What is the difference between Chhattisgarh and Kerala?

The following is the text of a statement issued by the Asian Human Rights Commission on May 26, 2007

Chhattisgarh and Kerala are two states in India. Chhattisgarh is a newly formed state compared to Kerala. Chhattisgarh and Kerala have nothing much in common. For example, the Chief Justice of India is from Kerala whereas judges like Mr. Jagdish Bhalla are asked to serve in Chhattisgarh.
What is so special about Justice Bhalla? Justice Bhalla is neither an activist nor a balanced judge. Like some of his counterparts in the Indian judiciary, retired and serving, Justice Bhalla has attracted criticism time and again. The criticism against Justice Bhalla is regarding his integrity.
One such incident happened in July 2006. This was in connection with the eviction of farmers in Ghaziabad district of Uttar Pradesh state. A private company wanted to set up a 3000 megawatt power generating unit in the district. This required the eviction of 2500 families, mostly farmers, from Bejhera Khurd, Kakrana, Dhaulana, Dehra and Jadaupur villages of the district. The evictees protested and prevented the company from taking possession of their property. The company tried to resolve the issue by use of force, for which it approached the state police. The state police advised the company to obtain an order from the court so that use of force could be legitimised.
The company found it difficult though, since it could not expect a court to sanction use of force to complete an illegal and arbitrary deal. However, the company found its way out by filing a petition before the Lucknow bench of the Allahabad High Court. The presiding judge was Justice Bhalla. Even though the Lucknow bench did not have territorial jurisdiction over the issue, Justice Bhalla accepted the petition filed by the company. The petition was filed after the regular working hours of the court on 7 July 2006.
Justice Bhalla directed two of his fellow judges, Justice Bhanwar and Justice S. N. Shukla, to hear the matter at their residence. Mr. Aarohi Bhalla, son of Justice Bhalla appeared for the company. Sure enough, Aarohi Bhalla had enough ‘authorities’ to be quoted to obtain a favorable order for his client on the same day. The order was issued without notice to the government. The state police was directed to provide protection to the company. Armed with the order, the company and the state police unleashed terror in the villages. Several persons were injured, houses were looted and the police opened fire upon the protesting villagers.
The Indian judiciary is often criticised for its delay. There is an alternate view however, that the judiciary in India is not appreciated for its promptness in dealing with certain cases, though it helps only 10 percent of the litigants. It is evident that the private company that approached Justice Bhalla belongs to this 10 percent and the people upon whom the police fired at was from the rest 90 percent.
Justice Bhalla did not abstain from being involved with controversies with his support to this 10 percent Indians who could approach the judiciary successfully in times of need. He himself later joined this group by purchasing a piece of land in Noida in Delhi. Land value in places like Noida is so high that only 10 percent Indians could afford to buy properties of such value. Bhalla being a judge could not afford to pay such price – legally – with his salary. Thus Bhalla’s wife bought the land in her name, that too for a paltry sum of two hundred thousand rupees.
There is nothing wrong in a judge’s wife procuring landed property. But something must be wrong if a judge like Bhalla through his wife buy property worth millions for a meager sum. It is quite natural for the President of India in such circumstances to ask for clarifications from the Ministry of Law and Justice when the Supreme Court’s recommendation for promoting Justice Bhalla as the Chief Justice of Kerala High Court was tabled before the President. The Ministry forwarded the matter for the consideration of the Supreme Court collegium for its decision.
The collegium headed by the then Chief Justice Mr. Y. K. Sabharwal cleared Justice Bhalla’s name from the controversy. In the meanwhile Justice Sabharwal retired and Justice K. G. Balakrishnan replaced him. Justice Balakrishnan is from Kerala. The current collegium however did not advice the President to transfer Justice Bhalla to the Kerala High Court. Instead the President was advised to transfer Justice Bhalla to the Chhattisgarh High Court. The senior most judge of a high court is often appointed as its chief justice. Justice Bhalla being the senior most judge at Chhattisgarh will soon become the chief justice. In these circumstances Justice Bhalla’s transfer and appointment has cast doubts in the manner in which the collegium of judges in the Supreme Court has dealt with this issue.
Appointment, transfer and promotion of judges, particularly those in the higher judiciary are often maters that lack transparency in India. A judge of a high court or the Supreme Court can only be removed through an impeachment process. The parliamentarians have showed their lack of will in the past when they were forced to deal with the case of one of the most controversial judges in the country’s history. However, the bar at that time had shown the courage to refuse to practice in the court presided by that judge.
The Supreme Court delayed taking any decision at that time too. In the meanwhile that judge was promoted as the chief justice of a high court and later elevated to the Supreme Court. However, the judge resigned putting an end to the entire issue – as far as the Supreme Court was concerned. Questions regarding whether the judge was asked to repay the taxpayers’ money that he spent illegally is yet to be answered.
When simple but important answers are not forthcoming, persons tend to exploit such opportunity, which is human nature. This exploitation is neither the product of a particular period or region. The resistance to change in such circumstances by those who could benefit by this exploitation is quite natural. In a reasonably functioning democracy the judiciary is not considered as a holly cow.
The judiciary is yet another organ of the state intended to serve the people. The very nature of this service requires the judiciary to maintain certain basic standards of which the most important is the integrity of the judges. However, judges are human beings and to err is human. What is required is the openness to correct the error and to prevent repetition of mistakes. What the Indian judiciary lack is precisely this. This among various other factors has resulted in the ordinary people resorting to other means to settle their issues.
Kerala is one of the states that is yet to be affected by armed rebellion, whereas Chhattisgarh is in the middle of it. No state organ can function without peoples’ support. The judiciary in India, if it continues to function in the current fashion will further isolate itself from the ordinary people. As of today, Chhattisgarh is a state that faces various challenges from armed uprising to lack of basic infrastructure to function. It is during these times disputes increase in number and people forced to approach the courts seeking justice. However, when the courts are presided over by judges with tainted integrity where else should the people look to? Probably this is one of the sources where from those who take up arms find their justification and support.
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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.

