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Going
obsolete Attacks on
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Prince
Charming
Bury the
past and move on
An
endangered species
The article, “Remedy worse than the disease” (Sept 9, 2010), penned by a former Supreme Court Judge and five former Chief Justices of High Courts, on the issue of the transfer of Chief Justices from one High Court to the other, has evoked a good response from jurists and experts (Sept 13 and 14). We present today two more views. Judiciary
should be free of pulls and pressures It’s
time for Centre, apex court to act
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Attacks on NATO trucks
The
US threat that the routes passing through Pakistan to Afghanistan will not be used for supplies to the International Security Assistance Force (ISAF) in Afghanistan if Islamabad does not fully cooperate in preventing Taliban attacks on NATO trucks highlights the increasing tensions between the super power and its “ally” in the war on terror. As a result, the Tehrik-e-Taliban Pakistan is feeling emboldened. Taliban militants set on fire over 36 NATO vehicles in south Pakistan on Friday alone. The latest such incident occurred on Monday. The extremists have claimed responsibility for what they did. This is quite disturbing for those engaged in fighting terrorism. One of the factors affecting Pakistan’s relations with the US is the continuing drone attacks on the militants’ bases in Pakistan. In September alone 21 such attacks were carried out. It seems the US is not as successful in eliminating Pakistani Taliban bases as it claims. Increasing Taliban assaults on Afghanistan-bound NATO trucks passing through Pakistan provide proof of this ugly reality. These militants targeted this year as many as 55 NATO convoys, with 22 attacks occurring last month. Despite their love-hate relationship, Pakistan has been getting considerable US military and economic assistance in the name of fighting Al-Qaida-Taliban militancy. The US feels it cannot eliminate the Taliban menace from Afghanistan if Pakistan’s cooperation is not there. The US problem is getting complicated with China fast increasing its presence in the Afghanistan-Pakistan region. This factor has emboldened the Pakistan Army, which has come out almost openly in opposing the US drone attacks. After the Pakistan Army earned accolades from the masses for its role in handling the flood-caused crisis, it does not want to be seen as siding with the US on the issue of drone attacks. It seems to be finding virtue in opposing the US. This may ultimately help the Taliban and Al-Qaida strengthen their bases in the Af-Pak area, derailing the drive against militancy. The world community cannot afford to ignore this alarming development.
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Prince Charming
With
poise, and elan, the heir apparent to the British throne, The Prince of Wales, Prince Charles, as a representative of Queen Elizabeth II, read out her message and declared the Commonwealth Games 2010 open. He stepped in for his mother, something he has made a bit of a career of, and charmed the crowds. The Prince and his wife, Camilla, Duchess of Cornwall, viewed the spectacular opening ceremony and attended other functions in Delhi. Prince Charles was born a year after India became independent, and he had a long engagement with the nation and its people. A welcome guest, he has visited India on many occasions and left behind pleasant memories. On an earlier trip, he even played polo in Delhi, the very city that recently dazzled the world. Naturally, life is not all fun and games. His primary official duties done, the Prince discussed climate change with industrialists in Delhi, organic food with farmers at Fatehgarh Sahib and perhaps polo or politics at the Moti Bagh palace of a fellow polo aficionado, Capt Amarinder Singh who hosted a dinner for him, at Patiala. Then, it was off to Jodhpur, for another day of interaction with local environmental advocates, and a dinner in the royal environs of yet another palace. The Duchess of Cornwall has her own interests, and she too interacted with local people and visited a school. To give him his due, the Prince has been an unobtrusive, yet effective ambassador of Britain for all his adult life. He is a powerful force on environmental issues, alternative systems of medicine and has focused on organic farming, a subject on which he has co-authored a book too. Just as the Commonwealth has been evolving over the years to reflect emerging realities and new needs, so too has been the man who would be King, some day.
