Tuesday, 29 July 2014

Religious tolerance

In today's ( 29.7.2014 ) 'The Hindu' it has been reported that in Gujranwala city in Pakistan a mob torched an Ahmadi colony and killed a woman and two girls over alleged blasphemy on Facebook.

I condemn this latest atrocity on Ahmadis, and I call upon all right minded persons of all communities in all countries to condemn it

It is alleged against Ahmadis that they do not accept Prophet Muhammad as the last Prophet, and believe that there was another Prophet called Ghulam Ahmed in the mid-19th century.

If the Ahmadis do not regard Prophet Muhammad as the last Prophet are they breaking anyone's head, or cutting off anyone's limbs ? Everyone should be left free to believe in whatever he wants to believe. Muslims can say that Ahmadis are not Muslims, but what right do they have to kill Ahmadis, burn their homes, bomb their mosques, and beat up their children, as has been happening for several decades in Pakistan ? This is nothing but goondagardi.

Sunnis believe that after Prophet Muhammad died there were 4 Khalifas successively, Abu Bakr, Omar, Usman, and Ali. Shias regard the first three as usurpers. Should Sunnis and Shias then fight each other.

Hindus go to temples and pray before idols, whereas idol worship is forbidden in Islam. Should then Hindus and Muslims fight each other ?

Christians believe that Jesus was the son of God, whereas Muslims believe that God has no son. Should then Muslims and Christians fight each other ?

In a subcontinent like ours with so much diversity we must have tolerance, particularly in religious matters, otherwise we will be continuously fighting with each other, which is precisely what our enemies want.

We should follow our great Emperors Ashok and Akbar who practised tolerance in religious matters.

Monday, 28 July 2014

Three Incidents to show the existence of democracies in Ancient India.

Democracies existed in ancient india, and to demonstrate this we may consider only three incidents ;

(1) In the Buddhist text 'Mahaparinirvan Sutra ' it is mentioned that when King Ajatshatru of Magadha was planning to attack the Vajjian democracy he sent a messenger to the Buddha for his opinion. Instead of speaking to this messenger, the Buddha said to one of his disciples : " Have you heard Anand that the Vajjians foregather often, and frequent the public meetings of their clan ? So long Anand as the Vajjians so foregather, and so frequent, the public meetings of their clan, so long they may be expected, not to decline, but to prosper.

(2) In the 'Avadana Shatak ', a Sanskrit Buddhist text of the second century B.C. it is mentioned that a group of merchants went from North India to the Deccan, and were asked by the King of the Deccan as to who was the King who ruled over North India ?
The merchants replied : 
" Deva, kechit deshah ganadhinah, kechit rajaadhinah ,iti "

Which means :

" Your Majesty, certain areas are under democratic governments, while others are under Kings "

(3) When Alexander the Great invaded India in 326 B.C. he found his toughest opposition from the Mallavas, who were a people under a democratic government ( see the Anabasis of Arrian ).

