Tribute to Justice Krishna Iyer
India has lost its greatest judge, one of the finest minds and a human being par excellence in the death of Justice V. R. Krishna Iyer. He scored century in his life, but scored several centuries in judicial life. Despite his old age and failing health his mind was rapier sharp and was always alive to social problems. He was a role model for judges. Now judges are arrogant and arrogant people cannot do justice. Krishna Iyer had a heart that was softer than butter. In Hindu scriptures, we find the comparison of human heart with butter. Butter starts melting at the slightest of heat. Human heart is even softer which melts when someone else gets heat though butter melts when it gets heat itself. Nietzsche swooned to see a horse being flogged. Judges should be compassionate like that.
He was the only judge who had the privilege of being a member of legislature as MLA of Madras and then Kerala Legislative Assemblies, of executive as a minister in Kerala and of judiciary as a judge of the High Court and that of the Supreme Court. He came to the apex court at the behest of India Gandhi. Mohan Kumaramangalam lobbied for him though Chief Justice S. M. Sikri had rejected his name in view of his active political background. But he did not spare Indira gandhi when she filed an appeal against the judgment of the Allahabad High Court which set aside her election to Lok Sabha. On 24 June 1975, he granted partial stay; she could continue as PM but not as MP and could not vote in Parliament. it was a big set back to her. on 25 June, the Emergency was imposed. So, his judgment was also a big factor in the imposition of the Emergency. He introduced PIL; entertained a letter written by Sunil Batra from Tihad on a post card which he converted into a writ petition. He was the only judge who was gaoled in independent India in 1948 on the charge of helping communists who supported violence though Iyer was personally against violence. But the Madras govt. could not substantiate the allegation in court and he was released after one month. However, his imprisonment gave him a n opportunity to experience the horrid condition obtaining in jails. Thus jail reforms became his life long passion which he implemented as the jail minister of Kerala. His command over language was par excellence.
I had the privilege of knowing him personally; he wrote the foreword to my book "Justice, Judocracy and Democracy in India: Boundaries and Breaches", published by Routledge. I went to his Koch residence "Satgamaya" with the manuscript, read out some portions, and he immediately started giving dictation. I bow down to him who always remained an angry young man- angry at the injustice and insensitive system, restless to overhaul it and usher the mankind into a heaven of freedom and justice. The kind of him will never be again. Pranam.

Racism in Australia

Australia must curb racism
By SUDHANSHU RANJAN
After much hullabaloo, one Australian has been convicted for racially abusing and assaulting an Indian cab driver. The conviction came within 24 hours of the incident as the accused himself pleaded guilty in the court though Australian authorities are taking credit for the expeditious conviction. Crimes against Indians in Australia are going on continually for months, rather years together unabated but Australian authorities always maintained that these were random acts of violence common in other countries as well. Now, since there is already a conviction by the court for racial attack, it is hoped that the Australian government will no longer try to extenuate the repugnance of the horrendous acts by seeking to take the racist tag off. Further, whether these crimes are racially motivated or just ordinary criminal acts of muggers, the fact remains that Indians are being targeted mercilessly, and it is difficult to understand why the majority of victims are Indians only. It has also been argued that when there was a surge of racist “curry bashings” in the western suburbs of Sydney in 2009, it was not white Australians who were the culprits, but Australians of Middle Eastern (primarily Lebanese) background.
Australia suffers from an identity crisis. It always considered itself part of West and wanted to be called a second America which could never happen. It was the last to be discovered after India and South East Asia and till the 18th century it was virtually ignored. After the industrial revolution, England started sending its convicts to Australia, something like kaala paani. After the rise of Japan, Britain thought of setting up a colony there and organising its administration efficiently. As Australian aborigines were neither armed nor advanced, there was hardly any resistance when the British population strted settling there. In Ameriaca there was some resistance and migrants killed indigenous people in large numbers. After becoming a full-fledges nation in 1901, the first law Australia made was ‘White Australia Policy’. Due to it, there was a sharp decline in the population of blacks and by 1930 Europeans constituted 98% population. This law was in force till 1973 when the government adopted the policy of multi-culturalism and enacted the Racial Discrimination Act (1975) and Racial Hatred Amendment Act (1995) which outlawed discrimination on the ground of race. However, this journey from ‘only white’ to ‘multi-culturalism’ was not smooth and the new laws could not extirpate the germs of racism from the Australian psyche and its leaders did continue to encourage it. In 1988, John Howard, gave the slogan of ‘One Australia Policy’ and called for end of multi-culturalism and stay on the migration of the Asians. Raving about racism, he became Prime Minister in 1996 and remained in his chair till 2007.
England and France are the two countries which expanded their colonies, but their approaches to the indigenous people were different. While the British associated the indigenous people in administration, they did not keep any social interaction with them whereas the French accepted integration with the local population (perhaps because the slogan of equality and fraternity reverberated the French Revolution) they did not allow them to partake in the governance. The Vietnamese were never given representation in the administration under the French rule and it led to such a big war though there was no such war in India as after 1857 Indians were gradually associated in administration. However, the British always maintained distance with Indians and had their exclusive clubs. In one of his speeches, Lord Salisbury had ridiculed Dadabhai Naoroji as a “black man” and had even asked Finsbury constituency not to elect him.
Slavery has been the most notorious example of racism by the West. Racism is the firm belief that abilities and characteristics of a person are attributable to his colour. Black Africans were enslaved on the ground that they less human than white Europeans and their descendants. History testifies to the fact that Africans were not inferior. When Portuguese sailors first explored Africa in the 15th and 16th centuries, they were astounded to find cities and empires as advanced as their own, and so saw in them a serious rival. However, over time, the Africans failed to make technological strides on a par with Europe. Once found weak, the major powers started plundering the continent and forcibly transporting its inhabitants to work as slave labourers in new colonies across the Atlantic, the Africans came to be seen as deficient species as “savages”.Racism and discrimination have been used as powerful weapons encouraging fear or hatred of others in times of conflict and war, and even during economic downturns.
Now, racism has been abolished in principle internationally. The definition of racial discrimination is contained in Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination to which Australia is a party: "The term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life". However, it is yet to be observed in spirit. The International Day for the Elimination of racial Discrimination is observed annually on 21 March. It was on this day in 1960, in Sharpville in South Africa, that the police shot dead 69 demonstrators and injured 180. Most of those killed had been shot from from behind. 7,000 people had assembled to rally against apartheid and its ‘pass laws’ which required all Africans to carry a Pass Book enabling the South African government to restrict and monitor their whereabouts.
The UN held a conference to discuss racial discrimination, xenophobia and related intolerance from 31 August to 7 September 2001. While every nation criticized others, no one tolerated its own criticism. The USA and Europe were against effective discussion on slavery reparation, Israel and the USA were against discussion whether Zionism is racist against Palestinians and they also walked out in protest, India opposed any discussion on caste-based discrimination and some Arab countries were against discussions on oppression of Kurds or Arab slave trade. Racism in whatever form has to be exterminated and comity of nations must come forward to ensure that it is done at the earliest.