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Never explain — your friends do not need it and your enemies will not believe you anyway. — Elbert Hubbard
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Bury the past and move on Wise
words were spoken this past week. Sometimes we are so filled with anger and bitterness over the perceived wrongs of history that, enveloped in fog, we see the past but dimly and are unable to recognise the future. On the eve of the long-awaited Ayodhya verdict of the Allahabad High Court on September 30, there were appeals for calm all round as the future interrogated the past. Home Minister P. Chidambaram saw “The India Story” as much more than a dispute over a piece of land” that must not derail “the bigger story”. Young people born after the Babri demolition had moved on and were animated by a very different worldview. Even the most ardent contestants have thus far largely responded constructively to an unexpected but remarkable judgement. The verdict has steered a path between faith, history, practice and possession to open a door to a harmonious settlement and reconciliation. The two-to-one majority ruling is that a mosque was not built by demolishing a temple on Babar’s orders, but was erected on the site of a ruined Hindu structure whose provenance as a temple is contested. Hence the property be now divided with a third going to each party: to the Hindus (the land under the former central dome where the idols lie), the Muslims (within the inner courtyard) and the Nimrohi Akhara (within the outer courtyard where the Ram Chabutra and Sita ki Rasoi are located). The critical finding, articulated by Justice S.U. Khan, is that for centuries, and long before the matter became subject to litigation, Hindus and Muslims had in a real sense shared and indeed worshipped alongside one another within the same disputed premises. If then, why not again now is the unspoken premise of the majority judgement. The judgement has been criticised by some scholars as being based on unproven historical evidence advanced by the Archaeological Survey which allegedly drew unfounded conclusions from site diggings. Others have expressed concern that the court has departed from historical facts and legal processes to affirm certitudes based on faith. This is not quite so. Justice Khan clearly says that it was only after the mosque was built that Hindus began to identify it with Ramjanamsthan while Justice Agarwal ascribes the area under what was the masjid’s central dome as the Ramjanamsthan only as “per faith and belief of the Hindus”. His observation is descriptive, not juristic. Justice Khan further makes it plain that “As far as the title suit of a civil nature is concerned, there is no room for historical facts and claims”, including claims based on faith. Only Justice Sharma took the line that faith renders the spot where the idols now lie as the Ramjanamsthan, a juristic person and a deity. It would appear that there will be an appeal to the Supreme Court but only after the High Court’s prescribed three month cooling off period, during which the status quo will be maintained. It does not follow that any last minute compromise sought prior to the verdict precludes attempts at a compromise today despite initial statements to the contrary. This is because the parties now confront an entirely new situation. Earlier, the judgement was not known. Now with each side having got a third part of the land under dispute, an appeal could conceivably declare in favour of one party or the other. Half a loaf being better than no bread, there is now reason to be more compromising than before. Whether a compromise will, in fact, be reached is another matter. But the prospect of a negotiated settlement might now appear relatively more attractive. Meanwhile, the criminal act of deliberately destroying the Babri Masjd on December 6, 1992, cannot be forgotten. The Liberhan Commission has framed the charges. The guilty must be tried and punished expeditiously, unlike what happened when the idols were conspiratorially planted under the central dome of the Masjid on a cold December night in 1949. Justice in this separate but adjunct matter is essential to bring closure to the Mandir-Majid dispute that has dragged on for centuries. Something of the bigger story Chidambaram mentioned was manifest on the morning of the judgement when the Prime Minister inaugurated the monumental Unique Identification Number Aadhar programme in a remote Maharashtra village. He handed over a 12-digit number to a poor, unknown farm labourer, Sonawane, making her an identifiable person and an equal citizen of India with rights, privileges, hope and a numbered address that guarantees her a future. Like a hitherto excluded wretch in a song of yore, Sonawane too can proudly proclaim that “I am Somebody, Not a Nobody, Nor just Anybody. And Everybody knows my Name”. Everybody now knows Sonawane as she has a numbered name and address and can no more be treated as a nobody and fobbed of her rights. That surely marks a revolution ! Sceptics may entertain doubts about the UID solution. But Aadhar will prevail, with millions of Sonawanes marching to a new future under its banner. The road is long; but she now has the means to overcome. Then, on September 29, the Supreme Court freed a Manipur editor from detention stating that “Any society that would give up a little liberty to gain a little security will deserve neither and lose both”. This principle has wide application. A boisterous, jostling, protesting, growing India confronts a “million mutinies” of multiple transitions by heterogeneous groups fast maturing from tradition to modernity. For such a country, security in many ways comes from and is reinforced by
liberty.
