Of Queen’s Counsels &”Seniors”

I feel there should be no Senior Advocates only advocates.

Endowment not habiliment is the test of a lawyer. He should be recognised by his performance not his robes and his identity should lie in his work not attire. The gown does not make a lawyer. An incompetent lawyer will only disgrace it while the competent should not need it.

As long as the system remains it is liable to be exploited. A lawyer who is not designated can be run down as being incapable and be unjustifiably compared unfavourably with another who is designated aside from being denied priority in appearance in court despite superior capacity while the incapable can perpetually hide their incapacity in their robes and get undeserved preference when in fact they should be denied an audience altogether.

There is a hike in fees immediately upon designation despite want of any improvement in the quality of work. A non-designated lawyer has to explain (often without success) even a warranted increase in his charges. This not only shoots the cost of litigation up without any corresponding improvement in the quality of practise but adversely affects the quality itself as more effort is placed on the race for designation through networking rather than working.

Preference is often shown to senior advocates in courts and in some it becomes the very condition for practise. Aside from being anti-merit this is also anti-democratic as it not only stifles potential it entrenches established interests.

It is a little known fact that Francis Bacon was the first person to be so appointed and that too for reasons having nothing to do with his undisputed versatility. Till his appointment the Attorney General, Solicitor General and King’s Sergeants were Kings Counsel in Ordinary. Queen Elizabeth appointed Francis Bacon Queen’s Counsel Extraordinary. The reason for this extraordinary honour was only political and intended to prevent him from acting against the Crown. The appointment as Kings Counsel therefore had nothing to do with the admitted capabilities of Bacon – a trend which continues till today.

Distinction never needs any dressing up. It is self-evident.

Merit is always humble. It makes a place for itself without having to be ushered in.

Ability requires no badge of honour. It attracts attention without a formal proclamation.

And true recognition lies not in formal acknowledgment but in voluntary appreciation.

So where do we fit designation of Senior Advocates?

The Case for KOHINOOR

The statement made in the Supreme Court of India on the Kohinoor diamond is astonishing and is contrary both to history and law.
Kohinoor was part of loot not “gift” and the very circumstances surrounding the Last Treaty of Lahore by which it is claimed that the diamond was ceded to the Queen of Victoria – the Last Treaty of Lahore was signed immediately after the Second Anglo-Sikh War and Duleep Singh who handed over the diamond was but a child – showed that the “gift” was anything but voluntary! And the law too permits the making and enforcing of the claim for return of Kohinoor to India.
In Resolution 3187 of 1973 The General Assembly, deploring removal during colonial or foreign occupation of objects d art, declared that  “the prompt restitution to a country of its objets d’art, monuments, pieces, manuscripts and documents […], is calculated to strengthen international co-operation inasmuch as it constitutes just reparation for damage done”.
The Resolution recognises the customary rule of prohibition against the use of force recognised in several instruments of international law commencing from the Final Act of the Congress of Vienna of 1815 to the Hague Conventions, UN Charter and the UNESCO Convention of 1970 and subsequent developments.
Opponents of the restoration of cultural artefacts rely on the fact that East India Company was a private corporation and India was not a colony of the British at the relevant time. They also rely on the principle of inter-temporal law according to which the issues should be assessed not on the basis of existing international rules but law in force at the relevant time.
Neither submission can prevail.

The site of the Parliament of UK has a section Parliament and Empire. It records that East India Company Loan Act and the East India Company Regulating Act made it possible for the government in Britain o extend a loan to the Company in exchange for recognition of the British state’s ultimate authority over the Indian territories.It leased to the Company continued political control of its Indian territory in exchange for a payment of £40,000 every two years. It also established the post of governor-general who, with a council of four members, was to have overall authority over the Company’s territories. More government control came with the India Act of 1784, under Prime Minister William Pitt. This created a committee of six government appointees, known as the Board of Control, who were to monitor and direct the Company’s policies. The government was also to have the final decision on the Company’s nominations for its officials in India. This and a further new law passed in 1786 greatly increased the authority of the governor-general over other Company officials. The ultimate control therefore lay with the government itself and liability cannot be disclaimed on the ground that East India Company, which in any event was established by Royal Charter, was merely a private company.

The inter-temporal principle cannot apply to human rights obligations. Cultural artefacts are part of the nation’s heritage and constitute its identity and the right to this cultural patrimony both tangible and intangible is basic to human dignity and indispensable for social and cultural progress. The very moral dimension of it makes it a human right. The instruments dealing with this subject, therefore, could not be said to define the norm but merely declared what already existed as an autonomous and binding principle.

