order the court may have passed but letters addressed to the Supreme Court (which fact is not mentioned in the order issuing notice.) This discrepancy, however, does not affect the proceedings in any substantial manner as Justice Karnan, on appearance, appeared aware of the reason behind the proceedings and the right to proceed in contempt inhering in a Court of Record, the Supreme Court was exercising power under Article 129 and not under the Contempt of Courts Act, 1971. It would however have been appropriate if the not made itself vulnerable to any criticism about the manner in which it was proceeding more so because the jurisdiction it was exercising was of contempt and that too suo moto.
Ideally Justice Karnan should have contested the proceedings and presented whatever objections he had in law to the process – which would also served as a precedent checking any future misuse of such a power. His willful refusal to participate should, nevertheless, not have deflected the court from the purpose behind the institution of proceedings to make forays into areas irrelevant to the controversy. The bench would have been better advised to immediately proceed to decide the issue whether in exercise of its powers under Article 129 notwithstanding the bar against “removal” from office except in the manner prescribed by Article 124 (4) of the Constitution the Court could yet order that Justice Karnan “refrain from all handling judicial or administrative work” that is remove his adjudicative capacity which alone could make him act as a judge. Related issue would be whether judges of courts of record could be proceeded against under contempt if they interfered with the legal process (an issue which proceeded sub-silentio in Ramaswami’s case) or exercised power illegally (which distinguished Justice Karnan’s case from Prakash Chand’s case) and the limits of public interest restriction against initiation of proceedings against a Judge of a Court of Record – an issue which will always remain key in every contempt proceedings instituted against any superior court judge. However more than two months have elapsed and Justice Karnan will retire in a few weeks from now!
Even otherwise the question would yet remain how any order passed would be executed. While a method to take action against judges, apart from the process of impeachment, an oppressively cumbersome process made worse by the intrigue and artifice of the political process would be a welcome, making the method work would be the real problem. We will eventually return to the very point from where we started – ordering the withdrawal of judicial work – and the judge remaining defiant – apart from any other punishment devised to suit the contempt – the carrying into effect of which would be fraught with rather dangerous consequences as the judiciary would be bound to take the help of the executive to make any order effective which is bound to compromise its independence.
A public spat between judges with each side ordering medical examination of the other and issuing warrants demeans the judiciary as an institution. The fact remains Justice Karnan is responsible for this situation and by choosing not to appear and contest the notice has shown he is not serious about the allegations made by him being subject to rigorous scrutiny as to show they are not fanciful and frivolous. He is, in the circumstances, clearly liable to punishment but the fact is he is about to retire and more than two months have been spent by the Supreme Court without making any substantial progress only generating adverse publicity ridiculing the judiciary. Moreover we need to proceed with caution thinking out the consequences of any action lest this case becomes a precedent that returns to haunt the judiciary later.
Justice Karnan already stands discredited. Mr K.K. Venugopal’s suggestion of letting him fade into retirement ought to be seriously considered by the Supreme Court. The existence of the power in the Supreme Court has been demonstrated. It may not be worthwhile to exercise it in the instant case.
Justice A.P. Shah shares his initials with the first two letters of the adjective “apocalyptic” which aptly describes his M.N.Roy Memorial Lecture.
His prophesies of doom notwithstanding, India is not in so grim a condition as he suggests.
Yes there is a tumultuous clamour within the political landscape today. But is that not the norm of a free society? As long as a polity retains the legal capacity to control the consequences of social encounters between competing ideologies – which India undoubtedly possesses – dislike for a contrary point of view should provide no cause for apprehension or alarm.
Preference to one of a competing set of opinions and condemning the contrary as dangerous has little to do with the content of the opinion and is based exclusively upon the values the self appointed arbiter subscribes to. Justice Shah may be attaching little value to the legally enjoined political integrity of India giving preference to freedom to divide the country over its being kept intact as is constitutionally prescribed and hence worry about “attacks” on “institutions of learning” but how does he conclude therefrom that a view contrary to what he holds is dangerous or wrong and harmful for the country? What is misdescribed as an “attack” is actually the repulsing of an assault on a perception of India as envisaged by its constitution. A tolerant society without self-defence is doomed to destruction.
