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Ambedkar’s way & Anna Hazare’s methods

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PROTEST FOR JAN LOKPAL BILL

SUKHDEV THORAT in THE HINDU

Following Dr. Ambedkar’s example, Team Anna should use constitutional methods and enhance people’s faith in them. Otherwise it will convey the message that only coercive and unconstitutional methods work.

A group of people, with placards showing Dr. B.R. Ambedkar, staged a demonstration in Delhi a few days ago against Anna Hazare‘s proposals on the Lokpal and the methods used by his team. More often than not, Dalits look with suspicion on any attempt to tamper with the Constitution. Team Anna has, however, suggested that its Lokpal bill would benefit Dalits more than anyone else. This led me to look at Dr. Ambedkar’s position as compared to the mode of agitation being deployed by Anna Hazare and his team.

In his last, visionary speech after the submission of the drafted Constitution on November 25, 1949, Dr. Ambedkar warned of three possible dangers to the new-born democracy. These related to social and economic inequalities, the use of unconstitutional methods, and hero-worship.

Dr. Ambedkar first pointed to the contradiction between equality in politics in the form of one-person-one-vote and the inequalities in social and economic life. He argued that for political democracy to succeed, it needed to be founded on the tissues and fibres of social and economic equality. He warned that we must remove this contradiction at the earliest possible moment, or else those who suffer from inequality will blow up the structure of political democracy. Although we in India are trying hard to reduce the vast inequalities that exist, the working of political democracy is already under heavy stress due to discontent in some parts of country.

Dr. Ambedkar’s second, and more important, warning in the present context related to the methods to achieve social and economic objectives. He urged the people to abandon bloody as well as coercive methods to bring about change. This means abandoning methods of civil disobedience, non-cooperation, coercive forms of satyagraha and fast. Referring to the use of these methods during the British period, Dr. Ambedkar observed: “When there was no way left for the constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods.” But using them since that period, in his view, was “nothing less than the Grammar of Anarchy.” He advocated that “the sooner they are abandoned, the better for us as a nation.”

Dr. Ambedkar’s third warning related to “hero worship.” He was immensely concerned over the political culture of “laying down the liberties at the feet of great men or to trust them with powers which enable them to subvert their institutions.” He believed that there is nothing wrong in being grateful to great men who have rendered life-long services to the country. But there are limits to gratefulness. No man can be grateful at the cost of his honour, and no nation can be grateful at the cost of its liberty. This caution is far more necessary in the case of the people of India than in the case of any other country, for in India,bhakti, or what may be called the path of devotion or hero-worship, plays a part in politics, unequalled in magnitude to the part it plays in the politics of any other country in the world, argued Dr. Ambedkar. He went on to add that bhaktior hero-worship in religion may be a road to the salvation of the soul, but in politics, bhakti or hero-worship is a sure road to degradation and to eventual dictatorship.

These views of Dr. Ambedkar also evolved through a much deeper commitment to constitutional methods and their use in the anti-untouchability movement during the 1920s and the 1930s. The 1920s and the 1930s saw a series of agitations led by Dr. Ambedkar to get public wells, tanks and Hindu temples opened to “untouchables.” In the present context, recalling two such incidents is very relevant, namely, the agitation for access to a water tank in Mahad, and for entry into the famous Kalaram temple in Nasik. In both cases, Dr. Ambedkar was up against violent high-caste Hindus, with the British sitting on the fence.

Dr. Ambedkar started the Mahad agitation in 1927, but the “untouchables” got access to the tank only in 1937 through a court order. The people of the high castes had managed a court order to ban the entry of “untouchables” into the tank on the grounds that it was a private tank. Dr. Ambedkar accepted the court order and discontinued a second march to the tank. But he fought through the courts and got justice in 1937, almost after 10 years. He did this using legal instruments and a peaceful mass movement, without the coercive means of fasts and hunger strikes.

