Duty of Lawyers to Defend

Several Bar Association all over India, whether High Court Bar Associations or District Court Bar
Associations have passed resolutions that they will not defend a particular person or persons in a
particular criminal case. Sometimes there are clashes between policemen and lawyers, and the Bar
Association passes a resolution that no one will defend the policemen in the criminal case in court.
Similarly, sometimes the Bar Association passes a resolution that they will not defend a person who is
alleged to be a terrorist or a person accused of a brutal or heinous crime or involved in a rape case.

In our opinion, such resolutions are wholly illegal, against all traditions of the bar, and against
professional ethics. Every person, however, wicked, depraved, vile, degenerate, perverted, loathsome,
execrable, vicious or repulsive he may be regarded by society has a right to be defended in a court of law
and correspondingly it is the duty of the lawyer to defend him.We may give some historical examples in
this connection. When the great revolutionary writer Thomas Paine was jailed and tried for treason in
England in 1792 for writing his famous pamphlet `The Rights of Man' in defence of the French Revolution
the great advocate Thomas Erskine (1750-1823) was briefed to defend him. Erskine was at that time the
Attorney General for the Prince of Wales and he was warned that if he accepts the brief, he would be
dismissed from office. Undeterred, Erskine accepted the brief and was dismissed from office.However, his
immortal words in this connection stand out as a shining light even today :"From the moment that
any advocate can be permitted to say that he will or will not stand between the Crown and the subject
arraigned in court where he daily sits to practice, from that moment the liberties of England are at an end.
If the advocate refuses to defend from what he may think of the charge or of the defence, he assumes the
character of the Judge; nay he assumes it before the hour of the judgment; and in proportion to his rank
and reputation puts the heavy influence of perhaps a mistaken opinion into the scale against the accused
in whose favour the benevolent principles of English law 7 make all assumptions, and which commands
the very Judge to be his Counsel"Indian lawyers have followed this great tradition. The
revolutionaries in Bengal during British rule were defended by our lawyers, the Indian communists were
defended in the Meerut conspiracy case, Razakars of Hyderabad were defended by our lawyers, Sheikh
Abdulah and his co-accused were defended by them, and so were some of the alleged assassins of
Mahatma Gandhi and Indira Gandhi. In recent times, Dr. Binayak Sen has been defended. No Indian
lawyer of repute has ever shirked responsibility on the ground that it will make him unpopular or that it is
personally dangerous for him to do so. It was in this great tradition that the eminent Bombay High Court
lawyer Bhulabhai Desai defended the accused in the I.N.A. trials in the Red Fort at Delhi (November 1945
- May 1946). However, disturbing news is coming now from several parts of the country where bar
associations are refusing to defend certain accused persons.The Sixth Amendment to the US
Constitution states "In all criminal prosecutions the accused shall enjoy the right .......to have the
assistance of counsel for his defence". In Powell vs. Alabama 287 US 45 1932 the facts were that
nine illiterate young black men, aged 13 to 21, were charged with the rape of two white girls on a freight
train passing through Tennessee and Alabama. Their trial was held in Scottsboro, Alabama, where
community hostility to blacks was intense. The trial judge appointed all members of the local bar to serve
as defense counsel. When the trial began, no attorney from the local bar appeared to represent the
defendants. The judge, on the morning of the trial, appointed a local lawyer who undertook the task with
reluctance. The defendants were convicted. They challenged their convictions, arguing that they were
effectively denied aid of counsel because they did not have the opportunity to consult with their lawyer
and prepare a defense. The U.S. Supreme Court agreed. Writing for the court, Mr. Justice George
Sutherland explained :"It is hardly necessary to say that the right to counsel being conceded, a
defendant should be afforded a fair opportunity to secure counsel of his own choice. Not only was that not
done here, but such designation of counsel as was attempted was either so indefinite or so close upon
the trial as to amount to a denial of effective and substantial aid....." In the same decision Justice
Sutherland observed: "What, then, does a hearing include? Historically and in practice, in our own
country at least, it has always included the right to the aid of counsel when desired and provided by the
party asserting the right. The right to be heard would be, in many cases, of little avail if it did not
comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and
sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining
for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without
the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent
evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and
knowledge adequately to prepare his defense, even though he have a perfect one. He requires the
guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty,
he faces the danger of conviction because he does not know how to establish his innocence. If that be
true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble
intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by
counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would
be a denial of a hearing, and, therefore, of due process in the constitutional sense". 1 In this
connection we may also refer to the legendry American lawyer Clarence Darrow (1857-1930) who was
strongly of the view that every accused, no matter how wicked, loathsome, vile or repulsive he may be
regarded by society has the right to be defended in court. Most lawyers in America refused to accept the
briefs of such apparently wicked and loathsome persons, e.g. brutal killers, terrorists, etc. but Clarence
Darrow would accept their briefs and defend them, because he was firmly of the view that every persons
has the right to be defended in court, and correspondingly it was the duty of the lawyer to defend. His
defences in various trials of such vicious, repulsive and loathsome persons became historical, and made
him known in America as the `Attorney for the Damned', (because he took up the cases of persons who
were regarded so vile, depraved and despicable by society that they had already been condemned by
public opinion) and he became a legend in America (see his biography `Attorney for the Damned'). In Re
Anastaplo, 366 US 82 (1961), Mr. Justice Hugo Black of the US Supreme Court in his dissenting
judgment praised Darrow and said :1"Men like Lord Erskine, James Otis, Clarence Darrow, and a
multitude of others have dared to speak in defense of causes and clients without regard to personal
danger to themselves. The legal profession will lose much of its nobility and its glory if it is not constantly
replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-
serving, government-fearing individuals is to humiliate and degrade it." At the Nuremberg trials, the
Nazi war criminals responsible for killing millions of people were yet defended by lawyers.We may also
refer to the fictional American lawyer Atticus Finch in Harper Lee's famous novel `To Kill a Mocking Bird'.
In this novel Atticus Finch courageously defended a black man who was falsely charged in the State of
Alabama for raping a white woman, which was a capital offence in that State. Despite the threats of
violence to him and his family by the racist white population in town, and despite social ostracism by the
predominant while community, Atticus Finch bravely defended that black man (though he was ultimately
convicted and hanged because the jury was racist and biased), since he believed that everyone has a
right to be defended. This novel inspired many young Americans to take up law as a profession in
America. The following words of Atticus Finch will ring throughout in history :
"Courage is not a man with a gun in his hand. It is knowing you are licked before you begin, but you
begin anyway and you see it through no matter what. You rarely win, but sometimes you do."

In our own country, Article 22(1) of the Constitution states : "No person who is arrested shall be
detained in custody without being informed, as soon as may be, of the grounds for which arrest nor shall
he be denied the right to consult, and to be defended by, a legal practitioner of his choice".Chapter
II of the Rules framed by the Bar Council of India states about `Standards of Professional Conduct and
Etiquette', as follows : "An advocate is bound to accept any brief in the Courts or Tribunals or before
any other authorities in or before which he proposes to practice at a fee consistent with his standing at the
Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular
brief".Professional ethics requires that a lawyer cannot refuse a brief, provided a client is willing to
pay his fee, and the lawyer is not otherwise engaged. Hence, the action of any Bar Association in 1
passing such a resolution that none of its members will appear for a particular accused, whether on the
ground that he is a policeman or on the ground that he is a suspected terrorist, rapist, mass murderer,
etc. is against all norms of the Constitution, the Statute and professional ethics. It is against the great
traditions of the Bar which has always stood up for defending persons accused for a crime. Such a
resolution is, in fact, a disgrace to the legal community. We declare that all such resolutions of Bar
Associations in India are null and void and the right minded lawyers should ignore and defy such
resolutions if they want democracy and rule of law to be upheld in this country.
It is the duty of a lawyer to defend no matter what the consequences, and a lawyer who refuses to do so
is not following the message of the Gita.


Some Issues relating to Fundamental Rights and Directive Principles in the Indian Constitution.
-by Justice Markandey Katju

The Fundamental Rights and Directive Principles in the Indian Constitution and the case law
thereon have been discussed in detail in various books e.g. Basus Shorter Constitution of India, etc. It is
therefore not necessary to discuss the same again. What will be discussed here are some specific issues
relating thereto, particularly in cases which I decided.
1. Preventive Detention
Article 22 (3)(b) of the Indian Constitution specifically permits preventive detention.
Preventive detention permits the concerned authorities to detain a person in jail for a specified
period without a regular trial. It is therefore an anathema to freedom loving people. From the time of issue
of the Magna Carta it is a fundamental requirement of the rule of law that a person cannot be kept in jail
except after giving him an opportunity of hearing in accordance with the criminal procedure code. Even if
a person is arrested after an offence he has a right to apply for bail, and to get a fair trial. Preventive
detention is therefore like the lettres de cachet which the French kings and aristocrats used to issue to put
people in jail without trial. Voltaire was put in the Bastille in this manner, and so was Dr. Manette, the
fictional character in Charles Dickenss novel, A Tale of Two Cities.
In cases of preventive detention no offence is proved, and the justification of such detention is
suspicion or reasonable probability. There is no conviction which can only be warranted by legal
evidence. Preventive detention is often described as a jurisdiction of suspicion.
In contrast to a regular trial, in preventive detention no lawyer is permitted, and the detenue is
not allowed to present his witnesses or cross examine the witnesses against him. All that he is allowed is
making a representation against the detention order, which is decided by an Advisory Board. But without
the right to a lawyer, right to present his witnesses, and right to cross examine the witnesses against him
(which is necessary to test the veracity of the prosecution witnesses) how will he get a fair hearing?
It is said that preventive detention is preventive not punitive. But for the detenue that makes no
difference, as he is incarcerated without a fair trial, which in substance amounts to a punishment.
Preventive detention laws do not exist in democracies such as U.K. or U.S.A. (except during
wartime). In India, however, they exist even during peacetime.
I have always held strong views in favour of freedom (see my article The Importance of Liberty
and Democracy in India on my blog justicekatju.blogspot.in) . Hence I have always been opposed to
preventive detention.
However, since preventive detention is permitted by the Indian Constitution, it cannot be held to
be ipso facto illegal. But it can certainly be confined to narrow limits, and that is what a three Judge bench
over which I presided, Rekha vs. State of Tamil Nadu, 2011, did.
Rekhas case
Article 21 gives the right to life and liberty to all persons. In Rekhas case we held that
Article 22 (3)(b), which permits preventive detention, must be held to be an exception to Article 21, and it
cannot ordinarily nullify the full force of the main rule, which is the right to liberty in Article 21.
We observed: Article 21 is the most important of the fundamental rights guaranteed by the
Constitution of India. Liberty of a citizen is a most important right won by our forefathers after long,
historical and arduous struggles. Our Founding Fathers realized its value because they had seen during
the freedom struggle civil liberties of our countrymen being trampled upon by foreigners, and that is why
they were determined that the right to individual liberty be placed on the highest pedestal. We further
observed: Therefore we must confine the power of preventive detention to very narrow limits, otherwise
the great right to liberty won by our Founding Fathers, who were also freedom fighters, after long,
arduous, historical struggles will become nugatory.
In Rekhas case (supra) the allegations against the detenue was that he, and the co-detenues,
used to collect expired pharmaceutical drugs, which used to be dumped by medical shops in Chennai city
and its suburbs at a dump yard. They then tampered with the original labels and printed and pasted fresh
labels to make it appear as if they were not expired drugs, and these were then sold to the public.
Criminal prosecutions under various provisions of the Indian Drugs and Cosmetics Act, 1940
and the Indian Penal Code were initiated against the detenue, and while these were going on, preventive
detention orders under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug
Offenders, Forest Offenders, Goondas etc Act 1982, a preventive detention law, were served on them.
A habeas corpus petition filed by a wife of one of the detenues was dismissed by the Madras
High Court, against which judgment an appeal came to the Supreme Court.
We allowed the appeal and set aside the detention order. A new principle was laid down by us in
this decision as follows:
Whenever an order under a preventive detention law is challenged, one of the questions the
court must ask in deciding its legality is: Was the ordinary law of the land sufficient to deal with the
situation? If the answer is in the affirmative, the detention order will be illegal.
In Rekhas case the court observed that the relevant provisions in the Drugs and Cosmetics Act
and Indian Penal Code were sufficient to deal with the situation, and hence the preventive detention order
was illegal.
No doubt a Constitution Bench of the Supreme in Haradhan Saha vs. State of West Bengal
(1975) 3 S.C.C. 198 had held that even if a person is liable to be tried in a criminal court for commission
of a criminal offence, or is actually being so tried, that does not debar the authorities from passing a
detention order under a preventive detention law even on the same allegations. However, we held that
this observation in Haradhan Sahas case, to be understood correctly, must be construed in the
background of the constitutional scheme. We held that if a person is liable to be tried, or is actually being
tried for a criminal offence, but the ordinary law of the land (the I.P.C. or other statute) was unable to deal
with the situation, only then can a preventive detention order be validly passed. Hence we held in Rekhas
case that the observation in para 34 of Haradhan Sahas case that even if a criminal case is going on
against a person, a preventive detention order can be passed on the same allegations, cannot be
regarded as an unqualified statement.
Deepak Bajaj vs. State of Maharashtra, 2008
In this case the petitioner approached the court challenging a preventive detention order before
he had been arrested, and the question before us was whether such a petition at the pre-execution stage
could be entertained?
In Addl. Secretary vs. Alka Subhash Gadia, 1990, (1992) S.C.C. Suppl (1) 496 a three Judge
Bench of the Supreme Court had mentioned 5 grounds on which a habeas corpus petition against a
preventive detention order could be entertained at the pre-execution stage viz. (1) The order was not
passed under the Act under which it was purported to have been passed (2) It was sought to be executed
against a wrong person (3) It was passed for a wrong purpose, (4) It was passed on vague, extraneous
or irrelevant ground, and (5) the authority which passed it had no authority to do so. This decision was
followed in other decisions of the Court.
In Deepak Bajajs case we held that the 5 grounds mentioned in Alka Subhash Gadias case
were illustrative and not exhaustive. We observed: If a person against whom a preventive detention
order has been passed can show to the court that the detention order is clearly illegal why should he be
compelled to go to jail? To tell such a person that although such a detention order is illegal he must yet go
to jail although he will be released later is a meaningless and futile exercise.
We held that if a person is sent to jail then even if he is subsequently released his reputation
may be irreparably tarnished. The reputation of a person has been held by the court to be a facet of his
right to life under Article 21.
2. Closing Slaughterhouse on Paryushan
I have sometimes been asked which was the most difficult case I found to decide, and my
answer usually is: Hinsa Virodhak Sangh vs. Mirzapur Moti Kuresh Jamaat, 2008.
Usually I did not have difficulty in deciding cases, because having spent 40 years in the legal
world, 20 years as a lawyer and 20 years as a Judge, I am broadly conversant with legal principles.
However, in this case I found it very difficult to make up my mind. The Senior Judge on the bench, Justice
H.K. Sema, had asked me to write the judgment after we had heard arguments and reserved the
judgment, but for several weeks I just could not decide what view to take.
The facts of the case were that the Ahmedabad Municipality in Gujarat had for several years
passed resolutions for closing down the Municipal slaughterhouse during the 9 days Jain Paryushan
festival. Since goats, lamb and other animals could legally be slaughtered only in the Municipal
slaughterhouse (for sanitation, hygiene, etc) the result was that for 9 days in a year people of Ahmedabad
had to be vegetarians.
The butchers association of Ahmedabad challenged this resolution before the High Court on the
ground that it violated their fundamental right of freedom of trade and business guaranteed by Article 19
(1) (g) of the Constitution. The residents of Ahmedabad pleaded that this resolution compelled them to
become vegetarians for 9 days in a year, and this violated their right of privacy which had been held to be
part of Article 21 in several decisions of the Supreme Court.
Jains are a community who follow the teachings of Lord Mahavir and other Tirthankaras. They
believe in Ahimsa or non-violence, and are strict vegetarians.
The Paryushan festival is perhaps the most important one for Jains. During the 9 days period of
the festival Jains do fasting and other spiritual acts e.g. recitation of their scriptures.
There is a large Jain community in Western India e.g. Gujarat, Rajasthan, Western Madhya
Pradesh, Delhi etc. For several years the Ahmedabad Municipality had closed its slaughterhouse during
Paryushan, and this was now challenged. The High Court allowed the writ petition, and the matter came
up on appeal before us in the Supreme Court.
The petitioners before the High Court (respondents before us) alleged that the impugned
resolutions of the Ahmedabad Municipality closing down the Municipal slaughterhouse during Paryushan
was an unreasonable restriction on the rights of the butchers of Ahmedabad (the writ petitioners) to carry
on trade and business in livestock, mutton etc. It was also a violation of the right of non vegetarians to eat
meat. What one eats is part of ones right to privacy, which by judicial interpretation has been included in
Article 21 of the Indian Constitution.
As mentioned above, for several weeks after reserving judgment in the case I could not make up
my mind what view to take. There was certainly a case in support of the contentions of the writ petitioners
(the butchers and non-vegetarian section of society), which had been upheld by the High Court. After all,
it is ones personal business what one eats. Why should a non-vegetarian be compelled to become a
vegetarian, even if for 9 days? Nobody was compelling the Jains or other vegetarians to become non-
vegetarians. Why then should it be vice versa?
This argument at first appealed to my mind. I am a strong votary for freedom, and the impugned
resolution seemed to violate the rights of the butchers as well as non-vegetarians.
However, ultimately I decided to uphold the validity of the resolution and reverse the judgment of
the High Court.
What persuaded me to do so were these factors:
(1) The restriction was only for a short period of 9 days. Had it been for a longer period, say, for
several months, I would certainly have held it to be violative of Articles 19 (1) (g) and 21 of the
Constitution.
(2) There is a large Jain community in Western India, including Ahmedabad, and in a country like India
with such tremendous diversity of religions, castes, languages, ethnic groups, etc we must respect the
feelings of all communities.
(3) The restriction was not a new one, but had been imposed every year for several decades. Reference
was made in the judgment to Emperor Akbar and his respect for the Jains.
Taking all these considerations cumulatively we upheld the restriction as being a reasonable one.
We referred to the Constitution Bench decision of the Supreme Court in State of Madras vs. V.G. Row,
1952 in which the broad tests for determining reasonableness were indicated. One of the tests laid down
therein was whether the restriction was excessive. In the present case we noted that the closure of the
slaughterhouse was only for a short duration of 9 days in a year, and hence it was not excessive. We also
referred to the decision of the Supreme Court in Government of Andhra Pradesh vs. P. Laxmi Devi, 2008
in which it was held that the court should exercise judicial restraint while judging the constitutional validity
of statutes, and the same principle would apply while adjudicating the constitutional validity of delegated
legislation.
3. Mere Membership of Banned Organization
In certain statutes like the Terrorist and Disruptive Activities Act, 1987 (called TADA) or the
Unlawful Activities (Prevention) Act, 1967 mere membership of an organization banned under that Act is
a crime. Two cases came up before a bench of the Supreme Court of India which I was the senior
member relating to TADA. These cases were Arup Bhuyan vs. State of Assam and Sri Indra Das vs.
State of Assam, both decided in 2011. The appellants in these cases were convicted as they were
members of ULFA, which was a banned organization under TADA.
We held in these cases following the decision in State of Kerala vs. Raneef, 2011 that mere
membership of a banned organization will not incriminate a person unless he resorts to violence or incites
people to violence or does an act intended to create disorder or disturbance of public peace by resort to
violence.
In Arup Bhuyans case we relied on the decision of the U.S. Supreme Court in Clarence
Brandenburg Vs. State of Ohio, 395 U.S. 444 (1969) in which the U.S. Supreme Court held that mere
advocacy or teaching the duty, necessity, or propriety of violence as a means of accomplishing political
or industrial reform, or publishing or circulating or displaying any book or paper containing such advocacy,
or justifying the commission of violent acts with intent to exemplify, spread or advocate the propriety of
the doctrines of criminal syndicalism, or to voluntarily assemble with a group formed to teach or advocate
the doctrines of criminal syndicalism is not per se illegal. It will become illegal only if it incites to imminent
lawless action. The statute under challenge was hence held to be unconstitutional being violative of the
First and Fourteenth Amendments to the U.S. Constitution.
What has to be noted is that Section 3 (5) of TADA makes mere membership of a banned
organization a crime. However, in Arup Bhuyans case (supra) we held that Section 3 (5) cannot be read
literally, otherwise it will violate Articles 19 and 21 of the Constitution. It is well settled that the Court
should try to take a view which upholds the Constitutional validity of a statute, even if that requires
reading down the plain language of the statute. In Sri Indra Das case we referred to several decisions
where the language of a statute had been read down by the court to sustain its constitutional validity.
In Sri Indra Das case we referred in paragraphs 8 to 25 to various decisions of the U.S. Supreme
Court which held that mere membership of a banned organization cannot be held to be a crime. In Scales
vs. U.S. 367 U.S. 203 (229) a distinction was made between a passive member and an active member. In
that decision Justice Harlan observed that there must be clear proof that the accused specifically
intended to accomplish the aims of the organization by resort to violence. A person may be foolish,
deluded or perhaps merely optimistic, but that would not make him a criminal.
In Noto vs. U.S. 367 US 290 Justice Harlan observed:
The mere teaching of Communist Theory, including the teaching of the moral propriety or even
moral necessity for a resort to force and violence, is not the same as preparing a group for violent action.
In Communist Party vs. Subversive Activities Control Board, 367 U.S.1 (1961) Mr. Justice Hugo
Black in his dissenting judgment observed:
The first banning of an association because it advocates hated ideas, whether that association be called
a political party or not, marks a fateful moment in the history of a free country. That moment seems to
have arrived for this country. This whole Act embarks this country, for the first time, on the dangerous
adventure of outlawing groups that preach doctrines that nearly all Americans detest. When the practice
of outlawing parties and various public groups begins, no one can say where it will end. In most countries
such a practice once begun ends with a one party government.
In Whitney vs. California, Mr. Justice Brandeis, the celebrated Judge of the U.S. Supreme Court,
in his concurring judgment, which really reads like a dissent, observed:
Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches
and burned women. It is the function of free speech to free men from the bondage of irrational fears. To
justify suppression of free speech there must be a reasonable ground to believe that the danger
apprehended is imminent. The wide difference between advocacy and incitement, between preparation
and attempt, between assembling and conspiracy, must be kept in mind.
In India many people may join a banned organization only because they believe in the ideology of
that organization, but they may not be doing, or preparing to do, or inciting or organizing, any act of
violence. They are only passive, not active members, and hence they cannot be convicted.
4. The Haj Subsidy case
In Praful Goradia vs. Union of India, 2011, the grievance of the petitioner is that he is a Hindu, but
he has to pay taxes part of whose proceeds go for the purpose of the Haj pilgrimage, which is only done
by Muslims. His argument was that Articles 14 and 27 of the Constitution were violated.
Under the Haj Committee Act, 1959 (replaced by Haj Committee Act, 2002) pilgrims selected by
the Haj Committee for going for Haj are given a subsidy by the Government of India in the air fare. It was
submitted that the burden of this subsidy fell on non-Muslims too.
Article 27 of the Constitution states: No person shall be a compelled to pay taxes, the proceeds
of which are specifically appropriated in payment of expenses for the promotion or maintenance of any
particular religion or religious denomination.
The court held in Praful Goradias case that there was no violation of Article 27. The court
observed:
In our opinion Article 27 would be violated if a substantial part of the entire income tax collected
in India, or a substantial part of the entire central excise or the customs duty or sales tax or any other tax
collected in India were to be utilized for promotion or maintenance of any particular religion or religious
denomination. It was also held that if only a very small part of any tax was used for this purpose there
would no violation of Article 27.
The petitioner had not made any allegation that a substantial part of any particular tax was used
for subsidizing the Haj pilgrimage.
It was pointed out by the government counsel that the government incurs expenditures for Kumbh
and Magh Melas, Mansarovar pilgrimage, etc. for Hindus, visits of Sikhs to gurudwaras in Pakistan, etc.
but these were small expenditures compared to the total tax collected.
The court observed that we must not be too rigid in these matters, and must give some free play
to the joints of the State machinery. A balanced view had to be taken, and one could not say that if even a
single paisa of government money is spent for a particular religion there would violation of Article 27. As
observed by Justice Holmes of the U.S. Supreme Court, in Bain Peanut Co. vs. Pinson, 282 U.S. 499
(1931), The interpretation of Constitutional principles must not be too literal. We must remember that the
machinery of the government would not work if it were not allowed a little play in its joints.
The court also held that there was no violation of Article 14 and 15 of the Constitution.
Expenditures were incurred by the governments, Central and State, for other religions too. Article 14
could not be interpreted in a doctrinaire or dogmatic manner. It is not prudent or pragmatic for the court to
insist on absolute equality when there are diverse situations and contingencies. The court also relied on
the decision in Government of Andhra Pradesh vs. P. Laxmi Devi, 2008 in which the court advised great
restraint while deciding the constitutionality of a statute.


