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1973, three of the seven judges who delivered the majority judgment which went against the government’s position were superseded for the position of Chief Justice of India. Justices J.M. Shelat, K.S. Hegde and A.N. Grover were superseded by Justice A.N. Ray, who had ruled in the government’s favour.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

The contours of contest ahead

The Kashmir Monitor

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By Mahesh Rangarajan

This summer will see a carnival of democracy in the general election. Much has changed in just five years. The elan of Narendra Modi’s party is more muted this time. Last weekend, key opponents, the Samajwadi Party and the BahujanSamaj Party, joined forces in Uttar Pradesh, making the contest real and not a walkover. The Index of Opposition Unity cannot predict outcomes but no one can afford to ignore it.

The Congress’s victories in the Assembly elections in three north Indian States have given it a shot in the arm. Equally important, the older party is firming up alliances in the southern States. The 131 Lok Sabha seats in five States (Andhra Pradesh, Karnataka, Kerala, Tamil Nadu and Telangana) and two Union Territories (Lakshadweep and Puducherry) have been critical to it in times of trouble.

 

The Telangana poll outcome was sobering for both the large national parties. Regional nationalism is not new to Indian politics: Jammu and Kashmir and Tamil Nadu were precursors. Regional formations have long governed West Bengal, Odisha and now Telangana. They may well hold the keys to power in New Delhi.

In 2014, it was the Bharatiya Janata Party (BJP) that led in securing allies. Between then and now, BJP president Amit Shah has helped expand its footprint. Not only does it have more MLAs than the Congress, but its cadre fights every election like there is no tomorrow.

The challenge lies elsewhere. The Congress may have lost in 2014 and come down to a historic low of less than one in five votes cast. Yet, only a decade age, in May 2009, the roles had been in reverse. It was Congress that had then polled 29% and the BJP just 19% of the popular vote.

This time is different. It is 1971 that will be the textbook case for the ruling party. When the Grand Alliance said it would oust Indira Gandhi, she replied she wished to banish poverty. She won hands down.

Mrs. Gandhi did not have to contend with a powerful Dalit-led formation in the Ganga valley which commands 20% of the vote. Many of today’s regional parties were yet to be formed. She captured the public imagination. It was a gamble and she won hands down. Mr. Modi too will fight to the last voter. He will try to be the issue. He has sounded the tocsin against dynasty, caste and corruption. Hence the record in getting visible benefits to the individual and the family. The gas cylinder, the light bulb, that rural road: each will, he hopes, add to his appeal.

History has another instance too. The 2004 general election was held early. Atal Bihari Vajpayee was confident that ‘India was Shining’. The dream came apart on counting day. Rather than a unified Opposition (for there was none in the all-important State of Uttar Pradesh), ground-level discontent denied the ruling alliance another chance.

And yet, there is the cloud of the horizon. Even in 2004, the Congress was only a whisker ahead of the BJP — just seven seats more in the Lok Sabha. The Congress had 145 seats to the BJP’s 138. The key was on the ground, where the mood had shifted. The economic upturn began in 2003, but voters did not see gains early enough for the ruling bloc to reap an electoral harvest.

In 2014, the challenger drew on the tiredness with a decade of a Congress-led government and promised a fresh start. Runaway inflation and the spectre of corruption undercut the appeal of the Congress. This time the issues have changed. It is the squeeze on farm incomes and rural debt that are the key poll planks. Similarly, the issue of jobs is more pressing than ever. Cultivators across all strata and young people seeking productive employment want answers.

Two States are key. Maharashtra, a State critical in the histories of both the Congress and the BJP, is not only seeing a coming together of Opposition forces; it is undergoing drought and rural distress. Ominously, key farmer-led allies have walked across. Uttar Pradesh, a bastion of the BJP, has rival Dalit- and Mandal-led parties coalesce for the first time in a quarter century. Both States have something in common. In both, sugarcane cultivation is a determinant of electoral fortunes.

Cane (not caste) and jobs (not community slogans) may hold the key. Ganna and Naukri, not reservations or the emotive Mandir issue. What matters more: bread or identity? Even when both count what takes precedence?

Government policy has had a key role in this denouement. By according priority to consumers in cities (who want low prices for cereals, oil seeds and pulses), the government did not have to pay heed to rural residents who need to earn more. The latter, as producers, are larger in number and percentage than in any other democracy.

India still lives and votes in its villages. Under Mr. Shah, the cadre, organisation and outreach have made the BJP a vastly larger party than any other. But economic policies can strain such organisational gains.

Democracy is about more than development. In a polity where people can throw their rulers out, it is centrally about politics. Since 1999, there has been a bi-nodal system, and the choice is not simply between Mr. Modi and Congress president Rahul Gandhi.
We have effectively a one-party government with a firm hand on the wheel (but with the danger of an over-centralisation of power).

Against this, is ranged a looser coalition in which regional forces and rural interests have more play. Needless to add, the latter will be rockier, more contentious and tough to manage in a coherent fashion.