It’s time to amend law on contempt of court

The present law of contempt of court in India is a hangover of the original law on this subject in England. This originated from an undelivered judgment of J Wilmot in 1765, where the judge said the power of contempt of court was necessary to maintain the dignity and majesty of judges and vindicate their authority.
But whence comes this dignity and authority of judges? In England, in feudal times, it came from the king, who was the fountain of justice, and would often decide cases himself. Later, when he had many other duties, he delegated judicial functions to his delegates, who were called judges. Thus, in a monarchy, the judge really exercises the delegated function of the king, and for this he requires the dignity, authority and majesty which a king must have, to secure obedience.
In feudal times, the king was supreme, and the people were his subjects. They could not criticize him, and such criticism was punishable.
In a democracy, however, this relationship is reversed. Now it is the people who are supreme (see Rousseau’s ‘Social Contract’), and all state authorities, including judges, are nothing but their servants.
Hence in a democracy there is no need for judges to vindicate their authority or display pomp and majesty. Their authority comes not from fear of contempt but from the public confidence, and this in turn depends on their own conduct, integrity, impartiality, and learning.
This view is accepted now even in England. As observed by Lord Salmon in AG vs Bbb (1981) A.C. 303, “The description contempt of court no doubt has a historical basis, but it is nevertheless misleading. Its object is not to protect the dignity of the court, but to protect the administration of justice”.
“Justice is not a cloistered virtue,” said Lord Atkin. “It must suffer the scrutiny and outspoken comments of ordinary men”.
In R. Vs. Commr. of Police (1968) 2 QB 150 Lord Denning observed, “Let me say at once that we will never use this jurisdiction to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself…All that we ask is that those who criticize us should remember that, from the nature of our duties, we cannot reply to their criticism. We cannot enter into public controversy. We must rely on our conduct itself to be its own vindication”.
Sometimes an upright judge is unjustifiably criticized. The best course of action for such a judge is to ignore baseless criticism (but pay heed to honest and correct criticism). He should have broad enough shoulders to shrug off baseless comments without getting perturbed or influenced.
Once a British newspaper ran a banner headline calling the majority judges of the House of Lords who decided the Spycatcher case ( Attorney General vs. Guardian Newspaper, 1987 3 AllE.R.316) “YOU FOOLS”. Fali Nariman, who was present in England at that time, asked Lord Templeman, who was one of the majority, why the Judges did not take contempt action. Lord Templeman smiled, and said that judges in England took no notice of personal insults. Although he did not regard himself as a fool, others were entitled to their opinion.
In Balogh vs Crown Court at Albon (1975) AC 373, the defendant told the Judge “You are a humourless automaton. Why don’t you self destruct?”. The judge smiled, but took no action.
Now coming to the law of contempt in India, we find it is uncertain. Nariman described it in a speech as ‘Dog’s Law’.
He quoted Bentham, who said that when a dog does something nasty we beat him for it. Similarly, the laws in England become known only when someone is punished by the courts. The same is true about the law of contempt in India, and thus it is a standing threat to freedom of speech.
To illustrate, in Duda’s case AIR 1988 SC 1208, a Union Cabinet minister said that the Supreme Court sympathized with zamindars and bank magnates.
He further said, “FERA violators, bride burners, and a whole horde of reactionaries have found their haven in the Supreme Court” and that Supreme Court judges have “unconcealed sympathy for the haves”. No action was taken against him. Nariman asked whether if such a comment had been made by an ordinary man the court would have taken no action.
Moreover, in an earlier decision, in the case of Namboodiripad (former CM of Kerala), who accused Supreme Court judges of being biased in favour of the rich, (an allegation similar to that of the Union minister in Duda’s case) the court convicted Namboodiripad for contempt (AIR 1770 2015). Where is the certainty or consistency in the law ?
We have two provisions in our Constitution, Article 19(1)(a) which gives citizens freedom of speech, and Articles 129 and 215 which give the Supreme Court and High Court the power of contempt. How are these provisions to be reconciled. In my opinion, since Article 19(1)(a) is the right of the people who are supreme in a democracy, while Articles 129 and 215 are powers of judges, who are servants of the people, the reconciliation can only be done by holding that freedom of speech is primary, while the contempt power is only secondary.
It follows that the contempt power cannot be exercised because people are criticizing a judge. It can only be exercised if someone makes the functioning of the judge impossible eg if while a judge is hearing a case someone jumps on to the dias and tries to run away with the court file, or if he attacks or threatens a witness.
If someone calls a judge a fool inside the courtroom and goes away, in my opinion it is not contempt, for he has not stopped the functioning of the court.
But if he keeps shouting in court the whole day, and despite warning does not stop, he is obviously not letting the court function, and this would be contempt. After all disputes in society have to be adjudicated, and judges must decide cases to justify payment of salaries to them.
I submit that the time has come now for Parliament, the judiciary and others concerned to take a fresh look at the law of contempt of court in the light of what I have said above, and bring about necessary amendments.

(Published in The Times of India on 28/07/2014)

Sunday, 27 July 2014

Why I will never write my memoirs

There was a comment on Facebook by someone that I should write my memoirs. I replied that I will never write my memoirs. The person asked why ? 

