Shivakantjha.org - Stray Thoughts & Quotations
QUOTATIONS OF STRAY THOUGHTS
Glossary of my stray thoughts culled from several
sources
A citizen's rights and duties to seek
remedies from our Superior Courts:
‘Any citizen of the Republic of India has right to bring to
the notice of the Supreme Court acts which grossly violate the law and the Constitution
of India. This right emanates from the terms of the Preamble to our Constitution.
In fact, such a right is implied in the constitutions where the ultimate sovereignty
resides in the people. Art 20(4) of the Constitution of the Federal Republic
of Germany even goes to say: “All Germans have the right to resist any person
seeking to abolish the constitutional order, should no other remedy be possible.”
Dr Meghnad Desai very aptly observed: “The hope of India lies not in its politicians
but in its citizens.” The role of citizenry in this phase of Economic Globalization
is very perceptively suggested by Harold Pinter, the 2005 Nobel Prize Winner
for Literature, concluding his Nobel Lecture:
“I believe that despite the enormous odds which exist, unflinching,
unswerving, fierce intellectual determination, as citizens, to define the
real truth of our lives and our societies is a crucial obligation which devolves
upon us all. It is in fact mandatory.” ‘
Shiva Kant Jha, Final Act of WTO: Abuse of Treaty
Making Power p. iv
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Our Parliament and Pax Mercatus
The nation knows what is wrong with our Parliament, and surely
some day, ways would be found/forged to set the institution right. But this
does not prove the point Pranab Babu was making. It is true that things are
moving from bad to worse. This is inevitable, says Erich Fromm in his The
Sane Society , in the mass society which turns man into a commodity; ‘his
value as a person lies in his saleability..'. This is also inevitable in capitalism
as, says Tawney in his Acquisitive Society , capitalism is, at bottom,
incompatible with democracy. This is also because of the compradors and the
lobbyists about whom Vance Packard wrote his triology: The Hidden Persuaders
, The Status Seekers , The Waste Makers rule the roost.
This is also because the Rise of the Meritocracy, about which Michael Young
has written setting his account in 2034, has led to trends towards eugenic nonsense
and monstrosities, which would create the new lower classes –by definition stupid
--- without leadership worth the name , and that the new IQ-rich upper classes
would soon devise ways to keep themselves in power. The waxing corporate imperialism
has already made our best talents exportable merchandise, and our nation would
have to manage with left-overs. Even if all these happen our hope is only through
Parliament. In 1915 Einstein wrote to Lorentz in Holland “that men always need
some idiotic fiction in the name of which they can face one another. Once it
was religion, now it is the State”. On scanning the present realities, shouldn't
we say: “Once it was religion, then it was the State, now it is the Market,
Pax Mercatus”. Market is ruled by corporate oligarchy with which, as indicated
by the Treaties being done, our government has clear symbiotic relationship.
Shiva Kant Jha, Final Act of WTO: Abuse of Treaty Making
Power p . 33
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Our country must move with courage
and imagination; it is now or never .
“Our great country cannot enact Beckett's play Godot
in which nothing happens. Its last lines and stage direction are very suggestive:
Vladimir: Well? Shall we go?
Estragon: Yes, let's go.
They do not move.
Our country must move with courage and imagination; it is now
or never .”
Shiva Kant Jha, Final Act of WTO: Abuse of Treaty Making
Powerp . v
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The impact of Marketization in this
phase of Economic Globalisation
“Adam Smith thought that the ‘invisible hand' of Reason conditioned
the realm of humans by an enlightened self-interest. He shibboleth turned over
years into a virtual divine commandment. The metaphor of ‘invisible hand' caught
on the mind of people so much that it itself turned into a deity said to have
an immanent presence. But the reality of life is that the ‘invisible hand' has
all along been conspicuous by its absence. It is clear from the trends and tendencies
of our day that Market is planting its kiss on all the institutions spawned
by the political realm. It has enchanted the executive to become market-friendly.
Its persuaders have not left outside their spell even Judiciary. Richard Posner
speaks of the Constitution as an Economic document, and proposals have been
made to refashion constitutional law to make it a comprehensive protection of
free markets, whether through new interpretation or new amendment, such as a
balanced-budget amendment. We are bidden to take into account the impact of
legal institutions and rules on markets, and to undertake an economic analysis
of law. Even the role of the State is defined in terms of our deference to the
market. The Chicago University and the Yale Law School are the centres for the
study of law and economics wherein economics dominates legal discourse. Homo
juridicus is becoming homo economicus . Public policy of the
State is manipulated to come to terms with the ideas of the mainstream neoclassical
economics. The triumphal march of the Market, taking all institutions for granted
as its minions, has generated forces which are taking us fast towards the Sponsored
State.”
Shiva Kant Jha, Judicial Role in Globalised Economy First
ed. p.2
Pax Mercatus fathers neo-imperialism that engenders neo-colonialism.
Levithan was tamed by Democracy, but there is nothing in sight which can tame
the shrew of our day
Shiva Kant Jha, Judicial Role in Globalised Economy First
ed. p.3
‘I seek the reader's indulgence to read the story of the two
rickshaw pullers as the story inspired me to launch a PIL before the Delhi High
Court. And without the experience of this PIL I might not have reasons to write
this book. I quote what I had written in Personal Journal:
“Two rickshaw pullers came from Bihar and settled down in
the J.J Colony (Jhuggi Jhopari Colony) in the outskirts of New Delhi. By greasing
the palms of those who mattered they got two small pieces of plots of lands.
As they were under obligations to maintain their families they had brought
them also. To economize on their resources and to reduce the drudgery of the
domestic chores they entered into a gentleman's agreement that whilst lunch
is prepared in the house of one, the dinner be in the house of the other.
They were good friends and had no reason to doubt good faith of each other.
The arrangement worked for sometime. It could not work for all times as one
of the two contracting parties developed greed and wanted to take advantage
of what was not due under the agreement. He racked his brains for some scheme.
He got one, which with Lucifer's logic he pursued for his gains. He not only
sent his wife and two children to eat in the house of the other but also sent
children of some other persons (for consideration, of course) to eat food
as the beneficiaries of the agreement. When questioned, he argued that he
was competent to adopt as many children he wished. To make his point solid
he would invoke custom of his community. As if it was not itself too much,
he sent several ladies whom he described as his wives. They all had, in a
sense, certificates evidencing relationship, which entitled them to the benefits
under the pact. But this state of affairs could not last long .His friend
rightly felt enough was enough. His domestic economy had already crashed.
The wreck could have been avoided if he would have listened to his wife's
advice to end the gentleman's agreement at the earliest. The original meeting
of minds had lost significance. Fraud was evidently at work. After narrating
this story I asked my wife: “ Well dear, was it fair and just for the first
rickshaw puller to do what he did?” My wife instantly replied: “It was unfair.”
I narrated this story to my wife who always obeyed law as she
never knew anything about it. I asked her opinion on the propriety of the conduct
of the rickshaw puller who swindled his friend. Her verdict appeared to me impeccably
right. My wife was not proficient at law otherwise she would have dismissed
my story with words: “ I don't believe there's an atom of meaning in it”. I
do not want to be apologetic for testing my legal conclusion in the light of
the verdict by a housewife. The most celebrated judgment for all times known
to me had been pronounced by Gandhari on her son's prayer made by her son while
conducting the Mahabharat War. Gandhari said: “ Yato Dharmahstato Jayah
(Where dharma is victory is surely there only). This verdict is inscribed
on the emblem of the Supreme Court of India. I call the rickshaw puller's Case
under a cause-title A Rickshaw Puller v. A Rickshaw puller . It can
constitute a trilogy with the two other widely known cases ( Shylock v.
Antonio in Shakespeare's The Merchant of Venice , and Jarndyce
v Jarndyce in Charles Dickens' novel Bleak House ) which do not
figure in the law reports. They are often referred but never cited.”'
