Showing posts with label Supreme Court. Show all posts
Showing posts with label Supreme Court. Show all posts

Saturday, March 19, 2016


No CCTVs in dance bars

By Amba Charan Vashishth

The Supreme Court order on March 02, 2016 forbade CCTV monitoring of the performance area in dance bars in Mumbai as it would be a violation of privacy. Cameras will only be allowed at the entry and exit points of the bars, the court directed. The verdict does have raised eyebrows among a section of the people.  

For all intents and purposes, a hotel, a guest house or a dance bar are all public places where anybody can enter and get a room by paying the prescribed fee or rent. In the same manner any person can enter dance bars by paying the desired fee as one can enter a cinema house by purchasing a ticket. In a cinema house too, the management and owner does not enjoy unrestrained liberty to screen a film which has not been certified by the Film Censor Board. Otherwise, it is a violation of law.

In films too dance items are shot, but these can be exposed to general public view only after these have passed through the penetrating eye of the Censor Board. But in the case of dance bars, there can be no restriction as per the latest directions. An incident of vulgar display of indecency, obscenity or nudity in dance bars will thus be more difficult to detect and still more arduous to prove.

In our system of democracy, a person does have a right to privacy but only within the four walls of his house or room in a hotel. This cannot be extended to a public place. Can a person claim right to privacy in a park or at the dance floor of a hotel if he wishes to indulge in with his wife or a consenting partner what he otherwise can in the solitude of his bed room? When a person goes to a public place, he voluntarily chooses to shed his right to privacy and exposes him/herself to the prying eyes of all who may be present there. The court has allowed CCTV cameras only at the entry and exit points of the bars. That means every person visiting these bars shall be identified and recorded at the entry and exit gate of the bars. An advocate for bargirls argued that CCTV cameras at the bars would not just show the dancers, but also the patrons, who might not want to be identified. This in itself presupposes that there is something undesirable that the 'patrons' would not like to be identified. If something obnoxious and undesirable is not being performed in the dance bar, why should the 'patrons' feel shy of being identified?

We have CCTVs at every public place — a road, road-crossing, public park, market place, railway stations, bus stands, public places like Ganga and other river banks where men, women and children take a holy dip. Many big shops, departmental stores, shopping malls, petrol pumps, and other places are under CCTV surveillance. Not only that. Some individuals have CCTV cameras in their private houses where the entry and exit of every individual as also what goes on in the house gets recorded. Does it not violate the privacy of the visitors?

In these circumstances, how can the installation of CCTV at dance bars be a pernicious aggression on the privacy of individuals and not at other places? Right to privacy cannot be exploited as a shield to committing undesirable conduct, behavior and activity at a public place.                                                                                                                                                ***

Sunday, February 15, 2015

SUNDAY SENTIMENT — Law & Justice with Many Manifestations

Law and  Justice with Many Manifestations

The last week was witness to two new and different manifestations of law and justice.

The Supreme Court of India restrained the Gujarat Police from arresting till February 19 the controversial human rights activists Ms Teesta Setalvad and her husband against whom cases of embezzlement and cheating have been registered. Earlier, the Gujarat High Court had rejected the anticipatory bail plea of Teesta and her husband Javed Anand, observing that "they cannot be armoured with full-fledged anticipatory bail when the applicant did not cooperate with the investigation". The court referred to "shocking facts" about the misuse of funds for "personal" benefit.

Some human rights activists are taking the plea that the case against Ms Setalvad is motivated by the Gujarat Police for her active involvement in helping the Gujarat riot victims to seek justice. It is true that she had filed many cases against the government.

In fact, just as there is a motive behind every murder and other crimes, there is also a motive behind a case against any individual or party. While the impulse for a crime can be the desire to seek revenge or financial and property benefit, the desire for filing a case against a person or group can be to seek justice. So no case can be wished away or thrown out just because the accuser has some enmity or grouse against the person complained against. Murders take place because of some enmity. Even in the case of a rape, the accused can take the plea that the complainant had some grouse against him. But that cannot prevent either the police from investigating the case or the trial court from hearing it. The investigating agency and the trial court have to go by the record, evidence and arguments against the person accused and declare its verdict.

The Teesta case has also raised a very vital question of equality of every citizen before law. Can we say that our courts are similarly condescending towards all the persons who are facing similar charges as does Teesta?

