It was over two and a half decades ago that Fr. Xavier Vadakkekara of the Indian Currents invited me to take part in a seminar on secularism and represent Christianity. I accepted it more in deference to his wish than for any love for public speaking. With learned Imams and Pandits representing other religions and faiths, I found myself inadequately qualified to represent a 2000-year-old tradition and nearly 40 million Indians who profess the Christian faith.

I do not remember much about the seminar held at St. Columba’s School in New Delhi, but I vividly remember the brilliant speech Nariman delivered as the chief guest on the occasion. Unlike others who blabbered, he came prepared with a written text and spoke eloquently about how proud he was to be an Indian in secular India. Suddenly, he found himself paperless and speechless with the pedestal fan blowing them away from his open folder on the lectern. As one of us gathered the papers together and put them back in sequence, he went extempore and delineated on a case the Supreme Court had heard and decided.

A schoolboy in Kerala, who belonged to Jehovah’s Witness, refused to sing the National Anthem as his religion forbade him from singing in praise of anyone other than his Creator. The authorities concerned went by the rule book, and he was expelled from the school. Finally, the case reached the apex court, which considered the fact that whenever the national anthem was sung, he always stood like any other student and did not show any disrespect to either the song or the singing. In its abundant wisdom, the court upheld the boy’s plea that he be allowed to study in the school.

The effect the anecdote had on the audience, mostly from the minority communities, had to be seen to be believed. They knew that Nariman spoke from the heart, for he too belonged “to a minority community, a microscopic, wholly insignificant minority.” He was as concerned as the organisers of the seminar were about the threat fundamentalists were posing to the secular character of the country. As John Dayal commented, “Nariman could have earned a couple of lakhs of rupees if, instead of spending his precious time preparing the speech, he had devoted it to taking up a new case.” Nariman knew that nothing was more important to him than secularism.That is why he spent the whole of that afternoon with us thinking aloud about the “fearsome pace” at which the “population of the dinosaurs” in various religions was increasing.

As he puts it colourfully, “Dinosaurs in one religious camp give impetus to breeding them in another. Scientists tell us that it was a great meteorite that finally destroyed all the dinosaurs on this Earth. If so, I like to think that the meteor was the symbolic wrath of God.” Given this backdrop, it was not at all surprising that Nariman concludes his autobiography Before Memory Fades with these lines: “I have never felt that I lived in this country at the sufferance of the majority. I have been brought up to think and feel that the minorities, together with the majority community, are integral parts of India. I have lived and flourished in a secular India. In the fullness of time if God wills, I would also like to die in a secular India.”

Death should have been far from his mind as the country still needed his services. Even the street dogs in the area where he stays would love him to be around forever. This I learnt when I spent a whole afternoon at his house. I had gone there with our Chandigarh lawyer to consult him on a case the Punjab and Haryana High Court had suo motu registered against me and a reporter of The Tribune.

As he was not at home when we reached there, I spent the free time trying to count the cats and the large brood of kittens for which there were separate “residential quarters” inside his compound. I realised that counting the kittens was an impossible task for they were too many and they did not remain static to enable an enumeration. When it was time for supper, I found a servant feeding them minced meat.

As the cats were being fed, a large number of stray dogs began lining up in front of his gate. They did not bark, nor quarrel among themselves. Then the same servant placed plates in front of each of them. From a huge pot, he served some “kichri”-type food which the dogs partook of and left as silently and orderly as they assembled. I was told that the dogs in the area were assured of one wholesome meal a day.

It is jokingly said that if you have a few millions of rupees to hire the services of Nariman, you can murder anyone and get away with it. No, money is not the only determinant for him. As my memory goes, he did not charge a single penny, though he pored over my case and suggested many changes in the affidavit I and the reporter concerned had to file in the High Court. What mattered to him was that The Tribune Trust was headed by Justice R.S. Pathak, a former Chief Justice of the Supreme Court of India.

Even so, I did not know how much Nariman respected Pathak until I read his autobiography. I will come to that in an instant. Both of them are reviled for a case in which they played a major role. The reference is to the Bhopal gas tragedy case in which Nariman represented Union Carbide and Justice Pathak who took the initiative to broker a deal under which the multinational paid $470 million (Rs 615 crore) in one go.

He devotes a whole chapter to discuss the case, which, as he told Karan Thapar on CNN-IBN’s “Devil’s Advocate,” he would not have accepted, “If I had to live my life all over again, as a lawyer, and the brief came to me, and I had foreknowledge of everything that later came in, I would certainly not have accepted the civil liability case which I did.” Read together, the interview and the book disprove many who believe that Justice Pathak and Nariman had let the country and the victims down.

There is a lot of showy, chest-beating on Bhopal these days. Even those who did nothing to mitigate the hardship of the Bhopal victims all these years had suddenly woken up to the need to bring the late Warren Anderson to India, get billions of dollars from Union Carbide, and give every citizen of Bhopal millions of rupees. They also knew that all this is to hoodwink the public.

Nariman makes the valid point that the $470 million settlement was upheld by the Supreme Court, not once but thrice under different chief justices. He quotes the court, “the voluminous documentary evidence placed on the record of the present proceedings does not make a case of inadequacy of the amount necessitating a review of the settlement.” Allowance has to be made for the fact that Rs 615 crore was a big amount in 1989 (Those who drew a salary those days should compare it with their present salary to know how big the amount was 30 years ago.)

Many would have forgotten that the quick settlement did not, however, reach the victims as quickly as Justice Pathak wanted. When the amount remained in the bank account of the Supreme Court, it grew by Rs 1 lakh every day by way of interest. In the discussions on Bhopal, people are reluctant to admit the fact that there are a large number of bogus claimants. I know some people living in TT Nagar, which is far away from Union Carbide, who initially made claims of damage in the hope they, too, would get some money.

Nariman hits the nail on the head when he says why the amount was inadequate: “The inadequacy arises because there was a very large sum of money which was sought to be distributed amongst people living in certain areas not by reason of what they suffered but their living in those areas.” I know that local politicians encouraged their constituents to file claims with the result that what the real victims should have got was distributed among a large number of people.

