ARTICLES FROM THE SUNDAY GUARDIAN
The Middle East cauldron continues to boil, with copious bloodshed and unprecedented barbarism of the ISIS in its spheres of occupation or influence. The Great Game is being revisited, and in this context, I am particularly concerned about another spot that can become a nuclear flashpoint and spin completely out of control. The latest confabulations between Iran and the US are deeply disturbing. I fully sympathise with the Prime Minister of Israel, Benjamin Netanyahu and the wisdom of what he told the American leaders, both Republicans and Democrats in his address to the US Congress on 9 March: "one potential deal being discussed between Iran and world powers would pave the way for Iran to obtain nuclear weapons, and would destabilise not just the Middle East, but the entire world." The Israeli Prime Minister categorically warned the US President about the extreme danger of his move to revoke the sanctions imposed against Iran that prevent it from becoming a full-fledged nuclear power.
Yes, Netanyahu's speech does make the world wonder how and why the US is turning lenient towards a militant Islamic regime that has labelled it as the "Great Satan" and chants "Death to America". And clearly, if the US is fishing in troubled waters of the Iran-ISIS competition for militant Islamic domination, where no other religion or creed has a right to live, where women have no rights, then yes, certainly the world and Israel should be extremely worried. And judging from the fate of all Islamic nations that the US has tried to "help", the most worried should be the Iranians themselves.
Netanyahu makes an extremely basic, impassioned plea that cannot be faulted by anyone, that Iran must do three things: Stop aggression against its neighbours; stop supporting terrorism around the world; stop threatening "to annihilate my country — Israel, the one and only Jewish state ... and if Iran changes its behaviour, the restrictions would be lifted. If Iran doesn't change its behaviour, the restrictions should not be lifted."
I am firmly of the opinion that India must support the Israeli Prime Minister in the demands that he has made.
Even when I was young, my familiarity with the tragic story of the Jews of the world since ancient times had made me their friend and admirer. I have myself been a refugee after I was compelled to migrate from Sind, where I practised as a lawyer for nearly six years, and start an unenviable existence in a refugee camp in Bombay. My sympathy for the Jews of the world increased immensely after that experience, and I always believed that only non-human monsters could bear ill-will towards the Jews after the cruellest holocaust perpetrated by Hitler.
In 1962, Israel did for India what no other nation other than the United States did for it. The Chinese Premier Chou En Lai had already convinced Prime Minister Jawaharlal Nehru that he was the undisputed leader of the non-aligned world. In his utter complacency, Nehru completely shut his eyes to the aggressive plans of the Chinese, and the nation paid a heavy price for his folly, suffering the most humiliating defeat in independent India's history. I don't know if the young people of India are aware that the only two nations that came to our rescue during that time were the US and Israel, for which every Indian should be grateful.
I am extremely happy that the cooperation of our two governments, India and Israel, is increasing with every passing day, for building avenues for security and development. But while I am a great friend of Israel, I am also a genuine supporter of all legitimate demands of the Palestinians. I believe that all the war and violence that has taken place involving Israel and its neighbours, causing enormous destruction and misery, has been totally senseless and wholly avoidable.
But it remains a civilisational travesty that in this day and age, the Arabs and Iranians still persist with their ambition to wipe Israel off the map of the world. I have ceaselessly preached a prescription, that all states surrounding Israel must accord Israel recognition, both de facto and de jure. All these states must be bound by treaties of perpetual peace and economic cooperation. The international borders of Israel must provide it complete security to the satisfaction of the Security Council, and the United Nations must guarantee the immunity of Israel from any external aggression. Israel will necessarily withdraw from almost all the areas that have come into its possession as a result of the aggressors' defeat in the wars started to wipe out Israel from the world's map. If these conditions are fulfilled, I have no doubt that Israel in response will reconcile to the sharing of Jerusalem, perhaps on the lines of the United Nations Resolution of 1948. It has pained me that in pursuit of vote bank politics, India has not used this prescription.
