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Rising powers, shrinking planet
Retirement of judges
Profile
On Record
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A Tribune Special
The sociological school of legal jurisprudence propounds more or less this view, albeit in words and expressions, more profound, eloquent and impacting, than this writer is Roscoe Pound regarded law as a social reality — an objective fact with society as its basis. Law to him was a social process of adjusting, compromising and balancing of social and individual interests. Law was, thus, an instrument of social control, operating in society and applicable to conflicting social interests and problems. Sociological jurists emphasise upon social purposes which law sub-serves rather upon sanctions. Both Ihering and Duguit, advocates of this school, considered the notion of state and sovereign lesser than society. A society is a pyramidical concept consisting of an individual, family, groups, conglomerate of groups cohesced to commonality of culture and practices. Behavioural patterns exhibited by them are like tectonic plates of the earth, constantly in friction with each other, often leading to volatile situations when parochial considerations attain paramountcy of behaviour. Law provides a common thread, which finetunes such frequently occurring frictions. Society and its constituents are in a state of rapid influx due to continuous growth. Surge of liberalism has only acted as a catalyst, and this rapidity of change has resulted in a transgression of one group on to the other’s turf, leading to a conflict in values and the resultant reaction is an authoritative reassertion of tradition to preserve one’s identity, seemingly ensconced in protective cocoons. Denunciation of inter-caste marriages, same gotra marriages followed by reactionary killings, social ostracisation to cite gender subversion are examples of such behaviour aimed at perverted conservatism. Since growth and change in society is continuous, so is law. One may argue for a special law to meet with reactionary killings, but what sort of law is required to meet this situation? Law that is stringent and acts as a deterrent? or a law which addresses such assuaged emotions? Or is any law required at all? For don’t we have sufficient provisions in the Penal Code that take care of murders? After all, a murder is a murder, even the most gruesome one. Recent studies by researchers have tried to analyse the role of emotions in law. They argue, quite convincingly that every law is dictated by some or other human emotion. Terry A. Maroney, in his article “Law and emotion: A proposed taxonomy of an emerging field”, delineated the relevance of emotions to law by referring exhaustively to the work of scholars. Applying some of the contents of his article, one can argue that all the penal laws have their roots in an emotion identified as retribution. The whole concept of crime and punishment is “tooth for tooth and eye for eye”. The degree of punishment specified for each offence is proportionate to the gravity of injury and desire of retribution of the victim. Severest forms of retribution is seen in societies governed by medieval law which justifies stoning, public execution, lashing etc. Emotion of pardon — compassion to reform the offender, is ingrained in the concept of “just sentencing”. The court while awarding a sentence, may in its discretion, having regard to the diabolism of execution of crime, award the maximum sentence provided, but tone it down by considering factors, such as age, the offender being a woman, pregnant woman, a juvenile, first offender, etc. Similarly, the law of compensation — Tort, Motor Accident claims, workmen’s compensation, Section 125 of the Code of Criminal Procedure, 1973, Section 24 of the Hindu Marriage Act, 1955, Restitution of conjugal rights, Family laws and the interpretation of Article 21 of the Constitution of India qua Pavement Dwellers, Right to Education and Gender equality etc., are classic examples of emotion-based law in India. Judicial pronouncements by the courts have continuously expanded the scope of these laws. The very concept of substantial justice and equitable justice means liberating the laws captive to reason to emote with the sufferer. Arguably, law is, therefore, likely to traverse into this domain, more so when the problem such as “honour killing” or more appropriately “shame killings” is an outrage of emotion of disgust hate, insult and shame. Martha C. Nussabaum and D.M. Kahan, a few of the pioneers in this field of law and emotion, have focussed on this feeling of disgust. They have debated widely on the legitimacy of disgust as the basis of legal rule making. Nussbaum described disgust as “anti-social and dehumanising”. Kahan, on the other hand, tries to redeem disgust when he says that there are “situations in which properly directed disgust is indispensable to a morally accurate perception of what’s at stake in the law.” The purpose of arguing, thus, is that all these emotions, such as disgust, hate, insult and shame collectively erupt in a crime, such as “honour killing”. Hence, the law, which necessarily interferes with the lives of people and is pervasive, if enacted, must in all sincerity address these emotions. It can be done only if a proper methodical study and painstaking research, by sociologists, psychologists and legal luminaries, is undertaken. Kahan’s view, perhaps, may be relevant in directing the disgust of society while translating it into a morally acceptable law. To exemplify, we are witness to the enactment and execution of laws, such as the provisions of Section 304-B and 498-A of the Indian Penal Code, which were driven by the disgust of society towards brides being burnt and done to