In other words, the amount shrank. To drive home the point, it would be worth pondering why no one dies of old age in the affected area. Every death even now is attributed to the poisonous gas that leaked from the Union Carbide factory. Even today what is cited as Union Carbide’s fault are quotations from newspaper articles and books written by journalists like Dan Kurzman of A Killing Wind fame (Indian Express, July 3, 2010).

Do we have a foolproof case for revisiting the settlement of 1989? The answer is, alas, no, but our leaders, including the then Law Minister Veerappa Moily, whom the Chief Justice of India described as one of the most enlightened leaders, while releasing his book on the Ramayana, is not ready to admit the truth. They want the Bhopal victims to have eternal hope. Nariman brings out in a few lines the greatness of Justice Pathak, who as Chief Justice took the job of finding judges for the Supreme Court so seriously that he tried to judge the calibre of High Court judges whenever he visited states. It was he who found the potential in M.N. Venkatachaliah, who was not even the senior-most in the Karnataka High Court at that time.

As I read this, I remembered Justice Pathak inviting me to his house so that he could know me better. He came to Chandigarh and personally introduced me to the staff when I joined the Tribune. After handing over the appointment letter, he asked me, “Do you know the meaning of the word Tribune?” Instead of answering, “Sorry, I do not know,” I asked him foolishly, “Does it originate from the word ‘Tribunal?” “No, the Tribune was an official in the Roman Empire, and it was his job to protect the interests of the common man,” answered Justice Pathak. It was his way of telling me that my primary job was to take care of the interest of the readers of The Tribune.

How could such a noble person ever acquiesce in a settlement if it was not in the interest of the people? And how could Nariman, who promptly resigned as additional solicitor general of India when the Emergency was clamped on the country, ever be a party to it? I found his autobiography as enjoyable as a beautiful novel, and he went up in my esteem as one of India’s greatest sons.

A few years later, I had an occasion to meet him and his wife Bapsi when I interviewed him for Darshana TV. It was my first such interview. When his wife passed away four years ago, I wrote an obituary that elicited a warm response from him. In his death, the country has lost a great lawyer who believed that the future of the country is not in the glorification of any one community but in the glorification of We, the People of India that is Bharat.

Courtesy: The AIDEM

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Speaking to journalist Shekhar Gupta on Off The Cuff programme, Nariman asked the journalists why they had not this question to Modi adding that Adityanath’s appointment was sign that India’s constitution was under threat.

He said, “The constitution is under threat. With the massive electoral victory in Uttar Pradesh. With a priest installed at the behest of the prime minister as the chief minister, like a cherry on the victory cake. That’s the signal. And if you can’t see then you must be spokesperson of that political party or you must have your eyes examined.”

“The message is very clear. What you want to do is for all of us to decide..I don’t quite accept the policies of the prime minister. And I say it quite and I say it quite openly,” he added.

Nariman said that the constitution still had the strength but the people who supported the constitution did not.

Taking a swipe at media, he said, “Why’s no correspondent from any leading channel asked the prime minister, ‘prime minister is it true as this fellow Nariman seems to suggest that this is the beginning of the Hindu State.’ Ask him…At least you know what to be prepared for.”

Adityanath was chosen as Uttar Pradesh’s chief by PM Modi after the BJP won a historic landslide by winning 325 out of 403 seats in the state.

Adityanath has been known for being a proponent of militant Hindutva and anti-Muslim rhetoric.

Courtesy: Janta ka Reporter
 

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With the failure of the executive to apply correctives especially on the deepening of the rights of citizesns, the burden of delivery of Rule of Law falls on the judges, said Vice President Hamid Ansari; He was addressing the Sesquicentennial Celebrations of the High Court of Judicature of Allahabad in Lucknow

The Governor of Uttar Pradesh, Shri Ram Naik, the Chief Justice of Allahabad High Court, Dr. Justice D.Y. Chandrachud were among those present on the occasion.  The Vice President said that the traditional public esteem for the judiciary has been reinforced by its activism in contrast to the failure of the executive to apply correctives on matters of concern and this is particularly true of its good work in expanding the ambit of rights.
 
The Vice President, however, also cautioned that lack of access to justice, the high cost of it, delays in the delivery of justice, lack of a mechanism for accountability and allegations of corruption have, together, given rise to doubts and added to the pervasive pessimism about the efficacy of institutions.  He further added that another area of concern is the excessive zeal reflected at times in pronouncements of members of the judiciary.
 
Referring to Kautilya’s Arthashastra, the Vice President said that judges shall discharge their duties objectively and impartially and added that rectitude is thus a prime requirement in judiciary as in all other walks of life and must be observed at all times and at all levels.
 
Following is the text of the Vice President’s address:
 
“Men and women who wear judicial robes are not known to deviate into the unknown and yet they seem to have embarked on a risky venture in inviting someone unlettered in law to this landmark function today marking the sesquicentennial of the High Court of Allahabad.
 
I thank Chief Justice Chandrachud and Mr. Justice Husnain for this and I fervently pray that I would justify their gamble.
 
The Allahabad High Court of Judicature is one of the oldest high courts in the country. Today, it is the biggest in terms of work load, the number of judges and, regrettably, in terms of vacancies on the bench.
 
The Lucknow Bench of High Court itself has had a long and distinguished history. On my part, I candidly admit that the infrequent opportunity of coming to one’s own state in the Union of India was temptation enough, more so because I have vague memories of a few years of childhood spent in this historic centre of culture and etiquette in the early 1940s.
 
I therefore take solace in the couplet:
 
Go wan nahin pa wan ke nikale huai to hain
Kaabe se in butoen ko bhai nisbat hai door ki
 
I have a subjective reason too for succumbing to the temptation.  A distant relation of mine on my mother’s side was the first Indian Chief Justice of the Allahabad High Court.  I refer to Sir Shah Mohammad Sulaiman who presided over this Court from 1932 to 1937 before becoming a judge of the Federal Court of India established under the Government of India Act, 1935.
 
The eloquent tribute paid to him in Justice R.S. Pathak’s essay in the centenary volume is testimony enough to his work. It has been said often enough that fundamentals of faith must be revisited in order to reinforce faith. One of our articles of faith as citizens of the Republic of India is the Rule of Law.
 
