Saturday, April 24, 2010

Standards in Public Life I

Slightly over a month ago, The Hindu carried a short article about the Chief Election Commissioner, Mr. Navin Chawla, seeking an amendment to Article 324 of the Constitution. Specifically, he had urged for an amendment to clause 5 of the Article to bring all election commissioners on par with each other and to make a case for his call, he cited two instances, one involving the leonine T.N.Seshan and the other involving Chawla and his own predecessor, Mr.Gopalaswami.

As for the first incident, those interested may read this judgment of the Supreme Court interpreting Article 324(5). I then searched for literature to understand the constitutional underpinnings of the Election Commission of India, when I stumbled upon the fifth Report of the Committee on Standards in Public Life in the United Kingdom.

 This report discusses threadbare the standards to be expected of political parties beginning with the seven principles of public life to be observed by holders of public office- selflessness, integrity, objectivity, accountability, openness, honesty and leadership. It occurred to me that in the backdrop of the current fiasco involving Shashi Tharoor and a few other political bigwigs whose names are bound to surface over and over again, this report assumes greater significance.

Selflessness- According to the report, holders of public office should take decisions solely in terms of the public interest. They should not do so in order to gain financial or other material benefits for themselves, their family, or their friends.

Integrity- Holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might influence them in the performance of their official duties.

Objectivity- In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit.

Accountability- Holders of public office are accountable for their decisions and actions to the public
and must submit themselves to whatever scrutiny is appropriate to their office.

Openness- Holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands.

Honesty- Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.

Leadership- Holders of public office should promote and support these principles by leadership and example.

Sounds very utopian given the situation here, right? Makes one wonder if there'll ever come a time when these ideals/virtues are taken seriously in this country. If someone were to talk of applying these ideals in public life in India, somehow I get the feeling that the speaker is bound to be scoffed at and ridiculed, with some of us saying “you can’t survive in politics if you believe in these”. Stand Corrected! “you can’t survive in Indian politics if you believe in these” is more like it!

What else would explain the failure of people of like T.N.Seshan in elections? What explains the fact that the majority of Indians preferred Nehru over Patel for the post of the Prime Minister? Some might say that both Patel and Seshan lacked charisma(!) I'd like to know what have charismatic leaders done for us or even themselves? Shashi Tharoor oozes oodles of charisma (and this speech is proof of that), but with all due respect to him and his “unblemished record of public service”, his short stint in the Union Cabinet is replete with PR goof ups! 

As for Nehru, his aspirations of becoming a global statesman were cut to size by a shrewd peasant with a silly name called Mao Tse Tung, which indirectly caused Nehru’s untimely death. And let’s not forget that ultimately the country had to pay the price for their charisma in the form of loss of dignity and territory. So much for charisma...

But then, the point is not to vilify any of these undeniably great leaders. The point is that people need to start probing beyond mere face value and should restrain themselves from falling for looks or accent or lineage or anything else superfluous to the task at hand. What must matter is the person's ability to bring tangible and lasting change for the good in the lives of those he represents, if he is given an opportunity to walk the corridors of power.

The person must know how to get the best deal for his people, both in the short and long runs. More importantly, the question must be, does the person have it in him to take a strong call in the interests of his electorate even if it (the electorate) does not agree with his stance? Not surprisingly, these questions do not figure in our discussions because they are not issue-centric, they are individual-centric.

There’s a reason for this which most of us might find unpalatable and politically incorrect. Democracy in India has a different meaning altogether, our interpretation of “Live and Let Live” rarely finds parallels anywhere else other than in the sub-continent. We seem to think that as long as we are given a free hand to do whatever we want and in any manner we want, we live in a democracy. What this means is that every possible tradition which defies logic, and every atrocity thus far perpetrated must be allowed to continue, in the name of democracy

The moment the State steps in to straighten things out, it becomes draconian and dictatorial. Probably, most of us need the concept of a State only to keep this huge piece of earth together under one name so that we get a larger territory to continue the same (rotten, decadent and parasitical) way of life. (This again seems to explain why we keep electing a Government which has mastered the art of keeping almost everyone happy by doing nothing at all and just letting things be.)

It appears that this way of life or thinking is common to the people of this part of Asia, meaning India, China, Pakistan, Bangladesh, Sri Lanka, Nepal, Bhutan and to a nominal extent Taiwan. Last April, Jackie Chan seemed to think on these lines only to be voted the least trustworthy celebrity of Hong Kong.

Not for a moment am I suggesting that this pattern of thinking and living is inherent to our culture, which some think is fashionable to do. The past can be blamed only to an extent; beyond that, we are accountable for the consequences of our actions because, culture is transient since people are transient.

If at some point in our history, invertebracy has crept in and has firmly entrenched itself in our national character, it does not give us or anyone the right to paint our entire past and heritage with the same brush. The true test of our core nature would be this period of transition that we are not just witnessing, but are participating in as well.

