Valmiki’s Ramayana says, in Thretha Yuga (the second aeon according to Hindu mythology), Prince Rama of Ayodhya built a bridge across the sea to move into Lanka with an army of monkeys to rescue his consort, Sita, who had been abducted by the demon king, Ravana. Many legends based on this ancient tale have gained currency in India. Even a squirrel helped in the construction of the bridge. Thus the Malayalam saying, “Even the squirrel contributes its mite”. Pleased with the squirrel’s labour, Rama stroked it. Thus came the three lines on a squirrel’s back which we can see even today.
According to the epics, the second of the four aeons was 1,296,000 years long. It was followed by Dwaapara Yuga, which lasted 864,000 years. Then came Kali Yuga, which runs for 432,000 years. We have so far put behind us about 5,000 years of it. Thus, even if Rama had lived at the end of Thretha Yuga the bridge across the sea was built about 900,000 years ago. Going by current scientific knowledge, at that period this region was still inhabited.
Europeans roaming the world, looking for colonies, noticed a sandbank under the sea in the strait between the Indian mainland and Ceylon. In the 18th century, the British named the strait after Robert Palk, Governor of Madras. Earlier, the Portuguese had named a peak in Ceylon after Adam, the first man of Jewish-Christian lore. The Europeans called the sandbank Adam’s Bridge. There is a giant footprint, five and a half feet long and two and a half feet wide, on Adam’s Peak. Men of different faiths have linked it to their religions through legends. To the Buddhists, it is the footprint of Gautama the Buddha. They call it Sreepaadam (Holy Footprint). To the Hindus, it is Aadipaadam (First Footprint), created when Lord Siva danced. The Portuguese claimed it was the footprint of St. Thomas the Apostle. In an Arab tale, it is Adam’s footprint. According to this story, God put Adam on this peak when He turned him out of the Garden of Eden. Adam did penance for a thousand years, standing on one foot. After leaving his footprint there, he set out for Arabia. Even before these religions reached the island, the mountain was considered sacred by local tribes. In their legends, that is where god Saman lives.
There is no evidence to prove that the Buddha, St. Thomas or Adam set foot on the island. Sreepaadam developed as a pilgrim centre without any problem. Now the sandbank known variously as Rama’s Bridge and Adam’s Bridge is at the centre of a controversy. It all started with a Press Trust of India report from Washington, DC, on October 9, 2002.
The report said, “The NASA Shuttle has imaged a mysterious ancient bridge between India and Sri Lanka, as mentioned in the Ramayana.
“The evidence, say experts matter-of-factly, is in the Digital Image Collection.
“The recently discovered bridge, currently named as Adam's Bridge and made of a chain of shoals, 30 km long, in the Palk Strait between India and Sri Lanka, reveals a mystery behind it.”
The report, which cited no authority, continued, “The bridge's unique curvature and composition by age reveals that it is man-made. Legend as well as archaeological studies reveal that the first signs of human inhabitants in Sri Lanka date back to the primitive age, about 1,750,000 years ago and the bridge's age is also almost equivalent.”
Free Republic, which describes itself as the premier online gathering place that champion causes which further conservatism in America and has fun doing it, displayed the patently absurd news agency report at its website the very next day. The report also found its way into Hindutva sites. When NASA found that wrong information was being circulated in its name, it tried to set the record right. "Remote sensing images or photographs from orbit cannot provide direct information about the origin or age of a chain of islands, and certainly cannot determine whether humans were involved in producing any of the patterns seen," NASA official Mark Hess said. He added, "The mysterious bridge was nothing more than a 30 km long, naturally-occurring chain of sandbanks called Adam's bridge. NASA had been taking pictures of these shoals for years. Its images had never resulted in any scientific discovery in the area.”
The Hindutva brigade, which ignored the NASA clarification, demands that the Government of India abandon the Sethusamudram canal project, which aims at deepening the Palk Strait, as it will damage the bridge that Rama had built. The project was first proposed by Fred Taylor, an Englishman, a century ago. He said deepening the strait and cutting a new 50-mile channel will make it possible for ships to move from India’s west coast to east coast without circumnavigating Ceylon. The British rulers did not pursue the idea. After Independence, a committee under Dr. A. Ramaswami Mudaliar was set up to examine the feasibility of the project. The committee found the project viable but the government did not take it up due to financial constraints. When the Bharatiya Janata Party-led National Democratic Alliance was in power, the project again came up for consideration. After the United Progressive Alliance took office, at the instance of its constituent, the Dravida Munnetra Kazhagam, the government decided in 2005 to take up the project.
The Sethusamudram project envisages an expenditure of Rs. 24.27 billion. The authorities claim that the fees paid by ships using the new channel will make the project profitable from the very first year. However, shipping transport experts question the claim. According to them, ships from Europe and Africa will not use the canal as the fees proposed are too high for saving eight hours. The DMK’s keen interest in the project stems from the belief that it will benefit Tamil Nadu. It is said that, besides Thoothukudi, 13 minor ports of the State, from Ennore, near Chennai to Kolachel on the Kanyakumari coast, will benefit by it. The State government has already drawn up schemes for the development of these ports. But J. Jayalalithaa’s All India Anna DMK has endorsed the Hindutva argument and opposed the project.
