The Role of Art, Literature and

the Media
By : Justice Markandey Katju, Judge,
Supreme Court of India
Gulon mein rang bhare baade naubahar chale
chale bhi aao ki gulshan ka karobar chale
Today India is facing gigantic problems. In Andhra Pradesh, Maharashtra, etc. farmers and
weavers are committing suicide regularly. Prices of essential commodities are sky
rocketing. Unemployment has become massive and chronic, the educated youth can see
only darkness in their lives. Water and electricity shortage is widespread. Corruption and
fraud are seen everywhere, even in the highest places. Medicines and medical treatment
have become prohibitively expensive for the masses. Housing is scarce. The educational
system has gone haywire. Law and order has collapsed in many parts of the country where
criminals and mafia are calling the shots.
* The above sher (couplet) of Faiz really means that the objective situation is ripe for
thinkers, artists, writers and other genuinely patriotic people to come forward to help the
country.
In this situation the role of art, literature and the media in India has become of great
importance. An attempt has therefore been made to analyze them.

The Role of Art and Literature:

There are broadly two theories about art and literature. The first is called art for arts sake
and the second is called art for social purpose.
According to the first theory, art and literature are only meant to create beautiful or
entertaining works to please and entertain people and artists themselves, and they are not
meant to propagate social ideas. If art and literature is used for propagating social ideas it
ceases to be art and becomes propaganda. Proponents of this view are Keats, Tennyson,
Ezra Pound and T.S. Eliot in English literature, Edgar Allan Poe in American literature,
Agyeya and the Reetikal and Chayavadi Poets in Hindi literature, Jigar Moradabadi in Urdu
literature and Tagore in Bengali literature.
The other theory is that art and literature should serve the people, and help them in their
struggle for a better life, by arousing the peoples emotions against oppression and injustice
and increasing their sensitivity regarding the peoples sufferings. Proponents of this school
are Dickens and George Bernard Shaw in English literature, Walt Whitman, Mark Twain,
Harriet Beacher Stowe, Upton Sinclair and John Steinbeck in American literature, Balzac,
Stendhal, Flaubert and Victor Hugo in French, Goethe, Schiller and Erich Maria Remarque in
German, Cervantes in Spanish, Tolstoy, Gogol, Dostoevsky and Gorki in Russian, Premchand
and Kabir in Hindi, Sharat Chandra Chattopadhyaya and Kazi Nazrul Islam in Bengali and
Nazir, Faiz, Josh and Manto in Urdu.
Which of these two theories should be adopted and followed by artists and writers in India

The Four Peoples Principles

by Justice Markandey Katju
Chairman, Press Council of India
(former Judge, Supreme Court of India)
Friends,
I wish to thank Dr. Gauhar Raza for inviting me to this International Conference
organized by CISR on Science Communication for Scientific Temper.
When we discuss science we must ask: What is the purpose of science? The
answer, to my mind, is that its purpose is to make our lives better and happier. Science
is that knowledge by which we understand nature and harness it for our benefit.
Some people may oppose this view by saying that the atom bomb destroys lives,
and that science has created terrible weapons of destruction. It is true that scientific
knowledge can be misused, but it can also be used to benefit mankind, whereas without
science we will be living precarious, wretched lives.
It can also be objected that it is only the applied sciences (technology) which
benefits people, but not the fundamental sciences. Now it is true that a scientist doing
fundamental research does not care whether his discoveries are of any utility or not.
Newton and Einstein never bothered to know whether their discoveries would benefit
mankind. However, the fundamental sciences benefit mankind in the long run, even
though not immediately.
Today our country India is facing huge problems, and I believe that only science
can solve those problems. 80% of our people are living in horrible poverty, with massive
unemployment, skyrocketing prices, massive problems of healthcare, education,
housing etc. 48 farmers have been committing suicide on an average every day, and 47%
of our children are malnourished, a figure which is over 10% higher than in countries of
sub-Saharan Africa e.g. Ethiopia and Somalia.
Our national aim must be to abolish these evils and make our country highly
prosperous for all our citizens.

To address the nations problems I am propounding the Four Peoples Principles

(following Sun Yat Sens Three Peoples Principles) which should be our guiding
principles for solving Indias problems. These are:
1.

Science 2.Democracy 3. Livelihood, and 4. Unity of the People

Science
When our country was on the scientific path it prospered. With the aid of science
we had built mighty civilizations thousands of years ago when most people in Europe
(except in Greece and Rome) were living in forests. We had made outstanding scientific
discoveries e.g. the decimal system in mathematics, plastic surgery in medicine, etc. We
had solved the problem of town planning 5000 years earlier in the Indus Valley
Civilization, with covered drains, sewage system, etc (something which is lacking even
today in most cities in India). However, we subsequently took to the unscientific path of
superstitions and empty rituals, which has led us to disaster. The way out for our nation
is to go back again to the scientific path shown by our great ancestors the path of
Aryabhatta and Brahmagupta, Sushrut and Charak, Ramanujan and Raman.
I will give just three examples of our scientific achievements in ancient times.
(1)

The decimal system was perhaps the most revolutionary and greatest scientific

achievement in the ancient world. The numbers in the decimal system were called
Arabic numerals by the Europeans, but surprisingly the Arabs called them Hindu
numerals. Were they really Arabic or Hindu? In this connection it may be mentioned
that the languages Urdu, Persian and Arabic are written from right to left but if you ask
any speaker of these languages to write any number e.g. 257 he will write the number
from left to right. This shows that these numbers were taken from a language which was
written from left to right and not from right to left. It is accepted now that these
numbers came from India and they were copied by the Arabs from us.
I would like to illustrate the revolutionary significance of the decimal system. As we all
know, ancient Rome was a great civilization, the civilization of Caesar and Augustus, but
the ancient Romans felt very uncomfortable with numbers above 1000. This was
because they wrote their numbers in alphabets, I standing for 1, V for 5, X for 10, L for
50, C for 100, D for 500 and M for 1000. There was no alphabet expressing a number
higher than 1000. If one would have asked an ancient Roman to write the number one

million he would have almost gone crazy because to write one million he would have to
write the letter M which stands for millennium (or one thousand) one thousand times.
In the Roman numerals to write 2000 we have to write MM, to write 3000 we have to
write MMM, and to write one million one has to write M one thousand times.
On the other hand, under our system to express one million we have just to
write the number one followed by six zeros. We could thus express
astronomically high numbers by simply adding zeros. Thus, if we keep adding 2 zeros
to 1000 we get lac, crore, arab, kharab, padma, neel, shankh, mahashankh, etc.
On the other hand, in the Roman numerals there is no zero. Zero was an invention of
ancient India and progress was not possible without this invention.
2.

5000 years ago in the Indus Valley Civilization we had created the system of town

planning, with covered drains, sewage system, etc., something which is absent even
today in most cities of India.
3.

Plastic surgery was invented in India as early as the 6 th Century B.C., while the

Westerners discovered it only about 200 years ago.

I am not going into our other great scientific achievements (for details see
Sanskrit as a Language of Science on the website kgfindia.com). I have only referred to
it to prove that there is nothing inherently inferior in us.
However, today there is no doubt that we are far behind the Western countries in
science, and that is the real cause of our poverty and other social evils.
We must therefore spread science on a massive scale to every nook and corner of
our country. And by science I do not mean physics, chemistry and biology alone. I mean
the entire scientific outlook. We must spread rational and logical thinking among our
masses and make them give up backwardness and superstitions. The entire mindset of
our masses, who are presently steeped in casteism, communalism and superstitions
must be changed, and made scientific.
I must clarify that by science I do not mean the natural sciences alone, I also
include the social sciences. Today a worldwide recession is going on infact the Second
Great Depression after the first one from 1929 t0 1939 and this can only be solved by
knowledge of economic theory, not by knowledge of natural sciences or engineering.
Democracy

The second Great Peoples Principle is Democracy.

In this connection it is interesting to note that when King Ajatshatru of Magadha
was planning to attack the Vajjian democracy he sent a messenger to the Buddha for his
advice. Instead of speaking to this messenger, the Buddha said to one of his disciples
Have you heard Anand, that the Vajjians foregather often and frequent the public
meetings of their clan? So long, Anand, as the Vajjians so foregather and so frequent the
public meetings of their clan, so long they may be expected not to decline but to prosper.
Similarly in The Avadan Shatak, a Buddhist Sanskrit text of the second century
A.D it is mentioned that a group of merchants went from North India to the Deccan and
were asked by the Deccan King as to who was the king who ruled over North India. The
merchants repliedDeva, kechit deshah ganadheena, kechit rajaadheena, iti which
means Your Majesty, some regions are under democratic rule, while others are under
kings
This shows that democracy is nothing new to India.
The method of shastrarthas was developed in ancient India, which permitted free
discussion in the presence of a large assembly of people. This resulted not only in
tremendous growth in philosophy, law, grammar etc but also tremendous growth in
science including medicine, mathematics, astronomy etc.
Some people say that democracy is not good for India. I totally disagree. The
problem in India is not that there is too much democracy but too little. We need more
democracy, not less, and that means educating the masses, raising their cultural level,
and involving them actively in the task of national reconstruction.
It may be mentioned that democracy and science go hand in hand. Scientific
growth requires certain supportive values viz. freedom to think, to criticize, and to
dissent, tolerance, plurality, and free flow of information. These precisely are the values
of a democratic society
Livelihood
The third great peoples principle is livelihood for the masses.
Today 80% people in India are poor, and there is massive unemployment, lack of
healthcare, housing, good education, etc.
What we have noticed in the last 25 years or so is that the rich have become
richer, and the divide between rich and poor has greatly increased. The economic

growth in India has benefited only a handful of people. Unless this trend is stopped it
will be disastrous for the country.
As the great French thinker Rousseau wrote:
It is obviously contrary to the law of nature for a handful of people to gorge themselves
on superfluities while the starving multitudes lack the necessities of life. (Rousseau:
Discourse on the Origins of Inequality)
We must, using our creativity, find out ways of raising the standard of living of
the masses. Ultimately, that is what matters. Whether the system we adopt is called
capitalism or socialism or communism or any other ism, the real test is whether the
standard of living of the masses is going up under that system or not. Surely a system in
which a quarter million farmers commit suicide in the last 15 years and vast masses live
in abject poverty is totally unacceptable.
Before the Industrial Revolution, which began in Western Europe in the 18 th
Century, there was feudalism everywhere, and in the feudal system the methods of
production (the bullock in India and the horse in Europe) were so primitive that very
little wealth was generated, and so only a handful of people could be rich while the rest
had to be poor. When the cake is small obviously few people can eat it.
In contrast, modern industry is so powerful and so big that enough wealth can be
generated to meet the basic needs of everyone. This being so, now no one need be poor.
And it is the duty of the state to ensure that no one today remains poor, unemployed,
sick, illiterate or homeless.

Unity of the people

India is a country of great diversity having a large number of castes, languages,
religions, ethnic groups, etc., because it is broadly a country of immigrants (see the
article Kalidas Ghalib Academy for Mutual Understanding, and the video What is
India on the website kgfindia.com). So the only policy which will work here is
secularism and giving equal respect to all communities. This was the policy of the great
Mughal Emperor Akbar, who was really the architect of modern India. It is this policy

which was continued by Pt. Nehru and his colleagues who created our secular
Constitution.
In 1947 religious passions were inflamed, and Pakistan had declared itself an
Islamic State. There must have been tremendous pressure on Pt. Nehru and his
colleagues to declare India a Hindu State. It is not easy to keep a cool head when
passions are inflamed, but it is the greatness of our leaders that they kept a cool head
and said that India will not be a Hindu but a secular State. It is for this reason that we
have relatively more stability in India than in our neighbouring country.
Powerful vested interests are trying to destroy our unity and make us fight each
other on the basis of religion, caste, region, language, etc. It is the duty of all patriotic
people to expose these nefarious designs and maintain the unity of the people, for
without that we can never progress.

The Limits of Freedom of Speech and the Rushdie Episode

By Justice Markandey Katju,
Chairman, Press Council of India,
(Former Judge, Supreme Court of India)

The recent Rushdie episode has raised some vital points regarding freedom of
speech and expression, which need to be seriously addressed. I am submitting five
points for consideration on the topic.
1.

No freedom can be absolute: In a democracy freedom of speech is a valuable

individual right. For progress there must be freedom to speak, freedom to write,
freedom to criticize, and freedom to dissent. Unless there is freedom ideas cannot grow,
and in the transition period India and other underdeveloped countries are going
through modern ideas are extremely important.
But since man is a social being, he cannot be permitted to exercise this freedom
in a manner which may damage society (see Rousseau: The Social Contract). It is for this
reason that Article 19 (1) (a) of the Indian Constitution, which grants freedom of speech

and expression (which has been interpreted by our Supreme Court to include freedom
of the press) to all citizens, has been made subject to Article 19 (2) which says that the
right granted by Article 19 (a) (a) is subject to reasonable restrictions in the interest of
the security of the State, public order, decency, morality etc.
The individuals freedom of speech has therefore to be harmonized with the
public interest. In other words, a balance has to be struck between the two. Where to
strike the balance is therefore a question of crucial importance. This then takes us to my
second point.
2.

Freedom is relative: In considering where to strike a balance one cannot

consider the matter in the abstract but in the specific historical context.
For example, portraying Jesus Christ as a gay person may be acceptable in the
West today, but to depict religious figures of Hinduism or Islam as gay would be totally
unacceptable in India and may probably lead to religious riots and violence. This is
because people in India are much more religious than in the West.
Therefore when we consider the Salman Rushdie issue we must keep this point
in mind. In Satanic Verses Rushdie has certainly attacked, even though by insinuation,
Islam and the Prophet. Such sensationalism may have earned Rushdie millions of
dollars, but it has deeply hurt Muslim sensitivities.
Some people describe Rushdie as a great writer because he has won the Booker
Prize. In this connection, I wish to say that Literature Prizes are often a mystery. To give
an example, out of the approximately 100 Nobel Prizes given for Literature till today,
nobody even remembers the names of 80 or more winners, whereas many great writers
were not given the prize. So winning the Booker Prize to my mind proves little.
Midnights Children, for which Rushdie got the Booker Prize, is almost unreadable. It

is difficult to understand what Rushdie is driving at. So the new criterion for good
literature is that it should be unreadable!
3.

The Jaipur Literature Festival: This was dominated by the Rushdie issue. There

was hardly any good discussion on other writers of India or foreign countries in the 5
day Festival. Rushdie was made into a hero.
One had expected a serious discussion on Indian writers like Kabir, Premchand,
Sharat Chandra, Manto, Kazi Nazrul Islam, Ghalib, Faiz, etc. or foreign writers like
Dickens, Bernard Shaw, Upton Sinclair, Walt Whitman, Victor Hugo, Flaubert, Balzac,
Goethe, Schiller, Tolstoy, Dostoyevsky, Gorki etc. But instead the total focus was on
Rushdie. Discussion on good writers was marginalized.
A big hue and cry was raised that freedom of speech was imperiled by banning
Rushdie.
The Indian Prime Minister recently declared that it is a shame that 42% of our
children are malnourished. The real figures in India are higher, perhaps 47%, which is
12% higher than the poorest sub-Saharan countries like Ethiopia or Somalia. 47 farmers
have been committing suicide in India everyday on an average for the last 15 years -250,000 farmers suicides, making it a world record of suicides in history.
Unemployment in India is massive, there is poverty everywhere, even in the capital city.
There are massive problems of price rise, healthcare, education, housing, etc. We stand
66th among the 88 hungry nations of the world. On the other hand, there are 49 dollar
billionaires, in India, and the gulf between rich and poor has greatly increased.
Should literature address these problems, or should we only care for Mr.
Rushdies freedom? To my mind freedom for the Indian masses is freedom from
hunger, ignorance, unemployment, disease and all kinds of deprivation, not freedom to
read Mr. Rushdies substandard books.

Had Rushdies work been beneficial to the Indian people one could have
supported it even if it temporarily created some social disorder. Great works sometimes
create disorder e.g. the works of Voltaire, Rousseau, Thomas Paine, the French
Encyclopaedists, etc. But how does Midnights Children or Satanic Verses help the
Indian people in their struggle for a better life? What is their social relevance?
As I pointed out in a previous article, many Indians suffer from an inferiority
complex that whatever is written by someone living in London or New York must be
great literature, whereas whatever is written by a writer living in India (particularly in a
vernacular language) must be inferior.
I was recently reading (or rather re-reading) John Steinbecks The Grapes of
Wrath which is about the migration of farmers of Oklahama in U.S.A. who had lost
their livelihood due to the Great Depression and fled to California searching for jobs
which were not there. This is a really great novel, and reminds one of the recent
migrations of hundreds of thousands of farmers in India who lost their livelihood and
fled to cities looking for jobs which were not there. It is such kind of literature which
India requires highlighting great social problems, not works of Rushdie which have no
social relevance.
4.

There is tremendous diversity in India: India is broadly a country of

immigrants, like North America. 92 to 93 of its present population consists of

descendants of people who came from abroad, mainly from the North West. For this
reason there is tremendous diversity in India so many religions castes, languages,
ethnic groups, etc. Therefore the only policy which can work in India and keep it
together is secularism and giving equal respect to all communities the policy laid
down in our Constitution.
For this reason it is very important for preserving Indias integrity to respect all
religions, even if one does not subscribe to them.

Religion is a matter of faith, not logic. Hindus regard Lord Rama and Lord
Krishna as Gods. Muslims respect Prophet Mohammed. Since the overwhelming
number of Indians are deeply religious, unlike in the West where the hold of religion
has considerably weakened, care must be taken in India not to insult any religious figure
directly or indirectly.
Rushdie has deeply hurt Muslim feelings by Satanic Verses. Why then was the
focus on him at Jaipur? Was there a subtle, deliberate design to divide Hindus and
Muslims? One wonders.
5.

India is presently passing through a transitional period in its history, from

feudalism to a modern industrial society. This is a very painful and agonizing period in
history, as a study of European history from the 17 th to 19th centuries discloses --- full of
turbulence and turmoil. With great difficulty, and after tremendous sacrifices India has
partially emerged from the dark, feudal age. Should it be hurled back into that age by
permitting freedom to insult religious sensitivities, which only makes people more
obscurantists, and may lead to public disorder? To my mind freedom of speech should
be used in India to spread rational and scientific ideas while avoiding insult to any
religion. This will help in getting over the transitional period faster and with less pain.

What is India?
By Justice Markandey Katju,
Chairman, Press Council of India

(Extracts of a speech delivered to N.R.I.s in California in June 2011)

We are all Indians, but do we know what is India? I am presenting
five theses for consideration.

(i) India is broadly a country of immigrants, like North America.

Over 92% people living in India are not the original inhabitants of India.
Their ancestors came from outside, mainly from the North West.
(ii) Because India is a country of immigrants like North America
there is tremendous diversity in India so many religions, castes,
languages, ethnic groups etc.
(iii) Despite the tremendous diversity in India, by the interaction and
intermingling of these immigrants who came into India a common culture
emerged in India which can broadly be called the Sanskrit-Urdu culture.
(iv) Because of the tremendous diversity in India the only policy
which can work and hold our country together is secularism and giving
equal respect to all communities, otherwise our country cannot survive for
one day.
(v)

India is passing through a transitional period, from feudal

agricultural society to modern Industrial society. This is a very painful and

agonizing period in history. If we read the history of Europe from the 17 th to
19th Centuries we find that this was a horrible period in Europe. Only after
going through that fire, in which there were wars, revolutions, turmoil,
intellectual ferment, chaos, social churning, etc., modern society emerged
in Europe. India is presently going through that fire. We are going through
a very painful and agonizing period in our history which I think will last for
around another 20 years. I may now briefly elaborate these theses.

(1)

India is broadly a country of immigrants, like North America. The

difference between North America and India is that North America is a

country of new immigrants, where people came mainly from Europe over
the last four to five hundred years, India is a country of old immigrants
where people have been coming in for 10 thousand years or so.
Why have people been coming into India? Very few people left India,
except on two occasions namely (i) in the 19 th century when under British
rule Indian poor peasants were sent to Fiji, Mauritius, West Indies, etc. as
plantation labourers and (ii) the Diaspora in the last 30-40 years or so of
highly qualified engineers, scientists, doctors, etc. Apart from this, nobody
left India, everybody came into India. Why?
The reason is obvious. People migrate from uncomfortable areas to
comfortable areas, obviously, because everybody wants comfort. Before the
Industrial Revolution which started in Western Europe

from the 18th

century and then spread all over the world there were agricultural societies
everywhere. Agriculture requires level land, fertile soil, plenty of water for
irrigation, etc. All this was in abundance in the Indian sub continent from
Rawalpindi to Bangladesh and to the deep South upto Kanyakumari. Why
will anybody migrate from India to, say, Afghanistan which is cold, rocky
and uncomfortable covered with snow for four to five months in a year. For
agricultural society India was really paradise, hence everybody kept rolling
into India, mainly from the North West and to a much lesser extent from
the North East.

Who were the original inhabitants of India? At one time it was

believed that the Dravidians were the original inhabitants, but now that
theory has been disproved. Now, it is believed that even the Dravidians
came from outside. There are several proofs of that, one of which is that
there is a Dravidian language called Brahui which is spoken in Western
Pakistan even today by about three million people. The original inhabitants
of India, as it is believed now, were the pre-Dravidians tribals, who are
called adivasis or Scheduled Tribes in India e.g. the Bhils, the Santhals, the
Gonds, the Todas, etc., that is, the speakers of the Austric, pre Dravidian
languages e.g. Munda, Gondvi, etc. They are hardly seven or eight percent
of the Indian population today. They were pushed into the forests by the
immigrants and treated very badly.

Except for them all of us are

descendents of immigrants who came mainly from the North West of India.
(See in this connection the article `Kalidas Ghalib Academy for Mutual
Understanding on the website kgfindia.com.)
(2)

Because India is a country of immigrants there is tremendous

diversity in India, so many religions, castes, languages, ethnic groups, etc.

Somebody is tall, somebody is short, somebody is fair, somebody is dark,
somebody is brown, with all kinds of shades in between, someone has got
Mongoloid features, someone has got Caucasian features, someone has got
Negroid features, there are differences in food habits, dress, traditional
festivals, etc. We may compare India with China. Our population is about
1200 million while China has about 1300 million and they have perhaps 2
times our land area. However, there is broad (though not absolute)

homogeneity in China. All Chinese have Mongoloid faces, they have one
common written script called Mandarin Chinese (although spoken dialects
are different), and 95% Chinese belong to one ethnic group called the Han
Chinese. So there is broad homogeneity in China. In India, on the other
hand, there is tremendous diversity, because whichever group of
immigrants came into India brought in their own culture, their religion,
their language etc.
(3)

Is India a nation at all, or is it just a group of hundreds of kinds of

immigrants? Is there anything common in India? The answer is that the

immigrants who came into India over the last 10 thousand years or so, by
their interaction and intermingling created a common culture which can
broadly be called the Sanskrit- Urdu culture which is broadly the culture of
India.

Now this has to be explained. How are Tamilians part of Sanskrit

Urdu culture, what have the people of Nagaland got to do with Sanskrit and
Urdu, etc.
The answer is that we must first understand what is Sanskrit and
what is Urdu? The reader may see in this connection my articles `What is
Urdu, `Great injusticeto Urdu in India, and `Sanskrit as a Language of
Science.

Both of these languages have been misunderstood. People think

that Sanskrit is a language of chanting mantras in temples or in religious

ceremonies. However, that is only 5% of Sanskrit literature. 95% of

Sanskrit literature has nothing to do with religion. It deals with a whole

range of subjects like philosophy, law, science (including mathematics,
medicine and astronomy) grammar, phonetics and literature. So we can
not compare Bengali and Tamil with Sanskrit. Bengali and Tamil have only
stories, novels and moral literature (like Thirukkural) but they do not have
any discussion on mathematics, law, medicine, etc. Sanskrit was the
language of people with an enquiring mind, who enquired about everything,
and therefore there is a whole range of subjects which have been discussed
in Sanskrit. In the paper on the website kgfindia.com `Sanskrit as a
Language of Science all this has been discussed in detail, therefore, I am
not going into it here. I may, however, just mention two things: one is the
contribution of Panini and the other is the contribution of the Nyaya
Vaisheshik philosophy.
What we call Sanskrit today, and what is taught in schools and
colleges is really Paninis Sanskrit, which is called classical Sanskrit or
Laukik Sanskrit. But there were earlier Sanskrits. The earliest Sanskrit
book is the Rigveda which was composed anytime between 2000 or 1500
B.C (it was subsequently passed on orally). Now language changes with the
passage of time. For instance if we pick up a play of Shakespeare we will
not be able to understand it without a good commentary because the
English language has changed over these 4 centuries since the time of
Shakespeare. Many of the words and expressions which were in vogue in
Shakespeares time in English are not in vogue today. Similarly, Sanskrit
language kept changing for about 1500 years, from 2000 B.C. to the 5th

century B.C., until Panini who, was the perhaps greatest grammarian the
world has ever seen, in his book Ashtadhyayi fixed the rules of Sanskrit in
the 5th century B.C. Thereafter no further changes in Sanskrit were
permitted, except some slight changes made by two other grammarians,
one was a man called Katyayana who wrote his book Vartika written about
100-200 years after Panini, and another was Patanjali who wrote his book
Mahabhashya about 200 years after Katyayana. Except for these slight
changes, what is taught in schools and colleges is really Paninis Sanskrit.
What Panini did was that he studied the crude Sanskrit prevailing in
his time and he rationalized it and meticulously systemized it, so as to make
it a powerful vehicle of expressing profound and abstract ideas.
Science requires precision. Panini made Sanskrit a powerful vehicle
in which scientific ideas could be expressed with great precision and with
great clarity and it was made uniform all over India, so that thinkers in one
part of the sub-continent could interact with thinkers of another part
easily. That was his great contribution.
I may give one small illustration, since a discussion on Astadhyayi
will take too much time. Take for example the alphabets in the English
language, from A to Z. Now they have all been arranged in a haphazard
manner. Why is B followed by C, why is D followed by E. There is no reason
why F comes after E, why P is followed by Q or Q is followed by R.
In Sanskrit, on the other hand what Panini did was that he arranged
the alphabets in a very scientific manner.

For example, take the

consonants. There is a sequence ka, kha, ga, gha, nga (called the `ka

varga). Now all these sounds come from the throat. Also the second and
the fourth consonants in this sequence are what are known as aspirants.
An aspirants means a consonant in which ha is added. For instance, ka +
ha is kha, ga + ha is gha, etc. Similarly, the second and fourth
consonants in every sequence (of 5 consonants) is an aspirant.

The sounds in the second sequence of 5 consonants (the `cha varga)

ch, cha, ja, jha, yan all come from the middle of the tongue. The sounds in
the `ta varga Ta, tha, da, dha, nda come from the roof of the mouth, the
sounds in the sequence ta, tha, da, dha, na come from the tip of the tongue,
the sounds in the sequence pa, pha, ba, bha, ma come from the lips. We can
see how scientifically these consonants are arranged. Thus even in such a
simple thing as the arrangement of alphabets a careful and scientific study
was done.
The second contribution of Sanskrit to the development of rational
and scientific thinking was the Nyaya Vaisheshik philosophy. There are six
classical systems of Indian philosophy, Nyaya, Vaisheshik, Sankya, Yoga,
Purva Mimansa and Uttar Mimansa, and three non-classical systems,
Buddhism, Jainism and Charvak. Out of these nine systems eight of them
are atheistic as there is no place for God in them. Only the ninth one, that is
Uttar Mimansa, which is also called Vedanta, has a place for God in it. One
of the classical systems is called the Nyaya system. The Nyaya system says
that nothing is acceptable unless it is in accordance with reason and
experience, which is precisely the scientific approach. Vaisheshik was the

physics of ancient times (the atomic or parmanu theory). Physics is part of

science, and hence at one time Vaisheshik was part of Nyaya philosophy.
However,

since

physics

is

the

most

fundamental of

all

sciences

subsequently Vaisheshik was separated from Nyaya and made into a

separate philosophy altogether.
It was the Nyaya Vaisheshik philosophy which provided the scientific
background and gave great encouragement to our scientists to propound
their scientific theories.

People in our country were not persecuted for

being scientists, unlike in Europe where scientists were burnt on the stake
like Bruno for propounding their scientific theories. Galileo was almost
burnt on the stake, and he narrowly escaped by recanting his views. As
recent as in 1925 in America a teacher John Scopes was criminally
prosecuted in the famous (or infamous) monkey trial for teaching Darwins
theory of evolution because it was against the Bible. This never happened
in our country because behind science was a scientific philosophy, that is
the Nyaya Vaisheshik philosophy, which says that nothing is acceptable
unless it is in accordance with reason and experience.

Before discussing the scientific achievements of our ancestors it may

be said that a lot of people talk non-sense that in ancient India there were
atom bombs, guided missiles, etc. We make a laughing stock of ourselves
by talking like this. Some people say that we had aeroplanes in ancient
India, because in the Ramayana it is mentioned that Lord Ram brought Sita
back from Lanka on a Pushpak Viman. They conclude from this that there

were aeroplanes in ancient India. Everyone, including children, know that

the first aeroplane was invented by the Wright brothers in America in
1903. So it is total nonsense to say that we had aeroplanes in ancient India.
Now it is true that in the Ramayana there is mention of
PushpakViman. But what is the Ramayana? It is an epic poem. A poet has
what is called poetic licence. That means that he has a right to exaggerate.
So we should not take words in a poem literally. If there were aeroplanes in
ancient India then that means there were engines. Then why did the
ancient warriors fight on chariots, horses and elephants, they should have
fought in tanks?
The real great achievements of our ancestors are not known to most
people and instead they talk such nonsense.
At one time we were leading the whole world in science and
technology. I may give you a few illustrations. The ancient Romans who
built a very great civilization, the civilization of Ceasar and Augustus, and
were the cultural ancestors of the Europeans, felt very uncomfortable with
numbers above one thousand.

This is because they expressed their

numbers in alphabets. One was I, five was V, ten was X, fifty was L,
hundred was 100, five hundred was D and 1000 was M. M stands for
millennium or one thousand. There was nothing above M. So if the
ancient Romans wanted to write 2000 they had to write MM, if they wanted
to write 3000 they wrote MMM, etc. To write one million they would have

to write M one thousand times, as that was the only way they could express
one million. On the other hand, our ancestors had invented the concept of
zero.

