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Monday, November 12, 2018

Courting Disastus

Eliot Ness was a Prohibition Enforcement Agent who was assigned to take down mass-murderer and top Bootlegger Al Capone. His team couldn’t put Capone away for murders or prohibition laws. They finally put him away for tax evasion. At the end of the movie “The Untouchables” based on those events, a reporter who constantly tags along with Ness’s team asks him “They say they’re going to repeal prohibition, what will you do then”? Ness replies: “I think I ‘ll have a drink”. The US was fairly quick to realise that silly acts like Prohibition or Bans don’t work with people. The govt’s job is to make laws, regulate and implement. Theirs is not to sermonise and moralise people. It is more so with Courts.

It is not the business of courts to moralise,
sermonise or regulate behaviour of masses.
The Courts are part of the law enforcement
system and NOT law-making bodies
 or institutions that issue Bans.
Judges cannot cross their limits

This is particularly so because we have a Constitution and legislative bodies. The role of each is not ambiguous at all. Last year, the SC came out with a most absurd ban on liquor shops within 500 metres of all highways across India. It seems, judges are either totally disconnected with the ground or are totally oblivious to the behaviour of a “reasonable man”. All our laws are primarily based on the behaviour of “reasonable men”. Therefore, how the common sense of the reasonable escapes well qualified judges needs some understanding. Here’s a guy in Kerala who came up with the most outrageous idea to dodge the 500m ban:
Even if others don’t have the kind of land that this Kerala guy had, how in hell is the SC going to stop someone drinking and driving on a highway. On any highway, at some interval there is a small town and a detour of about 1-2 kms into the town and one can buy liquor and stock up. This 500m thing is certainly not going to stop any drunken driving on highways. What is needed is regular, random inspections and strict punishments. And that is the job of the govt and SC has no role or accountability to ensure that the 500m reduces drunken driving on highways. Judges are not cops and they aren’t law-makers either. This issue should have been left to the State govts to legislate and regulate. But our Courts seem to have consistently usurped unlimited and unaccountable authority over many issues that shouldn’t involve them at all. And if you look at drunk-driving accidents in India, compared to other countries, it is 5% of the total number of accidents. So, these judgements are not borne out by some alarming statistics. The whims of a trigger-happy PIList becomes the basis for court rulings than the considered wisdom and debate by elected legislators:
From Dahi Handi to Jallikattu to Sabarimala and many other temples, the courts have been behaving like Big Brother to a large population. The recent absurdity of Diwali crackers to be exploded only between 8 and 10pm was among the most ridiculous that one has heard. How does one enforce such a restriction? I saw a video on Twitter where people burst a long stretch of crackers:
You don’t have to observe very closely to note that the video is shot in daylight and not at 8pm. The SC has been frequently bombarded by few vested interests, especially of the Lutyens Tabela, bring in some PIL and the SC gladly admits it and then passes a judgement for the whole country. Diwali crackers alone are not the only cause of pollution which is a year-round problem in some places like Delhi. And Diwali crackers don’t go beyond 2 days and nights. Delhi is a land-locked place with excessive other polluters and someone rightly pointed out the folly of the SC in translating the problem of Sick Delhi to the whole of India without a deeper thought into it:
Whether it is the Courts, the Politics or the Media – life and everything about India is nothing beyond Delhi is what it seems. And a band of criminal lawyers gang up and regularly bomb the SC with useless PILs which do not merit SC’s attention. Even so, why should SC be the first option? SC itself is burdened with cases and should simply direct petty PILs to State HCs. Take a look at some of the consistently absurd rulings which not only depict a woeful irony but alarming hypocrisy:
Firstly, a “Bar” is conventionally taken as a liquor bar and not otherwise even if there are other outlets calling themselves a “Bar”; like a “Snack bar”. So why should SC comment on dance bars without liquor being “absurd”? All it needed to rule was that bars can also have dancers and nothing more. Not just that, SC goes on to sermonise that the State govt’s mentality is “absolutely regressive by centuries”. What exactly is that supposed to mean? Supposing I don’t support bars with dancers I would be considered “regressive”? This is avoidable moralising. The Ayodhya case to be regularly heard from February 2018. Suddenly, it has now been shifted to January 2019. Mind you, the January 2019 schedule is ONLY to fix the hearing dates and not the hearing itself.

And then, protests at Sabarimala “not acceptable”. Is there a list of protests that are acceptable? Protests are integral to a democracy. In earlier cases, protesters have BARGED into temples like Shani Shingnapur – the courts didn’t have a problem with that. In contrast, supporting ISIS ideology is not anti-India. How is that so? Just because there is no law specifically outlawing ISIS? The ISIS is against the entire humanity and has plans to eliminate anyone and everyone not accepting its ideology. How is someone supporting such an ideology not welcoming them to conquer India? The biggest of wars inviting enemies start with small seeds and not bombastic blast of Bofors-like guns. And there is a tinge of hypocrisy too. Bakri-slaughter on terraces is acceptable but selling firecrackers in residential areas are not. By what yardstick? Is it okay to see blood going down from terrace to street or compound? Or the stench of flesh and bones is tolerable? While merely selling crackers is unacceptable? Hard to understand, really.

