Monday, November 27, 2000,
Chandigarh, India






E D I T O R I A L   P A G E


EDITORIALS

Political crisis in Himachal 
I
t is a simmering political crisis, and not the all too frequent road mishap or a flash flood, that has propelled Himachal Pradesh to the front page of newspapers. And the end game should be absorbing to watch. A compromise is quite on the cards but for that the central leadership of the BJP has to lend a hand. Its track record is however not very encouraging. 

JNU’s spiritual blues
T
HE leftists are themselves to blame for having allowed the Akhil Bharatiya Vidyarthi Parishad to gain control of the Jawaharlal Nehru University Students’ Union. They may now begin to complain that the crumbling bastion of leftism is in danger of being further infiltrated by the saffron brigade if the Human Resource Development Ministry’s proposal for establishing a centre for spirituality in JNU sees the light.



EARLIER ARTICLES

India as important for peace in Asia as China
November 26, 2000
Making CVC toothless
November 25, 2000
The opportunity in Kashmir
November 24, 2000
Court order vs disorder
November 23, 2000
Delhi’s pollution politics
November 22, 2000
Rathore must go
November 21, 2000
Forced confessions
November 20, 2000
Managing India and China
November 19, 2000
This is no reform
November 18, 2000
Sonia’s victory
November 17, 2000
 
THE TRIBUNE SPECIALS
50 YEARS OF INDEPENDENCE

TERCENTENARY CELEBRATIONS
 
OPINION

ASSIGNMENTS FOR RETIRED JUDGES
A close look at related issues

by S.S. Sodhi

T
HERE was a time, not so long ago, when judges of High Courts and the Supreme Court, on attaining the age of superannuation, took it that they had played their innings and left it at that. It was only a few among them who got some other government assignment after retirement.

Reorganising the defence set-up
by P.K. Vasudeva
B
ASED on the Kargil Committee Report, the Prime Minister constituted a Group of Ministers (GoM) to review the national security system in its entirety and to formulate specific proposals for their implementation. The GoM, inter alia, had set up four task forces, one each for the intelligence apparatus, border management, internal security and management of defence.

MIDDLE

Culprit kaun
by Anurag

B
rothers and sisters,
Nature is all powerful and destiny is supreme. On the ill-fated night of 31st July, 2000, a devastating flash flood ravaged the localities on the banks of the river Sutlej in Himachal Pradesh ——- According to available data such disasters happen once in 61000 years.”

Point of law

Man is reliable, not machines
Anupam Gupta
T
HE US presidential election battle has finally reached the nation’s Supreme Court, as predicted in this column last week. “The motion of petitioner for leave to file a petition for a writ of certiorari is granted,” ordered the Supreme Court three days ago on November 24, admitting Republican candidate George W. Bush’s appeal against the pro-Al Gore November 22 ruling of the Florida Supreme Court. “(So also) the motion of respondents for leave to file the brief in opposition is granted.”

ANALYSIS

Third Front necessary
by Satish Misra

I
nternational
communism has long been declared dead and its base in the country has been shrinking, with youth no more attracted towards it. Faced with ideological, organisational and electoral crises, the Communist Party of India — the second biggest left party after the CPM — is currently engaged in a raging debate over the movement and the party’s future.



SPIRITUAL NUGGETS




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Political crisis in Himachal 

It is a simmering political crisis, and not the all too frequent road mishap or a flash flood, that has propelled Himachal Pradesh to the front page of newspapers. And the end game should be absorbing to watch. A compromise is quite on the cards but for that the central leadership of the BJP has to lend a hand. Its track record is however not very encouraging. The five party rebels may not immediately precipitate matters but they may not succumb to pressure from Delhi either. Their strongly worded letter reflects their deep sense of hurt and while they would be very pleased with a change of leadership of the legislature party, they appear to be ready to accept some other arrangement. Chief Minister Dhumal has made light of the situation by reducing the demand of the disgruntled to two: “sack my principal secretary and change PWD Minister Mohinder Singh Thakur,” formerly of the Himachal Vikas Party. This is simplification of their grievances if not trivialisation. Their letter merely mentions these two names to substantiate their case that while some leaders have the freedom to misuse their power or be rude to senior members of the party, others are not even consulted. In fact, the central point is that there is no attempt to coordinate the affairs and the Chief Minister’s style of functioning is autocratic. This is much more than seeking the scalp of an officer in the Chief Minister’s office or changing the portfolio of Mr Mohinder Singh. Mr Narendra Modi, the party general secretary in charge of the state, has also come under attack. Modi was the one who tilted the list of party candidates for Assembly elections more than two years ago in favour of the Dhumal faction and against the Shanta Kumar group. The rebels seem to have been pressing the central leadership to bring in some other leader in place of Mr Modi and expected a positive response when the new BJP president allotted work. They were disappointed at the continuance of Mr Modi, which sharpened their ire.