Those interested to go further into Teesta Setalvad case can read "The Truth About Teesta" published by Prabhat Prakashan, New Delhi. Its e-book edition has been published by Amazon, Barnes & Noble and Google.  

Deccan Chronicle chief arrested

On February 14 the Central Bureau of Investigation (CBI) arrested T Venkattram Reddy, chairman of Deccan Chronicle Holdings Ltd (DCHL),  on charges of loan fraud.

Subrata Roy (Sahara) case

It is not out of context to recall that the Supreme Court of India has put Sahara group chairman Subrata Roy in Delhi's Tihar Jail for failing to return the hundreds of crores of money he raised from investors. All his pleas for being released on bail have been rejected. He is now struggling to sell his properties to raise money so that he can refund investors' money and get out of jail. He is in jail for the last about one year.

These are the three manifestations of the stark reality our law and justice. Let readers draw their own judgement.                                                                                                      *** 

Thursday, November 13, 2014



By Amba Charan Vashishth

Note: In the first place, the writer wishes to stress that he himself is totally vegetarian but has written this piece only because animal sacrifice ban amounts to discrimination on grounds of religion

 On September 1st 2014 the Himachal Pradesh High Court directed: "No person throughout the State of Himachal Pradesh shall sacrifice any animal in any place of public religious worship, including all lands and building near such places of religious worship, which are ordinarily connected for religious purposes or in any ceremony/Yagya/ congregation or procession connected with any religious worship in a public street." The Hon'ble Judge also ordered all district collectors, SPs, and other officers to ensure the ban is effectively enforced.(

The HC direction is consequent to a PIL and not a fall-out of any outcry — written, verbal or violent — displayed by any section of the people of any area or by devotees of any place of worship.

The Hon'ble High Court must have come to this considered judgement in all its wisdom. Yet, the conclusion seems to have been arrived at in an ex parte manner and other aspects of the matter concerning one's freedom of faith, belief and religion seem to have got overlooked.

Since times immemorial, in one form or the other, animal — and even human — sacrifice to propitiate a deity or in the course of some social or religious ritual had been in vogue all over the world, India included.   As human race advanced into the present phase of our civilisation, human sacrifice was socially and legally banned almost all over the world. Yet, some reports do continue to be reported in the media from different parts of the world.
Animal sacrifice for religious and social celebrations has, however, continued unabated, though their number and frequency is sharply going down each day. Although feudalism and the age of rajas-maharajas is over, yet animal sacrifice in honour of the exalted visit of an erstwhile ruler to a village continues even today. People offer goats etc. to their family or clan deity on any happy occasion — a marriage, fulfilment of a wish or even for a social celebration, victory in election or success in a competitive examination for a high post.

"Subject to public order, morality and health", Article 25 of the Constitution of India, granting freedom of conscience and free profession, practice and propagation of religion says that "all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion".  Animal sacrifice in pursuance of any religious faith or belief cannot in any way offend the "public order, morality and health".

It must be noted that animal sacrifice as a part of religious belief or as an offering is never a public celebration but restricted to personal or family gathering. It is not done for a public applause. Moreover, the sacrificed animal is served to the invitees as a prashad. It is a case of feasting at social or religious occasions which can never be construed as a crime by any reckoning. 

Interestingly  — and surprisingly — axing the neck of animals while slaughtering them for public consumption is not a crime; it does not attract even the provisions of the Cruelty to Animals Act. 

It is in this background that the panchayat of the presiding deities of different areas in Kullu and other districts of Himachal have taken cognizance of the verdict and decided to file a review petition in the High Court. The matter has come before the Supreme Court of India.

At the same time, it needs to be understood that personal/individual faith or belief is never rational; it is just emotional, blind and unexplainable. A stone lying on the roadside for one individual may just be a pebble but for the other it can be a god incarnate. To pronounce who is right and who wrong is well nigh impossible because it is difficult to pass judgement on a matter of one's or a group's faith and belief. It has to be respected and not injured or laughed at. No person has a right to hurt anybody's sentiments, reasonable or otherwise.

