Thursday, 31 July 2014

NL Interviews Markandey Katju - Part 2

NL Interviews Markandey Katju - Part 1

Dilemma of an I.N.A. accused and Dr. Katju's advice

Generals Gurbux Singh Dhillon, Shah Nawaz Khan, and Col. Sehgal, of the I.N.A. were put up on trial before a Military Tribunal in 1945 in the Red Fort, Delhi along with others for waging war against the King.

The accused had the privilege to make a written statement to the Tribunal. In this connection General Dhillon has written :

" During those days Dr. Katju often used to ask me to recite some of my poetical compositions like 'Chalo Delhi' or ' Netaji ka Farman desh bhakton ko'. 

One day I took Dr. Katju aside and asked : 'Sir, what is your advice? What should I say in my statement ?". He said 'Gurbux, say whatever your conscience tells you'.

I said ' Doctor Saheb,you are my counsel. Can't you help me make a decision ? Isn't it part of your duty ? Please advise me whether I should tell the truth or a lie.'

It was probably Saturday when the aforesaid conversation took place. Dr. Katju told me that he would think it over and advise me on Monday.

Monday came, and when I approached him, he said ' Sorry, I have not been able to make up my mind what to advise you'

I said 'Doctor Saheb, can I ask you after two days?' He said yes, and was happy that I left him alone.

During the next two days I thought about the matter, and decided not to admit the charge. When I met Dr. Katju I asked him 'Sir, what is your advice ?. He said ' Gurbux, it is a difficult problem, I have not been able to make up my mind '.

I said ' but I have '.

Dr. Katju then asked me what I had decided, and I said that I had decided to tell a lie. He asked 'why ?'.
I said ' Among the principles of war there is one : mystify and mislead the enemy. This Court, consisting of British army officers, is the prolongation of the battlefield where I had been fighting, and the members of the Court are as good as my enemies now as they were on the battlefield. Therefore I have a right to mystify and mislead them. My first duty is to save my men. I cannot please my conscience by telling the truth, and as a result endanger the lives of my junior officers and men'.

Dr. Katju attentively listened to me and then said : 'I am glad you have taken a decision'. 

' Do you agree with me ?', I asked.

Dr. Katju repeated ' I am glad you have taken a decision', and saying this walked away.

I felt I had fallen low in his esteem.. How great, noble and upright were those legal luminaries who would not advise their clients to withhold truth even in the face of a certain capital punishment.

In the evening, after last post, I retired to my tent, and closing the flies of the tent I sat down to write my statement. By daybreak it was ready, and I handed it over.

Today as I write these memoirs after a lapse of half a century, I confess that in spite of all arguments, I should have told the truth. I do feel sorry for having told a lie."

The I.N.A. Trial

Perhaps the greatest legal argument ever delivered in India was never made before a law court at all but before a Military Tribunal.

The argument was made by Shri Bhulabhai Desai, the legendary lawyer of the Bombay High Court.
The facts were that in 1943 Netaji Subhash Chandra Bose set up the Indian National Army ( I.N.A.) for liberating India from British rule. A large number of Indian army officers and men, and also civilians living in countries of South East Asia, joined the I.N.A. and fought against the British.

When the I.N.A. surrendered in 1945 the British decided to try the I.N.A. officers on the charge of waging war against the government (section 121 I.P.C.) and murder (Section 302). For propaganda purpose the trial was held in the historic Red Fort in Delhi, and was widely publicized. The Military Tribunal hearing the case were all senior British army officers

For the defence were Shri Bhulabhai Desai, assisted by Sir Tej Bahadur Sapru, Pandit Jawaharlal Nehru, and Dr. K.N.Katju.

Shri Desai's argument was probably the first legal argument before any court in the world which sought to establish the legal right of an enslaved nation to wage a war of national liberation against its foreign ruler.

