The stand-off between Twitter and the Government of India (GOI) on the blocking of accounts under Section 69A has resulted in a much needed conversation about free speech online in India. In this article about the problems with the IT Act and our jurisprudence, Gautham Bhatia elucidates some of the problems with our current legal regime. I am in broad agreement with him, but I believe that better results will be produced by legislation than by judicial law-making. I have nascent ideas of social media regulation which is best elaborated at some other time, as they are not fully formed yet. However, some of Bhatia’s observations in his Op-Ed do not sit right with me, and the following is a few comments on the same. My comments start rather abruptly, and I advice you read the article (linked above) before returning here.

“ On February 10, Twitter also published a blog post where it remarkably — and in my view correctly — argued that the government’s own actions in directing it to withhold access…….violated Indian law, and the constitutional guarantee of the freedom of speech.”

The problem is that Twitter can arbitrate what is and what is not guaranteed under the Indian constitution. If they think that they are right, they should approach the courts than unilaterally determining the extent of free speech rights. Twitter is no way in a position to play the arbiter of free speech rights in India — its role is self-admittedly that of a platform to facilitate legal, civil conversations.

The bigger problem and the inherent contradiction in their (twitter’s stance) would be made clear if we are to fill in the dots:

On February 10, Twitter also published a blog post where it remarkably — and in my view correctly — argued that the government’s own actions in directing it to withhold access to the accounts of ‘journalists, activists, and politicians’, violated Indian law, and the constitutional guarantee of the freedom of speech.

(Emphasis mine)

Twitter specifically decided not to block the accounts of ‘journalists, activists and politicians’. All three categories are vague enough to fit in a privileged few: not everyone. The problem is, in India, free speech is free speech for everyone. Appukuttan has as much free rights as Arundhati Roy. Therefore that twitter determining that some class of persons cannot be blocked is wrong. What right that privileged the accounts that were taken down also is applicable to these persons. For more clarity , let us look at the Twitter Blog, which says:

“Separately, today, we have withheld a portion of the accounts identified in the blocking orders under our Country Withheld Content policy within India only. These accounts continue to be available outside of India. Because we do not believe that the actions we have been directed to take are consistent with Indian law, and, in keeping with our principles of defending protected speech and freedom of expression, we have not taken any action on accounts that consist of news media entities, journalists, activists, and politicians. To do so, we believe, would violate their fundamental right to free expression under Indian law.”

It is quite clear that twitter is contradicting itself. It is willing to take down anonymous or unknown persons and willing to sacrifice their free speech over the privileged. Thus, free speech is not equal for Twitter either. This determination does not exist in Indian Law, as I said earlier. Therefore the argument that Twitter wishes to protect free speech in India is specious. Not to mention if we were to add the context of what happened in the United States and in Uganda, it is quite clear that Twitter wishes to be a law onto itself. This is the primary problem that India as a sovereign entity faces: and something like this deserves our attention and nuance as well.

The inherent dissonance in the State Government(s) running Hindu Religious Institutions and proclaiming itself to be ‘secular’ is an apparent contradiction that has been repeated to death by many in the ‘right’ side. The idea that devotees should have direct control over the temple institutions that they worship is now a mainstream idea among the Online ‘Right’. Yet, the idea has not had sufficient political mobilization on the ground due to practical considerations. Whether or not it finds some success in the reform of temple administration is yet to be seen. In any case, the question of why is state sponsored administration so bad ought to be answered. The mere principle of separation of church and state should suffice, but there are a litany of administrative reasons for temple administration to be separated from the State.

After all, the State and the Devaswom Board (the name of the boards that administer temples in Kerala) is controlled by members of the (nominally) Hindu community. However, the objective of the administration of the devaswom (bureaucrats selected in a ‘secular’ method) have divergent objectives from the traditional stakeholders (the Tantri or the head priest of a temple (imperfect translation), the Raja (Samoothiri/Zamorin, Kochi Raja or Travancore Maharaja, or other Royals), and the devotees or the public. The unfortunate reality is that the power is concentrated on the Devaswom Board Officials, who run riot with it. The issue of corruption at the Sabarimala Temple, from the procurement of utensils to that of the divine Aravanna is a well known fact.

