Connect with us

Opinion

The competing visions behind two judgments

The Kashmir Monitor

Published

🕒

on

IST

By rghya Sengupta

Two judgments by the Supreme Court and the Meghalaya High Court in the last week epitomise the perils and promises of the delicate separation of powers framework that underlies governance in India. The Supreme Court, in a challenge to the Rafale acquisition process, rejected requests for quashing the process and setting up a court-monitored probe. In distant Shillong, a single judge of the Meghalaya High Court, in a case involving the non-issue of a domicile certificate, requested the Government of India and particularly “our beloved Prime Minister, Home Minister [and] Law Minister” to bring a law allowing non-Muslim minorities from neighbouring countries to live peacefully in India. Both judgments ostensibly favoured the government, but that would be a trivial way to understand them. At their core, they represent two competing models of judicial legitimacy and ways of conceptualising the judicial role in an increasingly shrill global order.

To understand what these judgments are, it would be useful to clarify what they are not. The judgment of the Meghalaya High Court is not a judicial verdict, properly understood. What makes a verdict judicial is a clear enunciation of facts and an even-handed application of the law to such facts. This case entailed a petition before it by one Amon Rana, who claimed to have been wrongfully denied a domicile certificate despite several generations of his family having lived in Shillong. In a previous proceeding in the same case, the high court had granted relief to Rana and ordered the state to give him a domicile certificate. That should have been the end of the matter. The subsequent proceedings, despite a clarification by the judge on his intentions, were entirely gratuitous, offering up a one-sided history lesson on Partition and a thinly-veiled attempt at recommending the establishment of a Hindu rashtra in the guise of a judicial order.

 

The Rafale judgment, on the other hand, is not an abdication of the judicial role as has been widely claimed. Despite calls for recall of the judgment owing to a purported factual inaccuracy, the judgment is testament to the fundamental proposition, forgotten in the heady, anything-goes world of public interest litigation, that there can be no judicial standard to determine appropriate pricing and mechanics of the offset policy in defence procurement. These are administrative decisions, which can only be interfered with on narrow grounds of irrationality, illegality or procedural impropriety. Further, setting up a court-administered probe on the mere suspicion of illegality cannot be an institutional panacea for all ills. The restraint demonstrated by the court is a manifestation of an alternative institutional vision, cognisant of the court’s own limitations in the separation of powers framework. In such a vision, judgments such as the one delivered in Shillong are entirely out of line for taking the court outside its zone of competence.

The Shillong judgment did not emanate from a vacuum — it is the product of a judicial culture where holding forth on extraneous matters not relevant to deciding a case are not only acceptable in order to explain the result reached but also celebrated. Take the Supreme Court’s order which declared the SalwaJudum, an armed, citizen vigilante group created by the Chhattisgarh government, as illegal. Although the judgment reached the correct conclusion, its rightness is irrelevant to my argument. What is noteworthy is that the court grounded its decision on its own understanding of the pitfalls of neoliberalism rather than any coherent understanding of the constitutional framework. Such a judgment sought legitimacy not from its reasoning but rather its ideological moorings leading to a particular result. Consequently, its basis for legitimacy was political, depending on whether one liked the result it reached and subscribed to the socialistic ideology espoused in the judgment.

On the contrary, the alternative vision of the Rafale judgment represents a traditionally intrinsic appeal to judicial legitimacy. In this understanding, a court is respected not because of the substantive outcome it reaches on a decision. Such legitimacy flows instead from a combination of belief in the moral uprightness of judges and the reasoning that they employ. The court speaks only to the extent necessary to decide the case without pontificating on extraneous issues of moment.

Further, it neither dramatically overturns a government decision nor does it resoundingly approve it — it simply refuses to be drawn into the political thicket in a matter where judicial standards cannot be usefully employed to address matters of governance.

It is crucial to note that such a view is not necessarily furthered by judicial restraint alone. Striking down land acquisition programmes of the Jawaharlal Nehru government by the Supreme Court, although interventionist, were products of the same view. Acquisitions were not halted because judges were pro-landowner, penning long passages on the benefits of capital accumulation; they were halted because the Constitution, as it then stood with a fundamental right to property, did not allow them. More recent judgments of the Supreme Court on transgender rights and the use of religion in election speeches are of the same ilk. Common to them all is a court which seeks legitimacy based on its reasoning and not its outcome.

