The Elements of Subjectivity in Judicial decisions

         The Elements of Subjectivity in Judicial decisions

Though man craves for objectivity, in real life one finds a zillion examples of subjectivity and judicial system is no exception. This is precisely why one finds markedly different interpretations of same section of the Indian Penal Code. Take the case of section 377 which talks about criminalization of sex between same sex people as well as sex between human being and other animals. In Koushal v Naz foundation case, a two-judge bench of the Supreme Court overturned a 2009 decision of the Delhi High Court decriminalizing sodomy by section 377 of the Indian Penal Code. In doing so, it has recriminalized every Indian who has ever had oral or anal sex [irrespective of the gender of the person they had it with, and irrespective of consent].

The section 377 has been interpreted differently by the Delhi High Court and now by the Supreme Court with diametrically opposite decision. When the Delhi High Court decision came in 2009 it was hailed as a step forward and now the Supreme Court decision is being roundly criticized by all progressive sections of our society. Event the ultra-right forces have welcomed the decision in a muted manner. While one must hail this negative achievement of the progressive forces, one must try to understand as to why same section gets totally different interpretation.

This is where the subjectivity comes into picture. We tend to forget that the judges are human beings too, with likes and dislikes. All they do it to control them to the maximum possible extent. In most of the cases, they succeed. That however does not mean that they succeed all the time. Cases like interpretation of the section 377 bring to surface the subjectivity, a fundamental reality of judicial system.

This is not new and specific to India. The famous jurists from UK Lord Scrutton wrote: ‘Where are your impartial Judges? They all move in the same circle as the employers, and they are all educated and nursed in the same ideas as the employers.  How can a labour or a trade unionist get impartial justice? It is very difficult sometimes to be sure that you have put yourself into a thoroughly impartial position between two disputants, one of your own class and one not of your class’.

Similarly former prime minister of UK Mr. Winston Churchill wrote:’ The Courts hold justly a high, and I think, unequalled pre-eminence in the respect of the world in criminal cases, and in civil cases, between man and man. No doubt, they deserve and command the respect and admiration of all classes of the community, but where class issues are involved, it is impossible to pretend that the courts command the same degree of general confidence. On the contrary, they do not, and a very large number of our people have been led to the opinion that they are, unconsciously, no doubt, biased.’

These two observations from scholars hailing from advanced democracy like UK should seal the debate about the total impartiality of the judiciary. And it should also embolden us to discuss the class character of Indian judiciary.

Even in India, there have been many respected judges who have often expressed opinions about the class bias of our judiciary. Former judge of the Supreme Court O. Chinappa Reddy often said that every situation has a class character and judge must understand this. Then we have highly respected Justice V R Krishna Iyer who also commented about the class character of our judicial system. In a recent article he commented on this issue. He wrote: ‘Capitalism and socialism are fundamentally based on the haves and have-nots. The working class is often exploited by the capitalist class when it nominates the executive, which more often than not, represents the richer class.’ He made some eye-opening remarks. He wrote: ‘Even with adult franchise, the purchase by the richer classes of members of the legislature remains a possibility. Naturally, the class bias comes into play even in the selection of judges. Even the judiciary and jurisprudence they enforce have a class character.’

Only when we take into account these highly relevant observations, we can dispassionately discuss the subjectivity in judicial decisions. While comparing the verdict given by the Delhi High Court and the Supreme Court on section 377, one can conclude that the Delhi High Court took a progressive position but the Supreme Court relied on nebulous ‘Indian culture’. Everybody knows that there are enough cases in Indian culture which could be cited to support same sex relationships and alliances. But the top judiciary decided to pick only that part which supported its position.

