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Analysis

In the corridors of justice

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New Delhi 9th Oct 2017, : If transfers by the Collegium are made in a non-transparent fashion, even unanimously, people will speculate Under our constitutional scheme, the Supreme Court occupies a unique position. The power of judicial review, the felicity with which it entertains Public Interest Litigation (PIL) and its selective use of Article 142 of the Constitution of India in aid of which, the Court bypasses even established procedures to do complete justice in the case earns the institution both kudos and justified criticism.

We credit the Supreme Court with many landmark decisions. The Court has shown exemplary courage in protecting constitutional values, bringing to book the corrupt and protecting the poor and marginalised whenever the occasion arose. At the same time, by entertaining PILs on certain occasions, it has rendered judgements which have, perhaps unwittingly, adversely impacted the economy of the country. In some ways, NPAs of banks are the result of these decisions. Omnibus cancellation of telecom licenses and coal block allocations are cases in point. The extent of damage caused cannot be assessed in just economic terms. Such decisions tend to shake the confidence of foreign investors who, for no fault of theirs, found their investment set at nought. The third element, the use of Article 142 of the Constitution has even more serious consequences. Such power, according to the Court, can only be exercised in the absence of remedies available in law. Yet, the Court has often deviated from this salutary principle and used Article 142 to do what it thinks best. The hierarchy of Courts allows errors to be corrected when the lis moves up the hierarchy, ending in the Supreme Court. But if the Court of last resort, either through PILs or in the exercise of power under Article 142 acts as the Court of first instance, litigants are left remediless. Individuals and entities have suffered unjustifiably at the hands of the Court.

It is in the exercise of its administrative functions that the Court has been found even more wanting. The Supreme Court exercises administrative functions in three ways — (1) in the management of the administration that supports its judicial functions; (2) by being the final arbitrator in the appointment of Judges of the Supreme Court as well as to the High Courts and; (3) the power of transferring Judges from one Court to another.

The Chief Justice of India has the power to determine the roster for hearing cases. Eyebrows are occasionally raised when some significant matters are listed before a particular combination. Why the Chief Justice, in the presence of the Prime Minister, publicly announced that three significant cases will be heard during vacation caused concern. Why those particular cases were picked up for hearing during vacation is inexplicable. Such decisions become controversial outside the courtroom. This adversely impacts the dignity of the institution. Unfortunately, there are no guidelines which give confidence both to the litigant and the legal fraternity that cases would be heard in their turn based on transparent procedures. The moment the system becomes opaque, it gives rise to unnecessary speculation. The Court, in exercising judicial powers, expects transparency from the government. It should adhere to the same principle when exercising administrative power also.

Functioning of the collegium system is also charged for opacity. Non-participation in the collegium, making unanimous recommendations in the absence of unanimity, and open dissent are matters for which the Court has not earned laurels. When individuals with hardly any practice are elevated to High Courts, it makes us lose confidence in the wisdom of Judges who exercise the power of appointment. Why elevation of certain Judges was held back while others considered, again raises issues of transparency.

The third element in exercise of administrative power is the sole prerogative of transferring Judges of higher judiciary from one Court to another. In the recent past, transfers or holding them back has raised eyebrows. One recent example is of Justice Jayant Patel, Judge of Karnataka High Court, who quit the judiciary when transferred to Allahabad High Court. If he had accepted the transfer, he would have been the third senior-most Judge in the Allahabad High Court while in the Karnataka High Court, he would have, after October 9, 2017, ordinarily become the acting Chief Justice. If transfers are made in a non-transparent fashion, even though they are done unanimously, people will speculate. We know that Justice Patel, when in Gujarat, had directed a CBI investigation into the Ishrat Jahan fake encounter case, which led to the arrest and subsequent charge-sheets against senior Gujarat police officers. This has not happened for the first time. The controversial transfer of Justice Rajiv Shakdher from Delhi High Court to Madras High Court and of Justice Abhay Mahadeo Thipsay from Bombay High Court to the Allahabad High Court has not enhanced the status of the Supreme Court. Justice Rajiv Shakdher apparently set aside the lookout notice in 2015 issued by the IB against Greenpeace activist Priya Pillai. Justice Thipsay, as a Judge of Mumbai Sessions Court, had imposed life sentence on nine of the 21 accused in the Best Bakery riot case during the 2002 Gujarat carnage. This was a case transferred out of the Gujarat High Court by the Supreme Court, to be tried by a Mumbai Court. The reason for speculation may or may not be correct. But in the absence of a transparent system for such administrative decisions and the opacity surrounding them, the judiciary gets scarred.