Conflict of Interest

Conflict of Interest Everywhere
By SUDHANSHU RANJAN

Investment in shares by judges of the Supreme Court has become a major impediment in the dispensation of justice as judges are recusing themselves from cases one after another on the ground of conflict of interest. This follows the brouhaha created by some lawyers over the issue of conflict of interest when Justice Kapadia did not withdraw from a case involving Vedanta after making a blithe announcement in the court that he too has shares in Sterlite, Vedanta’s sister concern, and Justice R. V. Raveendran went ahead with the hearing of a case involving Mukesh Ambani’s Reliance India and Anil’s RNRL on the ground that he had shares of both companies and that none of the parties in either case had objected to the presence of either after disclosure.
Disclosure of assets by the judges of the Supreme Court has made a significant revelation that out of 21 judges who declared their assets, 18 have invested in shares and mutual funds. This is going to make the debate over the conflict of interest in the judiciary more intense whether judges should be allowed to invest in shares. Justice S. H. Kapadia pulled out of a case concerning ITC Limited as he and his wife own large number of shares of the company. The case was listed seventh time before the bench, but the disclosure did not come earlier. Before it, he also pulled out of another case pertaining to acquisition of shares by London-based Vedanta Resources in Sesa Goa, an iron ore exporting company on the ground that he owned shares in Sterlite Industries, a sister concern of Vedanta. Justices Raveendran and Markandeya Katju recused from different cases. Even before the controversies veering around Justices Kapadia and Raveendran could die down, a fresh revelation about Karnataka high court chief justice P. D. Dinakaran, already under cloud, jolted the nation that he passed orders in favour of a family whose hospitality he had enjoyed in Canada.
The issue of conflict of interest is not new. When Supreme Court was hearing the Bank Nationalisation case, Justice Shah announced in the court at the outset that he and some other judges owned shares of private banks. But since the counsel of the Union government did not object to their presence, they did not pull out of the case. Two days later, advocate R. K. Garg filed an intervention petition supporting the ordinance by which fourteen banks were nationalized. The judges expressed amazement as to how such a petition could be entertained as a law was valid until set aside by the court. Then Garg questioned the legitimacy of their being on the bench when they held shares of some banks. The Court took him to task that they had made the disclosure. However, the Court struck down the ordinance. Indira Gandhi got so convinced about the prejudice of Justice Shah that later, during the Janata regime, she refused to appear before the Commission headed by him alleging bias. However, Justice M. H. Kania set a good precedent in 1988 when he recused himself from the Bhopal gas leak case after disclosing that he had shares in Union Carbide. He did not consult lawyers either. In fact, no objection certificate from lawyers is not a convincing plea for a judge to hear a case with conflict of interest as lawyers are tongue-tied in alleging bias against a judge.
The principle of automatic recusal in a case of the conflict of interest is well-settled. The first case of judicial review in the world (Dr. Bonham’s case 1607) has its genesis in this very conflict. In Britain, the regulation prescribed that no doctor would practise unless registered with the College of Physicians which was also empowered to prosecute and punish the violators of the rule. One Dr. Bonham was prosecuted and imposed a fine of 10 pounds, out of which half went to the State and the remaining half remained with the College. Bonham challenged it on the ground of bias that the College had a pecuniary interest in it and so, it could not be the judge. Allowing his petition, the court invalidated the regulation. Again, in Dines v. Proprietors of Grand Jn. Canal (1852), the House of Lords spelt out that the dictum that no one could be a judge in his own cause was “not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest”.
The Supreme Court of India upheld this principle in A.K. Kraipak and Ashok Kumar Yadav. In fact, the concept of curative petition, introduced by the Supreme Court in Rupa Ashok Hurra (2002), when all other avenues of appeal and remedy are exhausted, was taken from a judgment of the House of Lords (Pinochet 2) which upheld the same principle. A person was prosecuted at the behest of the Red Cross. After the arrest warrant was issued, it came to light that one of the law lords was a member of the Red Cross who had not disclosed it. The case was heard afresh without that law lord.
In fact, the virus of the ‘conflict of interest’ seems to have crept inside the belly of the whole system of government and is gnawing at its flesh. None of the three wings- the executive, the legislature, and the judiciary- seems to be immune to it. Recently, Parliamentary Committee on Public Undertakings asked its members to disclose their business interests. The move came against the backdrop of objections raised by some members under Rule 255 of the Rules and Procedures of Conduct of Business in the Lok Sabha about the presence of some members in the Committee who have huge stakes in infrastructure business. In the executive, the conflict is rampant. However, just one example will suffice. Genetic Engineering Approval Committee (GEAC) of the Union Ministry of Environment is the competent body to grant approval for the GM food. Indian Council of Agricultural Research (ICAR) applies for approval to the GEAC as its institutes are preparing GM food, but the DG, ICAR, is its ex-officio member.

