Panic Reation the Supreme Court

    It is very astonishing indeed that instead of taking the challenge of Coronavirus head-on, the Supreme of India has decided to work with only six benches against the usual 14 benches from Monday till further decision. The crowd in the courts and courtrooms can be minimised not by the half-hearted measures but by modernisation through the use of the Artificial Intelligence (AI). This is also the best time when live streaming of the courts must be taken up in the right earnest.
    Why should the cause list be prepared in a manner when it is almost certain that the case would not reach the Board for hearing on that day? Sometimes a case is shown to be in the cause list for days together keeping the concerned Advocates and clients on tenterhooks. This problem can certainly be solved with the help of technology and better scheduling of time. Most of the cases of the routine nature can be disposed of by the Technology itself providing much time to judges to make its better and fruitful use.
     As a student of law, we were told that an advocate must follow the principle of ABC i.e. Accuracy, Brevity and Conciseness. This principle is also applicable for journalists but unfortunately, it is followed more in the breach than in the observance. Prolixity of averments in petitions, counters and judgments make them boring but again regrettably that has become the part of the habit of the lawyers and judges. The first thing that can be done by the Courts is to strictly follow the ABC.
Secondly, the lawyers should be allotted time to argue their cases with a maximum of ten to fifteen minutes to spill over the stipulated period. If it is adhered to, it will be a big time-saver. But today what we find is that some of the senior counsel are allowed to argue their cases for days together generating more fire than light. Needless, to say that if any advocate wants to read out from the case precedents, he or she should be stopped and asked to submit the list of those cases or books specifying the page numbers. Here also the Artificial Intelligence will be immensely useful.
     And the third thing, which can be done is that in the cause list itself the tentative time of the cases to be taken up should be given and that will not cause unnecessary thronging of the courtrooms. If this procedure or any better method with the help of experts is adopted, it can certainly be a huge relief to the judges, advocates and litigants as well.
    The Supreme Court has done well for filing of the petitions and replies on A4 size papers to be used on sides but why should it not go paperless by stopping the use of papers lock, stock and barrel?
Now coming to the Coronavirus, which has virtually compelled the courts to go for the lockdown. It is a panic reaction and it will not serve much until and unless some effective measures are adopted with the help of technology. It will give further rise to scaremongering. After all, no country can do without the police, army, hospitals and doctors, then why should the other organs of the administration be compelled to remain locked in? Therefore, this emergency must be used for bringing about revolutionary changes.

PIL: Saga of Judge-Made law Acquiring Constitutional Status

Public Interest Litigations (PILs) are the best examples of the Judge-Made laws is because it is nowhere mentioned in the statute. Now PILs have become so popular in our country that most of the High Courts and even the Supreme Court has opened a PIL branch in its registry. Why has it become so popular and how does it differ from writs? There should not be any misunderstanding that PILs are also filed as other writs like; ‘mandamus’, ‘prohibition’, ‘qua warranto’, ‘habeas corpus’ or ‘certiorari’. PILs have actually entered in the Indian judicial process in the 1970s. It is intended to vindicate public interests where fundamental and other rights of the people who are poor, ignorant or socially or economically in a disadvantageous position, and are unable to seek legal redress.  However, with the passage of time PILs have been entertained in other spheres, for example; judicial interventions, necessary for the protection of the sanctity of democratic institutions like the independence of judiciary and elections to the Parliament or Legislative Assemblies; matters relating to the environment, natural resources and pollution such as water, air etc.; even for making judicial laws to avoid exploitation like intercountry child adoptions, sexual harassments etc.

 Locus Standi Dispensed with

In simple words a litigation filed in a Court of law for the protection of public interest such as pollution, terrorism, road safety, constitutional hazards etc. fall in the category of the PIL. Any matter where the interests of the public at large is affected can be redressed through the PIL. The first PIL case, which enunciated its principle can be said to be ‘Ratlam Municipality Case’ of the late seventies. In this case, the principle of ‘locus standi’ was dispensed with. The Supreme Court said in this case that ‘decency and dignity are non-negotiable facets of human rights and are the first charge on local self-governing bodies’, which means there is no need for an individual to raise any dispute but it can be raised by any person without having any locus standi in the matter.

In normal cases, it is seen that the aggrieved party i.e. the victim, who has to file his or her case in a court of law and he/she should have an interest in the dispute but in the filing of PILs, there is no such condition. Any person can file a PIL, the only condition has to be that the same must be filed in the public interest.  Thus, the PIL is the power given to the public by the courts to protect the interests of the public at large. PILs are filed under article 32 of the Constitution before the Supreme Court and Article 226 of the Constitution before the High Court. The Apex Court has framed certain guidelines to govern the management and disposal of the PILs. The court is expected to be careful to ensure that the petitioner, who approaches is acting bonafide and not for personal gain, private profit or political considerations. Many PILs are also filed for the publicity stunts and that is why they are not called genuine PILS but are nicknamed as ‘Publicity Interest Litigations’.

At present, the court can treat letters or epistles as a writ petition and take action upon it. Suo moto cognizance by the judges of the constitutional courts can also be treated as the PILs. It is a tool in the hands of public-spirited citizens who have a good motive to avail justice for the higher and larger good of the public. To prevent it from becoming a weapon in the hands of those litigants who want to either misuse this concept for either commercial gain or publicity the Apex Court has time and again laid down various guidelines and by imposing costs on the frivolous public interest litigation the courts have only strengthened their stance.