The Sangh Parivar has been agitating for more than two decades for the construction of a temple at Ayodhya, said to be Rama’s birthplace, with a view to creating a Pan Hindu vote bank. It was partial success in this effort that enabled the Bharatiya Janata Party to come to power in several States on its own and at the Centre in alliance with some other parties. Even as the appeal of the Ram temple slogan has diminished, the Sethusamudram project has provided a new opportunity to fan Hindu sentiments. The temple slogan had yielded the most benefit to the BJP in the northern States. The party probably expects the bridge slogan to help in the southern States. The South has a historical background that differs from the North’s. While the impact of the social reform movements that swept the southern region in the last century remains, the BJP’s hope may not materialize.
The Supreme Court has before it a petition pleading for preservation of Rama’s bridge. The Centre must be able to convince the court that what lies under the water is not a manmade bridge, as claimed by the petitioner, but a sandbank that formed naturally over the millennia. Factual data needed for the purpose is available. Scientists and historians are agreed that there is no evidence to conclude that the subcontinent was inhabited 200,000 or 300,000 years ago. Three shipping canals have been cut through the sand bar already. Instead of confining itself to law, science and history, the Centre provided grist to the Sangh Parivar mill by intruding into the realm of faith. The Parivar has said that the affidavit in which the Centre said there was no evidence to prove that Rama had lived questions the faith of the Hindus.
Experts believe Valmiki’s Ramayana was written between the fifth and first centuries BCE. Sanskritic tradition holds that Valmiki was the first poet and the Ramayana the first poetic work. But the Rama story was known to many tribes of India even before Valmiki’s time. Buddhist literature provides a version of the story that is different from Valmiki’s. Other versions of the Rama story have been in circulation in foreign lands like Thailand and Indonesia too. Valmiki’s work itself contains interpolations made at different times. It cannot thus be accepted as a work of history. At the same, it is reasonable to assume that the Rama story contains historical elements. It is not possible to state with certainty what are actual happenings and what are additions made by imaginative narrators from time to time. According to those who have determined the time-frame of the Bible stories, only about 5,000 years have elapsed from the time of the first man to the present. Science tells us that this is not correct. Yet there are Christians who believe that the Bible gives a literal account of man’s history. Likewise, devotees of Rama have the right to believe that the Ramayana story is literally true. But they must realize that others have the freedom to view these tales and their heroes differently. While they may hope that others will share their faith, they cannot impose it on others.
The Hindus consider theirs the oldest religion. But no ancient work mentions such a religion. There is no reference to the Hindu religion even in the works of Sankaracharya, who is credited with having vanquished Buddhism and Jainism and re-established Hindu supremacy. Al that we can gather from ancient texts is that different schools of thought existed in the subcontinent and their votaries were engaged in mutual discourses. It was foreigners who gave the common name of ‘Hindu religion’ for the many beliefs prevalent here. Not being familiar with plural societies, they assumed that the people of the subcontinent have a common faith. In course of time, the gods, heroes and traditions of the different tribes of the subcontinent came to be integrated under the name they had given. The furious production of epics that took place at one time speeded up the process of integration. While it was going on, a minority established hegemony over the majority. Although during foreign rule some beneficial measures were taken there were only stray attempts to eliminate the injustice within the system. After Independence, the Constitution proclaimed equality and promised equal opportunities. The promise remains unfulfilled as those who dominated the old order still hold sway at the top. Since politically-driven Hindu consolidation will perpetuate this situation, it must not be allowed to succeed.
While politically motivated objections to the Sethusamudram project are unjustified, warnings about its likely environmental consequences merit serious consideration.
This is an English rendering of an article in Malayalam appearing in the Madhyamam weekly’s issue dated October 1, 2007
27 September, 2007
Birth of Rahul Gandhi era in the Congress
Finally, it has happened. Rahul Gandhi has been anointed successor. A long-time aspiration of Congressmen has been fulfilled. I can claim to have prophesied this development even before Rahul was born. That was in 1964, on the day Jawaharlal Nehru’s ashes were immersed in the Ganga. After the immersion, Indira Gandhi left for her Allahabad residence, Anand Bhavan, with her young sons. I was one of the pressmen who travelled with them from New Delhi to cover the immersion. In the evening, two of us went to Anand Bhavan to see what was going on there. Nothing much was happening. Indira Gandhi was chatting with the household staff. As we were leaving at dusk, we encountered two young girls at the gate. One of them hesitantly asked, “Where’s Rajiv?” They hurried in the direction in which we pointed. I told my colleague: “Their fathers must have come here looking for Indira. They have come looking for Rajiv. Their children will come looking for Rajiv’s children. Each generation will find its Nehru-Gandhi.”
