Exterminate the Jinnah- mentality to save India

It is shocking beyond words to find such people, and that too in a large number, who shamelessly defend the portrait of MA Jinnah in AMU, a person who was responsible for the vivisection of India, killings of more than two million people, large rape and rapine and displacement of many millions in the name of an Islamic country, Pakistan.
      Way back in 1940 MA Jinnah had said, ‘The Hindus and Muslims belong to two different religious philosophies, social customs. They neither intermarry nor inter-dine together and, indeed, they belong to two different civilizations which are based mainly on conflicting ideas and conceptions. Their aspects on life and of life are different. It is quite clear that Hindus and Musalmans derive their inspiration from different sources of history. They have different epics, different heroes, and different episodes. Very often the hero of one is a foe of the other hand, likewise, their victories and defeats overlap. To yoke together two such nations under a single state, one as a numerical minority and the other as a majority must lead to growing discontent and final destruction of any fabric that may be so built for the government of such a state.’
       Again in 1944 Jinnah said, ‘We maintain and hold that Muslims and Hindus are two major nations by any definition or test of a nation. We are a nation with our own distinctive culture and civilization, language and literature, art and architecture, names and nomenclature, sense of values and proportions, legal laws and moral codes, customs and calendar, history and tradition, and aptitude and ambitions. In short, we have our own outlook on life and of life’. Although the seeds of the partition of India were sown by Allama Iqbal in 1930 itself, Jinnah was the person who translated their dreams into reality by playing with the passions of illiterate and dogmatic Muslims'.
        It is strange that some people, due to their hatred for Veer Savarkar, try to lay blame on him for two nation theory, but nothing can be farther from the truth. In his famous speech in the Calcutta conference of Hindu Mahasabha in 1939 Veer Savarkar had said, ‘India shall not be divided into two parts, one for Muslims and the other for the Hindus; that the two nations shall dwell in one country and shall live under the mantle of one single constitution.
       Dr. BR Ambedkar in his book ‘Pakistan or Partition of India’ has said that ‘he (Savarkar) does not propose to suppress the Muslim nation. On the contrary, he is nursing and feeding it by allowing it to retain its religion, language, and culture, elements which go to sustain the soul of a nation. At the same time, he does not consent to divide the country so as to allow the two nations to become separate, autonomous states, each sovereign in its own territory. 

      Another preposterous logic is put forward that Jinnah belonged to undivided India; therefore, there is nothing wrong to have his portrait. But will such people tell that if there is any university in Pakistan which adorns the portrait of Gandhi, Nehru, Patel or Bose? The reply will be emphatic ‘no’. Then why should any Indian university have the photograph of a megalomaniac like Jinnah on its walls?

      Those, who say that Jinnah was a freedom fighter, are either knaves or fools or an amalgam of both. Jinnah never went to jail even for a day and never participated in the freedom struggle as he was in the good books of Britishers and was used to get all facilities and comforts from the Raj. This is an altogether different matter that by raising the passions of foolish and dogmatic Muslims, he had dwarfed the stature of the likes of Abul Kalam Azad, Rafi Ahmad Kidwai, Zakir Hussain and others. The problem, with these Congress leaders, was that they tried to prove themselves to be more Muslim by their conduct than Pakistan supporting Muslims. Jinnah, on the contrary, was never a practicing Muslim and yet he had a tremendous spell over the Muslims.

    The sooner it is removed from the AMU the better. Those who are opposing it must be crushed with iron hands otherwise such elements will snowball into the disease of cancer, the emperor of maladies, leading to unimaginable catastrophe for India. Jinnah is not a person, it is a mentality. Need is to exterminate this mentality, as ruthlessly as possible, to keep India united.

SC Must Stem Rot Before It Stinks

The Supreme Court of India is beset with galore of controversies. At the beginning of this year, four of its senior most judges- Jasti Chelameswar, Ranjan Gogoi, Madan B. Lokur and Kurian Joseph- held a Press Conference saying that ‘all is not well’ in the Supreme Court of India. This triggered the opposition parties to move for the impeachment of the Chief Justice of India Dipak Misra. However, the impeachment proceedings could not be carried forward because the entire last session of both houses was washed out due to the ruckus and pandemonium inside the house by one or the other opposition party. Thereafter two of its judges sent missives to the CJI requesting him to take immediate measures to set right the Court’s functioning.