Bhulabhai spoke for 2 days, altogether for over 10 hours, and had almost no notes. Had he been arguing before a superior Court of law such as the Privy Council or a High Court, or an International Tribunal consisting of eminent jurists, he would have been assisted in the development of his arguments by observations made from the bench. But speaking before a court martial consisting of army officers not trained in law he had no such advantage.There were no interruptions from first to last, and the whole argument was a sustained effort to present a case which counsel believed was correct in law.

The substance of Bhulabhai's submission was that under international law an enslaved nation has a right to fight for overthrowing foreign rule.

Shri Desai first placed the facts. After the Japanese occupied South East Asia in 1942, the Indians living there, with Japanese support, set up a Provisional Government of Free India, with Netaji Subhash Chandra Bose as Head of State. This Government set up the I.N.A. and 23,000 volunteers joined it.

The Provisional Government had ministers and departments. It enacted laws. It had its own finances, and later acquired territories (e,g. Andaman Islands). It declared war on Britain, and the army it set up ( the I.N.A.) fought against the British army in Burma and the Arakans.. It had its own organization,emblems and badges. The Provisional Government was recognized by the Axis Governments.

This being the position, Bhulabhai argued, the Provisional Government complied with all the requirements of a sovereign state.

Bhulabhai submitted that at one time the old idea was that only an independent sovereign state could validly declare war. This idea, however, created the vicious circle that a subject race would remain in perpetuity a subject race. Hence modern international law recognizes the right of subject people to get organized and wage a war for freedom.

Shri Desai submitted that if 10 villagers in India had rebelled against British rule, the matter may have been different. But where a stage is reached where the rebels have set up their own political organization and army, it is a war recognized by international law.. For instance, in the American Civil War from 1861 to 1865 both North and South had their own governments and armies. A similar example was that of the Spanish Civil War.

Shri Desai submitted that if insurgents even in independent countries can wage a civil war and acquire the status of belligerents, the greater must be the right conceded under International Law to a subject people who rise in revolt against foreign rule.

Shri Desai quoted extensively from works of eminent jurists specialized in international law, e.g. Oppenheim, Lawrence, etc. He referred to President Wilson's 14 points, the U.N. Charter, etc.he referred also to the American Declaration of Independence, 1776, the Greek War of Independence against Turkish Rule, Bolivar's struggles, etc.

Shri Desai submitted that it was a settled position in International Law that when two governments are at war with each other, the combatants acquire the status of belligerents, and the soldiers cannot be punished for murder, and other offences under the municipal laws. The matter passes from the domain of municipal law to that of international law. Amidst the clash of arms, the ordinary criminal law becomes silent. Consequently, he submitted, the charged I.N.A. officers were entitled to be treated as P.O.W.s
Bhulabhai's brilliance can be realized from the fact that he asserted that the very charge against the accused, of waging war, was his main defence, since it was recognized by international law. He referred to section 79 of the Indian Penal Code which states that " Nothing is an offence which is justified by law ", and submitted that International law was also law.

By his outstanding advocacy of India's right to freedom ( made when he was in failing health), Bhulabhai acquitted himself in the highest colours. In the words of his assistant in the case Dr. Katju " It was a great forensic performance, an argument well delivered in accordance with the highest traditions of the bar, and in furtherance of justice".

Wednesday, 30 July 2014

Why Justice G.P. Singh was not elevated to the Supreme Court.

One of the legendary Judges in India was Justice G.P. Singh, who was a Judge in the Madhya Pradesh High Court from November 1967, and became Chief Justice of that High Court in July 1978 and retired in January 1984.

Justice G.P. Singh was a Judge of the highest integrity and principles, and was also profoundly learned. His book 'Principles of Statutory Interpretation' is still regarded a classic.He was the senior of Justice J.S. Verma, who later became the Chief Justice of India.

Justice G.P. Singh deserved to be made a Supreme Court Judge by any standard. The reason why he was not elevated to the Supreme Court is a sad story, but which must be told.

After Justice Jagmohan Lal Sinha's judgment which held Mrs. Indira Gandhi guilty of election malpractice and disqualified her, the Government of India decided to pack the High Courts and Supreme Court with 'committed' Judges.