5. Right of Muslims to Build Mosques
When I was a Judge in the Allahabad High Court a petition came up before a division bench (of
which I was the senior member) in Mohd. Sharif Saifi vs. State of U.P., Writ Petition 43403/1998 decided
on 28.1.1999.
The grievance of the petitioner was that he was not being allowed to build a mosque on his land,
and hence Article 25 of the Constitution was being violated.
Agreeing with his contention, we allowed the petition and observed:
This is a free and secular country. Subject to public order, morality and health, anybody is
entitled under Article 25 of the Constitution to build any house of worship, whether it is a mosque, church,
temple, etc., on his own land or on anyone elses land with the consent of that person. Article 25 (1) of the
Constitution states:
Subject to public order, morality and heath and to the other provisions of this Part, all persons
are equally entitled to freedom of conscience and the right freely to profess, practice and propagate
religion.
Hence, we make it clear that the petitioner is fully entitled to make a mosque on his own land or
on someone elses land with the permission of that person, and if he does so the authorities will give him
full protection, and take strong action against anyone interfering with the petitioners right. No permission
of the D.M. is required for this.
However, we would humbly suggest to the petitioner and others concerned that instead of
mosques, temples, etc., the country requires more schools, hospitals, technical institutions, vocational
training institutes, etc., for the countrys scientific and technological development. Half of the population of
the State is illiterate and a large number of young people wish to get technical training in order to get
employment, and hence it is absolutely essential that there should be more schools, technical institutes,
vocational training institutes, hospitals, etc., so that the country progresses, and the welfare of the people
is attended to. Hence instead of building temples, mosques, etc., we recommend to all people (including
the petitioner) to consider our suggestion, and follow it if it appeals to them.
In this connection we may also mention that Article 51-A (h) of the Constitution makes it a
fundamental duty of all citizens to develop the scientific temper.
However, we again make it clear that this is only our humble suggestion, and the petitioner is fully
entitled to make a mosque on his own land, or on someone elses land with his consent, and the
authorities will give him full protection for doing so.
6. Right of Muslims to Bury their Dead Bodies in their Graveyard
When I was Chief Justice of the Madras High Court a writ petition, Mohamed Gani vs.
Superintendent of Police, Writ Petition 5202/1998 (decided on 14.7.2005) was heard by a bench of myself
and Justice Kalifulla (who is now a Judge of the Supreme Court). The judgment can be seen online.
The facts of the case were that in a certain village in the Dindigul district of Tamil Nadu certain
Harijans were not allowing the Muslims of the village to take their dead bodies for burial through a certain
public street.
We allowed the petition, holding that this is a free, democratic and secular country. In view of the
tremendous diversity in our country, the only policy that can work is secularism and equal respect to all
communities.
We held that the right to bury dead bodies in accordance with ones religious rites and customs is
a part of Article 25 of the Constitution. One could understand an objection to taking bodies through
someones private land, but here the bodies were sought to be taken through the public street. Hence
there could be no valid objection, and we directed the administration that they should ensure that there
was no obstruction.
In paragraph 19 of the judgment we further observed:
From a perusal of the facts on record it appears that in village Balasamudram there are about
5000 families, and of them, 1000 families are Muslims. Thus Muslims are a minority in that village. It is the
duty of the majority community in any particular area in our country to protect the minorities, and see to it
that the members of the minority community (whether it is a religious minority or caste, ethnic or lingual
minority) are made to feel secure and live with respect, and are not harassed in any way. Respect for
minorities is a mark of a civilized people in the modern world. Hence it is absolutely essential that
wherever in any particular place or region in our country any community is in the minority, the majority
community must see to it that the minority community is made to feel secure and is not oppressed or in
any way harassed, but can live with respect and with equality with others.
7. Protection to Minorities
Article 25 (1) of the Indian Constitution states: Subject to public order, morality and health and to
the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right
freely to profess, practice and propagate religion.
I have always been a supporter of the rights of religious minorities in India, because I firmly believe
that a mark of a civilized society is that minorities therein can live with dignity and respect.
Christians are only about 2% of the 1.25 billion people in India. In January 2009 a case came up
before a bench of the Supreme Court of which I was a member, in which the allegations were that
Christians in Orissa were being persecuted by right wing Hindu groups. It was alleged that about 50,000
Christians had fled from their homes, some had been killed, their houses burnt, and they were living in
camps or in the jungle.
During the hearing of the case I remarked We will not tolerate persecution of minorities. If the state
government is unable to protect them it should resign. Article 25 of the Indian Constitution guarantees
freedom of religion to all.
These oral observations had their effect, and the persecution of Christians in the State stopped,
and compensation was awarded to those whose properties had been destroyed or damaged.
When I was a Judge of the Allahabad High Court a case came before me pertaining to some village
in U.P. In that village the majority consisted of Muslims, while the minority were Hindu Harijans. A Harijan
girl was gang raped by some Muslim boys, who were prosecuted. I awarded the accused harsh
punishment, holding that since Muslims were in the majority in that village it was their duty to see to it that
Hindus could live with dignity and respect, but the accused did just the opposite. In India Hindus are a
majority out of the total population, but they may be a minority in a specific area. It is the duty of the
majority in every specific area to ensure that the minority lives with dignity and respect. So it is not only
Muslim and Christian minorities whom I have sought to protect, but also Hindus where they are in a
minority in a particular area.
8. Slaughter of Buffaloes
When I was a Judge of Allahabad High Court a writ petition was filed before me, Banarsi vs. Abdul
Ghani, second appeal 2219/1985 decided on 12.5.1992, by a Hindu praying that the court should prohibit
slaughter of buffaloes. This was shortly before the Muslim festival of Eid-ul-Zoha or Bakrid.
Ordinarily Muslims slaughter a goat or lamb on this occasion, but there are many poor Muslims who
cannot afford to buy a goat. It is believed that by slaughtering one buffalo the spiritual benefit goes to
seven Muslims. So seven poor Muslims get together and slaughter one buffalo, and thus the per head
cost is much less than if each of them slaughtered a goat.
I asked the petitioners counsel what objection did he have to slaughter of a buffalo. He said that
buffalo is the sawari (carriage) of Lord Yamaraj (the god of death), and hence his religions sentiments
would be hurt and Article 25 of the Constitution violated if buffaloes are slaughtered.
I asked that since a rat is the sawari of Lord Ganesh, so should killing of mice be prohibited?
Similarly, almost every Hindu god had a sawari. Should slaughter of all these be prohibited?
I held that this is a free and democratic country, and it is open to a person to slaughter any animal
unless there is a law prohibiting it. The slaughter of cows and bull is prohibited by the U.P. Prevention of
Cow Slaughter Act, 1955, except as permitted by Section 3 and 4 thereof. The killing of wildlife is
prohibited by the Wildlife (Protection) Act. However, there is no law prohibiting slaughter of buffaloes. In
fact even some Hindus e.g. Gurkhas slaughter buffaloes as a bali. Of course there may be municipal
rules and regulations specifying the place of slaughter, for the sake of hygiene and sanitation. There may
also be municipal rules that the slaughter should not be done within a certain distance of a place of
worship or a school or college. These were matters which could regulated by the legislature or
municipality, but apart from this there can be no prohibition or restriction on the slaughter of buffaloes or
other animals. Under Article 25 of the Constitution every person has a fundamental right to freely practice
his religion, but this did not mean that one can force his religious views on others.
This view was upheld by a division bench of the High Court in Nisar Ahmed vs District Magistrate
Kanpur, CMWP 13695/93 decided on 2.12.1993
9. Sex Workers
There are possibly millions of sex workers (prostitutes) in our country. These girls come into the
flesh trade not because they enjoy it but because of abject poverty. They become practically slaves of the
brothel owners, and are pitilessly exploited, and often brutally treated. Once they enter the flesh trade
they became social outcastes for the so called decent society. Surely it cannot be said they enjoy a life
of dignity envisaged by Article 21 of the Constitution.
Buddhadev Karmaskar vs. State of West Bengal, Criminal Appeal No. 135 of 2010 was a case
which came up before a bench of the Supreme Court of which I was the senior member. The appellant
had brutally killed a sex worker, and we upheld his conviction. However, having dismissed the appeal, we
suo motu converted it into a P.I.L. for rehabilitating sex workers.
We were of the view that if sex workers were given some technical training they could earn their
bread through this technical skill, instead of by selling their bodies. Hence we directed the Central and
State Governments to prepare schemes for rehabilitating the sex workers, and we also set up a
Committee, headed by a senior lawyer of the Supreme Court, to monitor this exercise. The case is still
going on.
10. The Son-of-the Soil Theory
Some people in one State in India propounded the son-of-the soil (bhumiputra) theory. They
assaulted people of other states and vandalized their property.
When a case came before a bench of the Supreme Court of which I was a member I orally
observed in court that we cannot permit balkanization of the country.
Article 19 (1) (e) of the Indian Constitution states:
All citizens shall have the right (e) to reside and settle in any part of the territory of India.
Thus it is a fundamental right of a person who is a native of State A to migrate to State B, and
people in State B cannot say that since the person is not a bhumiputra of State B he is an infiltrator and
should be driven out. In practically every State in India there are people who were natives of other states,
but had come there for trade or job opportunities or some other reason. By virtue of Article 19 (1) (e) they
have a fundamental right to migrate to and settle down in any other state.
India is one country, and the bhumiputra theory is totally unacceptable.


11. Right of Accused to Counsel
In Md. Sukur Ali vs. State of Assam, 2011, the Gauhati High Court had dismissed a criminal
appeal in absence of his counsel.
Article 22 (1) of the Constitution states:
No person who is arrested shall be detained in custody without being informed, as soon as may
be, of the grounds for such arrest, nor shall he be denied the right to consult, and to be defended by, a
legal practioner of his choice.
Though this provision does not clearly say that a criminal case should not be decided in the
absence of the defendants counsel, in Md. Sukur Alis case we held that a criminal case should not be
decided in absence of the defendants counsel, and in the absence of his counsel the court cannot
dismiss his appeal but must appoint an amicus curiae to appear for the appellant and defend him. The
appeal was hence allowed and the matter remanded to the High Court.
12. Right to Water
The right to water is surely part of the right to life guaranteed by Article 21 of the Constitution,
because one cannot live without water, and it has been held to be so in certain decisions. But the reality
is that vast areas of our country suffer from water shortage. Hence in M.K. Balakrishnan vs. Union of
India, WP (c) No. 230 of 2001 a bench of which I was the senior member by our order dated 28.4.2009
directed the Central Government to form a Water Committee headed by the Union Secretary, Science
and Technology, whose task was to find out by scientific research methods of solving the water shortage
problems in various parts of India. The Water Committee was accordingly constituted and is doing its
work.
13. Right to grant interim bail
An accused in a criminal case has a right to apply to the Court for bail. What happens usually in
practice, however, is that when an accused applies for bail he must surrender before the court but often
the court does not decide the bail application the same day but adjourns the case for a few days to
enable the government counsel to get instructions. In the meantime, the accused has to go to jail. Even if
he is later granted bail and acquitted his reputation may be irreparably tarnished, and the right to
reputation has been held to be part of the right to life guaranteed by Article 21 of the Constitution (see
Deepak Bajaj vs. State of Maharashtra).
Hence in Lal Kamlendra Pratap Singh vs. State of U.P., 2009 and in several decisions thereafter it
was held that the court has power to grant interim bail pending final disposal of the bail application. Of
course it is the discretion of the court to grant interim bail on the facts of the case, and it is not bound to
do so. But grant of this power to the court means that a person need not be sent to jail if the court on the
facts thinks that interim bail should be granted.
14. Right to Marry
Once a person becomes a major according to the Indian Majority Act, 1875 (which is 18 years of
age, vide Section 3) he/she is deemed by the law to know what is in his/her interest. Hence after crossing
the age of 18 years no one can legally prevent a person from marrying a person of his/her choice.
In Lata Singh vs. State of U.P., 2006 the facts were that the petitioner fell in love with a young man
of a different caste. This very much angered her brothers who started harassing the couple in various
ways, because of which she had to leave Lucknow where she had been living. In the petition which came
up before the Supreme Court in a bench of which I was a member we observed:
This is a free and democratic country, and once a person becomes a major he or she can marry
whomsoever he/she likes. If the parents of the boy or girl do not approve of such inter caste or inter
religious marriage the maximum they can do is that they can cut off social relations with the son or the
daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the
person who undergoes such inter caste or inter religious marriage.
We directed the administration and police to prevent harassment or violence on such couples, and
those who do so should be criminally prosecuted.
In my view the right to marry a person of ones choice is a part of the right to privacy, which has by
judicial interpretation been held to be part of Article 21 of the Constitution.
In Arumugam Servai vs. State of Tamil Nadu, 2011, the Supreme Court condemned the shameful
practice of honour killing in some parts of India, of young couples who enter into an inter caste or inter
religious marriage against the wishes of their parents or other relatives or caste/community members. We
directed criminal prosecution of those who commit such crimes, and suspension of the administrative or
police officers who do not prevent them.
15. Insulting dalits
In Arumugam Servais case (supra) we held that people should not insult dalits by addressing them
as pallan, parayam or paraparayan or chamar as it hurts their feelings, just as one should not use the
word nigger or negro for African Americans.
16. Article 14
Article 14 of the Constitution states: The State shall not deny to any person equality before the law
or the equal protection of the laws within the territory of India
This provision is directed against inequality (though later by judicial interpretation, in Royappas
case, 1974 and Maneka Gandhis case, 1978 it was also held to be directed against arbitrariness in state
action), and this is a bedrock of a modern democracy.
Difficulties, however, arise in its implementation. For instance, it has been held that it does not
forbid rational classification.
In two decisions by a bench of the Supreme Court of which I was a member the court has clarified
some issues relating to it.
In Transport Dock Workers Union vs. Mumbai Port Trust, 2010 the appellants filed a writ petition in
the High Court alleging violation of Article 14 on the ground that those Typist-cum-Computer clerks
appointed before 1.11.1996 have to work for six and half hours per day, whereas those, like the
appellants, appointed thereafter have to work for seven and half hour a day. The reply of the respondents
was that due to change in technology and with introduction of privatization and setting up of private ports
with whom the respondent port had to compete, the respondent decided to have uniform working hours
for the personnel working in the indoor establishment and outdoor establishment. From the beginning the
personnel working in the outdoor establishment had to work for seven and half hours a day, and hence by
a policy decision it was decided that to bring about uniformity in the duty hours all personnel working in
the indoor establishment were asked to work for seven and half hours. However, in order to avoid
litigation it was decided that the duty hours of those appointed in the indoor establishment before
1.11.1996 will remain unchanged, while new recruits had to work for seven and half hours a day, and it
was only on acceptance of this condition that they were appointed.
The court held that there was no violation of Article 14 since there was a reasonable classification.
The court went into the question as to what would be a reasonable or rational classification, and
held that one of the tests (though not the only one) would be: is the classification conducive to the
functioning of modern society? In the modern world businesses have to face competition. To do so, they
may have to have longer working hours and introduce efficiency, while avoiding labour disputes. Looked
at from this point of view, the classification was held to be reasonable as it made the organization more
competitive and efficient. The court also held that Article 14 could not be interpreted in a doctrinaire or
dogmatic manner. Absolute and inflexible concepts are an anathema to progress and change. As
observed by Justice Holmes of the U.S. Supreme Court, the machinery of the government would not work
if it were not allowed some free play in the joints. Differential treatment does not per se violate Article 14.
It violates Article 14 only when there is no conceivable reasonable basis for the differentiation. In view of
the complexity of modern society, it was not prudent or pragmatic for the court to insist on absolute
equality when there are diverse situations and contingencies, as in the present case.
The second decision, S.C. Chandra vs. State of Jharkhand, (2007) 8 S.C.C. 279 pertaining to
Article 14 relates to the principle equal pay for equal work. In Dhirendra Chamoli vs. State of U.P. (1986)
1S.C.C. 637, the Supreme Court granted to the casual and daily rated employees the same pay scale as
regular employees, as they were doing the same work. It was subsequently realized that the application
of the principle equal pay for equal work was creating havoc. All over India different groups were claiming
parity in pay with other groups e.g. government employees of one state were claiming parity with
government employees of other States. Fixation of pay scales is a delicate mechanism which required
various considerations including financial capacity, responsibilities, education qualifications, mode of
appointment, etc., and it had a cascading effect. Hence in subsequent decisions of the Supreme Court
the principle of equal pay for equal work had been considerably watered down, and it had hardly ever
been applied in recent decisions of the court. Thus, in State of Haryana vs. Tilak Raj, AIR 2003 S.C. 2658
it was held that the principle applied only if there is complete and wholesale identity between the two
groups i.e. in their mode of appointment, educational qualifications, responsibilities, nature of work,
experience, etc. Even if the employees in the two groups are doing identical works they cannot be
granted equal pay if there is no complete and wholesale identity, e.g. a daily rated employee may be
doing the same work as a regular employee yet he cannot be granted the same pay scale. Moreover,
even for finding out whether there is complete and wholesale identity the proper forum is an expert
administrative body, and not the writ court, vide State of Haryana vs. Charanjit Singh (2006) 9 S.C.C.
321. A mechanical interpretation of the principle of equal pay for equal work creates great practical
difficulties. Hence the court should exercise judicial restraint and not interfere in such an executive
function, vide Indian Drug and Pharmaceuticals Ltd vs. The Workmen (vide parar34). Fixation of pay or
pay scales is an executive function, and the court should not ordinarily encroach into this domain.
17. Reading Directive Principles into the Fundamental Rights
Article 37 of the Constitution specifically states that the Directive Principles of State Policy in the
Constitution are non-enforceable.
However, several decisions of the Supreme Court have enforced certain Directive Principles by
reading them into certain fundamental rights. Thus, the right to education mentioned in Article 41 has
been held to be part of Article 21 of the Constitution, vide Unnikrishnan vs. State of Andhra Pradesh, AIR
1993 S.C. 2178 in which it was held that every child is entitled to free education upto the age of 14 years,
and this right flowed from Article 21 of the Constitution. After the age of 14 years the right to education is
subject to the limits of economic capacity and development of the State (by the Constitutional
Amendment of 2002 the right was incorporated in Article 21 A). In effect this decision says that upto the
age of 14 years free education must be given to children whether the State has the economic capacity or
not. In this view correct?
It must be remembered that the Founding Fathers deliberately made the Directive Principles
unenforceable by courts because India was a poor country and hence may not have the financial
resources to enforce the Directive Principles, however much the state wanted to. A balanced and
pragmatic view was therefore taken by making these Directive Principles non-enforceable. No doubt it
would be wonderful if the Directive Principles would become a reality, but where are the finances for this?
By reading Directive Principles into the Fundamental Right is one not making Article 37 nugatory?
The Supreme Court has issued several directives to the government and administrative authorities
to implement the Directive Principles. Thus, in Mukesh Advani vs. State of Madhya Pradesh, AIR 1985
SC 1383 (paragraphs 17 and 21) and Bandhua Mukti Morcha vs. Union of India, AIR 1984 SC 802 the
court directed the government to issue a notification under the Minimum Wages Act for the benefit of
bonded and other exploited labourers. In the same decisions the court set up a Joint Committee of the
Union of India and State Government as a machinery to supervise and ensure that he poor and needy
employees are not exploited by unscrupulous contractors. In Sheela Barse vs. State of Maharashtra AIR
1983 SC 378 the court directed various steps for extending the benefit of Article 39A to under trial
prisoners. Various other such decisions can be cited.
With respect, I am of the opinion that these decisions require reconsideration as Article 37
becomes redundant and nugatory if Directive Principles are made enforceable in this indirect way.
Constitutional Jurisprudence
CONSTITUTIONAL JURISPRUDENCE
by Justice Markandey Katju,
Synopsis

1. Introduction
2. Historical British Constitutional Developments
3. John Lockes Theory of Natural Rights and the American Constitution
4. The Indian Constitution

1. Introduction
Jurisprudence is the Philosophy of Law. In other words it seeks to explain what law is all about in
the most general way.
When we discuss and deal with the law, ordinarily we discuss specific subjects in law e.g.,
income tax, labour law, family law, service law, criminal law, law of torts, etc.
In jurisprudence we do not discuss these specific topics and instead we discuss questions like
what is law? How did it originate? What is its object? What are its basic concepts? etc.
Therefore when we talk of Constitutional Jurisprudence we will have to ask: what is a
Constitution, what is its purpose, what is its position in the legal system of the country, etc.
A Constitution is the social contract by which the people in a country are governed. It is a politico-
legal document, unlike ordinary statutes, which are purely legal documents.

