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AG Wanted Judges To Scream No! Instead Got Their Nod! – By Mukesh Jhangiani

                                                                                                                                                  May 12, 2004

AG Wanted Judges To Scream No! Instead, Got Their Nod!

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – A government lawyer, who persuaded some of India’s seniormost judges during emergency that they had no business to intervene even if policemen took innocent lives, suffered ”profound anguish,” a contemporary jurist has reported.

English: Picture Of Justice V.R.Krishna Iyer

Justice V R Krishna Iyer (Photo: Wikipedia)

According to former Supreme Court Judge V R Krishna Iyer, Attorney General Niren De had urged the ”extreme position” hoping to shock and rouse the judges ”to rage against that violent view.”
Four of the five Judges heard but ”did not furiously resist. I felt sad as a jurist but found success as Counsel,” was how De put it, Justice Iyer recalls in a new book titled ‘Leaves from My Personal Life.’
The four: then Chief Justice A N Ray and Justices M H Beg, Y V Chandrachud and P N Bhagwati. Justice Hans Raj Khanna was the sole dissenter and paid by being superseded by his junior, Justice Beg.
Experts say the episode raises questions about the country’s judicial system and establishment, and the real or potential havoc to which the society may be exposed in absence of accountability in administration, adjudication and courts.
As Justice Iyer sees it, the April 1976 Judgement ranks ”in disgrace with” an American Supreme Court pronouncement that Negroes were slaves to be owned, not humans who could own.
The so-called habeas corpus case– Additional District Magistrate, Jabalpur v Shivakant Shukla– arose out of appeals from eleven high courts which had held that, notwithstanding a presidential order under Article 359 of the constitution suspending the right to enforce fundamental rights, the higher courts could, in appropriate cases, entertain applications for habeas corpus.
In his argument, De focused on ‘liberty’ as provided in the Constitution, contending that the right to move a court having been  suspended, a detainee had no locus standi and a writ petition would necessarily have to be dismissed.
Justice Khanna pointedly demanded: ”Life is also mentioned in Article 21 and would Government argument extend to it also?” De replied, ‘Even if life was taken away illegally, courts are helpless.’
Justice Iyer says: ”This argument, by democratic standards, was unconscionably outrageous. Yes, but the judges were not outraged, save Khanna, the great dissenter. They merely listened, (unperturbed by) the prospect of monstrous mayhem on human rights and fundamental freedoms; and eventually upheld this shocking proposition in pronouncements at learned length.”
”Alas, the darkest hour of forensic downfall, except for the historic dissent of Justice Khanna, was when this disastrous jurisprudence marred our law reports,” writes Justice Iyer.
The judgement delivered on 28th April, 1976 is dubbed by the People’s Union for Civil Liberties ”the biggest blow to the Supreme Court– by the Supreme Court.”
The Supreme Court held that, as long as the presidential order was in force, the individual had no remedy against detention, even in cases where he could show that the detention was vitiated by mala fides or was ultra vires of the statute.
Although the judgement has not been overruled, its effect has been reduced substantially by a 1978 amendment to the constitution which made the rights to life and personal liberty– Article 21– non-suspendable during emergencies.

Hans Raj Khanna

Justice Hans Raj Khanna (Photo: Wikipedia)

