SPECIAL COVERAGE
CHANDIGARH

LUDHIANA

DELHI
O P I N I O N S

Perspective  | Oped

PERSPECTIVE

Looking for knights in black robes
Judges must eschew any suggestion that duties of the judiciary are owed to the electorate; they are owed to the law which is there for peace, order and good governance 
Chief Justice S.H. KapadiaS.H. Kapadia
L
eading an exemplary life is the highest form of ethical conduct. This is the keystone of our modern codes of judicial conduct. We need a clean man in the black robe to uphold the independence and the integrity of the judiciary.

Chief Justice S.H. Kapadia


EARLIER STORIES


THE TRIBUNE
  SPECIALS
50 YEARS OF INDEPENDENCE

TERCENTENARY CELEBRATIONS


OPED

Let private universities bloom
Govt should ensure level-playing field
Desh Deepak Singh
T
he proposal to convert Khalsa College, Amritsar, into a private university has raised some interesting issues: a debate on allowing the private sector to go full steam into education (job insecurity for faculty, high fees for students, turning it into a commercial venture, etc.) and the politicisation of what is essentially an academic exercise. But the outcome of this controversy is bound to have an impact on the future thinking on education in Punjab in more than one sense.

On Record
Gurmat Sangeet goes online 
by Aparna Banerji
O
n May 6, 2006, the Darbar Sahib reverberated with the sounds of stringed instruments for the first time. Dr. Gurnam Singh and a jatha of his students, on the invitation of the SGPC, brought back the traditional Gurbani sounds. Five years down the line, Gurmat Sangeet strains now run across the state (and outside it). Students are eager to train in the Gurmat Sangeet discipline.

Profile
The ‘Man of Magic’
Harihar Swarup
A
mong many Indian magicians, Gopinath Muthukad is one of the most popular in recent history. The International Magicians Society, USA, has selected Muthukad for this year's International Merlin Award, considered the Oscar in magic. After P.C. Sorcar Jr, Muthukad is the second Indian magician to receive the coveted award. Reacting to the honour, he said: “On this occasion let me share with you my joy as I consider this to be one of the greatest recognitions of my life”.


Top










 

Looking for knights in black robes
Judges must eschew any suggestion that duties of the judiciary are owed to the electorate; they are owed to the law which is there for peace, order and good governance 
S.H. Kapadia

Leading an exemplary life is the highest form of ethical conduct. This is the keystone of our modern codes of judicial conduct. We need a clean man in the black robe to uphold the independence and the integrity of the judiciary. Action is an extension of values.

A Judge's obligation must start and end with his analysis of law, not with personal beliefs or preferences. The Judge should not accept patronage through which he acquires office, preferential treatment or pre-retirement assignment. These can give rise to corruption if and when quid pro quo makes a demand on such Judges. Similarly, when a family member regularly appears before a Judge, adverse public perception can affect the working of the integrity of institutions like the judiciary.

The active involvement of Judges in community organisations has also evoked a similar response when their civil society associates appear as litigants before them. Frequent socialising with particular members of the legal profession or with the litigants, including potential litigants, is certain to raise, in the minds of others, the suspicion that the Judge is susceptible to undue influence in the discharge of his duties. In such a situation, Judges must keep the part of impartial, objective, fearless and independent justice alive. A Judge must inevitably choose to be a little aloof and isolated from the community at large.

He should not be in contact with lawyers, individuals or political parties, their leaders or ministers except on purely social occasions. When one enters the Judges' world, one inevitably has to impose upon oneself certain obvious restrictions. Judges owe a solemn duty to the community at large and from day-to-day they must ask themselves whether they have done or said anything which is inconsistent with the oath of office they have taken and which otherwise are consistent with their obligations as a Judge.

One more aspect needs to be highlighted. Internal interference from a high-ranking Judge which, if resisted, could lead the lower-ranking Judge being transferred or being denied promotion also needs to be deprecated. Similarly, political protection should not be given to corrupt Judges.

Drafting judgements

In drafting "know what to omit rather than what to include".

