Quiet flows the Cauvery
IT is a grand illusion, this Cauvery water accord. “It is a strange game,” said Karnataka’s J.H. Patel, the most gifted in coming up with one-liners, “there is no winner, there is no loser.

Terrorists and the USA
THE powerful bomb explosions at the US embassies at Nairobi, have a clear message: after the demise of its super power adversary, the Soviet Union, America is faced with a new and quite serious challenge posed by forces working to curb its growing influence in Asia and Africa.

Annan should intervene
PRESIDENT Bill Clinton seems to have evolved a unique strategy for fighting the charges of sexual misconduct which keep erupting with boring regularity.

Prasar Bharati Bill
by S. Sahay
THE Atal Behari Vajpayee government would be well advised to consider discretion to be the better part of valour and drop any idea of issuing an Ordinance on Prasar Bharati.

From the days of Independence
to inter-dependence
by Anurag
WE are all set to celebrate the forthcoming festival of Independence with traditional gaiety, fervour and enthusiasm.

. Judicial dilemma: experience vs education by Anupam Gupta “THE life of the law,” said Justice Oliver Wendell Holmes, in one of his most frequently quoted epigrams, “has not been logic, it has been experience. Joshi’s reaction evokes condemnation by Humra Quraishi THE Justice Srikrishna Commission’s report on the 1992-93 communal riots of Bombay was at long last tabled in both Houses of the Maharashtra legislature on August 6. Back to the classics by Darshan Singh Maini NOW that I almost hear “the call” from above in my present state of age and illness as a matter of contemplation, and the moment of cease holds no terrors as such, I often take a long and deep plunge into the past when the valleys were green, and the skies reached down to the horizons of my imagination.

75 Years Ago

Retrenchment in
Judicial Department

THE Judicial Retrenchment Committee which sat in Ootacamund for three days since last Monday under the presidency of Justice C.V. Kumaraswamy Sastri, considered many questions of retrenchment in judicial administration in the Presidency.

Quiet flows the Cauvery

IT is a grand illusion, this Cauvery water accord. “It is a strange game,” said Karnataka’s J.H. Patel, the most gifted in coming up with one-liners, “there is no winner, there is no loser.” As far as sharing water this season is concerned, there indeed is no loser. The raingod has been very generous and the reservoirs along the Cauvery’s long route are full. By next year the final award of the Cauvery Water Dispute Tribunal should hopefully be out and it would be time to wrangle again. For, the present accord applies only to the 1991 interim award, which is a subject of litigation before the Supreme Court. But away from the river and in the realm of politics, there are three winners and one big loser. And the loser has, along with her gang, already roared her rejection, a roar less of righteous anger and more of nervous fear of losing her clout. Among the winners, Prime Minister Vajpayee has much to celebrate. He has something to show as his success. By sitting through nine hours of jerky discussion, he has proved that he is in excellent health (a big gain in view of last week’s rumours about his serious illness) and that he is a tall enough leader to exercise moral authority on four Chief Ministers belonging to opposition parties.The second winner is Mr Patel. He has headed off the distinct chance of the interim award being given a statutory status by resurrecting the Gujral plan of 1997 and, more, has secured a veto power in the deliberations of the proposed Cauvery River Authority. And the five-member monitoring committee will be purely an advisory body and that way quite harmless. Thus has evaporated Karnataka’s old fear that a major decision could be taken behind its back. Mr Patel fully deserves the sense of relief since it was his draft plan that has finally flowered into the accord.

