Statues to Statute – A moral low road.

A foolish proposal’ is how Shiv Sena supremo, Bal Thackeray, described the move of Congress-NCP state government of Maharashtra to erect the statue of Chhatrapati Shivaji in the sea off marine Drive. Same remarks from some other person and his property & person would have been ransacked alongside public property by the zealous Shiv Sainiks for supposedly hurting sentiments of Maharashtrians. The project is estimated to cost some Rs. 400 crores (or Rs. 4 billion). Many have questioned the wisdom of such expenditure when state is in the throes of agricultural crisis causing farmers’ suicide. A failed/ erratic monsoon is compounding the problems of water & food availability. Shivaji has been used as a convenient mascot & exploited for electoral gains whenever opportunity rose by politicians. They sought to usurp the goodwill the common man has for a king who is often called ‘Rayatecha Rajah’ – or people’s king for his policies that were designed to provide order, stability & relief to them. The politics of statues is not limited to Maharashtra. It is an all India phenomenon that has in its throes political, social, religious, community or regional heroes who are considered capable of delivering electoral fortunes to our esurient politicians. A rather mega scale show is currently on in the northern state of Uttar Pradesh where Mayawati, a dalit Chief Minister of Bahujan Samaj party, is hurriedly erecting panoply of statues of backward class leaders – i.e. principally of her mentor Kanshiram, of course herself & Dr. Bhimrao Ambedkar. All such statues are obviously funded by public exchequer. Mayawati may have achieved rare distinction in the politics of statues by being first to use public funds to raise her own likeness in stone & mortar. She vigorously defends her statue erection spree as a permanent testimony to the rise of backward classes’ pride & power. The expenditure on statue-politics in UP is running into staggering thousands of crores of rupees.

A public spirited citizen who disagreed with Mayawati’s proposition that such statue building leads to emancipation & empowerment of the backward classes went to the Supreme court crying foul and filed public interest litigation. His main contention is that such flagrant expenditure of public wealth is utterly unjustified when UP government needs to solve humungous pressing problems like health, sanitation, education, employment, drought relief, power, and even law & order. Supreme court immediately admitted the appeal, rightly so, and soon passed orders to completely halt all activities in the precincts where statues were being built. Mayawati didn’t take kindly to this judicial interference in what she considered perhaps was principally a social & political issue, where her writ as Chief Minister should run. Consequently the construction activity seems to have continued at most concerned sites, the judicial pronouncement notwithstanding. Supreme court has not taken kindly to this blatant violation of its orders & observed on 5th October, “that ‘no Tom, Dick and Harry but someone at ‘the highest level’ must have allowed work on construction of memorials in violation of its orders and warned the Mayawati government not to treat the court as a ‘political adversary’ and ‘don’t play politics as you do with other political parties’”. It further added, “UP government is not behaving like a prudent government by continuing to carry out construction & reminded the government that ‘democracy’ and not majorityism should survive as the Constitution was supreme and Court’s directions should be obeyed”. It then asked the UP’s counsel to specify “the names and designations of officers who violated the order”. Mishra, the UP’s counsel told the court that “the Cabinet Secretary and Chief Secretary had been conveyed the court orders but said there was some ‘confusion”. Next day, i.e. 6th October, supreme court decided to initiate the contempt of court proceedings against the UP administration & issued notice to Chief Secretary for flagrant violation of court orders to cease work on construction of statues & memorials. Court further warned that if its orders were flouted even now then it would have to direct the central government to deploy central security forces at the concerned sites.

Another public spirited citizen had much earlier sought to know under Right to Information Act (RTI) from the Chief Justice of India (CJI), K G Balakrishnan, whether the judges of the supreme court had been declaring their assets yearly and filing property statements with CJI as per the resolution of supreme court judges in 1997. He further asked for a copy of such statements from the supreme court registry. CJI directed registry to decline the request as he considered that his office is not covered by RTI act. The citizen then moved the Chief Information Commissioner (CIC), Wajahat Habibullah, for redress. CIC agreed with the applicant & directed supreme court registry to make available the information sought by him. Supreme court registry appealed the CIC order before the Delhi High court. This was done ignoring what Justice J S Verma, ex-CJI, had said in January & at whose initiative the earlier 1997 assets declaration resolution was passed by the supreme court judges unanimously. Verma had said : “…..it was never the intention of the SC Full Court to keep the list of assets secret or away from public glare”. “….The resolution was not meant to achieve some kind of private satisfaction. In fact, after the resolution was passed, I even wrote to the Prime Minister, recommending that the Government bring in some kind of legislation to ensure that the SC resolution was given the effect of law. And, why not? A judge’s life should be an open book”. “…..The purpose behind passing the resolution was to make judiciary more transparent. Why do we need statutes or laws to make our assets public? Since as judges we want bureaucrats and politicians to be transparent about their assets and wealth, how can we shy away from following what we preach? Also, more than politicians, it is the judiciary which needs to be more open to public scrutiny as people have much more faith in us than politicians”.

