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.
INDESCRIBABLE JOHN ELI
By Shabbir Aariz
This indeed is proverbially a herculean task to describe or define John Elia in any particular frame. Whosoever while mentioning him, is either trapped in contradictions of one’s own opinion or is able to confine to a few verses of John Elia to judge him. But the more one tries to understand John, the more confused one is and I believe that you need another John Elia to explain him. He is a phenomenon, a thing like a live fish to hold in your hand or an elephant amongst blinds to be described. Wusatullah Khan, a noted broadcaster, holds that knowing John is as good as dating with a liberated lady. And it is quite obvious that a man who in him is a philosopher, a scholar, a biographer, a linguist with command over Urdu, Arabic, English, Persian, Sanskrit and Hebrew and needless to say that the Ismaili sect of the subcontinent could not find anyone other than John to translate Ismaili treatises from Hebrew, it becomes a tedious affair to be conclusive about John. Common perception though with an element of truth is that John is a progressive Marxist, an unconventional poet and always in denial of everything including himself while himself saying in three line verse,
“KISKO FUSAT K MUJSAY BAHAS KARAY…..
OOR SABIT KARAY K MERA WAJOOD….
ZINDZGI K LIYAY ZARORI HAY
(Anyone prepared to argue and prove that my existence is imperative for life). His poetry is admittedly very close to life and his verses in the words of a legendry poet, Majrooh Sultanpuri, are like a dialogue which no other poet has the distinction to be capable of. John has an extra-ordinary craft of connecting with his audience that has created an unprecedented fan following which no other contemporary poet can claim to have. So magical is his poetry and its rendition that it has created a cult of his admirers with such an obsession and longing for the life of melancholy lead by John Elia himself. It is no secret that he was never a happy man with defiance and protest against everything and anything around. Loudly a nonconformist when he says
“unjaman main mayri khamooshi…..
burdabari nahin hay wehshat hay”.
His style made him famous and popular. He appears to be disgusted even with creation when he says … “HASILE KUN HAY YEH JAHANE KHARAAB….
YAHI MUMKIN THA AYSI UJLAT MAIN”.
His admirers strangely wish to pass through the same pain and despair that is hallmark of John’s poetry besides satire and the disdain for the system which contributed to his sadness in life. He has so glorified and romanticized the pain and sadness that it leaves his audience in frenzied ecstasy.
John Elia was born in the year 1931 and died in 2002. He originally belonged to Amroha in the state of Uttar Pradesh, younger brother of Rayees Amrohi, a known journalist and writer. John migrated to Pakistan in the year 1957 and settled in Karachi where he is buried now. But Amroha never left his heart and mind. He never felt comfortable after leaving Amroha partly because his stay in Karachi brought him in conflict with the system too. Many other things have also contributed to his sadness in life. He was married to a well-known writer of Pakistan, Zahida Hina but in mid-80’s , the relation between the two became bumpy and ended up in divorce which left John devastated and for ten long years thereafter went in depression without writing a word.
As is true about many in the history of literature, John earned his name and fame more after his death than in his life time while he was not received well and felt a strange type of suffocation when he says,
“AAP APNAY SAY HUMSUKHAN REHNA…..
HUMNISHEEN SAANS PHOOL JATI HAY”.
Thanks to the electronic boom and You Tube that brought him to the lime light and enabled audience to reach him and his works. As if this was not enough that his first poetic collection only came to be published when he reached the age of 60. It is worthwhile mention that he has as many as seven poetic collections to his credit namely SHAYAD, YANI, LEKIN, GUMAAN, GOYA, FARMOD and RAMOOZ. Except one, all other are published posthumously. This is besides his scholarly works in prose which may require greater insight to go into.
John all his life remained honest, direct and straightforward in expressing his views on matters of public interest. He also never demonstrated any pretentions or reservations while expressing the truth of his personal life. He never made any secret of his fantasies, love affairs or drinking habits. Yet he was never at peace either with the times or with himself. John Elia, in my humble opinion lived ahead of times and even the desire of dying young without being bed ridden was not granted to him except that he strangely enough wanted to die of tuberculosis and which he did.
(The author, a senior lawyers, is a well known poet and writer. Feedback at: [email protected])
Manto: Why I wanted to read a ‘lewd’ writer
By Naveed Hussain
I first read Saadat Hasan Manto as a teenager and the spirit of what I’m writing now was etched on my memory in those years.
I was too young to understand the intricacies of his stories but I enjoyed what I read and craved for more. Back then, Manto wasn’t available in the small town of Haripur where I lived. A friend introduced me to a schoolteacher, a bibliophile who had a modest collection of Manto in his personal library.