Austerity and simplicity- Congress generates debate

At least in one sense, the bane of drought has become a boon that has spurred the austerity drive. The pontification of the Congress high command saw the two reluctant ministers leaving their cozy suites of five-star hotels in the capital. Pranav Mukherjee and Sonia Gandhi led the government and the party by flying in economy class to enforce the ascetic discipline. Writing on his twitter, Shashi Tharoor justified his stay in a five-star hotel on the ground that he did not squander public money, but spent his personal savings. The two ministers did not find their plush bungalows worth living. Spending own money is fine, but it stares in the face of the principle of voluntary poverty enunciated by Mahatma Gandhi whose ideals his party professes to propagate. Gandhi, a hugely successful barrister, whose income, at the present rate of exchange, as estimated by Rajmohan Gandhi, was Rs. 1 crore per month, preferred to wear a langoti in order to identify himself with the masses. Moral foundation of the society collapses if physical comforts are taken to be the end, rather than the means of living,
It is amazing that austerity has become such a major issue in a country like India which has a tradition of monarchs prostrating before hermits. The Congress party followed this tradition of simplicity assiduously till late 1960s. Every year, there were three sessions of AICC and one general session of the party in different cities, and even the Prime Minister and the Congress President stayed in camps. Leaders were supposed to lead lives of sacrifice and austerity. In 1937, when the Congress party formed governments in provinces, ministers travelled in the third class of trains.
Somehow, the ideal was forgotten. Bureaucrats led luxurious lives right from the beginning, and slowly, even ministers took to it. Since the British came to rule over India, they introduced a flabby administration in which doing job was a luxury. The Regulating Act of 1773, the first essay in constitution-making for India by British Parliament, established the new concept of partnership between the Crown of England and the East India Company. It created a Supreme Council in Bengal comprising a Governor-General and four councilors. Exorbitant salaries were attached to these posts, the Governor-General receiving 25,000 pounds a year while Councillors were paid 10,000 pounds each. It was repulsive, to say the least, in a poor country like India. No wonder, Mahatma Gandhi, in a letter to Viceroy Lord Irwin, dated March 2, 1930, wrote that he held the British rule to be a curse which had impoverished the dumb millions by a system of progressive exploitation and by a ruinously expensive military and civil administration. Then he wrote about the inequality in income, “Take your own salary. It is over Rs. 21,000 per month, besides many other indirect additions. The British Prime Minister gets 5,000 pounds per year, i.e., over Rs. 5,400 per month at the present rate of exchange. You are getting Rs. 700 per day against India’s average income of less than annas 2 per day. The Prime minister gets Rs. 180 per day against Great Britain’s average income of Rs. 2 per day. Thus you are getting much over five thousand times India’s average income. The British Prime Minister is getting only ninety times.” Later, on 29 March at Bhatgam, he said, “How could he probably do justice to that salary? And how can we tolerate his getting salary out of all proportion to our income?” Again, addressing the Chatham House meeting (London) on 20 October 1931, he criticized the civil expenditure citing the Viceroy’s salary: “From this one example you can work out for yourselves what this civil expenditure also means to India. India cannot support this service, however efficient and able it may be. It is quite likely that I could send medical experts to every village in India, we should have no disease whatever, but since we cannot afford medical experts for every village in India, we have to be satisfied with quacks that we can get in our own village.”
Even after independence, the expenditure on the establishment is so huge that hardly any money is left for development. How can we justify this hefty hike in salaries of government employees when, according to the Report of the Committee on the Unorganized Sector headed by Arjun Sengupta, 77 per cent people are living on Rs. 20 or less per day. The government must make endeavours to reduce disparity and raise per capita income for inclusive growth which the government keeps talking about. Per capita income is misleading when the disparity is so horrendous. Raising the per capita income was foremost on the agenda of our national leaders from the pre-independence days. Planning occupied the centre stage of Indian thinking as the Second World War neared its end. A Plan of Economic Development for India, prepared by a body of distinguished industrialists, was published in 1944. More popularly known as Bombay Plan, it envisaged an investment of Rs. 10,000 crore spread in three successive five-year stages. It said that only through heavy investment in the economy and through a concerted drive to raise the living standard of the people could the challenge of the appalling backwardness of the country, the indigence and illiteracy of its people and the high mortality rate be combated. They estimated that a per capita income of Rs. 74 at pre-war prices was essential to secure a minimum standard of living. It was a modest goal and yet it was so arduous, for the per capita income in British India at the time was Rs. 65. A comparison of this figure with that of other countries in the same period throws adequate light on our condition then: USA Rs. 1406, Canada Rs. 1038, UK Rs. 980 and Australia Rs. 792.
It is good that Congress President Sonia Gandhi is trying to revive the legacy of simplicity but it is to seen how long it continues.