Shiva Kant Jha, Judicial Role in Globalised Economy First
ed. p.12-13
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Right judicial Approach
“That the Hon'ble Court should have adopted a judicial approach
which is adopted by judges like Lord Denning. Prof. Schmitthoff wrote in Manitoba
Law Journal , VOL-VI, (1979) pp. 1-19 analyzed his approach thus: :
“His approach is technological. He thinks of the result
before he considers the legal reasoning on which it has to be founded. If
the result to which established legal doctrine leads is obviously unfair
or out of touch with what ordinary people would expect to be the law, he
will examine first principles in order to ascertain whether they really
compel an unjust solution and often this method will enable him to arrive
at an answer which is more adequate to modern needs.”
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How a judgment should be read
“Whilst conventionally the material facts test and
reversal test are applied to determine the principles which a case
brings out, the humble Petitioner believes that the best method (approximating
the approach of I.A. Richards and C.K. Ogden in The Meaning of Meaning
) would be to read the decision in the light of what the Mimansa tells
us:
There may be seven ways to read a book:
First and second concentrate on the threads which unite the beginning and
the end;
Third is what is said again and again;
Fourth is what is new therein,
Fifth is the targeted consequence
Sixth is what is mere peripherals'
And the last is the logic which supports or counters.
It says that in order to comprehend the meaning and import
of a text or a book seven determiners should be taken into account. First, what
is the central strand in the thematic structure of a piece of work directly
connecting the beginning and the end. Second, the purpose revealing
itself through tone and tenor. Third, what is suggested through variations on
the core ideas. Fourth, identification of what is new (as any great work is
intended to venture something new). Fifth,, the consequence and its impact on
public interest.. Sixth, the nature of illustrative fillers, analogical reasoning,
and supportive references. The incorrectness of material in this sixth category
may not have any bearing on the principal meaning. The seventh, the thrust of
reasoning in supporting a position, or detracting from it.”
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A Judicial Oxymoron & The Judicial
Cri De Coeur.
“That the Hon'ble Davison Bench's cri de Coeur for
the Executive or Parliamentary intervention to prevent the evil of Treaty Shopping
is a matter of grave public concern as it is a conjoint product of two manifest
judicial mistakes: (i) an abnegation of an inherent judicial function which
amounts to virtual abdication of the right judicial role; (ii) a non-perception
an inherent contradiction in the convoluted judicial reasoning which makes,
on the one hand, an invocation to the Executive or Parliament for action, but,
on the other, decides the issue by approving it, which the inevitable effect
of what the Division Bench has done as a matter of actual decision.
(a) The Hon'ble Division Bench refers to the power of the
CBDT to relax the rigour of law. The marauders of our country's revenue swooping
on our resources as hordes of masqueraders from different countries under
the flag of the Mauritian Certificate of Residence be viewed persons in distress
worthy to be alleviated by this poor country's government even on the wreck
of its own law?. And the loss of commission that Mauritius gets by the good
faith of pacta sunt servanda cannot be a relevant factor in deciding
hardship. Our per capita income just U.S. dollars 440 whereas in Mauritius
it is U.S. dollars 3,540. In deciding the question of hardship the Gandhian
talisman has not ceased to be of relevance: the Father of Nation
(whom the government and the lobbyists have forgotten, but people shall never
) said ( with which Granville Austin announces his “ Working of a Democratic
Constitution ” ): “ Recall the face of the poorest and weakest man whom
you have seen and ask yourself if the step you contemplate is going to be
of any use to him. Will he gain anything by it?” If the Mauritian view that
the Certificate if incorporation is per se enough that all other tax treaties
may become irrelevant as the residents of all the countries would board the
Mauritian vehicle to count the waves to deplete India. To recognize this position
is to make a travesty of justice we hold we live in two Indias , one in which
97% people exist, and the other wherein 3% people enjoy best of all times
believing the Universe is for them alone. The lines from Blake express our
conditions in graphic metaphor:
Some are born to great delight,
Some are born to eternal light.”
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The Limits of the Doctrine of Restraints.
“That this Petitioner is sure that if Chief Justice Warren
would have been at the helms of the affairs of the U.S. Supreme Court, he would
have responded to the realities of this economic globalization by collapsing
the distinction between the human rights situations and the economic situations.
The hydra of the economic globalization has so enmeshed us that our human rights
are exposed to great jeopardy. Now it has become the greatest constitutional
duty of this Hon'ble Court to see that our human rights granted to us under
the Articles 14, 19, 21, and 25 are not lost on any specious pleading, for any
reason whatever. This Petitioner has referred to Chief Justice Warren as he
has discovered in the post-Warren Court a streak of conservatism and tilt towards
the Market: ideas which are not in tune with our Constitution. Our Supreme Court
adopted judicial approach, which characterized the decisions of the Warren court.
Time has rendered obsolescent those dicta wherein this Court had struck a note
of caution in examining the legality of tax issues in deference to Parliament.
The present tsunami of circumstances unleashed under the architecture of economic
globalization is a jeopardy sui generis , a like of which never known
in human history. This Hon'ble Court is under the constitutional oath to uphold
the Constitution, even if the Executive or the Legislature betrays its cause.”
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Gandhi's talisman
Our democracy is at cross-roads, and common citizens keep their
fingers crossed. We cannot allow the mystique of a mask to wreck all values
which our open society cherishes, and is committed to promote for the welfare
of all. It is really a grand and great spectacle to see that that this Republic
happens to have its justice process between the words of Gandhari ( that Truth
alone triumphs)and the presence of Mahatma Gandhi ( who said: “ Recall the face
of the poorest and weakest man whom you have seen and ask yourself if the step
you contemplate is going to be of any use to him. Will he gain anything by it?”)
. This Hope is the sole driver to this Petition. At the beginning of the fascist
era, Walter Benjamin had written:
‘Nur um der Haffnungslosen willen ist uns die Hoffnung
gegeben.
(It is for the sake of those without hope that hope is given to us.)
[ The end of the Conclusion of Herbert Harcuse, One Dimensional Man Sphere
Books Ltd W.C 1 (1964) ]
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The Reach of judicial jurisdiction
“This Petitioner believes that this Hon'ble Court also competent
to direct the other wings of the government (or organs of the State) to remain
on their constitutionally devised track, and to forbear from gross constitutional
remissness. This power ensues to this Court from the culture of our written
constitution. This is the will of the people of India expressed through a
constitution they framed in their abundant wisdom, and gave that to themselves
to organize a democratic polity subservient to the norms therein stated. It
is the will of the people that the Judiciary be the “upholder” of the constitution.
It cannot uphold it if other organs play ducks and drakes with the Constitution.
If such things happen, the Judiciary must intervene. We have adopted Parliamentary
form of government on the British Model ), which is not founded on the theory
of Separation of Powers. Sir William Holdsworth in Halsbury's Laws of
England states that the doctrine of separation of powers
“has never to any great extent corresponded with the facts
of English Government…it is not the case that legislative functions are
exclusively performed by the Legislature, executive functions by the executive,
or judicial functions by the judiciary.”
Even when Montesquieu had written his Spirit of Laws he had
committed mistake in comprehending that in England there was any clear-cut separation
of powers. As a defender of liberty he erected his erroneous idea to see that
his despotically governed France brought about a change towards freedom. Ogg
& Zink, in their Modern Foreign Governments observe:
“Today, the principle of separation finds only limited application,
the one point at which it really prevails being with respect to judiciary.”
The position of judiciary is, thus, sui generis .
The U.S. Constitution or Australian Constitution vested the legislative, executive,
and judicial powers in the three separate organs of the State. But even in these
countries the rigid ness of the doctrine has been substantially softened as
a response to the demands of the times. Yet conceptually, and as a matter of
broad divisions, generally valid, it is quite appropriate to conceive these
three streams of sovereign power broadly entrusted to the separate organs of
the State. The point has been aptly put.”
