Constitutional patriotism

Don’t ask.

I read the above phrase in a news article detailing the pronouncements of a judge of the Indian Supreme Court, in the context of a PIL (Public Interest Litigation) “seeking a set of parameters on what amounts to abuse of the anthem”.

A small detour: Why is this in public interest? Is “public” in the singular or plural? PIL, a legal innovation, admired by judges of impeccable integrity, was to give voice to the voiceless, a way to establish locus standi of people who have great difficulty accessing the Supreme Court, typically on matters affecting public weal.

The PIL was brought on by a well-meaning individual, of course. How did he sense a level of urgency in this matter? Did he see a horde of people abusing it? I doubt it. That is, the matter perhaps is in the interest of the public, in the plural, but not enough to bring on a PIL. Nonetheless, the Supreme Court took it up. I suspect it felt that the justices have enough time on their hands; the system overload is not an overload, after all!

But, is the matter “abuse of anthem”, of any great significance, immediately and even in the foreseeable future? My humble opinion is, it is not. The court case, to be uncharitable and cynical too, merely allows one to enjoy his 15 minutes of fame. This PIL may have died a natural death, but something happened that triggered it.

As the telling goes, “The Supreme Court’s decision to consider this PIL followed after [sic] a wheel-chair bound woman man was assaulted by a couple at a cinema hall in Panaji for not standing up during the rendition of the anthem.” I would point out quickly that if you sense a cause-effect link, disabuse yourself o that line of thinking. Note that the PIL was brought on prior to this incident, which is one of public nuisance, and not much more.

Now, to the substantive matter at hand and what the Bench said; and it said many things.

For starters, “People must feel this is my country. This is my motherland... Arrey, who are you? You are an Indian first.”

I have some issues with that. Not that I am challenging what the highest court of the land said (as though I am in any position to do so), but I simply cannot understand how forcing people to hear the national anthem standing up in a darkened hall would instil any kind of patriotism, much less, “a sense of committed patriotism and nationalism."

The follow-up unease – there is something called “uncommitted patriotism.” The way I understand, either you are a patriot or you are not. It is almost like “unnecessary waste.” How can anything be necessary and be waste, simultaneously?

Take friction. It is fashionable to say it is a “necessary evil”. In fact, I declare that in my first year class on mechanics. But, I quickly reboot my thoughts and say, “No! No! Friction is necessary ... period. To see it as waste is complete nonsense.” Taking a cue, I can only wish that the Bench will clarify that the adjective it used did not belong.

The next point – is there a difference between a patriot and nationalist? That is, can you have a patriotic anti-national; or, to go the other way, an unpatriotic nationalist? Is there any way we can differentiate the two?

As I understand it, our Constitution starts, in the preamble (copying the US Constitution), “We the people ...” We have decided that we would follow these rules. Following the rules that we set for ourselves, is that not enough show of our patriotism? We already have the Prevention of Insults to National Honour Act of 1951. Why has the Court been asked to pronounce on what has already been averred?

Oh, you say, the word “Insult” is the point here. Fine. If that be so, why single out cinema halls? Oh, you say that was the petition. So, your patriotism will be tested only in cinema halls; and that too only till the film starts. Our jurisprudence almost regularly does not blink an eye when extending the remit far and beyond what has been petitioned, but suddenly it got sharply focussed. Go figure!

When does life begin? We do not want to discuss that here. But, when does an IPL match begin? I would tend to think, given all the focus on the coin toss, at the toss. Therefore, for the sake of consistency, the anthem must be played before the coin toss, when, typically, the stadium is practically empty. Will that be disrespectful, singing to empty seats? But, now it is played only much later. Is IPL disrespecting the national anthem and flag? Someone has to think of bringing in a PIL against IPL!

Unfortunately, the Bench, it appears, did not want to take cognizance of insults to national symbols, the flag and the anthem, at other events. If the anthem should be played at the beginning of the movie, how can it be allowed at the end of other events? This is happening. By my reckoning, it indeed must precede the regular first item on the program: “Invocation”. In many college functions, with constitutional functionaries in attendance, the anthem is played at the end. So, your patriotism is attested to only for those few seconds, at the very end when you are tired of listening and your torture (by the pure fact of compulsion) is extended - not necessarily a place and time to invoke patriotism, you would agree. I can only hope that the final judgment puts paid to this implicit discrimination.