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An endangered species AS a family, we were all in for a celebration when my sister gave birth to her second child. Just as the arrival of a newborn results in endless horror stories of childbirth, this time discussions and comments were reserved to discussing birth order. Being the middle child, sandwiched between an older sister and a younger brother, I realised that the concept of a middle child was becoming a thing of the past. With more and more single child homes, we are definitely an endangered lot. Our father would always introduce us in birth order as Number 1, 2 and 3. I often wondered why this order couldn’t be shuffled. As any middle child will tell you, most parents with the sincerest intentions will pay a lot of attention to the first born when the younger one arrives. But what happens to the little number two when number
three arrives? All the attention is unknowingly showered on the first born, so that he doesn’t feel left out and the youngest one because he is the baby, who by the way, never really grows up. Now that leaves us the second borns out in the cold. We, by the way, are a very hardy species, because we learn to manage and be heard at all costs. The funny thing is that we are always considered the right age. If my grandmother wanted something and asked me, which she always did, I would often say, “Why don’t you ask Priya?” You guessed it, the reply would be, “Beta she’s older than you, let her be”. Being the persistent middle child that I am, I would then turn the task over to my younger brother, but ……… he was always too young. Ten or fifteen, I was always just the right age! We have to make a special effort to be heard, so we are usually the most talkative ones, irrespective of whether anyone notices or not. But one day someone did take notice of me; my dad. Ask any little girl and she will tell you what a wonderful feeling it is to have your dad’s ears and eyes all to yourself. Over the years I have developed a true and lasting friendship with my father. This has often resulted in feelings of deprivation amongst my siblings and I have been looked at accusingly for taking up too much of his time. As the ‘sandwich’, I know I never impinged on their time, let alone get my share of it. But the myth of me being the apple of my dad’s eye has been perpetuated for so long that sometimes I start believing in it too. I don’t want to know whether this is a myth or a fact; all I know is that this myth has given me enough strength and confidence to look life squarely in the eye and I wouldn’t change my special slot for the
world.
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The article, “Remedy worse than the disease” (Sept 9, 2010), penned by a former Supreme Court Judge and five former Chief Justices of High Courts, on the issue of the transfer of Chief Justices from one High Court to the other, has evoked a good response from jurists and experts (Sept 13 and 14). We present today two more views.
Judiciary should be free of pulls and pressures During the Emergency in June 1976, some 16 High Court judges, including this writer, were peremptorily transferred. Impartial judiciary serves as a shock-absorber of grievances of citizens against fellow citizens as also against the rulers. Make this shock-absorber ineffective, the result would be a disorderly and anarchic society. If the judiciary becomes subservient to the executive government, it becomes a handmaiden of the Prime Minister, Chief Ministers, ministers and legislators of the ruling party, and their henchmen in the bureaucracy and outside. Some sections ask, what is so peculiar about the transfer of High Court judges? After all, those in the Army, police, etc. are also subject to transfers. In civil services, the weapon of transfer is frequently resorted to harass an upright official. In the nature of things, the changing of office and with it the place of residence is inherent to these services. While the shifting is part of the service and inevitable and is accepted as such by the person concerned, the people at large are not affected because such shifting and transfers do not go against the public interest. However, the judges are appointed to a High Court and all except a microscopic minority, who either become Chief Justice or are elevated to the Supreme Court, retire from that very post. So the nature of their service does not inherently involve shifting in the per se interest of service. In this context, the subordinate judiciary is insulated by the Constitution against the executive interference as the High Courts exercise exclusive power and control over their transfer and posting. Moreover, High Courts do not consist of a solitary judge. Even in the Sikkim High Court, there are three incumbents (two judges and a Chief Justice). The close relations do not appear in the court of their relation judge whether sitting singly or in a larger bench. A judge’s friend, who as a matter of right can appear before them, if not so scrupulous, may easily exploit his friendship but not his relations. His colleagues on the Bench are not expected to conspire with him and sign on the dotted line. Where many judges have their relatives doing practice, such judges may start scratching each other’s back. I have served for