Condemned undefended and unheard

I was condemned by both Houses of Parliament for my statements on Gandhi and Subhas Chandra Bose, without giving me a hearing and an opportunity to defend myself. The rules of natural justice, and elementary decency, require that no one should be condemned unheard.. But I suppose that I did not deserve even that.

 I am presently in America, and was here when I came to know of the resolutions against me. So I sent emails to three of the top lawyers of India, who are practising in the Supreme Court, requesting them to file writ petitions in the Supreme Court on my behalf, challenging these resolutions on the ground that they violate my fundamental rights under Articles 14, 19(1)(a) and 21 of the Constitution.

 They violate Article 14 because it has been held by the Supreme Court in Maneka Gandhi vs.Union of India,A.I.R. 1978 S.C.597 that violation of natural justice is violation of Article 14. They violate Article 19(1)(a) because that provision gives me freedom of speech. And they violate Article 21 because Article 21 has been interpreted by the Supreme Court to include the right to one's reputation.

 The first of these three lawyers ( I am not disclosing their names ) sent this reply to me :

" I am sorry I cannot file this case as I am strongly of the view that you were totally wrong in saying what you said about Mahatma Gandhi. He rightly felt that Indians could not fight the mighty British through armed revolutionaries as they could be easily crushed by the British Army.He therefore developed the novel technique of Satyagraha which would by its force create a world opinion in favour of Indian independence.I have never accepted to argue a case in which my client was morally very wrong.Though I have always held you in high esteem as a crusader against corruption I am sorry I shall not be able to help you in this case. ".

 The second lawyer replied by refusing my request without giving any reason. The third did not even reply to my email. There was a fourth top lawyer of India whom i did not approach as he had already condemned me by tweeting against me on the issue.

 I then decided that since lawyers seemed to be unwilling to defend me, I should defend myself, and seek a post decisional hearing from Parliament. So I obtained the email ids of the  Chairman of the Rajya Sabha, Mr. Hamid Ansari, and the Speaker of the Lok Sabha, Ms. Sumitra Mahajan, and sent them emails requesting for a hearing by both Houses. Neither Mr. Ansari nor Ms.Mahajan showed me the courtesy of a reply.

 Will no one defend me ? And will I not even be allowed to defend myself ?

'गांधी नहीं, मेरे आदर्श अशोक और अकबर हैं'

'गांधी नहीं, मेरे आदर्श अशोक और अकबर हैं'- नवभारत टाइम्स के साथ इंटरव्यू

'सच बोलने से अगर कुछ लोग आहत होते हैं तो यह उनकी समस्या है मेरी नहीं।'

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सुप्रीम कोर्ट के जज रह चुके मार्कंडेय काटजू जब-तब मीडिया की सुर्खियां बटोरते रहे हैं। कभी कैटरीना कैफ की खूबसूरती से वह इतना प्रभावित हो जाते हैं कि उसे राष्ट्रपति बनाने की वकालत करने लग जाते हैं और कभी शाजिया इल्मी उन्हें इतनी अच्छी लगने लगती हैं कि वह उन्हें सीएम का कैंडिडेट बनाने के लिए बीजेपी लीडरशिप को सलाह दे डालते हैं लेकिन इस बार मामला गंभीर हो गया है। उन्होंने अपने ब्लॉग में गांधी जी को लेकर टिप्पणी की है, जिसकी वजह से उनके खिलाफ राज्यसभा में निंदा प्रस्ताव पारित किया गया। यूपी की विधानसभा भी उनके खिलाफ प्रस्ताव पास कर चुकी है। कई जगहों पर उनके खिलाफ एफआईआर भी हुई है। इस तरह के बयानों के पीछे उनका क्या है शगल, यह जानने को जस्टिस काटजू से बात की पॉलिटिकल एडिटर नदीम ने :
__________________________
NBT: गांधी जी को लेकर आपने अपने ब्लॉग पर जो लिखा क्या वह उचित है?

Ans: बिल्कुल उचित है। मैंने गांधी को लेकर जो लिखा है, वह एक तरह से बहुत कम है। गांधी ने दो तरह से अंग्रेजों के हितों की पूर्ति की है। एक तो भारत वापसी से लेकर अपनी मृत्यु तक उन्होंने धर्म और राजनीति को मिलाए रखा। 'द कलेक्टेड वर्क्स आफ गांधी' पढ़ें आप खुद पाएंगे कि उनके ज्यादातर लेख और भाषण 'रामराज्य' 'गो रक्षा' 'वर्णाश्रम' 'ब्रह्मचर्य' और इसी तरह के तमाम दूसरे हिंदू विचारों पर केंद्रित हुआ करते थे। उनकी सभाओं में रघुपति राघव राजा राम जैसे हिंदू भजन गाए जाते थे। दूसरे आजादी के लिए शुरू हुए क्रांतिकारी आंदोलन से भयभीत अंग्रेजों का डर निकालने को गांधी उनके मददगार बने और उन्होंने पूरे आंदोलन का रूप बदल दिया।

NBT: लेकिन आजादी तो गांधी की वजह से ही मिली?
Ans: यह कहना कि आजादी गांधी की वजह से मिली पूरी तरह से गलत और बकवास है। क्या यह विश्वास करने वाली बात है कि अंग्रेज अपना इतना बड़ा साम्राज्य गांधी के उपवास, सत्याग्रह और दांडी मार्च या इसी तरह के दूसरे ड्रामों की वजह से छोड़ गए? भारत को 1947 में आजादी इस लिए मिली कि दिवतीय विश्वयुद्ध में जर्मनी ने इंग्लैंड को कमजोर कर दिया था और अमेरिका का प्रेशर था।

NBT: आपके तर्क कुछ भी हों लेकिन एक शख्स जिसे राष्ट्रपिता का दर्जा हासिल हो, Ans: उसके लिए इस तरह की भाषा या विचार को कैसे जायज ठहराया जा सकता है?
गांधी को राष्ट्रपिता गलत कहा जाता है। हकीकत में उन्होंने भारत का बहुत नुकसान किया। वह ब्रिटिश एजेंट थे और उसका ताजा सबूत यह है कि लंदन में अभी उनकी मूर्ति का अनावरण किया गया अंग्रेजों की तरफ से। अंग्रेजों ने भगत सिंह, चंद्रशेखर आजाद, अशफाकउल्लाह, खुदीराम बोस, राम प्रसाद बिसमिल की मूर्ति का अनावरण क्यों नहीं किया?