Quite often the ideological position of judges is reflected in the judgments given by them. In the 1950s, Nehru’s government introduced the Zamindari Abolition Act, 1951. Though it was passed by the Parliament, the landlords went to Court and requested for the annulment of this act as it was infringing upon the fundamental right to private property. The Judiciary took very legalistic view and struck down this act which was meant to take over excess lands from landlords and give it to poor farmers who have been toiling on the same land for generations without property rights. This judicial verdict alerted Nehru, a hard-core socialist. He was foxed as this decision would mean no socialism in India. He came out with a novel solution. He added XI schedule to the Constitution and provided that laws made under this schedule are not subject to the judicial review. With this schedule the path to progressive laws became clear. Similar situation came in July 1969 when Indira Gnadhi nationalized 14 private banks. As expected, the owners went to the Court and as expected, the Judiciary struck down this decision. Indira Gandhi promptly put this amendment in XI schedule and moved ahead with the nationalization.

These instances show that judges are human beings with their own likes and dislikes. This is precisely why they should not be unnecessarily sensitive towards criticism. One can close this discussion with a quote from the legendary American judge Frankfurter. He said: ‘Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of judicial office are identified with the interests of justice they may forget their common human frailties and fallibilities.’

                                                                                               Prof. Avinash Kolhe

                       Asst. Professor in Political Science at D G Ruparel College, Mumbai  

India and its neighbours

Tibet needs to be handled with care [4-4-09]
It was exactly 50 years ago that Dalai Lama marched into Indian territory to escape persecution at the hands of Chinese authorities. Since then he along with his entourage has been staying in India. Till today despite so many rounds of negotiations between Lama and Chinese authorities, the dispute has not been solved. Not only this, there seems to be increasing bitterness on both sides. For example in a recently held press conference in New Delhi Dalai Lama publicly asked, ‘Is there no Chinese journalist in the audience?’. And when the Chinese journalist asked much expected question about Tibetan leaders’ position on the talks with the Chinese authorities, Dalai Lama commented with visible irritation that,’ everybody knows our position very clearly. North America knows very clearly. Japan, New Zealand, and India all know except the Chinese government.’ He went further to say, ‘ it is your responsibility to make clear report to your government. I know your government. I know there is censorship. Your report is meaningless.’ This was quite un-Dalai Lama-like. It surprised the entire media fraternity present for the press conference.

But then one can hardly blame Dalai Lama [born 1935] who has been negotiating and dreaming of going back to his motherland that he had to abandon some fifty years ago. He, like many, suspects that the Chinese authorities are waiting for his death. Once he is removed from the scene, they feel, they will have less formidable foe to deal with. No one can dispute that over a long period of time Dalai Lama has built unenviable international reputation as the spiritual and political leader of Tibetans, a community of 5 million which is facing heavy discrimination in their own homeland. Dalai Lama has managed to keep alive the issue of Tibetans and give the anti-Chinese forces a ready handle to beat China with. He was awarded Nobel Peace Prize in 1989.

Back then, the Dalai Lama had no choice but to flee to India. Since then there has been a see-saw between China and Dalai Lama which goes on even today. Recently the Chinese managed to brow-beat South Africa and got them to ban Dalai Lama’s entry to attend peace conference in Johannesburg. On the other hand in March 2009, the European Parliament passed a resolution calling for ‘real autonomy for Tibet’ and the US House Representatives passed a separate resolution demanding that Beijing ‘lift immediately the harsh policies imposed on Tibetans’. Both the bodies backed Dalai Lama’s initiatives for a durable political solution to the Tibet issue.

Since Tibet is India’s direct neighbour we have solid stakes in this problem. We must ensure that Tibet issue is resolved in such a manner that our interests are protected. In stead of working in this direction, it seems that we, like South Africa, go all out to placate China. During Olympic Games 2008 hoisted by China, the Olympic Torch was to be relayed across just about two kilometers in New Delhi-from Vijay Chowk to India Gate. The Government stationed over 20,000 troop, paramilitary personnel, policemen and plain-clothes men in and around that short stretch. The Tibetan refugees were beaten, roads were blocked, and the metro was shut down. It was clear that all this was out of fear of China. And despite such regular gestures from us, the Chinese authorities routinely try to put India in trouble. As recently as June 2007, China had gone to great lengths to coordinate efforts with Pakistan to ensure that the African governments stuck to a stand that would make it impossible for India to play a greater role in the Security Council of the United Nations!