The Modi government is driven by ideology and not pragmatism on a range of issues. This is the first ever BJP government with a view of culture, history and politics that seeks to remake history as much as the future. Is this the party’s agenda or the country’s? This is a question in the background: if the Ram temple issue comes to the fore, it will be a major choice for the voter.

The pluralism and Hindutva debate have another dimension more so than ever, namely the federal question. Across the Northeast (including Sikkim), far more important to the country than its 25 Lok Sabha seats indicate, the idea of citizenship is at variance with the new Citizenship Bill passed by the Lok Sabha. Across the country, State-level parties see an accretion of powers in the federal government unseen since the 1980s.

True, Mr. Modi has a wider mass appeal than any one since Mrs. Gandhi. But history is witness that such appeal can also have limits if voters decide that enough is enough. Has that point been reached? We simply do not know.

More central is the question of questions. Are you better off than you were five years ago, and if not, why not? If so, and even if not, do you think we are moving in the right direction?

In 2014, The Economist observed that if India had the per capita wealth of Gujarat, the country would rank with Spain. Has that dream come true or it is unravelling and fast? How voters answer that will show who they stand with.

(The writer is Professor of History and Environmental Studies at Ashoka University, Haryana. Source: The Hindu)

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Opinion

Headwinds rock Rahul, Modi

The Kashmir Monitor

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By Jawed Naqvi

Recent headlines have offered clues about the way the wind is blowing before the general elections in India. A make-or-break element in Prime Minister Narendra Modi’s re-election bid in May lies in Uttar Pradesh. It was here that he swept the 2014 polls on the back of anti-Muslim blood and gore set off in Muzaffarnagar, what some in the prime minister’s choral media have praised as ‘Modi Magic’. Spurring his win in the country’s most populous state was a palpably disharmonious opposition. That may have changed this year — or has it?

Let’s quickly scour the headlines. My first story refers to the Congress party’s bizarre plan to contest all 80 parliamentary seats in UP on its own. What then becomes of the promised coalition?

 

The second story seemed facetious at first but it describes a crippling fallout on the BJP of its ban on slaughter of cattle in UP. The alarmed party must now contain unwanted cattle in their post-productive state when they become a load on the farmers. Will the revered holy cow be artificially inseminated to produce more cows than bulls, as the animal husbandry minister says? How serious is the looming crisis in a political season?

A fourth story is The Hindu’s damning report by a former Indian supreme court judge, which gathered dust in the vaults of the apex court for over a year, on fake encounter deaths in Gujarat. Will it haunt the BJP together with an equally strong concern expressed by UN rights officials about allegations of widespread killings in Yogi Adityanath-ruled Uttar Pradesh?

And finally, the party’s national convention addressed by Modi where he offered himself as the only choice to lead India, which needs a ‘mazbootsarkar’, a strong government. The opposition alliance can only produce a ‘majboorsarkar’, says he, a government weakened by its own political compromises.

Two of the stories should suffice to indicate the headwinds ahead. The Congress party’s announcement of fighting all seats in UP, came not surprisingly a day after the backward caste Samajwadi Party (SP) and the Dalit BahujanSamaj Party (BSP), once bitter rivals,

declared a joint campaign in 76 constituencies, leaving four for Congress, presumably. In the last vote count, BSP (22.23 per cent) and the SP (28.07pc) totalled more than BJP (41.35pc) and Congress put together. Congress is an insignificant player in UP, and its irresponsible claim to contest all seats makes it a laughing stock given the high stakes in May.

What lies behind the absurdity? The fact is that Congress, perennially described a family enterprise of the Gandhis, is actually a coalition of powerful satraps, usually but not always shored up by Mumbai businessmen.

The business clubs have a chronic allergy to the Gandhis, though they are not averse to backing a Narasimha Rao or a Manmohan Singh in Congress. The allergens are old and damning. Nehru had jailed their leading businessman for corruption, Indira Gandhi had shut their banks, and Rajiv Gandhi ordered them to get off the backs of Congress workers. The tycoons came back hard at him with the Bofors smear though.

In the recent elections in Madhya Pradesh, a local Congress chieftain deemed close to a particular business family, opposed and subverted an alliance with Mayawati’s Dalit party. Congress won but not cleanly and it needs the BSP to sustain a majority. In Uttar Pradesh, the SP has strong ties with key business families, including the one that Rahul Gandhi has named in the Rafael warplanes scandal.

Given the state of play, the young Gandhi should ideally decide whether he wants to be a compromised representative of disparate, even contrary interests as prime minister, something his satraps would like him to be. Or should he be nudging the opposition parties, bereft of common ambition, with a Nehruvian vision to forge a truly durable secular polity?

The left had done this successfully with Indira Gandhi. The model can only strengthen Congress and its essentially left-leaning mass base. See it as a Tony Blair-Jeremy Corbyn moment within the Indian equivalent of the Labour Party. Else, the system in India, a tycoon-run deep state, would continue to harness Congress satraps and the BJP in a bind that undermines the constitution’s fair promise.