There is only a hairline difference between animal "sacrifice" and "slaughter" as its meat in both the cases is consumed by human beings. In the former case, it is a prashad shared collectively by the society with religious sentiment while, in the latter, it is a business and commercial exploitation involving the pleasure of the tick of the tongue. The place for sacrifice is specified and earmarked away from direct public gaze unless, of course, if some people volunteer to witness it on their own. Slaughter houses too are public places for all intents and purposes. Therefore, banning animal sacrifice only "in any place of public worship" connected with one's religion, belief and faith and, at the same time, allowing it for community or social celebrations and exploitation, like visit of an erstwhile ruler, present elected ruler or for family or social celebrations directly amount to an act of discrimination on grounds of religion in violation of Articicle 25.

Maybe, there is a need for reform to ensure that the place earmarked for animal sacrifice is hygienic, secluded, away from general public gaze so that it does not offend others. But banning animal sacrifice motivated by religious sentiments and allowing animal slaughter for commercial and social purposes surely amounts to an act of discrimination on grounds of religion and belief. 
The writer is a Delhi based political analyst

Monday, March 24, 2014



If one were to go by the logic of our politicians, particularly the ruling ones, they have two lives — political and personal/private. This makes them enjoy the best of the two lives in one birth — a two in one.

Take note of the recent averments. The External Affairs Minister Salman Khurshid criticized two important institutions of the Constitution: the Election Commission (EC) and the Supreme Court (SC) of India on a foreign soil in London. He said: "They are only three (members of EC) and they can decide which word you can use during election campaign. The broad philosophical approach is that you should do and say nothing that wins you an election, you should try your best to lose election," Khurshid was quoted saying.
Commenting on the SC he said: "Judges sit and they say this is not to happen and of course go to the extent of threatening contempt proceedings against officials. Two judges can say anything about parliamentarians that they will be allowed to contest or not, what kind of affidavit they have to file, what they can do and so on," () Later, he also displays the graciousness to deny it altogether, even though every word is there on the audio/video.
On February 26, 2014 the same Minister called Gujarat chief minister and BJP's prime ministerial candidate "impotent"  The next day  Congress vice-president Rahul Gandhi strongly disapproved Khurshid’s remarks dubbing BJP leader Narendra Modi “impotent” saying “I do not appreciate this kind of comment... the kind of language,” (

Khurshid is not a novice in this craft of speaking out his mind. He opens his mouth but always with a definite design. He has a great history behind. While campaigning for his Congress candidate wife during the last UP Vidhan Sabha elections, he had defied the EC and violated the Model Code of Conduct (MCoC) by promising religion based reservation. When EC took offence, he regretted and EC treated the matter "as closed".  Hardly had the din died down, another Union Minister Beni Prasad Verma took up the gauntlet to adopt the same rebellious posture promising the same benefit to minorities for which the EC had censured Khurshid. Khurshid defiantly he went on to say that he was too willing to attain martyrdom with a smile emphasising that he will continue his crusade "even if they (EC) hang him". He continued to speak in this tone of a martyr till the polling in his wife's constituency was over. The electorate gave him a boot. His wife was pushed down to the fifth position when the counting was over. A distressed EC complained to the President of India against the conduct of the Minister. When the matter came to a boil and polling in his wife's constituency for which he was doing all this was over, Khurshid turned a sober man. In all humility he apologized to the EC saying he had full respect for it. EC too responded very kindly and graciously pardoned the fallen guy.

The same story was repeated in the case of Beni Prasad Verma's defiance.

Another habitual offender is the Congress General Secretary Digvijay Singh. He has the secrets of every organization in the world holed up in his chest. He leaks these 'facts' at will when it suits him.  Not once but in dozens of times the Congress party had to disassociate itself from his bold declarations dubbing it as his "personal opinion". Let us quote only one instance of the Batla House encounter case in which the valiant Delhi Police Inspector M. C. Sharma attained martyrdom while fighting terrorists. The Union government decorated this martyr posthumously. The trial court convicted the culprits. Yet Diggy Raja went on a 'pilgrimage' to Azamgarh to express his sympathies with those hauled up by the Police. He even now continues to maintain that the encounter was 'fake' and demands a judicial inquiry although the Congress Home Minister has repeatedly denied Digvijay's allegations and turned down his demand.

