Friday, 26 August 2016

Prepare for the long haul in Kashmir
Those who think that some political dialogue can resolve the Kasmir problem are living in a fool's paradise. They do not know the realities. So let me explain.
The Kashmiri militants are using sophisticated weapons and other supplies. Where are these sophisticated weapons and supplies coming from ? Such sophisticated weapons and supplies do not fall from the sky. Obviously some outside power is supplying them and training the militants in use of these weapons.
Moreover, these militants demanding azadi are only brainwashed pawns like Burhan Wani and Ajmal Qasab. Pawns are only pieces which the chess player uses in the game. The power which is behind these pawns, the real chess player who is using them is China ( through Pakistan ), as I have explained in my blog
http://justicekatju.blogspot.in/2016/07/the-kashmiri-separatist-militancy.html
Please go through the above blog carefully in order to understand the real game of China..
I submit that it will take 10-15 years or more to resolve the Kashmir problem, and till then the turmoil, imbroglio and violence will continue, however sad and unfortunate that may be.
As for the demand for azadi, I have already explained in my article published in Huffington Post that such azadi will be against the interest of Kashmiris, as it will result in Islamic fundametalism being imposed in Kashmir, which will throw back Kashmir into the dark Middle Ages. The demand is hence totally reactionary. Morever, azadi, even if achieved, will not last long. Kashmir will soon thereafter be swallowed up by Pakistan, and come under the Pakistani military jackboot.
http://www.huffingtonpost.in/markandey-katju/demanding-azadi-for-kashmir-is-not-sedition-but-it-is-certainly/?utm_hp_ref=in-homepage
The correct demand for Kashmiris is reunification of India and Pakistan ( and Bangladesh ) under a strong, modern minded secular state which while guaranteeing freedom of religion to all does not tolerate religious extremism of bigotry, whether Hindu or Muslim, and crushes it with an iron hand. This reunited state must then rapidly industrialize the country and ensure a high standard of living and decent life to all.
http://justicekatju.blogspot.in/2016/01/india-and-pakistan-just-as-prime.html
Such reunification will not be easy, it will take 15-20 years, but till then the Kashmir pot will keep boiling

Thursday, 25 August 2016

The New Jurisprudence


A new marvellous, creative jurisprudence has been developed by the Indian Supreme Court---that it is open to the Court to amend the Constitution, amend the law, make law, exercise executive functions, ignore binding precedents in their desire to do good ( despite the numerous decisions, which have been referred to in my report to the BCCI, which state the contrary )---in short do anything it likes, and to hell with the Constitution and the law.

In a series of decisions of the Supreme Court itself it has been stated that there is separation of powers in the Constitution, and judges should not perform legislative or executive functions as these belong to the other two organs of the state.

Thus, in Divisional Manager, Aravali Golf Course vs. Chander Haas, 2007 ( see online ) the Supreme Court said :
" Judges should know their limits and not try to run the Government. They must have modesty and humility and not behave like Emperors. There is broad separation of powers under the Constitution and each organ of the State the legislature, the executive and the judiciary must have respect for the others and must not encroach into each others domains "

But why should we care for outdated and obsolete principles like separation of powers ? After all, Montesquieu died a long time back. So a new jurisprudence must be developed to give judges the power of Emperors.

In the 2nd and 3rd Judges cases the Court by a judicial verdict substituted the existing Article 124(1) in the Constitution by a totally different provision, introducing a Collegium system for appointing judges unknown to the Constitution, which was described by Lord Cooke as ' a sleight of hand '. Article 368 of the Constitution states that the Constitution can be amended by Parliament by two third majorities in both Houses. But the Supreme Court evidently believes that in the garb of interpretation it can amend the Constitution itself. Good luck to them.
Take another example.

Recognition to new Medical Colleges is to be done by the Central Govt. on the recommendation of the Medical Council of India, vide section 10A of the MCI Act. But the Supreme Court appointed a Lodha Committee, and practically empowered it to ignore the Medical Council of India Act which was enacted by Parliament. And the Lodha Committee is granting recognition, or recommending grant of recognition to the Central Govt.
http://www.thehindu.com/…/oversight-pan…/article9027119.ece…

How can the Lodha Committee grant or recommend such recognition ? There is no provision in the MCI Act which says recognition, or recommending grant of recognition, is to be done by a committee appointed by the Supreme Court.
I had always believed that amendment of an Act of Parliament can only be done by Parliament itself. But the new jurisprudential philosophy developed by our geniuses in the Supreme Court say that the Court can amend it. Bravo !
In the dahi handi case the Supreme Court said that no dahi handi will be more than 20 ft. high, and no one below 18 years of age will participate in it. 

