These words formed a part of Fali S. Nariman’s remarks at the Dinner Reception hosted last week by the Canadian High Commissioner H.E. Nadir Patel to mark the launch of Advocate Satvik Varma’s recently published book, Yes I’m Opinionated, Musings of a Lawyer on Governance, Law and Policy.
Satvik Varma talked about how he developed a habit of writing and how there is an underlying theme of the Rule of Law in all of his writings. Varma quoted Lord Denning to say that more than being concerned with law, it is important to be concerned with Justice.
He acknowledged that, Justice is based on values and values are themselves very difficult to define. But once again quoted Lord Denning to say that “If we never do anything which has not been done before, we shall never get anywhere. The law will stand still while the rest of the world goes on, and that will be bad for both.”
This very exclusive Dinner reception was attended by sitting judges of the Supreme Court of India and the Delhi High Court, Ambassadors and leading Diplomats, Industrialists, Managing Partners of law firms and Senior Advocates.
Here is the Transcript of Fali Nariman’s Speech on “Current State of Rule of Law in India” delivered at Canada House, Dr.APJ Kalam Road, New Delhi
My wife Bapsi and I are delighted to be here to share with our hosts – the Patels – their unbounding admiration of a friend – Satvik Varma.
We have known Satvik and his dear parents for a very long time, and we are delighted that Jennifer and Nadir have been gracious to host a dinner on the occasion of the release of his book recently published.
Book Releases are in the air.
When Mr. L. K. Advani was India’s Deputy Prime Minister he was asked to release a book in Delhi and he said something unusual.
“The word ‘release’ sounds sweet to me because when we were in jail in 1975 (during the Internal Emergency) and we used to hear that someone was released, we used to get very happy. Ever since that time, I readily agree to release books since the word ‘release’ gives me a sense of relief.”
It was not with a sense of relief, but with a sense of joyous appreciation that we just heard the Canadian High Commissioner release Satvik’s book – the book with that extravagantly impertinent title.
Speeches at the time of release of a book are customary, and they have been made.
But a talk along with the release is a bit out of the ordinary: especially on a subject on which billions of words have been written – the contrasting regimes governed by the Rule of law with regimes ruled by Law.
Let me tell you at the very start why the month of December is not particularly propitious for speaking about the Rule of Law in India.
Because it was on December 6th 1992, that a large group of people – armed with implements for pulling down a structure – Not acting alone but in conspiracy with half-a-dozen more important figures associated with a prominent political party – set out to demolish, and succeeded in demolishing within hours a disused mosque at Ayodhya in Uttar Pradesh: Known for centuries as the Babri Masjid.
We Indians have an ancient habit – not only of celebrating the Good Things that occur in India – but the not-so-good things as well!
And so it was that just a week ago on December 6th there was an editorial in one of our major newspapers.
It recalled that this was the day when the Rule of Law suffered the gravest blow, and as the editor put it:
‘the wounds have yet to heal’.
Writing in the same national newspaper, Pratap Bhanu Mehta – a frequent and eloquent writer, who must always be read – contributed his piece under the heading: “That Fateful Day”.
He deplored the fact that despite the laborious and long-delayed findings of a Commission of Inquiry headed by a High Court Judge, the leading conspirators who had been accused of vigilantism and vandalism had not yet been called to account.
And this is how he put it:
“The psychological message it sends is that you can get away with anything in India so long you invoke faith. This damages all our institutions.”
Just as a teaser, let me begin by saying What the Rule of Law is not.
It is a quote ascribed to Frederick the Great of Prussia at a time when almost all Monarchs of Europe were absolute rulers – many of them tyrants.
And this is the quote attributed to Frederick the Great:
“My people and I have come to an agreement which satisfies us both.
They are to say what they please.
And I am to do what I please.”
This ladies and gentlemen is the briefest description of what the Rule of Law is not.