You see these numbers 1, 2, 3, 4, 5, 6 do not really exist, what exists is

one table, two chairs, three men, etc. These have existence in the objective
universe. One, two, three, four has no existence in the objective universe,
they are pure abstractions. And the concept of zero required a further
flight of imagination which Europeans could never achieve. The Arabs
borrowed it from us and the Europeans borrowed it from the Arabs. So we
could express numbers in astronomical terms. For example, one thousand
requires 1 with three zeros, add two more zeros it becomes one Lakh, add
two more zeros it becomes 1 Crore, two more zeros one Arab, two more
zeros one Kharab, two more zeros one Padma, two more zeros one Neel,
two more zeros one Shankh, two more zeros one Mahashankh, etc. Each
one of these large numbers have names.

At one time the numbers in the decimal system were called Arabic
numerals by the Europeans, but the Arabs called them Hindu numerals.
Are they Arab or Hindu numerals? Now these languages Arabic, Persian
and Urdu are written from right to left, but if you ask any writer of these
languages to write any number randomly, say 253 or 1045, he will write it
from left to right. What does it indicate? It indicates that these numbers

were taken from a language which was written from left to right, and now it
is accepted that the decimal system was invented by Indians who could
conceive very high numbers unlike the Romans.
For example, it is believed that Kaliyug in which we are living, has
4,32,000 years according to the Vishnu Puran. The yug (age) before
Kaliyug was Dwapar yug, in which Lord Krishna lived. That is twice as long
as Kaliyug, therefore it is of 8,64,000 years. Before that there was Treta
yug in which Lord Ram lived. It was thrice as long as Kaliyug. And before
that there was Satyug which is four times as long as Kaliyug. One Kaliyug
+ one Dawapar Yug + one Treta Yug + one Satyug is known as one
Chaturyugi, and one Chaturyugi is hence ten times as long as one Kaliyug
(1+2+3+4=10). That means one Chaturygi is 43,20,000 years long. 72
Chaturyugis make one Manwantra. Fourteen Manwantras make one Kalp,
and 12 Kalps make one day of Brahma. Brahma is said to have lived for
trillions of years.
When our traditional Hindus do their sankalp everyday they have to
mention the particular day, the yug, the chaturyugi, the Manvantara and the
kalp, and the date changes daily. For instance, it is believed that we are
living in the Vaivaswsat Manwantar. It is believed that out of the 72
Chaturyugis half have passed and we are in the second half of the
Vaivaswsat Manvantar.
We may not believe all this but look at the flight of imagination of our
ancestors. Similarly in various fields of science e.g. in Medicine we made

great advances. Sushruta invented plastic surgery 2000 years ago, but
Westerners invented it only 200 years back. Thus, Indians were far ahead
of Westerners in medicine. In astronomy, the calculations which were
made 2000 years ago are still the basis of predicting with great accuracy the
day and time of a Surya Grahan (Solar Eclipse) or Chandra Grahan (lunar
eclipse) by reading a patra. These calculations were made 2000 years ago
by our ancestors who did not have telescopes and modern instruments but
by sheer observation by the naked eye and the power of intellect they
predicted what is going to happen 2000 years in the future. This was the
scientific level which we had reached in the past, we were far in advance of
Westerners in science and technology at that time. Today we are far behind
them, so what happened? Why did we not have an Industrial Revolution?
Why did we lag behind?

This is known as Needhams question or

Needhams Grand Question, first posed by Prof. Joseph Needham, a

brilliant Professor in micro-biology in Cambridge University who was born
in 1990. Prof. Needham posed this question: why did India and China who
were ahead of the whole world in Science and Technology at one time later
fell behind and did not have an Industrial Revolution? This question has
been sought to be answered in various ways, but that discussion will have to
be held some other day.
As I was saying, Sanskrit was the language of people with an
enquiring minds, of people who enquired into every aspect of life and hence
in that sense it is the language of everybody who has a rational approach,
because the emphasis in Sanskrit is on reason.

Coming now to Urdu, in my opinion the best poetry in modern India

is in Urdu. I have read the poetry of many countries, England, America,
France, Germany, Russia etc., apart from reading some of the poetry of
Indian languages e.g. Tulsidas, Surdas, Kabir, etc. Tamil poetry, Bengali
poetry etc. but there is no match to Urdu because the voice of the heart
which is expressed in Urdu poetry, is, in my opinion, not expressed in any
language of the world.
About Urdu there is a misconception that it is the language of
Muslims and of foreigners, which is a totally false propaganda made against
Urdu after 1947.
Before 1947, all educated people in large parts of India were studying
Urdu. It was not the language of Muslims alone. It was the language of
Hindus, Muslims, Christians, Sikhs everybody.

But after Partition a

deliberate propaganda was made by certain vested interests that Hindi is

the language of Hindus and Urdu is a language of Muslims. This was done
to make Hindus and Muslims fight each other (part of the divide and rule
policy). A lot of effort was made to crush Urdu in India. But a language
which expresses the voice of the heart cannot be crushed as long as people
have hearts.
Unlike Arabic and Persian which are foreign language, Urdu is an
indigenous language, and is loved by the people of India even today. If you
go to a bookstall on a railway platform in India you will find a lot of poetry
books of Mir, Ghalib, Firaq, etc. of course, nowadays in Devanagiri script.
You will not find any book there of Mahadevi Verma or Sumitra Nandan

Pant, the Hindi poets. Very few people read Hindi poetry, everybody reads
Urdu poetry.
Urdu has a dual nature, it is a combination of two languages i.e.
Hindustani and Persian, that is why it was at one time called Rekhta, which
means hybrid. Since it is a combination of two languages, Hindustani and
Persian, the question arises: is it a special kind of Persian or a special kind
of Hindustani? The answer is that it is a special kind of Hindustani, not a
special kind of Persian. Why? Because the verbs in Urdu are all in
Hindustani. The language to which a sentence belongs is determined by the
verbs used in it not the nouns or adjectives.

In Urdu all the verbs are in

simple Hindi (which is called Hindustani or Khadi Boli). For example

Ghalib says; dekho mujhe jo deeda-e-ibrat_nigaah ho
meree suno jo gosh-e-naseehat_niyosh hai
The verbs dekho, suno, hai are all simple Hindi, though the nouns or
adjectives may be Persian or Arabian.
Urdu has a dual nature, because it is a combination of Hindustani
and Persian. Hindustani is the language of the common man, while Persian
is the language of aristocrats.
Where did Persian come from? Persian is the language of Persia, how
did it land up in India? To explain this it has to be noted that it often
happens that the elite or upper class of a society speaks a foreign language.
For instance, in India and Pakistan the elite speaks English. In Europe upto

the end of the 19th century the European aristocrats often spoke to each
other in French, though they would speak to their servants in the native
language. French was the language of the elite in large parts of Europe for
many centuries.
The elite wants to distinguish itself from the common people. In
India Persian was the language of the Court and of the elite for centuries.
Although Persian originated in Persia it later spread to much of South Asia.
This was because Persian writers like Hafiz, Firdausi, Sadi, Rumi, Omar
Khayyam, etc. developed Persian as a language of sophistication, culture,
etiquette and dignity and that was adopted by large parts of South Asia
including India. It was the Court language of India for several hundred
years. Akbars foreign minister Todarmal passed an order that all Court
records throughout the Mughal Empire will be maintained in Persian.
Urdu is the combination of Hindustani and Persian, and that is why it
has a dual nature. It is the common mans language, awaam ki zubaan,
because one part of it is Hindustani, the common mans language. It is also
the aristocrats language because another part of it is Persian which was the
aristocrats language. The content of Urdu, i.e. the feelings, emotions etc. in
it are of the common man. But the form, the style, the andaaz-e-bayaan is
that of an aristocrat. That is what gives Urdu such great power.
Urdu places more reliance on emotion and Sanskrit more on reason.
We require both for our countrys progress. In Europe they had two very
great thinkers, Voltaire and Rousseau, Voltaire emphasizing reason and
Rousseau emphasizing emotion. These two thinkers played a major role in

the creation of modern Europe. Similarly Urdu and Sanskrit complement

each other, and in fact, Sanskrit is the grand mother of Urdu because 70%
of the words in Urdu are from Sanskrit.
4.

Since there is so much diversity in India the only policy which will

work is the policy of secularism and giving equal respect to all

communities. Otherwise India will break up into a hundred pieces since
there is so much diversity.
Two people can be said to be the creators of modern India. One is the
Emperor Akbar, and the other is Pandit Jawahar Lal Nehru. There was no
ruler in the world like Emperor Akbar, who was far ahead of his times. In
the 16th Century Akbar proclaimed the doctrine of Suleh-e-kul which means
universal toleration of all religions.

At that time Europeans were

massacring each other in the name of religion, Catholics massacring

Protestants, Protestants massacring Catholics and both massacring Jews.
Similarly in recent times religious passions were inflamed in 1947 and
people had become like animals, Hindus and Muslims butchering each
other. Pakistan had declared itself an Islamic State. There must have been
tremendous pressure at that time on Pandit Jawarhlal Nehru and his
colleagues to declare India a Hindu State. It is their greatness that they
kept a cool head, and said that India will not be a Hindu State but will be a
Secular State and provided this in our Constitution. For this reason today
we have relatively more stability as compared to neighbouring countries.

In this connection I wish to tell you that the initial Muslim invaders
who came into India no doubt broke a lot of Hindu temples, like for
instance, Mahmood Ghazni who broke the Somnath temple. However, their
descendents who became local Muslim rulers in various parts of India, far
from breaking temples used to give grants to temples and celebrated Hindu
festivals like Holi and Diwali. For instance, Babar was an invader but
Akbar was not an invader, he was born in India and was very much an
Indian. Now the descendents of those invaders who became local Muslim
rulers had a population of 80-90% Hindus. If they broke temples there
would be a revolt or turmoil which no ruler wants. So in their own interest
every one of the local Muslim rulers fostered communal harmony, they
gave grants to Hindu temples, they celebrated Hindu festivals.

For

instance, the Nawab of Avadh used to organize Ramleela, and celebrate Holi
and Diwali. Tipu Sultan used to give annual grants to 156 Hindu Temples,
his Prime Minister was a Hindu called Punaiya his commander-in-chief,
was a Hindu called Krishna Rao. Tipu Sultan sent 30 respectful letters with
grants to the Shankaracharya of Shringeri (see online History in the
Service of Imperialism which is a speech given by Prof. B. N. Pandey in the
Upper House of the Indian Parliament in 1977).
Now the first part, that the Muslim invaders broke temples, has been
mentioned in our history books, but the second part, which is of ten times
longer duration, that the descendents of these invaders, who were local
rulers used to foster communal harmony, they used to give land grants for
building Hindu temples, they celebrated and organized Hindu festivals, etc.

has been deliberately suppressed by the British from our history books, the
whole game being divide and rule. Hindus and Muslims must be made to
fight each other. If you go on line and read the speech History in the
Service of Imperialism by Professor B. N. Pandey, you will read how the
British policy was to make Hindus and Muslims inimical to each other. For
instance, Dr. Pandey has mentioned that in 1928 when he was a Professor
of History in Allahabad University some students came to him with a book
written by one Professor Harprasad Shastri, Professor of Sanskrit of
Calcutta University in which it was mentioned that Tipu Sultan told 3000
Brahmins to convert to Islam otherwise they will be killed, and those 3000
Brahmins committed suicide rather than becoming Muslims. On reading
this Professor B. N. Pandey wrote to Professor Harprasad Shastri asking
him the source of his information? Prof. Shastri wrote back that the source
of information is the Mysore Gazetteer. Then Prof. Pandey wrote to Prof.
Shrikantia, Professor of History in Mysore University asking him whether it
is correct that in Mysore Gazetteer it is mentioned that Tipu Sultan told
3000 Brahmins to convert to Islam. Prof. Shrikantia wrote back that this is
totally false, he had worked in this field and there is no such mention in the
Mysore Gazetteer, rather the correct version was just the reverse, namely,
that Tipu Sultan used to give annual grants to 156 Hindu Temples, he used
to send grants to the Shankaracharya of Shringheri, etc.
Now, just imagine what mischief has been done. Deliberately our
history books have been falsified so that the mind of a child at an
impressionable age is poisoned so that he should start hating Muslims in

India and in Pakistan he should start hating Hindus. The poison put in the
mind of an impressionable age is very difficult to remove at a later age. All
our history books have been falsified in this manner.
It is time we re-write our History books and show that in fact upto
1857 there was no communal problem at all in India. A composite culture
in India had been developing.

Hindus used to participate Eid and

Muharram, and Muslims used to participate in Holi, Diwali etc. There were
some differences no doubt but they were becoming narrower.
In 1857 the great Mutiny took place. Hindus and Muslims jointly
fought against the British. After suppressing that Mutiny it was decided by
the British rulers that the only way to control this country to divide and
rule. In other words, Hindus and Muslims must be made to fight each
other. All communal riots start after 1857. The English Collector would
secretly call the Hindu Pandit and give him money to speak against
Muslims, and similarly he would secretly call the Maulvi and give him some
money to speak against Hindus. A beautiful racket was started in this way,
and this resulted ultimately in the partition of 1947.
Now the time has come when we must see through this game. How
long are we going to be taken for a ride? Are we fools that anybody can
come and make fools out of us and make us fight each other?
About two months back I read in the newspapers that there was
some violence in Aligarh Muslim University, and the University had to be
closed for some days. I thought that it was a Hindu Muslim issue but some
friends of mine from Aligharh came to Delhi and said it was not a Hindu-

Muslim issue but it was Azamgarhi versus Biharis. I said what! What
nonsense! We should be united, and brothers of each other. We should be
one country, instead we are fighting on such silly matters.
In Maharashtra some people have proclaimed a bhumiputra theory
(son of the soil theory). They say that only Maharashtrians should be
allowed to live in Mahrashtra. South Indians, UPites, and Biharis should
get out of Maharashtra. Such people do not realize that in that case they
will also have to leave Mahrashta because they also are not bhumi putras.
Bhumi putra are hardly 7 or 8 % of the people living in Maharashtra e.g. the
Bheels and other adivasis (tribals). This is a country of immigrants.

5.

India is passing through transitional period, transition from feudal

agricultural society to modern industrial society. We are presently neither

totally feudal nor totally modern. We are somewhere in between.
The transition period is a very painful and agonizing period in
history. In my opinion the duty of all patriotic people is to help in
shortening this transitional period, in reducing this pain, although we
cannot totally eliminate it because there is going to be turmoil in this period
since the vested interests in the old feudal order will not give up their
vested interests without a fierce struggle. We have to spread rational and
scientific ideas in this period and combat casteism communalism and
superstitions, in order to get over the transition period faster and with less
pain.

Here is where the role of the Judiciary becomes very important. In

Northern India in some States e.g. western U.P, Haryana, Rajasthan etc.
(also in Pakistan) there is the phenomenon called honour killing. If your
daughter falls in love with a boy of another caste or religion, or within the
same village or in the same Gotra, both are killed, and often brutally
murdered. This has been happening in a very large scale in some areas, and
sometime it is organized by caste panchayats. The problem is that the Chief
Ministers are often unwilling to interfere because these caste Panchayats
supply the vote banks to the politicians. In India politics often runs on caste
on religious basis. Therefore, the Chief Minister does not want to annoy
them, he will not interfere, and the District Magistrate and Superintendent
of Police even though they know that this honour killing is going to take
place (through their intelligence agencies) will not interfere out of fear that
if does so the Chief Minister will get angry with him.
But a Judge is not dependent on any ones votes, and that makes him
very strong, in fact, it makes him more democratic than the so called
democratic bodies because he is not bothered about votes. The Supreme
Court therefore passed the order that those who do honour killing will be
given

mandatory

death

sentence

and

the

District

Magistrate

and

Superintendent of that area must be immediately placed under suspension.

This was a very strong judgment after which honour killing has
considerably declined. This could not have been done by the politicians
because they are dependent on the votes of these people. So, here is where
the Judiciary becomes very important, by the very fact it is undemocratic.

It is true that in India there is rampant corruption and this is a matter

of shame. Here is where the Judiciary is playing a little role. Recently the
Supreme Court passed strong orders in the 2G scam case. The result was
that one cabinet Minister was dismissed, and he is in jail, one Member of
Parliament, daughter of a Chief Minister, was in jail, and other steps are
also being taken.
However, Judges are not Gods, who can solve all problems.
Ultimately it is the people themselves who have to solve their problems.

I will conclude by one couplet of Faiz Ahmed Faiz whose centenary we

are celebrating this year. The greatest Urdu poet ever was of course Ghalib
but in the 20th century the greatest poet in my opinion was Faiz and I would
like to quote from his famous poem;Gulon mein rang bhare baad-e-naubahaar chale
Chale bhi aao ke gulshan ka kaarobaar chale

What does this mean? Urdu poetry often has an outer, superficial
meaning and an inner, real meaning. The outer, superficial and literal
meaning of the above couplet is:
In

the

blowing

flowers

the

colourful

breeze

of

the

new

spring

is

come forward, so that the garden can

function
However the inner real meaning of the couplet is that the objective
situation in the country is ripe which invites the patriotic people now to

come forward to serve the country. The word gulshan literally means
garden but here it means the country. So it is a call to the people of the
country to come forward since our country is in difficulties and you are
required now to help it.
Question answer

Tell me what went wrong in the Aurangzeb era where million of

Hindus were converted into Muslims? How it changed the entire picture,
what was going on?
A.

In the article History in the Service of Imperialism (available online)

it is mentioned that Professor B.N. Pandey, former Professor of History of

Allahabad University and former Governor of Orissa delivered a speech in
the Rajya Sabha, the Upper House of Parliament, in which he said that
when he was Professor of History some people brought some documents
showing that Aurangzeb had given grants to Hindu Temples, he gave grants
to the Someshwar Mahadev Temple in Allahabad, he gave grants to the
Mahakal Temple in Ujjain, one of the biggest Shiva temples, he gave grants
to the Chitrakut Temple where Lord Ram spent 12 years of His exile. He
thought these must be forgeries because Aurangzeb was said to be the
destroyer of Hindu temples. He took these documents to Sir Tej Bahadur
Sapru, who was a top lawyer in Allahabad High Court and also a great
scholar of Persian and Urdu scholar. Sir Tej Bahadur Sapru examined
these documents very thoroughly and he found that they were genuine
documents. Now this seemed very strange, a person who was supposed to

be the destroyer of Hindu temples, had given grants to many Hindu

temples. So what I am trying to tell you is please keep an open mind.
I went to Bikaner about 10 years back and I went to the palace of the
Maharaja of Bikaner, a part of which has been converted into a Museum. I
went to the Museum, and at one place there was a letter of Aurangzeb
written to the new Maharaja of Bikaner. His father had died and the son
who was about 20 years of age became the new Maharaja. Aurangzeb wrote
in this letter, which was exhibited there in English translation, that I know
what it means to lose a father, and I know how sad you must be, but do not
worry I will be like a father to you, tell me anything you require I will send it
to you. It was a very kind and tender letter.
Now, this was a different Aurangzeb. What I am trying to say is that
more research on Aurangzeb is required because he has been demonized
totally. As I said, in our history books the demonization of Muslim rulers
has been done very systematically by the British, so as to generate HinduMuslim hatred. But the fact that Muslim rulers used to promote communal
harmony, they used to organize Hindu festivals like Ramleela and so on,
they used to give grants to Hindu temples, this will not be found in any
history books.

It has been very conveniently suppressed.

So about

Aurangzeb also I would request you please read that speech History in the
Service of Imperialism, it is online, and more research is required. I would
request that about Aurangzeb please keep an open mind.

Q.

I just want to understand your opinion on the Constitution that we

created after Independence, the Indian Penal Code, Hindu Law and Islam
and what impact it has had in todays communal disharmony having those
three different Laws? Particularly, one is Hindu versus Islamic Law and
monogamy versus polygamy and all these issues and about property.
Should it be abolished or should there be only one uniform law like the one
in US?
A.

Regarding this question of uniform Civil Code, my opinion is that this

is for Parliament to decide, not for the judiciary to decide, because making
law is the job of the Legislature not of the Judiciary. It is for the Parliament
to make one common Civil Code or not to make it. Judges cannot legislate,
legislation is the task of the legislature. It is not proper for Judges to
interfere in it. It is a highly sensitive matter, as you know some people have
been trying to promote communal hatred in our subcontinent. Please let us
not give them further ammunition for that.
Q.

The example you gave in Ireland, the contraception example, this is a

similar case. The judiciary should come in here.

A.

Listen you must realize one thing: in our country we must cater to

aspirations of different people, in fact that is why we have federalism.

Federalism means catering to regional aspirations. Thus, in Nagaland,
there is a State Legislature for Nagaland and in this way the Naga people are
happy, there is also a Central Government which looks after everybody.
Similarly, in the State of Tamil Nadu there is a State Legislature for them,
and so on. You have to cater to regional aspirations. You cannot have

uniformity. Our country will break up into a hundred pieces the moment
you try for uniformity. India has such tremendous diversity, the moment
you go in for uniformity, one uniform Civil Code, one this, one that, then
you will have one hundred countries, you will not have one country and that
will be fatal for us because modern industry requires a big market. We
must keep united. Today in our Constitution there is a provision that trade
and commerce shall be free throughout the territory of India (Article 301).
What does it mean? It means that a factory in Tamil Nadu can sell its goods
freely in UP or Punjab or anywhere. The UP Government cannot say we will
not allow entry of goods from Tamil Nadu. Article 301 ensures the economic
unity of India, and political unity is based on economic unity.
Q.

I have one comment and one question, the comment is that not many

people have migrated but 180,000 Roman people (gypsies) migrated out of
India. They are called Roma people in Southern Europe and Rumania and
Bulgaria, they are all from India?
A.

They are not from India. Please use your common sense, if you

wanted to go to Europe you had to go on foot in those days, there were no

aeroplanes and trains. You would have to go via Afghanistan to Russia and
then to Europe. Why should a large number of people do that? Everybody
wants comfort, why should you leave India and go to such an uncomfortable
place like Afghanistan? You have to go through Afghanistan and Russia to
reach Europe. Will you leave such a comfortable country like India and go
to Afghanistan which is cold and rocky, you will have to travel through

Afghanistan? Who will do it, it is against common sense. A handful of

traders or missionaries may do it, but not a large number of people?

Q.

Firstly, thank you very much, it is a real honour to have a word with

you. I have a very simple question, there is a huge august gathering here of
the Indian Diaspora. You said that the time has come for people to actually
contribute and help India to make that transition. In your view what are
the few things that you think that people here can do to sort of help India
which will have the most impact in sort of helping us overcome that
transition?
A.

First of all, in the transitional period, it is absolutely essential to

explain to people what is India, and that is what I have sought to do in the
talk I have given today. First of all clarification of your ideas is very
important, because once you realize that this is a country of immigrants, it
follows that there must be tolerance, in view of the tremendous diversity we
must respect each other, we must treat everybody as equals, and in this way
half the battle is won by that itself, and then our own people will solve their
problems. Once they are told not to fight each other and that we should be
like brothers, we should help each other, half the problem is solved just by
that. So the first thing what everybody has to do, including all of you, is to
tell the people what is India. There was no communal problem until the
British came and started sowing the seeds of hatred between Hindus and
Muslims, falsifying our history deliberately, and starting all these problem.
So educating the people, that is the first step. How many people know that

India is a country of immigrants? How many people know that we have a

common culture called Sanskrit-Urdu culture? First the educated people
have to be educated, and thereafter this will filter down and our country
will move forward, there is no doubt about that.
Q.

My question is why people in India do not follow traffic rules? Is it

the transition to industrialization or is it the lack of law enforcement or is

there something intrinsic in our culture?
A.

No, as I told you we are passing through a transitional period

between feudal agricultural society and modern industrial society, we are

somewhere in between. So a large section of our people are still not
modern, they do not follow rules. For example, just take a simple thing,
when I come to America, I stay with my daughter Vandana, my job which
Vandana has given me, is everyday to take the garbage from the house and
take it outside and put it in a huge garbage bin. In India you take the
garbage and throw it out of the house. While traveling on a car we throw out
the garbage and anything outside. In the West it is taught in childhood to a
child that littering garbage is not proper, the value is put in you by your
parents in childhood that this is not done. Garbage must be put it in the
garbage bin. On the other hand, in India because people are still partly
feudal and backward, not completely modern, therefore these values are
not there, they will come after 10-20 years when we also become
industrialized.

But at present people just throw out the garbage,

everywhere in India you will find a huge pile of rubbish, on every road you
will find rubbish, people moving by the car just throw out the garbage,

nobody cares. That mindset has to be created, it is not created in one day, it
requires a whole generation to create it.
In London the whole Thames river upto the 19 th century was full of
sewage, people used to just dump the sewage there, today it is clean. So it
will come when we will become totally modern, that will take time.
Q.

My question is going back to the ancient times in India. How did the

caste system evolve? Who created this caste system in India and why does it
still linger on and why is it still so powerful in India?
A.

Caste system originated from a racial basis, that is, a white race, the

Aryans came to India and conquered a dark coloured race, and the proof
of this is that even now India is a racial society, we prefer white colour
When we advertise in newspapers we say wanted fair colour bride, when
a child is born if the colour is fair, the grand mother is very happy. But,
having originated from a racial basis caste later on developed into the
feudal occupational division of labour in society. That means that every
vocation became a caste, like for instance, carpenter badhai

became a

caste, lohar, blacksmith became a caste, potter, kumhar became a caste

etc.
This happened in Europe also, it is nothing unique in India. Even
today in England a large number of people have surnames like, Baker,
Butcher,

Gardener,

Mason,

Carpenter,

Shoemaker,

Smith,

Potter,

Goldsmith, Taylor, Barber, etc. What does this indicate? It indicates that
their ancestors were following these professions. In those days, there was
no engineering colleges or technical institutes, the only way to learn a trade

or craft was to sit with your father since childhood and see how he works.
Supposing, your father is a carpenter, you sit with him when you are 6 or 7
years of age, you see how is working and he also guides you and you pick up
the trade. So you had no right to choose your profession, you had to follow
your fathers profession because there was no other way to learn a trade or
occupation.
So caste system was in Europe also, it was on vocation basis, every
vocation became a caste. Today, the situation is totally changed. For
instance if a person of the badhai (carpenter) caste comes from a village to
a city he becomes a motor mechanic or electrician or clerk, he does not now
do the job of carpenter which was his caste. So now people are not following
their fathers profession on a very large scale. Many of you are here, are
you following your fathers profession? Many of your fathers were lawyers,
but now you are entrepreneurs. When this happens on large scale the very
basis of caste has been smashed because of the advance of technology. Now
the caste system is being propped up by certain politicians for their vote
banks. But when the foundation of a building has been smashed by the
advance of technology how long can that building be artificially propped
up? In my opinion caste will last only for another 10 or 20 years. Now
people are not bothered about what is your caste. If you go for a job in
some place nobody asks what is your caste, they will see your resume, your
CV, your technical achievements.

The Importance of Liberty &

Democracy in India
By :Justice Markandey Katju, Judge,
Supreme Court of India
In view of the recent incidents of terrorism in some
places in India some people have started saying that
to combat terrorism it is necessary to curtail civil
liberties and introduce draconian laws. To my mind,
this is a dangerous idea, and hence it is necessary to
explain the importance of liberty and democracy for
our countrys progress. Nobody denies the need to
oppose terrorism, but in my opinion by passing
draconian laws, terrorism and crime will not be
reduced and instead our countrys progress will be
obstructed.
What is our national aim ? To my mind, our national
aim must be to make India a highly prosperous
country for its citizens (and not just for a handful of
people of our country), and for that it is necessary to
have a high degree of industrialization.
Even setting up and running a single primary school
requires a lot of money, e.g. for buying land, erecting
the school building and providing for the recurrent
expenditure for salaries of teachers, staff, etc. We
have to set up in our country not just one primary
school, but hundreds of thousands of primary schools,
tens of thousands of high schools and colleges and
engineering colleges, technical institutes, medical
colleges, scientific research centres, hospitals,
libraries etc.
Where is the money for all these to come from ?
Money does not fall from the sky. It can only come

The Mimansa Principles of Interpretation

by Justice Markandey Katju*

Cite as : (1993) 1 SCC (Jour) 16

In ancient and medieval India there was tremendous development not only in the fields of
Science and Philosophy, but also in the field of law. However, the advent of British rule denied
us the benefits of these developments as the alien rulers made it a policy to demoralise and
denigrate us by propagating the idea that Indians were a race with no worthwhile achievement to
their credit.
In this article only one aspect of our native Jurisprudence, viz. our traditional principles of
interpretation, has been dealt with, and the aim is to show that the propaganda of Westerners is
false.
As is well known, the principles of interpretation of statutes mainly relied on in our law courts
are those dealt with in the works of Western jurists like Maxwell and Craies. However, in our
country we had developed from very early times a scientific system of interpretation known as
the Mimansa Principles1 and these were regularly followed by our renowned jurists like
Vijnaneshwara (author of Mitakshara), Jimutvahana (author of Dayabhag), Nanda Pandit (author
of Dattak Mimansa) etc. Whenever there was any conflict between the Smritis e.g. Manusmriti
and Yagnavalkya Smriti, or ambiguity in a Shruti or Smriti, the Mimansa Principles were
applied. Most of these principles are rational and scientific, and in some respects superior to the
principles obtaining in Western Law. At present there is no reason why we should not apply them
in appropriate cases.
As a Judge I think it should be my effort to revive the use of these principles. In a recent
case, Tribhuwannath v. D.I.O.S., Writ Petition No. 17544 of 1990 decided on 30-3-19922 one of
these principles was applied. In this case the petitioner, who was the seniormost teacher in an
Intermediate College, had filed a writ petition in the Allahabad High Court claiming that he
should have been appointed ad hoc Principal on the retirement of the previous Principal, but the
management had superseded him. In the course of hearing two Division Bench decisions
apparently conflicting with each other, were cited. While the Division Bench ruling written by
Hon'ble R.M. Sahai, J. had held that the seniormost teacher should be appointed ad hoc Principal
the Division Bench ruling delivered by Hon'ble V.N. Khare, J. had held that it is the discretion of
the Management as to who is to be appointed. By way of employing the Samanjasya principle of
Mimansa it was easy to reconcile the conflicting decisions by holding that the former decision
should be interpreted to mean that ordinarily the seniormost teacher should be appointed
Principal, while the latter decision should be interpreted to mean that in exceptional cases, viz., if
there are grave charges against him, he can be superseded by a reasoned order, though only after
giving him a show-cause notice.
The Mimansa or the Purva Mimansa Rules to be exact, were laid down by Jaimini in
his Sutras written around 600 B.C. That they are very ancient is proved by the fact that they are
referred to in many Smritis which themselves are very old. Thus, the Apastamba Sutras
copiously refer to Jaimini's principles. Since these Sutras are written in very concise form it
became necessary to explain them. Many commentaries were written on them, the main ones
being of Sabara, who lived around Second Century A.D., and Kumarila Bhatta and Prabhakara,
who lived around the Eighth Century A.D.

