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!

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.

KANHAIYA-A CASE FOR SEDITION

Indian Express carried excerpts of Kanhaiya’s speech and asked “Is this sedition?”I decided to attempt an answer.

Dealing with the offence of sedition the Supreme Court has declared that words, deeds or writings involving an intention or tendency to create disorder or disturbance of law and order or incitement to violence can attract the offence. It is not necessary that there be incitement of violence nor is it necessary that there be a violent act accompanying it. In fact Stephen in the Commentaries on the Laws of England has clearly stated that sedition need not involve “the use of force or violence”.

Subversive speech, thus, can attract the charge of sedition. Subversion weakens a political regime and carries the tendency to public disorder. Preservation of “public order” is a legitimate restraint on freedom of speech.

In course of his speech Kanhaiya says, “Who is Kasab? Who is Afzal Guru? Who are these people who have reached a point they were willing to blow themselves up?”

Before dealing with the effect of such probing questions it would be appropriate to first know who actually these individuals are.

Kasab was a Pakistani militant a member of the Laskar e Taiba.  Lashkar is a banned terrorist organisation (not in India alone but Russia, Australia, European Union, UK and USA) with the stated objective of establishing Islamic State in South Asia. Kasab took part in the 2008 Mumbai Terrorist Attack (LeT was earlier also involved in the 2001 Parliament Attack). The Mumbai attack was a series of coordinated shooting and bombing attacks which continued over four days killing 164 people and wounding several hundred more. Kasab was shown videos of targets in training camps in Pakistan which videos were made by David Headley. And he is reported to have said “come kill and die after  a killing spree. By this one will become famous and will make God proud.” Lakhwi however claims Kasab is alive!

Afzal Guru was convicted in the 2001 Terrorist Attack on Parliament. He had been charged, apart from murder, conspiracy, harbouring terrorists and facilitating terrorist attacks withe the offence of waging war against India. Guru was convicted by the Sessions Court in 2002. The conviction was upheld by the High Court in 2003. His appeal before the Supreme Court was dismissed in 2005 and the Review Petition was dismissed in 2007. Any other Indian would have been hanged sooner but Guru  was executed only in 2013. Afzal Guru was thus a person who the legal system (in which Kanhaiya professed faith on being arrested himself) proved was a notorious terrorist inimical to India.

The facts mentioned are in public domain. Kanhaiya therefore cannot obviously be seeking an answer. He is actually making a statement.

In his speech Kanhaiya is criticizing the existing system and mentioning many of its maladies. And in the course of that exposition he uses Kasab and Guru as illustrations. Questions are asked only rhetorically. They are in fact cited as instances of abuse in the system. This is why he is liable to be charged for sedition.

Kanhaiya a free and autonomous being is entitled to his opinion. From the opinion however an inference about a person can be derived. And on examination of the same one finds Kanhaiya feels the case of Kasab is no different from Guru. He feels no outrage or anger at a Pakistani wantonly killing Indians and disturbing public order in the country. In clubbing Guru with Kasab he believes there is identity in the interests of both (Kasab and Guru) and an Indian (Guru) therefore can act much in the same manner as Pakistani (Kasab)and be motivated against the country with the same hostile intent. The destruction and violence in the country, the systematic and continuous assault on its existence and its being kept under siege as a deliberate strategy of bleeding it with a thousand cuts affects him less than fate of those who brought it about. Can his loyalty be said to be to India? I do not use the expression as “Mother India” but instead of India as incorporated in the Constitution, “Sovereign” as its Preamble states with the right and power to govern without outside interference and a “union of states” as mentioned in Article 1 with Kashmir an integral part of it. India as constitutionally ordained is a shared perception given to ourselves by “we the people” and but Kanhaiya has affinity with those hostile to that view. Is this not subversive?

It is subversion which sedition targets. Kanhaiya’s statement is actually subversive. India should celebrate the fact that Kasab and Guru “reached a point they were willing to blow themselves up.” Had they instead succeeded India would have “blown up”! By pleading their case and regretting the outcome he can well be described as seditious to the Indian cause, be shown as being willing to be party to weakening of the country and the overthrow of the system and is using his freedom as a licence to foment public disorder. How can he plead the cause of Indians if he is alien to India as constitutionally sanctioned?

The treachery of any false Indian (in the Constitutional sense) should never prevail because of the weakness of a true one.