It is sometimes also said that there can be competing claims by the Iranians or Afghans whose rulers held the diamond at different times. The diamond however came from the Kollur mine in Andhra Pradesh, India which was the only one to produce it at that time. As right to cultural artefacts is an imprescriptible human right and there is an obligation to return on all who may have acquired this physical cultural artefact by force the diamond has to eventually return to Indian territory no matter how many hands it may have passed through. Such artefacts are not considered private property and there is an obligation to preserve them within the territory to which they belong.

Interestingly the statement reportedly made by  in the Supreme Court was “If we claim our treasures like Kohinoor from other countries, every other nation will start claiming their items from us. There will be nothing left in our museums.” Ironically David Cameroon had used almost the same words when he came to India in 2010; he said,”If you say yes to one you suddenly find the British Museum would be empty. I am afraid to say, it is going to have to stay put”. 

It is not a question of which museum gets empty. Its the issue as to which museum is the right custodian of the artefact. And Kohinoor belongs to India.

 

Prince William, Kate, Diana Bench & Taj Mahal

I wonder why a request was made to remove the scaffolding from the pillars of Taj Mahal for Prince William-Kate Middleton photograph. The scaffolding was as much a symbol of love as the monument itself. After all the sentiment behind fixing what needs repairs (whether a monument or a relationship) can be love only!

But it seems those making the request had a different sense of both history and love.

William’s advice to the royal photographer who took their picture thus was, “I hope you got the symmetry right”! So symmetry can prevail over chemistry and can still be love. It is interesting to know, as has been written by Anant Kumar in Case Reports in Women’s Health (Volume 1-2, January-June 2014), that Mumtaz Mahal died of complications from repeated child-birth from what are preventable causes of maternal mortality many of which continue till today. Shah Jahan chose not to spend money to address those problems but built the monument instead. I doubt William was aware of it but in a way Taj can be symbolised in symmetry even after the chemistry is over!

Perhaps thats why there is a Diana Bench at Taj. The solitary figure of Diana sitting on the bench hinted loneliness and isolation and Diana separated from Charles just a few months later. I am sure Mumtaz Mahal would squirm in her grave when she sees that bench. Appropriately(?) a photoshoot on it is with one’s back to the Taj Mahal. In any case the dead are history. Why bother about them! The monument stands and symmetry counts.

Lord William Bentinck apparently felt the same way much before the Diana Bench. If he had had his way the Taj Mahal would have been dismantled in 1835 and its marble auctioned. Besides nothing that is native is important. Just like the 50 million lives lost to famines under British Raj. Bentinck had no qualms about dismantling the whole edifice. So William’s generation’s lack of concern for the minarets should not be much of a surprise.

In any event history does not necessarily mean going back in time! Surely not when you are a Royal.

A possible explanation  for the request is the distortion of the time-space continuum. It presumed we are still in colonial times and the Queen of England is the Empress of India. Or perhaps there was movement forward in time with Prince William becoming not only King but the ruler of India. After all Royals can do no wrong and in fact can do anything – time travel included.

There can be however another charitable explanation. Buckingham Palace, which is about 300 years old itself, was requiring urgent repairs for a long time but the the same were being deferred. It was reported that when a plumber entered the Queen’s bathroom to repair to the old-fashioned chain-pulled cistern he while trying to fix the problem leaned against the lavatory and part of the structure came away from the wall. If the former imperialist government can go slow on repair of the Palace why cannot the former colony do the same with Taj Mahal?

I wonder if the Diana Bench will be re-named now. Let Mumtaz Mahal ponder while we await the next generation of royals and another photo-shoot.

KANHAIYA – THE INTELLECTUAL

“No intellectual,” said Kanhaiya “is supporting the Modi regime.” I will not engage myself in any defending Modi (as he and his party are well equipped for the purpose) but will concentrate instead on the use of the expression “intellectual” by Kanhaiya.

There are two reasons for this exercise. Firstly there is a snobbishness in the comment which is in fact anti-intellectual and secondly the speech given by him displayed no critical nor a rational spirit of enquiry which is actually associated with intellectualism.

Kanhaiya ignores the difference between an intelligentsia and an intellectual. The former is a social class organised on the basis of shared beliefs and will include communists, socialists, conservatives and of course Kanhaiya’s favourite fascists. Disagreement with an alternative point of view will not make the holder of that point of view any less an intellectual. No one should know this better than Kanhaiya himself but his comment suggests he does not regard anyone not sharing his point of view to be an intellectual. This itself shows disregard of liberal values which he claims to espouse and a totalitarianism which he claims to oppose.

Kanhaiya makes a distinction between “emergency” and “fascism”which shows knowledge neither of history nor ideology.

