Category Archives: Law

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’?

Continue reading Contempt of Democracy: Time for Judicial Reform

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

Satyameva Jayate? : With Regard to the Impending Execution of Mohammad Afzal Guru in Tihar Jail.

Posted on the Sarai Reader List on 16th October, 2006

A few days from now, a man called Mohammad Afzal Guru, son of Habibullah Guru, currently resident in Ward Number 6 of Jail Number 1 in Tihar Central Prison in Delhi will hang to satisfy the bloodlust of the Indian Republic, unless the President of India thinks otherwise, A few weeks ago, I recall reading the NDTV newscaster Barkha Dutt’s breathless three cheers for the fact that India retains the death penalty (so that the indignant tears in the eyes of television presenters like herself, and the loved ones of murder victims, can be wiped away with each rope that tightens around the neck of condemned prisoners). [See ‘A Battle for Life’: Barkha Dutt, on NDTV Columns, September 20, 2006]

At times like this, when hangmen are asked to practice their moves, nothing comes more in handy than the teflon coated enthusiasm for capital punishment of television crusaders like Barkha Dutt. Great democracies, like the United States of America, the Islamic Republics of Iran and Pakistan, the Peoples Republic of China, the Democratic Peoples Republic of Korea and enlightened states like the Kingdom of Saudi Arabia are known for their zeal in retaining the death penalty as a necessary part of state ritual. The Republic of India is in eminent company, and I am grateful to Barkha Dutt for making me remember that. I need not advance moral and ethical arguments against the death penalty here, because they have been so well countered by Ms. Dutt. Never mind the fact that states that have done away with the death penalty have lower rates of violent crime, never mind the fact the innocence of people that condemned to die has often been established after they have been executed. Ms. Dutt has demonstrated that the death penalty is the balm that comforts her agonized soul. And many of those who argue that the President should not in fact assent to the petition filed by Afzal’s family are also arguing that the Afzal must hang so that the Indian democracy and the loved ones of those who died defending the Indian parliament may rest in peace. The dignity of the Indian Republic hinges on the lever that will catapult Afzal into the empty space under the gallows in Tihar jail. As the noose tightens, our polity will blossom with renewed vigour. Continue reading Satyameva Jayate? : With Regard to the Impending Execution of Mohammad Afzal Guru in Tihar Jail.