Emergence of Public Interest Litigation has motivated the judicial system to extend its protection to new social, public and group interest. An inscription on the wall of Harvard Law School Library reads ‘honest vivera, honalienum leaders, scum unique tridure, ‘which means that ‘the precepts of the law are those to live honourably, not to injustice another to understand his due’. Earlier, back into the horizons of law and justice in the West, the Judaieo Christian, Greek and Roman traditions concerned themselves with theorising and explaining the law. But the traditional and the medieval and post-medieval successors were free of such concern. They rather focussed on one or both of the two very different concerns. One of these concerns which have survived into modern analytical jurisprudence has its main point in facilitating on the vision of the logical coherence of the several prepositions and part of legal order and on fixing the definition of the forum used and the presuppositions which will maximize such coherence.

The seed of the concept of the Public Interest Litigation was actually sown by Justice Krishna Iyer. In 1976 (without assigning the terminology) in Mumbai Kamgar Sabha v/s Abdulbhai,  he while disposing of an industrial dispute in regard to the payment of bonus observed, "Our adjectival branch of jurisprudence, by and large deals not with sophisticated litigants but the rural poor, the urban lay and the weaker societal segments for whom the law will be an added terror if technical misdescriptions and deficiencies in drafting pleadings and setting out the cause-title create a secret weapon to non-suit a part. Where a foul play is absent, and fairness is not faulted latitude is a grace of processional justice. Test litigations, representative action, pro-bono public and like broadened forms of legal proceedings are in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to by-pass the real issues on the merits by suspect reliance on peripheral procedural shortcomings. Even Article 226, viewed on a wider perspective, may be amenable to the ventilation of collective or common grievances, as distinguished from the assertion of individual rights, although the traditional view, backed by precedents has opted for the narrower alternative. Public interest is promoted by a spacious construction of locus standi in our socio-economic circumstances and conceptual latitudinarianism permits taking liberties with individualisation of the right to invoke the higher courts where the remedy is shared by a considerable number, particularly when they are weaker. Less litigation, consistent with the fair process is the aim of the law."

However, this rule on gaining momentum burgeoned more and more, expanding its branches in the cosmos of public interest litigation and took its root firmly in the Indian Judiciary and fully blossomed with the fragrant smell in S.P. Gupta v/s Union of India. Rule of Law is an integral part of a democratic society, where citizen's rights are taken care of by an independent and impartial judiciary.

Thus, in every democratic society citizen's access to justice is the hallmark and any encroachment on that right mars the spirit of a democratic system of government. However, in recent years the whole adjudicatory system has become prey to a dilatory and expensive process, which takes a heavy toll on a poor citizen's right of easy access to justice. In the recent era, there has been a tremendous increase in the government's power and responsibilities mainly because of the Indian State is a welfare state, which entails a host of executive interferences in various walks of human life and which leaves no corner of an individual's life untouched. Due to this unprecedented change in socio-economic and political aspects of the governance of the country, the judiciary too has kept pace with it and has assumed several new responsibilities and jurisdictional so for unheard of.

The realization by the judiciary of this new developments executive's increasing inference into daily lives and ever-increasing circumscription of people's access to justice has led them to adopt fewer formal procedures and circumvent the nuances of technicalities of the litigation processes. Since the nineteenth century, various movements in the USA had contributed to public interest law, which was part of the legal aid movement. The first legal aid office was established in New York in 1876. In the 1960s the public interest litigation movement began to receive financial support from the office of Economic Opportunity. This encouraged lawyers, public-spirited persons to take up cases of the under-privileged fight against dangers to the environment and public health as well as exploitation of consumers and the weaker sections. It should be noted at the outset that Public Interest Litigation, at least, as it had developed in India, is different from class action or group litigation. The PIL in India has been a part of the constitutional litigation and not civil litigation.  

The Code of Civil Procedure also allows for a class action under Order 1 Rule 8. Furthermore, Section 91 of the Code also says that: ‘in the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, maybe instituted with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act.‘

After gaining independence from the British rule on August 15, 1947, the people of India adopted the Constitution in November 1949 with the hope to establish a ‘sovereign, socialist, secular, democratic, republic’. Among others, the Constitution aims to secure to all its citizens' justice (social, economic and political), liberty (of thought, expression, belief, faith and worship) and equality (of status and of opportunity). These aims were not merely inspirational because of the fact that the founding fathers wanted to achieve a social revolution through the Constitution. The main tools employed to achieve such social change were the provisions on fundamental rights (FRs) and the directive principles of state policy (DPs), which Austin described as the ‘Conscience of the Constitution, In order to ensure that Fundamental Rights did not remain empty declarations, the founding fathers made various provisions in the Constitution to establish an independent judiciary. The social revolution meant, ‘to get (India) out of the medievalism based on birth, religion, custom, and community and reconstruct her social structure on modern foundations of law, individual merit, and social education’. Quoting K. Santhanam, a Member of the Constituent Assembly.)  Granville Austin said in his celebrated book that ‘the remedy to approach the Supreme Court directly for the enforcement of any of the rights enshrined under part III has also been made a Fundamental Right.

The holder of the Fundamental Right ‘s cannot waive them nor can the fundamental rights be curtailed by an amendment of the Constitution if such curtailment is against the basic structure of the Constitution. Some of the Fundamental Rights are available only to citizens while others are available to citizens as well as non-citizens, including juristic persons. Notably, some of the Fundamental Rights are expressly conferred on groups of people or community. Not all Fundamental Rights are guaranteed specifically against the state and some of them are expressly guaranteed against non-state bodies.  Austin cites three provisions, i.e. Articles 15(2), 17 and 23, which have been ‘designed to protect the individual against the action of other private citizens ‘. However, it is reasonable to suggest that the protection of even arts 24 and 29(1) 39 the ‘state ‘is liberally defined in Article 12 of the Constitution to include, the Government and Parliament of India. The Government and the legislature of each of the states and all local or other authorities within the territory of India or under the control of the Government of India ‘. The expression ‘other authorities ‘has been expansively interpreted, and any agency or instrumentality of the state will fall within its ambit. The Directive Principles (DPs) find a place in Part IV of the Constitution. Although the DPs are not justiciable, they are, nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws. After initial deviation, the Supreme Court accepted that Fundamental Rights (FRs) are not superior to Directive Principles on account of the latter being non-justiciable: rather FRs and DPs are complementary, and the former could be invoked against private individuals.