A Constitution is the fundamental law of the land, and therefore it prevails over all the other laws
in the legal hierarchy, including statutes made by the legislature. It is the grund norm, as described by the
eminent positivist jurist Kelsen.

Why have a Constitution at all? The answer becomes obvious when we consider the purpose of
a Constitution? In every society, whether ancient, medieval or modern, there have to be some authorities.
No society can do without governance, and therefore in every society there have to be leaders and
persons in authority.

The basic purpose of a Constitution, therefore, is to set up the organic law of the land. In other
words, the first purpose of a Constitution is to set up the organs of power in a country, and mention their
functions and inter-se relationship and relation with the people.
Originally all Constitutions were unwritten, established by culture, conventions, social practices
and historical developments.

In feudal monarchies, as in the days of the Tudor Kings in England, the king was the absolute
ruler - the Supreme legislative, executive and judicial authority. In actual practice, though, he could not
possibly perform all these functions himself, and hence he delegated many of these to his delegates, who
were described as advisors, councillors, judges, etc. These persons performed the routine day to day
state functions, but they were accountable to the king and not to any legislative body.

Subsequently when the people no longer wished to have a king as their absolute ruler, certain
checks on him were devised. These were based on the theory of natural rights propounded by John
Locke, and the theory of separation of powers by Montesquieu. These checks on the kings absolutism
were then incorporated into the countrys Constitution. Thus, apart from setting up the organic law of the
law, i.e. setting up the organs of power, the second purpose of a Constitution (in modern times) was to
put checks on these organs so that they may not act arbitrarily and oppressively.

There are other purposes of a Constitution too, but before we go into these we may discuss the
historical constitutional developments in England, as that will greatly help our understanding of modern
Constitutions.


2. Historical British Constitutional Developments
The Tudors
The Tudor Kings ruled in England from 1485 (when Henry VII became King) to 1603 (when
Elizabeth 1, the last Tudor monarch, died).
The Tudors were absolute rulers. They had a body of advisers called the Privy Councillors, to
many of whom important state functions were delegated by the King/Queen, but these were selected by
the monarch himself, were accountable to him alone, and held office at his pleasure.
There was no doubt a body called Parliament, but this was a timid and weak body in the times of
the Tudors, who could imprison or even execute its members if he was displeased with them for any
reason. There was no freedom of speech at that time.
How powerful were the Tudors can be realized from the fact that Henry VIII even got his Lord
Chancellor Sir Thomas More and his chief adviser Thomas Cromwell beheaded and Cardinal Wolsey
would have met the same fate but for his death during custody. His daughter Elizabeth I got the Duke of
Norfolk and the Earl of Essex beheaded.

The Stuarts
The great crisis in the struggle between personal monarchy and parliamentary Government began
with the advent of the House of Stuart to the throne of England in 1603. This was one of the turning points
in history. In one of his speeches James I, the first Stuart King, who was the author of the Theory of
Divine Right of Kings said as it is atheism and blasphemy to dispute what God can do, so it is
presumptuous, and a high contempt, in a subject to dispute what a King can do, or to say that the King
cannot do this or that
As Englishmen were by nature tenacious of their rights and blunt in their assertion of them, as
they were temperamentally little disposed to accept a role of passive obedience, there was here ample
material for contention, and contention raged over the whole field of British national life throughout the
seventeenth century and was carried into the eighteenth century. It was the Glorious Revolution of 1688
which established that Parliament, not the King, was the supreme power of the State. By the Bill of Rights
1689 the King was forbidden to suspend or violate the laws, to levy taxes or raise troops without the
consent of Parliament, or to deny his subject the full exercise of their rights.

Changes in the British Constitution
As mentioned above, the Tudor Monarchs were absolute rulers. However in the reign of the
Stuarts (from 1603 to 1688) and thereafter important changes in the British unwritten Constitution took
place, some by changes in Constitutional conventions, and some by Acts of Parliament.
As already mentioned, the Tudor monarchs were absolute rulers. In the times of the Stuarts,
however, this absolutism began to be challenged by Parliament. A Civil War broke out in 1642 between
King and Parliament, which resulted in the execution of King Charles I, in 1645 by Oliver Cromwells
forces. After Cromwells death in 1658, Charles II, son of Charles I, was installed as the new King in
1660. He ruled till 1685 when he died, and then his younger brother becomes King as James II, who ruled
only for 3 years till 1688 when he fled to France.

The Stuart Kings were Protestants. After Henry VIII broke away from the Roman Catholic Church
(since the Pope was not willing to annul his marriage with Catherine of Aragon), a majority of Englishmen
gradually became Protestants. These Protestants hated Roman Catholics, and were unwilling to have a
Catholic as their King.

James II, though born a Protestant, had converted to the Roman Catholic faith in the reign of his
elder brother, Charles II. When this became known, some Protestant members of the House of Commons
introduced a bill in the House in 1679, known as the Exclusion Bill. This sought to exclude Roman
Catholics, and therefore Charles younger brother James, from the throne of England. Charles II became
very angry at this Bill, and dissolved the House, so the Bill never became a law. But it led to the formation
of two political factions, which later became two political parties, the Whigs and the Tories. The Whigs
supported the Exclusion Bill, and were against a strong monarchy, while the Tories opposed the Bill, and
wanted a strong monarch.

When King James II fled from England in 1688 Parliament replaced him by his Protestant son-in-
law, William of Orange. This was known as the Glorious Revolution of 1688, and it was followed in 1689
by a Parliamentary enactment known as the Bill of Rights.

The Glorious Revolution and Bill of Rights effectively transferred real power from the King to
Parliament. The Glorious Revolution established the precedent that Parliament could transfer the Crown
of England from one head to another, something which was inconceivable in the time of the Tudors. The
Bill of Rights gave the power of the purse to Parliament, for it enacted that the King could not levy any
taxes except with the consent of Parliament. It also laid down that the king could raise no armies except
with the consent of Parliament, and members had immunity for what they said in Parliament. The power
of the purse is the real power, for without money the king could do nothing.
These historical events thus made Parliament effectually supreme. If followed that the party
having majority in the House of Commons had the right to form the government, called the Cabinet.

The Cabinet System

As mentioned before, the king had to have advisers to properly discharge state functions. This
body of advisers in England was known as the Privy Council, but its members were all appointed by the
King, were accountable to him, and held office at his pleasure.

Later, out of the Privy Council the king would select a smaller body consisting of those Privy
Councillors in whom he had most confidence, and this smaller body met for deliberations in a room set
apart for this purpose called the cabinet. This body later came to be known as the cabinet, but it was
appointed by, and accountable to, the king, who presided over its meetings.

When Queen Anne died issueless in 1712 Parliament invited her second cousin George of
Hanover, who was a Protestant, to become King of England, which he did as George I.

Since George I was a German who could not speak English, he stopped attending meetings of the
Cabinet, and hence the leader of the Whigs started presiding over it, and thus effectively became the
Prime Minister.

Sir Robert Walpole was the first Prime Minister of England, who was in office from 1721 to 1742.
He was a Whig, which party had a majority in the House of Commons. Three new conventions were thus
established: (1) The party having a majority in the House of Commons had the right to form the
government (2) The leader of this Party in the House had the right to become the Prime Minister, and (3)
The other Ministers would be chosen by the Prime Minister, not the king.

All these were revolutionary changes, inconceivable in the times of the Tudors, or even the
Stuarts, and they are the basis of modern democracy. By these changes effective power passed to
Parliament and the king became a mere figurehead.

An important statutory change which also needs to be mentioned is the Act of Settlement, 1701
which gave job security, and thus, real independence to Judges. Earlier, Judges in England held office at
the Kings Pleasure, and could be dismissed by him anytime and without ascribing reasons, levying a
charge, or giving opportunity of hearing. But by this Act, Judges could only be removed by impeachment
by Parliament, and after framing charges and giving an opportunity of hearing.

The 1832 Parliamentary Reform Act abolished rotten boroughs in England and enfranchised
people living in the cities which had arisen because of the Industrial Revolution.

When the House of Lords rejected the budget approved by the House of Commons in 1909, the
Parliament Act, 1911 then removed the right of the Lords to veto money bills. Other bills passed by the
House of Commons could also not be vetoed, but delayed by the Lords for only upto two years. The 1949
Parliament Act reduced this period to one year.

All these statutes thus effectively made the House of Commons the real legislative body in
England, while the House of Lords substantially lost its powers.

The European Communities Act 1872 was passed when England wanted to join the European
Community, and this provided for incorporation of European Community Law into the domestic law of the
United Kingdom.

3. John Lockes Theory of Natural Rights and the American Constitution
We have seen above how effective state power was transferred in England from the King to
Parliament, and later to one of the two Houses of Parliament viz. the House of Commons, which
represented the people.

Normally Parliament represented the people, and therefore was expected to act in the interest of
the people. But what would happen if Parliament started acting against the interest of the people and
started oppressing them?

It is here that the theory of the British thinker John Locke gained importance. In his Second
Treatise on Civil Government, written in 1690 Locke propounded his theory of natural rights of the
people. Locke wrote that the people had certain natural rights e.g. the right to life and liberty, right to
property, etc which were inherent in man. Hence even Parliament could not encroach on these.

This theory was the basis of the Bill of Rights incorporated in the 1789 U.S. Constitution and the
Indian Constitutions Fundamental Rights.

The first U.S. Constitution was the Articles of Confederation, which was ratified by the States in
1781. However, this Constitution had a fundamental defect. It did not give the Central Legislature,
Congress, the power to impose taxes. Without taxes Congress was totally dependent on the States for
grants. This made Congress a weak body. Hence a new Constitution was adopted in 1787 giving taxing
powers to Congress. But many states refused to ratify it unless it contained a Bill of Rights. Hence the first
ten Amendments were incorporated, and this Constitution (the present Constitution) was ratified in 1790.

This Bill of Rights in the U.S. Constitution was very different from the British Bill of Rights of 1689.
The latter had transferred power from the King to Parliament, but gave no rights to the people. The former
gave Constitutional rights to the people e.g. freedom of speech, liberty, equality, freedom of religion, etc.
On similar lines the Rights of Man were declared by the French National Assembly in 1789 after the
French Revolution began. These rights put a check not only on the Executive but also on the Legislature.

The U.S. Constitution also incorporated Montesquieus theory of Separation of Powers, thus
introducing a system of checks and balances so that no organ can have absolute powers and act
arbitrarily.

Thus we see that the second purpose of a Constitution, after setting up the state organs, was to
provide a check on these organs so that they may not act arbitrarily or oppressively.

But who would enforce these rights and checks and balances? Obviously the legislature and
executive could not be entrusted to do so, because these rights were to check the powers of the
legislature and executive. Hence it was the judiciary which became the guardian of the peoples rights
and liberties, either expressly vide Articles 32 and 226 of the Indian Constitution, or by judicial
interpretation vide judgment of the U.S. Supreme Court in Marbury v. Madison.

A third purpose of a Constitution mentioned in some (not all) Constitutions is to declare the ideals
and goals which the State should strive for, e.g. the Directive Principles of State Policy in Part IV of the
India Constitution.

A Constitution may have several other provisions too, but we need not go into them have.

4. The Indian Constitution
The Indian Constitution is based on western models. Our founding fathers borrowed the
parliamentary form of government and independent judiciary from Britain, the fundamental rights and
federal structure from the U.S. Constitution, the Directive Principles from the Irish Constitution, etc.

Thus, the basic principles and State institutions set up in our Constitution were not of our own
creation. We borrowed modern principles and modern institutions from western countries and imposed
them from above on our backward, semi- feudal society.

In contrast, in England, France, etc., society and the constitutional principles and modern
institutions historically grew together. For instance, the right of freedom of speech, and the right to liberty,
etc were achieved in England and France after long, arduous, historical struggles by the peoples of those
countries against feudal despotism e.g. the British Revolutions of 1645 and1688 and the French
Revolution of 1789.

In India, on the other hand these modern rights and these modern state institutions were not the
product of our own struggles but were borrowed from the west and transplanted from above on our
backward, semi- feudal society by the Constitution makers. Thus, these rights and these state institutions
were not the result of our own struggles, but were the benefits we got from the British, American and the
French people. Thus, while our Constitution is modern, our society was (and still largely is) backward. The
Constitution, by incorporating modern values and setting up modern institutions has pulled Indian society
forward into the modern age, and was thus of great benefit to India. For instance, the equality provisions
(Articles 14 to 18) lay down modern values, whereas the caste system which still largely prevails in India
represents backward, feudal values, and provides for inequality.

Similarly, the parliamentary form of government, the principle that the government is responsible
to the legislature (not to a king), the principle of universal suffrage (not suffrage restricted to rich people or
to males alone), the principle that the king (or the President as in India) acts not of his own sweet will but
on the advice of the cabinet, etc. are all principles borrowed from England, where they had been attained
after long, arduous, historical struggles from the 17
th
to the 19
th
centuries.

Similarly, the principle of independence of judiciary was borrowed by us from England. It was
essential to have an independent judiciary if we wish to protect the fundamental and other rights of the
citizens, because if the judiciary is not independent it ordinarily cannot have the courage to declare an act
of the legislature or executive as void, or to direct the executive to act lawfully.

In England up to 1701, judges were not independent and they held office at the kings pleasure.
Theoretically, judges were only the kings agents. The king was the fountain of justice, and the judicial
function was the sovereign function i.e., the function of the king. In fact kings often used to deci de cases
themselves e.g. the Mughal Emperors. However as the functions of the State expanded, the king became
too busy in administrative, military and other matters, and he had no time to decide cases. Hence, he
delegated these functions to his delegates, who came to be known as judges.

Upto 1701, judges in England had no job security, and they could be dismissed by the king
whenever he chose. Thus King James I dismissed (and even imprisoned) Lord Coke, the Chief Justice of
England in 1610 because the latter said that the king could not decide cases personally as he was not
learned in the law.

It was the Act of Settlement, 1701 that gave independence and job security to the judges. By this
act it was declared
(1) A Judge could not be removed by the king but by the Parliament by impeachment. This meant it was
the legislature, not the executive who could dismiss a Judge.
(2) This impeachment proceeding required framing specific charges against the judge and giving him an
opportunity to defend himself in respect of those charges (unlike the previous position where this was not
necessary). In England impeachment can be done by a simple majority vote of The House of Commons,
whereas under the Indian Constitution it requires two thirds majority of each house of Parliament.

It is this job security which gives independence to our judges, as they know that they cannot be
thrown out of office even if they give a verdict against the government or the legislature. This gives them
courage to act independently and fearlessly.

We have thus borrowed Lockes theory by incorporating fundamental rights in our Constitution
which even the legislature cannot violate, and we have also borrowed Rousseaus theory by making the
people supreme in our country.

Thus, while the Indian Constitution sets up state organs, it also limits their powers, so that they
may not become tools of oppression against the people.

The third purpose of the Indian Constitution is to declare ideals which the state should seek to
achieve. These are the Directive Principles of State Policy in part IV, which are borrowed from the Irish
Constitution, but also having features peculiar to the Indian context, e.g. special protection to the
historically disadvantaged classes e.g. Scheduled Castes and Scheduled Tribes.

The Indian Constitution in its historical context
We may now discuss the Indian Constitution in its historical context. To do so we have to first
understand what is India.

As discussed in great detail in my judgment in Kailas v. The State of Maharashtra, and on my
blog justicekatju.blogspot.in, India is broadly a country of immigrants, like North America. About 92%
people living in India today are descendants of immigrants. The original inhabitants of India are not the
Dravidians (who were also outsiders) but the pre- Dravidian tribals e.g. bhils, santhals, gonds, todas, etc.
(i.e. the Scheduled Tribes). These comprise only about 7% to 8% of the Indian population today (for
details see the above mentioned judgment online).

This explains the tremendous diversity in India so many races, castes, religions, languages,
cultures etc. China is larger than India, both in population and in land area, but there is broad (though not
absolute) homogeneity in China. All Chinese have Mongoloid faces, 95% belong to one ethnic group
called the Han, there is one written script mandarin etc. On the other hand India is characterized by its
tremendous diversity, which is broadly due to the fact that it is largely a country of immigrants.

Hence to bring the country together it is essential that all the communities, regions, lingual groups
etc., be given equal respect and to be treated equally, and this the Constitution does through Articles 14
to 18 (the equality provisions), Article 25 (freedom of religion), etc.

When India became independent in 1947 Partitions riots were taking place, and large parts of the
country were engulfed in religious madness. Pakistan had declared itself an Islamic state, and there must
have been tremendous pressure on Pandit Nehru and our leaders to declare India a Hindu state. When
passions are inflamed, it is difficult to keep a cool head. It is the greatness of Pandit Nehru and our other
leaders that they kept a cool head and resisted the pressure of declaring India a Hindu state. They
declared India as a secular state, which was the correct decision in a sub continent of such tremendous
diversity. This becomes evident when we see what is happening in our neighbouring country. In Hinsa
Virodhak Sangh vs. Mirzapur Moti Kuresh Jamat (2008) the Supreme Court elaborately discussed our
secularism.

The Indian Constitution sets up a federal form of a government. Federalism caters to regional
aspirations. In a country of such tremendous diversity federalism is absolutely essential. Thus, the Naga
people have their own government and so do the Tamil people, the people of Punjab, of Orissa, Assam,
Bengal etc. There is also a central government which is for all. The jurisdiction of the Centre and the
States is demarcated by Articles 245 to 248 and the Seventh Schedule.

Unity amongst diversity is a basic theme of the Indian Constitution. Article 301 which states that
trade and commerce shall be free throughout the territory of India, provides for economic unity of India,
and political unity depends upon economic unity. Article 301 in effect implies that India is one economic
unit, and the various states are not separate units. Thus a manufacturer having his factory in Tamil Nadu
can freely sell his goods in North India, West India or East India.

India must remain united because only a united India can provide the huge market which a
modern industry must have, and it is only modern industry which can generate the wealth required to lift
our people out of poverty and other social evils like unemployment, lack of healthcare, etc and give them
a decent life. The Indian Constitution is an important mechanism for maintaining the unity of India, a
country with tremendous diversity.

**********
The Need for Judicial Restraint
The Need for Judicial Restraint
-by Justice Markandey Katju

Two judgments of the Supreme Court of India decided on 10
th
July, 2013 regarding disqualification of MPs
and MLAs and one interim order of the Allahabad HC banning caste rallies have been a subject of great
deal of discussion and debate recently.

I have perused and considered them, and with great respect to the courts which passed these orders I
have serious reservations about their correctness.

In Lily Thomas vs Union of India the SC declared section 8 (4) of the Representation of the People, 1951
as unconstitutional.