The term is a part of our daily vocabulary. Its basic purpose is, as Montesquieu said a long time back, is avoidance of tyrannical laws or their execution in a tyrannical manner. Its classic enunciation is to be found in Albert Dicey, who needs no introduction to this audience.  To him, the essential ingredients of rule of law were (a) the absolute supremacy of regular law (b) equality before the law (c) access to justice and development of law by the judges on a case by case basis.
 
As the former Lord Chief Justice of England and Wales Lord Bingham put it, ‘it makes the difference between Good and Bad Government.’ Over time and in different societies, these principles have been challenged, amplified and modified.  Professor Upendra Baxi has sought to read the rule of law as going beyond a mere division of functions in modes of governance; to him, it is the rule of good law and is as such reflective of the struggle of a people ‘to make power accountable, governance just, and state ethical’.

(The) Rule of Good Law and is as such reflective of the struggle of a people ‘to make power accountable, governance just, and state ethical’: Upendra Baxi
 
Professor Baxi opines that the Indian constitutional conception of the rule of law links its four core notions: rights, development, governance and justice. An interesting early example of this approach is to be found in the Declaration of Delhi of January 1959 by the International Congress of Jurists. It recognized the Rule of Law as:

‘a dynamic concept for the expansion and fulfillment of which jurists are primarily responsible and which should be employed not only to safeguard and advance civil and political rights of individuals in a free society, but also to establish social, economic, educational and cultural conditions under which his legitimate aspirations and dignity may be realised’.
 
This approach has been upheld in judicial pronouncements. Rule of Law, said the Supreme Court in Dalmia Cement (Bharat) Ltd v Union of India (1996) ‘is a potent instrument of social justice to bring about equality in result’.  In 2005, the International Bar Association deplored in a Resolution the ‘increasing erosion around the world of the Rule of Law and spelt out its ingredients:

‘An independent, impartial judiciary; the presumption of innocence; the right to a fair and public trial without undue delay; a rational and proportionate approach to punishment; a strong and independent legal profession; strict protection of confidential communications between lawyer and client; equality of all before the law; these are all fundamental principles of the Rule of Law.  Accordingly, arbitrary arrests; secret trials; indefinite detention without trial; cruel or degrading treatment or punishment; intimidation or corruption in the electoral process; are all unacceptable.’

It is here that the burden of delivery falls on the judges. 

An eminent New Zealand judge, Lord Cooke of Thorndon observed some years back, in relation to the Constitution of India, that ‘an elaborate and high-sounding Constitution is at worst a camouflage and at best a paper tiger without the judicial will and strength to enforce it.’

The traditional public esteem for the judiciary has been reinforced by its activism in contrast to the failure of the executive to apply correctives on matters of concern. This is particularly true of its good work in expanding the ambit of rights. On the other hand, lack of access to justice, the high cost of it, delays in the delivery of justice, lack of a mechanism for accountability and allegations of corruption have, together, given rise to doubts and added to the pervasive pessimism about the efficacy of institutions. One law officer has also expressed concern over the ‘increasing disregard of the salutary doctrine of precedents’.
 
Another area of concern is the excessive zeal reflected at times in pronouncements of members of the judiciary. Some observers have asserted that ‘the Supreme Court has given up any formal pretence to the doctrine of the separation of powers’. This is perceived to upset, as a former Speaker of the Lok Sabha observed some years back, ‘the fine constitutional balance and the democratic functioning of the state as a whole’. The caution administered by Chief Justice Stone of the U.S. Supreme Court, therefore, has relevance: ‘While unconstitutional exercise of power by the executive and legislative members of the Government is subject to judicial restraint, the only checks on our own exercise of power is our sense of self-restraint.’
 
What then is the score on this count? Some years back the longest serving Chief Justice of India dwelt on a few aspects of the matter on the eve of his retirement. In response to a question about delay, he identified long judgments, frequent adjournments, and lengthy oral arguments. Each of these, let me add, is remediable and can be remedied given the will and the commitment on the part of the judiciary and the fraternity of lawyers.
 
Judgments in an earlier generation were concise and cryptic and adjournments were allowed only for good reason. As for long oral arguments, it is an Indian malaise; in the Supreme Court of the United States, for instance, each side is allowed only 30 minutes for oral presentation. There is no reason why verbosity cannot be restrained. The ‘desire for immortality through the pages of law reports’ can be achieved better through sharp and succinct pronouncements, as was done in an earlier period and has been done by great judges the world over.
 
Kautilya’s Arthashastra said that judges shall discharge their duties objectively and impartially. This has been the dictum down the ages in all lands and legal systems. Rectitude is thus a prime requirement in judiciary as in all other walks of life and must be observed at all times and at all levels. The judicial mind should be so trained as to eliminate subconscious loyalties and, in the execution of justice he or she should, in the words of the 17th century English judge Sir Mathew Hale ‘lay aside (his) own passions and not to give way to them however provoked.
 
’ This brings us to the question of social awareness particularly in a society like ours with all its complexities and imperatives. The answer here would lie in the letter and spirit of the Constitution and in the expectations and aspirations of the citizens and their quest for justice, liberty, equality and fraternity. An unavoidable consequence of this is what has been termed ‘judicial activism.’ Even here, however, the requirement of balance cannot be forsaken.
 
The ambit of this was set many years back by the most activist of Indian judges, Krishna Iyer, when he cited with approval an American votary of civil liberties, the journalist Alan Barth:

A court which yields to popular will thereby licenses itself to practice despotism for there can be no assurance that it will not on another occasion indulge its own will. Courts can fulfill their responsibility in a democratic society only to the extent they succeed in shaping their judgment by rational standards, and rational standards are both impersonal and communicable.
 
Here too, a judicious mix can bring forth reasonably satisfactory results. Mr. Fali Nariman, with over six and a half decades of experience at the bar, has suggested such a mix:

‘It has been said that judges without a social agenda are not crusaders but only problem solvers, but they too have their uses. I believe the ideal mix for a progressive higher judiciary – which includes the high courts as well as the Supreme Court – is three-quarter problem-solvers and one-quarter crusaders.’

