Ayodhya verdict - Reminiscences

Nearly 3 decades ago, on December 6, 1992, a long-running dispute between Hindus and Muslims over a religious site in the northern city of Ayodhya took a dramatic turn (Babri Masjid demolished) and changed the course of Indian politics forever. Religious riots erupted, and 900 people, both Muslims and Hindus, were killed in Mumbai. And on March 12, 1993, 13 blasts ripped through the Mumbai city in retaliation for the mosque’s demolition, killing 317. Now, a verdict from the Supreme Court (on Nov 9, 2019) has legally closed the most divisive religious conflict and paved the way for the construction of a Hindu temple at the site. The court has insisted that a mosque also be built, but on an alternative plot of land.  This SC decision will allow the BJP and Modi government to bolster its political fortunes further by construction of a grand Ram temple just ahead of elections in Uttar Pradesh due in March 2022.

• Real closure of the conflict will depend on how, going forward, India treats its more than 175 million Muslim citizens. Anything other than equitable justice will only leave deep scars and gaping wounds.
• Since there has been no violence and protests, we should not mistake this for indifference. But this doesn't entail Muslims accepting the construction of a Ram temple at the site. The court has said that the demolition of the mosque was “a serious violation of the rule of law” and that “it is necessary to provide restitution to the Muslim community for the unlawful destruction of their place of worship.”  Justice in the Babri masjid demolition case is critical to Indian democracy’s promise of fair play and equality.
• In the 2019 election, BJP fielded only seven Muslim candidates. In the 2017 assembly elections in Uttar Pradesh, where the temple will be built and has 19.3% Muslims (about 4.40 crores), the BJP did not field any Muslim candidates. India owes it to Muslim citizens to address this sense of political marginalization.
• It was the Muslims who suffered the razing of their place of worship; they were also the victims of the violence which followed. The community sought redressal and placed its faith in the institutions for justice. The Supreme Court ruling is riddled with contradictions but its biggest problem is the loss of faith it has triggered among Muslims about the possibility of justice. What can be worse for a democracy when its largest minority group does not hope for justice but fearfully settles for a verdict that they know is no less than injustice to them? -- Arfa Khanum Sherwani writes in thewire.in
• Whatever the provocation from Pakistan and whatever the indignities and horrors inflicted on non-Muslims there, we have to deal with this minority [India’s Muslims] in a civilized manner. If we fail to do so, we shall have a festering sore. -- Jawaharlal Nehru

If Babri Masjid was still standing, would SC have had it demolished? 

-- Justice A.K. Ganguly (Retd Judge of Supreme Court)

The PM Modi's appeal for harmony, on the eve of the Ayodhya verdict, and warning against seeing the outcome as a victory or defeat for either side casts doubts about his prior knowledge and influencing the judgement. Muslims may grudgingly and helplessly accept this verdict with a pinch of salt but in the reverse scenario, Hindu groups (RSS, VHP etc) would definitely have pressurized central government to promulgate ordinance allotting Babri Masjid plot for Ram Janmabhoomi temple construction.

CJI in sexual harassment case

Open Letter to the Bar Council of India

To the Chairman of Bar Council of India

April 21, 2019

Respected Sir,

There is nothing more pivotal to the Indian democracy and to the Indian Constitution than the rule of law. And the very essence of rule of law is that the law of the land is above everyone, including the judges of the Supreme Court of India.

The manner in which the Supreme Court dealt with the allegations of sexual harassment made against the sitting Chief Justice of India (CJI Ranjan Gogoi) by a former woman employee of the Supreme Court deeply undermines the foundations of our Constitution and flies in the face of the rule of law.

According to the Supreme Court’s “In-House Procedure” that sets out procedure to deal with allegations of sexual harassment, an Inquiry Committee must have taken cognizance of the complaint and initiated inquiry proceedings after giving notice to the respondent (the CJI in this case).

However, that did not happen. Instead, the CJI, in exercise of his administrative powers, constituted a “special” Bench of his choosing (including himself) to respond to the allegations. What ensued on Saturday (April 20) morning in the Supreme Court is nothing short of a travesty of justice.

The CJI used his constitutional office to respond to and deny personal allegations of sexual harassment in the open court, made oral remarks vilifying the complainant, termed the allegations a high-level conspiracy against the judiciary, and discreetly attempted to silence the media. Both the Attorney General and the Solicitor General indulged in character-assassination of the complainant. And all this was done in the absence of the complainant, who was not given any prior notice of the hearing.

Shockingly, you, as the Chairman of the Bar Council of India, have endorsed what happened in the Supreme Court on Saturday morning. You have been quoted by PTI as saying: “These are all false and cooked-up allegations and we condemn these kinds of acts. These kinds of allegations and actions should not be encouraged. This is an attempt to malign the institution. Entire bar is standing in solidarity with the Chief Justice of India.”

As lawyers, we are deeply concerned about preserving and facilitating the cause of justice and protecting the very democratic and constitutional ideals that we profess and stand for. We feel compelled to write to you to say that you, as the Chairman of the Bar Council of India, do not represent the views of the bar in the instant matter, and most certainly, do not speak for the undersigned lawyers.

Without commenting on the merits (or otherwise) of the allegations made against the CJI, we believe (and we hope there are many other lawyers who concede) that a high-powered independent inquiry must be held to look into the allegations to maintain the credibility of the institution and repose public trust in the judiciary. Through this letter, we, as members of the legal profession, unequivocally condemn and distance ourselves from the unconstitutional stand taken by the Bar Council of India in the instant case for reasons outlined below.

1. Two basic principles are central to the doctrine of natural justice. The first is “no man shall be a judge of his own case” and the second is “hear the other side”. The CJI has shown disregard to both these principles. Under no circumstance should the CJI have been a part of the Bench, nor should he have used his constitutional office to respond to personal allegations of sexual harassment
2. The CJI should have promptly referred the complaint to the Supreme Court’s Internal Complaints Committee, headed by Justice Indu Malhotra. In not doing so, the CJI has exhibited disdain for an independent inquiry upon the allegations of sexual harassment made against him
3. Judicial independence does not imply freedom from accountability. The allegations of sexual harassment, made in a sworn affidavit with specific details, cannot be conveniently dismissed as being “wild”, “scandalous”, or politically motivated.

In light of the above, we urge you to withdraw your comments as a mark of respect and honor to the fundamental principles and norms of our constitutional democracy. 

One of the primary functions of the Bar Council of India is to promote and support law and judicial reform, not impede it. The Bar Council of India must be mindful of its true purpose and existence.

(Note: We have learnt that The Women in Criminal Law Association (WCLA) have issued a statement demanding fair inquiry into the sexual harassment allegations against the CJI. We endorse and adopt the stand taken by the WCLA.)

Yours sincerely,

Ashish Goel, Lawyer
ashish.g@nujs.edu
Enrolment No: D/1333/2012

Gautam Bhatia, Lawyer
gautambhatia1988@gmail.com
Enrolment No. D/2290/2012

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The essence of democracy is that the rule of the law is above all. CJI facing sexual harassment charges constituting bench headed by himself and filled with other two friends to deal with the allegations is unjust & untenable. (Already judiciary appointments by extra-constitutional collegium functioning in most non-transparent manner is an irritant in this largest democracy). The procedure applicable for common man in similar situations must be applied to CJI or anybody and everybody in this country, no matter how much taller he is. There can't be different sets laws for different sections of society. All vip privileges must be withdrawn and all citizens must be at par everywhere without qualifiers or positions or situations. CJI instead of subjecting himself to investigation and coming out clean invoking political statements like "Judiciary under threat" etc is unacceptable non-sense.