The time has come for an overhaul of the judicial system. While the electorate can replace the government every five years, that luxury is not available when dealing with Judges. They alone can instil confidence not just within the legal fraternity, but in civil society. That confidence is on the decline.

DISCLAIMER: The author is a member of the Rajya Sabha, and a senior Indian National Congress leader. Views expressed are personal.

Courtesy: This Article is published in DNA on dated 9th October 2017.

Analysis

Croatia in World Cup: The story of its origin

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Players of Croatia

Croatia’s prominence in the football World Cup freshened memories of its origin in the war which expanded after German Foreign Minister Hans-Dietrich Genscher recognised Croatian and Slovenian independence, ahead of other European Union countries which were palpitating because German reunification in 1989 had already added to their anxieties.

As the Persian expression goes, “Ek na shud, do shud.” Before one source of anxiety could subside, another surfaced. Cardinal Franjo Kuharic, headquartered in Zagreb’s magnificent Cathedral, marched off to the Vatican to seek the Pope’s and Italy’s support. This was promptly given. Some EU member-countries began to have nightmares of the “Axis” being revived.

I was in the Cardinal’s office in the Cathedral which dominates Zagreb square when the door of the ante room flung open and Father Juraj Jezerinac of the Topusko Parish walked in. I had been introduced to him at the earliest stages of the conflict in one of the livelier cafes in Zagreb square. He was full of stories. One night his orthodox Serb counterpart from the neighbouring church compound came to him, looking very conspiratorial.

He had received word from the Orthodox headquarters in Belgrade that Orthodox Priests must lead all Serb populations out of Western Croatia in the Topusko area because the Serb army was preparing to attack the area and annex it as part of Greater Serbia. This was a scoop.

Was further proof required to confirm coordination between the Catholic and the Orthodox churches? They would put aside their intra-church conflicts and join hands against the Bosnian Muslims. The cruel irony was that Sarajevo, the centre of art, music, theatre, literature in former Yugoslavia, was primarily a Bosnian Muslim city. Like Lucknow, Sarajevo went down, nursing art and culture, unable to cope with the assault of philistinism.

At the outset when, some EU members suspected German and Italian encroachments, Britain and France came covertly on the side of Serbia which had been with them during World War II. Gen. Michael Rose, leading the UN Peacekeeping mission in Bosnia, became a regular feature on global TV giving briefs on the Bosnian dead on a daily basis.

Nothing could have exceeded Serbian brutality than the four-year-long siege of Sarajevo. Graphic accounts of this siege, beamed mornings, afternoons, evenings to global audiences on a daily basis, decisively altered the political landscape in Turkey, a development of which the West remained totally oblivious.

Sarajevo derives from Caravan Sarai, pointing to the city’s Ottoman past. The effect of the Bosnian tragedy on the Turkish electorate brought to power Necmettin Erbakan of the Refah party, akin to the Muslim Brotherhood. This was anathema to the upholders of Turkey’s secular Kemalist constitution. The Erbakan government was dismissed.

That is when two of Erbakan’s protégés, Tayyip Erdogan and Abdullah Gul, reinvented themselves as the (AKP) justice and Development Party. The rest is recent history.

The siege of Sarajevo was graphically chronicled by a daily newspaper, Oslobodenje, which won global awards for its bravery. The paper’s office itself was an astounding sight. The offices and the press were in a huge basement, beneath the debris of a multistoreyed building brought down during the war. The editor, Kemal Kurspahic, whom I had met at the last Non-Aligned Summit attended by Rajiv Gandhi in Belgrade, looked none the worse for his travails. But he had, nevertheless, developed a mark on his forehead. This happens when the forehead hits the ground for “namaz” (Muslim prayers) five times a day over months and years.

“Have you become a devout Muslim?” I asked.

“There is no alternative but God when the world abandons you.” There was conviction in his voice.

“Who helped you publish the paper in these circumstances?”

His reply stunned me. “George Soros.”