death on account of inadequate dowry. Stringent provisions, these, but which still failed to provide succour to society, torn between practices which accepted dowry as a tradition as juxtaposed to demands of progressive modernism shunning such values rightly seen by emancipated woman as a negative assertion of gender equality. The doors of a domestic household were opened to the ruthless arm of law resulting in complete breakdown of marriage as an institution and social fabric virtually torn apart. Such a law is now hostage to abuse and it is left for the courts to carefully filter out such abuse in their judicial pronouncements so that the benefit of the residue percolates down to society. The courts’ anguish finds resonance in the observations of the Supreme Court of India when judges wrote while dealing with a case arising out of marital discord: “Before parting with this case, we would like to observe that a serious re-look of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately, a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of society. It is high time the legislature took into consideration the pragmatic realities and made suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and pragmatic realities and make necessary changes in the relevant provisions of law. We direct the Registry to send a copy of this judgment to the Law Commission and to the Union Law Secretary, Government of India, who may place it before the Hon’ble Minister for Law and Justice to take appropriate steps in the larger interest of society.” To conclude, therefore, one can say that before any law which touches upon the lives of the people, and impinges upon delicate intricate emotions fuelled by tradition which propel humans on to a course in conflict with law, the underlying emotions which cause such a behaviour need to be assimilated in the womb of legislative process at the conceptual stage. Otherwise, any enactment would be like a child born with a congenital defect, which will give society the bliss of having a baby but will also cast an onerous burden of cradling
it. The writer is Judge, Punjab and Haryana High Court, Chandigarh |
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Rising powers, shrinking planet
We are only a decade into the 21st century, but momentous shift in global power relations and a changing of the imperial guard are there for all to see. What shape the new world order takes will not be known until a few decades from now. One thing is, however, clear that the world has rejected the Western coercive paradigm. The misery of US and NATO in Iraq and Afghanistan is an illustrative case in point. The way Pakistan is thumbing its nose at the US even though it is critically dependent on the doles from Washington clearly suggests that the only super power of the day is a pale shadow of its former self. But has the world begun to reject the liberal, capitalist model as well? China will definitely have us believe so. The irresistible shift of global power to the east and south has placed China in an unenviable position. The title of Martin Jacques’ book When China Rules the World: The End of the Western World itself is quite instructive. The rise of China appears to mark the end of Western global hegemony. Many in China and elsewhere tend to believe that while Western neo-liberal model has collapsed, Chinese capitalism continues to be in ascendance. As the self-delusion of the American political class in the face of its tax-dodging, bonus-guzzling, pension-pinching unregulated free market becomes increasingly evident, resentment against the US in China is being replaced by contempt and derision. But is it Chinese capitalism, whatever it may mean, or socialist market economy that is winning or is it Chinese civilisation? As Martin Jacques argues, China “may seem like a nation state, but its geological formation is that of a civilisation state.” Many would tend to agree with Deng Xiaoping who famously said, “It does not matter what colour a cat is as long as it catches mice.” Japan’s rise to an economic colossus was thanks to “Western technique, Japanese spirit” as its winning formula. China too has followed somewhat similar formula, that is, Ti Yong. In the last stages of the Ch’ing Dynasty, the slogan was Ti (essence) Yong (practical use) which meant China should maintain its own style of learning to keep the essence of society, while using Western learning for developing infrastructure and economy. China has already replaced Japan as the world’s second largest economy. But Japan did not just adopt “Western technique”, it also followed Western liberal democracy which China abhors. But will China’s one-party, authoritarian model find many takers? Here again, China believes it will. Not every one does. China has shown a fundamental faith in the government’s ability to solve economic problems. In real sense of the term, China could never become capitalist because of Confucianism or ‘Confucian rationalism’. Again, not many countries can count on a billion Guinea-pigs. Not many in the West believe, China as a leading global power will go by the rules of the game. It has already started playing global hard-ball. China’s massive aid to non-democracies and its aggressive pursuit of wealth in far off Africa and Latin America has stalled, if not reversed, the expansion of democracy and brought about a consolidation of dictatorship among authoritarian regimes wary of democratic transitions. Larry Diamond calls it “democratic recession”. Now by launching an ambitious 24-hour English Channel on the lines of BBC and CNN, China wants to spread its message and its model to the world. The aggressive China is no longer content with the coverage it gets in the American media. It now wants to own it. A few weeks ago, China’s