I always thought that it was only the Wahhabis who are possessed by a destructive enmity against the Jewish state. It pained me greatly when I found that ultra-conservative Mahmoud Ahmadinejad, after becoming President of Iran, instead of dealing with the great abuse of human rights and rights of women, left no one in doubt that he was worse than the PLO with his ambition that Israel must no longer exist. Of course after a short while, he became somewhat kinder and suggested that Israel should be shifted to Alaska, Siberia or some other country in Europe.
I realise that the ruling mullahs of Iran and the Wahhabis are in tough competition for establishing a more militant version of Islam. Under the circumstances, it is absolutely legitimate for Israel to prevent Iran from becoming a nuclear power. Israel understands perfectly that through Obama's proposed action, "the foremost sponsor of global terrorism could be weeks away from having enough enriched uranium for an entire arsenal of nuclear weapons and this with full international legitimacy... that this deal has two major concessions: one, leaving Iran with a vast nuclear program and two, lifting the restrictions on that program in about a decade. That's why this deal is so bad. It doesn't block Iran's path to the bomb; it paves Iran's path to the bomb."
Israel's objection that Iran cannot be trusted with enriched uranium is genuine. I believe that the Republican leaders are absolutely on the right track by opposing President Obama's moves, and that without congressional approval, the proposed deal would be merely an agreement with President Barack Obama, which could be reversed by his successor. John Bolton, a former US Permanent Representative to the United Nations, is right in calling Obama's action "the fatal myth of appeasement".
Our new dispensation must not do anything which endangers the very existence of the gallant state of Israel, or betray it in any form. We must not forget their support to us during one of our most difficult times after Independence.
Before I close, I must make a short reference to the release of Masarat Alam, something that has generated a good deal of misplaced hype among analysts, commentators and news channels against the recently installed government of Jammu and Kashmir, accusing it of being anti national and trifling with India's security. I would like my readers to differentiate between the "principle" of preventive detention in a democracy and the populism of it. Alam has been in Baramulla jail since 2010 after he was arrested for organising anti-India protests across the Kashmir valley. However, no criminal charges have been filed against him despite his detention under PSA for the last over four years, and despite the fact that he is accused of leading several anti-India agitations. It is reported that BJP president Amit Shah after a meeting with the J&K Deputy Chief Minister, Nirmal Singh and other BJP legislators, pretty much issued a threat of quitting the government if the Chief Minister continues releasing prisoners detained under the Public Safety Act.
I would like to remind the BJP that the law of preventive detention should never be used except in time of war and nobody should be jailed merely at the whim of the executive. I have consistently stood against the detention of any person in custody without a regular open trial and conviction by the appropriate court. The BJP could not have forgotten that all its senior leaders were jailed during Indira Gandhi's infamous emergency under the Preventive Detention Act, something I, as chairman of the Bar Council of India at the time, criticised continuously as a fraud on the Constitution of India. In fact, there was a warrant out for my arrest too. If Government of India even today has evidence to get Masarat Alam convicted in a regular trial, then the Central government should undertake such prosecution.
The people are also entitled to know the great games going on — whether under the J&K Rules of Business, release of political prisoners requires a Cabinet decision or merely the whim of a single minister or a bureaucrat; what role was played by the BJP ministers of the J&K government in this episode until they met Amit Shah, and whether it is true, as suggested by responsible newspapers that the BJP ministers protested only after meeting the party president, and that Government of India had itself arrived at the same decision for release.
A series of churns have been going on in our country for some time now — some quite visible, some not. Time alone will tell if the 2014 election will mark India's political watershed point of the century, when the Congress was decimated into irrelevance, and the BJP was elected to form the government with an independent majority under Narendra Modi. The world knows that the votes were for Narendra Modi, and the wave was the Modi wave. Sure, the Congress has every opportunity to resurrect itself again. But this can only happen if it frees itself from the vice-like grip of the Gandhi-Maino family, something that appears unlikely in the immediate future. Meanwhile, the Congress is furiously working backwards, for saving not democracy, but dynasty.
