Our Democracy has become an Empty Shell

Democracy is a feature of an industrial society, not a feudal society. When India became independent in 1947 India was largely feudal,because the British policy was to keep India largely unindustrialized (because if it industrialized it would become a strong rival to British industry). After independence, Pandit Nehru and his colleagues, who were modern minded persons,were determined to set up a heavy industrial base in India. They enacted a modern democratic Constitution, borrowing from Western models, with freedoms of speech and religion, liberty, equality, etc., which was transplanted from above on our largely feudal society.The Founding Fathers thought that this modern Constitution would pull our feudal society into the modern age. The Constitution did help India to some extent, we did partially industrialize and made some progress, e.g. women were educated, we produced a large pool of engineers, technicians, doctors, scientists, etc. However mid way after Independence the feudals hijacked our democracy, and caste and religious vote banks became the normal feature in most parts of India. Most people vote on caste and religious lines, instead of seeing the merit of the candidate. This has blocked our progress. Democracy is not meant to be run in this manner.

Little Red Riding Hood

Please see my article " Little Red Riding Hood " http://www.newslaundry.com/2013/01/little-red-riding-hood/ and let me have your views.

The Age of Transition

We are presently in India living in a transitional period of our history, the transition being from feudal agricultural society to modern industrial society.
A transitional period is a period of great turbulence and turmoil, as a study of the history of Europe from the 17th to the 19th century, when Europe was passing through its own transition, reveals. During this period in Europe there was great turbulence, wars, social churning, chaos, revolutions, intellectual ferment,etc. There were theories of Voltaire, Rousseau, the Encyclopaedists, etc which were advanced. It was only after going through this fire that modern society emerged in Europe. India is presently going through this fire. We are going through a very painful period in our history.

In our Shastras it is mentioned that there are four yugas- Satyug, Tretayug, Dwaparyug and Kaliyug. After Kaliyug there is a period known as pralaya, after which Satyug again starts. This pralaya can be regarded as the transition period of turbulence and turmoil, and India is going through this period, after which there will again be a age of prosperity (Satyug) for our country. Kaliyug and Pralaya have been described in the sixth chapter of Vishnupuran, which strikingly bears resemblance to what is happening in India today. For example, there is mention therein :

1) In Kaliyug the powerful will rule over everybody, whether he is a good man or bad man.

2)In Kaliyug whatever nonsense anyone will say will be regarded as Shastras (a learned discourse)

3) In Kaliyug wives will leave husbands who are poor, and only the rich people will be the husbands of women.

4) In Kaliyug people will go only after money and not after knowledge.

5) In Kaliyug people will not help even their near and dear ones.

6) In Kaliyug many people will commit suicide (In recent years 250,000 farmers have committed suicide).

7) In Kaliyug the kings will not protect their subjects, but instead will take away their subjects property in the name of taxation.

8)In Kaliyug the weak will become slaves.

9) In Kaliyug many children will die at an early age. (Today many children in India die because of malnutrition, cold, etc)

10) In Kaliyug foolishness (Paakhand) will grow.(Today in India most people are casteist and communal, and believe in superstitions like astrology).

As regards pralaya it is mentioned that in this period there will be no water, because of which people will die. (Today there is great water shortage in large parts of India). Various other descriptions of pralaya are also given in Vishnupurana

We should not give a literal interpretation to all that is mentioned in the sixth chapter of Vishnupurana, but it certainly gives an idea about the great turbulence and turmoil which takes place in a period of transition.It shows that our ancestors, who had great vision, had a dynamic,not static , understanding of history.

I urge all patriotic and modern minded people of India, particularly the youth, to come forward and help the country in this difficult transitional period.