The next point: How does one identify “undesirable and disgraceful” places? Is it not context-specific, whether a place is “undesirable” and/or “disgraceful”? I think so. Then what the judgment, interim it may be, has done is to invite further court cases, now the petitions seeking guidance from the Supreme Court on case-to-case basis. As I said earlier, the case load is just not too heavy!

Now I want to go beyond our shores and reach into the SCOTUS. America witnessed the spectacle of an athlete kneeling in disrespect of the national anthem, and saying that it is his protest against what is happening in his nation, implicitly endorsing the Black Lives Matter movement, and he would continue doing so till the nation respects the flag and the anthem.

His stance was endorsed by many but also criticized, by some powerful people, including one of the so-called liberal judges of SCOTUS. She said that the act was “dumb and disrespectful”. This must have been a shock to many who were aware that SCOTUS had earlier declared that any law infringing upon the freedom of expression of a citizen – including burning the national flag – is unconstitutional. The honourable judge of the SCOTUS later said, in a manner of walking back her comment, that it was “inappropriately dismissive and harsh. I should have declined to respond.”

Now, our Supreme Court justices need not walk back their judgment in toto. But they must balance it. How? Extend it to all occasions in which the anthem would be played. You must think I am crazy. I am not.

Go back a few decades, about four, and there was this anthem playing at the end of film shows. Slowly but steadily people stopped waiting for it to end and started towards the exit even as it was playing. Finally, the anthem stopped playing. My guess is, if the judgment is extended across all events, it would be ignored over time.   

Compelling one to show respect ensures that one cannot judge whether that show of respect is meaningful. You have heard about the famous “Double-slit experiment” physics. The moment you monitor through which slit the particle negotiates the obstacle, you lose information about its true behaviour, which anyway is indescribably weird.

Likewise, the moment you start commanding respect, you lose track of who truly respects the article/person intended for veneration.

I respect our Supreme Court but whatever criticism I have directed at it in this post will be measured in precisely the terms opposite to my intention and feelings towards it. That sounds like a disclaimer but it is not.

Go deeper, higher and definitely think harder; as I did when I reached Gangotri more than a decade ago. The intense feeling I felt there, looking at the gushing waters and the snow-clad mountain peaks against the backdrop of deep blue sky, people taking in the harsh conditions T more than 4,500 m altitude) in their stride, was: This land is mine! These people are mine! I am in love! I am proud!

The above is my way of expressing whatever – you call it patriotism, committed or not, that is OK with me. You call it nationalism, that is OK with me too. These, I differentiate from the real thing, my deep feelings.

I am not sure listening to the National Anthem in the darkened cinema hall is going to evoke that feeling in me.

Raghuram Ekambaram

Non-application of mind

I have come across the title phrase in at least a few judgements of the Supreme Court of India while rejecting the reasons of a lower court and setting aside its decision. I do not know why, but in the context of the “tussle” between the trial court and the Karnataka High Court over the J Jayalalithaa’s disproportionate assets case this phrase has come to dominate my thinking.

But, before I go into the why of such thinking, let me say that I find that phrase abhorrent, even given that the Supreme Court may have good enough reasons for mouthing those words. Yet, my severe unease comes from the fact that there can be no response to such an evaluation, as there is no authority to appeal to for “expunging” the comments by the Supreme Court Bench. To make an unsavory comparison, it is much like branding cattle. Tut, tut … After this alleged “non-application of mind”, can any case be assigned to the judge whose judgment has been reversed?

Back to Jayalalithaa’s case. Obviously I have no access to the details of the case beyond what is available in main stream media, and even that only at many removes as I am not too bothered. If the Exchequer gets a few crores of rupees, so be it; my household budget needs no adjustments.

