Wednesday 31 July 2013

Our National Aim

Before the Industrial Revolution, which started in England around the beginning of the 18th Century, and then spread to France, then Germany, and then all over the world, there were feudal agricultural societies in most parts of the world. In feudal societies the methods and tools of economic production were so backward and primitive that very little wealth could be generated by them. In much of Asia the bullock or buffalo, and in Europe the horse, was used for tilling the land (there were no tractors in those days). Consequently so little wealth was generated by the feudal method of production that only a handful of people (kings, aristocrats, etc) could be rich, while the remaining 99.9% people had to live in abject poverty and ignorance. When the cake is small very few people can eat it.

This situation has drastically changed after the Industrial Revolution. Now a unique situation has developed in world history, and that is that now no one in the world need be poor. This is because modern industry is so powerful and so big that now enough wealth can be created to give everyone in the world a decent life. If society is organized on scientific lines, everyone can get jobs, healthcare, education, housing, etc and no one need be poor.

This being the unique situation which has been created in world history, thanks to the Industrial Revolution, people all over the world are demanding that they be given decent lives. However, the truth is that 75-80% people of the world are still poor.

We may take the case of India.

Nobel Laureate Amartya Sen has termed India a disaster zone in which pockets of California exist amidst a sea of sub-Saharan Africa, where tens of millions of lives are crushed by lack of food, health, education, employment, and justice. Arundhati Roy has said that the upper and middle classes of India are seceding from the rest of the country, " they are fighting for the right to merge with the world's elite somewhere up there in the stratosphere".

This being the frightening scenario, what is the solution ? 

In my opinion it is the people themselves who through their struggles, and using their creativity, must find the solutions to their problems. But the masses need guidance from patriotic intellectuals, because unfortunately the intellectual level of the masses is low. They are mostly steeped in casteism, communalism, superstitions, and backward, feudal ideas and practices, like faith in astrology, 'Babas', etc. Therefore the patriotic section of the Indian intelligensia have a sacred duty to the country in this connection. They must spread scientific and rational thinking among the masses and find solutions to India's massive problems, using their creativity. They must combat casteism, communalism and superstitions. They must guide the masses.

Our national aim must be to make India a highly industrialized, highly prosperous country, with everyone having decent lives.

Monday 29 July 2013

To The Indian Youth

I read an article in a newspaper recently in which it was said that only the Indian youth can change the country. My own view is as follows :

It is true that generally youth have more idealism than older people, and therefore they can do much for the country. However there are two caveats :

(1) All youth do not have the same thinking. While some have scientific, analytical, modern minds, others are superficial, and some even reactionary. While some are patriotic, others are selfish and think only for themselves. So to lump all youth together in the same category would not be correct.

(2) An old person can be young mentally, and conversely, a physically young person can be old mentally. So it is not just one's physical condition which makes a person young, it has more to do with his mind.

 Indian youth must develop the scientific temper, they must rationally analyse and discuss social and public issues before forming an opinion, which I regret many do not do.

 It is science which is the solution to the country's real problems,massive poverty, unemployment, price rise, corruption, lack of healthcare and good education for the masses, etc. Unless we spread science to every nook and corner of our country and get rid of backward feudal ideas and practices like casteism, communalism and superstitions (like astrology and faith in 'Babas'), we can never solve our massive problems

 By science I do not mean Physics, Chemistry, Biology alone. I mean the entire scientific outlook. By being modern I do not mean wearing a nice shirt or tie or suit, or a pretty sari or jeans or skirt. By being modern I mean developing a modern mind, which means a rational mind, a scientific mind, an analytical mind, a questioning mind.

Our ancestors were great because they questioned everything, like the ancient Greeks (see the works of Aryabhatta, Brahmagupta, Bhaskar, Charak, Sushrut, Panini, Patanjali, etc). These works were all in Sanskrit, and Sanskrit was the language of freethinkers who questioned everything (it was wrongly depicted as a language of rituals and chanting mantras alone).

Today our country is facing massive problems, as mentioned above. Our youth can play a great historical role in solving these problems and making India prosperous with everyone having a decent life, but for that our youth must develop logical, scientific and questioning minds.

 I am confident that they will do their patriotic duty to the country.

Thursday 25 July 2013

Role of Media to promote Secularism

“Bhedaat ganah vinashyanti bhinnah supajapah parai
Tasmaat sanghaat yogeshu prayateran ganah sada”

“Republics are destroyed only by internal divisions among the people,
 Therefore a republic should always strive to maintain good relations among the people” 
      -Shantiparva, Mahabharat, Chapter 108

The issue of secularism is nowadays being widely discussed, and so it is necessary to understand its real significance in India. For this, it is first necessary to understand our country.