NBT: अभिव्यक्ति की स्वतंत्रता का अधिकार क्या दूसरों की भावनाओं को आहत करने का अधिकार देता है?
Ans: सच बोलने से अगर कुछ लोग आहत होते हैं तो यह उनकी समस्या है मेरी नहीं।

NBT: अब जब राज्यसभा और यूपी की विधानसभा निंदा प्रस्ताव पास कर चुकी है तो आपको यह लगता नहीं है कि खेद व्यक्त करना चाहिए?
Ans: बगैर मेरा पक्ष जाने मेरे खिलाफ निंदा प्रस्ताव पारित कर देना नेचरल जस्टिस के खिलाफ है। सदनों को मुझसे माफी मांगनी चाहिए।

NBT: आपका आदर्श कौन है?
Ans: सम्राट अशोक और अकबर।

NBT: गांधी पर लिखने से पहले आप कैटरीना कैफ और शाजिया इल्मी पर रीझ गए थे? इस तरह की बेबाकी का शगल आपको कैसे पैदा हो गया?
Ans: कैटरीना कैफ और शाजिया इल्मी वाली बात तो बस हंसी मजाक वाले टोन में थी लेकिन बेवकूफ लोग हंसी मजाक भी नहीं समझते। दरअसल हुआ यह था कि एक रोज मैंने अखबार में देखा कि एक खूबसूरत महिला क्रोएशिया की राष्ट्रपति चुन ली गई तो हमने भी मजाक के मूड में फेसबुक पर यह पोस्ट डाल दी कि हमारे देश के नेता लोग चुनाव के समय वादों के सिवा कुछ नहीं करते तो इससे अच्छा हम लोग किसी खूबसूरत महिला को ही वोट क्यों न दें? कम से कम अखबारों और टीवी पर उसका खूबसूरत चेहरा ही देखने को मिलता रहेगा।

NBT: कहीं ये पब्लिसिटी स्टंट तो नहीं?
Ans: मुझे इस तरह की पब्लिसिटी की जरूरत नहीं। मैं जो कुछ कहता हूं, उसका आधार और तर्क होता है। जो लोग मुझसे असहमत हों उन्हें अपनी बात रखनी चाहिए अपने तर्कों के साथ, लेकिन अक्सर होता यह है कि लोग मुझे गालियां देने लगते हैं बगैर किसी कारण के।

NBT: आपकी गम्भीर छवि के इतर अब आपको लोग दिग्विजय सिंह और लालू यादव कर श्रेणी में रखने लगे हैं?
Ans: मुझे इसकी फिक्र नहीं कि लोग मेरे बारे में क्या सोचते हैं या कहते हैं। मैं देश के लोगों को सच बताने का दायित्व निभाता रहूंगा।

NBT: आप जब महिलाओं पर लिखते हैं तो आपके परिवार की क्या प्रतिक्रिया होती है?
Ans: कुछ नहीं सब लोग हंसते हैं।

NBT: क्या राजनीति में आने का इरादा है?
Ans: मेरा राजनीति में आने का कोई इरादा नहीं लेकिन राजनीति से बिल्कुट कटा भी नहीं हूं। मैं देश के लोगों से कहना चाहता हूं कि उन्हें लम्बे समय से नेताओं की तरफ से बेवकूफ बनाया जा रहा है।

http://navbharattimes.indiatimes.com/india/39gandhi-my-ideal-would-ashoka-and-akbar39/articleshow/46636586.cms

Alice in Wonderland

Both Houses of the Indian Parliament have condemned me for my statements about Gandhi and Subhas Chandra Bose without giving me an opportunity of hearing, thus violating the basic principle of natural justice that no one should be condemned unheard.
This reminds me of an episode in Lewis Carrol's ' Alice in Wonderland ', which is quoted below
:
" 'Let the jury consider their verdict,' the King said, for about the twentieth time that day.

'No, no!' said the Queen. 'Sentence first - verdict afterwards.'

'Stuff and nonsense!' said Alice loudly. 'The idea of having the sentence first!'

'Hold your tongue!' said the Queen, turning purple.

'I won't!' said Alice.

'Off with her head!' the Queen shouted at the top of her voice. "

So with profound respect to the Hon'ble Members of the Indian Parliament, I have to say that they have acted like the Queen of Hearts in ' Alice in Wonderland '.
Since I was not given a hearing by Parliament I decided to go to the Court of Public Opinion and defend myself before the people who are supreme in a democracy.. Hence this brief article in ' The Hindustan Times '.

http://www.hindustantimes.com/analysis/gandhi-followed-the-policy-of-divide-and-rule/article1-1327987.aspx

The Need for Judicial Restraint

The Need for Judicial Restraint

-by Justice Markandey Katju

Two judgments of the Supreme Court of India decided on 10^thJuly, 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 7^th 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.

"Media Freedom and Media Responsibility "

I had firmly decided not to write any more articles or say anything publicly or appear on t.v. for quite some time, firstly because I had already expressed my views on several issues, and secondly because some people had started accusing me of seeking popularity or cheap publicity. I regard publicity or popularity seeking as a form of vulgarity, and I never seek it. 