The pervasive control of the bureaucracy on Temple administration ranging from interventions in the conduct of rituals to the involvement in selection of priests and ‘VIP Darshan’ among others, the many wrongs conducted by the temple administration is far too many. The temple it seems, should function not according to the traditions and norms, but according to the whims and fancies of the bureaucrats and in large, the state. The latest example of the negative consequences of the bureaucratization or ‘secularization’ of temple administration can be seen in a recent directive issued by the Devaswom Ministry in Kerala.

The new directive, which increases the salary of temple dependent employees of the Malabar Devaswom Boards, however has a negative reference to the expenditure made as part of festivals, offerings to the deities and to the traditional temple priests, which are apparently ‘unnecessary’. The government directive mentions these expenditures as part of the ‘extraordinary’ or ‘unnecessary’ expenditure that should be curtailed. This of course is quite contradictory to the fundamental reasons for the functioning of temples, which is to serve a core social function of uniting devotees on platforms such as utsavams (temple festivals). That they want to cut out the spiritual & divine function of the expenditure on vazhipadu (offerings to the deity) and tantra dakshina (offering to the hereditary temple priest) is egregious and unconscionable to any believing Hindu. Temples are not money minting machines and neither are they the divine providence of bureaucrats who wish to exert their frustrations. It is the literal divine providence of the deity of the temple of our devatas.. To ensure the progression, preservation and prosperity of our religious institutions, reform in temple administration to make it independent of state machinations is necessary. Free Temples, it is common-sense.

P.S.: The resolution of the salary dispute of MDB Employees is a welcome step, and came as a result of the new MDB chairman:

The funds for the advance of ₹2,000 have apparently been received. The strike was by Kerala State Employees Coordination Committee, Malabar Devaswom Employees Union (CITU), and Malabar Devaswom Staff Union (INTUC). There are around 6,000 employees in 1600–2000 temples under MDB

- Ananth Krishna Subhalakshmy (@Ananth_Krishna_) January 6, 2021

https://platform.twitter.com/widgets.js

Also read: Why The State Must Step Back From Running Temples

Special Thanks to Aishwarya Ajayan for her Inputs and editing.

Lawyer (NUALS ‘20). From Kozhikode, Kerala, I have written for Swarajya Magazine, OpIndia and Pragyata. I am active on Twitter (ID:@Ananth_Krishna_) View all posts by Ananth Krishna

Originally published at http://chhitblog.wordpress.com on February 14, 2021.

The issue here is that platform providers such as Twitter and Facebook’s increasing regulation due to political dysfunction is creating pressure to regulate their users content generation. This arguably takes away the ‘platform’ part of the equation for these companies. Rather than being platforms that facilitate speech and take no responsibility for the content and remove illegal content, by curating information in search of ‘facts’ and ‘truth’, the platforms are functioning like traditional outlets, who would be responsible for the content they are sharing.

The argument that these platforms are essentially private and therefore the regulation of content does not affect free speech is specious. Yes, these companies are private platforms and do not legally have to offer the same free speech rights given to citizens as against State action under Article 19 of the Indian Constitution. However, these platforms have now evolved into a virtual public square. The ability to deplatform and therefore completely vanish ideas and thoughts overnight. In other words, Soviet-Style Platforms is possible at a mass scale overnight.