Adding fuel to fire the former Law Minister and very senior advocate Shanti Bhushan and his son Prashant Bhushan, also a celebrated advocate, filed Public Interest Litigation in the Supreme Court for the constitution a five-judge bench to decide as to which case was to be heard by which bench. They further asked the Registrar General of the court not to list the matter before the Chief Justice of India. This part of their prayer virtually amounts to no confidence in the Chief Justice, which many consider being inappropriate. Prashant Bhushan mentioned this issue before Justice Chelameswar on 12^th April 12, 2018, for early hearing but it was rejected by him with a sarcastic tinge that he would not like his order to be reversed by the larger bench in 24 hours. Assigning of the cases has been the main cause of contention. In their letter of 12^th January 2018 to the Chief Justice, the four senior-most judges had said ‘there have been instances when cases having far-reaching consequences for the nation and the institution have been assigned by the CJI selectively to Benches of their preference without any rational basis for such assignment.’

In the meantime Justice Kurian  also wrote a letter to the Chief Justice of India with copy to all other 22 judges of the Supreme Court saying that, ‘the very existence of the Supreme Court is under threat and history will not pardon us, if the court does not respond to the government’s unprecedented act  of sitting on the collegium recommendation to elevate a judge and a senior advocate to the apex court’. He urged the Chief Justice to establish a bench of seven judges to suo motu take up the matter government sitting on the two names.  If this demand is accepted, it would effectively mean an open court hearing by the judges who could pass orders asking the government to decide on the pending recommendations of the Collegium. They could even direct the government to issue the warrants for appointments of judges within a stipulated time frame and failure to do so make the government liable for contempt of court. Justice Kurian even suggested that following the precedent in Justice Karnan’s case, the Supreme Court should take up the mater on the judicial side. Most remarkably, he added, that while Justice Karnan’s case was a threat to the ‘dignity of the court’, the present one is a threat to the ‘very life and existence’ of the institution.

What has, however, taken the cake is that a petition of a lawyer Ashok Pande, who is credited to have filed more than two hundred PILs on various issues, mostly in the Allahabad High Court. He filed his PIL within four days of the press conference of four senior-most judges of the Supreme Court. Shri Pande in his petition besides asking for transparency in the allocation of cases also suggested for a pattern to be adopted by the Supreme Court for constituting and assigning the cases to the benches. His all suggestions were disdainfully dismissed by the Bench of CJI Dipak Misra, AM Khanwilkar, and DY Chandrachud. The author of the judgment Justice Chandrachud said, ‘the relief which the petitioner seeks is manifestly misconceived. For one thing, it is a well-settled principle that no mandamus can be issued to direct a body or authority which is vested with a rulemaking power to make rules in a particular manner. The Supreme Court has been authorized under Article 145 to frame rules of procedure. A mandamus of nature sought cannot be issued. Similarly, the petitioner is not entitled to seek a direction that Benches of this Court should be constituted in a particular manner or, as he seeks, that there should be separate divisions of this Court. The former lies exclusively in the domain of the prerogative powers of the Chief Justice’.

The Court further said that ‘apart from the fact that the relief sought is contrary to legal and constitutional principle, there is a fundamental fallacy in the approach of the petitioner, which must be set at rest. The petitioner seeks the establishment of a binding precept under which a three-judge Bench in the Court of the Chief Justice must consist of the Chief Justice and his two senior-most colleagues. While the Constitution Bench should consist of five senior-most judges (or, as he suggests, three ‘senior-most’ and two ‘junior-most’ judges). There is no constitutional foundation on the basis of which such a suggestion can be accepted. This would intrude into the exclusive duty and authority of the Chief Justice to constitute benches and to allocate cases to them. The petitioner seems to harbour a misconception that certain categories of cases or certain courts must consist only of the senior-most in terms of appointment. Every Judge appointed to this Court under Article 124 of the Constitution is invested with the equal duty of adjudicating cases which come to the Court and are assigned by the Chief Justice. Seniority in terms of appointment has no bearing on which cases a Judge should hear. It is a settled position that a judgment delivered by a Judge speaks for the court (except in the case of a concurring or dissenting opinion). The Constitution makes a stipulation in Article 124(3) for the appointment of Judges of the Supreme Court from the High Courts, from the Bar and from amongst distinguished jurists. Appointment to the Supreme Court is conditioned upon the fulfilment of the qualifications prescribed for the holding of that office under Article 124(3). Once appointed, every Judge of the Court is entitled to and in fact, duty bound, to hear such cases as are assigned by the Chief Justice. Judges drawn from the High Courts are appointed to this Court after long years of service. Members of the Bar who are elevated to this Court similarly are possessed of wide and diverse experience gathered during the course of the years of practice at the Bar. To suggest that any Judge would be more capable of deciding particular cases or that certain categories of cases should be assigned only to the senior-most among the Judges of the Supreme Court has no foundation in principle or precedent. To hold otherwise would be to cast a reflection on the competence and ability of other judges to deal with all cases assigned by the Chief Justice notwithstanding the fact that they have fulfilled the qualifications mandated by the Constitution for appointment to the office.’

