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.

 

BHARAT MATA KI JAI & CONSTITUTION

 

On 24th January, 1950 the Constituent Assembly met in the Constitution Hall, New Delhi, at Eleven of the Clock, with Dr. Rajendra Prasad in the Chair.

Dr Rajendra Prasad made this statement:The composition consisting of the words and music known as Jana Gana Mana is the National Anthem of India, subject to such alterations in the words as the Government may authorise as occasion arises; and the song Vande Mataram, which has played a historic part in the struggle for Indian freedom, shall be honoured equally with Jana Gana Mana and shall have equal status with it.

Volume XII of the Constituent Assembly Debates records that the above statement met no objections and was greeted with applause.

I refer to the Constituent Assembly Debates because Mr Owaisi said that the Constitution does not require him to say Bharat Mata ki Jai. The Constituent Assembly Debates however record that Vande Matram (of which Bharat Mata ki Jai is Hindi version) has to be honoured equally with the National Anthem and have equal status with it.

I am sure Mr Owaisi will have no objection to singing the National Anthem (although it is not included in the Constitution of India). If so, when those who made the Constitution of India (which Mr Owaisi swears by) placed Vande Matram at par with Jana Gana Mana, how can he object to Vande Matram?

Celebrating one’s country is a civic virtue and part of civil nationalism which has no theocratic basis and is consistent with rationalism and liberalism which are the most potent unifying forces in our country.

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”!

Bounty on Kanhaiya? Neither ADARSH & definitely SHARMAnak!

It is heartening to read that Adarsh Sharma has been arrested. His declaring a reward of Rs 11 lakhs to anyone killing Kanhaiya Kumar is abhorrent.

There can be no Final Solution in a democracy. It is for the same reason Pappu Yadav’s comment declaring reward for whosoever kills those responsible for  Rohith’s suicide is equally condemnable warranting similar action.

It is because law is supreme that Kanhaiya is sought to be prosecuted. And Kanhaiya can escape punishment by showing he is not in violation of law. The whole exercise re-enforces the rule of law and allows for a structured discourse which is indispensable for an ordered existence notwithstanding  conflict of ideas.

Abuse in language like violence in action symbolises want of conviction in one’s beliefs. And a belief which is held without conviction is just a passing fantasy, a self-indulgence for personal pleasure which has no creed or doctrine and is merely passing sentiment.

If we give credence to sentiment over belief mere offense NOT harm would be the basis of action and law would  cease being founded on norms but would captive to the dominant ideology of the day.

This is dangerous for democracy and if it is allowed to happen by supporters of a political party merely because that party is in power they will be defenceless when that party loses power because the criterion for action would be no principle but the dominant credo of the day. This is a very menacing situation because the stability and fidelity which gives credibility and worth to any legal system would be lost. 

Conflict of points of view makes for a robust society and the purpose with which freedom is granted to speech is NOT to obstinately hold onto one’s opinion but to correct it if in a principled clash it is found wanting. There is no hostility in such conflict ONLY engagement. It is only in this way that freedom of speech will NOT give way to “polarisation”.

I have serious disagreement with a few things which Kanhaiya has been associated with and the exchange with those supporting him has been sharp but there is no bounty at stake and the thought of violence to support my point of view has never crossed my mind.

I will object to the allegation of “judicial killings”, to the association with Kashmiri separatists and with the espousing of anti-India sentiment but I am assured in my belief that the established system will both address and correct what I believe are aberrant ideas because I will put them to a successful test according to settled norms. Even if I fail the established system would have triumphed.  No individual is bigger than the system.

For the same reason assault even by the lawyers was unacceptable – far from showing strength it displayed a weakness and embarrassed a person like me because the mode of protest discredited my point of view. The way in which one protests is an indication of character.

India today is engaged. This is wonderful. It shows it is different from Pakistan, China, North Korea and other countries. It also provides the assurance that every Indian should feel secure in it to make any thought of moving away from it unjustified. And it shows it rejects violence as the prop for any point of view. Physical attack and extermination show extreme scale of prejudice which is the reason we condemn Kashmiri Pandits being made to leave Kashmir. How then can the same method be adopted in a protest against what is believed to be an anti-national act? There is an inherent contradiction in the approach which exposes its utter untenability.

It is because we will not tolerate sedition we also NEVER tolerate any Adarsh Sharmas either.  And  if we do it will not be Adarsh and will definitely be Sharmanak!

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!