The question to be asked is : was there any law made by the legislature which imposes these restrictions ? If there was none, how could such an order be passed by the Court ?

.Justice Thakur, the CJI, in a speech said that the judiciary intervenes when the executive fails in its duties
http://www.firstpost.com/…/judiciary-intervenes-only-when-t…

But the judiciary also fails in its duty to decide cases expeditiously. Often cases take decades to decide finally. People who get caught in litigation are often weeping because of 'tareekh' after 'tareekh' and no hearing. Also, a large section of the judiciary has become corrupt. So should the executive authorities tell the judges that since you have failed in your duty we will decide cases ? Justice Thakur's argument cuts both ways. Those living in houses with glass windows should not throw stones at others.

In a case relating to the All India Football Federation Justice Thakur threatened that the 'BCCI treatment' may have to be given to the football body.

Why does Justice Thakur not give the 'BCCI treatment' to the judiciary ?
Physician, heal thyself! 


Wednesday, 24 August 2016

Lodha Committee for MCI is flouting the law



The Supreme Court by an order appointed a 3 member committee headed by that Superman, Justice Lodha, to look into the affairs of the Medical Council of India.

The MCI had been established by the MCI Act. Section 10A of the Act states that no Medical College can be set up without the permission of the Central Govt. How that permission is to be obtained is given in the clauses of section 10A, given below :

" 1. Every person or medical college shall, for the purpose of obtaining permission under sub-section (1), submit to the Central Government a scheme in accordance with the provisions of clause (b) and the Central Government shall refer the scheme to the Council for its recommendations.

2. The Scheme referred to in clause (a) shall be in such form and contain such particulars and be preferred in such manner and be accompanied with such fee as may be prescribed.

3. On receipt of a scheme by the Council under sub-section (2) the Council may obtain such other particulars as may be considered necessary by it from the person or the medical college concerned, and thereafter, it may -

1. if the scheme is defective and does not contain any necessary particulars, give a reasonable opportunity to the person or college concerned for making a written representation and it shall be open to such person or medical college to rectify the defects, if any, specified by the Council.

2. consider the scheme, having regard to the factors referred to in sub-section (7) and submit the scheme together with its recommendations thereon to the Central Government.

4. The Central Govt. may after considering the scheme and the recommendations of the Council under sub-section (3) and after obtaining, where necessary, such other particulars as may be considered necessary by it from the person or college concerned, and having regard to the factors referred to in sub-section (7), either approve (with such conditions, if any, as it may consider necessary ) or disapprove the scheme, and any such approval shall be a permission under sub-section (1):"

Clause (7) of section 10A states :

" The Council, while making its recommendations under clause (b) of sub-section (3) and the Central Government, while passing an order, either approving or disapproving the scheme under sub-section (4), shall have due regard to the following factors, namely:-

1. whether the proposed medical college or the existing medical college seeking to open a new or higher course of study or training, would be in a position to offer the minimum standards of medical education as prescribed by the Council under section 19A or, as the case may be under section 20 in the case of postgraduate medical education.

2. whether the person seeking to establish a medical college or the existing medical college seeking to open a new or higher course of study or training or to increase it admission capacity has adequate financial resources;

3. whether necessary facilities in respect of staff, equipment, accommodation, training and other facilities to ensure proper functioning of the medical college or conducting the new course or study or training or accommodating the increased admission capacity, have been provided or would be provided within the time-limit specified in the scheme.

4. whether adequate hospital facilities, having regard to the number or students likely to attend such medical college or course of study or training or as a result of the increased admission capacity, have been provided or would be provided within the time-limit specified in the scheme;

5. whether any arrangement has been made or programme drawn to impart proper training to students likely to attend such medical college or course of study or training by persons having the recognised medical qualifications;

6. the requirement of manpower in the field of practice of medicine; and any other factors as may be prescribed.

7. Where the Central Government passes an order either approving or disapproving a scheme under this section, a copy of the order shall be communicated to the person or college concerned."

Sections 17 and 18 of the Act provide for inspection by the Executive Committee of the MCI and the Council for making inspections to ensure the adequacy of the standards of medical education including staff, equipment, accommodation, training facilities prescribed for giving medical education or on the sufficiency of every examination which they attend.for granting recognition to medical qualifications.

A perusal of these provisions clearly indicate that there are only two bodies involved in granting permission for starting a Medical College and recognition of medical qualifications, i.e.the MCI and the Central Govt. There is no provision for a third body, namely, a committee appointed by the Supreme Court, to be involved in this process.

