22-08-2013
Crowd censoring
Tamil
nationalist groups are again displaying an intolerant streak. They want Madras
Café, a film loosely based on the assassination of Rajiv Gandhi, to be
banned because it shows the Tamil Eelam struggle in Sri Lanka in a poor light.
Though the Madras High Court has rightly declined to stay the release of the
film, some groups seeking to ban the film are readying themselves to create a
law and order problem as a form of protest. That apprehension of law and order
disruptions cannot be grounds for banning a film is settled law and has been
upheld repeatedly by the Supreme Court of India. In its judgment in S. Rangarajan
v Jagjivan Ram involving the
film Ore
Oru Gramathile, in 1989, the court was unequivocal that “freedom of
expression cannot be suppressed on account of [the] threat of demonstration and
processions or threats of violence.” The right to freedom of speech and
expression is enshrined in the Constitution, and chauvinist elements, no matter
of what hue, should not be allowed to infringe on this right citing some
imagined slight to a group or community. The onus is on the State government
and its policing arm to act against those attempting to disrupt law and order.
Whether the film is good or bad, whether it is fact or fiction, all these have
nothing to do with the right to freedom of expression of the film-makers and
artistes.
Of late, film-makers and distributors have been organising
special screenings for representatives of groups or communities who apprehend
that the film could be offensive to their sensibilities. In Tamil Nadu, the
government appears to have encouraged such groups by banning the film Dam 999 and seeming sympathetic to those
wanting a ban on Vishwaroopam. The Central Board of Film Certification
is the only competent body to censor a film, and once cleared by the board, no
film should again have to be subjected to “clearance” from groups claiming to
have been offended by it. Chauvinist elements are emboldened when a government
adds to the pressure on the film-makers, instead of getting tough on those
threatening to disturb law and order. Too often, the producers are forced to
compromise and agree to cuts rather than risk prolonging the release of the
film. When the government does not stand up for freedom of speech and
expression, film-makers, distributors and exhibitors think it is safer to buy
peace with the chauvinist groups. It would reflect very poorly on the
administrative capabilities of the Tamil Nadu government if the film is
withheld from exhibition for fear of violence. As for those who wish to protect
their fragile sensibilities from being hurt in any manner, how’s this for a
really simple remedy? Don’t see the movie.
24-08-2013
The way forward in Assam
The
Manmohan Singh government’s decision to carve Telangana out of Andhra Pradesh
has given fresh impetus to statehood demands across India but nowhere has the
effect been more divisive than in eastern India. At least four ethnic groups
have begun to press their claims for separate States to be carved out of Assam.
The Bodos, the Karbi, Dimasas and Koch-Rajbongshis are up in arms in support of
their respective demands. But the simple fact is that these cries for statehood
are not only ill-advised but also untenable and impractical. For one, the
territories being demanded by the different groups in pursuit of their own
ethnically, homogeneous provinces actually overlap with one another. Besides,
Assam’s own territorial issues with more than one of its neighbouring States
remain unresolved. Third, these conflicting and often competing political
aspirations make for a toxic cauldron, predicated as they are on the dangerous
assumption that it is not possible or desirable to create multi-ethnic or
multicultural provinces in which the rights of ethnic, linguistic and cultural
minorities are constitutionally guaranteed and administratively ensured.
Whatever the trigger, the present unrest highlights the urgent
need for administrative systems that can help meet regional, developmental and
identity aspirations. This can be done by strengthening the autonomous,
administrative divisions in Assam established on the basis of the Sixth
Schedule of the Constitution. Currently, these are the Bodoland Territorial
Council, the Karbi Anglong Autonomous Council and the Dima Hasao Autonomous
District Council. In addition, there are six notified tribal autonomous councils
where the territory has not been specified. One of the sticking points with
regard to the latter group relates to dual authority owing to the simultaneous
existence of panchayati raj structures. This needs to be addressed suitably.
The experience in Tripura over the past decade and more has shown that the
implementation of appropriate autonomy packages could prove to be an effective
salve, and an aid to development. As in Tripura, the functioning of democratic
processes at grass-roots level ought to be ensured in Assam. The sensitive
handling of grievances over funding, and the protection that needs to be
extended over issues of language, culture and land are essential. Powers and
functions consistent with local customs, traditions and needs have to be
conferred on tribal autonomous systems. The fair and practical long-term
solution to the turbulence in the region lies along this path. But at the end
of the day, as Chief Minister Tarun Gogoi has repeatedly said, Assam and its
people should “live together” by making peace among themselves.
