Supreme Court’s Order on Rath Yatra was an Avoidable Overreach

             

It is a welcome that the Supreme Court of India has reviewed its decision of 18th June wherein it banned the Jagannath Rath Yatra (chariot procession festival) at Puri, which started today. Jagannath Rat Yatra is attached to the sentiments and faiths of millions of people, then why the permission for symbolic Yatra, as it has been given now, was not given at the first place is beyond logic and law of our understanding? My friend Ipshit Pratihari, who is also one of the servitors, was totally distraught and heartbroken on the 18th of June to learn the order of the Supreme Court. This Yatra is happening at a time when the world is facing an extraordinary problem due to Wuhan Virus but when all activities are allowed to go on with proper distancing and by wearing of the masks, then there should not have been any problem in permitting the Yatra.
The Yatra is not posing any law and order problem, social disaffection, or ill will among the people. It has been continuing for hundreds of years barring a gap of a few years when Lord Jagannath was shifted to another place but even there also the Yatra was never impeded. Yatra is egalitarian in nature, which used to be watched by lakhs of people but this year only survivors will be allowed to pull the chariot. Anyway, the Supreme Court has set aside its own order, which indeed is praiseworthy. It is always better late than never.
If at all, there could be any objection, it should have come from the environmentalists because hundreds of trees are felled to make Rath for the Lord Jagannath, Balram and Subhadra, in which they move from sanctum sanctorum to the house of their Mausi (maternal aunt). In the changing times when the trees are depleting some alternative arrangements must be made.
However, I have a different issue to raise on this occasion. It is related to Judicial interference in such matters, which are innocuous in nature. Separation of power is the quintessence of our constitution, although no Article mentions it specifically.
The Executive, the Legislature, and the Judiciary have got their role assigned. There are checks and balances to prevent overreach. The question is if Parliament, which is the supreme law-making body, traverses beyond its periphery, then the judiciary is there to checkmate it. The Executive is often pulled up by the Judiciary and sometimes by the legislature. But what to do of the Judiciary, when it treads the path of activism and takes recourse of overreach? This issue must be settled once for all to clear the cobwebs of confusion. We have adopted constitutional democracy but can get it sustenance from social morality?
If a tradition, which is imbibed as faith by millions and which poses no problem for others, should not be disturbed. Fairs and festivals invigorate the life of the people. Let me hasten to add that if any tradition is discriminatory especially among the faithful, it must be done away with by the judicial fiat. Like it is in Sabarimala, which is highly discriminatory and goes against the grains and the very ethos of Hinduism, as the temple administration does not allow the women between 10 to 50 years to enter the temple and offer prayers. It is weird and ridiculous logic to say that since Lord Ayapana is a Bramhachari, so he cannot give darshan to menstruating women. If the Lord’s celibacy is so fragile as it flinches by the mere sight of menstruating women, then what can be said about him? After all, Lord Ayapana is not a bigger Brahmachari than Lord Hanuman, whose temples are open for all men and women, old and children alike.
This matter certainly needs to be decided by the Supreme Court considering the objections raised by the women devotees. But the Rath Yatra of Lord Jagannath needed no judicial interference, where devotes are always ready to follow the guidelines to contain the spread of Pandemic. Was it not the wastage of precious judicial time of the Supreme Court?

Nascent Virtual Courts must Evolve to Maturity

                    

 

     Virtual Courts and E filings of the cases have, without doubt, come to stay even after the COVID-19. As history is known by the AD and the BC, similarly the Google has also become a watershed in many areas. Google has completely changed the method of education, the research and the journalism etc., One belongs to the age of ‘Before Google’ and the other is ‘After Google’. Today one has all information under the sun (even beyond sun) in one’s own Android phone, thanks to Google. Mental blocks always work against accepting anything new. Therefore, Virtual Courts will take some time to get more acceptability when advocates and judges get accustomed to this new technology in due course.