Justice Iyer’s narrative underscores the importance of Judges never letting a lawyer or a litigant– no matter how mighty– sway them from the rule of law.
De’s confession came at a chance encounter shortly after the apex court bench held that under Emergency no person has any locus to move any writ petition for habeas corpus to challenge detention.
At a dinner attended by judges, writes Justice Iyer, De ”came up to me– I was sitting in a corner and sat to tell me something deeply sombre and pathetically confidential which he wanted to unburden and reveal to me to relieve his conscience.
”What was it about? You are a socially sensitive judge and can appreciate my profound anguish, he said. ‘What was the agony in my soul, which gave me sleepless nights? It was about my defense of the Emergency.
”I did not want a ghastly law which would banish judicial jurisdiction in the face of subjective executive violence. I thought of the strategy of shocking the judges into sanity, into rousing their revulsion, into reading down the deadly law, into claiming space for judicial invigilation as haven of human rights.
”So I urged the damned extreme position hoping that humanist jurisprudence would be the indignant robed reaction.
”So I pressed, against my heart but with the expectation of awakening the aghast protest of the Bench. If the police abused power the court would not sit and watch with cauterised conscience but would act in fiat justicia spirit– so, I thought, would be their response.
”I wanted the robes to rage against that violent view I propounded and come down on such Emergency inhumanity. But, to my surprise, barring Khanna, the other justices heard but did not furiously resist. I felt sad as a jurist but found success as Counsel.
”Sir, frankly I passed through mental stress which I now confide in you because your conscience would have rebelled.”
”The narration ended, the dinner was over. And Niren De passed away not long after.”
Additional Solicitor-General Fali Sam Nariman had resigned from his post in protest a day after Emergency was declared on June 25, 1975.
Justice Iyer records: ”Nariman, the admirable and conscionable advocate resigned his post as Solicitor General. But I believed the Attorney General’s confessional version.
”Then why did he not give up his office? Good men, gripped by grave crises, sometimes cave in, maybe,” offers Justice Iyer.

”Niren De was a serious, sound advocate who argued later for democracy and against gross misuse of Presidential Power of supersession of State autonomy, but failed.
”Anyway, the ADM Jabbalpur ruling ranks in disgrace with the Dred Scott case where the American Supreme Court pronounced that Negroes were slaves to be owned, not humans who could own.”
Justice Iyer cited the dissenting judgement of Justice James Richard Atkin on deciding between the citizens’ rights to know the basis of their detention in war time and the rights of the executive government in times of emergency to deprive citizens of their liberty without being held to account in the courts.
Justice Iyer says Justice Atkin ”has the last word in Liversidge v Sir John Anderson.”
Justice Atkin’s words: ”I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive.
”Their function is to give words their natural meaning, not, perhaps, in war time leaning towards liberty, but following the dictum…: “In a case in which the liberty of the subject is concerned, we cannot go beyond the natural construction of the statute.”
”In this country (England), amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.
”It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.
”In this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I,” a 17th century British monarch regarded by many members in Parliament as a despot.
Justice Iyer warns: ”Our freedoms are in peril if our courts suffer (from) pusillanimity or arrogance.”
UNI MJ MIR RAI1030

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Scholar’s Challenge To Apex Court Globalisation ! – By Mukesh Jhangiani

                                                                                                                        August 11, 2006

   

Dr. Upendra Baxi, at NUALS

Prof Upendra Baxi (Photo: Wikipedia)

Scholar’s Challenge To Apex Court Globalisation !

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – Carnage witness Zahira Sheikh’s imprisonment reflects ”dual… standards” of access to justice manifest since globalisation, according to an Indian law scholar.

The view was voiced by Prof Upendra Baxi last weekend in a conference where participants were invited by Prime Minister Manmohan Singh to critically examine issues of the day.

Speaking on Access to Justice in a Globalised Economy, Prof Baxi cited half a dozen judicial orders he said erected a ”wall of difference” between ”globalised and de-globalised Indian citizens”.

A former Delhi University Vice Chancellor, Prof Baxi has served as Professor of Law at Delhi University as well as Warwick University in England and authored a large number of professional books and other publications.

The SC orders covered India’s accession to the World Trade Organisation, the $470 million Bhopal Gas disaster settlement, rejection of temps’ bid to regularise jobs, Narmada dam construction, demolitions and Best Bakery case.

Prof Baxi said the ”structural adjustment” of judicial role began with the apex court’s very stance on world trade conditionalities.

It was ”comprehensively urged” before the Court that India’s accession to the WTO ”violated not just Part 111 provisions but also the basic structure of the Constitution.

”The Court, overall, asked the petitioners to return to its powers as and when any such deleterious impact became more manifest!”