My interest in this case is at a different level. The dispute between the two contradicting decisions is over an audit job. But, as the assessments as regards the quantum of disproportionate assets of the trial court and the high court differ by almost an order – in terms to be understood only mathematically, from about 8% to 70% – my curiosity level has gone through the roof. I believe if the case goes to the Supreme Court, it will be hard put not to use the title phrase, against the judge of either the trial court or the high court! The “false” reasoning in this case cannot have any reason beyond “non-application of mind”. Is such mindlessness a case of immathematicity (innumeracy as applied to auditing!), or more fundamentally, one of auditing itself?

At first instance, it looks like it is one of mathematics. The case of Nobel Laureate Kenneth Rogoff comes to mind. Not very long ago he made a claim about when a country would go into debt trap. And, it later came out that there were mistakes on his MS Excel sheets and his predictions are wrong. I am not sure whether the economist admitted mea culpa.

But thinking further, we may note that in the instant case, the difference in the numbers arose because the items in the audit were shifted from one side of the ledger to the other side. Yet, doing the job of the auditors, both the judges must have done enough due diligence (one, over 18 long years, and other in a “blink-of-an-eye”) before placing the numbers on one side. If the numbers themselves are not to be blamed, even then it is a fit case for “non-application of mind”.

Now, my curiosity has reached sky high.

What will the Supreme Court say? Did the erring judge not know his numbers or did not know where to put them? Where exactly and through whom the “non-application of mind” played its part?

It is for this reason and solely for this reason, I would like an appeal of the Karnataka High Court decision.

Raghuram Ekambaram

Freedom of Speech and Supreme Court Justices

Justice A R Dave of the Supreme Court of India is reported to have made some statements [1] that raised a few questions in my mind. The most important one of them all is this: are there any fetters on the freedom of speech of the justices of Supreme Court of India when they are holding office.

The learned justice A R Dave is reported to have said the following:

“Had I been the dictator of India I would have introduced Gita and Mahabharata in Class I.”

Admitting that he has painted an impossible scenario – he being the dictator of India – this message has no chance of gaining any credibility, do we ignore this rant, though made at a seemingly responsible conclave? Can we really dismiss this as a personal viewpoint and can we assert that it will not have not any effect on his judicial philosophy? Going one step further, can we be convinced that his stated opinions are irrelevant to his outlook on secularism, abiding by the Indian Constitution?

I have my doubts. It is this deep seated doubt that has made me question the limits of freedom of speech of the justices of Supreme Court of India.

Raghuram Ekambaram

References

1.    http://www.thehindu.com/news/national/indians-should-revert-to-ancient-traditions/article6275878.ece  

Tree counting and carbon sink – an enlightened approach

The newspaper article at reference is the immediate cause of this post.

One reads that a two judge special bench of the Supreme Court of India has given the nod to “felling 697 trees in over four hectares of protected forests … for better connectivity across Agra, Gwalior and Mumbai.” To put the number in some sort of perspective, the felling will help ease traffic flow over a 12 km stretch of the highway (which otherwise would have been a bottleneck), to be widened and four-laned. That is, 58 trees per kilometer.

I accept that the bench had not much alternative as its Central Empowered Committee, having been asked to look into the matter, said that the project is in “public interest” and there is no other “viable alternative” to cutting the trees. I am not second guessing this recommendation and have suppressed cynical thoughts.

Yet, I do question a part of what the bench said. Laying down “stringent afforestation conditions to be met with before the trees are chopped down”, the bench appears to have put its environmental-friendly stamp on its judgment. Is this really so?

One of the justices on the bench also said, “Plant 10 times the trees felled in suitable places to be identified by the [UP] State Forest Department.” This is where my personal Green antennae went up.

I have seen this 10 for 1 swap too many times not to be disturbed by it. Whence this ratio? We must remember that the one of the main reasons for opposing felling of trees inheres in their carbon sink function and benefits. Fortunately, this is measurable and it depends on a host of factors like the species, its location, its environment, its age, where a tree is in its life cycle etc. Even as this layman understanding may be questioned with in-depth analysis of capacity to absorb carbon per tree analysis, it is necessary to acknowledge that it is a step away from the mere accountants’ perspective of 10 new saplings for one full-fledged tree. Why did the Supreme Court not ask the Empowered Committee to carry out such a less superficial analysis? After all, the numbers of trees are not that great, a mere 697 (isn’t this how the pro-growth lobby will tag the situation – a mere 700 trees coming in the way of a fast corridor?)