Judgements are not to be written as simplified newspaper pieces for public consumption. The process of reasoning in a judgement should reflect its integrity and explain its conclusions. Judges must eschew any suggestion that duties of the judiciary are owed to the electorate; they are owed to the law which is there for peace, order and good governance.

The Judges of the Supreme Court of India should revisit the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to enact laws. We are not concerned with the wisdom, need or appropriateness of the legislation. We must refuse to sit as a super-legislature to weigh the wisdom of legislation.

We must remember that our Constitution recognises separation of powers and that the legislatures and the government can be made accountable for their legislation and actions by the electorate if they err. In many PILs, the courts freely decree rule of conduct for government and public authorities which are akin to legislation. Such exercises have little judicial function in them. Its justification is that the other branches of the government have failed or are indifferent to the solution of the problem.

In such matters, I am of the opinion that the courts should be circumspect in understanding the thin line between law and governance. In such matters, the courts must try to ascertain whether the issue has a legal content or a political content. In the latter case, the courts should invoke the doctrine of deference. The function of the courts is to review the acts of the legislature and not to impose its own policies or values on the society or the legislature.

We do not have the competence to make policy choices and run the administration. Judicial activism which is not grounded on textual commitment to the Constitution or the statute, unlike activism in cases of human rights and life and personal liberty, raises questions of accountability of the judiciary whose members are not chosen by any democratic process and whose members are not answerable to the electorate or to the legislature or to the executive.

We, Judges, should remember that the validity of our decisions cannot rest on popularity. Resisting the pressure to please the majority is the strength of the judiciary, not its weakness. Judges who invoke the Constitution to protect the rights of people and who declare a statute unconstitutional are not legislating from the Bench, nor are they thwarting the will of the majority. They are merely carrying out their oath of office and following the rule of law.

In the context of the developing world wherein litigation impinges on the economy or commerce, many Judges are cowed into submission rather than walk the tight rope of balancing the public interest and be tarred with the epitaph of "usurping the legislative function". Lawyers and the public, apart from criticising, must engage in constructively empowering the judiciary.

In conclusion, on this topic, I may add that it is the discipline of circumstances that makes us more worthy. The task of forming and giving opinion, in the course of judging, is based on many activities; resolving disputes, setting precedents, following precedents, deliberating with colleagues, displaying compassion and so on. However, each of these activities raises questions of judicial ethics. This is where the oath which we take binds us.

Separation of powers

Constitutional law is the law prescribing the exercise of power by the organs of a State. It explains which organs can exercise legislative power, executive power and judicial power and what the limitations on those powers are. In a federal State, the allocation of governmental powers (legislative, executive and judicial) among Central and State authorities is a basic concern.

A constitution has been described as "a mirror reflecting the national soul": it must recognise and protect the values of a nation. The word "constitutionalism" is sometimes used to convey the idea of a government that is limited by law. The phrase "rule of law" is used to convey the same idea. These terms describe a society in which government officials must act in accordance with the law. This in turn requires an independent judiciary and an independent legal profession. Under the doctrine of separation of powers, each of the above organs must stay within the powers allocated by the Constitution. Supremacy of the Constitution is the philosophy of the constitution.

Well established rules of interpretation require that the meaning and intention of the Constitution framers must be ascertained from the language of the Constitution itself; with the motives of those who framed it, the court has no concern. At the same time the Constitution is not to be construed in a narrow pedantic sense and a broad liberal spirit should inspire those whose duty it is to interpret it.

After 1980 the court has changed its direction to securing the rights of citizens from arbitrary actions of the executive and creating a human rights jurisdiction by an enlarged meaning of Article 14 (The Right to Equality) and Article 21 (The Right to Life and Personal Freedom). Between them the court has for all practical purposes introduced the "due process provision" in the Indian Constitution in such matters. In the so-called public interest litigation (PIL) the court freely decrees rules of conduct for government and public authorities which are akin to legislation and oversees their working.

To give a few examples: the court in the interest of clean environment has ordered and supervised the use of clean fuel for vehicles in New Delhi; it has framed schemes of admission in educational institutions throughout India, and made the right to education into a fundamental right from a directive of State policy, and made guidelines to be adopted by public institutions for controlling sexual harassment of women at work places.