Section 8(4) states:-

Notwithstanding anything in sub- section (1), sub- section (2), or sub- section (3)] a disqualification under
either sub- section shall not, in the case of a person who on the date of the conviction is a member of
Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if
within that period an appeal or application for revision is brought in respect of the conviction or the
sentence, until that appeal or application is disposed of by the court.

In Government of Andhra Pradesh vs P. Laxmi Devi (2008) the Supreme Court considered at great length
the doctrine of judicial review of statutes (from paragraph 31 onwards). In paragraph 36 of that judgment,
it was observed that invalidating an act of the legislature is a grave step and should never be lightly taken.
A court can declare a statute to be unconstitutional not merely because it is possible to hold this view, but
only when that is the only possible view not open to rational question (vide paragraph 41).


The philosophy behind this view is that there is broad separation of powers under the Constitution, and
the three organs of the state must respect each other and must not ordinarily encroach into each others
domain. In paragraph 44 of the judgment it was observe that there is one and only one ground for
declaring a statute to be invalid, and that is if it clearly violates some provision of the constitution in so
evident a manner as to leave no manner of doubt.

Keeping the above considerations in mind, one fails to see how Section 8(4) could be held to be
unconstitutional.

The bench has given two reasons for its verdict: Firstly, it held Section 8 (4) violative of Article 102 and its
corresponding provision Article 191 of the Constitution. A careful perusal of Article 102 show that there is
nothing therein which makes Section8 (4) inconsistent with it.

Article 102(1) of the Constitution states:
1) A person shall be disqualified for being chosen as, and for being, a member of either House of
Parliament
(a) if he holds any office of profit under the Government of India or the Government of any State, other
than an office declared by Parliament by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under
any acknowledgement of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament

In my opinion none of the 5 clauses in Article 102(1) are attracted so as to invalidate Section 8(4). Clause
(e) is not attracted because section 8 (4,) which is a law made by Parliament, specifically states that a
legislator convicted is not disqualified during pendency of his appeal, if made within 3 months.
Secondly, the Supreme Court has held that Parliament had no legislative competence to enact
Section 8 (4). This reasoning, too, is difficult to accept because entry 72 to list1 of the 7
th
Schedule
specifically gives power to Parliament to legislate on elections to Parliament or the State legislatures. It is
well settled that legislative entries in the Constitution are to be widely construed, and in any case
Parliament has residual power under entry 97 to list 1.
The second judgment of the Supreme Court in CEC vs Jan Chawkidarialso deserves reconsideration
because it has held that if a person is in jail or police custody he cannot contest an election.
The SC has relied on the definition of elector in section 2 (e) of RP Act, 1951, and observed that in view
of Sections 3, 4, and 5, to be qualified for membership of the legislature one has to be an elector.
Section 2(e) defines elector as follows:
" elector" in relation to a constituency means a person whose name is entered in the electoral roll of that
constituency for the time being in force and who is not subject to any of the disqualifications mentioned in
section 16 of the Representation of the People Act, 1950; (43 of 1950 .)

There is no mention of section 62(5) of the 1951 Act in the definition of elector in Sec 2(e). It is therefore
difficult to understand how the SC relied on Sec 62(5) for disqualifying persons who are in jail or police
custody from standing for elections. There is a distinction between a voter and an elector Section 62 (5)
only debars a person in jail from voting, not from contesting an election.

If the view of the Supreme Court is accepted then a rival politician need only get a false FIR filled against
his political rival and have him sent to police custody or jail to disqualify him.

As regard the interim order of the Allahabad High Court with due respect I submit that it requires to be
reviewed.

Firstly because the view taken by the High Court required a final, well considered judgment and not an
interim order, and secondly there is no legal bar to a caste rally, as long as no law is violated. In fact
Article 19 (1) (b) gives citizens a fundamental right to assemble peaceably. A political party can call a
meeting of a caste e.g. the dalits to discuss the problems facing that community, and there is no law
barring such a meeting.

With respect, the above decisions of the Supreme Court and High Court have made/amended the law,
which function was in the domain of the legislature vide Divisional Manager,AravaliGolf Course v Chander
Haas

I make it clear that I am totally against criminalization of politics or casteism, but the problem we are
discussing is not about one personals view but about the correct legal position.
Further to my article "The Need for Judicial Restraint"
There are three comments I wish to make about some of the reactions to my article 'The Need for Judicial
Restraint' :

(1) Some say that no doubt making/ amending the law is the job of the legislature, not the judiciary, but
since the legislature is not doing its job properly the judiciary has to do it. If this argument is accepted
then it can also be said that since the judiciary is not doing its job properly (there is so much delay in
deciding cases, a section of the judiciary has become corrupt, etc.), the legislature or executive should do
its job of deciding cases.

(2) Section 8(4) of the Representation of the People Act, 1951 may be a bad law but that does not make it
unconstitutional. Here I may relate a story. Sir Thomas More (1478-1535), who was the Lord Chancellor
of England, was once taking a walk in London with his daughter Margaret and son-in-law Roper. They
saw a man running, and Margaret said to Sir Thomas " Father get that man arrested". When Sir Thomas
asked why, she replied "Because he is a bad man". "But which law has he violated ?", asked Sir Thomas.
"He has violated the law of God", replied Margaret. "Then let God arrest him", said Sir Thomas, "I get
people arrested only if they break the law made by Parliament".

There is a difference between law and morality, as the British jurists Bentham and Austin pointed out.
Section 8(4) may be a bad law but nevertheless it is still a law.

3) Many people say that since several members of Parliament or State Legislative Assemblies have
criminal backgrounds, no law will ever be made or implemented to clean the system.

To this my reply is that India is passing through a historical transition period from feudal society to modern
society, and to my mind will last about another 15-20 years. It will take this long a period to clean the
system and bring about an honest, just and modern social order. It can only be by peoples' struggles that
such a social order can be created, not just by judicial decisions or making laws. One wishes that this
transition would take place immediately and without any pain or turbulence, but unfortunately that is not
how history functions.

Human beings have creativity. People have to use their creativity to create such a clean, just and modern
social order in which all Indians get decent lives and the great social evils like poverty, unemployment,
corruption, etc. are abolished. All patriotic Indians should help in this great historical challenge facing the
nation.
Required, Two Tongues
Since some public figures have been commenting against English recently, I am reposting my article on
the subject.

English and Hindi have irreplaceable roles in national integration and ensuring progress

When I was a Judge of Allahabad High Court I would be invited by the High Court Bar Association on the
occasion of Hindi Diwas, which was celebrated every year on September 14 in a function at the Bar
Library. I would tell the office bearers of the bar association that I do not like to come to the function
because what I say would create controversy. However, they would insist and plead that I come and
speak.
At the functions many speakers would say Angrezi hatao, that is, abolish English from our country. Some
would disparagingly describe English as a dasi (slave girl).
MOTHER TONGUE
When my turn comes to speak I would tell the audience that if their children did not learn English they
would only be fit to drive bullock carts (Hal chalane layak rah jayenge). I said I too loved Hindi, which is
my mother tongue, but that did not mean I should behave like a fool. All knowledge in the world is in
English. If one goes to an engineering college, all the books are in English; similarly all the books in a
medical college are in English. If one wants to study history, economics, philosophy, science or literature,
the books are all in English. How can one do without English? It is totally stupid to say Angrezi hatao, and
only enemies of their children talk like that. In fact, we must spread English more for the countrys
progress. At the same time, people in non-Hindi speaking States such as Tamil Nadu should learn Hindi,
because it is the link language in our country. For instance, Tamilians face great difficulty when they
come out of Tamil Nadu because they do not know Hindi.
LINK LANGUAGE
When I met the Chief Minister of Tamil Nadu some time back, I told her that Tamilians should learn Hindi
as it is in their interest to do so. She told me that Tamilians had indeed been learning Hindi up to the
1960s, and Hindi was spreading in Tamil Nadu by Hindi films and Hindi Prachar Sabhas. But then some
north Indians decided to impose Hindi on the south, creating a strong reaction and halting the learning of
Hindi.
I told her it was wrong on the part of some north Indian politicians to try to impose Hindi in the south. This
is the age of democracy, and nothing should be imposed. However, what has happened has happened,
and now my appeal to the people of Tamil Nadu is that they should learn Hindi. Recently, I spoke to
students of Anna University in Chennai and advised them to learn Hindi. I have received e-mails from
some of the students saying they have started learning Hindi.
In my speech at Anna University, I recalled an instance when I was Chief Justice of Madras High Court
and had been invited to a function in Gulbarga in north Karnataka. I flew from Chennai to Hyderabad,
where I caught a taxi to Gulbarga. The professor of Gulbarga University who came to receive me was a
Kannada speaker and the taxi driver was a Telugu speaker, but they spoke to each other in Hindi. I was
surprised that two south Indians should speak to each other in Hindi. I asked the professor the reason. He
said it was because Hindi was their link language. He did not know Telugu and the taxi driver did not
know Kannada, but they both knew Hindi. This shows that Hindi is the link language in much of India. In
fact, most people in non-Hindi regions like Punjab, Bengal, Kashmir, the North East, Orissa, Andhra
Pradesh, etc. can speak Hindi. In Pakistan, people speak Urdu which is very similar to Hindi. Thus,
knowledge of Hindi makes it easy to communicate in much of the subcontinent.

I appeal to all the people of India to learn Hindi and English. But nothing should be imposed.
Keeping the statute quo
The judgments on the Representation of the People Act stray into legislative terrain.


The Supreme Court judgments of July 10, disqualifying convicted or jailed MPs and MLAs from contesting
elections, won a lot of accolades. It was claimed they would clean our politics. I have no sympathy for
criminals, but in my respectful opinion lawmaking is the job of the legislature, not the judiciary.

Others objected that since many legislators have criminal backgrounds, they will not change the law. My
reply was: if it is said that the judiciary must step in if the legislature is not doing its job properly, it can
likewise be said that since the judiciary is not doing its job properly (there is often great delay in deciding
cases, a section of the judiciary has become corrupt, etc) the legislature or executive should do the work
of deciding cases. This would lead to a constitutional crisis and chaos.


In Lily Thomas vs Union of India, the bench struck down Section 8(4) of the Representation of the People
Act, 1951, as unconstitutional. Now it has been held by the Supreme Court in Government of Andhra
Pradesh and Others vs P. Laxmi Devi (2008) that the invalidation of a statute by the judiciary is a grave
step. The court can declare a statute unconstitutional not merely because it is possible to take such a
view, but only when it is the sole possible view not open to rational question. This is because there is a
broad separation of powers in our Constitution between the three organs of state. If one organ
encroaches on the others' domain, the system cannot function. Declaring a statute to be unconstitutional
is thwarting the will of a co-ordinate organ of the state, which should be done only if there is a clear
violation of some constitutional provision. Keeping the above considerations in mind it is difficult to
understand how Section 8(4) could be held unconstitutional.


Now it is true that Parliament has enacted somewhat different laws for the disqualification of a person
who wishes to be chosen as a legislator, and a person who is already one. The former is disqualified
immediately on the date of conviction if the sentence is for not less than two years. For the latter,
disqualification is deferred till the disposal of the appeal, if the appeal is filed within three months of the
conviction.


Noting this distinction, the bench referred to Article 102(1) (e) of the Constitution, which states: "A person
shall be disqualified for being chosen as, and for being, a member of either House of Parliament if he is
so disqualified by or under any law made by Parliament". A similar provision exists for state legislatures.


It is a principle of interpretation of statutes that the word "and" can sometimes be read as "or", and vice
versa. The bench has read the word "and" as "and", not as "or", to declare Section 8(4) unconstitutional.
But if it is read as "or", Section 8 (4) becomes constitutional. It is well settled that if two views are
possible, one upholding the constitutional validity of a statute, and the other declaring it unconstitutional,
the former is to be preferred, because there is always a presumption in favour of the constitutional validity
of the statute.

Also, Articles 102 and 191 do not mention when the disqualification becomes effective. Parliament can fix
different dates for different categories, which it has the power to do under entries 72 and 97 of List 1 of
the Seventh Schedule of the Constitution.


Moreover, as pointed out in the decision of the Constitution bench of the Supreme Court in K.
Prabhakaran vs P. Jayarajan, 2005, Parliament by enacting Section 8(3) and Section 8 (4), has chosen to
demarcate two categories: one, a person who is, on the date of conviction, an MP or MLA, two, a person
who is not. The court went on to say "such classification cannot be said to be unreasonable as it is based
on a well laid down differentia and has nexus with a public purpose sought to be achieved". This five-
judge bench decision, though referred to, has been practically negated by the decision of the two-judge
bench in the Lily Thomas case.


As for the decision in ECI vs Jan Chowkidar, which disqualified jailed persons from contesting elections,
the bench relied on Section 62 (5) of the RP Act, 1951, which states that a person in police custody
cannot vote. But having the right to vote is different from having the right to contest elections. Sections 3,
4 and 5 entitle an elector to contest. Under Section 2(e), an elector is defined as a person who is entered
in the voters list and is not disqualified under Section 16 of the RP Act, 1951. There is no mention of
Section 62(5) in Section 2(e). Many persons in jail have contested elections, for example, George
Fernandes. To hold otherwise would only give rival politicians an opportunity to file false FIRs and get
their competitors arrested, and thereby disqualified.


I submit with respect that both these decisions are incorrect in law and need to be reconsidered.


( The writer, a former judge of the Supreme Court, is chairman of the Press Council of India)


Published in The Indian EXPRESS on July 24th, 2013.
Role of Media to promote Secularism

Bhedaat ganah vinashyanti bhinnah supajapah parai
Tasmaat sanghaat yogeshu prayateran ganah sada

Republics are destroyed only by internal divisions among the people,
Therefore a republic should always strive to maintain good relations among the people
-Shantiparva, Mahabharat, Chapter 108

The issue of secularism is nowadays being widely discussed, and so it is necessary to
understand its real significance in India. For this, it is first necessary to understand our country.

As I have mentioned in detail in my article What is India (see my blog justicekatju.blogspot.in
and the video on the website kgfindia.com), India is broadly a country of immigrants, like North America.
Probably 92-93 % people living in India today are descendants of immigrants, who came mainly from the
North West, looking for a comfortable region to settle down. The original inhabitants of India are the pre-
Dravidian tribals or adivasis (STs) e.g. Bhils, Gonds, Santhals, Todas, etc. who are hardly 7-8% of our
population today.

People came to India because people migrate from uncomfortable areas to comfortable areas.
India was a paradise for agricultural societies, because it has level land, fertile soil, plenty of water for
irrigation, etc. Why should anyone migrate from India to, say, Afghanistan, which is cold, covered with
snow several months in a year, mountainous, and uncomfortable? Hence people poured into India for
thousands of years seeking a comfortable life.

These immigrants who came into India brought their own language, religion, customs, etc, and
this is the reason for the tremendous diversity in India, so many religions, castes, languages, ethnic
groups, etc.

We may compare India with China. Our population is about 120 crores, while Chinas is about
130 crore, and Chinas land area is over twice ours. However, there is broad (though not absolute)
homogeneity in China, all Chinese have Mongoloid faces, they have one common written script called
Mandarin (though spoken dialects are different), 95% Chinese are of one ethnic group called Han, etc. In
India on the other hand, there is tremendous diversity.

It follows that to keep the country together and take it on the path of progress the only policy
which will work is secularism and giving equal respect to all communities. This was the path shown by the
great Emperor Akbar who through his policy of Suleh-e-kul (i.e. Universal toleration of all religions) gave
equal respect to all religions, at a time when Catholics and Protestants were massacring each other in
Europe. Akbar was the real creator of modern India, and his policy was followed by Jawaharlal Nehru and
his colleagues who gave us a modern secular Constitution, and this is what is holding our country
together, despite all our problems.

Secularism does not mean that one cannot practice ones religion. Secularism means that religion
is ones private affair unconnected with the State, which will have no religion.

India is presently passing through a transitional period in our history, from feudal agricultural
society to a modern industrial society. This is a very painful and turbulent period, as a study of European
history from the 16
th
to 19
th
Centuries (when Europe was passing through its transition) discloses, full of
turmoil, wars, revolutions, social churning and chaos, intellectual ferment, etc. It was only after going
through this fire that modern society emerged in Europe. India is presently going through this fire, we are
passing through a very agonizing period, which I guess will last for another 15-20 years.

In this period it is the patriotic duty of all Indians, particularly the intellectuals and the media, to
help our country get over this transition faster and with less pain. This they can do by promoting modern
rational and scientific ideas and combating backward feudal ideas and superstitions.

In this transitional age the role of ideas becomes extremely important, and hence the role of
intellectuals and the media becomes extremely important. We may recall the role played by Voltaire, who
attacked religions bigotry in France and Europe, Rousseau who attacked the entire feudal system,
Thomas Paine, who proclaimed the Right of Man, etc. Our intellectuals and the media should do the
same.

Today the bitter truth is that most of our people are still very backward, steeped in
casteism and communalism. This is evident from what happens in our elections. Most people vote on the
basis of caste and religion, instead of on the merits of the candidate. What after all are vote banks? Our
people are still largely feudal and superstitious, believing in astrology and similar nonsense.

In this situation our intellectual and media have an important responsible, patriotic duty of giving
correct guidance to the people by propagating modern, scientific ideas. But are they doing this? Much of
what is shown in the media are superficialities like lives of film stars and cricketers. Instead of attacking
communalism, a section of the media had become kar sewaks during the Ram Janambhumi agitation.
Whenever a bomb blast occurs with a short time many T.V. channels start saying that an email or SMS
has come that some Muslim organization has claimed responsibility, thus demonizing the entire Muslim
community. Is this responsible behaviour? An email or SMS can be sent by any mischievous person. The
truth is that 99% people of all communities, Hindu, Muslim, Sikh, Christian etc are good, but often an
attempt is made to depict all Muslims as terrorists.

Intellectuals and media people must fight against divisive tendencies in our country. We must
remain united because modern industry requires a large market, and if we are divided and fight with each
other modern industry cannot grow, and without modern industry we cannot generate the wealth required
to abolish poverty, unemployment, etc and provide for healthcare, education, etc for our people.
Therefore whatever divides us, whether on the basis of religion, caste, region, language, race, etc is anti-
national, and whatever unites us (e.g. secularism) is the path we must adopt for progress.

We must not be Hindu nationalists or Muslim nationalists or Sikh or Christian nationalists, we
must all be Indian nationalists, and that is what everyone including the media should propagate.
To The Indian Youth
I read an article in a newspaper recently in which it was said that only the Indian youth can change the
country. My own view is as follows :

It is true that generally youth have more idealism than older people, and therefore they can do much for
the country. However there are two caveats :

(1) All youth do not have the same thinking. While some have scientific, analytical, modern minds, others
are superficial, and some even reactionary. While some are patriotic, others are selfish and think only for
themselves. So to lump all youth together in the same category would not be correct.

(2) An old person can be young mentally, and conversely, a physically young person can be old mentally.
So it is not just one's physical condition which makes a person young, it has more to do with his mind.

Indian youth must develop the scientific temper, they must rationally analyse and discuss social and
public issues before forming an opinion, which I regret many do not do.

It is science which is the solution to the country's real problems,massive poverty, unemployment, price
rise, corruption, lack of healthcare and good education for the masses, etc. Unless we spread science to
every nook and corner of our country and get rid of backward feudal ideas and practices like casteism,
communalism and superstitions (like astrology and faith in 'Babas'), we can never solve our massive
problems

By science I do not mean Physics, Chemistry, Biology alone. I mean the entire scientific outlook. By
being modern I do not mean wearing a nice shirt or tie or suit, or a pretty sari or jeans or skirt. By being
modern I mean developing a modern mind, which means a rational mind, a scientific mind, an analytical
mind, a questioning mind.

Our ancestors were great because they questioned everything, like the ancient Greeks (see the works of
Aryabhatta, Brahmagupta, Bhaskar, Charak, Sushrut, Panini, Patanjali, etc). These works were all in
Sanskrit, and Sanskrit was the language of freethinkers who questioned everything (it was wrongly
depicted as a language of rituals and chanting mantras alone).

Today our country is facing massive problems, as mentioned above. Our youth can play a great historical
role in solving these problems and making India prosperous with everyone having a decent life, but for
that our youth must develop logical, scientific and questioning minds.

I am confident that they will do their patriotic duty to the country.
Our National Aim
Before the Industrial Revolution, which started in England around the beginning of the 18th Century, and
then spread to France, then Germany, and then all over the world, there were feudal agricultural societies
in most parts of the world. In feudal societies the methods and tools of economic production were so
backward and primitive that very little wealth could be generated by them. In much of Asia the bullock or
buffalo, and in Europe the horse, was used for tilling the land (there were no tractors in those days).
Consequently so little wealth was generated by the feudal method of production that only a handful of
people (kings, aristocrats, etc) could be rich, while the remaining 99.9% people had to live in abject
poverty and ignorance. When the cake is small very few people can eat it.

This situation has drastically changed after the Industrial Revolution. Now a unique situation has
developed in world history, and that is that now no one in the world need be poor. This is because
modern industry is so powerful and so big that now enough wealth can be created to give everyone in the
world a decent life. If society is organized on scientific lines, everyone can get jobs, healthcare,
education, housing, etc and no one need be poor.

This being the unique situation which has been created in world history, thanks to the Industrial
Revolution, people all over the world are demanding that they be given decent lives. However, the truth is
that 75-80% people of the world are still poor.

We may take the case of India.