Emergency, he says, is “goondaism of only one party” while “fascism” entails “using of state machinery for goondaism.” “State machinery” is ordained under the Constitution and Emergency was declared invoking Article 352 of the Constitution and the excesses of the Emergency were those of the government  which claimed to be exercising powers not of a party but of the state machinery as ordained by the Constitution. This was the use of state machinery for goondaism  which is how he describes (again wrongly) “fascism”.

Fascism, used in the sense Kanhaiya understands it, is not descriptive of any ideology but merely a pejorative term of abuse. Common ownership of means of production (envisaged by Communism) may be described by its critics as “goondaism” too and the subjective preference of one ideology over the other shows complete absence of any rational spirit of enquiry which is the hallmark of any intellectual. Is this not acting like a political commissar or an ideological administrator to control thought by using abuse not critical enquiry to deify one’s own and deride the other’s point of view? Is this not the “azadi” to impose one point of view over all others? Will this be “azadi” at all?

Significantly Kanhaiya impliedly concedes intellectuals continue to exist in India and express dissent and disapproval of what they find amiss in the system. How does this compare with Red Guards, the Chinese para-militaries who purged the country of those politically dangerous to Mao? Or the Armenian Genocide by the Ottoman Government. Or Lenin’s contempt for the intelligentsia apparent in his infamous comment “we have completed no academies.” Or again the preference of “bourgeois science” over the “proletarian science” in the old Soviet Union?

Yes, as Kanhaiya mentions, “it is important to understand history before we reach any kind of conclusion.” It is however obvious from Kanhaiya’s speech the examples he gave and the relevant examples which he ignored that he does not practice what he preaches and also knows little about what he chooses to preach!

A Reply to Afzal Guru’s Defense

Nandita Haksar in her article “Was Afzal Guru a martyr or a militant? JNU students were debating a question that law can’t” wrote against the hanging of Afzal Guru and justified the meeting at JNU protesting against the same.   It was tweeted by Ms Sagarika Ghose.

Ms Haksar commented: “In India we do not have a jury system. So people will have to make their own judgements. Many Indian citizens have adjudged Afzal Guru a terrorist, while their fellow citizens in Kashmir honour him as a martyr. The meeting on February 9 at JNU, which was organised by both Kashmiris and other Indian students, was an important bridge between these two understandings. Such bridges can be built most effectively by the youth. Ultimately, our borders have to be defended not against our enemies but against disaffection and alienation within our country.”(emphasis mine)

I do not agree with Ms Haksar’s reasoning.

Firstly, while India does not have a Jury System it has Bench Trial which is as much a legal system as the former.

Secondly, notwithstanding the absence of Jury System judgments are rendered by Courts  and “Indians do not have to make their own judgments”.

Thirdly, Indians citizens did not adjudge Afzal Guru a terrorist the legal system did.

Fourthly, the meeting could build no bridge because it shut out the contrary point of view by taking a firm position that Guru’s execution was “judicial murder” and that too surreptitiously under the guise of “poetry reading“.

Fifthly, it is because the country has to be guarded against disaffection and alienation that dogmatic denunciation of the system and that too in a covert manner must be deprecated.

Strangely, Ms Haksar in an earlier part of her article had mentioned, “As it happens, there is so far no evidence to show that Kumar ever shouted pro-Afzal Guru or pro-Maqbool Bhatt slogans at the February 9 event at JNU, which was organised to protest the hanging of 2001 Parliament attack convict Afzal Guru.” (emphasis mine) One protests when one feels wronged. Whether slogans are shouted or not the organisation of the protest suggested an identity with the point of view with the more vocal of the protesters!

Guru, Haksar says, became a martyr because he was “hanged secretly by the Indian governmentbut as hanging follows a completed adjudication how can the hanging be “judicial murder?

And while Kanhaiya did mention Afzal Guru in the speech (reproduced in Indian Express) prior to his arrest, on his release he said Rohith not Afzal Guru is his icon! Even if we ignore Kumar’s fitfulness towards serious issues, if Kanhaiya (whom Haksar describes as a “national treasure“) has forsaken Afzal Guru, is Haksar’s espousing of Guru’s cause and that too riding on Kumar’s shoulders not utterly incongruous?

It is interesting what Nandita Haksar calls “incontrovertible facts” about the Afzal Guru case. She says, “According to Afzal Guru, it was someone in the intelligence agencies who asked him to escort Mohammad to Delhi and help him find a rented room and a car.”  (emphasis mine) The incontrovertible fact is Afzal Guru’s version which incidentally never mentioned who and in which intelligence agency told him to escort  Mohammad.