Justice Dinakaran issue: CJI's authority and independence of judiciary

In recent years, the issues of appointment and that of accountability of judges have touched off storm in the legal and political circles. The two are inextricably liked together and the Prime Minister had rightly suggested to improve the quality of appointment to overcome the problem of corruption in the judiciary. The controversy surrounding the proposed elevation of Justice D. P. Dinakaran, chief justice of the Karnataka high court, to the Supreme Court, is the latest body blow to the credibility of the judiciary. He has allegedly amassed huge wealth and grabbed several hundred acres of land. As per press reports, Dinakaran met the Chief Justice of India and rebutted all charges levelled against him. This raises a third issue whether the CJI is the boss of other judges. It is also related to the other two issues. Recently, Justice Shylendra Kumar of the Karnataka high court created sensation by questioning the authority of the CJI to speak on behalf of all judges in regard to declaration of assets.
So, it will be desirable to examine the authority of the CJI vis-à-vis other judges of the higher judiciary as it has serious implications for the independence of the judiciary. Justice Kumar’s stand that the CJI is not authorized to speak on behalf of all judges amounts to questioning the status of the CJI as the head of the judiciary. Constitutionally speaking, the high court is not subordinate to the Supreme Court. On this premise, Justice Sabyasach Mukherjee, then a judge of the Calcutta high court, had rebuffed the Supreme Court which had directed it to dispose of Indira Gandhi’s petition within the stipulated time period. He clearly wrote in the judgment that the Supreme Court has just got an appellate jurisdiction over the high courts, but has no right to direct them. In a way, it is true that high courts do not become subservient just because their orders can be challenged before the Supreme Court. Even in the high courts, Letters Patent Appeals lie against the order of a single judge before a division bench of the same court. It does not mean that the single-judge bench is subordinate to the division bench. In the Supreme Court also, the larger bench overrules the smaller bench. It is a method of correction as individuals may go wrong.
However, the Supreme Court is not just the apex court in the normal hierarchy of courts, but is much more than that as it has original, appellate as well as advisory jurisdictions. Further, Article 144 clearly mandates that all authorities, civil and judicial, shall work in the aid of the Supreme Court. The term, judicial authorities, also covers high courts. Moreover, the Chief Justice of the Supreme Court is called the Chief Justice of India (Art. 24 of the Constitution). This nomenclature is meaningless if he is not the head of the judiciary. So, by convention, he is the paterfamilias of the judicial fraternity even though the Supreme Court has no supervisory jurisdiction over any court.
However, in matters of appointment and transfer of judges, the CJI plays the most crucial role. Under Articles 124 and 217, consultation with the CJI is a must for the appointment of judges. In 1993, the Supreme Court, in its controversial decision in the Second Judges’ case, ruled that the recommendation of the CJI would be binding, but clarified that the opinion of the CJI means the opinion of the collegium consisting of the CJI and two senior most judges. The Third Judges’ case upheld most of the formulations of the Second Judges’ case but ruled that in case of appointment to the Supreme Court, the collegium would consist of four senior most judges besides the CJI. In fact, the snatching of power of appointment and transfer of judges from the hands of the executive and transferring it to the collegium by judicial interpretation has virtually made the high court judges subservient to the CJI and other members of the collegium as they have to keep them in good humour for getting promoted as chief justices of high courts and elevated to the Supreme Court. Justice Dinakaran has made the position of other judges more vulnerable by meeting the CJI to explain his position.
This is not a healthy trend for the judiciary. Fear of supersession is bound to affect the independence of judges. Here again comes the question of the independence of the judiciary which faces threat not only from without but also from within. A high court judge has the same protection as the CJI under the Constitution. But the fear of being left out makes high court judges feel insecure. In the words of Milton, ambition is but the last infirmity of a noble mind. Judges also nurture the ambition of promotion and elevation. Earlier, if the CJI visited a state, the chief justice of high court did not go the airport to receive him. If both, the CJI and the chief justice of the high court, were invited to some party, the two would enter from opposite doors at the same time so that none of them would receive each other. But the situation has undergone a colossal change after the introduction of the collegium system. Independence of judges must be maintained, and obviously then, the CJI cannot speak on behalf of all judges, even though symbolically, he may represent the judiciary as its head.
Earlier, the Standing Committee of Parliament attached to the Ministry of Law and Justice in its 21st Report made many recommendations for making the judges of the Supreme Court and High Courts accountable. But the members of the Committee felt that for it the system of the appointment of judges to the higher judiciary has to be rectified first. So the crux of the problem lies in the process of the appointment of judges. If competent and honest people are appointed judges it will address the problem of accountability, overreach and delay. The Committee has recommended that the power of appointment of the judges should be in the hands of the executive as was the position till. In 2006, two Parliamentary Committees made the same recommendation to restore the pre-1993 position.
Justice J. S. Verma, who is the author of the majority judgment in the Second Judges’ case, recently wrote to the Chief Justice of India that the system of collegium had failed and a new system needed to be invented. The Administrative Reforms Commission headed by Veerappa Moily has recommended the constitution of a National Judicial Council (NJC) for the appointment and removal of judges. The previous National Democratic Alliance government had introduced the Ninety-Eighth Amendment Bill, 2003 for the setting up of an NJC which lapsed.