A Fair Hearing means Hearing through Counsel

You say that the accused have confessed to the crime. But we all know how 'confessions' are obtained in our country--- often by third degree methods. Under torture one will confess to anything. One does not doubt the heinous nature of the offence, but the main question will be of identity. Whoever has done the crime undoubtedly deserves harsh punishment. But the question is whether the persons in custody are the real culprits. This has to be established by the prosecution beyond reasonable doubt, and the accused must be allowed a proper defence, including the right to cross examine the prosecution witnesses through their counsel. Unless a lawyer is permitted to represent the accused there will be no fair trial, because a layman does not know the art of cross examination, he does not know the rules in the Criminal Procedure Code or in the Evidence Act, he cannot determine whether the charge against him is valid in law, whether the evidence being led against him is inadmissible or irrelevant, etc That is why in serious cases a hearing to be fair means a hearing through counsel

A Disgrace

It is reported that some members of Saket Bar Association created a disorderly scene yesterday at the time when the Delhi gangrape accused were produced in Court, and shouted at a lawyer, Mr Manohar Lal Sharma, who wanted to appear for the accused. It is also reported that some members of an N.G.O. Pragatisheel Mahila Sangathan shouted at Mr. Sharma and Mr. Anand who wanted to appear for
the accused saying that they should not appear for them since they are accused of a serious crime. If these reports are correct it is disgraceful. Every person accused of a crime, however heinous and despicable it is alleged to be, has the right to be defended, as Article 22 of our Constitution states. Those lawyers who behaved like this and created a turmoil in Court, as reported, so much so that the Judge had to rise and go to her chamber, not only deserve to be punished for Contempt of Court, they
should also be proceeded against by the Bar Council for breach of professional ethics. As observed by the Supreme Court in A.S. Mohammed Rafi vs. State of Tamil Nadu (see online), every person accused of a crime, however heinous, wicked and vicious it may be regarded by society, has a right to be defended in Court, and it is the duty of the lawyer to defend. If this principle is not observed democracy
and the rule of law will collapse, and lynch law will follow.

A dirty job, but somebody's got to do it

The Bar Association of Saket's s resolution that none of its lawyers will defend the accused in the Delhi gangrape case is not only illegal but also against all traditions of the bar and professional ethics.

As observed in AS Mohammed Rafi vs State of Tamil Nadu, AIR 2011 SC 308.

"Every person, however wicked, depraved, or repulsive he may be regarded by society has aright to be defended in a court of law, and correspondingly it is the duty of the lawyer to defend him."

When the great revolutionary writer Thomas Paine was tried for treason in England in 1792 for writing his famous pamphlet titled 'The Rights of Man' in defence of the French Revolution, the great advocate Thomas Erskine was briefed to defend him. Erskine was at that time the Attorney General for the Prince of Wales and he was warned that if he accepted the brief, he would be dismissed from office. Undeterred, Erskine accepted the brief and was dismissed from office.

However, his immortal words in this connection stand out as a shining light even today: "From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in court where he daily sits to practise, from that moment the liberties of England are at an end. If the advocate refuses to defend from what he may think of the charge or of the defence, he assumes the character of the Judge; nay he assumes it before the hour of the judgment; and in proportion to his rank and reputation puts the heavy influence of perhaps a mistaken opinion into the scale against the accused in whose favour the benevolent principles of English law make all assumptions, and which commands the very Judge to be his Counsel".

Indian lawyers have followed this great tradition. The revolutionaries in Bengal during British rule were defended by our lawyers, the Indian communists were defended in the Meerut conspiracy case, Razakars of Hyderabad were defended by our lawyers, Sheikh Abdullah and his co-accused were defended by them, and so were the alleged assassins of Mahatma Gandhi and Indira Gandhi.

In recent times, Binayak Sen has been defended and so was 26/11 terrorist Ajmal Kasab. No Indian lawyer of repute has ever shirked responsibility on the ground that it will make him unpopular or that it is personally dangerous for him to do so. It was in this great tradition that the eminent Bombay High Court lawyer Bhulabhai Desai defended the accused in the INA trials in the Red Fort at Delhi (November 1945-May 1946).

In this connection reference may be made to the legendary American lawyer, Clarence Darrow, 1857-1938 (see his biography, Attorney for the Damned), who took up cases of persons regarded as vile, depraved and loathsome by society for instance, brutal killers, terrorists, etc, whose brief no other lawyer would touch because he believed that everyone had a right to be defended.

Article 22(1) of the Constitution states: "No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice".

Chapter II of the Rules framed by the Bar Council of India states: "An advocate is bound to accept any brief in the courts or tribunals or before any other authorities in or before which he proposes to practise at a fee consistent with his standing at the bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief."