Ms Haksar goes on to say, “In the light of the controversies over Ishrat Jahan, it is not entirely unthinkable that Afzal Guru, a surrendered militant, was being used by the intelligence agencies. In the West, there have been many cases in which intel agencies used former militants and even allowed them to commit acts of terror. In this case, the intelligence agencies may have been following some intel and could not prevent the attack.” Surmises and hunches thus become “incontrovertible facts!”

As far as denial of a lawyer in the Trial Court is concerned what is important to note is that he was not given death sentence by the Trial Court (where the denial of lawyer is alleged) but by the High Court (where he was duly represented) which was upheld by the Supreme Court (where he was duly represented too).

Haksar concedes that Afzal Guru “was involved in conspiracy to attack Parliament” but says “he should not have got the death penalty.” because Azhar, Baba and Ahmed absconded ignoring that in cases of conspiracy the liability is joint and the act of others is imputed to the conspirators and because Azhar, Baba and Ahmed deserved death penalty Guru could not be treated differently. The accused who was convicted for 10 years was not convicted under Section 121 (as was Guru) but under Section 123 (for which the maximum punishment is 10 years).

The Supreme Court judgment in Guru’s case runs into about 200 pages and has 339 paragraphs but only one line from the entire judgment is reproduced which says, “The incident, which resulted in heavy casualties, had shaken the entire nation and the collective conscience of the society will only be satisfied if capital punishment is awarded to the offender.” This said Nandita Haksar angered the Kashmiri people. I do not know how all the Kashmiri people converged on this one line in the judgment and do not know the empirical basis for Haksar’s conviction that this line angered them. But Ms Haksar had earlier said, “The people in Kashmir started calling Afzal Guru a martyr only after he was hanged secretly by the Indian government without giving his family an opportunity to meet him a final time.” (emphasis mine) How then could the “Kashmiri people” react to the judgment which was many years earlier?? In any event the line reproduced was not the only reason given by the Supreme Court to justify dismissal of the appeal. The Court found that the conclusion reached by the High Court both with regard to “the applicability of Section 121 IPC (Waging, Attempting or Abetting War) and punishment is correct” and detailed reasons were given for the same. The judgment was not rendered by “random men” whom Haksar referred to in Chesterton’s quote and to whom she had objection but experts, specialists in the field of law.

Ms Haksar says, “The law and the media have judged Afzal Guru as a terrorist. In defiance of this judgement, the people of Kashmir have called him a martyr. Who is in the wrong then? If sentiment overrules the law, law would require continuous speculation and would vary with personal whims. And what is the basis to primacy of any one section’s whim (in this case the Kashmiri people imagined by Ms Haksar) and will such an exercise not affect the principles of stability, fidelity and rationality which alone guarantee fairness in law?

We are not concerned with what kind of person Guru was but what Guru did. Ms Haksar does not set out the “historical injustices” which she alleges qua Guru and the random references to different thinkers is actually so, random. And they do not fit with the rest of the content.

It is good to build bridges, as Ms Haksar says, but it is not correct to create divides because those who create divides will never be serious about building bridges. When one is more serious about divides than bridges, law will always be a hinderance. And the only way to justify such extra-legal behaviour is to say, as Ms Nadita Haksar has said, that what one does is what “law cant”!

Indira Jaising & Satya Meva Jayate

Justice Pratibha Rani is not the first judge in legal history to extract lyrics of a song in a judgment.

Bob Dylan is the favourite of American Supreme Court judges.

Chief Justice Roberts lifted the lyrics from “Like a Rolling Stone” from the Highway 61 Revisited album when he said “when you got nothing you got nothing to lose” and Justice Scalia quoted Dylan’s the “times they are a-changing” in a 2010 decision.

Ms Indira Jaising is, however, offended that Justice Rani referred to a patriotic song from the movie Upkar – “Mere Desh Ki Dharti Sona Ugle Ugle Heere Moti”. According to her “there is no such offence as anti-national act in any of the statute books in India”.

If instead of looking at Satya Meva Jayate Ms Indira Jaising’s had cared to see the Indian Penal Code (the “statute book in India” defining offences) she would have noticed Chapter VI. Chapter VI sets out  “OFFENCES AGAINST THE STATE”.  These offences disturb security of state and public order and are an attack on its very existence.

“Act” is a noun. “Anti-national” is an adjective. Adjectives are describing words which name attributes of a noun.  “Anti national act” means “an act opposed to national interests.” Are offences against State not acts which have attributes opposed to national interests? Unless you choose to look away both from law and language or if you are Ms Indira Jaising they are not!

