Category Archives: Law

Devastating Looks: Smirks, Quirks and Judicial Authority

Devastating Looks: Smirks, Quirks and Judicial Authority

Raoul Vaneigem, the Belgian philosopher writes that “The economy of everyday life is based on a continuous exchange of humiliations and aggressive attitudes. It conceals a technique of wear and tear which is itself prey to the gift of destruction which it invites contradictorily”. In an incredible story in his chapter on humiliation, Vaneigem says that one day, when Rousseau was traveling through a crowded village, he was insulted by a lowly peasant whose insults delighted the crowd. The great philosopher Rousseau was completely taken aback and flushed with anger, but could not think of a single thing to say in reply and was forced to take to his heels amidst the jeers of the crowd. By the time he had finally regained his composure and thought of a thousand possible retorts, any one of which would have silenced the joker once and for all, he was at two hours distance from the village.

Vaneigem then says “Aren’t most of the trivial incidents of everyday life like this ridiculous adventure? but in an attenuated and diluted form, reduced to the duration of a step, a glance, a thought, experienced as a muffled impact, a fleeting discomfort barely registered by consciousness and leaving in the mind only the dull irritation at a loss to discover its own origin?”
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Women, Muslims & Other Backward Castes

The staple that one grew up on, was the idea, that WE, the people of India, had through a consensus, decided to constitute ourselves into a nation – a secular, democratic, Socialist (as an after thought perhaps, once Gharibi had been hataoed) republic. One was told that the Executive, the legislature and the Judiciary were the pillars that kept a check on each other, thus ensuring that every one was kept in their place, and the pulls and pressures exerted by each on the other two were built into the state structure in order that every one stayed on the straight and narrow.

All this was however soon forgotten to be replaced by the lived experience of the machinations of an uncaring and callous executive and a by and large insensitive legislature. The only hope now was the Judiciary, the third pillar of parliamentary democracy, and one waited with baited breath for the honourable courts to deliver this nation of a billion and more from the collective mess in which the other two had placed the people of the largest democracy in the world.

Judicial activism became the proverbial straw that one clutched at and hoped for more such straws to keep a destitute nation afloat.

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Amnesty report on the fifth anniversary of the Gujarat carnage

Here. (.pdf)

1. The direct victims of that violence and their relatives continue to face serious challenges and obstacles in securing justice;

2. An overwhelming number of the criminal cases relating to the Gujarat violence remain un-investigated and unresolved, or closed with the result that the majority of he perpetrators of the violence have gone unpunished and remain at large in the state – this is despite the reopening of 1,594 cases for reinvestigation after the Supreme Court of India (Supreme Court) order in August 2004;

3. The plight of those internally displaced from their homes as a result of the violence is continuing one. As many as 5,000 families are living in “relief colonies” without basic amenities or official recognition from the Government of Gujarat. The Government of Gujarat however continues to assert that all those displaced as a result of the violence have been rehabilitated;

4. Human rights defenders, tenaciously engaged in pursuing justice for the victims of the violence, face frequent harassment;

5. There is an ongoing practice of social and economic boycotting of Muslim communities in the state.

The Judge, he holds that grudge

He’s gonna call on you.
But he’s badly built
And he walks on stilts,
Watch out he don’t fall on you.”

Bob Dylan.

[Am posting this as an add on to Nivi’s excellent piece on Judicial despotism. It was written at the height of Delhi’s sealing drive, and was first posted in Frontline.]

Lord Krishna stared at Maya Danav – the demon of illusions and the greatest architect on earth- and asked him to design an imperial court that would “excel all those on earth”. Then, according to the Mahabharata, Maya Danav planned out a 90,000 square foot plot of land and so was built Indraprastha – the first mythical city of Delhi and earliest illusion of the “world class city”. Centuries later, Delhi’s most recent attempt at planning has proved to be less poetic to the point of bluntness. In its most recent ruling on 28 April 2006, the Supreme Court observed that the sealing of commercial properties in residential areas must go on, and that “a policy of appeasement” had lead to “systemic failure” of planning in the city.

Continue reading The Judge, he holds that grudge

Contempt of Democracy: Time for Judicial Reform

What would you call an institution that can overturn any policy adopted by democratically accountable governments; whose decisions are final, and cannot be reconsidered in any other forum; and which can throw into prison anybody who criticizes it? What would you call this institution accountable to nobody but itself, which has the sole power to appoint its own members and the sole power to decide if one of its own is guilty of a misdemeanour?