However, On August 13 the Lodha Committee overturned the Medical Council’s decision denying permission to start/establish 86 new medical colleges for the current academic session starting September 30.

The Lodha Committee, reviewing the MCI’s rejections, granted permission to 26 new colleges out of the 86 rejected by the MCI and promptly sent its recommendations to the Health Ministry, paving the way for the establishment of these colleges.

The Lodha panel has given private medical colleges the permission to teach courses which they had been forbidden from running after being found by the MCI to be lacking the required infrastructure.

While the MCI denied permission to start/establish new colleges on the basis of MCI's team inspection which found the faculty and infrastructure lacking in the colleges, the Lodha panel overturned the MCI decision on the basis of colleges' claims on their websites and affidavits.

The Lodha Committee has asked these 26 colleges to submit an undertaking to the MCI that they would comply with all the norms and won't remain deficient when the new session starts on September 30. The Lodha Committee has also reserved the right to inspect these colleges before or after September 30 and if any non-compliance is found, it can withdraw the permission.

So now the Lodha Committee will make inspections to determine whether the college has the necessary infrastructure, staff, etc, something clearly not contemplated by the MCI Act.

In its order appointing the Lodha Committe to oversee the functioning of the Medical Council the Supreme Court said :
“All policy decisions of the MCI will require approval of the oversight committee. The committee will be free to issue appropriate remedial directions to the MCI.”

The Medical Council of India has been constituted as a statutory body by an Act of Parliament. There is no provision in the Medical Council of India Act stating that policy decisions of the MCI will require approval from a committee appointed by the Supreme Court, or that the committee can issue directions to the MCI.
Thus by a judicial order the MCI Act has been amended. Is this a legitimate excercise of judicial power ? Does the Supreme Court think it can do whatever it likes, and has no limitations, and need not excercise any self restraint ?
I had thought that an Act of the legislature can only be altered or amended by the legislature itself, and not by any other body, but evidently some Judges think otherwise. I had thought that judges must follow the law and pass orders in accordance with it, but evidently some judges, in their zeal to do good, think that they can ignore the law and pass orders on their own fancies.
It has been held by numerous judgments of the Supreme Court itself, many of them 5 judge or 3 judge bench decisions ( I have quoted about 40 such judgments in my report to the BCCI which can be seen on the website bcci.tv ) that judges cannot legislate. These binding precedents are often ignored by some Supreme Judges who lacking all self restraint think that just because they are Supreme Court judges and there is no one above them to correct their errors they can behave like Emperors and issue any fatwa or firman even if it violates the Constitution or a statute or a binding precedent.

Tuesday, 23 August 2016

We must reunite


Some people agree on principle with my idea of reunified secular India , which includes India, Pakistan, and Bangladesh, but ask how it is to be achieved in practice ? So I will reply
As Victor Hugo said " There is one thing more powerful than all the armies in the world, and that is an idea whose time has come ".

The idea of reunified India is an idea whose time has come. Pakistan is a fake, artificial entity ( see my article ' The Truth about Pakistan ' online ), and Partition on the basis of the bogus two nation theory has created enormous problems. We have been fighting each other since 1947, and wasting enormous resources on these fights and tensions, instead of utilizing our resources in uplifting our people from poverty.

I have repeatedly said that 99% Pakistanis are good people, just as 99% Indians are good people. 99% Hindus are good people, and 99% Muslims are good people.

We are really one people, but the British befooled us by their wicked divide and rule policy and bogus two nation theory, which was systematically propagated since 1857 through their agents, into believing that Hindus and Muslims are enemies. But how much longer must we remain befooled ? How much longer must blood flow in our sub continent ?
The time has come to undo the historical fraud and swindle of Partition, and reunite under a secular modern minded government, which rapidly industrializes the country and raises the standard of living of our people. This govt. while guaranteeing freedom of religion to all, must crush religious extremism and bigotry with an iron hand.

So what must be done to reunify ? This will not be easy, because those who divided us will not allow us to easily reunify. An arduous long drawn struggle will be needed for this.

The first step in that direction will be to propagate and spread the idea that we must reunify if we are to progress. Here is where all patriotic intellectuals, like many of you, are needed. You have to be very patient, and coolly explain to people in India and Pakistan ( and Bangladesh ) why we must reunify. You may face tremendous hostility in the beginning ( as I have faced ). 

You will be told that the idea of reunification is a pipe dream, as Partition took place in 1947, and since then much water has flown. You should reply that Germany was reunited in 1990 after its Partition in 1945. So time is immaterial when we are really one nation.