    However, we find that some advocates are so non-serious that they try to take undue liberty of the new system of Virtual Courts. Recently it was reported that an Advocate appeared wearing vests before a Virtual Court for which he was rightly rebuked by the Rajasthan High Court. Only a few days back, shockingly, an advocate was appearing before the court in the lying posture on the bed. Hopefully, the advocates and their organisations and the judges will ensure that the basic rules of decency and dignity of the courts are maintained. The Supreme Court has already dispensed with the wearing of black coats and gowns. Now the advocates can appear only in white shirts and bands, which is a huge relief particularly in a tropical country like India. The gowns and coats are actually incompatible and unsuitable to our summer climate and are more susceptible to the infection of Coronavirus. But this liberty should not be stretched too far by the advocates. Proper dress and decorum are the sines qua non of the court culture. As the old saying goes ‘the dress and the address’ reflects the personality of a person. A good address may be out of the reach of ordinary advocates but the neat and clean dress is surely manageable.

   Covid-19 has opened many avenues and vistas for young, talented and promising advocates, but it has also closed the doors for the ordinary and deprived advocates because their clientele has been coming mostly from the social interacting. There is no doubt that the cases related to non-performance of contracts, agreements, force majeure, unemployment, health and insurance will be increased in the days to come. State litigations will also go up in the post-COVID time. As I have already said in one of my previous posts that Virtual Courts are going to be time and money saver and pollution preventer. They will also help make the roads safer and accidents-free.

   Nevertheless, Virtual Courts still have less acceptability by the large number of advocates coming from ordinary families. A seasoned and well-respected advocate friend Anjani Kumar Jha says, and rightly so, that the efficacy of the Virtual Courts are doubtful in present circumstances.  He says that the time is not ripe for the replacement of physical courts. The main problems are that the majority of advocates cannot afford the basic infrastructures like laptops and the internet etc., Poor electricity supply, Wi-Fi connection and the disturbance-free conference room are the tall order for them. Large numbers of advocates past 40 years are not computer savvy.  They have neither the will nor the resources to learn the new technology. The biggest problem is to arise at the trial stage p[areticularly at the time of recording of the evidence and cross-examination of witnesses. In fact, all ideas, howsoever good, are bound to fail if they cannot withstand on the rock of reality.

   But it is an incontrovertible fact that the march of technology can neither be stopped nor it is good to create any stumbling blocks in its frontiers. My personal experience is that Virtual Courts are working well both in the Judges’ courts as well as in the Registrars’ courts. An advocate makes one to one submission before the judge. The Name of the advocate appears on the screen, so the judges often address them by their names unlike in the physical courts where an advocate is generally addressed as ‘Mr or Madam Counsel’. The system is at the nascent stage, which will take some time to further evolve and mature.

China thy name is Treachery

Treachery and backstabbing are the hallmarks of Chinese rulers. Can there be any other country, which is accepting that her soldiers have been killed in a fight against the soldiers of other country but refuse to tell how many were killed and how many have got wounded? China has, although, been accepting about casualties yet not divulging their numbers. India, on the other hand, lost no time in informing the country and to the whole world about the number of martyrs, after proper confirmation. There are reasons for this. Firstly, the Chinese army consists of mercenaries. They are forced to be in the army but in India, young men and women join the army with passion and zeal. They feel proud of fighting and laying down their lives for the beloved country. And secondly, the Chinese army has no love lost for their authoritarian leadership.

Chinese have never had any guts to fight any war against any country. In 1962 also it was not a war against India but a betrayal of Chinese due to the gullible nature of the then India's leadership at the helm. China has been squarely defeated by Vietnam in 1979 and thereafter it could not muster the courage to even bully or browbeat the courageous Vietnamese. She could not stand against Taiwan and is badly embroiled in Hong Kong. India has a long boundary of 3500 Km. with China, but she cannot wage war against India because of her fragility and inherent weaknesses. China has been beleaguered by the world for the Wuhan virus which she made to kill humanity. However, this time what China has done in Galwan valley by killing 20 brave Indian soldiers is the height of her perfidy. The entire country is boiling with rage against China and wants it to be retaliated.

Political leadership under Prime Minister Modi has already given full freedom to the army to avenge the deaths of 20 brave hearts. Now let it be left to the military to decide its timing and we have reasons to believe that the Army will give a befitting reply to cowards at the time of its own choice. Since no bullets have been fired from either side and therefore it is clear that the Chinese attacked them with stones and mettle studded clubs. What they have done is an example of medieval barbarity but the sacrifices of our Jawans have not gone in vain and they have killed more than double the number of Chinese mercenaries during the physical fights.