The central leadership should not wait for a solution, in its old style of mixing pressure with palliatives to win over the party rebels and an independent. Mr Shanta Kumar is the man to talk to and bring around. All these are his supporters and he was in his home state when the letter saw the light of the day. He has a bagful of grouses but he is no Shankersinh Waghela and will not topple the government. His other supporters have been systematically sidelined in the matter of posting in various government-run organisations. They can be accommodated to end one injustice. The charges against Mr Mohinder Singh are very serious and the national leadership of the BJP should ask the Chief Minister to order an enquiry. Kowtowing to corruption will damage the party across the country, not merely in Himachal Pradesh. If the charges turn out to be baseless, he can always be honourably reinducted. A Delhi directive will make the task of Mr Dhumal that much easier. The Chief Minister, who was in Delhi on the day the letter reached the media offices, has already consulted the leaders there and must have a clear idea of their thinking. Sitting back and waiting for things to happen is not an option now. The open squabbles bring out the fragility of the political system, particularly in small states. With a compact Assembly, and the ruling and opposition parties singly or together evenly poised, instability is built into the structure. This is what happened in Pondicherry and Goa and is happening now in Himachal Pradesh. Then there is the BJP factor. It is fast losing its USP (unique selling proposition) of being a disciplined party. It is threatening to acquire all the weaknesses of the Congress and in double quick time. In Himachal Pradesh the party has been a divided lot for long and the retention of the controversial Minister has brought the matter to a head. All this is alarming in a border state. Since the ruling party is the same in the state and at the Centre, the latter’s responsibility to set the balance right is all the greater. 

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JNU’s spiritual blues

THE leftists are themselves to blame for having allowed the Akhil Bharatiya Vidyarthi Parishad to gain control of the Jawaharlal Nehru University Students’ Union. They may now begin to complain that the crumbling bastion of leftism is in danger of being further infiltrated by the saffron brigade if the Human Resource Development Ministry’s proposal for establishing a centre for spirituality in JNU sees the light. In due course they may even accuse Union HRD Minister Murli Manohar Joshi of trying to implement the hidden agenda of the Sangh Parivar under the garb of giving shape to his pet project of promoting “education in human values” by setting up centres for spirituality in key institutions. The proposal for setting up centres for spirituality is part of a larger project which includes the setting up of a National Centre for Value Education for the engineering sector at the Indian Institute of Technology in Delhi. However, before crying foul those opposed to the idea of a centre for spirituality in JNU should call for copies of a well-argued paper on the subject prepared by HRD Secretary M. K. Kaw. In the paper captioned “Emerging Science of Spirituality” he has stated that religions had lost their traditional hold over the minds of the educated people and that “most scientifically trained persons today are either non-believers or at best agnostics”. The anti-religion lobby may turn around and say that they would be more than happy with the formal demise of organised religions through the spread of education. However, this is easier said than done. History will support the contention that movements which had succeeded in destroying religions which encouraged oppression and promoted superstition had in due course acquired the trappings of the faith they had replaced. The fact of the matter is that the role of religion in shaping human values per se in any form and in any society cannot be wished away. What needs to be recognised is that religion in the hands of bigots spreads misery, but in the hands of enlightened people spreads light and universal bliss.

In any case, it would be a great folly to equate the attempt to set up a centre for spirituality at JNU with the Sangh Parivar’s agenda for promoting Hindutva. Spirituality is neither Hindu nor Muslim nor Christian nor Sikh in nature. Religion without spirituality cannot survive, but spirituality without religion has a better future and larger acceptability. The socialists’ dream of fashioning an egalitarian society may have had a better chance of success had they given primacy to spirituality over dogma for achieving their objective. Mr Kaw’s thesis in defence of promoting spiritual education is based on similar logic. He has referred to the emergence of a new science of spirituality “just as astronomy grew out of astrology and chemistry out of alchemy”. He has gone on to explain that “values are not things that we have conjured up like rabbits out of a magician’s hat, but logical corollaries of this process of evolution into progressively higher levels of awareness”. It is evident that the project needs wider publicity before it gets mired in avoidable controversy. JNU Vice-Chancellor Ashis Dutta put the issue in correct perspective when he said, “there is controversy only when the concept or idea is not made clear to the people and there is ambiguity about it.” Instead of opposing the project all right-thinking people should back it without any reservation. The detractors are evidently upset by the jubilation in the Sangh Parivar over the proposals to impart a touch of “value education” to the IIT, Delhi, and a dose of spirituality to the JNU. It is indeed true that the projects in the hands of the saffron brigade would most certainly become instruments for implementing the Hindutva agenda in the name of promoting spiritual values. If that happens, the so-called liberals and leftists would have only themselves to blame. There can be no denying the fact that spirituality needs to be saved from the evil clutches. However, the opposition to the projects may result in the baby being thrown out with the bath water.
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ASSIGNMENTS FOR RETIRED JUDGES
A close look at related issues
by S.S. Sodhi