A most characteristic feature of the global ethos is the
studied strategy of the experts, the financial press, the lobbyists, the persuaders
et al to mask the existence of the suffering millions, to mask the tainted
wealth of all sorts of persons, to mask the financial transactions, to mask
the real operators in corporate capsules, to mask the masqueraders raiding
treaty benefits, to mask the terrorists so that they achieve their ends, to
mask the sold souls holding high political offices……This Petitioner feels,
and his impression is proved to the hilt in course of his research which he
has made in conducting this case, that we are witnessing an ersatz version
of John Milton's Comus. A Masque presented at Ludlow Castle. The
prime mover of this Writ Petition is to assert before this Hon'ble Court that
the Rule of Law, rather than the Rule of Comus be assured. This Petitioner
in his most humble way, absolutely without any personal or professional interest,
has tried to bring to this Hon'ble Court's certain gross lapses in our public
life beleving in the ever-inspiring words of the Bhagavadgeeta:
Atmaiva hy atmano bandhur
Atmaiva ripur atmanah.
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Locus Standi of
the Petitioner:
‘That the Petitioner, belonging to a family that produced some
distinguished freedom fighters; he too had made sacrifice in the Struggle for
India's Independence. He is a public-spirited taxpayer having Permanent Account
No ACGPJ 5126 Q who served the nation as a member of the Indian Revenue Service
for more than 34 years, and retired with credit superannuating in March 1998
from the post of the Chief Commissioner of Income-tax. The Petitioner considers
it his fundamental duty to bring to the notice of the Hon'ble Court through
this Petition the gross illegality and unreasonableness of the aforementioned
Instruction and the Rules; and the remissness on the part of the Central Government
in discharge of certain public duties: a pursuit justified by the judicial observations
in R v Inland Revenue Comrs [1982] 2 All ER 378 at 388; S.P. Gupta &
Ors v President of India & Ors (AIR 1982 SC 149); Vestey v Inland
Revenue Comrs (1977)3 AII ER 1073 at 1079, (1998) Ch 177 at 197-198; R.
v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Rees-Mog
[1994] 1 All ER 457 ; Ratlam v. Shri Vardichan; Pillo Mody v. Maharashtra;
and under persuasion from Art 20 of the Constitution of the Federal Republic
of Germany laying down a general principle of democratic polity under a government
under constitutional limitations. In R. v. Secretary of State for Foreign
Affairs, ex parte World Developed Movement Ltd [1995] 1 All ER p. 611 the
QBD granted locus standi in a PIL recognizing the importance of vindicating
rule of law, the importance of the issue raised, the likely absence of any other
challenger, the nature of the breach of duty against which relief was sought
and the prominent role of the applicant.
6.That this Hon'ble Court had granted him a locus standi to
move a PIL in Shiva Kant Jha & Anr v. Union of India: recording
words of appreciation which are for this petitioner a joy forever: per S.B.
Sinha, C.J
“ We would however like to make an observation that the Central
Govt. will be well advised to consider the question raised by Shri Shiva Kant
Jha who has done a noble job in bring into focus as to how the Govt. of India
had been losing crores and crores of rupees by allowing opaque system to operate.”
This Petitioner is discharging his public duty keeping in mind
what Lord Diplock said in National Federation of Self-Employed and Small
Businesses Ltd :
“It would, in my view, be a grave lacuna in our system of
public law if a pressure group, like the federation, or even a single public-spirited
taxpayer, were prevented by out-dated technical rules of locus standi from
bringing the matter to the attention of the Court to vindicate the rule of
law and get the unlawful conduct stopped….”
Justice Bhagwati, in S.P. Gupta & Ors v President of
India & Ors (AIR 1982 SC 149), observed:
“We would, therefore, hold that any member of the public
having sufficient interest can maintain an action for judicial redress for
public injury arising from breach of public duty or from violation of some
provision of the Constitution or the law and seek enforcement of such public
duty and observance of such constitutional or legal provision. This is absolutely
essential for maintaining the rule of law, furthering the cause of justice
and accelerating the pace of realization of the constitutional objective.”'
It is submitted that this Petitioner has no other interest;
hence, he not launching an
Adversarial litigation under which, to quote . Dr Bernard Swartz,
“ the public
character of the proceedings is more than a mere form.”
7. That this petitioner prays for grant of locus standi
believing, to saying in the words of Harold Pinter, the 2005 Nobel Prize
Winner for Literature:
“that despite the enormous odds which exist, unflinching,
unswerving, fierce intellectual determination, as citizens, to define the
real truth of our lives and our societies is a crucial obligation which devolves
upon us all.”
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The Heart of a PIL filed before
Delhi High Court 1357 0f 2007: This Petitioner's position in
nutshell; and core legal propositions constituting legal perspective.
“11. This Petitioner's stand taken in the Writ Petition, are
stated in nutshell at the threshold itself to put the issues before this Hon'ble
Court under a sharp focus:
(i) Our State's legal Sovereignty reveals itself in the terms
of our Constitution only [except in those unfortunate moments, perish the
thought, when a constitution goes down the gutter, and the crude realities
of realpolitik become the sole determiner as it had become when the treaties
like the Treaty of Allahabad, or Treaty of Versailles, or the Treaty of Surrender
were signed by the vanquished under the spiky boots of the ruthless victors];
(ii) Our State has no Sovereign power, unbridled and unlimited,
to enter into a treaty even at the international plane; it has only a Treaty-making
capacity under the constitutional limitations. As the Executive
represents our State at international plane , it acts only as the authorized
agent of the State , and as such it is incompetent to transgress the
obvious limitations on its power imposed by the Constitution which creates
it and keeps it alive only with controlled competence. “In general it seems
that the rown makes treaties as the authorized representative of the nation.”
(Keir & Kawson, Cases in Const Law p.160 which can run the risk
of acting without capacity if it goes in breach of the constitutional limitations
on its capacity. Oppenheim observes:
‘If the Head of State ratifies a treaty without first fulfilling
the necessary constitutional requirements (as, for instance, where a treaty
has not received the necessary approval from Parliament of the state), his
purported expression of his state's consent to be bound by treaty may be
invalid.”[ International Law ( Peace) ibid p 1232 para 606]
Art 53 of the Vienna Convention states that if a treaty which
at the time of conclusion conflicts with peremptory norm of international
law it would be void. And Article 45 of the Vienna Convention – probably reflecting
rules of customary international law – allows a state (by way of exception)
to invoke non-observance of its internal law as a basis for invalidating its
consent to be bound by the treaty only if the rule of internal law relates
to competence to conclude treaties, if it is a rule of fundamental importance,
and if the violation is manifest, i.e objectively evident to any state conducting
itself in the matter in accordance with normal practice and in good faith
.
(iii) “It is well established as a rule of customary international
law”, says Oppenheim, “ that the validity of a treaty may be open to question
if it has been concluded in violation of the constitutional laws of one of
the states party to it, since the state's organs and representatives must
have exceeded their powers in concluding such a treaty.. Such constitutional
restrictions take various forms.” This aspect of the matter has been pursued
in Section IV of this Writ Petition.
(iv) Nothing turns on the concept of “inherent sovereign
power” theory because sovereignty inheres in our Constitution, and it is essentially,
as Oppenheim says, “ a matter of internal constitutional power”. Oppenheim,
while analyzing what Sovereignty means in the 20 th century, observed:
“Sovereignty was, in other words, primarily a matter of
internal constitutional power and authority, conceived as the highest, underived
power within the state with exclusive competence therein”
Even the U S Supreme Court has observed in Hamdan's Case [Hamdan v.
Rumsfeld, Secretary of Defense , et al decided by the U.S. Supreme
Court on June 29, 2006] that ‘ The Court's conclusion ultimately rests upon
a single ground: Congress has not issued the Executive a "blank check.
[ Justice Breyer , with whom Justice Kennedy , Justice Souter, and Justice
Ginsburg join, concurring.]