Accordingly, some time in the early1980s, the Central Government sent a list of 10 lawyers to Chief Justice G.P. Singh and asked him to recommend these names for being appointed Judges of Madhya Pradesh High Court.

Now the traditional practice was always that it was the Chief Justice who initiates the name, by sending recommendations to the Government. Here the process was reversed.

On examining these names, Justice G.P. Singh found all these10 persons undeserving to be appointed as a Judge. Consequently he wrote back to the Union Law Minister that he would not recommend these 10 persons as they were undeserving, and he would be failing in his duties if he recommended them.

As a result, Justice G.P. Singh was never brought to the Supreme Court, and he retired in January 1984.

On his retirement, Justice G.L. Oza became Chief Justice and he immediately recommended these very 10 names whom Justice G.P. Singh thought to be undeserving, and shortly thereafter they were appointed as Judges in the High Court.

Soon thereafter Justice Oza, who was no match to Justice G.P. Singh in any way, was elevated to the Supreme Court

My proposal regarding the National Judicial Commission

(1) The Collegium system has been artificially created by Judges in the Judges cases, since there is no mention of a Collegium system in Article 124(2) of the Constitution. The Judges virtually amended the Constitution in the Judges cases, which could legitimately only be done by Parliament under Article 368 of the Constitution.

(2) The Collegium systrem should be replaced by a National Judicial Commission consisting of 7 members, viz. the first 4 seniormost Supreme Court Judges( i.e. the CJI and the next 3 seniormost Judges), the Law Minister of India. the leader of the opposition, or if there is no leader of the opposition, the leader of the largest opposition party in the Lok Sabha ( or his/her nominee), and a distinguished jurist appointed by the President of India. Thus the Commission will have a majority of Judges, and thus the dominant voice will be of Judges. However the Government and the Opposition will also have a say in the matter.

(3) This 7 member Commission should first do a pre-scrutiny and then prepare a list of eligible and meritorious persons whom they have selected for being considered for appointment.

(4) The candidates in this list should be called for hearings before the Commission, which should be televised so that everyone in India can get to know about the proceedings. In these hearings the Commission members can, and should, ask the candidate about his past career, his views on several issues of public importance, and even his personal life. This is the process followed in U.S.A. when candidates nominated by the President have to appear before the Senate, where they are asked several questions.

When I suggested televising these proceedings in the NDTV panel discussion anchored by Sonia Singh, many members of the panel opposed the idea. But what is wrong with it ? In a democracy the people are supreme, and judges and other state authorities are only servants of the people, as the great French political philosopher Rousseau said. So should the master ( the people) not know what kind of servant is going to be appointed ? I believe they must know, to ensure transparency.

( Watch the complete interview with CNN IBN: )

The Shahar Qazi of Allahabad

Syed Maqbool Hasan has been the Shahar Qazi in Allahabad for over half a century.

Although he is also the Imam ( head priest) of Jama Masjid in Allahabad, he has never taken any money from the funds of Jama Masjid. He earned his livelihood as an ordinary stamp vendor in Allahabad High Court. When I was a lawyer there ( 1970-1991) I used to see him sitting at the bottom of the stairs below the Bar Association Library, selling stamps. He wore a simple kurta pyjama, and on looking at him one could never make out that he is the Shahar Qazi.

Until he agrees, Eid cannot be declared in Allahabad. Since for declaring Eid 2 respectable Muslims must state that they have sighted the moon, he rigorously cross examines the persons claiming that they have seen the moon, and he also strictly applies the parameters required before declaring Eid. His integrity is of such a high order that everyone in Allahabad accepts his verdict.

Because of old age ( he must be now in his late 80s ) he has now retired, but before that he was coming to the High Court on a bicycle every working day.

In the 1986 communal riots in Allahabad he refused to take any police security, although it was offered to him. He lived a simple life, and put all the money he earned in educating his children. Today one of his sons is in U.S.A. and the other children are also well settled, some in business, and others in other vocations.