This would be alarmist, yes. But the ability of these corporations to channel and regulate content is nothing to scoff at. Due to the network effect, everyone and their grandmother is on Facebook and Instagram. The algorithms that control content regulation here will decide the fate of many ‘cute’ cat videos but also political and social content. This form of mass-based content creation does not have parallels in history. The creation of free speech laws is meant to allow people to think, say and publish. The last part, publishing — which was once the monopoly of moneyed elites and powerful forces have now been decentralized. Anyone can say anything and that can be seen by everyone. It is a powerful tool that alters the nature of social, political and cultural relationships. The negative consequences of this mass-decentralization of publishing through these platforms means that harassment, conspiracy theories are also able to capture audiences that hitherto were oblivious to to it. By focusing only on these aspects however, we are being disingenuous as they have to be viewed in the light of positive consequences. The ability to connect, convey and state information, ideas, opinions and facts on these networks should be as free as possible. Those companies have a duty to do this, and not curate content to their liking.

With a significant section of a population using these platforms, the limiting of any information or the widespread propagation of any information can influence multiple ‘real-world’ outcomes. That which may be ‘accurate’ , ‘authentic’ or ‘factual’ can change. The U-turns during COVID-19 Pandemic’s initial days are regarding the use of masks are a prime example. That which seems “Authentic” may not be as authentic at the end of the day. It may only be the prevailing dictum or consensus of the society. By removing the ability of the much vaunted ‘dissent’ by a minority, it creates false perceptions of permanent accuracy.

The ‘private companies, private free speech regulation is okay’ argument is not as simple. The concept of free speech is not mere a legal right; it is a principle that must be imbibed in a democratic society — the masses should be allowed to use the virtual public square without the content being overtly regulated by Social Media giants to cover ‘correct’ or ‘accurate’ information. That a critical mass of our populations use these networks is enough to make us extremely worried about the consequences of ‘truth-seeking’ and regulation by these companies. What if under this story there was a fact check:

“The Author obfuscates and egregiously compares Technology Platforms to Soviet Style Censorship. This is not accurate. Learn more here->”

That would be quite scary.

Making these companies liable to offer same protections as against the government is however not the answer. The regulation and moderation of such content is a tricky issue and there exists no panacea. But a good start would be to stop pretending that Twitter’s, Instagram’s and Facebook’s regulations don’t affect free speech. It does.

The Karnataka High Court recently dismissed two petitions challenging the appointment of Non-Hindus in the Hindu Religious and Charitable Endowments Department of Karnataka.

The first petition sought to restrain a Deputy Commissioner A.B. Ibrahim from entering the Mahalingeshwara Temple in Puttur, while the second one objected to the appointment of Mohamad Deshav Alikhan as a Superintendent in the HR & CE Department. The court dismissed both petitions out of hand on the basis that the Hindu religion was not “narrow” and that “heavens will not fall” (paraphrasing) if the non- Hindu Deputy Commissioner enters the temple. It orally observed that Non-Hindu officers had assisted in the conduct of Hindu festivals all across the country and that the petition would ‘take the country a 100 years back’. With regards to the position of Superintendent position held by a non-Hindu, it read Section 7 of the Karnataka Hindu Religious Institutions and Charitable & Endowments Act as only requiring those directly concerned with the activities of the department as needing to be Hindu.

The court also orally observed:

“Judicial notice will have to be taken of the fact that government officers, police officers, irrespective of their religious faith and beliefs effectively assist all religions in celebrating their respective religious festivals. In fact that is part of the Constitutional philosophy and of Secularism.”

The court seems to have a warped sense of what it means for government to run religious institutions and its connected departments in a country that hosts multiple faiths. The Indian State and Society does not host a monoculture. In a multicultural, multireligious society, the administration would draw from all sections of society. This cannot however be the case in the HR & CE department that is directly concerned with the control and administration of Temples.

It is with this purpose that Section 7 of the Karnataka Act exists:

The Commissioner and every Deputy Commissioner or Assistant Commissioner and every other Officer or servant, appointed to carry out the purposes of this Act by whomsoever appointed, shall be a person professing Hindu Religion, and shall cease to hold office as such when he ceases to profess that religion.

