Forced to be a Man

Here is a woman,
Left out in the open,
To live on her own,
In storm and thunder,
In summer, as well as winter.

She cries,
She shrieks,
But alas, no one hears.

Shedding all her fears,
She then roars, 
And growls.

Then comes a day,
When the world bows,
As she acts upon her vows,
Revering her, thinking
That she's (still) a woman.

But by then she knows
She's no more a woman,
She's now instead, a man, 
In the body of a woman.

- Navneeta Dash

Yet Another Act of ‘Emasculation of Judiciary’

As published in The Pioneer- www.dailypioneer.com/state-editions/bhubaneswar/yet-another-act-of-emasculation-of-judiciary.html

Monday, 07 July 2014 | NAVNEETA DASH | in Bhubaneswar

There was nothing that barred the Modi Government from seeking reports of the CBI and the Intelligence Bureau that questioned the professional conduct and suitability of Gopal Subramanium’s candidature for judgeship in the Supreme Court. But in view of the manner in which it was handled by the Government, mala fide is writ large.

If there were adverse reports received against him, the Government should have forwarded them to a collegium along with the file containing Subramanium’s candidature requesting it to reconsider its decision. The fact is that files clearing recommendations of all the other candidates were returned except that of Subramanium. It was only after coming to know about such non-return of his file, Subramanium chose to withdraw his consent for his candidature as an SC judge.

Let us not forget that it was the same Subramanium who had resigned as India’s Solicitor General on moral grounds during the UPA Government’s tenure. This should speak volumes about the paramount importance he attaches to his principles and dignity as a professional, when he chose to step down. However, it is a matter of shame that no one from the Bar or the Bench backed him at such an hour of peril.

Independence or autonomy is the heart and soul of judiciary, lack of which would render the judiciary as good as a toothless tiger. Encroaching into the realm of affairs of the judiciary, especially into its independence in particular, is certainly not something expected out of the executive.

The attack of the executive on the autonomy of the judiciary probably started in 1973 when it was none other than former Prime Minister Indira Gandhi who was heavily criticised for appointing Justice AN Ray as the Chief Justice of India, deriding the long-standing convention of seniority, by superseding three other SC judges, who were senior to Justice Ray.

Mistakes should be learnt from, and not repeated. Modi cannot be allowed to replicate the mistake that Indira Gandhi did, what was aptly described by MC Chagla as ‘emasculation’ of the Indian judiciary in his autobiography ‘Roses in December’.

The Modi Government ruining Subramanium’s candidature for judgeship was nothing but a tight slap on the autonomy of the Indian judiciary. Such an act deserves outright and indignant condemnation not just from members of the Bar and the Bench, but from people belonging to all strata of the society as Modi seems to be determined to outshine Gandhi, when it comes to running a dictatorial Government under the guise of a democratic one. 

The ‘collegium system’ of appointment of judges was a ‘judicial invention’ that evolved in 1993 through the Second Judges case (Supreme Court Advocates-on Record Association v. Union of India) in which it was held that such a system was to be a “participatory consultative process in which the executive has the power to act as a mere check on the exercise of power by the Chief Justice of India, to achieve the constitutional purpose. Thus, the executive element in the appointment process is reduced to the minimum and any political influence is eliminated.” In such a backdrop, wasn’t it bounden duty of the judiciary to protect its own ‘invention’ from any kind of executive interference?

The incumbent Chief Justice of India took so much time to break his silence and condemn such an act. He says he would quit as the CJI if the independence of the judiciary is compromised. But the question here is that would his quitting make things any better, when the damage has already been done?

Besides the CJI, where were the rest of the judges and lawyers all over the country? Why did the judiciary as a whole not rise to protest against such an act of highhandedness of the executive? Where are the Chaglas and Palkhivalas of today to prevent the judiciary from yet another ‘emasculation’ since emergency?

The time has arrived for India to see its own Chief Justice battling as an advocate for the independence and the autonomy of that very judiciary which he heads. What justice will the judiciary impart when the highest kind of injustice has been done to the judiciary itself, leaving it lamenting helplessly, the loss of a prospective judge like Subramanium. Needless to say, Subramanium’s withdrawal of consent for judgeship is definitely a loss not just for the judiciary alone, but for the entire country.

Under the barely-a-month old Modi regime, non-NDA Governors have been asked to resign, and incumbent heads and members of top statutory bodies like the National Disaster Management Authority, National Commission for Women, National Commission for SCs and STs weren’t an exception either. The Modi Government has made it amply clear through such acts that it is not going to tolerate any person who does not toe its line in any topnotch Constitutional post. After making such audacious moves, it isn’t surprising that it did not spare a judicial appointment either!

No matter how many guesses we make about the actual reason for the non-returning of the file containing Subramanium’s candidature, now there is no use lamenting. Instead, every possible move should be taken that no such lawyer whose name has been recommended for judgeship should be subject to such malicious humiliation by the executive ever again, after such an episode.