It ”did not even seek to match the blood-group of the WTO agreements, especially the TRIPS– Trade-Related Aspects of Intellectual Property Rights– with Parts 111 and IV of the Constitution.

”May I suggest that we read this decisional stance as the first step towards the structural adjustment of judicial review power, process, and activism?”

”A second momentous development towards the structural adjustment of judicial role and activism,” he said, occurred ”through the entirely unconscionable and unconstitutional judicial orders decreeing the infamous Bhopal settlement”– or what he called an instance of victims ”re-victimised”.

He said the Court not merely reduced the compensable amount from the ”Indian government computed US $3 billion to $470” million but also granted the Union Carbide full immunity from criminal proceedings.

It surrogated ”the Indian government as a fully-fledged clone of that multinational, and all its world-wide affine, in regard to all civil action, Indian and world-wide!

”Twenty-one years since, and I cannot speak of this without a lump in my heart, the catastroph(e) victims remain staggeringly re-victimised.”

He said a third story concerned the ”determined reversal of the proud labour jurisprudence of the Supreme Court itself.

”The juristic and juridical labours of” Justices VR Krishna Iyer, D A Desai, O Chinnappa Reddy, M P Thakkar, K Subba Rao, P B Gajendragadkar, Mohammed Hidyatuallah ”are now reversed by many a hurried stroke of insensitive judicial pen!

”A 2006 decision of the Supreme Court even goes so far as to ‘overrule’ without specific naming all prior judicial decisions.

”This judicial adventurism, there is no other appropriate way of naming this after all, remains an entirely unaccountable and rather unprecedented judicial technique in the annals of the Commonwealth judiciary!

”The learned Justice who writes the principal opinion even goes so far as to suggest that his predecessors laboured under a misimpression that ours was a socialist constitution!

”This eminent judge compelled a momentous jurisprudential anxiety for me; I scoured the histories of recent amendments to find whether some recent constitutional amendments had after all deleted this 42nd Amendment insertion to the Preamble to the Constitution!

”Allow me to bring to you the good news that this preambulatory recital has survived the ravages of contemporary Indian globalisation! The bad news is that now for the Supreme Court of India this makes not a tattle of difference!

”I am not saying at all the later Justices may not feel free to dissent from their predecessors. Nor am I saying that the predecessors may claim any prophetic wisdom over the future of constitutional development.

”However, I do wish to suggest with the fullest constitutional sincerity that in doing so they remain fully accountable at the bar of public reason. And in this they seem now altogether to collectively fail.”

Prof Baxi said a fourth instance of structural adjustment of judicial power was furnished by the Supreme Court’s ”meandering jurisprudence” concerning the Narmada Dam construction.

”At one decisional moment, we are told that the height of the dam may not be raised without the most solicitous regard for the human rights, and human futures, of the ousted project affected peoples.

”At another decisional moment stands enacted the unconstitutional pari passu principle under whose auspices submergence may actually occur with some indeterminate regard for relief, rehabilitation, and resettlement.

”At a third moment, the affected peoples stand somehow assured of that the Court is not powerless to render justice to the adversely affected peoples even as submergence occurs.

”Who knows what a fourth moment may after all turn out to be? The present writing on the judicial wall fully suggests the possibility that the Court may terminally declare that the tasks of relief, resettlement, and rehabilitations stand almost fully and magically accomplished!”

Prof Baxi said,”A fifth horrid story of the structurally adjusted judicial role and ‘responsibility’ stands now furnished by the judicially mandated/mediated sanction for the urban demolition drives that cruelly impose themselves on the bloodied bodies of the urban impoverished.

”Some recent judicial performances go so far as to fully suggest a total reversal of human rights to dignity and livelihood, which the Court itself since the Eighties indeed not too long ago so painstaking evolved.

”The enforced evacuees stand denied all rights of constitutional due process, including access to their erstwhile meagre belongings.

