There should be a frank public conversation on the judiciary — an internal patch-up is not enough
As the consequences of the historic press conference of the four seniormost judges of the Supreme Court play out, a constant refrain that has been heard is of the need to resolve differences internally. This was always going to be the stock response of dominant sections of a legal and judicial fraternity that constantly speaks truth to government but is uncomfortable when the same standards are applied to them. Such a refrain, at first glance, is curious, as it appears to be an attempt to close the stable doors after the horse has bolted. But in reality it is the carefully calculated response of an entrenched mindset that seeks to maintain public confidence in the judiciary by keeping it insulated from public spotlight, discussion and criticism. It is this mindset that was challenged, in cause and effect, by the press conference.
The immediate trigger for the press conference was the apparent arbitrariness of the Chief Justice of India (CJI) in allocating benches for disposal of cases. Whether indeed there was arbitrariness, and whether such arbitrariness, if any, was purely whimsical or motivated, is impossible for members of the public to ascertain. But if the four seniormost judges, despite their internal meetings with the CJI, resorted to the extreme measure of appealing to the public, their grievances are entitled to a certain degree of credence. Assuming such credence, the question that any well-wisher of the judiciary, whether inside or outside it, must ask is this: What is the institutional design that facilitated such seemingly arbitrary decision-making?
One possible answer lies in the opaque internal structure of the judiciary founded on a combination of unquestioning trust in the office of the CJI along with an instinctive distaste for any interference by Parliament or government in judicial functioning. So sacrosanct are both these premises today that anything to the contrary appears blasphemous. However, their sanctity is neither natural nor long-held.
At the time of the formulation of the Constitution, B.R. Ambedkar warned that no matter how upright the CJI might be, like any other mortal he too would have frailties. Thus no absolute power should be vested in him. Admittedly, Ambedkar was speaking about not giving the CJI a veto power in appointing judges; but the same sentiment rings true in case of the convention of allocating benches as well. After all, England, from where the convention of the Chief Justice as the master of the roster emanates, has been witness to several Lord Chancellors constituting partisan benches on matters of great political moment. Consequently, the principle that one should trust one’s Chief Justice, while admittedly a sound principle, cannot be an absolute one. That it has become so is testament to the legal fraternity closing ranks under the ruse of convention.
The second premise justifying complete judicial insulation that makes arbitrary decision-making in the judiciary possible is the fear of politicisation. This is undoubtedly legitimate — a politicised judiciary might well suffer from a lack of public confidence. But the implementation of this principle is both over-broad and misdirected. In public discourse there is a false conflation of any parliamentary action relating to the judiciary as ipso facto affecting its independence. Whenever any move towards reforming the judiciary is made by politicians, commentators are quick to hark back to the Emergency and the supersession of three judges for the CJI that preceded it. But there is some distance, logically and factually, between superseding the CJI and proposing an accountability law for judges, revising the opaque process of appointment and looking to institute credible alternatives to a broken system of tribunals, as stillborn reform initiatives in the last decade have sought to do. Unfortunately, so deep is judicial memory of the Emergency that it has clouded in distrust many well-meaning attempts at judicial reform by governments and Parliament.
Equally critically, this fear of politicisation is misdirected, being based on a naïve view that overt parliamentary law is the sole method of interference with the judiciary. What it fails to countenance is that more nefarious methods of political interference in the judiciary exist, and have always done so; moreover, that such methods thrive in opacity, subjectivity and a lack of norms. As Bentham said, a view the Supreme Court itself has endorsed in Mirajkar, “in the darkness of secrecy, sinister interest and evil in every shape, have full swing.” It is this darkness that the press conference of judges has shone a light on. To shut the light out and resolve the matter in darkness through an internal resolution would be exactly contrary to what the situation demands.
While internal resolution might be a palliative to tell the world that all is well with the Indian judiciary, it will, at best, be a band-aid solution. Were such a solution genuinely possible, one can safely trust that the four judges would not have resorted to a press conference to make their views clear. The press conference should make it clear to all that the ship of internal resolution has sailed. Instead, what is needed now is a Supreme Court Act to be passed by Parliament after an open public discussion involving all stakeholders — civil society, the judiciary, the Bar and members of all shades of political opinion.