The jurisdictional peg on which it is done is that such matters affect "the life" of the citizen under Article 21 of the Constitution. Its justification is that the other branches of government have failed or are indifferent to the solution of the problems. In such matters, the court is acting in advance of the political branches of the government.

By and large such orders have been considered necessary and welcomed by the public, but the question which arises is - can judges ignore the separation of powers in the Constitution and become administrators, and do they have the competence to make policy choices and run the administration? Legislatures and government can be made accountable for their legislation and actions by the electorate if they err. Judicial activism of this type which is not grounded on any textual commitment to the Constitution, unlike activism in cases of human rights and life and personal liberty raises questions of accountability of a judiciary.

Judicial accountability

The value system takes precedence over personality. Honesty is a tendency.

Judicial accountability is a facet of judicial independence. It must be developed consistent with the principles of judicial independence. Constitutionalism is not enhanced by hostility directed against the judiciary which plays such a pivotal role in maintaining the rule of law.

Coming to judicial accountability, there is no difficulty in accepting the principle that in a society based on the rule of law and democratic principles of governance, every power holder is, in the final analysis, accountable to the people.

The legislature is accountable to the electorate. The executive is indirectly accountable to the people through the elected legislature. There is no reason why the judiciary should not be accountable to the community for its due performance of the functions vested in it. Power is given on trust and judicial power is no exception.

The challenge, however, is to determine how the judiciary can be held to account, consistent with the principle of judicial independence. How does one achieve the right balance between autonomy in decision making and independence from external forces on the one hand and accountability to the community on the other hand?

While not recommending the regular election of judges or their recall by popular vote, I would venture to suggest that Judges, unlike legislators, ministers or public servants, should be accountable to the jurisdiction they serve through their absolute adherence to a set core of judicial values. Through inheritance of British constitutional principles, judges in many Commonwealth countries are accountable to either the legislature or the executive, in the sense that one or the other of these two branches of government is vested by the Constitution with the power to remove judges for proven misbehaviour or incapacity. At times this power has been grossly abused in some of the countries.

Judges inevitably end up in the political arena in deciding controversial cases - whichever side they rule. In resolving disputes between citizens and the State or evaluating a constitutional issue, Judges are forced to make decisions which are at times termed political. Judges are, however, not in a position to defend their judgements as they are bound by a code of silence. As stated above, Judges should account for the exercise of judicial power, especially when pronouncing judgements of significance.

Public and media criticism of Judges and judgements is a common feature today throughout the common law world. Like other public institutions, the judiciary must be subject to a fair criticism. But, what I am concerned with is response to criticism, particularly criticism that is illegitimate and irresponsible. In the context of such illegitimate and irresponsible criticism, it must be borne in mind that love for justice is rare - what most people desire is justice which favours them.

Our Code of Judicial Conduct will meet its goal if a talented, hopeful young person looks in the mirror and sees in the reflection the desire to exemplify the standards of justice and the possibility of doing so.

Excerpted from the M.C. Setalvad Memorial Lecture delivered by the Chief Justice of India in New Delhi last week Setalvad set standards for future Attorney Generals In December, 1937, M.C. Setalvad became the Advocate General of Bombay and in that office, as in every office he subsequently held, he rose to the demands of the office.

1943 would have seen him as the first permanent Indian Chief Justice of Bombay, for he was invited to fill that high office. But, he declined the invitation on a ground which must fill every member of the Bar with pride; he refused to be a party in superseding the claims of the first court friend, Sir Harilal Kania. And when those claims were nevertheless passed over, i Setalvad felt an indignation which found a noble expression in the moving words he used in the Supreme Court on the occasion of Chief Justice Kania's death.

But, what the Bench lost, the Bar of this country gained and, in 1950, Setalvad became the first Attorney General for India. He set standards which future Attorney Generals were required to maintain. He realised, for instance, that for lawyers to charge fees not according to the complexity of a case but according to the traits of a client was to reduce the great profession to the level of a trade or business.