Mr Chidambaram’s “Polarisation”: Blame-Game & Half-Truths

The country, said Mr Chidambaram, is “most polarised” comparing it to the time of partition of the country.

The comment was seemingly uttered with a sense of dismay at what was perceived as a deteriorating situation in the country.

Lose comments deny dignity to serious concern. Mr Chidambaram’s comment is a case in point.

Polarisation is understood as extreme divergence in opinions with distance between the extreme points of view so large as to deny any possibility of convergence. One cannot, however, talk about “polarisation” without addressing the issue of freedom of speech.

A misuse of the freedom implicit in mischievousness, distortion or obscurantism closes door to dialogue frustrating the purpose of communication and contributing only to noise and not public discourse.

Then again, not every polarisation of views is bad. In dealing with the subject of polarisation, to make the discussion meaningful, one must specify the issues on which there is extreme disagreement and further consider whether disagreement on those issues can justify apprehension of a larger discord as can threaten cohesion in society.And in dealing with the latter both discord and justification need to be considered. An unjustified discord will create polarisation only to create disorder and law will have to intervene to clam down on it.

Mr Chidambaram addressed neither the issue of abuse of freedom of speech nor specify what issues he had in mind while commenting on polarisation and did not also dwell on the question whether disagreement on those issues is justified as to label the matter disagreed with dangerous.

The comment was only an appeal to emotion and is mere prejudice parading as fact.

The immediate context for the comment was the JNU controversy. JNU became controversial because of comments about “judicial killing” of proven terrorists and emphatic demands of “self-determination” of Kashmiris. The former means courts in India murder and latter questions the integration of Kashmir into India.hero even for students

Strangely Mr Chidambaram mentioned partition of the country not independence which accompanied it and framing of the Constitution which followed establishing rule of law in the country with courts as its guardian and Kashmir as part of its territory.

It were those wanting partition who demanded Kashmir and rejected secular foundation for the new state they created. Mr Chidambaram’s comment shows his affinity with this group rather than those who fought for and established an independent India.

If an Indian objects to secession and to the undermining of a system entrenched constitutionally it is the point of view that the Indian opposes which is dangerous. As wide a disagreement as possible with this view is imperative for the integrity of the country. And using this as an instance of “polarisation” is mischievous.

Similarly if “beef” moves from being food to political weapon consumed not to satiate physiological need but make a political point the intent clearly being to spite another not satisfy oneself vociferous opposition is not only important but necessary for such hate will  feed itself till it consumes the country. Why no comment on celebratory beef binging? Is polarisation bad only if it entails a disagreement with your point of view?

Who made HCU debate Dalit issue? Afzal was a hero even for students of HCU and judicial killing flavour of the debate. Is this a discipline issue or Dalit issue?

And while the Asura tribe, constituting a minuscule part of the population may celebrate Mahishahsura, The Times of India reported, “Today, few Asurs, especially the younger generation, know who Mahishasura was and what he means to their community and the activists hope to change that. Soon after the gathering in Purulia, the tribals will congregate at Jawaharlal Nehru University in New Delhi on October 26 to raise their voice against the “centuries-old systematic repression of their culture and religion”. The students of JNU are more aggrieved than the tribals whose cause they claim to espouse to create a fractious environment where none exists. Who then is moving to the polar extreme and in this deliberate movement is there not the wilful  intent to create disturbance and will this intent not be impervious to resolution as a dispute has been raised for the sake of raising it without there being a reason for the same? Is this, again, not an issue of mischievous use of speech and can a legitimate objection to it be called a sign of polarisation?

Mr Chidambaram said, “University is a place where I have a right to be wrong!” If you claim such a right how do you justify rights or protest wrongs and use the medium of interaction to find common ground necessary for an ordered existence. And with such an attitude you, not those who oppose you, are responsible for the polarisation you claim to be so worried about.

The polarisation arising out of such abuse of free speech is not bad. The discord which follows exposes not what is wrong in the societal apparatus but who the miscreants in society are and the regulatory apparatus is then meant to intervene in such situations to discipline such reprobate behaviour. This is a sign of a functional not dysfunctional system. The disagreement on some issues is imperative for preservation of a polity and where there is justification for disagreement the disagreement cannot be cited as being pathological.

There is a contrary point of view to your world view Mr Chidambaram.That point of view is now equally vocal. Yes there is disagreement. But that is only half-truth. It is the unwillingness to see the reason for the same which is now causing the polarisation. Introspection will be better than playing the blame-game.