Nobel Laureate Amartya Sen has termed India a disaster zone in which pockets of California exist amidst
a sea of sub-Saharan Africa, where tens of millions of lives are crushed by lack of food, health, education,
employment, and justice. Arundhati Roy has said that the upper and middle classes of India are seceding
from the rest of the country, " they are fighting for the right to merge with the world's elite somewhere up
there in the stratosphere".

This being the frightening scenario, what is the solution ?

In my opinion it is the people themselves who through their struggles, and using their creativity, must find
the solutions to their problems. But the masses need guidance from patriotic intellectuals, because
unfortunately the intellectual level of the masses is low. They are mostly steeped in casteism,
communalism, superstitions, and backward, feudal ideas and practices, like faith in astrology, 'Babas',
etc. Therefore the patriotic section of the Indian intelligensia have a sacred duty to the country in this
connection. They must spread scientific and rational thinking among the masses and find solutions to
India's massive problems, using their creativity. They must combat casteism, communalism and
superstitions. They must guide the masses.

Our national aim must be to make India a highly industrialized, highly prosperous country, with everyone
having decent lives.
Media Freedom and Media Responsibility "

I had firmly decided not to write any more articles or say anything publicly or appear on t.v. for quite some
time, firstly because I had already expressed my views on several issues, and secondly because some
people had started accusing me of seeking popularity or cheap publicity. I regard publicity or popularity
seeking as a form of vulgarity, and I never seek it.

What I was doing was to put forward certain ideas which I thought were in the national interest, though it
is quite possible that some of my views were wrong. But since I was misunderstood by many people,
some of whom even started abusing me and launching personal attacks, I thought that the time had come
for me to become silent.

For this reason I said and wrote nothing for two months, and I would have continued my silence in the
future too for a long time but for an event which happened recently.

On 19th June a senior journalist wrote an article entitled " Muzzling the Media--Freedom at Risk", which
was published in his own newspaper, a leading English Indian national daily. His basic idea was that the
government was trying to muzzle the media, and thereby violate the freedom of the press guaranteed by
Article 19 of the Constitution.

I would have remained silent had he left it at that, because, after all, he is entitled to his view. However,
what motivated me to break my silence is that the article specifically named and vilified me as the main
agent who is helping the government in gagging the media. The article describes me as a ' terrier', though
by allusion.
Since I had decided not to write or say anything for quite some time, at first I was thinking of not replying
to this deliberate, malicious falsification of my views about the media ( which are available on my blog
justicekatju.blogspot.in ). It was only after several days of deliberation that I reluctantly decided to
respond, though not by getting some article published in a newspaper but only on Facebook and my blog.

Here are the true facts:

(1) I have consistently supported media freedom, and condemned attacks on the media, overtly or
covertly, e.g. In the cases of Aseem Trivedi, Iftikhar Gilani, Shaheen ( the girl who wrote on Facebook),
Prof. Mahapatra of Jadavpur University, etc or when media persons were attacked in Maharashtra, J&K,
Himachal, etc, or when media freedom was sought to be covertly suppressed in Bihar, etc. I have strongly
criticized some Congress governments too in this connection, and not merely non Congress
governments. So how am I a Congress agent ?

I support freedom of speech not for popularity or as a fashion but because I genuinely believe in it.
Without freedom to think, freedom to speak, freedom to write and discuss, and freedom to dissent there
can be no progress. It was because there was freedom in England that it progressed, whereas countries
like Spain, where freedom was stifled by the Inquisition, lagged far behind.

(2) When the Times of India office in Mumbai was attacked by some hooligans, I strongly condemned the
incident. When the Court imposed a fine of Rs.100 crore on the Times Now channel, I defended Times
Now, saying that no doubt it had made a serious mistake, but it had apologized for the same several
times, and in any case the fine was excessive.

(3) In the article in question it is mentioned that I have spoken of the need for media ethics. What is wrong
in this ? Should there be no ethics for the media ? Everybody is accountable in a democracy, but for the
media should there be no accountability?

(4) In the article it has been stated that the government tries to muzzle the media by cutting off
advertisements. Here I entirely agree. But what the writer conveniently overlooks is that I issued a strong
press note on 4.2.2013 condemning this practice of governments stopping or curtailing advertisements
merely because the newspaper criticized the government or some minister or official ( see the press note
on my blog). I also said that in a democracy the media has a right to criticize the government. In any
case, I said, if the government wishes to stop or curtail its advertisements in some newspaper it must give
the latter an opportunity of hearing, and then reasons for its decision, otherwise the rules of natural justice
will be violated.
In its issues of 5.2.2013 and 7.2.2013 the Times of India complimented me, and published the views of
several media persons who supported my stand ( see online).

(5) The article takes the stand that there should only be self regulation by the media. In my opinion self
regulation is no regulation, it is an oxymoron. If self regulation were sufficient why should there be the
rampant malaise of paid news, allegations of blackmail, Radia tapes, etc ? Why should there be laws at
all ? Let everybody self regulate.

The truth is that every social activity has to be regulated in the public interest, because one's freedom
cannot go to the extent of damaging society or others. A lawyer is in a free profession, but his license can
be suspended by the Bar Council for professional misconduct, and a doctor's license can be suspended
by the Medical Council for medical misconduct.A Judge can be impeached for misconduct.

Here I must make the distinction between regulation and control. In control there is no freedom, whereas
in regulation there is freedom but subject to reasonable restrictions in the public interest. I am in favour of
regulation, but am opposed to control. This regulation, too, should not be by the government but by an
independent statutory authority, like the Press Council. The Press Council consists of a Chairman and 28
members, 20 of which are representatives of the press ( 5 are members of Parliament, and one each from
the Bar Council of India, UGC and Sahitya Academy). The press representatives in the Press Council are
not appointed by the government but elected democratically by the press bodies.Decisions in the Press
Council are taken by majority vote, and not by me alone. Often I have been overruled by the majority.

At present the Press Council deals only with the print media, but if the electronic media is also brought
within its purview by an amendment to the Press Council Act ( as The Press Council has recommended
several times to the government) there may be 20 representatives of the electronic media also on the
Council ( which can be renamed the Media Council).

Thus, 40 of the 48 members on the Council will be media representatives, and decisions on complaints
will be by majority vote. This will really be a judgment by one's peers. In fact this proposal is more pro
media than that of Lord Leveson, who in his report recommended that media persons should not be on
the Media Council. What reasonable objection can there be to this suggestion ?

The article objects to criticism of content in the media. But what is wrong in such criticism ? Today India's
main problems are socio -economic--massive poverty in about 80% of our people, massive
unemployment, healthcare problems, farmers suicide, malnutrition,etc. as well as rampant casteism,
communalism, and widespread crimes against women like dowry deaths, honour killings, etc.Yet the
media focuses on film stars, cricket, fashion parades,astrology etc as if these are the real problems of the
Indian people. Thus the real problems of the Indian people are sidelined or treated as non issues, and the
non issues are projected as if they are the real issues. Sensationalism, trivialization, etc are the hallmarks
of much ( though not all) of the Indian media today, obviously for T.R.P. rating and profits from
advertisement revenues. Today I read that Hema Malini's younger daughter has been engaged. What a
historical event !

Is not the Indian media behaving largely like Marie Antoinette who said that if the people do not have
bread let them eat cakes.
The Roman Emperors used to say that if you cannot give the people bread give them circuses. Much of
our media seems to say, if you cannot give the people bread give them film stars and cricket. Cricket
today is the opium of the Indian masses, doled out by the media to the gullible public.

Today India is passing through a terrible transitional period in its history,transition from feudal agricultural
society to modern industrial society,which in my opinion will last another 20 years or so. The transitional
era is a very painful and turbulent period in history. If one reads the history of Europe from the 16th to the
19th centuries ( when Europe was passing through its transition) one finds that it was full of turmoil, wars,
revolutions, social chaos, intellectual ferment,etc. It was only after going through this fire that modern
society emerged in Europe.

India is presently going through that fire. We are going through a very painful period in our history, which I
guess will last another 20 years or so. In this transitional period the role of ideas becomes very important,
and therefore the role of the media becomes very important, because the media is not an ordinary
business which deals in commodities, it deals with ideas. It is the duty of all patriotic Indians, including
media persons, to help shorten this transitional period and make it less painful, so that India becomes a
modern, powerful, industrial power, with all its people ( and not just a handful) prosperous and leading
decent lives, with food, employment, healthcare, education, etc available to the masses. For this it is
essential for intellectuals, including the media, to promote modern and scientific ideas and combat
backward and feudal ideas and practices like casteism, communalism and superstitions.

But is the Indian media doing its patriotic duty ? No doubt there are some media persons like P. Sainath
who are doing a great job, but what about others ? Filmstars and cricket dominate much of or media.
Many t.v. channels show astrology, which is promoting superstitions, when the media should promote
scientific ideas. At a time when our nation should be united if we are to progress, a section of the media
promotes communalism by demonizing Muslims and portraying them as terrorists.

Historically, the media arose in Europe in the 18th Century as an organ of the people against feudal
oppression. At that time all the organs of power were in the hands of the feudal authorities. Hence the
people in England and France had to create new organs which would represent their interests. The print
media was one of those powerful organs created by the people. In England, France and America the
media represented the voice of the future, as contrasted to the established feudal organs which wanted to
preserve the status quo. Great writers like Voltaire attacked religious bigotry, Rousseau attacked the
entire feudal social and political system, Thomas Paine proclaimed the Rights of Man.

In my opinion the Indian media should give leadership to the people in the realm of ideas, the way
Voltaire, Rousseau, Thomas Paine, etc did when Europe was passing through its transitional period.
Instead of pandering to the low tastes of the Indian masses our media should seek to uplift its intellectual
level so as to make our masses part of enlightened India.

I do not wish to comment any further on the issue. In fact it is with great reluctance that I have written this
piece only because of the vicious attack on me, twisting and falsifying my views, a methodology to which I
have now become quite accustomed.
Justice Katju
The Court of Last Resort

The Court of Last Resort

It has been felt for quite some time that injustice is being done to a large number of people who have
been languishing in jail either as under trials whose cases have not been heard for several years, or who
have unjustly remained incarcerated, either because:
(1) The police have fabricated evidence against them, or
(2) For want of proper legal assistance, or
(3) Who have had to spend many years in jail and ultimately found innocent by the court.


Many of such persons in jail belong to minorities who have been accused only on suspicion and on pre-
conceived notions that all persons of that community are terrorists. Whenever a bomb blast or such other
terrorist event occurs, the police often is unable to trace out the real culprit, and yet it has to show that it
has solved the crime. Consequently very often the police rushes to implicate and charge a large number
of youths of that minority community on mere suspicion, whose bail application is very often rejected and
consequently they have to spend several years in jail. In such matters either the police often fabricates
evidence against them to justify their acts and secure conviction, or the cases result in acquittal of
innocent accused persons after they have spent several years in jail. A classic case is of that of a young
boy Aamir who was 17 years of age when arrested, and who spent 14 years in jail after which he was
found innocent.

In the 6
th
April 2013 issue of Tehelka there is an excellent article by Shoma Chaudhry entitled , The Fight
for Muslims is fundamental for the survival of Democracy. In this article she has stated that over the past
few years TEHELKA journalists have documented hundreds of stories of innocent Muslims languishing in
jail after being brutally tortured on flimsy or false charges. Each case hides hair raising stories about
prejudice, incompetence and deliberate malafide, and also mentions stories of pain, destroyed lives and
hollowed futures.

Shoma writes that innocent Muslims have been jailed with impunity in India over the past decade
because it was easy to jail them. Within hours of any terror attack, a bunch of Muslim boys would be
arrested, and their names aired in the media as Masterminds. Their guilt was assumed, it did not need to
be proved.

Since 2001 a terrible maxim had seeped into the Indian mainstream: All Muslims may not be terrorist, but
all terrorists are Muslims. It did not matter if you caught the wrong ones. Everyone only wanted the
illusion of security and action taken. Those who raised hard questions were scorned as anti-national.

In my interview with Karan Thapar on Devils Advocate I said that within hours of a terrorist attack in
India many media channels start showing that an email or SMS has been received from Indian
Mujahideen or Jaish-e-Muhammad or Harkat-ul-Jihad, or some other organization having a Muslim
name, claiming responsibility. Now an email or SMS can be sent by any mischievous person. But by
showing this on TV screens, and the next day in print, subtle message is sent that all Muslims are
terrorists, and thus the entire community is demonized.

All this is triggering new cycles of hate and revenge. Despair turns citizens into perpetrators, from the
hunted to the hunter. Young men who have spent long years in jail cannot find jobs or houses to rent
even when acquitted, their families are ostracized, and sisters find themselves unmarriageable because
their brothers have been branded as terrorists.

Unless this cycle of hate is now reversed we are heading for terrible times, for injustice breeds hatred and
violence

Criminal investigation is a science, but unfortunately in our country the police usually is not trained in
scientific investigation nor does it have the equipment for the same. If we read the stories of Sherlock
Holmes, we see how Holmes investigates a crime by promptly going on the spot and studying the finger
prints, blood stains, soil, ashes, handwriting etc. before coming to a scientific conclusion. In recent times it
has been shown on Discovery Channel etc. how the American police investigates a crime. The police
reach the spot and collects the traces of the material there including blood stains, fingerprints, ashes,
fibres, etc. The finger prints are fed into a computer which is connected to a national computer network,
which can often lead to the discovery of the criminal. The blood stains etc. are taken to a laboratory
where they are tested for DNA etc. Even a few microscopic fibres can lead to the discovery of the culprit
by testing them in a laboratory and thus finding out his identity.

All this is usually absent in our police set up and yet the police has to show that it has solved the crime,
otherwise the investigating officer fears suspension for incompetence. Consequently he either implicates
people on suspicion or resorts to the time honoured method of torture or third degree methods to obtain a
confession.

All this is leading to injustice on a large scale. We are not blaming the courts for this because they are
handicapped due to the enormous burden of litigation for which cases linger on for years and years. Also,
unfortunately nowadays the real eye witnesses are afraid to give evidence out of fear of threats or
harassment, and hence the police often fabricates evidence.

The result of all this is that in our country gross injustice is often done, particularly to minorities, and the
time has now come when this great wrong must be set right. Our country is a country of great diversity
and therefore no community must be made to feel that it is being selectively victimised.

This being the situation it has been decided by a group of people headed by Justice Markandey Katju,
former Judge, Supreme Court of India, and the eminent lawyer Mr. Majeed Memon, the film producer and
social activist Mr. Mahesh Bhatt, Mr. Asif Azmi and other like-minded people to setup an organisation
called The Court of Last Resort.

The concept of this idea has come from an organisation founded way back in 1948 by the eminent
American criminal lawyer Erle Stanley Gardner, who later wrote the Perry Mason novels. In his book The
Court of Last Resort, Erle Stanley Gardner mentions about the organisation which he set up consisting
mainly of lawyers, who took up cases of persons whom they thought were wrongly accused or unjustly
convicted. The organisation which we are starting in India will bear the same name The Court of Last
Resort and have its headquarters in New Delhi, with Justice Katju as its patron and will have state units
in all states of India. Such state units will be authorised to appoint district units.

The Court of Last Resort will have the following objects:

(1) To ask the concerned authorities in various states about details of prisoners languishing in jails,
particularly those who have been in jail for long periods, including both under trials and convicts. The
R.T.I. Act can be used in this connection.
(2) To examine the cases of persons, whether of our own accord, or on the representation of someone, and
find out whether there has been injustice in their case, either by the delay in holding the trial, or by a
wrong conviction, and do the needful in this connection, including applying for bail.
(3) To apply for pardon, respite, suspension or reduction of sentence to the President or Governor as the
case may be.
(4) To create awareness in the public about this gross injustice which is being done to a large number of
people.
(5) To educate the police about this state of affairs and change its mentality.
(6) To approach the other concerned authorities with the aim of rectifying this injustice to a large section of
people.
(7) To do such other acts as may be necessary for this purpose.
The organisation appeals to the like-minded people among the public, particularly to lawyers, retired
judges, academicians, students, social activists, professionals, media persons , etc. to help and get
associated with this enterprise.

The formal inauguration of this body will be done through a press conference in the near future.

It is made clear that this is being done for no personal benefit to any of us but purely because of our
sincere desire that justice should be done to everybody, and no section of society is made to feel that it is
being discriminated against.
'The Court of Last Resort'

We will proceed slowly in setting up the Court of Last Resort (CLR). The headquarters will be in Delhi, but
we propose to set up state units in every state. Most of the work of CLR will be done by the state units,
with the centre at Delhi playing an overseeing role. We will set up offices in Delhi and all states, where the
complaints can be received. Tens of thousands of complaints will pour in in connection with people in jails
(there is so much injustice in India), so we will need lots of volunteers, particularly from youth,
academicians, lawyers, media, social activists, professionals, etc who will examine each complaint and
send recommendations to the state unit which will then decide the course of action. Mr. Fali Nariman, the
eminent Supreme Court lawyer, has agreed to be the Chairman of CLR. Mr. Majeed Memon, the eminent
criminal lawyer, will be one of the Vice Chairmen, and Mr. Asif Azmi will be the general secretary. Mr.
Mahesh Bhat, the famous film producer and others have agreed to be associated with us. The inaugural
function of CLR will be in a press conference at my residence on 15th April at 4.30 p.m. We need the
good wishes and support of all enlightened, patriotic and freedom loving people.

I have been asked from where we get the jurisdiction to set up this body ? My answer is : we get
our mandate from the people, who are supreme in a democracy.
Appeal for Pardon/Commutation of Death Sentence to Devender Pal Singh Bhullar.

April 13, 2013
1. H.E. The President of India,
Rashtrapati Bhavan,
New Delhi

2. The Honble Prime Minister of India,
7, Race Course Road,
New Delhi.

3. The Honble Home Minister of India,
2, Krishna Menon Marg,
New Delhi.

4. Lt. Governor of Delhi
Raj Bhavan,
Delhi.


Re: Appeal for Pardon/Commutation of Death Sentence to Devender Pal Singh Bhullar.

Your Excellency,

I am appealing to you for Pardon/Commutation of the to death sentence awarded to Devender Pal Singh
Bhullar in connection with the 1993 Delhi bomb blast case.

In its judgment of 2002 by a 2-1 majority the Supreme Court upheld the death sentence to Bhullar.
Thereafter, the appeal for mercy under Article 72 Constitution of India was rejected. He then filed a
petition in the Honble Supreme Court against the order rejecting his mercy petition on the ground of
delay in the proceeding but that petition was rejected by the Supreme Court yesterday. I am appealing to
you for Pardon/commutation of the death sentence.

In this connection, I wish to state as follow:
(1) There is nothing in Article 72 Constitution of India to debar a second mercy petition if the first has
been rejected.

(2) Article 72 does not state who can make the mercy petition. Hence, I as a citizen of India am also
entitled to move this mercy petition.

(3) The reasons for making this mercy petition are as fellow:

(a) By the judgment dated 22.3.2002 the Honble Supreme Court rejected Bhullars appeal against his
death sentence by a 2-1 majority, not by a unanimous decision. The senior most judge on the bench,
Justice M.B. Shah, acquitted Bhullar. I have carefully perused the judgment of Justice M. B. Shah. Justice
Shah has noticed that the only evidence against Bhullar is his alleged confessional statement to the
investigating office. Justice Shah has observed that when the rest of the accused who are named in the
confessional statement are not convicted or tried, this was not a fit case for convicting the appellant solely
on the basis of the so called confessional statement recorded by the police officer

Justice Shah has noticed in his judgment that there was nothing on record to corroborate the aforesaid
alleged confessional statement.

Justice Shah in his judgment has further observed:

In any set of circumstances, none of the main culprits i.e. Harnaik or Lahoria is convicted. In these set of
circumstances, without there being corroborative evidence, it would be difficult to solely rely upon the so-
called confessional statement and convict the accused and that too when the confessional statement is
recorded by the investigating officer.

For this purpose, it would be worthwhile to refer to the decision in Topandas v. State of Bombay (AIR
1956 SCC 33 para 6):
Criminal conspiracy has been defined in Section 120A Penal Code:
When two or more persons agree to do or cause to be done (i) an illegal act, or (ii) an act which is not
illegal by illegal means, such an agreement is designated a criminal conspiracy.

By the terms of the definition itself, there ought to be two or more persons who must be parties to such an
agreement and it is trite to say that one person alone can never be held guilty of criminal conspiracy for
the simple reason that one cannot conspire with oneself. If therefore, 4 named individuals were charged
with having committed the offence under Section 120-B Penal Code and if three out of these 4 were
acquitted of the charge, the remaining accused, who was the accused No. 1 in the case before us, could
never be held guilty of the offence of criminal conspiracy.

The court further discussed the aforesaid question and referred to the decision in R. V. Plummer [1902
(2) KB 339 (C)] and held as under:
(1902) 2 KB 339 (C) which is cited in support of this proposition was a case in which, on a trial of
indictment charging three persons jointly with conspiring together, one person had pleaded guilty and a
judgment passed against him, and the other two were acquitted. It was held that the judgment passed
against one who had pleaded guilty was bad and could not stand. Lord Justice Wright observed at p. 343:
There is much authority to the effect that, if the appellant had pleaded not guilty to the charge of
conspiracy, and the trial of all three defendants together had proceeded on that charge, and had resulted
in the conviction of the appellant and the acquittal of the other alleged co-conspirators, no judgment could
have been passed on the appellant, because the verdict must have regarded as repugnant in finding that
there was a criminal agreement between the appellant and the others and none between them and him:
see Harison v. Errington , (1627) Poph 202 (D), whereupon an indictment of three for riot, two were
found not guilty and one guilty, and upon error brought it was held as a void verdict, and said to be like
to the case in 11 Hen 4 c.2 conspiracy against two, and only one of them is found guilty, it is void, for one
alone cannot conspire.

