Wednesday, February 27, 2008

Justice Khanna and civil rights (Publised in the New Indian Express, Thursday February 28 2008)
IN the passing away of Justice H.R. Khanna, the nation has lost a man to whom democracy was an ethical concern. Khanna staked his elevation as Chief Justice to uphold the cause of democracy and civil rights of the people. His courage and conviction were in vain because his was a lone voice in those dark days when Indira Gandhi went about pulling all the stops to undo all that the Constitution sought to establish.

It will be appropriate to recall the case — A.D.M. Jabalpur vs. S.K.Shukla —and the backdrop to it that made Khanna a hero. Madhu Dandavate, A.B.Vajpayee and L.K.Advani, all MPs then, were arrested and detained under the MISA while they were in Bangalore as part of a Parliamentary delegation. They approached the Karnataka High Court on grounds that they were not served with the grounds for detention when they were picked up late in the night on June 25, 1975. An Ordinance issued on June 27, 1975 amending MISA, to exempt the police from disclosing the grounds for detention could not be applied in this case.

The plea was to be taken up by the Karnataka High Court and it was clear that the arrests would not be upheld because criminal law cannot be applied retro-effective.Indira’s regime found a way out. They were released just before the case was to come up before the Karnataka High Court on July 17, 1975 and arrested afresh, immediately and this time it was legal to detain them without disclosing the grounds! The detention this time was under the provisions of the June 27 Presidential Order amending MISA.

The Karnataka High Court, meanwhile, admitted a habeas corpus petition on their behalf under Article 226 of the Constitution. And similar petitions were moved in high courts across the country. All these petitions challenged the constitutional validity of the June 27, 1975 Presidential Order barring the courts from entertaining petitions seeking a writ of habeas corpus. Among them was one in the Jabalpur Bench of the Madhya Pradesh High Court moved by another detenue, S.K. Shukla. The court admitted the petition and issued a writ of habeas corpus on September 1, 1975.

The High Court verdict was challenged by Indira’s Government in the Supreme Court. A five-member bench consisting of Chief Justice A.N.Ray along with Justices H.R.Khanna, M.H. Beg, Y.V. Chandrachud and P.N. Bhagwati before whom all the cases of that kind from the various high courts were bundled passed its order on April 28, 1976.In a 4 to 1 judgment, the majority upheld the June 27 Presidential Order as valid and denied the political prisoners the right to legal remedy against arbitrary arrests and detention.

Justice Khanna dissented with the majority and paid the price. Despite being the senior-most judge, he was superseded by Justice Beg in January 1977 to become the Chief Justice and resigned in protest.

In an exemplary display of courage and conviction, Justice Khanna declared: “As observed by Chief Justice Huges, Judges are not there simply to decide cases, but to decide them as they think they should be decided, and while it may be regrettable that they cannot always agree, it is better that their independence should be maintained and recognised than that unanimity should be secured through its sacrifice. A dissent in a Court of last resort, to use his words, is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting Judge believes the court to have been betrayed.”

The story will not be complete without quoting what the others stated to justify their verdict. Chief Justice Ray admonished the counsel for the detenues who brought to mind the Nazi gas chambers and said: “People who have faith in themselves and in their country will not paint pictures of diabolic distortion and mendacious malignment of the governance of the country.” Justice Beg said: “ We understand that the care and concern bestowed by the State authorities upon the welfare of detenues who are well housed, well fed and well treated, is almost maternal.”

And Justice Chandrachud went a step further to say: “Counsel after counsel expressed the fear that during the emergency, the executive may whip and strip and starve the detenue and if this be our judgment, even shoot him down. Such misdeeds have not tarnished the record of Free India and I have a diamond-bright, diamondhard hope that such things will never come to pass.”

While all those who appealed against their detention (despite losing the case) survived to be released in early 1977, there were others like Rajan, a student of the Regional Engineering College, Calicut, who was killed in the torture camp. And Snehlatha Reddy, an eminent film actor from Bangalore, did not live for long after she was released from a torture cell.

Lawrence Fernandes, picked up from his home in Bangalore during the night, held in illegal custody for a few days, beaten up continuously suffering several fractures all over his body and finally sent to jail as a MISA prisoner.Udaya Shankar, a college student from Mangalore was held in custody without a warrant, beaten until his body turned blue. He was left in that condition without medical attention. Rabin Kalitha, a CPI(M) activist in Guwahati was picked up, tortured and was held in handcuffs even when he was hospitalised for treatment. He died in hospital.

And Chitti Babu and Sattur Balakrishnan, both from the DMK, were killed after police torture in Chennai.This, probably, was the “maternal” care that Justice Beg talked about. JP, now on parole because his health had deteriorated while being held at Chandigarh and diagnosed to be suffering from renal failure, had this to say about the apex court’s verdict: “The decision has put out the last flickering candle of individual freedom. Mrs. Gandhi’s dictatorship both in its personalised and institutionalised forms is now almost complete.”