Another superstructure built on fraudulent foundation?

The basic structure theory and the creamy layer theory are two ideas that sprouted in fertile Indian judicial minds decades after the Constitution came into force and have been widely propagated by the Supreme Court since then.
The basic structure theory was propounded by Chief Justice S. M. Sikri when the court decided the Kesavananda Bharati case on April 24, 1973.
A 13-member bench, the largest in the court’s history, was constituted to hear the case as the matter called for review of the judgment in the Golak Nath case, which was decided by an 11-judge bench in 1967. The 13 judges produced 11 separate judgments.
T.R.Andhyarujina, a former Solicitor General, who was counsel for one of the parties in the case, writes: “It was a hopelessly divided verdict after all the labour and contest of five months. No majority, no minority, nobody could say what was the verdict.
“How was it then said that the Court by a majority held that Parliament had no power to amend the basic structure of the Constitution? Thereby hangs a tale not generally known. Immediately after the 11 judges finished reading their judgments, Chief Justice Sikri, in whose opinion Parliament’s power was limited by inherent and implied limitations, passed on a hastily prepared paper called a ‘View of the Majority’ for signature by the 13 judges on the bench. One of the conclusions in the ‘View of the Majority’ was that ‘Parliament did not have the power to amend the basic structure or framework of the Constitution’. This was lifted from one of the conclusions in the judgment of Justice H. R. Khanna. Nine judges signed the statement in court. Four others refused to sign it.”

Andhyarujina’s reconstruction of the formulation of the basic structure theory appears on the Editorial page of The Hindu. See “Basic structure of the Constitution revisited”.
See also Superstructures built on fraudulent foundations.

Merit in IT sector

Carol Upadhya, Fellow, School of Social Sciences, National Institute of Advanced Studies, Indian Institute of Science campus, Bangalore, in an article published in the Economic and Political Weekly, presents data from a study of the Information Technology workforce in Bangalore, draws on other sources and discusses the ideology of merit that dominates the IT sector. Says the writer:

The limited data available from our own and other studies suggest that the IT workforce is much more socially homogeneous than is often claimed by many industry leaders, in terms of class (middle class), caste (upper and middle caste), and regional (urban) background. With regard to caste and community, 88 per cent of respondents in our survey were found to be Hindus while only 5 per cent were Christians and 2 per cent Muslims. Brahmins constituted 48 per cent of our sample. The predominance of Brahmins is not surprising, given their historical monopoly over higher education and formal sector employment, especially in south India. If we include others belonging to “twice-born” castes, the figure for all upper castes comes to 71 per cent. Employees from dominant agricultural castes [including some which are classified as other backward classes (OBCs)] constituted 15 per cent, bringing the proportion of respondents who come from upper or dominant caste groups to 86 per cent. If we further include some of the Christian respondents, such as Syrian Christians (a relatively wealthy landowning
community in Kerala), the proportion is even greater. Only one respondent said that he belonged to a scheduled community.

The article appears in May 19, 2007 issue of EPW.

US daily takes a dig at casteism

The Wall Street Journal takes a dig at the caste system in a cartoon published on May 17, 2007.
The cartoon can be seen at sajaforum.

