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Supreme Court at the crossroads

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On April 24, 1973, two events occurred that have united India ever since. Sachin Tendulkar was born in Bombay, and in Delhi the Supreme Court delivered its verdict in Kesavananda Bharati, by a narrow 7-6 majority. Tendulkar would take time to make an impact, but Kesavananda had an immediate fallout.

The next day, on April 25, 1973, three of the seven judges who delivered the majority judgment which went against the government’s position were superseded for the position of Chief Justice of India. Justices J.M. Shelat, K.S. Hegde and A.N. Grover were superseded by Justice A.N. Ray, who had ruled in the government’s favour. Justice Ray took over as Chief Justice on April 26, 1973.

The supersession of 1973 set the stage for the Emergency of June 1975. During the Emergency, the tamed Supreme Court went on to rule that the very right to life, under Article 21 of the Constitution, stood suspended. The court also sought to review its own judgment in Kesavananda Bharati. The Emergency era saw a cowering craven court fail to stand up for citizens against the state when it mattered. It failed to act as a brake on despotism.

 

This week, 45 years to the day, on April 25, 2018, the government has chosen to appoint Indu Malhotra to the Supreme Court and has for the moment chosen not to appoint Justice K.M. Joseph. His name had also been recommended along with that of Ms. Malhotra, by the collegium of five senior judges of the Supreme Court. The resolution recorded: “The collegium considers that at present Justice K.M. Joseph, who hails from the Kerala High Court and is currently functioning as Chief Justice of the Uttarakhand High Court, is more deserving and suitable in all respects than other Chief Justices and senior puisne Judges of High Courts for being appointed as Judges of the Supreme Court of India. While recommending the name of Justice K.M. Joseph, the collegium has taken into consideration combined seniority on all-India basis of Chief Justices and senior puisne Judges of High Courts, apart from their merit and integrity.”

Justice Joseph’s independence and his indifference to political consequences were amply demonstrated when, as Chief Justice of Uttarakhand, he struck down a proclamation of President’s rule in the State in 2016. He comes from an illustrious legal family. His father, Justice K.K. Mathew, was a judge of the Supreme Court. He is the senior-most judge from Kerala, which by tradition sends a judge or two to the Supreme Court. The impending retirement of Justice Kurian Joseph later in November this year would have made Justice K.M. Joseph a suitable successor. Despite meeting all the requirements for appointment to the Supreme Court, despite the court through its collegium having recommended his name, he seems to have antagonised the powerful who want to retaliate. In a profession where peer review is a continuous process, there have been no doubts whatsoever expressed about Justice Joseph’s integrity or competence.

Nevertheless the government of the day has now asked for a reconsideration of the recommendation made in this case by the collegium. The government says, “At this stage, elevation of one more judge from Kerala High Court as a Judge of the Supreme Court of India does not appear to be justified as it does not address the legitimate claims of the Chief Justices and Puisne Judges of many other High Courts.” Shorn of legalese, the letter primarily makes two points. It says that Justice Joseph is not the senior-most judge in the all-India seniority list. Second, it says that the Kerala High Court already has one Supreme Court Judge and three Chief Justices of High Courts representing it. Both arguments are fallacious.

Countrywide seniority is taken into account but is not the sole determinative factor. Second, Kerala might currently have four senior judges at an all-India level, but will soon be down to two, with two retirements scheduled this year.

In fact the Law Minister’s objections are best answered in this case by the Supreme Court judgment in the 1998 presidential reference which has held that “Where, therefore, there is outstanding merit the possessor thereof deserves to be appointed regardless of the fact that he may not stand high in the all India seniority list or in his own High Court. All that then needs to be recorded when recommending him for appointment is that he has outstanding merit. When the contenders for appointment to the Supreme Court do not possess such outstanding merit but have, nevertheless, the required merit in more or less equal degree, there may be reason to recommend one among them because, for example, the particular region of the country in which his parent High Court is situated is not represented on the Supreme Court bench. All that then needs to be recorded when making the recommendation for appointment is this factor.”

The earlier recommendation of the collegium on January 11, 2018, is clear about Justice Joseph’s merit and suitability. Nothing has surfaced in the past three months to retract from that position. The government, while setting out its reasons asking for a reconsideration of the collegium’s recommendation, has also not made any case on integrity or competence. All that the government points to is a perception of regional imbalance and an overlooking of seniority. It must be pointed out that in the current Supreme Court, at least five judges (including two appointments from the bar) are from the Bombay High Court, at least three are from the Delhi High Court. To say that Kerala can’t have two judges on the court is to stretch a point.