Ms Jaising does not stop there. She proceeds to ask judges “what have you done to guarantee us peace?” Judges come into the picture after the act. But when they do indeed intervene, as Justice Pratibha Rani did, lawyers like Indira Jaising say there is nothing called an anti-national act!  How then can peace ever be guaranteed? It is, however, difficult to fathom what she is saying because just a paragraph later Jaising says “We have succeeded in defending freedom zealous in  courts”! I wonder how courts can succeed when judges or the system fail. It is obvious the “judiciary” is doing its “job” but according to Ms Jaising it is not!

Ms Indira Jaising surpasses herself when she refers to the Constitution to understand what “anti-national” is. She cites Article 352 – the proclamation of emergency – to suggest that integrity of a nation can be imperilled only by “external aggression”. But pray where is the Proclamation? Does she mean to say merely because emergency cannot be imposed, an act which satisfies the ingredients of a penal offence cannot be punished? If she has her way the Indian Penal Code will have efficacy only in an Emergency. And in her scheme of things Emergency, which according to the Constitution is a transitional measure, would have permanence!

Ms Jaising refers next to ADM Jabalpur. I cannot fathom its relevance. The judgment dealt with a Presidential Order under Article 359 and also concerned the question whether Article 21 is the sole repository of personal liberty issues which have no bearing on Kanhaiya.  And in the context of the said judgment Jaising says “majoritarian (sic) is an illusion”! But the judgment, as also Kanhaiya,  had nothing to do with majoritarianism.

And after saying all this Ms Jaising asks, “Was Kanhaiya national or anti-national?” But she herself had said there is no offence called anti-national act! If she is sure of the latter why the question? And as she did ask the question there has to be cause for the doubt. Or is it that in her scheme of things there is no difference between national and anti-national. All that the bail order required was that Kanhaiya will not participate actively or passively in any activity which may anti-national. According to Ms Jaising this is “onerous, oppressive and unconstitutional”! Where will We The People (whose cause Ms Jaising espouses) go when anti-national activity (which by its nature is inimical to their interest) is according to her not unconstitutional??

Kanhaiya is accused of an offence which carries life imprisonment. His is one of the fastest bail orders in a case of such gravity and that too in a writ petition which is unprecedented not only because of the form in which his case was presented but the speed with which it was decided facilitated not the least because of the order of the Supreme Court itself.

The worth of a national motto, Ms Jaising, lies not in its being seen but in imbibing of its virtues. Satya Meva Jayate has to be present in the heart even if not visible to the eye. There may be some whose action will be askew despite looking straight at it. And there may be others who will do right without needing to stare at it. As Jaising herself said, Yato Dharma Tato Jaya!

Rohith & Kanhaiya-Of Dalits & Students

Discipline becomes a “Dalit” issue and Sedition becomes a case of “stifling students”.

Rohit was not suspended for being a Dalit but because of his protesting the hanging of Yakub Memon who was convicted for the 1993 Bombay bombings. And Kanhaiya was arrested for subversive speech which enjoys no constitutional protection and students are not exempted out of the requirement. Yet we are fed constantly with cries of injustice to “dalits” and “students“.

Does identity (being a Dalit) immunise conduct and is location (JNU campus) the sole reason for a privileged position?

It is indeed strange that while protesting social inequality a privileged position is being created in the enforced exemption from norms which are otherwise of general application.

And the cognitive dissonance – conflict arising from holding of contradictory beliefs – is replaced by doublethink – the simultaneous holding of contradictory beliefs entailing as Orwell said the repudiation of morality while laying claim to it!

Thus the very law and system disparaged in speeches and protests is invoked both by Rohith’s kin and Kanhaiya to seek protection from action and redressal of perceived grievances. Is this not hypocrisy parading as virtue which actually robs the protagonists of the moral high ground they seek to occupy?

In any event the question is not who Rohith was but what he did and the mere fact that Kanhaiya spoke in University campus will not make a subversive speech less so.

The defence of both Rohith and Kanhaiya entails deriving moralistic conclusions from evaluative premises which is nothing but a moralistic fallacy. Two illustrations will explain such a flawed approach: Dalits have been treated badly THEREFORE punishing Rohith, a Dalit, is wrong. And students need a free environment there all restraint on them is bad. Considering the opposition of this group to fanaticism such bullheaded opposition to reason is indeed unseemly and inappropriate.

And what will then happen to civic nationalism? Considering the vociferous opposition of the group to any ethnic basis of nationalism – because of the perceived threat of cultural assimilation – even civic nationalism – which deals with shared rights and deference to similar political procedures- would be endangered by such an approach  for rights will be claimed for some which are denied to others and exoneration from procedures, applicable to all, yet sought for a class. There will be no commonality of goals nor cooperative effort. With utter want of mutuality and enclaves of exclusiveness will there not be greater fragmentation of society and alienation of its members with no chance of inclusiveness or adaptability which is being invoked in the defence of both Rohith and Kanhaiya?