But, alas, the dynasty has fallen into crisis and Rahul Gandhi has done it again. He absconded from the scene, just a day before the Parliament session, and aborted the grand plans afoot to showcase him as the supreme leader of the Congress, leaving it even more rudderless and senile. Personally, I can only sympathise with the poor boy's predicament, suffering from an understandable case of nerves and stage fright. His string of failures, his dismal public performance and the ridicule showered upon him during the last Parliament elections must surely rankle within him, and he clearly would not want a repeat of it. But what is inexplicable is the complete lack of realisation by his mother and her sycophants that he just doesn't have the capacity or inclination to inherit the throne of Hindustan, which the Nehru-Gandhi-Maino family believe is their birthright. The decimated Congress performing its last rites, is in a state of terrific confusion and demoralisation. There appear to be signs of acute internal dissension, and desertions have started; the heir has bolted and the unwell mother does not have the will to overcome her "blind spot", or show any wisdom to revitalise her party through a non-famiglia leader. And within her family, she has no one to turn to, except her daughter and tainted son-in-law. Anyhow, this latest act of disappearance by the habitual absconder has triggered rings of speculation about intra-party divisions — mom's Old Guard versus son's Young Turks, and has brought in a great deal of new political entertainment. Some say that Rahul Gandhi is having a marvellous time somewhere in the UAE, where nobody is bothered about whoever he might be. Let him remain there in the best company.
Then we have a reverse story of a mentor who did not want his "mentee" to enter politics, but he did so with cold calculation and became Chief Minister of Delhi — Anna Hazare and Arvind Kejriwal. Clearly, Kejriwal, now Chief Minister of Delhi still finds it hard to resist his obsession with the dharma of dharna. But I do hope his landslide victory has set the BJP introspecting, and we hope the nation can see the result of the introspection soon.
The speed of the digital age seems to have spared nothing — not even development of dissension and power struggle within the fledgling Aam Admi Party, that came to power less than a month ago. Their power wars are now out in the open. The political atmospherics of the AAP seem to be getting increasingly similar to the present state of the Congress — power wars and intrigues, corruption accusations, dictatorship and concentration of power, et al. And finally, Kejriwal did a Rahul on his own party and governance, and fled the power wars for a naturopathy sabbatical in Bangalore.
The Kashmir developments are indeed historic, and a great step forward on the subcontinent. Democracy has proved victorious, and both the PDP and the BJP have compromised safely and effectively, supported by the moderate elements of the Hurriyat, and have defeated the evil designs of our neighbour. Mufti Mohammad's views on Afzal Guru's remains are indeed an irritant. But the furore over his statement giving some credit to Pakistan, the separatist leaders and militants for the smooth conduct of Assembly elections in Kashmir is, putting it mildly, churlish in the extreme, if not plainly ridiculous. Every right thinking person must first put the most charitable construction to what is said and if some possible construction makes it harmful, then politely draw the speaker's attention to the possibility of misunderstanding — it might just call for a clarification and not repudiation. Speaking for myself, I believe Mufti's statement is wise, and he deserves full marks for it. It praises Pakistan for desisting from vitiating our elections, and even if praise is not justified, it surely promotes a better comfort level for the dialogue that we both want.
But I do find some fault with Mufti Saheb for calling the moderate Hurriyat leaders separatists. They no longer are. After my respected friend Muzaffar Baig presented the PDP document entitled "Self Rule" at a public meeting in Delhi, which was also attended by Hurriyat leaders, I have never considered PDP or the moderate Hurriyat leaders as "separatists". My Kashmir Committee confabulations with the Hurriyat leaders and our agreement, publicly announced more than 10 years ago, is that all parties must rise above their traditional positions, abandon extreme stands and show the necessary flexibility and realism to achieve an acceptable, honourable and durable solution. Tinkering with Article 370 on one hand, and secession on the other, have been erased from the narrative. I am sure that Prime Minister Modi did recently silence some foolish noises about repeal of Article 370, and I have publicly advised Mufti Saheb to invite Professor Ghani and Mirwaiz Umar Farooq to join the Cabinet. Of course, my ailing friend Syed Ali Shah Gilani still speaks of self-determination, something that went into the archives of history long ago. Our bond with Kashmir is now unbreakable. Just to revive people's memory, I quote below the five salient features of the agreement reached between the Kashmir Committee and the Hurriyat in 2002, and declared publicly to the people of India: "1. Terrorism and violence are taboo. 2. A lasting and honourable peaceful resolution must and can be found. 3. The resolution must be acceptable to all political elements and regions of the state. 4. Extremist positions held by all for the last five decades have to be and will be abandoned. 5. Kashmiri Pandits will be rehabilitated with honour and rights of equality."