The defeat from India is clearly staring in the face of China. So, either, its dwarf soldiers will withdraw from the LAC or they will have to die at the hands of the Indian army. The entire country is standing solidly behind Indian security forces. Let us pray for the eternal peace of martyrs because it is not the time to weep but to be proud of their martyrdom

Virtual Courts: Necessity is the mother of Invention

Once the initial diffidence is over, E-filing of the cases, counter-affidavits, rejoinders, and additional documents become simple and easy beyond description. The only problem that arises is of the attestation of the documents by notary and oath commissioner for which an exemption application can be filed. The technology of the Virtual Courts is useful for both advocates and clients as well. The VCs lack the warmth, the wit, the bonhomie, the exchange of pleasantries and socialisation with other advocates. But then this Kovid-19 has robbed such luxurious of everybody, not only of the advocates and the persons associated with courts.

The need is to expand the hearing in the VCs from urgent cases to other normal cases. Presently it is confined only to taking of the PILs and urgent matters. The minor technical glitzes that arise during the hearings can be improved and fine-tuned sooner than later without any ado.

My experience of conducting the cases in the Virtual Courts in the last few days have been very encouraging. I have lately found the audio and the video both noticeably clear. Of course, I have been getting help in this regard by my lawyer son Utkarsh. I trust and believe that the march of technology will bring about a sea-change in the dispensation of justice.

Once the live streaming of the court proceedings starts, there will hardly be any complaint from any side about the Virtual Courts. Such courts will be more comfortable than the physical courts. These will save the money and travelling time of the advocates and clients. This will considerably reduce the level of pollution and congestion on the roads. It will be a big gain for the nation also as the fuel could be conserved for other purposes. This will significantly ease the burden of the security which can be used for maintaining law and order in other areas.

The problem will certainly arise when the bigger benches will sit. Then it will be relatively difficult to maintain physical distancing for the judges and the paraphernalia attached to them. But, doubtless, it will be more manageable than the physical courts. In important cases, the senior advocates can be allotted time to argue the cases as they have the bad habit of filibustering. The better structuring of time management will be immensely useful for the judges, advocates and greatly help in the justice delivery system.

Verily, necessity is the mother of invention.