Others will say that there is too much hatred between the people of the two countries to reunite. You should reply that this hatred is artificial, and created by false propaganda. Merely because we are of different religions does not mean we are enemies. We share the same culture, and have the same massive problems of poverty, unemployment, malnutrition, lack of healthcare. We should reunite to jointly fight to give our people decent lives, instead of fighting each other.

Once this idea of reunification grips the masses in both countries some way of peacefully reuniting will emerge, though how exactly that will happen cannot be predicted
.

Solving the Kashmir problem


Omar Abdullah said recently that to solve the Kashmir problem a political dialogue is necessary.

But dialogue with whom ? Pakistan and the separatists want azadi for Kashmir, so what is the point of having a dialogue with them The Kashmir imbroglio continues, stoked up by Pakistan.

I submit that the Kashmir problem can never be solved until India and Pakistan ( and Bangladesh ) reunite under a secular government.

There are some people who talk of improving relations between India and Pakistan. I submit that these people are living in a fools' paradise.

There can never be good relations between India and Pakistan, because Pakistan was created to ensure that there are hostllities and tension between the two, for two reasons (1) India does not emerge as a modern industrial giant, and thus become a rival to Western industries (2) India and Pakistan remain big importers of foreign arms, thus ensuring sales of arms industries of Western countries, and thus spending huge amounts on purchase of these weapons, money which could be spent on the welfare of our own people. http://www.catchnews.com/…/arms-race-india-s-expenditure-on…

I have said in my article ' The Truth about Pakistan ' ( which was published in the Pakistani newspaper ' The Nation , and is available online ) that Pakistan is a fake, artificial country created on the basis of the bogus two nation theory
http://nation.com.pk/c…/02-Mar-2013/the-truth-about-Pakistan

What is Pakistan ? It is Punjab, Sindh, Baluchistan, and NWFP, which were all part of India since Mughal times.
When I meet Pakistanis I feel no different from them. We speak the same language, Hindustani ( called Hindi by us and Urdu by them), we look like each other, share a common culture, e.g. love for Urdu poetry and classical Indian music, the same dress and food ( biryani, etc ). In foreign countries Indians and Pakistanis mix and socialize as if Partition has never taken place.

Pakistan was created on the basis of the bogus two nation theory, that Hindus and Muslims are two separate nations. If religion is the basis of a nation, then hardly any nation in the world could survive. Britain will have to be partitioned into about 10 'nations', Anglican, Presbyterian, Roman Catholic,Jewish, Hindu, Muslim, Sikh, etc. So also U.S.A. Russia, France, Germany, etc. Almost all countries have people of different religions.

So what will talks between India and Pakistan achieve ? If there really are good relations between India and Pakistan, then the very purpose of creating Pakistan will cease to exist.

As for talks with separatist leaders, they will only keep chanting ' azadi '.
So what is the solution ?

The solution is reunification of India, Pakistan and Bangladesh under a strong, secular government which does not tolerate religious extremism of any kind and crushes it with an iron hand This reunification, though bound to happen, will probably take a long time, because those who have divided us will not let us easily reunite, and we have to wage a long, arduous struggle to attain this objective. This reunification will automatically solve the Kashmir problem too, but till then the problem will continue.

Some people say that India and Pakistan were divided a long time back and much water has flown since then, and now it is not possible to reunite. They forget that Germany was reunited in 1990 after 45 years of separation, and China has not yet recognized Taiwan.

Many people say that this idea of reuniting is only a dream. But when Mazzini spoke of unification of Italy he was called a dreamer, and yet his dream came true under Cavour and Garibaldi.
Still others say that we cannot reunite because there is great deal of hatred between the people of the two countries.In fact this hatred was artificially created by the British divide and rule policy ( see my article ' The Truth about Pakistan ' ), and with re-education can be eliminated. People of both countries want decent lives, and want to get rid of poverty.

The worst thing in life is poverty, and the test of every system is one and only one : does it raise the standard of living of the people ? 

. India must reunite because the only way to abolish poverty, unemployment and our other socio-economic ills is rapid industrialization, for only with a huge industry will we able to generate the wealth required for the welfare of our people. But for such a huge industry we must have a huge market, because the goods produced have to be sold. Therefore far from dividing India we must reunite if we are to escape from poverty and other social ills. The demand for azadi for Kashmir or any other part of India totally overlooks this, and is reactionary.

We already have thousands of competent engineers, managers, technicians, scientists, etc in our country. Once we reunite we will also have tremendous natural resources and a huge market for a powerful, widespread industry, and this huge industry will generate millions of jobs for our unemployed youth. Only then we will be able to escape from poverty, unemployment, malnutrition, lack of healthcare and our other social ills.