I think Kashmir is finally on the right track.
Speaking of the Budget presented on 28 March by the Finance Minister, I find it a rather enigmatic document that conceals more than it reveals. Though it is supposed to be the springboard for economic stimulus and investment, as of now, it appears more of an aspirational document for which a roadmap is still under preparation, especially for the Prime Minister's priority areas, such as Make in India, Swachh Bharat, skill development, agriculture revival. There is a promise of increasing state share of Central taxes from 32%-42%, reducing the fiscal deficit from 3.8 to 3%, and assumes a GDP growth of 8-8.5%, as against 7.4% this year. The higher GDP growth rests on further assumptions of infrastructure creation, land acquisition, and various clearances, green and brown, at the state and Central levels, inflation control, and a tax revenue growth of 15.8% as against a growth of 9.9% in the current year. Should these assumptions fail, or the revenue deficit widen, budgetary arithmetic will be in deep trouble. While there is more detail available in the budget document regarding infrastructure creation, there seems to be an absence of modalities regarding human resources development, especially in the face of changed cost sharing patterns expected between Centre and states in the health, food subsidy, women and child development and education sectors. The capacity and commitment of the states to utilise their additional share of taxes for public good will be put to test.
Regarding the question of black money, it is not clear if repatriated black money is factored in any of the miscellaneous receipt heads. Here's what the Finance Minister says: "Recognising the limitations under the existing legislation, we have taken a considered decision to enact a comprehensive new law on black money to specifically deal with such money stashed away abroad. To this end, I propose to introduce a Bill in the current Session of the Parliament."
Judging from the letter and tenor of his speech, it appears to me that the legislation he has in mind has every danger of being in violation of Article 20 (1) of our Constitution, that "No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence."
I have on 29-11-14 sent a draft legislation for recovery of black money to the Prime Minister that conforms to the constitutional requirements of Article 20 (1), and I request the Finance Minister to act in accordance with it. I'm sure he would be grateful for this legal help from me.
Certainly legislation for black money repatriation that is ultra vires of the Constitution, and therefore null and void needs to be avoided by a government headed by no less a leader than Narendra Modi.
The President's address to the joint meeting of both Houses of Parliament is a medium through which the government communicates not only with the MPs present, but with the entire nation. The President's speech must therefore be couched in language which is unambiguous and easily understood. It is a well set Parliamentary practice that the government of the day provides the content of the communication to the President, the constitutional head of the elected government, through whom it is communicated to the people.
I'm not sure what sort of a draft was sent to the President's office, and while I mean no disrespect, yet I must record some glaring instances of faux pas, both of the verbal and logical kind.
Look at Para 2 of the speech: "Measures have been initiated to tapping demographic dividend to diplomatic initiatives, enhancing ease of doing business to putting in place a stable policy framework, empowering individuals to ensuring quality infrastructure, ending financial untouchability to making the country a manufacturing hub, containing inflation to stimulating economy, igniting minds to ensuring inclusive growth, promoting cooperative federalism to encouraging a competitive spirit among the states."
Can someone explain as to how the demographic dividend can be tapped to diplomatic initiatives, or how individuals can be empowered to ensure quality infrastructure, or why cooperative federalism must encourage competition among states? Surely, government is not thinking of sourcing our foreign policy and infrastructure quality control to the "demographic dividend", or promoting a cooperative federalism that opens competition among unequal states. Here is another illustration in Para 30 which says, "My Government has launched the 'Make in India' programme which aims to create a wholesome eco-system to transform India into a manufacturing hub." I'm not quite sure how the word "eco-system" applies in this context. Or did the President really mean "economic system"?
Para 31 states that "21 MSME clusters are being supported by providing soft skills and common facilities through 965 interventions." I wish the President had elaborated a little further on this, and explained to all of us what these 21 MSME clusters, the "soft skills" and the "965 interventions" were all about. To tell you frankly, I am pretty clueless myself, and might ask a question in Parliament to know more.