Both objections seem to have been taken with a view to somehow stop or delay Justice Joseph’s elevation to the Supreme Court. Even if there is some substance in the objections, they can be remedied at a later date. The issue is whether the judiciary can permit any appearance of retaliation upon its brethren by an apparently vengeful executive. The correct course of action now available to the Supreme Court is to reiterate its recommendation after reconsideration of the proposal in the light of the government’s latest letter.

In the Third Judges case, it has been held that “if after due consideration of the reasons disclosed to the Chief Justice of India, that recommendation is reiterated by the Chief Justice of India with the unanimous agreement of the Judges of the Supreme Court consulted in the matter, with reasons for not withdrawing the recommendation, then that appointment as a matter of healthy convention ought to be made”. The crucial words in this paragraph are “unanimous agreement”. Thus if even one of the five has a rethink, the government will have succeeded in its attempt to block Justice Joseph.

A house divided against itself cannot stand. In the Mahabharata, as long as the five Pandavas stood together, they ruled over Indraprastha. Even if Yudhishthira, the eldest Pandava, erred in dicing with fate, it was only by following the path of dispassionate duty that all the Pandavas ended up with the victory at Kurukshetra. The judges may well remember that the Supreme Court’s motto itself is Yatho Dharmastato Jayah. Victory lies on the side of Dharma.


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Opinion

Lok Sabha 2019: An election that is not about one

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By Gopalkrishna Gandhi

In the extremes of our tropical climate, every summer seems the worst ever. But the Tamil ‘kathiri’ — literally ‘scissors’, and metaphorically the merciless sun of May-June — is truly upon us in the peninsula this year. And it is only March.

Likewise, in the multi-polarities of our democracy every election seems to be about the most crucial we have ever had. And though the candidates for the April-May elections are yet to be formally announced, the election’s ‘kathiri’ is already in motion — sharp, cutting. And it is only March.

 

The elections this time are unusual, even unprecedentedly so, for they are not about how India chooses but about what India is about. For those many who want the present government back, the coming elections are a national referendum for an India that is rearing to be a Super Power under a leader who wants India to be exactly that with himself at the helm. One might say, and why not? True, why ever not, except that when that happens, everyone else becomes inferior, minimal, subordinate to the Supremo. Including the Constitution and the laws. And that is not what India has become a democratic republic for.

Those many — and it must be acknowledged they are many — regard the coming elections as presidential with but one candidate, Narendra Modi. And an occasion to re-affirm belief in his helming a strong Centre for nothing less than 15 more years, a golden era, when we will have Sanskrit proclaimed our Rashtra Bhasha, Veer Savarkar a Rashtra Guru, Saffron a Rashtra Ranga, we will have the Constitution amended to provide for national emergencies under new circumstances, an executive presidentship, with the Rajya Sabha abolished, appointments to the higher judiciary tempered by considerations of ‘loyalty to national security’, compulsory military service for one year with the liberal option of ‘drill Yoga’, the media self-disciplined into self-censorship, the bureaucratic and diplomatic echelons made colourless and comfortable rather than fearless and uncomfortable, the citizenry one merry choir well-practised in patriotic tunes and collective chants.

None of this is or will be in any Bharatiya Janata Party (BJP) or National Democratic Alliance (NDA) manifesto. And Mr. Modi will never ever, I think, subscribe to any of these ‘goals’. In fact, he may be expected to deny that these reflect his views by a long shot. But these cameos do represent, broadly, the thinking of a kind of Modi-supporter, Modi-devotee who is to be encountered among many Indians, mostly from the educated urban and suburban middle-classes.

For the many others who want the present government dislodged, the coming elections are about the exact opposite. They are a non-presidential election where the many are against One Supremacy, and are in favour of an order in which every region, language and faith tradition is the equal of every other, where political opposition is valued for its own sake, dissent cherished as long as it remains non-violent, where the judiciary is respected for its stubborn independence, bureaucratic and diplomatic cadres for their professional integrity, technocrats for their rigorous professionalism, where the nation’s natural resources, particularly those that lie within and beneath forests, mines and on the seafloor, are not looted, where prisoners do not live in sub-human conditions and where, above all else, the Constitution is seen as the dynamic, living guardian of the citizens’ human rights pertaining to life, liberty, privacy and judicial remedy.