Tuesday, 29 July 2014

Religious tolerance

In today's ( 29.7.2014 ) 'The Hindu' it has been reported that in Gujranwala city in Pakistan a mob torched an Ahmadi colony and killed a woman and two girls over alleged blasphemy on Facebook.

I condemn this latest atrocity on Ahmadis, and I call upon all right minded persons of all communities in all countries to condemn it

It is alleged against Ahmadis that they do not accept Prophet Muhammad as the last Prophet, and believe that there was another Prophet called Ghulam Ahmed in the mid-19th century.

If the Ahmadis do not regard Prophet Muhammad as the last Prophet are they breaking anyone's head, or cutting off anyone's limbs ? Everyone should be left free to believe in whatever he wants to believe. Muslims can say that Ahmadis are not Muslims, but what right do they have to kill Ahmadis, burn their homes, bomb their mosques, and beat up their children, as has been happening for several decades in Pakistan ? This is nothing but goondagardi.

Sunnis believe that after Prophet Muhammad died there were 4 Khalifas successively, Abu Bakr, Omar, Usman, and Ali. Shias regard the first three as usurpers. Should Sunnis and Shias then fight each other.

Hindus go to temples and pray before idols, whereas idol worship is forbidden in Islam. Should then Hindus and Muslims fight each other ?

Christians believe that Jesus was the son of God, whereas Muslims believe that God has no son. Should then Muslims and Christians fight each other ?

In a subcontinent like ours with so much diversity we must have tolerance, particularly in religious matters, otherwise we will be continuously fighting with each other, which is precisely what our enemies want.

We should follow our great Emperors Ashok and Akbar who practised tolerance in religious matters.

Monday, 28 July 2014

Three Incidents to show the existence of democracies in Ancient India.

Democracies existed in ancient india, and to demonstrate this we may consider only three incidents ;

(1) In the Buddhist text 'Mahaparinirvan Sutra ' it is mentioned that when King Ajatshatru of Magadha was planning to attack the Vajjian democracy he sent a messenger to the Buddha for his opinion. Instead of speaking to this messenger, the Buddha said to one of his disciples : " Have you heard Anand that the Vajjians foregather often, and frequent the public meetings of their clan ? So long Anand as the Vajjians so foregather, and so frequent, the public meetings of their clan, so long they may be expected, not to decline, but to prosper.

(2) In the 'Avadana Shatak ', a Sanskrit Buddhist text of the second century B.C. it is mentioned that a group of merchants went from North India to the Deccan, and were asked by the King of the Deccan as to who was the King who ruled over North India ?
The merchants replied : 
" Deva, kechit deshah ganadhinah, kechit rajaadhinah ,iti "

Which means :

" Your Majesty, certain areas are under democratic governments, while others are under Kings "

(3) When Alexander the Great invaded India in 326 B.C. he found his toughest opposition from the Mallavas, who were a people under a democratic government ( see the Anabasis of Arrian ).