THERE was a time, not so long ago, when judges of High Courts and the Supreme Court, on attaining the age of superannuation, took it that they had played their innings and left it at that. It was only a few among them who got some other government assignment after retirement.

This scene now stands dramatically changed. The number and variety of post-retirement assignments for judges have vastly increased. To give some examples, they can be seen as members of various commissions, state and Central consumer tribunals, Central Administrative Tribunals, the Minorities Commission, the Monopolies Commission and regulatory bodies, Lok Pals, Lok Ayuktas and even as state Governors. No wonder, we now have this phenomenon of serving judges eying post-retirement appointments.

Judicial experience and stature, no doubt, render many judges eminently qualified for such posts, but concern arises from the falling standards of probity in the higher echelons of the judiciary. Experience has shown that if a serving judge falls from a standard, there is little, if anything, that can be done. What can and needs to be done, however, is to ensure that after retirement, such “tainted” judges do not get any other post or assignment from any government. In other words, while we may not be able to do anything with the “Ramaswamis” in the judiciary, let them not be rewarded by the government with post-retirement assignments. Ironically enough, it would appear that increasingly, it is such judges as are preferred for post-retirement appointments while those who had treaded the straight and narrow path just fade away.

The legal fraternity can cite several instances of unfortunate appointments. The most glaring perhaps being of a judge who, when confronted by the then Chief Justice of India with allegations against him, including those involving moral turpitude, challenged the Chief Justice to do what he could. It is said that a move for the impeachment of the judge was initiated but nothing came of it. Instead, the judge, a few days before he was due to retire, was appointed by the state government to a post with a five-year tenure.

What needs to be appreciated is that the lure of post-retirement appointment can act as an inducement for one on the verge of retirement, or maybe even earlier, to do what is asked for rather than what law and propriety require.

To remedy this, the significance of its other aspect cannot be over-emphasised — that an appointment made according to the norms laid down by the judiciary and on the recommendation of the Chief Justice of India would confer greater credibility with regard to the competence and integrity of the judge so appointed. This in turn would undoubtedly enhance the credibility and stature of the post too.

In this context, how sad and unfortunate it is to see an eminent jurist like Mr Jethmalani, our former Law Minister, casting aspersions on no less a person than the incumbent Chief Justice of India in his recently published book, “Big Egos, Small Men”, for, among other things, insisting upon prior consultation with him in the matter of appointment of the Chairman of the Monopolies and Restrictive Trade Practices Commission. In seeking to raise a controversy on this issue, it would appear that Mr Jethmalani missed the wood for the trees. A reference to the correspondence between the Law Minister, the Chief Justice of India and the Prime Minister on the subject (as available on the Internet) would reveal that the issue of prior consultation was raised by the Chief Justice as a matter of principle and not as a device to avoid the appointment of Justice B.M. Lal. Reading between the lines, it would, on the other hand, appear that the Law Minister designedly sought to bypass consultation with the Chief Justice regarding the appointment. The reason perhaps being that when Justice Lal was the Chief Justice of the High Court of Patna, Mr Jethmalani wanted him to be elevated to the Supreme Court, but this was successfully resisted by the Chief Justice. With this background, the Law Minister perhaps apprehended opposition by the Chief Justice to the appointment of Justice Lal as Chairman of the Monopolies and Restricted Trade Practices Commission.

Be that as it may, there is no gainsaying that the MRTPC ranks among the most important statutory bodies in the country. This is what makes it incumbent on this institution to ensure the competence, credibility and integrity of the person appointed as its chairman. What lends significance to the consultation with the head of the judicial family is the fact that the chairman has to be a judge of the High Court or the Supreme Court. In principle, too, therefore, consultation with the Chief Justice is clearly relevant and desirable.