Varavara Rao & 4 others arrested - Arbitrary crackdown

Deccan Chronicle | Hyderabad | 29-8-2018

Virasam leader Varavara Rao (77 years), lawyer Sudha Bharadwaj, Arun Fereira, Gautam Navlakha and Vernon Gonsalves were arrested on 28-8-2018 by the Maharashtra Police for their alleged involvement in organising Elgaar Parishad, suspected with Maoist links, earlier this year in Pune. They were arrested under IPC Section 153 (A) and according to the FIR, provocative speeches were made at the event, and these triggered the violence in Bhima Koregaon.

• The National Human Rights Commission observed that "it appears that the standard operating procedure in connection with these arrests has not been properly followed by the police authorities, which may amount to violation of their human rights."
• He’s almost 80 years old. I don’t know how he will hold up in prison, said Hemalatha, Varavara Rao’s wife, as she broke into tears.
• This entire plot is devised to garner Hindutva support. Modi is already losing support and he wants to gather sympathy by stating that a Hindu leader is going to be killed. This Bhima Koregaon, an assertion of Dalits is a barricade to the Hindutva politics, so they want to taint it, said Kurmanath.
• This is a witch hunt and an attempt to divert attention from the failures of the current government, questions that are being raised about demonetisation, the Rafael deal, and right wing extremism, said historian Ramachandra Guha.
• The Hyderabad High Court bench of Justice C V Nagarjuna Reddy and Justice T Amarnath Goud gave the direction while hearing an urgent plea filed by Hemalatha wife of Varavara Rao. Seeking counters from DGPs of Maharashtra and Telangana, the bench said that it would declare the arrest illegal if their counters did not disclose a valid case against the writer. “If it is found that police did not follow due procedure, we will intervene,” the bench said while adjourning the case to next week. 
• The Supreme Court today (29-8-2018) said the five people arrested yesterday in connection with the Bhima Koregaon investigation should be kept under house arrest till Sep 6, 2018 - the date of the next hearing in the case.
• Dissent is the safety valve of democracy and if you don't allow these safety valves, it will burst, said the Supreme Court bench, which comprised Chief Justice Dipak Misra, and Justices A M Khanwilkar and D Y Chandrachud.

The recent multi-city crackdown on human rights activists and left-leaning intellectuals and academics is in violation of fundamental rights. It was totally unjust, but sought to be justified on the pretext that they working against the country’s interest. But the fact remains that they championed the cause of the country’s impoverished people. It would be a sad day for Indian democracy when the defense of the weak and vulnerable is treated as a crime.

Supreme Court saves democracy

The fast-changing political scenario in Karnataka, where BJP & Congress-JD(S) alliance were trying to outsmart each other in reaching the magical figure of 112, has not only kept the political pundits on tenterhook but the Supreme Court judges had also to go through the sleepless night and restive day in deciding their legal battle. The battle to form the government not only confined to political arena but also spilled over to the court with Congress-JD(S) alliance approaching the Supreme Court by first challenging Karnataka governor decision to invite the BJP to form government and again on appointment of pro-tem speaker. The court first ordered floor test for BS Yeddyurappa by Sat May 19, 2018 4PM and later ordered the proceedings to be video recorded and telecast live to bring fairness to proceedings.

• Had SC not intervened, BS Yedurappa would have successfully completed horse trading and won floor test in stipulated 15 days time. And BJP, Modi & Co would have resorted to high decibel campaign that JDS & Congress MLAs defecting on their own will, getting attracted to Modi & BJP's policies and so on. But SC reducing floor test time to just 35 hours preempted all BJP's evil undemocratic efforts of horsetrading of MLAs. And BS Yedurappa was compelled to resign and avoid floor test.
• SC deserves credit for upholding the democratic values. But yet another Institution, the Governor of Karnataka has been reduced to just another wagging tail of shameless BJP. 
• Kudos to Justice A K Sikri (bench headed by him) and comprising Justice SA Bobde and Justice Ashok Bhushan, for fearlessly passing orders and saving democracy much to the discomfort of PM Modi and ruling party BJP.
• Utterly bitterly shame on BJP & Modi to have subverted the office of Governor and attempted horse trading to get themselves to power in Karnataka. Modi & BJP lost the right to talk about ethics now. The shameless Governor of Karnataka, Vajubhai Vala, must resign on his own or the President must sack him. Those who compel and impose fake nationalism were seen walking out when National Anthem was sung.
• The beauty of democracy is that whenever executive tends to misbehave autocratically, in violation of constitution, other institution(s) shall rise to fill the void and correct the coarse of events. Hence it is crucial to ensure independence of press & media and all its autonomous institutions.

Democracy is a device that insures we shall be governed 

no better than we deserve ... George Bernard Shaw

In the 1996 general elections, the BJP emerged as the single largest party in the Lok Sabha and AB Vajpayee was sworn in as the 10th Prime Minister of India, but failed to muster enough support from other parties to obtain a majority. He resigned after 13 days, when it became clear that he could not garner a majority. He just needed 1 or 2 MP's to scrape through the floor test, which could have been easily managed, unethically. But Vajpayee preferred to stick to ethics and resigned after delivering emotional farewell speech in Lok Sabha. On the contrary, Yedurappa having failed in all his shameless unethical efforts to buyout any of the JDS or Congress MLAs, attempted to deliver emotional speech on May 19, 2018 in Karnataka Assembly, emulating Vajpayee, is ridiculed by one and all. Shameless Yedurappa, BJP and its leadership.

Yedurappa resigns. But what about Governor Vajubhai Vala?

• Just two days after taking oath as the Chief Minister, Karnataka BJP leader BS Yeddyurappa resigned ahead of the crucial vote of confidence on the floor of the house.
• Outnumbered by the Congress-JD(S) combine, the BJP needed the support of 111 MLAs to sail through the vote of confidence on the floor of the house. It had only 104 and its efforts to buyout few MLAs from JDS and/or Congress fell flat leaving indelible blot on their face.
• In a surprise farewell speech in the Assembly, an emotional Yeddyurappa said he will campaign for the 2019 Lok Sabha elections and ensure that BJP wins all 28 LS seats in the state.
• The BJP never had the numbers, but the governor invited them to form government and generously gave 2 weeks time for horse-trading and winning trust motion on floor of the Assembly. But Supreme Court curtailed the time to just to 36 hours, only to avoid judicial scrutiny of actions of constitutional office of Governor.
• The Supreme Court today ordered live telecast of the floor test, when Congress challenged the appointment of KG Bopaiah (BJP MLA) as Protem Speaker who is not the senior most MLA but also with questionable past record as speaker.
• In a democracy we have to accept not only people's verdict but also the follow the rule of law.
• Earlier in the week, BJP which had emerged as the single largest party, was invited by the Governor Vajubhai Vala to form the government ignoring the post poll coalition between JDS and Congress, which together had 115 MLAs, well above the mark of simple majority of 112/222 which was challenged by JDS & Congress in Supreme Court for staying the swearing-in of BS Yedurappa as the Chief Minister. 
• "The Governor has invited us to form the government. The swearing in ceremony will be organised on Monday May 21, 2018. I have personally invited Mamata Banerjee, Mayawati, Chandrashekhar Rao and Chandrababu Naidu to attend the ceremony," Kumaraswamy told reporters.

Governor Vajubhai Vala's  baseless and senseless decision to invite minority BJP leader Yedurappa, ignoring JDS+Congress combine's leader HD Kumara Swamy with clear majority that lead to intense horse trading activity by BJP with unlimited budgets of several thousands of crores of rupees was thwarted by JDS & Congress leadership, cadre with support of Supreme Court interventions, almost all opposition leaders across many states, JDS & Congress MLAs unwilling to cross parties within hours of electing by public. Karnataka showed that the BJP's downslide has started with arrogant and audacious actions of Modi and Amit Shah, who lost their face with steep fall from their high moral ground to deep corruption. Their credibility is totally lost and this fiasco will have its telling effect on 2019 General Elections on Modi & BJP. The need of the hour is that Karnataka Governor Vajubhai Vala must resign and get out.

Vinod Rai's cushy jobs

Read the source article

The question is then CAG between 2008-13, Vinod Rai, holding constitutional position appointed by UPA exceeded his brief by publishing 2G Scam with humongous corruption figures of Rs. 180,000 crores without any substance or basis but also published booklets and distributed free of charge to all MPs to rake in Parliament which eventually was exploited by BJP, Modi, Arnab Goswami and many more. CBI, working directly under Modi could file in its charge sheet, in the 2G Scam case, corruption to the extent of Rs.30,000 crores only which was torn apart by the CBI Court Judge that not a single document nor an evidence was submitted by CBI or anyone to the court in the 2G Scam case for six long years. Vinod Rai, even though a retired person, kept stoic silence thereafter. Why?

While no one will be saint to dole out licenses without kickbacks, then and now as well, it was Vinod Rai who did the damage to UPA, Sonia Gandhi, MMS and Congress benefiting BJP, Modi etc. How come Supreme Court remembers only Vinod Rai every time and three times simultaneously to appoint him for what ever the work available with it? Is he the only competent person in whole India? After all, he is only an IAS officer without any specialized qualification but only long experience in Delhi corridors. As far as my knowledge and experience goes, Delhi will never come to my doorstep, no matter how much talented I am, but I must lick their boots to get any posting. Recollect shunting out of Amartya Sen and Raghuram Rajan by Modi administration, ruthlessly.

There is no question that Vinod Rai has RSS & BJP inclinations, despite licking boots of then FM P.Chidambaram to get CAG posting and then doing enormous damage to them. If not, why Vinod Rai hasn't criticized Modi & BJP during past 4 years, even once, despite enormous damages inflicted on the nation by Modi & BJP?

CJI is the 'Master of roster'

  

• Earlier, the Constitution Bench declared, on Nov 10, 2017, that it is the prerogative of the Chief Justice of India to decide what case has to be heard by which judge.
• The Constitution Bench held that “there cannot be any kind of command directing the CJI to constitute a Bench”. The Bench held that no judge can take up or post matters on his own. That authority is the Chief Justice's exclusive domain.
• The judicial institution would crumble if every judge acts like the Chief Justice of India.
• Judges have to act within their parameters set down by rules and precedents of the Supreme Court to protect judicial integrity and decorum.
• Constitution Bench recorded that the CJI is indeed the first among equals on the judicial side, but on the administrative side, he is the master of the roster.

  

• The judges acknowledge the CJI is the master of the roster.
• Given the context of the January 12, 2018 press conference by rebel 4 judges, the judges also feel that there was a need to make the assignment of cases more transparent, even though the CJI could reserve the right for keeping to himself hearing on certain extraordinarily important cases of national importance. 
• The four senior judges had said that listing of the PILs on judge Loya’s death before a select bench headed by a “junior” judge pushed them to hold the press conference for highlighting the systemic irregular manner in which successive Chief Justices of India have assigned important cases to handpicked benches headed by junior judges.
• There is a not a single judge who supported the four senior judges’ idea of holding a press conference to highlight the grievance.
• The CJI and judges are also aware that despite a roster system, there would always be room for a judge to be dissatisfied about the nature of the cases getting allocated to him/her and could still go ahead and hold a press conference airing grievances.
• The novel way of “discharging debt to the nation” through a press conference could turn out to be contagious, with personal ambitions and perceived irregularities fueling similar occurrences in the high courts, which have far greater number of judges than the apex court and, thus, greater possibility of disagreement with the chief justices.

Read SC Judges revolt raises more questions

SC Judges revolt raises more questions

Deccan Chronicle | Jan 13, 2018

  

  

 

Curiously, the letter written by the four judges was undated and unsigned

The unprecedented mutiny of four senior Supreme Court judges namely Justice Chelameshwar,  Justice Ranjan Gogoi, Justice Madan Lokur and Justice Kurien Joseph accusing CJI Justice Dipak Misra of  bias in SC Administration etc in press conference on Jan 12, 2018, raises more questions than it reveals. While the contentions of these four revolting judges seems to be rationale, their method of dealing i.e. washing the dirty linen in public is unacceptable. The best they could have done is submit their resignations like 1973 resignations by Justice J. M. Shelat, Justice K. S. Hegde and Justice A. N. Grover when they were superseded. The matter of 'saving democracy' should have been best left to politicians and elected representatives. These four judges forgot the maxim 'nemo judex in causa sua', which means that no man can be a Judge in his own cause.

• The CJI is called upon to show wise leadership of the institution over which he presides has to retain its vitality and robustness. Sardar Patel told HJ Kania three days before he became the first CJI that there is very little place for petty-mindedness in how a CJI deals with his brother judges. Justice Dipak Misra proved himself a miserable failure as CJI. 
• CJI Deepak Misra in his capacity as 'Master of Roster' has allocated the case of death of special CBI judge B H Loya to a bench of junior judges and that was the flash point of simmering discontent.
• CJI is 'Master of Roster' and certainly not 'Clerk of Roster' and can use his discretionary powers as he deems fit and is answerable to none. MoP is only a document for guiding the CJI staff while preparing draft roster and not binding on CJI.
• In any case, no judge can assign a case to himself.
• On one hand they argue 'Chief Justice is first among equals, nothing more, nothing less' and on other hand they were upset that senior judges were not allocated important cases. There is no such thing called 'senior judge' or 'junior judge'. All judges are equal. 
• SC Judges might not be subordinates and accountable to CJI, but CJI certainly holds higher position with higher pay, functions, powers and responsibilities. CJI represents entire SC.
• Their contention as saviors of democracy is untenable. Our democracy is constantly in trouble and never before in the past such revolt has happened. What is visible is ego clash, conflict of personal interests etc.
• How can CJI allocate important cases to these four judges who doesn't look eye to eye with him? It is humanly impossible. Whatever these four judges stated about the maladies of SC today, they were there since long and every CJI followed these with varying degrees. 
• Traditions, conventions, customs, practices etc are not binding. They only bind you to the past. Only rules are binding. Subverting the rules to one's own thinking is what is ruling now a days everywhere. These days what matters is competence, tact and trust. 
• Not withstanding the told reasons, real reasons for this mutiny could be different. In any case judicial tradeunionism is unacceptable nonsense.
• Modi's government subverted all the institutions in India. Supreme Court is no exception. Which CJI would like to fight with powerful Modi & BJP and lose his of sleep and future benefits?
• Having raised the banner of revolt, now the onus is on these four revolting judges to bring down curtain amicably as soon as possible. They can not expect any help from any quarter in resolving the SC's internal issue and any delay will give scope for media with all kinds of stories and rumors which will only hurt the integrity of SC and its judges.
• "Judges should not have gone public" was the unanimous opinion of Bar Council of India. Similar opinions were expressed by Attorney General KK Venu Gopal and eminent jurists FS Nariamn, Soli Sorabjee and many others.
• In a press release issued on June 24, 2018, the Bar Council of India condemned the former Supreme Court judge Jasti Chelameswar for his comments to several media organisations after his official retirement two days earlier. The release states, “The amount of damage which has been to the institution since last January, would take a long time to be repaired and rectified.” 