The happiest is Tamil Nadu’s Karunanidhi. The interim award, which is tilted heavily in favour of his state, is safe and is being fully implemented. The proposed modern hydro-meteorological data collection and forecasting network will save the farmers even in a lean monsoon year. The kisan will have ample time to change the crop to suit the available volume of river water. This is the key recommendation of the team headed by Mr Y.K. Alagh in 1997. The Chief Minister has emerged as the champion of the state’s water rights, and has stolen the spotlight from Ms Jayalalitha. She can only protest and protest loudly but the smile belongs to her arch rival. For helping Mr Vajpayee claim a breakthrough, Mr Karunanidhi has a special trophy to show. He has been assured that no harm will come to him while the Centre conducts a further probe into Rajiv assassination and that his government would not be disturbed. The presence of Mr George Fernandes, a friend of the Chief Minister and a beneficiary of the DMK regime during the Emergency, indicates who brokered the peace pact. On his turn, Mr Karunanidhi has promised to help the BJP-led government either by abstaining or voting with it if Ms Jayalalitha were to snap her ties. A similar offer has also come from Mr Patel’s Janata Dal. (Both parties have six MPs each.) The Cauvery has been bountiful to the two Chief Ministers.

Terrorists and the USA

THE powerful bomb explosions at the US embassies at Nairobi (Kenya) and Dar-e-Salam (Tanzania), claiming the lives of over 163 persons, have a clear message: after the demise of its super power adversary, the Soviet Union, America is faced with a new and quite serious challenge posed by forces working to curb its growing influence in Asia and Africa. That they have adopted terrorism combined with fundamentalism as their methodology is what comes easily to a mind bent upon destroying the interests of an enemy as strong as a super power. Such terrorist groups always use the name of religion (Islam in the present case) to gain the sympathy of the guillible public in the areas of their operation. The group that issued statements to the Al-Jazira satellite channel of Qatar called its two "operations" as "Holy Kaba" and " Al-Aqsa Mosque", though it did not divulge its own name. May be, it is the same organisation that announced its name as the "Liberation Army of Islamic Sanctuaries", claiming responsibility for the blasts, in telephonic conversation with a Cairo office representative of London's Al-Hayat Arabic daily. It is not surprising that it has not been known to exist previously. Perhaps terrorist groups have devised a new strategy of not operating with a known name to avoid easy identification. This is what happened when four oil company officials of the USA in Karachi were gunned down in November, 1997. The outfit that claimed to have carried out this retaliatory killing gave its name as the Islami Inquilabi Council, which was never in the knowledge of even the mighty CIA of America. It was an act of revenge for the conviction of Mir Aimal Khasi of Pakistan for having gunned down certain CIA officials in January, 1993. The Pakistan government then declared that it suspected the hand of Kashmir-based Harkat-ul-Ansar, which was later on included by the USA in its list of terrorist organisations and its assets were frozen.

So far as the latest terrorist operations against the USA are concerned, the name that is being mentioned prominently is that of an expatriate Saudi businessman, Osama bin Ladin, who has a history of providing monetary support to Muslim terrorist outfits. That he has close links with Mohammed Al-Masari, head of a London-based Saudi opposition group, provides a clue to why America has emerged as the primary target of Arab terrorist groups. Osama was the brain behind the November, 1996, attack on the Saudi National Guards building, resulting in the death of 19 American airmen, and another such incident in which seven US nationals were done to death. President Bill Clinton had then declared that the terrorists would be finished off wherever they were, as he is thundering now. But he could do or did nothing despite knowing well that the most wanted man for the USA was hiding somewhere in Afghanistan's Jalalabad. This time Osama's men (if it is true that the powerful blasts in the two African cities were his handiwork) chose their targets in the countries which had never experienced terrorist attacks despite their prolonged struggle for self-rule. This is how terrorists function. Their activities deserve condemnation in the strongest words. But the tragedy with the USA is that it reacts differently when its own citizens are not among the victims or when there is no threat to its own interests. It immediately raises the question of human rights and whatever else fits in its scheme of things. The USA must shun this double standard if it is seriously interested in tackling the fast-spreading disease of terrorism throughout the world. Terrorism, irrespective of its hue and targets, must be fought with the combined might and support of the civilised world. The countries extending support to such activities must be singled out and punished, even if this hurts the American interests. Is the USA ready for it?