The right to talk and write
Journalists in India
have no special rights. Unlike the United States, freedom of the press in the
country does not flow from any special provision or amendment to the
Constitution, but from the right to free speech and expression. Article 19(1)
(a) of the Indian Constitution confers this right subject only to reasonable
restrictions specified in Article 19(2). Therefore, to propose licences,
qualifications and common entrance examinations for journalists, as Information
and Broadcasting Minister Manish Tewari did a few days ago, is to try to
circumscribe and limit the fundamental right to freedom of speech and
expression. Dissemination of information might be the business of some news
organisations, but it is also an essential part of the everyday activities of
countless Indians who talk, post, upload or tweet what they see, hear, sense or
think. What distinguishes journalists employed by a news organisation and
private individuals taking advantage of social media and personal communication
channels to disseminate information is not the nature of their work, but the
public standing and credibility that they command. Any attempt to prescribe
licences and qualifications for journalists will necessarily end up limiting
what ordinary citizens can do. As in other democracies, newspapers in India do
not require a licence to operate. In authoritarian or managed democracies,
where press licensing is the norm, the threat of a cancelled licence is often
enough to ensure the media toes the official line. If journalists are to be
given licences, can newspaper licensing be far behind?
All
of this is not to say that news organisations need make no effort to improve
the standards of their journalism. In the race to be the first to break the
news, television channels, and sometimes newspapers too, often get their facts
wrong and the context mixed-up. But, as the best journalism schools have
already realised, practice, not theory, makes a good journalist. Mr. Tewari’s
proposal seems more like a trial balloon: he gave no details of what exactly he
had in mind, and did not appear to have given serious thought to all the
implications. Indeed, his train of thought mirrors that of the Press Council of
India Chairman Markandey Katju, who, some time ago, set up a committee to
decide on minimum qualifications for a journalist. The Minister wants the
minimum qualification to apply equally to subject experts contributing to a
news organisation, reckoning that they would not resent the requirement. What
is mooted as an exercise to raise the quality of journalism could just as well
pose a threat to the free flow of information, and to the freedom of speech and
expression.
26-08-2013
The
importance of the outsider
The proposed Judicial Appointments Commission, in which judges will be
marginally outnumbered, will make the selection system more transparent and
help to assess professional merit in a better way
Now
that the Union Cabinet has decided on the composition of the proposed Judicial
Appointments Commission (The Hindu, August 23,
2013), an informed debate becomes possible. The commission will be presided
over by the Chief Justice of India, and will include two Supreme Court judges.
The “non-judges” will be the Law Minister, two eminent persons and the Justice
Secretary, who will be the Member-Secretary. The Leader of the Opposition in
either House will be part of a committee which nominates the eminent persons,
the other members being the Prime Minister and the Chief Justice. Thus, all the
organs of the State, as also the citizenry, will be represented. And the judges
will be marginally outnumbered. This is as it should be.
Checks and balances
Recent
reactions of senior leaders of the Bar seem to take the view that the
independence of the judiciary would be compromised by “outside” participation.
The Chairman of the Bar Council of India is reported to have said that “we are
totally against this National Judicial Appointment[s] Commission Bill because
of the fact that in the process of appointment of judges, we do not want any
interference from any outsider, including the executive” (PTI report, August 2,
2013). A later press release of the Bar Council of India (August 10, 2013) says
“…. lawyers of the country are not going to tolerate the replacement of the
existing collegiums with the proposed Commission, without the representation of
the Bar Councils and the (Bar) Associations.” The president of the Supreme
Court Bar Association is reported to have said that “loading the Commission
with more members from the Executive and including fewer members from the
judiciary would curtail the independence of the judiciary” and that “the cure
should not be worse than the disease. The Bar will not agree to transfer the
power of appointment to the executive. The collegium system can be improved by
making methods of selection more transparent” (The
Hindu, August 16, 2013).
