Shiva Kant Jha

(Postscript to my article on "NJAC: Triggering a Great Constitutional Question")

By Shiva Kant Jha

We had known how Rafael Correa, the president of Ecuador, had criticised the Chevron Corporation, a giant MNC from the USA, for having imperious tentacles in most parts of the world. He accused it of "deliberately polluting" a part of the heavily populated area of that country. He considered it guilty of polluting the reputation of the country, both through the litigious process and unabated propaganda. He felt that this was done "to destroy the reputation of our justice system and government." But. on reading the reports of the arguments going on in the Supreme Court of India before the 5-Judges Bench considering the question of the Constitutional validity of the NJAC, certain ideas flashed in my mind a short resume of which is drawn up in this article which should be treated as a Postscript to my article "NJAC: Triggering a Great Constitutional Question" (already on the internet). On reading these reports, I felt worried at the degradation in our system where an Attorney General castigated a number of Judges of the High Courts and the Supreme Court for their serious omissions and commissions. This was being done to prove that the collegium system has malfunctioned on account of the appointment of many malfunctioning judges whose lapses wrought "havoc" in the judicial administration of this country. On reading the comments reported, I venture the following comments so that the balance of justice is not tilted against our Judiciary. Reading such comments, coming from an eminent lawyer, is a traumatic experience. My brief comments, made pro bono public, are thus summarised: :

It is possible for any dull witted person to convince himself that whatever promotes the end of his endeavour is all right;

It is shocking find that if so much of lava had accumulated on seeing the malfunctioning on the part of the Judges; why were these pretending benefactors for larger public good so silent when those Judges were not acquitting themselves well;

If the great luminaries of the Bar thought it prudent to remain silent when wrong was being done, as was done by the great Bhishma and Drone when the modesty of Draupadi was being ravished in the Court of the Kauravas, it is unwise to become so passionately critical later merely to promote an agenda open to serious reservations [ see my article on "NJAC: Triggering a Great Constitutional Question" now on my website: shivakantjha.org];

If so much of wrath and venom was to be expressed against certain members of our citizenry, who had functioned as our Hon'ble Judges, justice would have been promoted better if those gentlemen could have been heard, best if done at the forum where our Government chose to impale them on the wheel of fire, next best by calling upon them to answer before a judicially appointed commission, or people's commission;

if so much was wrong with those judges who were weighed by the Attorney General and were found wanting, why were they not impeached? It is no answer that the Government could not get the number of supporters in Parliament to impeach the Judges, even when they deserved that censure;

If such judges, who deserve to be impeached. cannot be impeached because the Government cannot gather support in Parliament, then before "We the People'' of this country both the Parliament and the Executive stand to be weighed for their worth [why should they betray their Constitutional duty for this reason or that, all extraneous to the discharge of their constitutional duties?];

If our Government condemns those Judges the way it has been reported in the press, the MNCs would surely succeed in convincing the players at the foreign fora that Indian Judiciary is unworthy, and it cannot be trusted [ In fact this is the hidden agenda of the Big Business and the MNCs for whom this country is just a land to promote their trade and business. I need not dwell on this aspect of the matter as I have said a lot in my "Global Economy: a Deal with the Devil" now on my Website www.shivakantjha.org.] ;

If the collegium system has malfunctioned, we must set up an alternative to it that does not pollute the stream of justice by importing muck from the corporate world, or from amongst the gladiators for the Big Business, and the MNCs whose worth is advertised through countless ways mostly unworthy;

If the civil society constitutes a group of the consumers of Justice, we are surely in a phase where Lady Justice should not remain blind. Lord Denning had aptly said in Jones v. National Coalbord : "'It is all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies truth: and the less dust there is about the better" [ She must see realities of our society to respond to the deeds of Adam Smith's 'Invisible Hand' of the Market, and also the misdeeds of the heartless economic gladiators of our day.];

If the ''Civil society'' needs to be consulted one should first be clear about what this nebulous concept means taking into account its composition, agenda, inherent drives, and the measure of its freedom from the pressure of the vested interests (even a cursory reading of the article in the Wikipedia would convince you that the concept of Civil Society' is the darling of the elites of the present-day market-driven globalization];

If legal acumen is not considered the sole criteria for the appointment of judges, then we must recognize the traits which inhere in sound judicial sensibility determining judicial decision-making in an clement environment which can produce persons having (i) sound knowledge of law so that they can see through the game that a case presents, (ii) capacity to take a detached view of the matters, (iii) ability to restrain their stock-responses, concealed references, and other forms of crypto-psychic tilts, (iv) competence to take decision on what the Geeta says, 'viveek'(wisdom), and (v) capacity to hold the scales of Justice even when exposed to the pressure and persuasion.

If someone is really so learned and wise (and we succeed in discovering him in the hurly-burly of our times), no harm in associating such person in the appointment process of the judges [ after all the words described on the logo of our Supreme Court had been stated by an ordinary housewife, Gandhari], but will the lobbyists, pressure groups, tempters, and persuaders allow us to discover such persons in this locust-eaten years of the market-driven globalization where the corporations rule and the world is virtually a mart, and the humans are fast becoming commodities on sale] ;

It was too much to plead that Satyajit Ray, M S Swaminathan, Verghese Kurien, Bill Gates, Steve Jobs or a cricketer or film "star deeper understanding of society and culture than judges" . I do not think this ex cathedra statement is based on any research. Craftsmen and artists, despite their assumed eminence in their fields, can not be considered competent to choose the Judges to administer justice in accordance with our Constitution establishing a welfare state with 'socialist 'commitments. See my article on "Our Constitution at work" (see at http://www.shivakantjha.org/pdfdocs/constitution/contitution_at_work.pdf].