In seeking to avoid consultation with the Chief Justice, the Law Minister not only deviated from the correct course but also tried to ignore conventions, as brought out by the Chief Justice in his correspondence with him. Rather the Law Minister went further and sought to contest it by saying, “the question of committing the government to a practice (of consultation with the Chief Justice) would require my going to the Cabinet because it has implications for many ministries”, forgetting the several instances pointed out by the Chief Justice of other ministries seeking consultation with him before making appointments.

Perhaps the most curious feature of this controversy is the manner in which Mr Jethmalani, in his letter to the Chief Justice, sought to cite the Prime Minister in support by attributing to him the remarks, “I have had the matter looked into carefully. The records of the last 15 years have been perused. Prima-facie there does not seem to be any departure from well-established procedure”. The Law Minister was later constrained to admit that these remarks had not been made by the Prime Minister.

An analysis of the entire correspondence would reveal that while the Chief Justice was, at all times, concerned with principles and not any personality, the Law Minister appears to have been concerned only with a personality and not principles. Incidentally, when the Law Minister did eventually consult the Chief Justice on the matter, the letter gave his opinion and Justice Lal was appointed Chairman of the Monopolies Commission. Clearly, in this matter, what comes across in Mr Jethmalani’s book is no voice of infallibility.

Would not the inevitable consequence of this episode be to tend to lower the high office of the Chief Justice of India in the estimation of right-thinking members of society? This is not to suggest that the unbecoming conduct of anyone, no matter how exalted the office he holds, should be swept under the carpet as it were; rather it should and must be exposed. But in the guise of purported exposure of wrongdoing in high places, let not a distorted picture be presented lest it hurts the very institution it professes to safeguard.

Time has thus come for a convention that no retired judge of a High Court or the Supreme Court be given any appointment or assignment by a state government or the Centre except in consultation with, rather with the concurrence of, the Chief Justice of India. The Chief Justice would, of course, evolve his own procedure and methodology for considering the suitability or otherwise of retired judges for the intended purpose.

It can, no doubt, be visualised that governments may not relish the idea of granting to the Chief Justice this suggested role. This is where the legal fraternity has a role to play. The value and authority of its voice cannot be underestimated, nor can it shy away from raising the issue as it is an imperative necessity to ensure that only such persons are appointed as lend dignity to the office.

The writer is a former Chief Justice of the High Court of Allahabad.
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Reorganising the defence set-up
by P.K. Vasudeva

BASED on the Kargil Committee Report, the Prime Minister constituted a Group of Ministers (GoM) to review the national security system in its entirety and to formulate specific proposals for their implementation. The GoM, inter alia, had set up four task forces, one each for the intelligence apparatus, border management, internal security and management of defence.

The Task Force for the Management of Defence had been set up under the chairmanship of Mr Arun Singh to — (i) examine the existing organisation and structures, and recommend such steps as are considered necessary for improving the management of the country’s defence; (ii) examine the changes required in the management structure in the emerging security scenario having regard to the nuclearised environment, revolution in military affairs, information revolution and other similar developments; (iii) make recommendations to bring about improvements in the procurement processes and to ensure a more cost-effective management of defence.

The Task Force on Defence Management has submitted its 300-page report to the Home Minister, Mr L.K. Advani, who heads the GoM, taking stock of these recommendations. The report has advocated a major revamp of the defence establishment and suggested a more powerful decision-making authority with the three Services.

The Task Force on Defence Management has strongly recommended the creation of the post of Chief of Defence Staff (CDS) as its preferred option. Unlike the present arrangement, which accommodates the three Chiefs of equal ranks, the Chief of Defence Staff will be the seniormost single officer in the military hierarchy who will represent all the three Services jointly. The Chief of Defence Staff will have under him a Vice-Chief of Defence Staff (VCDS).

Defence analysts point out that the reorganisation of the Services set-up has major operational implications. Instead of allowing the three Services to operate in relative insularity and water-tight compartments, the new arrangement aims at efficiency involving all the three Services at all levels, right from the stage of planning to execution in an integrated manner. These changes are driven by the principle of optimising the use of the resources available with the three Services to achieve larger military objectives.

The task force has also recommended delegating more administrative powers to the defence services to cut down the red-tapism in the Ministry of Defence set-up. The Services will be relatively freed from the bureaucratic interference in managing their resources, and function more efficiently once the recommendations of the task force are implemented.

The task force has sought a radical revamp of the agencies involved in developing and manufacturing military hardware. The task force thus has advocated new institutional arrangements, which will allow extensive participation of private industry in defence production. This includes relaxation in the technical and administrative rules, which have so far dissuaded the private sector from participation in military hardware production.