Annan should intervene

PRESIDENT Bill Clinton seems to have evolved a unique strategy for fighting the charges of sexual misconduct which keep erupting with boring regularity. When in domestic trouble he pushes the Iraq button to create a global crisis which forces even his detractors to support him. The last time when he pressed the button and brought the Gulf crisis close to another pounding of Iraq by the USA was when the judiciary has turned the heat on him. The ostensible reason for threatening armed action against Iraq was the refusal of President Saddam Hussein to allow UN weapons inspectors to search his palaces. Mr Richard Butler was the chief weapons inspector then and he is still in charge of the operational searching out and destroying weapons of mass destruction before declaring Iraq “clean”. It is evidently back to square one because Iraq has again raised the question of replacing Mr Butler on the ground that “he is implementing the US agenda and not following the UN mandate for completing the operations”. If UN Secretary-General Kofi Annan fails in his efforts to make the two sides see reason, President Clinton may again order the US fleets to sail to the Gulf. Indications that Iraq may throw out the UN weapons inspectors rather than follow the “road map” prepared by Mr Butler for speeding up the search operations were provided by the statements of Deputy Prime Minister Tariq Aziz and Speaker of the Iraq Parliament, Mr Saadoun Hammadi, urging President Saddam Hussein to stop cooperating with the UN team. The criticism of the role of Mr Butler in stalling rather than speeding up the process of weapons inspection is not without substance. The last time the weapons inspectors were asked to leave Iraq the popular impression was that the inspection of palaces was the only issue on which there were differences between the two sides.

After Mr Annan’s personal intervention the palaces were thrown open to the UN inspectors Mr Butler is still not happy. Why? Mr Hammadi was not wrong when he told Parliament that Mr Butler’s “mandate has been characterised by a deterioration in the Iraq-UN relationship” compared to when UNSCOM was led by Mr Rolf Ekeus from Sweden. The Secretary-General’s reaction to the developments in Iraq that “this may be a major hiccup, but a hiccup we can overcome, I hope” is not very encouraging. This time the treatment of the “the hiccup” may require Mr Annan to use his considerable diplomatic skills for making the USA soften its stand on the question of lifting the crippling embargo which was imposed eight years ago — after Iraq invaded Kuwait. Heavens will not fall if Iraq’s demand for replacing Mr Butler too is accepted. In fact, the UN Security Council itself, in consultation with Iraq, set the agenda and a time-frame for completing the work of weapons inspection and the UNSCOM should only carry out the mandate. Mr Annan would only enhance his growing reputation as an able and impartial peacekeeper if he were to plead Iraq’s case for early lifting of the embargo. He could offer the formula under which it could be lifted for a specified period — say two years — to reduce the suffering of the people who are being made to pay for the sins of President Saddam Hussein. However, the process of weapons inspection should continue as usual (in fact, a permanent team can be stationed to report any usual development periodically) even after the economic and other restrictions are lifted. If at the end of the period of “parole” the UN team reports that Iraq was still not coming clean, the question of reimposing sanctions could be considered by the Security Council. As of today, the global community should mount pressure on the world body and the USA to bring to an early end the unjustified suffering of the people because of differences between the weapons inspectors and the Iraqi authorities.

Prasar Bharati Bill
Drop the idea of Ordinance
by S. Sahay

THE Atal Behari Vajpayee government would be well advised to consider discretion to be the better part of valour and drop any idea of issuing an Ordinance on Prasar Bharati.

It has other fires to fight. The Akali Dal has threatened to pull out from the coalition if Udham Singh Nagar continues to be included in the proposed Uttaranchal state. The Samata Party has threatened to pull out if the government appeals against the Calcutta High Court’s decision, exonerating Mr U.N. Biswas of any wrong-doing by approaching the Army for help in arresting Mr Laloo Yadav. Then there is the Cauvery water dispute to handle.

Must then the government buy another problem? Thanks to the enthusiasm of the Union Information Minister, Mrs Sushma Swaraj, the Prasar Bharati Bill was presented to the Lok Sabha and, because of her manoeuvres, even pushed through the Lower House.

The Rajya Sabha proved unmanageable. No amount of consuistry can hide the fact that as many as 124 members of the Rajya Sabha had written to the Prime Minister and pleaded that the session of the House be extended by a day so that the Prasar Bharati Bill could be voted on.