The references to Kashmir in the President's speech make me ponder that perhaps one noticeable outcome of the destructive floods and our outstanding national response is that terrorist activity has practically died down, and the talk of secession is no longer heard. The entire Hurriyat, except the loner Syed Ali Geelani, have expressly turned their face away from it, of course, in exchange of the promise that nothing will be done to whittle down the state's autonomy by attempts to tinker with the unalterable Article 370. It is the sacred duty of the Central government to make sure that no suspicion survives that this promise is just a dishonest ruse or deception. The Kashmiris, whatever their religion or class, are not disloyal to India and must not be accused of designs to secede and become part of Pakistan. We must resolutely defeat the obvious designs of our enemies to keep the pot boiling. Fortunately, the Chinese too have a more potent terrorist threat to deal with. But we must stick to our "Make in India" dream, and not allow the Chinese to flood our markets with cheap goods made in China.
The Kashmir floods, particularly in the Srinagar area were cruelly devastating. Scores of people were wholly ruined; shops on lower floors lost every bit of their valuable merchandise; residential apartments were demolished and upper floors collapsed on ground floors leaving no building material in any usable condition. Return to normalcy will require years of construction and rehabilitation at enormous cost. The Central Government did announce a contribution of Rs 1000 crores, but people are complaining that no money has reached the beneficiaries. As usual, there are no clear supervision or control systems. Does the Government contemplate any plan to redeem this sorry section of our citizenry? It is fortunate that the elections have yielded a democratic and stable State Government. The much advertised cooperative Federalism is now to be put to an urgent test, and responsible citizens are keeping a close watch. Expression of admiration of our armed forces and gratitude for their excellent service rendered during the catastrophe are perfectly in order, but now the civilian authorities must demonstrate their own efficiency and commitment.
The reference to terrorism and the nation's resolve to master it is welcome but I am unable to understand the reference to left wing extremism, which has been coupled with it in paragraph 45. Left wing terrorism is obviously a reference to the growth and activities of Naxalites in some areas of the country. The terrorism that India faces is based on religion gone astray, and the ambition of some indoctrinated maniacs to make Islam dominate the world and restore the khilafat, which rational Muslim Turkey abolished in the early 20th century. The Naxalite revolt actually started in 1946 in Andhra Pradesh, in Nalgonda district to be precise. It was a revolt by farmers and labourers against the cruelty and oppression practised by feudal lords, which deserves our admiration and support. From Andhra Pradesh it has spread to other parts of India. But the aims of this rebellion have nothing in common with those of the terrorists we encountered in Mumbai on 26 November 2008. Certainly, Naxal discontent, exploited by the communists for their political ends, must be eliminated, even though some of their leaders are highly educated and devoted to public service, and pose no threat to Indian sovereignty. But giving the real terrorists respectability by bracketing them with the Naxalites may be a faux pas in the President's speech.
I am disappointed that the speech makes no mention of the most urgent problem that confronts us, population control. The Biblical injunction, "Go forth and multiply" copied by Islam lost its context long ago. During those ages, God's bounty of earth was plentiful, sharers were few, and human fertility seemed to pose no threat to the quality of existence. But not so now. India's birth rate has to be reduced without fail and loss of time, and increase in wealth must far exceed the increase in population so as to provide a sustainable quality of life for all its people. China provides an excellent example of timely response and adopted a one child policy, and in 20 years reduced its population by about 300 million.
The government and the media must inform the people that almost all the population growth is happening in poor countries. The rich become richer and acquire more wealth, while the poor only acquire more babies. India's population during the last hundred years has increased from 300 million to more than 1.2 billion. No wonder government programmes for providing welfare and facilities to citizens, especially the poorest, always lag behind. In this demographic emergency, any religious group which advocates unchecked population growth is being nothing short of anti-national.
Lastly, let us look at Para 27, that is the government's commitment to "taking all possible measures to stop generation of black money both domestically and internationally". This has nothing to do with the pledge of seizing and repatriation, prompt identification, arrest and prosecution of the dacoits involved. But read the words that follow: "These measures include putting in place robust legislative and administrative frameworks, systems and process with due focus on capacity building, integration of information through technology, and fast tracking prosecution."