The battle between the executive and judiciary goes on, and the executive continues to make all possible attempts to trammel and subvert the autonomy of the judiciary. However, the judiciary must rise and exalt its own independent existence, under all circumstances. If this continues, achhe din (good days) are surely not coming for the Modi Government; instead, he would face virulent criticism from all quarters.

(The writer is an advocate in the Orissa High Court)

God, give us men!

Josiah Gilbert Holland penned these lines in one of his poems in 1872:-

“God, give us men! A time like this demands

Strong minds, great hearts, true faith and ready hands;

Men whom the lust of office does not kill;

Men whom the spoils of office can not buy;

Men who possess opinions and a will;

Men who have honor; men who will not lie;

Men who can stand before a demagogue

And damn his treacherous flatteries without winking!

Tall men, sun-crowned, who live above the fog

In public duty, and in private thinking….”

Such are the men we need today. Such are the men we need to be judges today. Was Gopal Subramanium such a man? Asking such a question has now been rendered futile by the Narendra Modi Government, after it scuttled Mr. Subramanium’s chances of elevation as a Supreme Court judge.

Of course, when an individual is being considered for appointment to such a top-notch constitutional post, scrutiny of every possible kind should be mandatorily done. There was nothing that barred the Modi Government from seeking reports of the CBI and the Intelligence Bureau that questioned the professional conduct and suitability of Mr. Subramanium’s candidature for judgeship. But in view of the manner in which it was handled by the Modi Government, mala fide is writ large.

If such were the kind of reports received, the Government should have forwarded them to the collegium along with the file containing Mr. Subramanium’s candidature requesting it to reconsider its decision. The fact that files clearing recommendations of all the other candidates were returned, except that of Mr. Subramanium, speaks loud about the ‘fairness’ of the Modi Government. It was only after coming to know about such non-return of his file, Mr. Subramanium chose to withdraw his consent for his candidature as a SC judge.

Let us not forget that it was the same Mr. Subramanium who had resigned as India’s Solicitor General on moral grounds, during the UPA government’s tenure. This should speak volumes about the paramount importance he attaches to his principles and dignity as a professional, when he chose to step down. However, it is a matter of shame that no one from the Bar or the Bench backed him at such an hour of peril.

Independence or autonomy is the heart and soul of judiciary, lack of which would render the judiciary as good as a toothless tiger. Encroaching into the realm of affairs of the judiciary, especially into its independence in particular is certainly not something expected out of the executive and must be execrated by all possible means.

The attack of executive on the autonomy of the judiciary probably started in 1973 when it was none other than ex-PM Indira Gandhi who was heavily criticized for appointing Justice A N Ray as the Chief Justice of India, deriding the long-standing convention of seniority, by superceding three other SC judges, who were senior to Justice Ray.

Mistakes should be learnt from, and not repeated. Narendra Modi cannot be allowed to replicate the mistake that Indira Gandhi did, what was aptly described by M.C. Chagla as ‘emasculation’ of the Indian judiciary in his autobiography ‘Roses in December’.

The Modi Government ruining Subramanium's candidature for judgeship of the Supreme Court was nothing but a tight slap on the autonomy of the Indian judiciary. Such an act deserves outright and indignant condemnation not just from members of the Bar and the Bench, but from people belonging to all strata of the society as Mr. Modi seems to be determined to outshine Mrs. Gandhi, when it comes to running a dictatorial government under the guise of a democratic one.

The ‘collegium system’ of appointment of judges was a ‘judicial invention’ that evolved in 1993 through the Second Judges case (Supreme Court Advocates-on Record Association v. Union of India) in which it was held that such a system was to be a “participatory consultative process in which the executive has the power to act as a mere check on the exercise of power by the Chief Justice of India, to achieve the constitutional purpose. Thus, the executive element in the appointment process is reduced to the minimum and any political influence is eliminated.” In such a backdrop, wasn’t it the bounden duty of the judiciary to protect its own ‘invention’ from any kind of executive interference?

The incumbent Chief Justice of India took so much time to break his silence and condemn such an act. He says he would quit as the CJI if the independence of the judiciary is compromised. But the question here is that would his quitting make things any better, when the damage has already been done? 

Besides the CJI, where were the rest of the judges and lawyers all over the country? Why did the judiciary as a whole not rise to protest against such an act of dictatorship of the executive? Where are the Chaglas and Palkhivalas of today, to prevent the judiciary from yet another ‘emasculation’ since Emergency?

The time has arrived for India see its own Chief Justice battling as an Advocate for the independence and the autonomy of that very judiciary which he heads. What justice will the judiciary impart when the highest kind of injustice has been done to the judiciary itself, leaving it lamenting helplessly, the loss of a prospective judge like Mr. Subramanium. Needless to say, Mr. Subramanium’s withdrawal of consent for judgeship is definitely a loss not just for the judiciary alone, but for the entire country.

Under the barely-a-month old Modi regime, non-NDA Governors have been asked to resign, and incumbent heads and members of top statutory bodies like the National Disaster Management Authority, National Commission for Women, National Commission for SCs and STs weren’t an exception either. The Modi Government has made it amply clear through such acts that it is not going to tolerate any person who does not toe its line in any top-notch constitutional post. After making such audacious moves, it isn’t surprising that it did not spare a judicial appointment either!