Southern Media Group made an unsuccessful bid to buy Newsweek magazine from its owner, the Washington Post Co. There was skepticism among investors and lawmakers in the US when China made big investments into US industries like Bear Stearns, Blackrock (BLK, Fortune 500) and Morgan Stanley (MS, Fortune 500) at the height of the credit crisis. Another country that has continued to rely on the coercive model for asserting its power vis-à-vis its neighbours is Russia. If China has claimed sovereignty over the whole of South China Sea, Russian President Dimitry Medvedev has claimed its “zone of privileged interests”. Russia has customs union with Belarus and Kazakhstan but Moscow did not bat an eyelid and cut gas supplies to its so-called close ally in the wake of a spat over gas. Last year when Belarus president refused to recognise the independence of South Ossetia and Abkhazia, Moscow banned milk products from Belarus. Russia’s position towards other neighbours like Georgia and Ukraine has been intimidating, to say the least. On its own admission, Russia has deployed S-300 anti-aircraft missiles in Abkhazia. Moscow is apparently trying to warn NATO and the US not to help Georgia rebuild its air force. China has often claimed that it has risen onto the world stage peacefully. Not many would buy this argument. China has consciously avoided behaviour that would arouse fear on the part of its neighbours. It often stresses its third world status. It has used soft power and economic aid to cultivate friends. But that is now changing. According to the Washington Post, “swagger” was evident in the final months of 2009 at the summit meetings between Barack Obama and Hu Jintao in Beijing and Copenhagen. China has begun to openly challenge the Western democratic model. Its own success demonstrates that a country need not be a democracy and need not follow a Western path and West’s terms of reference to become a major power. But China would do well to realise that if the world rejected the US imperialist domination, it will reject China’s coercive model as well. China’s world view will be unacceptable to India, Japan, South Korea and even Russia. The new world order will have to accommodate the expanding role of the global south. The US and the European Union will continue to play an important role. The world rejected the US as it sought its pre-eminence in the world by manipulating the international system in its favour and to deter potential competitors from even aspiring to a larger regional and global role. As of now, no one is sure how China will view the international system. Each period of history has produced its own patterns of relations among the world’s powers. The Roman Empire and the Chinese Middle Kingdom were near monopolies but never on a global basis. The Cold War period saw duopolies for a while. It was followed by America’s unipolar moment but that is now gone. The US, China, India, Russia and Europe will define the new pattern of the 21st century. Since geo-economics has largely replaced geopolitics, it is not so much the military capability as the economic strength and clout of a nation which will define the new world order. While China has the economic strength, the democratic deficit will make China’s international comportments suspect in the eyes of the world community. This is where India will count. China has, no doubt, emerged as a great power. So has India. But a great power is not necessarily a super power. Its ideas and visions are at best vague and clearly lack universal appeal. Pax Americana was perhaps an accident of history. Pax China is not even a wild
imagination.
The writer is Associate Director, Institute of Social Sciences, New Delhi |
Retirement of judges
When we adopted and gave to ourselves the Constitution in 1949, the retirement age of judges was fixed at 60 years for high courts and 65 years for Supreme Court. For the high court Judges, it had gone up from 60 to 62 years in 1963. At that time, the normal life expectancy was about 60 years. With the changes in social and financial set up as well as medical facilities, the present normal life expectancy is about 70 years. Barring a few exceptions, a person is fit and fine at the age of 62 or even 65 years. In our country, the retirement age of judges in some quasi-judicial bodies has been increased. The retirement age in different tribunals has now been increased to 70 for Chairmen and 65 for members. In the circumstances, the constitutional provisions need a change for enhancing the age of retirement of high court and Supreme Court judges at least by three years. The longevity or life expectancy of our citizens is now nearly comparable to those in the developed countries. Therefore, fresh proposals on the subject generally envisage enhanced age of retirement. However, in the absence of clear-cut guidelines for prescribing the retirement age of chairpersons or members of various tribunals, different ministries of the government adopt different yardsticks. The enhanced age of retirement is prescribed in the higher echelons of the administrative and judicial services because the professional experience gained by those working in them needs to be fully tapped for societal good. The government incurs huge expenditure on orientation training of its employees, especially at the senior level, so that their enriched professional experience in running the affairs of the government could be utilised for the good of the common man. In the present liberalised economic era, the experience gained by government employees after retirement is being fruitfully tapped by many multinational companies. The private enterprises also pay hefty salaries In almost every high court, there is huge pendency of cases. Moreover, the high courts’ work should be