Professional ethics require that a lawyer cannot refuse a brief, provided a client is willing to pay his fee, and the lawyer is not otherwise engaged. Hence, the action of any Bar Association in passing a resolution that none of its members will appear for a particular accused, whether on the ground that he is a suspected terrorist, rapist, mass murderer, etc, is against all norms of the Constitution, and professional ethics. It is against the great traditions of the bar which has always stood up for defending persons accused of a crime. Such a resolution is, in fact, a disgrace to the legal community. 

All such resolutions of Bar associations in India are null and void and the right-minded lawyers should ignore and defy such resolutions if they want democracy and rule of law to be upheld in this country.

( Markandey Katju is chairman, Press Council of India, and former judge, Supreme Court of India )

  Published in Hindustan Times on 01/01/2013

Why the middle class is at the barricades

Corruption yesterday, sexual violence today, the middle class is protesting because its real income has been eroded

The agitation in Delhi and many other parts of the country over the recent gangrape of a young woman (the victim unfortunately died), reminds me of the Anna Hazare-led agitation against corruption. Just as the latter fizzled out in a few weeks’ time, I predict that this agitation too will soon fizzle out. And just as the Hazare mobilisation has not led to the reduction of corruption in the country by even 0.1 per cent, so also the present agitation will not lead to anything.

Of course, I would like to see the culprits severely punished under the law. What I have to say, however, is this. First, serious problems are not solved by emotional outbursts such as we are seeing (hyped, no doubt, by many of our TV channels), or even by amendment of the law (as some are advocating), but by great social change. Second, gangrape is not the only serious issue before the nation, as some people seem to be contending. There are several equally, if not more, serious issues facing the nation. For example, massive poverty, high rates of child malnutrition and farmer suicide, abysmal healthcare and education for our masses, massive unemployment, skyrocketing prices, etc. Our TRP-led media does not hype these equally, if not more, serious issues and we seldom see huge crowds of middle-class people at Jantar Mantar or on Ramlila Grounds or at India Gate agitating against these issues.

In my opinion, however, the Hazare agitation and the present agitation against the gangrape are symptomatic of a deeper malady in the country, and it is this: there is great discontent in our middle classes, which is making them go to the streets. What the cause of this deep discontent is, is what has to be examined.

India has a population of about 1.2 billion, of which 80 per cent or so are poor. However, there is also a middle class of about 15-20 per cent of the population, which emerged after Independence (due to a certain degree of industrialisation) and which enjoys a higher standard of living and higher incomes than the 80 per cent poor in our country. It is this middle class that is responsible for the relative stability of India after Independence (there was no civil war in India, for example). This middle class provided a market for our industries, which in turn provided employment to many of our youth.

However, over the last few years, real income and consequently the standard of living of the middle class has rapidly eroded due to steep price rise, worldwide recession (which has impacted India too, resulting in rise in unemployment), etc. Suppose someone was earning Rs 20,000 per month. If prices double, his real income becomes Rs 10,000, though ostensibly he appears to be still earning Rs 20,000 (because income is relative to the level of prices).

This is the real cause of the discontent in the middle class in India and it is the real factor driving them to the streets. Hence, if the apparent issue behind the recent agitations had not been corruption or gangrape (and I agree these are serious issues), there would have been some other serious issue (and there are dozens of other serious issues in our country) on which some of our middle classes would have taken to the streets.

It is this deep discontent in our middle classes (for the reasons I have mentioned) that is converting the period of stability India has enjoyed since Independence to a period of instability. 

If the people at the helm of affairs do not understand and seriously address this malady, I am afraid India is entering a prolonged period of chaos and anarchy.

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

Published in The Indian EXPRESS on 07/01/2013.

Alice in Wonderland

Once upon a time a little girl called Alice was dozing one summer afternoon on a meadow when she saw a strange sight. A white rabbit wearing a blue coat was running on its hind legs, looking at his watch and saying "I am late". Alice got up and ran after him, but the rabbit jumped into a hole in the ground. Alice followed the rabbit into the hole, and she fell and fell, until she landed with a loud thump somewhere far below.

She got up and saw a strange sight. A group of young women were walking in a procession carrying placards on which were written "Hang the rapists', 'Castrate all men', 'Stone them to death' etc.