It is not necessary here to go into the details of the Opposition allegation that the Information Minister misled the Rajya Sabha about the timing of reference to the President of the Bill (a Money Bill) for his approval before it could be formally introduced in the Upper House. If she did, the House can consider a privilege motion against her.

What is more relevant here is that an Ordinance, at this stage, would be morally wrong. And constitutional morality does, or ought to, matter. There is no merit at all in the suggestion that, since the Lower House has passed the Bill, the government has the moral authority to bypass the Upper House and take recourse to an Ordinance in order to put the CEO, Mr S.S. Gill, out of action.

I am insisting on constitutional morality because this is where the role of the President, Mr K.R. Narayanan, comes in. The Ordinance shall have to be issued in his name. And he would be within his rights in asking whether this is the manner in which parliamentary matters ought to be conducted.

Anyway, the life of an Ordinance is no more than six months; it has to be presented to Parliament within six weeks of the meeting of Parliament — and the winter session is not more than six weeks away. Where is the guarantee that the Vajpayee government will continue to be in office for even two months, going by the doubts caused on this score by the allies themselves. And Mrs Sonia Gandhi has asked her partymen to be prepared for the time when it may be called upon to form the government.

Frankly speaking I am not amused by the active campaigning either by Mrs Sushma Swaraj or Mr S.S. Gill, or by others on their behalf. The CEO was only being honest to himself as a writer when he made observations against the Nehru-Gandhi dynasty or against Mr Mulayam Singh Yadav and Mr Laloo Yadav. Why must that be held against him when he has not made these remarks as a CEO, and the current affairs programme is brighter than in the past.

I have had the benefit of reading the legal opinion obtained by Mr Gill on whether the President has an untrammelled non-justiciable right to promulgate an Ordinance. The opinion given by Dr A.M. Singhvi is that he has, subject to the observations made by the lawyers.

What are the observations? That an Ordinance must necessarily deal with an extraordinary immediate situation which may have arisen suddenly. Nothing extraordinary has happened to justify the issuance of an ordinance on Prasar Bharati, which, despite the death of its Chairman, has been functioning and, according to some, functioning well.

Dr Singhvi has quoted several Supreme Court cases to make the point that the Constitution does not permit to an Ordinance raj, but he has not been able to get over the Supreme Court ruling in K. Nagaraj case that an Ordinance passed under Article 123 or under Article 213 of the Constitution stands on the same footing as a statute. If the motive of a piece of legislation cannot be questioned, how can the motive of an Ordinance be.

Dr Singhvi has taken recourse to the Bommai case to make the point that if there can be limited reviewability of the satisfaction of the President under Article 356, why cannot the same principle apply to an ordinance?

As to the second query by Mr Gill, concerning the powers of the government to appoint a 22-member parliamentary committee or establishing a Broadcasting Council, the lawyer’s answer is in the negative.

The third query is whether an Ordinance making power can be exercised when an identical Amendment Bill has been referred to the Parliamentary Standing Committee. The lawyer’s answer is that it can be subject to his observation made in his opinion.

Briefly put, even Dr Singhvi conceded that the issue of justiceability and reviewability of the President’s satisfaction remains open for conclusive judicial scrutiny, the President’s power to ask his Council of Ministers to consider an advice given to him remains untrammelled.

This article is indeed a plea to the Vajpayee government not to embarrass the President with a constitutionally immoral, and legally questionable, Ordinance. The fewer the occasion the President has to ask the government to reconsider its advice, the better for the health of our democracy.

Back to the classics
by Darshan Singh Maini

NOW that I almost hear “the call” from above in my present state of age and illness as a matter of contemplation, and the moment of cease holds no terrors as such, I often take a long and deep plunge into the past when the valleys were green, and the skies reached down to the horizons of my imagination. Nostalgia and the winter of woes, undoubtedly, have an inner dialectic, and I guess, given one’s inclinations, choices and areas of interest, almost each person in his or her twilight years undergoes a similar, silent return to the pastures of primroses. That’s perhaps the only diet then when the dreams are spent, or ruined, or lost en route, and the body, a travesty of itself, beseaches the spirit to draw a breath of nourishment.