Thus, now it has become abundantly clear that the CJI is the master of the roster. The Court elucidated that the constitution of Benches and the allocation of cases by the Chief Justice must be regulated by a procedure cast in iron is the apprehension that in absence of such a procedure the power will be exercised arbitrarily. In his capacity as a Judge, the Chief Justice is primus inter pares: the first among equals. In the discharge of his other functions, the Chief Justice of India occupies a position which is sui generis. From an institutional perspective, the Chief Justice is placed at the helm of the Supreme Court. In the allocation of cases and the constitution of benches, the Chief Justice has an exclusive prerogative. As a repository of constitutional trust, the Chief Justice is an institution in himself. The authority which is conferred upon the Chief Justice, it must be remembered, is vested in a high constitutional functionary. The authority is entrusted to the Chief Justice because such an entrustment of functions is necessary for the efficient transaction of the administrative and judicial work of the Court. The ultimate purpose behind the entrustment of authority to the Chief Justice is to ensure that the Supreme Court is able to fulfil and discharge the constitutional obligations which govern and provide the rationale for its existence.’

 In view of this imprimatur, the authority of Chief Justice of India as the Master of Roster is firmly established. But it appears that the imbroglio is not going to die down soon. Many eminent former judges have criticised the CJI for hearing the case which pertains to him and thus has violated the principle of natural justice nemo judex causa sua (nobody can be a judge in one’s own case). Such spats certainly erode the faith in the institution and therefore must be stemmed before it rots and stinks.

Appeasement Policy is Counterproductive

It is a historical fact that before independence the Congress Party was identified with Hindus and Muslims were with the Muslim League. Only a few Muslim leaders like Maulana Abul Kalam Azad and Rafi Ahmad Kidwai were with the Congress Party .They were sarcastically called the ‘show pieces’ of the Congress Party by M.A. Jinnah. It was more or less true also because they did not have any hold over Muslims of India. What is, however, very surprising is that immediately after the partition of the country; Indian Muslims switched sides and became the ardent supporters of the Congress Party. Ordinary Muslims of India were used as sentimental cannon fodders by the feudal and rich Muslims, who spearheaded the movement for creation of Pakistan. What an irony that Muslims fought for the creation of Pakistan with MA Jinnah but stayed back in India, which kept alive the communal problems of the country.

The myopic Indian leadership not only failed to handle the communal problems but kept the embers of Muslims communalism burning for vote banks. The initial beneficiary was the Congress Party but later other semi-literate politicians of regional parties fueled the fire of Muslim Communalism for the same vote banks. These short-sighted leaders got the Hindus divided in the name of castes and creeds, again; for serving their own ends.

During previous ten years of UPA regime another dirty game was played by Chidambarams and Shindes at the instance eminence grise (this French word is pronounced as emino griz, which means a person who does not hold any post but wields much power), like Sonia Gandhi for maligning the Hindus by branding them as communal and Hindu terrorists. That is how many false cases were slapped on them in Malegaon, Samjhauta Express, and Mecca Masjid terrorists’ incidents. Their nefarious game of painting the Hindus with black brushes is now becoming clearer as all the cases are falling flat in the courts of law. Their malicious designs have done much harm to the country that real culprits have never been caught. The way the Kathua rape case is being handled by implicating Hindus is a matter of serious concern, which is clear from the charge sheet and the lopsided investigation. Lest the real culprits slip away from the noose of the law is very disquieting.