Expecting CJI Deepak Misra coming to the terms of revolting four judges and falling at their feet is height of insanity. While CJI can't do anything to these four judges, he might just ignore this incident and next working day will be like any other routine day and business in SC will be as usual. But these four judges having raised unthinkable banner of revolt lost their moral right to sit on the bench and conduct court proceedings and deliver verdicts. Irrespective of causes and outcomes of this dirty event, SC's image stands disfigured and diminished forever.

In framing a government which is to be administered by men over men, the great 

difficulty lies in this: you must first enable the government to control the governed; 

and in the next place, oblige it to control itself ... Alexander Hamilton

Even though everybody says in public they have immense faith in judiciary and respect it, in private no one has. They were only scared of contempt proceedings and punishment. It is well known that judicial system serves rich & powerful only and ordinary citizen can never aspire to approach any court for grievance redress. Like other segments of society and governance, judicial system is also infected with all the ills like politics, corruption, nepotism, incompetence and so on. Leveraging press & media for furthering one's own cause is politics. Judiciary prohibits press conferences by judges under all circumstances. Notwithstanding whether CJI Dipak Mishra committed any mistakes or mischief, these four rebel judges, in a fit of anger, walking out of SC premises dumping scheduled activity to winds have done the unthinkable thing and committed the gravest offence on the Supreme Court itself by calling the press conference and leveling charges against CJI and may face conspiracy charges of destruction of institution of SC. Their incredulity of views is reflected in releasing an undated and unsigned letter addressed to CJI. Their offence is far more serious than Justice Karnan's for which he was jailed for six months by SC, ignoring constitutional immunity & protection. 

Talaq bill urgent, Appointing Lokpal is not. Why?

Economic Times | Jan 5, 2018 | Page 2

Every political leader is faced with a temptation to override institutional procedures in the garb of speed and efficiency. Leaders with a political majority even have the ability to fulfill those temptations. But succumbing to such temptations will be a betrayal of the sacrifices made by our freedom fighters and founding fathers in establishing the sovereign republic of India ... Manmohan Singh

The self declared lone crusader against corruption and black money, a friend of super rich Gujarati industrialists, Mr.Modi, doesn't appoint Lok Pal and Lok Ahyuktas, even after "the eminently workable piece of legislation" is passed  by Parliament 4 years ago and Supreme Court questioning the delay but finds Talaq bill urgent citing Supreme Court's ruling. Needless to say Talaq bill was badly drafted without seeking inputs from anyone, ahead of 2019 general elections. Is India a democracy or an authoritarian regime? Without winning confidence of minorities (nearly 19% of population) Modi government will never be able claim it as a legitimate democratic government.

2G Scam ... Where is it?

In the infamous 2G SCAM case 2011, that catapulted Modi & BJP into power in 2014 dislodging the corruption tainted UPA government of Manmohan Singh, the CBI Court Judge OP Saini delivered judgement on Dec 21, 2017 acquitting all the accused persons and companies criticising the prosecution for pursuing the case in a disinterested and diffident manner and observed that prosecution has failed to prove any of the charges beyond reasonable doubt. He also held that there was no criminality or conspiracy in spectrum allotment and said some people created a "scam by artfully arranging a few selected facts and exaggerating things beyond recognition to astronomical levels".

It was seven years ago when CAG report on the 2G scam giving the then UPA government jitters, which ultimately led to its downfall. CAG had stated that licenses had been issued to ineligible applicants who had deliberately suppressed facts, disclosed incomplete information, submitted fictitious documents and used fraudulent means for getting licenses and thereby access to spectrum. The licence holders had sold these stakes to the Indian/foreign companies at high premium within a short time. The premium earned by these new companies was estimated to be the true value of the spectrum. In a free and fair bidding process, these profits should have gone to the government. CAG in its report had never stressed on presumptive loss figure of Rs 1.76 lakh crores that was based on the 3G price discovered in 2010.

• Special judge OP Saini came down heavily on the CBI, charging the agency with shoddiness and approaching the case in fits and starts. He had absolutely no hesitation in holding that the prosecution miserably failed to prove any charge against any of the accused, made in its well choreographed charge sheet.
• Special judge remarked that everybody was going by public perception created by rumour, gossip and speculation. However, public perception has no place in judicial proceedings.
• Though the Supreme Court had cancelled 122 licences allocated declaring them illegal, a special CBI court today said "a huge scam was seen by everyone where there was none."
• The judge laments the role of "prominent public-spirited persons" who went on and on about wrongdoing but had no evidence to submit. Apparently this means that nobody had any good or first-hand evidence in his possession". 
• Dismissing the allegations, the judge said that for “the last about seven years on all working days, summer vacation included, I religiously sat in the open Court from 10 am to 5 pm, awaiting someone with some legally admissible evidence in his possession, but all in vain. Not a single soul turned up.”
• The biggest beneficiary of the alleged 2G scam is Mr. Narendra Modi as he became the Prime Minister and lots of people believed the allegations. Today, the former CAG Vinod Rai is one of the strong advisors of the Modi government, posted on various boards and organisations and has been rewarded for what he has done.
• What is illegal from administrative law point of view may not necessarily be an offence from a criminal court’s perspective. 
• The Supreme Court declared in 2012 that the allocation of 2G spectrum by UPA government was illegal and an arbitrary exercise of power and cancelled all 122 telecom licences allotted. This hurt India’s competitiveness & saddled banks with Rs. 4 lakh crore of debt resulting from licence cancellations & auctions. 
• It was a policy decision taken by the then administration, and policy decisions do not have to be always right and there is room for error and improvement. The SC judgement of cancellation was always hasty, wrong and unjustified, and caused huge losses, damaged reputations and caused economic crises. You can be sure that this will be added ground for proceeding against India in the BIT Arbitrations. The lesson is what the SC told us many years ago, that courts should be slow to interfere in economic and policy decisions, said Ramji Srinivasan, senior advocate, Supreme Court.
• The CAG's use of the word ‘presumptive loss’ has left a question mark on the CAG’s credibility which is an act of ethical wrong doing on a gigantic scale. The former CAG, Vinod Rai's twisted logic produced a figure of Rs 1.76 lakh crores notional loss to the exchequer has not played by the book. He subjected the polity to great convulsions resulting in huge and unquantifiable losses in terms of businesses and investment withheld. Many more reputations and myths would come unravelling. 
• It is said that the folklore about corruption is bigger than the actual incidence of corruption.  Could this be true of the 2G ‘scam’ as well?
• The Indian economy is yet to recover not just from the SC's hasty cancellation of 122 licenses, but also from the public hysteria and moral panic that marked the period. It is that which created policy paralysis and the investment crisis that continues to this day and not any supposed corruption.
• Industry analysts said the apex court’s 2010 ruling had led to massive job losses, closure of several businesses and value destruction of assets worth thousands of crores. The 2G spectrum scam brought the entire industry to its knees. Now the court says no one is responsible for it. Its a bizarre situation and gives the affected operators an opportunity to seek compensation.
• Former PM Minister Manmohan Singh said  'a massive propaganda was unleashed against my government over the 2G spectrum allocation. The judgment speaks for itself.'
• Arun Jaitley said the special CBI court’s acquittal of all accused in the 2G scam should not be treated as a “badge of honour.” If this is not, then 'what is badge of honour.'
• Reminding BJP that it had pegged its campaign against the UPA government on the 2G scam, the Congress demanded an apology for ruining careers, companies and blocking investments to the country. PM Modi, FM Jaitley and other BJP leaders must apologise to the country. BJP stands exposed today before the country.
• A war of words has broken out between the UPA and the NDA leaders over the verdict and its political ramifications which will only intensify till 2019. Suddenly, the sinners are looking less than sinners and the saints no longer come across so saintly.
• The CBI and ED will appeal against the special court’s judgment acquitting all the accused in the 2G scam case. But without tangible evidence what is the use of appeal?
• The 2012 SC judgment was on the question of procedural irregularity and of civil liability. The trial court judgments in the CBI and ED cases were concerned with charges of criminal and corruption charges and prosecution cannot use the 2012 SC judgment as evidence of criminality in an appeal in a higher court.