”The bulldozers remove the last sight of their existence as documented citizens; all evidence of title and occupation– including the only ‘passport’ they posses by way of pattas, their inchoate ‘title’ deeds, and prominently their ration cards) stand maliciously and wantonly destroyed.

”Not too long ago during the 1975-76 imposition of the internal Emergency, such happenings were poignantly described as emergency excesses.

”Today, these somehow constitute the badges of good governance!”

Prof Baxi said the sixth instance concerned ”the harsh way in which the Indian Supreme Court dealt with the ‘contempt’ committed by Zahira Sheikh.”

Here was ”an eye-witness to the destruction by arson of her own kin… by the Hindutva mobs,” treated ”as news/views ‘commodity’ in hyperglobalising Indian mass media… as a resource appropriated by local politicians and by some activists alike” and as a target of ”human rights and social movement activism.”

Prof Baxi saw Ms Sheikh as ”overall… a deeply traumatised victim of organised political catastrophe” compelled by the force of circumstance to make contradictory statements.

That is what finally decreed ”her fate as a contumacious Indian citizen worthy only of the most severe punishment in the annals of contempt jurisprudence.”

Prof Baxi noted how the same Court had remained ”largely lenient in its regard for Kalyan Singh for an objectively presented far worse egregious contumacious conduct.

”It also remained lenient for Aurundhati Roy, an NBA– Narmada Bachao Andolan– activist marshalling the power of International Union of Journalists, and Shiv Shankar, a former Union Law Minister, for a while marshalling the power of judicial elevation.

”Both of these remained far more contumacious; yet they were thought eligible for the otherwise rather relaxed standards of contempt jurisprudence. Yet, the Supreme Court leaned heavily on Zahira.

”How may we understand this judicial asymmetry in our, or indeed in any access talk save by the fact that that high political status was simply not available to Zahira?”

”To depict the scenario thus is not to present any mean-mouthed mode of attributing any class differential in access to justice.

”I only seek to service with the highest order of responsibility in discharging my citizen responsibility acting under my Part IV-A fundamental duties of Indian citizens, by highlighting differential practices of access to justice under the Indian Constitution.

”In the same spirit, some of us have now approached the President of India for pardoning Zahira; we know that this may not happen, although in a proud 50+year Indian democratic development this, it ought to.

”But this much remains clear: accesses to justice claims remain differentially distributed by the apex Court. Its ire at ‘contumacious’ conduct by public citizens is increasingly met by different standards for some de-globalised compatriots.

”The wall of difference thus erected between globalised and de-globalised Indian citizens seems to enact some contradictory, dual, even multiple, standards of differential access to justice.”

He said ”I sincerely hope… I (am) wrong in saying this. At the same moment, surely, all this should give us some pause in our parrot-like or His Globalising Master’s voice-type talk concerning ‘access to justice’.”

UNI MJ RP DS1110

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Judges Urged To Help Counter Vote Bank Casteism – By Mukesh Jhangiani

Different Castes and reservations available in...

Different Castes and reservations available in India. (Photo: Wikipedia)

                                                                                                                       July 6, 2003

Judges Urged To Help Counter Vote Bank Casteism

By Mukesh Jhangiani
United News of India
New Delhi (UNI) – Indian Judges have been urged to help counter the caste system which lost economic bearings long ago but is ”fostered and sustained socially” by ”vested interests for vote bank politics.”

The suggestion came from a fellow Judge of the Allahabad High Court in an academic paper arguing that the Gujarat and other killings in the name of religion and caste belie hopes that a modern constitution by itself would make a society modern.