Lest Rapist of Kathua Girl Go Scot-free

Rape and murder of an eight-year-old girl Asifa in Jammu’s Kathua district are so horrendous that it can make anybody restless. Only a devil or monster in the human form could have done it. But look at those, who are most vociferously asking for justice to Asifa? They are those, who have been stone pelters and their sympathizers, rapists of Kashmiri women and killers of innocents, who are the loudest in their demand for justice to the poor girl.
It is a well-known fact that nomadic Bakerwal community is very loyal to India. This community has been giving vital information to the Indian army from time to time about the infiltration of the cross-border terrorists. This community, of cattle grazers, mostly remains mobile in the rough terrains and jungles. Bakerwals do not stay permanently at any particular place giving them the advantage of knowing the movements of suspicious the people. That is why; they succeed in identifying the enemies where even the Indian military intelligence fails. Bakerwals were the first to inform the Indian army about the base camps of Pakistani regulars in Kargil area some two decades ago. They have never been at loggerheads with the Hindus, who are in majority in the Jammu region.The incident has put the humanity to shame and sooner the culprits are brought to book the better. However, there are some gaping holes in the charge sheet that has been submitted before the Chief Judicial Magistrate of Kathua, which has been published verbatim in the Firstpost. It is for the prosecution and the defense to prove their case in the court of law. Nevertheless, one cannot resist asking a question why Rohingya factor has not been looked into? One cannot lose sight of the fact that for the last five-six years after the large-scale settlement of Rohingyas, with the active support of the government, in the Jammu region crimes and clashes have gone up manifold. So if the local populace is asking to inquire into the role of the illegal settlers, there appears to be nothing wrong in it
The incident took place more than three months ago, but nobody of any significance bothered about it. The charge sheet was prepared by an officer of dubious integrity. The former Chief Minister Omar Abdullah, the tweet master, who was very boisterous on this issue or, for that matter, any opposition leader never visited the place. People of the area have been simply demanding that inquiry should be done by the CBI, which certainly enjoys more credibility than the local police, known for the communal virulence.Again there is nothing wrong with this demand.
What was done with that innocent girl was abominable, diabolic and so chilling as to cause goosebumps but if, after shoddy and botched up inquiry, some more innocents are punished and real culprits go scot-free, then it will be an enormous travesty of justice with the departed soul of Asifa.May she rest in peace but the demons of perpetrators of crime on her must get the harshest and exemplary punishment.

Stop Barbaric Practice of ‘Honour Killing’: S. C.

It is true that love knows no boundaries, but it is equally true that there are many enemies of the true love. The biggest obstacles that have been coming in the way of the love of two adult couples in the recent years are the Chap panchayats. These Khap Panchayats of Haryana, Rajasthan and western Uttar Pradesh wield enormous authority and influence, particularly in the Jat community. These Khap Panchayats not only decide the cases of community disputes but also take up the roles of cruel executioners. Such Panchayats do not have any legal sanctity, yet governments do not muster the courage to effectively implement the orders of the courts even if they come from the Supreme Court. Courts have expressed their resentments, number without times, on the crimes committed in the name of defending the honour of caste, clan or family and yet they are committed in various parts of the country. The Supreme Court has now come down heavily on those, who have been committing such crimes, without much fear, for the sake saving the honour of the family or caste. It is true that there are many well entrenched and abominable social prejudices and therefore, it is difficult to eradicate them overnight through law or judicial pronouncements.

The Supreme Court has said that when the ability to choose is crushed in the name of class honour and the person’s physical frame is treated with absolute indignity, a chilling effect dominates over the brains and bones of the society at large. The question that poignantly emanates for consideration is whether the elders of the family or clan can ever be allowed to proclaim a verdict guided by some notion of passion and eliminate the life of the young who have exercised their choice to get married against the wishes of their elders or contrary to the customary practice of the clan. The answer has to be an emphatic “No”. Class honour, howsoever perceived, cannot smother the choice of an individual which s/ he is entitled to enjoy under our compassionate Constitution. And this right of enjoyment of liberty deserves to be continually and zealously guarded so that it can thrive with strength and flourish with resplendence.

The petitioner-organization ’Shakti Vahini’ was authorized for conducting Research Study on “Honour Killings in Haryana and Western Uttar Pradesh” by an order of the National Commission for Women. It is contended in the petition that the existence of a woman in such an atmosphere is entirely dependent on the male view of the reputation of the family, the community, and the milieu. The action of a woman or a man in choosing a life partner according to her or his own choice beyond the community norms is regarded as dishonour which, in the ultimate eventuate, innocently invites death at the cruel hands of the community prescription. The reputation of a woman is weighed according to the manner in which she conducts herself, and the family to which the girl or the woman belongs is put to pressure as a consequence of which the members of the family, on certain occasions, become silent spectators to the treatment meted out or sometimes become active participants forming a part of the group either due to determined behaviour or unwanted sense of redemption of family pride.