In this view of the matter, when rest of the accused who are named in the confessional statement are not
convicted or tried, this would not be a fit case for convicting the appellant solely on the basis of so-called
confessional statement recorded by the police officer.

Finally, such type of confessional statement as recorded by the investigating officer cannot be the basis
for awarding death sentence.

It is true that the majority view of the bench has to be accepted as the judgment of the court, not the
minority view. However, the considerations in pardon proceedings under Article 72/161 of the Constitution
are different from those in judicial proceeding. In the Constitution Bench judgment of the Supreme Court
in Kehar Singh Vs Union of India A.I.R. 1989 S.C. it was observed:

We are of the view that it is open to the President in the exercise of the power vested in him by Art. 72 of
the Constitution to scrutinize the evidence on the record of the criminal case and come to a different
conclusion from that recorded by the court in regard to the guilt of, and sentence imposed on, the
accused. In doing so, the President does not amend or modify or supersede the judicial record. The
judicial record remains intact, and undisturbed. The President acts in a wholly different plane from that in
which the Court acted. He acts under a constitutional power, the nature of which is entirely different from
the judicial power and cannot be regarded as an extension of it. And this is so, notwithstanding that the
practical effect of the Presidential act is to remove the stigma of guilt from the accused or to remit the
sentence imposed on him. In U.S. v. Benz, 75 L. Ed. 354 at 358 Sutherland, J. observed: "The judicial
power and the executive power over sentences are readily distinguishable. To render judgment is a
judicial function. To carry the judgment into effect is an executive function. To cut short a sentence by an
act of clemency is an exercise of executive power which abridges the enforcement of the judgment, but
does not alter it qua a judgment. To reduce a sentence by amendment alters the terms of the judgment
itself and is judicial act as much as the imposition of the sentence in the first instance." The legal effect of
a pardon is wholly different from a judicial supersession of the original sentence. It is the nature of the
power which is determinative. In Sarat Chandra Rabha and Others v. Khagendranath Nath and Others,
[196] 2 S.C.R. 133 at 138-140, Wanchoo, J. speaking for the Court addressed himself to the question
whether the order of remission by the Governor of Assam had the effect of reducing the sentence
imposed on the appellant in the same way in which an order of an appellate or revisional court has the
effect of reducing the sentence passed by a trial court, and after discussing the law relating to the power
to grant pardon, he said:

" ....Though, therefore, the effect of an order of remission is to wipe out that part of the sentence of
imprisonment which has not been served out, and thus in practice to reduce the sentence to the period
already undergone, in law the order of remission merely means that the rest of the sentence need not be
undergone, leaving the order of conviction by the court and the sentence passed by it untouched. In this
view of the matter the order of remission passed in this case though it had the effect that the appellant
was released from jail before he had served the full sentence of three years' imprisonment and had
actually served only about sixteen months' imprisonment, did not in any way affect the order of conviction
and sentence passed by the Court which remained as it was .. "

and again:

" .....Now where the sentence imposed by a trial court is varied by way of reduction by the appellate or
revisional court, the final sentence is again imposed by the court; but where a sentence imposed by the
court is remitted in part under section 401 of the Code of Criminal Procedure that has not the effect in law
of reducing the sentence imposed by the court, though in effect the result may be that the convicted
person suffers less imprisonment than that imposed by the court. The order of remission affects the
execution of the sentence imposed by the court but does not affect the sentence as such, which remains
what it was in spite of the order of remission....."

It is apparent that the power under Art. 72 entitles the President to examine the record of evidence of the
criminal case and to determine for himself whether the case is one deserving the grant of the relief falling
within that power. We are of opinion that the President is entitled to go into the merits of the case
notwithstanding that it has been judicially concluded by the consideration given to it by this Court.

(b) A perusal of the judgment of the Constitution bench (five judge bench) decision by the Supreme Court
in Kehar Singhs case shows that the President can scrutinize the evidence in the case and come to a
different conclusion regarding the guilt and sentence of the accused.
Hence even though the judgment of the Supreme is the judgment of the majority of the 3 judge bench in
Bhullars case, the President can agree with the minority view of Justice Shah.

(c)Bhullar has been in detention since his arrival in India in January 1995 i.e. over 18 years. I am not
questioning the Supreme Court verdict delivered yesterday. However I respectfully submit that Bhullar
has already suffered prolonged mental agony and trauma for this long period in death row with a
damocles sword hanging over his head. Hence in pardon proceeding under Article 72 this is also one of
the factors, among others, which the President should take into account in deciding this petition under
Article 72.

(d) I also understand that Bhullar has been having some chronic psychiatric problem. In these
circumstances, considering all of them cumulatively, I respectfully request Your Excellency to
pardon/commute the death sentence of Bhullar who has been on death row for a long period.

I conclude by referring to Portias famous speech in Shakespeares The Merchant of Venice where she
pleaded that justice should be tempered with mercy.

Regards,
(Markandey Katju)
(Former Judge, Supreme Court of India)
Appeal to the President of India


April 18, 2013
H.E. The President of India,
Rashtrapati Bhavan,
New Delhi.


Re: My appeals for pardon/respite for (1) Issaq Mohammed Hajwane (2) Sharif Abdul Gafoor Parker (3)
Zaibunnisa Kazi (4) Devender Pal Singh Bhullar and (5) Sanjay Dutt.

Your Excellency,

I already sent to you my appeals for pardon/respite to the above mentioned persons, which have
been received in your office. I pray that till the decision of my appeals for pardon Your Excellency should
grant respite, reprieve or suspension of the sentence of these 5 persons till my pardon appeals are finally
decided.
In this connection I may refer to Article 72 (1) of the Constitution which states:
The President shall have the power to grant pardons reprieves, respites or remissions of punishment or
to suspend, remit or commute the sentence of any person convicted of any offence.
A perusal of Article 72 (1) shows that the President has not only power to grant pardon, but he
has also the power to grant respite, reprieve or suspension of the sentence.

It is quite natural that before Your Excellency takes a final decision on my pardon petition Your
Excellency may like to consult legal and administrative experts and would want the opinion of the Prime
Minister, whom I met day before yesterday in his office in connection with the same matter. Hence it is
quite likely that my pardon appeals may take some time to decide. Hence I respectfully request that Your
Excellency may grant respite, reprieves or suspension of the sentence to these persons till the pardons
appeal are decided, otherwise the pardon appeals may become infructuous. Four out of the five
persons for whom I appealed for pardon are concerned with the Bombay bomb blast case of 1993. Three
of them are very old and may not survive in jail.

For example, Issaq Mohammed Hajwane is now 89 years of age and I have annexed with my pardon
appeal his photographs showing that his body is almost a skeleton and he has to be bodily carried for
going to the bath room. Similarly, Gafoor Parker whose photographs were also annexed to my earlier to
you is about 80 years age. As regards Zaibunnisa Kazi, she is 73 years old having many medical
problems, and can hardly walk and talk. I am afraid these old people will not survive in jail.

As regards Devender Pal Singh Bhullar, if he is hanged my pardon appeal will become
infructuous..
I also prayed for pardon to Sanjay Dutt for the reason given in my letter to you dated March 28,
2013.

I therefore once again request you to grant respite, reprieve or suspension of the sentence to the
above mention persons till my pardon petitions are decided, and direct that the sentences of these 5
persons by the Supreme Court shall not be implemented till final disposal of my pardon appeals.

Yours faithfully,


(Justice Markandey Katju)
Former Judge,
Supreme Court of India
New Delhi
Republics in Ancient India

Our country India is a fascinating country. In this piece I wish to refer to the overwhelming material to
show that in many regions there were republics, that is, areas without kings, in ancient India.

This material consists of (1) The Mahabharata,(2) The Buddhist Canon,both in Sanskrit and in Pali, (3)
The accounts of Greek and Roman historians regarding Alexander the Great's invasion of India in 326
B.C. (4) Panini's Ashtadhyayi, (5) Kautilya's Arthashastra, etc

Let us first take the Mahabharat. In Chapter 107/108 of Shantiparva there is a detailed narration by
Bheeshma Pitaamah to Yudhishthir about the features of republics (called ganas) in India. Bheeshma
states that when there is unity among the people of a republic that republic becomes powerful and its
people become prosperous. Such people are intelligent, brave,enthusiastic, honest, and trained in the
use of arms. They do not cheat each other, and help those in distress. This way they prosper.
Having said this Bheeshma then narrates how republics are destroyed :

" Bhedey ganaah vineyshur hi bhinnaastu sujayaah paraih
Tasmaat sanghaatyogen prayateran ganaah sadaa"

I.e. "Republics are destroyed only by internal conflicts between the people
Therefore republics should always seek to maintain good relations among the people"

and also :

"Teshaam ayonyabhinnaanaam swashaktim anutishthataam
Nigrahah panditaih kaaryah kshipramev pradhaanatah"

which means :

" Therefore the wise people in a republic should crush the chiefs of the wicked persons who try to divide
the people"

This is a fascinating narrative in the Mahabharat. It shows that in ancient India there were not only
kingdoms (like Hastinapur and Indraprastha) but also regions where there was no king but a republic. As
to details about the organization and functioning of these republics the material available is vague and
scanty, but that there were republics can not be doubted. As long as people of these republics were
united they were strong and prosperous, but they became endangered when there were dissensions
among the people.

The Buddhist Canon, both in Sanskrit (in which much of Mahayana Buddhist literature was written) and in
Pali (in which much of Hinayana literature was written) has extensive reference to republics in India, e.g.
the Lichchavi city of Vaishali. Thus in the Pali Buddhist work 'The Mahanibbana Sutra' it is mentioned that
when King Ajaatshatru of Magadha was planning to attack the Vajjian democratic republic 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".

Similarly, in the Avadaana Shatak, a Sanskrit Buddhist text of the second century A.D. 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 deshaah ganaadheenaah, kechit raajaadheenah, iti"
which means :
" Your Majesty, certain areas are under a republican form of government, while others are under kings"

Alexander the Great's invasion of India in 326 B.C. has provided a lot of material to show that there were
many parts of India under republican forms of government, not kings. The Greek historian Diodorus
Siculus writes that at the time of Alexander's invasion most cities in North West India had democratic
forms of government (though some areas were under kings,e.g. Ambhi and Porus) and this is also
mentioned by the historian Arian. Alexander's army faced its fiercest resistance from the armies of these
republics,e.g. the Mallas, and gained victory only after suffering huge casualties.

Panini and Kautilya have also referred to these republics (ganas) in many parts of India.

I have referred to all this to show that if today's Indian Repulic and its people wish to be strong and
prosperous they must be united, and not divided on the basis of religion, caste, language, region, race,
etc as some wicked people are trying to do.
Sex workers and Poverty
" Pinhaa tha daam-e-sakht qareeb aashiyaan ke
Udhne hi na paaye the ki giraftaar hum hue "

The above sher (couplet) of the great Urdu poet Mirza Ghalib, was used by me in my order in Budhadev
Karmaskar vs. State of West Bengal, Cr.Appeal 135/2010 (see 'sex workers' on my blog
justicekatju.blogspot.in).

The word 'pinha' means 'hidden' or 'concealed', 'daam' means 'net', 'sakht' means 'hard' or 'cruel', 'qareeb'
means 'near', 'aashiyaan' means 'nest', and 'giraftaar' means 'caught' or 'arrested'.

The sher therefore means :

"Near the nest was the hidden cruel net (of a hunter)
Even before the chick could take its first flight it was caught".

In India perhaps there are 20 million or more sex workers (prostitutes). They have been driven into this
profession not because they enjoy it but because of abject poverty. The massive poverty of about 80% of
our population of 1200 million people is the real cause of exploitation
of women. To fill their stomachs these poor girls have to sell their bodies. These girls should have had a
life of happiness, but instead they get caught in the flesh trade because of their poverty at a very early
age and their lives are ruined.

I have compared these innocent young girls to the chick which is caught in the net of a cruel hunter in its
very first flight.

Urdu poetry has, among other qualities, a unique feature. An Urdu verse can be given a meaning by the
reader which was never intended by the writer. Surely Ghalib, when he wrote the above couplet, never
thought it could be applied to sex workers !
On the demise of Justice J.S. Verma
On the demise of Justice J.S. Verma
(former Chief Justice of India)
By Justice Markandey Katju(former Judge, Supreme Court of India)
Justice J.S. Verma, who passed away recently, was one of the giants of the Indian Judiciary,who set very
high standards of integrity on the bench & even thereafter He was a role model for many of us, who would
often seek his advice even after he had retired. Justices Venkatchaliah, Krishna Iyer, and Verma have
always been our father figures.
I remember that when I was on the bench of the High Court and Supreme Court I would often contact him
confidentially and seek his guidance.Once while a Supreme Court Judge I received an invitation from a
respected dignitary in Delhi for a mushaira he had organized. I am very fond of Urdu poetry, and was
seriously intending to go there, but I was in two minds, and hence I telephoned Justice Verma (who had
retired a longtimeback) to seek his advice. He told me that a general principle for Judges was that if they
were in two minds whether to accept an invitation or not, a Judge should decline it, because by doing so
he lost nothing, but by accepting it he took a risk. He also said that Judges should lead a reclusive life if
they wanted to be respected.
No one has ever lifted a finger at Justice Verma's integrity. Even after retirement he refused arbitration or
consultation work, even though he could have earned crores by it (as many retired Judges are doing). His
advice was sought regularly by one and all, including the Government. His completion of the report on
crimes against women in 29 days is a model as to how such reports should be made.
In his sad demise the entire legal fraternity as well as the country has suffered a great loss.
India and Pakistan
It is my firm belief that India and Pakistan (and Bangladesh) must reunite under a strong secular modern
minded government which does not tolerate religious extremism, and crushes it with an iron hand. I know
this will not happen in the near future, because those who divided us will not let us easily reunite. But I am
planting a seed which will grow up into a tree and bear fruit in 15-20 years. It will not bear fruit
immediately, but unless it is planted now, there will be no fruit in the future.This will require patiently
educating the people for a long time about the truth.

You must be mad at me for calling Pakistan a fake, artificial country. Let me clarify that I believe that 99%
people of all countries are good, and therefore 99% people of Pakistan ( and India) are good. I am a
disciple of the great philosopher Rousseau who believed that most people are good. However, most
people are also simpletons, and can be befooled and taken for a ride by wicked people. That is what was
done by the British to our people (see online 'History in the Service of Imperialism' by B.N.Pandey). There
was zero% communalism in 1857, i.e. before the Mutiny, but after the Mutiny the British decided that the
only way to control India was to spread communal hatred between Hindus and Muslims. This divide and
rule policy was followed relentlessly and systematically by the British after 1857. The British Collector
used to secretly call the Hindu Pandit, give him some money, and ask him to speak against Muslims, and
similarly he would secretly call the Muslim Maulvi, give him money, and ask him to speak against Hindus.
Communal riots were artificially engineered. This was done year after year, decade after decade. In 1909
separate electorates were introduced by the Minto-Morley 'Reforms'. All this resulted in the horrors of
Partition (read the stories about Partition by Manto). Even after 1947 there are wicked people who are
spreading communalism.

Unless we reunite there will never be peace. The 2 nation theory on the basis of which Pakistan was
created is bogus. Whenever I meet my Pakistani friends I feel no different from them, we speak the same
language, we look like each other, and we share our love for Urdu. How are we two different nations ? I
will never accept this fraud. It was high time someone had to speak the truth, and it seems it was for me
to bell the cat.
Why I am not the Devil's advocate
Portia or Shylock?
by Justice Markandey Katju

Kevalam shaastram aashritya na kartavyo hi nirnayah
Yuktiheeney vichaare tu, dharmahaani prajaayate

The decision should not be given merely by following the letter of the law
For if the decision is wholly inappropriate, injustice will follow

Many questions have arisen over my appeal to the Governor of Maharashtra to pardon Sanjay
Dutt under Article 161 of the Constitution. Hence I am clarifying my stand.

1. It is alleged that I am appealing for him because he is a celebrity. This is wholly untrue. I make no
distinction between celebrities and non celebrities. I made appeals for release of Gopal Das, Sarabjit
Singh, Khalil Chishty, and many others who were non-celebrities. Some people have alleged I am a fan of
Sanjay Dutt. This again is incorrect. Personally, I do not see films, and have not seen one for about 40
years. I do not know Sanjay, and am not his relative or friend. How can I be his fan?

2. It is alleged that Sanjay should not be pardoned because many people were killed in the 1993 Mumbai
bomb blasts. But Sanjay has not been held by the Courts to be a terrorist or involved in the bomb blasts.
The only charge found proved against him was having illegal weapons in his possession. But as pointed
out in paragraph 70 of the Supreme Court judgment In the case of Sanjay Dut, the Designated Court
took a view on the basis of his own confession that the weapons were not acquired for any terrorist
activity but they were acquired for self defence, and therefore acquittal was recorded in respect of the
charge under Section 5 of TADA. We respectfully agree with the same.
Now once the Supreme Court has held that Sanjay was not involved in the 1993 bomb blasts
does it behove people to keep on harping that many people were killed and wounded in those blasts in
which Sanjay had no hand.

3. It is then alleged that the law should be the same for everyone. The answer is that though the law is the
same, the facts may be different. Hence each individual case has to be examined on its own merits. In
the case of Sanjay the facts are that (a) he has undergone 18 months imprisonment, and after release on
bail it took him about 5 years to restore his damaged career, and during this period he was often
ostracized and treated as a terrorist, he did not get film offers (because film producers thought he may not
complete the movie, as he may again go to jail). He could not get bank loans, he had to take permission
from the court every time to go for foreign shooting, etc. He had to suffer several other tribulations and
indignities during the last 20 years. (b) He has got remarried and has 2 small children (c) In the last 20
years when the case was going on he was not found to have done anything wrong, rather he has done
good social work. A person changes in 20 years. So should he be sent back to jail for foolishness done a
long time back when he was a young man?

Yes, if other co-accused deserve pardon they should also get it, and I am seriously considering
the case of Zebunnesa Kazi, whom I prima facie think deserves pardon, though I am collecting
more material about her before I make up my mind.

4. It is alleged that if pardon is granted to Sanjay it will subvert the judicial verdict. This argument overlooks
the fact that under our Constitution apart from the judicial process there is also a pardon/reduction of
sentence process under Articles 72 and 161. The considerations in the pardon process are different from
those in the judicial process. For instance, in the judicial process the court has no discretion to pass a
sentence below the minimum prescribed by law. But since the power of pardon is a Constitutional power,
the same restriction does not apply to it, because a Constitutional provision cannot be curtailed by a
statutory provision. Hence the Governor or President can grant pardon even if the convict has not served
the minimum sentence as in the case of Nanavati. And humanitarian considerations are also relevant in
the pardon proceedings.

Had Sanjay Dutt not gone to jail for a day nor been subjected to various forms of harassment for the last 20
years I would not have appealed for pardon merely because of Munnabhai or his parents good social
work. But Sanjay has, no doubt in different forms, served the sentence, as pointed out above.

5. As regards the objection that the appeal for pardon can only be to the President of India in view of Entry
5 of list 1 of the 7
th
Schedule read with Article 72 and 161 of the Constitution, to avoid this controversy, I
suggest a separate appeal to the President by way of abundant precaution.

Therefore the question boils down to this: Should one be a Shylock who demands a pound of
flesh, or should one be a Portia who pleads that justice should be tempered with mercy. Let the ,
people, and the concerned authority, decide.

( An edited version of this article is published in Hindustan Times on 27/03/2013
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.
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.
Some questions for Justice Lahoti

Justice Lahoti, the former Chief Justice of India, when contacted by some media people about my
statement which was published on my blog and in Times of India yesterday, generally remarked that he
has never done anything wrong in his life. He has not gone into any specifics, so let me put him some
specific questions :

1. Is it , or is it not, correct that I first wrote him a letter from Chennai, stating that there were serious
allegations of corruption about an Additional Judge of Madras High Court, and therefore he ( Justice
Lahoti ) should get a secret intelligence enquiry held against that Additional Judge,and thereafter I
personally met Justice Lahoti at Delhi and again requested for a secret IB enquiry against the Additional
Judge about whom I had received several complaints, and from several sources, that he was indulging in
corruption ?

2. Is it, or is it not, correct that on my request Justice Lahoti ordered a secret IB enquiry against that
Judge ?

3. Is it, or is it not correct, that a few weeks after I personally met him in Delhi and then returned to
Chennai, he telephoned me from Delhi ( while I was at Chennai ) and told me that the IB, after thorough
enquiry, gave a report that indeed the Judge was indulging in corruption ?

4. Is it , or is it not, correct that after receiving the adverse IB report against the Additional Judge, Justice
Lahoti, who was then Chief Justice of India, called a meeting of the 3 Judge Supreme Court Collegium,
consisting of himself, Justice Sabarwal, and Justice Ruma Pal, and the 3 Judge Collegium, having
perused the IB report recommended to the Government of India not to extend the 2 year term of that
Additional Judge ?