If any body is constituted to exercise public power it must be subject to judicial control through Judicial review as every exercise of public power must have legal authorization, and must conform to the Constitutional restraints [ In our Constitution, Article 32 clearly says this. Under the US Constitution it was distilled out by Chief Justice Marshall, in Marbury v. Madison, from the words of his judicial oath. We do not know, whether NJAC is going to be on the Trident of Lord Shiva or just an ordinary body discharging public duty accountable under our law for its actions and inactions.]

If blame game is not so brazenly played under the public gaze, it would be good for our democracy and Constitution. It is a terrible comedown if well informed learned people start loving witch hunt as long "it's someone else's witch being hunted." Whichever system is adopted for the appointment of the Judges, it would not be free from all defects. First, as beauty resides in the eyes of a beholder, blemishes are crafted by the mind that contemplates on matters. . The dichotomy of Good and Evil is founded on an erroneous view dear to the West. In the Western philosophy the Good and Evil are the warring forces; but in our worldview the Supreme transcends Good and Evil both. We believe that the universe has been made by kneading together both so that the humans can transcend the dichotomy and evolve through their karma. Those who love blame game should study the Mahabharata. Krishna never considered the Pandavas all virtuous as they too had their share of faults. His verdict was only that under the aspects of the prevailing facts and circumstances wrought by all the actors, the Pandavas were less to be blamed. In any decision-making on the process of the judicial appointment, we cannot ignore the trends of this corporate globalization which has made the nation States servile. I had discussed these matters in my article on "NJAC: Triggering a Great Constitutional Question" already referred. In some rare moments Destiny demands a prudent decision from the people, who constitute a political society and an insightful decision from the organs of polity set up by the Constitution created by the "We the People". . Not only the text and the context of the Constitution are to be seen, but also the strategies and the stratagems of the global vested interests are to be examined.

If our federating States too are passionate to intervene on the side of the Government, then, I wish, they should reflect on one question: Why did they decide not to agitate against the WTO Treaty that destroyed some of the basic features of Constitution? If the WTO Treaty was signed by our executive government without any deliberation in Parliament, and the Constitutional amendment, authorising the setting up of the NJAC, is done in super fast hurry, we see black clouds swarming over the sky. It is our democratic right, whatever the lobbyists and the compradors say, to demand answer from every authority to the question that had been framed so suggestively in the Holy Biblical: "By What Authority Do you Do These Things?" [ Matthew 21:23; Mark 11:28: & Luke 20:2}.

I do not want to meander with my comments on the reports appearing in the press. I might have desisted from comments on the things going on in the Court. But as these things are now in the public domain, I have made the aforesaid comments for the information of our citizenry so that they can respond to the challenge with wisdom and sagacity. But I would like to end this with a quote from my memoir, ON THE LOOM OF TIME: Portrait of My Life and Time (2nd ed,20140) pp. 199-200. It gives us sound insight into the role-performance. I would not reflect on what the story means in the present context. I think my astute readers can draw implications more ably than I. To quote it:

"A rich man of Calcutta went for a change to Hazaribagh. Such visitors were known at Hazaribagh, a hill station now in the State of Jharkhand, as the 'changers'. Those days a lot of persons used to spend a month at Hazaribagh enjoying its scenic beauty and its salubrious climate. He engaged a young beautiful woman from Sonagachhi (a red-light area) to play the role of his wife while he stayed at Hazaribagh. The lady, while there, played the role of wife with remarkable perfection. She wore sari with wide red border, and bore at her forehead a deep vermilion mark. The parting of her hair had a prominent deep red vermilion line skilfully engineered to taper off underneath her glossy thick long hair. Her earlobes carried earrings with shining 22 carat gold inverted lotus dangling exquisitely and modestly while she interacted with the wives of the other changers in her impeccably perfect style. Her superb black curls ruffled on her wheatish cheeks, and she wore a bashful modest demeanour. She was moderately built and her whole body was shapely. Nature had made her at its leisure. Her voice was rhythmic and melodious. Through her gestures and sound mutations, she expressed her romantic expressions with the mastery of a superb artist. After sometime, she was getting gnawed realising that the 'contracted period' was waning with each passing day. The core situation of the play was her inner transformation through her inner crisis. In playing her role as a Kulabadhu (housewife), she underwent a change at the deepest level of her personality. In her private moments, she felt deeply anguished apprehending that on the expiry of the period of contract she would have no option but to become again a tradingware at the mart of flesh at Sonagachhi. The dramatist had portrayed with great aesthetic fidelity how an avalanche of excoriating distress crushed her. Her gradual evolution from the delighting whore to a dedicated housewife had brought her to a precipice: her inner fire had rid her of her dross: she had become one of pure gold! This crisis in her inner self had been well portrayed in the drama."

Barbadhu became in my mind a metaphor. It illustrated how great change is brought about in one's psyche by one's role performance. Once while having a stroll in the park on Ritichie Road, I met a Bengali gentleman, who had been an eminent Chief Justice of the Calcutta High Court. Some context emerged for me to tell him that I had seen Barbadhu twice. He cast on me a crooked and inquisitorial glance expressing his obvious displeasure. His subdued displeasure turned into evident wrath when, in my reckless bravado, I told him that I learnt an important principle of jurisprudence from that play. I stressed on how an institution could shape a person, and condition one's sensibility. But I have never forgotten his sneering look. Didn't T.S. Eliot say in 'Four Quartet'?

"Human kind Cannot bear very much reality. "

What a comedown! Even this can happen

(Postscript to my article on "NJAC: Triggering a Great Constitutional Question")