“Why do you want to read Manto, he’s a ribald, lewd writer,” he quipped. “This is exactly why I want to read him,” I replied, almost impulsively. He smiled and agreed to lend me Manto’s books. Thus began my journey to explore Manto. The more I read, the deeper my love for him became.
Manto was a nonconformist, an unorthodox and ruthlessly bold writer. He didn’t believe in the so-called literary norms of ‘decency’ and ‘civility’ set by didactic writers of his time. For him, truth is truth. No matter how bitter and despicable the reality, Manto never dilutes the truth. Like a muckraker, he pokes his nose into the muck, rakes it, and then holds it up to the reader – in all its profound ugliness and twisted beauty. “If you don’t know your society, read my stories. If you find a defect, it’s the defect of your society, not my stories,” he says.
Manto wrote on socially taboo topics like sex, incest and prostitution, which earned him the wrath of contemporary traditionalists, conservatives and even progressives. For some of his ‘lewd’ and ‘obscene’ stories he had to face lawsuits – among them were great stories such as Thanda Gosht, Bu, Khol Do, Dhuan and Kali Shalwar.
But it is to miss the point to simply say that Manto wrote about sex. He wrote about the sexual debauchery of men and the sexual exploitation of women; about our patriarchal society where women are often treated as a ‘sex toy’, not a human being. Unlike many, I don’t compare Manto with DH Lawrence, because Manto is not lustful, even though he explicitly writes about the female anatomy. He’s more like Guy de Maupassant, who sees the throbbing heart, not the sensuous body, of the prostitute.
Manto blames the ‘diseased mind’ for reading ‘ribaldry’ into his stories. If a sex maniac derives morbid gratification from Venus De Milo, should we blame Alexandros of Antioch for chiselling such a ‘graphic’ sculpture? No, certainly not.
For contemporary literary pundits, Manto was also unacceptable because he wrote ‘indecent’ language. “They [the critics] criticise me when my characters verbally abuse one another – but why don’t they criticise their society instead where hundreds of thousands of profanities are hurled on the streets, every day,” he wonders.
I also love Manto because he was honest. He was an unflinchingly true writer who believed in calling a spade a spade. Sketch-writing was introduced as a genre in Urdu literature much earlier, but Manto created his own peculiar tell-all style. He didn’t write only the good qualities of his characters. “In my bathroom, everyone is naked. I don’t clothe them because it’s the tailor’s job,” he writes.
Manto’s sketches, which he initially wrote for the Lahore-based Daily Afaq newspaper, were later collected and published as Ganjay Farishtay. Manto wasn’t a hypocrite. He minced no words while writing about his dead friends. “I curse a thousand times a so-called civilised society where a man’s character is cleansed of all its ills and tagged as ‘May-God-Bless Him’,” Manto wrote in Ganjay Farishtay. Manto wrote sketches of filmstars Ashok Kumar, Shyam, Noor Jahan, literary figures such as Meera Ji, Agha Hashar and Ismat Chughtai and some politicians. “I have no camera that could have washed smallpox marks off the face of Agha Hashar or change obscenities uttered by him in his flowery style.”
Before embarking on his literary career, Manto had read Russian, French and English masters like Chekhov, Gorky, Victor Hugo, de Maupassant and Oscar Wilde and translated some of their works into Urdu. Surprisingly enough, despite his love for revolutionaries, Manto was not a Marxist ideologue. He was a humanist who was pained to see social injustices, economic disparities and exploitation of the underprivileged. He hated the obscurantist clergy and parasitic elites alike.
Although Manto had migrated to Pakistan after 1947, he couldn’t understand the rationale of partitioning a land along religious lines. His stories of bloodshed and cross-border migration, such as Teetwaal Ka Kutta and Toba Tek Singh, made him unpopular with ‘patriotic’ Pakistanis. To this day he remains a shadowy figure on the official literary lists of Pakistan: our school curricula, our national awards, our drawing room conversations.
Manto was acknowledged as a creative genius even by his detractors. And he knew this, which is perhaps why he wanted these words to mark his grave: “Here lies Saadat Hasan Manto and with him lie all the secrets and mysteries of the art of short story writing. Under tons of earth he lies, still wondering who among the two is the greater short story writer: he or God.”
Manto’s family feared his self-written epitaph would attract the unwanted attention of the ignorantly religious, so on his grave one finds a Ghalib couplet. He faced censorship all his life and even now has chunks of his stories taken out by the authorities. But as we mark his centenary year, I can say this with the instant certainty I felt as a young man in Haripur: the words and stories of Saadat Hasan Manto will outlive us all.