In the age of social media and a global order that rests on simplistic binaries, such a quaint notion of intrinsic legitimacy may be ill-fitting. Many commentators, myself included on occasion, have been guilty of supporting or opposing Supreme Court judgments based on whether their results are palatable or not. Upholding Aadhaar, allowing women’s entry into Sabarimala, cancelling 2G licenses and denying the uneducated of Haryana the chance to contest local polls are all examples of judgments where the dominant public discourse has been based on results that the judgments reach and what they say rather than how they reason. This is not surprising — often an outcome that upholds probity, furthers rights and expands liberties seems to be the right one.

While there is, of course, a kernel of common sense to this, the Shillong judgment is the other side of the same coin of giving a free pass to poor reasoning combined with moral grandstanding. If results are going to be the bellwether to assess judgments, judges will try to work back from results that they feel, based on their own ideologies and intuitions, will be publicly supported. Given that each of the country’s 695 high court judges has the power of judicial review, and as the Shillong judgment demonstrates, this is simply too much of a risk to take.

The Rafale judgment compels us to recognise the Shillong judgment as wrong, not because it is a hagiographical paean to the prime minister. If that were the basis for wrongness, then it would depend on whether the reader shares the same view or not. This is a dangerous basis for judicial legitimacy. Instead, it is wrong, irrespective of the readers’ view, for a much more fundamental reason — because the order to consider granting automatic residence in India to non-Muslims from neighbouring countries is a political act, unsupported by any canon of law and clearly beyond the judicial function. For the judiciary to remain respected and above the hurly-burly of political legitimacy, it must keep in mind an adage that it often repeats in its judgments: eternal vigilance is the price of its own liberty.

(The Telegraph, Kolkata)


The Kashmir Monitor is the fastest growing newspaper as well as digitial platform covering news from all angles.

Advertisement
Loading...
Comments

Opinion

What do a Marxist and a maharaja have in common?

The Kashmir Monitor

Published

on

By Gopalkrishna Gandhi

Had they not died at 81 and 55 respectively, two Indians would have turned 100 this year. And their centenaries would have been celebrated with enthusiasm — but by very different sets of people. As indeed, they are being organized, now, in their memories. No two persons could have been more different from each other than the bare-headed, bush-shirted Marxist, Indrajit Gupta, and the be-turbaned, bejewelled maharaja, JayachamarajendraWodeyar of Mysore. They were as contrastive as a sickle and a sapphire or a hammer and a diamond-encrusted walking stick.

And we can be certain that they hardly knew each other. They are, in fact, unlikely to have ever met. They could have done so, ironically enough, in England.

 

Indrajitbabu completed his Tripos at King’s College, Cambridge under the spell of the Marxist powerhouse, Rajani Palme Dutt, just as the young maharaja-to-be arrived in Britain to meet and get to know artists and writers. But they missed each other by a few months. Their paths were not meant to intersect in India. Indrajitbabu was no habitué of concerts of classical music over which the maharaja presided with natural flair. Correspondingly, the maharaja was never a member of the Lok Sabha to which the communist leader was elected 11 times and, as the seniormost member of parliament, was its pro tem Speaker, time and again. If they did ever actually meet, by chance, anywhere at all, we can take it that they exchanged nothing more than formal pleasantries, lapsing thereafter into silence.

And yet, history, culture and politics link the two exact centenarians, uncannily, through three distinct pathways.

First, through Moscow. For Indrajitbabu, the capital of the Soviet Union was the secular equivalent of a Mecca. The influence of Marxism which started in London, through Palme Dutt, streamed into the inspiration that the Communist Party of India, founded in 1920, had received since the time of the Second World Congress of the Communist Third International held that very year. For Jayachamarajendra too, Moscow was a pole star. And that came about through an altogether different cosmology: Western classical music. The core of that inspiration was Moscow-born and then London-based composer, Nikolai Medtner (1880-1951). Medtner became, for the young royal, a soul-drenching inspiration, leading him to finance the recording of a large number of Medtner’s compositions and then, not stopping there, to go on to found a Medtner Society in London, in 1949. Medtner’s Third Piano Concerto, Google tells us, is dedicated to Jayachamarajendra.