This should throw up an enticing or agonizing challenge to each judge: of locating himself or herself as the upholder or transformer of established norms of interpretation or enforcement of law.
 
I have one last point. A changing world has made globalization an unavoidable necessity. This, in the ultimate analysis, cannot be restricted to economics and trade policy only and extends to global standards in all fields including in the area of dispensation of justice; by implication, the space for local peculiarities is shrinking. The sooner we adjust to it, the better for all – litigants, lawyers, judges. The eventual beneficiary would be public.
 
Thank you for giving me the opportunity of sharing some thoughts with you today. I wish you all success in the years to come. Jai Hind.”
 
 
 

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Courtesy: virtualclassroom.org

For centuries Hinduism has been the most tolerant of all religions. It was from the ranks of the Brahmins that the first converts to Buddhism were recruited in the sixth Century BC. Two hundred years after Ashoka’s death Buddhism had replaced Hinduism in vast areas of the sub-continent, although the Buddhism that prevailed was not of the purity envisaged by the Enlightened One. But within two centuries after Buddha’s death, eighteen varieties of the Buddhist doctrine divided and confounded the converted faithful!

And then, at the beginning of the first millennium, the growth of monasticism left India open to easy conquest. When the Arabs came, they looked with scorn upon the Buddhist monks and destroyed their monasteries, making the new faith unpopular. The survivors, under the influence of the youthful Adi Shankara, were then reabsorbed into the Hinduism that had begotten them.

As the historian Will Durant records in an elegant sentence: “the ancient orthodoxy received the penitent heresy Brahmanism killed Buddhism by a fraternal embrace.” And all this because Brahmanism had always been so tolerant. The history of the rise and fall of Buddhism and of a hundred other sects in this subcontinent records much disputation, but no instances of persecution (except from foreign invaders). After five hundred years of gradual decay, Buddhism disappeared from India, not violently or with bloodshed, but quietly and peacefully. And throughout Hindustan, Hinduism (after centuries of decline and decadence) came back into its own: still tolerant, still accommodating.

But all this was in the past. During the last few years I have been a querulous spectator of a new phenomenon — on occasions almost a frightened one. The Hindu tradition of toleration is showing signs of strain – the strain of religious tension,
fanned by fanaticism. This “great orchestra of different languages praying to different Gods” that we proudly call “India” is now seen and heard playing out of tune.

Some kind of a dream of unity has occupied the mind of India since the dawn of civilisation. That unity was not conceived as something imposed from outside, a standardisation of externals or even of beliefs. It was something deeper and, within its fold, the widest tolerance of belief and customs was practiced and every variety acknowledged and even encouraged.

Is Hinduism then changing its face? I hope not — but I fear it is. It is as well to express this fear openly. Secular India versus militant Hinduism is reminiscent of ambassador George Keenan’s metaphor when contrasting democracy with a dinosaur. “You practically have to whack off his tail,” said Keenan of the dinosaur, “to make him aware that his interests are being disturbed: but once he grasps this, he lays about him with such blind determination that he may destroy his habitat with his adversary.” We must not let the dinosaur destroy our habitat.

Look back a little and reflect on what a great patriot of India had to say — a man whose birth centenary we ritualistically celebrate in November each year. He never regarded the varied peoples of India as the dinosaur looked at he Earth’s smaller inhabitants.

Writing in the quiet seclusion of a prison in 1944 (his ninth term of imprisonment for revolting against the British) Jawaharlal Nehru contemplated “the diversity and unity of India”:

“It is tremendous (he wrote): it is obvious; it lies on the surface and anybody can see it… It is fascinating to find out how the Bengalis, the Malayalis, the Sindhis, the Punjabis, the Pathans, the Kashmiri, the Rajputs and the great central block comprising of Hindustani–speaking people, have retained their particular characteristics of hundreds of years, have still more or less the same virtues and failing of which old traditions of record tell us, and yet have been throughout these ages distinctively Indian, with the same national heritage and the same set of moral and mental qualities.”

There was something living and dynamic about this heritage (says Nehru) which showed itself in ways of living and a philosophical attitude to life and its problems. Ancient India, like ancient China, was a world in itself, a culture and civilisation, which gave shape to all things. Foreign influences poured in and often influenced that culture, but they were absorbed. Disruptive tendencies gave rise immediately to an attempt to find synthesis. And (Nehru adds) almost lyrically: “some kind of a dream of unity has occupied the mind of India since the dawn of civilisation. That unity was not conceived as something imposed from outside, a standardisation of externals or even of beliefs. It was something deeper and, within its fold, the widest tolerance of belief and customs was practiced and every variety acknowledged and even encouraged.”

Many Hindus, many Sikhs, many Muslims, many Buddhists — in fact, most Indians — endorse and share this dream; Nehru’s vision of the diversity and unity of India.

But events in Gujarat and elsewhere show that  ‘Dinosaurs’ breed fast — on hatred. Dinosaurs in one religious camp give impetus to the breeding of them in another — as recent events in Pakistan bear testimony. Scientists tell us that it was a great meteorite that finally destroyed all the dinosaurs on this earth. If so, I like to think that the meteor was the symbolic wrath of God!

I belong to a minority community, a microscopic wholly insignificant minority, which spurned the offer made (at the time of the drafting of our Constitution) — to Anglo–Indians and Parsis alike to have, for at least a decade, our representative in Parliament. The Anglo–Indians accepted the offer — but most of them migrated to places abroad. We Parsis declined the offer — and most of us stayed in India.

In the Constituent Assembly, Sir Homi Mody said that we would rather join the mainstream of a free India. We did. And we have no regrets. I have never felt that I lived in this country at the sufferance of the majority. I have been brought up to think and feel that the minorities, together with the majority community, are integral parts of India.

I have lived and flourished in secular India. In the fullness of time, I would also like to die in secular India, when God wills.       

Archived from Communalism Combat, September 2002, Anniversary Issue (9th), Year 9  No. 80, Tolerant tradition 

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After the demolition of the Babri Masjid on December 6, 1992, there was unprecedented violence in Bombay against Muslims in early January, 1993. It was rightly believed by responsible citizens who had gone around the city to ascertain what had happened and who were trying to restore communal harmony, that the police not only did not take action against the rioters but in some cases assisted them….