The Court read “to carry out the purpose of the Act” in a strictly narrow sense when that is not the case. The HR & CE Department is unlike other departments of the State Government: its purpose is asecular in a secular framework. The role of any person, that be the superintendent or the Group D employee to clean the Commissioners office is in fact made in order to further the purpose of the Act. The court had stated that this is not the case. However, considering that the HR &CE functions in administering Asecular activities, which in turn funds it. How can it then function under a secular framework? It cannot.

There is an inherent tension in the way that Hindu Temples and Religious Institutions are administered under the current framework.

In a similar instance, the Kerala Government removed the requirement that the Commissioner appointed under the Travancore-Cochin Hindu Religious Institutions Act, 1950 be Hindu. The Kerala Government later submitted an affidavit to the Kerala High Court that only a Hindu would be appointed to the position on a petition filed by the then BJP State president, P.S. Sreedharan Pillai.

The issue raised by the A.B. Ibrahim reference though similar, has a different issue. The issue relates to the 2016 printing of the then Deputy Commissioner/ District Magistrate/District Collector A.B. Ibrahim in the invitation card of a festival in Puttur Mahalingeshwara Temple. The issue seems to have been amicably settled with the interference of the Karnataka High Court — the collector’s role was directed to be covered by the District Panchayat Executive Officer, who was a Hindu.

This issue illustrates an important issue: the temples administrative or in some cases religious structure either require or presuppose that the state and/or its administrative and important officials are Hindu. That the administration and participation in temple activities by the Monarch was considered prestigious as well as important for the monarch’s appeal to the people need not be illustrated. The temples prospered and functioned under the patronage of the State in varying degrees, sizes, shapes and forms. It is this role, that of a Hindu Maharaja or Raja that a ‘secular’ state is replacing. Easy work arounds such as deputizing the senior most official who is a Hindu in the region for a given event is mere practical and common sense.

This brings up another point: that of the Supreme Courts’ decision in the question of the administration of the Padmanabhaswamy Temple in Thiruvananthapuram. The court, while upholding the rights of the Travancore Royal Family, also formulated an supervisory committee headed by the Thiruvananthapuram District Judge. Certain genius lawyers from Kerala snidely argued that the court had reserved the position for Hindus in effect. (The problems with Judge made law is made clear here, I believe.) The Court later allowed the committee to be headed by a Hindu additional judge in case the District Judge is not Hindu.

The quagmire of having temple administrations run by the State Governments and its officers are not easily solved. I had pointed out this and similar issues, including the inclusion of communists as Hindus under the HR & CE Act in an article for Swarajya.

The Indian State’s administrative mechanism ought to be and is multi-religious. This means that we require interim and structural solutions to the issue. Shreyas Bhardwaj has proposed a solution that I think is imminently possible in Swarajya Magazine: a model based on the Somnath Temple Administration.

Temples and Temple Administrations should be run by Hindus. The Imposition of a secular administration in a self-proclaimed secular state in itself is wrong. That the system wishes to make temple administration secular in itself is a damning indictment.

Hopefully the petitioners will approach the Supreme Court in the Karnataka HC petition and lead to a different result.

Swami Sharanam!

The purpose of anything that is done in politics is to win elections. Democracy rewards those who win over the masses, not those that are willing to antagonize to win in the future. The merit of the system is another question is another one all together, but that is the system that exists. To hold populism some how out of bounds is irrational. The purpose of spending in a democracy to win votes, and doing what is directly incentivized in a democracy is not inherently wrong. Those talking of “populism” in the Budget should think about this.

.

A 20 year old BJP worker in Purulia district of West Bengal was brutally killed, and his body hanged in public. On the back, scrawled into his white T-shirt was the message that would send a chill down anyone’s spine: “ “This is for doing BJP politics from age 18. Been trying to kill you since the vote. Failed. Today you are dead”. Just a day later, another 32 year old BJP worker was killed, ostensibly by Trinamool Congress goons.