What I was doing was to put forward certain ideas which I thought were in the national interest, though it is quite possible that some of my views were wrong. But since I was misunderstood by many people, some of whom even started abusing me and launching personal attacks, I thought that the time had come for me to become silent. 

For this reason I said and wrote nothing for two months, and I would have continued my silence in the future too for a long time but for an event which happened recently.

On 19th June a senior journalist wrote an article entitled " Muzzling the Media--Freedom at Risk", which was published in his own newspaper, a leading English Indian national daily. His basic idea was that the government was trying to muzzle the media, and thereby violate the freedom of the press guaranteed by Article 19 of the Constitution.

I would have remained silent had he left it at that, because, after all, he is entitled to his view. However, what motivated me to break my silence is that the article specifically named and vilified me as the main agent who is helping the government in gagging the media. The article describes me as a ' terrier', though by allusion. 

Since I had decided not to write or say anything for quite some time, at first I was thinking of not replying to this deliberate, malicious falsification of my views about the media ( which are available on my blog justicekatju.blogspot.in ). It was only after several days of deliberation that I reluctantly decided to respond, though not by getting some article published in a newspaper but only on Facebook and my blog.

Here are the true facts:

(1) I have consistently supported media freedom, and condemned attacks on the media, overtly or covertly, e.g. In the cases of Aseem Trivedi, Iftikhar Gilani, Shaheen ( the girl who wrote on Facebook), Prof. Mahapatra of Jadavpur University, etc or when media persons were attacked in Maharashtra, J&K, Himachal, etc, or when media freedom was sought to be covertly suppressed in Bihar, etc. I have strongly criticized some Congress governments too in this connection, and not merely non Congress governments. So how am I a Congress agent ?

I support freedom of speech not for popularity or as a fashion but because I genuinely believe in it. Without freedom to think, freedom to speak, freedom to write and discuss, and freedom to dissent there can be no progress. It was because there was freedom in England that it progressed, whereas countries like Spain, where freedom was stifled by the Inquisition, lagged far behind.

(2) When the Times of India office in Mumbai was attacked by some hooligans, I strongly condemned the incident. When the Court imposed a fine of Rs.100 crore on the Times Now channel, I defended Times Now, saying that no doubt it had made a serious mistake, but it had apologized for the same several times, and in any case the fine was excessive.

(3) In the article in question it is mentioned that I have spoken of the need for media ethics. What is wrong in this ? Should there be no ethics for the media ? Everybody is accountable in a democracy, but for the media should there be no accountability?

(4) In the article it has been stated that the government tries to muzzle the media by cutting off advertisements. Here I entirely agree. But what the writer conveniently overlooks is that I issued a strong press note on 4.2.2013 condemning this practice of governments stopping or curtailing advertisements merely because the newspaper criticized the government or some minister or official ( see the press note on my blog). I also said that in a democracy the media has a right to criticize the government. In any case, I said, if the government wishes to stop or curtail its advertisements in some newspaper it must give the latter an opportunity of hearing, and then reasons for its decision, otherwise the rules of natural justice will be violated.

In its issues of 5.2.2013 and 7.2.2013 the Times of India complimented me, and published the views of several media persons who supported my stand ( see online).

(5) The article takes the stand that there should only be self regulation by the media. In my opinion self regulation is no regulation, it is an oxymoron. If self regulation were sufficient why should there be the rampant malaise of paid news, allegations of blackmail, Radia tapes, etc ? Why should there be laws at all ? Let everybody self regulate.

The truth is that every social activity has to be regulated in the public interest, because one's freedom cannot go to the extent of damaging society or others. A lawyer is in a free profession, but his license can be suspended by the Bar Council for professional misconduct, and a doctor's license can be suspended by the Medical Council for medical misconduct.A Judge can be impeached for misconduct.

Here I must make the distinction between regulation and control. In control there is no freedom, whereas in regulation there is freedom but subject to reasonable restrictions in the public interest. I am in favour of regulation, but am opposed to control. This regulation, too, should not be by the government but by an independent statutory authority, like the Press Council. The Press Council consists of a Chairman and 28 members, 20 of which are representatives of the press ( 5 are members of Parliament, and one each from the Bar Council of India, UGC and Sahitya Academy). The press representatives in the Press Council are not appointed by the government but elected democratically by the press bodies.Decisions in the Press Council are taken by majority vote, and not by me alone. Often I have been overruled by the majority.

At present the Press Council deals only with the print media, but if the electronic media is also brought within its purview by an amendment to the Press Council Act ( as The Press Council has recommended several times to the government) there may be 20 representatives of the electronic media also on the Council ( which can be renamed the Media Council).

Thus, 40 of the 48 members on the Council will be media representatives, and decisions on complaints will be by majority vote. This will really be a judgment by one's peers. In fact this proposal is more pro media than that of Lord Leveson, who in his report recommended that media persons should not be on the Media Council. What reasonable objection can there be to this suggestion ?

The article objects to criticism of content in the media. But what is wrong in such criticism ? Today India's main problems are socio -economic--massive poverty in about 80% of our people, massive unemployment, healthcare problems, farmers suicide, malnutrition,etc. as well as rampant casteism, communalism, and widespread crimes against women like dowry deaths, honour killings, etc.Yet the media focuses on film stars, cricket, fashion parades,astrology etc as if these are the real problems of the Indian people. Thus the real problems of the Indian people are sidelined or treated as non issues, and the non issues are projected as if they are the real issues. Sensationalism, trivialization, etc are the hallmarks of much ( though not all) of the Indian media today, obviously for T.R.P. rating and profits from advertisement revenues. Today I read that Hema Malini's younger daughter has been engaged. What a historical event !

Is not the Indian media behaving largely like Marie Antoinette who said that if the people do not have bread let them eat cakes.

The Roman Emperors used to say that if you cannot give the people bread give them circuses. Much of our media seems to say, if you cannot give the people bread give them film stars and cricket. Cricket today is the opium of the Indian masses, doled out by the media to the gullible public.