As to what it is, has been somewhat picturesquely described in an apocryphal story of the Lord Brahma – the Creator of all Things.
When the Lord Brahma created the world, so the story goes, there were cries of protests from different parts of the then known universe.
And the protests were that the “Creator” had given to the vast continent of Hindustan:
The Longest of Rivers
The Highest of Mountains
The Deepest of Oceans along with the Longest of Coastlines and
the densest of Forests –
And so, had discriminated against all the other places in the then known world.
Acknowledging the protests the Lord Brahma (it is said) merely smiled and said:
“Ah, Yes, you are right. But to balance everything see the people that I have put there”!
So when you lend me your ears at this brief talk, never forget that the Indian nation was born, Great, and will always remain Great,
Even though some of the people that inhabit it from time to time are NOT.
Only then will you be better informed about the Rule of Law in India.
Ayodhya was a problem in pre-independent India – but kept under the covers during British rule.
Nearing independence, it was attempted to be resolved but the attempt failed.
Then later came the act of violence in 1992: an event that shook and shocked the world.
Two years later in the year 1994, an opportunity to broker a peaceful settlement was missed when India’s Supreme Court declined to answer a Reference: made to it by India’s President – The Reference was as to whether a Hindu temple ever existed on the site of the Babri Masjid.
The Supreme Court politely but firmly declined to answer the question saying that this was a matter to be decided in suits already then pending in the trial Courts in Rae Bareilly in Uttar Pradesh.
And now, twenty five years after the wanton destruction of the structure, we in India are left with a divided society, more fractious than ever before.
For centuries Hinduism has been the most tolerant of all religions.
But from the last decade of the century gone by, the Hindu tradition of tolerance began showing signs of strain – the strain of acute religious tension, between the two principal religious communities in India.
India has been often described as that “great orchestra of different languages praying to different Gods”.
Well it is now seen and heard – praying (often loudly) –also out of tune!
Is Hinduism changing its face? I fear it is.
And it is as well to express this fear openly.
Secular India versus Militant Hinduism is reminiscent of U.S. Ambassador George Keenan’s metaphor – he once contrasted democracy with the dinosaur.
“You practically have to whack off his tail” (Keenan had said of the pre-historic mammal) “to make him aware that his interests are being disturbed; but once the Dinosaur grasps this, he lays about him with such blind determination that he may destroy his habitat with his adversary”.
And I am one who believes that we must not let the dinosaur destroy our habitat.
Look back a little and reflect on what a great patriot of India had to say – a man whose birth centenary we celebrate almost ritualistically in November each year.
He never regarded the varied peoples of India as the dinosaur looked upon the Earth’s smaller inhabitants.
Writing in the quiet seclusion of a British prison in 1944 (his ninth term of imprisonment for revolting against the British) Jawaharlal Nehru contemplated “the diversity and unity of India:
“It is tremendous (he wrote); it is obvious; it lies on the surface and anybody can see it….. It is fascinating to find how the Bengalis, the Canarese, the Malayalis, the Sindhis, the Punjabis, the Pathans, the Kashmiris, the Rajputs, and the great central block comprising of Hindustani – speaking people, have retained their particular characteristics for hundreds of years, have still more or less the same virtues and failings of which old traditions of record tell us, and yet have been throughout these ages distinctively Indian, with the same national heritage and the same set of moral and mental qualities.”
There was something living and dynamic about this heritage (Nehru had written) which showed itself in ways of living and a philosophical attitude to life and its problems.
Ancient India, like ancient China, was a world in itself, a culture and civilization which gave shape to all things.
Foreign influences poured in and often influenced that culture, but they were absorbed.
Disruptive tendencies gave rise immediately to an attempt to find a synthesis.
And then (Nehru adds) almost lyrically in his great book, the ‘Discovery of India’ the following sentiment: (and I quote)
“some kind of a thread of unity has occupied the mind of India since the dawn of civilization. That unity was not conceived as something imposed from outside, a standardization of externals or even of beliefs. It was something deeper and, within its fold, the widest tolerance of beliefs and customs was practiced and every variant acknowledged and even encouraged.”