I said that by mentioning just one incident ( the corruption by a Madras High court Judge ) I was furiously attacked by many people. Mentioning all incidents will be opening up a Pandora's box. I have been deep inside the judicial system at several levels ( lawyer, High Court Judge, Chief Justice, and Supreme Court Judge ), and so have seen the darker side of the judicial system intimately. To disclose everything would raise such a storm that I may not be able to withstand it. 

So let me remain quiet and preserve my peace of mind.

Friday, 25 July 2014

Lady Lawyers

When I started law practice in the Allahabad High Court in 1970 there was only one lady lawyer coming regularly to the High Court. Sometimes a new young lady lawyer was seen, but after a few months she disappeared. It transpired that she had been coming to the High Court only to while away time till she got married.

A lawyers profession was regarded earlier as unfit for ladies as it was regarded rough and tough , and therefore only fit for males.

Today there would be about 500 lady lawyers coming regularly to the Allahabad High Court. This is no doubt only about 5% of the total number of lawyers in the High Court, but 5% is better than 0%. In Madras High Court, where I went as Chief Justice there would be about 600 lady lawyers, and the same would be the approximate number in Delhi High Court and the Supreme Court, where I was Chief Justice and puisne Judge. 

For ladies no doubt it is not easy to be a lawyer, as she has also to look after her family and home. But to the credit of lady lawyers they are bravely doing their job both of running a law practice, and looking after their families and home.

When I became Acting Chief Justice of Allahabad High Court some lady lawyers came to me and said that they had no place to sit ( in between case hearings), and there was no toilet for ladies. I allotted two big halls for lady lawyers, with wash rooms, toilets, kitchen, furniture, etc and got it air conditioned. It was named the Cornelia Sorabji Hall, after the first lady lawyer in India, Cornelia Sorabji ( 1866-1954 ) who was admitted as a lawyer in the Allahabad High Court in 1924 when the bar on lady lawyers to practice in India was lifted

When I went to Madras High Court as the Chief Justice I allotted some rooms in the High Court premises to serve as a creche, where young married ladies ( lawyers and registry officials ) could leave their children when they came to the High Court, and could take them back home when their work was over. A creche is a modern concept, for keeping children between 1-3 years, while the mother was working. The children are taken care of there by a staff, and given opportunities to learn while they play.

Rigging Cricket Matches

When I was in Allahabad there used to be annually on every 26th January ( Republic Day ) a cricket match between the Allahabad High Court Bench and the Bar ( I do not know whether the practice is still followed ). As long as I was a lawyer I often captained the Bar team.

Before the match I would call my team mates and tell them " Look here chaps, you know which side your bread is buttered. So for heavens sake don't get any stupid ideas and win the match, otherwise from tomorrow all your cases will be dismissed. These Judges are a miserable lot, as they are all hen pecked at home. So give them a moment of happiness, and let them win, and from tomorrow you will get a lot of stay orders and bail orders ."

I would then explain the strategy. When the Judges were batting, drop the catches, do not try to run them out, fix the umpire so that he does not give any lbw decisions, etc. When the lawyers were batting, they should give easy catches, swing the bat wildly so that it does not connect with the bat and the batsman is bowled, etc

In this way, the Judges team always won.

When I became a Judge, my heart was still with the lawyers. So I would call the captain of the lawyers team and tell him to advise his team mates to follow the above strategy if they knew what was good for them. Again the Judges team would win.

In this way the Judges team always won, and the Judges were happy. Judges are notoriously hen pecked at home, so they got some relief when in Court the lawyers, instead of arguing on the merits of the case, would tell them of their brilliant performance on the cricket field the previous day ! This made it easy for the lawyers to get favourable interim orders.

Thursday, 24 July 2014

My List of Best Short Stories of O.Henry

O. Henry's short stories are one of my favourite reading material when I wish to relax and be entertained.
As in the case of other writers, some of his stories are superb, while others are mediocre.
I am giving a list of 18 short stories which are, according to me, his best ( though he has written over a hundred short stories). I am sure you will enjoyreading them, as I was :
1. Two Renegades
2. The Champion of the Weather
4. The Atavism of John Tom Little Bear
5.The Shamrock and the Palm
6. Law and Order
7. The Hiding of Black Bill
8. The Lonesome Road
9. The Ransom of Red Chief
10. The Buyer from Cactus City
11. New York by Camp Fire Light
12. Friends in San Rosario
13. The Hand that Riles the World
14. Jeff Peters as a Personal Magnet
15. The Whirligag of Life
16. A Departmental case
17. The Phonograph and the Graft
18. At Arms with Morpheus

All these stories are available online.