Today India is passing through a terrible transitional period in its history,transition from feudal agricultural society to modern industrial society,which in my opinion will last another 20 years or so. The transitional era is a very painful and turbulent period in history. If one reads the history of Europe from the 16th to the 19th centuries ( when Europe was passing through its transition) one finds that it was full of turmoil, wars, revolutions, social chaos, intellectual ferment,etc. It was only after going through this fire that modern society emerged in Europe. 

India is presently going through that fire. We are going through a very painful period in our history, which I guess will last another 20 years or so. In this transitional period the role of ideas becomes very important, and therefore the role of the media becomes very important, because the media is not an ordinary business which deals in commodities, it deals with ideas. It is the duty of all patriotic Indians, including media persons, to help shorten this transitional period and make it less painful, so that India becomes a modern, powerful, industrial power, with all its people ( and not just a handful) prosperous and leading decent lives, with food, employment, healthcare, education, etc available to the masses. For this it is essential for intellectuals, including the media, to promote modern and scientific ideas and combat backward and feudal ideas and practices like casteism, communalism and superstitions.

But is the Indian media doing its patriotic duty ? No doubt there are some media persons like P. Sainath who are doing a great job, but what about others ? Filmstars and cricket dominate much of or media. Many t.v. channels show astrology, which is promoting superstitions, when the media should promote scientific ideas. At a time when our nation should be united if we are to progress, a section of the media promotes communalism by demonizing Muslims and portraying them as terrorists. 

Historically, the media arose in Europe in the 18th Century as an organ of the people against feudal oppression. At that time all the organs of power were in the hands of the feudal authorities. Hence the people in England and France had to create new organs which would represent their interests. The print media was one of those powerful organs created by the people. In England, France and America the media represented the voice of the future, as contrasted to the established feudal organs which wanted to preserve the status quo. Great writers like Voltaire attacked religious bigotry, Rousseau attacked the entire feudal social and political system, Thomas Paine proclaimed the Rights of Man.

In my opinion the Indian media should give leadership to the people in the realm of ideas, the way Voltaire, Rousseau, Thomas Paine, etc did when Europe was passing through its transitional period. Instead of pandering to the low tastes of the Indian masses our media should seek to uplift its intellectual level so as to make our masses part of enlightened India.

I do not wish to comment any further on the issue. In fact it is with great reluctance that I have written this piece only because of the vicious attack on me, twisting and falsifying my views, a methodology to which I have now become quite accustomed.

Justice Katju

‘The Court of Last Resort’

‘The Court of Last Resort’

It has been felt for quite some time that injustice is being done to a large number of people who have been languishing in jail either as under trials whose cases have not been heard for several years, or who have unjustly remained incarcerated, either because:

      (1)  The police have fabricated evidence against them, or

      (2)  For want of proper legal assistance, or

     (3)  Who have had to spend many years in jail and ultimately found innocent by the court.

Many of such persons in jail belong to minorities who have been accused only on suspicion and on pre-conceived notions that all persons of that community are terrorists. Whenever a bomb blast or such other terrorist event occurs, the police often is unable to trace out the real culprit, and yet it has to show that it has solved the crime. Consequently very often the police rushes to implicate and charge a large number of youths of that minority community on mere suspicion, whose bail application is very often rejected and consequently they have to spend several years in jail. In such matters either the police often fabricates evidence against them to justify their acts and secure conviction, or the cases result in acquittal of innocent accused persons after they have spent several years in jail. A classic case is of that of a young boy Aamir who was 17 years of age when arrested, and who spent 14 years in jail after which he was found innocent.

In the 6^th April 2013 issue of Tehelka there is an excellent article by Shoma Chaudhry entitled , ‘The Fight for Muslims is fundamental for the survival of Democracy’. In this article she has stated that over the past few years TEHELKA journalists have documented hundreds of stories of innocent Muslims languishing in jail after being brutally tortured on flimsy or false charges. Each case hides hair raising stories about prejudice, incompetence and deliberate malafide, and also mentions stories of pain, destroyed lives and hollowed futures.

Shoma writes that innocent Muslims have been jailed with impunity in India over the past decade because it was easy to jail them. Within hours of any terror attack, a bunch of Muslim boys would be arrested, and their names aired in the media as ‘Masterminds’. Their guilt was assumed, it did not need to be proved.

Since 2001 a terrible maxim had seeped into the Indian mainstream: All Muslims may not be terrorist, but all terrorists are Muslims. It did not matter if you caught the wrong ones. Everyone only wanted the illusion of security and “action taken”. Those who raised hard questions were scorned as ‘anti-national’.

In my interview with Karan Thapar on ‘Devil’s Advocate’ I said that within hours of a terrorist attack in India many media channels start showing that an email or SMS has been received from ‘Indian Mujahideen’ or ‘Jaish-e-Muhammad’ or ‘Harkat-ul-Jihad’, or some other organization having a Muslim name, claiming responsibility. Now an email or SMS can be sent by any mischievous person. But by showing this on TV screens, and the next day in print, subtle message is sent that all Muslims are terrorists, and thus the entire community is demonized.

All this is triggering new cycles of hate and revenge. Despair turns citizens into perpetrators, from the hunted to the hunter. Young men who have spent long years in jail cannot find jobs or houses to rent even when acquitted, their families are ostracized, and sisters find themselves unmarriageable because their brothers have been branded as terrorists.