Many Hindus, many Sikhs, many Christians, many Muslims, many Buddhists – in fact, most Indians endorsed and shared this dream; Nehru’s vision of the diversity and unity of India. Till recently.
When there appeared on the political scene a phenomenal increase in the population of “dinosaurs” – and at a somewhat fearsome pace.
Dinosaurs in one religious camp gave an impetus to the breeding of them in the other!
We are told that it was a great meteorite that finally destroyed all the dinosaurs on this Earth. If so, I like to believe that this meteor was the symbolic wrath of God!
I for one belong to a wholly insignificant religious minority, a minority that spurned the offer made (at the time of the drafting of India’s Constitution) – to Anglo-Indians and to Parsis alike – to have, for at least a decade, one special representative in Parliament. We rejected the offer.
In the Constituent Assembly, which had been entrusted with the task of drafting India’s Constitution, Sir Homi Mody said that the Parsis would rather join the mainstream of a free India. And we did.
And we have had no regrets.
I have never felt that I lived in this country at the sufferance of the majority.
I have been brought up to think and feel that the minorities together, with the majority community, are integral parts of India.
I have lived a long life and flourished in secular India.
And in the fullness of time, I would also like to die in secular India. If God wills.
And let me tell you what gives me hope. It is the Supreme Court of India. And let me tell you why.
In April of this year, India’s highest Court handed down a decision in an Appeal filed by the Central Bureau of Investigation against certain named respondents – it was, and it is a momentous decision, but reading the moderately worded judgment of the Court you would not say so.
It was an appeal in a case connected with two complaints under our criminal law – we call it First Information Reports (FIRs) – lodged on the day of that fateful incident – 6th December 1992.
The first, report Crime No. 1997 of 1992 was against several hundred thousand Kar Sevaks (or artisans): unnamed. The report alleged against them offences of dacoity, robbery, causing hurt, injuring/defiling a place of public worship, promoting enmity between groups on grounds of religion – all offences under the Indian Penal Code.
The second, but the more important and the more significant was FIR No. 198 of 1992.
It was lodged against eight named persons – very important political persons – all conspirators in the offences previously described.
A special Court was set up to try these cases.
But by some quirk of circumstance the first set of cases – against the thousands of unnamed Kar Sevaks was, in accordance with law, duly committed to a Court of Session in Lucknow, but significantly (and somewhat in – explicably) not the second FIR lodged against the 8 important conspirators: they appear to have been overlooked by the Executive!
In 1993, the State Government of Uttar Pradesh where Ayodhya is located, amended its Notification to enable these eight important persons to be also tried by a Special Court in Lucknow. But, whether innocently or by design, there was then discovered a defect in the notification – a vital procedural defect – viz. that there had been no consultation with the High Court, a mandatory requirement of the law.
The consequence was that the Notification in FIR 198 (against the 8 important conspirators) was, in course of time, struck down.
Then again after some years a Special Judge at Lucknow passed an order stating: (I quote)
“There were two classes of accused – persons – the 8 leaders who were sitting or standing on a platform – exhorting the workmen to destroy the structure and the thousands of Kar Sewaks or the artisans doing the job entrusted to them.”
The Special Judge said that there was a prima facie case against all accused persons in both classes, and framed charges of criminal conspiracy under various sections of the Penal Code. The Court held that all offences were committed in the course of the same transaction which warranted a joint trial and that the case was exclusively triable by the Court of the Special Judge at Lucknow.
But again on a revision being filed in the High Court, the High Court (after considerable delay) discovered – another procedural lapse – viz. that the Special Court at Lucknow being a specially constituted Court had no jurisdiction to enquire into and to commit to the Court of Sessions, the eight accused in FIR 198 of 1992, and that the framing of charges against these 8 important persons (all conspirators) was without jurisdiction, and must be set aside.