Contours of PILs

It has become imperative to examine what are the contours of the public interest litigation? What is the utility and importance of the public interest litigation? Whether similar jurisdiction exists in other countries or this is an indigenously developed jurisprudence? Looking at the special conditions prevalent in our country, whether the public interest litigation should be encouraged or discouraged by the courts? These are some of the questions which still need to be discussed.

The Judicial Activism in India can be witnessed with reference to the review power of the Supreme Court under Article 32 of the Constitution, particularly in Public interest litigation cases. The Supreme Court played a crucial role in formulating several principles in public interest litigation cases. For instance, the principle of "absolute liability" was propounded in Oleum Gas Leak case. Public Trust Doctrine was brought into play to exercise State Power for eradicating corruption. Social justice requires liberal judicial review of administrative action. Therefore, a public-minded citizen must be given an opportunity to move the court in the interests of the public. Further, the Supreme Court in S.P. Gupta v/s Union of India, popularly known as ‘Judges Transfer Case’, Justice Bhagwati firmly established the validity of the public interest litigation. Since then, a good number of public interest litigation petitions have been filed. Judicial moulding of procedure, substance and relief by two judges of the Supreme Court of India (Bhagwati and Iyer JJ.) prepared the groundwork, from the mid-1970s to early 1980s, for the birth of the Public Interest Litigation in India. This included modifying the traditional requirements of locus standi, liberalising the procedure to file writ petitions.

PIL is not adversarial system

The judiciary also emphasized that public interest litigation is not an adversarial but a collaborative and cooperative project in which all concerned parties should work together to realize the human rights of disadvantaged sections of society. The Public Interest Litigation in India could be divided, into three broad phases. One will notice that these three phases differ from each other in terms of at least the following four variables: first, who initiated public interest litigation cases; second, what was the subject matter/focus of public interest litigation; third, against whom the relief was sought; and fourth, how judiciary responded to PIL cases.

In the first phase which began in the late 1970s and continued through the 1980s, the Public Interest Litigation cases were generally filed by public-spirited persons (lawyers, journalists, social activists or academics). Most of the cases related to the rights of disadvantaged sections of society such as child labourers, bonded labourers, prisoners, mentally challenged, pavement dwellers, and women. The relief was sought against the action or non-action on the part of executive agencies resulting in violations of fundamental rights under the Constitution. During this phase, the judiciary responded by recognising the rights of these people and giving directions to the government to redress the alleged violations. In short, it is arguable that in the first phase, the Public Interest Litigation truly became an instrument of the type of social transformation/revolution that the founding fathers had expected to achieve through the Constitution.

The second phase of the Public Interest Litigation was in the 1990s during which several significant changes in the chemistry of PIL took place. In comparison to the first phase, the filing of PIL cases became more institutionalized in that several specialized NGOs and lawyers started bringing matters of public interest to the courts on a much regular basis. In the third phase the width of issues raised in PIL also expanded tremendously. Through an expansive interpretation of the provisions of the Constitution, the courts through Public Interest Litigation have and are continuing to play an important role in the context of making rights meaningful to the disadvantaged and weaker sections of the people as well as those cases where no one could be expected to be directly interested. An important step towards the achievement of these magnificent results have been the expansion of the category of the respondents by the application of the Doctrine of State Action.

In the fourth phase finds its roots in the American Constitution. In interpreting the word ‘State’ in the ‘due process’ and ‘equal protection’ clauses of the 14th amendment to the American Constitution, the Indian Supreme Court held that it included all the organs and acts of the State — legislative, executive and judicial and then its ‘agents’ i.e. persons, who acted in the name of and for the State or is clothed with the powers of the State or endowed with governmental functions. The essence of the doctrine is that the State cannot get rid of constitutional limitations or restraints by simply delegating its powers or functions to some private individual or group; hence, a person who acts as the agent or the instrumentality of the State, he must be subject to the same limitations, such as the Fundamental Rights, that the Constitution imposes on the State itself. The doctrine would apply not only to an agent of the State but even for a lessee from the agent, if the involvement or participation of the State (even by inaction) in the lessee ‘s acts, is established. In India, the application of this doctrine has been much easier because of most of the Fundamental Rights included in Part III of the Constitution.

However, the Public Interest Litigation in the U.S.A. today has fallen into troubled water and future prospects of progress are uncertain. The most striking of the impediments was the inevitable financial crunch caused by runaway inflation and lukewarm backing of like Non-Governmental Organizations societies and other private support bases. However, the interest in pro bono work by Lawyers and Law Firms has continuously declined. The scenario has completely changed in the USA in the late 1970s and the very conditions, which led to its growth earlier, no longer existed. Moreover, public interest lawyers found themselves at a distinct disadvantage in the decision-making process. While they were always able to make persuasive arguments for their clients, they lacked the ability to stay with the issues which required years to resolve, and which ultimately involve action in a series of areas, ranging from the courts to the legislatures. However valid the idea of advocacy equalization may be the scope of activities it entails proved to be far beyond the capabilities of most public interest firms.