As a precursor to such reform, it is important to clarify that the Constitution envisages the powers and jurisdiction of the Supreme Court to be the possible subject matter of a parliamentary law. This is clear from Entry 77 of List I of the Seventh Schedule which makes the aforementioned a legitimate subject of law-making. Passage of such a law is critical to rectify the discourse of any parliamentary law relating to the judiciary being anathema.
The substance of a proposed Supreme Court Act must be the restructuring of the Supreme Court itself. It is vital that a court of 31 judges, if it is to function as an apex court, must develop some degree of institutional coherence. Such coherence is impossible when the court sits in benches of two judges each. Further this structure allows the CJI to become the master of the roster, vested with the absolute discretion of allocating judges to particular cases, leading to crises like the present one. An antidote to both the aforementioned problems is a restructuring of the Supreme Court into three divisions: Admission, Appellate and Constitutional. All special leave petitions under Article 136 ought to be first considered by the Admission division. The division will comprise five randomly selected judges who for one quarter every year will deal only with admission cases.
Like the Supreme Court of the United States, making this process work by circulation and without oral hearing needs to be strongly considered. The Constitution Division should be a permanent Constitution Bench of the five senior-most justices of the Court. They will hear all matters of constitutional importance and authoritatively pronounce the Court’s views on it. The Appellate division should comprise the remaining 21 judges (on the basis of the sanctioned strength of 31) with seven three-judge benches. They will hear all matters admitted by the Admission Division and any other writs or appeals which lie as a matter of right to the Supreme Court.
Such restructuring will have three advantages. First, it will yield more coherent jurisprudence, particularly in constitutional matters, taking us closer to certainty and the rule of law. Second, it will allow for more careful contemplation of which matters actually deserve admission to India’s apex court. Third, it will reduce the discretion available to the CJI to select benches, since this will be limited to the appellate division alone. Needless to say, norms for such bench fixation and other matters relating to jurisdiction and powers of the Court may also be a part of the proposed law.
At this point of time, the proposed law is critical to start a frank public conversation around what the judiciary needs to restore public confidence. Such a public conversation is necessary to underline that the judiciary is part of a republican constitutional framework, not the preserve of lawyers and judges alone. An internal resolution will be its antithesis, which might defuse the present crisis, but will exacerbate the deeper wound.
The Sri Lanka attacks: New front, old wounds
By Mario Arulthas
The attacks in Sri Lanka on Easter Sunday for many brought back memories of the long ethnic war, which came to a bloody conclusion 10 years ago in May. Although the Sri Lankan authorities are yet to identify the perpetrators, it appears the attacks are of a different nature, one fuelled by global dynamics, rather than a response to local communal grievances. Despite this, the violence is bound to exacerbate already-deep ethnic and religious fault lines, increasing existing tensions and possibly fuelling further violence.
After 1948, newly independent Sri Lanka embedded a virulent form of Sinhala Buddhist nationalism in the formation of the state. This ethos, in simple terms, holds that the entire island is home to Sinhala Theravada Buddhism and that minorities are invaders, who will be tolerated if they accept Sinhala hegemony. Any threats (perceived or real) to the Sinhala identity of the country are attacked resolutely.
This revealed itself in racially and linguistically discriminatory policies as constitutions were written, making non-Sinhala communities second-class citizens. To this day, Sri Lanka’s constitution places Buddhism above other religions, assigning the state the responsibility “to protect and foster” Buddhism.
The entrenched Sinhala Buddhist nature of the state manifests itself in its institutions, particularly those linked to security. For example, the military rank and file is almost entirely Sinhala Buddhist. Some of its units, like the Vijayabahu Infantry Regiment, are named after ancient Sinhala kings, famed for defeating Tamil “invaders”.
Increasingly violent reprisals by the state against peaceful demands for autonomy and equal rights by Tamils from the 1950s to the 1970s eventually led the Tamil population to seek an independent homeland in the island’s northeast, home to the Tamil Hindu and Christian populations and the Tamil-speaking Muslim groups.
A low-level trench war escalated into a full-blown war in 1983, after the Black July pogroms, in which Sinhala mobs killed thousands of Tamils, looting and burning their properties in the Sinhala-majority south of the country.
During the war, the Sri Lankan military routinely targeted civilians, killing tens of thousands. The Liberation Tigers of Tamil Eelam (LTTE), the Tamil group that emerged most prominently and enjoyed widespread support, deployed suicide bombers in the south of the country with devastating effects.