I must admit that things are not really working out the way I had imagined. Rahul Gandhi’s induction did not become inevitable because a new generation is demanding a new Gandhi. Although Congressmen claim that they are honouring the people’s wishes, actually they are fulfilling their own need, not that of the people. After the Nehru era ended, Lal Bahadur Shastri had led the government and K. Kamaraj the party for some time. It was later that Indira Gandhi came in. She generated excitement in the people. But they never thought they could not manage without the family. In fact, at the fag end of the Emergency they demonstrated that they are prepared to dump even a Nehru or Gandhi if he or she acted wrongly. Did not the illiterate voters of Uttar Pradesh sweep away all Congressmen, including Indira Gandhi and her son Sanjay?
After Rajiv’s time, P. V. Narasimha Rao ruled for five years without the help of the Nehru-Gandhi family. It was later that Sonia Gandhi came. When the possibility of her becoming the Prime Minister created some dissension within the party and even more outside it, she gracefully declined the post and installed Manmohan Singh. So far there have been ten Prime Ministers from outside the family, including three Congressmen. This clearly shows that the nation can manage its affairs even if a member of the family is not available. It is the Congress that needs someone from the family. The Congressmen need a Gandhi over their heads to remain under the same flag even as they feud among themselves at various levels.
Many believe that it was Jawaharlal Nehru who laid the foundation for dynastic rule. According to some, even before the country gained Independence, Motilal Nehru had started moving the pieces to bring his son to the front. Many foreign correspondents had asked Jawaharlal Nehru who would succeed him. In answer, he often quoted the Buddha’s words. The Buddha had told those who asked about succession that the Sangham would find its leader. The direct proof for Nehru’s desire for dynastic succession is Indira Gandhi’s election as the Congress President in his lifetime. But, then, a few years earlier he had tried to woo the Socialist Party leader, Jayaprakash Narayan, back to the Congress. He certainly would not have wanted JP, who, as the hero of the Quit India movement, was the most admired young leader of the time, in the party if he was keen to make his daughter the next Prime Minister. If the dynastic idea had entered his mind it must have happened later on.
When the Allahabad High Court set aside Indira Gandhi’s election, some party men told her the best course would be for her to step down as Prime Minister pending the Supreme Court’s decision on her appeal. It meant giving temporary charge to Jagjivan Ram, who was the most senior member of the Council of Ministers. But she accepted the advice by some others to stay put, taking harsh measures like an Emergency proclamation. Sanjay and Rajiv were later inducted into the party as the heir apparent. Rahul’s arrival must also be seen in the same light.
With Rahul Gandhi’s appointment as General Secretary of the All India Congress Committee, the party leadership shifts to a new generation. Previously such generational shifts have given the party a new life. It is, therefore, a welcome development. However, considering the party’s dismal condition in the big States, a dramatic improvement in its position cannot be expected. Only if the new leaders can get to the bottom and create a stir will they be able to arrest the party’s continuous decline. New social forces have arisen in several States. In the circumstances, the formula the party had used successfully in the past has become irrelevant. A new coalition is needed to rescue the party. It remains to be seen whether Rahul and his boys can put together one such.
Youth is not something that can take the place of ideology. The people have a right to know what ideals guide Rahul’s generation. Jawaharlal and Indira had taken special care to give the party a progressive image. But later Congress leadership faltered before the threat raised by Hindu and Muslim communalism. The party needs to realize that such an approach will do no good.
Based on a piece that appeared in Kerala Kaumudi dated September 27, 2007
I must admit that things are not really working out the way I had imagined. Rahul Gandhi’s induction did not become inevitable because a new generation is demanding a new Gandhi. Although Congressmen claim that they are honouring the people’s wishes, actually they are fulfilling their own need, not that of the people. After the Nehru era ended, Lal Bahadur Shastri had led the government and K. Kamaraj the party for some time. It was later that Indira Gandhi came in. She generated excitement in the people. But they never thought they could not manage without the family. In fact, at the fag end of the Emergency they demonstrated that they are prepared to dump even a Nehru or Gandhi if he or she acted wrongly. Did not the illiterate voters of Uttar Pradesh sweep away all Congressmen, including Indira Gandhi and her son Sanjay?
After Rajiv’s time, P. V. Narasimha Rao ruled for five years without the help of the Nehru-Gandhi family. It was later that Sonia Gandhi came. When the possibility of her becoming the Prime Minister created some dissension within the party and even more outside it, she gracefully declined the post and installed Manmohan Singh. So far there have been ten Prime Ministers from outside the family, including three Congressmen. This clearly shows that the nation can manage its affairs even if a member of the family is not available. It is the Congress that needs someone from the family. The Congressmen need a Gandhi over their heads to remain under the same flag even as they feud among themselves at various levels.
Many believe that it was Jawaharlal Nehru who laid the foundation for dynastic rule. According to some, even before the country gained Independence, Motilal Nehru had started moving the pieces to bring his son to the front. Many foreign correspondents had asked Jawaharlal Nehru who would succeed him. In answer, he often quoted the Buddha’s words. The Buddha had told those who asked about succession that the Sangham would find its leader. The direct proof for Nehru’s desire for dynastic succession is Indira Gandhi’s election as the Congress President in his lifetime. But, then, a few years earlier he had tried to woo the Socialist Party leader, Jayaprakash Narayan, back to the Congress. He certainly would not have wanted JP, who, as the hero of the Quit India movement, was the most admired young leader of the time, in the party if he was keen to make his daughter the next Prime Minister. If the dynastic idea had entered his mind it must have happened later on.