It's Time that Hindi Got Honour in the High Courts and the Supreme Court

A few days back a petition was filed in the Supreme Court against the 11th May notification of the Government of Haryana which said that Hindi should be used in all Courts and Tribunals of the state. To the great relief of the people, the Supreme Court junked the petition. Dismissing the Petition, a bench of Chief Justice SA Bobde, Justices AS Bopanna and Hrishikesh Roy asked the petitioner as to what was wrong with the law which allowed the vehicle of justice to be in their own native language as around 80% of the litigants do not understand English. The Bench commended the State by observing obiter dicta that ‘it is fair for the state to bring such law. Even, during the British Rule, the recording of evidence was done in vernacular language’. The Apex Court ruled that the amendment in the ‘official language act does not violate, in any manner, the fundamental rights.
Before that, on the 19th of December Delhi High Court passed an important order for replacing more than 400 Arabic and Persian words with Hindi words. This order of the Delhi High Court is in conformity with the constitutional provisions. Most of these Arabic and Persian words are incomprehensible but the irony is that these words are still being used in Hindi speaking states like Uttar Pradesh, Bihar and Jharkhand.
Let us see what is the constitutional provision with regard to Hindi? Article 351 of the Constitution imposes a duty on the Union Government for development of Hindi language. It says that ‘ it shall be the duty of the Union to promote the spread of the Hindi language, to develop it so that it may serve as the medium of expression for all elements of the composite culture and to secure its enrichment by assimilating without interfering with its genius, the forms, style and expressions used in Hindustani and in other languages of India specified in the Eighth Schedule, and by drawing, wherever necessary or desirable for its vocabulary, primarily on Sanskrit and secondarily on other languages.’
Article 343 (1) says: The official language of the Union shall be Hindi in Devnagari script. Article 344 (2) ordains that it shall be the duty of the Commission ( Commission and Committee of Parliament on official language) to make recommendations to the President as to- (a) the progressive use of the Hindi language for the official purpose of the union.
Thus the Constitution makes it clear that (a) the Hindi in Devnagari script will be the official language and not the English ; (b) the form and style of Hindi will be Hindustani, in other words, Khari Boli; and (c) it will draw upon its vocabulary from Sanskrit. The reason being Sanskrit is the mother of almost all Indian languages. It is undoubtedly the oldest language of the world because it has been universally accepted that Rigveda, written in Sanskrit is the oldest book of the world.
The biggest damage to Hindi has been caused more by Hindi journalists and the so-called progressive litterateurs, who for the reasons best known to them only, prefer to use plenty of Arabic and Persian words. They think that these words would make their writings more elegant. This type of adulteration tends to drive the people of non-Hindi speaking areas away from Hindi areas. There is not an iota of doubt that Hindi, which draws from rich dialects and Sanskrit has got the widest acceptability. Such Hindi is more liked and understood not only in India but also in countries like Bagla Desh, Nepal, Bhutan, Myanmar etc. than the Hindi, interspersed with Arabic and Persian words. Borrowing the words from different languages is one thing and deliberate contamination of the language is an altogether different matter. Thus the contribution of such Hindi teachers, litterateurs and journalists, who always championed the cause of the bastardization of the language has been almost next to nil.
Further, it betrays the colossal ignorance of such persons about the Constitution of India, who are in the habit of putting dots under certain words to harmonies their pronunciation with Arabic and Persian words. This is absurd to the extreme. The Constitution speaks of the Hindi in Devnagari, which allows for the use of dots only on the top of the alphabets, to sound them like ‘N’. For example, while writing the words like 'paryant', 'ant' or 'aatank, the dot is used between two alphabets.
The Union government will, therefore, do well to amend Article 348 of the Constitution of India so that Hindi could be made the language of all High Courts along with English and the language of the concerned state. However, in the Supreme Court, it should be Hindi and English, which can be progressively withdrawn in the span of ten years. It is no logic that the judges and advocates coming from non-speaking states will be handicapped because they will not have the parity with those coming from the Hindi belt. One fails to understand that if these judges and advocates can master English without it being their first language why can't they gain proficiency in Hindi?
It may sound strange but it is a fact that yeoman service to Hindi journalism and even to Hindi literature has been rendered by the non-Hindi speaking great persons like Dayanand Saraswati, Keshav Chandra Sen, Neta ji Subhash Chandra Bose, Mahatama Gandhi, Rangeya Raghav, Baba Vishnu Rao Paradkar, Laxmi Narayan Garde, Vidya Bhaskar, Madhu Limaye, Veer Savarkar, Rajaji, Baba Saheb Ambedkar and many others, who were involved in some or other movements. It will not be out of place to mention that the late Socialist leader Madhu Limaye was the first person in the country who insisted on arguing his case ‘Madhu Limaye versus Ved Murti’ (1970) 3 SCC page 738. Which was also reported in AIR, 1971, SC Page 2481.
There is no doubt that with the introduction of Hindi in the courts will not only improve the quality of judgements but it will also help accelerate the process of the speed of justice, which, at present, is slower than a snail. Therefore, Hindi will get its pride of place only when it can blossom in the High Courts, Supreme Court and various other national level Commissions and Tribunals. Hindi is also associated with the national honour and identity of the country throughout the world. This honour to Hindi in the High Courts and the Supreme Court can be given only by a non-speaking leader like Narendra Modi and not by effete leaders of Hindi belt, who always suffer from the inferiority complex of image building.

Virtual Courts may not be the Substitute to Physical Courts, but They have Come to Stay

    

    The more we get aged, the more diffident we become in adopting the new technology or anything new because our mental blocks often come into the play. This is what we find in the functioning of the courts as most of the judges and the lawyers have been pursuing a set pattern of filing, removing defects, appearing, and arguing before the courts. Most of us have become habitual of the system that has been in the vogue for decades together. Judges have also followed the same trend year after year. This is the reason that most of the aged and comparatively old judges usually pose mental resistance in adopting the new technology. The same is the case with the elderly lawyers, court staffs and the persons manning the registry.