That being the reality or hard truth about the elections ahead, they are indeed the most important ever held in free India.

And that being the case, when one hears Aradhana Mishra, a Congress MLA in Uttar Pradesh say, “Priyanka-ji has reiterated that the INC (Indian National Congress) will contest all 80 seats in Uttar Pradesh,” or the Congress’s doughty veteran and chief of the Delhi Congress, Sheila Dikshit say about the seven Lok Sabha seats in Delhi, “It has been unanimously decided that the Congress will not go for an alliance with AAP (Aam Aadmi Party)”, the election’s results seem foregone.

The Congress, five years ago, contested not “all 80” seats but 67 seats in U.P. in those elections, winning only two, United Progressive Alliance chairperson Sonia Gandhi’s seat in Rae Bareli and Rahul Gandhi’s in Amethi. And in Delhi, it was number three, after the AAP at number two, in terms of vote share.

“All 80 seats” in U.P. and “no alliance with AAP” in Delhi are great news for the BJP, whose vote-share in U.P. for the 2014 Lok Sabha elections was lower than that of the Samajwadi Party (SP), the Bahujan Samaj Party (BSP) and the Indian National Congress (INC) combined (the combined vote share of the other three being 49.30%, a clear 7 percentage points above the BJP’s 42.30%). In Delhi, too, the BJP was ahead of the AAP and INC when those two stood divided but was clearly behind them, in all but one (New Delhi) of the seven seats, if the vote-share percentages of those two were to be seen together.

The jury is out on whether the nation’s outrage over the killing of 40 Indian brave-hearts in Pulwama and its pride in the gutsy riposte by the Indian Air Force has changed the electoral math. Perhaps it has and the nation will leave livelihood, drought, dismay over the Goods and Services Tax, Rafale to rest and vote solidly for another term for Narendra Modi. Perhaps it has not, and given that Winston Churchill lost the elections after winning the war in 1945 and, nearer home, the NDA government lost the elections after Kargil, it will vote for change. But the Opposition has to accept the fact that an unmeasured percentage of vote-share has slipped from its anticipated scores into the BJP’s.

The Congress showed statesmanship in Bengaluru last year. If reports are to be believed, not just Rahul Gandhi but Priyanka Gandhi had something to do with the Congress’s decision to propose and then actively put in place a coalition government led by H.D. Kumaraswamy of the Janata Dal (Secular). That was highly realistic, prudent, sagacious. As is the Congress-DMK-Left alliance in Tamil Nadu.

That spirit needs to be shown now in U.P., Delhi and elsewhere if those who believe in India being meant to be democratic and a republic are not to be betrayed.

Is it too late? Late, yes, but not too late yet. Pride bolts the door to accommodation, prudence opens it.

This is the time to enlarge democracy’s, not one party’s base. Getting even with the AAP in Delhi, the Samajwadi Party and the Bahujan Samaj Party in U.P. and the Biju Janata Dal in Odisha can be a temptation for the Congress in ordinary times, not for this election summer when the ‘kathiri’ is out. Every party which believes in democracy is a natural ally of every other party believing in the same. Smaller confrontations must step aside in the face of the biggest contradiction that there can be, namely, of two contesting Indias — that of Gandhi-Nehru-Ghaffar Khan-Bhagat Singh-Ambedkar on the one hand and of a Hindu Rashtra on the other.

And this should be done in grim awareness of the fact that the 21st century autocrat is now to be seen not just in India but in countries as different and distant from one another as China, Russia, Saudi Arabia, Turkey, Venezuela, Egypt, the Philippines, Hungary, using traditional ‘resources’ as well as new, softer and deadlier technologies, to spot and immobilise dissent, create a sense of a perpetual ‘other’, an eternal ‘enemy’, all in the name of a hyper nationalism.

But if there is gloom, there is also hope, as in the instance of New Zealand Prime Minister Jacinda Ardern, who, from the white heat of trauma spoke of the Christchurch victims of terror as “us” and of New Zealand being “ home” to them.

Jayaprakash Narayan brought the democratic coalition together in 1977. There is no Jayaprakash today. But his spirit beckons the conflicted soul of India’s democracy.