When the Allahabad High Court set aside Indira Gandhi’s election, some party men told her the best course would be for her to step down as Prime Minister pending the Supreme Court’s decision on her appeal. It meant giving temporary charge to Jagjivan Ram, who was the most senior member of the Council of Ministers. But she accepted the advice by some others to stay put, taking harsh measures like an Emergency proclamation. Sanjay and Rajiv were later inducted into the party as the heir apparent. Rahul’s arrival must also be seen in the same light.
With Rahul Gandhi’s appointment as General Secretary of the All India Congress Committee, the party leadership shifts to a new generation. Previously such generational shifts have given the party a new life. It is, therefore, a welcome development. However, considering the party’s dismal condition in the big States, a dramatic improvement in its position cannot be expected. Only if the new leaders can get to the bottom and create a stir will they be able to arrest the party’s continuous decline. New social forces have arisen in several States. In the circumstances, the formula the party had used successfully in the past has become irrelevant. A new coalition is needed to rescue the party. It remains to be seen whether Rahul and his boys can put together one such.
Youth is not something that can take the place of ideology. The people have a right to know what ideals guide Rahul’s generation. Jawaharlal and Indira had taken special care to give the party a progressive image. But later Congress leadership faltered before the threat raised by Hindu and Muslim communalism. The party needs to realize that such an approach will do no good.
Based on a piece that appeared in Kerala Kaumudi dated September 27, 2007
25 September, 2007
Indian judiciary's contempt for accountability and scrutiny is a shame, says ALRC
The following is the test of a Statement issued by the Asian Legal Resource Centre, Hong Kong, on September 25, 2007
THE Delhi High Court on September 21, 2007 sentenced the editor, the resident editor, the publisher and the cartoonist of English daily Mid-Day guilty in a contempt of court case. The charge against the convicted journalists was that they published a report and a cartoon concerning the former Chief Justice of India, Mr. Y.K. Sabharwal. The report and the cartoon were published after Mr. Sabharwal retired from service.
The report, relying upon documentary evidence, alleged that the judge's two sons Mr. Chetan and Mr. Nitin had made material benefits out of their father's position in the Indian judiciary as a senior judge and also as the Chief Justice of the country. The report alleged that the judge’s sons managed their business from their father's official residence at 6 Moti Lal Nehru Marg, New Delhi. The report further alleged that the Chetan and Nitin also availed huge loans from a nationalised bank in favour of their business concerns without providing adequate collateral security. There were also allegations that the judge's two sons were allotted prime land by the Uttar Pradesh state government with heavy price concessions, an act which was under investigation. The investigation was however stayed later by the Supreme Court.
The Supreme Court of India is known for using the constitutional mandate and authority to initiate actions of public interest. The court in the past has even taken note of newspaper reports to initiate suo motu actions against suspected breach of law and misuse of office by public servants. This earnestness and enthusiasm has not been thus far reflected in the Indian courts' approach against scrutinising the activities of the courts and its judges. On the contrary, the Indian courts have been very parochial in its approach in facing criticism.
Earlier this year, the Supreme Court of India had forced Mr. Vijay Shekhar, a journalist with a television news channel, who exposed the caucus of a corrupt magistrate, his court staff and some lawyers in Gujarat state in the "Warrants for Cash" scam to apologise to the court or to face a term in jail for contempt of court. The court staff and the lawyers were caught on camera negotiating and accepting bribe for the magistrate for issuing arrest warrants. In the episode which was telecast nationwide, the magistrate after accepting bribes, issued arrest warrants on false charges against the President of India and the Chief Justice of the Supreme Court.
The Supreme Court took up the matter and directed the Gujarat High Court to initiate an internal enquiry against the concerned judicial officer and his staff. The judge was however absolved by the Gujarat High Court without examining the complainants. Thereafter, the Supreme Court of India condemned the journalist who had carried out this operation and threatened to send him to jail for contempt unless he apologised.
The conviction and sentencing of journalists of Mid-Day for publishing information about the conduct of Mr. Sabharwal has brought to the fore the issue of judicial accountability. The Indian judiciary is one of the most powerful judiciaries of the world. The conduct of the judiciary has a direct impact upon the life of the ordinary people of the country. It is imperative in these circumstances that a state institution of such high powers must be transparent and accountable for its actions. The courts in India have however consistently avoided calls for accountability despite there being many instances of serious allegations of misconduct and misdemeanour. At one time Justice S. P. Bharucha, former Chief Justice of India, admitted that about 20 percent of the higher judiciary in India is corrupt. According to Justice Michael Saldahna of the Karnataka High Court it is 33 per cent. Despite there being such admissions, no enquiry has ever been initiated against any judge for past 15 years.
Under the Constitution of India, the only way to remove a judge from the High Court or the Supreme Court is by way of impeachment. This constitutional provision has failed miserably. Its ineffectiveness was clearly demonstrated in the case of Justice V. Ramaswami. At the same time, despite verbal homilies, the courts and judges have been the most reluctant to evolve even a self-monitoring mechanism for accountability. Such a situation has caused enormous arrogance and abuse of power.