Alice silently followed this marvellous procession. At one place a child in tatters came upto the procession and asked for some bread as he was hungry. "Get lost" said one of the young ladies, "Hunger is nonsense. The only real issue in the world is rape. Have you been raped ?". "No", replied the child,"but I have not eaten for two days". The ladies retorted "Then you have no problem. The only problem in the world is rape. Hunger is Maya, an illusion, as Vedanta philosophy teaches. The only reality is rape", and saying so the procession moved on, with Alice following.

They then came across a poor woman carrying a sick child in her arms. She begged for some money to buy medicines for her child. "Have you been raped?", asked the processionists. "No" she replied "But my child is sick and may die without medicines". "You have no problem since you have not been raped" said the ladies, "Healthcare is a frivolous and insignificant issue. The only real issue in the world is rape", and saying so moved on.

They then came across an unemployed young man, and asked him whether he had been raped. He replied in the negative, but added that he had a masters degree from a University but was prepared to do even a peon's job so that he may survive. They cursed him for speaking such a trivial thing.

In this way the procession went on and on, with the processionists, who were shouting slogans against rape, being frequently accosted by persons who raised issues other than rape like skyrocketing prices, widespread child malnutrition, largescale farmers suicide, etc, whom they brushed aside with derision and ridicule, saying that you are raising trifling issues when the issue of rape was a matter of life and death for the human race.

After some time the processionists came across another group of women who had angrily blocked their path. "Please join us" said the processionists, "We are fighting for a common cause". "And what is that cause ?" asked the blockaders. The processionists said "Our cause is that we want people to forget poverty, price rise, healthcare, malnutrition, farmers suicide, etc and declare that the only issue in the world is rape". 

"Do you even know the prices of vegetables which are touching the sky ? Do you even know how almost impossible it has become to feed our families ?", asked the blockaders. The processionists, who appeared to be well fed and well dressed ladies, said "No".

On hearing this the blockaders fell on the processionists with lathis, fisticuffs, etc, and this violent scene made Alice wake up, and realize she was dreaming

Let’s make judges selection more transparent

A BEAUTIFUL BUILDING IS NOT EVERYTHING: The present system of selection is secretive and subjective. The picture is of Court No. One of the Madras High Court. Photo: V. Ganesan

Wide consultation, rather than the closed-door deliberations of the collegium, is what the Supreme Court and the High Courts need

The decisions of the Supreme Court in the two judges cases in 1993 and 1998 have been criticised because they have not only practically amended the Constitution (which could only have been done by Parliament) by inventing a collegium system unknown to the Constitution, but also because the working of the collegium system has often been found defective. I would, therefore, like to describe my preferred method of recommending names for appointment.

I came to Chennai as Chief Justice of the Madras High Court in November 2004. The sanctioned strength of High Court Judges here was then 49 (60 today). At the time, there were about 23 or 24 vacancies, which meant that about half the posts in the High Court were lying vacant.

I was a total stranger to Tamil Nadu as I had come from Uttar Pradesh. I had been a lawyer in the Allahabad High Court, and thereafter a judge there.

Every institution is really about the personnel manning it. So, a High Court is not really about a beautiful building or beautiful lawns but the judges who man it. They should be first class people in conduct and in legal knowledge. I was determined to recommend good names for appointment as High Court Judges and not bow to pressure.

This was the method I adopted:

I requested a dozen sitting judges of the High Court, in order of seniority, to give me a list of lawyers of the High Court whom they thought deserved to be appointed as High Court judges.

I also requested four or five very senior and respected lawyers of the Madras High Court to give their lists. I also consulted some respected retired judges.

Thus I got about 17 or 18 lists.

I received those lists, and, along with my two senior most colleagues, found certain names to be common in many lists. Enquiries were made even about those names. We also considered some names which were not very common. This exercise went on for two to three months and ultimately there was consensus. It was these names which were recommended for appointment. I then went to Delhi and met the then Hon’ble Chief Justice of India, Mr. Justice Lahoti, and informed him about the methodology I had adopted.

I told him that I had insisted that I would only recommend the names of persons who had a great reputation and good practice, were non-controversial and not too close to any political party (otherwise such persons would not be neutral and impartial). I also referred to what was said by a Lord Chancellor of England (who had then the authority to recommend names for appointment of British High Court judges) that the person whom he would recommend must be a gentleman, and it would do no harm if he knew a little law! (The second part of this sentence should not be taken literally because it is certain that a person to be appointed as a judge must know some law! What I meant was that if a person has put in 20 years as a lawyer, he is bound to know some law. More important, thereafter, is that he should be of high character.)