(v) ‘A number of states in their constitutions have made
express provision for limitations on their national sovereign powers in the
interest of international co-operation. These provisions are to the effect
that certain sovereign rights and powers of the state may be limited in connection
with international organizations, or may be conferred upon or transferred
to international organizations. This has particularly become necessary in
some states whose constitutions provide for certain rights and powers, for
example the power to legislate, to be exercised only by organs of the state:
by becoming a member of an international organization which can in some degree
be said to be exercising such powers, the state, in absence of a provision
envisaging a transfer of those powers, could be said to be acting unconstitutionally
and the resulting exercise of the powers by the organization could be said
to be ineffective within the state.'
Under the Constitution of India there is no provision for
limitations on the national sovereign powers of our State which can grant
an overriding effect on the constitution .
(vi) The constitutional limitations work both in matters
of
(a) treaty formation , and
(b) treaty i mplementation.
The opinion of Lord Atkin ( in Attorney General for Canada
v. Attorney General of Ontario ) on the possibilities of different approaches
in the aforementioned two segments are right under the British constitution
but invalid under our Constitution for numerous reasons including the express
indication in the narration under entry 14 of the Union List which suggests
that our Constitution contemplates within its matrix both the formation
(entering into) and implementation of a treaty. Lord Atkin
himself observes that different considerations would be at work in a federal
polity and under a system of governance under a written constitution with
express constitutional limitations.
New Realities and Art 51 of our Constitution
(vii) That in the Minister of State for Immigration and
Ethnic Affairs v Teoh [ (1995) 128 ALR 353, (1995) 69 ALJR 423] , case,
the Court found that by entering into a treaty the Australian Government creates
a "legitimate expectation" in administrative law
that the Executive Government and its agencies will act in accordance with the
terms of the treaty, even where those terms have not been incorporated into
Australian law. Whilst the effect of this norm would be submitted later in para
69(vii) p. 21of the Writ Petition, it is worthwhile asserting that the
conventional differentiation between the governmental acts with fall outs at
the international plane, and the acts impacting the rights and interests of
the subjects/ citizens within the realm (domestic jurisdiction), which had been
once upon a time made by of Sir R. Phillimore's decision in The Parlement
Belge [ vide para 23 p. 30 of this Petition], and which was quoted
in Maganbhai v. Union, does not survive now. Now we live in a world
in which the executive acts done at the international plane, seep into domestic
sphere to act often as catalytic agent, but most often as prime over and operative
force, mostly, now, through the executive process. Under the Law of Nationality
the States protect the interests of their nationals in foreign jurisdictions,
but under, what this Petitioner would call the Post-modern International Law,
the mighty States promote their business and corporate interests subjecting
the not so-fortunate interests under the noxious burden of executing their agenda
best if done covertly, otherwise by coercing their Parliaments through the pleas
of fait accompli. The realities of the day are captured in the following
lines from Noam Chomsky's Hegemony or Survival (p. 13):
‘The whole frame-work of international law is just “hot
air”, legal scholar Michael Glennon writes: ‘The grand attempt to subject
the rule of force to the rule of law” should be deposited in the ashcan
of history –a convenient stance for the one state able to adopt the new
non-rules for its purposes, since it spends almost as much as the rest of
the world combined on means of violence and is forging new and dangerous
paths in developing means of destruction, over near-unanimous world opposition'”
Now, thanks to the Uruguay Round Final Act, adopted by our
Central Government under an opaque system, we are led to such a morbid pass
as would be evident from such illustrations as these:
(a) The effects of the TRIPS are certain coerced legislation,
certain defeats at the WTO's Disputes Settlement Body, ouster of the jurisdiction
of our Superior Courts, encroachment on our Sovereign Space, infraction (accomplished/threatened),…creation
of inter-governmental fora to implement the TRIPS agenda without the nation
knowing (the technique of Stealth) [crafted through the memorandum of understanding],
censure and command under the U.S. Trade Act of 1974, which puts India on
Priority Watch List in 2006, in words with which only a country under seize
can put up. We are mandated: “The United States also encourages India to join
and implement the WIPO Internet Treaties.” Even our judiciary is told how
to behave. Under the U S Trade Act 1974 Trade Representative can initiate
action against India for punitive retaliation etc. if he is of opinion that
our Government has violated a trade agreement (such as a World Trade Organization
(WTO) agreement or the North American Free Trade Agreement. That Act even
says “. 1. An act, policy or practice is considered to be
unreasonable if it is unfair and inequitable, even if it does not violate
the international legal rights of the United States.” And all this to help
the MNCs and to promote their agenda
(b) Again thanks to the WTO Treaty the MNCs are even going
to the extent of asserting, in ways much more devastating that what is suggested
in Minister of State for Immigration and Ethnic Affairs v Teoh,
that Section 3(d) of our Patents Act is unconstitutional as it is in breach
of the TRIPS Agreement! In effect the executive act, without Parliament's
involvement, saddled this nation with obligations which ride roughshod over
the Constitution. Such an atrocious challenge is natural when the Mashelkar
Committee considers Article 27 “ a specific mandate” holding that there is
“ a perception that even the current provisions in the Patents Act could be
held to be TRIPS non-compliant”. Hence, in its view, our law is to be made”
TRIPS compliant.' One wonders if there is any difference
between the Committee's approach and that of a MNC like Novartis AG. Both
seem to assume that a treaty made by the opaque system can provide an anvil
under our Constitution to crack even our statute to pieces on the ground of
its being ultra vires the TRIPS.
The core point is: Was this sort of Treaty contemplated by
our Constitution to be done this way?
(viii) The core pleadings in this Writ Petition is squarely
in tune with the decisions of the Hon'ble Supreme Court in; Raja Ram Pal
vs. Hon'ble Speaker, Lok Sabha & Ors (Case No.W. P.(civil)1of 2006);
I.R. Coelho (Dead) By LRs v. State of Tamil Nadu & Ors. Date
of judgment 11/01/2007.
(ix) No treaty was ever done in the past having as wide and
as long-lasting an impact in the domestic jurisdiction as the ratification
of the Uruguay Round Final Act by the Executive. The U.S. adopted it, with
several reservations, though an Act of the Congress. The U.S. rightly thinks
that a treaty usurping the legislature's power over trade and commerce must
be ratified by an Act, and only then to be adopted by the President. Like
other recent trade agreements, including NAFTA, the United States-Canada Free
Trade Agreement, the United States-Israel Free Trade Agreement and the Tokyo
Round Agreement, the Uruguay Round Agreements was constitutionally executed
by the President and approved and implemented by Act of Congress. In the U.K.
accession to the EEC Treaty was after Parliamentary approval; participation
was through enactment, and after obtaining a referendum .
(x) The issues presented in this Writ Petition deserve to
be considered, or reconsidered. in the post- Royappa - Maneka
Gandhi - Ajaya Hasia - Kesavanda -.ethos, keeping in
view the crudities of the Economic Globalization.
(xi) Under our constitutional system whilst within domestic
jurisdiction the terms of a treaty can be challenged if they contravene statutory
or constitutional limitations, no statute or a constitutional provision can
be challenged before our domestic court for enforcement of treaty terms de
hors them.
(xi) The constitutional powers and duties required by our
Constitution to be exercised within the domestic jurisdiction, or having impact
within the domestic jurisdiction, can not be abdicated, ignored or subjected
to extraneous restrictions for any reason whatsoever. In the context of the
Irish Constitution (Ireland has a written Constitution from which a lot of
borrowings our Constitution-makers had made), in Crotty v An Taoiseach
[1987] 2 CMLR 666 the Court observed:
‘It would be quite incompatible with the freedom of action
in foreign relations conferred on the Government to qualify it or to inhibit
it in any manner by formal agreement with other States to do so. The free
do, does not carry with it the power to abdicate the freedom or enter into
a binding agreement with other States to exercise power to decide matters
of foreign policy in a particular way or to refrain from exercising it save
by particular procedures and so to bind the State in its freedom of action
in foreign policy.'