Unless this cycle of hate is now reversed we are heading for terrible times, for injustice breeds hatred and violence

Criminal investigation is a science, but unfortunately in our country the police usually is not trained in scientific investigation nor does it have the equipment for the same. If we read the stories of Sherlock Holmes, we see how Holmes investigates a crime by promptly going on the spot and studying the finger prints, blood stains, soil, ashes, handwriting etc. before coming to a scientific conclusion. In recent times it has been shown on Discovery Channel etc. how the American police investigates a crime. The police reach the spot and collects the traces of the material there including blood stains, fingerprints, ashes, fibres, etc. The finger prints are fed into a computer which is connected to a national computer network, which can often lead to the discovery of the criminal. The blood stains etc. are taken to a laboratory where they are tested for DNA etc. Even a few microscopic fibres can lead to the discovery of the culprit by testing them in a laboratory and thus finding out his identity.

All this is usually absent in our police set up and yet the police has to show that it has solved the crime, otherwise the investigating officer fears suspension for incompetence. Consequently  he either implicates people on suspicion or resorts to the time honoured method of torture or third degree methods to obtain a confession.

All this is leading to injustice on a large scale. We are not blaming the courts for this because they are handicapped due to the enormous burden of litigation for which cases linger on for years and years. Also, unfortunately nowadays the real eye witnesses are afraid to give evidence out of fear of threats or harassment, and hence the police often fabricates evidence.

The result of all this is that in our country gross injustice is often done, particularly to minorities, and the time has now come when this great wrong must be set right. Our country is a country of great diversity and therefore no community must be made to feel that it is being selectively victimised.

This being the situation it has been decided by a group of people headed by Justice Markandey Katju, former Judge, Supreme Court of India, and the eminent lawyer Mr. Majeed Memon, the film producer and social activist Mr. Mahesh Bhatt, Mr. Asif Azmi and other like-minded people to setup an organisation called ‘The Court of Last Resort’.

The concept of this idea has come from an organisation founded way back in 1948 by the eminent American criminal lawyer Erle Stanley Gardner, who later wrote the Perry Mason novels. In his book ‘The Court of Last Resort’, Erle Stanley Gardner mentions about the organisation which he set up consisting  mainly of lawyers, who took up cases of persons whom they thought  were wrongly accused or unjustly convicted. The organisation which we are starting in India will bear the same name ‘The Court of Last Resort’ and have its headquarters in New Delhi, with Justice Katju as its patron and will have state units in all states of India. Such state units will be authorised to appoint district units.

‘The Court of Last Resort’ will have the following objects:

(1)  To ask the concerned authorities in various states about details of prisoners languishing in jails, particularly those who have been in jail for long periods, including both under trials and convicts. The R.T.I. Act can be used in this connection.

(2)  To examine the cases of persons, whether of our own accord, or on the representation of someone, and find out whether there has been injustice in their case, either by the delay in holding the trial, or by a wrong conviction, and do the needful in this connection, including applying for bail.

(3)  To apply for pardon, respite, suspension or reduction of sentence   to the President or Governor as the case may be.

(4)  To create awareness in the public about this gross injustice which is being done to a large number of people.

(5)  To educate the police about this state of affairs and change its mentality.

(6)  To approach the other concerned authorities with the aim of rectifying this injustice to a large section of people.

(7)  To do such other acts as may be necessary for this purpose.

The organisation appeals to the like-minded people among the public, particularly to lawyers, retired judges, academicians, students, social activists, professionals, media persons , etc. to help and get associated with this enterprise.

The formal inauguration of this body will be done through a press conference in the near future.

It is made clear that this is being  done for no personal benefit to any of us but purely because of our sincere desire that justice should be done to everybody, and no section of society is made to feel that it is being discriminated against.

Reply to Young Students Tanaya and Aditya

Dear Tanaya and Aditya,

            I have received your email, and am giving my reply, but before doing so in detail I wish to make some preliminary remarks:

1. I have been misquoted in the press reports, but it is true that I have said that 90% Indians (not all) are fools. My intention in saying so was not to hurt anyone but to awaken people to the realities, that is, the widespread casteism, communalism, superstitions, and other backward traits in the mindset of a large section of our people which is blocking our progress and keeping us poor.

2. The figure 90% is not a mathematical figure, it simply means that in my opinion a large proportion of Indians (and again I repeat, not all) are fools.

3. I never named you, nor any community, caste, or sect, and I never said that you are in the category of 90%. Hence I do not see how you are defamed.

4. I made this comment not to humiliate or harm anyone but because I love the Indian people, they are my people, and I wish them to prosper and have decent lives, which is only possible if the Indian masses develop the scientific outlook and scientific temper and give up casteism, communalism, superstitions and other mental attitudes which a large part (not all) of them presently suffer from. I wish to see India in the front ranks of the advanced industrialized nations of the world, with our people having a high standard of living, instead of suffering from the present evils of massive poverty, unemployment, price rise, corruption, farmer’s suicides, child malnutrition, absence of health care and good education, casteism etc. So you see I made that statement not to harm the Indian people, whom I love, but to benefit them. The truth is sometimes bitter, but sometimes bitter medicine has to be given to an ailing person.
Having said this, I may proceed to give a more elaborate explanation.
 I wish to first of all clarify that I do not regard Indians as inherently stupid or foolish. It is only at present that large parts of our people are foolish. But there was a time when we were leading the whole world in science and technology, and India was perhaps the most prosperous country in the world. It is now that we are having bad times, but we had a glorious past and shall have a glorious future too, but for that we have to get rid of casteism, communalism, superstitions and other backward traits in the mentality of a large part of our people (because of which I call them fools).

India’s Past

With the aid of science we had built mighty civilizations thousands of years ago when most people in Europe( except in Greece and Rome) were living in forests. We had made outstanding scientific discoveries e.g. decimal system in mathematics, plastic surgery in medicine, etc (see in this connection my article ‘Sanskrit as a Language of Science' ). However, we subsequently took to the unscientific path of superstitions and empty rituals, which has led us to disaster. The way out of the present morass is to go back again to the path shown by our scientific ancestors, the path of Aryabhatta and Brahmagupta, Sushrut and Charak, Panini and Patanjali, Ramanujan and Raman.