The pernicious practice of Khap Panchayats and the like taking law into their own hands and pronouncing on the invalidity and impropriety of Sagotra and inter-caste marriages and handing over punishment to the couple and pressurizing the family members to execute their verdict by any means amounts to flagrant violation of rule of law and invasion of personal liberty of the persons affected. Sagotra marriages are not prohibited by law, whatever may be the view in olden times. The Hindu Marriage Disabilities Removal Act, 1946 was enacted with a view to dispelling any doubts in this regard. The Act expressly declared the validity of marriages between the Hindus belonging to the same ‘gotra’ or ‘pravara’ or different sub-divisions of the same caste. The Hindu Marriage Act does not prohibit sagotra or inter-caste marriages.  Earlier in Lata Singh’s case, the Supreme Court had opined about Khap Panchayats that we are of the opinion that this is wholly illegal and has to be ruthlessly stamped out. There is nothing honourable in honour killing or other atrocities and, in fact, it is nothing but barbaric and shameful murder. Other atrocities in respect of personal lives of people committed by brutal, feudal-minded persons deserve harsh punishment

 As a matter of fact, the concept of liberty has to be weighed and tested on the touchstone of constitutional sensitivity, protection and the values it stands for. It is the obligation of the Constitutional Courts as the sentinel on qui vive to zealously guard the right to liberty of an individual as the dignified existence of an individual has an inseparable association with liberty. Without sustenance of liberty, subject to constitutionally valid provisions of law, the life of a person is comparable to the living dead having to endure cruelty and torture without protest and tolerate the imposition of thoughts and ideas without a voice to dissent or record a disagreement. The fundamental feature of dignified existence is to assert for dignity that has the spark of divinity and the realization of choice within the parameters of law without any kind of subjugation. The purpose of laying stress on the concepts of individual dignity and choice within the framework of liberty is of paramount importance.

Life and liberty sans dignity and choice is a phenomenon that allows hollowness to enter into the constitutional recognition of the identity of a person. The choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is an erosion of choice. When two adults marry out of their volition, they choose their path; they consummate their relationship; they feel that it is their goal and they have the right to do so. And it can unequivocally be stated that they have the right and any infringement of the said right is a constitutional violation. The majority in the name of class or elevated honour of clan cannot call for their presence or force their appearance as if they are the monarchs of some indescribable era who have the power, authority and final  say to impose any sentence and determine the execution of the same in the way they desire possibly harbouring the notion that they are a law unto themselves or they are the ancestors of Caesar or Louis the XIV. The Constitution and the laws of this country do not countenance such an act, and, in fact, the whole activity is illegal and punishable as an offense under the criminal law.

The Supreme Court han as now asked the State Governments to adopt preventive, remedial and punitive measures to stop this nefarious practice of honour killings. As far as preventive steps are concerned the State Governments should forthwith identify Districts, Sub-Divisions and/or Villages where instances of honour killing, or assembly of Khap Panchayats have been reported in the recent past, e.g., in the last five years. Home Department of the concerned States shall issue directives/advisories to the Superintendent of Police of the concerned Districts for ensuring that the Officer In charge of the Police Stations of the identified areas are extra cautious if any instance of inter-caste or inter-religious marriage within their jurisdiction comes to their notice

If despite the preventive measures  any Khap Panchayat has taken place and it has passed any diktat to take action against a couple/family of an inter-caste or inter-religious marriage (or any other marriage which does not meet their acceptance), the jurisdictional police official shall cause to immediately lodge an F.I.R. under the appropriate provisions of the Indian Penal Code. Upon registration of F.I.R., intimation shall be simultaneously given to the Superintendent of Police/ Deputy Superintendent of Police who, in turn, shall ensure that effective investigation of the crime is done and taken to its logical end with promptitude.  Additionally, immediate steps should be taken to provide security to the couple/family and, if necessary, to remove them to a safe house within the same district or elsewhere keeping in mind their safety and threat perception. And lastly, upon the failure by either the police or district officer/officials to comply with the aforesaid directions shall be considered as an act of deliberate negligence and/or misconduct for which departmental action must be taken under the service rules. The departmental action shall be initiated and taken to its logical end, preferably not exceeding six months, by the authority of the first instance. The State Governments shall create Special Cells in every District comprising the Superintendent of Police, the District Social Welfare Officer to receive petitions/complaints of harassment of and the threat to couples of inter-caste marriage.

Honour killings need to be consigned to the dustbins of history sooner than later.