(xi) The central thesis in this Writ Petition is founded
on propositions inter alia the following:
(1) The Central Government has no unbridled power in its
hip-pocket to be exercised at international plane (through treaty making,
or foreign relations) de hors the Constitution of India, as the
Union of India has no such power conferred under the Constitution.
(2) It a constitutional solecism to think that any Treaty
( be it a Tax Treaty or the WTO Treaty or treaties of other conceivable species)
can ever enable the Executive to transgress constitutional competence.
(3) There are only two Articles in our Constitution granting
Treaty-making power: Art 73 and Art 253. They, in effect, say what this Petitioner
is asserting in the Petition. Art 73 subjects the exercise of power to constitutional
limitations. And Art 253 can if invoked only if a Treaty is constitutionally
valid. If the executive enters into a treaty, agreement or convention in breach
of the basic features of our Constitution, or the Constitution's mandatory
mandate, then such an agreement, treaty or convention is constitutionally
invalid: hence domestically inoperative and non est . Our courts,
as the creatures of the Constitution, must uphold the Constitution by declaring
such a treaty, agreement or convention bad. Ours is a written constitution
under which all the organs of the polity are the creatures of written constitution:
hence bound by its limitations, both express and implied. Our Supreme Court
clearly stated in Ajaib Singh v. State of Punjab :
“Neither of Articles 51 and 253 empowers the Parliament
to make a law which can deprive a citizen of India of the fundamental rights
conferred upon him”.
This Petitioner's view is fully supported by (a) Peoples'
Commission Report on GATT by V R Krisna Iyer, O Chinappa Reddy, D A Desai,
(all the former Hon'ble Judges of the Supreme Court); and Rajinder Sachar
(the then Hon'ble Chief Justice of Delhi High Court); (b) V R Krishna Iyer,
Dialectic and Dynamics of Human Rights in India pp.364-365; and Shiva Kant
Jha, Judicial Role in Globalised Economy pp 306-307
(4) This Petitioner deems it a cardinal principle of our
jurisprudence that Hon'ble Court is the ultimate decision-maker in the matter
of what sort of norms (their ambit and reach also) of International Law are
expected to be given effect within the constraints and culture of polity as
structured by our Constitution. “The modern rule”. Stephension LJ quoted the
illuminating comment of Lord Alverstone CJ, in West Rand Centrla Gold
Mining Co v R :
“…any doctrine, so invoked must be one really accepted
as binding between nations, and the international law, sought to be applied
must, like anything else, be proved by satisfactory evidence which must
shew either that the particular proposition put forward has been recognized
and acted upon by our own country, or that it is of such a nature, any civilized
state would repudiate it. …. But the expressions used by Lord Mansfield
when dealing with the particular and recognized rule of international law
on this subject, that the law of nations forms part of the law of England,
ought not to be Construed so as to include as part of the Law of England,
opinions of text-writers upon a question as to which there is no evidence
that Great Britain has ever assented, and a fortiori if they are contrary
to the principles of her laws as declared by her Courts.”
Lord Atkin said in Chung Ch Cheung v. R:
“….so far at any rate as the courts of this country are concerned,
international law has no validity save in so far as its principles are accepted
and adopted by our own domestic law”.
Cockburn CJ said in R. Keyn:
‘ For writers on international law, however valuable their
labours may be in elucidating and ascertaining the principles and rules
of law, cannot make the law. To be binding, the law must have recived the
assent of the nations who are to be bound by it…..”
The tsunami of economic globalization has subordinated the
political realm to the economic realm established under the overweening majesty
of Pax Mercatus. Geza Feketeluty has brought out this reality thus:
“Clearly, the reality of globalization has outstripped the
ability of the world population to understand its implications and the ability
of governments to cope with its consequences. At the same time, the ceding
of economic power to global actors and international institutions has outstripped
the development of appropriate global political structures.”
‘[But in this world we are faced with a complex nerve-wrecking
problems. Our executive may through its commitments at the international plane,
give rise to international customary law on a particular point; or may make
our country party to a treaty having domestic or extra-domestic impact. This
situation is likely to be worse as the institutions of economic globalization
are clearly in a position to call the shots. Under such circumstances we must
uphold our Constitution. No norm of international law can be so forged/evolved
as to enable the executive to defile or deface the Constitution.'
top
Our Welfare State, and its
jural commitments
“That the symbiosis between the Fundamental Rights and the
Directive Principles have been often stressed by the Supreme Hon'ble Court.
“With the expanding horizons of socioeconomic justice, the Socialist Republic
and Welfare State which the country endeavors to set up…. The thrust of Article
14 is that the citizen is entitled to equality before law and equal protection
of laws. In the very nature of things the society being composed of unequals
a welfare State will have to strive by both executive and
legislative action to help the less fortunate in society to ameliorate their
condition so that the social and economic inequality in the society may be bridged.”
“The broad egalitarian principle of social and economic justice for all was
implicit in every Directive Principle and, therefore, a law designed to promote
a Directive Principle, even if it came into conflict with the formalistic and
doctrinaire view of equality before the law, would most certainly advance the
broader egalitarian principle and the desirable constitutional goal of social
and economic justice for all. If the law was aimed at the broader egalitarianism
of the Directive Principles….”, “The Constitution envisages the establishment
of a welfare state at the federal level as well as at the
State level.” In Kesavananda's Case (AIR 1973 SC1461 at 1641) , Hegde
and Mukherjea JJ. observed:
“The Fundamental Rights and Directive Principles constitute
the “conscience of the Constitution…”. There is no antithesis between the
Fundamental Rights and Directive Principles ….and one supplements the other.”
26. That this symbiosis can be illustrated with reference to
Articles 14 and 21. In Indra Sawheny v. UoI (AIR 1993 SC 447 para
4) the Hon'ble Supreme Court held that Art 14 is to be understood in the light
of the Directive Principles. Art. 14 cannot triumph unless effective steps are
taken to realize the objectives set forth under Articles 38 and 39, 39A,, 41….
How can Art. 21 be really effective in our polity unless there is right to livelihood?
In Narendra Kumar v. State of Haryana IT (1994) 2 SC 94 the Hon'ble
Supreme Court observed that the right to livelihood is an integral facet of
the right to life. In a number cases the activist dimensions of Art. 21 have
been creatively explored. After a detailed analysis of the provisions pertaining
to the TRIPS under the WTO Treaty the People's Commission in their Report
of the Peoples' Commission on GATT by V.R. Krishna Iyer, O. Chinnappa Reddy,
D.A. Desai and Rajinder Sachar observes:
“ In view of the foregoing changes to the existing laws required
by the TRIPS Agreement and Agriculture Agreement and the anticipated effect
on the price of medicines and self-sufficiency of food, we are of the view
that the Final Act will have a direct and inevitable effect on the fundamental
right to life enshrined in Art 21 of the Constitution”
27. Art. 37 make the Directive Principles non-enforceable by
the court, “but the principles laid down are nevertheless fundamental in governance
of the country and it shall be the duty of the State to apply
these principles in making laws.” Jurisprudence recognizes rights some of which
are enforceable whilst others are not. In fact, our Hindu jurisprudence defines
dharma as kartavya only. Leon Duguit does not recognize
rights: he recognizes duties only. The Duty cast under Art
37 is cast on the State to be discharged for the benefit of ‘We, the People'
who have their interests protected by the Constitution. As a treaty, cast in
the protocol of pactum de contrahendo, is a treaty to strive through
negotiations to effect someday somehow the objectives of the treaty not fait
accompli at the outset,, the Directive Principles generate legitimate expectations,
often intersecting and often interacting with the Fundamental Rights, to create
a welfare State. The State can take its time in view of scarce resources to
fulfill its duties, but it would exceed its authority if it abrogates them,
or frustrates them, or make their realization prima facie as remote
as an Eldorado . Duguit's oft-quoted view is, to quote Allen :
‘In other words, the notion of public service replaces the
conception of sovereignty as the foundation of public law.'