The courts and administrative agencies that shape implement and enforce these policies should be open and accessible to the views of those citizens who may be affected by such actions and decisions. One notable thing about Public Interest Litigation is that it is not only concerned with obtaining beneficial results for the major chunk of the society but at the same time it seeks cooperation in carrying out the objectives of the movement by way of actual participation. However, at its peak, the movement had to reconcile the conflicting aspects of the phenomenon it had created or the forces it had unleashed. While on one hand, the groups involved in the movement had to bring as many issues as possible before the courts so as to render maximum participation of the affected sections of the populace, though not necessarily of the disadvantaged section of the society, it also had to be kept in mind that over-proliferation of Public Interest Litigation cases may be bad as it leads to overburdening of the traditional adjudicatory system. Be that as it may, the PILs now stand on a very solid footings in India and if they are judiciously used, they can be very beneficial tools of change.

Parmanand Pandey 

Advocate -on Record 

Supreme Court of India

Guilty of Barbaric Delhi Riots Must be Brought to Book

  North-East Delhi is limping back to normalcy after three days of arson, loot, plunder, mayhem, monstrosity and murders. Humanity has again been disgraced in these riots, which were pre-planned. But apart from the inept and unprofessional handling of the situation by the police, the judiciary and the media have also brought deep despair and disappointment by their conduct. The media never made any efforts to bring about peace and harmony. It failed to mirror the factual things to dispel the doubts and tensions, which were/are created by the rouges and anti-national elements. Our television channels suffer from a chronic decease of holding debates by inviting such people who have closed minds and rigid opinions. No amount of logic can help them in changing their viewpoints. Thus, the viewers hardly get any information or clarity from these debates.
   What is most perplexing, however, was the attitude and action of the higher judiciary. Why did the High Court entertain the petition at midnight by those people, who were also known for stoking the fire? If at all, the High Court thought it fit to hear the case at midnight, it should have directed the Delhi Police to pull all socks to control the conflagration that was raging the North-East Delhi but it simply ordered to lodge the FIR against three leaders namely; Kapil Mishra, Anurag Thakur and Pravesh Singh Verma of the BJP. So much so, in its misplaced zeal, the High Court got the speeches of all three leaders screened in the courtroom, delivered during the Delhi assembly elections. In fact, these three leaders never made any inflammatory or incendiary speech during or before the city was engulfed in communal riots. The Election Commission had already punished and prevented them from electioneering for 48 hours to 72 hours. In those days the Police were under the control of the Election Commission. So, the observations of the High Court for the registration of the FIR now is totally erroneous, unjustified and uncalled for.
  Mr Kapil Mishra is blamed to have incited the people of the Hindu community on 23rd February, which he had made in the presence of the Deputy Commissioner of Police but that was no speech at all. It was merely a request to the police to clear the unruly crowd from the main road of the Jafrabad. These protesters were sitting at some other place for the last many days but on the eve of the visit of the American President, they were instigated by the AAP MLA and the Councillor of the area to move on the main road so as to cause inconvenience to millions of people. The court should have, in all fairness, ordered the arrest of those people who provoked the protestors to obstruct the traffic with the intent to malign the image of the country.
   More than 40 persons have lost their lives and properties of crores of rupees have been destroyed and reduced to ashes in the pogrom. Its genesis needs to be thoroughly investigated and guilty persons must be meted out exemplary punishment.
  Even before the Delhi High Court had taken this cognisance of this communal riots, the Supreme Court of India behaved in the funniest manner by appointing interlocutors to negotiate with Shaheen, Bagh protestors to persuade them to move to any other site. This interference of the Supreme Court did not cover it with any glory. The protest at Shaheen Bagh has been not been misconceived but highly mischievous, organised by the local AAP MLA and funded by the radicalised Jihadi group of Peoples’ Front of India.
  It must be noted that during the visits of the US Presidents to India, the ISI of Pakistan has been creating some unsavoury and tragic tamashas to sully the image of the country. It happened during the visits of Bill Clinton, Obama, and now it was planned to coincide with the visit of Donald Trump. The only difference between now and then is that during the visits of Bill Clinton and Barak Obama, it used to be enacted in Kashmir but this time it was not possible to do so in Kashmir because of the alertness of our security forces, so they made it in Delhi, where the Muslims have been used to queer the pitch of the growing influence of India in the world.

East India Company : Began in Commerce Ended in Empire

   The history of India during the Mughal and the British Rule had been the history of loot, plunder, rape, rapine, murder, mass killings, brutality and bestiality. It was more horrible during the British rule which, came with East India Company. Millions of people were allowed to die during the Bengal famine because there were no tangible efforts by the Britishers to save the lives of the people dying in droves at every passing minute. The loot and plunder of India can be known from the historical speech of Edmund Burke in the house of commons at the time of impeachment of Warren Hastings, who told that  'the Constitution of the Company(East India Company) began in commerce and ended in empire rather as one of its directors admitted, ‘An Empire within an Empire’. He said that the business of the company was ‘more like robbery than trade’. Such was the brutality of the Company officials that the tax collectors used to drag out ‘Bengali virgins naked and exposed them to the public view and scourged.’

 According to Lord Macaulay,’ the ladies in the gallery were unaccustomed to such display of eloquence that  they plunged into a state of uncontrollable emotions and handkerchiefs were pulled out; smelling bottles were handed around, hysterical sobs and screams were heard and  Mrs Sheridan was carried out in a fit. In what is considered as one the greatest feats of oratory Burke said that ‘Warren Hastings subverted all laws, rights and liberties of people of India, whose property he had destroyed and whose country he had laid waste.’