For years Tibet played the role of ‘buffer state’ between Asia’s two giants, India and China. Once Mao successfully led Communist revolution in China, situation drastically changed. People’s Republic of China came into existence in 1949. From the day they came to power, the Communists maintained that soon they shall ‘liberate’ Tibet.
Accordingly on 7th October 1950, as many as 40,000 Chinese troops invade Eastern Tibet. Very soon entire Tibet was under Chinese control. The Chinese invasion left Dalai Lama with no alternative. On the night of 17th March 1959 Dalai Lama had to escape from Norbulingka Palace in Lhasa with handful trusted people. On 31st March, he reached India after a 14-day trek through the Himalayas. Since then ‘31st March’ is observed by the Tibetans in exile as the National Uprising Day.

It was not that all Indians were blind to the reality of Chinese intervention in Tibet. Sardar Patel, that pragmatic leader, had warned that we shall have trouble on Indo-Tibet border. In his prophetic letter written in 1950 he wrote that ‘this invasion has brought China almost up to our gates and this will have a host of consequences.’ All of this came true in later years.

In the case of Tibet, India made one blunder after the other. Initially we accepted the sovereign status of Tibet. Right up to 1949 in all his communications to officials, Pandit Nehru referred to as ‘The Tibetan Government’. Soon after independence he organized the Asian Relations Conference, to which the Government of Tibet was invited to send its representatives, which it did. We should have sustained this position. We gave this up and accepted Chinese suzerainty over Tibet. Since 1954, New Delhi has consistently held that Tibet is a region of China. Despite this, the Chinese fears of Dalai Lama were so intense that it finally culminated into Indo-China war of 1962. The presence of the Tibetan government-in-exile stationed at Dharmashala on Indian territory has been a cause for concern to Beijing. The Indian government has not recognized the government-in-exile and has stated often that it would not allow the Tibetans to undertake political activities. But the Chinese remains skeptical.

Initially Dalai Lama was asking for independence of Tibet. By 1979 discussions began between Beijing and the Dalai Lama. The then Chinese leader Deng Xiaoping suggested that short of independence the Tibet problem could be resolved through negotiations. A decade later Dalai Lama moved away from his earlier position of seeking independence for Tibet towards the ‘middle way’ which meant ‘autonomy under Chinese rule’. This did not enthuse the Chinese authorities. His conception of Tibetan autonomy arouses Chinese suspicion. A key component of the Dalai Lama’s idea of autonomy is to unite under a single administrative entity all the areas populated by ethnic Tibetans. More specifically the regions of Kham and Amdo, that currently fall under four different provinces of China, should be grouped with the area that is now called Tibetan Autonomous Region. The Chinese feel that this demand is tactical in nature. The creation of such an entity would merely serve as a stepping stone to eventual independence for Tibet. Hence the deadlock!

For India, Tibet is one issue that has become a stumbling block, standing between its relations with China. Here we must play our cards well. While the question of Tibet’s independence seems to be permanently sealed, we must use the Tibetan issue to derive maximum advantages from the Chinese. This demands a lot of balancing tricks. On one hand we must continue our dialogue with China and on the other hand, we must take active interest in the succession issue of the spiritual/political leadership of Tibetan community. We must try to ensure that a pro-India person becomes the 15th Lama. The succession process will start soon. That will test our political skills. Chinese are unlikely to accept the demand of Greater Tibet as demanded by Dalai Lama and Lama is unlikely to settle anything less than this. He has already given up the demand for independence. Now if he dilutes his demand for autonomy for Greater Tibet, he will loose face among this faithfulls. It is a no-win situation where India is willy-nilly involved. To secure our Northern borders we must these games.