And it is worthwhile to note what Prof Smith has observed on
the types of rights :
“ …….constitutional provisions about individual rights are
far far from homogenous. They may be manifestly non-justiciable, ostensiblely
justiciable but in reality non-justiciable, or truly justiciable. They may
be statements of objectives that ought to be pursued under the constitution;
such statements may well appear in a preamble (as in India and Tanganyika)
in so far as they perfect general aspirations or in a set of directive principles
of state policy or principles of law-making in so far as they purport to impose
on the state a positive but unenforceable duty to act in conformity with them
in the interests of the people……..They may be rules of strict law purporting
to confer rights on individuals to secure the fulfiment of duties owed to
them, or otherwise restricting the competence of the legislative and executive
organs of the state for the protection of individual interests. Persons aggrieved
by legislative acts or omissions that violate the letter or spirit of the
constitution may or may not be afforded an opportunity of obtaining judicial
redress.”
Noting the nature of the Directive Principles, in his Rau Lectures,
Hegde J had said:
“….a mandate of the Constitution, though not enforceable
by courts is none the less binding on all organs of the State. If the State
ignoresthese mandates, it ignores the Constitution.”
´….the view that the principles were not bindingif
they were not enforcable by law, originated with John Austin, and Kelson propounded
a similar view. However, Prof. Goodhart and Roscoe Pound took a different
view. According to them, those who are entrusted with certain duties will
fulfill them in good faith and according to the expectations of the community
.”
That under our polity both the Fundamental Rights and the Directive
Principles protect people's interests generating in the case of the Fundamental
Rights a set of enforceable rights under Art 32, whereas in the case of the
Directive Principles a set of non-enforceable rights holding as its content
legitimate expectations from the State with an overarching objective of the
welfare state . Welfare State in England was a policy decision
of the Crown and the Parliament. In India, the welfare State is the very
mission of the Constitution which neither Parliament nor the Executive can ditch
for any reason whatsoever. In India the radical transformation to the
regime of Market can be done only by ‘We, the People', or , to a limited extent,
by the exercise of the constituent power.”
An extract from a Writ Petition (PIL) filed before Delhi
High Court 1357 0f 2007
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Tax Treaties misused
“ That this Petitioner's study led him to believe that the
adoption of the OECD Model for entering into a tax treaty with Mauritius was
improper. The abuse of this tax treaty is proved by facts widely known for years.
Facts showing the misuse of the treaty were in the knowledge of persons who
mattered, yet almost over two decades nothing was done to stop this gross illegality
by which the public revenue of our country was systematically marauded. Let
not an impression be formed that this was the only tax treaty, which was misused.
This is being highlighted because somehow more facts have come out in public
domain. But this illustrative lapse should be taken seriously as even a tiny
aperture can give a view of what ails our system of governance. We have tolerated
this loot through the Mauritius route for almost two decades. It is strange
that over such a long period no government in power reacted to it. It is said
that our government suffered, in early eighties of the last century, from an
acute and growing balance of payment problem; and was striving, with no holds
barred, for improving its balance of payment position. There was an industrial
slow down causing much worry. In the Budget for 1982 the investment rules in
the share- market were relaxed in favour of the non-residents Indians, or companies
and trusts. The rules provided that they could invest directly in India and
could repatriate their funds from India with ease. Our government was not unaware
of the misuse of the routes through tax havens Hamish McDonald in his book The
Polyester Prince gives a graphic account of the misuse of a taxhaven route
which took place in 1982 . It is further seen that there is not much
difference between the strategy and protocol adopted in 1982 and those adopted
after 1995, more so by those who misused the Indo-Mauritius Double Taxation
Avoidance Convention. In fact, all the craftsmen of scams and scandals structure
their plots more or less in the identical format.”
Writ Petition No 334 of 2005 before the Supreme Court:para
7
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Corruption in this phase of
Economic Globalisation
“That the Petitioner feels that globalization has spawned a
new style of corruption. Before it whatever was earned from improper sources
was mostly kept in the country itself. But because of mass communication , information
technology and closer interactions in matters of commercial dealings, the fruits
of corruption are gathered more often outside the territorial jurisdiction of
India then India. The FIIs, the MNCs, and the OBCs, through their rich band
of lobbyists provide a very stable system to indulge in corrupt practice on
global basis. The country's vigilance agencies have become anachronistic and
outdated. The profile of the political structure of the world would show that
it consists of sovereign States at different levels of political integration,
socio-economic attainment, socio-political morality and culture. The countries
less endowed with resources are ironically more prone to assertion on the plea
of their sovereignty many of them tried in varying measure to turn their countries
into spheres of darkness where the possessors of the ill-gotten wealth can find
best places to keep un-noticed by those who are swindled or whose duty it is
to bring the criminals to book. The modern technological advancement, specially
in the field of information technology has broken all barriers in transmission
of information, and has opened up the limitless possibilities to evade law and
to amass wealth shrouded in secrecy. Now the global interactions have opened
up infinite possibilities for restructuring global economy. In this restructuring
the voice of common people world over is very low; the voice of the common people
in the developing countries is evidently virtually mute. The powerful players
emerge as the key-operators in global economic structure. They build their power
centres. As financial providers they control the sinews of many governments.
The promote their policies through an intricate, deceptive but accurately efficacious
system of patronage whereby a powerful constituency of supporters is created
amongst the senior bureaucrats and politicians. Hired intellectuals and the
shady lobbyists mushroom to convince more and more persons who matter that globalization,
and whatever goes by it, alone can do good for the society. Modern communication
technology has made it possible to generate a new breed of money, the transmission
of which is instantaneously global. Chances of detection of crimes in financial
dealings have become so remote as to make it impossible to ensure punishment,
not to say quick punishment. Communications are so fast on our earth and in
the space that ill-gotten wealth can quickly move to the tax havens and many
other destinations where nothing matters except financial gains. This is an
emerging world where the vigilance machinery would become substantially redundant
because the payments for remissness would be made at remote places far from
the jurisdiction of the States where they work.”
Writ Petition No 334 of 2005 before the Supreme Court
of 2005 para 6
Whatever the government agencies may say the governmental process
is extremely secretive. Between assertions and denials truth is most often lost.
John Milton's Comus to which this Hon'ble Court referred in Shrisht
Dhawan v. Shah Bros makes his Comus say:
‘'T is only daylight that makes sin.'
Writ Petition No 334 of 2005 before the Supreme Court
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No Power to the Executive
at the International Plane .
‘“Our Constitution does not grant our Executive any external
sovereignty through affirmative grants. Under our Constitution it is wrong to
think that power over external affairs, in origin and in its essential character,
is different from that over internal affairs. The President speaks or listens
as a representative of the nation but only within Constitutional limitations.
The Executive under our Constitution cannot preempt law. If this is allowed
to happen, our Constitution may be driven by the Executive to commit suicide
by its own boot-straps; and our Democracy will come to an end. The constitutional
limitations, within which all executive power is to be exercised, are set forth
in our Constitution itself. Our Constitution organizes and distributes the whole
of the State power through its well-knit structure leaving the Executive with
no hip-pocket with reserve power outside the ken of the Constitution. All the
organs of the State have only conferred powers. The idea of Sovereignty,
finding references in some judicial dicta, is irrelevant for a government under
a written constitution with entrenched rights for the people. Oppenheim
aptly observes:
“The problem of sovereignty in the 20 th Century. The concept
of sovereignty was introduced and developed in political theory in the context
of the power of the ruler of the state over everything within the state. Sovereignty
was, in other words, primarily a matter of internal constitutional power and
authority, conceived as the highest, underived power within the state with
exclusive competence therein” Writ Petition ( PIL) filed before
Delhi High Court 1357 0f 2007
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The syndrome of the Sponsored
State in which our Constitution stands defaced and defiled.