The true facts about the corrupt Madras High Court Judge

Many people have asked why i did not speak out in 2005 about the incident relating to the corrupt Judge of Madras High Court when it happened that year. My reply is : I was a sitting Judge  (Chief Justice of Madras High Court) at that time, and judicial discipline and the unwritten code of conduct requires that a Judge should not go into the public domain. So I could not have gone to the press. But I was not silent. I informed the then Chief Justice of India, both in writing as well as orally when I met him in Delhi, about the full facts, and requested him to order a secret IB enquiry, which he did, and the IB report proved that what I said about that Judge was correct. I retired in September 20011, and it was only when some Tamilians wrote on my facebook page that I should write about some of my experiences as Chief Justice of Madras High Court that I wrote about it.

 Moreover, the important question is not about timing, but whether what i said was correct or not. I posed 6 specific questions for Justice Lahoti ( the then CJI) to answer, but he did not, and instead said that he will not stoop to the level of someone else ( implying me). Let the people decide who has stooped. Justice Ruma Pal, who was at that time on the 3 Judge Supreme Court Collegium ( consisting of Justices Lahoti, Sabarwal and Ruma Pal ) has vindicated me  ( see front page of Hindustan Times today ). Also, the letter of the then Prime Minister Manmohan Singh putting pressure to continue that corrupt Judge has now come to light, as well as the written comment of Justice Lahoti that the sensitivities of the government should be taken into account ( meaning that the Judges should surrender to political pressure ).

In today's Punjab Kesari Hindi Newspaper (24.07.2014) it is stated in the front page in a special editorial by Mr. Ashwini Kumar, the editor, that if Justice Ashok Kumar was a corrupt judge, I should not have recommended him for elevation to the High Court. In fact, I never recommended him but it was my predecessor who recommended him. I became Chief Justice of Madras High Court in November 2004, whereas Justice Ashok Kumar had become the Additional Judge of the High Court in April 2003.

In the said editorial Mr. Ashwini Kumar asks why I did not do anything when I found he was corrupt. The truth is that I immediately requested the CJI to get a secret IB enquiry held, which was held and he was found to be corrupt. Thereafter, it was for the CJI to do the needful. I could not go into the public domain as it is against judicial discipline and unwritten code of conduct for judges that they should not go into the public domain.

Tuesday, 22 July 2014

I Am Vindicated

Mr. Hansraj Bharadwaj, former Union Law Minister, while talking to Arnab Goswami on Times Now channel, said that I ( Markandey Katju ) discriminated against Scheduled Castes. 
This is absolutely untrue. In the list of 20 names I recommended for Judgeship of Madras High Court, 4 of the names were of members of the Scheduled Castes, and all 4 were appointed.
As regards Manmohan Singh and Justice Lahoti, the truth has now been exposed on T.V. channels, and I have been vindicated

Justice Lahoti obfuscates

I had asked Justice Lahoti 6 specific questions ( mentioned in my previous post ). When Times Now channel asked him about them he said ( as quoted in Times Now ) :

" I don't believe in stooping to anyone's level. Look up the records for yourself and see for yourself. I have not done anything wrong "

Thus Justice Lahoti does not reply to any one of my 6 specific questions, but deliberately obfuscates. Why does he not say specifically whether it is true or not that I requested him to get an IB enquiry held to find out whether the Judge concerned was indulging in corruption, whether he ( Justice Lahoti ) on my request ordered an IB enquiry, whether he ( Justice Lahoti ) subsequently telephoned me from Delhi when I was in Chennai that the IB has reported that the Judge concerned is indeed indulging in corruption, and why despite this adverse IB report he got the Judge's term extended, etc ?

None of the 6 specific questions I asked Justice Lahoti have been replied specifically by him. Instead he accuses me of stooping low.

Let the public themselves decide who is stooping low.