 ….During December 1992/January 1993, Saamna published a number of editorials which prima facie were a clear violation of Sections 153A and 153B of the I.P.C.

The law in England as to the duty of government to enforce the law has been dealt with in Reg. v. Commissioner of Police of the Metropolis Ex p. Blackburn (1968) 2 Q.B. 118. Lord Denning, M.R. observed: “…There are some policy decisions with which, I think, the courts in a case can, if necessary, interfere. Suppose a chief constable was to issue a directive to his men that no person should be prosecuted for stealing less than 100 pounds, I should have thought that the court would countermand it. He would be failing in his duty to enforce the law. After the decision of the House of Lords in Kursall Casino Ltd. v. Crickitt (1966) 1 W.L.R. 960, the commissioner of police announced that "it is the intention of the metropolitan police to enforce the law as it has been intended'…” (Salmon, L.J. and Edward Davies L.J. agreed with Lord Denning, as to the contention that a mandamus should be refused because Mr. Blackburn had an equally effective and convenient remedy,) Salmon, L.J. said: “It seems to me fantastically unrealistic for the police to suggest, as they have done, that their policy decision was unimportant because Mr. Blackburn was free to start private prosecution of his own and fight the gambling empires, possibly up to the House of Lords, single-handed”: ibid. p.145.

Edmund Davies L.J. agreed…observing that “only the most sardonic could regard the launching of a private prosecution….as being equally convenient, beneficial and appropriate and the procedure in fact adopted by this appellant”.

I have cited this decision of a most distinguished master of the Rolls, Lord Denning and his distinguished brother judges to show that no general policy can override the law, and further that the rule of law must be upheld and enforced by the appropriate authority…
In the context of what I have said above, a question arises as to how power conferred on public authorities in connection with the administration of justice is to be exercised. Justice Jaganmohan Reddy for himself and Palekar J. gave the answer in M.N.S. Nair v. P.V. Balkrishnan AIR 1972 SC  496.…. (Referring to section 494 of the Criminal Procedure Code which permits the prosecution to withdraw from the prosecution), Justice Jaganmohan Reddy observed….

 “… It is the duty of the court also to see in furtherance of justice that the permission is not sought on grounds extraneous to the interest of justice or that offences which are offences against the state go unpunished merely because the government as a matter of general policy or expediency unconnected with its duty to prosecute offenders under the law, directs the public prosecutor to withdraw from the prosecution and the public prosecutor merely does so at his behest”: ibid. p.499 (emphasis supplied)….

Jaganmohan Reddy J. rightly observed that the delay caused by the accused by repeated revisional applications could not ensure for the benefit of the accused. Since the judgement of the division bench in Shri D'Souza's petition referred to the “delay” which had taken place in hearing the petition, it may be observed that the petitioner, i.e. Shri D’Souza and his co-petitioner were not responsible for the delay. The Criminal Writ Petition was filed speedily in April 1993. The petition was adjourned for the government to communicate to the court whether it had granted permission to prosecute Respondents 3 and 4 in respect of certain articles for which the police had filed complaints in the magistrate's court, and asked for government's sanction. On June 8, 1993 government stated that sanction had been given. On June 14, 1993 the writ petition was admitted with liberty granted to apply to the chief justice for an early date. (Thereafter the delay in the hearing took place because of the court not having given time or the respondents asking for an adjournment).

(Mr. Seervai refers to the fact that an affidavit was filed on behalf of the state to oppose the admission of the petition in April 1993. This affidavit was filed by an under-secretary in the home department, Shri Kumavat, and refers to the fact that the affidavit mentions that the question as to whether prosecutions should be sanctioned in respect of some complaints filed by the police were referred to the law department. This shows that whether or not sanction should be granted raises a question of law and being a question of law it is the law department which gives the necessary advice. Ultimately, sanction was given in those cases because the opinion of the law department was that as a matter of law the articles violated the provisions of section 153A)….

It would be convenient at this place to consider what test is to be applied by a court in considering whether the articles published in a daily newspaper violate the provisions of sections 153A and 154B. Saamna, a daily newspaper had a wide circulation. The petitioners did not complain of one article but of a number of articles on the same theme.

The question whether those articles promoted enmity between Hindus and Muslims on the ground of religion, race and residence etc. has to be determined on how the general readers of those newspaper would understand those articles and not how a court after elaborate analysis and argument by counsel on either side considers to be the effect of those articles.

It should be borne in mind that the articles complained of had been spread over two months and dealt with acute controversies such as the demolition by Hindus of the Babri Masjid. The ordinary reader of Saamna, or of any other daily newspaper is not given to an analysis of articles, parts of which are complained of by a petitioner.

No doubt as a general rule, any article complained of must be read as a whole. But there are situations in which certain passages and their effect of producing enmity between communities are so strong that no context would prevent those passages from inflaming communal enmity between Hindus and Muslims as will appear later. That was the test which the court had to apply in Shri D'souza's petition, and which the court failed to apply….

Before dealing with the passages complained of and the manner in which the division bench dealt with those passages, the stand taken by the government for not taking action to prosecute Shri Bal Thackeray and Shri Raut for publishing the paragraphs set out in Shri D'souza's petition requires consideration.

The Government was in a dilemma. No officer of the government could say that what was stated in Shri Kumavat's affidavit was false, for it was stated by him to be true to the best of his own knowledge. However, the government was determined not to grant sanction to prosecute Shri Bal Thackeray and Shri Raut and the procedure described by Shri Kumavat would have required the home department to process the case and then send the case for the legal opinion of the law and judiciary department.

A department which gave as its opinion that the articles in Saamna which attacked Muslim police officers violated the provisions of sec. 153A would, a fortiori, give it as its own opinion that the nine articles complained of in Shri D'Souza's petition which attacked Muslims and Muslim community generally violated the provisions of section 153A and sanction to prosecute should be given.

