The Tribune, Chandigarh, India

A rudderless BJP
Hurtling from crisis to crisis

The BJP has no reason to gloat over the manner in which it has saved the Yeddyurappa government from collapse after days of intense infighting within the party in Karnataka. Clearly, the deal that has been struck at the party high command’s instance between Chief Minister Yeddyurappa and his Cabinet colleagues, mining barons Karunakar Reddy and Janardhan Reddy, who spearheaded the massive revolt against him, amounts to a virtual capitulation to blackmail by the Reddy brothers. Some of the transfers of convenient officials in Bellary district which the Reddy brothers were piqued over, have been rolled back, Rural Development Minister Shobha Karandlaje has been sacked at their instance and the proposal of a tax per truckload of iron ore or other minerals has been abandoned. What is more, the Chief Minister’s authority has been severely compromised by the decision to set up a core committee headed by BJP central leader Sushma Swaraj with the Chief Minister and the elder of the Reddy brothers as members to decide on tangled issues. The message is loud and clear that the mining duo can go about their business with no holds barred and no real checks.

It is indeed astonishing how the BJP is hurtling from one crisis to another and emerging from each one sullied and shattered as a unit. The next flashpoint would predictably be Bihar where its Deputy Chief Minister, Sushil Kumar Modi, is up against an array of dissidents. Both Leader of Opposition L.K. Advani and party president Rajnath Singh have proved woefully unequal to the task of reviving a tottering party that seems rudderless despite being caught in choppy waters. With a new party president likely to take over before year-end, and Mr Advani expected to bow out finally a little later, all eyes are on whether the new leadership would make a difference, but the portents are grim indeed.

It is unfortunate that the country’s main Opposition party is in such utter disarray. But for this it has no one to blame but itself — its old, discredited and unimaginative leadership and its ideological myopia.

Arms from China?
Maoist menace runs deep

Not only various security agencies but even Home Minister P Chidambaram has said in the past that Maoists are getting arms through Bangladesh, Myanmar and possibly Nepal. Union Home Secretary G K Pillai has now made a shocking revelation that small arms could be coming from China. This is perhaps the first time that a senior official of the government has claimed that Maoist guerillas were acquiring weapons from China. He would not have brought this to public notice unless there was a solid base for it. That makes it a matter of deep concern because the sympathies of the Maoists for the Chinese ideology are well known. Mr Pillai had earlier spoken about the links of Indian leftist insurgents with the Maoists in Nepal but had maintained that there was no clear evidence about the Nepali Maoists assisting or providing arms to their Indian counterparts. But regarding the Chinese, he has said that he is “sure” that they are providing small arms to Maoist guerillas.

It is not clear whether arms are coming from Chinese arms smugglers or from undercover official agencies, but in either case, it is an extremely serious matter. Even otherwise, in this dirty international arms bazaar, many smugglers are linked to official agencies. We have the instance of the ISI before us in this regard.

The Chinese can be depended on to deny the allegation, and rather vociferously. More than pinning it down or entering a war of words with it, what is necessary is to keep a check on arms traffic along the trail, and also keep our own powder dry. Chinese smugglers manage to send in the small arms only because of the poros border. Far greater vigil is the need of the hour.

Thought for the Day

We live our lives, for ever taking leave. — Rainer Maria Rilke

ARTICLE

Accusations of bias against judges
Media must play its role responsibly
by P.P. Rao

The judiciary and the media are two strong pillars of democracy. They are easily accessible to the people and enjoy popular support, the media as the watchdog and the judiciary as the dispenser of justice. They play a vital role in upholding the rule of law. According to the Press Council of India, before publishing a news item about court proceedings, it will be appropriate for the correspondent and the editor to ascertain its genuineness, correctness and authenticity from the records. Misleading allegations of bias against a judge tend to undermine the credibility of the judiciary and interfere with the administration of justice.

Three news items have appeared recently; first in a newsmagazine of September 05, targeting Justice S.H. Kapadia, the senior-most judge, then in a national daily dated October 13 continuing the attack and thereafter in the same paper dated October 21. This last report, with the headline “Judge has equal RIL, RNRL shares — but he continues on Bench as parties have no objection”, names Justice R.V. Raveendran in addition. The news items give the wrong impression that the judges are guilty of a serious lapse.