'Living Will' to Die With Dignity

The legend goes that Dharmaraj Yudhisthir told Yaksha that the greatest wonder is that whosoever is born will have to die but nobody wants to believe it. The five-judge constitution bench of the Supreme Court recently delivered a judgment, laden with philosophical conundrums, ethical values, and legal scopes. Many a time it is the same life that becomes burdensome for the person, who is face to face with inevitable death, and also for his/her family members. This judgment has now given the right to people to die with dignity and can write a ‘Will’ of death, saying that if he/she is in the coma or vegetative state, the plugs of life may be pulled off. The poet Alfred Tennyson has said that ‘no life that breathes with human breath has ever truly longed for death.’ But this perception is not always the same at every stage. There comes a phase in life when the spring of life is frozen, the rain of circulation becomes dry, the movement of body becomes motionless, the rainbow of life becomes colourless and the word ‘life’ which one calls a dance in space and time becomes still and blurred and the death comes near to hold it as an octopus gripping firmly with its tentacles so that the person ‘shall rise up never’.

Ernest Hemingway expounded the idea that man can be destroyed but cannot be defeated. Nevertheless, life sans dignity is an unacceptable defeat and life that meets death with dignity is a value to be aspired for and a moment for celebration. It is a vexed question whether a person should be allowed to remain in the stage of incurable passivity suffering from pain and anguish or should he/she not be allowed to cross the doors of life and enter, painlessly and with dignity, into the dark tunnel of death that is full of resplendence.

The Court said that the legal question does not singularly remain in the set framework of law or, for that matter, morality or dilemma of the doctors but also encapsulates social values and the family mindset to make a resolute decision which ultimately is a cause of concern for all. There is also another perspective to it. A family may not desire to go ahead with the process of treatment but is compelled to do so under social pressure especially in a different milieu, and in the case of an individual, there remains a fear of being branded that he/she, in spite of being able to provide the necessary treatment to the patient, has chosen not to do so. The social psyche constantly makes him/her feel guilty.

There is always the fear of misuse of Euthanasia because some greedy kith and kin with the help of unethical doctors may accelerate the death of the comatose person. Thus, the Court observed that in an action of this nature, there can be abused by the beneficiaries who desire that the patient’s heart should stop so that his property is inherited in promptitude and in such a situation, the treating physicians are also scared of collusion that may invite the wrath of criminal law as well as social stigma. The medical, social and ethical apprehensions further cloud their mind to take a decision. The apprehension, the cultural stigma, the social reprehension, the allegation of conspiracy, the ethical dilemma and eventually the shadow between the individual desire and the collective expression distances the reality and it is here that the law has to have an entry to alleviate the agony of the individual and dispel the collective attributes and perceptions.

The factum of the case, in brief, is: The petitioner, a registered society, seeks to declare “right to die with dignity” as a fundamental right within the fold of “right to live with dignity” guaranteed under Article 21 of the Constitution; to issue directions to the respondents to adopt suitable procedure in consultation with the State Governments, where necessary; to ensure that persons of deteriorated health or terminally ill patients should be able to execute a document titled ‘My Living Will and Attorney Authorisation’ which can be presented to the hospital for appropriate action in the event of the executant being admitted to the hospital with serious illness which may threaten termination of the life of the executant; to appoint a committee of experts including doctors, social scientists and lawyers to study into the aspect of issuing guidelines as to the “Living Wills”; and to issue such further appropriate directions and guidelines as may be necessary.

The execution of a ‘Living Will’ has become a necessity in today’s time keeping in view the prolongation of treatment in spite of irreversible prognosis and owing to penal laws in the field that creates a dilemma in the minds of doctors to take the aid of the modern techniques in a case or not. A comparison has been made between the fundamental rights of an individual and the State interest focusing on sanctity as well as the quality of life. However, it was opposed by the Government of India due to the following reasons among others: (a) Hippocratic oath is against intentional/voluntary killings of the patient. (b) Progression of medical science to relieve pain, suffering, rehabilitation, and treatment of so-called diseases will suffer a setback. (c) Wish of euthanasia by a mentally ill patient/in depression may be treatable by good psychiatric care.

Earlier in Gyan Kaur vs the State of Punjab, the Constitution Bench of the Supreme Court had said that ‘Right to life’ is a natural right embodied in Article 21, but suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of ‘right to life’.  Adverting to the concept of euthanasia, the Court observed that existence in the persistent vegetative state (PVS) is not a benefit to the patient of terminal illness being unrelated to the principle of ‘sanctity of life’ or the ‘right to live with dignity’. The Court addressed the legal issues, namely, active and passive euthanasia. It noted that such legislation is prevalent in Netherlands, Switzerland, Belgium, U.K., Spain, Austria, Italy, Germany, France and United States of America. An example was cited by stating that if a patient requires kidney dialysis to survive, not giving dialysis although the machine is available is passive euthanasia and similarly, withdrawing the machine where a patient is in the coma or on heart-lung machine support will ordinarily result in passive euthanasia.