    Although the introduction of modern technology in the courts have started for quite a long time it has not got expected result and speed until very late. We have been hearing about the paperless courts but to the best of our knowledge, only a few of the judges of the Delhi High Court has been able to dispense with the paper files. These judges certainly deserve kudos for being technology savvy. Majority of the judges have, however, been using the files in the physical form to which they have been accustomed to for many long years in the profession. In the Supreme Court, the E-filing was introduced nearly 15 years ago but it was more only for the namesake. Most of the advocates have been filing their cases in the physical form (hard copy) as it has been easier for them. The new generation of lawyers and the registry staff have albeit, been very enthusiastic in changing over to the new system propelled by the new technology.

    Thanks to COVID 19, everything has gone topsy-turvy. The efforts for change over to new technology have started with all seriousness in the last two and a half months. Credit goes to young and enthusiastic engineers of information technology and the strong desires of some of the judges, who have been able to transform the functioning in the courts by removing the hurdles and obstacles with breakneck speed. Many judges have really worked extremely hard for switching over to the new system of Virtual Courts where everything is done by the technology. Hopefully, in the days to come it will become indispensable and the most-liked form of conducting the cases right from the Supreme Court to the lower courts. The problem, in fact, in lower courts may not be as difficult as in the higher courts because the new breed of the judges, who get their entry at the younger age and is more adaptable to the new technology. There is no doubt that the technology will help in the expeditious disposal of the cases ensuring un-delayed justice to litigants.

    Here I wish to narrate my personal experience. Although I have been using the PC for more than three decades and the Laptop for two decades, yet it has been mostly remained confined to sending and receiving emails or for composing works. Except for personal emails, almost all other composing work has been done by my assistant colleagues in the office. WhatsApp and Twitter came very late and I am still not very conversant in handling the different aspects of WhatsApp and the Facebook etc, What has, however, aroused and stirred me to write on it, is my first experience of the Virtual Court, which I have had it the day before yesterday i.e. on 26^th of May. I was informed by the text message from the Registry of the Supreme Court, two days in the advance about the case which was listed in my name before Virtual Court number 8. I was asked to upload my appearance on the given email and on the morning of 26^th May, half an hour before the hearing started, I was given a link to get myself appeared before the court. I must confess that it could not have been possible for me to tide over the initial glitches without the help of my young lawyer son Utkarsh Pandey.  He made me amazingly comfortable and told me that when the item number was called, I must show myself.   Lo and behold! the magic screen was opened, and I presented my case. All the nervousness was gone and got converted into a thrill and excitement.

    This is certainly not something to boast of, but the purpose of this post is certainly to enthuse and inspire all advocates and implore them not to be hesitant in arguing and conducting their cases before the Virtual Courts. Some minor problems may crop up, but they will certainly instil a new sense of confidence.  The more we get accustomed to the new technology the better it is for the advancement of the judicial system.

     There are many advantages which can be enumerated in the introduction of new technology. It is bound to bring more transparency and would be quite helpful in eradication of the corruption. My friend, Advocate Shreepal Singh agrees with the Israeli historian Yuval Noah Harari that technology will work wonders in the days to come. Everything will be so open that the danger to privacy will become real. The biggest gain will be in maintaining the competence of the high standards. The paperless offices and courts will save thousands of tons of paper every year. Trees will be saved, and the balance of the ecology and the environment will be easy to maintain. Corruption is an inherent part of human handling, but technology will ensure transparency and non-manipulation at different levels. It may be noted here that only a  decade ago a Non-Resident Indian litigant from London sat on a dharna outside the Supreme Court because he had found that his case, which used to be listed on many dates was getting deleted without assigning any reason thereof. He had doubted that some persons were able to get his case deleted by greasing the palms of some persons in the registry.  Now when there will hardly be any human interface, the chances of corruption will be considerably minimised.

    However, there will be many insurmountable difficulties for the lawyers. It will be difficult for them to find the cases for conducting without face to face interactions with the clients.  The bantering, the wits, the warmth, and the repartees will be missing in the Virtual Courts.  It is always a pleasure of meeting the lawyers in the courtrooms and barrooms and exchanging pleasantries and learning many nuances of advocacy in the courtrooms. Here my son tells me that it can be compensated to a large extent if the all the proceedings of the courts are live-streamed; so that anybody can watch them. The live streaming of the court proceedings will, undoubtedly, instil and inculcate more confidence of the people in the judiciary. Besides, it will be more meaningful and useful for both lawyers and litigants as well. Virtual Courts may not be the substitute to the physical courts, but they have become inevitable when the technology is moving inexorably.