In all fairness to Justice Kapadia, the magazine ought to have mentioned the crucial fact that he had made it clear at the very outset that he had shares in the company, which is a party before him and if anyone had objection, he would not hear the matter. A few illustrations would show that this has been the practice.

In the bank nationalisation case (R.C. Cooper vs. UOI), as soon as the Bench of 11 judges assembled, Justice J.C. Shah announced in the open court that some of them had shares in the nationalised banks and if anyone had any objection, they would recuse themselves from the case. Waiving their right to object, all the counsel requested the court to proceed. Nobody questioned the verdict of the Bench as vitiated by bias.

The government was required to give a hearing to a person before blacklisting him, i.e. disqualifying him from entering into any contract with the government in future. Justice K.K. Mathew, one of the judges on the Bench, had earlier decided this very question as a judge of the Kerala High Court. As the case was called out, he mentioned this fact and gave a chance to object. All of us representing the parties said, we had no objection to the judge hearing the matter. Traditionally, while hearing a case, judges have an open mind. They are conscious of their solemn oath to act without fear or favour, affection or ill will. If a judge is impressed with an argument advanced before him, which was not put forward earlier, he would change his mind.

There are instances where the same judge took a different view in a subsequent case in the same court. Justice N.H Bhagwati, who was a member of the Constitution Bench in State of Bombay vs. United Motors, interpreted Article 286 (2) of the Constitution dealing with the levy of tax on the sale or purchase of goods which takes place in the course of inter-state trade or commerce. Subsequently, in Bengal Immunity Company vs. State of Bihar, he over-ruled his decision in the United Motors case, giving reasons for interpreting the same provision differently.

Apprehension of bias could be for any reason. Haryana terminated the services of a judicial officer accepting the unanimous recommendation of the Chief Justice and all the judges of the High Court. When he tried to challenge the order in the Supreme Court directly, apprehending bias on the part of High Court judges, he was asked to move the High Court first. It was because when the judges sit on the judicial side, they are not bound by their own view taken on the administrative side earlier. Hearing the case in the open court, they are free to take and do take an independent decision on the basis of the record and arguments advanced by counsel. There have been several instances where the judges sitting on the judicial side have set aside resolutions of the Full Court to which they were parties on the administrative side. There is no question of reasonable likelihood of bias in such cases.

In Roopa Ashok Hurra’s case, the Supreme Court permitted a person aggrieved by a judgement of the court to file a curative petition, after the dismissal of his review petition, on two grounds. One of them is that the judge who decided the case had failed to disclose his connection with the subject matter or the parties, giving scope for an apprehension of bias. The basic principle is that justice should not only be done, but be seen to be done. Hence the requirement that a judge should disclose his connection with the subject matter or the parties to the case. It is open to any party to object and have the case transferred to another judge.

As Frank, a judge, pointed out, “if ‘bias’ and ‘partiality’ be defined to mean the total absence of preconceptions in the mind of the judge, then no one has ever had a fair trial, and no one ever will. The human mind, even at infancy, is no blank piece of paper.” Because of their training and tradition, judges rise above their predilections and take decisions objectively. This is the basis on which power of review is conferred on judges to correct their own judgements and orders pronounced in open court on the ground that they suffer from errors apparent on the face of the record.

In England, Field, a judge, held that a magistrate who subscribed to the Royal Society for the Prevention of Cruelty to Animals was not thereby disabled from trying a charge brought by that body of cruelty to a horse, observing that a mere general interest in the general object to be pursued would not disqualify. There must be some direct connection with the litigation. Likewise, being a shareholder of the company without any other direct interest in the subject matter of the dispute before the court, does not disqualify a judge from deciding the case. However, law insists that he ought to disclose this fact. The test is whether there is substantial possibility of bias animating the mind of the judge against the aggrieved party.

In the Jammu and Kashmir High Court, the son of a judge who is an advocate could appear before his father if he was sitting with another judge or judges on the Bench, but not when he was sitting alone. In the Supreme Court, judges always sit in Division Benches with one or more brother judges. A judge with a closed mind is a contradiction in terms.