The SC in the past has stated “Bail, not jail” should be the principle in most cases. However, over 1000 protesters arrested in the Sabarimala protests were not given bail. This, when the SC directly hears bail petition of top scamsters or for permissions to go abroad. Even a serial rapist like Bishop Franco has been given bail without the slightest protest from the Kerala govt. The rich and influential, like Teesta, get bail over phone calls and video-conferencing way past the working hours of court. And in recent cases of urban naxals SC also stated “Dissent is the safety valve in a democracy”. So, what happened to the right to dissent of the Sabarimala protesters? Every court, every judge seems to interpret cases and laws in his or her own manner without seeking a “fair and consistent” approach to petitions. And the “safety valve” of courts explodes to the skies when their propriety in hearing some cases is frowned upon. Sometime back, four SC judges (including the current CJI) ran to the media to express their “Dissent” against ethical practice norms of the SC.

Justice Murlidhar of Delhi HC seems to have heard the bail or arrest-stay of urban naxal Gautam Navlakha at 6am in the morning. He denied arrest to the Maharashtra police because their mumbo-jumbo was written in Marathi. I don’t find that reasoning justified. All police forces write FIRs and warrants in the state language. They explain the cause for arrest while arresting a person and later a lawyer can get help in making the translation. This by itself cannot be a reason to refuse custody to the police. Vivek Agnihotri who serialised the issues relating to the case and the judge’s wife being associated with Navlakha in some manner has earned him a contempt notice:
I believe, given his wife’s association with Navlakha, Justice Murlidhar shouldn’t have heard the case and should have recused himself as the pic on the right shows the SC views. Do ordinary men and women get the kind of privileged treatment that Navlakha, Yakub Memon, Teesta Setalvad, Rapist Franco etc get? NEVER! The speed at which any petition by P. Chidambaram, Karti and many rich and influential people get heard is simply mind boggling. Justice is Blind they say. May be, but I don’t believe judges are blind. Hindus have singularly been at the receiving end for all their practices. If at all reforms are needed, these are to be done by govts through community interactions and not by courts. Judges cannot cross their limitsas former SC judge M. Katju rightly points out in a ruling by the SC itself:
PC is publicly viewed as a fraudster and the “Father of black money”. Almost all the judges know that the ED or CBI is chasing PC in many cases and also his son Karti. Some months back PC also applied for anticipatory bail fearing arrest. Consequent to raids, PC had moved a petition in the SC begging for his privacy and right to dignity. And some of these cases are now over a year old. Knowing all this, why would the current CJI Ranjan Gogoi not mind being seated next to a criminally charged politician? Sometimes, being invited to the same event as a criminal does happen but, surely, you would still have the privilege of not being seated next to a person being pursued by law and having friendly chats with him. What message does this send to the public:

All said and done, courts and judges must not interfere in territory that belongs to the Executive and the legislators. For India, Parliament is the supreme law-making body and not the SC. Courts cannot decide when you should burst crackers, who should be allowed entry to a Hindu temple practicing historical traditions or the height of Dahi Handi. Such frivolous petitions deserve to be dismissed and petitioners asked to seek remedies from the govt. The SC can also politely direct govts to make suitable laws to address important public issues but it cannot become the law-maker itself.

The nation-wide defiance of the silly “Cracker-Hours” is an insult to the SC itself. The drinker will find a liquor shop even at 2am in the night. The judges should travel some highways and visit “Total Service Dhabas” to understand how highways and the trucker-life works. The making of laws rests with the govts and the police have the responsibility of enforcing such laws. The SC is supposed to protect the people from the tyranny of govts, criminal laws like 66A and their fundamental freedoms. When they were really challenged, the judges of SC simply folded up and gave into a dictator in 1975:
People don’t live in courtrooms. The SC should be or probably is clear that the consistently increasing petitions on social issues are only against Hinduism and Hindu practices. The Sabarimala petition was brought in by some who are not even Hindus and the first attempts to use the SC order were not Hindus. They were Muslim or Christian women. The SC did not bother to check with women groups who are greatly in support of the historical and traditional practice of Sabarimala whose deity is a bachelor. The media carries out stupid “Right to pray” campaigns. Such a Right does not automatically imply “Right to entry”. Even hotels and clubs have the Right of admission reserved, so does the deity of a temple who is there for certain beliefs and practices. From Jallikattu to Dahi Handi to Diwali crackers and Sabarimala – the SC should realise people are defying its orders. Such laws are best made by govts by taking into confidence those directly affected or involved.

In reality, Hindus themselves had voluntarily toned down the purchase and use of crackers over the last 3 decades. They have also reduced their expense on it. But when a BAN is dictated by “Courts, people see it as an assault on their religion, freedoms and therefore will go any length to defy it. Stupid govts who arrested people over crackers should hang their heads in shame, they are courting Disastus.