By Prof. Avinash Kolhe
Sr. Lecturer in Political Science at D.G.Ruparel College, Mumbai.

political analysis

The fragmentation of regionalism

When the PMK announced its decision to leave the United Progressive Alliance [UPA] and join Jayalalitha’a AIADMK for the forthcoming Loksabha elections, this event pointed towards a different feature of Indian polity. It is the fragmentation of regionalism. Once when there was only one regional force to challenge the national political party, now we have more than one force which represents some community or some region of a particular state. Take the case of Tamil Nadu. It is one of the unique states of Indian Union that has produced a strong regional force in the form of Dravid Movement. The DMK came to power in 1967. Since then the power has been alternating between the DMK and the AIADMK. But both do not yield any ground to national parties. Since 1967, no national party has managed to come anywhere near power in Tamil Nadu.

However the Dravid Movement soon broke into various versions. After the death of Anna Durai in 1969, there was a tussle for power between Karunanidhi and late M.G.Ramachandran. Finally MGR broke away in 1972 and launched All India Anna DMK [AIADMK] which came to power later. Today there are PMK, MDMK, etc. in Tamil Nadu. These are small parties with powerful bases among some castes and some regions of the state. For example, the PMK is a party of Vanniyars who form 17% of the population. The PMK is quite powerful in north and North-east parts of Tamil Nadu. In other words, in Tamil Nadu we find a plethora of sub-regional parties which create a grand front. This is how Karunanidhi managed to sweep 2004 LS election by creating a grand front of many sub-regional parties. In these elections AIADMK could not win a single seat thanks to proper negotiations conducted by Karunanidhi. This is the unique feature of regionalism in India.

Today’s political scene in India is in such a flux that all those theories which were put forward to explain to rise and growth of regionalism are now proving grossly inadequate. Theoretically a region/state should have one force which comes into existence to express the aspirations, dreams of the people of the region. This was how it was for quite some time. Not any more. If it was Tamil Nadu yesterday, now we have Andhra Pradesh.

There was a time and that too, not in distant future that AP was regarded as a strong bastion of Congress. But in the 1980s, late N.T.Ramarao floated the Telugu Desam Party [TDP] on the platform of ‘pride of Telugu society’ which caught the imagination of Telugu society. No wonder NTR swept the polls and came to power. This was the beginning of regionalism in AP. For quite some time, the political picture in AP was clear. On one hand there was a national party like Congress and on the other hand there was powerful regional party like TDP. But then came Telengana Rashtriya Samiti [TRS] launched by K.Chandrashekhar Rao who was a senior leader of TDP. He left TDP on the single issue of separate statehood for Telengana. The TRS of K.Chandrashekhar Rao was a formidable force. When the Congress made alliance with the TRS in 2004 LS elections, they swept the poll reducing the TDP to ashes. Since Congress did not honour the promise of creating a separate state of Telengana, the TRS left the UPA in 2008. Same year matinee idol Chiranjeeve launched his party ‘Praja Rajyam’. In other words, today in AP, we have TDP, the oldest regional party. Then there are TRS as well as Praja Rajyam. All are contesting the forthcoming LS election competing with Congress. This clearly shows the fragmentation of regional force.

Even in Maharashtra one gets a somewhat similar picture. The state had its first regional force back in 1966 when Balasaheb Thackeray launched Shivsena to protect the interests of Marathi speaking people. For years this party was confined to Mumbai and some pockets of Thane. It joined hands with BJP in 1989 on the issue of Hindutva. And the alliance managed to grab power in 1995. Then some ten years ago, Sharad Pawar was forced out of Congress and had to launch the Nationalist Congress Party [NCP]. A couple of years ago Raj Thackeray left Shivsena and stared Maharashtra Navnirman Sena [MNS]. As a result today in politics of Maharashtra, we have SS, NCP and MNS as three regional forces battling it out. Though technically Pawar’s NCP is a national party, for all practical purposes, it is a regional force.

Similar situation prevails in Bihar also. There used to be Congress once. Then came Laloo’s Rashtriya Janata Dal [RJD]. Then Ram Vilas Paswan floated his Lok Janashakit Party [LJP]. We also have Janata Dal [U] which is in power in alliance with the BJP. It shows that in Bihar we have three regional forces and two national forces competing with each other for 40 LS seats.