It is well settled that the plea of bias can be waived. Normally, when a judge discloses his interest in the case, the lawyers would not object because of their faith in the honesty of the judge. Two out of three judges of the High Court of Punjab and Haryana who heard Inderpreet Singh Kalhon’s case had been members of an administrative committee which found that the selection of the petitioners was tainted and recommended cancellation of their appointments as judicial officers. When they mentioned this fact, nobody objected.

In the Supreme Court, Justice S.B. Sinha felt that the judges should have recused themselves from hearing the matter, but Dalveer Bhandari, a judge, rightly disagreed with this view. He held that the judges having disclosed the fact that they were members of the committee, in the absence of any objection from the petitioners, there was no illegality in their hearing the matter. As the law stands today, it is unfair to allege bias on the part of judges who had fairly and voluntarily disclosed their share holding in the company and heard the case in the absence of any objection.

Freedom of speech is the birthright of the media. But freedom does not mean licence to denigrate the judiciary and erode the confidence of the people in the institution.Rule of law needs a credible judiciary and a responsible media.

The writer is a senior advocate of the Supreme Court of India.

MIDDLE

Of lessons taught and remembered
by Simrita Sarao Dhir

I can close my eyes and travel back 17 years to that high-school history class where we talked about Adolf Hitler and Mussolini, Japanese aggression and the attack on Pearl Harbour, FDR and the victory of the allies, the Cold War and the subsequent disintegration of the USSR.

Sitting in that class, I would take flight and imagine those far-away places and those defining moments in world history. And as every student knows, a class is only as good as the teacher teaching it. Well, we all knew that Mr SPS Brar was every bit the kind of teacher to be teaching that World History class.

Mr Brar was among the few people at YPS Patiala who had travelled across Europe, and lived abroad. He could speak a foreign language and, most important of all, he had seen Richard Burton perform live on stage in London! He always came in handy to comment on best-selling books and the latest Hollywood flicks. But of course, his real love was history and all his lessons were replete with steady references to the presentation of history in fiction and films.

Besides going over the history lessons, Mr Brar worked immensely hard on our writing. We would be sure that he would go over every single line of our history essays and diligently punctuate, correct and re-write our compositions. And while preparing for inter-school debates, he helped greatly with diction and pronunciation. It would suffice to say that he was the quintessential public-school master who worked on the complete development of the students.

Today he is best remembered by students for his incredible one-liners. Like the time when a few boys from another public school joined YPS and on finding them out of their element one afternoon, Mr Brar commented, “We have enough clowns of our own; I don’t know why we have to go about importing more from other places!”

Yet another time, when the class had nothing to contribute to his thoughts on the Anglo French Policy of Appeasement during World War –II, he lamented, “You are as blank as the wall next to you.” Not being one to bear with indiscipline, he was also often heard declaring, “I don’t suffer fools.”

My husband, also as old student, loves to relate his favourite Brar wise-crack. It came when he commented to Mr Brar that he was planning on preparing for the exams. To that, Mr Brar retorted, “I hope it is not a five-year plan!”

The repartees aside, on a personal level, Mr Brar was warm and friendly and watched over the students like a parent. He enjoyed talking about his four children, who lived abroad and a favourite niece.

My unforgettable memory of Mr Brar is when he drove me and a classmate to YPS Mohali for an inter-school event and when even though, he was rushed to return back, he took time to treat us both to ice-cream! With time, as everything seems to fade, a few good memories are all that remain. That trip to the ice-cream parlour on that summer’s day definitely makes for one.

Mr Brar retired from teaching soon after I completed high-school. The last time I saw him was about a decade ago. However, he was with me in spirit when visiting the Palace of Versailles, where the momentous treaty was signed in 1919. He also ran across my mind when strolling through the Pearl Harbour museum that features World War- II memorabilia and pictures of the historic attack.

Yesterday, my mother called to say that she heard from a friend that Mr Brar had passed away. And while a frog leaped from somewhere and settled in my throat, I knew at once that a good teacher never really goes away. Like the exemplary Mr Chips, an exceptional teacher continues to teach and inspire long after the lesson is done and over with.

OPED

Judges’ assets
Intellectual attainments or material possessions?
by J. L. Gupta

Finally, SC judges declare assets’ is the headline. Have the people gained? Will it improve the quality of justice? I think not. In fact, the whole controversy regarding the declaration of assets by the members of the higher judiciary is unfortunate. The fact that fuel has been added to the fire by some who were once a part of the judicial system makes it worse.

It is true that those who sit in judgement over their fellow human beings should be men of character, intellect and integrity. They must inspire confidence in the minds of people.

But can we stretch it to mean that every person who dons the judge's robes must live in a glass house? Or that a lawyer who sacrifices his lucrative practice to accept elevation must expose himself to the prying eyes of the public? And can the declaration ensure integrity?

If yes, this would necessarily mean that the judge and his family must not only declare the area of land, houses, money (in bank and hand) but also the number of bags and bangles, beds and bed covers, crockery, cutlery etc.

In other words, the judge must place a list of all the movable and immovable assets on the web site. Would it not enable an unscrupulous litigant to pick holes in the declaration and raise unsavoury controversies everyday? Will it not be a licence to throw stones at the judge knowing that he cannot answer back? Would the whole exercise be not wholly counter-productive?

It is known that members of the higher judiciary come from the Bar and the Judicial Service. The lawyers considered for elevation furnish copies of their income and wealth tax returns to the Chief Justice. After appointment, they have to continue to comply with the tax laws. Similar is the position with regard to the members of the Judicial Service who are picked up for appointment to the High Court. In addition, their annual property returns are invariably with the High Court. Thus, the complete details are always available with the government and the High Courts. Why is that not enough?

Secondly, society needs to understand the onerous nature of the judge's job. Every litigant believes that his case is good and the cause just. The person who wins is always certain that justice has been done. He has only got his due. However, the side that loses invariably believes that a serious wrong has occurred. Resultantly, with every case that a judge decides, he earns a critic.

The litigant makes all kinds of baseless allegations. It is to protect the judge from such elements that the framers of the Constitution had provided protection to the members of the judiciary. We can violate it only at our own peril.

And then, what are a judge's real assets? The brain or the bank balance? Fortune or fortitude? Intellectual attainments or material acquisitions? The extent of possessions or the absence of wants?

An ass can carry gold but eats only grass. The man in robes is not very different. Usually, he works like a horse and lives like a hermit. And yet, we complain.

Today, the civil society faces a crisis of character. There is a devaluation of values. Most of us, who talk of values, actually love valuables. In the morning, we pray. Then we spend the whole day looking for a prey. And all of us are a product of the society that we live in.

When the wood is crooked, the furniture cannot be straight. In today's environment, despite checks, a black sheep can enter the system. However, such situations have always been effectively dealt with. Invariably, the unwanted weeds have been weeded out.

Still more, let us not forget that we are a democracy. Freedom of speech is a guaranteed right. Thus, it is no surprise that almost everyone assumes a right to criticise.

Some of us live only to find faults. They continuously hunt for blemishes. It is a miserable mission. It can be totally destructive. We need to remember that it is difficult to build an institution. Any fool can destroy it.

In India, the judiciary is one institution that has served society well. It has functioned without fear or favour. Let us not ruin it by raising avoidable controversies. As it is, good lawyers are no longer keen aspirants.

If we persist, I suspect that we shall spoil things beyond repair. We need to protect it against malicious vilification.

Truly, no system can be perfect. But we know that the judges work in open court rooms. Under the constant gaze of the parties and their counsel.

Nothing escapes the eagle's eye. And then their judgements are public property. Open to critical scrutiny by one and all. That is a good check.

Lastly, there is an old saying — ‘Believe less than you hear of a man's fortune and more than you hear of his fame.’ It is apt in the present context.

Today, we know as to how rich or poor each judge of the apex court is. It makes no difference. A judge's worth has to be judged on the basis of his work. Tales about his wealth may never be true.

When Berlin Wall fell
by Rajendra Prabhu

The tearing down of the Wall by the very East German people, whom the communist system was seeking to protect from the contamination of Western capitalism, was the greatest denouncement of the system that once inspired thousands of intellectuals, students and activists to dream of a workers' utopia on this earth.

Instead of a utopia, the East Germans found themselves trapped in a horrible, poverty-stricken, inefficient system where every citizen had to distrust the other. The way the Wall functioned and the East Berlin people's anger at being trapped in this promised utopia gone wrong, need to be recalled on this 20th anniversary of the end of the structure.

When the Wall was there the sight of this huge structure as we land at the Brandenburg Gate, the only entry into East Berlin from the western part of the ancient German capital, was forbidding.

Apart from the steel and concrete structure the eastern side of the Wall was mined to prevent any East Berliner from trying to jump across the Wall to freedom on the western side of Berlin. Watch towers all along the Wall with armed sentries keeping vigil 24 hours and strong lights scanning every nook and corner were supposed to prevent anyone from trying to escape.

But on the western side of the Wall we found several spots where someone or the other sought to escape from the communist utopia and were shot down. These spots were marked by flowers and burning cables put up by West Berliners to commemorate the courage of man against all odds to escape to freedom.

What happened on November 9, 1989, was a tremendous celebration of the human spirit.

Historians remember President Reagan standing near the Wall in 1987 and challenging the then Soviet leader with these historic words: "Mr Gorbachev, tear down this Wall." As the surge of the East Berliners into the West continued and the border guards stood stunned, the end of the Wall had already been written in the heart of the people.

Considering the forbidding nature of the Wall, the courage of the people to break through it, irrespective of consequences, was a celebration of the spirit of freedom. Gorbachev could not have stopped them without causing a terrible human tragedy.

When Chancellor Kohl offered unification of the two Germanys after the collapse of the East German communist regime, he was generous almost to a fault. Later in East Berlin two years after the reunification the initial enthusiasm of the East Berliners had ebbed and a certain dissatisfaction was brewing.

Chancellor Kohl and his advisers apparently had miscalculated the economic gap between the two Germanys. Though East Germany was the most technologically advanced among the East European nations behind the Iron Curtain, the technological gap was huge. "We expected East German industry to be ten years behind ours" said a West German official to me two years after the reunification, "but it really turned out to be 25 years behind".

The result was that the East Germans soon found themselves at a disadvantage in their standard of living compared to their Western counterparts. To improve their standard of living, Kohl had offered to bring their real wages on a par with the Western part step by step in three years.

In 1993 I found that while the East Germans began to grumble at their plight even after reunification, West Germans were unhappy that their standard of living was affected as huge subsidies had to be given to the eastern part of the country to bring the former communist subjects up to the West German living standards.

But the greater problem was what to do with the industrial units in East Germany which simply had to close down as they could not compete with the more technologically advanced West German industry. The unified German government still functioning from Bonn constituted a special department to sell these closed units for a song to anyone who was willing to invest in them and turn them round without cutting down jobs.

At the time I went to former East Berlin I met some Indian entrepreneurs in Germany who were enthusiastic to take over these closed units but later I came to know that they found the job trying. Many European and American investors also suffered losses in taking over these units.

The East Germans found it somewhat difficult to cope up with the fast pace of the Western part of their country. They had now to pay market rent for the flats that earlier they occupied for a government-determined small rent.

Each and every citizen was forced to lie about his close relations and colleagues in order to convince the secret police that he or she was loyal to the communist regime. Every one lied against everyone else, parents against children, husbands against wives, students against teachers, executives against one another and so on.

Within months the entire population of former communist regime had come under a trauma after some of them who read these files revealed the content. The reaction was so severe the authorities were forced to close the files virtually to save the people from "going mad" as the media then put it.

That exposure of the truth about the communist regime explained the surge of people that finally defeated the Wall and also the communist regime itself. Satellite TV had made it impossible for the communist regimes in Eastern Europe to continue to convince their people that it was all starvation of workers in the Western part. The psychological pressure to lie to survive 24-hour surveillance by the secret police began to tell on them.

Like a Tsunami, the wave for freedom impacted the whole of Eastern Europe when the truth about living standards in the capitalist West came to be known and one by one the communist regimes fell.

East German dictator Honecker was arrested and tried and so were the communist rulers in Hungary, Poland, Rumania, Czechoslovakia and finally Albania, which had the most oppressive, almost Orwellian regime.

The satellite pictures of people crossing over in droves to Western Europe shook the people under the communist regimes elsewhere and by 1991 the Russians under the then mayor of Moscow Yeltsin defied the Soviet tanks that led to the collapse of 75 years of communist rule in Russia.

The succession of these events had confirmed the one great lesson of history of mankind: that the spirit of freedom cannot be walled in for long. For me, as a journalist, it was a huge satisfaction to see the spirit of freedom peeping through the oppressive communist regime in Soviet Union in 1984 when I was in Moscow at the peak of Soviet power and then breathe the free air of the same Russia in 1993 after the fall of the communist regime there.

The collapse of communism in Europe that the tearing down of the Berlin Wall foretold was the most significant, earth-shaking event of the latter half of the last century.

Delhi Durbar
London banquet mismanaged

India may be touting itself as a great emerging world power, out to make a mark in the world, but it needs to learn many more lessons before it can aspire to stand alongside the developed Western world. And one of them is service and hospitality.

A contrast was so apparent during President Pratibha Patil’s recent state visit to the UK and Cyprus. The sit-in dinners thrown in her honour both in London and Nicosia by the Indian High Commission were a spectacle of disorder and mismanagement, a complete disaster, even as the two High Commissions made much song and dance about seating arrangements.

A lot of it had to do with lack of manpower. As against hundreds of young men and women ready to serve at the official banquets hosted by the British authorities in London, the Indian one had barely 15 or 20 to serve more than 500 guests on nearly 50 tables. Imagine India being beaten, of all the things, on service and hospitality!

Social justice can wait

Ever since he took charge of the Union Social Justice Ministry, Mukul Wasnik has barely managed to spend time on ministry affairs. Time and again, he has been called in to double up as a political manager for the Congress, which first placed him in his home state of Maharashtra to take care of the assembly polls in Nagpur, and has now put him in charge of another poll-bound state.

Just when one thought the minister would surface from his political engagements to attend to the urgent ministry tasks, he has been saddled with the responsibility of victory in Jharkhand, where the electoral deal with the Jharkhand Mukti Morcha has just been sealed. With Wasnik so indispensable to Congress politicking, one wonders what would happen to the social justice ministry’s challenging tasks.

Workaholic Law Minister

Law Minister M Veerappa Moily vowed to make his tenure an era of judicial reforms that will result in the disposal of cases within three years against 15 years at present. This forced him to work in his office from 10 a.m. to almost 9 p.m. most of the days.

But all this has not affected a wee bit his passion for writing, be it mythology and its relevance for the present times or new roadmaps for critical sectors of the economy to spur growth. He is working on a book that will compare Draupadi with Indira Gandhi, Benazir Bhutto, Margaret Thatcher, Cleopatra et al.

He is also writing several books under the “Unleashing India” series. A roadmap for agrarian wealth creation was released recently. The subsequent volumes will focus on the power sector, human resource and knowledge. How does he find time for all this?

Contributed by Faraz Ahmad, Aditi Tandon and R Sedhuraman

Corrections and clarifications

n The headline “Zirakpur MC building a shambles” (Page 4, November 9, Chandigarh Tribune) should instead have been “Zirakpur MC building in a shambles”.

n The report about a new governing body for the old students’ association of the Yadvindra Public School, Patiala, has been carried on Page 3 of the paper on November 9 and repeated on Page 4 in the “Briefly” column. Our regrets.

n In the headline on two youths stuck at Kuala Lumpur airport, Malaysia has been mis-spelt as Malasia (Page 1, November 6, Chandigarh Tribune).

n In the headline “Finally, Congress arrives at stop-gap formula” (Page 7, November 7), it is not the formula that is stop-gap but the arrangement that is so.

Despite our earnest endeavour to keep The Tribune error-free, some errors do creep in at times. We are always eager to correct them.

This column appears twice a week — every Tuesday and Friday. We request our readers to write or e-mail to us whenever they find any error.

Readers in such cases can write to Mr Kamlendra Kanwar, Senior Associate Editor, The Tribune, Chandigarh, with the word “Corrections” on the envelope. His e-mail ID is kanwar@tribunemail.com.

H.K. Dua,
Editor-in-Chief