Caste in Academia

It was to protect the merit system that supposedly prevails in the elite All India Institute of Medical Sciences, New Delhi, that caste supremacist kids masquerading as youth for equality staged a sponsored agitation, which received favourable media and judicial attention, last year. Manoj Mitta of the Times of India throws light on how the system works there.
Sukhbir Singh Badhal, a Dalit post-graduate, stood first in the selection examination in lab medicine held five months ago. By virtue of his record he was entitled to a senior resident post in the man lab of the AIIMS. The post went to the holder of the second rank, who belonged to the general category.
According to Mitta, Badhal suffered such injustice despite an order in his favour from the Dean (Academics) R C Deka. Three subordinates of Deka overruled his order. These subordinates were appointed on ad hoc basis by AIIMS Director P. Venugopal in the wake of the Mandal II stir.
Says Mitta: “This is autonomy, AIIMS style — autonomy measured by the impunity with which influential insiders can discriminate against lower caste students and staffers in India's premier medical institute, right in the Capital.”
Manoj Mitta’s story is at http://timesofindia.indiatimes.com/Diagnosis_Casteism/articleshow/2039283.cms
Now to an Indian Institute of Technology, another repository of national merit.
On August 9, 2006, the Tamil Nadu government chose W. P. Vasantha Kandasamy, Assistant Professor of Mathematics at IIT, Chennai, for the Kalpana Chawla Award instituted by it.
The next day the New Indian Express, Chennai, quoted Vasantha Kandasamy as saying she had been at the IIT for 18 years but had not been made a professor “due to my caste”. She had been teaching for 32 years by then. During this period, she wrote 27 books, of which 24 were published abroad.
Vasantha Kandasamy said, “I am the only OBC woman in the whole of IIT Madras. I saw that students from the backward castes were not treated properly and were laughed at when they attended interviews because of their rural background.
“I was a very docile and quiet person. But when I saw people discriminating against me and others belonging to Dalit and OBC community my tempers rose.”
Tamil Nadu instituted the Kalpana Chawla Award, which consists of a medal and a cash prize of Rs. 500,000, to honour women with daring enterprise. The New Indian Express (August 11, 2006) reported that IIT’s response to the selection a member of its staff for the award was “cool”.
Some students congratulated Vasantha Kandasamy. But her colleagues were not excited. Only one professor could bring himself/herself to say anonymously, “I am happy that Vasantha, who has not been appreciated here, has at least been recognised by the State government.”

Chhattisgarh petition against judge

An activists’ network in Chhattisgarh is collecting signatures for an online petition seeking suspension of Justice Jagdish Bhalla’s transfer from the Lucknow bench of the Allahabad High Court to the Chhattisgarh High Court.
Justice Bhalla, the seniormost judge of the Lucknow bench, was earlier recommended by the Supreme College collegium for appointment as Chief Justice of the Kerala High Court.
The Committee on Judicial Accountability, an NGO headed by former Union Law Minister Shanti Bhushan had written to the President, Chief Justice of India and the Speaker of the Lok Sabha alleging corruption in the acquisition of a plot in Noida by Justice Bhalla’s wife. A group of social activists in Kerala, headed by eminent litterateur Sukumar Azhikode, demanded that Justice Bhalla should get his name cleared before taking over as Chief Justice in Kerala.
The President returned the file to the Government of India, which sent it back to the CJI. The Supreme Court collegium, which considered the matter afresh, recommended that Justice Bhalla be transferred to Chhattisgarh, instead of being posted as Chief Justice in Kerala. Simultaneously, it recommended transfer of Justice H.L. Dattu, Chief Justice of Chhattisgarh High Court as Chief Justice of the Kerala High Court.
The online petition points out that on taking charge in Chhattisgarh, Justice Bhalla, as the seniormost judge, will become acting Chief Justice of the High Court. Pointing out that the allegations of corruption raised against him have not been refuted by any independent investigation, it says, “Under these circumstances, it will be best for Justice Jagdish Bhalla to clear his name before assuming charge in Chhattisgarh high court. This move will retain public perception on the neutrality and honesty of the Indian judiciary.”