Similarly, the agitation for entry into the Kalaram temple went on for four years, from 1930 to 1934. He discontinued the agitation in 1934 following opposition by priests, notwithstanding the support extended by Gandhiji. But he fought a legal battle, along with a peaceful agitation, for the next four years, and in 1939 ultimately secured entry to the temple for “untouchables.”

During the 1920s and the 1930s, Dr. Ambedkar combined mass mobilisation with legal methods in the anti-untouchability movement, but never allowed unconstitutional and coercive methods to take hold, despite instances of violent attack on “untouchables.” Once he came face to face with Gandhiji with the latter’s fast-unto-death and he had to compromise on the demand for a separate electorate with what is the present-day political reservation. Coercive means forced him to surrender the demand for a separate electorate, the consequences of which are visible today.

Team Anna should realise that the Indian Constitution provides ample opportunities for advocacy, through discussion and lobbying with parliamentary Standing Committees, Groups of Ministers, the Ministers concerned, the Prime Minister, courts, and above all through a peaceful agitation. With several political parties on their side, the possibility of reaching a middle ground is high. Experience with constitutional means shows that civil society activists, through their constant struggles, have persuaded the two successive United Progressive Alliance governments to acknowledge several basic rights and convert these into laws. The right to employment through the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA), the right to information, rights under the Forest Act, the right to education, and now the right to food, are some of the revolutionary measures that civil society has been able to accomplish through constitutional methods. It is an opportunity for Team Anna to use constitutional methods and enhance the faith of people in these; otherwise Team Anna will convey the message that only coercive and unconstitutional methods work.

As Dr. Ambedkar observed, due to certain aspects of Indian culture our people are highly vulnerable to hero-worship. How a yoga teacher could convert yoga devotees into religious devotees and finally into political supporters within a few years’ time is a classic example of what hero-worship and bhakti can do. Another religious preacher has threatened that he would use his religious followers for political end which he thinks does not require discussion with them as they follow him in whatever he tells them to do.

Anna and his team should recognise that for a new democracy like ours, which is operating within the framework of undemocratic relations based on the caste system, constitutional methods and social morality need to be cultivated and promoted with a purpose. The Lokpal Bill is too important a piece of legislation to be passed under threat and unreasonable deadlines. All its aspects need to be discussed with extreme care and with consensus among all sections. Dalits have begun to express concern about its implications for them. In a society where the anti-caste spirit and prejudices are present in abundance, they feel that given its proposed wide-ranging powers, it may be misused.

The Commissioner for Scheduled Castes reported about 11,469 complaints by Dalit government employees during the period from 2004 to 2010 that were linked to caste prejudice. Several thousand more complaints under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, such as giving “false or frivolous information to any public servant and thereby cause such public servant to use his lawful power to the injury or annoyance of member of SC/ST” are waiting for justice. Therefore, Dalits have begun to seek safeguards against the complaints emanating from caste prejudices in the Lokpal Bill. I think the government has rightly brought the bill for an open discussion before the Standing Committee that comprises MPs from all parties, so that the Bill is discussed by all sections in a peaceful milieu and not under duress and force.

Anna Hazare knows that the road to social change is a difficult one. He helped Dalits in a number of ways, including by repaying loans taken by Dalits with contributions from villagers. Yet he could not bring about fraternity between them — Dalits continue to stay in segregated localities in his village. Corruption, like untouchability, is deeply embedded in the social fabric of our society. Therefore, besides legislation its eradication requires changes through education and moral regeneration.

(Sukhadeo Thorat is Professor of Economics, Centre for the Study of Regional Development, Jawaharlal Nehru University. E-mail: thoratsukhadeo@yahoo.co.in)

http://www.thehindu.com/opinion/lead/article2384849.ece

 

Judges must be beyond all suspicion

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ARUN JAITLEY

While speaking on the motion for the removal of Justice Soumitra Sen, a Judge of the Calcutta High Court, Leader of Opposition in the Rajya Sabha, Arun Jaitley, highlighted that those who occupy high offices must live through the scrutiny of highest standards of probity.