5. Is it , or is it not, correct that after that recommendation of the 3 Judge Collegium of the Supreme Court
was sent to the Government of India, he ( Justice Lahoti ), on his own, without consulting his 2 other
Supreme Court Collegium colleagues, wrote a letter to the Government of India asking the Government to
give another 1 year term as Additional Judge to the concerned Judge ?

6. If indeed the IB reported, after an enquiry, that the Judge was indulging in corruption, why did he (
Justice Lahoti ) recommend to the Government of India to give that corrupt Judge another term of 1 year
as Additional Judge in the High Court ?

Some people have commented about the timing of my statement. What happened was that some
Tamilians had commented on Facebook that I am posting several matters on my Facebook post, so I
should also post some of my experiences in Madras High Court. Then I started posting about my
experiences there, and it was at time I remembered this experience too, and posted it.
How a corrupt Judge continued in the Madras High Court
There was an Additional Judge of the Madras High Court against whom there were several allegations of
corruption. He had been directly appointed as a District Judge in Tamilnadu, and during his career as
District Judge there were as many as 8 adverse entries against him recorded by various portfolio Judges
of the Madras High Court. But one Acting Chief Justice of Madras High Court by a single stroke of his pen
deleted all those 8 adverse entries, and consequently he became an Additional Judge of the High Court,
and he was on that post when I came as Chief Justice of Madras High Court in November 2004.

That Judge had the solid support of a very important political leader of Tamilnadu. I was told that this was
because while a District Judge he granted bail to that political leader.

Since I was getting many reports about his corruption, I requested the Chief Justice of India, Justice
Lahoti, to get a secret IB enquiry made about him. A few weeks thereafter, while I was in Chennai, I
received a call from the Secretary of the CJI saying that the CJI wanted to talk to me. Justice Lahoti then
came on the line and said that what I had complained about had been found true. Evidently the IB had
found enough material about the Judge's corruption.

Since the 2 year term as Additional Judge of that person was coming to an end I assumed he would be
discontinued as a Judge of the High Court in view of the IB report. However what actually happened was
that he got another 1 year appointment as an Additional Judge, though 6 other Additional Judges who
had been appointed with him were confirmed and made permanent Judges of the High Court.

I later learnt how this happened. The Supreme Court Collegium consists of 5 seniormost Judges for
recommending names for appointment as a Supreme Court Judge, and 3 seniormost Judges for dealing
with High Courts.

The 3 senior most Judges in the Supreme Court at that time were the Chief Justice of India, Justice
Lahoti, Justice Sabarwal, and Justice Ruma Pal. This Supreme Court Collegium recommended that in
view of the adverse IB report the Judge should be discontinued as a High Court Judge after his 2 year
term was over, and this recommendation was sent to the Central Government.

The Central Government at that time was the UPA Government. The Congress was no doubt the largest
party in this alliance, but it did not have a majority in the Lok Sabha, and was dependent on support by it
allies. One of such ally was the party in Tamilnadu which was backing this corrupt Judge. On coming to
know of the recommendation of the 3 Judge Supreme Court Collegium they strongly objected to it.
The information I got was that Prime Minister Manmohan Singh was at that time leaving for New York to
attend the U.N. General Assembly Session. At the Delhi airport he was told by the Ministers of that party
of Tamilnadu ( who were Congress allies ) that by the time he returns from New York his government
would have fallen as that Tamilnadu party would withdraw support to the UPA ( for not continuing that
Additional judge ).

On hearing this Manmohan Singh panicked, but he was told by a senior Congress minister not to worry,
and he would manage everything. That Minister then went to Justice Lahoti and told him there would be a
crisis if that Additional Judge of Tamilnadu was discontinued. On hearing this Justice Lahoti sent a letter
to the Government of India to give another term of 1 year as additional Judge to that corrupt Judge, ( I
wonder whether he consulted his two Supreme Court Collegium members ),and it was in these
circumstances this corrupt Judge was given another 1 year term as Additional Judge ( while his 6 batch
mates as Additional Judges were confirmed as permanent Judges ).

The Additional Judge was later given another term as Additional Judge by the new CJI Justice Sabarwal,
and then confirmed as a permanent judge by the next CJI Justice K.G. Balkrishnan, but transferred to
another High Court.

I have related all this to show how the system actually works, whatever it is in theory. In fact in view of the
adverse IB report the Judge should not even have been continued as an Additional Judge
My Experiences as Chief Justice of Madras High Court
I was Chief Justice of the Madras High Court in 2004-2005. Some Tamilians have requested me to write
something about my experience there on facebook.

When I received the order of the President of India appointing me Chief Justice of Madras High Court in
November 2004 I was at Allahabad as Acting Chief Justice of that Court.

I telephoned the Madras High Court and spoke to the Acting Chief Justice, Justice N.Dinkar. Since I was
reaching Chennai on Friday at about 1 or 1.30 p.m. I asked him to request all brother and sister Judges of
the Court not to come to the airport to receive me, as it was a working day, and it would not be proper to
abandon their Courts at working hours. I remembered reading the autobiography of Chief Justice Chagla
of Bombay High Court, who wrote that when the Chief Justice of U.S. Supreme Court, Earl Warren, came
to Bombay during Court hours of the Bombay High Court, Chief Justice Chagla sent the Registrar of the
High Court to the airport to receive him. After Court hours Chief Justice Chagla went to see Chief Justice
Warren, and apologized for not personally coming to the airport to receive him as it was court hours.
Chief Justice Warren then told Chief Justice Chagla that he acted rightly, and in America the Judges do
the same.

I was told that there was a practice in the Madras High Court for all the Judges coming to the airport to
receive the new Chief Justice even during Court hours, but I thought that this would not be appreciated by
the public, as they would think the Judges are doing sycophancy of the Chief Justice. I told Justice Dinkar
that the Judges were welcome to meet me after Court hours at my residence. Accordingly, only lawyers
and the Registry officials received me at the airport.

The Judges came to meet me at my residence after Court hours, and we had long talks. I told them they
would never need an appointment to meet me, and, unless I was otherwise engaged, could meet me at
my residence or chamber whenever they wanted to, and I said the same to the officials of the various
lawyers associations.

I was given a warm welcome by the bench and bar in a function and dinner.

At that time the High Court had a sanctioned strength of 49 Judges ( it is now 60), but there were only 26
incumbents, and some more retirements were to take place soon.
A bench of the High Court had recently been created in Madurai, and the rules required that at least 5
Judges should sit there.

Now Madurai was a small town as compared to Chennai. All Judges wish to stay in big cities as there are
better educational and job opportunities for children in big towns. So no Judge wanted to sit for long in
Madurai. I remember receiving a telephone call from a Judge sitting in the Madurai bench who started
crying over the telephone, and said that the previous Chief Justice had posted him in Madurai without his
consent, and he had been there for 3 months and had developed blood pressure. I told him that if he
could wait for a few days i was going to create a system, after consulting all Judges, about sitting of
Judges in the Madurai bench ( till then there appeared to be none ).

I constituted a committee of the 3 senior most judges to consider the matter and give me their report at
the earliest. This report was then placed before the Full Court of the High Court, and broadly confirmed.
Under this system, 5 Judges would go to Madurai for 2 months, and on their return, the next batch of 5
Judges would go. But I never posted any Judge without taking his consent. After all, a Judge may have
personal problems which made it difficult to leave Chennai at a particular time. I also told the Judges that
if any of the 5 Judges sent to Madurai had an emergency which required him/her back in Chennai before
his 2 month posting was over he could inform me and I would personally go and replace him for the
balance period.

Before going to Chennai I had spoken on telephone to Justice Venkatachaliah to seek his blessings, as I
have always regarded him as a father figure. He told me that in Madras I must give respect to each and
every one of the brother and sister Judges.

Unfortunately, many Chief Justices of High Courts treat brother and sister Judges as subordinates. I am
told about one Chief Justice that he would sometimes telephone a brother Judge at 10 p.m and tell him,
without taking his consent, that he had to sit next day in some distant bench, for which a flight had to be
taken the same night or early next morning. To my mind this was not proper. The Chief Justice is only first
among equals, and not a headmaster.

Following the advice of Justice Venkatachaliah, I always gave respect to brother and sister Judges. I told
them that we are one family, their problem is my problem, and vice versa. I would never compel a Judge
to sit in Madurai, or do something, without taking his/her consent.

Justice Venkatachaliah also gave me another invaluable advice. He told me that many Chief Justices
think that their main job is administrative, and they neglect judicial work. This was a fallacy. He said that
the main job of the Chief Justice was to give leadership to the Court on the judicial side, by giving
outstanding judgments. Following this advice i delegated almost all administrative work to committees of
brother and sister Judges. After all, they were local people who knew about Madras High Court, whereas
I was a stranger. Also, this relieved me of administrative work so that I had more time to write judgments.

One of the first things which was done by me was to constitute a 3 judge committee to allot lawyers
chambers in the new building which had been built for this purpose, but for some reason was lying
unoccupied for 3 years. The committee of Judges did an outstanding job, and within two months
chambers were allotted to lawyers in accordance with a rational system.
As I mentioned before, almost half the posts of Judges in Madras High Court were lying vacant when I
came to Chennai, and they had to be filled in. I was determined to have good judges in the High Court.
After all, an institution is really the human personnel who are manning that institution. A High Court is not
the beautiful building of the Court, or the green lawns or colourful curtains. A High Court is the Judges
who are manning it, they should be first class people.
Although under the decision of the Supreme Court in the Judges Case only the Chief Justice and 2
seniormost judges of the High Court were to recommend names for appointment, I requested the first 12
judges in seniority to give me a list of lawyers they thought deserved to be elevated, and I also consulted
about 5 or 6 very senior lawyers. Some names were common in many lists, but enquiries were made
even about them. In this way after about 2-3 months daily excercise a consensus of 20 names emerged,
and I recommended these. I told the Chief Justice of India, Justice Lahoti, about the methodology I had
followed, and said that none of these persons recommended had any connection in any manner with me.
So it was now entirely upto him to accept them or reject them.

I must say to the credit of the then Chief Minister, Ms. Jayalalitha ( who is also the present Chief Minister
)that she never interfered in this process, and never pressurized me to recommend any name for
Judgeship, nor did she ever interfere with judicial functions in any manner.Throughout my stay as Chief
Justice there was never any problem, as she respected the independence of the judiciary.
I regret that I cannot say the same about another political party in Tamilnadu, who, through their
representatives put tremendous pressure on me to recommend certain names for Judgeship whom I
found to be totally undeserving. Some of these persons were never even seen in courts, though
technically they were enrolled as lawyers. These were obviously party men of that political party which
wanted to pack the Madras High Court with its men., but I refused to succumb to this pressure.

I had taken an oath to myself that I would do my duty to Madras High Court, although my parent High
Court was Allahabad High Court. The maximum punishment which could be given to me was to refuse to
make me a Supreme Court Judge, but I was prepared for this punishment, and would do my duty to
Madras High Court, come what may.
On receiving my 20 recommendations the Supreme Court Collegium approved 17 of them, which was a
record. But the same political party which sought to pressurize me would not let these appointments go
though, and ultimately it was on a P.I.L. by the Madras High Court Advocates Association and an order of
the Supreme Court that those appontments of 17 Judges was made, which was a record for Madras High
Court. These Judges had been carefully scrutinized by me and my Collegium members before
recommending them, and I am happy to note that most of them have justified my expectations.
I will write more about my experiences in Tamilnadu in subsequent posts, but I would like to add here that
the people of Tamilnadu throughout my stay there gave me great love and affection, for which i will be
ever grateful.
Kashmiri Pandits
I have banned several persons who made impertinent or abusive comments on my previous post. I am
quite a democratic person, and I do not mind people disagreeing with me, but I will not accept
impertinence or abuse. And why should I ?

All I had said was that no atrocity or oppression should be committed on any one, whether Hindu,
Muslim, Christian, or of any community. Whenever any atrocity was done on Muslims, I was perhaps the
first person in the country to condemn it, and my track record can be seen in this connection. But I had
also noticed that very few Muslims condemned atrocities on Hindus, Christians, Ahmadis, Shias, etc in
Pakistan, Kashmir or Bangladesh. To that I strongly objected.

I remember when I was in Allahabad, I told a Muslim friend that I have always stood by Muslims
whenever there was any atrocity on them, so why are Muslims not speaking out against the horrible
atrocities on Kashmiri Pandits in Kashmir ? He asked what could he do ? I replied he can write a letter to
a local newspaper against it, which I would get published, but he did nothing.

I know about the persecution of Kashmiri Pandits because I am myself a Kashmiri Pandit, and my wife
and her relatives are from there. Hundreds of Kashmiri Pandits were selectively killed. Kashmiri Pandits
were only 3% of the population of Kashmir, and were not doing any harm to any one. But it often
happened that if in a village of Kashmir there were , say, 1000 people, of which only 20 or so were
Pandits, a group of persons with fire arms would come and selectively kill these 20 Pandits. This
happened on many an occasion. One of my wife's cousins, who is a doctor in Delhi, told me that when
she was studying in a Medical College in Kashmir, a group of people came to her home and shouted that
the males in her family should get out of Kashmir, leaving the females behind. There were many such
other stories of horror against Pandits of Kashmir, due to which they had to leave their homes and
hurriedly leave Kashmir. Many of such Pandits and their families are still living in camps in Jammu, Delhi,
etc in horrible conditions. Instead of condemning such atrocities many Kashmiri Muslims blamed
Jagmohan for the mass migration of Pandits from Kashmir, which was a total lie. They should have
blamed themselves for failing to protect the tiny Kashmiri Pandit community.

No one wants to leave his home, where his family has lived for generations, and this itself proves what
horrible things were done to Kashmiri Pandits, but because it is a tiny community with no vote bank,
nobody bothered. Hardly any Muslim raised his voice against these atrocities, or on atrocities on non
Muslims, Ahmadis etc in Pakistan. Hindu girls were forcibly abducted and converted to islam, Hindus
were often kidnapped and held to ransom. Blasphemy laws were applied against Christians, who were
sometimes killed, and few lawyers dared to take up their case, as those who did were often killed. Hardly
any Muslim in India raised his voice against these atrocities, but when people in Gaza were attacked they
raised a big hue and cry.

I am not saying one should not raise his voice against atrocities on people of Gaza. What I pointed out
was that Kashmir and Pakistan are nearer to India. Surely Muslims in India should have also protested
against atrocities on non Muslims and Ahmadis in Pakistan and Kashmir. I saw photographs in the
newspapers of demonstrations by Muslims in many cities in India against atrocities in Gaza, but where
were the demonstrations by Muslims against atrocities on non Muslims and Ahmadis in Pakistan and
Kashmir ?

As I said, secularism cannot be a one way traffic. All atrocities on everyone should be condemned.

However, I am prepared to unban those I banned provided they apologize unconditionally. They can
send a message on my facebook page, or send an apology through some other computer. By nature I am
quite a forgiving person
Chief Justice Mootham
Sir Orby Mootham was an Englishman, who was a Judge in the Allahabad High Court for several years,
until he became the Chief Justice of the High Court in 1955.He retired at the age of 60 years (which was
then the retirement age ) in 1961. He was a totally upright Judge, compassionate and considerate, and
won the hearts of the Allahabad High Court bar.

A story which was told of him was that once when he was sitting in Court an old litigant was wearing his
cap in the Courtroom. Sir Orby thought this impertinence, and he told the bench clerk to ask the litigant to
take off his cap. The litigant took it off, but then put it on again. Sir Orby then told the bench clerk to take
the litigant out of the Courtroom, which was done.

During the lunch interval a brother Judge ( an Indian) came to meet Sir Orby in his chamber, where Sir
Orby related the incident to him. The brother Judge laughed, and told Sir Orby that the litigant was not
wearing the cap to show disrespect to the Court. He explained that in England wearing a cap in the
presence of distinguished people was a sign of disrespect, but in India it was a sign of respect. So the
litigant was showing his respect to the Court by wearing the cap, not disrespect.

On hearing this Sir Orby felt very regretful, and said that since he had, though unintentionally, insulted the
litigant in Court, he must apologize in open Court. He then sent his bench clerk to fetch the litigant and
ask him to appear in Court after the lunch interval. When the Court reassembled after lunch, Sir Orby
apologized to the litigant, and told him that he did not know the customs of India very well, and so he had
unintentionally insulted him, for which he was sincerely sorry.

This was his greatness. No litigant left his Court without the feeling that his case had been fully heard,
and all that could have been done by human justice had been done in the case.

After retirement in 1961 he went back to England and settled down there

In 1994, when Sir Orby was 93 years old I had a chance of going to England. I had heard that he was still
alive since he still corresponded with some senior lawyers. I was therefore naturally keen to meet him. I
telephoned him and sought an appointment. At first he invited me to his club, the Atheneum. In England it
is regarded a great honour to be invited to a club. but then he remembered it was a Sunday, and the club
was closed, and so he invited me to his home.

I went there by the tube (the metro), which is very efficient in London, and I got there in about 40 minutes.

He was at the door to receive me. and he himself opened the door. He was fully erect, though 93 years
old. His wife had died a few years earlier, and he was living with his widowed daughter. He took me inside
to his sitting room facing his garden, in which there were apple and apricot trees. In England one's garden
is usually at the rear of the house, unlike in India where it is usually in front.
Sir Orby was then watching a county cricket match on T.V.. He asked me whether I would like some fine
German beer, and I said I would be glad to.

I told him that I was the son of Justice S.N. Katju, whom he remembered. I also said that I had become a
Judge of the Allahabad High Court in 1991, and I regarded visiting him as a pilgrimage, since he had
been the Chief Justice of Allahabad High Court when I was only a student.

We spoke about the High Court, and he made several enquiries about the Court, which showed his
interest in the Allahabad High Court though he had retired 33 years earlier.

At the end of my visit I requested him to write a message for the High Court bench and bar, which he
gladly did. I still remember the exact words of the message :

" I am very glad to have this unexpected opportunity to send my very best wishes to the Hon'ble Judges
and all members of the bar of the Allahabad High Court. I remember with great happiness the time I spent
in the Court and the invariable help and courtesy which I received from all. I hope and trust that the Court
will continue to maintain those high traditions which have so distinguished it in the past "

When I returned to Allahabad I showed the message to several Judges and senior members of the bar of
the High Court. One senior member, Mr. Ajit Man Singh, ( who died several years ago) remarked : "There
is not a single superfluous word in the message. You cannot add or delete a word"

Two years later we heard that Sir Orby had died.
Barrister Abbasi and Sir Tej Bahadur Sapru
A senior lawyer of the Lucknow Bench of the Allahabad High Court told me this story when I was
practising in the Allahabad High Court.

In the 1930s Barrister Abbasi, was a young lawyer of the Lucknow Bench. He was the son of a rich
zamindar of Avadh. He had got his barrister's qualification in England after studying many years in
England. He returned to India and started law practice in Lucknow.

Like most fresh lawyers he had no work. Such sons of zamindars who became lawyers in Lucknow ( and
elsewhere) used to have an easy life, their allowance coming from their father. They would get up late,
have a sumptuous breakfast, go to Court, where they had no work and spent their time chit chatting with
friends, and then returned home In the evening. Later they would go to Mohammedbagh club, play tennis
or bridge, have some whiskey, and then go home again.

Barrister Abbasi also followed this routine.

It so happened that in this period of his life he fell in love with the famous ghazal singer Begum Akhtar,
and wanted to marry her. To this his father vehemently objected, because Barrister Abbasi belonged to a
high caste Muslim family, whereas Begum Akhtar belonged to a low caste family. Moreover, she was a
singer, which was not then regarded a respectable profession. Barrister Abbasi, however, was adamant,
and married her, and on learning this his father cut off his allowance.

At that time Sir Tej Bahadur Sapru had come to Lucknow to argue an important case. He saw barrister
Abbasi sitting dejected in the Bar Library, and came to him and asked " Kya baat hai barrister, kyon itne
udaas dikhayee de rahe ho ?" ( Barrister, why are you looking so gloomy ?). At first Abbasi kept silent, but
ultimately he related what had happened.

Sir Tej then went away, but a few days therafter Barrister Abbasi received by post an envelope containing
Rs. 500 and a first class train ticket to Jaipur.He could not make anything out of this, but nevertheless he
took the train to Jaipur. There he was received at the station by the liveried employees of the Maharaja of
Jaipur, who asked him whether he would like to see Jaipur on the Maharaja's Rolls Royce, or the
Maharaja' buggy. He opted for the buggy, which took him on a round of the Pink City.
He was then taken to the Palace,where he had a sumptuous lunch in the suite which he was given, and
then rested.

In the evening he was summoned to the suite of Sir Tej Bahadur Sapru and met him there. He naturally
asked Sir Tej what this was all about. Sir Tej replied that he and the Barrister had been engaged in an
arbitration case between the Maharaja of Jaipur and the Maharaja of Jodhpur. Sir Tej then said that
Abbasi would not be able to understand the case as it was too complicated for him, so his job was to hear
the proceedings in the day, and to entertain people by reciting Urdu shairi in the evenings.

The arbitration lasted about 2 weeks,and resulted in resolution of the dispute. A grand darbar was then
held, attended by both the Maharajahs. In this darbar it was announced that 'Ala Wakeel Saheb' Sir Tej
Bahadur Sapru was granted Rs. 5000 as fees and 500 asharfis (gold sovereigns), and 'Ala Wakeel
Saheb' Barrister Abbasi was also granted the same.