The online petition is at www. petitiononline.com/cgcourt/petition.html (please cut and paste)

Superstructures built on fraudulent foundations

When the Supreme Court blocked the Centre’s bid to extend reservation for the backward classes in admissions to elite institutions like the IIMs, a retired IAS officer, writing in a Chennai newspaper, hailed the overturning of “the Menacing Mantra of Mandalism founded on a superstructure of fraudulent foundations”.
That set me thinking about superstructures built on fraudulent foundations, which the Supreme Court has not overturned, and probably never will.
The oldest Indian superstructure built on a fraudulent foundation is Manusmriti. We know that B. P. Mandal, the author of the Mantra that the ex-bureaucrat finds menacing, was born in Bihar. But we have no reliable information about Manu Swayambhuva, the supposed author of the Code of Manu.
Pundits have offered several explanations for the name. One is that Manu was the first Man -- the Hindu Adam, if you like. He was Swayambhuva, that is to say, he procreated himself. Another explanation is that he was Manu, son of Swayambhuva, who, of course, is the Creator who created Himself. The suggestion is that Manu was his given name and Swayambhuva his surname!
Thanks to painstaking research by K. P. Jayaswal, a renowned scholar in Sanskrit and Law, in the early part of the last century, we know that the man who is today fraudulently identified as Manu Swayambhuva was Sumati Bhargava, a member of the Bhrigu family. Delivering the Calcutta University’s Tagore Law Lectures on “Manu and Yajnavalkya – a comparison and a contrast”, Jayaswal said,
The author of the Naradasmriti, writing in or about the 4th century of the Christian era, states that one Sumati Bhargava composed the ‘Code of Manu’. Sumati Bhargava is not a legendary name. He must, therefore, be taken to be a historical entity. The author of the Naradiya is not uncorroborated. The Code itself is signed in the family name of Bhrigu, which was the ancient custom current up to the first century of the Christian era. “The text composed by Bhrigu (entitled) ‘the Dharma Code of Manu’” is the real title of the work, subscribed to at the end of every chapter of ‘Manu’s Code’ itself.
Jayaswal delivered the Tagore lectures in 1919. The lectures were published in book form a decade later. The extract given above is from an edition of this book, brought out by Cosmos Publications, a division of Genesis Publishing Pvt. Ltd., Daryaganj, New Delhi, in 2004.
Manu’s Code, according to Jayaswal, was written during the Sunga period (185 to 73 BC). The Sungas, who took power after the decline of the Buddhist empire of the Mauryas, were Brahmins. The Brahmin was the ‘lord of everything’ and the absurd claims that the Code made for Brahminism were generally admitted at the time. The Sungas were followed by the Kanva dynasty. Bhasa, who belonged to the Kanva period, indicates that Sumati’s code was the ruling authority in that period too. In Bhasa’s time, the Brahmin was a militant: he was always armed.
A few centuries after the Code of Manu came the Code of Yagnavalkya. Says Jayaswal:
The Code of Yagnavalkya reduced the fanatical penances of Manu to very reasonable limits. It raises the position of the Sudra, allows him Chandrayana penance which had been open only to the twice-born, enjoins respect to be shown to him when gifted with knowledge, and allows trade to him. The extravagant punishments for his suppression are omitted. Likewise the extravagant claims of the Brahmin for total immunity are set aside, and he is brought under the king’s law. The profession of arms is once more forbidden to the Brahmin. His claim to sovereignty is ignored.
According to Jayaswal, Yagnavalkya’s code bears the stamp of the kindly conscience bequeathed by Buddhism. It made penances and punishments less severe. Laws about women were brought in conformity with their social position, already immensely raised by Buddhism. Their right to inherit was fully admitted. All this certainly did not make the Yagnavalkya code very modern. As Jayaswal puts it, “Yagnavalkya with his progressive tendency still retains orthodox conservatism.”
Jayaswal avers that Yagnavalkya’s Code may be taken to have replaced and repealed Manu’s Code throughout the land of Aryan civilization. Yet it is by Manu’s name that the votaries of Hindutva swear today, not by Yagnavalkya’s. Even the Supreme Court often invokes Manu’s name. It rarely mentions Yagnavalkya’s.
Incidentally, both Manu and Yagnavalkya belong to the Yajur Vedic school, Manu to the Black one and Yagnavalkya to the White one.
Merit is another Indian superstructure built on a fraudulent foundation. Within months of the promulgation of the Constitution on January 26, 1950, one Chembakam Duraisamy filed a petition in the Madras High Court challenging reservation for the backward classes, which had been in force in Madras since the British days.
Chembakam claimed she had applied for admission in a medical college but could not get a seat because she belonged to a forward community. Her case was argued by Alladi Krishnaswami Iyer, who was a member of the Committee that drafted the Constitution. The High Court declared the reservation policy unconstitutional. The Supreme Court, on appeal, upheld the High Court order.
Years later it came to light that Chembakam, who completed her B.A. in 1934, had not applied for admission to any medical college in 1950, as was claimed in the petition.
The fraud served a wider national purpose. The Supreme Court decision prompted Parliament to introduce a clause in the Constitution, giving the state the power to make special provisions for socially and educationally backward classes of people.