The task force has also made essential recommendations to restructure the Defence Research and Development Organisation (DRDO) in order to make it more accountable. Because at present it takes far too much time in the implementation of research projects. The classic example is the Main Battle Tank (MBT) which the DRDO produced, but it has not been found suitable by the users — armoured regiments —resulting in the agreement to the purchase of T-90 tanks from Russia at a heavy price. The task force has very rightly recommended that the DRDO laboratories, which are involved in applied research, should be integrated with the related production units. It, however, creates room for the existence of defence laboratories which are primarily involved in research.

The Task Force on Border Management headed by former Home Secretary Madhav Godbole also submitted its 477-page report to the GoM headed by Mr L.K. Advani in the last week of August. The task force has recommended that the paramilitary forces such as the BSF, the Indo-Tibetan Border Police (ITBP) and the Assam Rifles should man international borders, but operate directly under the Army in cases where the boundary line in unsettled or under dispute.

This means that the paramilitary forces or, in other words, the border management forces, as the task force has called them, will have to take orders from the Army commanders in areas such as the Line of Control (LoC) in Jammu and Kashmir, Sir Creek in Gujarat, Aksai Chin in Ladakh, Arunachal and Uttar Pradesh.

The proposed border management plan is learnt to have been already put in place in the Kargil sector. A BSF battalion manning the Channigund forward defence localities (FDLs) in the Kaksar sub-sector has been replaced by an Indian Army formation, and a paramilitary force under the operational command of the Army on the LoC.

Another important recommendation, which the Indian Army has been advocating for a long time, is that 50 per cent of border management forces should be recruited from the Indian Army through lateral induction and the remaining force, inducted through direct recruitment, should be given rigorous, army training in “large doses”. The logic is apparently aimed to give the paramilitary forces personnel better training and the latest hardware.

The task force has also recommended to the government to give comprehensive management of the air space to the IAF. This means that the relevant civilian authorities such as the Directorate-General of Civil Aviation and the Airport Authority of India will have to coordinate with the IAF. Government sources say that the proposed recommendations envisage the networking of IAF radars with those under civilian control. The networking will ensure rapid response in the case of intrusion of the Indian air space so that incidents such as the Purulia armsdrop is not repeated in future.

Regarding the vigil on India’s coastline, the task force has proposed that the Coast Guard should remain with the Ministry of Defence. This force should operate in “shallow or brown waters” under the India Navy for better integration in coastal areas to speed up decision-making. However, the task force has recommended that coastal states should be allowed to raise a marine police force to take care of patrolling of “very shallow” waters and prevent incidents of smuggling or oil pilferage. This may not work because the police is likely to interfere and cause confusion in the working of the Coast Guard.

All these recommendations are well meaning and are based on the exhaustive Kargil Report and on the views of experts. The government should, therefore, implement them without further delay. Otherwise, it will be an exercise in futility. In the eighties also the Arun Singh Committee was formed for recommending reforms in the MoD for better functioning of the defence forces vis-a vis the MoD. This committee’s report is lying in the cold store of the MoD. Any action taken on its recommendations would have certainly improved the functioning of the MoD and the defence forces. Let us hope the government takes immediate action on all these recommendations.

The author is a retired Colonel.
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Culprit kaun
by Anurag

Brothers and sisters,

Nature is all powerful and destiny is supreme. On the ill-fated night of 31st July, 2000, a devastating flash flood ravaged the localities on the banks of the river Sutlej in Himachal Pradesh ——- According to available data such disasters happen once in 61000 years.”

This was the opening para of the “appeal” made by the erudite Chief Minister of the Himalayan state, through the national newspapers recently.

Mere mention of 61000 years set me sailing towards the Stone Age which started about 500,000 years ago. Man as he is today, had developed but little. It was only about 40,000 years ago that Homo sapiens (modern man) came into being. Gradually, man learnt to improve upon his stone tools. Based on the improvements in the stone tools, the Stone Age in India has been divided into four periods:

Palaeolithic Age (500,000 BC — 10,000 BC)

Mesolithic Age (10,000 BC — 8,000 BC)

Neolithic Age (8,000 BC — 4,000 BC)

Chalcolithic Age (4,000 BC — 2,000 BC)

If the data which the “authorities” claim to have are to be believed, such a disaster would have struck in the Palaeolithic Age only, prior to 31st July, 2000. Not only the archaeologists but the apocryphalists also would think thrice before venturing into the Stone Age, lest they should get stonewalled!

Destiny, they say, is a tyrant’s authority for crime and a fool’s excuse for failures. It leads the willing but drags the unwilling. We sow our thoughts and reap our actions. We sow our actions and reap our habits. We sow our habits and reap our characters. We sow our characters and reap our destiny. So said the sages.