Meanwhile, tensions between Tamils and the Muslim Tamil-speaking community, who, in many cases, do not identify as ethnic Tamils, increased, marked by violence and massacres by both the LTTE and Muslim paramilitaries. In 1990, the LTTE expelled some 100,000 Muslims from the Northern Province, furthering the divide between the communities.
Throughout the war the Sri Lankan military repeatedly bombed churches and Hindu temples sheltering Tamil civilians; in 1995 an air attack on a church in Jaffna killed around 147 people. While those attacks were not religiously motivated per se, they portrayed the state’s willingness to attack places of worship.
After three decades, during which the LTTE was able to establish a de facto state, the Sri Lankan military crushed the movement, in a brutal crescendo of violence. The United Nations says there could have been over 40,000 deaths during this last phase, while some activists say the figure is closer to 140,000.
To this day, impunity reigns for the crimes committed during the war, despite international pressure for an accountability mechanism and demands by the Tamil community for an international war crimes tribunal. Hundreds of family members of Tamils forcibly disappeared during and after the war by state forces have been protesting and demanding answers. UN officials have warned that impunity may further increase violence in Sri Lanka.
Since 2009, the attention of the Sinhala Buddhist nationalists turned to the minority Muslim and Christian communities. While the security forces maintained an iron grip on the Tamil population, Sinhala Buddhist mobs started attacking Muslim and Christian populations repeatedly. In 2018, there were anti-Muslim riots in Kandy and dozens of attacks against Christians. A report by the National Christian Evangelical Alliance of Sri Lanka (NCEASL) said extremist elements were able to influence entire communities and lead violent attacks against places of worship and people. Only last week, a church was attacked during Palm Sunday mass.
Muslim and Christian communities in Sri Lanka have responded with remarkable restraint to Sinhala nationalist violence in the past – also because they saw the potential repercussions to them in the brutality unleashed on Tamils by the state in response to their own resistance.
However, the attacks on Easter Sunday do not appear to be a response to past Sinhala Buddhist violence. The perpetrators did not target Sinhala Buddhist, but Christian institutions and tourism infrastructure.
While many Tamil Christians were supportive and sympathetic to the Tamil armed movement, as a whole, Christians as a religious community were not antagonistic to other communities. As such, to see this in the vein of an escalation of existing violence against the Christian community in Sri Lanka would be a mistake. These attacks are likely a hitherto unseen dimension to tensions, a new front of violence in Sri Lanka.
After the Sunday attacks, the tensions that already exist are likely to deepen. Already hate speech is circulating on Sinhala-language social media. There are also reports of reprisals against Muslims, as a number of Sri Lankan officials have said that a little known Muslim fighter group might be responsible for the attacks.
Relations between Tamils and Muslims are also likely to suffer. The choice to conduct an attack in Batticaloa, a Tamil-majority town on the east coast, far from Colombo, may not be a coincidence. The town, and the district it is located in, saw some of the worst Tamil-Muslim violence during the war years. The St Anthony church in Colombo is also one that is frequented by a large Tamil congregation. Consequently, there are serious concerns among Tamil and Muslim civil society in Batticaloa of a flare-up of violence.
While tensions are high in the aftermath of the attack, the propensity of the state to respond with repression must be prevented. The existing draconian counterterrorism legislation has been used to violently repress communities, while journalists and activists continue to face harassment and surveillance. On April 22, President MaithripalaSirisena also declared national emergency, which gives the military sweeping powers.
While those responsible must face justice, a similar crackdown and harassment of minority populations in response to the attacks must be avoided. Otherwise, Sri Lanka risks furthering existing divides and paving the path to renewed violence.
In order for sustainable peace to be established on the island, the underlying reasons for the discrimination against minority communities must be confronted by the majority. In the absence of that, a whole 10 years after the end of the war, Sri Lanka’s future continues to look bleak and minority communities will continue to live on the edge.
Is Election Commission Toothless or Timid?
By Kalyani Shankar
It was left to the Supreme Court to prod the Election Commission to realise the extent of its powers recently.
After the court pulled up the commission for its inaction against political hate speeches, the commission told the court, “We found we have powers!”
After the court reprimand, the EC wielded its powers this week and enforced campaign bans as a punishment on four leaders in UP, including Chief Minister Yogi Adityanath, union minister Maneka Gandhi, BSP chief Mayawati and Azam Khan of the Samajwadi Party for different periods, for the offensive remarks they made in the last few days.