There is something fundamentally wrong with what is happening. Such an attitude must not be allowed to prevail. Denying both moral and civic virtues we will then move away from integration to disintegration. And this is injustice to all – not just Dalits and Students!

 

 

 

 

 

Sedition explained

There has ben much uninformed comment on the law of sedition, as applied in India, and the judgment of the Supreme Court in Kedarnath v State of Bihar (AIR 1962 SC 955).

It has been alleged by Lawrence Liang in Plan B for Free speech (Indian Express, February 16, 2016) that “mere speech no matter how subversive it is does not amount to sedition” (emphasis mine). Another lawyer Colin Gonsalves said (Tribune, February 12, 2016) that an offence will be sedition “only if something said against the State is coupled with a violent act to overthrow it” (emphasis mine). Yet another lawyer, Prashant Bhushan, said that the offence of sedition could be established “only if there is incitement of violence or public order”. And Kapil Sibal said there should be “intent to overthrow the government.”

The purported exposition of law of each of the aforementioned persons is incorrect.

It would be appropriate to first refer to the facts of Kedarnath. Kedarnath in one of the appeals (Criminal Appeal 169/57) had given a “statement” mentioning “dogs of CID” and “Congress gundas” and talking about their “liquidation” said “we believe in the revolution which will come” and “those who loot the country would be reduced to ashes and on their ashes will be established the government of the poor and the downtrodden people of India.” Kedarnath was charged under Section 124A of the Indian Penal Code which punishes sedition.

If Lawrence Lang was right that “mere speech no matter how subversive is not sedition” Kedarnath should have been acquitted. The Supreme Court, however, upheld his conviction. The Supreme Court said that it was not contended before it on behalf of Kedarnath that the words used by him did not “come within the purview of the definition of sedition” and that no argument was advanced that “even upon the interpretation given by it” his case did not come within the mischief of the said section and hence his “Criminal Appeal 169/57 has to be dismissed”.

Before dealing with the interpretation given by the Supreme Court another equally significant aspect of Kedarnath may be referred to. There were two other appeals before the Supreme Court dealing with “speeches” given that “excited the audience with intent to create feelings of hatred and enmity against the Government. The accused were again charged under Section 124A. The High Court of Judicature at Allahabad had set aside the proceedings holding that Section 124A was ultra-vires Article 19(1)(a). If Lawrence Lang’s understanding of sedition is the law the appeals against the said setting aside should have been dismissed. But the Supreme Court instead of dismissing the said appeals remanded the matter to the High Court for consideration in light of its judgment and hence decide whether the speeches were seditious. The case against them, therefore, could not be rejected at the thresh-hold.

It is now necessary to understand what the Supreme Court held. The Supreme Court had before it conflicting decisions of the Federal Court and Privy Council on the meaning of sedition and accepted the interpretation of the Federal Court as to the gist of criminality in Section 124A. The Federal Court had held that “words, deeds or writings constitute sedition” if they create public disturbance, promote disorder or incite others to do so. And the Supreme Court summed up the law thus: “We have no hesitation in so construing the provisions of the section impugned in these cases to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.”

A “subversive” speech is inflammatory, treasonous and incendiary. The words “subversive” means a tendency to “subvert”. And “subvert” is defined in the New Shorter Oxford English Dictionary as “corrupt, pervert, disturb or overthrow a system” and “weakening or destruction of a country, government or a political regime”. A subversive speech is bound to have “the tendency” to create public disturbance and promote public disorder and hence is liable to prosecution for sedition.

The offence of sedition is made one because it is “in the interest of public order” which is one of the limitations on freedom of speech under Article 19(1)(a) of the Constitution of India. And as the Supreme Court itself held, “This Court as the custodian and guarantor of the fundamental rights of the citizens has the duty cast upon it of striking down any law which unduly restricts freedom of speech and expression. But the freedom has to be guarded against becoming a licence for vilification and condemnation of the Government established by law in words which incite violence or have the tendency to create public order.” This is precisely what the Federal Court had also held.

It is thus also wrong to say that sedition can be established “only if there is incitement to violence or public disorder. It is not only causing violence or public disorder which will attract the offence of sedition but independent of the same the tendency to create public disorder which equally attracts liability. Putting it differently it is not an actor’s willful and deliberate stirring of public disorder alone which constitutes sedition but likeliness of disorder because of the quality of inherent in the act which is equally independently seditious. Thus Kapil Sibal is wrong when he says that sedition is justified only when there is “an intent to overthrow the government.”