decentralised with more Benches in all states. If there is manifold increase in the strength of the judges and the staff, all cannot be housed in one campus. Therefore, the establishment of new Benches is necessary. The Benches should be so established that a litigant is not required to travel long. The Indian Constitution provides for a beautiful system of checks and balances under Articles 124 (2) and 217 (1) for appointment of Judges of the Supreme Court and high courts where both the executive and the judiciary have been given a balanced role. This delicate balance has been upset by the Second Judges’ case (Supreme Court Advocates-on-Record Association vs Union of India) and the Opinion of the Supreme Court in the Presidential Reference (Special Reference No.1 of 1998). It is time the original balance of power was restored. The Law Commission has in its 214th Report (2008) recommended accordingly. The retirement age of Central and state government employees was first increased from 55 to 58 years and then from 58 to 60 years. For high court judges, it was increased only once from 60 to 62 and for the Supreme Court judges, the retirement age has been 65 years. Judges need to have a substantial tenure in various tribunals to which they are appointed after retirement as in that event only, they would be able to improve upon the system. If an incumbent is to retire within 2-3 years of his joining a tribunal, he would not be able to contribute much in advancing and improving upon the system. For selection and appointment in tribunals, a set procedure is prescribed where the time spent in inviting applications up to the selection and then clearance from the government at various levels is six months to a year. By and large, the eligibility for appointment as chairperson is of those who are or have been judges of the Supreme Court, Chief Justices or judges of high courts, but the retirement age in different tribunals is different — 65 years, 67 years, 68 years and in some it is 70 years. There is no uniform prescription of age of retirement. High courts’ judges and Chief Justices have the same retirement age of 62 years. The judges’ functions and duties at any level are the same. There has been a lot of debate whether the retirement age of the Supreme Court and high court judges should be the same for the precise reason that their functions and duties are of the same nature and therefore, if the age of retirement of a Supreme Court judge is 65 years, the same should be with regard to high court judges. If the high court judges or Chief Justices, who retire at 62 years, wish to take up assignment in tribunals after retirement, their work period in tribunals may be two to three years. Obviously, when the Supreme Court judges are appointed to any tribunal, their retirement age must be 70 years, their date of retirement as a Supreme Court judge being 65 years. There should also be no difference in the retirement ages for chairpersons and members, who come from the judicial system, i.e. high courts or the Supreme Court, and it should uniformly be 70 years. A distinction may be made in so far as members are concerned from another perspective. The members in the tribunals have two streams — judicial and administrative. The retirement age from the government, of those who join the administrative stream is 60 years and the terms of five years as a tribunal member may be sufficient in their case. However, no distinction can be made in the retirement age of the members — whether coming from judicial or administrative stream. Irrespective of the stream, the retirement age needs to be uniformly fixed. While judges are so many, Chief Justices of high courts are a few. On a number of occasions, appointments of chairpersons had to wait for want of availability of Chief Justices or judges of Supreme Court, but in so far as the high court judges are concerned, there has been no problem of that kind. It would thus be expedient to have a uniform retirement age of chairpersons of tribunals as 70 years and uniform age of retirement of members as 65
years. The writer is a former Supreme Court Judge and Chairman, Law Commission of India |
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Profile
The
debate has been raging for decades why Alfred Nobel never created a Nobel Prize in Mathematics? Many myths have been doing the rounds and one is that he omitted this important subject because of personal antagonism to a mathematician. It is also believed that Nobel was not particularly interested in mathematics or theoretical science and wanted the award to go for inventions or discoveries of greatest practical benefit to mankind — even though mathematics has clearly done this. That was, perhaps, the reason why the International Congress of Mathematicians has created the Fields Award in mathematics and equated it with the prestigious Nobel Prize. In contrast to Nobel Prize, the Fields Medal is awarded once in four years. The Medal has also an age limit; a recipient’s 40th birthday must not occur before January 1 on the year in which the Fields Medal is awarded. As a result, many great mathematicians have missed it by having done their work too late in life. The 40-year-rule is based on the desire of Canadian mathematician John Charles Fields, the founder of the Award as far back as 1936. The first recipients were Finnish mathematician Lars Ahifors and American mathematician Jesse Douglas. Its purpose is to give recognition and support to outstanding young mathematical researchers. At the World Mathematicians’ Meet in Hyderabad, Fields Award was presented to Israeli-born mathematician, Professor Elon Lindenstrauss, marking the arrival of a new generation of brilliant mathematicians. He was born in August 1970. The gold medal presented to the young