Why did the Supreme Court not use its extensive powers to change the parameters of the debate, from mere numbers of the trees to their carbon absorption values, including the Net Present Value of the trees to be felled, do discounting at some rate and come up with the number of saplings to be planted? That would have been an enlightened judgment.

Raghuram Ekambaram

References

1.    http://www.thehindu.com/news/national/sc-gives-green-signal-to-cut-697-trees-for-wider-road-to-taj/article6243002.ece

Abolish-Death-Penalty Movement – Spanner in the Works

The death penalty activists – by that I mean those who are against abolishing death penalty – got a boost for their cause from an unexpected source, the Chief Minister of Tamil Nadu J Jayalalithaa. The thing is the encouragement came in a roundabout way, so roundabout indeed that the other side of the debate is not even aware that its position is being undermined.

Though I belong to them I do not speak for those who are opposed to death penalty. Beyond the stark matter of capital punishment, there may be differences among them about treating those who would have been murdered through state sanction had there been a provision in law. At one extreme there may be those who seek the release of such prisoners, for whatever reasons. I am not one of them.

By arguing for, demanding and taking action towards release of killers of Rajiv Gandhi, Jayalalithaa has brushed all activists against death penalty with one broad brush – they want no incarceration of those who have committed capital crime, at least beyond a certain number of years. This is not my position.

It now becomes difficult for people like me to argue against death penalty but arguing for life-term incarceration without the possibility of parole. The last proviso acknowledges the phase change between all other crimes and capital crime (one for which the punishment of death is inflicted) of certain level and nature.

But because of the TN Chief Minister’s position, I am clubbed with those who are far extreme towards leniency in the spectrum than I am. I rebel against others putting words into my mouth.

Did the whole thing start with Jayalalithaa? I do not know. Perhaps including “remission” in the judgment delivered by the three-judge Bench of the Supreme Court of India was the thin end of the wedge. Here too, I am not sure. But, whatever the case maybe, I want it to be known that I am immutably against death penalty and I am far less lenient towards those who would have committed capital crime and who have been saved from the gallows for any reason, including the absence of the penalty in the statute books or inordinate delay in deciding on the mercy petition.

Lest there be a misunderstanding of my position, I call what Jayalalithaa is doing as putting a spanner in the advocacy of people like me.

Raghuram Ekambaram

Man in a hurry

President Pranab Mukherjee must be a man in a hurry. He called up Prime Minister Manmohan Singh to his residence, aka the Rastrapati Bhawan, pronto. The urgency in the president’s voice unsettled the prime minister. He hot footed it to the presidential abode, not an adobe house.

When the two met, the prime minister found that it was a matter of life and death, not of either of them, though one is on his political death bed, but of the people on the death row.

“Hey MMS, have you read about the Supreme Court judgment commuting the death sentence of 15 death-row inmates to life imprisonment? The Chauhan verdict.”

“Yes PM, and my first reaction is these judges do not know how busy the executive branch is.”

“That is precisely right. Why would I, or you for that matter, take on fast rack the mercy petitions of criminals? Let the murderers stew in their own juice for a while – 5, 10 or 15 years, who cares – and we will pull the lever suddenly. That is what they deserve, surprise hanging.”

“Yes again. You have gained a good reputation as the hanging president [1] – not unjustified. Your legacy would have been further enhanced without this unnecessary overreaching by the Supreme Court.”

Pranab was beaming when the legacy issue was mentioned with his name attached to it.

“Yes, it is not only the first family of the country who can showcase its legacy … I can too. Indeed, if only our laws had allowed I would have had the skeletons of the hanged hanging in my glass door trophy case. It will obviously be tall, but will be broader too than those of my predecessors. Skeletons take space, you know. I will show it to all the visiting dignitaries!”

“Don’t be so fast PM. You would have had to pick and choose who you will invite to see this. No European head of state. The European human rights softies will not take to one of them visiting your skeleton cupboard all too kindly. Only Xi, Li or your good friend, Barack.”