This is reflected in the procedure adopted for appointment of judges in the higher judiciary as well. Even though the appointment is made by the President of India, the selection is made by the collegium of judges. The selection process is non-transparent and all attempts to make the process transparent have been resisted by the judiciary thus far.
Demanding judicial accountability has almost certainly caused initiation of contempt proceedings, thereby, stifling of free discussion on the issues plaguing the judiciary in India. Unwarranted use of contempt of court proceedings in fact diminishes the public perception about the judiciary's openness and transparency, of which the case against the Mid-Day publishing house is the latest.
There are judicial systems within Asia which are considered to be failed beyond the point of recovery. Of this, the most glaring example is the judiciary in Sri Lanka, which is now facing criticism on all counts including politicisation of the judiciary to meet the ends of a corrupt Chief Justice. The Chief Justice of Sri Lanka, an infamous figure in the country, is feared for abusing contempt of court proceedings against anyone who opposes his questionable actions.
The Supreme Court of Sri Lanka has now stooped down to a stage where public perception about the impartiality of the court and its competency to decide matters on merits is at an all time low. As a result the general public views the courts in Sri Lanka as a failed state apparatus which in fact adds to the decades long ethnic conflict in that country.
The term democracy implies the notion that the people are supreme. All state institutions, whether it be the judiciary, legislature or the executive are merely the servants of the people. The basic principle behind the contempt of court proceedings is that the use of this authority by the court must be only in circumstances where otherwise the functioning of the court is impossible or obstructed.
In India under the Contempt of Courts Act, 1971, the term 'contempt' is not defined. Therefore if any person makes adverse comments against the court or a judge, the power to punish for "scandalising the court…" is frequently invoked. This approach is considered obscure in most established jurisdictions.
The contempt of court action must not be an attempt to protect the dignity of the court, but to promote the administration of justice. The dignity of the court is promoted by the court being humble enough to face criticism, whereas promotion of justice is to be carried out by removing all hindrances in the delivery of justice. By the unrestrained use of contempt of court actions the courts in India are in fact derogating from their duty to safeguard the Constitution of the country, which also guarantees freedom of speech and expression in Article 19 (1).
The honour of the judge and the judiciary - a state institution through which a judge is supposed to serve the people - is promoted and protected by the openness of the judge and the judiciary to face any criticism. Intolerance to scrutiny and lack of openness equates the judge and the judiciary with a dictator.
At this pace the Indian judiciary once known for its eloquence and its contribution to the advancement of free thought and expression will soon be reduced to an egotistical institution. Such a judiciary is definitely not what modern India aspires for. India as of today requires a transparent, accountable and sensitive judiciary.
The imperatives for the judiciary in India are obvious. It has a duty to protect, promote and fulfil the Constitutional guarantees. The judiciary must be open and transparent with a clear conscience that it is not beyond criticism. For this, it must be accountable to the people, which it is bound to serve. The judiciary in India is the last hope of a fragmented society, which when fails to respect its responsibilities, will soon bring insurmountable peril to the country and its people.
# # #
About ALRC: The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative status with the Economic and Social Council of the United Nations. It is the sister organisation of the Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights issues at local and national levels throughout Asia.
THE Delhi High Court on September 21, 2007 sentenced the editor, the resident editor, the publisher and the cartoonist of English daily Mid-Day guilty in a contempt of court case. The charge against the convicted journalists was that they published a report and a cartoon concerning the former Chief Justice of India, Mr. Y.K. Sabharwal. The report and the cartoon were published after Mr. Sabharwal retired from service.
The report, relying upon documentary evidence, alleged that the judge's two sons Mr. Chetan and Mr. Nitin had made material benefits out of their father's position in the Indian judiciary as a senior judge and also as the Chief Justice of the country. The report alleged that the judge’s sons managed their business from their father's official residence at 6 Moti Lal Nehru Marg, New Delhi. The report further alleged that the Chetan and Nitin also availed huge loans from a nationalised bank in favour of their business concerns without providing adequate collateral security. There were also allegations that the judge's two sons were allotted prime land by the Uttar Pradesh state government with heavy price concessions, an act which was under investigation. The investigation was however stayed later by the Supreme Court.
The Supreme Court of India is known for using the constitutional mandate and authority to initiate actions of public interest. The court in the past has even taken note of newspaper reports to initiate suo motu actions against suspected breach of law and misuse of office by public servants. This earnestness and enthusiasm has not been thus far reflected in the Indian courts' approach against scrutinising the activities of the courts and its judges. On the contrary, the Indian courts have been very parochial in its approach in facing criticism.
Earlier this year, the Supreme Court of India had forced Mr. Vijay Shekhar, a journalist with a television news channel, who exposed the caucus of a corrupt magistrate, his court staff and some lawyers in Gujarat state in the "Warrants for Cash" scam to apologise to the court or to face a term in jail for contempt of court. The court staff and the lawyers were caught on camera negotiating and accepting bribe for the magistrate for issuing arrest warrants. In the episode which was telecast nationwide, the magistrate after accepting bribes, issued arrest warrants on false charges against the President of India and the Chief Justice of the Supreme Court.