Sunday, 21 August 2016

The demand for azadi
Some JNU students and Amnesty International were charged for sedition under section 124A IPC. In this connection I wish to make two points :
1. Article 19(1)(a) of the Indian Constitution guarantees freedom of speech to all citizens, though this is subject to reasonable restrictions mentioned in Article 19(2).
Although I disapprove of it, in my opinion shouting slogans for azadi per se is no crime. So many people in India often shout such slogans, e.g. Khalistanis, Kashmiris, Nagas, Mizos, etc. In Scotland many people demand separation from England, and many people in French speaking Quebec demand freedom from the rest of Canada.
In a democracy people should be allowed to let out steam, and the govt. should ignore many things, and not overreact.
. Thus, in Noto vs. U.S. 367 US 290(297-298) Mr. Justice Harlan of the U.S. Supreme Court observed :
".........The mere teaching of Communist theory, including the teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action. There must be some substantial direct or circumstantial evidence of a call to violence now or in the future which is both sufficiently strong and sufficiently pervasive to lend colour to the otherwise ambiguous theoretical material regarding Communist Party teaching."
In Terminiello vs. Chicago, 337 US 1 (1949) Mr. Justice Douglas of the U.S. Supreme Court speaking for the majority observed :
"..A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute,...is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest....There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups."
In Abrams vs. U.S., 250 US 616 (1919) the defendants had been convicted under the Espionage Act of 1917, which made it a criminal offense to urge curtailment of production of the materials necessary to the war against Germany with intent to hinder the progress of the war. .The defendants were convicted on the basis of two leaflets they printed and threw from windows of a building in New York City. One leaflet, signed "revolutionists", denounced the sending of American troops to Russia. The second leaflet, written in Yiddish, denounced the war and US efforts to impede the Russian Revolution. It advocated the cessation of the production of weapons to be used against Soviet Russia.
Mr. Justice Holmes of the U.S. Supreme Court in his dissenting judgment in that case wrote :
"Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wish to sweep away all opposition.
But when men have realized that time has upset many fighting faiths, they may come to believe that the ultimate good desired is better reached by free trade in ideas, that the best test of truth is the power of the thought to get itself accepted in the competition of the market; and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment.
Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. I wholly disagree with the argument of the government that the 1st Amendment left the common law as to seditious libel in force. History seems to me against the notion."
In Gitlow vs. New York, 268 U.S. 652, the appellant, a member of the left wing of the Socialist Party, had been convicted for printing and distributing copies of the Left Wing Manifesto which called for " overthrow of the state by class action of the proletariat in any form, seizure of power and suppression of the bourgeoisie ". In his dissenting judgment in that case Justice Holmes said :
" It is manifest that there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared Gitlow's views. It is said that the manifesto is more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief, and if believed is acted on, unless some other belief outweighs it.--Whatever may be thought of the discourse before us, it had no chance of starting a present conflagration.
If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way ".
In Whitney vs. California, 274 U.S. 357 ( 1927 ) Mr. Justice Brandeis, the celebrated Judge of the U.S. Supreme Court observed :
"Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned women. It is the function of free speech to free men from the bondage of irrational fears ".
In Joint Anti-Fascist Refugee Committee vs. McGrath, 341 US 123, 174 (1951) Mr. Justice Douglas in his concurring judgment observed :
"In days of great tension when feelings run high, it is a temptation to take short cuts by borrowing from the totalitarian techniques of our opponents. But when we do, we set in motion a subversive influence of our own design that destroys us from within."
All the above decisions of the U.S. Supreme Court have been referred to with approval in the decision of the Indian Supreme Court in Sri Indra Das vs. State of Assam ( 2011).
In Romesh Thapar v. State of Madras, Patanjali Shastri, CJ observed: “ Freedom of speech lies at the foundation of democracy, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible.” ( see AIR 1950 S.C. 124 )
In Union of India v. Assn. for Democratic Reforms: (2002 5 S.C.C.294 the Supreme Court observed “Onesided information, disinformation, misinformation and non-information, all equally create an uninformed citizenry which makes democracy a farce. Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions”.
