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.

 

Panama Papers and Amitabh Bachchan

A rose by any other name, said Shakespeare, would smell as sweet. And smell attracts bees. A flower may not be called a rose and can yet can have a bee pay attention to it. But what about the Big B? Does this B prefer ships over flowers called roses or anything else and can thus smell something simple b’s cannot?

Big B said that he “does not know the (shipping) companies referred to in the Indian Express” but added that “it is possible my name has been misused.” Now there may be nothing in a name if the subject was a rose but Amitabh Bachchan is different. A rose can be nameless but one will never ask Amitabh Bachchan his name. And there would be more people wanting to be called Amitabh Bachchan whatever be the name they actually carry. Had Amitabh Bachchan been born when Shakespeare was alive the latter might well have said, “there is nothing in a name unless the name is Amitabh Bachchan.” So an Amitabh Bachchan popping up in Panama should cause little excitement. Even an eskimo might like to be called Amitabh Bachchan. Its a very simple explanation. The Panama Papers cannot be used to implicate Big B.

But the problem is that Big B is himself not sure! In the fact that it is “possible” his name has been misused is the possibility that it has not. So the possibility that it can be the Big B competes with the question can it be Big B! And who else but Big B can answer that? An Amitabh Bachchan might not be the Amitabh Bachchan but the Amitabh Bachchan should surely know who’s who!

This reminded me of another Shakespearian play Hamlet. Prince Hamlet contemplating death or suicide said, “to be or not to be is the question”. Interestingly in the soliloquy Shakespeare, speaking through Hamlet, mentioned “sea of troubles.” And the Panama Papers coincidentally are alleged to link Amitabh Bachchan to shipping companies. These indeed are slings and arrows of outrageous fortune!

One can well conclude that a rose by any other name may smell as sweet but sometimes a rose by the same name may not remain as sweet. Even Amitabh Bachchan can be forced to distance himself from Amitabh Bachchan!

 

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!

AZADI!!!!! Really???

Should those clamouring for “Azadi” become free I will not be able to comment. But I am free today to conjecture the consequences…
Freedom to disfigure the country- Azadi for Kashmir
Freedom to disable the law – Azadi from Sedition
Freedom to distort the facts – “Murder” of Rohith
Freedom to disparage the critics – “Persecution” of Nivedita Menon
Freedom to debase the opponents – “Half Pants”, “Hit Jobs” & “Reactionaries”
Freedom from discipline – “Curbs” on Universities
Freedom to disenfranchise difference – Its “fascism”
Freedom to dominate, dissimulating enslavement – Invoking “minorities” & “dalits”
Freedom to deliver the last word – we “think” you “hate”
Freedom to dismantle while pretending defense – In the name of Constitution
Freedom to Doublethink freedom
Freedom to end all freedom itself!

 

AZADI AZADI AZADI….

 

KASHMIR & MYTH OF “OCCUPATION”

“After Independence, the accession of Kashmir was done following the India-Pakistan war on the pretext that a plebiscite will be conducted when the situation gets back to normal and since then it (janmat sangrah) has not happened.” Thus spoke one Nivedita Menon who is a JNU Professor. She also said that India, an “imperialist” country is “illegally occupying Kashmir”.

Mark Twain famously remarked, “Get your facts first then you can distort them as you please.” In the instant case distortion is being paraded as facts.

The India Independence Act, 1947 created a sovereign Dominion of India which came into existence on August, 15, 1947. Under the said Act the suzerainty of the British Crown over the Indian States (including Jammu &Kashmir) also lapsed and they consequently regained there sovereignty. In exercise of this sovereignty the Indian States were competent to succeed to either of the two Dominions.

On October 26, 1947 The Maharaja signed Instrument of Accession with India thus recognising the fact that his State was part of the Dominion of IndiaThe Instrument of Accession was in the same form as was executed by Rulers of other states which had acceded to India and the legal consequences cannot be any different. The requirement of a plebiscite was not part of the Instrument of Accession. The acceptance of the Instrument of Accession was unconditional.

This position was reflected in the Constitution of India when it was made in 1949 and declared Jammu & Kashmir as part of the territory of India in Article 1. Article 370 itself states that Article 1 applies to the State.

The Constituent Assembly of Jammu &Kashmir ratified the accession to India in February 1954 and the President of India issued Constitution (Application to Jammu & Kashmir) Order, 1954 which added all Union subjects under the Constitution of India (not the three subjects of Defence, Foreign Affairs and Communications).

The Constitution of Jammu & Kashmir adopted on November 17, 1957 with effect from January 26, 1957 declares the State of Jammu & Kashmir to be “an integral part of the Union of India”. The choice of January 26th as the date from which the constitution was to take effect is significant as it was on this day that the Declaration of Indian Independence (Purna Swaraj) was proclaimed by the Indian National Congress as opposed to the Dominion status offered by the British Regime and it was chosen as the day when the Constitution of India came into force.

Where then is the “pretext of a plebiscite”? A sovereign Princely State acceded to the Dominion of India which accession  was unconditionally accepted by it and the same was incorporated in the Constitution framed declaring India to be a Republic to be ratified subsequently by the Constituent Assembly of the State and eventually acknowledged in the Constitution of Jammu & Kashmir itself. 

The UNCIP resolution talked of a plebiscite but even that mandated the withdrawal of Pakistani troops and tribals which never took place. And Mountbatten’s letter, apart from being a unilateral and ultra-vires act without the approval of the Council of Ministers could not only not alter a completed accession but at best was statement of intent which was fulfilled by subsequent developments.

Admittedly, elections to the Constituent Assembly were held in August-September, 1951 and all 75 seats were won by the National Conference. This itself is popular affirmation of the State’s accession to India.

Significantly the first official act which the Constituent Assembly of Jammu & Kashmir did was to end the princely rule of the Maharaja. His son was elected by the Constituent assembly itself. If what the Maharaja did was unacceptable would the Constituent assembly have elected his son as Sadar-i-Riyasat of Jammu & Kashmir?

Elections were held to the Jammu and Kashmir Legislative Assembly after the Constituent assembly was dissolved in 1957 and again in 1962 wherein 65% of the voters cast their ballot. Is this not vindication of the integration of the State into India? In fact in later elections in excess of 75% of the voters cast their votes! Presuming that any assurance of taking “people’s will” into account was given, this “will” has been repeatedly expressed by the people.

Jammu & Kashmir is India’s and will remain so and not because India is an imperialist country forcibly occupying it. Kashmir has not been colonised but has been constitutionally integrated into India. It was not for expanding investment, nor for acquiring material resources nor even to look for man-power that India sought to “occupy” Kashmir. The integration followed a legal process and in the very making of special provisions for it there is an absence of both dominance as also an enforced inequality in the relationship. There has been an engagement not conquest. And force is being used not to extend territory but only to preserve that which is its own.

India’s breakup is the agenda not the so called “occupation”.

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”!