It is not necessary to mention here all the great achievements of our ancestors, but I may just mention a few.

      1.  The decimal system in mathematics was the most remarkable and revolutionary invention in the past, and it was created by Indians. To understand its significance, one must know that the ancient Romans, who built a great civilization (The civilization of Caesar and Augustus), felt very uncomfortable with numbers above 1000. This was because they expressed their numbers in alphabets, I standing for 1, V for 5, X for 10, L for 50, C for 100, D for 500, and M for 1000. There was no single alphabet expressing a number above 1000. Hence to write 2000 an ancient Roman had to write MM, to write 3000 he had to write MMM, and to write 1 million he had to write M one thousand times, which would drive him crazy.  
     On the other hand, our ancestors discovered the number 0, and hence to write 1 million they had simply to put 6 zeros after 1.
   

     2.  Plastic surgery was invented by Sushrut 2000 years ago, whereas Europeans invented it only about 100 or 200 years back.

      3.   The English alphabets are all arranged haphazardly, there is no reason why D is followed by E, or E by F, or F by G, etc. On the other hand Panini in the first 14 sutras of his Ashtadhyayi arranged the alphabets in Sanskrit scientifically. Thus , the first sequence of 5 consonants (the  ka varga i.e. ka, kha, ga, gha, na ) are all sounds which emanate from the throat, the second sequence from the middle of the tongue, the third from the roof of the mouth, the fourth from the tip of the tongue, and the fifth from the lips. The second and fourth consonants in each sequence are aspirants in which the sound ‘ha’ is combined with the previous consonant e.g. ka+ha =kha.

  

     4.  5000 years ago in the Indus Valley Civilization the system of town planning was created with straight streets, covered drains, water and sewage system, etc

5.  Before the coming of the British India was a prosperous country. Its share in world trade in    1700 was about 30%, which fell to 2% by the end of British rule and is still not more than 3%. 

  
  India’s Present

Today there is no doubt that India is a poor country. While there are some pockets of affluence, about 80% of our people are afflicted with poverty, unemployment and other evils, and one major cause of this is the mental backwardness of a large part of our people.

(though there are also brilliant people like the Indian scientists and engineers in Silicon Valley)

 Consider the following:

1. When most of our people go to vote they cast their votes on the basis of caste or religion, not the merit of the candidate. What else is the meaning of vote banks? And this is exploited by some unscrupulous politicians who know how to manipulate and manage these vote banks. That is why many persons with criminal backgrounds get elected.

2.  ‘Honour’ killings are common in many parts of the country. This is a barbaric practice, and shows how backward many of us still are.

3. Dowry deaths are common in India, and as a former Judge I can tell you that our courts have a large number of cases of young married women who are murdered in a barbaric manner by their in laws for not getting dowry e.g. by pouring petrol on them and setting them on fire.

4. Scheduled castes are still often treated inhumanly, and an example is the recent attack on dalits in  Dharmapuri district in Tamil Nadu.

5. Female foeticide is common in many parts of India. Often when a male child is born the relatives are happy and distribute sweets, but when a female child is born often relatives get dejected. This is also a sign of backwardness among many of us.

6. Communalism, which was almost non-existent in 1857, is widespread in our society today. Muslims often face discrimination in getting jobs, houses on rent, etc, as the Justice Sachar Committee report has highlighted.  Muslims are often falsely implicated in bomb blasts and they have to spend years in jail though ultimately found innocent.

As I mentioned, upto 1857 communalism was almost non-existent in India. There were no doubt differences between Hindu and Muslims, but there was no enmity between them. In the Mutiny of 1857 Hindus and Muslims jointly fought against the British. After crushing the Mutiny the British decided that the only way to control India was divide and rule. Consequently, the policy came from London to create hatred between Hindus and Muslims. The British Collector used to secretly call the Panditji and gave him money to speak against the Muslims, and similarly he gave money to the Maulvi Saheb to speak against Hindus. All communal riots began after 1857. The communal award in the Minto-Morley ‘Reforms’ of 1909 introduced separate electorates for Hindus and Muslims. Year after year, decade after decade, the communal poison was injected by the British into our body politic, and even after 1947 there are elements which continue this (see online ‘History in the Service of Imperialism’ and my article ‘What is India’ on my blog justicekatju.blogspot.in)

            Certain agent provocateurs take advantage of our backwardness to incite communal riots, and unfortunately many people fall prey to these evil designs and get emotionally carried away by communal propaganda and fight with each other.

5. Superstition is rampant in India. Most people believe in astrology, which is pure superstition and humbug. And it is not just the illiterates who believe in it, it is also most of the so called educated people in India. Many Ministers and Judges prefer to take oath of office at the ‘auspicious’ time.

            A few years back it was announced that Lord Ganesh is drinking milk, and there was a rush of people to offer milk to Ganesh. Earlier, a ‘miracle’ chapati was circulating.

6. A large section of the media, taking advantage of the backwardness of a large section of our people, dishes out lives of filmstars, cricket, etc as if these are the real issues before the people, when the real issues are socio-economic.

            As I said above, when I called most people(not all)  fools I did not wish to harm them, rather it was just the contrary. I want India to become a prosperous country, but this is possible only when the mindset of a large number of people changes, and their minds are rid of casteism, communalism, superstitions, and other backward ideas and they become scientific and modern.

            By being modern I do not mean wearing a nice suit or a beautiful sari or skirt. By being modern I mean developing a modern mind, which means a rational mind, a scientific mind, and a questioning mind. As already stated above, at one time we led the whole world in science and technology, but today we are undoubtedly far behind the West and even China. How did this happen? Why were we left behind, why did we not have an Industrial Revolution like Europe? This is known as ‘Needham’s Question’ or ‘Needham’s Grand Question’, named after Prof. Joseph Needham of Cambridge University (1900-1995). It is high time Indians try to answer this question, instead of trying to evade the reality of the backwardness of most of us.