 Excerpts from his speech:

 

THIS is a sad but historic moment in the Indian democracy. We have assembled to decide the fate of a man who decided the fate of others. This political house is here to perform a judicial function. We have heard a detailed presentation in the defence of the Judge sought to be impeached.

 

The power of removal/impeachment of a Judge of the Supreme Court or the High Court is a power which is to be used in the rarest of the rare cases. We invoke this jurisdiction to remove a man and save the dignity of the office, which is paramount.

 

Judges no longer live in ivory towers. Today, they live in glasshouses where the bar, litigants, public and the media watch them from close proximity. But then we have all to exercise utmost restraint. Judges cannot defend themselves against unfounded allegations. They must neither be summarily tried nor be thrown to the wolves. A Judge, under inquiry, must be candid. He cannot plead only technical defences. He cannot be too clever by half. He cannot invoke a right to silence like an ordinary accused, and shy away from speaking the truth.

 

In this case, when the Judge under inquiry says that his offence must be proved ‘to the hilt’ or ‘proved beyond reasonable doubt’ , he relies on technicalities rather than substance. A Judge is like Caesar’s wife. He must be beyond suspicion. Those who occupy high offices must live through the scrutiny of highest standards of probity. A Judge must be unsuspectable.

 

Proven misconduct?

 

Justice Sen is guilty of a continued ‘proven misbehavior’ from his days as a lawyer when he was appointed as a Receiver; and this continued well in to his tenure as a Judge of the Calcutta High Court. He never rendered the accounts as directed by the courts both as a lawyer and as Judge. He created encumbrances, by withdrawing monies, which were in his custody as a Receiver of the court. He transferred these monies unauthorizedly to persons not authorized to receive them. He withdrew the monies himself. He transferred the money to another account, which he maintained as a special officer in Calcutta Fans case. Even after his elevation as Judge in 2003, he continued the misappropriation of monies. His case squarely falling under Section 403 of the IPC of temporary misappropriation of monies is a criminal offence. In any case, he continued to retain these monies till 2006. He only returned the monies under the coercive order of the court and not otherwise.

 

During his tenure as Judge, he put a false defence before the single Judge, the Division Bench, the in-house inquiry committee and the impeachment inquiry that he had invested these monies in a company which went into liquidation. The liquidated company had nothing to do with these monies. The Division Bench judgment is a judgment with consent of all parties. It does not lay down the law. It is a judgment in personam, which is binding only on the parties, and not a judgment in rem, which binds the rest of the world. It does not, in any way, restrain the jurisdiction of this House under Article 217 from examining a case of ‘proven misconduct’.

 

Justice Soumitra Sen’s conduct as a litigant was unfortunate. He led no evidence. He hardly cross-examined witnesses. He claimed the right of silence. He then misrepresented and put up a false defence. He has been held guilty, both by the in-house committee appointed by the Chief Justice of India, and also by the committee appointed by the Chairman, Rajya Sabha. He is conclusively guilty of an offence. A case of ‘proven misconduct’ is made out against him. A Judge has to lead by example. A Judge cannot rely on technicalities and try to escape the rigours of law. Litigants cannot be Judged by a Judge, who himself is stigmatized. The defence of Justice Sen has thus to be rejected.

 

Who must appoint the Judges?

 

The Constitution of India empowers the government, in consultation with the Chief Justice of India to appoint Judges. Since the government has the last word, the independence of judiciary was being seriously compromised. The theory of social philosophy of Judges was propounded in the early 1970s in order to provide for a ‘Committed Judiciary‘ in India. The failure of a section of the judiciary during the Emergency and thereafter compelled the revisiting of the debate as to who should have the last word in the appointment of the Judges. The Supreme Court in 1982, by a narrow majority of 4 against 3, maintained the status quo. This enabled further politicization in matters of judicial appointments. In 1993, the balance of power shifted. The advice of the Chief Justice of India became binding upon the government. In 1998, the authority of the Chief Justice of India was diluted to provide for a collegium to appoint Judges.