(The Hindu)

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Opinion

Partition, freedom and democracy

The Kashmir Monitor

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By Krishna Kumar

Had Krishna Sobti, the eminent Hindi novelist, not died this January, she would have renovated our appreciation of the truth about freedom and Partition occurring together. We habitually forget this truth each time we learn it. An interview she gave to Partition scholar Alok Bhalla is one among many repositories of the insight she brought to this subject. Through her fiction too, Sobti tested the strength of the social fabric that Partition shook and tried to tear apart. Why it didn’t tear completely is a question she helps us to answer.

Six weeks after her death, a violent conflict broke out between India and Pakistan. The immediate, ostensible causes of the outbreak are terrorism and Kashmir. Real sources lie deeper. Reading Sobti’s works reminds you that the deeper roots of the India-Pakistan conflict can be found in a shared attitude of derision towards the past. Public mood shifts between indifference and disdain for the past. There is little genuine interest in the past or curiosity to figure it out. Politicians feel free and tempted to use the past to manipulate the collective mind.

 

As the single most important event of our modern history, Partition illustrates the general attitude I am talking about. Across the three nations produced by Partition, there is little consensus over what it means to live with Partition. But there is a shared feeling that Partition is at the heart of many problems and behavioural reflexes. Each country looks at Partition from the perspective that the state apparatus has assiduously developed over time. The term commonly used these days is ‘narrative’. It comes in handy. It is a post-modern invention signalling the decline of interest in objectivity. The relatively better educated politicians often use it tactfully to debunk serious commentary, calling it just another narrative. So, why the different nations that constitute the South Asian region bring sharply divergent perspectives to matters of shared interest is explained in terms of diversity of narratives. Are these narratives incompatible? No one seems curious to find out. Nor is anyone actively conscious that the acceptance of incompatibility means granting permanence to intra-regional conflicts. One clear reason why no one is worried is because a feeling of permanent conflict seems to offer unlimited political capital.

When SAARC was established in 1985, it created the hope that mutual understanding would be pursued as a regional political goal. For all seven members, but especially India, Pakistan and Bangladesh, mutual understanding would have meant recognising the importance of acceptable portraits of the past. Such portraits exist in literature, but historical awareness requires more than a literary portrait. It means providing reliable resources to validate a view about what happened so that we feel more comfortable with where we are in the present. This awareness is crucial to avoid a feeling among the young that they live in a dark, noisy tunnel with no known exits. An ominous uncertainty hangs over the subcontinent, best expressed by the availability of nuclear weapons to end potential conflicts.

Sobti had hoped that people could now recognise the complications arising out of history. In her interview with Professor Bhalla, she expressed the view that the emotional content of Partition had run out. This is not true. Though seven decades have passed, there is no sign that Partition is devoid of emotional content in India or in Pakistan. In a study of history textbooks used in the two countries, I found that in Pakistan, Partition is presented as unfinished business, while in India it is still viewed as a wound inflicted by Muslims and the British. In both nations, Partition continues to serve as an inflammable memory account. The toll it took on the two nations has not sufficed to cool the coals buried under the ashes of time. Apart from the destruction and violence suffered by common men, women and children on both sides of the border, the post-Partition suspension of reason cost India the life of its greatest leader. That injury has not healed, and the ideological divide it signified continues to grow. Sobti had assumed that the Constitution would unite Indian society around its core values. That did happen to an extent, but words and statements alone don’t safeguard values. Freedom and a sense of fraternity are among the values sculpted into the structure of the Constitution. Truth is not mentioned as such, but one assumes that it has an assured place in the edifice of law.

In this context, it may be useful to recall Mahatma Gandhi’s dual commitments: truth and non-violence. The pairing of truth with non-violence suggests that truth and war are not compatible. This is why the threat of war at election time is not good news for the practice of constitutional democracy. For now, the threat of war seems to have passed, but it could easily be made to linger as a memory relevant for voting day. In this sense, the brief outbreak of armed attacks is an ominous reminder of the fragility of the equilibrium that permits us to practice democracy. In Pakistan, democracy is even more fragile. There, it barely survives under the direct shadow of modern weaponry.

The India-Pakistan hostility is richly intersected by bad memories. It has perennial potential for shaping politics. Moreover, an activated conflict invites everyone to play politics. This kind of politics is necessarily manipulative. It helps to bypass more earthy questions which ought to be central to any election. These are questions like why economic growth offers little relief from unemployment, why the village languishes when the city prospers. One can add many more issues to this list. To call them peace-time issues or to designate them as being secondary in comparison to security will be to surrender to history, that too a history soaked in emotions. It is true that politics is a game played in the shadow of history. However, if it is dominated by history, then democracy can hardly serve the cause of progress, howsoever defined. It will always remain stuck in history.