Euthanasia is basically an intentional premature termination of another person’s life either by direct intervention or by withholding life-prolonging measures and resources either at the express or implied request of that person or in the absence of such approval/consent. While dealing with active euthanasia the Supreme Court in Aruna Shanbaug said that the euthanasia entails a positive act or affirmative action or act of commission entailing the use of lethal substances or forces to cause the intentional death of a person by direct intervention, e.g., a lethal injection given to a person with terminal cancer who is in terrible agony. Passive euthanasia, on the other hand, also called “negative euthanasia” or “non-aggressive euthanasia.

Quoting the Law Commission report, the Court said ‘A hundred years ago, when medicine and medical technology had not invented the artificial methods of keeping a terminally ill patient alive by medical treatment, including by means of ventilators and artificial feeding, such patients were meeting their death on account of natural causes. It is well-settled law in all countries that a terminally ill patient who is conscious and is competent, can take an ‘informed decision’ to die a natural death and direct that he or she be not given medical treatment which may merely prolong life.

The word ‘liberty’ is the sense and realization of choice of the attributes associated with the said choice, and the term ‘life’ is the aspiration to possess the same in a dignified manner. Liberty allows freedom of speech, association, and dissemination without which the society may face hurdles in attaining the requisite maturity. History is replete with narratives how the thoughts of individuals, though not accepted by the contemporaneous society, later on, gained not only acceptance but also respect. The Court further said: ‘Life is precious in itself.’ But life is worth living because of the freedoms which enable each individual to live life as it should be lived. To live is to live with dignity. So fundamental is dignity that it permeates the core of the rights guaranteed to the individual. Dignity is the core which unites the fundamental rights because the fundamental rights seek to achieve for each individual the dignity of existence. Privacy with its attendant values assures dignity to the individual and it is only when life can be enjoyed with dignity can liberty be of true substance. Privacy ensures the fulfillment of dignity and is a core value which the protection of life and liberty is intended to achieve.’

The Court said that: It will be open to the executor to revoke the document at any stage before it is acted upon and implemented. The Court has set strict Guidelines to prevent its misuse so that the person may be able to die with dignity.

Farmers to be Free from Vicious Debt Trap

In a landmark judgement, the Supreme Court of India has declared that farmers’ loan would not be covered by Banking Regulation Act. This will give huge relief to the farmers as they have been committing suicides in frustration and heavy indebtedness. The verdict of the bench of Justice R.F. Nariman and Navin Sinha has been written with empathy and pathos.

Hardly, a day passes when a farmer does not commit suicide in one part of the company or other. The importance of agriculture in the social and economic fabric of India can be realized from the fact that the livelihoods of the majority of the country’s population is still agriculture. However, over the years agriculture has become so unremunerative that nobody wants to remain in this profession. But then there is no way out for a large number of people engaged in it. As a result, small and marginal farmers have been forced in the vicious web of loans and debts. The desolation and hopelessness of farmers can be gauged from the painful facts that more than three lakhs of them have killed themselves in the last twenty years.

These farmers are often brought to bear humiliation and insult at every level and they are condemned to live in abject poverty and deprivation. The Public Interest Litigation (PIL) seeking for the exclusion of farmers loans from Section 21A of the Banking Regulation Act was filed in the Supreme court by a journalist Jayant Verma from Jabalpur. The Late Dr B.D. Sharma, former Vice Chancellor of North Eastern Hill University (NEHU), Deb Brata Biswas, former Member of the Rajya Sabha and Dr Sunilam, a former MLA of Madhya Pradesh were co-petitioners. It was filed on their behalf by this columnist.

The Minimum Support Price of the farmers' products is decided by the Commission for Agricultural Costs and Prices, but it hardly takes into account the competitive prices of other articles. For example, gold was selling at Rs. 18 per ten grams in 1925 and then the price of wheat t was Rs.16 per quintal. While at present the wheat is sold at Rs.1765 per quintal, the gold price has jumped to more than Rs. 30,000 per ten grams. Thus, we see that during the last nearly one century the difference between the prices of gold and wheat per ten grams and per quintal has widened more than 15 times. Section 21A of the Banking Regulation Act of 1949 has further worsened the condition of farmers across the country. The obnoxious part of the Act is that notwithstanding anything contained in the Usurious Loans Act, 1918, or any other law relating to indebtedness in force in any State, a transaction between a banking company and its debtor shall not be reopened by any court on the ground that the rate of interest charged by the banking company in respect of such transaction is excessive.