In my own case, life of the mind and of the imagination has so much possessed me since my student days as to have almost alienated my bones and nerves, which now, in spite, seem to mock the so-called triumphs of thought, word and acclaim. For there’s a blind, brutal force even in a body being eroded by rot and decay, and then it’s the spirit — the crowning aspect of the invisible trinity — which begins to make sense of one’s situation, and which may, finally, call the muses home to a statement with a signature beyond the bounds of death.

All these musings, in fact, have their locus in my compulsive return to the great classics of my middle years — to such books as Homer’s Odyssey, Dante’s Divine Comedy, Shakespeare’s tragedies and romances, Keats Odes, Goethe’s Faust, Dickens’ David Copperfield, Tolstoy’s Resurrection, Dostoievsky’s The Idiot, Balzac’s Old Goriot, Melville’s Moby Dick, Whitman’s Leaves of Grass, etc. For one thing, these and quite a few other such classics have been in my own little library all along, and ready to hand. I have been aware of their presence as the peaks already touched, and then lying on the shelves draped in the mist of memories. But when I reflect a little deeply over this matter, I find that this wapsi has perhaps a meaning beyond my ken in the fullest sense. It’s as I dimly see it, a requirement of my besieged spirit. For though my other later “loves” — Melville, Henry James, Conrad Kafka, D.H. Lawrence, Faulkner, Hemingway, Robert Lowell, Roethke, James Baldwin, among others — still hold my imagination and color my perceptions and insights, it’s the earlier classics that put me back on the road my spirits now seeks.

And, I trust, the reasons have not a little to do with my present state of heath and mind. Which brings me, first, to what the classics signify and what constitutes their perennial appeal. Since in a piece of this kind and convention, it’s not possible to even touch upon their paradigms, their existential truths, their mythic dimensions, etc., I’m content to simplify the problem and consider the classics as books that “connect” us both ways — with this world and with the next.

But the raison d’etre of this change, or rather a shuffling of the cards of connection, may as well be described in another way. The books or authors that in later years took my imagination to such ambiguities and complexities too have done great duty, and stayed on in a central way to guide some of my modes of thought and expression. But I now yield more willingly, and more eagerly, to the books that have a heart not of darkness, but of peace, serenity, and transcendence even in the midst of tragedy and storm. And, there, I aver, the cherished classics have their true character, their true value. The sense of waste and suffering is never quite dissipated, but strangely, the spirit begins to feel at ease as at the hint of a new dawn.

The classics, then, return us to the sources and wonders and juices of life, and they abide. From the heat and hunger, or from the artiness and artifice of the “Booker” prize novelists of the type on the upswing — from Rushdie to Arundhati Roy — it’s a pleasure to be back in the cool arbours of the eternal fabulists. It’s, so to speak, another “summer of the soul”.

75 YEARS AGO
Retrenchment in Judicial Department

THE Judicial Retrenchment Committee which sat in Ootacamund for three days since last Monday under the presidency of Justice C.V. Kumaraswamy Sastri, considered many questions of retrenchment in judicial administration in the Presidency.

Among the proposals considered were the possibility of including judgeships of the Madras Court of Small Causes and City Civil Judgeship in the Provincial Judicial Cadre of Sub-Judges, and Registrar of Small Causes Court in the cadre of District Munsiffs, due provision being made for the selection from the Bar.

It is understood that the committee is of the opinion that it is not possible to make any retrenchment with regard to the establishment of the District Munsiffs’ courts as the clerks of these are already overworked. Proposals were also considered as to whether the jurisdiction vested exclusively in the district courts under various special enactments may not be transferred to subordinate judges’ courts in view of the fact that these courts are exercising unlimited pecuniary jurisdiction in case of suits.

The committee is understood to have recommended that the system of providing separate establishments for additional temporary courts should be done away with and that the individuals be appointed as Additional Judges to the existing courts.

From the days of Independence
to inter-dependence
by Anurag

WE are all set to celebrate the forthcoming festival of Independence with traditional gaiety, fervour and enthusiasm. Festivals, among other things, afford us an opportunity to momentarily forget the hardships of mundane existence, sing hosannas and slip into the virtual reality of effortful exultation.