            The worst thing in life is poverty, and 80% of our people are poor, which is largely because of the mental backwardness of most (not all) of us. To abolish poverty we need to spread the scientific outlook to every nook and corner of our country. It is only then that India will shine. And until that happens the vast majority of our people will continue to be taken for a ride.

                                                                                               - Justice Markandey Katju

                                                                                                     

            

          

             

The Philosophy of Judicial Restraint

I have expressed my views about the Pakistan Supreme Court and its need to maintain judicial self restraint in some articles which have been published in Express Tribune and elsewhere.

However, in view of the judicial turmoil currently prevailing in Pakistan because of some highly controversial orders passed by the Pakistan Supreme Court, particularly the order ousting the Prime Minister, a clear elaborate enunciation of the philosophy of judicial restraint is called for. This in my opinion is necessary because it is evident that the Pakistan Supreme Court, particularly its Chief Justice, have for some time embarked on a perilous path of confrontation with the political authorities, for reasons best known to themselves, which can only have disastrous consequences, not only for the judiciary but also for the entire country.

In a recent statement, the Chief Justice has said that it is the Constitution, not Parliament, which is supreme in the country. There is no controversy about this legal position, and indeed that is the settled law since the historical decision of the U.S. Supreme Court in Marbury vs. Madison (1803).

The grave problem, however, which Courts are often faced with is this: on the one hand there is no doubt that the Constitution is the supreme law of the land and prevails over statutes and executive decisions, and it is for the Courts to interpret the Constitution, on the other hand, in the garb of interpretation, the Court must not seek an unnecessary confrontation with the legislature, particularly since the legislature consists of representatives democratically elected by the people.

The solution to the problem was provided in the classical essay written in1893 (and published in the Harvard Law Review the same year) by Prof. James Bradley Thayer, the then Professor of law of Harvard University entitled 'The Origin and Scope of the American Doctrine of Constitutional Law'. This essay elaborately discusses the doctrine of judicial restraint and explains why Courts should follow it.

  

Justice Holmes, Brandeis, and Frankfurter of the U.S.Supreme Court were followers of Prof. Thayer's philosophy of judicial restraint. Justice Frankfurter referred to Thayer as "the great master of Constitutional Law", and in a lecture in Harvard Law School said:

"If I were to name one piece of  writing on American Constitutional Law, I would pick Thayer's once famous essay, because it is a great guide for Judges, and therefore the great guide for understanding by non-judgesof what the place of the judiciary is in relation to Constitutional questions."

The Court certainly has power to decide Constitutional issues. However, as pointed out by Justice Frankfurter in West Virginia State Board of Education vs. Barnette 319 U.S. 624 (1943), since this great power can prevent the full play of the democratic process, it is vital that it should be exercized with rigorous self restraint.

The philosophy behind the doctrine of judicial restraint is that there is broad separation of powers under the Constitution, and the three organs of the State, the legislature, the executive, and the judiciary must respect each other, and must not ordinarily encroach into each other's domain, otherwise the system cannot function properly. Also, the judiciary must realize that the legislature is a democratically elected body which expresses the will of the people (however imperfectly) and in a democracy this will is not to be lightly frustrated or thwarted.

Apart from the above, as pointed out by Prof. Thayer, judicial overactivism deprives the people of " the political experience and the moral education and stimulus that comes from fighting the problem in the ordinary way, and correcting their own errors".

  
In Asif Hameed vs. The State of J&K, AIR 1989 S.C. 1899 (paragraphs 17 to 19 ) the Indian Supreme Court observed:

"Although the doctrine of separation of powers has not been recognized under the Constitution in its absolute rigidity, the Constitution makers have meticulously defined the functions of various organs of the State. The legislature, executive, and judiciary have to function within their own spheres demarcated in the Constitution. No organ can usurp the function of another.--While exercize of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercize of power is the self imposed discipline of judicial restraint."

As observed by Justice Frankfurter in Trop vs. Dulles (1958):

"All power is, in Madison's phrase, of an encroaching nature. Judicial power is not immune against this human weakness. It must be on guard on going beyond its proper bounds, not the less so since the only restraint upon it is self restraint.--The Court must observe a fastidious regard about limitation of its own power, and this precludes the Court's giving effect to its own notions of what is wise and politic. That self restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgement on the wisdom of what the legislative and executive branch may do."

As observed by Justice A.S.Anand, former Chief Justice of India:
 

"Courts have to function within the established parameters and Constitutional bounds. With a view to see that judicial activism does not become judicial adventurism the Courts must act with caution and proper restraint. They must remember that judicial activism is not an unguided missile. Failure to bear this in mind would lead to chaos. Public adulation must not sway the judges. They must remember that they cannot run the government."

Judicial restraint is particularly important for the Supreme Court for two reasons:

(1) Of the three organs of the State, only one of them, the judiciary, is empowered to declare the limits of jurisdiction of all the three organs. This great power must therefore be exercised by the judiciary with the utmost humility and self restraint.

(2) The errors of the lower courts can be corrected by the higher courts, but there is none above the Sipreme Court to correct its errors.

Some people justify judicial activism by saying that the legislature and executive are not properly performing their functions. The reply to this argument is that the same charge is often leveled against the judiciary. Should the legislature or executive then take over judicial functions? If the legislature or executive are not properly performing their functions it is for the people to correct them by exercising their franchise properly, or by peaceful and lawful public meetings and demonstrations, and/or by public criticism through the media and by other lawful means. The remedy is not in the judiciary taking over these functions, because that would not only be against the separation of powers in the Constitution, but also because the judiciary has neither the expertise nor the resources to perform these functions.

