Officialdom, Law & Gobbledegook

A recent judgment of the Supreme Court upholding the offence of defamation has justifiably attracted much comment for its magniloquent style.

Interestingly The New York Times had carried an article on May 21, 1944 called The Case Against GobbledegookThe author Maury Maverick protested “vague, pompous, repetitious English and the two gun bandits who use it.” What provoked Maury was the the language of officialdom and was mild compared to the Supreme Court judgment. Maury’s reaction would surely have been more indignant had he read the judgment but what he wrote is yet very relevant.

“No one”, said Maury, “regarded tyranny of words funny.” Anyone, he said, “who is thinking clearly and honestly can express his thoughts in words which are understandable and in very few of them. Lets write for the reader and not ourselves.”

The word “Gobbledegook” was coined by him. Explaining the invention he said, “First the word: It is long, sounds foreign, has four stories. You walk up without the benefit of the elevator. Second its definition: talk or writing which is long, pompous, vague and involved… Perhaps I was thinking of the old bearded turkey gobbler who was always gobbledegooking and strutting with ridiculous pomposity. At the end of the gobble there was a sort of a gook.” Gobbledegook “means not only big foolish words but wasted words.”

Those who do not “talk English” were called Gobbledegookers – “like the oracles or Panchhan Lamas sitting on top of the Tibet mountains in their monasteries talking nonsense to common people 7000 feet below.”

Scorning “long-winding heart-breaking wordiness”, Maury described speech as “a very important part of a person’s conduct. He must be held morally responsible for his words just as he is accountable for his other acts.”

Unless one utters words easy to understand, said Maury, how shall it be known what is said?

Maury’s article will apply both to officialese and legalese. Obscuring official language will deter popular participation in and the understanding of governance. But the need for clarity will be even more in judgments which communicate the law. In the absence of clarity about law both adherence to it and enforcement of accountability to it will be a casualty and paradoxically in the purported enforcement of law will be its erosion. And while law can be an ass it should never be allowed to become a clown.

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?

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”!

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!