Once again this calendar event will begin with the rituals and end up with the rituals being mistaken for the be-all and end-all. Plus some empty rhetoric and unseemly display of sentiment thrown in for good measure.

A little introspection will reveal that our hard-won Independence has been double-quick to follow the law of diminishing returns. Just as our leaders’ hollow words were followed by their hollower actions. How one wishes the freedom-fired forties could be followed up with the freedom from hunger, disease, infant mortality, poverty, illiteracy, exploitation, etc.

A few days after the first Independence Day celebrations, Mahatma Gandhi wrote the following lines for an unknown visitor:

“I will give you a talisman. Whenever you are in doubt, or when the self becomes too much with you, apply the following test. Recall the face of the poorest and the weakest man whom you may have seen, and ask yourself if the step you contemplate is going to be of any use to him. Will he gain anything by it? In other words, will it lead to swaraj for the hungry and spiritually starving millions? Then you will find your doubts and your self melting away.”

Haven’t we collectively committed sacrilege to this sacrament?

If Kalahandi has become a byword for the starvation deaths visited upon with unfailing regularity, the outbreak of the deadly plague a couple of years ago looked like a hark back to the medieval times.

Yet, celebrate we do. Self-pity?

Let’s act on the principle: pessimism of the intelligence, optimism of the will!

This is not to suggest that the past 50 years were bereft of achievement. Our nuclear and space scientists who brought crowning glory to India are second to none in the world. Uncle Sam’s rueful remonstrations rightly demonstrated that India was alive and kicking. Nobody flogs a dead horse.

Coming back to our assertions of “independence”, how real or virtual are they? Today we live in an increasingly inter-dependent world. Globalisation, the latest credo, may make the global village self-sufficient but-could also render the nations more and more dependent on one another. Rumblings of the emerging new world economic order, the world information order, etc, are pointers in this direction. We have welcomed them but with cautious optimism. Are we as a nation adequately equipped for the same?

As without, so within. In our quasi-federal polity, we have states which are inter-dependent in regard to river waters, minerals, electricity, foodgrains, tourism, etc. Ditto for the various castes, clans and communities. Inter-dependence, rather than independence, is going to be the “mantra” of the 21st century. This message may no more be lost on the world citizens.

Judicial dilemma: experience vs education
by Anupam Gupta

“THE life of the law,” said Justice Oliver Wendell Holmes, in one of his most frequently quoted epigrams, “has not been logic, it has been experience.”Hardened by recent developments in service jurisprudence, the Punjab and Haryana High Court apparently thinks otherwise. Experience is no substitute for education, it says, or for academic and technical qualifications. And an employee who does not possess the prescribed qualifications cannot claim regularisation in service “merely because he has gained experience by working for a long period.” Regardless of whether he is a daily wager or a work-charged, temporary or ad hoc employee. Regardless, too, of the number of years of service he has put in (five, 10, 15 or more).Pronouncing thus on July 3, a Full Bench of the Punjab and Haryana High Court has rung the curtain down on a controversy of considerable legal and human dimensions. What makes the pronouncement particularly interesting is that it is a split verdict.Experience, says the dissenting opinion, is the prime educator. It is “the God’s school”. Solutions given by experience are better sometimes than the lessons which teachers give. Had not the author of the Gettysburg address spent but a year in school?“I should not be understood to suggest,” the opinion immediately clarifies lest the reference to Lincoln be taken literally, that a person should be treated to be qualified as a university professor merely because he has taught for a number of years. Or that a person who lacks a MBBS degree should be entitled to perform surgery merely because he has been registered as a medical practitioner.But, and here lies the dissent, a stenographer who has taken dictation and produced an accurate typescript for many years need not necessarily possess a diploma. “He may, in fact, be better than a person who possesses the diploma but has no experience.” Similarly, people who have worked for long durations as carpenters, masons, mechanics, plumbers, drivers and the like, should not be thrown out merely because they are not technically qualified. “In such cases, long experience can be considered as a good substitute for academic qualification.”