more than 18 years at the Bench and can say from personal experience that judges are above such petty, demeaning thoughts. If some judges are as unworthy as they are sought to be painted, then transferred judges in one court would be looking after in that court the interest of relations of transferred judges of that high court and vice versa. What about a judge whose relation practices before the District Judge and Sub Judges who may be amenable to the High Court Judge’s invidious influences to a degree greater than his colleagues on the Bench? And where should a Supreme Court judge go, whose relation may be practicing either in the apex court itself or in one or the other High Court or before the subordinate judiciary? Should a Superintendent Engineer, Chief Engineer, Secretary or Chief Secretary forfeit his right to be in the service of that state if his bright son or daughter happen to qualify and join service of that state on the specious ground that he is likely to be favoured in his service career on account of his father's influence and such favouritism is likely to create disaffection in the given service? Extending the illustration to the Army, what would you do to a General whose son, out of patriotic fervour, joins the Army? There is no other service to which he can be transferred. Would you make either of the two to resign the job? In writing this I am pleading a public cause and not the cause of High Court judges against their transfers as such. For an overwhelming majority of judges are made of sterner stuff. They would view it with stoic indifference. A little personal inconvenience to them or to their dependents caused by transfer would hardly be a price to pay for maintaining their self-respect and sense of duty to the country. For by paying a paltry salary to a soldier, the nation expects of him, when the call of duty comes, to stand on his ground even at the cost of his life. The nation’s expectation would be no less from those on whose comforts it expands a fortune. But under a corrupt executive regime, such High Court judges would not be transferred. They are likely to bask in the sunshine of the goodwill of the powers that be and eventually join in the loot of the citizens. It is the citizens who will be the sufferers if the independence of this constitutional post suffers a setback. As an enlightened citizen, I, too, have a stake in the independence and health of this institution and as such, I owe it to myself and to my fellow citizens to point out that the government’s policy on transfer is anti-people and against public interest. The higher judiciary, along with the Army, still represents the only proverbial silver streak in the otherwise murky national firmament. The strength and stability of the democratic polity depends on the strength of institutional pillars on which it rests. The most important pillar envisaged in the Constitution is the judiciary and its strength is its independence. Good rulers do not undermine the strength of such vital institutions. They take positive steps to strengthen them and, in the process, strengthen their own capacity to do good to their people. I am not aware if there is any other institution in the country that by and large works with such dedication as the judiciary. A judge — and this applies to the presiding officer of the lowest court of sub-judge to the highest court of the land — punctually takes to his seat in the court at the prescribed time, and works, as if glued to it, till the lunch hour. One feels as if one is committing an impropriety if one takes while holding the court even a glass of water. The same applies to the afternoon session. Not for him the diversion of pleasantries with a friend or the telephone talk or a tea session with his colleagues and friends or extended lunch hours. After court hours, a judge has to dictate judgments. At home he has to read and correct the typescript of the judgment, and then reads the admission cases of the next day which consume at least two hours daily. One is not bound to do so. But the sense of duty compels him to do so. Otherwise, even the whole working day may not be sufficient to dispose them of. And then where to find time to decide the regular pending cases? All this involves concentrated mental work. At times, one has to write lengthy judgments and spend weekends and even long vacations to complete them. But judges have never made a song of it. For they owe it to their high office and do so happily. In the long history of the Indian high courts, one never heard of a seniormost judge, after the retirement of the Chief Justice, being kept as Acting Chief Justice for months and years before being appointed as the Chief Justice. Why, if not for ulterior motives? Never before 1976, an extension of less than two years was given to the Additional Judge of the High Court, if there was no vacancy of a permanent judge on the expiry of the initial term of two years. And the decision used to be taken weeks in advance. Not so since 1976 when the period of extension ranged from three to six months. Not because within this period a permanent vacancy is expected. It has become the style. After the expiry of this short extension a further extension is given. That too, on the last day of his term. And then again, at times, no formal warrants of appointment, but on telephonic information to the High Court office that the term of the given Additional Judge is extended and the oath should be administered to him. I leave it to the judgment of Indian people whether these actions by the Centre were intended to enhance the independence and image of the judiciary or to decisively undermine it. The writer is a former Chief Justice of the Punjab and Haryana High Court and the Calcutta High Court. While retiring in 1988, four years before his superannuation, he had requested the President of India to impress upon the Centre the need to review the policy on transfer of judges