Throughout the four-year conflict Europe maintained a hands-off policy to avoid internal divisions within EU. Observers like Salman Rushdie described European restraint as hypocritical.

“You reverse the religious affiliations of the protagonists on the ground and not just NATO but even European forces would have entered the theatre immediately to end the bloodbath.” They refrained from intervention because Muslims were the victims.

Those of us involved in covering the conflict knew that Rushdie, and others like him, were speaking the truth. But the mainstream narrative was fudged even on such crimes as the Srebrenica massacres in which 8,000 young Bosnian men were separated from their families and shot dead by Serb militias. Why did the Dutch peacekeeping forces move away from the site of the massacre?

The 78-day US bombing of Serbia during the Kosovo war was designed to oust the Serbian dictator, Slobodan Milosevic. Russians had been outmaneuvered by the Western alliance in a theatre Moscow considered its pan Slavic sphere of influence. Therefore when the responsibility of various part of Kosovo was being distributed between countries of Europe, Russian armoured carriers barged into the area around Pristine airport uninvited. They are still in occupation of that airport. Britain, Germany, France control other segments of Kosovo, a tiny country dotted with exquisite monasteries. The great monastery of Decan in the care of the Italians where priests produce the world’s finest wines and schnapps.

Just as the sun sets, a young priest runs around the building carrying on his shoulder a giant rattle called the tallantone, alerting the inmates just in case the “Turk invader” has eyes on the “House of God”. This hostile mythology is sustained in many countries on the periphery of what was once the Ottoman Empire.

Considering that this World Cup has been a celebration of multiculturalism, how do I explain my being distracted into Balkan tribalism? How swiftly a nation of 4.5 million has made its mark, wrenching itself away from a recent and messy past. Supposing Sefik Ibrahimovic had not migrated from Bosnia to Sweden in 1977 where the great soccer star Zlatan Ibrahimovic was born? Well, Zlatan could have claimed a slot in the Croatian team with considerable justification. His mother, Jurka Gravic, is after all a Croat. Remember, there was multiculturism in the Balkans too before sectarian tribalism was let loose.

(Saeed Naqvi is a commentator on political and diplomatic affairs. The views expressed are personal. He can be reached on [email protected])

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Analysis

Atmosphere vitiated, but publishing escapes heavy hand of politics, say insiders

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Freedom of Press

New Delhi, July 13 : With the new weapon of choice to intimidate publishers being the legal injunction, industry stakeholders contend that they have escaped the heavy hand of direct political intimidation — perhaps because a critical book is not as potent as a critical TV channel or newspaper.

“The impact that books are capable of having (certainly in English) in India is perhaps in reality limited. Print and television are the more immediate and higher-impact media,” noted Thomas Abraham, Managing Director of Hachette India.

He also believes calling publishing a “sacred space” is a “tad over-hyped. Because unless you’re the Sahitya Akademi or an NGO/Trust, you’re primarily a business”.

He said while part of the business is to publish freely, but it has to be done within the limitations of existing laws. “Though, when push comes to shove, our laws (certainly a few draconian ones) don’t seem inclined to defend freedom of speech, even if our courts have generally had a good track record there,” he said.

 

“We must publish without fear,” asserted Chiki Sarkar, publisher at Juggernaut Books. “It’s an issue we feel passionately about. But it’s hard for many… (the legal process involving defamation) is long and often cumbersome. Many publishers do feel they have to make pragmatic choices, and why blame them. As it is, the industry doesn’t make a lot of money.”

Sarkar also noted there has been pressure and censorship across all political regimes.

“I remember Vaasanthi’s bio of Jayalalithaa (Tamil Nadu Chief Minister) being shut down by the subject. And, of course, (Wendy) Doniger happened during the UPA (United Progressive Alliance) tenure, although it was unconnected to that regime. (“The Hindus: An Alternative History” was withdrawn by Penguin before the current government was elected to power in 2014.)

But “I Am a Troll: Inside the Secret World of the BJP’s Digital Army” by journalist Swati Chaturvedi, an explosive expose of the Bharatiya Janata Party’s social media strategy, did not face any trouble. “Shadow Armies: Fringe Organisations and Foot Soldiers of Hindutva” authored by journalist Dhirendra K. Jha too sailed through.