It is expected that loot was mind-boggling. It may not be out of place to mention here that one the very first Indian word to enter in the English language was ‘loot’. The four hundred pages book, ‘The Anarchy” of the historian William Dalrymple provides a vivid description of the pitiable condition of India of nearly two hundred years of British rule in India. It does not mean that native rulers were any good to the people This period saw the most unparalleled barbarities extortion and monopolies in The timidity, pusillanimity and cowardice of highly divided princely states and decaying and effete Mughal rule provided the good ground to the Britishers to rule over India. They adopted the policy of divide and rule and got remarkable success in their goal., There were certainly some sparks of bravery among the native rulers, but they were very negligible. Maratha confederacy and Tipu Sultan put up brave fights, but they proved highly inadequate to meet the ascending British power. It is a known fact that Aurangzeb, who died in 17071707 in Khuldabad in the middle of the Deccan platau., was unloved by his father because of his bigoted Islamic puritanism and intolerance towards others. He imposed notorious Jizya tax on Hindus and executed Teg Bahadur, the ninth Guru of the Sikhs. He dismissed brave and most ethical ruler Shiva ji as a ‘desert rat’. Shivaji, however, proved to be his nemesis. The biggest calamity was, however, brought on India by Nader Shah of Afshar, who was born in Persian Khorasan. He was the son of a humble shepherd and furrier. He rose to a great height in the Persian Army due to his remarkable military talent. In 1732 he seized the Persian Throne in the Military coup. He invaded the Mughal Delhi to loot and devastate with 80 thousand fighting men. The tyranny and the havoc that was brought upon the people by Nadir Shah is unprecedented and unheard of in the history anywhere in the world. Thus, the arrival of the East India Company in India and ultimately turning into the ruler is a classic example of ‘how the business was exploited by the company officials to rule the country’.

 There are certain facts which can serve as the eye-openers for the posterity. Murshid Quli Khan’s brutality, who was a Hindu convert to Islam, knew no bounds. According to a historian Dalrymple, he was the harshest tax collectors. He set up a capital which was named after him and is known as modern Murshidabad. He would order the zamindars to be stripped necked and doused with the cold waters and beat them with sticks. So much so, that he would make them drink their urine for defaulting in the payment of taxes. The description of the war of Plassey makes one filled with the hatred for the person like Mir Zafar, who later became the metaphor for the treachery. But this also shows the apathy and aloofness of the general public towards the native rulers because of their arrogance and exploitation.

The foundation of the British rule in India was laid by Robert Clive, who started his career as a clerk in the Company but rose to become the Commander of the Army by sheer dint of his alacrity and astuteness. He was able to establish his authority firstly in south India and then expanded it to the north. The British rule was further consolidated in the times of Warren Hastings, Charles Cornwallis and Richard Wellesley. It was Lord Wellesley, who had defeated Tipu Sultan in 1799. Although Tipu Sultan was an efficient and able ruler, he was intolerant towards Hindus. while he used his sword to defend his kingdom of Mysore on the one side but on the other side, he had killed lakhs of Hindus in south western Karnataka and Kerala. He was a megalomaniac There are, of course, some instances when he is said to have donated some money for the restoration of a temple at Srirangapatnam and also for running of the Gaushalas.

The Maratha rulers like Chhatrapati Shivaji had setup the examples of bravery, valour and benevolent rulers who could pounce on the enemies like, but he was very kind-hearted and ethical towards his subjects particularly towards women. Mahadji Scindia was also a remarkably a brave and good ruler but his enmity with Holkar rulers proved to be fatal for the Maratha rulers.

 ‘The Anarchy of ‘William Dalrymple is, without doubt, a gripping and fascinating book, which he has written after exhaustive research. A storyteller, that he is, has beautifully described the foils and foibles of the rulers, their debauchery and hunger for wealth and power. This shows the insensitivity of the rulers towards the public over which they ruled. Their internecine quarrels with other rulers and gross disrespects to the subjects were the main cause of the fall of the native rulers and the rise of the British rule in India. Although the Britishers sucked the wealth of India yet they can also be credited to have brought the semblance of law and order in the country, which absolutely did not exist before they established their rule in India.

Book in the Glory of Goddess Called Cow

There are three inanimate and most revered ingredients of Hinduism and they are the Gai (Cow), the Ganga, and Gayatri. The importance of all three has been described in the Hindu scriptures. While the Gai and Ganga are worshipped in the mundane form and Gayatri mantra serves as the means of spiritual exaltation. Hinduism is a pantheistic religion but these three are kept at the highest pedestal.

Two advocates: K.M. Shukla and the Senior S. Balakrishnan, who mainly practice in the Supreme Court, have jointly written a remarkable book titled ‘Cow a Celestial Being’, which takes one’s a breath away by their knowledge and research soaked with sincerity and devotion. In their well-informed book, the writers have championed the cause of ban on the cow slaughter in the most spirited manner. They demonstrated with their sound logic that the Cow is not an animal but it is a ‘being’, which has virtually been brought on the surface of the earth from heaven to bestow worldly as well as a divine pleasure to all who seek and serve her.

They have profusely quoted the religious books like Vedas, Puranas and the Bhagwad Geeta and also the well-documented theses, which prove the enormous utility in the worldly life. The Hindu mind is accustomed to referring to the supreme divine as a Goddess and as the Universal Mother. Out of the infinite attributes by and through which the universal mother manifests herself, the Cow is one of them.  The Cow has been named in the Vedas as ‘Aghyna’, which means inviolable and her other name is ‘Ahi’, which means not to be killed and another one is ‘Aditi’, which means never to be cut into pieces. Thus, the most sacred book of Hindus i.e. Vedas unequivocally prohibits the killing of Cows.