I have deliberately put at the end of this piece the six-line paragraph 27 of the President's address, dealing with black money. This has been my mission for years and was the Prime Minister's mission too during his election campaign. The only tragedy of my last years on this sorry planet is that it does not now appear to be a concern of the Prime Minister, though for long I have suspected that some selected for this great task are determined to frustrate it. This paragraph is conclusive proof of my conviction.
Compare the words of this ominous paragraph with the BJP election campaign promises, that (1) A fair estimate of the money robbed by these great dacoit is about 1500 Billion US Dollars roughly equal to about Ninety Lac Crores in Indian rupees; (2) the ruling Congress government has no interest in identifying the culprits or recovering the money; (3) the BJP government will cross all hurdles and get the stolen money back to India where it belongs; (4) that within 100 days the poor will get some lakhs each.
The President's speech does not refer to any of these representations, which get branded as falsehood, since not one of them has been fulfilled. Instead, the party president has put salt into people's wounds by blatantly declaring that the promise was just an election stunt. This is merely another way of telling the people of India that they acted like fools in putting faith in these promises. But what about Ram Jethmalani, who with all his experience as a criminal lawyer projected Narendra Modi as an avatar sent by providence for the salvation of India and the most exalted planet in India's horoscope? Let me assure my readers that I will not abandon this crusade against black money abroad till the last day of my life, however difficult the task has become. Legislation necessary to fulfil this promise approved by SIT and Supreme Court has been drafted and dispatched to the Prime Minister as far back as 19.11.2014, but as yet has not been enacted.
Those who really cry for justice, social and socio-economic, have nowhere to turn to, not to the present system.
There is no public institution in India that has not registered a steep decline of standards, and correspondingly of public confidence, in the last few decades. The judiciary is no exception. But the damage caused by decline in judicial standards is incalculable and incomparable with that of any other public institution.
An impartial justice system has been the aspiration and endeavour of every civilisation in recorded history, even the most ancient. The evolution of democracy, culminating with the ultimate power vesting with the people, has been accompanied across the world with the evolution of an independent judiciary. The founding fathers of our Constitution incorporated the theory of separation of powers between the legislature to enact laws, the executive to implement them, and the judiciary to adjudicate over them. It followed Montesquieu's dictum that "Constant experience has shown us that every man invested with power is apt to abuse it, and to carry his authority until he is confronted with limits."
India's judiciary is one of our most revered institutions, and I have repeatedly reiterated in all my writings and speeches that compared with other public professions or persons, such as politicians, government officials or business persons, our judges are unquestionably superior to them in integrity and morality.
The British took care to structure India's judicial system on their own model. It replaced the Shariat, which operated in most of erstwhile Mughal India, with the Indian Penal Code and the Evidence Act. This new judicial system, which was based on evidence and impartiality, as against the gossip based arbitrariness of the Shariat or other irrational customary laws, provided a positive distraction to the local populace, even as the colonial power concentrated on the exploitation of India's resources and manpower. British India's judges were appointed by the Crown, but remained independent from it. After Independence, this principle of an independent judiciary was incorporated as part of the basic structure of the Constitution, which cannot be amended.
To ensure the independence of the judiciary, judges in our country have been accorded great constitutional protection against their removal. Unlike the legislature and executive, they are not accountable to the people in the literal or constitutional sense, though they too are clad with a permanent moral and social responsibility to the people and institutions of India who come before them for administering perfect justice. An honest and intelligent judiciary can compensate for corruption in every other branch of government. It can exercise its constitutional powers to prevent and nullify legislative frauds on the Constitution. It can declare as ultra vires laws that clash with constitutional provisions, and strike down corrupt or mala fide actions of ministers or bureaucrats. It can reverse illegal or wrong actions of subordinate courts, and it can rigorously enforce criminal law against corrupt offenders, even if they occupy the highest decks of political life. In short, the judiciary is almost omnipotent and unaccountable.
No judge must aspire for harmony with the legislature and the executive. He must brace himself for a life of tension with both, in the intelligent and stout defence of his wards, who constitute the citizens of our country, from attack by the legislature, the executive, and even from the judiciary.