The summary dismissal of the petition for special leave against the judgement of the Bombay High Court by Justices Punchi and Jaychandra Reddy can only be described as amazing and subversive of the rule of law.                                               

Government devised the expedient of getting Shri Ulhas V. Manjrekar, deputy secretary to the government of Maharashtra (general administration department) to file an affidavit replying to the petition on merits after it had been admitted, although the question of granting sanction to prosecute persons under section 153A were dealt with by the home department.

Shri Manjrekar stated that he was filing the affidavit “on the basis of concerned files of my department which I have carefully pursued”. Shri Manjrekar appears to have realised that the records of home department on which Shri Kumavat had relied on behalf of government in his affidavit of April 29, 1993 were directly relevant in replying to the petition on merits after the petition has been admitted.

Therefore, he began paragraph two of his affidavit thus: “At the outset I reiterate and Confirm what Shri D.T. Kumavat, Under secretary to the government of Maharashtra, home department, Mantralaya, Bombay has stated in his affidavit dated April 29, 1993". By reiterating and confirming Shri Kumavat’s affidavit at the outset, he incorporated that affidavit in his own affidavit.

In paragraph two of his affidavit, after the first sentence, Shri Kumavat’s affidavit must be set out. When this is done, Shri Manjrekar, without realising it, has shown that the government has acted mala fide when instead of referring the question of sanctioning the prosecution of Shri Thackeray and Shri Raut to the law and judiciary department for its legal opinion, the government decided not to prosecute them for the reasons set out by Shri Manjrekar in his affidavit.

The government was the first respondent to Shri D'Souza's petition, and it's sidetracking the law and judiciary department whose legal opinion was required, before sanction to prosecute under section 153A (and 153B) was given. This gives rise to the inference that if the government did not seek legal opinion, it was because that opinion would have clearly indicated that the passages complained of in Shri D’Souza’s petition violated the provisions of sections 153A and 153B and sanction to prosecute them should be granted.

A part from what I have said in the above paragraph, there is an inherent contradiction in Shri Manjrekar's affidavit, which also shows that the government knew that the passages complained of in Shri D'Souza's petition violated section 153A. Shri Manjrekar states in his affidavit in reply, that “I reiterate that the government of Maharashtra carefully scrutinised the material published by the Marathi daily Saamna in its issue of 2nd, 5th, 8th, 9th and 15th December 1992 and 1st, 5th, 8th, and 9^th January 1993…Prosecution of the editor and printer of the daily has already been sanctioned in 4 cases by four separate orders dated 9th June 1993. The government has taken a decision that the alleged objectionable material may be used as evidence at the time when the four cases in which the prosecution has been sanctioned come up for trial and hearing” (emphasis supplied). The prosecution in the four cases was sanctioned as violating section 153A of the IPC, namely for promoting enmity between Hindus and Muslims. If the 9 passages complained of in Shri D'Souza's petition are to be used as evidence in support of articles which violated section 153A, it must follow that the government realised that these passages violated section 153A and such violation would be further evidence in support of the prosecution in the four cases, namely, that the writings there complained of violate sec. 153A.

  If the 9 passages complained of did not violate the provision of section 153A, they could not be used to support the prosecution – those passages would be irrelevant. This is an admission on the part of the government that these 9 passages violated section 153A and instead of prosecuting Shri Bal Thackeray and Shri Raut in respect of these passages, the government arbitrarily declined to do so.

Shri Manjrekar stated in his affidavit that since “the government has referred the matter to the Press Council of India, it would be advisable to await the decision of the press council” is an attempt to show that the government was not inactive.

 However, first, the Press Council is not the authority to advise the government whether or not to grant sanction to prosecute under the sections 153A or 153B. The proper authority, as Shri Kumavat pointed out in his affidavit, was the law and judiciary department. This is clear from the government's own action in respect of granting its sanction to prosecute Shri Thackeray, Raut and Desai without referring the matter to the Press Council, but after obtaining the legal opinion of the law and judiciary department.

In my opinion, the affidavit of Shri Manjrekar clearly established that the government knew that the nine passages complained of violated the provisions of section 153A but was determined not to prosecute Shri Thackeray and Shri Raut. Since the power to grant sanction is conferred on government, it must be exercised in good faith and in furtherance of the object of the law, namely sections 153A and 153B.

What I have said about Shri Manjrekar's affidavit shows that government acted mala fide and refused to grant sanction although it knew that the nine passages violated section 153A. The division bench has not realised the effect of Shri Kumavat's and Shri Manjrekar's affidavit. On those affidavits it is clear that government acted mala fide in respect of granting sanction to prosecute in respect of the nine passages complained of after impliedly admitting that they violated section 153A, and could be used by the prosecutor in the four prosecutions against Shri Thackeray, Raut and Desai
In my opinion, on the affidavits of Shri Kumavat and Shri Manjrekar, the division bench should have issued a writ of mandamus directing government to grant its sanction to prosecute Shri Bal Thackeray (respondent 3) and Shri Raut (respondent 4) for violating sections 153A and 153B, IPC.
Reverting to the affidavit of Shri Raut in April 1993 purporting to be on behalf of himself and Shri Bal Thackeray, it was stated, "I am filing the affidavit on behalf of both of us “for the limited purpose of opposing the admission” (emphasis supplied). After the petition was admitted, liberty was given to the respondents to file their affidavits in reply to the petition. Neither Shri Thackeray nor Shri Raut has filed any affidavit in reply.

The division bench was under an obligation to issue a writ of mandamus directing government to give its sanction. The side-tracking of the legal department, the referring of the matter to the Press Council of India which was not the body to give legal opinion, the implicit admission (by the Maharashtra government) that these passages violated provisions of section 153A and that they could be used by the prosecutor in the four prosecutions already sanctioned show beyond any doubt that these passages violated the provisions of both sections 153A and 153B and the government mala fide declined to prosecute respondents 3and 4.

The effect of this failure to file an affidavit in reply has not been appreciated by the division bench. By rules of pleading the omission to file affidavits in reply means that the averments in the petition remain un-traversed and must be accepted as correct by Shri Thackeray and Shri Raut.
 In Shri Raut's affidavit of April1993 (para 7) he says:” Without prejudice to the above, I say that none of the editorials, exhibits A to I, attract the prosecution of respondents 3 and 4 as they have exercised their freedom of expression and commented upon current affairs objectively.” This defence was open to them at the hearing of the petition, but I have already shown that the freedom of expression does not justify publishing articles violating the rights of every person to practice, profess and propagate his religion and insults to the religious feelings of communities. Such offences have not been tolerated by the Supreme Court.