As I have mentioned in detail in my article ‘What is India’ (see my blog and the video on the website, India is broadly a country of immigrants, like North America. Probably 92-93 % people living in India today are descendants of immigrants, who came mainly from the North West, looking for a comfortable region to settle down. The original inhabitants of India are the pre-Dravidian tribals or adivasis (STs) e.g. Bhils, Gonds, Santhals, Todas, etc. who are hardly 7-8% of our population today.

People came to India because people migrate from uncomfortable areas to comfortable areas. India was a paradise for agricultural societies, because it has level land, fertile soil, plenty of water for irrigation, etc. Why should anyone migrate from India to, say, Afghanistan, which is cold, covered with snow several months in a year, mountainous, and uncomfortable? Hence people poured into India for thousands of years seeking a comfortable life.

These immigrants who came into India brought their own language, religion, customs, etc, and this is the reason for the tremendous diversity in India, so many religions, castes, languages, ethnic groups, etc.

We may compare India with China. Our population is about 120 crores, while China’s is about 130 crore, and China’s land area is over twice ours. However, there is broad (though not absolute) homogeneity in China, all Chinese have Mongoloid faces, they have one common written script called Mandarin (though spoken dialects are different), 95% Chinese are of one ethnic group called Han, etc. In India on the other hand, there is tremendous diversity.

It follows that to keep the country together and take it on the path of progress the only policy which will work is secularism and giving equal respect to all communities. This was the path shown by the great Emperor Akbar who through his policy of Suleh-e-kul (i.e. Universal toleration of all religions) gave equal respect to all religions, at a time when Catholics and Protestants were massacring each other in Europe. Akbar was the real creator of modern India, and his policy was followed by Jawaharlal Nehru and his colleagues who gave us a modern secular Constitution, and this is what is holding our country together, despite all our problems. 

Secularism does not mean that one cannot practice one’s religion. Secularism means that religion is one’s private affair unconnected with the State, which will have no religion.

India is presently passing through a transitional period in our history, from feudal agricultural society to a modern industrial society. This is a very painful and turbulent period, as a study of European history from the 16th to 19th Centuries (when Europe was passing through its transition) discloses, full of turmoil, wars, revolutions, social churning and chaos, intellectual ferment, etc. It was only after going through this fire that modern society emerged in Europe. India is presently going through this fire, we are passing through a very agonizing period, which I guess will last for another 15-20 years.

In this period it is the patriotic duty of all Indians, particularly the intellectuals and the media, to help our country get over this transition faster and with less pain. This they can do by promoting modern rational and scientific ideas and combating backward feudal ideas and superstitions.

In this transitional age the role of ideas becomes extremely important, and hence the role of intellectuals and the media becomes extremely important. We may recall the role played by Voltaire, who attacked religions bigotry in France and Europe, Rousseau who attacked the entire feudal system, Thomas Paine, who proclaimed the Right of Man, etc. Our intellectuals and the media should do the same.

            Today the bitter truth is that most of our people are still very backward, steeped in casteism and communalism. This is evident from what happens in our elections. Most people vote on the basis of caste and religion, instead of on the merits of the candidate. What after all are vote banks? Our people are still largely feudal and superstitious, believing in astrology and similar nonsense.

In this situation our intellectual and media have an important responsible, patriotic duty of giving correct guidance to the people by propagating modern, scientific ideas. But are they doing this? Much of what is shown in the media are superficialities like lives of film stars and cricketers. Instead of attacking communalism, a section of the media had become kar sewaks during the Ram Janambhumi agitation. Whenever a bomb blast occurs with a short time many T.V. channels start saying that an email or SMS has come that some Muslim organization has claimed responsibility, thus demonizing  the entire Muslim community. Is this responsible behaviour? An email or SMS can be sent by any mischievous person. The truth is that 99% people of all communities, Hindu, Muslim, Sikh, Christian etc are good, but often an attempt is made to depict all Muslims as terrorists.

Intellectuals and media people must fight against divisive tendencies in our country. We must remain united because modern industry requires a large market, and if we are divided and fight with each other modern industry cannot grow, and without modern industry we cannot generate the wealth required to abolish poverty, unemployment, etc and provide for healthcare, education, etc for our people. Therefore whatever divides us, whether on the basis of religion, caste, region, language, race, etc is anti-national, and whatever unites us (e.g. secularism) is the path we must adopt for progress.