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A NEW IDEOLOGY WITH A NEW SLOGAN

The Kashmir Monitor

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By Tawfeeq Irshad Mir

“I know the value of word; when there was nothing, it was word. To play with words is to strike the strings of violin, to exude the honey of melody.”

The ideology and narrative of Shah Faesal till the controversial tweet” labelling India as” rapistan” in 2018,

 

“In 2016, Shah Faesal Strongly suggested that Kashmir should ‘stay with India’, Dr Shah Faesal further said that it (India) is the “only country” in the world with which a culturally diverse and “politically disparate entity” like Jammu and Kashmir can find “anchor”.

In his article titled “Kashmiris trapped in deadly politics of grief, must abandon macabre heroism” published on The Indian Express, Dr Faesal has built his argument around the post-1990s phase of of the Kashmir-conflict to censure the five-month-long unrest the valley witnessed in 2016.

“Every new agitation in Kashmir has had this familiar tetrad of eruption, hope, bereavement, despair. By the time the first stone was pelted in the July uprising of 2016, the outcome was already known to everyone. It is this predictability which has begun to worry Kashmiris now,” reads his article.

Referring to 2016 unrest, Dr Faesal said that “revolution cannot be an annual summer carnival” while claiming that Kashmir was the “most unlikely new nation to enter the world map” due to the “flaw(ed) fundamental design” of the Kashmir project.

He goes on saying that the “indiscipline” valley witnessed during the recent unrest has the “potential to criminalise society forever”.

“It was not the state as much as people to people violence, the humiliation of bystanders, vandalism against schools, damage to public property by “misguided teenagers” that exhausted Kashmiris, reducing a mass movement to a movement of mass from one corner of the street to the other corner,” he said.

Dr Faesal also claimed that it was “hard to frame the Kashmir question properly” and thus the region cannot be compared with Palestine, East Timor of Kosovo.

“Is it separation from India, annexation with Pakistan, the search for an Islamic caliphate or a secular democracy? Has it factored in sub-regional and diverse ethnic aspirations? If it is self-determination, then who are these people queued up outside polling stations? If the slogan is “azadi”, why is the Pakistani flag raised? Is it class-neutral or only a proletariat dream? Is it territory or ideology, economics or politics? Today, in Kashmir, it is hard to ask these questions because there are no answers. And because there are no answers, every such question is seen as a provocation or obfuscation of the truth about Kashmir,” the article reads.

The then MD JKPDC Shah Faesal, in the conclusion, suggested Kashmiris to ‘stay with India’ since the country is an “emerging superpower”. Looking at the crisis in the Muslim world, it will serve us well if we help ourselves out of the time warp we are stuck in, abandon false hope and macabre heroism and work towards a dignified exit from the conflict. One possibility is to accept that in spite of all its infirmities, India is the only country in the world with which a culturally diverse and politically disparate entity like Jammu and Kashmir can find anchor,” he concluded.

On Sunday Sha Faesal launched his party in Srinagar, with a new slogan “ab hawa badle gi”, in a slightly different avatar wearing white shilwar and black coat, along with former JNU leader, Shehla Rashid unfurled his vision and ideology.

His vision and sagacity are unprecedented.  Just now I have gone through the manifesto which reflects your depth. Let not any reaction deviate from the ultimate goal. Possibilities are numerous, once try to act, not react. Some scratches in reactions keep on running.one thing, he should bear in mind the couplet of Iqbal “Khudi se iss tilishm-e- rang-o-boo ko tod sakte hai,. Yahi tawheed thee jisko nah tu samjha, nah main samjha.

I want to know how his party would help in reviving old silk route or the kind of strategic center for Central Asia which his vision document talks about. Does he think an inch moves without the centers authority, would they allow such initiatives?

I just want to ask one question to Shah Faesal and his supporters…. tell me how it is possible to solve Kashmir issue according to the aspirations of people… when you accept the constitution of India,, which says J&K is an integral part of Kashmir. It is confusing me.

It is Dr Shah Faesal himself to clear all the doubts once he will go through the political discourse. It will be his policies and decisions which will tells us the real reason behind his political mileage. But the course of action which he has chosen is full of hurdles and he has a long way to cross before finding a space for himself and his followers.

(A student of Nursing at GMC, writer can be reached at: tawfeeqirshad@gmail.com)

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