• The scale and scope of the scam claimed by the innumerate dramatis personae of that period on news television was always imaginary. Lakhs of crores were not misappropriated. Instead there was the sort of misuse of process that was common before the UPA, common during the UPA, and continues to be common now, even under a supposedly clean government. Of course there are no large-scale scams of the scale that was claimed for 2G under Narendra Modi! Because, it turns out, there weren't under Manmohan Singh either. At a stroke, the sole and solitary claim that Modi had to his running a better government than Manmohan stands extinguished.
• History will not be kind to these forces of disinformation, who with willful ignorance or malice created a perception of an epochal, history-breaking, record-setting scam. Who will be held accountable for the public perception created by rumour, gossip and speculation? Somebody must. 
• This shows that how battles won in Supreme Court are often lost in courts below, said senior advocate Rajeev Dhavan.
• Politically, Congress will not only emerge stronger but also assertive and aggressive in the run up to 2019 elections tearing into Modi's blunders and lies. Modi is now realizing value of his allies for continuing in as PM.

On any issue public decides first, court decides last. 

Media influences public opinion.

There was no 2G scam - NDTV

Corruption is omnipresent in India. Nothing moves without it. The root cause is the mind boggling political spending, greedy businesses and irresponsible bureaucracy apart from indifferent public. No saints left in India. Everybody is corrupt in one sense or other. But scams are different. While corruption is slow poison, scams are akin to cyanide. Today BJP is most cash rich party and its spending in recent UP and Gujarat elections is unprecedented. All that money is neither accounted nor from contributions.

The perception of 2G Scam is clearly visible, the failure of prosecution by CBI & ED (directly works under PM Modi & FM Jaitley) is easily palpable. The consequences of 2G Scam for the nation is humongous for which Congress and BJP and their leaderships are accountable. Price is being paid by people of India similar to or even worse than Bofor's scandal of mid eighties. Politics by Modi & co. for dislodging this case is not ruled out. Some of the acquitted are Modi's friends and Modi making unscheduled visit to ailing DMK leader Karunanidhi points needle of suspicion towards Modi too. Modi seems to be interested in only winning election after election and saffronisation of India and any other thing is just a lip service. In recent Gujarat elections BJP suffered erosion of over 10% votes and same thing is bound to happen in 2018 state elections and 2019 general elections. Without strong allies, Modi continuing as PM beyond 2019 is ruled out. This is visible from Modi's sudden change in attitude towards friends like Shiv Sena, TDP, TRS, BJD, DMK etc. Development and reforms are bound to slow down or even take back seat. 

In in the intervening period several lives were jailed and harassed, families suffered, companies incurred losses or even wound up, investors lost money, employees lost their jobs. Who is responsible for the mess?

Privacy is a fundamental right - annotations

The Supreme Court’s landmark judgment elevating the right to privacy as a fundamental right is a significant reminder of India’s republican values and their relevance to all classes of people.

• After 70 years of Independence, it would have been highly unpopular for India’s Supreme Court, and any of its judges, to subscribe to a proposition that ran counter to the liberal ethos of the times. 
• Any judge expressing a dissenting view could have run the risk of being seen on the wrong side of history.
• The right to privacy was demanded by only those who had something to hide, said Rakesh Dwivedi, senior counsel for Gujarat. 
• The right to privacy had no relevance for the hungry millions, said the Attorney General, K.K. Venugopal. Privacy was just a facet of liberty, and being amorphous, it could not be elevated to the status of a fundamental right, was the refrain of many respondents before the court.
• Justice Chandrachud - the validity of a law which infringes the fundamental rights has to be tested not with reference to the object of state action, but on the basis of its effect on the guarantees of freedom.
• In a democratic Constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties.
• The invasion of a fundamental right was not rendered tolerable when a few were subjected to hostile treatment.
• The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised through history to wreak the most egregious violations of human rights.
• It is the right to question, the right to scrutinise and the right to dissent which enables an informed citizenry to scrutinise the actions of government.
• The theory that civil and political rights are subservient to socio-economic rights has been urged in the past and has been categorically rejected by this court.
• The right to privacy is too amorphous to be defined in specific terms and that it should be left to evolve from case to case. 
• A restrictive definition of the right to privacy specifying what it included could hamper its growth in the future. 
• The right to privacy was a fundamental right, without specifying its contours, could limit the state’s pursuit of its development agenda.
• Justice Chandrachud, while agreeing that privacy must be left to evolve case to case, laid down three grounds to justify an invasion of privacy. They are existence of a law, a legitimate state aim suffering from no arbitrariness, and proportionality of the means to the object . 
• The sharing of biometric data, which the Aadhaar scheme entails, involves many facets of the right to privacy.

Petitions challenging the Aadhaar Act will now be heard and decided by regular benches of the Supreme Court in the light of the privacy judgment.

It would have been nice if centre had recognised privacy is a fundamental right made laws attenuating Aadhaar and treated citizens with respect. But it is too much to expect such good things from autocratic Modi. Now privacy has become a fundamental right not by virtue of a constitutional provision nor by an act of parliament but by a judgement of a Supreme Court constitutional bench. This is not the best way. And if centre instead of respecting judgement gracefully searches ways and methods to surreptitiously push Aadhaar for citizen's surveillance and undermine citizens rights they would meet waterloo again and again. BJP & NDA and all parties must realize that they are in power for the citizens welfare and not other way round. But Modi & BJP are notorious for not learning lessons but will attempt to bulldoze on people with their stupid thinking.

