Author: Krishen Kak
Publication: www.vigilonline.com
Date: May 5, 2004
URL: http://www.vigilonline.com/reference/columns/vicharamala_view.asp?col_id=76
Thoughts on issues of current interest
[my comments - as an Indian citizen - within square brackets], including
instances of some double standards of our public figures, especially in
the construction of Indian identity (all those Macaulayan myths, and the
hypocrisy that is Nehruvian secularism) - Krishen Kak
[One of life's less immediate puzzles
is why India, striving to be a modern democracy, persists in retaining
a feudal, gender-biased anachronism - the titles by which we address and
by which our superior (=/= subordinate) judges require that they be addressed.
Lordships. (There are no Ladyships; even the ladies are Lords). Not a plain,
dignified, respectful Madam or Sir, but as "Lords".
I have myself been a district magistrate
and the highest we rated was "Your Honour" (cf. Skt "arya"), but since
arguments were usually in Gujarati or Gujlish, "Sir" was the commoner and
more convenient appellation ("sir", etymologically from "senior" = older,
elder. Cf. the homonymic "sar-dar"!). I once heard a young Indian wife
summon her husband with a "Sir-ji"!
Some years ago, as a petitioner,
I entered for the first time in my life a high-court room, to be overwhelmed
by its high ceiling, its dark wood-panelled walls, the high dais on which
their two lordships sat on throne-like chairs, flanked by uniformed patte-dars.
Can you imagine a villager here, standing up fearlessly as a citizen to
demand his or her democratic rights, I asked a colleague. It was literally
awesome, and their lordships did nothing to dispel the awe. The younger
lawyers especially bowed and scraped and "mi-ludded" their way through
their arguments, and I was particularly struck by one (this was a few days
before Diwali, and he made that point) who asked for a stay of some class
IV dismissals because the principle of "last come, first go" had not been
followed. "They are on the streets, milord", he said. And one of his lordships
replied - I quote, because the words seared themselves into my consciousness
- "Let them live on the streets a little longer; we have no time for them".
I turned to the colleague and whispered to her that I now actually realize
why people begin to resort to guns to settle grievances.
These thoughts revived themselves
on reading the interview given to a newspaper by His Lordship the Chief
Justice of India a day before he retired. Speaking to J Venkatesan (`I
raised the image of the judiciary', The Hindu, May 2, 2004), Chief Justice
VN Khare made various claims and passed various criticisms - and no one
seems to have protested so far. Here is a sitting judge making "scathing
observations on the [Gujarat] State Government", implicitly on the Gujarat
High Court, explicitly on his own "subordinate judiciary", on his brother
lords of the Punjab and Haryana High Court, and praising himself so much
that the journalist responded with "No doubt his tenure will go down as
a golden era in the era in the history of the Supreme Court for the manner
in which he dispensed justice"!
About the same time, the Supreme
Court "pulled up the Patna High Court Chief Justice" and said that "An
institution dealing with another institution under the Constitution should
observe grace and couretesy. No judge should criticise another judge, and
certainly not strongly" (The Hindu, May 3, 2004).
Yet the Supreme Court just had its
own chief justice openly, publicly, strongly, and extra-judicially criticising
other institutions under the Constitution.
What if the Gujarat State Government
had replied likewise? A straight slapping on it of contempt of court?
But what could have been the now-Mr
Khare's motivation, to give such an interview the day before he retired?
A guess is that he wanted to score political brownie points. The English
mainstream media has gone to town with exit poll claims that the NDA is
out of power, and prime ministerial hopefuls of the so-called secular parties
are popping out of the woodwork. It makes political sense to proclaim alignment
with the rising sun - an allusion to Indira Gandhi made notorious by Justice
Bhagwati when he greeted her post-Emergency return to power. The distinguished
Justice Bhagwati, having done his suryanamaskar, went from strength to
strength. Even if his quondam lordship VN Khare no longer can claim the
title, the perquisities that go with it - house, car, phone, etc., etc.
- at the taxpayer expense can still be his in another public appointment
courtesy his political correctness. After all, how many remember Justice
HR Khanna?
But the matter really goes much
deeper. It is one of double standards. We have seen Constitutional functionaries
such as Chief Election Commissioners brazenly use the weight of their chairs
to deride other Constitutional functionaries. But at least they are susceptible
to public criticism. Their puissant lordships of our high judiciary, not
just secure in their chairs but armed with a damoclean law of contempt,
have insulated themselves against even the most well-meant, honest and
democratic criticism.
What is the consequence?
Not respect for the higher judiciary,
but fear. And is it fear that our judiciary considers the appropriate sentiment
for itself in our democracy? The Supreme Court recently alluded to Gandhi
in one of its judgements. But how about Tagore, who prayed "Where the mind
is without fear...." for our country?