In this way Barrister Abbasi earned an amount which was fabulous for those times, and he tided over his
financial crisis. This just shows the magnanimity of Sir Tej who wanted to help the Barrister, without
making him feel he is getting a handout.
Justice Mushtaq Ahmad
Justice Mushtaq Ahmad was a Judge of the Allahabad High Court about half a century ago. He was
regarded a very strict Judge who rarely granted adjournments.

Once a senior lawyer of the High Court had a case fixed in his court, but on that very day he had an
important case fixed in Patna High Court, and the Patna case was more important. So he wanted an
adjournment in the case fixed before Justice Mushtaq Ahmad, but did not know how to get it.

He told his predicament to Munshi Jwala Prashad, the Joint Registrar of the High Court in charge of
listing of cases, whom he knew. Munshi Jwala Prashad told him not to worry, and he could go to Patna,
and he ( Munshi Jwala Prashad) would manage everything.

On the morning of the day fixed for the case before Justice Mushtaq Ahmad, Munshi Jwala Prashad went
to the house of the Judge and met him. Justice Ahmad enquired why he had come. Munshi Jwala
Prashad turned his face down in a dejected manner, and said that he could not relate what had
happened. When Justice Ahmad pressed him to tell, Munshi Jwala Prashad said that the rascals in the
High Court registry had printed his name as 'Justice Mushtaq Ahmaq', instead of 'Justice Mushtaq
Ahmad' in the High Court cause list. They had told about this to several lawyers, who had planned to
peep inside Justice Ahmad's court when proceedings were going on, and enjoy the fun.

Now in Urdu the word 'ahmaq' means a fool.

Justice Mushtaq Ahmed was incensed, and said he did not like such a dirty joke, and so he would not sit
in court that day. In this way the case was adjourned
Contempt of Court
This is a story told to me by my uncle, Brahma Nath Katju, who later became Chief Justice of Allahabad.
The story is about an incident in the early 1950s in the Allahabad High Court. My uncle was then a very
junior lawyer, who had just started practice in the High Court. Junior lawyers often have no work, so my
uncle used to sit in some Court to hear senior lawyers argue.

One day a contempt of court case came up before a bench of the Chief Justice, Justice Mootham, who
was an Englishman ( and whom I met in England at his residence in 1994 when he was 90 years old),
and Justice P.N. Sapru. For the state of U.P. the Advocate General, Pt. Kanhaiyya Lal Mishra appeared.
My uncle, was sitting in court at that time, and was thus an eye witness of what transpired.

The case arose out of a postcard sent by a 75 year villager of Meerut District to the District Judge of
Meerut. In this letter, the villager wrote that the Indian judiciary was still behaving like the colonial British
judiciary although India had become independent in 1947.

The District Judge had forwarded the letter to the High Court, and the High Court had issued summons to
the villager. When the villager did not respond to the summons, a bailable warrant was issued to him, and
when the villager did not even respond to that, a non- bailable warrant was issued, and the police went
and arrested him and brought him to Allahabad.

The Chief Justice observed that the notice may be discharged as it was a trivial matter. The statement of
the villager was only mentioned in a postcard, and had not been published in any newspaper. Contempt
jurisdiction is discretionary jurisdiction, and hence the High Court was not bound to take action even if
contempt had been committed.

However, Justice Sapru was not to be so lightly put off, and was not inclined to take the matter so lightly,
and ultimately he asked the villager, who was present in court, why he did not appear when summons or
bailable warrant had been issued. The villager replied that he was a poor man, and hence he thought that
if non-bailable warrant was issued he would be brought to Allahabad at state expense, and would not
have to pay for his train journey from Meerut. The Judges then smiled and said he could go. At this he
said how could he go ? He had no money for the train journey.

The Judges then took out their wallets and each of them took out Rs.15, and the Advocate General Pt.
Kanhaiyya Lal Mishra also took out Rs.15 from his wallet, and the 45 rupees so contributed was given to
the villager for his return journey to Meerut.

This story should be related to all judges who readily issue contempt notices. Lene ka dena pad ja sakta
hai !
How to defeat the Germans!
Many people are saying it is impossible to defeat the Germans in football. I can give a sure shot method
of defeating the Germans, and I hope some reader of this post will convey this to the Argentine team.

The method is simple : whenever an Argentine player sees a German with the ball he should look straight
into his eyed and shout " Stalingrad ". This will so rattle the German player that he wiil leave the football
and run away ( just as the Germans dropped their guns and ran away at seeing a Russian soldier at
Stalingrad ). Then the Argentinian can take the ball and score a goal !
Ashtaavakra
In my Court some lawyers pretended to be very learned, though they were not. I used to tell these
lawyers that they were Ashtaavakra gyanis. At this they were baffled, and asked me who was
Ashtaavakra ?

I would then tell them the story about Ashtaavakra.

When Ashtaavakra was still in his mother's womb, his father, Kahod, was performing a yagya. From
inside his mother's womb Ashtaavakra pointed out to his father some mistakes he was making in
performing the yagya. This made his father very angry, as he thought this boy has not even been born,
and he is trying to teach me. So he cursed his son that when he will be born he will have 8 physical
defects.

When Ashtaavakra was born he had 8 physical defects, his head was bent to one side, his legs and arms
were twisted, etc ( in Sanskrit the word 'ashta' means eight, and the word 'vakra' means twisted ).
However he became a very learned scholar.

Once it so happened that Raja Janak ( the father of Sitaji ) held a sabha in which he announced that
whoever can tell him a method of getting moksha immediately will get half his kingdom.

Many learned scholars assembled there addressed the king. One said that to get moksha you have to
stand on your head for 20 years, another said that you can get moksha by standing on one foot for 20
years with your hands clasped above you, yet another that you have to say "Shiva, shiva" for 20 years etc
However, the king said that he was not prepared to wait for 20 years, and wanted moksha immediately.

Ashtaavakra, who was then only 14 years old, had also come to this sabha. He had been stopped at the
palace gate by the kings' guards,who at first refused to let him in, saying that he was only a boy, and so
was unfit to attend such a sabha where very leaned pandits had come.

Ashtaavakra told them that there was a difference between a vayovriddha ( one who was only physically
old ), and a manovriddha ( one who was mentally developed). The guards then let him in.
Coming into the sabha, and seeing that all the pandits assembled there had failed, Ashtaavakra then
approached Raja Janak and told him that he could give him moksha immediately.

The king wondered how a mere boy could give him moksha immediately when all the learned scholars
had failed. However, he told Ashtaavakra to go ahead and tell him the method of getting moksha
immediately.

Ashtaavakra asked the king whether the necklace of gems and gold which the king was wearing
belonged to him. Raja Janak replied that it belonged to the state.

Ashtaavakra then asked Raja Janak whether the palace with so much gold and so many jewels
embedded in it belonged to him. The king replied that it belonged to the state and not him.

Then Ashtaavakra asked the king whether the 10,000 cows near his palace belonged to the king. The
king replied that they belonged to the state.

In this way Ashtaavakra kept asking the king whether such and such thing belonged to him, and to every
question the reply was that it belonged to the state.

Ultimately Ashtaavakra asked the king " O king does anything in the world belong to you ? ". On hearing
this question Raja Janak fell into a swoon, and collapsed on the ground.

When he got up, he said "Nothing belongs to me"

Ashtaavakra then said " O king, you have attained moksha"
Two stories of my Courtroom
Let me tell you two stories about what happened in my Courtroom in the Supreme Court.

The first story is about Mr Soli Sorabji, the former Attorney General of India. One day he appeared before
me in Court in some case. Before he could begin his arguments I remarked : " Mr. Sorabji, do you know
what is your reputation? ".

He was at first a bit puzzled, but then enquired " What is it My Lord ?".

I said " Your reputation is that you are a ladies man ".

He blushed, and then got on with his case.

In the evening he telephoned me and said " Judge, you embarrassed me a lot today. When you made
that remark in Court a lot of ugly looking women started staring at me, and I felt very uncomfortable ".

The other story is about Mr. Ram Jethmalani ( another ladies man ).
One day he was sitting in my Court in a corner of the Courtroom, waiting for his case to be taken up.
Another lawyer was arguing a case, in which his client was accused of committing rape.

This lawyer argued that his client was 65 years old, so how could he commit rape ?

I replied that when I was a young lawyer in Allahabad High Court I one day asked a very senior criminal
lawyer, Mr. P.C. Chaturvedi, at what age does the sex instinct die out ? He replied " Any time between 30
and 80 "

Having said that, I remarked " And here is Mr. Ram Jethmalani, with vast experience in these matters " (
Mr Jethmalani was then 85 or so, and now he is above 90).

At this Mr. Jethmalani stood up sheepishly and said " I plead guilty, My Lord! "
Addresses To The Indian Nation
When Napoleon's army crushed the Prussians at the battle of Jena in 1806 and conquered Germany (
which was then not one united nation ) the German philosopher Fichte ( 1762-1814 ) wondered what
could have been the cause of such a monumental calamity.

He found it in the lack of nationalism and patriotism in the German people. In his famous ' Addresses To
The German Nation ', a series of 14 lectures he delivered in Berlin between 1807-1808 Fichte pointed out
the way of recovery to the German people.

In one of his speeches he said :
" Hence the noble minded man will be active and effective, and will sacrifice himself for his people. Life
merely as such, the mere continuance of changing existence, has in any case never had any value for
him, he has wished for it only as the source of what is permanent. But this permanence is promised to
him only by the continuous and independent existence of the nation. In order to save his nation, he must
be ready even to die, so that it may live. "

The posts I have been putting up on Facebook and on my blog may, similarly, be regarded as Addresses
to the Indian Nation. Their whole purpose is to tell the Indian people what they are ( see my article " What
is India " on my blog justicekatju.blogspot.in and the website kgfindia.com ), why we have fallen behind
Western nations, economically and socially, and how we can and must rise again as a powerful, highly
industrialized nation, providing a high standard of living and welfare for our masses
Posted by Justice Markandey Katju at Friday, July 18, 2014 No comments: Links to this post
Email ThisBlogThis!Share to TwitterShare to FacebookShare to Pinterest
Thursday, 17 July 2014
Mimansa Rules of Interpretation

Mimansa Rules of Interpretation
This is the story of the discovery of the Mimansa Rules of Interpretation.
Rules of Interpretation are very important in law courts. When the British came to India they
introduced the principles of interpretation of Maxwell, laid down in his classic treatise Interpretation of
Statutes and these principles are broadly still being followed in our law courts in India.
However, our ancient thinkers had created a system of interpretation called the Mimansa Rules of
Interpretation, which appears to have been totally suppressed by the British, evidently because they
wanted to create an impression that Indians are a race of fools and savages with no worthwhile
intellectual achievement to their credit.
I, too, did not know about the existence of our native system, until I discovered K.L. Sarkars book
The Mimansa Rules of Interpretation.
Prof. Sarkars book was published in 1909 in the Tagore Law Lectures volumes. Prof Sarkar had
delivered 13 lectures at Calcutta in 1905 in the Tagore Law Lecture series. Those lectures were
collectively published in 1909, as a book entitled The Mimansa Rules of Interpretation. It is easily the
best book in English on the subject (the original texts on Mimansa are all in Sanskrit). Surprisingly, no
second edition of the book was ever brought out, and may perhaps never have been brought out, but for
my meeting at Delhi with Justice M.N. Venkatachaliah (former Chief Justice of India) in December 1991,
that is, shortly after I had been appointed a puisne Judge of the Allahabad High Court, and he was a
puisne Judge of the Supreme Court.
In this meeting, which was only a courtesy call on my part. Justice Venkatachaliah told me that
while a Judge of Karnataka High Court he regularly visited a Sanskrit Scholar in Bangalore to learn the
Mimansa Principles of Interpretation.
Before this meeting I had never even heard that there was such a thing as the Mimansa Principles
of Interpretation. Of course as a student of Philosophy at Allahabad University I had heard of a school of
Philosophy called Purva Mimansa, (which is one of the shatadarshanas or 6 classical schools of Indian
Philosophy) but my teachers had not taught me that there is a whole system of interpretation in this
school (probably they, too, did not know about it).
On returning to Allahabad after meeting Justice Venkatachaliah I read P.V. Kanes monumental
work History of the Dharmashastras, in which there is a discussion on the Mimansa Principles in Volume
5, Part II, Chapter XXX. Reference has been made there about K.L. Sarkars book, and hence I started
searching for it. I visited library after library, but could not find the book. Ultimately with the permission of
my friend late Prof. A.K. Shukla (then dean of Law, Allahabad University) I visited the Allahabad
University Law Library. With great difficulty I traced out a copy of Sarkars book. It was covered with dust
and in a dilapidated condition. Probably nobody had touched it for the last 70 or 80 years. I took this book
home to read.
This was sometime in the month of May or June when it becomes very hot in North India. I had to
turn off the fan to read the book since the pages were so brittle and yellow that even the pressure of the
breeze generated by the fan would make the pages crumble. The pages had to be turned very slowly,
otherwise they would break. Sweating profusely, I read the book in this manner.
On reading the book I realized I had come across a veritable treasure of knowledge lying
unearthed which could be of profound use in judicial work. Principles of interpretation are very important
in interpreting statutes and till then I had known only Maxwells book on Interpretation of Statutes and
other books which are all based on Maxwells work, e.g. the books of Craies, Crawford, Sutherland, G.P.
Singh, V.P. Sarathy, Jagdish Swarup, etc.
On enquiries I learned that the greatest living exponent of Mimansa in India is Prof. Pattabhi
Rama Shastry, a South Indian Scholar settled in Varanasi. He was then over 80 years of age. I took an
appointment with him, and was about to travel to Varanasi for this purpose when I heard on T.V. that he
had died. Fortunately his students, Dr. Mandan Mishra (now deceased) former Vice Chancellor of
Banaras Sanskrit University, and Prof Vachaspati Upadhyaya, former Vice Chancellor of Lal Bahadur
Sanskrit University, New Delhi (now also deceased) were alive and I contacted them.
I was very keen that a second edition of K.L. Sarkars book be published, as the existing copies
were all in a dilapidated condition. I contacted many persons in this connection, but my efforts were all in
vain. I remember contacting a Professor of Sanskrit of Mithila University to whom I said Sir, you are from
Mithila, the land of Raja Janak, the great philosopher king, and of Vachaspati Mishra, one of the greatest
scholars India has produced. Please get a second edition of K.L. Sarkars book published. He gave a
positive response, but did nothing.
In the meantime I started using the Mimansa Principles in some judgments and I also wrote
articles and gave speeches to revive and propagate the use of Mimansa Principles.
In this connection I wish to express my gratitude to Dr. Ram Shanker Dwivedi, Senior Advocate of
Allahabad High Court and former lecturer in Sanskrit in Allahabad University, who was of great help and
guidance to me. Dr. Dwivedi is now over 90 years of age and holds a Ph.D in Sanskrit. My own
knowledge of Sanskrit is fragmentary, and hence I regularly consulted Dr. Dwivedi for guidance.
My efforts in getting a second edition of Sarkars book published were ultimately successful when
Modern Law Publication, Allahabad agreed to publish it. The problem, however, remained of getting a
good copy of Sarkars book. In the dilapidated copy I had obtained from the Allahabad University Law
Library about 60 pages were in such a bad condition that they were hardly legible. Dr. Dwivedi contacted
Dr. Goparaju Rama, Principal, Ganganath Jha Kendriya Sanskrit Vidyapeeth, Allahabad who procured a
good copy from India Office Library, London after great effort.
I, therefore, wish to acknowledge the help and kindness of all those involved in bringing out the
second edition of this book Justice Venkatachaliah, Dr. Ram Shanker Dwivedi, Dr. Goparaju Rama, Prof.
K.T. Pandurangi (Vice Chancellor of Purna Prajna Vidyapeeth, Bangalore), late Prof. A.K. Shukla and
several others including the publishers.
I finally wish to bow down with reverence before the spirit of our great ancestors, the giants who
created and developed the Mimansa system --- Jaimini, Shabar, Kumarila Bhatta, Prabhakar, Parthasrthy
Mishra, Shalignath, Shree Bhat Shankar, Apadeva, Madhavacharya, Vachaspati Mishra, Laugakshi
Bhaskar, and scores (if not hundreds) of others who contributed in this field. (It is a pity that most Indians
have not even heard of them). Reference must also be made to Dr. Ganganath Jha, former Vice-
chancellor of Allahabad University who made a great contribution by translating many of the Mimansa
texts e.g. Shabarbhashya, Shlokavartika, Tantravartika, etc. (which are all in Sanskrit) into English, which
were published in the Gaekward Oriental series.
A fourth edition of Prof. Sarkars book has now been published which includes judgments I
delivered in the Allahabad High Court and the Supreme Court using the Mimansa Principles.
My earnest hope and wish is that with the publication of the new edition the use of the Mimansa
principles of interpretation will begin in our law Courts. If that happens, I will have the satisfaction that my
efforts were not in vain.
India conquered the world without soldiers
India is perhaps the only country in the world which conquered large parts of the world without sending a
single soldier ! This was due to Buddhism, and Emperor Ashoka, who got converted to that religion after
the battle of Kalinga, and sent missionaries to many places. China, Japan, Thailand, Vietnam, Srilanka,
Afghanistan, Tibet, Kazhakstan, Tadjikstan, Uzbegistan, Indonesia,etc. all became Buddhist. This was
really marvellous !

In Japan I saw hundreds of Buddha statues, e.g. the Kamakura Buddha, which is huge. In Bangkok I saw
the golden Buddha.

I have never been to China ( except Hong Kong, which I visited a few times ), but I have with me the book
' The Quest of the Buddha : A Journey on the Silk Road ' by Sunita Dwivedi ( wife of my friend Rakesh
Dwivedi, senior advocate, supreme court ) which is a remarkable book, describing Sunita's journey in
much of Asia, where she found thousands of Buddha statues.

Of course Hinduism also spread to many parts of Asia. Bali, where I went a few years ago, is Hindu, and
the famous Khmer city of Angkor Wat in Kampuchea ( Cambodia ) shows Hindu influence. Even in
Indonesia, which is largely Muslim, many people have Hindu names, and the Indonesian Airlines is called
' Garuda '
Kashmiri Pandits
I have banned several persons who made impertinent or abusive comments on my previous post. I am
quite a democratic person, and I do not mind people disagreeing with me, but I will not accept
impertinence or abuse. And why should I ?

All I had said was that no atrocity or oppression should be committed on any one, whether Hindu,
Muslim, Christian, or of any community. Whenever any atrocity was done on Muslims, I was perhaps the
first person in the country to condemn it, and my track record can be seen in this connection. But I had
also noticed that very few Muslims condemned atrocities on Hindus, Christians, Ahmadis, Shias, etc in
Pakistan, Kashmir or Bangladesh. To that I strongly objected.

I remember when I was in Allahabad, I told a Muslim friend that I have always stood by Muslims
whenever there was any atrocity on them, so why are Muslims not speaking out against the horrible
atrocities on Kashmiri Pandits in Kashmir ? He asked what could he do ? I replied he can write a letter to
a local newspaper against it, which I would get published, but he did nothing.

I know about the persecution of Kashmiri Pandits because I am myself a Kashmiri Pandit, and my wife
and her relatives are from there. Hundreds of Kashmiri Pandits were selectively killed. Kashmiri Pandits
were only 3% of the population of Kashmir, and were not doing any harm to any one. But it often
happened that if in a village of Kashmir there were , say, 1000 people, of which only 20 or so were
Pandits, a group of persons with fire arms would come and selectively kill these 20 Pandits. This
happened on many an occasion. One of my wife's cousins, who is a doctor in Delhi, told me that when
she was studying in a Medical College in Kashmir, a group of people came to her home and shouted that
the males in her family should get out of Kashmir, leaving the females behind. There were many such
other stories of horror against Pandits of Kashmir, due to which they had to leave their homes and
hurriedly leave Kashmir. Many of such Pandits and their families are still living in camps in Jammu, Delhi,
etc in horrible conditions. Instead of condemning such atrocities many Kashmiri Muslims blamed
Jagmohan for the mass migration of Pandits from Kashmir, which was a total lie. They should have
blamed themselves for failing to protect the tiny Kashmiri Pandit community.

No one wants to leave his home, where his family has lived for generations, and this itself proves what
horrible things were done to Kashmiri Pandits, but because it is a tiny community with no vote bank,
nobody bothered. Hardly any Muslim raised his voice against these atrocities, or on atrocities on non
Muslims, Ahmadis etc in Pakistan. Hindu girls were forcibly abducted and converted to islam, Hindus
were often kidnapped and held to ransom. Blasphemy laws were applied against Christians, who were
sometimes killed, and few lawyers dared to take up their case, as those who did were often killed. Hardly
any Muslim in India raised his voice against these atrocities, but when people in Gaza were attacked they
raised a big hue and cry.

I am not saying one should not raise his voice against atrocities on people of Gaza. What I pointed out
was that Kashmir and Pakistan are nearer to India. Surely Muslims in India should have also protested
against atrocities on non Muslims and Ahmadis in Pakistan and Kashmir. I saw photographs in the
newspapers of demonstrations by Muslims in many cities in India against atrocities in Gaza, but where
were the demonstrations by Muslims against atrocities on non Muslims and Ahmadis in Pakistan and
Kashmir ?

As I said, secularism cannot be a one way traffic. All atrocities on everyone should be condemned.

However, I am prepared to unban those I banned provided they apologize unconditionally. They can
send a message on my facebook page, or send an apology through some other computer. By nature I am
quite a forgiving person