Protect whistleblowers

SENSATIONAL disclosure by Justice R. Raghupathy of the Madras high court that a union minister tried to influence him for granting anticipatory bail to the father-son duo, accused in a mark sheets forgery case, has been followed by a tragic report that the man who blew the lid off the forgery racket in Pondicherry University was murdered. Whistleblower Jayaraman, working with the examination department of the university, had complained to higher authorities in writing that middlemen and university officials were hand-in-glove in large-scale tampering of answer papers and mark sheets. When the university set up inquiry, surprisingly, Jayaraman’s name figured among those allegedly involved. He was harassed and threatened so much that once he attempted suicide. On 18 June last, Bihar PWD engineer Yogendra Pandey was murdered by powerful local contractors for his uncompromising insistence on quality work. He had committed the ‘audacity’ to cancel the contract of a powerful contractor who failed to complete the work by the deadline. Pandey was threatened and thrashed, but his request for providing him security cover went unheeded.
Both Jayaraman and Yogendra Pandey have made the supreme sacrifice for upholding the truth. Earlier Satyendra Dubey and Manju Nath met the same fate. When Dubey ‘dared’ to write to the PMO about the corruption rampant in the National Highway Authority of India, instead of inquiring into the allegations and taking steps to extirpate corruption, Dubey was asked to explain how he could dare write directly to the PMO. Even his identity was not kept secret. The list of whistleblowers does not consist of only these four names. There are countless such heroes who were eliminated by mafias but their sacrifices remained unwept and unsung.
Whistleblowers have traditionally been targeted and eliminated. Jesus was the one who blew whistle against Jewish priests who had converted places of worship into that of money changing, and Roman Governor Pontius Pilate ordered his execution. Present day whistleblowers face threats from mafias as well as the government. Their arrows cannot pierce the epidermis of the administration which is that of a pachyderm. If the whistleblower happens to be a government employee, he is heckled in so many ways. First, conduct rules go against him and s/he is punished for insubordination if the complaint is against the boss. Even the Supreme Court has sanctified such punitive action against the employee though earlier it held that government employees enjoy the same right to freedom of speech and expression, a fundamental right, under Article 19 of the Constitution as any citizen- the right of government servants to participate in demonstrations Article 19 (1) (b) and the right to freedom of freedom of speech under Article 19 (1) (a) (Kameshwar Prasad v. Bihar), the right to form associations under Article 19 (1) (c) (O. K. Ghosh v. E. X. Joseph). But in a clear departure form this position, in M. H. Devendrappa’s case (1998), the Court distinguished the earlier cases on the ground that government service falls under Article 19 (1) (g) (to practise any profession, or to carry out any occupation, trade or business), on which restrictions could be imposed in the public interest. So, it laid down that the right under 19 (1) (a) had be harmonized with Article 19 (1) (g). On this ground, the Court upheld the dismissal of a public servant for exercising his right to freedom of speech against a conduct rule. Devendrappa, an employee of the Karnataka State Industries Development Corporation, complained about the corrupt practices of his boss. In the inquiry conducted by the department, his charges were found true, and yet he was dismissed for violating a service rule. In fact, any law violating the fundamental right is invalid, and the Court ought to have examined the validity of that rule under the touchstone of Article 19 (2) which mentions grounds on which the right to freedom of speech can be curtailed. It is clearly in conflict with its decision in Bennett Coleman and other cases. Surprisingly, again, in Baldev Singh Gandhi v. Punjab, the Supreme Court set aside the dismissal of Baldev Singh, an elected member of a city council. He was dismissed on ground of misconduct for speaking against the decision of the council. The Court differentiated that as a representative of the people, he owed a duty to them to disclose and criticize the decision of the council whereas Devendrappa was only an employee of the corporation. The distinction is inscrutable as Devendrappa too owed a duty to the public to acquaint at least the higher authorities, if not the public, with the prevailing corruption. It only served a national purpose. However, the brouhaha created over Satyendra Dubey’s murder put the government on mat and sensing the public mood, the Ministry of Personnel, Government of india, issued a notification granting immunity to all employees of the government except those in armed and intelligence services. But this is not sufficient. Parliament must enact a robust law to protect whistleblowers both from the government as well as from hoodlums. The Commission to Review the Working of the Constitution recommended to enact such a law and the law Commission’s 179th report suggests ways to help whistleblowers circumvent confidentiality agreement. Stringent punishment must be provided in the act for those harassing the whistleblowers. Once a person complains of corruption the entire department is up in arms against him. Each work of the person is subjected to microscopic scrutiny and one may be trapped as to err is human. In the US, Jeffrey Wigand blurted out truthfully what he saw as the head of research and development for Brown and Williamson Tobacco Corporation- how the company misled consumers about the highly addictive nature of nicotine, how it ignored research indicating that some of the additives used to improve flavour caused cancer, etc. Wigand was persecuted by lawsuits, countersuits, and a severe smear campaign orchestrated by his company to such an extent he lost his family, privacy and reputation. His wife divorced him and their two daughters went to live with the mother.
At present, only four countries- the USA, the UK, Australia and New Zealand- have such a law. In fact, divulging a secret document does not necessarily harm the interest of the nation. When Daniel Ellsberg made the US documents on the Vietnam war public, he was hounded and prosecuted, though finally acquitted. These papers, later known as Pentagon Papers, contained details of the lies told to justify the war. Ellsberg, formerly of the Rand Corporation and the Defence Department, had tumbled down these documents, but White House paranoids, including President Nixon himself, thought Ellsberg might be the first surfaced agent of a vast conspiracy. However, the government made no real effort during the various court proceedings to claim that specific damage would result from publication.
The proposed law also must provide in detail the witness protection programme as most of the whistleblowers are witnesses themselves. It will also extend to general criminal cases where witnesses are harassed and even eliminated. In the USA, witnesses are protected by making them incommunicado, changing their names and faces by plastic surgery, settling them in a new location and giving them new jobs. But even there, only around 1,500 witnesses have been protected like this so far. It may not be possible in India. But some protection must be given and provision should be made for awarding capital punishment for killing a witness as the crime of murder is compounded with the attempt to affect the course of justice.