In 1954, Ram Manohar Lohia, then General Secretary of the Praja Socialist Party was arrested by the U.P. government for leading protests around the governments policy that had increased irrigation rates for water supplied for canals to cultivators. He was prosecuted under the U.P. Special Powers Act 1942, which criminalized instigating people to refuse to pay taxes. Supreme Court ruled in favour of Lohia, holding that the state government’s action was in violation of Article 19(1)(a), vide Supdt. Central Prison vs. Ram Manohar Lohia, AIR 1960 S.C.633. The Court held that for an action to be restricted under Article 19(2), there needs to be a proximate and reasonable connection or nexus between the speech in question and public order.
The Court said:
" In an attempt to indicate its wide sweep, we pointed out that any instigation by word or visible representation not to pay or defer payment of any exaction or even contractual dues to Government, authority or a land owner is made an offence. Even innocuous speeches are prohibited by threat of punishment. There is no proximate or even foreseeable connection between such instigation and the public order sought to be protected under section (sic). We cannot accept the argument of the learned Advocate General that instigation of a single individual not to pay tax or dues is a spark, which may in the long run ignite a revolutionary movement destroying public order. We can only say that fundamental rights cannot be controlled on such hypothetical and imaginary considerations. It is said that in a democratic set up there is no scope for agitational approach and that if a law is bad the only course is to get it modified by democratic process and that any instigation to break the law is in itself a disturbance of the public order. If this argument without obvious limitations were accepted, it would destroy the right to freedom of speech, which is the very foundation of democratic way of life. Unless there is a proximate connection between the instigation and the public order, the restriction, in our view, is neither reasonable nor is it in the interest of public order. In this view, we must strike down s. 3 of the Act as infringing the fundamental right guaranteed under Art. 19(1)(a) of the Constitution.
The Court here firmly recognizes the right to agitate and protest, while at the same time safeguarding the right to freedom of speech and expression by laying down the bar for when speech can be limited in the interests of public order. "
In Kedar Nath Singh vs. State of Bihar A.I.R. 1962 955, a Constitution Bench of the India Supreme Court observed that section.124A IPC was made in 1870 during British rule, but after the Constitution of India came into force in 1950 it must be given a narrow, and not literal interpretation, otherwise it will become unconstitutional.
For progress there must be freedom to think, freedom to discuss, freedom to express one's opinions ( even though distasteful to the majority ) freedom to criticize and freedom to dissent. An idea may be disagreeable to the majority, yet it should be permitted to be expressed.
As pointed out by John Stuart Mill in his celebrated essay ‘On Liberty’ :
" All progress, advancement of knowledge and progressive change and improvement of old ways of thinking, and the consequent old behaviour-patterns, habits, customs and traditions can come about only from free individual dissents and dissentions, innovations, etc. which are at first usually resisted by inert or conservative people (who are usually the vast majority), and by a free competition between the old and new ideas. In any society ordinarily the majority shares old thoughts and traditions, and there is a strong tendency to insist on conformity and collective unity or solidarity, to repress dissents and innovations, and to tolerate only what the majority agree with. This inevitably works to prevent any progress and to thwart the creative impulses of the more creative and original minds. Extensive freedom to dissent and innovate, in all spheres of life, activity, culture and thought in all directions, including expressing ideas initially thought strange and often disliked by the conservative tradition-bound majority are indispensable for progress.
The intellectually advanced and creative individuals are often in the minority, and are regarded as non-conforming eccentrics and deviants, and there is often a tendency to suppress them. This is why liberal democracy, i.e. majority rule but qualified and limited by firm protection of minorities, and individual rights and liberties, even as against the governing majority, is essential for progress. The majority often consists of mediocre persons who wish to continue in the old ways of thinking and practices. Hence the liberties and rights have to be guaranteed to the often powerless tiny minorities and lone individuals so that progress can take place."
In view of the above, I submit that mere demands and slogans for azadi, etc will not be crimes unless one goes further and (1) commits violence, or ( 2 ) organizes violence, or (3) incites to imminent violence.