Rajeev Srinivasan writes "The recent
decision where the Honorable Court ordered the retrial of the Best Bakery
case is another example where Old Leftists have continued to badger the
courts. I have some points of disagreement with what the Honorable Court
said, but in fear of contempt of court, I shall say nothing" (http://in.rediff.com/news/2004/apr/21rajeev.htm
- I urge you to read the full essay).
Srinivasan is just a private citizen.
Then Central Vigilance Commissioner N Vittal was asked by Onkar Singh,
"The former chief justice of India, S P Bharucha, has said that 20 per
cent of the judiciary is corrupt. Comment?" and Vittal fearfully responded:
"When it comes to the judiciary I can only say that whatever the former
chief justice of India has said must be correct. So I would not make any
comment against the judiciary for I would be hauled up for contempt of
court" ((http://www.rediff.com/news/ 2002/may/13inter.htm).
The Pioneer in a carefully-worded
editorial (April 22, 2004) outlines "the need for the higher judiciary
to put in motion an effective system to ensure appropriate conduct by its
members and take action where necessary. The one in force does not seem
to be working", an opinion shared by an equally carefully-worded editorial
in The Hindu (April 22, 2004) that notes how judges break the law they
impose on others - and get away with it ("I do not have powers to deal
with corrupt and undisciplined judges" confessed his then lordship VN Khare
about the P&H High Court judges). The Hindu editorial asked for "greater
accountability and transparency within the higher judiciary". The Pioneer
editorial noted the "need to amend the country's draconian contempt of
court laws which prevent the media from freely reporting developments affecting
the courts and thereby blowing the whistle in time to prevent matters from
getting out of hand".
The Chief Justice is reported to
have sorted out the P&H scandal, but in camera. There have been other
scandals that made their way into the news (concerning the Karnataka and
Rajasthan High Courts, for example) but the Supreme Court acts promptly
to squelch democratic comment and scrutiny. Corruption and indiscipline
by ordinary citizens can and does result in our being hauled up before
the courts, but "corruption and indiscipline among judges", as the Khare
interview made clear, should be dealt with in-house and secretively. One
law for the janta, and another for their lordships? Recall that our country's
President in his April 18 address to to the nation informed us that "in
a democracy, an important principle is the equality of every citizen" (The
Hindu, Apr 19, 2004). If all citizens in a democracy are equal, why then
these double standards?
Consider Mahatma Gandhi's self-instruction
that "I do not want my house to be walled in on all sides and my windows
to be stuffed. I want the cultures of all lands to be blown about my house
as freely as possible. But I refuse to be blown off my feet by any" (Young
India, June 1, 1921).
For "cultures of all lands" read
"fresh air of democracy". Why are Their Lordships the Honourable Justices
of the Supreme Court of India so averse to becoming plain "Sirs" and "Mesdames"
as befits a democracy? Are they so insecure in their chairs that they fear
they will be blown away by the fresh air of democracy?
I've always considered the britannic
symbol of blindfolded justice (representative of the adversarial basis
of anglo-saxon jurisprudence) as hopelessly irrelevant to us and our worldview.
Far more appropriate would be a representation of Kannagi, demanding that
the dispenser of justice subject himself to the same justice he dispenses
to others.
"...she utters blasphemies/ Against
your sacred person and against/ The justice of your rule" " yet the king
does not threaten her with contempt but insists that "If her demand is
just, she shall/ Have it fulfilled however much it may cost."
She taunts him, and even while he
gently admonishes her for her disrespect, he assures her of justice. He
"excuses her foul and unwarranted words because of her grief" and "because
his patience as well as his mercy have no bounds".
Kannagi still unrestrained, the
king finally threatens her with "contempt of court". She then establishes
"honesty" in her defence. He promptly applies to himself the same justice
that he does to others.
For what is justice if not the rectification
of a wrong and the restoration of virtue, with king and commoner subject
to the same dharma? Indeed, the rajdharma (to use the word recently favoured
by the Supreme Court) is the more stringent in its application to the raja
than to the praja.
Judges are invariably described
as "learned". In regard to true learning, recall that old saying that the
more laden the tree is with fruit, the lower bend its boughs.
When respect is demanded, only fear
is given. Where respect is commanded, it is freely and admiringly offered..
(I've used Kasthuri Sreenivasan's
adaptation of the Silappathikaram published by the Bharatiya Vidya Bhavan,
1982). For readers curious about the "why" of hypersensitivity to the showing
of disrespect, and about parhesia ("frank candor") as the foundation of
democracy, check out pp 70-71 and 95 respectively of Richard Stengel, "You're
Too Kind: A Brief History of Flattery" (Simon & Schuster, 2000).]