China’s Game to drive Wedge Between India and Nepal Must be Defeated

 Pandit Arjun Prasad Bastola, a Sanskrit and Vedic scholar, who is also on the Board of Pashupatinath temple is a well-wisher of India. He once told me that relationship between India and Nepal is like warp and woof from time immemorial and that cannot be separated. Two of the most sacred shrines, Pashupatinath and Vaikunthdham are situated in Nepal, and every Hindu nurse desire to visit those places. Nepal has its presence in almost all important religious places of India. Nepali temple of Varanasi is one of the important religious/tourist places in North India. Millions of Nepalese live in India and lakhs of Indians live in Nepal. They have far and wide business interests. Thousands of Indians and Nepalese have their relatives on both sides of the border. There is no language problem of communication between the two countries. So much so, Hindi and Nepali both are written in the same Devnagari script. Buddhism has more deep and pervasive effect in Nepal than that of India, the place of its birth. Shri Bastola's observations are like eye-openers. During his Delhi-visits he prefers to stay in Jain Dharamshala of Gole Market but then that has nothing to do with what I wish to say here.

   For the last few days, there has been a war of words from the side of Nepal regarding a road that is being built by India for strengthening the defence supply as well as to facilitating smooth passage for pilgrims to Kailash Man Sarovar Yatra in Tibet.  Nepal is doing it at the behest of China, which has become a hegemonistic superpower because of cheating, browbeating, bullying and authoritarian policies. She has never fought any war against any country except, of course, minor skirmishes here and there. She promised the end of all labour laws, twenty-four uninterrupted water and electric supply and good roads to accord red carpet welcome to multinational companies. Later she stole their technologies to gain upper hand over the countries from where these companies came to set up their manufacturing units. This is all clear from the very revealing book ‘The Hundred -Year Marathon’ of Michael Pillsbury. China has never been straight in its diplomacy. Of late, she has been perturbed over the emergence of India as a global power and its proximity with many countries particularly the USA. That is why she wants to needle India through her neighbours like Sri Lanka and Nepal.

   For the last nearly three decades China has been able to hypnotize Nepal through the Communist Party of Nepal, which is out to destroy everything for which Nepal can rightfully boast of. China has set up moles in the Nepalese administration, politics, and business by heavily bribing some people. Bribery is the name of the game in which China has got no parallel in the world. One of the Indian journalists has filed a case in the court with abundant proofs that Chinese companies, like Alibaba, have been paying bribes to Indian politicians, bureaucrats, media persons and even businesspersons to take roots in India. Pakistan has always been against India and it gets emboldened due to brazen support of  China.

    India will do well to align with all countries of the world to expose the chicanery and dangerous policies of China as it is now  well known that she was trying to exterminate the world through biological weapons like Coronavirus. Luckily the world has seen through its game of deceiving the world through its puppet Director-General of WHO. India must scale up its diplomatic efforts to soothe the feelings of Nepal, which has been ruffled because of the mischievous needling of the Dragon.

   My heart is filled with praise for the Senior Advocate Swaraj Kaushal for his 11 beautiful tweets  addressed to famous Bollywood actress Manisha Koirala. He has recounted the history of his relationship with her grandfather and has addressed her as the daughter. Shri Kaushal besides being an accomplished Advocate is also a senior politician. He is one of the few Advocates, who I used at least twice a week before the lockdown in the Supreme Court. Designated as a Senior Advocate by the Supreme Court at the age of 34, he hardly wears the senior's gown and the coat to show off his importance. He is perhaps the one and the only Advocate who happened to be the Advocate General of Mizoram before becoming the Governor of the same state. His wife late Ms Sushma Swaraj was one of the finest politicians of India. Therefore, the Government of India will do well to take the help of Shri Swaraj Kaushal and Pandit Arjun Prasad Bastola to ensure that the Chinese game plan to drive a wedge between India and Nepal is squarely defeated.