The greatest service Setalvad has rendered to the law and the administration of justice lies in the work he did as the Chairperson of the Law Commission and as the author of its report. The picture which that report presents regarding falling standards of the Bench and the Bar is grim but the reality is grimmer.

Nothing would have been easier for Setalvad to have his son Atul with him at Delhi and push him into practice in a year or two. He, however, refused to do so. He left his son in Mumbai to make his way at the Bar for himself, as Setalvad had made it before. All this may appear quixotic to the practical man; but it indicates the fundamental stability of Motilal's character and his deep awareness of the fact that it does not profit a man to destroy his own and his son's self-respect for the sake of easy success. 

Top

 

Let private universities bloom
Govt should ensure level-playing field
Desh Deepak Singh

The proposal to convert Khalsa College, Amritsar, into a private university has raised some interesting issues: a debate on allowing the private sector to go full steam into education (job insecurity for faculty, high fees for students, turning it into a commercial venture, etc.) and the politicisation of what is essentially an academic exercise. But the outcome of this controversy is bound to have an impact on the future thinking on education in Punjab in more than one sense.

First, a university of course is more privileged than a college having its own decision-making power and taking academics to its highest level i.e. research. Colleges do a fantastic job the world over in the sphere of academics but they are stepping stones to the next highest level of development and major breakthroughs the world over come from fantastic universities which have developed over the years.

Colleges get stuck up in an academic exercise and remain the apron strings of the universities they are affiliated with and so have little scope for innovation or further development on their own. Some top colleges in North India like DAV colleges and Khalsa College can become universities any day they choose to because of their infrastructure and capabilities. That they have not chosen to become till now is actually quite intriguing, especially when little known entities have become big players over the years and have established universities. This leads to the next question: Commercialisation of education by private universities.

Yes, it’s true some of the private players may not be following the rules of the game now but one good thing about a private enterprise is that it has to survive competition. If a university is overcharging and services and training are not commensurate with that and there is a level-playing field for other players, the dynamics of the system will be more than self-corrective. So over the years things will undergo a change and that is apparent from private universities like Thapar at Patiala.

A more important aspect which needs to be addressed is that the government is simply not geared up to create the massive educational infrastructure required for the country and private players have to fill the gap, with some estimates suggesting we would require about 1,500 universities in the years to come to fulfil the educational requirements of the country way up from the current 350 or so!

The future will be of smart education which is tailor-made and creates employable manpower and this will entail a flexibility in the educational system, making it possible to take courses across the streams and carry forward credits from one discipline to another. For example, a candidate who has had a break in education due to some reasons will have a choice to complete his degree in another complimentary discipline he wishes to and can be allowed to carry the credits earned earlier and shorten his course work.

Similarly, many new courses which are a lot more inter-disciplinary like biomedical engineering, nano sciences, bioinformatics, etc can be started early by a system which is more flexible and not caught up in rules and regulations and the bureaucratic red tape by entering into strategic alliances with foreign partners rapidly. So possibilities are immense in the private sector. These systems have to outsmart competition and aggressively offer courses which have employment potential, but since the fees will be higher than public universities they may have to tie up with banks for extending extensive loans to students who cannot afford the fees but see an employment potential at the end of the course.

Another benefit which can be reaped in the long term is NRIs contributing extensively to the corpus of such universities and the Punjabi diaspora spearheading academic and research initiatives in foreign universities coming back home. After all, Dr MS Kang of PAU did come back to his alma mater. Had the canvas been a little bigger, perhaps his achievements could have been much wider, although he has contributed significantly even now. But it’s an indication of what future can be.

So privatisation has its own good points if allowed to proliferate and give competition to public sector universities which will not be phased out in any case. A healthy competition between the two will be good for students and even better for the faculty because of wide choices available and market forces recognising their talent.

In the Khalsa College controversy from what one makes out from news reports is that not sufficient understanding is being created in the people concerned, mainly the current faculty, about the university system benefits and the chief reason for their opposition maybe the possible loss of job security, crass commercialization, etc. Maybe the management of Khalsa College can go a bit slow on the process and assure full support to the faculty without looking intimidating.