Second, Quit India. For very different reasons and from very distinct backdrops, both ‘CPI’s — the Communist Party of India and the Chamber of Princes of India opposed the Gandhi-led Congress movement of 1942. Indrajitbabu, as a loyal and policy-bound member of the Communist Party, stood with his party which opposed Quit India as it was directed against Britain which, in alliance with the Soviet Union, was fighting Hitler. Jayachamarajendra, crowned Maharaja in 1940, as a loyal and protocol-bound ‘21-gun salute Prince’, opposed the same movement in his state, emphatically, with other princes, in total solidarity with the British raj in the war effort. The two CPIs found themselves, in 1942, in the same trench, albeit in different parts of it.

Third, in the wake of India’s Independence, both Indrajitbabu and Jayachamarajendra, for very different reasons, got ‘stamped out’ together. This was not about them as individuals but about the institutions to which they belonged. The government of independent India, but more specifically, the deputy prime minister and home minister, SardarVallabhbhai Patel, banned the Communist Party of India in the rage of indignation after the party’s call, in its Second Congress led by B.T. Ranadive, for an armed struggle. And the princes were, of course, famously and deftly, made functus officio by him, in the calm of self-confidence, through the integration of their territories into the Indian Union. To adapt ‘Jack and Jill’, sickle, hammer, sceptre and crown, all four, came tumbling down and were compliant made with the new democratic State.

Communists are ideologically rooted, shaped and committed. But they are not robots. Marx and Engels, Lenin and Trotsky, Mao Zedong and Zhou Enlai, were ideological kin, not identical twins. Josef Stalin can be left to describe himself. As were, in India, M.N. Roy and S.A. Dange, B.T. Ranadive and P. Sundarayya, E.M.S.

Namboodiripad and JyotiBasu, A.K. Gopalan and Harkishen Singh Surjeet, Lakshmi Sahgal and ArunaAsaf Ali. But who could fail to be struck by their individual personalities? All of them wrote on the same page but using type-fonts that were their very own.

Born on March 18, Indrajit Gupta (1919-2001) was ‘Sunny’ to his parents, ‘Comrade’ to his party, ‘Sir’ to deferential younger MPs across party divides and to admiring officials who worked for him when he was briefly but memorably India’s home minister. Choosing his responses to match the context, he was always himself. Brusque, even gruff with the facile, fatuous or facetious even from among his own circle, he was gentle and considerate towards all, including political adversaries. He could question his party line without flouting it. As India’s first and so far only communist home minister he opposed a move by the then governor of Uttar Pradesh to terminate the state’s BharatiyaJanata Party-led government, for the step was constitutionally open to question. And he told Opposition MPs criticizing him: “If I were in your place, I would have done the same.” In our times when unnamed donors can contribute to uncountable election expenses, Indrajit Gupta will be remembered for the key recommendation of a committee on election reforms that he chaired: “The names of donors should be invariably declared.” His sense of justice came from communism, his sense of fairness came from himself.

Except in 45 out of the world’s 195 countries, royals are an extinct or rapidly extinguishing order. They are a living archive, a breathing monument, half sepia, half colour, uncomfortable with the past, uneasy about the future. And their present? It is difficult. If a fool, a prince, be he an incumbent or ‘ex’, occasions no surprise. If a debauch, no shock. But should she or he have, as indeed so many royals have, like all humans, their own uniqueness, a spark of talent or the gift of a skill, a personality of their own, they cause some disbelief and get to be dismissed as the exception that only… and so on.