The Supreme Court took up the matter and directed the Gujarat High Court to initiate an internal enquiry against the concerned judicial officer and his staff. The judge was however absolved by the Gujarat High Court without examining the complainants. Thereafter, the Supreme Court of India condemned the journalist who had carried out this operation and threatened to send him to jail for contempt unless he apologised.
The conviction and sentencing of journalists of Mid-Day for publishing information about the conduct of Mr. Sabharwal has brought to the fore the issue of judicial accountability. The Indian judiciary is one of the most powerful judiciaries of the world. The conduct of the judiciary has a direct impact upon the life of the ordinary people of the country. It is imperative in these circumstances that a state institution of such high powers must be transparent and accountable for its actions. The courts in India have however consistently avoided calls for accountability despite there being many instances of serious allegations of misconduct and misdemeanour. At one time Justice S. P. Bharucha, former Chief Justice of India, admitted that about 20 percent of the higher judiciary in India is corrupt. According to Justice Michael Saldahna of the Karnataka High Court it is 33 per cent. Despite there being such admissions, no enquiry has ever been initiated against any judge for past 15 years.
Under the Constitution of India, the only way to remove a judge from the High Court or the Supreme Court is by way of impeachment. This constitutional provision has failed miserably. Its ineffectiveness was clearly demonstrated in the case of Justice V. Ramaswami. At the same time, despite verbal homilies, the courts and judges have been the most reluctant to evolve even a self-monitoring mechanism for accountability. Such a situation has caused enormous arrogance and abuse of power.
This is reflected in the procedure adopted for appointment of judges in the higher judiciary as well. Even though the appointment is made by the President of India, the selection is made by the collegium of judges. The selection process is non-transparent and all attempts to make the process transparent have been resisted by the judiciary thus far.
Demanding judicial accountability has almost certainly caused initiation of contempt proceedings, thereby, stifling of free discussion on the issues plaguing the judiciary in India. Unwarranted use of contempt of court proceedings in fact diminishes the public perception about the judiciary's openness and transparency, of which the case against the Mid-Day publishing house is the latest.
There are judicial systems within Asia which are considered to be failed beyond the point of recovery. Of this, the most glaring example is the judiciary in Sri Lanka, which is now facing criticism on all counts including politicisation of the judiciary to meet the ends of a corrupt Chief Justice. The Chief Justice of Sri Lanka, an infamous figure in the country, is feared for abusing contempt of court proceedings against anyone who opposes his questionable actions.
The Supreme Court of Sri Lanka has now stooped down to a stage where public perception about the impartiality of the court and its competency to decide matters on merits is at an all time low. As a result the general public views the courts in Sri Lanka as a failed state apparatus which in fact adds to the decades long ethnic conflict in that country.
The term democracy implies the notion that the people are supreme. All state institutions, whether it be the judiciary, legislature or the executive are merely the servants of the people. The basic principle behind the contempt of court proceedings is that the use of this authority by the court must be only in circumstances where otherwise the functioning of the court is impossible or obstructed.
In India under the Contempt of Courts Act, 1971, the term 'contempt' is not defined. Therefore if any person makes adverse comments against the court or a judge, the power to punish for "scandalising the court…" is frequently invoked. This approach is considered obscure in most established jurisdictions.
The contempt of court action must not be an attempt to protect the dignity of the court, but to promote the administration of justice. The dignity of the court is promoted by the court being humble enough to face criticism, whereas promotion of justice is to be carried out by removing all hindrances in the delivery of justice. By the unrestrained use of contempt of court actions the courts in India are in fact derogating from their duty to safeguard the Constitution of the country, which also guarantees freedom of speech and expression in Article 19 (1).
The honour of the judge and the judiciary - a state institution through which a judge is supposed to serve the people - is promoted and protected by the openness of the judge and the judiciary to face any criticism. Intolerance to scrutiny and lack of openness equates the judge and the judiciary with a dictator.
At this pace the Indian judiciary once known for its eloquence and its contribution to the advancement of free thought and expression will soon be reduced to an egotistical institution. Such a judiciary is definitely not what modern India aspires for. India as of today requires a transparent, accountable and sensitive judiciary.
The imperatives for the judiciary in India are obvious. It has a duty to protect, promote and fulfil the Constitutional guarantees. The judiciary must be open and transparent with a clear conscience that it is not beyond criticism. For this, it must be accountable to the people, which it is bound to serve. The judiciary in India is the last hope of a fragmented society, which when fails to respect its responsibilities, will soon bring insurmountable peril to the country and its people.
# # #
About ALRC: The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative status with the Economic and Social Council of the United Nations. It is the sister organisation of the Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights issues at local and national levels throughout Asia.
19 September, 2007
"Nowadays China is so much like America -- it's kind of scary"
“Nowadays, China is so much like America – it’s kind of scary,” says US-based Chinese writer Xujun Eberlein.