The implication of the April 28, 1976 verdict by the Supreme Court was that Rajan’s father, Professor Eachara Warrier could not seek a writ of habeas corpus (even to realise that his son was dead) until Indira’s Congress was defeated in the elections and the Emergency was lifted on March 21, 1977.

The stamp of approval by the apex court that Articles 14, 21 and 22 of the Constitution did not operate in case of the Emergency prisoners meant that the bold pronouncements by a number of High Court judges, across the country, ordering the release of MISA detenues on bail and quashing the charges against them were nullified. All those arrests and subsequent detention without charge were now perfectly legal.

Justice Khanna will be remembered for the exemplary courage he showed in that case. And he was prepared to jeopardise his own rise as Chief Justice of the Supreme Court only because he considered it his moral duty to protect the democratic rights that the Constitution guaranteed to the citizens.

Wednesday, February 20, 2008

Some rambling thoughts on the case for teaching tamil language in schools!!!

The Supreme Court order upholding the plea by the Tamil Nadu Government that Tamil language be made a compulsory subject for all upto the Tenth standard is indeed a welcome measure. Having said that, it is necessary to raise and discuss a few issues.

One is that the syllabi in schools will have to be reoriented so that the students are taught the language, in all its dimensions, than restrict it to teaching literature in the language. While learning a language will be of immense use to expose the student to the socisty, its cultural specifics and the history of the region that these students live, it can be achieved only where the teacher is equipped to handle the class in such manner.

In other words, an exposure to the literary works in Tamil, whether it is Purananuru, Agananuru or Thirukural, Silapadhigaram, Manimegalai or Subramania Bharathi, Bharathidasan, ThiruVi Ka and such other works of the kind will make immense sense only if the teacher, over the years is prepared to go that extra mile and explain the society, in all its dimensions, to the school students.

A case in point would be where the student, when she/he reaches Class 10 is exposed to the stages of transformation of the Tamil society from the pre-Sangam age to the Sangam age and then to the post Sangam age: This historical approach to teaching the literary works will then help the students to not only learn the language but also the fact that the Tamil society, like it is the case with all other societies in India and across the world, had transformed from monarchy to democracy.

In doing so, the student will then be able to perceive personalities in history with the benefit of hindsight and thus learn to appreciate literature as a reflection of the continuously changing society. And once this is achieved, it is then possible to provoke the student to read more and more such works than the ones prescribed in their syllabus. The problem is that this is not happening anywhere in the schools and the end result is that the school children are made to simply memorise verses and couplets as well as their prosaic renderings in the guides.

This approach is simply bad. And by reducing the subject into a drab exercise of learning by rote, the school children are alienated from the learning process. And hence they begin to hate the subject and then look for an easier option: French, incidentally, is the most favoured option in almost all the schools in Chennai. And that is because the language teacher, in that case, does not teach the classics in French literature and instead restricts to just spoken French. This is as much a tragedy because mere spoken knowledge of a language without having the exposure to the culture, the tradition and the society is not knowledge and is hence useless.

This point takes us to the more important issue. And that is the different systems of schooling in Tamil Nadu and the fact that these different systems – the matriculations schools and the aided private schools – cater to those strata in society that can afford to pay for the education as against the poor who have no other option than to send their children to the government schools. The preference for any other language than Tamil is a factor in these schools.

And it is a fact that children are sent to these private schools only because the parents believe, for very good reasons, that sending their children to such schools alone will equip them to get a ``better’’ job. In other words, there is the pronounced preference for English language and following from this the penchant to opt out of Tamil. And such parents are influenced to think that way by political leaders of all hues and other influential persons who prefer to send their children to convents where the students are punished if they communicate in Tamil!

Sunday, February 03, 2008

It's too early to pop the cork
(In Economic Times, 2 Feb, 2008)

After winning the elections in Gujarat and Himachal Pradesh, the BJP leaders are already talking about getting back to power at the Centre. It is only natural that the party and its supporters behave that way. The BJP, after all, saw things the same way after the party won the assembly elections in Madhya Pradesh and Rajasthan in November 2003 and advanced the general elections to May 2004. The rest is history.

The BJP may have reasons to celebrate the verdict from Gujarat and Himachal Pradesh. The party, after all, was pushed into a low after its debacle in May 2004. The situation worsened with Atal Bihari Vajpayee’s failing health; its disastrous performance in Uttar Pradesh contributed immensely to the low morale of its ranks across the country. The Gujarat elections definitely came as a morale booster to its ranks and particularly so after the media suggested a Congress revival in Gujarat.