Privacy is a fundamental right

• A nine-judge Constitution Bench of the Supreme Court on August 24 unanimously ruled that right to privacy is “intrinsic to life and liberty” and is inherently protected under the various fundamental freedoms enshrined under Part III of the Indian Constitution. SC overruled previous judgments on the privacy issue that ruled that privacy is not a fundamental right.
• Justice Chandrachud in his judgment for himself, Chief Justice Khehar, R.K. Agrawal and S. Abdul Nazeer said that privacy is a concomitant of the right of the individual to exercise control over his or her personality. Natural rights like privacy are inalienable because they are inseparable from the human personality. To live is to live with dignity. Privacy with its attendant values assures dignity to the individual and it is only when life can be enjoyed with dignity can liberty be of true substance. Privacy ensures the fulfillment of dignity.
• The judgement also stated that - Like other rights which form part of the fundamental freedoms protected by Part III, including the right to life and personal liberty under Article 21, privacy is not an absolute right. A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. In the context of Article 21 an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. 
• The Union government had argued that privacy is a common law right. The government argued that right to privacy is not expressly included in the Constitution as the founding fathers rejected or jettisoned the idea of inclusion of privacy as a fundamental right. The centre had termed privacy as a "vague and amorphous" right which cannot be granted primacy to deprive poor people of their rights to life, food and shelter.
• The earlier Attorney General Mukul Rohatgi rejected suggestions that Indians could refuse to provide their iris scans or fingerprints to the government, telling a court "the concept of absolute right over one's body was a myth".
• The judgment will have a crucial bearing on the government’s Aadhaar scheme that collects personal details, biometrics to identify beneficiaries for accessing social benefits and government welfare scheme.
• A bunch of petitions were filed in the Supreme Court in 2015 challenging Aadhaar as a breach of privacy, informational self-determination and bodily integrity. The petitioners argued that Aadhaar enrolment was the means to a “Totalitarian State” and an open invitation for personal data leakage. 
• The government claimed Aadhaar was a panacea to end corruption in public distribution, money laundering and terror funding.
• Attorney general K K Venugopal had argued that right to privacy cannot be a fundamental right has now welcomed the SC decision. He said that whatever the 9-judge bench says is the correct law.
• Three days ago, PM Modi hailed the SC judgement on triple talak as "historic" and said it grants equality to Muslim women. Today on Privacy rights judgement of SC, he maintained stoic silence so far. He is yet to respond. Why?
• Finance Minister Arun Jaitley said that the apex court has accepted the government’s argument that privacy is a fundamental right, but it’s not an absolute right but will be subjected to restrictions which will be fair, just and reasonable. He blamed that the privacy matter went to the Supreme Court because the UPA government brought about Aadhaar without a law. It is too late to contend that privacy will not be a fundamental right.
• Law Minister Ravi Shankar Prasad made a somersault by welcoming the judgement but said should have "reasonable" restrictions. 
• Mukul Rohatgi said that the government should not have diluted their stand in court because the inclusion or exclusion of fundamental rights is only the proviso of Parliament. It is a very unsatisfactory resolution of the dispute. His view is that the framers of the constitution did not intend to make privacy a fundamental right. He said “The fact is, we haven’t won this case. The eight-judge bench of 1954 has been overruled and the Aadhaar issue has been left unresolved. So where is the question of winning?” Had he still been in office as Attorney General, he would have admitted that the government had lost the case.

Today's verdict is a major setback for the government, which had argued that the constitution does not guarantee individual privacy as an inalienable fundamental right. The verdict however does not comment on whether the government's demand for Aadhaar to be linked to all financial transactions amounts to an infringement of privacy. There are fears that the data could be misused by a government that argued Indians have no right to privacy.

Aadhaar has its uses, but it is also an instrument of control and manipulation. It must be only optional, not mandatory. Aadhaar had already violated the privacy rights with the vast majority of the population already enrolled, their information held in insecure databases, and linked to public and private services. Ambedkar's fears of abuse of constitution without amending it are coming true in Modi's India. In a democracy, ruled by majority, it is the duty of majority to uphold the rights & dignity of minorities. Ambedkar also remarked that democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic. Unfortunately Modi & co believes that minorities must toe line with majoritarian wishes with no individual rights etc.

Read the exhaustive article on the judgement

Hamid Ansari, Vice President's speech at NLSIU convocation

Hamid Ansari, Vice-President's speech at the 25th annual convocation of the
National Law School of India University in Bengaluru on August 7, 2017

In his final address as vice-president, Hamid Ansari spoke at the 25th annual convocation of the National Law School of India University in Bengaluru. In his speech, he said the challenge was to reiterate and rejuvenate secularism's basic principles, including freedom of religion and tolerance. The function was presided over by Chief Justice of India, Jagdish Singh Khehar. 

Here is the full text of the speech Ansari gave on 6 August, 2017:

It is a privilege to be invited to this most prestigious of law schools in the country, more so for someone not formally lettered in the discipline of law. I thank the Director and the faculty for this honour.

The nebulous universe of law and legal procedures is well known to this audience and there is precariously little that I can say of relevance to them. And, for reasons of prudence and much else, I dare not repeat here either Mr. Bumble’s remark that ‘the law is an ass’ or the suggestion of a Shakespearean character who outrageously proposed in Henry VI to ‘kill all lawyers.’ Instead, my effort today would be to explore the practical implications that some constitutional principles, legal dicta and judicial pronouncements have for the lives of citizens.

An interest in political philosophy has been a lifelong pursuit. I recall John Locke’s dictum that ‘wherever law ends, tyranny begins.’ Also in my mind is John Rawl’s assertion that ‘justice is the first virtue of social institutions’ and that ‘in a just society the liberties of equal citizenship are taken as settled and the rights secured by justice and are not subject to political bargaining or to the calculus of social interest.’ To Rawls, the first task of political philosophy is its practical role to see, whether despite appearances on deeply disputed questions, some philosophical or moral grounds can be located to further social cooperation on a footing of mutual respect among citizens.

The Constitution of India and its Preamble is an embodiment of the ideals and principles that I hold dear.

The People of India gave themselves a Republic that is Sovereign, Socialist, Secular and Democratic and a constitutional system with its focus on Justice, Liberty, Equality and Fraternity. These have been embodied in a set of institutions and laws, conventions and practices.

Our founding fathers took cognizance of an existential reality. Ours is a plural society and a culture imbued with considerable doses of syncretism. Our population of 1.3 billion comprises of over 4,635 communities, 78 percent of whom are not only linguistic and cultural but social categories. Religious minorities constitute 19.4 percent of the total. The human diversities are both hierarchical and spatial.

It is this plurality that the Constitution endowed with a democratic polity and a secular state structure. Pluralism as a moral value seeks to ‘transpose social plurality to the level of politics, and to suggest arrangements which articulate plurality with a single political order in which all duly constituted groups and all individuals are actors on an equal footing, reflected in the uniformity of legal capacity. Pluralism in this modern sense presupposes citizenship.’

Citizenship as the basic unit is conceptualized as “national-civic rather than national-ethnic” ‘even as national identity remained a rather fragile construct, a complex and increasingly fraught ‘national-civic-plural-ethnic’ combinations.’ In the same vein, Indianness came to be defined not as a singular or exhaustive identity but as embodying the idea of layered Indianness, an accretion of identities.

'Modern democracy offers the prospect of the most inclusive politics of human history. By the same logic, there is a thrust for exclusion that is a byproduct of the need for cohesion in democratic societies; hence the resultant need for dealing with exclusion ‘creatively’ through sharing of identity space by ‘negotiating a commonly acceptable political identity between the different personal and group identities which want to/have to live in the polity.’ Democracy ‘has to be judged not just by the institutions that formally exist but by the extent to which different voices from diverse sections of the people can actually be heard.’ Its ‘raison d’etre is the recognition of the other.’

Secularism as a concept and as a political instrumentality has been debated extensively. A definitive pronouncement pertaining to it for purposes of statecraft in India was made by the Supreme Court in the Bommai case and bears reiteration:

‘Secularism has both positive and negative contents. The Constitution struck a balance between temporal parts confining it to the person professing a particular religious faith or belief and allows him to practice profess and propagate his religion, subject to public order, morality and health. The positive part of secularism has been entrusted to the State to regulate by law or by an executive order. The State is prohibited to patronise any particular religion as State religion and is enjoined to observe neutrality. The State strikes a balance to ensue an atmosphere of full faith and confidence among its people to realise full growth of personality and to make him a rational being on secular lines, to improve individual excellence, regional growth, progress and national integrity… Religious tolerance and fraternity are basic features and postulates of the Constitution as a scheme for national integration and sectional or religious unity. Programmes or principles evolved by political parties based on religion amount to recognizing religion as a part of the political governance which the Constitution expressly prohibits. It violates the basic features of the Constitution. Positive secularism negates such a policy and any action in furtherance thereof would be violative of the basic features of the Constitution.’