Israeli professor by President Pratibha Patil is accompanied by a $15,000 prize. The first Israeli to receive the honour, Prof Elon has long association with the Einstein Institute of Mathematics at Hebrew University, Jerusalem. He has worked on ‘ergodic theory’ (the study of measure preserving transformation) and its application to number theory. Curiously, Prof Elon turned 40 on August 1 this year. This was good news for Indian mathematician Manjul Bhargava, who missed out the Fields Medal. He will be 40 on August 8, 2014, the year of the next award. The medal shows the image of the ancient Greek mathematician Archimedes and a Latin quote attributed to him says: “Rise above oneself and grasp the world”. The reverse side is also inscribed with the Latin words and the rim bears the name of the prizewinner. Prof Elon submitted his Ph.D thesis in the summer of 1999, titled “Entropy properties of dynamical systems” under the guidance of Prof Benjamin Weiss at the Hebrew University, Jerusalem. Since then, he has been in the US, the first two years as a member of the Institute for Advanced Study in Princeton, NJ, and then as Assistant Professor at Stanford University. He is married and has a three-year-old daughter. Prof Elon’s father, Prof Joram Lindenstrauss, also taught at Hebrew University’s Einstein Institute of Mathematics. Prof Alex Lubotzky, a colleague of Lindenstrauss at the Einstein Institute, reportedly said he “received the Fields Medal in recognition of his research solving some of the most difficult problems in number theory.” He stressed that Lindenstrauss’s work “has a strong basis in methods adopted by mathematicians at the Hebrew University.” Israeli President Shimon Peres and Prime Minister Binyamin Netanyahu have complimented him. Shimon Peres telephoned him, saying “I bless you from the bottom of my heart.” |
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On Record
Swarana Subba Rao (53) took over as the youngest Surveyor-General of India recently. This is the oldest scientific organisation involved in mapping inside the country and outside. It was without a head for four years as no suitable person was available. Subsequently, the Union Public Service Commission selected him through an open competition out of six army and seven civilian officers. Mr Rao, who was Director, Survey of India, Andhra Pradesh, prior to his selection to the present position, speaks to The Tribune in Dehradun. Excerpts: Q: How relevant is the Survey of India in the era of satellite imagery and remote sensing? A: The basic work of the Survey of India is surveying and then making maps. With faster economic growth and a large number of projects of size and shape coming our way, the importance of accurate mapping cannot be underestimated. It is mapping alone that could save substantial amount of money on any given project. Q: Are private companies and clients coming to you for their needs? A: Yes, many private players are seeking our assistance in the specialised services. They are asking for accurate maps of the area of their projects which would help them plan and execute their projects. Q: How much does it cost to avail oneself of your services? A: It is negligible as compared to the cost incurred on the projects. Sometimes it comes to around 1 per cent of the total costs but saves lots of money since our maps are accurate and the client has the satisfaction of getting the best product. We charge as low as Rs 5,000 for our services. Q: Have you got your map policy ready? A: Though I have just joined the new post, we need to make the people, particularly planners, administrators and even general public aware about the importance of maps in our lives. With many engineering projects coming up fast in every nook and corner, the importance of maps cannot be underestimated. Q: Many hydro-electric projects are coming up in Uttarakhand. Did the project authorities seek your help? A: We have given inputs to projects like Lohari Nagpala, Maneri Bhali projects on the river Bhagirathi and even the Tehri dam project. We have provided survey and maps in projects in Bhutan too. Q: What about the mapping of Antarctica? A: We have been involved in the mapping and other scientific studies at Dakshin Gangotri in Antarctica and our teams are part and parcel of the Indian scientific expeditions. Q: The Survey of India was involved in the tidal wave mapping and determining the mean sea level. Any progress? A: The Survey of India has been mapping tidal waves for the past two centuries through its observatories all along the coast from Karachi to Kolkata and had real time data of the tidal waves. From the data we can determine the mean sea level. In collaboration with the Earth Sciences Department of the Union Government, we have started publishing tidal tables that could forecast tidal waves through mathematical methods. These forecasts are useful for the ports and shipping companies. Q: Some of your employees are opposing outsourcing. Why are they upset? A: Sometimes we have to seek help from experts outside. So we have to outsource. It is the demand of the competitive world. Q: Any new projects being undertaken by the Survey of India? A: We already have a project for digital census of some cities like Bangalore and Hyderabad. Similarly, we are in the first phase of the mapping of 137 towns of the country under the National Urban Information System. Q: Are you being involved in making hazard zone mapping of landslide-prone areas in Himalayas? A: We can provide maps if some scientific institution is prepared for such a job. But we are involved in the Rs 120-crore project of the Union Ministry of Environment and Forests in mapping of the hazardous area of coastal areas of the country. n |
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