Not only education, the process of privatisation needs to encompass the entire state and the government should concentrate on creating a level-playing filed, passing legislation for ensuring fairness, maintaining law and order and ensuring successful implementation of policies. Punjab has been held back for long now by an overemphasis on agriculture as a means of sustenance for the population; let the era of corporate farming, development of cash crops, privatization of agencies like Markfed and Verka set in for the great Punajbi spirit to blow the cork. We may not have had Sachin Tendulkars (read Dhirubhai), but we do produce Kapil Dev, Gambhir, Kohli, Bhajji, Yuvi and that’s a very fine batting list of entrepreneurs and NRIs waiting for opportune moments to invest heavily back home and take the state back to where it always was, the numero uno, be it in education, enterprise or good living.n

The Chandigarh-born writer is the Head, Bioinformatics & Structural Biology, Indian Institute of Advanced Research, Koba, Gandhinagar. Email: ddsingh@iiar.res.in

Top

 

On Record
Gurmat Sangeet goes online 
by Aparna Banerji

Dr Gurnam Singh
Dr Gurnam Singh

On May 6, 2006, the Darbar Sahib reverberated with the sounds of stringed instruments for the first time. Dr. Gurnam Singh and a jatha of his students, on the invitation of the SGPC, brought back the traditional Gurbani sounds. Five years down the line, Gurmat Sangeet strains now run across the state (and outside it). Students are eager to train in the Gurmat Sangeet discipline. The Department of Gurmat Sangeet, Punjabi University, Patiala, recently made its (1,800 hours) music archives available online. Presently Dean, Faculty of Art and Culture as well as the founder professor and head of the department, Dr. Gurnam Singh is one of the catalysts in the promotion of Gurbani music. Excerpts from an interview:

Q. Musicologists usually differ on the history and origin of Gurmat Sangeet. What do you say?

A. Gurmat Sangeet is an independent music tradition within Indian music. It began with Guru Nanak. He propagated a spiritual message to people and began binding it in ragas. The ragas used were both the ones which were inspired by folk traditions and the ones that the Gurus created. Prominently two traditions dominated. The Desi (folk) traditions (like Raag Majh and Asa) and Sanatani traditions (like Seri and Gauri).

Q. Some say Gurmat Sangeet existed before court music and some say it came after it.

A. It existed along with courts. Guru Nanak and Babar were contemporaries. The court musicians were called Babar Ke and Gurmat musicians were referred to as Guru Ke. While the former sang for the king, the latter sang for God. Folk traditions enriched classical patronage in darbars while the masses basked in the glory of Gurmat Sangeet.

Q. How did your own journey in Gurmat Sangeet start?

I was tutored by Prof Tara Singh and by my father, Shiromani Ragi Bhai Uttam Singh. When I was a student, no one knew about Gurmat Sangeet. It was sad. Starting on the academic front, I knew Gurmat Sangeet had to be taken to the masses because people had forgotten the importance of the music from the Gurus. In 1993 Gurmat Sangeet was included in the music syllabi of colleges. In 1997 it was included in the syllabi of Punjabi University. The Gurmat Sangeet Chair was set up in 2003 and in 2005 the Department of Gurmat Sangeet was established at the university. The Gurmat Sangeet archives and library followed soon after. Things are just getting better with each day.

Q. Tell us about the role of stringed instruments in Gurmat Sangeet.

A. Gurmat Sangeet was always supposed to be accompanied by stringed instruments. Every Guru practised music with a stringed instrument. Guru Nanak Dev gave us the Rabab, Guru Arjan Dev developed the Sarandha, Guru Hargobind the Taus and Guru Gobind Singh the Dilruba and the Tambura. Stringed instruments complimented raga variations. The instruments originated through folk traditions and the Gurus developed them.

Q. What role do you think Gurmat Sangeet plays in youth today?

A. I have seen Gurmat Sangeet turn people’s lives around. I have students who came from poor backgrounds and small homes. They started learning Gurmat Sangeet and this has earned them respect and employment. Gurmat Sangeet is a strong tool in the propagation of Sikhism itself. Those who practise it get closer to God.