In India you would call it the Judiciary.
Cheered on vociferously by the freedom-loving media and its viewers/readers, the judiciary for about a decade, has been taking over more and more functions of government, until finally on January 11, 2007, the decisive judicial coup d’etat took place. By a judgement delivered on this day, the Supreme Court gave itself the power to strike down any law if it violates fundamental rights, resulting in the violation of the basic features of the Constitution. It is important to remember that constitutionally, no fundamental right is unconstrained, ‘reasonable restrictions’ being necessary to ensure that every citizen can enjoy these rights. Further, no right is beyond interpretation – does ‘right to equality’ entail affirmative action, for instance? There may be contradictions between fundamental rights; say between the right to equality of individual citizens and cultural rights of minorities. What exactly are the features that constitute the ‘basic features of the constitution’?

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Between the Devil and the Deep Blue Sea

Sometimes only a good old cliché can capture the essence of certain things.

How many times in the past few years, while watching television have we wanted to strangle the anchor (“aap ke saath itna na-insaafi hui hai, aapko is waqt kaisa lag raha hai” or “There has been a gruesome terrorist attack at the IISC in Bangalore, dont go away, we will return to the story immediately after out reporter updates you on Aamir Khan’s wedding which is taking place in the same city). And yet while watching what is perhaps the closest televised strangling of a reporter, it was with a strange sense of pleasure and fear.

The interview that I am referring to is Sagarika Ghose’s of Ram Jethmalani on his decision to defend Manu Sharma. Here is a small sampling

Sagarika Ghose: But as a criminal lawyer, don’t you believe there is a lakshman rekha that even all criminal lawyers have to work under?

Ram Jethmalani: I am sorry. Please don’t talk of this bullshit to me. I know what my lakshman rekha’s are. I have read my rules of the conduct of a lawyer. It will be the saddest day when a lawyer refuses to stand between the state and the final verdict.

Ram Jethmalani: I have told you it’s none of your business—the courts will decide. And for God’s sake, stop becoming judges and Gods. You are over stepping the limits of your duty

Sagarika Ghose: But why don’t you search your own conscience. A young girl was shot in the presence of a hundred people.

Ram Jethmalani: I am searching my own conscience. All this bullshit won’t convince me at all. My conscience is mine and you are not responsible for it. And I don’t sell my conscience either to you or to anybody else nor will I change my professional etiquette because some chit of a girl comes and tells me that something is wrong.

An absolute demolition and indictment of the media, if ever there was one. I guess the fact that the case deals with Manu Sharma of the Jessica Lal case makes us all a little less enthusiastic about this slap in the media’ s face.

But what is really scary however in the interview is the way that the devil of the day-a lustful and loathsome corporate media is pitted against its other- the Courts, the sea of wisdom in which the rule of law sails. So the illegitimacy of the media happens only via the further strengthening of judicial sovereignty; For Jethmalani, the battle for the truth is a battle between the media and the judiciary. Someone has rightly said it is almost impossible to think of battles in the contemporary without being bewildered about where lines are drawn, and what they mean. Stewart Motha for instance accurately describes the battle between Islam and Democracy as a battle between two monotheisms. In India, the battle between the judiciary and the media for the truth takes place at the site of citizenship and the casualties of this battle and its lies are borne by the denizen.

So on the one hand, we have Sagarika Ghosh (self righteous indignance dripping with every syllable) asking “Why me? I am just a voice of the people” and on the other we have Jethmalani’s tirade “You don’t know the rule of the law, you don’t know democracy; you don’t know anything”.

Those who neither have any Faustian contracts, nor can swim very well are in a lot of trouble.

Doublethink in the Time of Criminal Reform

Orwell created a range of wonderful concepts in his dystopic novel 1984 to characterize the language of power. One such phrase Doublethink referred to the ability to hold “two contradictory beliefs in one’s mind simultaneously, and accepting both of them” without being aware of their contradictions.

The latest addition to the vast repository of doublethinks in the archives of the Indian state comes from the background note of the new committee formed for the reform of the criminal justice system. Barely a few years after the controversial Malimath Committee, yet another committee has been formed under the chairmanship of Dr. Madhava Menon (the founder of the National Law School in Bangalore). The National Criminal Justice System Policy Drafting Committee (“NCJSPDC”) has been constituted “taking into account changing profile of the crime and criminal” We can safely assume in the context of the global war against terror, what the changing profile of the crime and the criminal refers to. Continue reading Doublethink in the Time of Criminal Reform