If I sound like I have problems with democracy, then either the reader has not understood my point or I have not been successful in communicating my point clearly. All I am saying is that unless people stop equating democracy with chaos and unfettered reign of the individual’s whims and fancies, democracy will be a monumental failure in India in the times to come.

If people have problems with the State imposing discipline on them, then they must learn to discipline themselves, because there is no way discipline can be altogether thrown out of the window.

Do I sound like a martinet? Oh I know the reason, it’s the word “discipline”... 

Sunday, April 18, 2010

Of Bhishma and Gandhi, Duryodhana and Jinnah

Living alone, sometimes, has its benefits. It gives you the luxury of pursuing the randomest of thoughts, interests and ideas without having to worry about what others may think (of course, this applies to only those of us who are affected by others’ views. For the lucky few who give a fig about what others think, life, for the most part, is a bed of roses).

These random thoughts seem to have a pattern to them, in that, they occur when you least expect them; I say so because they seem to come to the fore when your mind tries to focus on something else important and precious at hand. The mind then, being boundless in its capacity, stores this random thought at the back so that it may be mulled and chewed over at leisure.

One such random thought which occurred to me when I was in Divine presence, is the striking similarity in certain critical aspects between the lives of Gandhi (oh not Rahul or HRH "Madam" Sonia, but Mohandas Karamchand, the “original” Gandhi) and Bhishma (of Vyasa’s epic poem “Mahabharata”), Jinnah and Duryodhana (strangely, these two have never needed introductions).

Before I proceed any further, I must clarify that this is not remotely an attempt at sounding philosophical, I have no such pretensions. Rather, this is probably an illustration of how relevant history (I don’t consider it as mythology) can be, according to me, regardless of the age or era we live in.

Let’s begin with a bit of bittersweet trivia. “Mahabharat”, the serial, that grand magnum opus of Baldev Raj Chopra (not the horrendous imitation by Ekta Kapoor. May Lord Balaji Save us from Balaji Telefilms!), is one of the finest products of India’s syncretic traditions. Why? The script of the series was written by two extremely creative and talented individuals who come from different faiths (do I hear someone say antithetical?), but were bound together by art- Dr.Satish Bhatnagar and Dr.Rahi Masoom Reza. I remember these names distinctly having devoured the entire series bit-by-bit, episode-by-episode, for over 7 times now and still counting. (Sometime in the future, I shall write in detail about my obsession with this epic and its brilliant depiction by the Chopras).

A couple of months ago, in the course of a formal rendezvous with certain members of filmdom, we were told that Satish Bhatnagar was afflicted with the disease most common to his ilk- penury. Apparently, he was or still is in such a pitiable condition that he barely has the resources to make ends meet, leave alone afford his medical expenses.

To my joy, it was revealed that Bollywood’s so-called “brat” Salman Khan had come forward to put Dr.Bhatnagar out of his misery. Indians, most of us, for all our vaunted culture of giving, really have no sense of philanthropy or gratitude.

Guess that’s enough trivia for one post. Moving to the heart of the discussion, what parallels can be drawn between the lives of the “characters” in question? Let’s begin on a macabre note- their deaths. None of them had peaceful deaths (Sanskrit beautifully calls a peaceful death “Anaayasa Maranam”- when people pass away in their sleep), barring probably the exception of Bhishma who saw his life’s dream being achieved, and he passed away in the presence of the One he worshipped- Krishna. 

But then even Bhishma did not live long enough to enjoy the fruits of his life’s penance, which is something Gandhi had in common with him. Further, while Bhishma was killed by someone he dearly loved, Gandhi too was assassinated by one of his people.

Both these individuals were known for their indomitable will power and also, their legendary (and at times controversial) obsession with their life-long vows of celibacy. Both saw celibacy as a condition precedent to achieve their personal and social objectives. 

While Bhishma saw celibacy as a way of pleasing his father and abdicating his claim to the throne in favour of his future step-brothers, Gandhi strongly felt that if he could master his senses and carnal instincts, he could wrest for India its independence from the British. While the former had to face taunts of being a eunuch, the latter was derogated as being “hypersexed”.

If Bhishma felt thoroughly helpless before Duryodhana’s arrogance, dogged obstinacy and intransigence towards mending fences with his cousins, Gandhi thoroughly failed in convincing Jinnah about the futility and dangers of the idea of Pakistan. If Bhishma’s motherland had to suffer partition to satisfy Duryodhana’s insatiable hunger for power, Gandhi had to bend backwards to placate Jinnah and yet had to remain a hapless spectator to the bloody spectre of Partition.

If Bhishma had to pay the price for his undying allegiance to his vows with his life, Gandhi too had to do the same. If one of the strongest causes of the Mahabharata war was the outrage to Draupadi’s modesty, the cause which propelled Gandhi was what he saw as outrage to his Motherland’s modesty. Or some might say that Gandhi had to pay with his life for the outrage of the modesty of the women of one community.