A political leader, a minister or a bureaucrat is the official and only official voice of the organization he belongs. What is this humbug of a "personal" view? If it is, it should remain confined to the four walls of privacy. Why should a "private and personal" opinion need to be aired publicly? When whatever they say and do is in the public domain under public glaze and gaze, how does the voice of the same person become other than official when it comes from a similar or the same public platform? Can a Prime Minister, his ministers or even a bureaucrat afford to say — and should say —something that is at variance and in defiance of the official stand? And if they do, can it be dismissed as "private" opinion of an individual?
Another recent case is that of veteran NCP leader and Union Agriculture Minister Sharad Pawar. At a gathering of NCP workers on March 22, 2014 he said, "Vote for the 'clock' (NCP symbol) there (in Satara) and come back to vote for the clock in Mumbai too". ( An alibi is always at hand to the put the blame on the media saying he was "quoted out of context". And he did that. He went further saying that the particular "meeting was not a political meeting or rally". Pawar needs to understand that a political party is a public organization and not a "private or personal" fiefdom. Further, an overwhelming number of crimes are committed only within "private and personal" premises but that does not suck away the sense of criminality out of the offence to turn it into an act of piety.

All said and done, it is a deliberate and intentional act with a definite design to grab political advantage — and, at times, electoral bounty — by dubbing any statement as "personal" opinion.  

When a person comes to occupy an official or political position in any organization he ceases to have  his right to a "personal and private" opinion in matters of public and to air it publicly. People and the media wish to seek only his official as against his "personal" opinion. If they were not holding that exalted position no media person would waste his time to hanker for a "bite" from him. Do people holding official positions in political organizations or governments ever discuss their "private and personal" family matters and opinion in public?

Our politicians know that their "private and personal" opinion has been well taken and well understood by those sections of the people for which it was targeted and intended,  and from whom they anticipated political or electoral favours. Political leaders stand nothing to lose if, later, they have to claim their words having been "quoted out of context" or they altogether deny their statements or are, at the most, censured by any authority. They have realized the objective for which they say or do something. This helps them derive benefit from both the worlds as one stand will please one section and denial the other.                                                                                                                             ***  

Sunday, March 9, 2014


 Sunday Sentiment
Perils & Pitfalls

By Amba Charan Vashishth

The Supreme Court (SC) of India, according to media reports, is to revisit its 3-member Bench 1995 verdict in the Manohar Joshi versus N B Patil case authored by Justice J. S. Verma  declaring Joshi's statement that “First Hindu State will be established in Maharashtra, did not amount to appeal on ground of religion”. Dealing with the scope of corrupt practices mentioned in sub-section (3) of Section 123 of the 1951 Representation of People Act. SC had held that vote in the name of “Hindutva/Hinduism” did not prejudicially affect any candidate and that “Hindutva/Hinduism is a way of life of the people in the sub-continent” and “is a state of mind”. But the self-righteous self-styled 'secularists' have so far not been able to reconcile with it and digest it. They feel they have an intellect superior to that of the impartial and unbiased SC to continue to drum up their illogical logic.

Inadvertently, the decision does raise eyebrows at a time when elections to Parliament are round the corner. It is reportedly motivated by the fact that since the 1995 judgement three election petitions on the subject are pending before the apex court. Normally, these should have been disposed of as per the prevalent law. A delay amounts to denial of justice to either of the parties. It allows a person to get away with the perks and privileges he doesn't deserve and denies to the person who rightfully deserves. Such can never be the SC intention.

 It may also be an accident of coincidence that the SC wishes to "revisit" the judgement just a few months after its author Justice J. S. Verma is no more.

It is erroneous to presume that SC decision foretells a reversing of the 1995 judgement. However, let us, for a moment, assume that SC takes a divergent view. In that case, while the latest may be the delivery of justice, the 1995 judgement and consequential other lower court judgements based on it would automatically amount to upstaging of justice.


                    The Supreme Court and the Parliament, no doubt, have every right to review and amend the laws enacted earlier on cogent reasons. Yet consistency remains the very life of a law. That is why the precedents of other court judgements are invariably cited and followed in other courts too first, to ensure that there is continuity and uniformity in the dispensation of justice and, second, to prevent confusion where a court takes one decision and another quite the opposite in identical matters causing chaos and confusion.  

The enactments by parliament and pronouncements by the SC cannot afford to be transitory and temporary that could be fiddled with at any time.  If the SC were to "revisit" its judgements so often, there would only be anarchy in dispensation of justice. An earlier judgement delivered by a court based on the SC verdict would, in a way, get vitiated if the same judgement were "revisited" some years later. This would amount to miscarriage of justice either in the earlier case/cases or later ones. What will happen if in the same manner and for the same reasons high courts too start exercising the same right to "revisit" or "revisit" their own earlier judgements?