Signs of disarray in the opposition should comfort the BJP, but evidently the party for the first time is looking mortally afraid of losing. From ‘Congress-free India’, Modi is now talking about ‘a weak opposition government’. There’s more evidence of panic in Omar Rashid’s story in The Hindu about a cattle market that has collapsed, about stray cows raiding UP farms as impoverished farmers abandon their hungry animals.

Explaining the dilemma, BJP’s minister for animal husbandry said: “UP is a state of small and minor farmers, with two crop seasons. For 15 days of ploughing, a farmer no longer wants to feed two bullocks all year round.” To solve the problem the government has started a sex-sorted scheme under which the chances of a cow producing a female calf would be as high as 90pc to 95pc. Simultaneously, the BJP government is imposing a 0.5pc gaukalyan (cow welfare) cess on liquor and road toll collections, besides doubling an existing 1pc levy on the incomes of wholesale produce markets. The proceeds will fund construction and maintenance of new cow pens.

While the kitten entangles itself in the ball of wool, the opposition should be taking control of the narrative. But Congress, far from offering a vision, which only it could, is saddled with its recent promise to make cow urine economically viable while discussing the grade of the Brahminical thread Rahul Gandhi wears, neither of which is part of the winning calculation for the SP and the BSP.

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Opinion

The social fibre is in disarray

The Kashmir Monitor

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By Tawfeeq Irshad Mir

Kashmir lost its claim to heaven a long time ago but the debate today is not about ‘why’ but ‘who’ caused the paradise to fly away, leaving behind its miserable and yet romantic claimants.Say Kashmir, and the sweet aroma of pine takes over the mind fluttering among images of valley flowers,

While the valley is brewing to shivered cold, resorting to bone ache, and suddenly you get to hear the act, that tender your muscles and your brain starts oscillating in agony. While I was on the way to home, and as usual my phone keeps on beeping with variable feeds, and at a moment my eyes stuck to a feed, mentioning that a baby was thrown outside in a cartoon enveloped in polythene, across the road from the city’s maternity hospital Lal Ded. Not the first time, I got to hear such inhuman act, previously such incidents have filled the social networking sites with tetra byte data.

 

Kashmir, a Conservative populace with rigid religious beliefs, where such incidents dwindle the heart, to the core and ionise in the surroundings within fraction of the second.

,,, “oh foetid soul, you aren’t a burden,
Your cravings, your presence, is sacred,
” unworthy are those, who abandon you,
,,, “you are born to take nap at the realm of GOD,

This mischievous act is on surge in Kashmir citing numerous incidents in the past, Now concerning the aetiology of this social chaos, : over the years there has been a paradigm shift in the psychological, behavioural, living style of the people inhabiting valley, leading to variant changes, pertaining to psychosexual onslaught, Now we see pre-marital sexual relations, a non-serious concern leading to apathy in the ethos of society, the ramifications of this are vivid and perturbing, the couple especially in their teen ages, moved by their sudden hormonal changes engage in sexual relationships, and in certain cases, unaware of its complications, maybe due to lack of knowledge, debarring the use of protective devices, the female counterpart conceives and remains unaware for most of the time, as fear of surroundings, the societal rejection, the client fears to express the event to parents, till she develops such symptoms, and in reaction, either they go for illegal termination of pregnancy or wait for the term to deliver remaining in isolation carried out in privacy, and later the baby is abandoned.

In certain cases, the baby delivered from legal couple, go for termination, if it’s unwanted, or a female,, called female infanticide “in Kashmir such incidents are on record where foetus laden with blood were found in toilets, on the footsteps of shrines, some years back, an abandoned baby, caught by mob of dogs was noticed outside Lal Ded hospital, such incident shocked the consciousness of people,.

Congenital defects :Every single creation of God is not futile, but I can say, a sheer ignorance, the babies who are born with genetic defects have every right to continue life, even Stephen Hawkins was born with hereditary defect, still he rose to prominence, even normal human couldn’t think ever, contributes to the cause of abandoning babies, recently a horrendous incident captivated the conscious minds of valley where a father tried to Bury his live baby, citing the reasons of poverty, that he can’t afford the care of baby born with genetic defect.

Now describing the risk factors, loosening bondages from religious acuity, problems in socialisation, faults in upbringing, difficulties in coping up with puberty, lack of education, accelerate such incidents.

The treatment is more of a belief than literal.The old age adage holds true everywhere, we should focus on preventive strategies, we should be more religious, because not a single religion advocates such horrendous act, be more conscious when you go for such a relationship, we should profoundly act on such incidents, awareness schedule should be set up,
We need to develop legal resolutions for those abandoned, because we have many childless couples, so as to create balance.

Certainly at the end, those who abandon live births, are abandoning the humanity, the moment they opt for such gigantic mischief, they turn into wilds, and their ability to be human seizes.

(The writer is perusing graduation in Nursing at GMC, Srinagar. He can be reached at: [email protected])

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