Media,Law & the case of Roys

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 “SPECIAL” Coal Case – Ministers and Scamsters!

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.

(THIS HAS BEEN PUBLISHED AS AN OPINION IN BLOOMBERGQUINT   ON 28TH OF MAY, 2017)

Supreme Court & Justice Karnan – Judging the Judges!

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.

Raas Leela comment & Bhushan Buffoonery!

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 Padma Awards Controversy

Where cronyism becomes the creed only the craven can be celebrated. The annual brouhaha over the Padma awards therefore never ceases to startle me. Such honours are always conferred even where they are not actually deserved. The truly deserving seldom seek awards and, in the distorted scheme of things in which we live, thus become disentitled to receive them. After all it is not honour which is being bestowed but patronage!

Acharya Kriplani had, in 1970, moved a non-official Bill for the abolition of these awards. According to the Bill the decorations were not always according to merit with the Government of the day not the best judge of the merit or eminence of the recipients and what was intended to be for a few exceptionally talented individuals was transformed into a torrent of conferrals.

Quite predictably the Kriplani’s Bill was defeated. The Padmas had to be conferred by politicians on themselves (Indira Gandhi), their teachers (Rajiv Gandhi), their doctors (Vajpayee & Manmohan Singh) or on prospective political allies (MGR and now Sharad Pawar) or those who shout the loudest (Saina Nehwal). Bharat Ratna Tendulkar is busy endorsing products and teams on television while Dhyan Chand (a national icon but of a less favoured sport) lies obscure and anonymous in his grave. Dubious antecedents are no bar to the grant or holding of these awards – being shady or above-board has nothing to do with qualities intrinsic to the individual in question and is only a question of perception. And a favourable perception of those who have to confer awards is all that is required for entitlement!

Interestingly, the Supreme Court of India while rejecting a petition against conferring of awards nevertheless observed that it is necessary to ensure that the “recipient are subjected to feelings of respect rather than suspicion” and that “the number of awards should not be so large as to dilute their value.” The Court “did not say more” because it had entrusted the job to a Committee of “high level functionaries” which was to keep in view the “anxieties” expressed by the Court.

Judgments are not meant to be homilies which is the reason the Court’s exhortation has been treated with utter disdain and contempt.

As the RTI activist Subhash Chandra Aggarwal said “when the Awards Committee choose about 100 names from thousands of nominations in just a few hours over two to three meetings, it seems likely that a pre-decided list is put before the committee for endorsement.” No ennobling exercise this, just a kick in the teeth of the deserving while giving short shrift to the “anxieties” which led the Court to constitute the Committee itself.

It is apparent from the manner in which the Padma awards have been granted that what was meant to be an honour has been reduced to a mere title which is specifically barred by Article 18 of the Constitution of India and the breach of the condition precedent for their retention as declared by the Supreme Court renders the very process of granting these honours void in law.

Considering its process and its selectees I feel the Padma Awards should be re-named Padma’s Wards!

Saif, Taimur & Name-Calling!

In an Indian Defence Review Blog it was mentioned that Pakistan is working on an Intercontinental Ballistic Missile (ICBM) named Taimur. India however has an Intercontinental Celebrity Baby Made (ICBM) in India with that name thanks to Saif! It is a sheer coincidence that Pakistani’s and Saif share the liking for that name. Pakistan chose it because of its visceral hostility towards India celebrating the Taimur’s invasion of Delhi and the brutal massacre which followed it. Saif however is the ultimate patriot – he has shown some Indians can do in India what Pakistan cannot from Pakistan!!

Then perhaps Saif chose the name because he is actually a Mongol. He wants to celebrate the Taimurian passion to restore and then expand the Mongolian Empire. It is a different matter that Ghengis Khan is credited with the largest contiguous Mongol Empire. The point Saif very intelligently notes is that Ghenghis’ military campaigns in India were not of the same ferocity for Saif’s son to proudly carry that name. Taimur is better! There is another reason; Ghengis was called “Great Khan” and Bollywood has too many great Khans to bother about that old chap!!

Or perhaps its got nothing to do with Mongols. In fact nothing at all to do with anyone. You see Saif, the eminent historian that he is, knows that in Taimur’s time everyone was fighting everyone else. Muslims fought Muslims too! Saif only likes the razing of cities and torturing and massacring of captives – the more cruel a person the better. And does Taimur not fit the bill. Come on the answer is an obvious YES!!

And are we not living in INTOLERANT times? The name should suit the times. Enough of secularism and tolerance – God its suffocating! The Sword of Islam is the answer. With whom is the Sword of Islam associated? Hehhehheh – Taimur!

Saif is just a loving parent choosing the best name for his son! No one from the Islamic Golden Age could be the right choice for him. Do you think we need to be bothered about Philosophy, Science, Mathematics or Art and Culture with whom have been associated very eminent Muslims? Not at all!

And now that Taimur is taken, Ghaznavi, Ghauri and Abdali remain as future choices. These are the names of the existing Pakistani missiles.

The supremely cultivated Rishi Kapur told everyone disapproving the choice to “shut the fuck up”! How will he respond to people like me who provide the justification for Saif’s choice?? 🙂

Rahul Gandhi’s “Earthquake” & Alice In Wonderland moments!

Without joining the political battle and confining myself only to the language used in political discourse I feel that many times our “leaders” (its a disgrace at times to use this undeserved appellation) not only NEVER MEAN WHAT THEY SAY say but actually SAY WHAT THEY CANNOT MEAN. I was amused to hear Rahul Gandhi’s comment on Narendra Modi. He MEANT Modi is “QUAKING” because of the apprehended revelations. However he SAID there will be an “EARTHQUAKE” when he will speak. He COULD NOT have MEANT that because the earthquake would consume the maker (that is Rahul Gandhi) himself rendering the quaking of Modi irrelevant! So far from being EXPLOSIVE as was presumed the allegations would actually be IMPLOSIVE. And that is the EXACT OPPOSITE of what was intended to be conveyed! Orwell will surely turn in his grave. He used “DOUBLESPEAK” as a CONSCIOUS political strategy to manipulate and control the population. He never anticipated a variant of this arising SPONTANEOUSLY out of the utter banality of the speaker with consequences completely different from the original intent. That’s DOUBLESPEAK DOUBLESPEAK – we KNOW the speaker did not mean it yet WONDER what he meant with no one knowing the real meaning. The ensuing confusion enables everyone to take any meaning from it with the real meaning not known to anyone! Thus we have BJP saying Rahul Gandhi has “nothing earth-shattering to reveal” assuming what he MEANT but did not SAY but it is NOT saying that what Rahul SAID affects HIM not THEM! And AAP wonders why Rahul is NOT actually speaking out what he threatens to say UNCONCERNED that taking what Rahul SAYS literally will consume AAP in the earthquake for no fault of itself! Its the ALICE IN WONDERLAND MOMENT – the only thing is it is REAL. Wish I could say (borrowing from the work) “OFF WITH THEIR HEADS” – but in the scheme of things the heads seem irrelevant and so “off with their heads” will actually make NO difference!! 🙂