 

The quality of judicial appointments, the best available not willing to become Judges, has not improved. Both the earlier systems have not succeeded. Thus the system of Judges alone appointing Judges must now change. India needs a National Judicial Commission to appoint Judges. It must be a combination of members of the judiciary, the executive and citizens’ representatives in public interest who must collectively appoint Judges.

 

The more important question is what should be the criteria on which Judges should be appointed. Today, Judges perform the Executive function of appointment in an unguided manner. The discretion of the National Judicial Commission, if it is so appointed, or the collegium as at present must now be restricted and regulated by the provisions of the Article 14 of the Constitution of India. There must be objective criteria introduced with regard to the qualification of persons under consideration, their academic credentials, their experience at the bar, their quality of judgments if they belong to the judicial institutions, details of cases argued, details of judgments reported with regard to the cases the lawyer has argued, the number of juniors trained, academic papers authored, amount of income tax paid, and the reputation and integrity etc. Unless these objective criteria enable a candidate to cross the threshold, he cannot enter the zone of consideration.

 

At present we have an in-house mechanism, which judges the Judges. It is an extra constitutional mechanism which has not succeeded. The process of impeachment is a near impossibility. The National Judicial Commission thus, in matters of judicial discipline, should be the Judicial Lok Pal.

 

Threats to judicial independence

 

The appointment of political activists as Judges at times has compromised the judicial independence. The lack of integrity can be on account of several reasons, which influence the administration of justice. These include judgments delivered because of collateral reasons and prejudices on account of religion, caste or personal reasons.

 

There is an increased trend of the Executive distributing jobs to Judges post retirement. This has seriously compromised the independence of judiciary. In recent times , the cases of Judges delivering judgments in politically sensitive cases on the eve of retirement and getting jobs the very next day from the Government is on the rise. I believe that no Judge should be entitled to a job after retirement. If the age of retirement is sought to be increased in the case of High Courts, as per the existing Bill pending, the same must be accompanied by a constitutional amendment, which prohibits jobs after retirement. The Judge strength of High Courts can be increased and all judicial tribunals must be manned by serving Judges.

 

Separation of powers

 

The separation of powers is one the most valuable principles of the Indian democracy. Separation of powers is infringed upon when the Legislature or the Executive encroach upon the Judiciary’s space or Vice Versa. It is only judicial statesmanship which prevents a confrontation between the institutions. Of late, with the weakening of the political Executive and serious division in the polity, the tendency of the judicial institution to encroach upon the Legislative or Executive space has increased. It has been argued that if the Executive does not perform its job, the Judges have to step in. This is a dangerous argument. By the same logic, if the judiciary does not perform its job, can somebody else step in? The answer is NO in both the situations. Recent comments and pronouncements with regard to whether India should have liberalized economy or regulated economy do not fall within the judicial space. How terror is to be fought is in the Executive domain. What should be the land acquisition policy, is a concern which belongs to the Parliament and the Executive. Whether a Pakistani prisoner in India should be released or exchanged for Indian prisoners in Pakistan, is to be determined by the Government and not the Supreme Court. Whether FDI is needed in the economy or not is an area that belongs to be Executive or Parliament. Unfortunately, recent aberrations in the separation of powers, have all been on account of judicial activism. Activism and restraint are two sides of the same coin. Each institution must respect the Lakshman Rekha.

 

A breach of trust

 

Finally Sir, we have before us a case of ‘proven misbehaviour’ by Justice Soumitra Sen. It is not that his misbehaviour is restricted to his tenure as a lawyer. There is a thread of continuity in his ‘proven misbehaviour’. He became a Receiver of a court property. He opened a bank account in his own name. He was a Trustee of somebody else’s fund. He misappropriated the funds. He put them for an alternative use. This he did as a lawyer.