It should be noticed that Shri Bal Thackeray and Shri Raut have not stated on oath that the nine passages complained of do not violate the provisions of sections 153A and 153B because they are torn from their context. It is not for anyone to inquire why they have not said so, and it must be assumed that they had good reasons for doing so.

 In fact paragraph 7 of Shri Raut's affidavit supports this assumption, for Shri Raut has justified the nine paragraphs complained of by stating that they do not attract the prosecution of respondents 3 and 4 and the respondents have exercised their freedom of speech and expression and commented upon current affairs objectively. It is the case of respondents 3 and 4 that the freedom of speech and expression confer on them the right to write the passages complained of even if they violate sections 153A and 153B.

 I will deal briefly with the judgement of the division bench in view of what I have said earlier. As the petitioner prayed for a mandamus directing the state government to grant its sanction to prosecute Shri Bal Thackeray and Shri Raut under the provisions of sections 153A and 153B by publishing the said passages complained of, the questions for the court's consideration was whether the government, knowing and believing that the nine passages complained of did violate the provisions, mala fide refused to sanction to prosecute respondents 3 and 4 for articles which violated the two sections of the IPC.

If so, the division bench was under an obligation to issue a writ of mandamus directing government to give its sanction. The sidetracking of the legal department, the referring of the matter to the Press Council of India which was not the body to give legal opinion, the implicit admission that these passages violated provisions of section 153A and that they could be used by the prosecutor in the four prosecutions already sanctioned show beyond any doubt that these passages violated the provisions of both sections 153A and 153B and the government mala fide declined to prosecute respondents 3 and 4.

It is not necessary to deal at length with the elaborate special pleading by which the division bench held that the passages complained of did not violate the provisions of the two sections. I will only deal with one gross instance of the untenable interpretation put on the editorial in Saamna dated December 9, 1992 (page 38 of the judgement, see page 6)

 At page 37 of the judgement, the court observed: “…In this article, it is true that reference is made to 25 crores of Muslims in India and relying on this, Shri Setalvad argued that Muslims as a whole are criticised. It is an admitted position that in fact in India at that time there were 11crores of Muslims and, therefore, the figure given in the editorial appears to be a typographical mistake and hence from the reference to 25 crores Muslims one cannot draw an inference that whole dig in the editorial is against Muslims as a whole. If one reads the editorial published on December 9, 1992 as a whole, though some caustic language is used, the dominant impression that the reader is likely to carry is definitely not ill-will, spite or hatred towards Muslims in general but it may carry ill-will and hatred against unlawful behaviour of anti-national Muslims including leaders like Imam Bukhari and Shahabuddin.”

 In my opinion, the interpretation given to this exhibit is absurd and perverse. The statement that 25 crores Muslims was a typographical error is based on no evidence. It does not seem to have occurred to the judges that the respondents may exaggerate the number of Muslims in India in order to emphasize the dangers which Hindus and Muslims would face.

Further, the passage divides the population of India between Muslims and Hindus and also states that Pakistan was said to have seven bombs. The seventh bomb was planted in India because Pakistan need not lead an invasion of India: 25 crores of Muslims loyal to Pakistan would stage an insurrection to destroy India. A clearer violation of sections 153A and 153B is difficult to imagine.

In the last two paragraphs which are not conspicuous for their clarity in substance, the court said that if sanction was given, it would reopen wounds between Hindus and Muslims. Public interest required that sanction to prosecute should not be given. This is contrary to the evidence on record.
 The government is prosecuting Shri Thackeray for some articles. The government is normally a better judge of the public interest. The government of India has ordered the prosecution of a number of persons, including a Member of Parliament at the time when riots broke out principally directed against the Sikh community. Such a prosecution would open up old wounds but justice demanded that the guilty should be brought to book.

In my opinion the summary dismissal of the petition for special leave against the judgement of the Bombay High Court by Justices Punchi and Jaychandra Reddy can only be described as amazing and subversive of the rule of law.

A report of the proceedings appeared in the Indian Express by Teesta Setalvad dated January 14, 1995. The two Supreme Court judges had observed that they agreed with the high court's conclusion that it was not in the public interest that the issue should be raked up. But the two Supreme Court judges overlooked the fact that in the whole elaborate judgement (except the last two paragraphs) the court held that respondents were not guilty. The necessary consequence of the summary dismissal is that the Supreme Court confirmed the high court's conclusion that the respondents 3 and 4 were not guilty.
 Justice means justice to both sides in a petition. Not to decide the guilt or innocence of respondents 3 and 4 is a grave abdication of judicial duty to uphold the Constitution and the laws.

For the second reason, namely, that the high court “had its fingers on the pulse of the situation” and public interest would be better served by leaving the situation where it was, there is not a little of evidence that the two judges had their fingers on the pulse of the situation. On the contrary the government which must have its fingers on the situation, did not leave the situation as it was and ordered four prosecutions in respect of articles published by respondents 3 and 4 and one Shri Desai. In respect of these prosecutions government upheld the rule of law.

In view of what I have said in this opinion, the Supreme Court in summarily dismissing the petition for special leave has done great injury to the fabric of our laws. In my opinion once the Supreme Court has before it a full account of the grave issues involved, they should follow the course adopted by the House of Lords in Khwaja's case When it first came before the House of Lords the petition was dismissed. When the petition in Zamir's case came before the House raising the same issues as in Khwaja's petition, the House of Lords recalled its order and admitted the petition.
In my opinion, the Supreme Court should recall its order, admit the special leave petition and decide the matter on merits.

The various segments of this story appeared as part of the cover story of Communalism Combat, January 1995.

The post ‘SC should recall its order’ appeared first on SabrangIndia.

 

It is difficult to comment, much less to criticise, an order of the Supreme Court refusing special leave to appeal under article 136 of the Constitution. It is discretionary jurisdiction. The SC is not bound to interfere with every erroneous order of the High Court, nor does its interference tantamount to an affirmation of the order.