Education in a welfare state

IT is a moment of reckoning for the higher education. Yashpal Committee has submitted its much publicized report to overhaul the higher education in the country. Union HRD ministry has also unveiled an ambitious 100-day plan to revamp the system. It is heartening that the Committee has noted in unequivocal words that universities cannot be centres of profit making. The committee felt deeply disturbed on the mushrooming of engineering and management colleges, that had "largely become business entities dispensing very poor quality education". Lamenting the growth of deemed universities, it has called for a complete ban on further grant of such status. Questioning the source of funding of private education providers, the committee has recorded that mostly it was either "unaccounted wealth from business and political enterprises or from capitation fees”. The TOI had recently exposed how medical colleges run by politicians are charging exorbitant amount as the capitation fees.
In a welfare state, education, health care and justice should be provided to citizens either free of cost or at the minimal cost. Unfortunately, all the three have become too expensive in India to be within the reach of the have-nots negating the very concept of welfare state. The notion of welfare-statism acquired prominence after the Second World War in response to some momentous changes in economic and social fields and in the role of the state that took place in Great Britain from the beginning of the twentieth century. Earlier, the only form of public aid for the destitute was the Poor Law but the working class detested it as conditions for applying for relief under it were quite mortifying. It was a design to discourage people from taking recourse to it. As the demand for a more effective approach to tackle the problem of poverty became louder, legislations were introduced to fortify the interests of the vulnerable sections of the society. This marked the transition of the British economy from one of vigorous laissez-faire to one of increasing state responsibility in matters of individual and social welfare. Since then, Great Britain has been known as a welfare state. Ironically, changes brought about by welfare legislations in Britain did not trickle down to India which was its colony. After attaining independence, India embarked on a policy of planned development and social welfare policies evolved as an integral part of Five Year Plans. However, not much could be done under welfare schemes for the downcast.
Education became a major casualty as the government virtually stopped setting up new educational institutions. The vacuum was filled up by the private players who invested money not for charity but to reap a good harvest as this field proved quite fecund for minting money. These moneybags could manage to wangle the status of ‘deemed university’ for their institutions which utterly lacked in infrastructure. In J. P. Unnikrishnan v. Andhra Pradesh (1993), the Supreme Court clearly held that education could not be a trade, business or profession within the ambit of Article 19(1)(g) as all these activities are carried for profit while “education has never been commerce in this country”. It lambasted the practice of charging the capitation fee and almost nationalized the whole professional education in India. Expanding the right to life under Article 21 of the Constitution, it declared the right to education up to twelve years of age a fundamental right. Subsequently, Parliament amended Article 21 to make an express declaration of the right to education as a fundamental right. The Court however conceded that education could “perhaps fall under the category of occupation provided no recognition is sought from the state or affiliation is sought from the universities on the bases that it is a fundamental right”. However, a 11-judge constitution bench of the apex court in T. M. A. Pai Foundation (2002) overruled Unnikrishnan and opened the door for the commercialization of education by ruling that setting up and running educational institutions is an occupation, if not a business, under Article 19(1)(g) and a charitable purpose under Article 26(a). According to it, “that private educational institutions are a necessity becomes evident from the fact that the number of government-maintained professional colleges has remained more or less stationary, while private institutions have been established”. This is unquestionably true, but then does it give private institutions a carte blanch to charge exorbitant fees? Though the Court held that, “the decision on the fee to be charged must necessarily be left to the private educational institution that does not seek or is not dependent upon any funds from the government”, it, nevertheless, said a categorical ‘no’ to profiteering and capitation fee. It further clarified that since the objective of setting up such institutions is essentially “charitable”, they cannot charge such a fee which is not required for the purpose of fulfilling that object. Thus a sort of confusion was created which was further confounded when the Court added that those who seek professional education must pay for it.
To resolve the confusion, the Supreme Court, in an unprecedented exercise, set up another constitution bench of five judges in Islamic Academy of Education v. Karnataka to interpret the ratio decidendi of T. M. A. Pai Foundation, and in the name of interpretation a smaller bench overruled the larger bench. The judgment in Islamic Academy has itself recorded that a new bench had to be set up as “the parties to the writ petitions and special leave petitions attempted to interpret the majority decisions in their own way as suited to them”. The Court brought back certain regulations by ruling that educational institutions could not be used for profiteering and directed that committees be appointed in each state for deciding the fee structure and admission procedure in unaided private institutions. However, even this case could not dispel the thick fog of confusion, and another seven-judge bench was constituted in P. A. Inamdar to clarify doubts created by the earlier two cases. Now, the Court held that the right to establish an educational institution for profit or for charity, being an occupation, is protected by Article 19(1)(g). Now, only God knows whether Inamdar has resolved the confusion or added more to it.
Whatever the court’s pronouncements, the government must ensure that education is not allowed to become commerce. Let us not forget what Vivekanada said, “In our country, the imparting of knowledge has always been through men of renunciation. The charge of imparting knowledge should again fall upon the shoulder of Tyagis.”

My Lord and Your Excellency!