Appealing though this is and rather practical, the majority does not agree. The distinction sought to be drawn by the dissenting Judge between Class III and Class IV employees (on the one hand) and the higher classes of service (on the other), rules one of the two majority Judges in a brief concurring note, is “not consistent” with the latest decisions of the Supreme Court.

The leading majority judgement, running into as many as 72 pages, is also firmly anchored in a plethora of precedents. The dissenting opinion relies upon Bhagwati Prasad’s case of December 1989, a well-known example of judicial regularisation of unqualified but long-serving daily rated workers. It also unwittingly echoes the line of thinking evident in another prominent decision, J.P. Chaurasia’s case of 1988. “He or she learns”, said the Supreme Court in Chaurasia, “also by experience as much as by other means.” The full import of the observation was stated by its author, Justice Jagannatha Shetty, two years later in the case of B.N. Saxena: “Experience gained for a considerable length of time is itself a qualification.”

The majority judgement on its part cites, discusses and follows a total of 16 apex court judgements rendered subsequently and touching the issue of regularisation. They deal with a wide variety of factual situations and cover employees of diverse rank, both high and low. Nine of these 16 judgements have been handed down by Benches presided over by Justice K. Ramaswamy, who spoke for the court in Bhagwati Prasad’s case. None of the 16 refer to Bhagwati Prasad, a circumstance that cannot but evoke surprise. Be that as it may, the majority is indisputably right in holding, or discreetly implying, that the judgement in Bhagwati Prasad’s case is no longer valid.

The latest, the very latest judgement of the Supreme Court on the point would perhaps have rendered the reference to the Full Bench redundant. Delivered on June 8 this year and made available towards the end of the month, the judgement in State of Madhya Pradesh versus Dharam Bir was obviously not known to any of the distinguished Judges when they wrote their clashing opinions (Justice Mrs Sarojnei Saksena for the majority, with Justice G.S. Singhvi concurring, and Justice Jawaharlal Gupta dissenting).

“Mere experiential knowledge is no equivalent to a degree,” the Supreme Court has now declared in Dharam Bir’s case. A compounder, working for a long time with a doctor practising in modern medicine, may gain some experience by observing the doctor prescribe medicine for various ailments but that does not mean, it says, that thereby he “acquires knowledge of the human anatomy or physiology or the principles of pharmacology or the field of action of any particular medicine or its side-effects.”

The plea that courts should have a human approach and not disturb an unqualified employee who has been working for more than a decade cannot be accepted, says the Supreme Court, for courts are “hardly swayed by emotional appeals”.

In fact, it is the “human approach” which requires the courts to prefer a duly selected candidate over a person who is not qualified. They have no power, it has been held, to “override the mandatory provisions of the Rules on (the) sympathetic consideration that a person, though not possessing the essential educational qualifications, should be allowed to continue on the post merely on the basis of his experience.”

A coarsening of the judicial spirit but there it is.

Joshi’s reaction evokes condemnation
by Humra Quraishi

THE Justice Srikrishna Commission’s report on the 1992-93 communal riots of Bombay was at long last tabled in both Houses of the Maharashtra legislature on August 6. By the evening as those details made way here, there was an air of distinct unease at not only the findings of this Commission but also on the reaction of Maharashtra Chief Minister Manohar Joshi to the report findings. Justice B.N. Srikrishna in this report has clearly held the Shiv Sena and its chief Bal Thackeray for its role of inciting communal frenzy and attacking the minority community and also the then CM Sudhaka Rao Naik for not being able to control the situation. However the reaction of the present Chief Minister of Maharashtra to this report doesn’t seem one of concern rather that of distraction — he has called the report “biased ...anti-Hindu, pro-Muslim ...betrayal of the Hindus.”