There is also no requirement as has been suggested by some lawyers that an offence will be sedition “only if it is accompanied with a violent act to overthrow the state.” Stephen’s Commentaries on the Laws of England was cited by the Supreme Court itself and it described sedition thus: “We are now concerned with conduct which on the one hand falls short of treason and on the other does not involve the use of force or violence. The law has to reconcile the right of private criticism with the necessity of securing safety and stability of the State…The seditious conduct can be by words, by deed, or by writing.”

A bad tendency alone is enough to attract the offence of sedition. The charge in Kedarnath’s case itself shows that the test for invocation of the offence of sedition is neither “imminence” of disorder nor “a clear and present danger of it”. Notwithstanding there being no immediate prospect of “revolution” which Kedarnath mentioned nor the immediate possibility of the existing dispensation “being reduced to ashes” as he desired the “bad tendency” of what he spoke was itself sufficient for his prosecution for sedition. The judgment in Shreya Singhal’s case is sometimes referred to for reliance on “clear and present danger” test as the basis of justification on any speech but what is ignored is not merely that the Bench Strength of the said case was two judges only (Kedarnath was five) but also that it specifically mentioned Kedarnath and other cases to affirm that restrictions on freedom of speech can be justified on the ground of their having a “tendency” to cause harm, the test applied in Kedarnath. In any event hatred, contempt or disaffection cannot never get constitutional protection.

Mr Sorabjee added a new twist to the whole issue. In an interview he suggested that Pakistan zindabad is not sedition but Hindustan murdabad might be sedition. This creates a piquant situation. Please consider the consequences. An Indian (according to Mr Sorabjee) is immune against action if he shouts Pakistan Zindabad but if he shouts Hindustan Murdabad its impropriety needs to be debated. And debate is protected! But if debate is protected how can that which is being debated (Hindustan Murdabad) be the cause of arrest? Arrest thus will be unwarranted in both cases whether one shouts Pakistan Zindabad or Hindustan Murdabad! Indians can thus travel the length and breadth of the country either shouting Pakistan Zindabad or Hindustan Murdabad and not be tried for sedition. But if one protests against this he is liable to be arrested for objecting to legitimate political action!

Four other aspects need to be noted here.

It is, firstly, said that Section 124A has been used to imprison Tilak and Mahatma Gandhi and the very use against such outstanding Indians shows abuses inherent in the provision. The criticism however misses the fact that interpretation of the said section as used to prosecute Tilak has been rejected by the Supreme Court which not only followed the Federal Court’s interpretation instead of that of the Privy Council but also rejected challenge to its legality for violating Article 19(1)(a).

The repeal of sedition in the UK is next referred to as necessitating a similar repeal in India. Such comments ignore the fact that the balance between unfettered right to speak and the necessity of national security is clearly affected by historical events and cannot be viewed in vacuum ignoring the effect national and international developments on the political atmosphere in the country. The conditions prevailing in India mandate retention of the offence of sedition notwithstanding the repeal in the UK.

It is next said that “sedition” was not included in Clause (2) of Article 19 – a fact mentioned by Mr Nariman in a recent article. The reason for its exclusion was the expansive interpretation put on the section by the Privy Council which at the time the Constitution was enacted was the law but which is no longer the law now. In any event the Supreme Court itself has held that the prosecution for sedition is “in the interest of public order” and “public order” was added to Clause(2) of Article 19 by the First Amendment.

Finally Balwant Singh’s case is relied upon for suggesting one can raise anti-India slogans and yet not be prosecuted for sedition. In so doing those relying on Balwant Singh confuse the findings peculiar to that case with the law it declared. The approach is flawed because what is binding in a judgment is the law it declares and not the conclusion it reaches. And in declaring the law the Supreme Court in Balwant Singh’s case applied literal interpretation of Section 124A (not limited by purpose or mischief of the provision) to hold that the application of the offence of sedition will be attracted “when the accused brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government established by law in India, by words either written or spoken or visible signs or representations.” The Court therefore expanded the reach of Section 124A. And the only reason it did not hold the accused guilty in that case was because the slogans were raised by a lone individual that too only a couple of times and evoked no response.

Uninformed criticism has little evaluative merit and no social purpose. Public discourse to be meaningful must be educated. It can otherwise lead to complete irrationality and would violate of Laws of Thoughts, the axiomatic rules on which rational discourse is based.

Sedition decoded Sorabjee Style!

Indian Express reported Mr Soli Sorabjee describing the JNU President’s arrest “deplorable”. It is interesting to read the reasons for his opinion. I found them incongruous.

In the existing scheme of things the presumption is I am wrong (and prejudiced) in not condemning the arrest. I therefore read the comments again but unfortunately(?) it only confirmed my original opinion (which makes me rabidly communal, casteist and unpatriotic?). Please judge for yourself.