Born almost exactly a hundred years ago, on July 18, JayachamarajendraWodeyar (1919-1974), the 25th and last Maharaja of Mysore, was exceptional. His large and strong frame looked like granite sculpture. ‘Majestic’ as an adjective never had a more natural subject than this monumental king with a broader than usual forehead, a brocade turban completing the larger-than-life effect. He had exceptional attributes going for his mind, of which sound political sense ranked high. Having been loyal to the British raj, his signing of Mysore’s Instrument of Accession to independent India, was swift. Moving from being Maharaja to becoming Rajpramukh and then governor of the merged and reorganized Mysore state, Jayachamarajendra was also governor of the neighbouring non-royal state of Madras. But if this prince is remembered today it is for something that was his own personal achievement, his own individual attainment: his vaggeyakara’s passion for composing tunes and lyrics. Jayachamarajendra composed a significant number of songs in both the Carnatic and Hindustani traditions. But it is the fate of gifted princes to have their gifts seen as borrowings. The extraordinary novelist, R.K. Narayan, has this to say of Jayachamarajendra: “The so-called compositions of the Mysore Maharaja were actually composed by Vasudevachar. The Maharaja would call Vasudevachar and say I want these phrases from the Devi Ashtottram and the composer would do his bidding”.

Unconditional admirer as I am of Narayan as a writer and human being, I have to say that his assessment of the composer-King is certainly entertaining but unfair.

What do the synchronizing centenaries of an outstanding Indian Marxist and an exceptional Indian maharaja tell us today? This, that the individuality of its people, their contrasting affiliations, their passions are the soul of our republic, not monochromatic sameness trying to pass muster as unity. And that two seemingly unconnected Indians connect us today to that truth.

(The telegraph, kolkata)

Continue Reading

Opinion

Need to rework tactics on Pak, J&K

The Kashmir Monitor

Published

on

By K C Singh

Before heading to Washington to meet US President Donald Trump on July 22, Pakistan Prime Minister Imran Khan opened up his country’s airspace to international flights, after months of closure, and rearrested Hafiz Saeed, the mastermind behind terror group Lashkar-e-Tayyaba. President Trump promptly tweeted his happiness over the latter as that group has American blood on its hands, having undertaken the 26/11 attacks in Mumbai over a decade ago. Pakistan had earlier linked its airspace reopening to India removing its Air Force fighters from forward deployment. New Delhi had rejected that demand. Pakistan’s volte face may have been prompted by a desire to show the US its reasonableness in dealing with India. The same may be behind Pakistan’s accommodative approach to the Kartarpur Sahib Corridor as it dropped from its delegation controversial pro-Khalistan leader Gopal Singh Chawla. Indian sensitivity on this issue was manifest when an expatriate organisation, Sikhs For Justice (SFJ), pushing the Referendum 2020 over Khalistan, was banned.

If all this heralded a thawing of India-Pakistan relations, an old issue resurfaced to negate it. On July 18, Pakistan had its knuckles rapped by the International Court of Justice at The Hague in the Indian case filed over denial of consular access to KulbhushanJadhav, a former Indian naval officer, who was detained, tried and sentenced to death by a Pakistani military court for alleged espionage and terrorist activities. Rejecting the Pakistani arguments about lack of jurisdiction, the court held Pakistan in breach of its commitments under the Vienna Consular Convention of 1963. While Pakistan claimed victory as the court did not ask for the release and repatriation of Jadhav, the court sought a review of the judgment, immediate consular access for India and Jadhav being informed of his rights accordingly.

 

Pakistan agreed to grant the access, but many other issues linger. First, will Indian high commission officials be in physical proximity of the detainee and relatively free to converse without close monitoring? It is unlikely that the Pakistan Army will allow this, and may in fact repeat the theatre enacted when Jadhav’s mother and wife sat across a glass partition and conversed over the intercom and under intrusive oversight of security officials. Second, Pakistan has agreed to review the judgment as per their own prescribed procedures, which may entail its submission to the Chie of Army Staff or the President. Pakistan is unlikely to concede that due to the serious procedural flaw of denying the accused access to his country’s diplomatic mission and thus provision of proper legal assistance, the entire trial was vitiated. The military court had apparently relied on a “confession” obtained by coercive means and dubious circumstantial evidence.