In this connection I may quote from the article 'The influence of James B.Thayer upon the work of Justices Holmes, Brandeis, and Frankfurter' by Wallace Mendelson published in 31 Vanderbilt Lae Review 71 (1978):

"If, then, the Thayer tradition of judicial modesy is outmoded, if judicial aggression is to be the rule, as in the 1930s, some basic issues remain:

First,how legitimate is government by Judges? Is anything to beyond their reach? Will anything be left for ultimate resolution by the democratic process, for, what Thayer called" That wide margin of considerations which address themselves only to the practical judgment of a legislative body representing (as Courts do not) a wide range of mundane needs and aspirations?

Legislation is a process slow and cumbersome. It turns out a product--laws--that rarely are liked by everybody, and frequently little liked by anybody. When seen from the shining cliffs of perfection the legislative process of compromise appears shoddy indeed. But when seen from some concentration camp as the only alternative way of life, the compromises of legislation appear but another name for what we call civilization.

Let philosophy fret about ideal justice. Politics is our substitute for civil war. It is far too wise to gamble for Utopia or nothing, to be fooled by its romantic verbiage. By give and take, the legislative process seeks not final truth, but an acceptable balance of community interests. In this view, the harmonizing and educational function of the legislative process itself counts for more than any of its products. To intrude upon its pragmatic adjustments by judicial fiat is to frustrate our chief instrument of social peace.

Second, if the Supreme Court is to be the ultimate policy making body without accountability, how is it to avoid the corrupting effects of raw power? Also, can the Court satisfy the expectations it has aroused?

Third, can nine men (the Supreme Court Judges) master the complexities of every phase of American life? Are any nine men wise enough and good enough to wield such power over the lives of millions? Are Courts institutionally equipped for such burdens? Unlike legislatures, they are not representative bodies reflecting a wide range of social interest. Lacking a professional staff of trained investigators, they must rely for data almost exclusively upon the partisan advocates who appear before them. Inadequate or misleading information invites unsound decisions.

Finally, what kind of citizens will such a system of judicial activism produce, a system that trains us to look not to ourselves for the solution of our problems, but to the most elite among elites:nine Judges governing our lives without politiclal or judicial accountability? Surely this is neither democracy nor the rule of law."

In this connection Justice Frankfurter,while Professor of Law at Harvard University, wrote in 'The Public and its Government':

"With the great men of the Supreme Court Constitutional adjudication has always been statecraft. As a mere Judge Marshal had his superiors among his colleagues. His supremacy lay in his recognition of the practical needs of government."

A classical example of this is Marshal's judgment in Marbury vs. Madison(1803), in which while avoiding confrontation with the government of President Jefferson he upheld the supremacy of the Constitution. Another example is the very recent judgment of Chief Justice John Roberts in the Affordable Healthcare Act case, in which he basically followed the doctrine of judicial restraint.

In my opinion,  adjudication must be done within the system of historically validated restraints and conscious minimization of the Judges personal preferences.

As observed by the Indian Supreme Court in State of Bihar vs. Kameshwar Singh, AIR1952 S.C. 252(274):

 "The legislature is the best judge of what is good for the community, by whose suffrage it comes into existence."

In Divisional Manager, Aravali Golf Course vs. Chander Haas (2006) the Indian Supreme Court observed (vide paragraph 20):

 "Judges must 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 of the organs of the state must have respect for the others and must not encroach into each other's domain."

A similar view was taken in Government of Andhra Pradesh vs. P. Laxmi Devi (see from paragraphs 47 onwards).

In Lochner vs. New York, 198 U.S. 45(1905) Mr. Justice Holmes in his dissenting judgment criticized the majority of the Court for becoming a super legislature by inventing a 'liberty of contract' theory, thereby enforcing its own laissez faire economic philosophy. Similarly, in his dissenting judgment in Griswold vs. Connecticut, 381 U.S. 479 (1965) Mr. Justice Hugo Black warned that "unbounded judicial creativity would make the Court into a day-to-day Constitutional Convention." In 'The Nature of the Judicial Process' Mr. Justice Cardozo observed: "The Judge is not a Knight Errant roaming at will in pursuit of his own ideal of beauty and goodness." In 'Some Reflections on the Reading of Statutes' Justice Frankfurter pointed out that great Judges have constantly admonished their brethren of the need for discipline in observing their limitations.

In this connection reference may usefully be made to the well known episode in the history of the U.S. Supreme Court when it dealt with the New Deal legislation initiated by President Franklin Roosevelt soon after he assumed office in 1933. When the overactive Court kept striking down this legislation President Roosevelt proposed to pack the Court with six of his nominees. This threat was enough, and it was not necessary to carry it out. In 1937 the court changed its confrontationist attitude and started upholding the legislation (see WestCoast Hotel Vs. Parrish ). "Economic due process" met with a sudden demise.

The moral of this story is that if the judiciary does not maintain restraint and crosses its limits there will be a reaction which may do great damage to the judiciary, its independence, and its respect in society.

It is not my opinion that a Judge should not never be activist. Sometimes judicial activism is a good and useful thing, such as in the School Segregation and Human Rights cases decided by the U.S. Supreme Court, e.g. Brown vs. Board of Education, Miranda vs. Arizona, Roe vs. Wade, etc or the decisions of the Indian Supreme Court expanding the scope of Articles 14 and 19 of the Indian Constitution. Such activism should, however be done only in exceptional and rare cases, and ordinarily Judges should exercise self restraint.

In Dennis vs. U.S. (1950) Justice Frankfurter observed:

"Courts are not representatine bodies. They are not designed to be a good reflex of a democratic society. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when Courts become emroiled in the passions of the day, and assume primary responsibility in choosing between competing political, economic, and social pressures".

The Pakistan Supreme Court would be well advised to heed these words of wisdom, even at such a late stage.

Justice Markandey Katju

Former Judge, Supreme Court of India

Published in The Express Tribune, July 12^th, 2012.