Gauhar Raza: Giving Poetry the Power to Protest
By Asheesh Mamgain
If things were different his poems would have been different, or maybe he would not have been a poet at all. But things are what they are. And that is why Gauhar Raza, the poet is writing, and it is why he writes his poetry of protest.
“Maybe I would have written about love, the beauty of nature and science. But as things stand my poetry is predominantly about resistance and protest,” said Raza, who is faithful to the tradition of resistance poetry to the extent that he has throttled, without much difficulty, the romantic and the scientist in him. “The need to write poetry always arose when something happened around me which affected me, to the core. I have never written and will never write poetry just for the sake of it.”
“The murder of Safdar Hashmi, the breaking up of the Soviet Union, the demolition of the Babri Masjid, the killing of an activist in Afghanistan, the death of Rohith Vemula are some of those things,” he said.
Raza’s second published collection of ghazals and nazms (71 in all) came out in November 2017 and is titled Khamoshi, or Silence.
Is there a lot of anger in his poems? Yes, there is definitely a lot of anger. But then there is also hope. That is where Raza becomes special.
“For me, a poem that merely complains or rants about the injustice, violence and persecution happening all around is not enough. A poet has to go beyond this; he has to give a vision. The vision of an alternative world, of a better world. Only then will his poetry be successful and meaningful. A poet has to show the consciousness he wants to bring into society.”
So how does he define good poetry? “Well, a good poem should be able to raise the level of the reader at least one notch higher, and also give him a fresh perspective about the aspect being dealt in the poem. Something new to dwell upon,” said Raza.
The influences that shaped his poetic thought came pretty early, at home and at the Aligarh Muslim University where he studied. Raza’s father, Wizarat Hussain, worked in the education department there and was a second-generation Leftist.
“The question about the existence of God came up very early in my life and soon I became an atheist for life,” said Raza. Literature was read with passion at home and by the time he was 15 he had read all the Urdu literature available at the AMU library as well as a solid portion of Russian literature.
“During my growing years, Leftist thought had a major presence in the university. On the other hand, the fundamental forces were also steadily getting stronger. I was smitten by the leftist idea. I was part of a literary study circle, we served tea at the secret meetings of leftist groups and listened to discussions at home between my father and other intellectuals such as Irfan Habib and Iqtidar Alam Khan.”
There was a lot of churning in his mind and soon he started pouring the remnants of all that into his poems. When it comes to poetry some of Raza’s major influences have been Ghalib, Faiz Ahmad Faiz and Sahir Ludhianvi. He is often seen reciting their work at length during his various lectures, with Sahir Ludhianvi’s long poem ‘Parchhaiyan’ or Shadows one of his favourites.
“Writing the kind of poetry I do is not easy. Each time a write a poem I must relive all the pain and emotion I went through when the particular incident happened that forced me to write. All those disturbing images come rushing back to me. It is a difficult thing to undergo.”
Nor is poetry Raza’s only means of reaching the people. He recently retired as chief scientist from the Council of Scientific and Industrial Research. He is also into documentary filmmaking, his documentaries on Bhagat Singh and the 2002 Gujarat genocide being very well known.
Where does poetry stand today, as a means of communication with the reader? According to Raza, “for one, social media has helped. It has helped poets reach a wider audience. Also, the tradition of musharias and kavi sammelans (poetry meets) is still very strong in India. So even if a poet is competing with the multimedia world, it is easy to reach one’s audience with one’s poetry, provided you have something pertinent to say.”
More broadly speaking, however, “I have to say that things have progressed in a disturbing direction. A poem I wrote 20 years ago, I could rededicate it to Rohith Vemula and then to Gauri Lankesh. This disturbing trend is seen all over the world. I believe that the fall of the USSR has been a major turning point in the way our World has evolved.”
A few lines from one of his poems brings out his concern and struggle.
Mein phool khilata hoon jab bhi,
Woh baad e khizan le aate hain,
Mein geet sunata hoon jab bhi,
Yeh aag se ji bahlate hain.
Whenever I make a flower blossom
They bring the autumn wind
Whenever I sing a song
They give the soul succour with flame.
But Raza is still hopeful. “There has been a resurgence of resistance poetry in Urdu in the recent past. The trend of religious poetry in Urdu has also reduced in recent times. The youth today has become more involved in this attempt to bring a positive change. I have seen young people reading protest poetry and reacting to it. Once again universities have become a place of resistance and struggle for change.”