A Lawyer's Zeal for Constitutional Clarity

Shri Asok Pande (Yes, that is how he writes his name), my good friend, is a public-spirited lawyer and he must have filed more than 200 PILs in the Allahabad High Court and the Supreme Court of India. Some of the judgements on his PILs have now become an integral part of the Indian constitutional study.  His tenacity for the cause that he espouses is seen to be believed.

Recently, he has filed a PIL for the preponing the of the swearing in of the Chief Justice-designate Ranjan Gogoi on the ground that the post of the Chief Justice of India is in continuum and it cannot remain vacant even for a few hours. The incumbent CJI Dipak Misra is retiring on 2^nd October, which is a national holiday, being the Gandhi Jayanti. Therefore, the CJI designate will take oath on 3^rd October leaving a time gap of many hours between the retiring CJI and the new CJI. 

The fate of the PIL will be known when it is heard and decided by the Supreme Court but what has impelled me to write on it is how does it make any difference in the functioning of the Supreme of India, if the post of the CJI remains vacant for a few hours? After all, the CJI is the only the administrative head of the Supreme Court. As far as his judicial powers are concerned, S(he) does not have even a whit more powers than the junior most judge of the Supreme Court. 

The Supreme Court and the High Courts are the constitutional courts. Acting Chief Justices are appointed in the High Courts but not in the Supreme. Article 124 of the Constitution of India speaks about the Union Judiciary i.e. establishment of the Supreme Court India and its powers etc., go up to Article147. 

To my mind, the theory of the continuum is applicable for the Prime Minister because if there is no Prime Minister, there cannot be any council of ministers. The council of ministers’ dissolves with the resignation or the death of the Prime Minister. This is the reason is that immediately after the death of the Prime Minister a new Prime Minister is sworn in. Article 74 says, ‘there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice.

 The President is, therefore, merely a titular head. All powers vested with the Council of Ministers and essentially in the Prime Minister. The President and the Prime Minister do not retire on superannuation as it is in the case of the Chief Justice or the other judges.

Shri Pande has said in his PIL that Justice ND Ojha was sworn in as the judge of the Supreme at the night because he was to retire from the High Court in the midnight of that date. This could, however, not be the reason for his swearing in. Let me cite one example of Justice Fathima Beevi, who retired as the Judge of the High Court on 29^th April 1989 and was appointed the judge of the Supreme Court on 6^th October 1989, more than five months after her retirement as the judge of the High Court. Fortunately, she is still alive. She had started her judicial career from the lowest rung of the Munsif Magistrate. I have met her two times when she was the Governor of Tamilnadu along with the illustrious Justice (Retd) PB Sawant, who was the then Chairman of the Press Council of India and I was one of its members.

Indian Constitution is, as one of my teachers in the Law Faculty of the Delhi University, used to say, ‘a riddle wrapped in an enigma’. It is a conundrum. Regrettably, even the Supreme Court has not been able to settle the riddle. However, I must appreciate the zeal and vigour of Asok Pande who is trying his level best to provide finality to the grey areas of the Constitution. Kudos to you Asok ji.

Shrinand, Let Your Soul Rest in Eternal Peace

Death is inevitable, but the death of any near and dear ones is always sad and shocking. The death of my younger brother Shrinand, which occurred in the morning of 22^nd of August has shocked and benumbed me. He was nearly four years younger than me and was the youngest among all brothers. He died young at the age of only 58. He was a carefree person, particularly in his younger days. He remained almost untouched of the worldliness and that was the reason that he hardly got bothered by the damages and difficulties in the worldly life.

     He did not possess high academic degrees but due to his self-studies, he developed a good understanding of literature, social values, political ups and downs, changing trends of the society and unfortunate rupturing of the family bonds and relations. He was a good connoisseur of the qualities of others and that was the reason he was loved and respected by young and old, uneducated and highly educated persons alike. He had no foes but only friends. Almost everyone, who came into his contact was greeted by him with his infectious and disarming smile.

     When I was still a student in the Banaras Hindu University, he was an adolescent and had the wings of imaginations, which could take him high in the sky. He had ventured to write a novel but unfortunately, it met with a miscarriage and thereafter he dropped the idea of indulging into any creative writings, but one could have the feel of literary flavour while talking to him.

      An avid reader of newspapers and watcher of the news on TV channels, he had his fingers right on the pulse of the events and could predict on the future shape of things. Never a greedy person, he only aspired to get respect from those, who came into his contact. He often used to tell me that he wanted that his son to have a good education from good institutions and he got it fulfilled. I often told him that expecting too much from anybody is entirely impractical and therefore, he must not nurse very high hopes from anybody. Such expectations are harmful to both sides; i. e. to the person who pins many hopes from the other and also to the person, who is put under stress and strain to achieve expectations.

     He was very close to me and to my another brother Harinand , who is younger to me but is elder to Shrinand. Shrinand could defy anybody but never to Harinand, even if he disagreed with him. After family partition, it was Shrinand, who looked after my small agricultural land other immovable properties in my native village of Hansapur Khurd ( Ahraula) in Azamgarh district of Uttar Pradesh. Shrinand was respectful to me and to Harinand and never said ‘no’ to whatever we asked him to do. Thus, the irreparable loss that we have suffered is indescribable.

     Shrinand during his childhood had gone to Jalandhar in Punjab and worked for some time with any medical practitioner but he was so sharp that he could correctly diagnose a patient and prescribe effective medicines to them. Many a time even highly trained Doctors were surprised by his understanding of the diseases and prescriptions. He was so selfless that he used to administer injections and provide medicines almost free. Anybody could approach him even in the dead of the night or in the wee hours for any emergency helps. Whatever little anybody gave him for his services was acceptable to him. ‘Service before self’- was his motto and that was the reason he was immensely popular in the cross-section of the society. Highly progressive in his thoughts and actions he was against superstitions.  

     He was indeed a rationalist. But to my shock and surprise, a person who used to give medicines to others was so callous towards his own health and wellbeing. For the last many years, he became diabetic but never observed the rigours of diet, which is so necessary for a person suffering from this silent killer disease. I am told that both his kidneys were badly damaged, and heart was fully clogged. He was unaware of it and by the time others knew about, it was too late. Firstly, he was taken to Azamgarh to a private doctor, who referred him to the PGI Lucknow. But before he could be admitted to the PGI of Lucknow, he breathed last on the very gate of the PGI. Medical services and facilities in Government hospitals are so poor and pathetic that one is compelled to go to a private doctor and in the name of facilities they loot the patients with gay abandon. Anyway, it is an altogether different matter. He has a journalist son Devesh and a happily married daughter Gudiya. He wanted his wife to step out of the four walls of the house, but she preferred to remain confined to the household works. Hopefully, she will now take up his responsibilities, which will be a fitting tribute to Shrinand.  

     On the day of his death, my wife Nirmala and I were in Shrishailam, a Jyotirlinga Peetha, 400 kilometres away from Hyderabad. We rushed to Hyderabad and made all efforts to join his funeral but could not because it was just not possible. I joined the family members, relatives, native villagers and friends on the ‘shudh ceremony’ on 31^st of August and got my head tonsured and moustaches shaved along with other family members as a mark of respect and homage to my dearest Shrinand. My wife and I have returned to Delhi after Terahvin. My mind, however, is still not ready to accept that Shrinand is no more.

    Your loss, Shrinand , is irreparable to all our family members. We can only pray to God Almighty to make you soul free from the cycle of birth and death. May your soul rest in heaven in eternal peace, my dear brother! We all pay our sincerest homage to you and we will never forget you.