Democracy today faces the emerging threat of terrorism. Dynamic democracies are being transformed into defensive democracies, something that is of great concern to the civilised world. Judges need to become aware of the new legal dilemmas that are emerging — the tension between the imperatives of protecting the state and the rights of the individual. What is the role of the judge in these extraordinary situations? This ever present tension will intensify and become more pronounced, unless the terrorism monster is effectively checked. The role of the judge in this emerging scenario, when the state is attacked by lawless individuals, is a matter that calls for serious discussion. True, judges must maintain a respectable distance between themselves and litigants, but even so, the bridge between society and judges must be maintained and strengthened. This bridge can best remain intact when judges acquire a deep understanding of contemporary society and societal needs, and these insights are clearly reflected in their judicial product.
The popular perception about our judiciary today is also a matter of concern. The highest plaudits come to it whenever a corrupt politician, bureaucrat or businessman finds himself within the dragnet of the law. How many times have we heard these words from them, "I have full faith in the judiciary, let the law take its course"? This "course", which the law will take, will extend from the trial court to the high court, and then to the Supreme Court, the whole process punctuated by multiple "stays" (rule nisi), innumerable adjournments during the entire "course", all of which can take decades, before the matter is finally decided. To quote a few examples, it took 40 years for L.N. Mishra's murderers to be convicted, and about 20 years for Sukh Ram to be convicted of corruption.
Let me quote something from the 11th Law Commission that says it all: "The system is today used by the rich, the affluent, the anti-social and the parasites. Those who really cry for justice, social and socio-economic, have nowhere to turn to, and at any rate not to the present system."
It stands to logic that the more corrupt the political government becomes, the more corrupt it would like its judiciary to be. A corrupt government needs a corrupt judiciary just to be able to survive, and provides the greatest opportunity for corrupt judges to infiltrate into the judicial system. And to make this happen, the executive can go to any lengths of subversion — Mohan Kumaramangalam, distinguished lawyer and politician claimed in 1973 that the "social philosophy" of judges should determine their eligibility for appointment, and started the theory of a "committed" judiciary. Indira Gandhi tried to break the backbone of the judiciary by superseding three judges for the appointment of Chief Justice of the Supreme Court, just because they were perceived as being not "committed" enough.
Another phenomenon regarding the judiciary that has manifested itself is that whenever the moral character, public authority and credibility of other branches of government diminish, the judiciary tends to expand its powers and outreach, taking on tasks that are rightfully in the domain of the Executive, which they are intellectually ill equipped to understand or administer. This trend is popularly called "judicial activism", and is almost like a trespass, for example, in the domain of public health, public transportation, child care, environment, even cricket and the IPL. The judiciary should seriously introspect on this issue.
Let me quote what Edward F. Cummerford, an eminent New York lawyer has to say about this in his article "Judicial Jumble" printed in the Wall Street Journal in April 1968. "No matter what euphemisms are employed to disguise its effects, careful reflection must lead to only one conclusion: Judicial Activism is not merely inconsistent with the rule of law, it is total negation of the rule of law. If cases are decided on personal philosophies of judges, then in reality there is no law. If the Constitution has no objective meaning but means only what judges think it ought to mean, it is not a Constitution at all but an empty symbol, a sort of national totem. History shows that vague laws, subjectively interpreted and arbitrarily applied, are the tools of the tyrants. The equation is as old as the human race — power minus responsibility equals despotism."
Like every other institution in India, the judiciary too is beset by the quantum jump in the numbers it must handle. The Supreme Court-supported National Court Management System (NCMS), informs us that "India has one of the largest judicial systems in the world — with over 3 crore of cases and sanctioned strength of some 18,871 judges", the average age of a civil case being about 15 years. Because of increasing literacy and per capita income, it is expected that over the next three decades, case pendency is going to register a five-fold increase to touch 15 crore, but the judge strength will go up only four times to settle at 75,000.
It is clear that the severe shortage of courts, judges and infrastructure at all levels only results in high pendency, delayed or denied justice, lengthy proceedings and repeated adjournments, and temptation for corruption.
In this scenario, how should the nation address these urgent needs and bring about a reform in the judiciary, something which the judiciary itself is reflecting upon. More about that in my next piece.
Copyright. All rights reserved. Ram Jethmalani. 2019.
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