Xujun, who grew up in Mao’s China, moved in 1988 to the US, where she took a Ph.D. from MIT in Transportation Engineering and established herself as a writer. More info about her is available at http://www.xujuneberlein.com/index.html
Her observation, quoted above, occurs in an article written for New America Media after a visit to her homeland.
Xujun, who grew up in Mao’s China, moved in 1988 to the US, where she took a Ph.D. from MIT in Transportation Engineering and established herself as a writer. More info about her is available at http://www.xujuneberlein.com/index.html
Her observation, quoted above, occurs in an article written for New America Media after a visit to her homeland.
06 September, 2007
Heading for a general election that no party wants
When the Left parties objected to the civilian nuclear agreement that India has negotiated with the United States, they had no intention to pull down the United Progressive Alliance government and force a general election. The fact is that no political party wants an election now. A possible exception is Uttar Pradesh Chief Minister Mayawati’s Bahujan Samaj Party, which, having secured an absolute majority in the State Assembly in the recent poll, can hope to improve its position in the event of immediate parliamentary elections. However, the relationship between the Congress, which heads the UPA, and the Left having deteriorated, it may not be possible to put off a general election for too long.
The general election of 2004 had thrown up a hung Lok Sabha. The Bharatiya Janata Party miserably failed in its bid to secure another five years of power for the National Democratic Alliance with the “India shining” slogan. The Congress snatched back the honour of being the largest single party. It was the Left parties’ decision to support the government from outside, with a view to preventing the BJP’s return to power, that enabled the UPA, with only 218 seats in the 545-member house, to chalk up a majority and win the right to form the government.
Although the UPA and the Left hammered out a common minimum programme, there are sharp differences between them over policies and programmes. The relationship between the UPA government, which is going ahead with globalization, and the Left, which is opposed to globalization, was never smooth. Under Left pressure, the government had to delay or modify some programmes but it did not have to abandon globalization. In the circumstances, the government presumed the Left’s opposition to the nuclear deal might not create any major problem. Prime Minister Manmohan Singh’s public statement that they could withdraw their support annoyed the Left parties. They responded with a public declaration that keeping the government in power was not their responsibility.
India had decided quite early to use nuclear energy for peaceful purposes. It also declared it would not go in for nuclear weapons. But the nuclear test at Pokhran, conducted during Indira Gandhi’s time, part of an effort to develop nuclear weapons capability. The BJP had been demanding since long that India should build nuclear arms. As soon as it came to power, a second test was held. Arguing that the nuclear non-proliferation treaty put the nuclear weapons states and the rest on different on different levels, India had refused to sign it all along. Following the nuclear tests, the USA and several other countries had imposed sanctions against India. These put in jeopardy even the civilian nuclear programmes. It was to extricate itself from this situation that the country entered into negotiations with the USA for nuclear agreement.
It was the BJP-led government that initiated negotiations. Yet the BJP has also now come out against the deal. When the terms of the draft agreement became known, there were howls of protest. Both the BJP and the Left alleged that it contained terms repugnant to India’s sovereignty. Nuclear scientists had reservations about some provisions. The US regime sprung a surprise when it suddenly decided to accommodate some of India’s wishes. Nuclear scientists expressed satisfaction with the final draft.
In the USA, too, the agreement has many critics. Their main complaint is that it contains many clauses favourable to India. The strongest foreign critics are Pakistan and China. Pakistan’s initial response to the deal was to demand that the USA must enter into a similar agreement with it, too, since it had also demonstrated nuclear weapons capability. Quite obviously Pakistan’s objections stem from the realization that the USA is not treating it on the same footing as India. The basis of China’s objections is evident from the comments made by People’s Daily, the Communist Party newspaper. It says the US aim is to make India its strategic partner and turn the balance of power in Asia in India’s favour. India’s aim, it avers, is to gain Big Power status. India has always had Big Power ambitions and is trying to realize its goal with US help, it adds.
According to experts, India is set to overtake China in the next decade or two and emerge as the world’s most populous nation. India and China are two countries whose economies are growing at a fast pace under the globalized system. In the circumstances, it is quite natural for these countries to gain Big Power status. As a permanent member of the United Nations Security Council and as a nuclear weapons state, in effect, China enjoys Big Power status already. People’s Daily’s comments make it clear that the Communist Party of China does not want any other Asian state to gain that status. The Communist Party of India (Marxist) and the CPI must clarify whether they also share this view.
India’s deal with the US covers only the civilian nuclear programme. It ensures uninterrupted supply of materials for the civilian nuclear programme and leaves the country free to go ahead with its military programmes. It is possible to raise questions like whether India must make nuclear weapons and whether India must expand its nuclear energy programme. Instead of raising such questions, the Left parties are questioning the deal in the name of anti-imperialism.
The CPI (M), which leads the Left, is trapped in a policy framework that emerged in the context of the situation obtaining half a century ago. It is the realization that that world has disappeared which prompted China to come to terms with the globalization process even as it continues to swear by Communism. Both in West Bengal and Kerala, the party has leaders who appreciate the need for changes in tune with the prevailing conditions. Unfortunately they are often seen as agents of a wrong kind of change.