 We must not be Hindu nationalists or Muslim nationalists or Sikh or Christian nationalists, we must all be Indian nationalists, and that is what everyone including the media should propagate.         

Wednesday 24 July 2013

Keeping the statute quo

The judgments on the Representation of the People Act stray into legislative terrain.

The Supreme Court judgments of July 10, disqualifying convicted or jailed MPs and MLAs from contesting elections, won a lot of accolades. It was claimed they would clean our politics. I have no sympathy for criminals, but in my respectful opinion lawmaking is the job of the legislature, not the judiciary.

Others objected that since many legislators have criminal backgrounds, they will not change the law. My reply was: if it is said that the judiciary must step in if the legislature is not doing its job properly, it can likewise be said that since the judiciary is not doing its job properly (there is often great delay in deciding cases, a section of the judiciary has become corrupt, etc) the legislature or executive should do the work of deciding cases. This would lead to a constitutional crisis and chaos.

In Lily Thomas vs Union of India, the bench struck down Section 8(4) of the Representation of the People Act, 1951, as unconstitutional. Now it has been held by the Supreme Court in Government of Andhra Pradesh and Others vs P. Laxmi Devi (2008) that the invalidation of a statute by the judiciary is a grave step. The court can declare a statute unconstitutional not merely because it is possible to take such a view, but only when it is the sole possible view not open to rational question. This is because there is a broad separation of powers in our Constitution between the three organs of state. If one organ encroaches on the others' domain, the system cannot function. Declaring a statute to be unconstitutional is thwarting the will of a co-ordinate organ of the state, which should be done only if there is a clear violation of some constitutional provision. Keeping the above considerations in mind it is difficult to understand how Section 8(4) could be held unconstitutional.

Now it is true that Parliament has enacted somewhat different laws for the disqualification of a person who wishes to be chosen as a legislator, and a person who is already one. The former is disqualified immediately on the date of conviction if the sentence is for not less than two years. For the latter, disqualification is deferred till the disposal of the appeal, if the appeal is filed within three months of the conviction.

Noting this distinction, the bench referred to Article 102(1) (e) of the Constitution, which states: "A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament if he is so disqualified by or under any law made by Parliament". A similar provision exists for state legislatures.

It is a principle of interpretation of statutes that the word "and" can sometimes be read as "or", and vice versa. The bench has read the word "and" as "and", not as "or", to declare Section 8(4) unconstitutional. But if it is read as "or", Section 8 (4) becomes constitutional. It is well settled that if two views are possible, one upholding the constitutional validity of a statute, and the other declaring it unconstitutional, the former is to be preferred, because there is always a presumption in favour of the constitutional validity of the statute.

Also, Articles 102 and 191 do not mention when the disqualification becomes effective. Parliament can fix different dates for different categories, which it has the power to do under entries 72 and 97 of List 1 of the Seventh Schedule of the Constitution.

Moreover, as pointed out in the decision of the Constitution bench of the Supreme Court in K. Prabhakaran vs P. Jayarajan, 2005, Parliament by enacting Section 8(3) and Section 8 (4), has chosen to demarcate two categories: one, a person who is, on the date of conviction, an MP or MLA, two, a person who is not. The court went on to say "such classification cannot be said to be unreasonable as it is based on a well laid down differentia and has nexus with a public purpose sought to be achieved". This five-judge bench decision, though referred to, has been practically negated by the decision of the two-judge bench in the Lily Thomas case.

As for the decision in ECI vs Jan Chowkidar, which disqualified jailed persons from contesting elections, the bench relied on Section 62 (5) of the RP Act, 1951, which states that a person in police custody cannot vote. But having the right to vote is different from having the right to contest elections. Sections 3, 4 and 5 entitle an elector to contest. Under Section 2(e), an elector is defined as a person who is entered in the voters list and is not disqualified under Section 16 of the RP Act, 1951. There is no mention of Section 62(5) in Section 2(e). Many persons in jail have contested elections, for example, George Fernandes. To hold otherwise would only give rival politicians an opportunity to file false FIRs and get their competitors arrested, and thereby disqualified.

I submit with respect that both these decisions are incorrect in law and need to be reconsidered.

( The writer, a former judge of the Supreme Court, is chairman of the Press Council of India)

Published in The Indian EXPRESS on July 24th, 2013.

Sunday 21 July 2013

Required, Two Tongues

Since some public figures have been commenting against English recently, I am reposting my article on the subject.