Before mentioning some of the Mimansa Principles it is necessary to give a short background.
Classical Hindu Philosophy has six schools (shatdarshan) all of which aim at Moksha
(liberation). Purva Mimansa is one of these schools, and according to it one can achieve Moksha
by performing Yagya (sacrifice) in accordance with the Shastras. The Shastras consist of Shruti
and Smriti, the former being superior to the latter. Shruti consists of the four Vedas, the
Brahmanas, the Aranyaks and the Upanishads. Brahmanas are treatises written in prose which
prescribe methods of performing various Yagyas. To every Veda one or more Brahmanas are
attached. Thus, the Aitareya Brahmana is attached to the Rig Veda, the Taitareya Brahmana to the
Black Yajur Veda, the Shatapatha Brahmana to the White Yajur Veda, and the Tandya Brahmana
to the Sama Veda.
After Shankaracharya's renowned victory over Mandan Misra, Purva Mimansa, as a philosophic
system, declined in importance. Shankaracharya was a proponent of Uttar Mimansa (also known
as Vedanta), according to which Moksha can be achieved by knowledge of Brahma.
Shankaracharya preached that Jnanakanda (the Vedantic Path) is superior to Karmakanda (the
performance of Yagya). He shifted the emphasis in the Shrutis from the Brahmanas to the
Upanishads, and his view was accepted, and ever since Vedanta became the dominant school of
Hindu philosophy.
However, though Purva Mimansa lost prominence to Vedanta in Philosophy, its importance
remained as paramount as before in the legal sphere. It must however be clarified that the
Mimansaks were not jurists. Their aim was to perform the Yagya properly, for they sincerely
believed that this was the means to achieve moksha. For the conduct of Yagyas in accordance
with the rules they had to devise a system of interpretation to resolve the conflicts, ambiguities,
etc. in the Shrutis, which were aggravated by the archaic, pre-Panini Sanskrit employed in the
Vedic texts. No doubt the principles of interpretation were initially evolved to resolve conflicts
that arose in connection with the meaning of rules governing performance of the Yagya, but
gradually these principles came to be accepted for interpreting legal texts also which were mixed
up with religious rules in the Smritis. It was therefore natural that our great commentators like
Vijnaneshwara, Jimutvahana, etc. had utilised these Mimansa principles whenever faced with
any ambiguity or conflict in the various Shastras.
Unfortunately, there has not been much effort to explain these principles. The advent of AngloSaxon Law must have been responsible for this lack of study.
The Mimansa principles are in two respects superior to Maxwell's principles of interpretation,
viz.: (1) They can be utilised not only for interpreting statutes but also judgments, whereas
Maxwell's principles can only be used for interpreting statutory law, (2) They are more detailed
and systematic.
The Mimansa Principles distinguish between obligatory statements and non-obligatory
statements. The main obligatory rule is called a Vidhi (or a Pratishedh, if it is in negative form).
Vidhis are of 4 types, (1) Utpatti Vidhi, or a substantive injunction (e.g. 'perform the agnihotra'),
(2) Viniyoga Vidhi, or applicatory rules (e.g. 'with curdled milk perform the agnihotra'), (3)
Prayog Vidhi, or rules of procedure, and (4) Adhikara Vidhis (rules regarding rights and personal
competence). Apart from these Vidhis proper (mentioned above) there are also certain quasi
Vidhis called niyamas and parishankhyas, but it is not necessary to go into details here. Vidhis
are found in Brahmanas.
The main non-obligatory statement is known as an Arthavada. An Arthavada is a statement of
praise or explanation. Most of the Vedas proper consist of Arthavadas as much of the Vedic
hymns are in praise of some god, and do not lay down any injunction. Arthavada is like the

preamble or statement of objects in a statute. An Arthavada has no legal force by itself, but it is
not entirely useless since like a statement of objects or preamble it can help to clarify an
ambiguous Vidhi, or give the reason for it. Sometimes a Vidhi is also seen couched in the form of
Arthavada. This situation has necessitated the need for evolving a system of interpretation. Six
axioms of interpretation have therefore been developed for the interpretation of shastras3 They
are:
(1) The Sarthakyata axiom, which means that every word and sentence must have some meaning.
(2) The Laghava axiom (Gauravah doshah), which states that that construction which makes the
meaning simpler and shorter is to be preferred.
(3) The Arthaikatva axiom, which states that a double meaning should not be attached to a word
or sentence occurring at one and the same place. Such a double meaning is known as a
Vakyabheda, and is a fault (dosh).
(4) The Gunapradhan axiom, which states that if a word or sentence purporting to express a
subordinate idea clashes with the principal idea the former must be adjusted to the latter, or must
be disregarded altogether.
(5) The Samanjasya axiom4 which states that all attempts should be made at reconciliation of
apparently conflicting texts. Jimutvahana has applied this principle for reconciling conflicting
texts of Manu and Yajnavalkya on the right of succession.
(6) The Vikalpa axiom, which states that if there is a real and irreconcilable contradiction
between two legal rules having equal force, the rule more in accordance with equity and usage
should be adopted at one's option. Thus where one of the rules is a higher legal norm as
compared to the other, e.g. a Shruti in relation to Smriti, by the Badha principle5 the former
prevails.
It may be mentioned here that the Mimansaks made every effort to reconcile conflicts, and held
that Vikalpa was to be resorted to only if all other means of reconciliation failed, for Vikalpa had
eight faults (dosh).
Apart from the above mentioned axioms of interpretation there are the four well-known general
principles of interpretation in Mimansa, viz.:
(1) the Shruti Principle, or the literal rule. This is illustrated by the well-known Garhapatya
maxim. There is the Vedic verse "Aindra garhapatyam Upatishthate" (with the Indra verse one
should worship Garhapatya). Now this Vidhi can have several meanings e.g. (1) One should
worship Garhapatya (the household fire) with a verse addressed to Indra, (2) One should worship
both Indra as well as Garhapatya, (3) One should worship either of the two. The correct
interpretation, according to the Shruti principle, is the first interpretation.
(2) the Linga principle (also called Lakshana artha) or the suggestive power of words or
expressions. This principle can be illustrated by the decision of the Supreme Court in U.P.
Bhoodan Yagna Samiti v. Brij Kishore6, where the words "landless person" were held to refer to
landless peasants only and not to landless businessmen.
(3) the Vakya Principle, or syntactical arrangement, and
(4) Prakarana, which permits construction by referring to some other text in order to make the
meaning clear.
The first principle (Shruti) is to be resorted to if (1) the meaning of the text is clear, and (2) it
accords with the intention. But there are texts whose meaning seems to be clear, but to give that
literal meaning would totally undermine its intention. For example, if a literal meaning is to be
given to the English law which forbade a layman to 'lay hands' on a priest, the layman who
wounded a priest with a weapon would not be doing anything illegal. Similarly on a literal

construction when the Turkish Sultan Mohammed II sawed the Venetian Governor's body in two
it was no breach of his promise to spare his head, and Tamarlane's burying alive a garrison was
no violation of his pledge to shed no blood.
We see therefore that the literal rule will sometimes lead to absurdity and totally efface the
intention of the law. In fact, as Lord Denning7 has pointed out, the modern method of
interpretation is to seek the intention rather than to follow the literal rule. This is signified in the
decision of the Supreme Court of India in Charan Lal Sahu v. Union of India8 The Mimansaks
were great intention seekers, and the Linga, Vakya and Prakarana principles all aim at finding the
intention of the law.
Only the broad outlines have been indicated above, but it has to be noted that the Mimansa
Principles go into minute details and systematically arrange the principles of interpretation into
categories and sub-categories with all their ramifications. For example, the Vakya principle
(mentioned above) include adhayahara and anusanga (supplying of missing words and
expressions), upakarsha and apakarsha (transference of clauses up or down in the sentence), etc.
To give an illustration of the anusanga principle9 (elliptical extension) it is interesting to see how
Jimutavahana interpreted the text of Manu which states "Of a woman married according to the
Brahma, Daiva, Arsha, Gandharvaand Prajapatya form, the property shall go to her husband, if
she dies without issue. But her wealth, given to her on her marriage in the form called Asura,
Rakshas and Paisacha, on her death without issue shall become the property of her parents".
Jimutavahana employing the anusanga principle interpreted this text to the effect that the words
"wealth given to her on her marriage" should also be inserted in the first sentence after the words
"the property".
The difference between the Linga principle and the Vakya principle may also be noticed. In the
former no violence is done to the wording of the text, but the words or expressions are construed
differently from the literal sense, and hence Linga is really construction by context. In Vakya,
however, some violence is done to the text e.g., by connecting two separate sentences, or by
adding words or expressions, or by transferring words or expressions up or down a sentence.
This violence may sometimes become necessary to save the text from becoming meaningless or
absurd, just as the surgeon may have to do violence to the body (by operation) to save the
patient's life. For this purpose the Uha principle (use of reason) is employed.10 In this connection
it may be mentioned that Maxwell also permits doing violence to the statute in exceptional
situations. He says "where the language of a statute, in its ordinary meaning and grammatical
construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to
some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction
may be put upon it which modifies the meaning of the words, and even the structure of the
sentence. This may be done by departing from the rules of grammar, by giving an unusual
meaning to particular words, by altering their collocation, by rejecting them altogether, or by
interpolating other words, under the influence, no doubt, of an irresistible conviction that the
legislature could not possibly have intended what the words signify, and that the modifications
thus made are mere corrections of careless language and really give the true intention". This
approach seems to have been followed by the Supreme Court in S.S. Kalra v. Union of India11,
wherein it has observed that sometimes courts can supply words which have been accidentally
omitted.
Apart from the above mentioned principles of interpretation there are also a large number of
popular maxims (nyayas) which are in essence illustrations of the above principles. Thus, in

theTribhuwannath case 1 (supra) the maxim of the lost horses and burnt chariot
(Nashtashvadagdharatha nyaya) was applied for harmonising two apparently conflicting
decisions of the Allahabad High Court. Similarly, there is the maxim 'the popular sense prevails
over the etymological sense' which is illustrated by the word 'Pankaj'. This word literally means
anything born in mud and therefore can refer to dozens of things. But by usage it has come to
mean only lotus.
There are various other such maxims (nyayas) e.g., the Aruni maxim, holika maxim, barhi
maxim, shodashi maxim, garhapatya maxim, the maxim of the wooden sword (sphadi nyaya) the
partridge (kapijjala) maxim, the maxim of the two monsters (sundopsunda nyaya), the maxim of
the larger fish eating the smaller fish (matsya nyaya) etc.12 Nyayas are extremely useful in
understanding the principles of interpretation. In fact many of these maxims have been used by
our commentators.13
Application of Mimansa principles sometimes lead to different results. For example, there is a
text of Vasishta which says "a woman should not give or take a son in adoption except with the
assent of her husband". This has been interpreted in 4 different ways by our commentators. (1)
The Dattak Mimansa holds that no widow can adopt a son because the assent required is assent
at the time of adoption, and the husband being dead no assent of his can be had at the time of
adoption. Vachaspati, of the Mithila School of Mitakshara, is of the same opinion, but for a
different reason. According to him, adoption can only be resorted to after performing the homa,
and since a woman cannot perform the homa with Vedic mantras, she cannot adopt. (2) The
Dayabhaga view is that the husband's assent is not required at the time of actual adoption, and
hence if the husband had given assent in his lifetime his widow can adopt after his death. (3) The
view of the Dravida School of Mitakshara is that the words "except with the assent of the
husband" are only illustrative, and hence assent of her husband's agnates or father-in-law's
agnates is sufficient. (4) The Vyavaharmayukha and Nirnayasindhu hold that assent is required
only for the woman whose husband is living and hence a widow can freely adopt unless she had
been expressly forbidden by her late husband. To give another example, both the Mitakshara and
Dayabhaga use mimansa principles in interpreting the Smritis but with different results. For
example, the word 'sapinda' has been interpreted differently in Dayabhaga and Mitakshara. Both
these systems lay down that the nearest Sapinda has the right to inherit, but according to
Dayabhaga 'Sapinda' means the person who has the right to offer the pinda (rice balls) in the
shraddha ceremony to the deceased, while the Mitakshara interprets the word 'pinda' to mean
particles of the body, and not rice balls, and hence sapinda means one having the same particles
as the deceased (i.e. nearer in blood).
The fact that Mimansa principles sometimes lead to different results however does not diminish
their utility. Maxwell's principles also lead to different results. This only shows that principles of
interpretation should not be applied blindly. Principles of interpretation are good servants but bad
masters, as observed by the Supreme Court in Keshavji Ravji and Co. v. C.I.14 They are to be
utilised for discovering the meaning of the legal text, but they are not to be applied without
having regard to the context and commonsense and reason. They are, after all, not rules of law
but a methodology for resolving certain difficulties.
It is also pertinent to mention the mimansa principles were originally evolved for interpreting the
religious texts pertaining to the Yagyas, and hence all of them may not be relevant for
interpreting legal texts.
In conclusion I would like to clarify that it is not my opinion that we should not use the sound
and useful ideas of Western jurists like Maxwell. It would be foolhardy to discard the good ideas

of Western jurists. It has never been the Indian tradition to reject foreign ideas, merely because
they are foreign. There are many good things we have to learn from Westerners. But at the same
time we should not blindly ape the Westerners and discard our own traditional ideas if they are
found still useful and relevant. After all we too have produced great thinkers, and we can utilise
their sound ideas wherever appropriate after making suitable adaptations to suit the prevailing
conditions.
Utilization of Mimansa Principles

Knowledge of Mimansa Principles enables one to creatively develop the law. A few examples of
utilization of Mimansa Principles in some of my judgments is given below:
1. In Sardar Mohammad Ansar Khan v. State of U.P.15 the controversy was as to which of two
clerks appointed on the same day in an Intermediate College would be senior, and hence entitled
to promotion as Head Clerk. Now there is no rule to cater to this situation. However, Chapter 2,
Regulation 3 of the U.P. Intermediate Education Regulations states that where 2 teachers are
appointed on the same day, the senior in age will be senior. Using the atidesh Principle of
mimansa it was held that the same principle which applies to teachers should be also applied to
clerks, and hence the senior in age would be senior. The atidesh principle originated in the
practical difficulty of performing certain yagyas. There are some yagyas (e.g. agnihotra,
darshapurnamani, etc.) whose method of performance is given in detail in the Brahmanas. These
are known as prakriti yagyas. However, thereare other yagyas whose rules are not given any
where, and these are known as vikriti yagyas. The question arose how these latter are to be
performed? The atidesh principle was created to resolve this difficulty, and according to this
principle the vikriti yagya is to be performed according to the rules of the prakriti yagya
belonging to the same genus.
2. In Tribhuwan Misra v. D.I.O.S. (supra) the Samanjasya principle was used to reconcile 2
apparently conflicting Division Bench rulings. This technique avoided reference to a Full Bench
which would have tied up 3 or more Judges for several days in resolving the conflict. No doubt
this decision (as a Single Judge) curtailed the full effect of the 2 Division Bench decisions, but
that was done on the authority of the maxim of the lost horse; and burnt chariot (Nasrhtashva
Dagdharatha Nyaya). This is based on the story of two men travelling in their respective chariots.
One of them lost his horses and the other's chariot was burnt through the out break of fire inn the
in where they were spending the night. The horses that were left were harnessed to the remaining
chariot, and the two men pursued their journey together. Its teaching is union for mutual
advantage, which has been quoted in the 16th Vartika to Panini, and is explained by Patanjali. It
is referred to in Kumarila Bhatta's 'Tantravartika'.
3. The Anusanga Principle of Mimansa has been used in Mahabir Prasad Dwivedi v. State16 The
principle has been explained in great detail in this decision, which may be seen in the aforesaid
journal. The conclusion reached in this decision could not have been reacted by any principle of
Western Jurisprudence, and this illustrates the great use which can be made of Mimansa
Principles to make the statute more democratic and equitable.
The Laghava Principle has been used in Vinay Khare v. State of U.P.17 The controversy in this
case was that if in a competitive examination two candidates got equal marks whether the
candidate who got more marks in the oral interview should be placed higher in the select list or
the candidate who got more marks in the written test. It was held in this case that the candidate
who got more marks in the written test should be placed higher because to interpret general
suitability on the basis of marks in the written test is a short and simple interpretation and
provides a clear objective test, whereas the criteria in the oral interview involves consideration of

the candidate's personality, dress, physique, etc. which is complicated and in which there are
more chances of favouritism and arbitrariness.

* Judge, High Court of Allahabad, Allahabad.

Return to Text

1. Best explained in the book by K.L. Sarkar: The Mimansa Principles of Interpretation as
applied to Hindu Lawwhich is a collection of Tagore Law Lectures delivered in 1905.
Before K.L. Sarkar, Colebrooke, Col. Jacob and Mandlik had done pioneering work in
this field, but since the British rulers did not wish to encourage any native science
nothing much was done thereafter. It is, however, interesting to note that Sir John Edge,
the then Chief Justice of Allahabad High Court in Beni Prasad v. Hardai Bibi, ILR 14 All
67 (FB) had referred to the Mimansa Principles. There is also a brief reference of these
principles in the decision of the Supreme Court in U.P. Bhoodan Yojna Samiti v. Brij
Kishore, (1988) 4 SCC 274. Return to Text
2. 1992 A.L.R. 921 Return to Text
3. See K.L. Sarkar: Mimansa Principles. Return to Text
4. This is laid down in Book 1 Chapter II, Sutra 9 of Jaimini's Sutras. This principle is
illustrated in the Dayabhaga by Jimutavahana. In the context of rule relating to succession
on which there are inconsistent texts regarding the right of a son born after partition,
Manu says "A son, born after division, shall alone take the paternal wealth", and this is
also the view of Narada and Gautam. However, Vishnu says "Sons, with whom the father
has made a partition, should give a share to the son born after the distribution". This is
also the view of Yajnavalkya. Jimutvahana reconciles these texts by applying samanjasya
principle holding that the former text applies to the self acquired property of the father,
while the latter applies to property which is descended from the grand-father. See K.L.
Sarkar, Mimansa Principle. Return to Text
5. Badha principle signifies exclusion by repugnancy. For example, a special law prevails
over a general law, a higher law prevails over a lower law, a clear law prevails over an
unclear law, a law which serves a purpose immediately prevails over that which is of
remote service, a manifest sense prevails over a sense by context, etc. See Shree Bhatt
Sankar's Mimansa Valaprakash. Jaimini has described this principle in the tenth chapter
of his work. Return to Text
6. (1988) 4 SCC 274 Return to Text
7. Lord Denning: The Discipline of Law, (1979) Butterworth, London. Return to Text
8. (1990) 1 SCC 613 Return to Text
9. See Jaimini: 2, 1, 48 Return to Text

10. The uha principle, referred to in the ninth chapter of Jaimini's sutras, originally meant
only adaptation. However, Kumarila Bhatta considerably widened its import, and made it
equivalent to the use of reason for various purposes in interpretation. Return to Text
11. (1991) 2 SCC 87 Return to Text
12. Many of these nyayas are mentioned in Chapters 5, 6 and 7 of K.L. Sarkar's Mimansa
Principles. Also see P.V. Kane:History of the Dharmashastras, Vol. 5 Pt. II, pp. 133951. Return to Text
13. For example Nanda Pandit in his Dattak Mimansa has used the pranabhrit maxim to show
that although the word 'substitute' was initially applied only to 5 descriptions of sons,
later by general use it became applicable to all 12 descriptions. Return to Text
14. (1990) 2 SCC 231 Return to Text
15. 1993 ALR 89 Return to Text
16. AIR 1992 All 351 Return to Text
17. 1993 ALR 1 Return to Text
The Mimansa Principles of Interpretation II
by Justice M. Katju

Cite as : (1994) 2 SCC (Jour) 1

This article is a sequel to the earlier one on the same subject.1
As discussed in the earlier article, there are six systems in classical Indian philosophy, and Purva
Mimansa is one of them.2 In Western jurisprudence the principles of interpretation have been
collected and discussed in books like Maxwell's Interpretation of Statutesand a few other books.
In India, a whole system of philosophy was devoted to the principles of interpretation. Scores of
books were written on the subject by a host of authors, and many of them are outstanding works
of scholarship. However, some of them are untraceable, though they are seen referred to in other
works. Thus, the Jaimini Sutras, which is regarded as the foremost work on the subject (written
around 500 B.C.) itself refers to eight other earlier writers e.g. Badri, Badrayana, Labukayana,
Aitisayan, etc.
The Mimansa system is ritualistic. Its entire emphasis is on performance of the Yagya for
spiritual or worldly benefit. The central belief in the Mimansa system was that on the
performance of a particular Yagya in accordance with the rules prescribed in the Brahmanas a
potency or power called 'apurva' would be created resulting in the fulfilment of the object of the
Yagya, either immediately or after an interval of time. Some Yagyas known as nitya yagyas such
as darshapurnamasi, agnihotra, etc., and had to be performed as a religious duty regularly
throughout one's life for spiritual benefits. The darshapurnamasi yagya had to be performed on

every moonless3 and full moon day, while agnihotra had to be performed daily. Certain other
yagyas known as kamya yagyas were conducted for some worldly benefits and were optional.4
These yagyas had to be performed in accordance with the prescribed rules failing which the
apurva force would not arise.5
Since the rules in the Brahmanas according to which the yagyas had to be performed were often
obscure, contradictory or ambiguous, principles of interpretation had to be evolved to explain
them. Thus the Mimansa Principles of Interpretation arose out of practical difficulties in
performing the yagyas. These principles were so rational and scientific that in spite of their
originating in religious practices they gradually came to be used in other fields like Law,
Philosophy etc. elevating them to the status of rules of universal application. Thus though the
yagyas could be repudiated today as unscientific the Mimansa principles grown around yagya
practices have come to stay as relevant and useful rules of interpretation.
As mentioned in the earlier article, the rules of performing the yagyas are mentioned in the
Brahmanas e.g. Aitareya Brahmana (attached to the Rigveda), Taitareya Brahama (attached to the
Black Yajurveda), Shatapatha Brahmana (attached to the White Yajurveda), Tandya Brahmana
(attached to Sama Veda), Gopatha Brahmana (attached to the Atharwaveda), etc. The Mimansaks
believed that the main part of the Shruti6 is the portion containing injunctions or vidhis. And the
injunctions in the shrutis are mainly in the Brahmanas, and not in other parts.7 It was because of
this that the Mimamsaks regarded the Brahmanas as the most import part of the Shruti, whereas
the Vedants regarded the Upanishads as the most important part.
The language of the Brahmanas is pre-Panini Sanskrit. As is well known, the Sanskrit used in the
Vedas is very different from classical (or Panini's) Sanskrit. When the Aryans came to India
around 2000 B.C. they were speaking Vedic Sanskrit. However, with the passage of time,
language changed. Sanskrit kept changing from about 2000 B.C. to 600 B.C. i.e. for about 1400
years. Around 600 B.C. Panini, who was the greatest grammarian the world has ever known,
wrote his 'Ashtadhyayi' in which he fixed the rules of Sanskrit grammar. Thereafter no further
changes in Sanskrit were permitted.
Obviously the Brahmanas written in Vedic Sanskrit, became difficult to understand later as the
Sanskrit language had changed. This was one of the important reasons why principles of
interpretation had to be evolved to determine the rules for yagya practices.
An additional reason for evolving principles of interpretation was the language of the Brahmanas
being incoherent, contradictory, vague and rambling. For example there is the text: "He places
besmeared pebbles of sandstone"
. Then follow the words "Ghee is light"
. In the first sentence it is not clear as to what are the pebbles to be besmeared. This
difficulty is obviated by reading the first sentence along with the second sentence which
indicates that the pebbles are to be besmeared with ghee. This reading is done by the utilisation
of the Vakya principles of Mimansa discussed in the earlier article.
Jaimini is considered to be the founder of the Mimansa system though as mentioned earlier
Jamini himself refers to 8 Acharyas on the topic earlier to him, and their views are mentioned in
the 'Purva paksha' to his own views.
Jaimini's work is written in the sutra (string) form, which was the classical method used in those
days to present a subject systematically. It is said that the sutrakaras aimed at expressing the
complete idea in the minimum number of words, and if they could omit even a single stroke
in a word they felt happy as if a son was born to them. Sometimes one sutra consists of

just one word. For a student it is therefore absolutely essential to have a good translation (even if
one knows Sanskrit) as well as a commentary on the Jaimini sutras.
There seem to be two reasons for the application of Mimansa principles to law : (1) the Mimansa
Rules deal with the Brahmana portions of the shruti, i.e., the portion which laid down
injunctions, and the law, too, being largely in the form of injunctions was attracted to them; (2)
Mimansa is a practical subject, and the law, too, being practical was inclined to incorporate them.
Our great commentators like Vijnaneshwara (author of the Mitakshara), Jimutvahana (author of
the Dayabhaga), Nanda Pandit (author of Dattak Mimansa), Vachaspati, Neelkanth, etc., were all
profound scholars of Mimansa, and they regularly used the Mimansa Principles when confronted
with any difficulty regarding interpretation of the Smrities (which contained the law in those
times). In fact, the generally accepted rule appeared to be that before entering the realm of law
one had to first study the Mimansa Rules thoroughly. There are several illustrations of the
application of the Mimansa principles in the works of our legal commentators8.
The Mimansa principles are highly rational and equitable. The Mimansaks were not too much
obsessed with technicalities, and they aimed at finding the intention of the legal text and sought
to breathe reason and equity into it to the extent possible. This is precisely what the modern
method of interpretation strives to achieve.
Knowledge of the Mimansa principles enables one to infuse equity and the democratic spirit into
the law in a manner unknown to western techniques of interpretation. An example of this is the
decision in Mahavir Prasad Dwivedi v. State of U.P.9 In that case the facts were that the
petitioner had been elected Chairman of a Town Area in U.P. He was removed by the Collector
after giving him a hearing, and the Collector's order was confirmed by the State Government.
But the State Government had not given an opportunity of hearing to the petitioner. The question
before the court was whether the State Government, too, had to give an opportunity of hearing
before it confirmed the order of the Collector. After a great deal of consideration the present
writer answered it in the affirmative, utilising the anusunga principle of Mimansa.
The case involved interpretation of Section 7-A(1) of the U.P. Town Areas Act, which lays down
that the Collector may remove a Chairman of a Town Area on certain grounds. There are two
provisos to this provision :
"Provided firstly that before making an order removing the Chairman, he shall be allowed an
opportunity to submit his explanation on the charges against him :
Provided secondly that no order for removal shall take effect unless it is confirmed by the State
Government."
It is evident that while the first proviso specifically refers to an opportunity of hearing, there is
no such reference in the second proviso. Hence it was urged on behalf of the respondent that the
legislature never intended that the State Government must give an opportunity of hearing before
confirming the Collector's order. If it was otherwise the provision would have specifically said
so.
However, the Court held that the requirement of a hearing in the first proviso to Section 7-A(1)
must be imported into the second proviso, and hence the State Government must also give an
opportunity of hearing. This interpretation was resorted to by invoking the anusunga principle of
Mimansa10 according to which an expression occurring in one clause is often meant also for a
neighbouring clause. It is generally said that for economy of words that it is mentioned only in
the former. Illustrations of the use of the anusunga principle in the Mitakshara and Dayabhaga
have been discussed in paragraphs 34 to 36 of the judgment.11

The above interpretation to the second proviso to Section 7-A(1) makes the statute more
democratic, inasmuch as an elected functionary was held not to be easily removed by an
executive authority, particularly one who may be under local pressure.
Recently an instance where the Mimansa principles could have been of much use has come to
notice. Under the Terrorist and Disruptive Activities (Prevention) Act, 1987 only the Designated
Courts are empowered to grant bail. And Section. 9 provides that Designated Judge means the
judge nominated by the Govt. after consulting the Chief Justice. Though the U.P. Government
nominated District Judges to be Designated Judges there had been no District Judges and hence
no Designated Judges in several Districts as selection had not been made. Several persons had
therefore been languishing in jail for more than a year without even an opportunity to apply for
bail. Mimansa Rule of Substitution for Jateshti nyaya was commended to solve this problem. By
invoking this rule the High Court could rule that the seniormost Additional District Judge could
grant bail in the absence of the District Judge.
The rule of substitution, like other Mimansa principles, arose out of the practical difficulties in
performing the yagya. There were occasions when the material which was prescribed for use in
the sacrifice was lost or not available in the locality. On such occasions it was laid down that any
material of the same genus might be used. Thus Jamini 6:3:27 states :
(i.e. Anything of the same class can be used if the original is not available).
Then again, Jaimini 6:3:39 states :

(i.e. When there is a conflict between the object and the material, the object is to prevail, because
in the absence of the material the substitute is used, the material being subordinate to the object).
Thus, the Jateshti maxim (the maxim for the substitution of the Putika plant for the Soma plant)
lays down that where a thing is enjoined for a certain purpose, in its absence another thing of the
same genus which serves that purpose may be substituted.
Now there is no such rule of substitution in the western principles of interpretation, and hence if
we follow the western principle, there could be no solution of the problem.
It can be shown how Mimansa principles can be a powerful tool in the hands of the Judge in
moulding the law to make it more rational, equitable and democratic. Use of Mimansa Principles
gives a flexibility which Western principles of interpretation totally lack. Knowledge of the great
achievements of our ancestors will inspire us and give us the confidence and strength to solve
our present problems.
Some people argue against the use of Mimansa Principles. It is said that for a hundred years we
have been using Maxwell's principles, and so it would be against the settled convention to use
Mimansa principles. To this, it may be argued, it is nowhere provided in our Constitution or any
other law that only western principles of interpretation should be used. In fact Mimansa
principles were used by our jurists for 2000 years. We can use any kind of principles of
interpretation which can help us resolve a legal difficulty or make the statute more equitable or
rational. After all, principles of interpretation are Substantive Laws but constitute a methodology
of tool for solving questions on interpretation. Indeed we need invoke Western rules of
interpretation as usual wherever they are applicable. It should equally be possible for us to
invoke Mimansa Rules of Interpretation whenever they are found appropriate and useful.
Judge, Allahabad High Court

Return to Text

1. See (1993) 2 SCC Jour 16 Return to Text

2. N.B. The six systems are : Nyaya, Vaisheshik, Sankhya, Yoga, Purva Mimansa and Uttar
Mimansa. By Mimansa we refer to Purva Mimansa. There is another Mimansa called
Uttar Mimansa (also known as Vedanta), but this is a purely philosophical system having
no bearing on the topic of interpretation. A basic difference between the two is that while
Purva Mimansa regards the world to be real, Vedanta regards the world to be unreal
(Maya) in the ultimate analysisReturn to Text
3. The word 'darsha' means amavasya, i.e. moonless day Return to Text
4. Examples of such yagyas are Putra Kameshti for getting children, Vrishti Kameshti for
getting rains, Aswamedha for conquest, Vajpeya for rejuvenation Return to Text
5. In nitya yagyas certain non-essential rules could be omitted or modified, but in Kamya
Yagyas even the minutest rule had to be complied with Return to Text
6. Shruti consists of (1) the Veda proper (i.e. Rigveda, Yajurveda, Samaveda, and
Atharwaveda), (2) Brahmanas, (3) Aranyaks, and (4) Upanishads Return to Text
7. Strictly speaking, Veda is defined as Samhita plus Brahmanas
, but I have
called Samhita (or Mantra) as Veda proper i.e. Rigveda, Yajurveda, Samaveda and
Atharwaveda. In the broadest sense the entire Shruti is regarded as Veda and it is in this
sense that Shankaracharya has used the word 'Veda' The Veda proper (called Samhita or
Mantra), as well as the Aranyaks and Upanishads hardly contain any injunctions. The
Samhita portion of the Shruti consists mainly of hymns or invocations to various gods
e.g. Indra, Agni, Soma, Surya, the Maruts, the Ashwinis, etc., while the Aranyaks and
Upanishads are philosophical treatises Return to Text
8. See discussions in K.L. Srivastava 'Mimansa Rules of Interpretations', Chapters 8 and
9 Return to Text
9. AIR 1992 All 351 Return to Text
10. See Jaimini 2-1-48 Return to Text
11. Supra n. 9 Return to Text
Judgement on "CASTE ATROCITIES & HONOUR KILLING"

2011 STPL(Web) 403 SC

1
Arumugam Servai Vs. State of Tamil Nadu

2011 STPL(Web) 403 SC

SUPREME COURT OF INDIA
(MARKANDEY KATJU & GYAN SUDHA MISRA, JJ.)
ARUMUGAM SERVAI
Appellant(s)

VERSUS

STATE OF TAMIL NADU

Respondent
AJIT KUMAR AND OTHERS
Appellant(s)
VERSUS
STATE OF TAMIL NADU
Respondent
Criminal Appeal No. 958 of 2011 [Arising out of SLP(Criminal) No.
8084 of 2009] with Criminal
Appeal No. 959 of 2011 [Arising out of SLP (Criminal) No. 8428 of
2009]-Decided on 19-042011.
Atrocities Conviction upheld Directions issued

JUDGMENT

Markandey Katju, J.-"Har zarre par ek qaifiyat-e-neemshabi hai Ai

saaki-e-dauraan yeh
gunahon ki ghadi hai" - Firaq Gorakhpuri
"We hold these truths to be self-evident, that all men are created
equal, that they are endowed by their creator by certain inalienable
rights, that among these are life, liberty, and the pursuit of
happiness" - American Declaration of Independence,1776
1. Over two centuries have passed since Thomas Jefferson wrote
those memorable words,which are still ringing in history, but a large
section of Indian society still regard a section of theirown
countrymen as inferior. This mental attitude is simply unacceptable
in the modern age, and it is one of the main causes holding up the
country's progress.