         The advantages of having the Cow are innumerable and beyond description. The Panchgavya i.e. the five materials made from the Cows have the immense economic and medical use. It must be mentioned here that Panchgavya is made from a mixture of five products from the Cow, which are milk, curd, ghee, urine and dung, which are scientifically proved to be immunity- booster and disease-healer. Many judgments of the Apex Court have also been discussed in the book which has upheld the total ban on the slaughter of the cows. The Constitution of India, in deference to the feelings and sentiments of the overwhelming majority of Indians, has included in the directive principles for the prohibition of the cow slaughter. All native religions like; Hinduism, Buddhism, Jainism and Sikhism valiantly defend for the ban on the cow slaughter, even Islam and Christianity do not encourage it. The Bible is very clear, which says ‘He that killeth an ox is as if he slew a man’. Many Muslim rulers in India had banned the killings of the cows.

     While the opposition to the slaughter of cows has extensive and ancient roots in the Indian history, the earliest known such activities are traceable to Sikhs of Punjab, who opposed cow slaughter in the 1860s. Thereafter, the founder of the Arya Samaj, Swami Dayanand Saraswati made it a massive movement in the late 19^th century, which was carried forward by Mahatma Gandhi in the early 20^th century, but not with same zeal and vigour as was found in the movements of Sikhs and Arya Samaj. Although, the cow protection movement is mostly connected with India, yet it is applicable in Sri Lanka and Myanmar also. In India the cow slaughter ban is in place throughout the country except for Kerala, West Bengal and part of the North-East, even in the Muslim majority state of Jammu and Kashmir nobody can kill a Cow.

     The writers have discussed the issue of cow protection by juxtaposing it with cow slaughter. They have used all the weapons of the armoury of their logic from different angles and have succeeded in bringing their points home that the article 51A(h) should be adhered to by every citizen of the country to develop the scientific temper, humanism and the spirit of inquiry and reform.  The word humanism has been supplied emphasis by them and therefore, the cow protection is perfectly consonant with the constitutional spirit.

The writers have also laid more emphasis on a point that it is the majority community which has the greater responsibility for protecting the cows by providing theme care in their old age or when they stop yielding milk. Another startling fact, which has been given by them is that ‘Meat is a second-hand food which is responsible for global warming and hunger.’  The book is written in simple language and convincing style.  It is not only worth reading but for preserving as well.

Sri Lanka-India ties must be strengthened for mutual benefits

By Parmanand Pandey

Sri Lanka is an island which is surrounded by the Arabian Sea in the west, Way of Bengal in the east, the Indian Ocean in the south and the Palk Strait in the north was once the part of the Indian subcontinent. It is separated by a narrow and a very shallow sea of just 37 km in length at the narrowest point of India’s Dhanushkoti in Tamilnadu and Mannar district of Northern Province of Sri Lanka. It is so shallow that only boats, not ships, can be operated through this strait. It is said that two engineers- Nal and Neel- of Lord Rama’s army had built a bridge to cross over to Sri Lanka. That is why it is called Ram Setu. It is really strange that instead of calling it Ram Setu strait, it is known as the Palk Strait after the name of Robert Palk, who was the governor of Tamilnadu sometimes in the 18^th century. Northern and Eastern part of Sri Lanka consists mostly of Tamilians, who outnumber Sinhalese but in Central, Southern and Western parts of Sri Lanka, the Sinhalese are in the majority. In Sri Lanka, there are three official languages-English, Sinhalese and Tamil.

Indian influence

There is not only the geographical contiguity between India and Srilanka but there are cultural, religious, legal and political similarities between both countries. The people of Sri Lanka live and behave in the same manner as most of the Indians do. Therefore, to say that the relationship between India and Sri Lanka is very old is simply an understatement. According to geological studies Sri Lanka was once the part and parcel of India.  Influence of India in all spheres of Sri Lanka is seen to be believed. There has been regular trade and commerce between India and Sri Lanka even before the period of Mauryas and Guptas and this was followed in later centuries by the influence of Kingdoms located further south in the subcontinent, like the Pallavas and later on from the south Indian kingdoms of Pandyas, Cheras and Cholas.

The physical size of the Sri Lankan island is a little more than 65 thousand square kilometres, which is 1/4^th of the state of Uttar Pradesh in India. Sri Lanka has not only observed, assimilated, adapted certain good traditions of southern Indian old empires but have and in some instances, transformed them. The Buddhist civilisation, which is the most significant and enduring legacy of the north Indian empires was retained, nurtured and protected long after Buddhism has ceased to be of any great significance in India.

There has been an exchange programme of journalists between India and Sri Lanka for the last so many years through Indian Federation of Working Journalists (IFWJ) and Sri Lanka Press Association (SLPA). Almost every year SLPA invites the members of the IFWJ to Sri Lanka, which is reciprocated by the IFWJ, which receives journalists from Sri Lanka. Thus, the journalists of both countries get the opportunity to know, learn about both countries by interacting, meeting and visiting different places in both countries. This time many important journalists like B.V. Mallikarjunaiah, Hemant Tiwari, Siddharth Kalhans, Ajay Shukla, K. Asudhulla and Bhaskar Dube, Mukut Sarma was the part of the 15 member IFWJ delegation. SLPA’s Kurulu K. Kariyakarawana and his Indian wife Gitika Talukdar played an excellent host for the Indian journalists. Sri Lanka was a trouble-torn country from the beginning of the eighties till the end of the first decade of the 21^st Century. It was considered to be an unsafe place for tourists and as a result of it, the tourism of the country was hit hard. But in the last five or six years, tourism has picked up in Sri Lanka to an unprecedented level.