Even in West Bengal this time there is a tough contest between CPM-led Left Front and Congress-Trinamool Congress [TC] alliance. In this case TC and CPM are two powerful regional forces. Like NCP, though the CPM is a national party, for all practical purposes it is a regional party confined to three states of Indian Union. The case of Uttar Pradesh is too clear to bear any discussion.

The above details clearly show that in today’s India not only regionalism, but sub-regionalism has come to stay. Not only this, in some state it is likely to upset some established equations, leading further to political uncertainty. The macro perspective would inform us that this is inevitable as more and more castes/sub-castes, regions/sub-regions assert themselves. This assertion automatically leads to fragmentation of the polity. This will not be a permanent situation and soon equilibrium will come back. With political maturity, each and every political force learns to adjust with each other and work out some type of pact and power-sharing arrangement. Look at the way Laloo Prasad, Mulayamsingh Yadav and Ramvilas Paswan have come together. It may be for tactical reasons but it does show the necessity of coming together. This is integral to the process of fragmentation that it ultimately leads to stability.

By Prof. Avinash Kolhe
Sr. Lecturer in Political Science at D.G.Ruparel College, aMumbai.

book review

This is my latest book review



Objective Political Biography of Benazir [4-3-09]

In the murky politics of Pakistan anything is possible and that includes daylight murder of its important leader. Ms. Benazir Bhutto was assassinated in 2008 when she had come back to Pakistan after a long spell of political exile. It was quite clear that she was inching towards political power and some forces were not ready to let this happen. Instead of taking her on politically, they decided to use gun and silence her. And yet she left behind an enduring legacy. This is what Shyam Bhatia claims in his political biography of Benazir ‘Goodbye Shahzadi’, published by Roli Books, Delhi.

Shyam Bhatia is eminently qualified to write such biography as he knew her from her Oxford days. They were together in UK. They knew each other for over 34 years. As the blurb mentions, ‘over the years Bhatia recorded a series of interviews with Benazir in which she talked with amazing frankness about her life, her family, her ambitions and her plans.’ And all this shows in the book.

As per the prevalent tradition in the political families of South Asia, Benazir moved into politics while Bhatia took to journalism. This also helped them to keep in touch with each other. Their last contact was in October 2007 at a press conference in London where she had announced her decision to go back to Pakistan. The rest is too recent to be recalled.

Bhatia has traced the family background of the Bhuttos in the chapter ‘Her Father’s daughter’. Benazir’s grand father, Sir Shahnawaz was born in 1888. He was politically active from early age. [p12]. He was invited to participate in the London Round Table Conferences on India between 1930 and 1933. Benazir’s father Zulfikar [born in 1928] was appointed a member of Pakistan’s delegation to the United Nations when he was just 29 years old. Benazir was born on 21 June 1953, went to the Convent of Jesus and Mary in Murree and then on to Oxford from where she graduated in 1974. Three years later in July 1977, her father was arrested and was hanged in April 1979. His widow Nusrat was too ill to assume the leadership of Pakistan People’s Party [PPP]. The mantle fell on Benazir. What a bloody and dramatic way to join politics! Bhatia has properly caught the inherent drama.

General Zia lifted the marshal law on 30th December 1985 and political activities once again began in Pakistan. Zia dissolved the Parliament in May 1988 and called for elections in November 1988. However he was unexpectedly killed in a plane crash in August 1988. In the elections Benazir’s PPP came on the top and on 2nd December 1988 she was sworn in as Pakistan’s Prime Minister [p 22]. In between Bhatia also writes about her marriage. Hers was an arranged marriage, rather unusual for Benazir-type of girl. When quizzed about her decision she famously commented,’ Really, how is it any different from using a compute dating services?’ [p 29]. She tied the knot with Asif Ali Zardari, a fellow sindhi. Bhatia objectively notes, ‘It was another way of saying that marriage was a political necessity and an arranged marriage was the price she would have to pay if she was aiming for high office in such a conservative country.’