Despite its clarity, various attempts, judicial and political, have been made to dilute its import and to read new meaning into it. Credible critics have opined that the December 11, 1995 judgment of the Supreme Court Bench ‘are highly derogatory of the principle of secular democracy’ and that a larger Bench should reconsider them ‘and undo the great harm caused by them' This remains to be done; ‘instead, a regression of consciousness (has) set in’ and ‘the slide is now sought to be accelerated and is threatening to wipe out even the gains of the national movement summed up in sarvadharma sambhav.’

It has been observed, with much justice, that ‘the relationship between identity and inequality lies at the heart of secularism and democracy in India.’ The challenge today then is to reiterate and rejuvenate secularism’s basic principles: equality, freedom of religion and tolerance, and to emphasize that equality has to be substantive, that freedom of religion be re-infused with its collectivist dimensions, and that toleration should be reflective of the realities of Indian society and lead to acceptance.

Experience of almost seven decades sheds light on the extent of our success, and of limitations, on the actualizations of these values and objectives. The optimistic narrative is of deepening; the grim narrative of decline or crisis.

Three questions thus come to mind:

• How has the inherent plurality of our polity reflected itself in the functioning of Indian democracy?
• How has democracy contributed to the various dimensions of Indian pluralism?
• How consistent are we in adherence to secularism?

Our democratic polity is pluralist because it recognizes and endorses this plurality in (a) its federal structure, (b) linguistic and religious rights to minorities, and (c) a set of individual rights. The first has sought to contain, with varying degrees of success, regional pressures, the second has ensured space for religious and linguistic minorities, and the third protects freedom of opinion and the right to dissent.

A question is often raised about national integration. Conceptually and practically, integration is not synonymous with assimilation or homogenization. Some years back, a political scientist had amplified the nuances:

‘In the semantics of functional politics the term national integration means, and ought to mean, cohesion and not fusion, unity and not uniformity, reconciliation and not merger, accommodation and not annihilation, synthesis and not dissolution, solidarity and not regimentation of the several discrete segments of the people constituting the larger political community…Obviously, then, Integration is not a process of conversion of diversities into a uniformity but a congruence of diversities leading to a unity in which both the varieties and similarities are maintained.’

How and to what extent has this worked in the case of Indian democracy with its ground reality of exclusions arising from stratification, heterogeneity and hierarchy that often ‘operate conjointly and create intersectionality’? 

Given the pervasive inequalities and social diversities, the choice of a system committed to political inclusiveness was itself ‘a leap of faith.’ The Constitution instituted universal adult suffrage and a system of representation on the First-Past-The-Post (Westminster) model. An underlying premise was the Rule of Law that is reflective of the desire of people ‘to make power accountable, governance just, and state ethical.’

Much earlier, Gandhi ji had predicted that democracy would be safeguarded if people ‘have a keen sense of independence, self respect and their oneness and should insist upon choosing as their representatives only persons as are good and true.’ This, when read alongside Ambedkar’s apprehension that absence of equality and fraternity could bring forth ‘a life of contradictions’ if the ideal of ‘one person, one vote, one value’ was not achieved, framed the challenge posed by democracy.

Any assessment of the functioning of our democracy has to be both procedural and substantive. On procedural count the system has developed roots with regularity of elections, efficacy of the electoral machinery, an ever increasing percentage of voter participation in the electoral process and the formal functioning of legislatures thus elected. The record gives cause for much satisfaction.

The score is less emphatic on the substantive aspects. Five of these bear closer scrutiny – (a) the gap between ‘equality before the law’ and ‘equal protection of the law’, (b) representativeness of the elected representative, (c) functioning of legislatures, (d) gender and diversity imbalance and (e) secularism in practice:

• Equality before the law and equal protection of the law: ‘The effort to pursue equality has been made at two levels. At one level was the constitutional effort to change the very structure of social relations: practicing caste and untouchability was made illegal, and allowing religious considerations to influence state activity was not permitted. At the second level the effort was to bring about economic equality although in this endeavour the right to property and class inequality was not seriously curbed…Thus the reference to economic equality in the Constitution, in the courts or from political platforms remained basically rhetorical.’ 
• Representativeness of the elected representative: In the 2014 general election, 61% of the elected MPs obtained less than 50% of the votes polled. This can be attributed in some measure to the First-Past-the-Post system in a fragmented polity and multiplicity of parties and contestants. The fact nevertheless remains that representation obtained on non-majority basis does impact on the overall approach in which politics of identity prevails over common interest.
• Functioning of legislatures, accountability and responsiveness: The primary tasks of legislators are legislation, seeking accountability of the executive, articulation of grievances and discussion of matters of public concern. The three often overlap; all require sufficient time being made available. It is the latter that is now a matter of concern. The number of sittings of the Lok Sabha and the Rajya Sabha which stood at 137 and 100 respectively in 1953 declined to 49 and 52 in 2016. The paucity of time thus created results in shrinkage of space made available to each of these with resultant impact on quality and productivity and a corresponding lessening of executive’s accountability. According to one assessment some years back, ‘over 40 percent of the Bills were passed in Lok Sabha with less than one hour of debate. The situation is marginally better in the Rajya Sabha.’ Substantive debates on public policy issues are few and far in between. More recently, the efficacy of the Standing Committee mechanism has been dented by resort to tactics of evasion by critical witnesses. A study on 'Indian Parliament as an Instrument of Accountability' concluded that the institution is ‘increasingly becoming ineffective in providing surveillance of the executive branch of the government.
• The picture with regard to the functioning of the Sate Assemblies is generally much worse.
• Thus while public participation in the electoral exercise has noticeably improved, public satisfaction with the functioning of the elected bodies is breeding cynicism with the democratic process itself. It has also been argued that ‘the time has come to further commit ourselves to a deeper and more participatory and decentralized democracy - a democracy with greater congruence between people’s interests and public policy.’
• Gender and diversity imbalance: Women MPs constituted 12.15% of the total in 2014. This compares unfavourably globally as well as within SAARC and is reflective of pervasive neo-patriarchal attitudes. The Women’s Reservation Bill of 2009 was passed by the Rajya Sabha, was not taken up in Lok Sabha, and lapsed when Parliament was dissolve before the 2014 general elections. It has not been resurrected. Much the same (for other reasons of perception and prejudice) holds for Minority representation. Muslims constitute 14.23 percent of the population of India. The total strength of the two Houses of Parliament is 790; the number of Muslim MPs stood at 49 in 1980, ranged between 30 and 35 in the 1999 to 2009 period, but declined to 23 in 2014.
• An Expert Committee report to the Government some years back had urged the need for a Diversity Index to indentify ‘inequality traps’ which prevent the marginalized and work in favour of the dominant groups in society and result in unequal access to political power that in turn determines the nature and functioning of institutions and policies.
• Secularism in actual practice: Experience shows that secularism has become a site for political and legal contestation. The difficulty lies in delineating, for purposes of public policy and practice, the line that separates them from religion. For this, religion per se, and each individual religion figuring in the discourse, has to be defined in terms of its stated tenets. The ‘way of life’ argument, used in philosophical texts and some judicial pronouncements, does not help the process of identifying common principles of equity in a multi-religious society in which religious majority is not synonymous with totality of the citizen body. Since a wall of separation is not possible under Indian conditions, the challenge is to develop and implement a formula for equidistance and minimum involvement. For this purpose, principles of faith need to be segregated from contours of culture since a conflation of the two obfuscates the boundaries of both and creates space to equivocalness. Furthermore, such an argument could be availed of by other faiths in the land since all claim a cultural sphere and a historical justification for it.