I told Mr. Justice Lahoti that the methodology that I had adopted was a result of a consensus after wide consultation with about 20 persons including sitting judges, respected retired judges and very senior respected lawyers of the High Court.

Since none of the persons I had recommended was either known to me (except for their performances in cases they argued before me) or belong to my caste or community, I had no personal interest in any such person. Hence it was up to the Supreme Court Collegium to approve or disapprove the names. In any case, I told him, it would not, in any way, bother me if any name was rejected because I had no personal interest.

Ignoring pressure

I must add that certain important people did try to influence me in this connection, but I paid no heed to them as I was determined to do my duty to the Madras High Court, come what may. As a result of that, almost all my recommendations were accepted, and 17 judges were appointed to the Madras High Court in December 2005, a record for that High Court.

In my opinion, the methodology which was adopted by me should also be adopted for making recommendations for appointment of judges in the Supreme Court as well as in all High Courts. The present system, based on the decisions of the Supreme Court in the Judges Case, is defective as there is a lot of subjectivity. In my opinion, the Judges Cases should not be understood to mean that only the five senior most judges of the Supreme Court (three senior most for the High Courts) should be consulted for appointment as Supreme Court and High Court Judges. There should be very wide consultation with at least 15 to 20 people who are highly reputed as judges, former judges, senior lawyers. After this, the consensus which emerges should be recommended.

I was the sixth in seniority in the Supreme Court. But I regret that I was never consulted by the Chief Justice. The five senior most judges met in a highly secretive manner for deciding whom to recommend as a judge of the Supreme Court. This manner severely restricts the inputs which are required for making high quality recommendations. Justice Ms Ruma Pal, former Judge of the Supreme Court, said that deliberations of the collegium are “a complete mystery.” It should not be so in a democracy, where there should be transparency, otherwise allegations are bound to arise, however unfounded, that improper recommendations have been made for extraneous considerations.

I, therefore, recommend to the Chief Justice and to the Chief Justices of all High Courts, that they should follow the same method I adopted for appointment of judges in the Supreme Court and all High Courts, and not limit the consultations to only Collegium members. In my opinion, the decisions of the Supreme Court in the cases of 1993 and 1998 should be understood in their proper perspective, and not in a narrow sense.

(Markandey Katju, a former Chief Justice of the Madras and Delhi High Courts, former Acting Chief Justice of the Allahabad High Court and former Judge of the Supreme Court of India, is currently Chairman of the Press Council of India.)

Published in The Hindu on 03/01/2013

A clarification regarding gang rape judgement

A lot of criticism against me has appeared on the net regarding the judgment in Baldev Singh vs. State of Punjab (2011) 13 S.C.C. 705: A.I.R. 2011 S.C. 1231 (which can be seen online) in which the sentence of imprisonment of the 3 gangrape accused was reduced. Hence an explanation is called for, which is given below :

(1) It was a decision of a bench of two Judges, one of whom was a lady Judge (Justice Gyan Sudha Mishra), and not my judgment alone.

(2) Section 376(2)(g) of the Indian Penal Code says that the minimum sentence in a case of gangrape shall be 10 years. However, there is a proviso to that provision which says that for special and adequate reasons the Court can give lesser punishment.

(3) The trial Court and High Court had awarded 10 years sentence to the 3 accused. We took recourse to the proviso and reduced the sentence of imprisonment to the 3 and a half years which the accused had already served, and a fine of 1.5 lacs (Rs 50,000 to be paid by each accused) which had to be paid to the woman victim.

(4) The reasons for doing so were these :

(a) The parties had themselves filed a joint application before us that they had compromised the matter, and the victim would be satisfied if instead of making the accused undergo further imprisonment some compensation was awarded to her.

(b) The incident was of the year 1997 i.e. about 15 years old, and both the accused and the victim had got married (not to each other). The victim was poor and had 2 children, and by getting some money she could better look after her children.

(c) It was not that the accused had not suffered any imprisonment. They had already undergone 3 and a half years imprisonment. Making them undergo further imprisonment would not help the victim, whereas by giving her some money we could help her feed her children