The JNU students and Amnesty neither commited nor organized violence, nor called for immediate resort to arms Hence in my opinion they committed no crime, and the charges against them should be dropped.
2. That having been said, I totally disapprove of the demand for azadi for Kashmir or any part of India for the following reasons :
(a) The test of every system is one, and only one : does it raise the standard of living of the people ? Azadi can only be a means to an end, not an end in itself. The end must be raising the standard of living of Kashmiris. I have repeatedly said that if it can be demonstrated that azadi results in raising the standard of living of the Kashmiri people, i.e. creating large scale employment for the Kashmiri youth, providing for healthcare for Kashmiris, abolishing poverty, providing nutritious food, etc I will support the demand.
But it is certain that the azadi being demanded by many Kashmiris will lower the standard of living of Kashmiris, far from raising it.
Azadi for Kashmir will result in Islamic revivalism, imposition of Sharia law in Kashmir, etc which will be disastrous for Kashmiris as it will drive Kashmir into the dark middle ages. The mentor of the separatist leader and Chairman of the Hurriyat Conference, Syed Ali Shah Geelani was Abdul Ala Maududi, who propagated Islamic revivalism, and strongly opposed secularism and womens' emancipation.
https://en.wikipedia.org/wiki/Abul_A%27la_Maududi
Geelani's ideology, and that of other separatists, appears to be the same, otherwise why do they not disclose what is their plan for raising the standard of living of Kashmiris assuming azadi is achieved ? They are totally and deliberately silent about that.
Burhan Wani was turned into a hero by many Kashmiris. But to my mind he was only a pawn being used by certain vested interests ( see my blog http://justicekatju.blogspot.in/…/the-kashmiri-separatist-m… ). What was Burhan Wani's ideology ? Was it Islamic fundamentalism ? What were his plans for raising the standard of living of Kashmiris once azadi was achieved ? Did he even think about this ? Umar Khalid of JNU compared Burhan Wani with Che Guevara. But Che had an ideology ( whether one agrees with or not ). How can the two be compared ?
(b) Kashmir is too small and economically backward to survive as an independent state. So azadi, even if it is achieved, will soon thereafter result in Kashmir coming under the Pakistani military jackboot and imposition of the feudal, outdated Sharia law and Wahabiism. We have all seen what is going on in Pakistan, of which Kashmir will then become a part ?
It is true that there is communalism in India too, but it is nothing compared to what is happening in Pakistan. Ahmediyas, Shias, Hindus, Christians, etc are regularly killed there by the religious bigots. Recently a Hindu doctor of Karachi was killed. What was his fault ? That he was a Hindu. Blasphemy laws are applied to victimize innocent minorities. Recently about 70 people were killed and over 100 injured in a bomb blast in a hospital in Quetta, many of them lawyers and journalists.http://www.reuters.com/arti…/us-pakistan-blast-idUSKCN10J0I7
Journalists who write independently are regularly killed. People are afraid of speaking out openly in Pakistan, which has become a Jurassic Park. Do Kashmiris want to be a part of that ?
(c). Many Kashmiris claim that Kashmir was never part of India. This is untrue, and the truth has been explained in detail in my blog http://justicekatju.blogspot.in/…/the-false-claim-of-kashmi…
(d). Kashmir has a large handicraft industry, and a huge market for it is in India. In almost every town in India there are shops of Kashmiris selling carpets, shawls, and other handicraft items. When I went to Kovallam beach in Trivandrum, Kerala I found 3 Kashmiri shops there. All this huge market will be destroyed if Kashmir separates from India ( because then Kashmiris will not be able to come into India without a visa, and such visas will be very difficult to get ), and the workers and owners of these handicraft industries will become unemployed. Have Kashmiris and the JNU students ever thought of that ?
(e) The Kashmiris working in India and Kashmiri students will have to get out of India.
(f). Some people talk of U.N. Resolutions. But these were passed a long time back soon after independence in 1947 when our leaders were inexperienced and under tremendous pressure of powerful nations who had their own axes to grind. It is well known that the U.N. is dominated by powerful nations which have their own vested interests. Why should we bother about what happened so long back, and under pressure ?
The worst thing in life is poverty. India must remain united ( in fact I have repeatedly said that India, Pakistan and Bangladesh must reunite as the two nation theory for Partition was bogus ) because the only way to abolish poverty, unemployment and our other socio-economic ills is rapid industrialization, for only a huge industry will we able to generate the wealth for the welfare of our people. But for such a huge industry we must have a huge market, because the goods produced have to be sold. Therefore far from dividing India we must remain united if we are to escape from poverty and other social ills. The demand for azadi is totally reactionary.