The book maintains that BJP’s advance from two Lok Sabha seats in 1984 to 282 in 2014 has been accompanied by the burgeoning of fringe organisations such as the Sri Ram Sene, the Hindu Yuva Vahini, the Sanatan Sanstha and the Hindu Aikya Vedi which have forcefully, even rabidly, propounded the Hindutva cause.

There has been talk that ever since the Prime Minister Narendra Modi-led NDA government came to power, freedom of speech is under threat in India — and parallels are drawn with “Indira’s emergency” and “Hitler’s dictatorship” by opposition leaders and members of the intelligentsia.

In the publishing space, though, many do not quite agree with that contention — at least openly.

“We haven’t had a situation around the publication of a book that has had any pressure from any group — political or otherwise. It is important to mention here that while all voices and opinions should be published, it is equally important to publish them within the governing laws of the country,” Ananth Padmanabhan, Chief Executive Officer, HarperCollins India told IANS.

“In the past we have experienced pressure when both parties have formed the government, so this is not a particularly new phenomenon. As publishers, it’s our role to publish well-researched, good quality books, Priya Kapoor, Director of Rolli Books told IANS.

She said it was one of the responsibilities of the publishers to publish sensibly. “In the past, we have had court cases which have gone on for years, legal notices and pressures of all kinds — and in most cases we have gone ahead with the publication of the book after assessing the risks involved,” she said.

Abraham said calling the present situation as Emergency-like is “overstating” it.

“Certainly, illiberal forces are more vocal, and the political scene is much more vitiated, but the shackles that exist and that can be brought to bear as pressure from the past 50 years or more — I’m referring to outdated, and vaguely-stated laws that can be made a tool of stifling expression,” Abraham said.

Books extremely critical of the ruling regime, including Modi himself, do get published.

For example, “The Ministry of Utmost Happiness” by Arundhati Roy, in which Modi is supposedly referred to as “Gujarat ka Lalla”. More recently, in “Memory in the Age of Amnesia”, filmmaker Saeed Mirza lashed out at Modi — without naming him, reminding readers about the “scar” of his career, the Gujarat riots — that has been overlooked.

“A man has been installed as the Prime Minister of my country,” Mirza writes, “who represents a political and ideological mindset that I oppose and find deeply disturbing. His contentious and questionable journey to the pinnacle of power has been documented thoroughly and no amount of wizardry of words… by admiring political pundits and fans and his own, personal amnesia of what he did to arrive at where he is, can erase that history. The scar is permanent,” Mirza, 74, noted.

(This is the 2nd and last part of article on freedom in book publishing. Saket Suman can be contacted at [email protected] )

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Analysis

The role of Cold War in Indira Gandhi’s Emergency

Supposing the Allahabad High Court had not disqualified Gandhi, how would events have shaped? If Sanjay Gandhi, Siddhartha Shankar Ray, Muhammad Yunus and others had not forced her hand on the Emergency, how would the Gandhi-JP standoff have concluded?

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Indira Gandhi

Indira Gandhi declared the Emergency in 1975, plonk in the middle of the most intense phase of the Cold War. Détente was going so badly for the Americans that stand up comedians in Washington were comparing it to a wife swapping party “from where you return alone”.

After the Vietnam debacle, Washington was going to exert every muscle not to allow Moscow to build upon the strategic asset it had created for itself in New Delhi during the 1971 Bangladesh war.

In fact, the Congress split of 1969 was itself an advantage for Moscow. Indira Gandhi had discarded the conservative, pro-capital big wigs, more comfortable with Congress stalwarts like Morarji Desai whom she had defeated in the Parliamentary party contest to become Prime Minister in 1966.

Not only was a former card carrying Communist (from Eton and Oxford too), Mohan Kumaramangalam, part author of the split, he had worked out an arrangement with the General Secretary of the CPI, S.A. Dange, described as a policy of “Unite and Struggle”. We shall, said Dange, unite with the Congress’ progressive policies but “struggle” against its “anti people” deviations.

This was a pronounced leftward lurch and it was going to be resisted by a coalition of the Right, both internal and external. Indeed, as early as 1967, within a year of her coming to power, Indira Gandhi was given notice: she lost elections in eight states to parties of the opposition. This groundswell would obviously suit the purposes of the Congress old guard discarded by Gandhi.

The most succinct observation on Gandhi’s ideological leaning came from the correspondent of the Times London, Peter Hazelhurst: “She is a little to the Left of self interest.”