Justice Markandey Katju’s paper titled ‘Access to Justice With Special Reference To Socio-Economic Rights’ was published as part of the proceedings of a seminar held recently in the Capital.
Although long outlawed, caste discrimination largely affecting 240 million of India’s dalits and tribals has far from disappeared.
Published accounts say two Dalits are murdered and three Dalit women raped every day across India. Activists say that is an underestimate.
”The belief that by merely importing and transplanting a modern Constitution from above will result in our society quickly becoming modern has proved to be mistaken,” Justice Katju wrote.
He cited as proof ”what… happened in Gujarat” and the barbaric ”honour killings” of young men and women aspiring to marry out of caste in Meerut and Muzaffarnagar in Western Uttar Pradesh.
”People have killed each other in the name of religion in the year 2002– as they did at the time of Partition in 1947– although the Constitution has been in force since 1950.
”Similarly, the ‘honour’ killing of young couples of different castes by their kith and kin shows how casteist we still are,” the paper said.
This, it pointed out, was notwithstanding the fact that things had ”totally changed” insofar as caste was no longer a decisive factor in how a person makes a living.
”The son of a badhai (carpenter) now does not become badhai, he comes to the city and becomes an electrician or motor mechanic, or having acquired education, he becomes a clerk, or a lawyer, engineer, doctor.”
Division of labour now ”has to be on the basis of technical skills. A factory recognises no caste or religion but only efficient production based on technology.”
The judge saw similarity between the Indian caste system and the division of labour in feudal Europe.
”The same thing happened in Europe, too, up to the feudal age. Even today many Englishmen have surnames like Taylor, Smith, Carpenter, Potter, Gardener, Barber… which indicates that their forefathers belonged to these professions.”
Noting that in India, too, individuals were no longer confined to pursuing ancestral vocations, Justice Katju said ”this has largely destroyed the economic foundation of the caste system.”
But he warned that ”the caste system is being deliberately fostered and sustained socially by certain vested interests for vote bank politics.”
Experts say caste polarisation is more pronounced around election time.
A government-appointed commission headed by former Chief Justice M N Venkatachaliah recommended mandatory punishment for anyone — including candidates — fomenting caste or communal hatred during elections.
”Any election campaigning on the basis of caste or religion and any attempt to spread caste and communal hatred during elections should be punishable with mandatory imprisonment,” it said.
But experts and activists say record of such prosecution even under existing laws is thin.
National Minorities Commission Chairman Tarlochan Singh placed the blame on political parties which even pick candidates on such considerations.
National Commission for Scheduled Castes and Scheduled Tribes Chairman Bizay Sonkar Shastri said casteism was not ‘officially’ a factor in such considerations, but its role needed to be determined.
The trouble in India, critics say, is that laws and the legal system are not effective.
Justice Katju said underdeveloped countries such as India were going through a transitional stage– from feudal, agricultural society to a modern, industrial society, which ”is a very painful and agonising period.”
England went through such transition during the 16th-18th centuries and France during the 18th-19th centuries– periods ”full of turbulence, turmoil, revolutions, intellectual ferment. Only after going through this fire… modern society emerged in Europe.
”India is presently going through this fire… Our national aim must therefore be to get over this transitional period as quickly as possible, reducing the agony, which to some extent is inevitable in this period.
It said justice in such context meant creating a social order in which every human gets a decent life– a process in which the judiciary could play a supportive role by upholding the Constitution in its true spirit, giving it teeth and content, rather than limiting itself to deciding disputes.
It stressed a ”powerful cultural struggle” to combat feudal and backward ideas such as casteism and communalism. ”The Indian judiciary, too, must contribute to the progress of the nation and to our goal of creating India as a strong, modern, Industrial State.
It asked the judiciary to strike backward, feudal laws, customs and practices violative of Article 14 — Equality Before Law — and Article 21 — Life and Personal Liberty and uphold political rights and civil liberties inscribed in Part III of the Constitution.
It also suggested encouraging business and industry — rapid industrialisation can create jobs and wealth for people — and ensuring that the State looks after the people’s welfare in providing food, water and employment.
Justice Katju said freedoms of speech, expression, travel and trade guaranteed by the Constitution were meaningless for someone hungry or unemployed or with no money for those pursuits.
He recalled sarcasm levelled in the 19th century by an English Judge at his country’s judicial system. In Justice Darling’s words: ”The law-courts of England are open to all men like the doors of the Ritz Hotel.”
UNI MJ MM AKK1034

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