Having offered such necessary details about Benazir, Bhatia then settles down to narrate the inside story of Benazir’s political life. He shows that Benazir was the real mother of missile programme of Pakistan. She came into office for the second time in 1993. While on a visit to North Korea, she personally carried some CDs having invaluable data on uranium enrichment [p 41]. In the next pages, Bhatia shows how her friendship with Peter Galbraith came handy for lobbying in US. Peter was son of John Kenneth Galbraith, US ambassador to India. When she was behind bars after her father was hanged, it was Peter who was effectively campaigned in US for her release [p 46]. As Bhatia notes,’ Galbraith was one of the eight close family friends or relatives who were gathered in the Bhutto’s Larkana family home on election night in 1988’.

About India policy, though Bhatia does not say so, Benazir was as bad as they come. She had once said,’ it should be clear that Pakistan never forgot the humiliating loss of Bangladesh at the hands of India… Zia did one right thing. He started the whole policy of proxy war by supporting the separatist movements in Punjab and Kashmir as a way of getting back at India’ [p 62]. During her first inning as Prime Minister she had realized how the nuclear establishment in Pakistan had a solid backing of Pakistan army. The Army general cold shouldered her when she asked for briefing on nuclear issues. Bhatia notes that Benazir aroused hostility among many of the generals who ran the Pakistan army [p 81]. Twice she came to power and twice she was sacked. And in both the cases, Army was the mastermind behind these moves. This however does not mean that she was a saintly figure. In fact she was the one who supported the Taliban. Though she was tried to blame Army for this, she cannot escape blame for the creation of a monster called Taliban which is now troubling her husband.

Bhatia has also noted the fights within the Bhutto clan. In later years there was no love lost between Benazir and her brothers who were not accepted as heir of Bhutto legacy. This was hardly surprising given the feudal nature of Pakistani society. And yet Bhatia opines that out of all the children of Zulfikar, she was the only capable person to carry the torch forward. Unfortunately she was assassinated before she could stage a come back. Bhatia has done well to pen political biography of one of the most important leaders of South Asia.
By Prof. Avinash Kolhe

Book: Goodbye Shahzadi : A Political Biography of Benazir Bhutto
Author: Shyam Bhatia
Publisher: Roli Books, Delhi
Published in : 2008, Pages: 130, Price: Rs.295/-

suez canal

Economics is more important than politics

It was 140 years ago that the Suez Canal linking the Red Sea at Port Suez and the Mediterranean at Port Said became operational which changed the history of the world. In 1869 the dream of Ferdinand de Lesseps who had created this unique engineering marvel became a reality. It is a 100-mile-long ship canal which also links the Indian Ocean with Atlantic through Gibraltar. At its opening, the canal had a draught of 26 ft. Today, it is more than 60 ft. Now as then it was a commercial necessity. It earns Egypt annual revenue of $ 2 billion. After 1950s the Canal became a highly volatile political issue. In July 1952 Gamal Abdul Nasser overthrew the monarchy and established a republic in Egypt. By this time the canal had already become important as the highway of oil from the Persian Gulf. As a part of Cold War politics, US and UK withdrew their offer to fund the construction of the Aswan Dam in Egypt. Nasser promptly nationalized the Suez Canal in 1956. This saw a tripartite aggression on Egypt by Britain, France and Israel which was finally stalled under US pressure. According to scholars of International Relations, the Suez Crisis had changed the course of world history. Britain and France lost their pre-eminence in the world. It also saw the emergence of US and USSR as new super powers. This crisis has also some firsts to its credit. The General Assembly of UN resolved to establish UN Emergency Force [UNEF] to keep borders at peace. The UNEF was a creation of Lester Pearson of Canada who was awarded the Noble Peace Prize in 1957. The Canal again became a hot issue when it was closed for 8 years during the Arab-Israeli wars of 1967-73. Back then the ships used to circumnavigate Cape of Good Hope. After that it has become a calm and peaceful region for international trade proving once again that today economics is more important than politics.

By A.K.

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