The main cause of large-scale migration of farmers to the cities is that their problems, necessities and plights have never been properly addressed by all governments after the independence. Prof. M.S. Swaminathan headed National Commission of farmers underlined in its report which was submitted a decade ago said, ‘there is a general feeling of being ‘left behind’ in large parts of rural India. The widening disparity in per capita income between farm and other than farm sector, the very slow rate of growth in agriculture, the declaring profitability, extremely weak social security arrangements, weakening family and community-based mechanism of social protection, lack of employment opportunities etc., and the rising aspirations are building up social unrest, which if not addressed could lead to threats to internal peace and security.

More than a decade ago the report of the Parliamentary Committee had said that ‘the worst exploitation of farmers is through the adverse credit policies of financial institutions which compel farmers to starve under the burden of loans and commit suicides. The Committee found that in 1918 British Rulers passed a Usurious Loans Act which provided that no farmer can be charged a rate of interest higher than the authorised rate. It also provided that the total amount of interest cannot be higher than the original capital but in 1949 a Banking Regulation Act was passed which made a special provision under section 21A saying that these will not apply to Banking Companies, including Cooperative Banks. In view of the pathetic plight of farmers due to the heavy burden of credit, the committee recommended that section 21A of the Banking Regulation Act should be scrapped. The Central Government, however, did not accede to the recommendations of the MS Swaminathan Committee. As a result of this unconscionable harsh law, the farmers have been arrested in states like Uttar Pradesh and Bihar for defaulting on repayment of loans. What is more deplorable is that these defaulting farmers are made to pay even the expenses of their food and transport etc., when they are in jail.

With the unbearable insults and mounting debts, the farmers have been left with no choice but to end their lives. Earlier also many petitions were filed to scrap Section 21A of the Banking Regulatory Act in different High Courts, but the Courts refused to strike down this obnoxious provision of the Act. Therefore. this decision of the Supreme Court is being hailed by the entire spectrum of the society. The Supreme Court said that ‘we have already seen how agriculture as a subject matter is entirely and exclusively left to the States in all its aspects, save and except evacuee property under Entry 41, List III, which is also left to the States, but concurrently with Parliament, specifically including agricultural land therein. Also, we must not forget that the amendment suggested by Shri Shibban Lal Saxena to make it a concurrent subject, was turned down. Any argument that has the effect of making a relief of agricultural indebtedness a concurrent subject by which Parliamentary legislation ousts State legislation must, therefore, also be rejected’.

This is not to say that Parliament is helpless insofar as relief from agricultural indebtedness to banks is concerned. Article 249 of the Constitution enables Parliament to legislate on the aforesaid subject in the national interest if the Rajya Sabha declares, by a resolution supported by not less than 2/3rd of the members present and voting, that it is necessary or expedient in the national interest that Parliament should do so. Equally, under Article 252 of the Constitution, if the legislatures of two or more States deem it desirable that Parliament should pass an Act for regulating a matter exclusively in the State List, this can be done by resolutions to that effect passed by the legislatures of such States. Also, to implement a treaty, agreement or convention with other countries, Parliament, under Article 253 of the Constitution, has the power to legislate on an exclusive State subject. In an emergency, Parliament can, under Article 250, legislate on matters exclusively reserved for the States. This being the case, we need not be unduly weighed down by the argument that, unless we accept his submission, Parliament would be denuded of legislative competence altogether to deal with the subject matter of relief against debts due to banks from the agricultural sector.’

The Court did not consider the judgment of this Court in Yasangi Venkateswara Rao to be binding as it was cryptic and without any reasoning, instead, it agreed with the judgement of the Andhra High Court. After setting out the Banking Regulation Act and the scope of Section 21A, the Andhra Pradesh High Court held that the purpose, operation and effect of Section 21A of the Banking Regulation Act was not even remotely connected with the purpose, operation and effect of the Agriculturists Relief Act, which was held to be a special law enacted to relieve agriculturist debtors. It was further held that charging excessive interest was no longer part of the Agriculturists Relief Act, and, therefore, the spheres of the two provisions were completely different. The learned Judge also went on to hold that Section 21A was arbitrary and violative of Article 14 of the Constitution.  The Supreme Court declared Section 21A of the Banking Regulation Act to be valid, in pith and substance, only to the extent it is relatable other sectors and agriculture.

Fragmentation of agricultural land because of the growing population and division of families, the farmers have practically been reduced to become farm labourers. Debts and loans add burden to break their bones. Possibly, this judgement of the Supreme Court will provide them much needed succour.