“Thanks MMS for warning me. I must have been a little too absorbed with my legacy to overlook this simple fact.”

“But PM, discussing about your legacy must not have been the matter for which you called me urgently.”

“Oh, yes, of course not. I got sidetracked. You see, my legacy is in danger of being foreshortened. I am ready to reject the mercy application of every one on death-row but the current judgment – by the way, are you doing something about asking for a review of this judgment? I think you should …”

“No, not as of now. Let whoever follows us in the hot seat, we will leave it up to them. That is my legacy, isn’t it?”

“Ha, ha, ha! A fine sense of humour! But, getting to the point, how I wish you would have brought the files of all whose mercy petitions are pending. I would have rejected them all en masse.”

“Oops, I failed to read you right this time. I was wondering what could have been the matter that I had to cancel my appointment with Soniaji and come here. Now I understand.”

“Good for you. Now go back to the Home Minister – do it before you are forced to give him the boot on some count or the other – get all the files and FedEx them.”

“Yes, yes, you don’t wish your legacy portfolio to be further thinned down; losing 15 skeletons is bad in itself. I understand. How many ever years you may have in this house, every skeleton that is lost, is a loss of face for you. We would not want that to happen, would we? Even if I have to kick Shinde out of the cabinet, I will make sure you get your files.”

“No, no, not my files, if you get my drift.”

“I do, I do, I have my own legacy as a drifter to be worried about. Hmm …”

With sirens blaring, Manmohan Singh was on his way to meet Madam Soniaji and as he was being driven down he was on the phone with Shinde, the man of quick action that Manmohan is.

Raghuram Ekambaram

References

1.    The Hanging President, Raghuram Ekambaram (http://nonexpert.blogspot.in/2013/02/the-hanging-president.html)

Atheists per se are not barred from teaching

The bestest news I read in today’s (September 21) The Hindu was unfortunately buried deep in the paper, on page 11. This post is an effort to bring it out in the open. But, you must understand that my posts are read at the most by half dozen people and yet, I am claiming I am spreading the news about it. This is not my vanity.

The issue is about school education, indeed prayers in school. The issue is about a school teacher, teacher of English at that, an atheist one at that. It is about how the teacher stood up for his rights to stand up without folded hands during school prayer [1]. The school, by not giving him his due, sat him down. But now the school has relented, under a knuckle breaking judgment from the Bombay High Court. [2]

Now, you understand why this issue will not catch fire. People do not see this as a matter of human rights violation, like they do other things. This is the pity. In my understanding, a violation of human rights is a violation of human rights – no gradation in acknowledging the same; a khap panchayat induced honor killing is no different as an issue to be discussed, debated and addressed. Will there be any debates on TV on this vis-à-vis the veritable cascade we saw on khaps’ “honor killing”? I rest my case.

What is my interest in this matter, why did this article catch my eye and why am I blogging almost in real time? I am a rationalist and consequently an atheist, I fancy myself a teacher – not accredited as such yet an effective one, people have told me – and most importantly, the thinking that drove me to post on Narendra Dabholkar and superstition [3] drove me to post this. I see rationalism as a justifiable stream of thinking in society. In fact, I see religionism verily not as a way of living, and I will come to it in a subsequent post.

We have a tendency to compare ourselves to the US, on various things to pat ourselves on our backs (we are doing right, per the US), to criticize ourselves (typically in matters not deeply significant, like traffic discipline, the so-called meritocracy, governance etc.) and other matters that may not elicit foundational resonances. But, freedom of religion is a core issue of our republic, yet not recognized so. I hope this post will unravel the silence, as evidenced in the newspaper carrying it on page 11.

Yes, our conception of religious freedom and what the American constitution says on it are very different, but there is the underlying common thread of “Live and let live”. Had any instance similar to what happened to Sanjay Salve at the Savitribai Phule Secondary School taken place in the US, the issue would have resonated through local newspapers, would have percolated up to (if that is possible) regional newspapers and national ones too, would have been caught by the TV talking heads, and almost definitely reached the US Supreme Court, given the intensity of debate on the “establishment clause” of their constitution.