Q.There is a feeling that everyone is after it these days. Do you see any wrong trends emerging?

A. Yes. Gurmat Sangeet has become fashionable. Everyone practises it but very few understand it. When misinformed people dole out lessons in Gurmat Sangeet, sometimes blunders happen and people get the wrong message. Misinformed teachers abound. Also, NRIs are duped in the name of Gurmat Sangeet. They are sold instruments at exorbitant prices. Since it’s a fad now, they fall for it. It’s a widespread evil and people are being cheated in the name of music.

Q. What are your department’s future plans?

A. We are conducting research on stringed instruments. Particularly the Rabab. The Firandia rabab that was handed down to Bhai Mardana at Firanda is the original one. People often confuse it for the Kabuli, Afghani or the Kashmiri Rabab. We plan to bring out a dictionary of terminologies on Gurmat Sangeet and plan to launch online courses for students.

Top

 

Profile
The ‘Man of Magic’
Harihar Swarup

Gopinath Muthukad
Gopinath Muthukad

Among many Indian magicians, Gopinath Muthukad is one of the most popular in recent history. The International Magicians Society, USA, has selected Muthukad for this year's International Merlin Award, considered the Oscar in magic. After P.C. Sorcar Jr, Muthukad is the second Indian magician to receive the coveted award. Reacting to the honour, he said: “On this occasion let me share with you my joy as I consider this to be one of the greatest recognitions of my life”.

Born on April 10, 1964, in Kavalamukkta village near Nilambur, Muthukad's passion for magic was so immense that he discontinued his lawyer's course to take up magic as his career. He founded the first magic academy of Asia at Thiruvananthapuram.

Muthukad has a unique motto: “Magic with a Mission”. Upholding this motto, he has been using magic as a successful tool to spread virtuous ideals among masses. He successfully completed “Vismay Swaraj Yatra”, a journey from Kashmir to Kanyakunaru with magic shows reliving the rousing stories of Indian’s freedom struggle from 1857 to 1947.

Lives and messages of freedom fighters, including Mangal Pandey, Bhagat Singh and Tantia Tope, were staged all over India travelling a distance of 24,500 kms along the geographical cultural and linguistic diversities of the Indian sub-continent.

It was at 11 a.m. on November 5, 2007, that Muthukad and his team set a world record by performing the Indo-China friendship magic show at Nathu La, a historic trade corridor 14,400 feet high in the Himalayas. The magic team set the shinning record after battling low pressure, deficient oxygen and a freezing temperature. His performances earned him huge admiration from national leaders, including the then President A.P.J. Abdul Kalam and Prime Minister Manmohan Singh.

Muthukad then turned against terrorism and violence and carried his message all over the country. Mission India is a 60-day magical voyage with the support of the Ministry of Defence to abrogate terrorism and violence. The latest edition of his startling stage magical extravaganza titled “World of Illusion” is described as an Indian magic show with international dimensions. Inclusive of several trendy wonder scenes, Illusion India is also a blend of magic, music, dance drama and cinema. One of the captivating features of Muthukad's stage magic is his unique way of presentation that transforms ordinary into extraordinary.

The Magic Academy Research Centre (MARC), the only centre of excellence in magical art, is situated in the government-owned KINFRA Film and Video Park away from the hustle and bustle of the city. If the Magic Academy is abode to modern magic, MARC is famous as a home to heritage magic of India including the Great Indian Rope Trick, Green Mango Trick, Cups and Balls and Indian Basket.

Muthukad's inclination and showmanship has transformed him into an icon of imaginative magic. His use of magic as a means for social service has also earned him the unique title: “Man of Magic”. It was this quality that has prompted him to do more charity work while celebrating the 30th anniversary of his magic career.

Top

 





HOME PAGE | Punjab | Haryana | Jammu & Kashmir | Himachal Pradesh | Regional Briefs | Nation | Opinions |
| Business | Sports | World | Letters | Chandigarh | Ludhiana | Delhi |
| Calendar | Weather | Archive | Subscribe | Suggestion | E-mail |