So
far, the central issue of democratic accountability has either not been
addressed, or swept under the carpet. This is the first reason why the
collegium system needs to be scrapped. The Constitution functions under a
system of checks and balances. Judges of the superior courts are given the
power to strike down laws of Parliament and the State Legislatures, which in
their view violate the provisions of the Constitution. The judiciary has, in
addition, given itself the power to annul amendments to the Constitution if
they violate the “basic structure” (Kesavananda
Bharati, 1973), and the political class has acquiesced. It is completely
undemocratic if the selection to such a powerful institution is to be left
entirely to a body of men and women concededly learned in the law, but
unelected, and in practice virtually irremovable, thanks to a complicated
impeachment procedure.
This
self-selecting procedure, created by the judges themselves in 1993 is unique to
our country. Other democracies are not worse off in the matters of judicial
independence only because they have more “participatory” systems of
appointment. Independence is nice, but with accountability, it is better.
Not their sole
prerogative
There
is a second reason why judicial appointments should not be the sole preserve of
judges or even a body of judges and lawyers. The legal profession will assess
professional merit only in terms of “technical” skills.
Forty
years ago, in less salubrious times, the late Mohan Kumaramangalam created fear
by stressing the importance of the “social philosophy” of judges to justify the
supersession of three senior judges of the Supreme Court for appointment as
Chief Justice of India. It is now time to think dispassionately. While the
supersession of a judge can never be justified on the basis of his social or
constitutional philosophy, surely it is a relevant factor to be taken into
account at the time of appointment. Even if they consult senior lawyers, the
collegiums only look at “technical” competence. While selecting lawyers for the
High Court they look at their “levels” of practice, their incomes, their major
arguments and their courtroom etiquette. And when judges are selected from the
High Courts for the Supreme Court, it is mainly on the basis of their seniority
(subject of course to the rejection of those whom the collegium decides to
treat as “unfit”). Any interrogation on constitutional philosophy is outside
the scope of this exercise. “There is only one philosophy” say judges and
eminent lawyers and “that is the philosophy of the Constitution.” And, pray, what
is that philosophy? We all know, after all, that the Constitution is what the
judges say it is.
A
recent Constitution Bench judgment has created consternation. In another of
those “rapid” judgments, a five judge bench of the Supreme Court held that
reservation in super specialities in the faculty of the All India Institute of
Medical Sciences was unconstitutional. The correctness of that judgment is not
the subject of today’s comment, though there is scope for two views on it. What
is disturbing is an observation in the penultimate paragraph that “the very
concept of reservation implies mediocrity.” There is no nuance here, no
qualification, just a bald statement. The judgment is authored by the outgoing
Chief Justice, who was of course under pressure of time. But four other judges
who signed the judgment have not had a problem with the language. This is the
judicial perception of reservation, while applying a 63-year-old Constitution
which has affirmative action written into it. Can we seriously find fault with
a legislator who wants to know what a judge’s constitutional philosophy is?
Tenure
And
there is a third reason why “outsiders” become relevant. Manpower planning is
not a concept which the judiciary has ever considered important. Over the years
both in pre- and post-collegium days, we have witnessed the spectacle of Chief
Justices of India occupying office for periods like 41 days in the case of
Justice G.B. Pattanaik, approximately one month in the case of Justices
Rajendra Babu and J.C. Shah and as few as 18 days in the case of Justice K.N.
Singh. There has not been a single occasion when a judge has renounced the high
office to make way for a colleague who would have a longer tenure and would
thus serve the institution better. The proposed commission needs to bring in
human resource consultants as well, to ensure that only those with sufficient
tenures will occupy these positions.
Similarly,
High Court Chief Justices have occupied their positions for as little as three
to six months en route to the Supreme Court. Little concern has been shown for
the effect that these short-term appointments have on administration in the
High Courts. Nor has there been too much worry about the quality of
recommendations for judicial appointments by collegiums presided over by such
short-term Chief Justices, who would really have had no occasion to assess the
competence of such persons. There have also been instances where senior judges
have been appointed as High Court Chief Justices for just a few days before
their retirement, so that they do not lose out on the benefits of retiring from
that higher position. While the judiciary has found it perfectly reasonable and
legitimate to mandate a two-year term for Directors General and Inspectors
General of Police (Prakash Singh, 2006), that
unfortunately is not sauce for the gander.
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