For some time now, the role of the Election Commission has come under scanner. There is a debate on its perceived failure to check violations of the Model Code of Conduct and ensure a level playing field for the ruling and opposition parties.
It raises the question whether the EC has no teeth or is the EC being timid? It is significant to note that ahead of the ongoing LokSabha polls, 66 former bureaucrats, in a letter to the President on April 8, had expressed concern over the working of the Commission. They wrote that the EC’s independence, fairness, impartiality and efficiency are perceived to be compromised today.
The evolution of the poll panel has been quite fascinating. While until 1989, it was a single-member commission, Prime Minister Rajiv Gandhi made it into a multi -member one on October 16, 1989, as he was not quite happy with the then Chief Election Commissioner and wanted to clip his powers.
This had given the government enough space to put its own nominees but they had a very short tenure only till January 1, 1990.
Prime Minister PV Narasimha Rao again made it into a three-member commission on October 1, 1993 and since then the multi-member panel has been in operation.
Looking back, it is clear that if the EC decides, it has adequate powers to curb the money power, muscle power and other irregularities as demonstrated by its tenth Chief Election Commissioner TN Seshan. Pleading for electoral reforms, some of his successors like SY Quereshi and Linghdo have also demonstrated their determination to act.
Seshan proved to be the greatest ringmaster of the great Indian electoral circus in a country where nearly 90 crore voters will exercise their franchise this year. He made the EC powerful within the existing laws.
Appointed by Prime Minister Chandrashekhar, he served as a dreaded CEC from 1990 to 1996. Even today, Seshan is cited as a shining example of what a CEC should be.
Even the Supreme Court once told the Commission to aspire for the kind of credibility it enjoyed during Seshan’s days.
Why do people remember a CEC who was being described as a maverick? Seshan’s story is indeed fascinating.
An IAS topper of the 1955 batch, he had once told an interviewer. “I had never conducted an election. I went with two principles: zero delay and zero deficiency.”
He followed both throughout his tenure. He wielded the big stick and implemented the election manual in letter and spirit. Due to his strict policies he was even called “Al Seshan.”
Some of his major achievements include implementation of the election process and the Model Code of Conduct, introduction of voter ID cards, enforcing limits on poll expenses, and elimination of several malpractices like distribution of liquor, bribing voters, ban on wall writing, use of loud speakers, use of religion in election speeches etc.
He introduced election observers and also forced the candidates to keep accurate accounts of campaign expenses.
Seshan took many bold measures. For instance, under his strict watch, a serving Governor who campaigned for his son had to resign. The Chief Secretary of UP was taken to task for issuing an advertisement in a newspaper at the cost of public exchequer.
He recommended to Prime Minister PV Narasimha Rao to sack two of his ministers – SitaramKesri and KalpanathRai – for allegedly influencing the voters, but Rao did not act. In 1992, the Left parties even called for his impeachment.
The question then that arises is – has the EC performed well in the past seven decades?
While the successes have not been consistent or uniform, the EC has conducted 16 general elections in a free and fair manner. However, it is clear that there is need for more electoral reforms and more transparency.
Even during this elections, political parties all across the country have been brazenly violating the poll code, whether it is using religion to seek votes, or Rajasthan Governor Kalyan Singh’s campaign to support the Prime Minister or UP Chief Minister Yogi Adityanath’s describing the army as ‘Modijikesena.’ These seem to indicate the ineffectiveness of the EC to contain the political class.
While we have to wait for a full assessment of the EC’s role in 2019, as of now Supreme Court’s prodding might help the EC to wield its powers more frequently. Undoubtedly, the EC has an unenviable job of not only organising the massive exercise but also ensure that it is held in a free and fair manner.
Heritage of hex and curse
By Jawed Naqvi
Puting a curse on people and on ancient gods is a human heritage that straddled civilisations and underpinned their mythologies. This unreason has somehow survived in 21st-century India to be propagated by tantrics often with official patronage on TV — not very different from voodoo-practising witch doctors holding sway in swathes of Africa.
Saffron-robed Pragya Thakur says she killed HemantKarkare with her curse because the late policeman tortured her for alleged terrorism. There are two ways this could have come about. First, the official version of how the head of Mumbai’s anti-terrorist squad was laid low on the fateful night of the terror attack on the city in 2008. AjmalKasab shot the heroic officer from close range for which he was hanged.