All this, however, is different from concluding that the BJP will emerge as the natural choice in the next general elections. And this is so despite the fact that the Congress-led United Progressive Alliance remaining a rickety arrangement, creaking every moment and also the Left combine continuing to bark at Manmohan Singh and his regime. The fact is the political discourse, at the national level, continues to be guided by a set of factors that are specific to regions within the various states and fragmented in all senses of the term.

Take, for instance, the ground reality in Uttar Pradesh. The BJP is in no better position now than it was in May 2004. The contest from Uttar Pradesh remains between the Samajwadi Party and the Bahujan Samaj Party. And it is most likely that the two parties will end up winning at least 60 Lok Sabha seats from out of the 80 seats from the state. That would mean that the Congress and the BJP will end up sharing only 20 seats from the state and this will be the same as it happened in May 2004.

Moreover, with Vajpayee now out of the scene, it is unlikely that the Brahmin votes will remain with the BJP in Uttar Pradesh; and in the emerging scheme of things, the BSP and the Congress could gain some more seats in the process and end up with a couple of seats more than they won last time. The fact is that Rajnath Singh, as party president, has failed to capture the imagination of the Rajputs and the reason is that it is now clear that Singh is there in that post only for symbolic reasons. The Samajwadi Party remains the favoured destination of the local lords from this community and a strong BSP will only further this trend.

The point is that the BJP was reduced to being the second largest party in this Lok Sabha primarily because it lost heavily from Uttar Pradesh in May 2004. From 29 in 1999, the BJP’s score from Uttar Pradesh was just 10 in 2004. The same is true about Bihar too. The BJP won just five Lok Sabha seats from the state in 2004 against its 1999 score of 23.

In other words, the BJP lost as many as 37 Lok Sabha seats from Bihar and Uttar Pradesh between 1999 and 2004; and this led to the fall in the party’s strength from 182 in 1999 to 138 in 2004. While there is no way that the party can hope to substantially improve its position in Uttar Pradesh, the scope for improvement in Bihar is only marginal. The anti-incumbency factor is bound to affect its prospects and Lalu Prasad Yadav is not yet a spent force in Bihar. The Janata Dal (U) and Nitish Kumar are no longer what they were in May 2005.

In addition to this, the BJP is in a pretty bad shape in Madhya Pradesh and Rajasthan, the two states from where the party had done pretty well in May 2004 and is most likely to lose, at least a handful of seats, in the next election. That would mean that the possible gains from Delhi, Himachal Pradesh and Punjab (where the party performed poorly in May 2004) will at best offset the losses from Madhya Pradesh and Rajasthan.

In Maharashtra too, the state of the Shiv Sena as well as the BJP after Pramod Mahajan’s death leaves little hope for a sweep; the BJP-Sena combine, in any case had won as many as 25 seats together in May 2004 and the tally could even come down the next time. As for Karnataka, the BJP certainly can hope to do well. But then, the fact is that the party had done pretty well in May 2004 too. It had won 18 Lok Sabha seats and even if things work the way its leaders wish, the gains cannot be more than a couple of seats.

The same is true of Gujarat too. The BJP had won 14 seats in May 2004 and even if it sweeps Gujarat, it will only help the party to offset the losses it is likely to suffer in Chhattisgarh.

The other states from where the BJP can hope for some accretion in its strength would be West Bengal and Tamil Nadu (if Mamata Banerjee and Jayalalithaa oblige) and this too will be too little to take the party to its 1999 status of 182 seats. As for the possible allies, the BJP-led combine may look forward to an accretion in strength from the AIADMK (which is unrepresented in the Lok Sabha now) and the Trinamool Congress (which has only one MP now) as additions. The others — BJD, Shiv Sena, Akali Dal and the JD(U) — had done their best even in 2004 and the strength of these parties cannot increase substantially in the next elections.

They may at best retain the same numbers. And as for the Telugu Desam Party, the BJP can hope for its support only if it stays away from the Telengana state demand! All this will mean that the BJP, in order to head a ruling coalition will have to work hard on retaining its old allies and also to muster new ones.

While the first part of the task may not be too difficult given the fact that such parties as the Trinamool Congress, the TDP, the BJD and the JD(U) do not have any other option but to stay with the BJP, the second part seems difficult. The AIADMK is perhaps the only other party, apart from the old constituents of the 1999 NDA that seems prepared to team up with the BJP as of now. And the BJP leaders must, in fact, dread this ‘opportunity’ than celebrate it given their experience in February-March 1999. But then, the fact that the DMK has no other way than stick with the Congress (the Karunanidhi government will fall if the party decides to go with the BJP) also leaves the BJP with no other choice in Tamil Nadu.

The point is that the BJP’s buoyancy is certainly without basis, at least in the context in which things are today.