In life as in law, terminological inexactitude has its implications. In electoral terms, ‘majority’ is numerical majority as reflected in a particular exercise (e.g. election), does not have permanence and is generally time-specific; the same holds for ‘minority’. Both find reflection in value judgments. In socio-political terminology (e.g. demographic data) ‘majority’ and ‘minority’ are terms indicative of settled situations. These too bring forth value judgments. The question then is whether in regard to ‘citizenship’ under our Constitution with its explicit injunctions on rights and duties, any value judgments should emerge from expressions like ‘majority’ and ‘minority’ and the associated adjectives like ‘majoritarian’ and ‘majorityism’ and ‘minoritarian’and ‘minorityism’? Record shows that these have divisive implications and detract from the Preamble’s quest for ‘Fraternity’.

Within the same ambit, but distinct from it, is the constitutional principle of equality of status and opportunity, amplified through Articles 14, 15, and 16. This equality has to be substantive rather than merely formal and has to be given shape through requisite measures of affirmative action needed in each case so that the journey on the path to development has a common starting point. This would be an effective way of giving shape to Prime Minister Narendra Modi’s policy of Sab Ka Saath Sab Ka Vikas.

It is here that the role of the judicial arm of the state comes into play and, as an acknowledged authority on the Constitution put it, ‘unless the Court strives in every possible way to assure that the Constitution, the law, applies fairly to all citizens, the Court cannot be said to have fulfilled its custodial responsibility.’

How then do we go about creating conditions and space for a more comprehensive realization of the twin objectives of pluralism and secularism and in weaving it into the fabric of a comprehensive actualization of the democratic objectives set forth in the Constitution?

The answer would seem to lie, firstly, in the negation of impediments to the accommodation of diversity institutionally and amongst citizens and, secondly, in the rejuvenation of the institutions and practices through which pluralism and secularism cease to be sites for politico-legal contestation in the functioning of Indian democracy. The two approaches are to be parallel, not sequential. Both necessitate avoidance of sophistry in discourse or induction of personal inclinations in State practice. A more diligent promotion of fraternity, and of our composite culture, in terms of Article 51A (e) and (f) is clearly required. It needs to be done in practice by leaders and followers.

A commonplace suggestion is advocacy of tolerance. Tolerance is a virtue. It is freedom from bigotry. It is also a pragmatic formula for the functioning of society without conflict between different religions, political ideologies, nationalities, ethnic groups, or other us-versus-them divisions.

Yet tolerance alone is not a strong enough foundation for building an inclusive and pluralistic society. It must be coupled with understanding and acceptance. We must, said Swami Vivekananda, ‘not only tolerate other religions, but positively embrace them, as truth is the basis of all religions.’

Acceptance goes a step beyond tolerance. Moving from tolerance to acceptance is a journey that starts within ourselves, within our own understanding and compassion for people who are different to us and from our recognition and acceptance of the ‘other’ that is the raison d’etre of democracy. The challenge is to look beyond the stereotypes and preconceptions that prevent us from accepting others. This makes continuous dialogue unavoidable. It has to become an essential national virtue to promote harmony transcending sectional diversities. The urgency of giving this a practical shape at national, state and local levels through various suggestions in the public domain is highlighted by enhanced apprehensions of insecurity amongst segments of our citizen body, particularly Dalits, Muslims and Christians.

The alternative, however unpalatable, also has to be visualized. There is evidence to suggest that we are a polity at war with itself in which the process of emotional integration has faltered and is in dire need of reinvigoration. On one plane is the question of our commitment to Rule of Law that seems to be under serious threat arising out of the noticeable decline in the efficacy of the institutions of the State, lapses into arbitrary decision-making and even ‘ochlocracy’ or mob rule, and the resultant public disillusionment; on another are questions of fragility and cohesion emanating from impulses that have shifted the political discourse from mere growth centric to vociferous demands for affirmative action and militant protest politics. ‘A culture of silence has yielded to protests’ The vocal distress in the farm sector in different States, the persistence of Naxalite insurgencies, the re-emergence of language related identity questions, seeming indifference to excesses pertaining to weaker sections of society, and the as yet unsettled claims of local nationalisms can no longer be ignored or brushed under the carpet. The political immobility in relation to Jammu and Kashmir is disconcerting. Alongside are questions about the functioning of what has been called our ‘asymmetrical federation’ and ‘the felt need for a wider, reinvigorated, perspective on the shape of the Union of India’ to overcome the crisis of ‘moral legitimacy’ in its different manifestations.

I have in the foregoing dwelt on two ‘isms’, two value systems, and the imperative need to invest them with greater commitment in word and deed so that the principles of the Constitution and the structure emanating from it are energized. Allow me now to refer to a third ‘ism’ that is foundational for the modern state, is not of recent origin, but much in vogue in an exaggerated manifestation. I refer here to Nationalism.

Scholars have dwelt on the evolution of the idea. The historical precondition of Indian identity was one element of it; so was regional and anti-colonial patriotism. By 1920s a form of pluralistic nationalism had answered the question of how to integrate within it the divergent aspirations of identities based on regional vernacular cultures and religious communities. A few years earlier, Rabindranath Tagore had expressed his views on the ‘idolatry of Nation’.

For many decades after independence, a pluralist view of nationalism and Indianness reflective of the widest possible circle of inclusiveness and a ‘salad bowl’ approach, characterized our thinking. More recently an alternate viewpoint of ‘purifying exclusivism’ has tended to intrude into and take over the political and cultural landscape. One manifestation of it is ‘an increasingly fragile national ego’ that threatens to rule out any dissent however innocent. Hyper-nationalism and the closing of the mind is also ‘a manifestation of insecurity about one’s place in the world.’

While ensuring external and domestic security is an essential duty of the state, there seems to be a trend towards sanctification of military might overlooking George Washington’s caution to his countrymen over two centuries earlier about ‘overgrown military establishments which, under any form of government, are inauspicious to liberty.’

Citizenship does imply national obligations. It necessitates adherence to and affection for the nation in all its rich diversity. This is what nationalism means, and should mean, in a global community of nations. The Israeli scholar Yael Tamir has dwelt on this at some length. Liberal nationalism, she opines, ‘requires a state of mind characterized by tolerance and respect of diversity for members of one’s own group and for others;’ hence it is ‘polycentric by definition’ and ‘celebrates the particularity of culture with the universality of human rights, the social and cultural embeddedness of individuals together with their personal autonomy.’ On the other hand, ‘the version of nationalism that places cultural commitments at its core is usually perceived as the most conservative and illiberal form of nationalism. It promotes intolerance and arrogant patriotism’.

What are, or could be, the implications of the latter for pluralism and secularism? It is evident that both would be abridged since both require for their sustenance a climate of opinion and a state practice that eschews intolerance, distances itself from extremist and illiberal nationalism, subscribes in word and deed to the Constitution and its Preamble, and ensures that citizenship irrespective of caste, creed or ideological affiliation is the sole determinant of Indianness.

In our plural secular democracy, therefore, the ‘other’ is to be none other than the ‘self’. Any derogation from it would be detrimental to its core values.

Jai Hind.