Here, we do not have such a mechanism. Indeed, I can bet half my estate (half of zero is still zero!) that similar case will be brought elsewhere in this vast land of ours, and we will start from scratch.

We shy away from discussions on religion because we are fearful – fearful of “offending the religious sensibilities”. Never has it been debated why we should not discuss religion, which as far as we can see, is a social contrivance. This should be the basic discussion on religion – questioning why it exists, whether it should exist at all, and if yes, should it be given any “fear” premium.

Now, this is where, even as I feel good for the judgment in favor of the teacher – an English teacher at that, an atheist at that – I am disappointed that the school acquiesced so easily. I would have liked the case to have gone up the high court ladder and on to the Supreme Court Constitution bench. That is when, we will know for sure that atheists per se cannot be barred from teaching, not only English but any and all subjects, including rationalism if ever it is introduced in the curricula.

Raghuram Ekambaram

References

1.    Pray, what wrong did I do, asks Nashik Teacher, Alok Deshpande, The Hindu, September 1, 2013

2.    After six years, atheist teacher to get his dues, The Hindu, September 21, 2013

3.    http://nonexpert.blogspot.in/2013/09/dr-dabholkar-and-superstition.html   

Beyond Mercy Petition

M. N. Das of Assam registered in mind only today, about 16 years late; he was condemned to be murdered by the state in 1997. I am not crying over spilt milk.

But, what the Supreme Court of India said, as you can read in the image above, disconcerted me. I refer to the last paragraph in the news item [1].

The court seems to discern a difference between the mental conditions of the condemned at the conclusion of one phase of the process and the pendency of the subsequent phase. The first phase is the appeals process and its end: “When appeals against death sentences are rejected, the prisoner is in ‘mental agony’”.

The subsequent phase refers to the mercy petition to the President of India: “[D]elays in deciding mercy petitions actually 'keeps alive the ray of hope in the condemned prisoner,'" the judgment noted.

The first part, “mental agony” part, I have nothing to comment on. But, look at the second part. The review petition was occasioned by the “inordinate delay” in the president deciding on it.  And, as I understand, the current judgment, particularly the segment as cited above, seems to give the lie to earlier judgments that such delays result in inflicting mental torture on the condemned, and therefore it cannot be valid in the eye of “due process”. Here in the current judgment it is claimed that the delay in deciding on the mercy petition is a boon to the condemned, longer the better.

Go figure.

Raghuram Ekambaram

Reference

1.    Centre’s plea to review commuting death to life term rejected, J. Venkatesan, The Hindu, August 10, 2013

Supreme Court Bar Association’s wisdom

The gang-rape-of-a-23-year-old-physiotherapy-student carpet bombing has reached the heights (or, is it the depths) of our polity, that includes not only the institutions of governance but also their associate outfits, like the Supreme Court Bar Association (SCBA). I think I can keep this post short, mainly because SCBA has already done much of my work. Please refer to the scanned image below, an article in The Hindu of December 23, 2012.

The SCBA demands the “harshest punishment possible”. It is smart enough not to call for death penalty by its name. Had it been explicit, its plea would have been drowned in the cacophony of the blood thirsty calls for capital punishment from everyone and her cousin – Sushma Swaraj included. But, the harshest penalty now on the cards for rape is life term and the next rung on the ladder of harshness is death penalty. Of course, there is an intermediate rung, life term without parole, but who will pay for it? Hence, death penalty.

“[E]every [my emphasis; please note, no qualifications] rape case should be treated as the rarest of rare case,” leading, of course, to death penalty. I would like to refer to an article Executing the neighbor by Nilanjana S. Roy, The Hindu, December 20, 2012. I will refer only to the strap line, which goes,

“The popular view [hungry for death penalty] would send many fathers, brothers and neighbours to the gallows since rapists are known to victims in most cases.”

Oh no, the SCBA refers, implicitly, only to those cases that gain public traction! The headline case here has gone virally public. Ergo …

“[T]he Evidence Act has to be amended to treat the statement or affidavit of the victim girl to be admissible without cross-examination [my emphasis].” This asserts that in rape cases, you are guilty if you are accused, and you have no option but to be led to the gallows. Good for slaking the blood thirst of the society.