The high court judge S Ravindra Bhat delivered his judgment on 2nd September 2009. The cornerstone of his judgment is : “it would be highly anomalous to say that in exercise of the legitimate jurisdiction to impact people’s lives, property, liberties and individual freedoms, as well as (to) interpret duties and limitations placed upon State and non-State agencies, barring the institutional accountability standards in the Constitution, judges have no obligation to disclose their personal assets, to someone or authority… All power — judicial power being no exception — is held accountable in a modern Constitution. Holders of power too are expected to live by the standards they set, interpret, or enforce, at least to the extent their office demands. Conventions and practices long followed, are known to be legitimate sources, and as binding upon those concerned, as the express provisions themselves”. Judge also held that office of the CJI is a public office as defined in the RTI act. He directed the supreme court registry to provide information sought by the applicant. Justice Verma, a man highly respected for his integrity & probity in public life, wrote regarding the judgment delivered by Judge Bhat as follows : “…. the quality of which would do credit to anyone at the highest level in the judicial hierarchy. It is remarkable also for the reason that it was prepared (evident from the postscript) when the Supreme Court judges (led by the CJI) were still dithering on the issue, before finally reiterating the full court’s earlier resolution of May 7, 1997 to this effect. Once again the high courts have shown the right path when the Supreme Court dithered, as it did during the infamous Emergency in the Habeas Corpus case. In that case, the later amendment of Article 359 of the Constitution to protect the non-derogable rights in Articles 20 and 21 even during an emergency corrected the aberration of the Supreme Court judgment, approving that of the nine high courts. In the present case, the strong public opinion, including eloquent support from within the judicial fraternity, shows Justice Bhat to be right. I wish the judicial verdict is accepted by the Supreme Court (led by the CJI) in good grace without any reservations”.

The exhortations of Justice Verma have been proved to be in vain. Supreme court has appealed the verdict in the Delhi high court that would be heard by a larger bench. The appeal filed by the supreme court registry points out 58 errors in 71 pages verdict & says that analysis of the single judge is essentially wrong and the conclusions reached by him are unjustified in law and Constitutional theory. The appeal, since admitted by the high court, misses the big picture & seems to squabble about some minor issues. If the larger bench of high court were to dismiss supreme court appeal, then it would have to challenge that verdict before the supreme court, i.e. itself. That would mean supreme court will find itself in a highly piquant position where it is a plaintiff as well as the judge – a scenario that fouls a basic tenet of jurisprudence.

Whatever may be the position & power of the higher judiciary in the constitution, it still has to rely upon the executive to give effect to its judgments. The executive has to listen to what directives or judgments the judiciary issues. UP government doesn’t seem to have listened to it in the statue-case. Judiciary had to threaten deployment of central forces at the memorial sites by issue of necessary directions to central government in case of continued non-compliance by UP government.

What if tomorrow central government doesn’t heed its directives? What if Mayawatis or Thackerays come to occupy the government at the centre? How would the judiciary then uphold the rule of law and the constitution? A constitution becomes a living document only when the upholders of constitution willingly submit themselves to its rule in all humility. The higher judiciary is still held in great respect by people at large – certainly much more than the politicians & bureaucrats. That is the real strength of the higher judiciary, its moral authority above all. Judiciary will erode that authority only at peril to itself & the country by refusing to become more transparent. By not letting themselves to be judged by the same standards that they judge others, shrinks judiciary’s stature & atrophies its power. It is by only voluntarily submitting to the RTI statute will their judgment command necessary respect & power when they adjudicate in the statues’ case.

O O O O O O O O O O O

P.S. : Justice K G Balakrishnan, present Chief Justice of India, came to the higher judiciary first in the high court of Kerala. The very day supreme court appealed Justice Bhat’s judgment, all 33 sitting judges of the Kerala High Court, including the Chief Justice, have posted details of their assets, along with those of their spouses and dependent children, on the HC website. With this, it has become the first High Court whose judges have made public their assets and liabilities. Will this telling irony help CJI to change his mind in favour of complete disclosure?

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One Response to “Statues to Statute – A moral low road.”

  1. Sayali Patwardhan Says:

    Yes I agree that whichever of the two paths the SC chooses, shall bear a tremendous impact on its stature in the eyes of the people. In fact the moment the RTI application was filed, right then, disclosure ought to have been made and a good precedent would have been laid down. But it still isn't too late, SC still has the opportunity to act in accordance with the principles it applies to everyone else and this chance if seized shall also make it clear that the court has a vision.

    Sayali

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