Yes, destiny is supreme. But man is the maker of his destiny. It is not unfair to blame our failings on the abstraction called destiny? What of post-disaster operations? Why can’t one read impossible as I-M-possible?

Recently, the French watched in stunned disbelief the supersonic Concorde crash in Paris killing 109 on board and four on the ground. This was the first fatality in the luxury jetliner’s 30-year history. Without blaming it on supra-human factors, their Prime Minister rushed to the spot to supervise relief operations. Exemplary was their alacrity and thoroughness in managing the disaster’s aftermath. The entire Concorde fleet was grounded for thorough investigation. The crash seemed to have hurt the French pride. They also believe in God.

It is time we un-buried our ostrich heads from the sands of superstition and heeded to Alexander Pope:

Lo, the poor Indian ! whose untutored mind

Sees God in clouds, or hears him in the wind;

His soul proud, science never taught to stray,

Far as the solar walk, or milky way.

In conclusion, I’ve too much respect for the idea of God to make it responsible for such an absurd world.


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Man is reliable, not machines
Anupam Gupta

THE US presidential election battle has finally reached the nation’s Supreme Court, as predicted in this column last week.

“The motion of petitioner for leave to file a petition for a writ of certiorari is granted,” ordered the Supreme Court three days ago on November 24, admitting Republican candidate George W. Bush’s appeal against the pro-Al Gore November 22 ruling of the Florida Supreme Court. “(So also) the motion of respondents for leave to file the brief in opposition is granted.”

Then follows a rigorously precise judicial time-table of written and oral arguments in view of the obvious urgency of the matter.

“The briefs of the parties, not to exceed 50 pages, are to be filed with the Clerk and served upon opposing counsel on or before 4 pm, Tuesday, November 28, 2000. Reply briefs, if any, not to exceed 20 pages, are to be filed with the Clerk and served upon the parties on or before 4 pm, Thursday, November 30, 2000.” The case, said the Supreme Court, “is set for oral argument on Friday, December 1, 2000, at 10 am, and a total of one and one-half hours is allotted for oral argument.”

Out of court two days earlier, George Bush (presently Governor of Texas) had launched a blistering attack on the Florida Supreme Court.

It had cloaked its ruling in legalistic language, he said, in a statement televised nationwide, “but make no mistake: the court rewrote the law. It changed the rules, and it did so after the election was over.”

The freedom, nay abandon, with which Americans including the most highly placed of them criticise their own judiciary should serve as an eye-opener for the rest of the democratic world, India included. Whatever prohibitions the global policeman may prescribe for others in pursuit of its foreign policy, no one (not even the judiciary) is a sacred cow at home. Despite the fact that it is America and no other which gave judicial review to the world.

Having said that, however, I must immediately rush to the defence of the Florida Supreme Court. Its ruling last Tuesday, November 22, is a brilliant celebration of the ultimate virtue and power of democracy — the people, and does America proud, George Bush’s discomfiture notwithstanding.

“Twenty five years ago,” said the court, citing its own earlier decision of 1975 in Boardman vs Esteva, “(we had) commented that the will of the people, not a hyper-technical reliance upon statutory provisions, should be our guiding principle in election cases.....Our goal today remains the same as it was a quarter of a century ago”.

The “will of the people” as a jurisprudential leitmotive governing interpretation flows directly from the fundamental law in the State, the Florida Constitution.

All political power, declares Article I, Section 1 of the Florida Constitution, is “inherent in the people”. The enunciation therein of certain rights, it says, shall not be construed to deny or impair others retained by the people.

The right of the people to select their own officers is their sovereign right, the State Supreme Court had ruled in 1977 in Treiman vs Malmquist, and unreasonable and unnecessary restraints on that right are prohibited.

To the extent that the legislature may enact laws regulating the electoral process, added the court last week, those laws are valid but only if they impose no unreasonable and unnecessary restraints on the right of suffrage. And because election laws are intended to facilitate the right of suffrage, such laws must be liberally construed in favour of the citizens’ right to vote.

The right to vote, said the court, citing Boardman vs Esteva, is “the right to participate; it is also the right to speak, but more importantly the right to be heard. We must tread carefully on that right, or we risk the unnecessary and unjustified muting of the public voice.”

Shorn of all electoral jargon, that is precisely what is at stake in Florida. And by necessary extension, in view of the dynamics of the Electoral College upon which the presidency hinges, in the United States as a whole.

And that is precisely why the Florida Supreme Court threw its entire weight behind Vice-President Al Gore’s demand for a manual recount.