As Mr. Modi is all set to crown his own close aide Amit Shah as the BJP’s new President, it is an open secret that Mr. Subramanium was the amicus curie in the Sohrabuddin fake encounter case, in which Shah faces charges of murder of Sohrabuddin and his wife. This probably was the primary reason why Mr. Subramanium’s candidature invited the ire of Mr. Modi and company.

No matter how many guesses we make about the actual reason for the non-returning of the file containing Mr. Subramanium’s candidature, now there is no use lamenting. Instead, every possible move should be taken that no such lawyer whose name has been recommended for judgeship should be subject to such malicious humiliation by the executive ever again, after such an episode.

The battle between the executive and judiciary goes on, and the executive continues to make all possible attempts to trammel and subvert the autonomy of the judiciary. However, the judiciary must rise and exalt its own independent existence, under all circumstances.

Mr. Subramanium was a man, whose chances of becoming a judge now stand marred due to the Modi government. If this continues, achhe din (good days) are surely not coming for the Modi government, instead, criticism most definitely is. But if not Mr. Subramanium, then God, give us men! Men to rule us, to serve us and to judge us!

Let's Have A National Language

C O M M E N T
By Navneeta Dash*

(As published in Odisha Sun Times- www.odishasuntimes.com/66261/lets-national-language)

A language has the power both to unite and divide masses, depending on what we allow it to do. This was aptly understood and implemented in India at the time of her Independence, when her states were reorganised on linguistic basis.

Enmeshed in hundreds of languages causing unity and division within her, even after 67 years of Independence, India still struggles hard to christen one of her languages as her ‘National Language’ – to represent the unique identity of her people at a global platform.

At this juncture of the 21st century, this seems to be the imperative need of the hour. The recent circular issued by the Narendra Modi Government asking for the usage of Hindi by government officials in social media accounts has further sparked off this debate.

Now arises the million-dollar question as to which language deserves to be crowned as India’s National Language. To begin with, Sanskrit, the lingua franca of ancient India, was used and revered all over the country centuries ago.

However, it is a matter of utter shame that such a great language had to be ‘discovered’ in the 1780s by Sir William Jones (as Westerners describe it) to the occidental world and expounded its virtues and perfections. Assuming that now not much can be done to restore Sanskrit to its pristine glory, the least we can do is to save the extant lingua franca that is Hindi from meeting a similar fate.

Then coming to see the overwhelming use of English in India since British rule, should we keep on revering and using a Western language like English, when it were those very Westerners who dubbed India as a Third World country? Many celebrated Indians including Amitabh Bachchan have openly voiced their discontent against India being called as a Third World country.

So should we still adopt and increasingly use a foreign language like English which is native to Westerners, just because we cannot arrive at a consensus to choose one of our own indigenous languages as our ‘National Language’ and bow down before it with respect, just as we are expected to do, to the National Flag and the National Anthem, as our fundamental duty under Article 51A of our Constitution?

In this modern era where everything under the sun is anglicized, hope we Indians do not lose our own distinct identity while pursuing our craziness for English, in order to go global. Of course, the love for change in we Indians isn’t going to die, especially when it comes to emulating the West. But can we forget our own roots for the sake of change?

The Constituent Assembly while arriving at the crisis-saving Munshi-Iyengar Formula agreed to treat Hindi as the ‘official language’ of the Union. However, in the Constitution, Hindi remains an ‘official language’ (Rajabhasha) and is yet to be accorded the status of India’s ‘National Language’ (Rashtrabhasha), fearing divisive tendencies even before Independence.

Looking at the constitutional provisions, Article 343 mandates that the official language of the Union shall be Hindi. The Constituent Assembly clearly intended for the steady increase of Hindi instead of English as can clearly be deciphered from Article 120 (2). So the circular issued by the Modi government did nothing new, but was following an already existing constitutional directive under Article 351.

In a democracy, it all ultimately boils down to majority. A party rules if it gets majority. A Bill is passed only by majority. So language isn’t an exception. Going by that logic, since it is Hindi which is spoken by the majority, it should grab the cake as the National Language. Saying so, I do not mean that Hindi is the best and most superior among all Indian languages. In fact, I myself come from a non-Hindi speaking state, and neither is Hindi my mother tongue.

It is usually seen, that when it comes to choosing Hindi, the ones who revolt taking the plea that it would amount to imposing a language just for the sake of unity of the nation, are usually politicians with vested interests who know saying this will fetch them more votes. But when such remarks come from politicians, and the media hypes thIn fact, it is needless to spark off a debate as to which would be the best Indian language to represent us worldwide. That is because every such language is the mother tongue of a certain class of Indians. And for every Indian, his mother tongue is the best one for him and with due respect to all other women, howsoever beautiful they may be, he shall bow down only before his own mother. So did J. Jayalalitha, M. Karunanidhi and so will many other Indians, as expected.