“That it is respectfully submitted that juristic approach to
our Constitutional rights must take account of the factors which are turning
our Republic into a Sponsored State. This ethos has been created through the
Treaties and Agreements done under the executive power. Hazards to our Constitution
and the transgressions of fundamental limitations deserve to be considered on
the evaluation of the octopus grip which a Sponsored State permits. Roscoe Pound
said that the march of jurisprudence is from analytical to functional. This
Petitioner submits that any functional comprehension of our Constitution is
meaningless unless the issues are examined under the aspects of the present-day
realities created by the hegemonic economic realm under the twin forces unleashed
by the greedy Market (Pax Mercatus), and the corporate hegemony.
99.That one of the pronounced features of the Sponsored State
is the unbridled executive for promoting the interests of the capitalists, imperialists,
and the stooges whom we call comprador. This Petitioner, while examining the
features of the Sponsored State, has stated in his Judicial Role in Globalised
Economy on the Sponsored State :
“Now to the main topic. Under the sponsored state system
which Clive set up he found that despite the dewani which enabled to promote
the commercial interests of the East India Company with no holds barred, it
was essential to manage the system of governance from inside the ramshackle
and truncated political structure over which Mir Jafar or Mir Kasim presided
as nawab. Clive pursued this objective with a stroke of stealth by securing
for Rida Khan, who was Clive's deputy diwan, the post of the nawab's deputy.
The inevitable consequence was the emergence of powerful coterie of bureaucrats
and self-seekers who worked for the Company whilst swore loyalty to the nawab.”
How can we trust the executive to exercise the power which
ignores our people, scuttles our Constitution, and proves that all our Freedom
Fighters were fools who fought for this Country's Independence? This Petitioner's
words should not be treated as an aspersion on anybody as he cannot do it when
his family produced some distinguished Freedom Fighters, and he himself had
suffered, with joy, the trials and tribulations of the Struggle for Freedom.
100. That there is a special reason why express Parliamentary
approval of a Treaty is essential. As submitted earlier, in a Sponsored State,
the high bureaucrats cannot be wholly trusted. Even now we have a lot of Rida
Khans at work. It is in public domain that a lot of civil servants who worked
as negotiators in the matters of the Uruguay Round Final Act, and the WTO, succeeded
in ensuring for themselves high assignments in the WTO, World Intellectual Property
Organization (WIPO) etc. We have seen that most often key posts in the high
realm of economic management go to those who have undergone training at the
IMF or the WTO. This syndrome becomes all the more gruesome when we recall the
observation of Justice Shah in the Shah Commission Report, that there is “the
Root of All Evil” emanating from the nexus between the politicians and the bureaucrats.
101. That our commitments under the Agreements under consideration
are designed to drive our Republic towards the syndrome of the Sponsored State,
the features of which this Petitioner has examined in “Towards the Sponsored
State” being the Chapter 1 of his book The Judicial Role in Globalised Economy
[vide Annex ‘D' ]. The terms under the Uruguay Round
Final Act, and the mandates of the WTO require, as the East India Company had
once demanded: (i) lowering down/ elimination of tariffs; (ii) unrestricted
market access for the Company's goods; (iii) the government to function as the
protectors [the stick-wielders for the Company (the lathaits ); (iv)
the Company's causes were to be tried in the Company's courts, not in the Nawab's
courts; (v) the Nawab to reign as a titular head but the real power was exercised
by the functionaries of the Company whose employees masqueraded as the Nawab's
functionaries…….
Writ Petition ( PIL) filed before Delhi High Court
1357 0f 2007
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On Dr Ambedkar
[ An extract from my unpublished Autobiography (from the
Chapter “My Years at Nagpur” )
“I had read that the famous Nagarajuna had flourished at Nagpur
which is geographically at the centre of our country. On October 14, 1956 Dr.B.R.Ambedkar
and 75,000 of his followers were converted to Buddhism in a specially-erected
Pandal at Shraddhnand Peth, a mohulla at Nagpur. The 83-year old Mahasthaveer
Chandramani of Burma and his four Bhikhus administered the oath of the new religion
to Dr.Ambedkar and his wife. Dr.Ambedkar administered the oath to his followers.
He criticised Hinduism. “Dr.Ambedkar addressing his followers, said he was discarding
the Hindu religion as it looked down upon men of his caste and treated them
with discrimination. He would no longer venerate the Hindu Gods nor perform
any religious pujas.”[ The Times of India October 15, 1956. ]. His followers
became known as the Neo-Buddhists. While at Nagpur I visited Shraddhanand Peth
several times.
Dr.Ambedkar had a meteoric rise and obtained well desired recognition
as a jurist of the highest order. His worth was acknowledged by the Constituent
Assembly at work to frame the constitution of free India by making him the Chairman
of the Drafting Committee. He is widely known as a major player in the framing
of Constitution. Many consider him a modern Manu and call him the illustrious
architect of the Constitution of India.
Dr.Ambedkar came from the Mahaar caste became a great leader
of the Depressed Classes. He had his perceptual differences with the Congress
leaders including Mahatma Gandhi. He was so deeply involved with the issues
pertaining to the social amelioration of the down trodden that his role in India's
freedom movement has been open to criticism though it has been defended on the
ground that in his priority what needed the top most and almost exclusive attention
was the uplift of the depressed classes by dismantling to the root what he called
the Brahmanic culture. Surely he had a point in his assertions.
While I sat as the Commissioner of Income Tax (Appeals) Dr.
Ambedkar from his photograph tucked on the wall kept me under his constant gaze.
Working under his full view saddled me with an enormous sense of responsibility.
When I became the Commissioner of Income Tax (Administration) I found that on
the wall behind my back an imposing photograph of Dr.Ambedkar which had been
inaugurated by the predecessor in office several years back. Every year on Dr.Ambedkar's
Jayanti the throng of office functionaries would assemble to offer floral tribute
to Dr. Ambedkar. It was the duty of the Commissioner to solemnly garland him
and to offer roses and marigolds in recognition of his outstanding service to
mankind. After this colourful event in the chamber of the Commissioner the officers
and the officials would assemble in the first floor hall of the Aayakar Bhavan.
Lots of speakers would speak on the various aspects of Dr.Ambedkar's work stressing
his great relevance to resolve the contemporary issues. Towards the end as the
Commissioner it was my task to speak. As I am accustomed to enjoy speaking and
as the Ambedkar phenomenon was a matter of serious consideration I used to speak
at length which the listeners enjoyed or suffered I never bothered to think.
So over years I heard the plethora of ideas about Dr.Ambedkar and I saw his
statues dotting the landscape of the rural and urban Maharashtra wherein I had
chance to move from place to place.
While at Nagpur I enjoyed reading Dr.Dhananjay Keer's biography
of Dr.Ambedkar. Keer's Dr.Ambedkar Life and Missions is an outstanding work
in which he examines all the dimensions of the leader's life and work. Dr.Ambedkar's
contributions have thus been crisply summarized in a sentence in the preface
to the book : Ambedkar's eternal search for knowledge, his incredible industry
and his unflinching aim with which he raised himself from dust to doyen, from
the life of a social leper to the position of a constitution-maker, and his
heroic struggles for raising the down-trodden to human dignity will constitute
a golden chapter in the history of this nation and in the history of human freedom
as well.
The chapters include chapters on “War with Gandhi”, “Verdict
on Hinduism”, “On federation and Pakistan”, “A Modern Manu”, “Shadow of Buddhism”
and “Revival of Buddhism”. In the chapter on “Old Age”, Keer writes “Ambedkar
did not accept the Geeta at all . To him it was an irresponsible book
on ethics, a compromise of all errors.” (at pg.478)
Early this year I could read Arun Shourie's Worshipping False
Gods Ambedkar, and the facts which have been erased which came out in 1997.
Shourie has examined Ambedkar as the Freedom Fighter, the social reformer and
the Manu of our times. Shourie deserves congratulations to writing this well
documented treatise. He is sore at the facts that whilst Ambedkar is “defied”
other great benefactors are getting pushed away from focus. He is idolised which
not only projects him as the architect of Constitution of India but also makes
him a distinguished contributor to India's Struggle for freedom. He believes
that the great leader is now turned into a myth.