What about parallels between Jinnah and Duryodhana? Most of the similarities have come out above, but what remains to be pointed out are again their deaths. Jinnah died of tuberculosis and Duryodhana died a gruesome death bleeding on the battlefield fending away nature’s scavengers.  

Is there a point behind these comparisons? What is the moral of these lives? Holding on to one’s values is not the same as holding on to one’s vows because after a point, it becomes difficult to ascertain if these vows have come to represent a person’s values or his ego or worse, his fixation with his image in the eyes of those around him.

Why do I say this? In their final years, both Bhishma and Gandhi felt powerless and helpless for none paid heed to their words and they felt like mere props or relics from the past whose presence was needed to further certain vested interests. This leads us to wonder if Gandhi's fasts were his way of reinforcing his place in the larger scheme of things, and if they had the incidental effect of bringing about peace and amity between rioting factions.

It cannot be disputed that holding an entire nation to ransom with threats of fasts-unto-death reflects nerves of steel, but if it has the effect of rendering secondary the interests of the nation, it is best to turn a blind eye to such not-so-selfless displays of will-power.

On a lighter note, does God run out of ideas at times? What else would explain the oft-quoted dictum “History repeats itself”?   

Friday, April 9, 2010

Scope of Revisionary Powers of a High Court

Section 115 of the Code of Civil Procedure has figured in quite a few judgments, although it is worded in a reasonably clear fashion. The provision has been explained in great detail in a judgment delivered by the Supreme Court in Khanna v. Dillon. Let’s take a look at the provision:

(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,
the High Court may make such order in the case as it thinks fit:
Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.

(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.

(3) A revision shall not operate as a stay of suit or other proceeding before the Court, except where such suit or other proceeding is stayed by the High Court.

The underlined portions of sub-section 1 are instrumental in understanding the true scope and use of the provision. First, it is established that the power of revision is vested only in the High Court. Second, it states that the Court may call for records suo motu or on the application of a party. Third, it is borne out that the records of any Court sub-ordinate to the High Court may be called for. Fourth, such powers of revision may be invoked only in cases which have been decided. Fifth, it may be invoked only in cases in which no appeal lies thereto.

The import of the first three limbs is that the High Court exercises its power of supervision over subordinate Courts in invoking its revisionary powers under the Code. The import of the fourth limb is that an application for revision may be made only after a case has been decided.

As for the fifth limb, this is the one usually perceived as the most ambiguous. It states that a revision may be sought only in cases “in which no appeal lies thereto”. The word “thereto” has been used for a reason; it is to convey that only in situations where an appeal cannot be filed before the High Court, a revision may be filed.

Stated otherwise, where the High Court may be approached through an appeal, be it the first appeal or a second one under Section 100, the High Court is barred from entertaining a revision application. This is because if the High Court may be approached in either the first or second appeals, then the questions sought to be posed in a revision application may be raised validly in the appeal as well. Therefore, since such questions may be placed before the High Court in appeal, there is no need to provide a party with an additional provision in the form of a revision application.

This provision has often been wrongly interpreted by parties to mean that since an appeal may lie from a decision before a higher appellate authority which is subordinate to the High Court, a revision may not lie before the High Court. In other words, when an appeal before an appellate forum (which is subordinate to the High Court) is available to a party, it is not entitled to seek a revision.

This is patently wrong because the High Court derives its powers by virtue of it being vested with supervisory jurisdiction which it may use to set aside a decision of a sub-ordinate Court on grounds of jurisdiction. This is evidenced from the limited circumstances detailed in sub-section 1 which refer to lack of jurisdiction or transgression of powers by a Court sub-ordinate to the High Court.

The next question is, is a Single Judge of the High Court subordinate to the High Court? It has been held that a Single Judge is not sub-ordinate to the High Court and there shall not lie a revision from his decision. This is also because a letters patent appeal is already available to a party aggrieved by the decision of the Single Judge.

If an appeal normally lies before the High Court either as a first appeal or a second appeal, and the right to file such appeal has expired on grounds of limitation, can a party validly rely on section 115 to file a revision instead of the appeal? This is possible because the section speaks of situations where an appeal does not lie and this could be on account of any reason, including unavailability of the right to appeal on grounds of limitation.

Can the decision of a High Court in a revision application be challenged? If yes, how? A decision or order of the High Court in a revision application is not an appealable order under Order 43 of the CPC nor can it be appealed as a decree (under Sections 96 or 100) because the order of the High Court in the revision application is not a decree. Therefore, for a remedy against the order of a Court under Section 115, one has to look beyond the CPC. This would mean the Constitution, but would it be Article 226 or 227?

Article 227 vests the Court with supervisory jurisdiction which it can exercise over subordinate Courts. Since we have already concluded that the High Court is not subordinate to itself, I am assuming Article 226 would be the right provision to invoke in such situations. Of course, I am not very sure of this conclusion, but it seems plausible. I shall continue the discussion in another post soon with a discussion of this judgment of the Supreme Court.