All this is trite law, but then, there are cases and cases. The judgement of the division bench of the Bombay High Court in ‘J.B. D’Souza versus state of Maharashtra’ is one which compelled comment – affirmative or negative – by the highest Court: if only for the reason that it interpreted sections 153A and 153B of the Penal Code (in my opinion wrongly) and held that the offending newspaper articles did not come within the “mischief” of these sections (again in my opinion, in error).

One must first become acquainted with the history of the sections to appreciate the “mischief” they sought to prevent. Sections 153A and 153B were enacted in 1898 as an addition to the Penal Code for the greater protection of public tranquility in a pluralistic society, the members of which professed different religions and faiths.

When in the United Kingdom more than a century ago, Lord Macaulay had protested in British Parliament against the way the blasphemy laws were then administered, he had added: “If I were a Judge in India I would have no scruple about punishing a Christian who should pollute a mosque.”

When Macaulay became a legislator in India, he saw to it (by provisions made in the Penal Code) that the law protected the religious feelings of all – in Chapter XV (Offences Relating to Religion). These provisions were inadequate to deal with riots and civil strife, and the Penal Code was amended to include Sections 153A and 153B.

When judges speak, what they say (and significantly, what they do not say) sends down strong signals. People listen, and shape their actions accordingly. The message conveyed by the judgement lies as much in what it does not say as in what it does. The message clearly is that the intemperate word against a particular community likely to cause disharmony will now not only go unpunished, but will not even suffer a judicial rebuke. This is the single most sinister, most deplorable fall-out of the judgement of the justices Majithia and Dudhat.

Today we are an explosively plural society, and desperately need sections 153A and 153B – but we need to use them as well. They remain on our statue book to give assurance to the people of India that promoting enmity between different groups on grounds of religion will not be tolerated and will be visited with penal sanctions; to guarantee to the minorities that secularism is a basic feature of our laws, an affirmation made so very recently, and in such eloquent terms, by a bench of nine justices of the Supreme Court (in Bommai’s case – March 1994). It is this assurance that was denied to the people of Maharashtra, especially to the minorities in the state, by the High Court of Bombay.

And it was for this reason that the discretionary jurisdiction of the Supreme Court was invoked, but without success. The ratio of the judgement of the High Court ought not to have been permitted to stand, and made non-vulnerable only because of the rhetoric expressed at the end. The judges of the High Court felt (and said so in one of the last paragraphs of the judgement) that launching a prosecution now would be futile since “a lot of time has elapsed and peace, tranquility and communal harmony, of which Bombay city is historically proud of, is restored.” A moment’s reflection would (and should) have convinced the justices that it was inflammatory articles such as those cited in D’Souza’s writ petition that had aggravated (if not contributed to) the violent disturbances that shook Bombay in January 1993; and that if such-like articles were repeated the already fragile edifice of “communal harmony” (dear to the hearts of the judges) would collapse.

There is something more. Nowhere in its 57-page judgement does the High Court express any displeasure at the tone and content of the offending articles. There is no expression of censure, no record of any expression on the part of the offending newspaper of contrite grief; for religious feelings which may have been hurt.

When judges speak, what they say (and significantly, what they do not say) sends down strong signals. People listen, and shape their actions accordingly. The message conveyed by the judgement lies as much in what it does not say as in what it does. The message clearly is that the intemperate word against a particular community likely to cause disharmony will now not only go unpunished, but will not even suffer a judicial rebuke. This is the single most sinister, most deplorable fall-out of the judgement of the justices Majithia and Dudhat.

That all this should not have been seen fit to be corrected by the Supreme Court of India when its jurisdiction was invoked, prompts only a plaintive prayer, “Where then, O Lord, shall we turn, for the redressal of palpable wrongs?”
 

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“To all minorities in India, the Bombay High Court and Supreme Court have by their conduct, denied any guarantee that secularism is the basic feature of Indian laws.”

The same Bombay High Court, through several judgements delivered in the past eight years (including one delivered by me) has set aside the election of several Shiv Sena MLAs on grounds of Sections 123(3) and 123(3)(a) of the Representation of People's Act (RPA). These petitions, among other evidence, relied upon the speeches made by Bal Thackeray during electioneering, raving about "anti-national Muslims". Then the High Court saw fit to set aside the election invoking these sections.

Section 123(3) (a) of the RPA coincides exactly with Section 153(a) of the Indian Penal Code. This special leave petition by D'Souza has also cited editorials from Saamna that clearly violate this section. Why has the High Court deviated from a line of thinking adopted consistently earlier? And the Supreme Court going along with this? I find it particularly disturbing because one can notice a trend — the majority judgement in the Ayodhya case that was blatantly perverse, now this.   
 

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It is extremely unfortunate that the judiciary has not intervened in this case where the law has been openly flouted and communal hatred spread by Bal Thackeray through his mouthpiece, the Saamna.

History teaches us that unless these pernicious tendencies are scotched they grow to become unmanageable monsters later on. The argument that a prosecution of persons responsible for spewing hatred would rake up past events is totally misconceived because there has been no re-thinking or regret by the authors of the writings and every likelihood of such actions being repeated.
 

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Nani Palkhiwala

I am deeply distressed that even the Court did not give priority of priorities to the cause of amity and national solidarity. On a perusal of the papers, in my view the dispassionate conclusion is as follows.

(1)  The High Court was in error in not allowing the petition to compel the government to sanction a criminal prosecution under Section 153A and Section 153B of the Indian Penal Code, because there is clearly a prima facie case that the Sections had been violated.

(2)  It is true that the Supreme Court is over–burdened with more than two lakh cases pending, but it should have granted special leave to appeal against the High Court’s judgement rejecting the petition. After all, what is involved in this case is the entire future of India and the type of journalism which the state is willing to countenance or condone.

(3)  The basic principle of democracy is that no one is above the law. If any government flouts this principle for reasons of political expediency, it is doing irreparable damage to the democratic fabric of the national polity. The Maharashtra government did do that irreparable damage, and that is why public-spirited citizens moved the Court in the matter.            

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