“All rape cases should be decided by a Special Fast Track Court consisting of two judges of whom one should be a woman.” I have a simple comment – it would have been better had SCBA included Due Process anywhere in this statement/demand.

“A group of lawyers … held a demonstration on the lawns of the Supreme Court,” and you have, thanks to this post, been a witness to the wisdom of this group. I prefer to be wisdom-deficient.

Raghuram Ekambaram

Do you understand death sentence?

This was the question posed by a two member Bench of the Supreme Court of India to the judges of a trial court and a sessions court that pronounced and sustained the sentence death to two convicts in a murder case. So, it is not a knee-jerk liberal who is posing this question. This came as relief to me as I read Supreme Court pulls up trial judge for queer death sentence, in The Hindu of December 22, 2012.

It is rather surprising that the Supreme Court had to caution (why not go beyond mere cautioning?) “[T]rail courts not to be influenced by the views expressed by judges or academicians on a private platform.” Read the list of things criminal courts should not be influenced by: “opinions, predilection, fondness, inclination, proclivity.” Does the reader understand that every single one of them imbues the process of judgment with singular lack of objectivity? It is in this environment suffused with arbitrariness some of our enlightened public cry out for death penalty for this and that crime.

The “trial court had opined” that imposing the death penalty will “help eliminate (my emphasis) the crime.” I want to cite this when I nominate the judge involved for the Nobel Peace prize! One of the apparent justifications for the death penalty cited in the trial court judgment is that the criminals came from Rajasthan, a good 2,000 km away – they came to “our state”, for committing robbery and murder! Obviously, along the way they did not find anyone to rob or murder! Hence, they deserved death penalty. Had they done the deeds in, say, Madhya Pradesh, they would have gotten away with a slap on the wrist.

You want more arbitrariness? The judgment by the trail court is purely judge-centric and not crime-centric. That is, you live or die on the lottery of the choice of the judge who hears your case. It also takes recourse to the barbaric jurisprudence of the Arab countries – “’slashing’, beheading, taking organ for organ” etc. Why no reference to, say, Norway’s liberal jurisprudence? Arbitrariness.

One last observation: one of the convicts died waiting for the High Court to disposes of an appeal. The other, after a tortuous judicial journey, was let go by the Supreme Court – from death to liberty. In the words of the Supreme Court Bench, “[W]e set him at liberty forthwith.”

It was Benjamin Franklin who said, “The only things certain in life are death and taxes.”  Now, given our judges misunderstanding of death sentence, the aphorism may have to be changed to “death and ‘Liberty’”.

I would like the death penalty proponents amongst my friends to tell me whether they will accept this modified saying

Raghuram Ekambaram

What can the media interpret?

Apparently everything under the Sun but not the judgments of Indian courts. This is what the CJI is reported to have said, as per a news report – “Chief Justice of India … asked the media not to interpret courts’ judgments…”

This is difficult for me to take. Why is the CJI resorting to exceptionalism for the judicial wing? He is not proscribing comments on the results of the functioning of the parliament or the executive, is he? Then why exempt the constitutional institution he heads from criticism and/or interpretation?

What is wrong if the media distorted the “facts and judgments delivered by the courts”? Media is plural and it is more than likely that if a particular media outlet is biased against the judgment of a court, there is another endorsing it. After all, the courts are players in the game of democracy. Prof J K Glabraith propounded countervailing forces in the economic and public spheres and that is exactly what we get if we gave a freehand to dissemination and dissection of judicial pronouncements.

The CJI “asked the media to report court proceedings ‘correctly’.” What exactly does this mean? Do the media have to get their reports vetted by the Court? I hope not. One of the things I admire about media outlets like the New York Times, Washington Post, and Wall Street Journal are the freewheeling discussions one gets to read on the US Supreme Court judgments.

We are, I am proud to claim, as mature a democracy as the US is. Yet, we tend to build mini-fortresses and consider public discussions of what happens within them as trespassing. This is not a healthy attitude.

Muzzling discussions of judicial pronouncements is not the way to go. The courts should be confident of their decisions and throw them open to discussions in civil society. This alone will enhance the prestige of the institution.

Raghuram Ekambaram