 

In 2003, when he became a Judge, he continued the misappropriation. He did not ask the court to discharge him. When the court issued him notice, he did not respond. When the court passed strong strictures against him, he under coercive direction of the court returned the money in 2006 along with interest. He mis-representated to the court that he had invested the money in a private company and that the money got lost when the company became insolvent. No part of this money was ever invested in a private company. When the Chief Justice of India called him for an explanation, he moved the Division Bench through his mother and got an order of the single Judge set aside on the basis of concessions made by the advocates. The order shows the members of the bar not in good light. Before the in-house committee, appointed by the CJI, he persisted with his false defence. The committee found him guilty. Before the Parliamentary Committee, he did not volunteer the entire evidence. He resorted to technicalities and silence. He resorted to false defence.

 

His acts, both as a lawyer and a Judge, had all the ingredients of culpability of breach of trust. He misappropriated the money and he put up a false defence. He was not truthful or candid. This is a case of ‘proven misbehaviour’.

 

I, therefore, support the address to be made to the President, that Justice Soumitra Sen be removed from office as a Judge of the Calcutta High Court. He is undeserving to occupy that office. We recommend the removal of an undeserving man to save the dignity of the office.

 

 


 http://www.tribuneindia.com/2011/20110819/edit.htm#6

A Communal Bill Injurious to unity, integrity and fraternity of the people

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IT is astonishing that a Bill like Prevention of Communal and Targeted Violence (Access To Justice and Reparations) Bill, 2011 which is flagrantly violative of the right to equality and patently discriminatory being violative of Article 15(1) could have been even thought of by the National Advisory Council under the chairmanship of Sonia Gandhi who has taken oath to uphold the Constitution and the Government headed by Dr Manmohan Singh who is also under similar oath and introducing it in the Parliament. To put it in a nut shell the Bill is intended to give immunity to religious minorities against serious criminal offences committed by violent groups among them against the life and property of majority and penalise the majority for the crimes committed by such militant groups among minorities and in adition to reward the culprits by providing compensation at the cost of exchequer.

Therefore if it were to be passed into Law; though it is difficult even to imagine that it will be passed by the Parliament; it would be void ab initio. Therefore this is one such Bill which should not be permitted even to be introduced in the Parliament.

The Bill is more disastrous than the Partition of India on communal lines as it is intended to divide us the people of India on communal lines; for by Partition India lost a portion of its territory but by this ill-conceived Bill the citizens who are all children of Bharatamata, stand divided on communal lines providing instigation to the militant and violent sections of minorities to indulge inviolence against majority with impunity.

A reading of the definition of the word group and of communal targeted violence in the Bill which disclose the entire mischief of the Bill read –

“Group means a religious or linguistic minority in any state in the union of India or Scheduled Castes and Scheduled Tribes within the meaning of clauses (24) and (25) of Article 366 of the Constitution of India.”

Definition of the Communal Targeted Violence:

The communal target violence means and includes any act or series of acts whether spontaneous or planned, resulting in injury or harm to the person or property, knowingly directed against any person by virtue of his or her membership of any group, which destroys the secular fabric of the nation.

The above definition read with the various provisons of the Bill indicate that only minority group can be the victim of communal and targeted violence and only the majority indulge in or instigate communal violence.It is preposterous top resume, that the majority instigates violence against minority and not vice versa in view of the two definitions. It is therefore needless to analyse the various provisions of the Act to show how unreasonable and arbitrary they are , and how they are designed to destroy the unity and integrity of the nation and fraternity among the people which are the noble principles enshrined in the Preamble to the Constitution of India.Further the provisions of the Bill are designed to destroy the federal structure and render the states subordinate to the Centre.