Reference to “online hate, abuse and threats” to a “21 year old university student” is clearly a case of cherry picking suggesting, wrongly, that one point of view alone is made subject of online harassment. Similar abuses and ad-hominem attacks apply to almost every point of view which is expressed. The partisan approach of Justice Shah sows a predisposition towards a particular point of view which robs his view both of balance and perspective.
UP finds a mention with a pointed reference to “harassment of Muslims” but are Muslims alone harassed in the country? What about the ethnic cleansing of Hindus from Kashmir or the murder of Swami Lakshmanananda on Janmashtmi by Christians in Orissa? Similar examples can be multiplied. India did not yet break into tumult nor into an uncontrollable frenzy or disorder! Is ignoring a large number of related cases which contradict one’s stated position not unprincipled and unfair ?
Yes, as Justice Shah said, we must be “wary of enforcing a single ideology on a country as diverse as India”. The comment was made in the context of Mohan Bhagwat’s call for a national law against cow slaughter. Notwithstanding Bhagwat, under the Indian constitution the state legislatures alone have exclusive powers to legislate on the subject which is the reason why many of the states have enacted no legislation on the slaughter of cows. Bhagwat is, however, entitled to his views. Committed as he is to freedom of speech, can Justice Shah deny Bhagwat the right to hold views which Justice Shah may not like? Or is he intending, through negative verbal remarks, to create an antipathy towards a contrary point of view not shared by him and imposing a “single ideology” on a country as diverse as India. In any event there is no prescription in India about what one may or may not eat and laws in place to deal with any form of intimidation or coercion.
Justice Shah referred to the Censor Board rendering Hanuman Chalisa silent because prayer was not answered but chose to ignore referring to the movie PK which dealt with fraudulent godmen (all of whom were incidentally Hindus) nor even to 3 Idiots where students were shown to be worshipping several Hindu Gods and even feeding a cow in a desperate attempt to pass the examination. I doubt if as liberal or expansive satirizing or mocking of religious habits of any religion other than Hinduism could have been dared by any director or producer of any movie in India. This is a tribute to its maturity, sense and large-heartedness.
There is nothing wrong with the retention of the offence of sedition, to which Justice Shah objects, as law must reconcile the right of private criticism with the necessity of securing safety and stability of state. Prosecution for sedition is in the interest of public order which is included in clause 2 of Article 19 of the Constitution. And his regret that defamation was not decriminalised does not detract from the fact the judgment the Supreme Court rendered was indeed a well reasoned one.
A prejudiced mind can easily stigmatise. And cherry picking facts to resonate with your belief system can only bring about a doctored reality. While becoming a Cassandra of doom Justice Shah forgot that what he felt was reality was actually one feigned, invented and imagined by him only. India needs no moralising discourses from Justice Shah or others.
A fool’s brain, said George Bernard Shaw, digests philosophy into folly! Prashant Bhushan’s buffoonery in calling Lord Krishna an “eve teaser” proves Bernard Shaw right. Forget knowledge of religion or philosophy (which he demonstrably lacks) this man seems to be unfamiliar with elementary English and the utter shamelessness with which he yet comments (on topics he does not know and in a language whose nuances he is yet to grasp) makes him the perfect illustration of the idiom – Fools rush where angels fear to tread! The “clarification” of his original tweet proves this point too. It is a different matter that the clarifications make things worse!
But it is not mere foolishness of Bhushan which troubles me. I feel he is suffering from a psychiatric disorder. He used the words “legendary eve teaser” for Lord Krishna. God is no fable or fiction to be described as “legendary”. Besides eve teasing is defined as the act of annoying a woman in a public place for example by making sexual comments. but Raas leela takes place in a metaphysical plane. Thus anyone who suggests that Lord Krishna “annoyed women through sexual comments” suffers from cognitive distortion – an irrational thought pattern which makes one perceive reality inaccurately. This is generally the result of depression and anxiety and the fact that Kashmir is still part of India may be the reason for the same for him.