WHEN Bismarck was Prussian ambassador at the court of Alexander II in eighteen sixties one day he looked out of a window at the Peterhof palace and was amazed to see a sentry on duty in the middle of a lawn. He inquired from the Czar why the man was there. The Czar asked his aide-de-camp who did not know. The aide-de-camp sent for the officer in command who did not know either. The general commanding troops at Peterhof was summoned. The general informed that it way in accordance with the ancient custom. "What was the origin of the custom?" put in Bismarck.
"I do not recollect at present," answered the general.
"Investigate and report the result," ordered Alexander.
The investigation that took three days revealed that the soldier was posted there by an order put on the books eighty years before! For one morning in spring Catherine the great had looked on that lawn and seen the first flower thrusting above the frozen soil. She ordered a sentry to be posted to prevent anyone picking the flower. And in 1860s there was still a sentry on the lawn - a memorial to a flower, and to Catherine, who had earned the cognomen of 'Great'.
Such is the fear of antagonizing the high and mighty that several hangovers of the past continue to persist without any rhyme and reason and the supine favour-seekers uphold them without any compunctions lest they lose what they have been getting. One such ludicrous practice is the mode of addressing VIPs and prefixing honorifics with their names. Traditionally 'Majesty', 'Excellency' and 'Highness' were used for different categories of people. Excellency is used for ambassadors, governors and Roman Catholic bishops and archbishops. Majesty is used only for the king or queen while Highness is used for the members of the royal family.
Historically speaking, Kings have been portrayed as ones with divine sanction to rule and so, they have been addressed by various high-sounding titles. In Egypt, when king Senusrest I of the Middle Kingdom period died, Sehetepibre, who had served under him, wanted to make a public display of his adulation and loyalty to the king. On his funerary Stela, Sehetepibre sang a hymn in which he named the king as the equivalent to the gods:
The King is Ka.
His utterance is abundance.
The one whom he brought up will be somebody.
He is khnum for all limbs.
The begetter of the begotten.
He is the Bastet who protects the Two Lands.
The one who praises him will be protected by his arm.
He is Sekhmet against those who disobey his orders.
Since the beginnings of the kingship and royal titulary in Egypt, the king was perceived to be connected to the Egyptian deities. Surprisingly, ‘pharaoh”, the most popular title of the Egyptian king, does not have an Egyptian genesis. Egyptians did not call their king “pharaoh” until very late in their history, and began using it only when non-Egyptians took up the word. “Pharaoh” is a Hebrew pronunciation of the Egyptian word, per-aa, meaning Great House, and was used as a label for the king himself around 1450 BCE. But the title word for the knig was nisu, as can be seen for example in the Offering Formula, or hetep di nisu. Egyptians attached a lot of importance to names which represented aspects of a person or personality, and often more than one name was required to accomplish this. From around 2500 BCE, the king was adorned with up to five names. The five royal titles consist of four names, which the king assumed on the day of his accession, along with a fifth name, given to him at birth. Three of the names indicate the king’s role as god while the remaining two emphasise the perceived division of Egypt into two lands, both under his control.
In Russia, “Tsar“ is the traditional title for a monarch. Tsar has its genesis in the Roman word Caesar. Peter the Great was the first Russian ruler who did away with this title to call himself “emperor”. As the Russian empire expanded, so did the title of the king. Nicholas II of Russia, the last tsar, held a title that was as large and unwieldy as the Russian Empire itself:
Emperor and autocrat of all Russia; Tsar of Moscow. Kiev, Vladimir, Novgorod, Kazan, Astrakhan, Poland, Siberia, the Tauric Chersonese and Georgia; Lord of Pskov; Grand Prince of Smolensk, Lithuania, Volhynia, Podolia, and Finland: Prince of Estonia, Livonia, Courland and Semigalia, Semogatia, Belostok, Karelia, Tver, Yugria, Perm, Viatka, Bulgaria and other lands, Lord and Grand prince of Nizhnyi Novgorod and Chernigov; Ruler of Riazan, Polotsk, Rostov, Yaroslavl’, Belo-Ozero, Udoria, Obdoria, Kondia, Vitebsk, Mstislavl, and all the Northen Lands; Lord and Sovereign of th iverian, Kartalinian and karbadinian lands and of the American Provinces; Hereditary Lordand Suzerain of the Circassian Prices and Highland Princes and others; Lord of Turkestand; Heir to the throne of Norway; Duke of Schleswig-Holstein, Stormarn, the Dithmarschen and Oldenburg.
In England, royal titles have been conferred even by acts of parliament. The Royal Titles Act of 1876 (39 & 40 Vict., c. 10) was an Act of the parliament of the United Knigdom which officially recognized Queen Victoria as the “Empress of india”. She assumed this title in 1876 under the encouragement of Prime Minister Benjamin Disraeli. The long title of the Act is “An Act to enable Her most Gracious Majestyto make an addition to the Royal Style and titles appertaining to the imperial Crown of the United Kingdom and its Dependencies.”
When India attained independence every citizen was considered equal and to bolster the spirit of democracy a circular was issued abolishing the use of 'Excellency' for anyone. But damn circular. Instead of discarding the practice it is almost mandatory to prefix 'His Excellency' (H.E.) with President, Vice-President and Governor if being addressed in the third person. Even the letters issued by their own offices refer to them as H.E. only. C. Subramanian has been the only Governor so far who parted with this practice. Within a month of his assuming the office of the Governor of Maharashtra in February 1990, he made it clear that he was genuinely embarrassed by being addressed as ‘Your Excellency’. Thereafter, he was referred to as the Honourable Governor. In Goa, he again sent such a message by not wearing his black convocation robe. The Madhya Pradesh government created a history of sort when it restored riyal title for its minister Yashodhara Raje, a scion of the Scindia family. On 19 October 2006, the state government slipped out an official gazette notification that ‘Srimati’ Yashodhara Raje Scindia would henceforth be addressed as ‘Shrimant’ Yashodhara Raje Scindia. However, the Indian National Congress took a decision in June 2009 to drop the royal titles of its leaders who are former kings but were still referred to as ‘Maharaja’ or ‘Shrimant’.
Another ludicrous practice still in vogue is the mode of addressing the judges of the Supreme Court and the High Courts as 'My lord' reminding one of the colonial period. When India was under the yoke of imperialism the practice of addressing the judges of the Privy Council, who happened to be the members of the Judicial Committee of the House of Lords, as 'My Lord', tricked down to our High Courts also as had become the practice in the British High Court. In fact, in England, since justice was delivered by the King or the Queen through the King’s Benches, it is the King who is addressed as ‘My Lord’, Therefore, judges presiding over the King’s or Queen’s Benches are addressed as ‘My Lord’.
It may be mentioned that lordship is a reminder of the aristocratic, feudal British society of distant past where family background, and not the merit, counted. The House of Lords has its origin to the Curia Regis (Great Council) created in 1215 AD, in which all barons were members. When Edward III started inducting common men into the Great Council, aristocrats objected to it, and, therefore, a 'commonality' had to be created which grew into the House of Commons. In the fourteenth century the Great Council was divided into the House of Lords and the House of Commons. The House of Lords comprised three strata of aristocrats - Duke, Earl and Viscount who were addressed as 'My lord'. Knights, who formed the lowest rung of aristocracy, were addressed as 'Sir'. The membership of the House of Lords was hereditary and a lord was succeeded by his eldest son. The king was also empowered to increase the number of peerage at the recommendation of the prime minister. For the first time Pitt the younger increased the number for the first time in the second half of eighteenth century to pass a bill.
When India ushered in freedom it was expected that the scars of colonialism would be obliterated sooner rather than later. In this very spirit the Supreme Court issued a circular in the early fifties of the last century that judges of superior courts would be addressed as 'Sir' or 'Mr. Judge', and not as 'My Lord'. It also said that 'Honorable' would be used for the court, not for the judge. But is was not to be, as neither judges were ready to adapt themselves to the new democratic mores nor were lawyers prepared to risk their practice. It has also become almost mandatory to use 'Honourable' for the judge. The nameplates carry this honorific and in some cases the judges themselves use it with their names even in private correspondence. In the Socialist Republic of India, since justice is imparted by common men, not king, judges should not be addressed even as ‘Your Honour’, much less ‘My Lord’.
What we have not been able to achieve even after several decades of independence the nascent Republic of South Africa did in one stroke. The country witnessed its first multi-racial democratic elections in April 1994. In October 1994 the Constitutional Court was created which is now the highest court of the country. It look a decision before its first sitting in March 1995 that judges of the Constitutional Court would not be addressed as 'My Lord' or 'Your Honour' but as 'Mr. Justice so and so' and it is being followed there. Actually 'lord' means god, e.g., Lord Rama, Lord Buddha, et al.
Moreover, the whole style of judges smacks of feudalism- when the judge gets up peons must remove the chair immediately, when the judge moves the security will accompany him/her whistling commanding others to keep the way clear. In ancient India kings also functioned as judges as the administration of justice was considered a divine duty. But as judges their appearance and demeanour were different. As kings they put on the crown and royal robes and sat on the throne while participating in the Rajyasabha or Darbar and discharging their executive functions. But while acting as judges they dispensed with such expensive attire and were required to enter the court hall in "a simple dress" and "with a pleasant demeanour". B. R. Agarwal comments: "The elaborate paraphernalia which we see in the courts today seems to have been introduced by Muslim rulers and further elaborated by the British who were fond of pomp and show." (Our Judiciary, NBT, p. 12)
There is a recent trend of using Hon'ble for ministers, MPs and MLAs also but only God knows how many them really deserve it.