2. Leave granted.

3. These appeals have been filed against the common judgment and
order of the Madras High Court dated 25.1.2008 in Criminal Appeal
Nos. 536-37 of 2001 upholding the judgment of the Leaned 4th
Additional District and Sessions Judge, Madurai.

4. The allegation against the appellants is that on 1.7.1999, there

was an altercation between the appellants and the complainants
PW1 Panneerselvam and PW2 Mahamani in a Temple Festival
regarding the method of tying bullocks in the Jallikattu. The
appellant Arumugam Servai then insulted PW1 by saying "you are a
pallapayal and eating deadly cow beef". Then accused 1, 7 and 9
attacked PW1 with sticks causing him injuries on his left shoulder.
When PW2 Mahamani intervened he was attacked by the accused
with sticks, and he sustained a fracture on his head, on

which there was a lacerated wound.

5. Apart from the two injured eye-witnesses, there are 3 other eyewitnesses to the occurrence. The doctor has testified to the injuries.
The head fracture on Mahamani indicates the deadly intent of the
accused.

6. Both the Courts below have believed the prosecution case, and
we see no reason to differ. We have carefully perused the testimony
of the witnesses, and we see no reason to disbelieve them.

7. The accused belong to the `servai' caste which is a backward

caste, whereas the complainants belong to the `pallan' caste which
is a Scheduled Caste in Tamilnadu.

8. The word `pallan' no doubt denotes a specific caste, but it is also

a word used in a derogatory sense to insult someone (just as in
North India the word `chamar' denotes a specific caste, but it is also
used in a derogatory sense to insult someone). Even calling a person
a `pallan', if used with intent to insult a member of the Scheduled
Caste, is, in our opinion, an offence under Section 3(1)(x) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities
Act), 1989 (hereinafter referred to as the `SC/ST Act'). To call a
person as a `pallapayal' in Tamilnadu is even more insulting, and
hence is even more an offence.

9. Similarly, in Tamilnadu there is a caste called `parayan' but the

word `parayan' is also used in a derogatory sense. The word
`paraparayan' is even more derogatory.

10. In our opinion uses of the words `pallan', `pallapayal' `parayan'

or `paraparayan' with intent to insult is highly objectionable and is
also an offence under the SC/ST Act. It is just unacceptable in the
modern age, just as the words `Nigger' or `Negro' are unacceptable
for African-Americans today (even if they were acceptable 50 years
ago).

11. In the present case, it is obvious that the word `pallapayal' was
used by accused No. 1 to insult Paneerselvam. Hence, it was clearly
an offence under the SC/ST Act.

12. In the modern age nobody's feelings should be hurt. In particular

in a country like India with so much diversity (see in this connection
the decision of this Court in Kailas vs. State of Maharashtra in Crl.
Appeal No. 11/2011 decided on 5.1.2011) we must take care not to
insult anyone's feelings on account of his caste, religion, tribe,
language, etc. Only then can we keep our country united and strong.

13. In Swaran Singh & Ors. vs. State thr' Standing Counsel & Anr.
(2008) 12 SCR 132, this Court observed (vide paras 21 to 24) as
under:

"21. Today the word `Chamar' is often used by people belonging to

the so- called upper
castes or even by OBCs as a word of insult, abuse and derision.
Calling a person
`Chamar' today is nowadays an abusive language and is highly
offensive. In fact, the
word `Chamar' when used today is not normally used to denote a
caste but to

intentionally insult and humiliate someone.

22. It may be mentioned that when we interpret section 3(1)(x) of

the Act we have to see the purpose for which the Act was enacted. It
was obviously made to prevent indignities, humiliation and
harassment to the members of SC/ST community, as is evident from
the Statement of Objects & Reasons of the Act. Hence, while
interpreting section 3(1)(x) of the Act, we have to take into account
the popular meaning of the word `Chamar' which it has acquired by
usage, and not the etymological meaning. If we go by the
etymological meaning, we may frustrate the very object of the Act,
and hence that would not be a correct manner of interpretation.

23. This is the age of democracy and equality. No people or

community should be today insulted or looked down upon, and
nobody's feelings should be hurt. This is also the spirit of our
Constitution and is part of its basic features. Hence, in our opinion,
the so-called upper castes and OBCs should not use the word
`Chamar' when addressing a member of the Scheduled Caste, even
if that person in fact belongs to the `Chamar' caste, because use of
such a word will hurt his feelings. In such a country like ours with so
much diversity - so many religions, castes, ethnic and lingual
groups, etc. - all communities and groups must be treated with
respect, and no one should be looked down upon as an inferior. That
is the only way we can keep our country united. 24. In our opinion,
calling a member of the Scheduled Caste `Chamar' with intent to
insult or humiliate him in a place within public view is certainly an
offence under section 3(1)(x) of the Act. Whether there was intent to
insult or humiliate by using the word `Chamar' will of course depend
on the context in which it was used".

14. We would also like to mention the highly objectionable two

tumbler system prevalent in many parts of Tamilnadu. This system is

that in many tea shops and restaurants there are separate tumblers
for serving tea or other drinks to Scheduled Caste persons and nonScheduled Caste persons. In our opinion, this is highly objectionable,
and is an offence under the SC/ST Act, and hence those practicing it
must be criminally proceeded against and given harsh punishment if
found guilty. All administrative and police officers will be
accountable and departmentally proceeded against if, despite
having knowledge of any such practice in the area under their
jurisdiction they do not launch criminal proceedings against the
culprits.

15. In Lata Singh vs. State of U .P. & Anr (2006) 5 SCC 475, this
Court observed (vide paras
14 to 18) as under:
"14. This case reveals a shocking state of affairs. There is no dispute
that the petitioner is a major and was at all relevant times a major.
Hence she is free to marry anyone she likes or live with anyone she
likes. There is no bar to an inter-caste marriage under the Hindu
Marriage Act or any other law.
Hence, we cannot see what offence was committed by the
petitioner, her husband or her husband's relatives.

15. We are of the opinion that no offence was committed by any of

the accused (the
couple who had an inter caste marriage) and the whole criminal
case in question is an
abuse of the process of the Court as well as of the administrative
machinery at the
instance of the petitioner's brothers who were only furious because
the petitioner married outside her caste. We are distressed to note

that instead of taking action against the petitioner's brothers for

their unlawful and high-handed acts (details of which have been set
out above) the police has instead proceeded against the petitioner's
husband and his relatives.

16. Since several such instances are coming to our knowledge of

harassment, threats and violence against young men and women
who marry outside their caste, we feel it
necessary to make some general comments on the matter. The
nation is passing through a crucial transitional period in our history,
and this Court cannot remain silent in matters of great public
concern, such as the present one.

17. The caste system is a curse on the nation and the sooner it is
destroyed the better. Infact, it is dividing the nation at a time when
we have to be united to face the challenges before the nation
unitedly. Hence, inter- caste marriages are in fact in the national
interest as they will result in destroying the caste system. However,
disturbing news are coming from several parts of the country that
young men and women who undergo inter- caste marriage, are
threatened with violence, or violence is actually committed on them.
In our opinion, such acts of violence or threats or harassment are
wholly illegal and those who commit them must be severely
punished. This is a free and democratic country, and once a person
becomes a major he or she can marry whosoever he/she likes. If the
parents of the boy or girl do not approve of such inter-caste or interreligious marriage the maximum they can do is that they can cut off
social relations with the son or the daughter, but they cannot give
threats or commit or instigate acts of violence and cannot harass
the person who undergoes such inter-caste or inter- religious
marriage. We, therefore, direct that the administration/police
authorities throughout the country will see

to it that if any boy or girl who is a major undergoes inter-caste or

inter-religious
marriage with a woman or man who is a major, the couple are not
harassed by any one
nor subjected to threats or acts of violence, and any one who gives
such threats or
harasses or commits acts of violence either himself or at his
instigation, is taken to task by instituting criminal proceedings by
the police against such persons and further stern action is taken
against such persons as provided by law.

18. We sometimes hear of `honour' killings of such persons who

undergo inter-caste or inter-religious marriage of their own free will.
There is nothing honourable in such
killings, and in fact they are nothing but barbaric and shameful acts
of murder committed by brutal, feudal minded persons who deserve
harsh punishment. Only in this way can we stamp out such acts of
barbarism".

16. We have in recent years heard of `Khap Panchayats' (known as

katta panchayats in Tamil Nadu) which often decree or encourage
honour killings or other atrocities in an institutionalized way on boys
and girls of different castes and religion, who wish to get married or
have been married, or interfere with the personal lives of people. We
are of the opinion that this is wholly illegal and has to be ruthlessly
stamped out. As already stated in Lata Singh's case (supra), there is
nothing honourable in honour killing or other atrocities and, in fact,
it is nothing but barbaric
and shameful murder. Other atrocities in respect of personal lives of
people committed by brutal, feudal minded persons deserve harsh
punishment. Only in this way can we stamp out such acts of

barbarism and feudal mentality. Moreover, these acts take the law
into their own hands, and amount to kangaroo courts, which are
wholly illegal.

17. Hence, we direct the administrative and police officials to take

strong measures to prevent such atrocious acts. If any such
incidents happen, apart from instituting criminal proceedings
against those responsible for such atrocities, the State Government
is directed to immediately suspend the District Magistrate/Collector
and SSP/SPs of the district as well as other officials concerned and
chargesheet them and proceed against them departmentally if they
do not (1) prevent the incident if it has not already occurred but
they have knowledge of it in advance, or (2) if it has occurred, they
do not promptly apprehend the culprits and others involved and
institute criminal proceedings against them, as in our opinion they
will be deemed to be directly or indirectly accountable in this
connection.

18. The appellants in the present case have behaved like uncivilized
savages, and hence deserve no mercy. With these observations the
appeals are dismissed.

19. Copy of this judgment shall be sent to all Chief Secretaries,

Home Secretaries and Director Generals of Police in all States and
Union Territories of India with the direction that it should be
circulated to all officers up to the level of District Magistrates and
S.S.P./S.P. for strict compliance. Copy will also be sent to the
Registrar Generals/Registrars of all High Courts who
will circulate it to all Hon'ble Judges of the Court.
Judgement on "FAKE ENCOUNTER"
Prakash Kadam Vs. Ramprasad Vishwanath Gupta

SUPREME COURT OF INDIA

(MARKANDEY KATJU & GYAN SUDHA MISRA, JJ.)
PRAKASH KADAM & ETC. ETC.
Appellants
VERSUS
RAMPRASAD VISHWANATH GUPTA & ANR.
Respondents
Criminal Appeal Nos.1174-1178 of 2011 [Arising out of SLP((Criminal) Nos. 3865-69
of 2011]Decided on 13-05-2011.
Fake Encounter Cancelation of bail upheld
JUDGMENT
Markandey Katju, J.-A curse shall light upon the limbs of men; Domestic fury and
fierce civil
strife Shall cumber all the parts of Italy; Blood and destruction shall be so in use And
dreadful
objects so familiar That mothers shall but smile when they behold Their infants
quarter'd with the
hands of war; All pity choked with custom of fell deeds: And Caesar's spirit, ranging
for revenge,
With Ate by his side come hot from hell, Shall in these confines with a monarch's
voice Cry
"Havoc!" and let slip the dogs of war; That this foul deed shall smell above the earth
With carrion
mean, groaning for burial. -- (Shakespeare: Julius Caesar Act 3 Scene 1)
1. Leave granted. Heard learned counsel for the appellants and perused the record.
2. This case reveals to what grisly depths our society has descended.
3. This appeal has been filed against the impugned judgment and order dated
21.1.2011 passed by
the High Court of Judicaure at Bombay in Criminal Application Nos. 5283-5285 and
5303-5304
of 2010 by which the High Court has cancelled the bail granted to the appellants by
the Sessions
Court.
4. The appellants are policemen accused of a contract killing in Sessions Case No.
317/2010
which is pending before the Sessions Judge, Greater Bombay. The appellants have
been chargesheeted for offences punishable under Sections 302/34,120-B, 364/34
IPC and other minor
offences. The victim of the offence is deceased Ramnaryan Gupta @
Lakhanbhaiyya. The
prosecution case is that the appellants were engaged as contract killers by a private
person to
eliminate the deceased.

5. The case of the prosecution in brief is that the deceased Ramnarayan Gupta and
the accused
No. 14, Janardan Bhange were, once upon a time, very close to each other. Both of
them had been
working as estate agents and, mainly their business was to purchase land from the
farmers whose
land has been acquired by the Government under the Land Acquisition Act and to
whom 12
percent of the land was given by the Government. This 12 percent of the land was
being
purchased at meager price by the deceased and accused No. 14, Janardan Bhange
and was being
sold on premium at later stage. During the course of that business, both of them
had been
exchanging the files pending with them for disposal pertaining to the said land.
6. There were some differences between the deceased Ramnarayan Gupta and
accused No. 14,
Janardan and hence it is alleged that the accused Janardan decided to eliminate the
deceased in a
false police encounter. Hence, he hired the services of the accused, and in
pursuance of the said
conspiracy the deceased Ramnarayan Gupta and his friend Anil Bheda were
abducted on
11.11.2006 from near a shop named Trisha Collections at Vashi, New Bombay by 4
or 5 wellbuilt persons who appeared to be policemen and were forcibly bundled into
a Qualis car. The
complainant, brother of the deceased, sent telegrams and fax messages to different
authorities
complaining that the said two persons had been abducted by some persons who
appeared to be
policemen and were in danger of losing their lives.
7. It is alleged that at Bhandup Complex the deceased was shifted to an Innova
vehicle. The
deceased and witness Anil Bheda were taken to D.N. Nagar police station in two
separate
vehicles i.e. one Qualis and the other Innova. It is alleged that the deceased was
killed and his
dead body was thrown near Nana-Nani Park at Versova. The dead body, after some
time, was
collected from the said place by the police to create a false case of police
encounter. A case vide
C.R. No. 302/2006 was registered on 11.11.2006 at Versova Police Station against
deceased
Ramnarayan Gupta on the complaint made by accused No. 9. In the said FIR it was

shown that
accused No. 9 and other police officers had gone to Nana-Nani Park on the basis of
certain
information and that the deceased was asked to surrender before the police.
Instead of
surrendering before the police, the deceased had attempted to kill the police and in
retaliation he
was shot by them.
8. It is also alleged that witness Anil Bheda was initially detained at D.N. Nagar
Police Station
and thereafter he was taken to Kolhapur and he was further detained at Mid Town
Hotel at
Andheri. As such the witness Anil Bheda was in custody of the police for about one
month from
11.11.2006. His wife had lodged a missing complaint at Vashi police station on the
same day, but
she was compelled to withdraw that complaint.
9. The complainant is the brother of the deceased and is a practicing advocate. He
came to know
within a few minutes of the incident of abduction of his brother. He, therefore, along
with
advocate Mr. Ganesh Ayyer, started searching for his brother and in the meantime
he had also
sent telegrams to Police Commissioner of Thane, Mumbai and New Bombay of the
alleged
abduction of his brother and indicated apprehension that his brother would be
eliminated in a
false police encounter. On the same day it was flashed on T.V. channels that the
deceased had
been killed in a police encounter. The complainant, therefore, approached the High
Court on
15.11.2006 by filing a writ petition (WP 2473/2006) to get directions from the High
Court to the
police to register a case in respect of death of his brother.
10. On the aforesaid writ petition the High Court on 13.2.2008 passed an order that
the offence of
murder be registered against the accused. During the investigation the statement of
Anil Bheda
and other witnesses were recorded. So far, the police have charge-sheeted 19
accused.
11. After the High Court by its order dated 13.2.2008 had directed the Metropolitan
Magistrate,
Railway Mobile Court, Andheri to make an inquiry under Section 176(1A) Cr.P.C., the
Metropolitan Magistrate after holding the inquiry submitted a report dated

11.8.2008 that
Ramnarayan Gupta was shot by the police when he was in police custody. The
report also stated
that the death had not taken place at the spot alleged by the police, and that the
deceased had not
disappeared from the police custody before he was done to death, but that the
deceased was
abducted by the police. The report also held that a false FIR was lodged by accused
No. 9 Police
Inspector Pradip Suryavanshi of D.N. Nagar Police Sttion to show that Ramnarayan
Gupta was
killed in a police encounter at Nana-Nani Park, and this FIR was filed to cover up the
murder of
the deceased Ramnarayan Gupta.
12. After the inquiry report was submitted by the Metropolitan Magistrate, the
Division Bench of
the Bombay High Court by its order dated 13.8.2009 in the aforesaid criminal writ
petition
constituted a Special Investigation Team for investigation of this case. Mr. K.M.M.
Prasanna,
DCP, Mumbai City, was appointed as head of the investigation team, and he was
directed to
record the statement of the complainant and to treat that statement as the FIR.
Copy of the order
of the Bombay High Court dated 13.8.2009 is Annexure P-3 to this appeal.
Accordingly, the
statement of the complainant was recorded on 20.8.2009 which was treated as the
FIR (Annexure
P4 to this appeal) and investigation was carried out. The statement and
supplementary statement
of Anil Bheda, which corroborates the prosecution case, is Annexure P5 to this
appeal.
13. During investigation, it was revealed that accused No.1 Police Inspector Pradip
Sharma (who
is described as an `encounter specialist'), accused No.9 - PI Pradip Suryawanshi and
accused No.
14 - Janardan Bhanage, had entered into a conspiracy to eliminate Ramnarayan
Gupta. It appears
that accused No.14 Janardan Bhanage had some personal enmity with Ramnarayan
Gupta.
Thereafter other officers and some criminals were involved in the execution of the
said
conspiracy. Accused No.4 - Shailendra Pande , accused No.5 - Hitesh Solanki,
accused N0.6 -

Akil Khan, accused No.8 - Manoj Mohan Raj, accused No.12 - Mohd. Moiddin and
accused
No.21 - Suresh Shetty and accused No.7 police constable Vinayak Shinde had
abducted
Ramnarayan Gupta and Anil Bheda from Vashi, on 11.11.2006. Accused No.1 PI
Pradip Sharma,
accused No.2 Police Constable Tanaji Desai, accused No.9 P.I. Pradip Suryavanshi,
accused
No.15 API - Dilip Palande were the persons who actually fired and shot dead the
deceased.
Accused No.11 API Nitin Satape and accused no.22 PSI Arvind Sarvankar claimed to
have fired
during the encounter, though the bullets fired from their fire arms were not
recovered. Accused
Nos. 13,16, 17, 18 and 19, whose bail orders were cancelled by the High Court, are
said to be the
members of the team which shot him dead. Accused No.13 Devidas Sakpal had
allegedly guarded
Anil Bheda at Hotel Mid Town on certain occasions and accused No.16 Head
Constable Prakash
Kadam had joined the abductors at about 4.30 p.m. and since then he was with Anil
Bheda. He
was also with Anil Bheda when he was taken out from D.N.Nagar Police Station in
the evening
and also later on at Hotel Mid Town from time to time.
14. On behalf of the prosecution, it is pointed out that in the FIR lodged by P.I.
Pradip
Suryavanshi showing the killing of Ramnarayan Gupta in an encounter at Nana-Nani
Park, he had
given names of police officers and police staff, who were in that team. The names of
accused
Nos.13,16, 17, 18 and 19 are shown in the said FIR. On that basis an entry was
made in the
station diary, where also the names of these persons were shown. It is also pointed
out that in the
magisterial enquiry, which was initially directed by the Police Commissioner, these
persons had
claimed to be members of the encounter team. When the complainant filed the Writ
Petition
against the State for taking action against the culprits, some of these persons had
appeared to
contest the writ petition. After the writ petition was allowed and this Court directed
investigation,
accused Nos. 13, 16, 19 and 20 filed Special Leave Petition challenging that order,

which was
dismissed. Everywhere they had taken the plea that Ramnarayan Gupta was shot
dead in an
encounter and that they were members of the Police team involved in that
encounter and were
also present at the time of the alleged encounter. The learned Counsel also pointed
out that there
is sufficient material to show that these persons were involved in the commission of
the crime.
15. The Sessions Court granted bail to the appellants but that has been cancelled
by the High
Court by the impugned judgment.
16. It was contended by learned counsel for the appellants before us, and it was
also contended
before the High Court, that the considerations for cancellation of bail is different
from the
consideration of grant of bail vide Bhagirathsinh s/o Mahipat Singh Judeja vs. State
of
Gujarat (1984) 1 SCC 284, Dolat Ram and others vs. State of Haryana (1995) 1 SCC
349
and Ramcharan vs. Sta te of M.P. (2004) 13 SCC 617.
17. However, we are of the opinion that that is not an absolute rule, and it will
depend on the facts
and circumstances of the case. In considering whether to cancel the bail the Court
has also to
consider the gravity and nature of the offence, prima facie case against the
accused, the position
and standing of the accused, etc. If there are very serious allegations against the
accused his bail
may be cancelled even if he has not misused the bail granted to him. Moreover, the
above
principle applies when the same Court which granted bail is approached for
canceling the bail. It
will not apply when the order granting bail is appealed against before an
appellate/revisional
Court.
18. In our opinion, there is no absolute rule that once bail is granted to the accused
then it can
only be cancelled if there is likelihood of misuse of the bail. That factor, though no
doubt
important, is not the only factor. There are several other factors also which may be
seen while
deciding to cancel the bail.
19. This is a very serious case and cannot be treated like an ordinary case. The

accused who are

policemen are supposed to uphold the law, but the allegation against them is that
they functioned
as contract killers. Their version that Ramnarayan Gupta was shot in a police
encounter has been
found to be false during the investigation. It is true that we are not deciding the
case finally as that
will be done by the trial court where the case is pending, but we can certainly
examine the
material on record in deciding whether there is a prima facie case against the
accused which
disentitles them to bail.
20. Accused No. 11 API Nitin Sartape, accused No.17 PSI Ganesh Harpude, and
accused No.19
PSI Pandurang Kokam, who were attached to Versova Police Station, as per the
station diary
entry 33 of Versova Police Station left Versova Police Station to go to D.N.Nagar
Police Station
on a special assignment. That entry No.33 was taken in the station diary of Versova
Police Station
at 18.05 hours. Entry No.25 in the station diary of D.N.Nagar Police Station at 18.55
hrs. shows
that Police Inspector Suryavanshi, API Dilip Palande (accused No.15), PSI Arvind
Sarvankar
(accused No.22), PSI Patade (accused No.18) and API Sartape (accused No.11), PSI
Harpude
(accused No.17) and Police Constable Batch No.26645 i.e. Pandurang Kokam
(accused No.19)
left the Police Station to go near Nani Nani Park to verify and to arrest a hardened
criminal. It
appears that 3 police officers i.e. AP Sartape, PSI Harpude and Constable
Pandurang Kokam
were specially called from the Versova Police Station and they were in the team of
the police
officers and staff who accompanied PI Suryavanshi. This team left the police station
at 18.55 hrs.
as per the said entry and it appears that at about 8 to 8.15 p.m. Ramnarayan was
shot dead. At this
stage, the defence of the accused need not be taken into consideration, because
during the
investigation, it has been found that there was no encounter and Ramnarayan
Gupta was shot
dead in a fake encounter. This station diary No.25 of 18.55 hrs. goes to show that
accused No.17

PSI Hapude, accused No.18 PSI Patade and accused No.19 Constable Pandurang
Kokam were the
members of the team which killed Ramnarayan. Not only this, as per the record of
D.N.Nagar
Police station, on 11.11.2006, at 6 p.m. Police Inspector Suryavanshi, API Sartape
and PSI Anand
Patade had collected weapons and ammunition. Naturally, those weapons were
collected by the
said officers to go to some place for a mission. According to them, they went to at
Nana Nani
Park where Ramnarayan Gupta was killed. In view of this, the presence of PSI Patade
in the team
which executed the said plan and killed Ramnarayan does not appear to be in
doubt. Merely
because accused No.18 PSI Patade himself did not fire is not sufficient. Accused Nos.
17 Ganesh
Harpude and accused No.19 Pandurang Kokam, as pointed out above, were also
members of that
team. It is also material to note that these accused persons had consistently taken a
stand that they
were present at the time of the said encounter and this is clear from their stand
taken before the
High Court as well as before the Supreme Court in Special Leave Petition filed by the
accused
Nos. 13, 16, 19 and 21. In that SLP also they had stated that accused Nos. 17 and
18 were also in
the encounter team. Hence there is a prima facie case against them.
21. As far as accused Nos. 16, 17, 18 and 19 are concerned, there is sufficient
material to prima
facie establish their role in this conspiracy and the alleged execution of
Ramnarayan Gupta.
Accused No.13 was allegedly given duty of guarding Anil Bheda at Hotel Mid Town
where he
was being detained illegally. It is contended by the learned Counsel for the accused
that if any
duty of guarding or surveillance is given to a Police Constable by his superiors, he is
bound to
discharge that duty and merely because he was given the guarding duty, it cannot
be said that he
was party to the conspiracy. However, it cannot be forgotten that accused No.13
was one of the
petitioners before the Supreme Court and had claimed that he was a member of the
encounter
team along with PI Suryavanshi and others, and this admission finds corroboration

from the
contents of the FIR registered by PI Suryavanshi himself.
22. In fact, the prosecution material collected during the investigation prima facie
indicates that
Ramnarayan Gupta was abducted during the day time and was taken to D.N.Nagar
Police Station
and from there he was taken to some unknown place where he was shot dead. At 9
p.m. some
police officers came back to the police station and deposited their weapons and
kept their blood
stained clothes. 23. In our opinion this is a very serious case wherein prima facie
some police
officers and staff were engaged by some private persons to kill their opponent i.e.
Ramnarayan
Gupta and the police officers and the staff acted as contract killers for them. If such
police
officers and staff can be engaged as contract killers to finish some person, there
may be very
strong apprehension in the mind of the witnesses about their own safety. If the
police officers and
staff could kill a person at the behest of a third person, it cannot be ruled out that
they may kill the
important witnesses or their relatives or give threats to them at the time of trial of
the case to save
themselves. This aspect has been completely ignored by the learned Sessions
Judge while
granting bail to the accused persons.
24. In our opinion, the High Court was perfectly justified in canceling the bail to the
accusedappellants. The accused/appellants are police personnel and it was their
duty to uphold the law,
but far from performing their duty, they appear to have operated as criminals. Thus,
the protectors
have become the predators. As the Bible says "If the salt has lost its flavour,
wherewith shall it be
salted?", or as the ancient Romans used to say,"Who will guard the Praetorian
guards?" (see in
this connection the judgment of this Court in CBI vs. Kishore Singh, Criminal Appeal
Nos.20472049 decided on 25.10.2010).
25. We are of the view that in cases where a fake encounter is proved against
policemen in a trial,
they must be given death sentence, treating it as the rarest of rare cases. Fake
`encounters' are
nothing but cold blooded, brutal murder by persons who are supposed to uphold the

law. In our
opinion if crimes are committed by ordinary people, ordinary punishment should be
given, but if
the offence is committed by policemen much harsher punishment should be given
to them
because they do an act totally contrary to their duties.
26. We warn policemen that they will not be excused for committing murder in the
name of
`encounter' on the pretext that they were carrying out the orders of their superior
officers or
politicians, however high. In the Nuremburg trials the Nazi war criminals took the
plea that
`orders are orders', nevertheless they were hanged. If a policeman is given an
illegal order by any
superior to do a fake `encounter', it is his duty to refuse to carry out such illegal
order, otherwise
he will be charged for murder, and if found guilty sentenced to death. The
`encounter' philosophy
is a criminal philosophy, and all policemen must know this. Trigger happy policemen
who think
they can kill people in the name of `encounter' and get away with it should know
that the gallows
await them.
27. For the above reasons, these appeals are dismissed.
28. Before parting with this case, it is imperative in our opinion to mention that our
ancient
thinkers were of the view that the worst state of affairs possible in society is a state
of
lawlessness. When the rule of law collapses it is replaced by Matsyanyaya, which
means the law
of the jungle. In Sanskrit the word `Matsya' means fish, and Matsyanyaya means a
state of affairs
where the big fish devours the smaller one. All our ancient thinkers have
condemned
Matsyanyaya vide `History of Dharmashastra' by P.V. Kane Vol. III p. 21. A glimpse of
the
situation which will prevail if matsyanyaya comes into existence is provided by Mark
Antony's
speech in Shakespeare's `Julius Caesar' quoted at the beginning of this judgment.
29. This idea of matsyanyaya (the maxim of the larger fish devouring the smaller
ones or the
strong despoiling the weak) is frequently dwelt upon by Kautilya, the Mahabharata
and other
works. It can be traced back to the Shatapatha Brahmana XI 1.6.24 where it is said

"whenever
there is drought, then the stronger seizes upon the weaker, for the waters are the
law," which
means that when there is no rain the reign of law comes to an end and
matsyanyaya beings to
operate.
30. Kautilya says, `if danda be not employed, it gives rise to the condition of
matsyanyaya, since
in the absence of a chastiser the strong devour the weak'. That in the absence of a
king (arajaka)
or when there is no fear of punishment, the condition of matsyanyaya follows is
declared by
several works such as the Ramayana II, CH. 67, Shantiparva of Mahabharat 15.30
and 67,16.
Kamandaka II. 40, Matsyapurana 225.9, Manasollasa II. 20.1295 etc.
31. Thus in the Shanti Parva of Mahabharat Vol. 1 it is stated:"Raja chen-na bhavellokey prithivyaam dandadharakah Shuley matsyanivapakshyan
durbalaan balvattaraah"
32. This shloka means that when the King carrying the rod of punishment does not
protect the
earth then the strong persons destroy the weaker ones, just like in water the big fish
eat the small
fish. In the Shantiparva of Mahabharata Bheesma Pitamah tells Yudhishthir that
there is nothing
worse in the world than lawlessness, for in a state of Matsyayaya, nobody, not even
the evil doers
are safe, because even the evil doers will sooner or later be swallowed up by other
evil doers. 33.
We have referred to this because behind the growing lawlessness in the country this
Court can see
the looming danger of matsyanyaya.
34. The appeals are dismissed, but it is made clear that the trial court will decide
the criminal case
against the appellants uninfluenced by any observations made in this judgment, or
in the
impugned judgment of the High Court.