Pakistan’s next steps in the Jadhav affair would thus condition the course of India-Pakistan relations. On the other hand, Pakistan will also expect that India should respond to positive steps taken by it, instead of sticking to the standard Indian line that Pakistani action against jihadi groups is tactical and reversible. Imran Khan’s US visit assumes importance in this regard as Pakistan would attempt to rebalance relations with Washington, which have during the Trump presidency slipped into open distrust. India has counted on this dissonance to pillory and pressure Pakistan. The White House statement on the eve of visit reads that the bilateral meeting is to “discuss a range of issues, including counter-terrorism, defence, energy, trade, with the goal of creating the conditions for a peaceful South Asia and an enduring partnership”. Clearly, the Afghan endgame, in which Pakistan has now been co-opted by China, Russia and the US to help, has altered US perceptions on Pakistan considerably. India on the other hand has been left on the sidelines of the Afghan game as President Trump wants to withdraw US troops after a face-saving peace pact with the American presidential election approaching in 2020. Meanwhile, India and the US are wrestling with trade issues that have episodically riled President Trump enough to fire angry tweets.

Thus, a bull-headed Pakistani policy may be losing its value as the world has other distractions and likely diminishing empathy for Indian complaints over Pakistani duplicity and sponsorship of terror. The seizure by Iran of a British oil tanker, in retaliation for an Iranian oil tanker carrying oil to Syria being seized by the British near Gibraltar, ups the ante in the Gulf. Britain has already warned its tankers from transiting the Straits of Hormuz. Operation Sentinel to create a multi-national escort force is still not off and running. Iran has dropped hints it may renegotiate the nuclear deal, but it would not discuss any rollback of its influence or even presence in West Asia. On July 24, British prime minister Theresa May will resign, and the process begin to install her successor – most likely to be Boris Johnson. On the same day Robert Mueller, the former FBI head who investigated the Russian collusion charges against the Trump electoral machine, will depose before the US Congress. Mr Mueller has said he would stick to explaining his report and not launch a witch-hunt against the incumbent US President, but it would distract an already election-oriented Mr Trump. Thus, a visible bonhomie between Mr Trump and Mr Khan can result in a more confident Pakistan willing to test the post-Balakot retaliatory doctrine of India.

Therefore, India would have to tailor its Pakistan policy accordingly. During Track II interactions with Pakistanis, some uncertainty is visible over the new Indian doctrine of pre-emptive or retaliatory military action if India is attacked by Pakistan-based terror groups known to be sponsored by the Pakistani military. But Pakistan is emerging from its isolation and economic mess. If the US opens the military assistance tap and restarts financial aid under the garb of compensation for counter-terrorism operations, then Pakistan may draw the wrong conclusion. It will continue to seek strategic depth in Afghanistan by helping instal a Taliban dispensation in Kabul and await Pakistan getting off the “grey list” of the Financial Action Task Force, which its ally China now chairs. After that, it will stoke as 2020 approaches both the “Khalistan” issue and the ire in the Kashmir Valley. A purely security-oriented approach to the Jammu and Kashmir problem will backfire eventually, much as normality may appear possible today as Pakistan has shut off the infiltration. The lesson for India is that the geo-strategic environment is not static. Nor can be one’s tactics to deal with it.

Continue Reading

Opinion

Waking up

The Kashmir Monitor

Published

on

By Nirvaan Nadeem

We all have dreams. Some of us let them slip away, others hold fast to them. My dream is to one day – after I’ve done all that I came to do in this world – live peacefully far away in the mountains, with a small family and lots of animals. To grow my own food, go on long walks and get water from the nearby stream. Communicate with the birds, talk with the sheep and laugh with the dogs. To explore myself, and the few people close to me, and love fully.

Life has a strange way of preventing you from achieving your inner most, deepest sought dreams and desires. You can fight it all you want, but all eventually fall into the cycle, the broken system that we all worship. We start off by working so we can pay for basic amenities. The scope of “basic amenities” then widens, and we need to work some more. In order to work some more we develop various personas. We cannot trust everyone, we cannot like everyone. We start viewing others as a means to an end, as “products” determined according to status, wealth and looks, not human beings. Gradually we forget ourselves and who we truly were once – perhaps as children.