It’s time to amend law on contempt of court

The present law of contempt of court in India is a hangover of the original law on this subject in England. This originated from an undelivered judgment of J Wilmot in 1765, where the judge said the power of contempt of court was necessary to maintain the dignity and majesty of judges and vindicate their authority.
But whence comes this dignity and authority of judges? In England, in feudal times, it came from the king, who was the fountain of justice, and would often decide cases himself. Later, when he had many other duties, he delegated judicial functions to his delegates, who were called judges. Thus, in a monarchy, the judge really exercises the delegated function of the king, and for this he requires the dignity, authority and majesty which a king must have, to secure obedience.
In feudal times, the king was supreme, and the people were his subjects. They could not criticize him, and such criticism was punishable.
In a democracy, however, this relationship is reversed. Now it is the people who are supreme (see Rousseau’s ‘Social Contract’), and all state authorities, including judges, are nothing but their servants.
Hence in a democracy there is no need for judges to vindicate their authority or display pomp and majesty. Their authority comes not from fear of contempt but from the public confidence, and this in turn depends on their own conduct, integrity, impartiality, and learning.
This view is accepted now even in England. As observed by Lord Salmon in AG vs Bbb (1981) A.C. 303, “The description contempt of court no doubt has a historical basis, but it is nevertheless misleading. Its object is not to protect the dignity of the court, but to protect the administration of justice”.
“Justice is not a cloistered virtue,” said Lord Atkin. “It must suffer the scrutiny and outspoken comments of ordinary men”.
In R. Vs. Commr. of Police (1968) 2 QB 150 Lord Denning observed, “Let me say at once that we will never use this jurisdiction to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself…All that we ask is that those who criticize us should remember that, from the nature of our duties, we cannot reply to their criticism. We cannot enter into public controversy. We must rely on our conduct itself to be its own vindication”.
Sometimes an upright judge is unjustifiably criticized. The best course of action for such a judge is to ignore baseless criticism (but pay heed to honest and correct criticism). He should have broad enough shoulders to shrug off baseless comments without getting perturbed or influenced.
Once a British newspaper ran a banner headline calling the majority judges of the House of Lords who decided the Spycatcher case ( Attorney General vs. Guardian Newspaper, 1987 3 AllE.R.316) “YOU FOOLS”. Fali Nariman, who was present in England at that time, asked Lord Templeman, who was one of the majority, why the Judges did not take contempt action. Lord Templeman smiled, and said that judges in England took no notice of personal insults. Although he did not regard himself as a fool, others were entitled to their opinion.
In Balogh vs Crown Court at Albon (1975) AC 373, the defendant told the Judge “You are a humourless automaton. Why don’t you self destruct?”. The judge smiled, but took no action.
Now coming to the law of contempt in India, we find it is uncertain. Nariman described it in a speech as ‘Dog’s Law’.
He quoted Bentham, who said that when a dog does something nasty we beat him for it. Similarly, the laws in England become known only when someone is punished by the courts. The same is true about the law of contempt in India, and thus it is a standing threat to freedom of speech.
To illustrate, in Duda’s case AIR 1988 SC 1208, a Union Cabinet minister said that the Supreme Court sympathized with zamindars and bank magnates.
He further said, “FERA violators, bride burners, and a whole horde of reactionaries have found their haven in the Supreme Court” and that Supreme Court judges have “unconcealed sympathy for the haves”. No action was taken against him. Nariman asked whether if such a comment had been made by an ordinary man the court would have taken no action.
Moreover, in an earlier decision, in the case of Namboodiripad (former CM of Kerala), who accused Supreme Court judges of being biased in favour of the rich, (an allegation similar to that of the Union minister in Duda’s case) the court convicted Namboodiripad for contempt (AIR 1770 2015). Where is the certainty or consistency in the law ?
We have two provisions in our Constitution, Article 19(1)(a) which gives citizens freedom of speech, and Articles 129 and 215 which give the Supreme Court and High Court the power of contempt. How are these provisions to be reconciled. In my opinion, since Article 19(1)(a) is the right of the people who are supreme in a democracy, while Articles 129 and 215 are powers of judges, who are servants of the people, the reconciliation can only be done by holding that freedom of speech is primary, while the contempt power is only secondary.
It follows that the contempt power cannot be exercised because people are criticizing a judge. It can only be exercised if someone makes the functioning of the judge impossible eg if while a judge is hearing a case someone jumps on to the dias and tries to run away with the court file, or if he attacks or threatens a witness.
If someone calls a judge a fool inside the courtroom and goes away, in my opinion it is not contempt, for he has not stopped the functioning of the court.
But if he keeps shouting in court the whole day, and despite warning does not stop, he is obviously not letting the court function, and this would be contempt. After all disputes in society have to be adjudicated, and judges must decide cases to justify payment of salaries to them.
I submit that the time has come now for Parliament, the judiciary and others concerned to take a fresh look at the law of contempt of court in the light of what I have said above, and bring about necessary amendments.

(Published in The Times of India on 28/07/2014)