Condemning this sort of a reaction coming from no less a person than the Chief Minister of that state, the former PUCL President, Justice Rajinder Sachhar, says: “I am ashamed that the Chief Minister of Maharashtra is talking in terms of Hindu and Muslims vis a vis this Commission’s report ...maligning this Commission headed by a Judge is horrible but we’ll certainly see to it, even if we have to move court, that the Maharashtra government doesn’t bury the Commission’s findings and the guilty don’t manage to go unpunished”. The chairman of the National Minorities Commission, Dr Tahir Mahmud, when contacted summed up his sentiments in this couplet “tumhara shahar / tumhi muddae / tumhi munsif / mujhe yakeen tha mera kasur niklaega (it is your town. In it you are the complainant and also the judge. I was very sure that the fault will be found in me) .....I will elaborate my reaction further after I have read the 800-page report once it reaches me on Monday”. The National Secretary for Public Affairs of the All-India Catholic Union, John Dayal, says “The way the Maharashtra CM has dismissed the report is unfortunate; the rejection of it is itself communal and not administrative in nature...... does this sort of rejection mean that the killers of those riot victims go scotfree? Does this mean that those guilty would not get any punishment? What about justice for those killed in the riots.”

Meanwhile, Mr N.D. Pancholi informs that 30 organisations, which include PUCL, PUDR, Sikh Forum, Champa, Citizens for Democracy, Insaaf, Indian Radical Association under the umbrella of Citizens Committee for Secular Action are meeting in Delhi to not only counter the Maharashtra CM’s statements on this report but also to see that the guilty mentioned in the report are booked.“

Why only these organisations, I think the whole country should take it up, for the report findings are enough for not only the Maharashtra government to resign but even the former Chief Minister Naik who was in power then should quit public life “says Kuldip Nayar — MP and journalist — who was our former High Commissioner in the UK. In fact Nayar adds that he will be taking this issue up after our Independence Day function, for right now he is making preparations leading a group to the Wagah border for a vigil on August 14-15 night.

Lalit Mansingh — something differently good about him

Each time I had met Lalit Mansingh — our envoy designate to the UK — there used to be a confusion of sorts. The first time he couldn’t follow fervent hints by a group of women (of which I was a member) requesting to be chaperoned, the next time he explained that he couldn’t follow those requests as they were mouthed in Urdu and the third time he said he wouldn’t at all speak as he could be quoted — mis or otherwise ...atleast he had a sense of humour and with that the confidence to take it all in the right spirit. It is exactly because of this that I telephoned him up last week to announce a ‘ceasefire’, to all those confusions at least. Graciously he accepted it. And once he got talking it was nice to hear none of those diplomatic pretentious chants with measured ‘ps’ and ‘q’s, or worse still those shrugged ‘ifs’ and ‘buts’ rather it was a level headed, interesting conversation on a normal plane.And now as the formal orders have come about for his posting to the UK it seems after years (perhaps for the first time at least where the UK is concerned) the country would be represented by not only a serving career diplomat but a man with a sense of humour and wit. I am happy for Indians in Britain and of course for all those who have to keep in touch with him.

Jubilee countdown

Like I had mentioned last fortnight the countdown has begun for August 15 .....nothing much from the government’s side (expected!) but, then, there are other enthusiasts who are doing their bit on that midnight. Austrian Ambassador Herbert Traxl’s official residence will have some known painters doing up panels with colours of freedom and artists performing in the backdrop. A number of luxury hotels are coming up with a full range of programmes to highlight that midnight. And now there comes in news that DG-ITBP Gautam Kaul’s latest book ‘Cinema And The Indian Freedom Struggle’ (Sterling) is getting released here on August 9 evening and it has no ordinary findings rather concentrates on a segment that needed attention — that is on the role of cinema during the freedom struggle. Some of the personalities figured in the book will be lined up and these include Momota Mehta, Brij Mohan, Anil Biswas, A.K. Hangal.

Beyond Nagasaki.....

There is little to no point in my writing about the rally held here last week against nuclear disarmament, for already it seems well covered. But let me mention that activists who feel strongly against the country going nuclear are holding another show — titled ‘Beyond Nagasaki — voices of concern’ — at the Max Mueller Bhavan on August 9 evening .......well known names of known artists who want to vent their anti-nuclear feelings through images, poetry and music.