English and Hindi have irreplaceable roles in national integration and ensuring progress

When I was a Judge of Allahabad High Court I would be invited by the High Court Bar Association on the occasion of Hindi Diwas, which was celebrated every year on September 14 in a function at the Bar Library. I would tell the office bearers of the bar association that I do not like to come to the function because what I say would create controversy. However, they would insist and plead that I come and speak.
At the functions many speakers would say Angrezi hatao, that is, abolish English from our country. Some would disparagingly describe English as a dasi (slave girl).


When my turn comes to speak I would tell the audience that if their children did not learn English they would only be fit to drive bullock carts (Hal chalane layak rah jayenge). I said I too loved Hindi, which is my mother tongue, but that did not mean I should behave like a fool. All knowledge in the world is in English. If one goes to an engineering college, all the books are in English; similarly all the books in a medical college are in English. If one wants to study history, economics, philosophy, science or literature, the books are all in English. How can one do without English? It is totally stupid to say Angrezi hatao, and only enemies of their children talk like that. In fact, we must spread English more for the country’s progress. At the same time, people in non-Hindi speaking States such as Tamil Nadu should learn Hindi, because it is the link language in our country. For instance, Tamilians face great difficulty when they come out of Tamil Nadu because they do not know Hindi.


When I met the Chief Minister of Tamil Nadu some time back, I told her that Tamilians should learn Hindi as it is in their interest to do so. She told me that Tamilians had indeed been learning Hindi up to the 1960s, and Hindi was spreading in Tamil Nadu by Hindi films and Hindi Prachar Sabhas. But then some north Indians decided to impose Hindi on the south, creating a strong reaction and halting the learning of Hindi.
I told her it was wrong on the part of some north Indian politicians to try to impose Hindi in the south. This is the age of democracy, and nothing should be imposed. However, what has happened has happened, and now my appeal to the people of Tamil Nadu is that they should learn Hindi. Recently, I spoke to students of Anna University in Chennai and advised them to learn Hindi. I have received e-mails from some of the students saying they have started learning Hindi.
In my speech at Anna University, I recalled an instance when I was Chief Justice of Madras High Court and had been invited to a function in Gulbarga in north Karnataka. I flew from Chennai to Hyderabad, where I caught a taxi to Gulbarga. The professor of Gulbarga University who came to receive me was a Kannada speaker and the taxi driver was a Telugu speaker, but they spoke to each other in Hindi. I was surprised that two south Indians should speak to each other in Hindi. I asked the professor the reason. He said it was because Hindi was their link language. He did not know Telugu and the taxi driver did not know Kannada, but they both knew Hindi. This shows that Hindi is the link language in much of India. In fact, most people in non-Hindi regions like Punjab, Bengal, Kashmir, the North East, Orissa, Andhra Pradesh, etc. can speak Hindi. In Pakistan, people speak Urdu which is very similar to Hindi. Thus, knowledge of Hindi makes it easy to communicate in much of the subcontinent.

 I appeal to all the people of India to learn Hindi and English. But nothing should be imposed.

Wednesday 17 July 2013

Further to my article "The Need for Judicial Restraint"

There are three comments I wish to make about some of the reactions to my article 'The Need for Judicial Restraint' :

(1) Some say that no doubt making/ amending the law is the job of the legislature, not the judiciary, but since the legislature is not doing its job properly the judiciary has to do it. If this argument is accepted then it can also be said that since the judiciary is not doing its job properly (there is so much delay in deciding cases, a section of the judiciary has become corrupt, etc.), the legislature or executive should do its job of deciding cases.

(2) Section 8(4) of the Representation of the People Act, 1951 may be a bad law but that does not make it unconstitutional. Here I may relate a story. Sir Thomas More (1478-1535), who was the Lord Chancellor of England, was once taking a walk in London with his daughter Margaret and son-in-law Roper. They saw a man running, and Margaret said to Sir Thomas " Father get that man arrested". When Sir Thomas asked why, she replied "Because he is a bad man". "But which law has he violated ?", asked Sir Thomas. "He has violated the law of God", replied Margaret. "Then let God arrest him", said Sir Thomas, "I get people arrested only if they break the law made by Parliament".

There is a difference between law and morality, as the British jurists Bentham and Austin pointed out. Section 8(4) may be a bad law but nevertheless it is still a law.

3) Many people say that since several members of Parliament or State Legislative Assemblies have criminal backgrounds, no law will ever be made or implemented to clean the system.

To this my reply is that India is passing through a historical transition period from feudal society to modern society, and to my mind will last about another 15-20 years. It will take this long a period to clean the system and bring about an honest, just and modern social order. It can only be by peoples' struggles that such a social order can be created, not just by judicial decisions or making laws. One wishes that this transition would take place immediately and without any pain or turbulence, but unfortunately that is not how history functions.