An “accurate vote count is one of the essential foundations of our democracy,” ruled the court, in a seminal statement whose significance transcends geographical boundaries. “Although error cannot be completely eliminated in any tabulation of the ballots, our society has not yet gone so far as to place blind faith in machines. In almost all endeavours, including elections, humans routinely correct the errors of machines.”

Remember, dear reader, that this comes from Bill Gates’ country.

For this very reason, the court added, Florida law provides, a human check on both the malfunctioning of tabulation equipment and error in accurately counting the ballots.

The law in question, Section 102.166 of the Florida Election Code, provides that a county canvassing board “may” order a manual recount upon a reasoned request being made in that behalf by a candidate or his political party. Such a recount must cover at least three precints (or subdivisions of a county) and at least one percent of the total votes cast for the candidate.

If the recount indicates an error in the vote tabulation which could affect the outcome of the election, the board “shall” order a manual recount of the all ballots in the entire county.

A counting error, opined the Florida Supreme Court, warranting a manual recount includes the failure of the voting machinery to “read” a ballot.

To invalidate a ballot, it said, relying upon a decision of the Supreme Court of Illinois, “which clearly reflects the voter’s intent, simply because a machine cannot read it, would subordinate substance to form and promote the means at the expense of the end.”

The Illinois precedent — Pullen vs Milligan — handed down in 1990 appears custom-made for the present deadlock in Florida, with its thousands of uncounted “hanging”, “swinging” and dimpled or “pregnant” chads.

A chad is a perforated piece of paper on a ballot that is (supposed to be) punched out by the voter. Chads not punched strongly enough do not detach from the ballot and remain hanging or swinging. A dimpled or pregnant chad bears the mark of indentation but remains otherwise totally attached to the ballot. The punch-card technology is the most widely used technology of voting in the USA, though optical scan, lever machine, electronic and (in a negligible proportion) paper-ballot voting is also employed.

“The voters here did everything which the Election Code requires,” ruled the Supreme Court of Illinois in Pullen vs Milligan, “when they punched the appropriate chads...(They) should not be disenfranchised where their intent may be ascertained with reasonable certainty, simply because the chad they punched did not completely dislodge from the ballot. Such a failure may be attributable to the fault of the election authorities, for failing to provide properly perforated paper, or it may be the result of the voter’s disability or inadvertence. Whatever the reason, where the intention of the voter can be fairly and satisfactorily ascertained, that intention should be given effect (to).”

There is everything here that Mr Al Gore could hope for. Except time. For even the extended deadline fixed by the court for manual recounting would have already expired yesterday, November 26, 2000, at 5 p.m. Or would expire today, November 27, at 9 a.m., in case the office of the Florida Secretary of State remains closed on a Sunday. Meanwhile, one of the three Democratically-inclined Florida counties where a manual recount had been taken up, Miami-Dade, called it off last week because of the pressure of the deadline and frayed political tempers.

But whatever Secretary of State Katherine Harris may announce today, the final result of this great battle for the American presidency will be determined only by the Supreme Court of the United States.
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Third Front necessary
by Satish Misra

International communism has long been declared dead and its base in the country has been shrinking, with youth no more attracted towards it. Faced with ideological, organisational and electoral crises, the Communist Party of India — the second biggest left party after the CPM — is currently engaged in a raging debate over the movement and the party’s future.

At 77 and with 60 years in the communist movement, Comrade A.B. Bardhan — the General Secretary of the Communist Party of India — still thinks that socialism and communism are the answers to present days’ social and economic ills. “Third Front is necessary to replace both the BJP as well as the Congress combines”, asserts Bardhan in a free and candid conversation in his spartan room at the party headquarters. Here are the excerpts:

Q: Is international communism dead?

A: No, only imperialists and bourgeois propagandists have been saying so. They have even talked of the end of history but Marxism lives and continues to remain a hope of all the toiling people. These days several international conferences of communists have been taking place for exchange of experiences.

Q: What are CPI’s economic policies in response to emerging global realities?

A: Global realities cannot be wished away but they don’t contradict the basic positions held by Marxists who have always talked about the Laws of Motion of Capitalism. However, it has become clear that global capitalism has no solution to the basic problems of human beings such as poverty, unemployment etc. In fact, neo-liberal policies being pursued at present are further aggravating and creating disparities. Therefore, new global reality underlines the need for new social order which will be more humane and just. This is what we understand as Socialism.

Q: China has gone full steam to invite foreign capital and has opened its gates fully for foreign competition. Comment..