India’s significant contribution

As a matter of fact, tourism is the mainstay of the economy of Sri Lanka and after the end of the civil war, the number of tourists has increased more than three hundred times. Every day many chartered flights from India itself go to Sri Lanka.  For a large number of Hindu and Bauddha visitors, Sri Lanka is like a pilgrimage country because of its association with Lord Rama and Ramayana and Buddhism. The Indian delegation was invited by the Indian’s High Commissioner in Sri Lanka, Taranjit Singh Sandhu, who is an epitome of suave, polite and decent behaviour, told that the contribution of India in the development and modernisation of Sri Lanka is incomparable and is much more than any other country of the world. Although there is a misconception among SriLankan’s about the tourists as they think that only westerners are the real tourists, who come with bulging pockets for comforts, this notion is now changing. In the last few years, the number of Indian tourists to Sri Lanka has gone manifold and it is increasing with every passing day. The role of the Indian government in the building of the economy of the Sri Lanka is to be seen to be believed. Many rail lines have been constructed by India and on many tracks, the trains built in India are running. Unlike China, India believes more in the involvement of the local people in the developmental work of Sri Lanka rather than importing the workforce from India to Sri Lanka as China does. Most of the Chinese projects are financed, conceived and built by them only because they bring the workers from their own country ignoring the claims of the locals in providing them employment. India has always been sensitive to the feeling of the local people and she has stood with Sri Lanka, be it any natural calamity or manmade disasters like civil war or the attacks of radical Islamists in the churches at the time of the Easter.

The importance of Sri Lanka for India can be known from the fact that Prime Minister Narendra Modi has visited the island for three times and has extended full cooperation to Sri Lanka in tiding over its problems. India has recently given five thousand built houses to accommodate the poor, needy and displaced persons of Sri Lanka during the long period of civil war. With the increasing number of casinos, dance bars and gambling centres, the number of comfort-seeking tourists of European and other countries is going by leaps and bounds. Colombo is the main city of Sri Lanka and it is very ideally located on the banks of the Arabian Sea. It can boast of the good Marine Drive, high rise buildings, many starred hotels, and the modern airport etc, the roads in Sri Lanka are spick and span and the people are highly conscious about the cleanliness in the city. Sri Lanka like India is a multi-religious and a multi-cultural country. The total population of the country is around 25 million. There are 15 Universities in the country and the literacy rate is around 95 per cent, much higher than any in any third world countries. Although, there is no comparison between India and Sri Lanka in many respects because India has the vast resources of minerals, skilled human force and the scientific development, yet the per capita gross domestic product of Sri Lanka is two times more than India’s. While it is a little more than 2,000 US dollar in India, in Sri Lanka it is more than 4,100 US dollar per annum.

Media scenario

Most of the newspapers and other media houses in Sri Lanka have very limited reach and resources. Newspapers are very costly as compared to Indian newspapers because they do not have a large circulation and advertisement support. Most of the newspapers have to remain dependent on government advertisements, which is not the case in India. Many independent TV channels have also come up in Sri Lanka, but they are not as exclusive in dishing out the programmes of any particular area or branch. Every channel is the motley of entertainment news and business programmes but in India, there are hundreds of news channels which provide news in different languages for 24x7. Similarly, there are many entertainment channels, sports channels and business channels in India, where one can find the contents of once own interests and likings, and this has been possible only because of the advertisement support which they get from the private establishments and the people.

As a matter of fact, newspapers in India are the cheapest in the world largely because they get the private advertisement- support and therefore have not to depend on the mercy of the government. This is one of the reasons that media in India is fierce, robust and has the capacity to take on the high and mighty which is not possible in other third world countries. Apart from it the readership is also quite high, and the reach is wider in India than in Sri Lanka or for that matter even in other developing countries. This is also one of the main reasons for India to have the flourishing, vibrant and dynamic democracy. The media in India, if it wants, can remain independent and it need not ride like a piggyback of the government. The legal system in India and in many other commonwealth countries like Sri Lanka is more or less the same. It is a different matter that after independence, the Parliament and the Supreme Court have completely transformed the Indian legal system and its jurisprudence, which is virtually serving as a role model for other countries. Hopefully, the relationship between India and Sri Lanka will further grow which will mutually beneficial.  The government of India must remain cautious of Sri Lanka, which is spreading its tentacles otherwise there are many big countries, which want to convert Sri Lanka into a springboard for serving their own ulterior motives.

Fali Nariman Laments at the Supreme Court

The new book of Fali S. Nariman ‘God Save the Hon’ble Supreme Court’, is full of lively anecdotes and tit-bits that make it a good reading but those who expect to get any philosophy, jurisprudence and guidance ‘what ought to be in the field of law’ would be highly disappointed. F.S. Nariman has seven decades of standing in the legal profession and for more than five decades he has been practising only in the Supreme Court. He has been on the zenith of the profession for many decades and is held in high esteem by the bench and bar alike. Whatever he says inside or even outside the court is heard with rapt attention.