 

 

JUSTICE SHAH & AFZAL GURU PARADOX

I was less horrified by the louts of JNU who shouted themselves hoarse for the terrorist Afzal Guru, an arch enemy of India, and wantonly showed extreme malevolence towards the country through slogans steeped in hate in a ferociously savage display of anti-national sentiments than by the comment of Justice A.P.Shah who chose not to comment on this feral display of untamed animosity towards the country and instead rued, and I quote him, “executive let him(Afzal Guru)down”!!

A phrasal verb of “let” the expression “let him down” means failing to support or help someone as they hoped. Its synonyms are disillusioned, disappointed and forsaken. The “executive”, and I presume Justice Shah was referring to the Government of India, thus (so Justice Shah believes) failed to support or help Afzal Guru and in this failure disappointed him (Afzal Guru) who thus felt “let down”.

Now louts (like the howling wailing assortment of Afzal Guru supporters) are proven bumpkins who are known to act like philistines and to expect them to show any intelligence, sense or luminosity would be utterly foolish but a retired Chief Justice of a reputed High Court of the country is judged by different standards for obvious reasons. Or can it?

If Indian government “let Afzal Guru down”, as Justice Shah believes, it would have betrayed its trust. The “betrayal” would entail that India behaved traitorously towards him. And this, in turn, would mean that it violated a compact with Guru that the latter could join in the conspiracy to attack Parliament, kill people, and be exempt from punishment.

This put me in a dilemma. Punishment could only follow prosecution. And if punishment was wrong prosecution could not be justified. Afzal Guru could not have been arrested in the first place! Justice Shah does not seem to support this extreme position. His objection is to the imposition of death sentence.

But here comes the Afzal Guru Paradox – the credit for which goes to Justice Shah. If Afzal Guru was expected to attack Parliament and he acted accordingly as to make his punishment for it an act of betrayal by the government how could he be given any punishment at all be it death or sentence for life the latter being the one Justice Shah was a votary of? There is a contradiction inherent in the comment.

Or does Justice Shah believe Afzal Guru should not have been punished? That is the only way the “let down” comment can be justified. The man then is not a criminal but a martyr. The heroic act of attacking Parliament and the selfless killing of people showed Afzal Guru’s love for India for which he died!!

Is this not what the louts of JNU were contending? The similarity with louts should be embarrassing for Justice Shah. The embarrassment, however, would falsify the comment!

This topsy turvy world reveals a contradiction in the reasoning and the argument of a learned Judge. Can then the noisy yelling and bellowing equivalent of the same be coherent or justified?

If anyone is let down it is our country and its countrymen. First by the delayed punishment to Afzal Guru and now wailing frenzy of the uncouths of JNU and then by the teary-eyed comment of Justice Shah.

 

 

 

 

“Transgender”? But Judges have no gender!

Writing for Mail Online, Sanches Manning described in a rather unseemly manner Dr Victoria McCloud – the youngest ever Master in the High Court – as “a transgender woman who has made history after becoming a leading judge in the High Court.”

Significantly (and appropriately) Dr McCloud declined to speak about her transgender status.

A spokesperson from the British Courts, however, is reported to have said (I would say pompously and indeed tastelessly) that “judges come from all walks of life reflecting society in general.”

The point which Sanches Manning and the spokesperson missed is that all judges transcend gender binaries – the classification of sex and gender into masculine and feminine forms.

A judge is neither masculine nor feminine and cannot therefore be transgender too!

A judge is a social construct and is not biologically determined. The role and attributes which a judge embodies are not masculine or feminine. I will not call judges genderqueer but judges definitely are gender-neutral.

An analogy can explain the issue better. According to the Upanishads Purusha (translated literally as “man”) is actually the unchanged uncaused Universal principle.  Similarly a judge is not a man (or woman) but only an embodiment of “justice”

Plato said the same thing in his Theory of Forms that the non-material form – in this case justice- and not the material reality (which according to Hinduism is called “Prakriti”) and in this case is the gender defined judge is the most fundamental kind of reality. The fusion makes a every judge androgynous like the Hindu concept of Ardhnarishwar the synthesis of Purusha and Prakriti.

One, thus, misses the substance of the judicial process when one confines oneself to the form – man,woman or transgender – administering  it and ignoring the non-material principle, the concept and idea of justice, which is actually the fundamental reality of the process.

A judge, as a judge, has no assigned sex. When talking of Judge Victoria McCloud it is indefensible to talk of her as “a transgender woman” or suggest deviance from a norm by a pretentious reference to “all walks of life”.