A: It is true, but one must remember that its fundamentalist policies continue to build Socialism. In the meanwhile, China has developed its productive forces and striving to create an economy of plenty so that it can meet all the needs of its people. This, according to them, will take another 50 years. Socialism is a process after the capture of power by workers, peasants and other toiling sections of the people. China is very firm on consolidation of that power and it is adhering to Marxism, Leninism and what they talk of Mao Tse Tung thoughts. They are building Communism with Chinese characteristics.

Q: How would you rate the Vajpayee government’s performance so far?

A: It has been a disastrous performance. It is harming the country and its people. National economic sovereignty has been jeopardised and the selfreliant path of development has been compromised. Our agriculture, small-scale sector and even major industries face adverse impact of government policies dictated from abroad. They are serving the interests of domestic and foreign monopoly capital as a result of which even our foreign policy has tilted towards the USA and given up old moorings of the Non-Aligned Movement (NAM) and G-77.

Globalisation as prescribed and followed today by international institutions such as the IMF, World Bank and the WTO only benefits the developed at the cost of the developing ones. But this is neither inevitable nor irreversible.

There will be globalisation but it can be of different type which is not dictated by international finance capital.

Q: What is the future of the Left in West Bengal?

A: I think, the Left will win though its fight will be more difficult and may be even bitter.

Anti-Left forces have no programme or agenda but they want to capture the Writers Building. When it comes to the crunch, people cannot be deceived by only that slogan. Rural base of the Left by and large is intact and in the urban areas too, it has a substantial presence.

Q: What about Mamta Banerjee?

A: As I said, it is the Left parties organisational strength and the work done among the people that will counter Mamta Banerjee. It is good that complacence and a certain degree of alienation from the people after 24 years of rule has now been overcome. Mamta Banerjee should be thanked for alerting the Left in advance.

Q: Prospects of Third Front...

A: Third Front is necessary to replace both the BJP combine and the Congress but it will be unlike the old United Front. It cannot come about by repeating its necessity like chanting mantras. It can emerge only through common participation on issues that are agitating the people today, and that is how a common programme will also emerge.

Q: Where is Congress in this, is it relevant anymore and will you accept a person of foreign origin as Prime Minister?

A: Though the Congress has been basically secular but it has on occasions compromised with communal forces for the sake of power. Yet on issues of secularism, there can be common positions between them and us. However, it is the Congress that initiated the economic policies which the BJP is now pursuing with unrestrained vigour. Unless the Congress realises its mistakes and revises its outlook on economics, we will have to oppose the Congress as well as the BJP.

That is why we talk of a Third Front which is opposed to both the BJP and the Congress.

On the issue of persons of foreign origin, this is academic and has already been debated in the past. There is no new urgency on the matter.

Q: Your long-term and short-term objectives..

A: Short-term objective is replacement of the present government by a secular, democratic and Left coalition. Of course, coalition governments are the order of the day. There will possibly be several such interim coalitions in power. Our long-term objective is, of course, building Socialism in India based on specific condition and legacy of the country.

Q: What are your growth areas?

A: As you are aware, we are relatively better in the South and the East but very weak in the heartland and the western region. We have to focus on our weak areas and would have to further consolidate what we have in the South and the East.

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Spiritual Nuggets

“Abstain from all unwholesome deeds,

perform wholesome ones, purify your mind"

this is the teaching of enlightened persons.

—The Dhammapada, XIV.5 (183)

***

It is just as from the cow comes milk; from milk, curds, from curds butter; from fresh butter, clarified butter; from clarified butter, the creamy skimmings; when there is milk it is not considered to be curds or fresh butter or clarified butter or skimmings. Similarly, at any time only the present state of existence is considered to be real, and not a past or future one.

—Dhiga Nikaya, 9, Pottha pada Suttanta

***

Existence knows nothing of the future and nothing of the past; it knows only the present. Now is the only time and here the only space. The moment you go astray from now and here you are going to end in some kind of madness. You will fall into fragments; your life will become a hell. You will be torn apart; the past will put a part of you towards itself and the future the other part. You will become schizophronic, split, divided. Your life will be only a deep anguish, a trembling, an anxiety, a tension. You will not know anything of ecstacy because the past exists not.

And the people go on living in memories which are only footprints left on the sand; or they project a life into the future, which is also as non-existential as the past. One is no more, the other is not yet, and between the two one loses the real, the present, the now.

—Osho, I am That

***

The miracles of the church seem to me to rest not so much upon faces or voices or healing power coming suddenly near to us from a far off, but upon our perceptions being made finer, so that for a moment our eyes can see and our ears can hear what is there about us always.

—Willa Sibert Cathor, Death Comes for the Archbishop, Book I, chapter 4
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