Justice Markandey
Katju clarifies
Justice Markandey Katju, Chairman,
Press Council of India, has issued the
following clarification on his critical
observations of the Indian media.
I have expressed my views relating to the media
in several T.V. interviews I gave as well as in my
articles in some newspapers.
However, many people, including many media
people, wanted clarification and amplification of
some of the issues I had raised. Many media
people (including several T.V. channels) wanted
interviews with me but I told them that I will not
give interviews for some time, since it does not
create a good impression if one keeps giving
interviews frequently. However, since some

controversy appears to have been raised about

what I said a clarification is in order.
Today India is passing through a transitional
period in our history, the transition being from
feudal agricultural society to modern industrial
society. This is a very painful and agonizing
period in history. The old feudal society is being
uprooted and torn apart, but the new modern
industrial society has not been fully and firmly
established. Old values are crumbling, but new
modern values have not yet been put in place.
Everything is in flux, in turmoil. What was
regarded good yesterday, is regarded bad today,
and what was regarded bad is regarded good. As
Shakespeare said in Macbeth Fair is foul and
foul is fair.
If one studies the history of Europe from the 16th
to the 19th Centuries, when the transition from
feudalism to modern society was taking place,
one will know that this transitional period was
full of turbulence, turmoil, wars, revolutions,
chaos, social churning, and intellectual ferment.

It was only after going through this fire that

modern society emerged in Europe. India is
presently going through that fire. We are going
through a very painful period in our countrys
history, which, I guess, will last another 15 to 20
years. I wish this transition would take place
painlessly and immediately but unfortunately
that is not how history functions.
In this transition period the role of ideas, and
therefore of the media, becomes extremely
important. At a particular historical juncture,
ideas become a material force. For instance, the
ideas of liberty, equality and fraternity, and of
religious freedom (secularism) became powerful
material forces during the Age of Enlightenment
in Europe and particularly during the American
and French Revolutions. In the age of transition
in Europe, the media (which was only the print
media at that time) played a great, historical role
in the transformation of feudal Europe to
modern Europe.

Historically, the print medium arose as an organ

of the people against feudal oppression. At that
time, the established organs of power were all in
the hands of the feudal, despotic authorities
(kings, aristocrats, etc.). Hence the people had to
create new organs which could represent their
interests. That is why the print medium became
known as the Fourth Estate. In Europe and
America it represented the voice of the future, as
a contrast to the established feudal organs which
wanted to preserve status quo.
Great writers like Voltaire, Rousseau, Thomas
Paine, Junius (whose real name we yet do not
know) played an outstanding role in this
connection (see Will Durants The Age of
Voltaire and Rousseau and Revolution). The
Encyclopaedists like Voltaire, Diderot, Helvetius,
Holbach etc. created the Age of Reason, which
paved the way for a modern Europe. Diderot
wrote that Men will be free when the last king is
strangled with the entrails of the last priest.
Voltaire, in his satirical novels Candide and
Zadig lashed out at religious bigotry,

superstitions, and irrationalism. Rousseau in his

Social Contract attacked feudal despotism by
propounding the theory of the general will
(which broadly stands for popular sovereignty).
Thomas Paine wrote about the Right of Man, and
Junius attacked the corruption of the Ministers
of the despotic George III. Dickens criticized the
terrible social conditions in 19th Century
England. These, and many others, were
responsible for creating modern Europe.
In my opinion the Indian media too should play
a progressive role similar to the one played by
the European media. This it can do by attacking
backward and feudal ideas and practices like
casteism, communalism, superstitions,
oppression of women, etc. and propagating
modern rational and scientific ideas, secularism,
and tolerance.
At one time a section of our media played a great
role in our country. Raja Ram Mohan Roy
courageously attacked backward customs like
sati, child marriage, purda, etc in his newspapers

Miratul Akbhar and Sambad Kaumudi. Nikhil

Chakravarty wrote about the horrors of the
Bengal Famine of 1943. Munshi Premchand and
Sharat Chandra Chattopadhyaya wrote against
feudal practices and oppression of women.
Saadat Hasan Manto wrote about the horrors of
Partition.
When I criticized the Indian media, and
particularly the electronic media for not playing
such a progressive and socially responsible role, I
was furiously attacked by a section of the media
for my views. Some even launched a personal
attack on me saying that I was an agent of the
government.
I could have retaliated back in the same tone by
saying that most media persons are agents of the
corporates who have hired them, but I refrained
from doing so as I did not want to stoop down to
their level. When serious issues are raised about
the functioning of the media it was expected that
those issues would be addressed seriously
instead of launching personal attacks on me, or

simply dismissing me as irresponsible (as one

Exalted Person has done).
By criticizing the media I wanted to persuade the
media to change its manner of functioning and
not that I wanted to destroy it. The Indian media
has a historical role to play in the age of
transition, and I wanted to remind the media
persons of their historical duty to the nation.
Instead of taking my criticism in the correct
spirit, a veritable diatribe was launched against
me by a section of the media, which painted me
as some kind of dictatorial monster.
The great Hindi poet Rahim has written:
Nindak nearey raakhiye
Aangan kuti Chawaye
The media should regard me as their well wisher.
I criticized them because I wanted media persons
to give up many of their defects (some of which I
had mentioned in my T.V. interviews and
articles) and follow the path of honour which the

European media was following, and which will

give them the respect of the Indian people.
I mentioned that 80% of our countrymen are
living in horrible poverty, there is massive
unemployment, skyrocketing prices, lack of
medical care, education etc. and barbaric social
practices like honour killing, dowry death, caste
oppression, religious bigotry, etc. Instead of
seriously addressing these issues 90% of the
coverage of our media goes to entertainment,
e.g., lives of film stars, fashion parades, pop
music, disco dancing, cricket etc, or showing
superstitions like astrology.
No doubt the media should provide some
entertainment also to the people, but if 90% of
its coverage is devoted to entertainment, and
only 10% to all the socio-economic issues put
together, then the sense of priorities of the media
has gone haywire. The real issues before the
people are the socio-economic issues, and the
media is seeking to divert their attention to the
non issues like film stars, fashion parades, disco,

pop, cricket etc. Does a hungry or unemployed

man require entertainment, or food and a job? It
is because of this lack of a sense of priorities and
for showing superstitions, that I criticized the
media.
One should not be afraid of criticism, nor should
one resent it. People can criticize me as much as
they like, I will not resent it, and maybe I will
benefit from it. But similarly the media too
should not mind if I criticize them. My aim in
doing so is to make them better media people.
While criticizing, however, fairness requires that
one should report the words of ones opponent
accurately, without twisting or distorting them.
That was the method used by our philosophers.
They would first state the views of their
opponent, in what was called as the
purvapaksha. This was done with such accuracy
and intellectual honesty that if the opponent
were present he could not have stated his views
better. Thereafter it was sought to be refuted. In
this connection one may read Madhavacharyas

Sarva Darshan Sangrah (Madhavacharya was

the founder of the Dvait school of Vedanta). The
views of the Charvaks (Materialist thinkers), the
Buddhists, Jains, etc are stated in the
purvapaksha with such accuracy that if they
were present they could not have put them
better.
Unfortunately, this practice is often not followed
by our media, and my words were distorted by
many, and then I was furiously attacked. To give
only two examples: (1) In my interview to Mr.
Karan Thapar, I stated that in my opinion the
majority of media people are of a poor
intellectual level. This statement of mine was
twisted and distorted by several persons on T.V.
channels who quoted me as saying that all media
persons are uneducated and illiterate. I
telephoned the lady journalist who anchored one
of such T.V. panel discussions and asked her why
she had distorted my words. She had begun the
panel discussion by saying Katju called
journalists uneducated. She said she only
interpreted what I said. I told her that first she

should have quoted my exact words, and then

only should she have interpreted them. I would
like to clarify this further.
Firstly, I did not make a statement about all
media people but only of the majority. There are
many media people for whom I have great
respect. I had mentioned the name of Mr. P.
Sainath, whose name should be written in letters
of gold in the history of India journalism (for
highlighting farmers suicides and other farmers
issues). I can name several others. Mr. Paranjoy
Guha Thakurta and Mr. Shreenivas Reddy did a
commendable job in exposing in detail the
scandal of paid news. I also have high respect for
Mr. Vinod Mehta, Mr. Vinod Sharma, Mr. N.
Ram and many others.
I may also mention that before my interview with
Mr. Karan Thanpar I sat for about 10 minutes in
his office having a cup of coffee with him. At that
time I mentioned the name of Emile Zola to him,
and he immediately said J Accuse. That one
word made him go up high in my esteem. I

earlier did not have a very high opinion of him,

but that single word completely changed my
opinion, and I realized I was in the presence of a
highly educated man.
So I wish to clarify have that I did not paint the
entire media with the same brush, but my words
were totally distorted.
Secondly, I did not say that this majority was
uneducated or illiterate. This again was a
deliberate distortion of what I said. I never used
the word uneducated. I said that the majority is
of a poor intellectual level. A person may have
passed B.A. or M.A. but yet may be of a poor
intellectual level.
Thirdly, even if one did not agree with my view,
he could have coolly and patiently disagreed in a
civil tone and expressed his own views instead of
shouting and raving on the TV screen and giving
an ugly display of temper. And this by a person
who belongs to a profession a large section of
which is accused of the scandal of paid news,

Radia tapes, etc. Really, the Lady doth protest

too much! (Shakespeare: Hamlet).
(2) I have again and again said in my articles,
speeches and TV interviews that I am not in
favour of harsh measures against the media. In a
democracy, issues are ordinarily resolved by
discussion, persuasion, consultation, and
dialogue, and that is the method I prefer, rather
than using harsh measures. If a
channel/newspaper has done something wrong I
would prefer to call the persons responsible ad
patiently explain to them that what they have
done is not proper. I am sure that in 90% or
more cases that would be sufficient. I strongly
believe that 90% of people who are doing wrong
things can be reformed and made good people.
It is only in extreme cases, which would only be
about 5 to 10%, that harsh measures would be
required, and that too after repeated use of the
democratic method has failed and the person
proves incorrigible.

This statement of mine was again distorted and a

false impression created that I wanted to impose
emergency in the country, cartoons were
published in some newspapers showing me as
some kind of dictator, etc., etc.
The truth is that I have always been a strong
votary for liberty, and the proof of this is my
judgments in the Supreme Court and the High
Court in which I have consistently held that
judges are guardians of the liberties of the
citizens, and they will be failing in their duties if
they do not uphold these liberties. However,
liberty does not mean license to do anything one
wishes. All freedoms are subject to reasonable
restrictions in the public interest, and are
coupled with responsibilities.
We may now discuss the question of self
regulation.
Self regulation by electronic media
At present, there is no regulatory authority to
cover the electronic media. The Press Council of
India governs only the print media, and even in

cases of violation of journalistic ethics by the

latter the only punishment which can be given is
admonition or censure.
I have written to the Prime Minister requesting
him to initiate legislation to amend the Press
Council Act by (1) bringing electronic media also
under the ambit of the Press Council, and (2)
giving more teeth to the Press Council.
The electronic media has strongly opposed
bringing it under the Press Council. Their claim
is of self regulation. But even Judges of the
Supreme Court and High Courts do not have
such an absolute right. They can be impeached
by Parliament for misconduct. Lawyers are
under the Bar Council, who can suspend or
cancel their license for professional misconduct.
Doctors come under the Medical Council who
can suspend/cancel their license. Auditors are in
the same position. Why then is the electronic
media shy of coming under any regulatory
authority? Why these double standards? If they
do not wish to come under the Press Council

(because the present Chairman is a wicked

and/or undesirable person) then the N.B.A., and
B.E.A. should indicate under which regulatory
authority they wish to come. Are they willing to
come under the proposed Lokpal? I have
repeatedly raised this question in several
newspapers, but my question has always been
met either by stony silence on the part of the
N.B.A., and B.E.A. or dismissing the very
question as irresponsible.
T.V. news and shows have a large influence on a
wide section of our public. Hence in my opinion
T.V. channels must also be made accountable to
the public.
If the electronic media insists on self regulation,
then by the same logic politicians, bureaucrats,
etc., must also be granted the right of self
regulation, instead of being placed under the
Lokpal. Or does the electronic media regard itself
so holy, so doodh ka dhula that nobody should
regulate it except itself. In that case, what is paid

news, Radia tapes, etc? Is that the work of

saints?
In fact there is no such thing as self regulation,
which is an oxymoron. Everybody is accountable
to the people in a democracy, and so is the
media.
CREATING A FRANKENSTEIN
By Justice Markandey Katju

I had been keeping silent throughout the Anna Hazare Movement for creating a
Lokpal (Janlokpal) because the media (particularly electronic media) had so much
hyped the issue and generated such an emotional storm that anyone who would
have raised some logical questions would have immediately been branded as a
deshdrohi or gaddar. Anna Hazare was depicted as a modern messiah, who, like
Moses, had come to rescue his chosen people and lead them to a land of honey and
milk.
Now that the brouhaha and hullabaloo has subsided it is time to make a
cool, dispassionate, logical assessment of Mr. Hazare and his movement.
I have no doubt that Anna Hazare is an honest man, but my point is that the
problems facing the country (and corruption is certainly one of them) are so

massive that they can only be solved by a rational, scientific approach, not by
emotional outbursts. Honesty alone is not enough.
So far as I could gather, Anna Hazare has no scientific ideas. Consider two
of his statements:
1. His solution to alcoholism is to tie alcoholics to a pole and whip them. Is this a
rational solution? Most poor people who drink liquor in this country drink cheap
country liquor, not scotch. They drink to get some temporary relief from their
miserable lives. To abolish alcoholism among them would be possible only by
abolishing poverty, and that can be done by raising their standard of living and
giving them decent lives. This is a gigantic task, and cannot be solved by flogging
them in public.
2. Anna Hazare demands a right to recall elected representatives. But how is that
possible within the system? Supposing a law is made that a motion can be moved
for recall of an M.L.A. or M.P. signed by 10,000 voters. But for getting this motion
passed there will have to be voting by all the voters in the constituency. This would
mean another election. Is this feasible? An election entails a huge amount of
expenditure, can a poor country like ours have repeated elections? I think the idea
is totally impractical.
Now coming to the Lokpal Bill, whether Janlokpal Bill or Sarkari Lokpal
Bill, it envisages overseeing the work of some 55 lac government employees in the
country (of which 13 lacs are in the Railways alone), from Prime Minister to peon.

Surely one person cannot enquire into the lacs of complaints which are bound to
pour in. It will require thousands of Lokpals, may be 50,000 of them to do this. All
these have to be provided salaries and other amenities, housing, offices, staff etc.
And then where is the guarantee that these will not themselves become corrupt? In
fact considering the low level of morality prevailing in India, we can be fairly
certain that a large number of them will become blackmailers. In my opinion, the
Lokpal Bill will create a parallel bureaucracy, which will turn into a Frankenstein
monster. Instead of curtailing corruption, in all probability at a stroke it will double
or triple corruption in the country.
I regret to say that the implications of creating such an apparatus were not
rationally thought out, and instead some people thought that all problems of
corruption will be solved by shouting Bharat Mata Ki Jai or Inquilaab
Zindadbad from Jantar Mantar or Ram Lila Ground.
I may clarify that I am not against any kind of Lokpal. Justice Hegde did a
fantastic job in exposing the corruption of the mining mafia in Karnataka. But the
type of Lokpal envisaged in the Janlokpal Bill or Government Lokpal Bill are
clearly impractical and unworkable.
I would therefore respectfully urge Parliament to defer consideration of the
Bill before it and refer the matter to a Standing Committee (as Shri Lalu Yadav has
suggested) where experts from various fields in the country and outside be invited

to give their views, and only then a workable Lokpal machinery can be created.
Passing Bills in a hurry and under pressure of some people having their own
agenda will only add to the huge problems facing the country.
12.3.2012
The Honble Speaker
Karnataka Legislative Assembly,
Bangaluru.
Respected Sir,
Re: Proceedings against mediapersons for telecasting M.L.A.s watching porn

Some M.L.A.s of the Karnataka Legislative Assembly were filmed watching porn in
the Assembly Hall. Instead of commending the mediapersons for their professionalism,
proceedings have been started against them.
In my respectful opinion such proceedings against the mediapersons jeopardize the
freedom of the media guaranteed as a fundamental right by Article 19 (1) (a) of the Constitution
of India, and seek to create an impression that it is the media which has brought the House into
disrepute rather than the M.L.A.s involved.
I am informed that an inquiry committee has been set up by the House to enquire into
the matter. In my respectful opinion the inquiry committee can certainly ask the mediapersons
concerned questions to ascertain the correct facts about this sordid affair. But from what I could
gather, the question being asked give the impression that the mediapersons are being treated as
an accused of some offence, and are being grilled accordingly.
Since grave Constitutional questions are involved in this episode I would like to dwell
on the matter in some detail.

In our country it is the Constitution which is supreme, not the legislature or executive.
The people of India, in their wisdom, and following the examples of the American and French
Constitutions, did not give the legislature absolute sovereignty but only limited sovereignty. Thus
the Indian Constitution does not incorporate Hobbes theory of absolute sovereignty (see
Leviathan) but instead it incorporates Lockes theory of limited sovereignty (see the Second
Treatise on Civil Government) and Rousseaus theory of sovereignty of the people (see The
Social Contract).
Hence neither the legislature nor the executive can violate the constitutional
provisions, particularly the fundamental rights like Article 19 (1) (a).
In a democracy it is the people who are supreme, and all authorities, whether
legislative, executive or judicial, are only servants of the people. This is also borne out from the
Preamble to the Indian Constitution which states:
We, the People of India,..do hereby adopt, enact and give ourselves this
Constitution
Since the people are the masters , and the legislators only their representatives, surely
the public has the right to be informed of the activities of the legislators. And the media is an
agency of the people to give them this information. Hence I do not see what wrong the media has
done by telecasting the watching of porn by the M.L.A.s in the House. To my mind the media
were only doing their duty to the people of informing them of the shameful manner in which
some of their representatives were behaving.
In this connection I would like to refer to the following words in the judgment of Mr.
Justice Hugo Black of the U.S. Supreme Court in New York Times vs. U.S 403 U.S. 713, 1973
(the Pentagon Papers case):
Only a free and unrestrained press can effectively expose deception in government.
And paramount among the responsibilities of a free press is the duty to prevent any part of the

government from deceiving the people and sending them off to distant lands to die of foreign
fevers and foreign shot and shell. In my view far from deserving condemnation for their
courageous reporting, the New York Times, the Washington Post, and other newspapers deserve
to be commended for serving the purpose which the Founding Father saw so clearly. In revealing
the workings of the government which led to the Vietnam War the newspapers nobly did
precisely that which the Founders hoped and trusted they would do.
To use similar language, far from deserving condemnation, the mediapersons who
revealed to the nation the disgusting scenes of M.L.A.s watching porn in the House deserve to
be applauded for their courageous reporting.
Ordinarily, in a democracy all proceedings in a Legislative Assembly must be freely
telecast and reported so that the people, who are the supreme authority in a democracy, know
how their representatives are behaving. There may, of course, be exceptional situations where
this cannot be done. For example, in the Second World War many secret sessions of the House of
Commons were held so that Nazi spies may not know the views of the British political leaders.
But such secrecy can only be in exceptional situations. I fail to see what was the exceptional
situation in Karnataka which could justify prohibiting mediapersons to report events in the
House.
I would therefore respectfully request you to reconsider your decision and withdraw
the proceedings against the mediapersons, and instead take strong action against the M.L.A.s
who have brought disgrace to the House.

(Justice
Markandey Katju)
Chairman, Press
Council of India

Ten ways of being foolish

90 per cent of Indians have an unscientific

temper. The facts bear it out

After my article The 90% was published in

The Indian Express on April 4, I got a call
from the Delhi correspondent of The Wall
Street Journal asking me on what basis I had
mentioned the figure 90 per cent when I said
that 90 per cent Indians are fools. I replied
that it was not a mathematical figure, what I
meant was that an overwhelming number of
Indians were fools. Therefore the figure might
be 85 per cent, on the other hand it could be
95 per cent. Consider the following facts:
One,Tamilians are some of the finest and
most intelligent among Indians. They have
done the country proud in various fields
scientific research, mathematics, IT, medicine

etc. In the US and Europe, the science and

mathematics

departments

of

many

universities and institutes are full of Tamilian

professors.
Yet

Tamilians

are

some

of

the

most

superstitious people in India. This may sound

like a paradox, but it is true, and this just
shows that scientific and unscientific ideas
can co-exist in the same head. When I went to
Chennai to take oath as Chief Justice of
Madras High Court in November 2004, I was
told not to take oath in Rahukalam time. I
asked what this Rahukalam was, and was told
it was the inauspicious time according to
astrology. Now, Rahukalam is all nonsense
(as is all astrology), but over 90 per cent of
Tamilians believe in it. To give an example, a
very senior south Indian lawyer practising in

the Supreme Court told me that his Tamilian

clients tell him not to begin reading their
briefs during Rahukalam time.
Two, most ministers and even many chief
justices of high courts take oath at the
auspicious

time,

as

advised

by

their

astrologer.
Three, judges of the Supreme Court are
allotted houses in the Supreme Court Judges
pool. One of such houses was 7, Tughlak
Lane. Unfortunately some mishaps happened
to some judges who occupied this house, and
thereafter no judge would accept it, thinking
it was inauspicious. Ultimately, the then Chief
Justice of India wrote to the concerned
authority to remove that house from the

judges pool, which was done, and another

house allotted to the pool.
Four, some years back it was announced in
the media (which plays a prominent role in
spreading superstitions) that Lord Ganesh
was drinking milk. There was a rush of huge
crowds in many cities in India to offer milk to
idols of Lord Ganesh. Similarly, some years
back a miracle chapati was announced. Many
such miracles keep happening from time to
time, and most people believe them.
Five, this is a baba-bound society. Consider
the number of godmen, their huge following
and huge properties they amass. The latest
one claims to have a third eye, like Lord
Shiva. It was published in a leading English
newspaper (April 18) that he had told people

in Raipur not to keep shivalingams at home

for their welfare but to put them in temples.
As a result, temples in Raipur were flooded
with Shivalingams. He had also advised
eating kheer, samosas, golgappas etc for
various problems. And much of all this was
lapped up by his followers, who have donated
huge amounts to him.
Six, when I was a judge in the Allahabad High
Court, it was announced that someone in
Tamil Nadu had discovered a method of
converting water into petrol. Some of my
colleagues said that now we will get cheap
petrol. I told them this was a fraud, because
in science there is a principle that everything
moves from a higher energy level to a lower
energy level. Petrol is at a higher energy level,
whereas water is at a lower energy level.

Water (H2O) is really burnt hydrogen, it is

like ash. You can convert wood into ash by
burning it, but how can you convert ash into
wood? And later it was found to be a fraud.
Seven, before finalising a marriage most
parents consult astrologers, and it is only if
the kundali matches that the proposal is
finalised. The poor mangalik girl is often
rejected for no fault of hers.
Eight, every day, a large number of TV
channels show astrology and all kinds of
superstition.

The

Broadcast

Editors

Association announced that they will stop all

this shortly, but how can they? The members
of these bodies are only employees, not
owners of the channels. Their pay packages
(sometimes going up to two or three crores

per year) are often linked with the TRP rating.

Their

owners

have

given

one

simple

instruction to them keep the TRP rating

high.The owners only want profits, profits
depend on advertisement revenues, which in
turn depends on viewership.
Unfortunately, the intellectual level of the
middle classes (who are the main viewers) in
India is very low. All they wish to see is the
lives of filmstars, fashion parades (often with
half-naked women), cricket (which is opium
for the masses) and of course, astrology. And
so this is dished out day after day to get high
TRP ratings.
Nine, most Hindus are communal, and most
Muslims are also communal. As I have
repeatedly

pointed

out,

they

were

not

communal before 1857. Before 1857, Hindus

used to celebrate Eid, and Muslims used to
celebrate Holi and Diwali. Muslim rulers, like
the nawab of Avadh, Tipu Sultan etc used to
organise Ramlila, give grants to Hindu
temples, etc. It was after suppressing the
Mutiny that the British decided that the only
way to control India was by divide and rule.
Hence a deliberate policy was laid down by
the British to generate hatred between
Hindus and Muslims. All communal riots
started after 1857. The English collector
would secretly call the local panditji, give him
money, and ask him to start speaking against
Muslims, and he would also call the local
Maulvi secretly and give him money to speak
against

Hindus.

This

poison

was

systematically spread year after year, decade

after decade, until it culminated in the

Partition of 1947 (see History in the Service
of Imperialism, and my articles What is
India

and

other

articles

on

justicekajtu.blogspot.in and the articles and

the video on the website kgfindia.com). Even
now, there are powerful vested interests
promoting communal hatred. The truth is
that 99 per cent people of all communities are
good, but it will take a lot of time to remove
the communal virus from our body politic.
Today the situation is that whenever any
bomb blasts take place, immediately Muslim
individuals or groups are blamed for it.
Ten, social evils like honour killings, dowry
deaths, female foeticide are still widely
prevalent in India.

I have said all this not to demoralise Indians,

but to point out to them the correct path to
prosperity. It is only scientific thinking that
can save us from the disaster to which we are
headed.
India has a strong scientific heritage (see my
article Sanskrit as a language of science ). It is
only when we go back to the path shown by
our great scientific ancestors, Aryabhatta,
Brahmagupta, Sushrut, Charak, Ramanujan
and Raman and spread scientific thinking
widely that we can recover our former glory.
The writer, a former judge of the Supreme
Court, is chairman of the Press Council
The 90%
By Justice Markandey Katju
Someone told me Justice Katju, you say you wish to keep away from controversies,
but why it that controversies keep chasing you ?

I replied that while it is true that I wish to be uncontroversial, but at the same time I
have a great defect, and that is this: I cannot remain silent when I am seeing my country
going downhill. Even if others are deaf and dumb I am not. So I will speak out. As Faiz
said:
Bol ki lab azad hain tere
Bol zubaan ab tak teri hai
In our Shastras it is written:
Satyam bruyat, priyam bruyat, na bruyat satyam apriyam
Which means Speak the truth, speak the pleasant, but do not speak the unpleasant truth
I wish to rectify this. The countrys situation today requires that we should say
Bruyat satyam apriyam i.e. Speak the unpleasant truth.
When I said that 90% Indians are fools I said an unpleasant truth. The truth is
that the minds of 90% Indians are full of casteism, communalism, and superstitions.
Consider the following:
1.

When our people go to vote in elections, 90% vote on the basis of caste or

community, not the merits of the candidate. That is why Phulan Devi, a known dacoit-cummurderer was elected to Parliament merely because she belonged to a backward caste
which had a large number of voters in that constituency. Vote banks in India are on caste
and community basis, which are manipulated by some unscrupulous politicians and others.
2.

90% Indians believe in astrology, which is pure superstition and humbug. Even a

little commonsense tells us that the movements of stars and planets has nothing to do with
our lives. Yet T.V. channels showing astrology have high T.R.P. ratings.

3.

Cricket has been made into a religion by our corporatized media, and most people

lap it up like opium. The real problems facing 80% people are socio-economic ---- poverty,
massive unemployment, malnourishment, price rise, health care, education, housing etc.
But the media sidelines or minimizes these real issues, and gives the impression that the
real issues are lives of film stars, fashion, cricket, etc. When Rahul Dravid retired the media
depicted it as a great misfortune for the country, whereas when Sachin Tendulkar scored
his 100th century it was depicted as a great achievement for India. Day after day the media
kept harping on this, whereas the issues of a quarter million farmers suicides, and 47%
Indian children being malnourished, was sidelined.
4.

I had criticized the media hype of Dev Anands death at a time when 47 farmers in

India were committing suicide on an average every day for the last 15 years. A section of
the media attacked me for doing so, but I reiterate that I see no justification for the high
publicity given by the media to this event for several days. In my opinion, Dev Anands
films transported the minds of poor people to a world of make believe, e.g. a hill station
where Dev Anand was romancing some girl. This gave temporary relief for a couple of
hours to the viewers from their lives of drudgery. Such films, to my mind, serve no social
purpose, but act instead like a drug or alcohol to send the viewer temporarily from his
miserable existence to a beautiful world of tinsel.
5.

In the recent Anna Hazare agitation in Delhi the media hyped the event as a solution

to the problem of corruption. In reality it was, as Shakespeare said in Macbeth:

A tale, told by an idiot
Full of sound and fury, signifying nothing
At that time if anyone had raised some logical questions he would have been denounced as
a gaddaar or deshdrohi. The people who collected at Jantar Mantar or the Ramlila

ground displayed the mob mentality, which has been accurately described by Shakespeare
in Julius Caesar.
After Caesars murder Mark Antony stirred up the Roman mob, which went around
seeking revenge from the conspirators. One of the conspirators was named Cinna. The mob
caught hold of another man, also named Cinna, who protested that he was Cinna the poet
and not Cinna the conspirator. Despite his protest the mob said Hang him for his bad
verses and lynched him.
The Janlokpal Bill, 2011 (whose full text is available online) defines an act of corruption as
an act punishable under Chapter IX of the Indian Penal Code or under the Prevention of
Corruption Act vide section 2(e). Section 6(a) of the Bill says that the Lokpal will exercise
superintendence over investigation of acts of corruption, and section 6(c) empowers the
Lokpal to punish for acts of corruption after giving a hearing. Section 6(e) authorizes the
Lokpal to initiate prosecution and section 6(f) authorizes him to ensure proper prosecution.
Section 6(i)(j) authorize him to receive complaints.
Section 2 (c) of the Prevention of Corruption Act define a public servant very widely. It
includes not only government servants but also a host of other categories e.g. an employee
of a local body, Government Corporation, judge, certain office bearers of some cooperative societies, officials of Service Commission or Boards, Vice Chancellors and
teachers in the University, etc.
As pointed out by me in my article Recreating Frankensteins Monster published in
Indian Express on 31.3.2012 there are about 55 lac, (5.5 million) government employees
in India (13 lac in Railways alone), and there would be several lac persons of other
categories coming within the definition of public servant in the P.C Act. Obviously one

person cannot supervise and decide the lacs of complaints against them which would pour
in. Hence thousands of Lokpals, maybe 50,000 or more, will have to be appointed to deal
with them. They will have to be given salaries, housing, offices, staff, etc. And considering
the low level of morality prevailing in India, we can be fairly certain that most of them will
become blackmailers. It will be creating a parallel bureaucracy, which at one stroke will
double the corruption in the country. And who will guard these Praetorian guards? A body
of Super Lokpals ?
All this was not rationally analyzed and instead the hysterical mob that gathered in Jantar
Mantar or Ramlila ground in Delhi thought that corruption will be ended by shouting
Bharat Mata ki Jai and Inquilab Zindabad.
It is time that Indians woke up to all this. When I call 90% of them fools my
intention was not to harm them, rather it was just the contrary. I want to see Indians
prosper, I want poverty and unemployment abolished, I want the standard of living of the
80% poor Indians to rise so that they get decent lives.
But this is possible when their mindset changes, when their minds are rid of
casteism, communalism, and superstitions, and instead they become scientific and modern.
By being modern I do not mean wearing a nice suit or beautiful sari or skirt. Being
modern means having a modern mind, which means a rational mind, a logical mind a
questioning mind, a scientific mind. At one time India was leading the whole world in
science and technology (see my article Sanskrit as a language of Science on the website
kgfindia.com). That was because our scientific ancestors like Aryabhatta, Brahmagupta,
Sushrut, Charak, etc questioned everything. However, we subsequently took to the

unscientific path of superstitions and empty rituals, which has led us to disaster. Today we
are far behind the West in Science and Technology.
The worst thing in life is poverty, and 80% of our people are poor. To abolish
poverty we need to spread the scientific outlook to every nook and corner of our country. It
is only then that India will shine. And until that happens the vast masses of our people will
continue to be taken for a ride.
Media cannot reject regulation

If red lines can be drawn for the

legal and medical professions, why
should it be any different for profitmaking newspapers and TV
channels?
I have not read the Private Member's Bill on
media regulation that Meenakshi Natarajan was
scheduled to move in Parliament last week so I
am not in a position to comment upon it, but I
am certainly of the opinion that the media (both
print and electronic) needs to be regulated. Since
my ideas on this issue have generated some
controversy they need to be clarified.

I want regulation of the media, not control. The

difference between the two is that in control
there is no freedom, in regulation there is
freedom but subject to reasonable restrictions in
the public interest. The media has become very
powerful in India and can strongly impact
people's lives. Hence it must be regulated in the
public interest.
The media people keep harping on Article 19 (1)
(a) of the Indian Constitution which guarantees
the freedom of speech and expression. But they
deliberately overlook or underplay Article 19 (2)
which says that the above right is subject to
reasonable restrictions in the interest of
sovereignty and integrity of India, State security,
public order, decency, morality or in relation to
defamation or incitement to an offence.

NOT ABSOLUTE

Thus, while there should be freedom for the

media and not control over it, this freedom must
be exercised in a manner not to adversely affect
the security of the state, public order, morality,
etc. No right can be absolute, every right is
subject to reasonable restrictions in the public
interest. The reason for this is that human beings
are social creatures. No one can live in isolation,
everyone has to live in society. And so an
individual should not exercise her freedom in a
manner so as to harm others or society,
otherwise she will find it difficult to survive.

Media people often talk of self-regulation. But

media houses are owned by businessmen who
want profit. There is nothing wrong in making
profits, but this must be coupled with social
responsibilities. Media owners cannot say that
they should be allowed to make profits even if
the rest of society suffers. Such an attitude is selfdestructive, and it is the media owners who will

suffer in the long run if they do not correct

themselves now. The way much of the media has
been behaving is often irresponsible, reckless
and callous. Yellow journalism, cheap
sensationalism, highlighting frivolous issues (like
lives of film stars and cricketers) and
superstitions and damaging people and
reputations, while neglecting or underplaying
serious socio-economic issues like massive
poverty, unemployment, malnourishment,
farmers' suicides, health care, education, dowry
deaths, female foeticide, etc., are hallmarks of
much of the media today. Astrology, cricket (the
opium of the Indian masses), babas befooling the
public, etc., are a common sight on Television
channels.
Paid news' is the order of the day in some
newspapers and channels where you have to pay
to be in the news. One senior political leader told
me things are so bad that politicians in some
places pay money to journalists who attend their

press conferences, and sometimes even to those

who do not, to ensure favourable coverage. One
TV channel owner told me that the latest Baba
(who is dominating the scene nowadays) pays a
huge amount for showing his meetings on TV.
Madhu Kishwar, a very senior journalist herself,
said on Rajya Sabha TV that many journalists are
bribable and manipulable.
The media claims self-regulation. But by what
logic? How can the News Broadcasters
Association or the Broadcast Editors Association
regulate TV channels driven by profit motive and
high TRP ratings? Almost every section of society
is regulated. Lawyers are a free profession, but
their profession is regulated inasmuch as their
licence can be suspended or cancelled by the Bar
Council for professional misconduct. Similarly
the licences of doctors, chartered accountants,
etc., can be suspended/cancelled by their
regulatory bodies. Judges of the Supreme Court
or the High Court can be impeached by

Parliament for misconduct. But the media claims

that no action should be taken against it for
violating journalistic ethics. Why? In a
democracy everyone has to be accountable, but
the media claims it should be accountable only to
itself ...The NBA and BEA claim self-regulation.
Let me ask them: how many licences of TV
channels have you suspended or cancelled till
now? So far as we know, only one channel was
awarded a fine, at which it withdrew from the
body, and then was asked to come back. How
many other punishments have you imposed? Let
us have some details, instead of keeping
everything secret. Let the meetings of the NBA
and BEA be televised so as to ensure
transparency and accountability (which Justice
Verma has been advocating vociferously for the
judiciary).

Let me quote from an article by Abhishek

Upadhyaya, Editor, Special Projects,Dainik
Bhaskar:
It appears that the BEA was founded to
collectively use intimidatory tactics in favour of a
select few players after NBA failed to do so. The
NBA is so weak, so feeble in its exercise of power
that it can't confroSelf Rs 1 lakh on the channel
which then walked out of the Association.
The group of broadcasters found themselves
completely helpless, couldn't take any action and
finally surrendered meekly before the channel.
The offending channel issued a statement saying
that its return has come after fundamental
issues raised by the channel against the disregard
to NBA's rules and guidelines were appreciated
by the association's directors The head of
India TV, Rajat Sharma, then proceeded to join
the board of NBA, and the channel's managing
editor, Vinod Kapri, returned to the Authority in
the eminent editors' panel!

This was the turning point in the so-called selfregulation mechanism of electronic media. It
became clear that all concerned had made an
unwritten, oral understanding not to raise a
finger on their own brethren in future. BEA was
the next step in this direction, formed on 22
August, 2009 with a few electronic media editors
in the driving seat. Since its inception this body
has been irrationally screaming in the interest of
a select few. The editors of this body announced
some tender sops from time to time to publicise
its good image and thwart any regulatory
attempt in advance.
SELF-REGULATION

If the broadcast media claims self-regulation,

then on the same logic everyone should be
allowed self-regulation. Why then have laws at
all, why have a law against theft, rape or murder?
Why not abolish the Indian Penal Code and ask
everyone to practise self-regulation? The very
fact that there are laws proves that self-

regulation is not sufficient, there must also be

some external regulation and fear of
punishment.
I may clarify here that I am not in favour of
regulation of the media by the government but
by an independent statutory authority like the
Press Council of India. The Chairman of this
body is not selected by the government but by a
three-member selection committee consisting of
(1) The Chairman of the Rajya Sabha (who is the
Vice-President of India) (2) The Speaker of the
Lok Sabha and (3) One representative of the
Press Council.
The Press Council has 28 members, of which 20
are from the Press, five members of Parliament,
and 3 from other bodies (The Bar Council of
India, UGC and Sahitya Academy). The decisions
of the Press Council are taken by a majority vote.
Therefore, I am not a dictator who can ride
roughshod on the views of others. Several of my
proposals were rejected by the majority, and I

respected their verdict. If the electronic media

also comes under the Press Council (which can
be renamed the Media Council), representatives
of the electronic media will also be on this body,
which will be totally democratic. Why then are
the electronic media people so furiously and
fiercely opposing my proposal? Obviously
because they want a free ride in India without
any kind of regulation and freedom to do what
they will.

I would welcome a healthy debate on this issue.

Insult to women

I Protest
By Justice Markandey Katju

I had decided not to write articles any more for quite some time because having
write too many already, I do not want to be accused of seeking cheap publicity.

But the 30th April issue of the India Today has changed my mind. The cover of this
issue shows the cleavage of a female breast, and the words mentioned there are
The Booby Trap Women want them perfect. Men want less flab. Breast surgery is
the new rage. Inside the issue is an article which begins Woo hoo! Its Happy
Cleavage Day. How should I celebrate? Then follow all the details about breast
surgery to increase the female breasts to make them more attractive for men. This
is said to have become a rage in India. The editorial mentions the cost Rs. 1.5 to
2.5 lacs, and says it is not longer unaffordable.
My reaction to all this is -- what has most of the media become? Have you
lost all sense of shame? In a poor country like India where most women are bravely
feeding and supporting their families on the pittance which their husbands, or they
themselves, earn, is it not a gross insult to them to talk of breast enlargement by
surgery?
It is estimated that 47% of Indian children are malnourished. The Prime
Minister himself admitted the figure to be 42%, and said it is a matter of great

shame. This means that about half our children do not get enough to eat. And since
most mothers would rather remain hungry than see their children hungry, this
means maybe 75% of our women are malnourished. Do our Indian women not
deserve sheer admiration for their selfless sacrifice and bravery in supporting their
families? And is it not sheer vulgarity and a disgrace to highlight breast
enlargement, as if that is a great issue in India today?
The editorial of the issue says that Rs. 1.5 to 2.5 lacs is an affordable cost.
Has the writer any idea of the skyrocketing prices of foodstuffs, medicines, etc?
Would a woman devote her budget to supplying food etc to her children, or for
breast enlargement? Most women in India are today eking out a hand to mouth
existence. To talk of breast enlargement by surgery is like Marie Antoinette saying
that if the people do not have bread, let them eat cake.
The lives of most women in India are full of continual, unending labour, a kind
of labour that bears the imprint of bondage. They have to do cooking, washing
clothes, cleaning the home and other household chores, apart from bearing and
rearing children. Petty household work crushes, strangles, stultifies and degrades
them, and they often waste their labour on unproductive, petty, nerve racking and
stultifying work of crushing drudgery.
I.Q tests in modern psychology have shown that the I.Q of an average woman
is the same as that of an average man. Our Constitution provides for equality
between men and women, vide Article 15. But the fact is that the old backward
mentality of looking down on women and treating them as objects of mens lust
persists. And it is this backward mentality which, no doubt only by insinuation, the
issue referred to perpetuates and furthers.

What truly great sacrifices most Indian women are making (and by the way
they are too poor to have breast enlargement surgery)! What self effacing heroism!
They do not demand to be known, they remain anonymous. In these terrible days
where 80% of our 120 crore people are poor, when prices are skyrocketing, when
unemployment has assumed massive proportions, when health care has become
too costly for the masses in these desperate circumstances our brave women are
uncomplainingly toiling from day to night to support their families.
Instead of highlighting frivolous issues like breast enlargement our media
should help our people in their struggle for a better life. But, as I have been
repeatedly emphasizing, a large section of our media deliberately diverts attention
of the people from the real issues facing the Indian masses which are socioeconomic to non-issues like lives of filmstars, cricket, astrology - and now, breast
enlargement.
I am sorry to say that a large section of our media has totally lost its
priorities and sense of proportion.
The Pakistan Supreme Court has flouted all canons of Constitutional
Jurisprudence"
When I was a student of law in the Allahabad University, I had read of the British
Constitutional principle 'The King can do no wrong". At that time I did not
understand the significance of this principle and what it really meant. It was much
later, when I was in law practice in the Allahabad High Court that I understood its
real significance.

The British were experienced and able administrators. They realized from their own
long, historical experience that while everybody should be legally liable for his
wrongs and made to face Court proceedings for the same, the person at the apex of
the whole Constitutional system must be given total immunity from criminal
proceedings ,otherwise the system could not function. Hence the King of England

must be given total immunity from criminal proceedings. Even if he commits

murder, dacoity, theft, or some other crime the King cannot be dragged to Court
and made to face a trial.

One may ask, why should the King be given this immunity when others are not?
The answer is that in the practical world one does not deal with absolutes. The
British were one of the most far sighted administrators the world has known. They
realized that if the King is made to stand on the witness box or sent to jail the
system could not function. A stage is reached at the highest level of the system
where total immunity to the person at the top has to be granted. This is the only
practical view .

Following this principle in British Constitutional Law almost every Constitution in

the world has incorporated a provision giving total immunity to Presidents and
Governors from criminal prosecution.

Thus, Section 248(2) of the Pakistan Constitution states:

"No criminal proceedings whatsoever shall be instituted or continued against the

President or Governor in any Court during his term of office."

The language of the above provision is clear, and it is a settled principle of

interpretation that when the language of a provision is clear the Court should not
twist or amend its language in the garb of interpretation, but read it as it is.

I therefore fail to understand how proceedings on corruption charges (which are

clearly of a criminal nature) can be instituted or continued against the Pakistan
President.

Moreover, how can the Court remove a Prime Minister? This is unheard of in a
democracy. The Prime Minister holds office as long he has the confidence of
Parliament, not confidence of the Supreme Court.

I regret to say that the Pakistan Supreme Court, particularly its Chief Justice, has
been showing utter lack of restraint which is expected of the superior Courts.In fact
the Court and its Chief Justice have been playing to the galleries for long. It
has clearly gone overboard an flouted all canons of Constitutional Jurisprudence.

The Constitution establishes a delicate balance of power, and each of the 3 organs
of the State, the Legislature, the Executive and the Judiciary must respect each
other, and not encroach into each other's domain, otherwise the system cannot
function. It seems to me that the Pakistan Supreme Court has lost its balance and
gone berserk. If it does not now come to its senses I am afraid the day is not far off
when the Constitution will collapse, and the blame will squarely lie with the Pakistan
Supreme Court, particularly its Chief Justice
Judicial Responsibility and Organs of State
After my article about the constitutional misbehaviour of the Pakistan Supreme
Court was published in The Hindu (June 21), I received several queries and
objections regarding it. Hence an explanation is called for, which I am giving below:
The first objection is that the British Constitutional principle, The King can do no
wrong applies to a monarchy, not a republic. My answer is that I am well aware
that Pakistan, like India is a republic. However, in both these countries, total
immunity from criminal prosecution is granted to the President. Thus, Section
248(2) of the Pakistan Constitution states: No criminal proceedings whatsoever
shall be instituted or continued against the President or Governor in any Court
during his term of office. Article 361(2) of the Indian Constitution is identically
worded.
One may ask, why should this immunity be given to the President and Governor
when all other citizens have to face criminal prosecution for a crime? The answer is
that in the real, practical, world there are no absolutes. The British, who were one of
the most far-sighted administrators the world has known, realised from their long,
historical experience that if the King was dragged to a law court, put up on a
witness box, made to face a criminal trial, and sent to jail if found guilty, the system
could not function. Hence, an exception has to be made to the general rule and
immunity granted to the person at the apex of the constitutional system. We, in
India and Pakistan, have followed the British principle instead of the American
principle (in the US Constitution there is no such immunity granted to the
president).
The second objection is that this immunity is only to the official acts of the
president, not his personal acts. This again is a specious argument. There is no such
distinction made in the provision and the use of the word whatsoever strengthens
this view. If we accept this objection we will be adding the words except for his

personal acts after the word whatsoever in Article 248(2). It is a settled principle
of interpretation that one should neither add, nor delete, words in a statute.
The third objection is that after the National Reconciliation Ordinance was declared
unconstitutional by the court, criminal cases can continue against Mr Zardari. This is
not correct. Article 248(2) says that not only can no criminal proceedings can be
instituted against the president, but also that none can be continued. Hence, even if
a criminal case had been instituted against Mr Zardari before he took oath as
president, it cannot continue as long he is the President.
The fourth objection is that Mr Zardaris very election was illegal since the NRO was
declared unconstitutional. There are several replies to this objection. Firstly, Article
41(6) of the Pakistan Constitution states: The validity of an election of the
President shall not be called in question by or before any Court or other authority.
Secondly, the period of limitation for challenging such election has long expired.
Thirdly, the eligibility for being elected a president is mentioned in Article 41, and
the disqualification in Article 63. How was Mr Zardari ineligible?
The fifth objection relates to the courts order disqualifying and effectively removing
Yousaf Raza Gilani from the post of prime minister. Reliance is placed on Article
63(1)(g) of the Constitution which says that a person is disqualified from being a
member of parliament if he is convicted for defaming or ridiculing the judiciary. In
my opinion, it is not every conviction which disqualifies a person under this
provision. We have to see the nature of the act which led to the conviction. If the
prime minister had attributed some corrupt or ulterior motive to the Court, it would
certainly have been defamatory and if he had called the Court stupid, it would
have been ridiculing the Court. But as far as I know, Mr Gilani has done none of
these things. Instead, he respectfully told the Court that it had no jurisdiction to
pass orders which would directly or indirectly violate Article 248(2). How is this
defamation of the Court? If this is regarded as defamation, then whenever a lawyer
tells a Court that it has no jurisdiction that lawyer can be hauled up for contempt of
court and sent to jail.
Moreover, this proposition enunciated by the Supreme Court can be very dangerous
for democracy, because if the chief justice and his companion judges wish to oust a
prime minister (hypothetically, because of personal animosity or some other
reason) they have only to pass an order without jurisdiction and if the prime
minister objects to it, they can convict him for contempt of court and then disqualify
him. This will make the Supreme Court a superior body above the other two organs
of the state, instead of only one of the three equal coordinate organs.
In all countries having a parliamentary system of government, the prime minister
holds office as long he has the confidence of parliament, not the confidence of the
Supreme Court.

I regret to say that for quite some time, the Pakistan Supreme Court seems to be
playing to the galleries and not exercising the self-restraint expected of superior
courts.
I wish to make it clear that I am not a political person and, in particular, I have
nothing to do with the politics of Pakistan. I personally do not know Mr Zardari or Mr
Gilani and I am neither for nor against them. I expressed my views purely from a
legal and constitutional angle because I strongly felt that for some time, the
Pakistan Supreme Court had embarked on a perilous path of confrontation with the
political authorities which would lead to disastrous consequences for the country.
When former General Pervez Musharraf removed the chief justice, we Indians
condemned this attack on democracy and we were happy when he was reinstated.
However, subsequently he and some of his companion judges have acted in a
manner which has prompted my concern as expressed in this piece of writing.
In my judgment in Divisional Manager, Aravalli Golf Course vs. Chander Haas (which
can be seen online) I have emphasised the need for judicial restraint. This is
particularly necessary for the superior courts, because of the three organs of the
state (legislature, executive and judiciary), it is only the judiciary which can
determine the limits of jurisdiction of all the three organs. This great power must,
therefore, be exercised by the judiciary with the utmost humility and self-restraint,
otherwise the delicate balance of power in the constitution will be upset and there
will be chaos.
I do not mean to say that judges should never be activist. In certain exceptional
circumstances where the public interest strongly demands judges may be activist,
but ordinarily they should be self-restrained. In particular, judges should ordinarily
avoid entering the political thicket, as Justices Holmes, Brandeis and Frankfurter of
the US Supreme Court strongly advocated.
The Philosophy of Judicial Restraint
I have expressed my views about the Pakistan Supreme Court and its need to
maintain judicial self restraint in some articles which have been published in
Express Tribune and elsewhere.

However, in view of the judicial turmoil currently

prevailing
in
Pakistan because
of
some
highly controversial orders passed by the Pakistan

Supreme Court, particularly the order ousting the

Prime Minister, a clear elaborate enunciation of the
philosophy of judicial restraint is called for. This in
my opinion is necessary because it is evident that
the Pakistan Supreme Court, particularly its Chief
Justice, have for some time embarked on a
perilous path of confrontation with the political
authorities, for reasons best known to themselves,
which can only have disastrous consequences, not
only for the judiciary but also for the entire country.
In a recent statement, the Chief Justice has said
that it is the Constitution, not Parliament, which is
supreme in the country. There is no controversy
about this legal position, and indeed that is the
settled law since the historical decision of the U.S.
Supreme Court in Marbury vs. Madison (1803).
The grave problem, however, which Courts are
often faced with is this: on the one hand there is no
doubt that the Constitution is the supreme law of
the land and prevails over statutes and executive
decisions, and it is for the Courts to interpret the
Constitution, on the other hand, in the garb of

interpretation, the Court must not seek an

unnecessary confrontation with the legislature,
particularly since the legislature consists of
representatives democratically elected by the
people.
The solution to the problem was provided in the
classical essay written in1893 (and published in the
Harvard Law Review the same year) by Prof.
James Bradley Thayer, the then Professor of law of
Harvard University entitled 'The Origin and Scope
of the American Doctrine of Constitutional Law'.
This essay elaborately discusses the doctrine of
judicial restraint and explains why Courts should
follow it.
Justice Holmes, Brandeis, and Frankfurter of the
U.S.Supreme
Court
were
followers
of
Prof. Thayer's philosophy of judicial restraint.
Justice Frankfurter referred to Thayer as "the great
master of Constitutional Law", and in a lecture in
Harvard Law School said:

"If I were to name one piece of writing on American

Constitutional Law, I would pick Thayer's once
famous essay, because it is a great guide for
Judges, and therefore the great guide for
understanding by non-judgesof what the place of
the judiciary is in relation to Constitutional
questions."
The Court certainly has power to decide
Constitutional issues. However, as pointed out by
Justice Frankfurter in West Virginia State Board of
Education vs. Barnette 319 U.S. 624 (1943), since
this great power can prevent the full play of the
democratic process, it is vital that it should be
exercized with rigorous self restraint.
The philosophy behind the doctrine of judicial
restraint is that there is broad separation of powers
under the Constitution, and the three organs of the
State, the legislature, the executive, and the
judiciary must respect each other, and must not
ordinarily encroach into each other's domain,
otherwise the system cannot function properly.

Also, the judiciary must realize that the legislature

is a democratically elected body which expresses
the will of the people (however imperfectly) and in a
democracy this will is not to be lightly frustrated or
thwarted.
Apart from the above, as pointed out by Prof.
Thayer, judicial overactivism deprives the people of
" the political experience and the moral education
and stimulus that comes from fighting the problem
in the ordinary way, and correcting their own
errors".
In Asif Hameed vs. The State of J&K, AIR 1989
S.C. 1899 (paragraphs 17 to 19 ) the Indian
Supreme Court observed:
"Although the doctrine of separation of powers has
not been recognized under the Constitution in its
absolute rigidity, the Constitution makers have
meticulously defined the functions of various
organs of the State. The legislature, executive, and
judiciary have to function within their own spheres

demarcated in the Constitution. No organ can

usurp the function of another.--While exercize of
powers by the legislature and executive is subject
to judicial restraint, the only check on our own
exercize of power is the self imposed discipline of
judicial restraint."
As observed by Justice Frankfurter in Trop vs.
Dulles (1958):
"All power is, in Madison's phrase, of an
encroaching nature. Judicial power is not immune
against this human weakness. It must be on guard
on going beyond its proper bounds, not the less so
since the only restraint upon it is self restraint.--The
Court must observe a fastidious regard about
limitation of its own power, and this precludes the
Court's giving effect to its own notions of what is
wise and politic. That self restraint is of the essence
in the observance of the judicial oath, for the
Constitution has not authorized the judges to sit in
judgement on the wisdom of what the legislative
and executive branch may do."

As observed by Justice A.S.Anand, former Chief

Justice
of
India:
"Courts have to function within the established
parameters and Constitutional bounds. With a view
to see that judicial activism does not become
judicial adventurism the Courts must act with
caution and proper restraint. They must remember
that judicial activism is not an unguided missile.
Failure to bear this in mind would lead to chaos.
Public adulation must not sway the judges. They
must remember that they cannot run the
government."
Judicial restraint is particularly important for the
Supreme Court for two reasons:
(1) Of the three organs of the State, only one of
them, the judiciary, is empowered to declare the
limits of jurisdiction of all the three organs. This
great power must therefore be exercised by the
judiciary with the utmost humility and self restraint.

(2) The errors of the lower courts can be corrected

by the higher courts, but there is none above the
Sipreme Court to correct its errors.
Some people justify judicial activism by saying that
the legislature and executive are not properly
performing their functions. The reply to this
argument is that the same charge is often leveled
against the judiciary. Should the legislature or
executive then take over judicial functions? If the
legislature or executive are not properly performing
their functions it is for the people to correct them by
exercising their franchise properly, or by peaceful
and lawful public meetings and demonstrations,
and/or by public criticism through the media and by
other lawful means. The remedy is not in the
judiciary taking over these functions, because that
would not only be against the separation of powers
in the Constitution, but also because the judiciary
has neither the expertise nor the resources to
perform these functions.

In this connection I may quote from the article 'The

influence of James B.Thayer upon the work of
Justices Holmes, Brandeis, and Frankfurter' by
Wallace Mendelson published in 31 Vanderbilt Lae
Review 71 (1978):
"If, then, the Thayer tradition of judicial modesy is
outmoded, if judicial aggression is to be the rule, as
in the 1930s, some basic issues remain:
First,how legitimate is government by Judges? Is
anything to beyond their reach? Will anything be
left for ultimate resolution by the democratic
process, for, what Thayer called" That wide margin
of considerations which address themselves only to
the practical judgment of a legislative body
representing (as Courts do not) a wide range of
mundane needs and aspirations?
Legislation is a process slow and cumbersome. It
turns out a product--laws--that rarely are liked by
everybody, and frequently little liked by anybody.
When seen from the shining cliffs of perfection the
legislative process of compromise appears shoddy

indeed. But when seen from some concentration

camp as the only alternative way of life, the
compromises of legislation appear but another
name for what we call civilization.
Let philosophy fret about ideal justice. Politics is
our substitute for civil war. It is far too wise to
gamble for Utopia or nothing, to be fooled by its
romantic verbiage. By give and take, the legislative
process seeks not final truth, but an acceptable
balance of community interests. In this view, the
harmonizing and educational function of the
legislative process itself counts for more than any
of its products. To intrude upon its pragmatic
adjustments by judicial fiat is to frustrate our chief
instrument of social peace.
Second, if the Supreme Court is to be the ultimate
policy making body without accountability, how is it
to avoid the corrupting effects of raw power?
Also, can the Court satisfy the expectations it has
aroused?

Third, can nine men (the Supreme Court Judges)

master the complexities of every phase of
American life? Are any nine men wise enough and
good enough to wield such power over the lives of
millions? Are Courts institutionally equipped for
such burdens? Unlike legislatures, they are not
representative bodies reflecting a wide range of
social interest. Lacking a professional staff of
trained investigators, they must rely for data almost
exclusively upon the partisan advocates who
appear before them. Inadequate or misleading
information invites unsound decisions.
Finally, what kind of citizens will such a system of
judicial activism produce, a system that trains us to
look not to ourselves for the solution of our
problems, but to the most elite among elites:nine
Judges governing our lives without politiclal or
judicial accountability? Surely this is neither
democracy nor the rule of law."

In this connection Justice Frankfurter,while

Professor of Law at Harvard University, wrote in
'The Public and its Government':
"With the great men of the Supreme Court
Constitutional adjudication has always been
statecraft. As a mere Judge Marshal had his
superiors among his colleagues. His supremacy lay
in his recognition of the practical needs of
government."

A classical example of this is Marshal's judgment in

Marbury vs. Madison(1803), in which while
avoiding confrontation with the government of
President Jefferson he upheld the supremacy of
the Constitution. Another example is the very
recent judgment of Chief Justice John Roberts in
the Affordable Healthcare Act case, in which he
basically followed the doctrine of judicial restraint.
In my opinion, adjudication must be done within
the system of historically validated restraints and

conscious minimization of the Judges personal

preferences.
As observed by the Indian Supreme Court in State
of Bihar vs. Kameshwar Singh, AIR1952 S.C.
252(274):
"The legislature is the best judge of what is good
for the community, by whose suffrage it comes into
existence."
In Divisional Manager, Aravali Golf Course vs.
Chander Haas (2006) the Indian Supreme Court
observed
(vide
paragraph
20):
"Judges must know their limits and not try to run
the government. They must have modesty and
humility and not behave like Emperors. There is
broad separation of powers under the Constitution,
and each of the organs of the state must have
respect for the others and must not encroach into
each other's domain."

A similar view was taken in Government of Andhra

Pradesh vs. P. Laxmi Devi (see from paragraphs 47
onwards).
In Lochner vs. New York, 198 U.S. 45(1905) Mr.
Justice Holmes in his dissenting judgment criticized
the majority of the Court for becoming a super
legislature by inventing a 'liberty of contract' theory,
thereby enforcing its own laissez faire economic
philosophy. Similarly, in his dissenting judgment in
Griswold vs. Connecticut, 381 U.S. 479 (1965) Mr.
Justice Hugo Black warned that "unbounded
judicial creativity would make the Court into a dayto-day Constitutional Convention." In 'The Nature of
the Judicial Process' Mr. Justice Cardozo
observed: "The Judge is not a Knight Errant
roaming at will in pursuit of his own ideal of beauty
and goodness." In 'Some Reflections on the
Reading of Statutes' Justice Frankfurter pointed out
that great Judges have constantly admonished
their brethren of the need for discipline in observing
their
limitations.
In this connection reference may usefully be made

to the well known episode in the history of the U.S.

Supreme Court when it dealt with the New Deal
legislation initiated by President Franklin Roosevelt
soon after he assumed office in 1933. When the
overactive Court kept striking down this legislation
President Roosevelt proposed to pack the Court
with six of his nominees. This threat was enough,
and it was not necessary to carry it out. In 1937 the
court changed its confrontationist attitude and
started upholding the legislation (see WestCoast
Hotel Vs. Parrish ). "Economic due process" met
with a sudden demise.
The moral of this story is that if the judiciary does
not maintain restraint and crosses its limits there
will be a reaction which may do great damage to
the judiciary, its independence, and its respect in
society.
It is not my opinion that a Judge should not never
be activist. Sometimes judicial activism is a good
and useful thing, such as in the School Segregation
and Human Rights cases decided by the U.S.
Supreme Court, e.g. Brown vs. Board of Education,

Miranda vs. Arizona, Roe vs. Wade, etc or the

decisions of the Indian Supreme Court expanding
the scope of Articles 14 and 19 of the Indian
Constitution. Such activism should, however be
done only in exceptional and rare cases, and
ordinarily Judges should exercise self restraint.
In Dennis vs. U.S. (1950) Justice Frankfurter
observed:
"Courts are not representatine bodies. They are not
designed to be a good reflex of a democratic
society. Their essential quality is detachment,
founded on independence. History teaches that the
independence of the judiciary is jeopardized when
Courts become emroiled in the passions of the day,
and assume primary responsibility in choosing
between competing political, economic, and social
pressures".
The Pakistan Supreme Court would be well
advised to heed these words of wisdom, even at
such
a
late
stage.

Justice Markandey Katju

Former Judge, Supreme Court of India
Two options before the Pakistan Supreme Court

It seems to me that the Pakistan Supreme Court

logically now has only two options before it when it
resumes its hearing on 25th July:
(1) It can continue on its path of confrontation with
the political authorities. In that case it must
disqualify the new Prime Minister, Mr. Ashraf,
because logically it cannot give a different
treatment to him as compared to what it gave to Mr.
Gilani. Thereafter it must disqualify the third Prime
Minister who will be appointed after Mr. Ashraf, and
so on and so forth, ad infinitum.
(2) It must switch over to the path of judicial
restraint (which
I
have
been
suggesting
repeatedly),
overrule
its
earlier
decision

disqualifying Mr. Gilani, and openly acknowledge

its mistake. This it can do because the 5 Judge
bench hearing the case can overrule the 3 Judge
bench verdict disqualifying Mr. Gilani.
In all earnestness, and as a well wisher to
members of my own erstwhile judicial fraternity, I
would advise the Court to adopt the second path,
and not the first.
The Court is now standing on the brink of a
precipice, from which it should step back
immediately to avoid a disaster. This is the last
chance it has of not plunging downhill, taking the
country down with it.
We are all human beings and we all commit
mistakes. So do the Courts. Lord Denning has said
"The Judge has not been born who has not
committed a mistake".

There is nothing dishonourable in acknowledging

one's mistake. In fact one grows in stature in
accepting one's mistake. The provision for review
in most statutes and Constitutions is precisely
because it was realized that sometimes Courts
commit grievous errors, and should have an
opportunity to correct them.
The path of confrontation with the political
authorities is the surest path of wrecking the
Constitution, and will be disastrous for the country
and democracy. Justice Frankfurter repeatedly
advised Judges to avoid entering the 'political
thicket', and the very recent judgment of the
present Chief Justice of the U.S. Supreme Court,
John Roberts in the Affordable Healthcare Act
case has basically followed the same wise and
statesmanly approach.
In fact I am surprised that the Pakistan political
authorities have for so long endured and tolerated
the Constitutional misbehaviour of the Supreme

Court. I would not be surprised if they now take

some action against the Court akin to that taken by
President Franklin Roosevelt against the
U.S.Supreme Court in the 1930s. But before that
happens I request the Court, in all earnestness,
and as a well wisher, to reconsider its unwise stand
and step back from the abyss to which it has
reached.
It no doubt takes a lot of moral courage for
someone to admit his mistake, but I do hope that
the Pakistan Supreme Court will rise to the
occasion and display that courage. By doing so its
reputation will go up, not down.
There can be given any number of instances where
Courts have realized and accepted their mistakes.
For example, after a period of confrontation with
the government of President Franklin Roosevelt
(when it was striking down the New Deal
legislation), the U.S. Supreme Court in 1937
acknowledged its mistake, and beginning from the

decision in West Coast Hotel vs. Parrish

(1937) drastically reversed its stand and started
upholding that legislation.
Similarly, in Brown vs. Board of Education
(1954) the U. S. Supreme Court reversed the
racially obnoxious doctrine of 'separate but equal'
laid down in Plessey vs. Ferguson (1896). In
Maneka Gandhi vs. Union of India (1978) the
Indian Supreme Court reversed its earlier decision
in A.K. Gopalan vs. State of Madras (1950) in
which it had taken a narrow view of the right to life
and liberty in article 21 of the Constitution. Many
more such examples can be given from judicial
history.
The great error committed by the Pakistan
Supreme Court was in disqualifying and removing
Mr. Gilani from the post of Prime Minister by
holding that he had defamed the judiciary. In fact
Mr. Gilani had only taken a stand based on the
immunity given to the President by section 248(2)

of the Pakistan Constitution. He had not abused

the Court or attributed corrupt or improper motives
to it. How is this defamation? If this is defamation
and contempt of Court then whenever any lawyer
objects to the jurisdiction of a court he can be jailed
for defamation and contempt of court.
The Court forgot that in every country having a
parliamentary form of government the Prime
Minister holds office as long he has the confidence
of the Parliament, not the confidence of the
Supreme Court. Section 63 (1)(g) cannot be
utilized by the Court as it did to oust a Prime
Minister
who
was
undoubtedly
enjoying
the confidence of the parliament.
I am afraid the Court has set up a dangerous
precedent by which it can remove a Prime Minister
enjoying the confidence of Parliament just because
it is inimical to him (or to create problems for the
President). This would be fatal for a democracy.
The sooner this dangerous precedent is reversed
the better.

Justice Markandey Katju

Former Judge Supreme Court Of India
The Emperor has no Clothes

Once upon a time a little girl called Alice was dozing one summer afternoon
on a meadow when she saw a strange sight. A white rabbit dressed in a coat and
wearing a wristwatch was running while saying I am late.

Alice followed the rabbit which jumped into a hole, and both fell and fell until
they landed somewhere with a loud thump. Alice was caught by some policemen
and led away to face a trial for some unknown offence. On the way she saw a large
gathering of people and on enquiry was told that the place was a country called
Wonderland, and the people had gathered to see the oath taking ceremony of the
Chief Justice of Wonderland.

Now the Chief Justice had to be given oath by the President of Wonderland,
but before that could be done the Chief Justice grabbed a golden crown from
somewhere and crowned himself (somewhat like Napoleon crowning himself at
Notre Dame). The Chief Justice then declared himself the Emperor of Wonderland, a
post above the President or Prime Minister.

Thereafter the Chief Justice let loose a reign of terror in Wonderland,

somewhat like Judge Jeffries (the hanging Judge) in the time of James II. At the
slightest opposition he would say Off with his head, and lo and behold the head of
the objector would fall, whether of Prime Minister of Judge or anyone. The streets of
Wonderland were literally littered with heads of High Court Judges, Ministers, etc.

This Chief Justice surrounded himself with worthies who were called Judges
and lawyers but were really spoons (chamchas), though in human form. Whatever
the Chief Justice would say, the spoons would nod their heads and say Quite right

Your Majesty, Quite right (following the adage Billee oonth le gayi to haanji haanji
kehna). The spoons who were in the form of lawyers got favourable orders from the
Chief Justice, about whom they would say, Chief tere jannisaar, beshumar,
beshumar ( Chief Justice, the people who are prepared to die for you are
countless). None of the spoons who were in the form of Judges dared to dissent from
the Chief Justice, and hence there was not a single dissenting opinion and all
verdicts were unanimous.

Now Wonderland had a Constitution, but the Chief Justice had read
somewhere that the Constitution means what the Judges say it means. Since there
was only one real Judge in the Supreme Court of Wonderland, that is the Chief
Justice himself (since the other so-called Judges were really spoons, who were only
supposed to nod their heads), the Chief Justice was of the opinion that the
Constitution meant what he thought it meant, and according to his interpretation of
the Constitution there was an Emperor in Wonderland, that is himself, who was
supreme, above all other authorities or bodies, including the President, Prime
Minister, Parliament, etc.

There are several principles of interpretation (as every lawyer knows). The
Chief Justice did not have a high opinion of the literal rule, and regarded Judges who
followed it as asses. He preferred the purposive rule of interpretation, and his
interpretation of the purposive rule was that that interpretation of the law should be
followed which served his own purpose.

When Alice was brought for trial to court she was shocked to see the Chief
Justice sitting on a chair naked.

This happened because some time earlier two of the spoons who always
surrounded the Chief Justice told him that they had prepared beautiful clothes for
him, but these could only be seen by upright and intelligent people. In fact these
spoons were frauds, and they pretended to put on these invisible clothes on the
Chief Justice. All the other spoons assembled there kept saying what beautiful
clothes the Chief is wearing although in fact he was naked. This they said became
they did not want to be branded as dishonest and fools, in which case the verdict on
them would be the usual Off with their heads. The Chief Justice also did not want
the people to think he himself is dishonest or a fool, and he pretended to admire his
beautiful clothes, although he was naked.

When Alice saw the Chief Justice she exclaimed in horror But you have no
clothes, at which the Chief Justice got furious and said Off with her head.

Now Alice too got furious and said This joke has gone on far too long. Off
with yours. At which the people gathered there beheaded the Chief Justice, and
now all the spoons are facing trials somewhat like that held at Nuremberg after the
Second World War.
Ecrasez L infame - II
When I was a Judge in Allahabad High Court a criminal appeal came before me in
which some Muslim boys had been convicted by the trial Court for gang raping a
young Dalit Hindu girl.

In Uttar Pradesh (which is the largest State in India of about 200 million
people) Muslims are about 18% of the total population, but in that particular village
in U.P. where this incident happened 90% people were Muslims, and only about 10%
Hindus, most of them being dalits (or low caste Hindus).

I upheld the conviction, and observed that a hallmark of a civilized society

is the protection it gives to minorities. It is the solemn duty of every person
belonging to the majority community in a particular area to see to it that the
minorities in that area live with dignity and respect. In that particular case it was the
duty of the Muslims of that village (who were 90% in that village) to ensure that the
Hindus could live with respect, but instead of doing so the accused had gang raped
a dalit girl. Hence they deserved harsh punishment.

I also observed in the same judgment that had the Hindus been the
majority in the village it would have been their duty to see that Muslims or Christian
(or any other minority in the village) could live with dignity, and if in such a village
some Hindus committed a similar crime they would also be given harsh punishment.

The judgment assumes importance in view of the growing intolerance in many parts
of the Indian subcontinent. The treatment to North East people in many parts of
India, to Muslims in Gujarat, the terror created in the tiny Hindu and other minorities
in Pakistan, are a disgrace to all of us. It shows that we are not really civilized.

Thomas Jefferson in his book Notes on Virginia writes It does me no injury for my
neighbour to say there are twenty gods, or no God. It neither picks my pocket nor
breaks my leg.

The spirit of tolerance is particularly important in our sub continent which has such
tremendous diversity----- so many religions (and so many sects in these religions),
so many castes, languages, ethnic groups etc.

In my earlier article Ecrasez Linfame I said that the ill treatment by

many of us of the North East Indians is a disgrace. The atrocities on Muslims in
Gujarat in 2002 and on Sikhs in 1984 are a disgrace. Similarly, the ill treatment of
minorities in Pakistan (whether Hindus, Christians, Sikhs, Ahmadis, Shias or any
other minority) is a disgrace, and invites Voltaires famous comment: Ecrasez L
infame (Crush the Infamy).

In my article What is India I said that India is a country of immigrants

(like North America) whose 92-93% population today are not the original inhabitants
but descendants of immigrants who migrated into India because people migrate
from uncomfortable places to comfortable places. India was a paradise for
agricultural societies because it has level land, fertile soil, plenty of water for
irrigation, etc unlike countries like Afghanistan which are rocky, cold, covered with
snow for several months in a year, and hence very uncomfortable. Hence for
thousands of year people kept coming into India, mainly from the North West. This
comment is also true of Pakistan, and it explains the tremendous diversity in our
sub continent, because each group of immigrants brought in their own language,
religion, customs, etc.

As the great Urdu poet Firaq Gorakhpuri wrote:

Sar Zameen-e-Hind par aqwaam-e-Alam ke Firaq

Qafile guzarte gaye, Hindustan banta gaya

The only policy therefore which can work in our sub continent is
secularism, and giving equal respect to all communities, religious, lingual, regional
or racial. This was the policy of the great Emperor Akbar who gave equal respect to
all communities.

Secularism does not mean that one cannot practice ones religion. It
means that religion is a private affair, unconnected with the State (which will have
no religion) and everyone has the freedom to practice ones own religion without
harassment or coercion from anyone. But in my opinion secularism means
something more than merely accepting the rights of others to practice their own
religion. It also means that minorities will be entitled to lead a life of dignity and
respect, and it is the duty of the majority to ensure this. Hence every incident of ill
treatment of minorities in India or Pakistan is a disgrace to the majority people there
who have failed in their solemn duty of protecting minorities.
Ecrasez Linfame (Crush the infamy)

Sar Zameen-e-Hind par aqwaam-e-Alam ke Firaq

Qafile guzarte gaye, Hindustan banta gaya

--Firaq Gorakhpuri
News has come that 18,000 North East people have fled from Bangalore, Pune, etc.
due to fear psychosis and feeling of insecurity. This is a disgrace to our nation.

This is not an isolated incident. North East people are often insulted,
humiliated, looked down upon, and discriminated against, and called Chinks
because of the Mongoloid features of many of them. This is shameful. I am
reminded of Voltaires famous statement Ecrasez Linfame (crush the infamy)
which is the dictum we should follow.

Unfortunately the mindset of many people in the plains of India is that North
East people with Mongoloid features are not really Indians but foreigners. Hence we
have to explain what is India?

I have in my article What is India, explained that India is broadly a country

of immigrants, like North America. Almost 92-93% people living in India today are
descendants of immigrants, and not the original inhabitants. The original
inhabitants of India, as it is now established, are neither the Aryans nor the
Dravidians, but the pre-Dravidian tribals or Adivasis e.g. Bhils, Gonds, Santhals,
Todas, etc who were driven into the forests by many our ancestors and treated very
badly. They are now only about 7 to 8% of our population. The rest of us are
descendants of immigrants, as explained in my judgment in Kailas V State of
Maharashtra (2011) 1 S.C.C. 793.

People migrated into India (mainly from the North West, but also to some
extent from the North East) because people migrate from uncomfortable to
comfortable areas. Before the Industrial Revolution there were agricultural societies
everywhere, and India was a paradise for agriculture, having level land, fertile soil,
plenty of water, etc. Hence for thousands of years people have been coming into
India.

This theory, that India is broadly a country of immigrants, explains the

tremendous diversity of India -- so many castes, religions, languages, ethnic
groups, etc. Somebody is tall, someone short, somebody fair, someone dark, others
brown (of all shades), someone with Caucasian features, someone Mongoloid,
someone Negroid, etc.

We may compare India with China. China has a population of 130 crores as
compared with our 120 crores, and China has more than twice our land area. But
there is broad (though not absolute) homogeneity in China. All Chinese have
Mongoloid features, they have one common written script called Mandarin (though
spoken dialects are different), and 95% Chinese belong to one ethnic group called
the Han.

In contrast, India has tremendous diversity, and that is why the only policy which
will keep our country united and take us to the path of prosperity is secularism and
giving equal respect to people of all communities, region, language, race etc. This
was the policy of the great Emperor Akbar who gave equal respect to all
communities and proclaimed the doctrine of suleh-e-kul i.e. universal toleration of
all religions, at a time when Europeans were often massacring each other in the
name of religion (see in this connection my judgment in Hinsa Virodhak Sangh Vs.
Mirzapur Moti Kuresh Jamaat, available online) . It is because of this wise policy of

Akbar that the Mughal Empire lasted so long. This policy was continued by Pandit
Jawaharlal Nehru and his colleagues who enacted a Constitution giving equal
respect to all Indians.

I am deeply distressed when I see violation of this Constitutional policy by some

people. For example, the bhoomiputra (son of the soil) theory propounded by some
people in Maharashtra is totally unconstitutional. The people who say that nonMaharashtrians like South Indians, U.P.ites, Biharis, etc should get out of
Maharashtra because they are not bhumiputra forget that in that case 95%
Maharashtrians will also have to get out of Maharashtra because the real sons of the
soil in Maharashtra are the Bhils and other tribals in Maharashtra who are only 5%
of the population of Maharashtra.
Moreover, Article 19(1) (e) of the Indian Constitution says that all Indian are entitled
to reside and settle anywhere in India. If non-Maharashtrians are made to leave
Maharashtra then Maharashtraians in Delhi, U.P., Punjab, etc will also have to go
back to Maharashtra. This will be fatal for the unity of our country.

I therefore request all patriotic people in India to understand our country, and see
through the nefarious designs of the mischievous elements who want to break up
our country.

People of the North East are as much Indians as people of U.P., Bihar, and other
States. Any insult to them or their harassment or discrimination is a national crime,
and the perpetrators of such crimes should be severely punished.
The Queen of Hearts

Once upon a time there was a little girl called Alice

who was dozing in the afternoon in a meadow when
she imagined she saw a rabbit with a watch running
fast and saying I am late.

She got up and followed the rabbit who jumped into

a hole in the ground, and both fell and fell until they
landed with a thump somewhere deep below.
Alice was immediately arrested by some soldiers
and brought before a Queen. This Queen was
surrounded by spoons (chamchas) who had titles of
Ministers and bureaucrats, but were nevertheless
only spoons, and not human beings. Whatever the
Queen would say they would respectfully, nod their
heads in agreement and say Quite right, your
Majesty, quite right. How wise you are.
The Queen said that she once saw a cat carrying
away a camel, and they nodded their heads and
said Quite right, your Majesty (following the advice
of the Hindu adage Oonth billee le gayee to haanji
haanji kehna).
There were many persons who were brought before
the Queen for trial for high crimes like asking for rice
at Rs. 2 per kg (which she had promised before
becoming Queen), or asking for some relief to

farmers who were dying, or making cartoons of her,

or protesting against rape of a woman.
The Queen had one simple solution of settling all
difficulties, great or small, and dealing with such
troublemakers in her kingdom (or rather queendom).
She proclaimed all such persons as Maoists, and
said Off with their heads
She had a peculiar notion that anything that had a
head should be without one. Of course she forgot
that she too had a head, but whether there were any
brains in that head is a matter of conjecture.
Now this Queen was a great admirer of another
great Queen, Marie Antoinette of France, who said
that if the people do not have bread they should eat
cake. Our Queen slightly altered that saying, and
proclaimed If the people do not have bread, let
them eat Rabindra Sangeet.
So she had loudspeakers put all over her kingdom
(or rather, queendom) which blared out Rabindra
Sangeet day and night to fill the empty stomachs of
her subjects.

The subjects were very happy with such a great

Queen who could fill their stomachs on music alone.
After all, has not the great Shakespeare said that
music is the food of love (Twelfth Night)? So the
Queen decided that Rabindra Sangeet will take the
place of food in her queendom, and when Alice
appeared before the Queen for her trial her
eardrums were rattling with Rabindra Sangeet.
Now it so happened that when Alice was brought
forward for her trial the Queen was quite naked. This
happened because a few days before two of the
spoons who were always surrounding her and
praising her (i.e. doing chamchagiri) promised the
Queen a new suit of clothes which were extremely
beautiful but was invisible to stupid and incompetent
persons.
They pretended to put their clothes on the Queen,
and the other spoons, fearing that they may not be
dismissed for being stupid and incompetent, starting
admiring these beautiful clothes, although the
Queen was stark naked.

The Queen, too, could not see these clothes, but for
fear of appearing unfit did not say so, and she came
into her court in these beautiful garments, i.e. stark
naked.
When Alice was brought before the Queen she was
startled at seeing a naked women, and said But you
have no clothes. This made the Queen furious and
she said Off with her head, at which Alice, who got
angry too, said This joke has gone on too long. Off
with yours. And at this all the people there
beheaded the Queen, and now all her spoons are
facing a trial somewhat like that held in Nuremburg.
The Swami and the Amogh Astra

Once upon a time in a country called

Buffoonistan there was a Swami (and there
were hordes of them) called Mokshaprapta (one
who has attained salvation). One day he decided
to pray to Lord Shiva for a boon. So he stood on
one leg for 1,000 years with both hands raised
and eyes closed (which is the classic method of

obtaining nirvana in India), praying for Lord

Shivas darshan (revelation).
Pleased with his indefatigable devotion, Lord
Shiva appeared and blessed him. He then told
the Swami to ask for a boon.
The Swami said, Mahadev, I am deeply
dejected because while all countries in the
world have invented wonderful weapons, my
country Buffoonistan has invented none. The
Chinese have invented gunpowder, the British
warships, the Germans tanks, the Japanese
kamimaze pilots, and the Americans atom
bombs, my country has produced nothing.
At this Lord Shiva said, Do not be dejected.
Your country will produce an Amogh
Astra [invincible weapon] which none can
match.
What is that? enquired the Swami.
It is anshan [fasting] replied Lord Shiva. No
weapon can match this.

The Swami became very happy, and asked for

details of this wonderful weapon.
Lord Shiva said: This weapon has no match
because none can equal its spiritual power.
However, there is a secret key for using this
weapon. And that is this: whether you fast for 3
days or 10 or 20, at the end of it your weight
must be more than what it was before you
started fasting.
The Swami felt a bit disturbed. How is that
possible? he asked. That is possible only by
cheating and eating on the quiet.
Chee, chee, chee said the Lord. Can I advise
you to cheat? No, I will tell you a miraculous
method by which you can gain weight while
fasting. You should close your eyes, open the
third one, which, as Yogis have explained, is on
everyones forehead, and while doing
transcendental meditation, imagine seeing a lot
of delicious dishes there. Then you must in your
imagination eat that. That will really fill your
stomach, and increase your weight.

The Swami was delighted and he fell at the feet

of Lord Shiva, who then disappeared.
The next day the Swami began his fast for
abolition of corruption in Buffoonistan.
Buffoons from all over the country had
assembled in the shamshanghat (cremation
ground) where the Swami always held his
meetings. He chose this place rather than
Jantar Mantar or the Ramlila ground because
he wanted his followers to develop a spirit of
detachment, forgetting about this world and
thinking about the next.
The Swami stood up on an elevated platform
before the huge crowd of buffoons and declared
that if a law for abolition of corruption was not
passed in 3 days his peaceful protest would turn
into a revolution.
Now this word revolution is dicey. It can mean
different things to different people.
In the audience a rakshas (demon) called
Charvak was sitting, and he was known to be a
mischievous fellow. He had the nasty habit of

asking uncomfortable questions. He got up and

said, As far as I know, a revolution seeks to
totally transform the entire society, like the
French Revolution. You have never mentioned
what kind of revolution you want. I think you
are a fraud.
Now saying such a thing, particularly in a crowd
of Buffoons, is extremely dangerous. The crowd
has a mob mentality, like the Roman mob in
Shakespeares Julius Caesar. When Mark
Antony incited the mob against Caesars
murderers, the mob went around seeking them.
They caught hold of a poet called Cinna, who
was different from Cinna the conspirator, and
although he kept protesting that he was Cinna
the poet, and not Cinna the conspirator, they
lynched him saying, Hang him for his bad
verses.
Something equally sinister may have happened
to our rakshas friend, but the Swami, who is a
benevolent person and above petty feelings,
beckoned Charvak to the dais, embraced him,

and whispered smilingly in his ears, One more

word and I will hang you here upside down.
But no one heard him say this, and people
thought that out of magnanimity the Swami had
forgiven Charvak.
The Swami then said loudly, Our brother has
raised a valid point and we must consider it
seriously, and having said so he let him back
into the crowd, from where he disappeared post
haste before the Swami or his followers could
change their minds.
The Swami said, Our brother has raised an
important point. How do we make revolution?
Can any of you answer? After a revolution
Buffoonistan will become a land of milk and
honey, there will be no more corruption, or
poverty, unemployment, price rise, sickness,
etc.
To achieve all this we must realise that this
world is Maya, that is, illusion, as our Vedanta
philosophy teaches. So we must realise that
corruption, poverty, unemployment, etc., are all

illusions. Once we realise this, the revolution

will have been achieved.
So I request all of you to stand on your heads
and contemplate the world as Maya.
Everyone in the crowd then performed the yogic
headstand (sheershasana), and that is the last
they were seen doing by this observer.
The moral of this story is that everyone in
Buffoonistan must have implicit faith in Babas
and Swamis to achieve salvation and total
revolution.
Role of the Media and the Anna Hazare Movement

The Anna Hazare movement, which appears to

have now subsided, raises crucial issues relating to
the role of the media.
The first and foremost role of the media is to
provide accurate and objective information to the
public to enable it to form rational opinions, which

is a sine qua non in a democracy.Obviously the

people cannot go everywhere to collect
information about important events,and hence the
media acts as an agency of the people for
supplying such information. Hence it plays a vital
role in a democracy.
For instance, Nikhil Chakravarty wrote about the
terrible Bengal famine of 1943, and P.Sainath
highlighted the farmers suicides in Vidarbha,
Andhra Pradesh, etc
The problem, however, arises, when journalists do
not maintain detachment and objectivity, and
instead identify themselves with the event. This is
precisely what happened to a large section of the
media in December last year during the Anna
Hazare stir. Most journalists practically became
part of the movement instead of remaining
detached observers and reporters. It reminded one
of the Babri Masjid Ram Janmabhumi agitation
when a section of the media (particularly a large

section of the Hindi press) practically became kar

sewaks.
A journalist must maintain some distance and
detachment from the event he is covering. He has
to cover and report the event, not become part of it.
He should behave professionally, like a doctor who
does not get personally involved with his patient
while doing his best for him, or like a lawyer who
does not identify himself with his client, while
arguing for him. If one gets identified with his
subject how can he maintain accuracy and
objectivity?
A journalist may have sympathy for the subject he
is reporting, but he must never forego his critical
faculties and rational analysis.
Even a little rational thinking reveals that the Anna
Hazare movement was only an emotional outburst
and cannot make even a scratch on the prevailing

rampant corruption in the country. Yet, like the Pied

Piper of Hamelin, Anna led the gullible people of
India in a dance of stupidity, ably assisted by most
of our media. I was reminde of a line in
Shakespeare's Macbeth "It is a tale told by an idiot,
full of sound and fury, signifying nothing".
In those days one never heard of a critical analysis
by the media of the Janlokpal Bill, whose
enactment Anna was insisting upon.Probably
nobody had even read it.
Section 2 (e) of the Bill states that employees
covered by the Prevention of Corruption Act come
within the purview of the Lokpal. There are over 2
crore such employees, 39 lac Central Government
employees, 55 lac employees of public sector
undertakings and statutory bodies, 1.2 crore state
government employees, and other categories like
cooperative societies employees, teachers, judicial
officers, etc.