The news appeared across websites of many Mainstream outlets, and that Republic TV did a story on the issue shouldn’t appear as a surprise, considering it’s pro-BJP bias. What is missing is the frenzy over the murder that would have otherwise followed if the murder had happened elsewhere. Say, for example, In Uttar Pradesh, a BSP worker was found hanging with this message. What would have been the reaction? (Note that 20 year old Trilochan Mahato was a Dalit)

We would have seen Newspaper headlines screaming about political violence which is oppressing the marginalized community, opinions and columns filling up the space of Times of India, Hindustan Times and The Hindu. The Wire and Scroll.in will also have dedicated pages to covering the killing and the investigation. From a rudimentary search, Wire seems to not have covered it all, while Scroll had two reports. And their bias is quite evident, see how they have phrased the headline:

Our great journalists and pre-eminent intellectuals would have written countless pieces on the killing, demanded that the Prime Minister speak out on the issue and issued a joint statement on it. But, no. The life of a BJP worker comes cheap for them. He is after all guilty of ‘wrongthink’ and his death does not deserve attention.

I’d like to show you a more in the face example. Take the instance of Mathrubhumi, the second most circulated Malayalam newspaper — it had headlines screaming about the Dadri Mob lynching and ‘intolerance’ on days for end.

While today, the death of the two BJP workers were a page 09 news, in a small column, which says they ‘were found hanging’ and the BJP ‘alleging’ that they were murdered by Trinamool Congress.

Trilochan Mahoto (Om Shanti) will soon be forgotten by everyone, I for one will not. He represents the cruel nature of media coverage and bias.

This unfortunately means that Section 295 — A of the Indian Penal Code, 1860 is valid. Section 295-A penalizes ‘Deliberate and malicious acts meant to o outrage religious feelings of any class by insulting its religion or religious beliefs”:

S. 295-A — Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

It is in other words, a law against ‘blasphemy’, antithetical to any society that believes in free speech. The words ‘Deliberate’ and ‘malicious’ attempt to make the section and the offence a tad more reasonable, but that is not the case. If I want to be a blasphemer, deliberately, a society that believes in civil liberty should allow me to be so, to spread my thoughts and feelings without any inhibition. I should not face any sanction from the state merely because somebody’s ‘feelings’ have been hurt, or because someone is ‘outraged’.

The Supreme Court has unfortunately held that this section is constitutional in many judgments, as the exception created for ‘public peace’ under Article 19 (2) is satisfied. The only way to remove this section is by legislative repeal, which is not even being discussed by anyone at this point.

This article in the Indian Express, written by the former Attorney General of India, Soli Sorabjee in 2006 does make some interesting reading behind the history of the section. To Quote:

The legislative history of Section 295(A) is interesting. A tract, Rangila Rasool, was published in which there were scandalous references to Prophet Mohammed’s personal life. The Lahore High Court ruled that although the writing was certainly offensive to the Muslim community, the prosecution was not legally sustainable because the writing could not cause enmity or hatred between different religious communities, which is the gist of the offence under Section 153(A) of the IPC. There was an outcry from the Muslim community and a demand for change in the law. Thereafter Section 295(A) was enacted. Incidentally the author of the tract was murdered in Court.

Mohandas Gandhi was outraged at the publication of the pamphlet, and supported the agitation by the Muslim community for the same. And the law came. It has been harming the interests of free and critical thinking ever since.

Let us return to Sri. Sorabjee’s article before progressing: he remarks at the end that suggest that the section is legitimate. He says the yardstick for whether or not the feelings have been outraged has to be determined on the basis of the reactions of ‘believers’. In other words, we have to keep our tone and tenor based on the feelings of an ‘average person’. This is not how a constitutional right should work. My rights are my rights. My right to free speech should include the ability to offend and outrage you. After all, what is offensive is inherently subjective. And subjective standards have no place in the determination of a crime.

If we are to be a country that provides for liberal democratic values, then we should permit free and critical inquiry into all spheres of thought. Otherwise, we are not here nor there, and we no gleam no benefits.

If you believe in a free society, then you should be against the existence of this section. It is contrary to free speech. And it’s time we all come on the side of repealing this section.