The title of the book suggests that he is not satisfied with the goings-on in the Supreme Court and therefore he prays to save the Hon’ble Supreme Court but one fails to understand why a person of Nariman’s stature has not taken any firm stand or cudgels to remove Augean stable, which has set in the Court of late? The first chapter deals with mainly the internal rivalry, squabbles and one one-upmanship of the Judges. He has very meekly expressed his displeasure over the public expression of dissatisfaction of the four senior Judges in January of 2018. He appears to be against the Public Interest Litigations, which bespeaks of the mental makeup of most of the established lawyers, who never want the hornet’s nest to be disturbed. He has mostly taken up cases of corporate houses. He has discussed some cases, in brief, which partly present one side of the Supreme Court. Those cases are: ‘Jindal Stainless Steel vs the State of Haryana’, ‘Aviram Singh vs C.D. Gomachand’, ‘Krishna Kumar Singh vs the State of Bihar’, ‘Shayara Bano vs Union of India’ also known as Triple Talaq Case, ‘Justice Puttaswami vs Union of India’, ‘National Insurance Company vs Pranay Sethi’, ‘Common Cause vs Union of India’, and ‘State of Jharkhand vs Hindustan Construction Company’. He says that these are the best cases which have been decided by the Supreme Court in recent times but many cases like that of Justice C.S. Karnan of the Calcutta High Court (his parent High Court was the Madras Hgh Court) has put a bad light on the state of affairs of Supreme Court.
Fali S. Nariman as an Advocate has never been very combative in the courtrooms, always very courteous and a stickler to the decorum and that is what he expects from the youngsters as the fascinating future of law belongs to them. He belongs to the old school of Bhadra Lok genre of Advocates, who hardly raised their voice even against those Judges who are rude and discourteous in the Courts. It will not be out of place to mention here that the Supreme Court before 1970 was a highly retrogressive forum of justice, no progressive judgements were delivered by it, be it the case of Privy Purses, Bank Nationalisation or Land Reforms , all of them were passed by the Parliament but they were set aside by the Supreme Court.
The Supreme Court instead of supporting the cause of the poor, downtrodden and deprived sections of the society, adopted the approach of elitism, to the disgust of the common people of India. Surprise of all surprises is the fulsome support that those judgements got from the towering Fali S. Nariman. There is a ‘Stephanion School of Lawyers’ in the Supreme Court, who never think big and innovative as they suffer from the subaltern mentality. They are the biggest stumbling blocks in changing the character of the judiciary, legislatures or the executive. Stephanion does not mean those who have come out from the Stephens’ College, but it is a metaphor which connotes and signifies the elitist culture. Such people never stand in favour of teeming and toiling masses but believe in the status quoism of comfort living persons.
He has discussed the role of the Judges, Lawyers and Parliamentarians and has waxed eloquent about the 'basic structure' of the Constitution as propounded in the Keshvanand Bharti case, way back in 1973. As a matter of fact, it is the considered opinion of this reviewer is that the theory of ‘basic structure’ is a big hoax. In the name of the basic structure, the Supreme Court has substantially throttled the wishes and aspirations of the people. It has put shackles and fetters on the desires of the people. Needless to say, that it is the Parliament which represents the desires and ambitions of the people and the 'doctrine of basic structure' amounts to the usurpation of the rights of the Legislature by the Supreme Court.
He has devoted a chapter on the freedom of speech and expression, wherein he has certainly praised the role played by the media in certain spheres, but he has, at the same time, glossed over the corruption prevailing in the media itself. He has not written a word against the exploitative media houses. He has quoted three important cases which are four to five decades old namely; ‘E.P. Raiappa vs the State of Tamilnadu’, ‘Ajay Hasia’, ‘State of West Bengal vs Anwar Ali Sarkar’ and ‘Kathi Rani Rawat vs the State of Saurashtra’, which are of the vintage value but much has changed since then. It is very strange that in the name of ‘equality before the law’ as enshrined in article 14 of the Constitution, Fali S. Nariman stands behind such people who have made the Supreme Court the handmaiden of the corporate houses and the thugs of the country, who have cheated the people behind the veneer of subtle sophistication.
His compendious autobiography ‘Before Memory Fades-An Autobiography’, was certainly was a delightful reading but the present book does not, in any manner whatsoever, throws any light on the changing scope of the law and the advocacy. There have been only a few judges who have certainly brought laurels to the Supreme Court and among them were Justice B.V. Krishna Iyer, Justice Bhagwati (except, of course, his disgraceful judgement on the ADM Jabalpur case), Justice D.A. Desai. Justice A.N. Ray (Yes! the same Justice A.N. Ray, who superseded the senior-most judges of the Supreme Court and became the Chief Justice of India, his sterling role in Keshvanand Bharti case and Bank Nationalisation case speaks about the sparks of his progressive thinking to convert the judiciary into the vehicle of the transformation of the society). Alas! however, he was a much-maligned judge because of his opposition to the retrogressive judiciary.
There is also a chapter on Minorities at the Crossroads, in which he has unnecessarily shed tears on the rights of the minorities. Instead of prodding and encouraging them to be the part of the mainstream, he has praised for the protection of their cloistered virtue. The education and economic upliftment of the minorities are more important than anything else but strangely; he has not spoken anything against the Christian missionaries, who have been driving a wedge between the Christians and non-Christians by opening the schools and colleges only for themselves in defiance to the provisions of the equality before the law. It is highly shocking that the Kerala Education Bill, which was introduced by E M.S. Namboodiripad in 1958, which wanted to bring parity in the educational standards has been upbraided by F.S. Nariman in his book.
He has paid a very moving tribute to V.R. Krishna Iyer and an Advocate of Lucknow R.N. Trivedi, he deserves kudos for glowingly remembering the stalwarts.
The book has been written in the fashion of storytelling in elegant English. Unfortunately, even after seventy years of the existence of the Supreme Court, those who speak crisp and highly accented English command high premium in the advocacy. Surprisingly, the legal luminary like Fali S. Nariman has not discussed the desirability of the NJAC (National Judicial Appointment Commission), because today what we find is the highly 'incestuous system of appointment of judges' in the Higher Judiciary.