I am sure Prashant Bhushan is not mad. However in the spectrum of human behaviour he does lean towards the abnormal. And while Bhushan must surely be having a brain, it is health of the mind which is the issue. I have been informed a criminal complaint has been filed against him. Criminal charges, however, may never stick – not because there was no crime but for want of intent, it being easy to show Bhushan is non compos mentis – without a sound mind!
Raas Leela is transcendental that is in the spiritual plane. It has no carnal aspect. It symbolises union of jeev (male AND female) in God. God in Hinduism is not a man but energy. And the physical reality (including gender) a mere illusion. Gender thus is irrelevant to Raas Leela (Gopis are but ALL devotees) and it signifies nothing except immersing of the soul – Atma- into the metaphysical reality – Brahman! Lord Krishna was not male lover like Romeo nor Gopis female like Juliet! No one can emulate the Raas, just imbibe the idea.
But Bhushan wants “Anti Krishna squads.” This means he wants to reinforce gender, emphasise physical attachments, accentuate carnal desires and move AWAY from the spiritual plane into the physical plane and indulge in orgies of free love (which I presume he understands only as sex.) This aspect of his depravity I was completely ignorant of! This is re-enforced by the lament expressed in a later tweet where he frets anti romeo squads “would criminalise teasing gopis!”- He, thus, WANTS to tease gopis!! And then see his desperation – so frantic is he that teasing should be allowed he invokes GOD to justify it and protests the organising of Romeo Brigades because he feels that this would make Lord Krishna look like an eve teaser!!!
Indulge in your fantasies Mr Bhushan. Dont take to Twitter next time to make them public.
The insensitivity with which we treat our bovines shows a callousness which makes the brouhaha against cow-slaughter sound hollow. We need to care for the living before we can justifiably grieve about their death.
Actions, after all, are the real icons of sanctity and mere lip-service as veneration is nothing but an insult of the revered. Even symbolism should never be empty nor faith just a formal iteration.
I cannot convince another about the truth of my position without first being true to my own beliefs and I cannot condemn an agnostic without being a true adherent myself.
The ordeal faced by our cows has often caused me immense distress. Whether precariously roaming in heavy traffic or rummaging through filth to find food often swallowing plastic which causes slow painful death, these meek and gentle creatures are denied respect and veneration due to what is held sacred.
Condemned to live in unnatural environment and denied water, feed and veterinary attention their life is indeed brutal and, as Maneka Gandhi pointed out, they are kept in dark, dingy rooms with no ventilation. The harrowing tale of their existence can be described best in her words: “The flooring material of these dairies is concrete, often cracked and uneven. The edges of the broken concrete are sharp. They are covered with dung and urine on which these permanently tethered animals are forced to sit and stand. Imagine yourself sitting on a sharp edged uneven floor covered with your own faeces. When given an option, milch cattle sit and lie on soft floors. Consequently, their joints are bruised and tender and most of them become painfully lame.”
The licences under which dairy owners work impose obligations which are observed only in breach. Law requires adequate space for the animals, enough food, cleanliness, ventilation and care. This is not undertaken, endemic violations being continued with impunity. I have seen no political party take up this issue with any seriousness. Cows and calves are dying in hostile conditions they are being made to live in; they are not dying only when they are being butchered in slaughter-houses. How they are made to live, if that life is nasty and brutish for them, is as important a concern as being concerned about their being killed.
Yes the cow HAS religious significance. But will a higher spiritual truth steeped in virtues of compassion and reverence be debased into an empty ritual of mere war cry with complete disconnect between exhortations and actions? Let us stop playing with words and evolve a consciousness. We must change ourselves before we start reforming others. Faith, it cannot be forgotten, can never be passive if one’s belief is true. It is thus time we act to redeem our cows’ lives before working ourselves into frenzy over their death. If we feel they must not be killed are we not obliged guarantee them a life?
Elections are due in Delhi to the Municipal Corporation. This is one of the issues the Corporation can be seized with. Any commitment to a blueprint for the same? It is time the REAL Gaurakshaks step forward!