I would suggest that you read the following articles to understand the concept of free speech more elaborately: On Free Speech, Free Speech: Examination of two recent scenarios, The Right and Wrong of Free Speech [Swarajya], Why concerns about unbridled free speech must be re-examined [Swarajya], and Gurmehrar Kaur is by no means a free speech warrior [OpIndia].

Originally published at chhitblog.wordpress.com on April 30, 2018.

The Daily Show with Trevor Noah did a 6 minute piece on Kanye West praising a conservative political commentator, Candace Owens and calling slavery a ‘mentality’.

The views of Kanye and by extension Ms.Owens was reduced to a single point in the succeeding seconds: They are denying the existence of racism in the United States. That statement is of course, easy to disprove. They use two incidents — a distasteful ‘exhibition’ by a resident in New Richmond, Virginia and an act of vandalism in Friendship, Tennessee (Yes, it’s a real town, I checked)

In the first case, the ‘exhibition’ is being held by private citizens on private property, and is protected by the first amendment to the US Constitution. It may be a real or perceived act of racism, but that is a legitimate use of that citizens rights. The second case is one in which the rights of a private citizen was violated, and the same is being investigated by the state (as made clear by this report).

Both cases are examples of individual actions of racism, the state nor any of its institutions is aiding or abetting the racists. In one case, the state is actively attempting to prosecute the perpetrators. In the other, the state is precluded from taking action because it is the exercise of a constitutional right.

Let us look at this video from the point of view of a casual viewer of the show. You are initially given the impression that Mr. West and Ms. Owens think that ‘racism does not exist’, which is then disproven by the use of two individual acts of racism that was documented in the preceding days. “Ha!” you would think. “Kanye and that commentator are proven to be fools”. But in fact, neither the host (Trevor) or the commentator (Roy Wood, Jr.) are debating the propositions that West (and by extension Owens) are advancing.

What The Daily Show is doing isn’t smart commentary, its the use of obfuscations and diversions to score something that isn’t even being contested. This is why ‘Comedy news shows’ like this are a disservice to public discourse in general. We can see the same in India as well, when comedians blatantly adopt the talk points of certain political alignments, time and time again.

The art of political humor, in my opinion, should provoke us to think critically and analyse, not fall into the trap of logical fallacies in the pursuit of a political ideology. That has been more than lacking for a long time.

Long point short: we’re better off not watching political comedy if we want to craft our opinions based on facts and reality.

References

[1] Owens on the victor mentality

[2]Candance Owens interview with Dave Rubin

Many Indians are unfortunately today the spiritual descendants of these sepoys. Let us call them ‘modern sepoys’. They are not going around killing people for their white masters of course — but they are willing to self-flagellate to no end to appease their white masters. They are infected with a mutant form of inferiority complex, in which they detest their brown skin, and offer their religion, culture and heritage on a platter for ‘academics’ to ‘contextualize’, interpret’ and ‘analyze’. They know of Shakespeare and Ram Mohan Roy, but not of Kalidasa or Sri. Madhavacharya. They are in other words, ‘Macaulayputras’, the intellectual descendants of the ‘great’ Lord Thomas Macaulay whose views on our intellectual traditions can be summarized by this quote:

It is, I believe, no exaggeration to say that all the historical information which has been collected from all the books written in the Sanskrit language is less valuable than what may be found in the most paltry abridgement used at preparatory schools in England

When you claim that Indians were colonized, brutalized and remains destitute because of our culture (a ‘euphemism’ for Santana Dharma/Hinduism of course) not only are you displaying your patent ignorance of history, but you are also offer yourself on a silver tray to your erstwhile colonial masters.

The reasons for colonization are varied — it can never be reduced to the perceived ‘weakness’ in our culture. If our culture was truly weak, we would not have survived colonization ; our traditions and practices would not have survived it. Yet to this day it does, and in some sense it is prospering. India stands in the precipice of a great metamorphosis kick started by the economic liberalization of the 1990’s.