Friday, 19 August 2016

How to defeat the Germans in the Olympic football final on Saturday
Brazil is playing against Germany in the Rio Olympic football finals on Saturday.
The poor Brazilians must be terribly demoralized after their 7-1 thrashing by the Germans in the semi finals of the World Cup.
...
But don't worry Brazilians. I will give you an invincible formula to defeat these Huns, Krauts, Fritz's, Boches and Jerries who have become big heads, too big for their boots. and need to be brought down a peg or two.
I am telling this formula to you because Brazil is a poor country, while Germany is rich, and I am always with the poor, I am always with the underdog.
When in the match the Germans come forward with the ball, just shout the word " Stalingrad " at them. This will so rattle, terrify and shake up the Germans ( as it will revive memories of the winter of 1942-43 in the Second World War ), that they will leave the ball and run off the football field in terror. You can then take the ball easily and drive it into the goal.
I had suggested this formula to the Argentinians before the World Cup finals, but they did not listen to me and lost. So try it on Saturday

Thursday, 18 August 2016

Are Judges Emperors ?
The dahi handi order of the Supreme Court is another case of judicial legislation.
http://indianexpress.com/article/india/india-news-india/dahi-handi-festival-18-minimum-age-for-govindas-human-pyramid-cant-be-more-than-20-feet-rules-sc-2980698/
If there is a law made by the legislature or its delegate, the Court can enforce it. But the judges cannot make law, and then seek to enforce it ( see the decisions I have cited in my report to the BCCI on the website bcci.tv ), as that is the function of the legislature.
The decisions in the judges cases practically substituting Article 124(1) of the Constitution by an entirely different one, thus amending the Constitution by a judicial verdict,( though that can be done only by Parliament under Article 368 ), which was called a ' sleight of hand ' by Lord Cooke, the order prohibiting heavy diesel vehicles in Delhi ( and later substituting this order by an order imposing 1% green cess ), the BCCI order, the MCI order, jallikattu order, Disaster Mitigation Fund order, etc were all unconstitutional, being legislative in nature.
The time has come when the issue must be seriously considered in Parliament, in academic circles, in bar associations, and by the public at large whether judges can do whatever they like and behave like Emperors, or are bound by the Constitution and the law

To Kashmiri Muslims


Your condemning atrocities on Kashmiri Pandits now is useless. Chidiyan chug gayin khet. Why did u & ur ilk not speak out in 1989 to 1999 when Kashmiri Pandits were regularly and selectively being killed in the valley, and hounded out from there ? Kya tab tumhare zubaan par taala laga hua tha ? It is only now that u r shedding crocodile tears, when the deed is already done. 

Kashmiri Muslims, and their supporters like Arundhati Roy, Umar Khalid & other students of JNU, etc cry hoarse over atrocities on Kashmiri Muslims and Palestinians, but why did they not raise their voices when atrocities were committed on Kashmiri Pandits ? Are KPs insects & worms, and not humans ? Is secularism a one way traffic ? Should atrocities on Muslims alone be condemned, but not atrocities against Hindus in Kashmir, Pakistan, Bangladesh, etc ? Sorry Arundhati Roy and Umar Khalid, this wont do. Secularism has to be a two way traffic

Rakshabandhan


I received a lot of rakhis today from my sisters and cousin sisters.



But the most treasured one was from a lady, Naseem Zohra, who regards me as her brother.

When I was a lawyer in Allahabad High Court among my close friends was Afsar Ali, advocate in the High Court. He was elder to me by a few years. He had married Naseem Zohra, and had 4 small children ( 3 daughters and a son ).

Every year on Eid he would invite a group of 4 or 5 friends to his house in Daryabad for dinner. He was a conservative Muslim, and we never saw his wife as long as he was alive, as she was in purdah. But she used to prepare delicious non vegetarian dishes for us.

I became a Judge of the High Court in 1991, and in 1992 Afsar Ali died. Naseem Zohra sent me a message that she wanted to meet me, and I requested her to come to my residence. There she told me that her brothers in Rampur had asked her to come there with her children, and live there.

I told her that she should not shift to Rampur, as after some time she would not be welcome there. I said that she had her home in Allahabad, and she should remain here, and I would get her a job in the Allahabad High Court, so that she may be able to have an income to feed her children. However, I told her that she must give up her purdah now, as she would have to fight it out in the outside world, from which she had been till then largely isolated.

Accordingly i got her appointed on a class 3 ( clerical ) post, and I told the Registrar General to post her in the High Court library, where the work was lighter, and she could go home early. This enabled her to support her family, which she did.

I also advised her to get more qualified, since in 1992 she was only Inter passed. Accordingly she did her B.A. Ll. B, and B..Lib ( Bachelor in Library Science )

All this happened over 24 years ago, but every year since then on rakshabandhan day she has been regularly sending me rakhi, and also coming personally to tie it on my hands whenever she could. The written message to me every year ( with the rakhi ) says '' Aapne bhai ka farz nibhaya ''. Today she told me that if I had not helped her in 1992 she would have been washing utensils in some household

Now all her 4 children are grown up and well settled. She has several grandchildren.

She was promoted as a bench secretary in the High Court, earning over Rs. 50, 000 p.m.

Today, 18.8.2016, she came all the way from Allahabad, as she does every year, to tie rakhi personally on my hand. .

She told me that she has now retired as a bench secretary in the High Court, and gets Rs. 24, 000 p.m. as pension, apart from her providend fund.