Mr Sorabjee said, “What did he do? Did he merely shout slogans like Pakistan zindabad? arresting him for that? I mean thats deplorable”! The “he” incidentally is an Indian citizen, and the comment appears to suggest that it is right for any Indian to shout Pakistan Zindabad and acting against him outrages any sensible Indian’s (like Mr Sorabjee’s) sensibilities. I realised I do not fit the category of a sensible Indian because I cannot shout Pakistan Zindabad nor accept its being shouted in my presence or find any restraint on the shouting “deplorable.”

The comment which follows makes the situation clearer still (or does it?) and fills me with self-loathing. Mr Sorabjee next says “Even if you say Hindustan murdabad its a boderline case since these words have the tendency to create a law and order problem.” Thus even Mr Sorabjee agrees that where there is a tendency to create a law an order problem we may consider making the act criminal; of-course, in his opinion, there will be no law and order problem if you shout Pakistan Zindabad(as it is not a “borderline case” like Hindustan Murdabad but a clearly a non-issue)  – and an acceptable war cry of any Indian! I now realise that apart from not being sensible enough to know there cannot possibly be a law and order problem if Pakistan Zindabad is shouted, I am not patriotic enough to shout it or tolerate its being shouted.

Anyway coming back to Mr Sorabjee. He is sure that Pakistan zindabad is not sedition but he is not sure if Hindustan murdabad is sedition. This creates a piquant situation but only for a stupid, irrational, unwise and unpatriotic a person like me. Please consider the consequences. An Indian (according to Mr Sorabjee) is immune against action if he shouts Pakistan Zindabad but if he shouts Hindustan Murdabad its impropriety needs to be debated. And debate is protected! But if debate is protected how can that which is being debated (Hindustan Murdabad) be the cause of arrest? Arrest thus will be unwarranted in both cases whether you shout Pakistan Zindabad or Hindustan Murdabad! Indians can thus travel the length and breadth of the country either shouting Pakistan Zindabad or Hindustan Murdabad. Here comes the catch. If I protest against either I am liable to be arrested for objecting to legitimate political action. Hence I am not just not sensible or not patriotic but I am a criminal in addition uneducated in basic constitutional values!!

Why then make any distinction between the two? Thats the point. It shows the offence of sedition should not be on the statute book! It is indeed pointless. Pakistan Zindabad Hindustan Murdabad is acceptable political discourse and truly legitimate.

And dare I object. “We should take things”, said Mr Sorabjee, “in the right perspective” and not “overreact”. My reaction to Pakistan Zindabad and Hindustan Murdabad will always be an “overreaction” because I lack the “right perspective” to tolerate it. So my mind-set is bad and my way of looking at things wrong. I am communal, irrational and unpatriotic and need to be punished for such deviance. I am after all an Indian who will never shout Pakistan Zindabad or Hindustan Murdabad.

INTOLERANCE-TRUTHINESS &WIKIALITY

Two words which the American television comedian Stephen Colbert coined – Truthiness and Wikiality -are very appropriate to the political discourse in India.

Truthiness means a claim which feels right without regard to facts. And Wikiality means, in the words of Colbert himself, a concept that together we can create a reality that we agree on. Any user could change any entry on Wikipedia and if enough users agree it becomes true.

The constant refrain today is:”India is intolerant and discriminates against minorities.” Considering the close proximity in time to the incidents which provoke such comments the allegation may not feel wrong but that does not mean it is true. The comment only has truthiness to it without being the truth.  This is because of the bias implicit in the comment. I refer to “confirmation bias” – seeking information that confirms one’s belief without paying as much attention to alternative possibilities which may be relevant for a complete assessment. Thus Muzaffarnagar, Dadri, Hyderabad dominate discourse not Kashmiri Pandits, Malda, nor attack on students singing Vande Matram, nor the Kawarias injured for taking Lord Shiva’s name while passing through a Muslim locality nor  even the poor dog who was hanged to mark the death anniversary of an RSS functionary.

This happens because of Wikiality. Gather people and make their consensus the reality. Repeated mentioning of one set of wrongs is meant suggest it exhausts the whole list of wrongs and then conclude these are the only wrongs in the country. So a reality which is created is actually an invented lie. And in this reality death of Yakub Memon is more potent than the life of T.J.Joseph who had his hand chopped off by members of Popular Front of India for allegedly insulting the Prophet nor even the lives of the 16 Hindu leaders who were killed in 18 months in Tamil Nadu.

Any kind of crime is bad. No intolerance is acceptable. But to unperson some and exclude them altogether from consideration recognising only a category of incidents and individuals as worthy of attention is creating new Dalits in national discourse, the new Pariahs of modern India.