If you honestly believe we have no great architectural feats in the past, I can only scoff at the scale of your ignorance. If you have ever seen the ruins of Vijayanagra, Haleebedu or the majestic Brihadisvara Temple at Thanjavur, you would not even doubt for a second the ability and skill of our craftsmen and artistes.

Our culture, so to speak, has never devalued the importance of hard work and perseverance. Using the evil of casteism as a veil to characterize Indians as a race that does not value hard work is a propaganda that is worthy of Gobbels himself. India is not poor today because we do not value hard work — any society that is growing at our rate obviously does, but it is rather due to the stronghold of populism and socialism in the mindsets of our policymakers, bureaucrats and establishment in general. [I am reducing the reason for our poverty into one, but as you can predict, there are multiple reasons for it.]

Last but not least — a quarry worker and the poet are not one and the same. They cannot be treated the same. To presume that they are is in my opinion the most misguided of notions. Each person has their own value and worth, and everyone cannot be treated the same.

When you have a criticism to make, apply some critical thinking before speaking out loud. Otherwise, it will not hold up to slightest of scrutiny. Sepoys however will continue their hard work at dismantling our culture and traditions, and that will not abate. It is best to ignore and move on, proceed with your own work.

The conflict that has arisen between the 4 senior judges of the court and the Chief Justice seems to be based on two grounds:

• The allocation of cases by the Chief Justice of India as the Master of the Rolls.
• The non-approval of the Memorandum of Procedure by the Union Government.

Justice Kurien Joseph and Justice Madun Lokur had earlier written a letter of protest against the Chief Justice’s recommendation that the reasons for rejection of candidates for Judicial posts by the collegium be made public. The Judges felt that such a move would be a violation of “human rights” and the principles of natural justice since the rejected candidates were not even afforded a hearing before the reasons for the rejection were made public. This sort of convoluted logic eludes me, and I will get back to that issue later.

Let us deal with the issue of the Memorandum of Procedure (MoP) first — the MoP is the agreement between the Supreme Court and the Union Government regarding the appointment of Judges to the Supreme Court. The Union Government has so far not responded to the comments made by the Supreme Court on the draft MoP. The 4 senior Judges are questioning the inaction of the CJI on this issue. The judges point out that the court in RP Luthra v. Union of India, started to deal with an issue judicially that they had so far dealt administratively. The 4 Judges want the silence of the Government on the MoP be considered as acceptance of the same. It is quite clear that such a unilateral move by the Judiciary could possibly create a constitutional crisis.

Keep in mind that the Supreme Court had struck down the National Judicial Appointments Commission (NJAC) on the ground that it violated the basic structure of the Constitution back in 2015. The issue of Judicial Appointments in the country has long been a source of conflict between the Executive and Judicial Branches. The Supreme court has by the way of the SC Advocates on Record Association v. Union of India, 1993 and the IN RE: Special Reference №1 of 1998, established the predominance of the collegium, composed of the 5 senior most judges of the Supreme court , with regards to the appointment of Judges in constitutional courts. There has been no appointment system so foul in any democratic system in history, in my humble opinion. The Judiciary has conducted a naked power grab of the instruments of the state by the way of these judgements and more. There is more than enough evidence for one to argue that the Republic has become a Kritarchy. This is the real problem that we face. Not a spat between the Judges and the CJI. The conflict is a spectacle to the media and civil society, undoubtedly, but it conceals the rot that has set in the democratic system due to the appropriation of power by the Supreme Court.

It is understandable then, why I felt bemused when Justice Chelameswar stated that the Supreme Court and thus Democracy itself is in danger. The Supreme Court has violated the very sacrament that it claims to protect, multiple times. Democracy has been in danger since the day the Judiciary decided that it need not no longer conform to the constitution, and that it could utilize weak executive power to appropriate power for itself.