Her ideological inconsistency becomes apparent if one reverts to her earliest days in 1959 as President of the Congress. She dismissed the world’s first Communist government which had come to power through the ballot box in Kerala. That she took American help to unsettle Kerala to justify the state government’s dismissal was revealed by US ambassador, Ellsworth Bunker in an oral interview kept in the Columbia University archives. Whatever doubts there might have been about the Bunker revelations, were cleared later by Ambassador Daniel Patrick Moynihan in his memoirs.

During her Prime Ministership in 1976, the Congress party raised a storm against the US having installed a nuclear device on Nanda Devi peak to spy on China. The controversy had many twists. A joint CIA and Intelligence Bureau effort to install the device in 1965 (Lal Bahadur Shastri was Prime Minister then) had failed because of bad weather. Worse, two plutonium laden capsules had been lost. According to the Intelligence estimates the plutonium was enough for half a Hiroshima bomb.

In the course of an interview, Chester Bowles, US ambassador during Indira Gandhi’s first innings, took my breath away. He couldn’t understand Congress protest. “After all Indira had asked me to complete in 1966 the project which had been aborted in 1965.”

Well, this is how the Congress’ attitude towards the super powers varied from time to time. But for the West the spectacle of Gandhi and Dange in a warm embrace was alarming because of the context. The West had taken a series of knocks – Vietnam, Angola, Mozambique, Ethiopia, Nicaragua were all Communist. Additionally Communist leaders Enrico Berlinguer, Georges Marchais, Santiago Carrillo in Italy, France and Spain respectively were a headache for the West. Given this state of play, India was too priceless a trophy to be easily lost to Moscow’s sphere of influence.

The obstacle in the way of a counteroffensive was Gandhi’s personality. She had evolved into a charismatic and, therefore, invincible leader. Proprietor of the Indian Express, Ramnath Goenka and Nanaji Deshmukh, fell into deep thought.

The Indian mind reveres renunciation. It occurred to the head hunters that once a top ranking Socialist leader, Jayaprakash Narayan, had renounced political power. He was keeping himself busy with Gandhiji’s ashrams and such unlikely causes as Acharya Vinoba Bhave’s Bhoodan or Land Gift movement. JP agreed to lead the movement provided it remained peaceful.

The youth were in agitation across the globe against the excesses of the Vietnam War – Grosvenor Square, London, barricades in Paris, police shooting down of students at the Kent state university in Ohio, US. Soon thereafter the Navnirman Andolan, youth agitation in Gujarat erupted on a seemingly flimsy issue of hostel fees. After visiting Gujarat, JP was prevailed upon to launch a similar movement against corruption and bad governance in Bihar. It was a tepid agenda livened up only by the media dedicated to the task of keeping up the pressure on New Delhi, boosting notions of a “total revolution” one day, asking police and the bureaucracy not to obey “bad” orders another, and so on. The immediate target of the “movement” was a hapless Chief Minister, Abdul Ghafoor, quite bewildered by his own eminence. Why was he in the eye of a storm? He had sunken cheeks and a drooping frame, draped in a much worn Sherwani. By way of hospitality for visiting scribes, he would fetch a bottle of old smuggler Scotch whisky from his wardrobe full of smudged clothes which were clearly waiting for laundry. He was a simple man, not a plausible enough crook to invite a national movement for his ouster.

JP, who had invited me to stay in his house in Patna’s Kadam Kuan, listened to my stories even about the Chief Minister with a kindly smile. He was a trusting man and totally non judgemental about the wide range of political interests who had clambered onto his movement.

The movement was carried mostly by RSS cadres, with a sprinkling of socialists, Gandhians and Congress (O), mostly those who had been shown the door by Gandhi in 1969. This exactly was the rough outline of the group which morphed into a coalition in the course of the movement. The coalition came to power in 1977 as the Janata Party.

Supposing the Allahabad High Court had not disqualified Gandhi, how would events have shaped? If Sanjay Gandhi, Siddhartha Shankar Ray, Muhammad Yunus and others had not forced her hand on the Emergency, how would the Gandhi-JP standoff have concluded?

(A senior commentator on political and diplomatic affairs, Saeed Naqvi can be reached on [email protected] The views expressed are personal.)

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