The Congress, which backs the nuclear deal, and the BJP and the Left parties, who oppose it, are all speaking in the name of the people of India. The Congress had secured just 26% of the votes in the last parliamentary elections. The BJP got 21% and the Left parties seven percent. It is not desirable that seven percent should prevail over 26%. The Left, which sustains the government from outside, is seeking to exercise power without assuming responsibility. As a former British Prime Minister said, power without responsibility is the privilege of the courtesan. In the prevailing circumstances, a general election is to be welcomed. It may not throw up a more representative government but it may persuade the major political parties to become more realistic.
The general election of 2004 had thrown up a hung Lok Sabha. The Bharatiya Janata Party miserably failed in its bid to secure another five years of power for the National Democratic Alliance with the “India shining” slogan. The Congress snatched back the honour of being the largest single party. It was the Left parties’ decision to support the government from outside, with a view to preventing the BJP’s return to power, that enabled the UPA, with only 218 seats in the 545-member house, to chalk up a majority and win the right to form the government.
Although the UPA and the Left hammered out a common minimum programme, there are sharp differences between them over policies and programmes. The relationship between the UPA government, which is going ahead with globalization, and the Left, which is opposed to globalization, was never smooth. Under Left pressure, the government had to delay or modify some programmes but it did not have to abandon globalization. In the circumstances, the government presumed the Left’s opposition to the nuclear deal might not create any major problem. Prime Minister Manmohan Singh’s public statement that they could withdraw their support annoyed the Left parties. They responded with a public declaration that keeping the government in power was not their responsibility.
India had decided quite early to use nuclear energy for peaceful purposes. It also declared it would not go in for nuclear weapons. But the nuclear test at Pokhran, conducted during Indira Gandhi’s time, part of an effort to develop nuclear weapons capability. The BJP had been demanding since long that India should build nuclear arms. As soon as it came to power, a second test was held. Arguing that the nuclear non-proliferation treaty put the nuclear weapons states and the rest on different on different levels, India had refused to sign it all along. Following the nuclear tests, the USA and several other countries had imposed sanctions against India. These put in jeopardy even the civilian nuclear programmes. It was to extricate itself from this situation that the country entered into negotiations with the USA for nuclear agreement.
It was the BJP-led government that initiated negotiations. Yet the BJP has also now come out against the deal. When the terms of the draft agreement became known, there were howls of protest. Both the BJP and the Left alleged that it contained terms repugnant to India’s sovereignty. Nuclear scientists had reservations about some provisions. The US regime sprung a surprise when it suddenly decided to accommodate some of India’s wishes. Nuclear scientists expressed satisfaction with the final draft.
In the USA, too, the agreement has many critics. Their main complaint is that it contains many clauses favourable to India. The strongest foreign critics are Pakistan and China. Pakistan’s initial response to the deal was to demand that the USA must enter into a similar agreement with it, too, since it had also demonstrated nuclear weapons capability. Quite obviously Pakistan’s objections stem from the realization that the USA is not treating it on the same footing as India. The basis of China’s objections is evident from the comments made by People’s Daily, the Communist Party newspaper. It says the US aim is to make India its strategic partner and turn the balance of power in Asia in India’s favour. India’s aim, it avers, is to gain Big Power status. India has always had Big Power ambitions and is trying to realize its goal with US help, it adds.
According to experts, India is set to overtake China in the next decade or two and emerge as the world’s most populous nation. India and China are two countries whose economies are growing at a fast pace under the globalized system. In the circumstances, it is quite natural for these countries to gain Big Power status. As a permanent member of the United Nations Security Council and as a nuclear weapons state, in effect, China enjoys Big Power status already. People’s Daily’s comments make it clear that the Communist Party of China does not want any other Asian state to gain that status. The Communist Party of India (Marxist) and the CPI must clarify whether they also share this view.
India’s deal with the US covers only the civilian nuclear programme. It ensures uninterrupted supply of materials for the civilian nuclear programme and leaves the country free to go ahead with its military programmes. It is possible to raise questions like whether India must make nuclear weapons and whether India must expand its nuclear energy programme. Instead of raising such questions, the Left parties are questioning the deal in the name of anti-imperialism.
The CPI (M), which leads the Left, is trapped in a policy framework that emerged in the context of the situation obtaining half a century ago. It is the realization that that world has disappeared which prompted China to come to terms with the globalization process even as it continues to swear by Communism. Both in West Bengal and Kerala, the party has leaders who appreciate the need for changes in tune with the prevailing conditions. Unfortunately they are often seen as agents of a wrong kind of change.
The Congress, which backs the nuclear deal, and the BJP and the Left parties, who oppose it, are all speaking in the name of the people of India. The Congress had secured just 26% of the votes in the last parliamentary elections. The BJP got 21% and the Left parties seven percent. It is not desirable that seven percent should prevail over 26%. The Left, which sustains the government from outside, is seeking to exercise power without assuming responsibility. As a former British Prime Minister said, power without responsibility is the privilege of the courtesan. In the prevailing circumstances, a general election is to be welcomed. It may not throw up a more representative government but it may persuade the major political parties to become more realistic.
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