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It’s time for Centre, apex court to act THE Punjab and Haryana High Court's turbulent past was apparently aggravated, if not created, by the Chief Justices from other states. A peep into the recent past provides enough evidence to pass a verdict against the trend of having outside Chief Justices. In just five years, the High Court plunged into crisis at least thrice — twice on the issue of appointments being pushed by an outside Chief Justice. On an earlier occasion in 2004, the differences with the then Chief Justice also saw as many as 25 Judges proceeding on mass leave. The latest in the series of crisis was brought about by the Punjab and Haryana High Court’s former Chief Justice Vijender Jain. After spending about 18 months in Chandigarh as the Chief Justice, the “outside” Judge bade adieu to the City, but left behind controversies. Right from the appointment of Judges against the opinion of the High Court collegium, to sharing the dais with the Chief Ministers and going abroad for conferences, the outside Chief Justice’s actions were always under the scrutiny of the Bar and the Bench, sometimes in hush-hush tones, sometimes openly. Justice Jain had arrived in Chandigarh in November 2006 at a time when the High Court’s image was at its lowest ebb among the masses due to the sharp divide between the Chief Justices, with extra administrative powers, and the brother Judges. In fact, much before his occupation of the coveted seat, the High Court had witnessed crises during the tenure of former Chief Justices Arun B. Saharya and B.K. Roy due to difference in opinion with the other Judges. It was worse during Justice Roy’s tenure as all except one Judge had proceeded on mass casual leave. The crisis had ended with Chief Justice Roy and at least two other Judges of the High Court being transferred out. Chief Justice Jain, under these circumstances, was expected to “take everyone along”. But by the end of his tenure, the High Court was divided over appointments and other issues. Even the Judges strongly supporting his moves during his initial days turned critical of his actions. At times they spoke openly against him. Chief Justice Jain’s actions during his tenure had evoked mixed reactions from the Bench and the Bar. If he went around cutting ribbons for inaugurating judicial complexes, he was appreciated by some for his progressive designs and blamed by many for wasting precious court time. Things stabilised with the arrival of Chief Justice Tirath Singh Thakur and Chief Justice Mukul Mudgal, undoubtedly. But a spin-off of their short tenures can be seen in the appointment of Judges. Chief Justice Thakur was in Chandigarh for just more than a year; and Chief Justice Mudgal too leaves in January 2011 after spending about the same time. Both the Judges stayed here for durations too short to fill up the vacancies. As of now, the High Court has 47 judges as against the sanctioned strength of 68; and a pendency of more than two lakh cases. A local Chief Justice does not have to wait and watch. He has already seen enough and can simply recommend the names of advocates for elevation; and see them through before his tenure ends. Sending a Judge as the Chief Justice of another state also means displacing him at the fag end of his career as elevation more often than not comes at a time when retirement is staring in the face. The Punjab and Haryana High Court’s own experience with local Judges, functioning as Acting Chief Justices, is enough to reveal the system of not having outside Chief Justices works like a well-oiled justice delivery machine. Of late, Justice H.S. Bedi — now in the Supreme Court — and Justice Mehtab Singh Gill — currently the seniormost Judge — have ensured smooth functioning of the system during their tenures as Acting Chief Justices. The argument against outside Judges has already been built. It’s now for the Union Law Ministry and the Supreme Court to examine the contentions and act expeditiously. The articles (Sept 9 and 13) and comments (Sept 14)
are available on www.tribuneindia.com
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TILL June 1976 no judge was ever transferred without his consent. Before that, a judge was transferred either on his request and when so transferred he joined the transferee court as the juniormost judge or when made a Chief Justice of another High court. The judges in the latter category readily gave their consent as in their own high court they stood in seniority with no prospect of ever becoming chief justice or such a prospect lay in distant future. Such transfers were more of a favour to the judge concerned.