In Punjab a joke goes round that 'government' means gourmint which reviews its decisions every minute. Our judicial system cannot afford to conform to that satirical definition.

It is true that change is the law of nature but it is not the nature of law to change so often, like the change of seasons. The law has to be constant and static with some sense of permanency. Laws need to be framed not in haste but with farsightedness after due consideration and thought. The lawmaking process cannot be – and should not be – so half-hearted and fragile as to need to be reviewed so often.


During the 19 months of the internal emergency imposed by the late Mrs. Indira Gandhi, the Supreme Court at that time had played a second fiddle to her dictatorial designs at the cost of the nation's interests. In contrast, the Pakistan Supreme Court under its chief justice Iftikhar Mohammad Chaudhry stood by the law of the land and refused to lay prostrate before the military dictator Pervez Musharraf. In fact, the collective will and determination of Pak judiciary played a pivotal role in the restoration of democracy in Pakistan.

One of the judges has, after his retirement, regretted the SC role and some of the judgements delivered at that time. These judgements continue to be the proud possessions of the Supreme Court. None has, surprisingly, so far felt the need to "revisit" those judgements and erase that black chapter in judicial history.

The perception of justice is always subjective differing with each individual or group. What is a model justice for one party is a gross injustice for the opponent one. Everybody, no doubt, has a right to demand a “revisit” on any verdict but only on the strength of any drastic change in the situation and circumstances under which it was then delivered.

The controversy over Hinduism or Hindutva flows from those who treat religion as synonymous with dharma. This is a wrong interpretation both of dharma and religion. The English dictionaries define dharma not a religion but a way of life. In fact, religion and its equivalent in Hindi and other regional languages is panth and not dharma. Even our constitution calls secularism as panthnirpekshta and notdharmanirpekshta. No wonder if tomorrow somebody wants to challenge even the dictionary meaning of a word.

Merriam-Webster dictionary defines Hinduism as "an individual's duty fulfilled by observance of custom or law
Hinduism & Buddhism
a :  the basic principles of cosmic or individual existence :  divine law
b :  conformity to one's duty and nature

This Dictionary defines Hindu: "an adherent of Hinduism" and "a native or inhabitant of India"

Oxford Dictionary: "In Hinduism, dharma is seen as the cosmic law both upheld by the gods and expressed in right behaviour by humans, including adherence to the social order. In Buddhism (termed dhamma), it is interpreted as universal truth or law, especially as proclaimed by the Buddha. In Jainism, it is conceived both as virtue and as a kind of fundamental substance, the medium of motion"
This dictionary defines a Hindu "a follower of Hinduism". .

But in another context, dharma is not religion for our 'secularists' when they refer togathbandhan (coalition) dharma quite often. At that time, they are not alluding to any religion but to dharma as a way of life in politics. If dharma in this context is not religion but a way of life, then how come that dharma turns religion when used with the word Hindu?

It is common for Indian people to declare that it is not their dharma to behave or not in a particular manner. It is individual and such a conduct has nothing to do with one's faith as a Hindu, Muslim, or Christian.

In the Hindu way of life a father may be the worshipper of Lord Shiva, mother of Lord Rama, son of Goddess Durga, his wife of Lord Krishna and so on. Yet, there is no conflict, no lack of cohesion in the family. It remains a collective, congenial whole. In Hinduism way of worship does not divide the people. Even an atheist continues to be a Hindu. Charvak who every day spoke ill of the Vedas was acknowledged as a rishiby Hindu ideologues.

Hindu dharma has resilience, tolerance and adaptability. Lord Buddha and Lord Mahavira rose in revolt against some of the ills plaguing the Hindu society. Yet, they were not discarded, stoned or crucified. On the contrary, they were accepted as gods incarnate by Hindu dharma and recognised as a way of worship, a faith of a section of the followers of Hindu dharma.  

Before the Muslims and Christian invasions of India this country was one nation of Hindus practising different forms of worship. Hindusthan was known and accepted as the land of Hindus all over the world. The word Hindu, therefore, signified the people who lived in this part of the world and not by the religion they practiced. No country in the world derives its name from the religion it practices, not even Pakistan.  

Any person irrespective of his creed becomes an American when he/she migrates to USA. His faith is secondary. The name of our country is Bharat or Hindusthan and, therefore, everybody without distinction of creed becomes a Hindusthani.  Tensions have cropped up only in those countries where the migrating minority does not wish to identify itself with the sentiments of the country they live. Australia is one such instance.

Religion has never proved to be a unifying force for the people; the way of life has. What unites India and keeps its countrymen united is the Indian way of life whether you give it a Hindu or different nomenclature. If religion had been the uniting force, Pakistan and Bangladesh would never have separated. Numerous Muslim and Christian countries enjoy separate and distinct identity, some even at loggerheads with each other, killing people of their own faith.

The precept and practice of Hindu dharma or Hindutva continue to be the same today as they were in 1995 or earlier. What has changed since then that cries for a "revisit" on the 1995 judgement — that has to be reckoned. The SC has to ponder over all these aspects.                       ***    PS: This article has also been published in the monthly SOUTH ASIA POLITICS in its March 2014 issue.                                                     

Tuesday, December 10, 2013



By Amba Charan Vashishth

Three years ago the then BJP government of Mr. B. S. Yeddyurappa was rocked by defection by 16 MLAs. The rebels brought the fact of withdrawal of support to the government to the notice of the Governor H. R. Bhardwaj.

Realising that he cannot expect Mr. Bhardwaj to be "friend and guide" of his government, Mr. Yedyurappa voluntarily fixed the date for trial of strength in the house at the earliest opportunity. A day before the House was to vote on the confidence motion Mr. Bhardwaj went out of his way to write a letter to the Assembly Speaker: “In the interest of a free and fair floor test, it is required that no attempt should be made to change the character/configuration of the House after the House has been summoned for this purpose.” In a veiled warning to the Speaker he went out: “Any attempt to change the character/configuration of the House in the run up to the vote of confidence motion “is bound to vitiate the proceedings” and further that any result “obtained by such vitiated proceedings will not be acceptable”.  Clearly, Mr. Bhardwaj wanted the government to fall under the weight of defections and Speaker take action against defectors only after that.

Till the MLAs gave to the governor their letter of withdrawal of support, the Yeddyurappa government was in majority. Doubts arose with the change of loyalty by MLAs. So what is the first — the act of defection? The government losing or not losing the majority in the house is secondary and consequential. Therefore, in all fairness the first thing should come first and addressed first. The moment the governor took cognizance of the act of defection and notified the same to the chief minister to seek a vote of confidence on the floor of the house, he threw the ball in speaker's court. The Supreme Court has repeatedly stressed that the test of majority of any government is on the floor of the house and nowhere else. It, therefore, becomes incumbent on the part of the Speaker to first determine and decide whether it is an act of split in the ruling party or an act of defection punishable with disqualification from the house as per the provisions of what now is known as the Anti-defection law. It is only after this issue is settled that everything else can follow.

The intention of law and objective of a governor is to ensure stability and continuity of a government and not to destabilize it. While it is all right if a government falls on the floor of the house because of a split in the ruling party but, at the same time, it is equally incumbent on the part of a speaker and a governor to frustrate all attempts at destabilizing a government with the back stab of defections as per the spirit of the anti-defection law. The law has been enacted with the noble objective of defeating the designs of defectors and not be aid and abet their crime. We need to distinguish between a split and defection — first, a normal process and the other, a curse in a parliamentary democracy.

In the instant case the Karnataka High Court upheld the disqualification of the 16 MLAs but later, on appeal, the Supreme Court set aside the Karnataka Speaker's action of disqualifying them  on the eve of the floor test as "illegal" as the Speaker's action on the chief minister's complaint failed to adhere to principles of natural justice and constitutional provisions.
Authoring the twin judgments, Justice Kabir said the MLAs were disqualified without giving them adequate opportunity to defend themselves as Yeddyurappa's affidavit setting out charges against them was served minutes before the hearing before the Speaker.
Criticising the Speaker for not respecting the cardinal principles for a fair trial, the bench said, "Extraneous consideration is writ large in the face of the Speaker's order disqualifying the MLAs. In the result, we dismiss Yeddyurappa's complaint against the MLAs, set aside the Speaker's order as well as the Karnataka High Court order upholding disqualification of the MLAs."
The bench said a Speaker must rise above party affiliations while adjudicating applications seeking disqualification of MLAs. The HC had upheld the Speaker's order disqualifying MLAs and said, "We are of the view that the impugned order passed by the Speaker (on October 29, 2010) is not in violation of constitutional mandate nor is there any infirmity based on malafides or perversity." (
Setting aside of the speaker's order "for not adhering to te principle of natural justice" was understandable but how could Mr. Yeddyurappa's complaint against MLAs be "dismissed" as their act under the law was sheer defection and nothing else as they lacked to command the support of one-third of the membership of BJP legislature party.
Despite the court decision, the cradle of Yeddyurappa government could not be shaken.  
Regrettably, during the last 28 years since the Anti-defection law was enacted in 1985, our government and the presiding officers in the State assemblies and Central legislatures have failed to iron out a uniform code that should be adopted in such situations like the one that erupted in Karnataka. Some speakers have taken instant and summary decisions while others have dragged the consideration of action against recalcitrant legislators for years together. Sometimes the motions have lapsed with the tenure of the legislature coming to an end.
On technical grounds of non-adherence to the "principles of natural justice" the Supreme Court may be right in setting aside the Speaker's order yet it does not absolve the defectors of the charge committed by them.
What amounts to a split in a party and what constitutes the abominable act of defection is clearly spelt out in the statute. A split is caused when at least one-third of the party's membership part company on any excuse or ground. Similarly defection takes place when less than one-third of the members commit murder — and in this case, of parliamentary democracy — which cannot be condoned for any noble or ignoble cause whatsoever under any circumstances. All that a speaker has to consider is whether it is a split or defection as defined in the law. Explanation of the individual or a group is of no consequence in such a situation.
Unfortunately, during the last 61 years of the functioning of parliamentary democracy in the country, we have failed to evolve a healthy and ethical tradition to be followed whenever the majority of an incumbent government is challenged. Different governors have adopted different yardsticks. Some have demanded the chief minister to go in for a vote of confidence in the house within 48 hours and others as long as three weeks.

In all fairness, to meet the ends of justice in keeping with the spirit of the Anti-defection law, whenever a split or defection takes place the Speaker should take a decision pretty soon and any vote of confidence should be taken up only after that. First allowing the recalcitrant defectors to bring down a government and then taking action against them is just putting horse before the cart.                                                                           ***
This article was published in SOUTH ASIA POLITICS monthly in its December 2013 issue.

Tuesday, July 9, 2013

Congress has turned CBI its greatest political ally

Congress has turned CBI its greatest political ally

Whether CBI is, in the words of the Supreme Court of India, a "caged parrot" or the Congress Bureau of Investigation, as the opposition, particularly the BJP prefers to call it, the fact remains that it speaks the language Congress prompts and acts the way it teaches them to do.
If the Congress is using the administrative machinery to browbeat its opponents, it is only following the footsteps of its British predecessors in indulging in repressive measures the alien administration had been letting loose against the freedom fighters who wanted them to leave the country independent. At the same time, the Congress equally mastered the British art of showering generous favours on those who go out of their way to realize its political designs by hook and crook. If you look at the pictures of the alien rulers and police/army unleashing brutalities and cruelties on those demonstrating against the British rulers and the present ones in independent India, you will discern that nothing has practically changed except that the rulers are not whites. In cases, the present democratic administration appears to be more barbaric against its opponents than did the alien British government. Even women and children do not get spared.
In fact, the energies of the arms of administration – the police, crime investigating agency, income tax department, Enforcement Directorate, CBI, IB, even the National Investigating Agency (NIA) – seem to be concentrated on realizing  the single objective to promote and protect the interests of the ruling party, to whitewash the black spots on the face of the ruling class and to harass all its political opponents who stand as a hurdle in catering to the whims and caprice of the rulers at whatever cost to the nation.  In fact, the present rulers have come to make its own narrow political and electoral interests synonymous with those of the nation. 
The ruling party administration spares the rod and spoils the ruling party recalcitrants who get pampered to indulge in more wrongdoing, crimes and corruption. The arms of law get shortened when the person belongs to the ruling dispensation but get longer if it is the non-Congress parties and individuals. They get more cruel and ruthless. The truth in this respect is all pervading.

Aam Aadmi Party leader Arvind Kejriwal leveled charges of more or less the same nature against both the then BJP national President Shri Nitin Gadkari  and Congress President Mrs. Sonia Gandhi's son-in-law Robert Vadra, though  in latter's case the charges were much more serious because these involved favouritism by some Congress-ruled States. In Vadra's case the UPA government and Congress instantly dismissed the allegations as frivolous, baseless and motivated. The government lost no time to issue a certificate of "innocence" to Shri Vadra.  The Prime Minister's Office (PMO) expressed its inability to ”order a probe in business dealings between two private entities". But that was equally true in the case of allegations against Shri Gadkari too.  Later, the PMO claimed that "while the Right to Information Act aims at creating transparency to contain corruption and increase accountability, it also seeks to ensure that revelation of information, in actual practice, does not harm or adversely affect other important public interests which include efficient functioning of the governments, optimum use of limited fiscal resources, and preservation of confidentiality of sensitive information." (


The allegations against Shri Gadkari too constituted "business dealings between two private entities" to which the PMO claimed that it could not order investigation. When Shri Nitin Gadkari was likely to file his nomination for another term of office as BJP President on January 23, 2013 the Income Tax Department conducted a raid on Shri Gadkari's business concerns on January 22. After that both the IT Department and the Government have gone silent. Nobody knows the outcome of the raids and investigation. According to a Sunday Guardian report, nothing incriminating has been established against Shri Gadkari. 
In fact, CBI seems to be burning midnight oil to function as the defence counsel for those belonging to the ruling party can and a diehard prosecutor bent upon somehow or the other to involve those opposed to the ruling party.
CBI conduct in the investigation into cases concerning the 2002 Gujarat riots and the 1984 anti-Sikh riots is a case in instance. It presented closure reports in cases against Congress leaders Sajjan Kumar and Jagdish Tytler though it failed to realize the ruling party's objective when the court refused to oblige. When after 29 years the court handed out a verdict of not guilty against Sajjan Kumar it took more than two months for the CBI to file an appeal against the judgement in the higher court. Case against Jagdish Tytler has been reopened under court orders.
But in Gujarat, all CBI energies are concentrated on framing the BJP leaders. Its anxiety – and of Manmohan Government – in the Ishrat Jahan alleged fake encounter seems nothing else but only to somehow or the other to frame Gujarat CM Shri Narinder Modi and other BJP bigwigs.
Criminal cases of assets beyond known sources of income against former UP chief ministers, Ms Mayawati and Shri Mulayam Singh have not been taken to their logical conclusion during the last 9 years. CBI stand on these gets fluctuated with the change of stance of these leaders towards the Manmohan government. In a similar case where Shri Lalu Yadav and his wife were acquitted, CBI did not, deliberately, for understandable political reasons, file an appeal in a higher court obviously only because he remains steadfast to prove himself as the savior of Congress government at the Centre in times of crises.
The CBI case against Shri Lalu Yadav in the fodder scam continues to hang fire for the last over a decade, courtesy again of CBI, although similar cases against officials have been decided long ago and the guilty punished.
Another stark contrast is the CBI dilly-dallying the investigations and prosecution of cases concerning 2G spectrum, Commonwealth Games, Adarsh Housing and Coalgate scandals. Except for the intervention of the courts, no minister responsible for the scams has been brought to book.  The investigation into these cases is moving at a snail's pace.
Latest is the case involving the Railway Minister Pawan Bansal. Instead of being made a co-accused, he has been made a witness. Nobody today, as a person remarked, is willing to offer even a cup of tea if he doesn't expect a return favour. But CBI in this case, makes people believe that an individual of the rank of a general manager of Railways was so foolish as to strike a Rs. 10 crore bribe deal and to part with Rs. 2 crores initially without being certain that Bansal's nephew would be able to get from the minister what he wants.
Actually, it is proving true the old Hindi saying: jab saiyyan bhaye kotwal to dar kahe ka" (When the kotwal is our benefactor, why should one worry?) It is also providing credence to the widely accepted notion that CBI is the greatest political ally of the UPA.
When the Supreme Court directed the UPA government to take steps to make the "caged parrot" free, all it seems to be trying to do is to free it from the cage with freedom restricted to fly only within a room closed from all sides under UPA supervision. It has claimed its right to monitor, a synonym for influencing, the course of investigation in "politically sensitive" cases. That betrays the real intentions of the Congress.                                                                       ***