Well – It was after almost a decade that the prosecuting agency woke up from its slumber, and filed an appeal before the Supreme Court.
And the Supreme Court, in April this year condoned the delay in the filing of the appeal, set aside the judgment of the High Court, overruled all procedural objections invoking a unique provision in India’s Constitution – Article 142 – a provision that empowers the Supreme Court – and the Supreme Court alone – out of all the Courts in the country – to make any order in a proceeding brought before it that it thought necessary “for doing complete justice in any cause or matter pending before it”.
Invoking this provision the Supreme Court said that this is a provision that gives preference to equity over law, and that permits a justice-oriented approach to the otherwise strict rigours of the law.
This Article 142 had no counter-part in the Government of India Act, India’s first Constitution Act passed by the British Parliament in the year 1935 – on which our written Constitution of 1950 was fashioned
In fact, Article 142 does not have any counter-part in any other Constitution the world over.
The Judges said: “The latin maxim fiat justitia ruat caelum is what first comes to mind on a reading of Article 142”: and then helpfully, translated the ancient Latin maxim into plain work-a-day English:
“Let Justice be done though the heavens fall”.
Quoting from the popular legal maxim, the Judges emphasised that it was not popular in the sense that people run after it – but it partakes (the Judges said) of that popularity which sooner or later “never fails to do justice to the pursuit of noble ends by noble means.”
And so the charges framed against the 8 conspirators were revived and directed to be tried along with the charges already framed against the Kar Sevaks – the persons who did the actual job of breaking down the structure. The Supreme Court then handed down a list of peremptory directions, but not before noting a disturbing feature of the case, which was that the Special Judge designated by the State Government Notification to carry on the trial kept getting transferred which had considerably delayed the trial.
So peremptory directions were given to the following effect:
(1) the appeal of the CBI would be allowed;
(2) the judgment of the High Court which enabled FIR No. 198 to be quashed and buried would be set aside;
(3) both the FIRs were to stand transferred to the Session Judge of Lucknow with power to frame additional charges.
Then followed an even more peremptory set of instructions:
(a) the Court of Sessions after the transfer of proceedings to Lucknow and framing of additional charges would take up all matters within 4 weeks on a day-to-day basis until the conclusion of the trial;
(b) there would be no transfer of the Judge conducting the trial until the entire trial stood concluded;
(c) the case was not to be adjourned on any ground except where the Session Court found it impossible to carry on the trial on some particular date;
(d) CBI the investigating agency must ensure that on every date fixed for evidence, some prosecution witnesses would remain present and be examined;
(e) that the Session Court would complete the trial and deliver its judgment within a period of 2 years from the date of receipt of judgment of the Supreme Court;
Liberty was then given to the any of the parties to approach the Supreme Court in the event of the directions not being carried out “both in letter and in spirit”.
I am happy to tell you that the directions have been faithfully carried out, and the trial is actually proceeding on a day to day basis with several witnesses being examined and cross-examined every working day – giving us all hope that within the stipulated period the trial will be over and accountability will be ultimately ensured.
Having regard to this otherwise momentous, (but yet not a high-sounding) judgment delivered on 4th April, 2017, by the Supreme Court, I am also happy to tell you that faith in the rule of law has been restored.
Or shall I say (more accurately) – any expression of despair at the breakdown of the Rule of Law must be further suspended for a two year period with the foreseeable hope that Justice will be done – though the heavens may fall.
That ladies and gentlemen – in brief – is the present state of the Rule of law in India today.
What will ultimately happen, no one can predict.
The bright silver lining however is that it was only at the intercession of the highest court in the land that Justice may yet be achieved.
Image Source – Satvik Varma Twitter page, Advani – Punjab BJP, Frederick – Wikipedia
This article was published on http://www.barandbench.com on 20.12.2017: