Fali S Nariman’s book is more than timely, giving a dispassionate view of the country and where we are headed
It is now accepted that a ‘rot’ has set in our country, not just in terms of governance issues at the political level, but also loss of integrity, with scams ranging from sector-specific issues to cricket. Nariman’s book, The State of the Nation, is more than timely and gives a dispassionate view of the country and where we are headed. The author, an eminent defender of the Constitution, starts from the beginning at the time of independence when we set up the Constituent Assembly, and meanders through various issues, most of them sticky, that have evolved, which, in turn, warrant remedial action.
How many of us are aware that the Constituent Assembly which was responsible for the Constitution did not derive the power from the people to frame it? The members were not elected but were sitting members of the existing legislative assemblies. He starts the book from this misapprehension and builds on the controversial issues that have emerged in our setting. He boldly discusses the issue of reservations in education and how the creamy layer of the backward castes has usurped the benefits. His view is that as there is no judicial criterion that has evolved for defining these classes, there is ample room for administrative manipulation, which has been leveraged by those in power. More fundamentally, he poses a conundrum: If one is defined as being a part of the backward class, can he or she forever be called one when it comes to benefits? If this holds, then does this not defeat the purpose of this clause in the Constitution which wanted advancement of these people through this route?
On the issue of Centre-state relations, he contends that the fact that states are dependent on the Centre for finances makes them subservient, which has come in the way of true functioning of federalism in the country. Some states have now started wooing foreign investment that is, in a way, pragmatic to become more independent in the financial sense.
Nariman’s main argument is that the legislature and executive have not quite lived up to what the Constitution envisaged and the result has been failure of systems as far as people are concerned. The judiciary has had to take a stance to reinforce the Constitution, but in the process, at times, has been criticised for overreach.
The corruption that has set in our systems is serious. But often nothing can be done as certain clauses are picked up from the Constitution that provide protection. Here, he has some interesting tales to narrate. In the infamous JMM case of 1993, where money was paid for votes, the clause that no MP can be liable for any court proceeding in respect of any vote given was used to escape censure. The CVC Bill of 2003 had come up in the Rajya Sabha after being passed by the Lok Sabha and the idea was to have a three-member commission with fixed tenure. The argument under contention was that only officials under the level of joint secretary could be considered as those above were protected as they were taking decisions and needed protection. Further, he cites the 1991 Jain Havala case where the big fish were in the net, but on appeal had a fresh bench in the same court acquitting them, thus making a mockery of justice. This, according to the author, is nothing new in India, where when one bench of the Supreme Court comes heavily on the rich and powerful, has the same case overruled by another bench when taken for review. The cases of allottments of petrol pumps and shops by various ministries are clear examples of such instances.
How about the judiciary? According to him, it is not above corruption and the fear of contempt of court has kept the media at bay in writing about its prevalence. He gives an anecdote of a Delhi-based publication carrying out a survey among lawyers to describe the quality of judges of the Delhi High Court in 2001. It became a big issue, with the publication being forced to apologise to have the case closed. Even the case of Arundhati Roy questioning a court verdict that allowed the wall of a dam to be raised, was treated as contempt, though she escaped with only a censure. And this is not just in India, but also in the US, where the courts have the final say, being the final ‘umpire’. It is not surprising that no publication will publish even a letter against the judicial system.
Therefore, there is a lot of opacity when it comes to the judiciary. How are judges appointed? Who recommends them? What are their shortcomings? How do we correct the systems? Why are judgments not delivered on time? Why do they get reversed? He talks of the creation of a kind of trade unionism among the judges. This ensures that the realm remains sacrosanct and everyone stands up for one another. Another anecdote of three judges being found in a shady joint outside Bangalore did not lead to action on the judges, but the media which exposed it faced the flak in the form of contempt proceedings.
His solution is to have the lawyers take up the cause and gives the case of Justice Dinakaran where his elevation to chief justice of Karnataka High Court and later to the Supreme Court had the lawyers taking the position not to appear before either him or those of the collegium who recommended his name. That worked. There was another instance where a judge had ruled against commercial activity being conducted from residential complexes when his own sons ran their business from his own house. How does one explain integrity in the system?
At a different level, he discusses the case of fundamental rights and gives the example of Kerala where children were expelled from school for not singing the national anthem as they were from the sect Jehovah’s Witness where religion forbade them to do so. The Supreme Court ruled in their favour, but yet they could not be readmitted as schools were reluctant to take them. Here, even the Congress party leaders had argued against the children.
At a broader level, Nariman points out that we have several issues on hand that have to be addressed. First, there are just too many people around. Second, the wall built by the British between the governed and the rulers has not been broken, but strengthened. Third, our leaders are corrupt, which comes in the way of development. Fourth, our constitutional functionaries have failed us, like in the case of the Emergency. Fifth, we are simply incompetent, and last, there are too many poor people. All of them have to be addressed with alacrity.
Nariman has a charming style of writing and makes this book very readable. By giving anecdotes, he is able to drive home his arguments not just convincingly, but also in an interesting manner. It should be a must-read book for any student of law while the old-timers would revel in these stories that have been out together at a time when there is a lot of disenchantment with all our systems. Kudos to Nariman for providing a hard-hitting exposition of the true state of our nation!
The State of our Nation: Fali Nariman
It is now accepted that a ‘rot’ has set in our country, not just in terms of governance issues at the political level, but also loss of integrity, with scams ranging from sector-specific issues to cricket. Nariman’s book, The State of the Nation, is more than timely and gives a dispassionate view of the country and where we are headed. The author, an eminent defender of the Constitution, starts from the beginning at the time of independence when we set up the Constituent Assembly, and meanders through various issues, most of them sticky, that have evolved, which, in turn, warrant remedial action.
How many of us are aware that the Constituent Assembly which was responsible for the Constitution did not derive the power from the people to frame it? The members were not elected but were sitting members of the existing legislative assemblies. He starts the book from this misapprehension and builds on the controversial issues that have emerged in our setting. He boldly discusses the issue of reservations in education and how the creamy layer of the backward castes has usurped the benefits. His view is that as there is no judicial criterion that has evolved for defining these classes, there is ample room for administrative manipulation, which has been leveraged by those in power. More fundamentally, he poses a conundrum: If one is defined as being a part of the backward class, can he or she forever be called one when it comes to benefits? If this holds, then does this not defeat the purpose of this clause in the Constitution which wanted advancement of these people through this route?
On the issue of Centre-state relations, he contends that the fact that states are dependent on the Centre for finances makes them subservient, which has come in the way of true functioning of federalism in the country. Some states have now started wooing foreign investment that is, in a way, pragmatic to become more independent in the financial sense.
Nariman’s main argument is that the legislature and executive have not quite lived up to what the Constitution envisaged and the result has been failure of systems as far as people are concerned. The judiciary has had to take a stance to reinforce the Constitution, but in the process, at times, has been criticised for overreach.
The corruption that has set in our systems is serious. But often nothing can be done as certain clauses are picked up from the Constitution that provide protection. Here, he has some interesting tales to narrate. In the infamous JMM case of 1993, where money was paid for votes, the clause that no MP can be liable for any court proceeding in respect of any vote given was used to escape censure. The CVC Bill of 2003 had come up in the Rajya Sabha after being passed by the Lok Sabha and the idea was to have a three-member commission with fixed tenure. The argument under contention was that only officials under the level of joint secretary could be considered as those above were protected as they were taking decisions and needed protection. Further, he cites the 1991 Jain Havala case where the big fish were in the net, but on appeal had a fresh bench in the same court acquitting them, thus making a mockery of justice. This, according to the author, is nothing new in India, where when one bench of the Supreme Court comes heavily on the rich and powerful, has the same case overruled by another bench when taken for review. The cases of allottments of petrol pumps and shops by various ministries are clear examples of such instances.
How about the judiciary? According to him, it is not above corruption and the fear of contempt of court has kept the media at bay in writing about its prevalence. He gives an anecdote of a Delhi-based publication carrying out a survey among lawyers to describe the quality of judges of the Delhi High Court in 2001. It became a big issue, with the publication being forced to apologise to have the case closed. Even the case of Arundhati Roy questioning a court verdict that allowed the wall of a dam to be raised, was treated as contempt, though she escaped with only a censure. And this is not just in India, but also in the US, where the courts have the final say, being the final ‘umpire’. It is not surprising that no publication will publish even a letter against the judicial system.
Therefore, there is a lot of opacity when it comes to the judiciary. How are judges appointed? Who recommends them? What are their shortcomings? How do we correct the systems? Why are judgments not delivered on time? Why do they get reversed? He talks of the creation of a kind of trade unionism among the judges. This ensures that the realm remains sacrosanct and everyone stands up for one another. Another anecdote of three judges being found in a shady joint outside Bangalore did not lead to action on the judges, but the media which exposed it faced the flak in the form of contempt proceedings.
His solution is to have the lawyers take up the cause and gives the case of Justice Dinakaran where his elevation to chief justice of Karnataka High Court and later to the Supreme Court had the lawyers taking the position not to appear before either him or those of the collegium who recommended his name. That worked. There was another instance where a judge had ruled against commercial activity being conducted from residential complexes when his own sons ran their business from his own house. How does one explain integrity in the system?
At a different level, he discusses the case of fundamental rights and gives the example of Kerala where children were expelled from school for not singing the national anthem as they were from the sect Jehovah’s Witness where religion forbade them to do so. The Supreme Court ruled in their favour, but yet they could not be readmitted as schools were reluctant to take them. Here, even the Congress party leaders had argued against the children.
At a broader level, Nariman points out that we have several issues on hand that have to be addressed. First, there are just too many people around. Second, the wall built by the British between the governed and the rulers has not been broken, but strengthened. Third, our leaders are corrupt, which comes in the way of development. Fourth, our constitutional functionaries have failed us, like in the case of the Emergency. Fifth, we are simply incompetent, and last, there are too many poor people. All of them have to be addressed with alacrity.
Nariman has a charming style of writing and makes this book very readable. By giving anecdotes, he is able to drive home his arguments not just convincingly, but also in an interesting manner. It should be a must-read book for any student of law while the old-timers would revel in these stories that have been out together at a time when there is a lot of disenchantment with all our systems. Kudos to Nariman for providing a hard-hitting exposition of the true state of our nation!
The State of our Nation: Fali Nariman
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