In other words, Thakur’s angry hex on Karkare induced the young terrorist to travel by sea and, like a heat-seeking missile colliding with its target, he was guided by a force beyond his knowledge to fulfil the mandate of a distant curse.
The other view, albeit discussed mostly in whispers, is the claim by the former inspector general of Maharashtra police S.M. Mushrif. He has questioned the official narrative in his book, Who Killed Karkare? Mushrif suggested instead that powerful enemies, led by fans of NathuramGodse, lured Karkare into an ambush since he was investigating their communally inspired acts of terror. They used the cover of the carnage and contrived a parallel plot to get rid of Karkare in the chaos.
In either case, Thakur’s curse would seem to have homed in on its target, promptly and accurately. It is another matter that the veracity of Thakur’s belief would not hold before India’s constitutional mandate, which nudges citizens to “develop the scientific temper, humanism and the spirit of inquiry and reform”.
Hindu mythology like other mythologies is replete with examples of curses by myriad gods and sages that transform humans into stones, and so on. Such stories appeared in all major civilisations, but their people now treat mythologies as mythologies, nothing less nothing more.
Celebrated documentary-maker AnandPatwardhan has created a riveting TV serial (available on YouTube) on the subject. It’s called Vivek or Reason, which focuses on the grim battle between obscurantism and rational reasoning in India. Pragya Thakur like Godse-hugging Hindutva colleagues in the documentary subscribes to one set of people while an amazing group of men and women have dedicated their lives to the eradication of superstition and blind faith from the Indian milieu.
It’s an old struggle though, one in which B.G. Tilak and M.G. Ranade, two feisty Brahmins, took opposite sides in the fight for reason. Tilak was the regressive icon, while Ranade was greatly respected by leading social reformer Ambedkar. Patwardhan has pegged his narrative to the cold-blooded murders of popular rationalists NarendraDabholkar, GovindPansare, M.M. Kalburgi, and journalist GauriLankesh by revivalist groups not dissimilar to the ones Pragya Thakur may be identified with.
A most useful tool is this documentary to grasp the fraught consequences for Indian democracy should people like Thakur and far too many others of her flock win the elections for parliament currently under way.
NajmanBua told us with certainty decades ago that Diwali was an occasion when people practised black magic to get even with their rivals. (‘Wokalajadujagaawathain’.) A method was to float a paper lantern with chilly powder, to fly to the targeted person, who would suffer great harm when the lantern landed. Of course, this sounds improbable, which it surely is, but thumb through the works of John Campbell Oman, the British Indologist from early 20th century. Oman has been usefully cited in a collection of essays in historian David Hardiman’s Histories of the Subordinated.
Another book by Hardiman, Feeding the Baniya, has disappeared from bookstores as books critical of wily business practices tend to. The moneylender was one of the most ardent practitioners of black magic and the widely prevalent institution of the hex. That was how he believed he could keep the peasants in constant need of his favours and thus of his greedy attention.
A reason that Indira Gandhi had banned the sharing of met forecasts for monsoons was to discourage this exploitation. Among the many tricks quoted by Hardiman of ways the baniyas, the usurers, would strive to stop rain to keep the fields parched is the one from Rajasthan. “In an interview in southern Rajasthan, I was told that the baniyas could stop rain by pouring hot water onto a small image which they kept for the purpose in the Jain temple.”
Oman recounts other ploys used to drive away rain clouds, in Punjab, for example. “They sometimes made chapattis which they then mistreated in such a way as to offend the gods, the logic being that grain from which the chapattis [were] made came from the bounty of the gods who provided the rain; the angry gods would consequently withhold the rain.”
A hex that would probably make even Pragya Thakur sit up is the one from Punjab. Says Oman: “At another time I learned that a baniya had recourse to a still more effectual method of keeping off rain. He had a charkha, or spinning wheel made out of bones of dead men. Such an article could only be made very secretly and for a large sum of money, but its action was most potent. Whenever the clouds were gathering the baniya set his virgin daughter to work the charkha the reverse way, and by that means unwound or unwove the clouds, as it were, thus driving away the rain….”
It is not whether hexes and curses work, it is what a growing number of Indians expect them to do that should worry a country struggling with subs-Saharan human development indicators, including 37 per cent of the world’s illiteracy.
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