Saturday 31 March 2012


By Justice Markandey Katju

I had been keeping silent throughout the Anna Hazare Movement for creating a Lokpal (Janlokpal) because the media (particularly electronic media) had so much hyped the issue and generated such an emotional storm that anyone who would have raised some logical questions would have immediately been branded as a ‘deshdrohi’ or ‘gaddar’. Anna Hazare was depicted as a modern messiah, who, like Moses, had come to rescue his chosen people and lead them to a land of honey and milk.
            Now that the brouhaha and hullabaloo has subsided it is time to make a cool, dispassionate, logical assessment of Mr. Hazare and his movement.
            I have no doubt that Anna Hazare is an honest man, but my point is that the problems facing the country (and corruption is certainly one of them) are so massive that they can only be solved by a rational, scientific approach, not by emotional outbursts.  Honesty alone is not enough.
            So far as I could gather, Anna Hazare has no scientific ideas. Consider two of his statements:
1.     His solution to alcoholism is to tie alcoholics to a pole and whip them. Is this a rational solution? Most poor people who drink liquor in this country drink cheap country liquor, not scotch. They drink to get some temporary relief from their miserable lives. To abolish alcoholism among them would be possible only by abolishing poverty, and that can be done by raising their standard of living and giving them decent lives. This is a gigantic task, and cannot be solved by flogging them in public.
2.     Anna Hazare demands a right to recall elected representatives. But how is that possible within the system? Supposing a law is made that a motion can be moved for recall of an M.L.A. or M.P. signed by 10,000 voters. But for getting this motion passed there will have to be voting by all the voters in the constituency. This would mean another election. Is this feasible? An election entails a huge amount of expenditure, can a poor country like ours have repeated elections? I think the idea is totally impractical.
           Now coming to the Lokpal Bill, whether Janlokpal Bill or Sarkari Lokpal Bill, it envisages overseeing the work of some 55 lac government employees in the country (of which 13 lacs are in the Railways alone), from Prime Minister to peon. Surely one person cannot enquire into the lacs of complaints which are bound to pour in. It will require thousands of Lokpals, may be 50,000 of them to do this. All these have to be provided salaries and other amenities, housing, offices, staff etc. And then where is the guarantee that these will not themselves become corrupt? In fact considering the low level of morality prevailing in India, we can be fairly certain that a large number of them will become blackmailers.   In my opinion, the Lokpal Bill will create a parallel bureaucracy, which will turn into a Frankenstein monster. Instead of curtailing corruption, in all probability at a stroke it will double or triple corruption in the country.
            I regret to say that the implications of creating such an apparatus were not rationally thought out, and instead some people thought that all problems of corruption will be solved by shouting ‘Bharat Mata Ki Jai’ or ‘Inquilaab Zindadbad’ from Jantar Mantar or Ram Lila Ground.   
            I may clarify that I am not against any kind of Lokpal. Justice Hegde did a fantastic job in exposing the corruption of the mining mafia in Karnataka. But the type of Lokpal envisaged in the Janlokpal Bill or Government Lokpal Bill are clearly impractical and unworkable.
            I would therefore respectfully urge Parliament to defer consideration of the Bill before it and refer the matter to a Standing Committee (as Shri Lalu Yadav has suggested) where experts from various fields in the country and outside be invited to give their views, and only then a workable Lokpal machinery can be created. Passing Bills in a hurry and under pressure of some people having their own agenda will only add to the huge problems facing the country.      

Thursday 15 March 2012

Letter To Speaker Of Karnataka Assembly

The  Hon’ble Speaker
Karnataka  Legislative Assembly,

Respected Sir,

                                Re: Proceedings against mediapersons for telecasting M.L.A.s  watching porn

                Some M.L.A.s of the Karnataka Legislative Assembly were filmed watching porn in the Assembly Hall. Instead of commending the mediapersons for their professionalism, proceedings have been started against them.

                In my respectful opinion such proceedings against the mediapersons jeopardize the freedom of the media guaranteed as a fundamental right by Article 19 (1) (a) of the Constitution of India, and seek to create an impression that it is the media which has brought the House into disrepute rather than the M.L.A.s  involved.

                I am informed that an inquiry committee has been set up by the House to enquire into the matter. In my respectful opinion the inquiry committee can certainly ask the mediapersons concerned questions to ascertain the correct facts about this sordid affair. But from what I could gather, the question being asked give the impression that the mediapersons are being treated as an accused of some offence, and are being grilled accordingly.

                Since grave Constitutional questions are involved in this episode I would like to dwell on the matter in some detail.

                In our country it is the Constitution which is supreme, not the legislature or executive. The people of India, in their wisdom, and following the examples of the American and French Constitutions, did not give the legislature absolute sovereignty but only limited sovereignty. Thus the Indian Constitution does not incorporate Hobbes’ theory of absolute sovereignty (see ‘Leviathan’) but instead it incorporates Locke’s theory of limited sovereignty (see ‘the Second Treatise on Civil Government’) and Rousseau’s theory of sovereignty of the people (see ‘The Social Contract’).

                Hence neither the legislature nor the executive can violate the constitutional provisions, particularly the fundamental rights like Article 19 (1) (a).

                In a democracy it is the people who are supreme, and all authorities, whether legislative, executive or judicial, are only servants of the people. This is also borne out from the Preamble to the Indian Constitution which states:

                “We, the People of India,………… hereby adopt, enact and give ourselves this Constitution”     

                Since the people are the masters , and the legislators only their representatives, surely the public has the right to be informed of the activities of the legislators. And the media is an agency of the people to give them this information. Hence I do not see what wrong the media has done by telecasting the watching of porn by the M.L.A.s in the House. To my mind the media were only doing their duty to the people of informing them of the shameful manner in which some of their representatives were behaving.

                In this connection I would like to refer to the following words in the judgment of Mr. Justice Hugo Black of the U.S. Supreme Court in New York Times  vs. U.S 403 U.S. 713, 1973  (the Pentagon Papers case):
                “Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers deserve to be commended for serving the purpose which the Founding Father saw so clearly. In revealing the workings of the government which led to the Vietnam War the newspapers nobly did precisely that which the Founders hoped and trusted they would do”.

                To use similar language, far from deserving condemnation, the mediapersons who revealed to the nation the disgusting scenes of M.L.A.s  watching porn in the House deserve to be applauded for their courageous reporting.

                Ordinarily, in a democracy all proceedings in a Legislative Assembly must be freely telecast and reported so that the people, who are the supreme authority in a democracy, know how their representatives are behaving. There may, of course, be exceptional situations where this cannot be done. For example, in the Second World War many secret sessions of the House of Commons were held so that Nazi spies may not know the views of the British political leaders. But such secrecy can only be in exceptional situations. I fail to see what was the exceptional situation in Karnataka which could justify prohibiting mediapersons to report events in the House.

                I would therefore respectfully request you to reconsider your decision and withdraw the proceedings against the mediapersons, and instead take strong action against the M.L.A.s who have brought disgrace to the House.

                                                                                                                                (Justice Markandey Katju)
                                                                                                                          Chairman, Press Council of India