I conclude this article by stating that the Bill is unconstitutional relying on the Constitution bench judgment of the Supreme Court of India in which an exactly similar classification was struck down as voilative of Article 15 of the Constitution(state of Rajasthan vs. Thakur Pratap Singh; AIR 1960 Supreme Court 1208)

Shortly after the commencement of the Constitution Congress Government of Rajasthan issued a notification under Sec. 15(5) of the Police Act after having levied the cost of additional police force stationed in certain villages, on the local citizens granting exemption to Muslims and harijans from such levy. The constitution bench of the Supreme Court of India stuck down the said notification. Relevant portion of the judgment reads:-

The State of Rajasthan in defence of the exemption stated thus ….

“The Harijan and Muslim inhabitants of these villages have been exempted from liability to bear any portion of the cost of the additional force not because of their religion race or caste but because they were found to be peace loving and law- abiding citizens , in the 24 villages where additional force has been posted” ..

The Supreme Court rejected the defence thus:-

“It would be seen that it is not the case of the state even at the stage of the petition before the High Court that there were no persons belonging to the other communities who were peace -loving and law- abiding, though it might very well be, that according to the state, a great majority of these other communities were inclined the other way, If so , it follows that the notification has discriminated against the law- abiding members of the other communities and in favour of the Muslim and Harijan communities, – (assuming that everyone of them was ‘ peace loving and law-abiding”) on the basis only of “caste” or “religion” . If there were other grounds they ought to have been stated in the notification. It is plain that the notification is directly contrary to the terms of Article 15 (1), and that Para 4 of the notification has incurred condemnation as violating a specific constitutional prohibition. In our opinion, the learned judges of the High court were clearly right in striking down this paragraph of the notification.

The present Bill proves that old habits hardly die

In the light of the law down by the Supreme court of India the present Bill in liable to be rejected at the stage of introduction itself.

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‘Right to life cannot be given or taken’ says G.Subramaniam

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Correspondent at DNA India

“In India right to life cannot be given or taken away in absence of any such legislation being passed by the parliament and the ‘constitutional court’ should not decide whether a person should live or not,” said Dr. Gopal Subramaniam, former Solicitor General of India.

The ace lawyer was talking about the Aruna Shanbaug case in which a two judge bench of the Supreme Court allowed for the ‘passive euthanasia’ which allows for withdrawal of life support to patients in permanently vegetative state (PVS).

The bench had however rejected outright active euthanasia where in life is ended through administration of lethal substances.
Chairman of the Bar Council of India, Dr. Subramaniam was speaking while delivering a lecture at Nirma University.

He was talking on the topic “Indian Constitution: Recent Developments and Challenges Ahead”.

He called the constitution a living document.
“We have inherited a very robust constitution and their makers had foresight. Indian constitution has never been changed whereas the constitution of Soviat Union was changed four times during the communist rule,” he said.

Talking about cases in which the constitution needs to be interpreted, he said that the judges job is to interpret the constitution rather than reinvent it.”It should be interpreted, up-to date and contemporary,” he said.

On judicial activism that has been in news these day he said the court should represent its position when the executive and legislature are not functioning effectively.

“Public credibility is the foundation of the court and should never be betrayed,” he said.

In light of the recent developments, he touched on a number of landmark cases regarding freedom of speech and expression, institutional integrity, right to life etc.

He also gave an overview of the various constitutions across the world.

He also referred to a number of foreign cases to enlighten budding lawyers about the various contemporary developments in foreign constitutions.

During the interaction session, he advised the budding lawyers to put faith in truth rather than hearsay talks or gossip. Soli Sorabjee, former attorney general, was also present at the function.

He advised students to come to the profession with an aim to serve the society rather than earn money.He said those who wanted to earn money should be in real estate or import-export business.

Gopal Subramanium has offered to resign as Solicitor General.  he was not taken into confidence for appointment of Mr. Nariman. He found it unfair and offered to resign. The other side of the story is that Mr. Nariman was appointed by Mr. Kapil Sibal in his personal capacity.

http://www.dnaindia.com/india/report_right-to-life-cannot-be-given-or-taken-says-dr-gopal-subramaniam_1569029