Human beings have creativity. People have to use their creativity to create such a clean, just and modern social order in which all Indians get decent lives and the great social evils like poverty, unemployment, corruption, etc. are abolished. All patriotic Indians should help in this great historical challenge facing the nation.

The Need for Judicial Restraint

The Need for Judicial Restraint
-by Justice Markandey Katju

Two judgments of the Supreme Court of India decided on 10thJuly, 2013 regarding disqualification of MPs and MLAs and one interim order of the Allahabad HC banning caste rallies have been a subject of great deal of discussion and debate recently.

I have perused and considered them, and with great respect to the courts which passed these orders I have serious reservations about their correctness.

In Lily Thomas vs Union of India the SC declared section 8 (4) of the Representation of the People, 1951 as unconstitutional.

Section 8(4) states:-

“Notwithstanding anything in sub- section (1), sub- section (2), or sub- section (3)] a disqualification under either sub- section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court”.

In Government of Andhra Pradesh vs P. Laxmi Devi (2008) the Supreme Court considered at great length the doctrine of judicial review of statutes (from paragraph 31 onwards). In paragraph 36 of that judgment, it was observed that invalidating an act of the legislature is a grave step and should never be lightly taken. A court can declare a statute to be unconstitutional not merely because it is possible to hold this view, but only when that is the only possible view not open to rational question (vide paragraph 41).

The philosophy behind this view is that there is broad separation of powers under the Constitution, and the three organs of the state must respect each other and must not ordinarily encroach into each other’s domain. In paragraph 44 of the judgment it was observe that there is one and only one ground for declaring a statute  to be invalid, and that is if it clearly violates some provision of the constitution in so evident a manner as to leave no manner of doubt.

Keeping the above considerations in mind, one fails to see how Section 8(4) could be held to be unconstitutional.

The bench has given two reasons for its verdict: Firstly, it held Section 8 (4) violative of Article 102 and its corresponding provision Article 191 of the Constitution. A careful perusal of Article 102 show that there is nothing therein which makes Section8 (4) inconsistent with it.

Article 102(1) of the Constitution states:
1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament
(a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament

In my opinion none of the 5 clauses in Article 102(1) are attracted so as to invalidate Section 8(4). Clause (e) is not attracted because section 8 (4,) which is a law made by Parliament, specifically states that a legislator convicted is not disqualified during  pendency of his appeal, if made within 3 months.
            Secondly, the Supreme Court has held that Parliament had no legislative competence to enact Section 8 (4). This reasoning, too, is difficult to accept because entry 72 to list1 of the 7th Schedule specifically gives power to Parliament to legislate on elections to Parliament or the State legislatures. It is well settled that legislative entries in the Constitution are to be widely construed, and in any case Parliament has residual power under entry 97 to list 1.
The second judgment of the Supreme Court in CEC vs Jan Chawkidarialso deserves reconsideration because it has held that if a person is in jail or police custody he cannot contest an election.
The SC has relied on the definition of elector in section 2 (e) of RP Act, 1951, and observed that in view of Sections 3, 4, and 5, to be qualified for  membership of the legislature one has to be an elector.
Section 2(e) defines elector as follows:
 " elector" in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950; (43 of 1950 .)

There is no mention of section 62(5) of the 1951 Act in the definition of ‘elector’ in Sec 2(e). It is therefore difficult to understand how the SC relied on Sec 62(5) for disqualifying persons who are in jail or police custody from standing for elections. There is a distinction between a voter and an elector Section 62 (5) only debars a person in jail from voting, not from contesting an election.

If the view of the Supreme Court is accepted then a rival politician need only get a false FIR filled against his political rival and have him sent to police custody or jail to disqualify him.

 As regard the interim order of the Allahabad High Court with due respect I submit that it requires to be reviewed.

 Firstly because the view taken by the High Court required a final, well considered judgment and not an interim order, and secondly there is no legal bar to a caste rally, as long as no law is violated. In fact Article 19 (1) (b) gives citizens a fundamental right to assemble peaceably.  A political party can call a meeting of a caste e.g. the dalits to discuss the problems facing that community, and there is no law barring such a meeting.

With respect, the above decisions of the Supreme Court and High Court have made/amended the law, which function was in the domain of the legislature vide Divisional Manager,AravaliGolf Course v Chander Haas 

I make it clear that I am totally against criminalization of politics or casteism, but the problem we are discussing is not about one personal’s view but about the correct legal position.