Shourie's book is clearly iconoclastic. It is based on sound
documentation. Facts are facts. The book provoked many adverse responses. A
book of this sort can be met only on its on ground. It is true that some of
Shourie's comment have strong emotional overtones and gaudy colours. But the
general thrust holds good. The critics of the book should learn to face the
relevant facts with humility rather than get irked by the jolts which their
pet images suffer.
In my considered view Dhananjay Keer and Arun Shourie are right
in their own distinct ways. The former was portraying Dr.Ambedkar as he was
appearing to a vast bulk of Indian society. His ideas and deeds were turned
into a trajectory of thoughts in which his personality was projected in a new
light enriched with intuitive and emotional embellishments. In effect,, he emerged
as a myth which surely is now more powerful, more effective than Dr.Ambedkar
in flesh and blood. Arun Shourie establishes his conclusions on the evidences
of concrete facts gathered under the cold process of research. This approach
is not the approach whereby the myth is made, or an expanded metaphor is projected
with rich layers of meaning capable of guiding millions seeking light to march
ahead.
I have no grouse against those whose mythopoeic imagination
finds a fertile field in Dr.Ambedkar. If he evolves into a symbol of great ideals
to guide and lead common people he would surely continue to have great relevance
in our country. None should try to debunk a myth on the ground that the cold
and close scrutiny of facts does not support it. Richards Chase in The Quest
for Myth observes that poetry and myth “Poetry and myth, he arges, arise out
of the same human needs, represent the same kind o f symbolic structure, succeed
in investing experience with the same kind of awe and magical wonder, and perform
the same cathartic function.
The efficacy of the mythopoeic imagination is in the intricate
psychic process to which Miss.Bodkin refers in Archetypal Patterns : The difference
between the two schools [of Freud and Jung] lies in Jung's belief that a synthetic
or creative function does pertain to the unconscious - that within the fantasies
arising in sleep or waking life there are present indications of new directions
or modes of adaptation, which the reflective self, when it discerns them, may
adopt, and follow with some assurance that along these lines it has the backing
of unconscious energies.
A personality endowed with mythic dimensions is capable of
being developed in the mind of persons in diverse conditions this brings to
my mind the following apt comment: One can no more bind within the limits of
the author's intention the interactions with new minds of a play or poem that
lives on centuries after his death, than one can restrict within its parents'
understanding the interrelations of the child that goes forth from their bodies
to live its own life in the world. 1
There is nothing in building up a myth: in fact it can often
serve a positive purpose of great value. Even mythical dimensions can be added
to a real life. But these must be pro bno publico and must not be at
the cost of others. Fairness requires that nothing should be done which enhances
the stature of and embellishes the personality of my idol at the cost of others.
Two comments I must make to keep my scales even.
I. Our Constitution is a collaborative product in which borrowed
ideas have been integrated to serve the needs of our polity. We are under
debt to various countries like the U.K., U.S.A, Canada, Australia and Ireland.
We have drawn on the ideas of various constitutional experts points germane
to the framing of the constitution were articulated in various drafts. There
were other leading lights who did yeoman's service in the framing of the Constitution.
Dr.Ambedkar never arrogated to himself the distinction of being the author
of the Constitution. The man of his calibre and perspicacity can never cease
to be humble where matter is between one's conscience and truth. We Indians
are charitable in praise but what is due to others must not be lost sight
of. There are good books on the framing of Constitution which must be carefully
read.
II. Dr.Ambedkar's quest for dharma was the quest of the social
reformer and a politician. For him it was a means for certain desired ends.
This is the same approach which reveals itself in the famous adage: Honesty
is the best policy. His quest was not for self illumination where all desires
cease in peace and poise of inner self. It is evident from his own life which
never acquired the tranquil serenity of a soul at peace with himself and the
cosmic order. Perhaps it was because he was devoted to struggle for others
in social jeopardy.
What I am pointing out would be evident if some one compares
the psyche of Dr.Ambedkar and Rabindranath Tagore or even Mahatma Gandhi.
Buddhism could not have been revived the way it was sought to be revived.
He reacted against what he called Hinduism. He missed a fundamental point
that dharma admits of no reaction. The Hindu religious institutions and the
Shastras deserved re-structuring and new interpretation to remove the dross
and what was not in tune with the needs of the time. Buddha had played his
role to do these in the context of his time. Such things inevitably happen.
Occasional pruning and use of broomstick are essential. Our Constitution was
framed and has been tinkered by more than 86 amendments and now there is a
plea to set up a Constitutional Review Commission. If he would have studied
the Geeta in the spirit of an enquirer, he could not have called
this greatest book of human intelligence and the profoundest treasury of the
noblest human thoughts “an irresponsible book on ethics, a compromise of all
errors”. He studied Geeta to promote his thesis and here he went
wrong. All the ideas for which he stood and which he found in Buddhism are
obvious in the Geeta . The Varna-ashram system does not
produce casteism. Casteism is a feature which springs ab extra under
the social mores over centuries. In fact the Geeta contains the finest
principles of individual and social management which if followed are certain
to eradicate all pathogenic factors from our social life.
I hold Dr.Ambedkar in the highest esteem but I will love to
hold him as a great man, not as a god. Gods are worshipped, but are dismissed
in the hurly-burly of life.”
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Shivaji
An extract from my unpublished Autobiography (from the
Chapter” My Years at Nagpur'
“ Every year Shivaji Jayanti was celebrated
with fanfare. Officers and the officials would assemble in the conference
hall to pay tribute to the great man. In the town at various places Shivaji
was the subject matter of high appreciation. In the Office of the Chief Commissioner
of Income Tax, Pune a grand image of Shivaji was placed on an imposing pedestal.
From the boyhood days I read the great life of Shivaji and had the highest
admiration for this great son of our motherland. But while at Nagpur I had
many occasions to think about him for delivering speeches over the six years
I spent there. One thing which struck me most in Shivaji I think it worthwhile
to mention for my reader to ponder over. I would make some digression in order
to drive home my point with incisive clarity.
Akbar established the Mughal Empire in all its majesty and
earned from the historians the title to be called Akbar the Great. He was
a shrewd politician and he knew it for certain that without ensuring the loyalty
of the Hindus and the Muslims the imperial glamour and peace could not persist
for long. His amalgam of religious ideas popularly known as Din-e-Ellahi
was a studied strategy to galvanise the loyalty of all the sections of
the subjects to the Mughal crown. Din-e-Ellahi despite imperial
patronage could not take on wings. Akbar should have known that religion is
not manufactured even it be under the King's command. Religious ideas originate
and acquire shape as naturally as the leaves come out under the natural process.
Akbar failed for obvious reasons. Religion admits of no politics. His great
grandson Aurangzeb learned from the mistake of his great grandfather and tried
to be a rabid Mussalman. He felt that his style would expand Islam and would
reduce the sphere of influence of religions other than Islam. He pursued his
strategy and miserably failed. How can religious ideas be promoted with so
much of gall and wormwood for others in mind ? He understood neither the logic
of religions nor the mind of people over whom he wielded the authority of
sword.
Shivaji behaved neither like Akbar trying to manufacture
a synthetic religious potion for the health of all people nor like Aurangzeb
with monomaniac zest for a particular religion in a plural society. He remained
an orthodox Hindu subjecting himself to the discipline of religious norms,
but regarded all the religions worthy of equal respect. He maintained a highest
level of character in personal life, and was ready to receive and appreciate
good ideas irrespective of the sources wherefrom they came. The problem, which
Akbar articulated as his agenda, Shivaji solved with instinctive ease.
But it is strange irony for history. Shivaji's solution was
lost sight of in the centuries after him causing so much of distortion and
distress in our society. The policy during the British period was to divide
and rule. They never wanted that the so-called Hindu-Muslim problem be solved.
They kept the problem always alive and kicking causing unfair dichotomy between
the Hindus and the Muslims; they even tried to vivisect the Hindus society
into various segments on cooked-up reasons.”
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