 

It may have started as an interesting game, as a life experience or experiment, but as the years pass by our personas take over, and we actually start believing them. After all, somewhere, in the back of their minds, children know they are just playing a game, that it’s all make-believe. For us adults however, there’s no one to tell us otherwise. We believe in the absurdity of money, something which does not have any tangible existence. If not money we believe in “status”, i.e. reaching higher and higher positions of power, authority and influence. We believe in devoting our lives to buying Guccis and Versaces – mere utility products with the name of someone much more intelligent than us. We work all year so we can buy a new car which will get us to the same place in the same time, the latest mattress on which we sleep the same way, the sofa on which we’ll sit the same way, the TV on which we’ll watch the same programs, or the home which will house (hopefully) the same family.

Rather than cure the problem, we target the resultant symptoms. Every third person I come across is on anti-depressants. Every second person has sleeping problems. The rest go a week-long yoga class or “spiritual talk”, recharged for churning out the same monotonous existence for the rest of the year. Decade after decade, we go about the same meaningless existence, always trying to earn more money, get better jobs, relationships or luxuries. If we were immortal it would have all made sense. Sadly, we are not, and try as hard as we might, in the end we all see this make-believe to be just what it is: that is, make-believe.

We have the unfortunate tendency to sum up the mysterious and ineffable thing that is life into neat little boxes. Any one deviating from the norm is labeled as being mentally unstable. A friend of mine once believed in spirituality and disregarded money, and was labeled as “bipolar” by doctors. As soon as he started making money, he was re-diagnosed as “quite normal”! Another friend used to be motivated and would have done anything to make it big. She moved to the states, grew bored with the routine and decided to find some other meaning in life. She is now diagnosed as “clinically depressed”. Apparently, here, the amount of money you make is inversely proportional to the level of your “sanity”. Think outside the box but make money? You’re a genius! Think outside the box but broke? Straight to the mental asylum!
We look at the “madmen” on the streets, the “primitives” in the forests as flawed, cut off from real life. Could it be in fact the other way round? What could be crazier than spending your entire existence running after cars and TV’s, and then dying, without a shred of knowledge of the purpose of it all in the first place? Could it be the madmen and primitives are the ones on the real “true” path?

Many of the patients in mental asylums have very different views on life. For one, they are not competitive, malicious or manipulative. The reasons for their actions often are at times much more profound than the mundane ones for ours. They believe in destiny, fate, the miraculous, higher powers, magic. I often find myself thinking that if what we make of life is only dependent on our perceptions, it would indeed be much more fulfilling to live a “mad” person’s life. Many are harmless, and are only labeled as such and locked up because they threaten the very fabric of modern-day society. We feel threatened by them, fundamentally because the very things we hold on to for our dear lives, these they shun and laugh at. “Madmen” can see through our disguises, our premises, our personas and our elaborate make-believe. And yet modern society is committed to “diagnosing” and “fixing” anyone who thinks in a radically different way.

As for myself, I can only hope one day to live a free life. To one day be able to experience the true magic, beauty and wonder of life that I know is there, just drowned out in the everyday noise of my thoughts. To one day roam freely the open forests, swim with countless fish and ducks and turtles, fly amongst the soaring eagles and climb the tallest mountains. To love not only each fiber of your being but each blade of grass, each petal of a flower and bark of a tree.To smell the fresh breeze and feel the delicate dewdrops dropping on your skin. That indeed, must be the true dream of every man and woman. If only we would wake up.

“Yes: I am a dreamer. For a dreamer is one who can only find his way by moonlight, and his punishment is that he sees the dawn before the rest of the world.”

(Oscar Wilde)

Continue Reading
Advertisement

Subscribe to The Kashmir Monitor via Email

Enter your email address to subscribe to The Kashmir Monitor and receive notifications of new stories by email.

Join 1,011,433 other subscribers

Advertisement

Archives

July 2019
M T W T F S S
« Jun    
1234567
891011121314
15161718192021
22232425262728
293031  
Advertisement