Coalition Government and Prime Minister’s Discretion

ROLE of the regional parties is still crucial in the union government, their reduced clout notwithstanding. No sooner were the results of the 15th Lok Sabha elections out than several political commentators jumped to the conclusion that regional parties had been effectively sidelined as the people wanted a stable government. That writing the obituaries of the regional parties was premature is evident from the haggling that began between the Congress leading the UPA and the DMK over the number of ministerial berths allotted to it. Though the differences have been sorted out at the moment, it is difficult to say that the ceasefire is permanent. Legally speaking, there are no regional parties but only national, state and registered parties as recognized by the Election Commission.
State parties have been in existence since pre-independence days and they won 34 seats in the Lok Sabha in the first general election in 1952. In 2004, this number went up to 159 though in the just-concluded election 22 state parties could win 146 seats, 13 less than their tally in 2004. So, number wise the loss is not much, and the gains made by the Congress are at the cost of the BJP and the Left primarily. Technically speaking, there are seven national parties- INC, BJP, CPI, CPI (M), BSP, NCP and RJD. But the NCP, the BSP and the RJD are national parties only notionally. Even the left parties are confined to certain pockets only and the CPI is in the danger of losing its national tag. These seven national parties jointly won 376 seats, but out of them 322 have been bagged by the Congress and the BJP. Thus only 54 seats have gone to the remaining five national parties. In 2004, there were six national parties which won 364 seats. So, it is manifest that in terms of numbers, national parties have not grown jointly, but the Congress has gone up several notches pulverizing the BJP to a considerable extent. Parties like the JD(U), the BJD and the Trinamool Congress have enhanced their tallies tremendously while others like DMK, AIADMK, TDP,RLD and the National Conference have also improved their show.
However, it is, indeed, true that the scintillating performance by the Congress has left less elbow room for its allies to manoeuvre much and hold the government to ransom. But even then the Congress is not immune to blackmail. The kerkuffle with the DMK has just begun and the government needs the crutch of the mercurial Mamta Banerjee who kept breathing down the neck of the Vajpayee government. This raises important constitutional questions about the prerogative of the PM and the principle of the collective responsibility of the government. In India, the post of prime Minister was created by statute unlike in Great Britain where it evolved out of convention. Article 74 if the Indian Constitution clearly lays down, “There shall be a Council of Ministers with the prime minister at the head to aid and advise the president…” Again, Article 75 reads, “The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the president on the advice of the Prime Minister.”
In a coalition government, this prerogative of the Prime Minister is badly dissipated as it is not the PM but the regional satraps who decide who will represent them in the cabinet and also which departments should they be allotted. Mamta had been eyeing at the Railways for long and has got it. Similarly, Karunanidhi is also demanding not only a certain number of berths but specific portfolios. When Dayanidhi Maran was withdrawn by him from the last government in 2007, Karunanidhi commanded that no one else be given that portfolio and the Prime Minister had to succumb. These nominees of the regional parties act do not as colleagues of the Prime Minister but as factotums of their party bosses diluting the doctrine of collective responsibility. It is internationally established that in a parliamentary democracy the concept of collective responsibility can fructify only if the Prime Minster has a free hand in selecting and dismissing members of his cabinet. Elaborating on its need in the Constituent Assembly, B. R.Ambedkar said, “Supposing you have no Prime Minister, what would really happen? What would happen is that every minister will be subject to the control or influence of the president. It would be perfectly possible for the President who is not ad idem with a particular cabinet, to deal with each minister separately, singly, influence them, and thereby cause disruption in the cabinet. Such a thing is not impossible to imagine. Before collective responsibility was introduced in the British parliament you remember how the English King used to disrupt the British Cabinet. He had what was called a party of King’s Friends both in the cabinet as well as in Parliament. That sort of thing was put to a stop by collective responsibility…Therefore, the Prime Minister is really the keystone of the arch of the cabinet and unless and until we create that office and endow that office with statutory authority to nominate and dismiss ministers there can be no collective responsibility.”
Regional parties can play constructive role by highlighting the issue of regional imbalance, disparity and backwardness. But they do a great disservice by pressuring the Prime minister and making him dysfunctional. Even regional parties can have national perspectives. MIT scholar Adam Ziegfeld makes an apt distinction between regional and regionalist parties. Parties may be regional in the sense that their support base is confined to particular states or regions. But they need not be regionalist in the sense of merely catering for the regional aspirations. (The CPM is a classic example. Ziegfeld estimates that out of 45% vote share accounted for by the regional parties, the regionalist parties accounted for only 13%.