The honourable Justices who objected to increased transparency in the decisions made by the Collegium based their grounds on the violation of the principles of natural justice. The Judges are indeed right. The collegium is passing judgement on persons in public without hearing them. But is it not foul of natural justice that the collegium exist at all? A body that appoints its own successors, with no accountability or transparency whatsoever. It is therefore almost baffling that the Judges cry foul over the smallest amount of transparency that is being afforded on the grounds of “natural justice”, when they themselves have given themselves the power to take arbitrary, unaccountable and opaque decisions. The solution lies in the implementation of the NJAC, and nothing else would do, certainly not a half-baked MoP.

Keeping in mind all this, the ability of the Chief Justice as Master of Rolls to decide the outcome of any case is virtually unlimited. His role as Master of Rolls acquires prominence because he can constitute, disband and allocate cases to benches of his discretion. Since the Indian Supreme Court, sits in benches of 2, 3 or constitutional benches of 5, there lies a scope for “bench-shopping” by which an aspiring litigant can get a hearing with a favourable judge. This is of course, exceedingly problematic. Bear in mind however, some allegations by the 4 judges on the issue of allocation of sensitive cases are false. But the system has obvious deficiencies, for example when the current CJI virtually heard a case against himself which obviously played a role in the current drama. The solution to the current crisis with regards to this issue is to renew the doctrine that existed prior to the 5 judge order holding the CJI as the absolute head of the roster. The CJI should continue as the Master of rolls, but in the extraordinary situation that the Chief Justice has a conflict of interest, the role should be taken over by the senior most Justice of the Supreme Court who does not have a conflict of interest. But the solution to the question of judicial misconduct lies in the adoption of the Judicial Accountability Bill, as Jaggi rightly points out.

The Judicial Accountability Bill will however not solve the problem of bench shopping by litigants or the possibility of “bench stuffing” by the CJI. The solution to this problem lies in the very nature of the Supreme Court. The original Constitution envisioned one Chief Justice and seven other judges. The total number has since then been expanded to 25. This, as earlier stated, means that the court does not sit as one single body, but in benches. This leads to certain conflicts between and among the Judges as well as litigants. It is inherently a divisive system, prone to a variety of biases. But considering the litigious nature of the citizens as well as the burden of the Legal system, one would feel that it is necessary that such a system by adopted by the Court to dispose of cases faster. Many would rightly demand that more judges be appointed to ease the burden of the court, and rightly so. There is nothing in wrong in such a solution, and it certainly exists a legitimate one in the realm of possibilities

I am however inclined to suggest a more radical option. The Supreme Court of India should only hear questions of constitutional law, and nothing more. The Court should be organized in a similar fashion to that of the United States, sans the blatant politicking, with 9 Judges and a Chief Justice who sit as a single bench. A National Court of Appeals with branches at Kolkata, Bombay and Chennai should be formulated for the disposal of Civil, Criminal, Labour and Revenue matters. This will greatly ease the burden on the Supreme Court. Such a reform will also be a solution to problem of bench stuffing and shopping.

The current impasse is no doubt consequential, and may shape the court for years to come. We should not however lose track of the court’s history and the extraordinary power that it exercises today. The reforms of the Constitutional courts is a topic that needs an active discussion in our discourse at the earliest.

Post-Sript

Q:What should the Judges have done, in your opinion?

A: Considering that the order of the CJI violated the basic premise of natural law, and it was an extraordinary situation it should have merited discussion in the Parliament. The Judges ought to have approached the President of India, who as the head of state, is ultimately the person responsible for the oversight of the Supreme Court. The method adopted by the 4 judges was crude, one that demeans the integrity of the institution, and of the Judges. The press conference by the Judges was a public spectacle, one that was meant to shame the CJI and in effect all those persons that were aligned against them. Obvious ego issues between the Chelameshwar and CJI had a role to play in it.

Q: You are saying they should have been graceful?

A: Yes, I am saying that the Judges should have handled themselves in a manner fit for their position. The press conference felt like something an attention hogging teenager would do, not matured justices of the Supreme Court.

Originally published at chhitblog.wordpress.com on January 17, 2018.