Now if this law is made there are bound to be tens

of lacs of complaints every year. This will require
perhaps 2 lac lokpals to deal with them. These
lokpals will have to be provided salaries, staff,
housing, offices,etc. placing an additional heavy
financial burden on the state exchecquer And
considering the low level of morality prevailing in
our country it is almost certain that most of them
will become blackmailers. It will be creating a
Frankenstein monster,a parallel bureaucracy which
will at a stroke double the corruption in the country.
And who will guard these praetorian guards? A
body of superlokpals?
Should the media not have coolly and rationally
considered all this instead of joining the revelry and
merry making at Jantar Mantar and Ramlila
grounds?
Apart from the above, there is a second role of the
media, which is particularly important in the
transitional period (from feudal agricultural to

the modern industrial era) through which our

country is passing, and that is of giving leadership
and guidance to the people in the realm of ideas.
This transitional period is always a very painful
period in history, full of turbulence, turmoil, wars,
revolutions, social churning, intellectual ferment,
etc. A study of the history of Western Europe in the
17th
to
19th
Centuries,
when European
society was passing through its transition, shows
that it was only after going through this fire that
modern society emerged in Europe. India is
presently going through this fire. We are going
through a very painful period in our history, which
may last another 15 to 20 years.
In this transition period the role of ideas, and
therefore
of
the
media, becomes extremely
important. The media is not an ordinary business
which deals with commodities, it deals with ideas.
To help society get over the transition period faster
and with less pain the media should promote

modern scientific ideas and combat backward

feudal ideas and practices like casteism,
communalism, and superstitions. In this connection
I may refer to the glorious role played by the
European media when Europe was passing
through its transition. Voltaire attacked religious
bigotry, Rousseau attacked the entire feudal
system and Thomas Paine proclaimed the Rights
Of Man. In my opinion the Indian media should play
a similar role. Instead of pandering to the low
intellectual level of our masses and perpetuating
it, it should seek to uplift it so as to make the
masses part of enlightened India.
When Anna Hazare called off his fast and said his
movement will now enter politics, the media should
have immediately asked him what exactly does he
mean? Unfortunately most of our politics is on the
basis of caste and religion. If he forms a party,
which caste (or caste cmbination) will it represent?
Without such a vote bank all his candidates will
lose their security deposits.

Recently Anna said that he will not contest

elections because each election costs 15 to 20
crore rupees, and he does not have that money,
but he will support honest candidates. Now there is
a clear contradiction here. Anna admits that an
election (presumably a Lok Sabha election) costs
15 to 20 crores. Then where and how did the
'honest' candidate he supports get this 15 to 20
crores? These, and many other, are the
questions our media should ask, but does it do so?
I have sometimes been misunderstood by a section
of the media for criticizing it, but I criticized it as a
well wisher, not an enemy. Kabirdas said "Nindak
neeray raakhiye, angan kuti chawaye". I repeatedly
said that instead of focussing on frivolous issues
like lives of film stars, cricket, fashion parades,
astrology, etc, the media should focus on the real
issues
facing
the
nation like
poverty,
unemployment, price rise, healthcare, etc

The Indian media has a glorious role to play in the

coming days, provided it realizes its mistakes and
corrects itself. I am sure the Indian media will do
so, and thereby win the respect of the Indian
people
India, In Transition and Corrupt

Hum agar rishwat nahin lenge to khayenge

kya Josh Malihabadi
Now that the Anna Hazare agitation has
subsided, the time has come for some
rational, scientific analysis of the problem of
corruption.
There is no doubt that there is rampant
corruption in Indian society at almost every
level.
In Western society, too, there is some
corruption, but it is only at a very high level,
and it ordinarily does not affect the common

man. Corruption there takes such forms as

multinational corporations giving bribes to
top politicians, generals or bureaucrats of
underdeveloped countries to get contracts,
etc. But in North America you cannot offer a
bribe to a policeman if he catches you
violating some traffic rule. If you attempt to
do that it will be a second, more serious,
offence. Similarly, you cannot bribe an
income tax official or other officials there. But
in India corruption exists at every level, for
example, in registering a sale deed, getting
mutation in revenue records, getting an FIR
registered,

getting

permission

from

municipality to build a house, tax matters,

etc.
Everyone is harassed by corruption in India,
but what is to be done about it?

Anna Hazares movement, in my opinion, was

only an emotional outburst, but serious
problems cannot be addressed in

that

manner. A scientific analysis of the problem is

required.
I submit the following: first, corruption is the
normal feature of the transitional period
when a society (such as Indias) is passing
from a feudal, agricultural stage to a modern,
industrial stage. Second, it is only when the
transition is over and the country becomes a
fully industrial society, like that in North
America or Europe, that things will get
relatively stabilised, and corruption will be
considerably reduced. This, in my opinion,
will take about 15 to 20 years more in India.
This needs to be explained.

Feudal, agricultural society is a relatively

stable society, with everyone knowing his
place, with stable social and ethical values. In
contrast,

when

the

process

of

industrialisation begins, things become topsyturvy. In this transitional period, before the
process of industrialisation is complete, two
things happen. First, old (feudal) moral
values disintegrate, but a new moral code
does not come into existence. Second, prices
start shooting up, while incomes are broadly
stagnant (or rise much slower than the price
rise). For both these reasons, corruption
becomes rampant. To maintain ones lifestyle
and to keep up with the Joneses, one must
supplement ones regular income, and this is
only possible by corruption. Since the old
moral code has largely disintegrated there is

little check on ones conscience to prohibit

taking bribes.
I am not trying to justify corruption. I am
only presenting a scientific analysis to show
that corruption is inevitable in a transitional
society like India in which industrialisation
has commenced, but is incomplete. Historical
facts support this conclusion. For example,
there was rampant corruption in England in
the 18th and early 19th centuries when
industrialisation was going on but was not
complete. Sir Robert Walpole, who was the
first prime minister of Great Britain (from
1721 to 1742), openly used to say that he can
purchase any person, including members of
parliament. John Wilkes and Junius attacked
the corruption of the governments of the
Duke of Grafton (1768-1770) and of his

successor, Lord North. Similarly, in America

too there was a lot of corruption in the 19th
century when the process of industrialisation
was

going

Presidents

on.

The

Grant,

administrations

Harding,

etc

of

were

notoriously corrupt.
It

is

only

when

the

process

of

industrialisation is broadly completed that

society once again becomes relatively stable
and corruption subsides. A new ethical code
has emerged, and people in the West are
relatively more honest in their dealings than
people in underdeveloped countries. Anyone
who has been to the West and has interacted
with people there can bear this out.
In view of this analysis, I submit that
corruption will continue in India for another

15-20 years, but will considerably disappear

when the process of industrialisation is
complete after this period.
The writer, a former judge of the Supreme
Court, is chairman of the Press Council of
India
(Published in The Indian EXPRESS on 08th August,2012)
Professor, teach thyself

Our tertiary education system does not

serve the masses

Photo: P.V. Sivakumar

I was at Jawaharlal Nehru University recently

with some of the top senior academicians in
Delhi, before dinner.
I was told that the budget of the University
Grants Commission was Rs.41,000 crore in the
Five Year plan and the annual budget of JNU
was about Rs.150 crore.
In my usual blunt way I said, How has this
benefited the Indian masses? It seems that the
huge funds being ploughed into higher
education in India are for the benefit of foreign
countries and to give you professors huge
salaries and fine houses to live in rather than to
benefit the Indian people.
This sparked off a lively debate. Some of the
professors tried to refute my statement, but I
stuck to my guns.
I said that most of the money spent on
education in India went to the institutes of
higher education like the IITs and universities,
and very little money was spent on primary and
middle schools, particularly in rural areas,

where the foundation of education was laid.

There are very few facilities such as proper
seats, electricity, books, classrooms, etc in these
primary or middle schools, whereas the
institutes of higher education are given huge
funds and have very good facilities, state-of-theart campuses, air-conditioning, etc. I then gave
a few examples to prove what I said:
1. I once went to a village about 40 km from
Allahabad (my native city) to meet a farmer
friend of mine, with whom I had studied at
Allahabad University.
At his home I met one of his sons who had
passed class seven and promoted to class eight
in his high school in the village. I asked him to
bring his class 7 mathematics book and solve a
few simple problems. He could not do so. I
wondered how he had been promoted when he
could not solve simple class 7 problems. I then
solved those simple problems, and asked him to
attempt the other problems in the lesson. He
was obviously an intelligent boy, because having

learnt how to solve the simple problems, he

proceeded to solve the rest.
At this I asked him, Did your teacher not teach
you all this? He replied,
Master Sahib thekedari karne lage hain, aur
doosre master sahib classlene aate naheen hai
(the teacher has become a contractor, and the
next teacher does not come to take classes).
2. I went to a reputed intermediate college in
Allahabad and was told that in a section in Class
11 there are 250 students. I was shocked. Under
the rules there should not be more than 40
students in a class. What teaching can possibly
be done in a class of 250 students? I also learnt
that in some of the sections at Allahabad
University there are over 300 students, and
there is not even place for a student to sit.
In view of this, much of the real education takes
place in private coaching institutes, or at the
residence of teachers who make much more
money there than in their institutions. As a
result, these teachers evince little interest in

teaching in their institutions, and a student who

does not join the coaching (paying high fees)
finds it difficult to pass.
3. In many of the staffrooms of our educational
institutions, teachers, instead of discussing
academic matters, often discuss petty politics,
often of a casteist nature or matters pertaining
to their service conditions. Senior professors
often try to promote lecturers of their own
caste, whether they have merit or not.
4. Teachers are often appointed not on merit
but on extraneous considerations, like political
connection, caste, etc. They are appointed on
contract basis. In some States, shikshamitra
who have been appointed on a salary of
Rs.1,500 a month have no degree or teachers
training qualification.
5. The level of intellect of many teachers is low,
because many of them have not been appointed
on merit but on extraneous considerations. To
give an example, when I was a judge of
Allahabad High Court I had a case relating to a

service matter of a mathematics lecturer in a

university in Uttar Pradesh. Since the teacher
was present in court I asked him how much one
divided by zero is equal to. He replied,
Infinity. I told him that his answer was
incorrect, and it was evident that he was not
even fit to be a teacher in an intermediate
college. I wondered how had he become a
university lecturer (In mathematics it is
impermissible to divide by zero. Hence
anything divided by zero is known as an
indeterminate number, not infinity).
BRAIN DRAIN

I gave them many more such examples, and told

the senior academicians at JNU that huge
amounts of money of the Indian taxpayer is
spent on the IITs and other institutes of higher
education, but the graduates of these institutes
usually take up jobs in foreign countries. This
results in brain drain. Thus, while Indians pay
taxes which go towards educating our bright
students, the benefit of their education goes to

foreign countries and not to the Indian people.

These foreign countries benefit because higher
education in their own countries is very
expensive, so they have to pay only a fraction of
that amount to get our bright young students.
I posed them another question: the test of every
system is one simple question. Does it raise the
standard of living of the masses or not? I said
that the huge amount of money being spent on
higher education in India is not raising the
standard of living of the Indian masses because
over 75 per cent of Indians live in dire poverty.
There is massive unemployment, skyrocketing
prices, huge problems of health care, housing,
etc.
Apart from that, I asked them how many Nobel
laureates have our universities and other
institutes of higher education produced. Hardly
any.
In many American universities one will find half
a dozen Nobel laureates. Australia, which has a
population of about 25 million, has 180

academicians who have an F.R.S. (Fellow of the

Royal Society), while India, with a population of
1,200 million, has only about 20. So what are
the achievements of our scientists and other
intellectuals? It is only when they go to the
United States or Canada or Europe that they
achieve anything.
What is the quality of research work done by
our academicians in institutes of higher
learning? Unfortunately it is abysmally low and
does not benefit the Indian people. Their
publications are mostly poor, and done only to
improve their CVs in order to get jobs.
The purpose of education is to help raise the
standard of living of the masses. But in India it
seems that its purpose is to raise the standard of
living of a handful of people who get jobs as
teachers, particularly in institutions of higher
education.
I must say to the credit of the professors
assembled there that they did not take any of
my remarks personally. I told them that I had

no intention to insult them but was only voicing

my genuine grievance about the educational
system in India, and the need to make it more
beneficial to the masses.
At the end it was agreed that my views required
serious debate which hopefully shall be held at
JNU or elsewhere soon.
Cartoonist's Arrest is Illegal

Aseem Trivedi did nothing illegal by drawing the

cartoons and putting them on the net.

In a democracy many things are said, some truthful

and others false. I often used to say in Court when
I was a Judge that people can call me a fool or
crook inside Court or outside but I will never take
contempt of court proceedings, because either the
allegation is true, in which case I deserve it, or it is
false, in which case I will ignore it. These are
occupational hazards, and politicians , like Judges,
must learn to put up with them.

Cartoons are part of democracy and part of the

freedom of the media guaranteed by Article 19(1)
(a) of the Indian Constitution. Hence arresting him
was itself a crime called wrongful arrest and
wrongful confinement under sections 341 and 342
of the Indian Penal Code, and those who arrested
him should themselves be arrested and tried and
given harsh punisment if convicted. It seems that
some authorities in India are becoming increasingly
intolerant, as in the case of arrest of a farmer by
the Chief Minister of West Bengal only because in
a public meeting he said that the Chief Minister had
not kept her election promises.
In fact arresting a cartooniist or any other person
who has not committed a crime is itself a crime
under the Indian Penal Code called wrongful arrest
and wrongful confinement.
If the policemen who arrested him say that they
were only carrying out the order of some superior

authority (whether political or administrative) this is

no defence, because an official should not obey an
illegal order. For instance, if a policemen is told by
a higher authority to commit a murder or burglary
or rape, he should disobey this illegal order,
otherwise he should be tried and if found guilty
given harsh punishment.
In the Nuremberg Trials the Nazi war criminals took
the plea that orders are orders, and that they were
not guilty as they were only carrying out the order
of their superior Hitler. This plea was rejected and
the International Tribunal said that they should
have dosobeyed such orders as they were illegal,
and accordingly many of them were hanged.
The charge of sedition against Aseem is wholly
unsustainable since in 1962 in the case of Kedar
Nath Singh vs. State of Bihar (which can be seen
online) the Indian Supreme Court held that it is only
speech which incites to violence which is seditious.
Merely criticizing the government or creating

disaffection against it is not sedition. In fact to hold

otherwise would completely subvert democracy, in
which people have a right to criticize the
government. Aseem's cartoons certainly did not
incite to violence, though they may have severely
criticized politicians.
Politicians and police authorities must learn to be
tolerant and take criticism in their stride. In a
democracy it is the people who are supreme, and
all authorities, whether political or administrative,
are only servants of the people. Surely the master
has a right to criticize his servant if he thinks that
the servant has done something wrong.
The behaviour of the policemen who arrested
Aseem was wholly illegal and unacceptable, since
India is a democracy with a Constitution having the
Fundamental Rights of freedom of speech and
liberty.

-Justice Katju
Note on the recent judgment of the Supreme Court of India regarding
media coverage of Court Proceedings
After the judgment of the Supreme Court in Sahara India Real Estate Corp. Ltd & Ors
Vs. Securities Exchange Board of India & anr delivered on 11.9.2012 there have
been several critical comments about the same. In my opinion it is a balanced
judgment which I agree with.
Ordinarily there should be freedom for the media to report court proceedings,
because it is through the media that the people get to know about the functioning
of the courts.
In feudal society the king was supreme and the people were subordinate to him.
However in a modern democracy this relationship is reversed, and now the people
are supreme, and all authorities, whether legislative, executive or judicial are only
servants of the people. Surely the master has a right to know how his servant
functions. The media is an agency of the people through which people get to know
how state authorities, including the Courts, are functioning. It logically follows that
ordinarily there should be freedom for the media to report court proceedings.
However, no rule can be absolute or rigid. The duty of the court is to do justice, and
while ordinarily there should be freedom to the media to report court proceedings,
in exceptional circumstances where the Judge feels that injustice would be done to
an accused or defendant in a trial if the media reports the court proceedings, then
the court has always power to prevent such reporting so that justice may be done.
In fact this was the law even before the aforesaid judgment of the Supreme Court
because the court has always this power, because the Judge has to do justice and
prevent prejudice to a party if caused by reporting court proceedings. The Judge has
the power to control and regulate proceedings in his court so that justice is done. In
fact in camera proceedings in exceptional cases are sometimes resorted to.
The Supreme Court has observed in its judgment that a postponement order should
be passed only in cases in which there is a substantial risk to the fairness of the trial
or for appropriate administration of justice. However, the Supreme Court added that
the postponement order should be for a limited period, and only in appropriate
cases. I do not see what reasonable objection can there be to this view.
No right can be absolute, and the right to freedom of speech is subject to
reasonable restrictions. Hence, the view taken by the Supreme Court is a correct
and balanced views, and in fact this was the law even before its clarification by the
Supreme Court in the aforesaid judgment.

THE INDIAN HERITAGE CARAVAN

(A Concept Note)
India has a very rich composite cultural heritage. There is a harmonious blend of
art, religion and philosophy in the India cultural. Indian culture is actually an
outcome of the continuous fusion of different cultures. This culture, which is
epitomised in Ganja Jamuni heritage of India is also named as Urdu-Sanskrit
Culture by Justice Markandey Katju. The Indian Heritage Caravan is designed to
uphold and promote the secular and plural cultural heritage of India.

URDU HERITAGE CARAVAN

LANGUAGE has many usesa means of communication, an instrument of
transmitting knowledge, an expression of cultural and creative urges of a
community. Urdu clearly is the language of the cultured and the elite yet
Hindustani is the only language to find a distinct flavour with the masses and is a
part of the popular culture also.
Urdu is not just the mother tongue of a large number of people but its
literature and poetry is loved beyond all religious and ethnic pretensions
by a very large section of the Indian population. In fact, Urdus canvas is
bigger than this. It is widely read, written and spoken not just in the subcontinent, but in the Middle East, American, South Asian & European
countries as well.
Urdu literature and poetry has a very rich and varied cultural heritage and
has been instrumental in playing a pivotal role in the freedom struggle.
Poems like Sarfaroshi Ki Tamanna Ab Hamare Dil Mein Hai & Saare Jahan
Se Achcha Hindustan Hamara still have the same capability to resonate
the feeling of patriotism among the masses. Stories like Kafan, Balidan,
Namak Ka Darogha of Prem Chand and Toba Tek Singh, Thanda Gosht of
Saadat Hasan Manto have stood the test of time both in their relevance
and from their contemporariness. Urdu geets and ghazals are used
commonly in Bollywood films. Besides, Urdu Mushairas and Sham-e-Ghazal
are also very popular because of their immediacy and the instant response
that the poets and singers receive for their creations. The interaction with the
audience and their constant Waah! Waah keep the atmosphere electric.
Beside, Urdu is generally epitomised with the composite culture of India i.e. Ganga
Jamni Tahzeeb. By promoting Urdus cultural heritage, we aim to promote the basic
soul of our composite culture. Therefore, we are planning take top

contemporary Urdu writers, poets, playwrights, Ghazal signers and the

experts of different creative forms of Urdu literature and culture to the
different parts of the country and abroad with the to showcase their
cultural performances and promote their valuable thoughts and ideas.
Urdu Heritage Carvan is basically an idea to associate masses with this
the indigenous cultural heritage of Urdu. We also aim to remove the
misconception about this language that it is a foreign language and is a
language of Muslims alone. In fact, before 1947 Urdu was the common
language of a large part of the educated people in India.
We have distributed our tour plan into 3 phases. Initially, we will hold
conferences and live performances in four historical cities of the country
i.e. Delhi, Hyderabad, Mumbai and Lucknow.
As we move on to the next phases, we will ensure that the canvas of our mission
enlarges to the level of cultural exchange with diverse cultures prevailing in
different parts of India and abroad. In the third phase, we will take our performers
to some SAARC and Middle Eastern countries to showcase the rich cultural heritage
of India and also to achieve better cultural exchange with those countries.
Required, two tongues

English and Hindi have irreplaceable roles

in national integration and ensuring
progress
Since Hindi Diwas is being celebrated today, I decided to write this article.
When I was a Judge of Allahabad High Court I would be invited by the High Court Bar
Association on the occasion of Hindi Diwas which was celebrated every year in a
function inthe Bar Library. I would tell the office bearers of the Bar Association that I
would not like to come to the function because what I would say would create a
controversy. However, theywould insist and plead that I come and speak.
At the function many speakers would say Agrezi Hatao, that is, abolish Hindi from
our country. Some would disparagingly describe English as a dasi (slave girl).
When my turn came to speak I would tell the audience that if their children did not
learn English they would only be fit to drive bullock carts (Hal chalane layak rah
jayenge). I said I, too, love Hindi which is my mother tongue but that does not mean

I should behave like a fool. All knowledge in the world is in English. If one went to an
Engineering college all the the books are in English, similarly all the books in a
Medical College are in English. If one wanted to study history, economics,
philosophy, science,literature etc the books are all in English. How could one do
without English? It is totally stupid to say Agrezi Hatao, and only enemies of their
children talk like that. In fact we mustspread English more in our country for the
countrys progress. So, on the occasion of HindiDiwas I make the same appeal.
However, at the same time I appeal to the people of the non speaking Hindi
speakingstates like Tamil Nadu to learn Hindi, because it is the link language in our
country. Forinstance, Tamilians face great difficulty when they come out of Tamil
Nadu, because they do not know Hindi.
When I met the Chief Minister of Tamil Nadu some time back I told her that Tamilians
should learn Hindi as it is in their interest to do so. She told me that Tamilians were
indeed learning Hindi upto the 1960s, and Hindi was spreading in Tamil Nadu by
Hindi films and Hindi Prachar Sabhas. But then some North Indians decided to
impose Hindi on the South, and this created a strong reaction, and Tamilians
stopped learning Hindi. I told her that it was wrong on the part of some North Indian
politicians to try to impose Hindi in the South. This is the age of democracy, and
nothing should be imposed. However what has happened has happened, and now
my appeal to the people of Tamil Nadu is that they should learn Hindi. Recently I
spoke to students of Anna University in Chennai, and advised them to learn Hindi I
have received several e-mails from some of the students, who have said that they
have started learning Hindi.
In my speech in Anna University I mentioned that when I was Chief Justice of Madras
High Court I was invited to a function in Gulbarga, which is in north Karnataka. I flew
from Chennai to Hyderabad where I caught a taxi to Gulbarga. The Prof. of Gulbarga
Universitywho came to receive me was a Kannada speaking gentleman while the
taxi driver was Telugu speaking, but they spoke to each other in Hindi .I was
surprised that two South Indians should speak to each other in Hindi. I asked the
Prof. for the reason. He said it was because Hindi was their link language. He did not
now Telugu, while the taxi driver did not know Kannada, but they both knew Hindi.
This shows that Hindi is the link language in much of India. In fact most people even
in the non Hindi belt like Punjab, Bengal, Kashmir, North East, Orissa, Andhra
Pradesh, etc can speak Hindi. Hindi is even spoken in Pakistan, where it is called
Urdu. Thus, knowledge of Hindi makes it easy to communicate in much of the Indian
sub continent.
On the occasion of Hindi Diwas, I appeal to the people of India to learn Hindi and
English, but nothing should be imposed.

Game change
Game change has a different connotation to different people.

To my mind in India game change cannot mean change in the government or in the
political leaders or in the laws or in the judicial system. Game change in a poor
country like India can have only one real meaning: raising the standard of living of
the masses.

Presently about 80% of the 1200 million people in India are living in terrible
poverty, with massive unemployment, skyrocketing prices, lack of proper
healthcare, education, housing, etc. So game change in India means abolishing
these huge evils, and giving the Indian people a decent life.

Before the Industrial Revolution, which began in Western Europe (firstly in

England and then in France) in the mid 18 th Century, and then spread all over the
world, there were feudal agricultural societies everywhere. The feudal methods and
tools of production (the bullock in India and the horse in Europe) were so primitive
that very little wealth could be generated by them. Hence only a handful of people
like kings and aristocrats could be rich, while the rest of society had to be poor.
When the cake is small obviously very few people can eat it.

This situation has drastically changed after the Industrial Revolution. Now a
unique situation has arisen in world history, namely, that now nobody need be poor,
because the modern methods of production, i.e. modern industry, is so powerful and
so big that enough wealth can be generated to meet the basic needs of all, and give
everyone in the world a decent life.

This being the new, unique situation in world history it is only natural that
the poor people in the world (who are 80% of the world population) are demanding
a decent life, and saying that now that they do not have to be poor, why should
they be poor?
The 21st Century will therefore be a game changer. It will be characterized by the
struggles by peoples all over the world for a better life, and result in creation of
societies free of the social evils above mentioned.

In India consider the following facts:

(1) 47% Indian children are malnourished, a figure much higher than the poorest
countries in sub Saharan Africa (Somalia and Ethiopia) where 33% children are
malnourished.

(2) 2,50,000 farmers have committed suicide in the last 15 years, a world record of
farmers suicides (average 47 suicides per day, which is still going on). This period
has seen the greatest migration of rural people to urban areas, looking for jobs
which are not there (somewhat like the migration of the Okies from Oklahoma and
other states in U.S.A. to California, depicted in John Steinbecks novel Grapes of
Wrath). These millions have ended up in our cities as domestic workers, street
hawkers, beggars, criminals, and prostitutes.

(3) Unemployment is massive in India. Even for a peons job there are thousands of
applications, some even from M.As, M.Scs, and M.B.As.

(4) Healthcare is in a terrible state in India, except for the very rich or V.I.P.s.
Consequently quackery is widely prevalent in many places and jholechap doctors
are flourishing.

(5) Primary and middle level education is in a terrible state, while the government
pours in a huge amount of money in I.I.Ts and other prominent institutions of higher
education like J.N.U. etc (see my article Professor Heal thyself )

(6) Prices of foodstuffs etc are skyrocketing. Even vegetables are about Rs. 45 per
kilo.

(7) 77% people in India are living on Rs. 25 a day. It is a miracle how they are
surviving.

It is evident that 80% people in India are living in dire poverty. Game change
in India can therefore have only one meaning: abolishing poverty in India, and
giving the masses a decent life. There are no doubt fundamental rights in our
Constitution, e.g. Right to life, freedom of speech, liberty, equality etc. but these are
meaningless to a man who is poor, hungry and unemployed. Therefore it is the duty
of all patriotic people to help our country abolish poverty, unemployment, and other
social evils. That alone can be regarded as a game change. How this will be done is
for the people themselves to find out, using their creativity.
Think rationally about learning Hindi and it will make sense

I have seen some of the criticism in The Hindu to

my article Required, two tongues (Op-Ed,
September 20, 2012). I am a totally democratic
person, and do not mind criticism at all.
However, I would like to give my response:
(1) I have said that I am totally opposed to the
imposition of Hindi in Tamil Nadu, or anywhere
else for that matter. In the function at Anna
University in Chennai, where I spoke recently, I
advised Tamilians to learn Hindi. After my
speech an elderly gentleman got up and said
that Tamilians should not be compelled to learn
Hindi, and English was good enough to be the
link language in India. I replied that I was totally
against any compulsion. If my suggestion that

Tamilians should learn Hindi made sense to

Tamilians, they should accept it, but if it did not
make sense to them, they should reject it. Where
is the compulsion? It is not fair to distort what I
said.
(2) Tamil cannot be compared to Hindi, not
because Hindi is superior to Tamil (I hold all
languages in equal respect) but because it is
much more widespread. Tamil is only spoken in
Tamil Nadu, which has a population of 72
million. But Hindi is spoken not only in the
Hindi belt, but in most non-Hindi states as a
second language. In the Hindi belt there are 200
million people in Uttar Pradesh, 82 million in
Bihar, 75 million in Madhya Pradesh, 69 million
in Rajasthan, 27 million in Jharkhand, 26
million in Chhattisgarh, 26 million in Haryana,
and seven million in Himachal Pradesh. Taking
into account Hindi speakers in the non-Hindi
belt in India (Punjab, West Bengal, Kashmir,
Orissa, Assam and other North Eastern

States,Telangana, etc), the number of Hindi

speakers would be about 15 times that of Tamil
speakers. Apart from that, Pakistanis (who
number about 200 million) also speak Hindi,
though they call it Urdu. How then can Tamil be
compared with Hindi? Tamil is only a regional
language, while Hindi is a national language.
This is not because Hindi is superior to Tamil,
but due to certain historical and social reasons.
(3) English is the link language only for the elite
in India, and not for the common man. Anyone
coming from Tamil Nadu to other parts of India
will realise this. Without knowing Hindi he will
experience great difficulty (in fact one of the
Tamilian judges in the Supreme Court told me
very recently that he had made a great mistake in
not learning Hindi since he was finding it
difficult in Delhi, but now he has started learning
Hindi ). Only about five per cent of Indians know
English (though I myself have appealed to people
to learn English, since much of the knowledge of

the world is in English, and I have strongly

criticised those who say Angrezi Hatao (abolish
English). In fact Hindi is already the link
language for Indians, even for many South
Indians, as I had explained in my article.
(4) When I was Chief Justice of the Madras High
Court, I once went to a shop in Madurai. To my
surprise I heard the Tamilian shopkeeper
speaking to someone on the telephone in Hindi.
Since I had picked up some Tamil I said to him,
Romba nalla Hindi pesreenga. Eppadi ? (You
are speaking such good Hindi. How is that?) He
replied, Arasiyalle Hindi vendaamnu
solvaanga, aanaa engalikkubusiness pananum.
Adnaal kathukitten . (Politicians say that we do
not want Hindi, but we have to do business. So I
have learnt Hindi). I think this shopkeeper had
more sense than those who oppose Hindi.
(5) I dislike both Hindi haters as well as those
who wish to impose Hindi on Tamil Nadu and

other States. The issue should be considered

rationally, instead of emotionally. No one can
dispute that Tamil is a great language, with great
literary works like Tirukkural, Silapathiharam,
Manimekhalai, Kambar Ramayanam , and in
more recent times, the great poems of the
nationalist poet Subramania Bharathi and many
others. I fully support the demand that lawyers
in the Madras High Court should be allowed to
argue in Tamil (except before judges who have
come on a transfer from other States), though
judgments should be in English so that people
from other States can read them. When in the
Supreme Court, I would sometimes speak a few
sentences in Tamil when a Tamilian lawyer
appeared before me. I think I was the first Judge
in the history of the Supreme Court to speak in
Tamil in court.
I would appeal to Tamilians to once again
consider my suggestion that they should learn
Hindi. If my suggestion does not make sense,
please reject it.

Don't break up the country

Politicians in Maharashtra who are agitating

against Biharis are playing with fire
A politician in Maharashtra has threatened to
brand Biharis as infiltrators and force them out of
Maharashtra if Bihar authorities take legal action
against Mumbai policemen, who picked up a
teenager from Bihar without informing their Bihar
counterparts. The teenager is alleged to have
vandalised the martyr's memorial in Mumbai
during the Azad Maidan protest on August 11.
The politician is reported to have said that if the
Bihar government tries to become a hurdle in a
police investigation "then my party would dub
every Bihari in Maharashtra as an infiltrator and
force them to leave the state."
In the past as well, certain politicians in
Maharashtra have voiced similar opinions. Some
of them have propounded a 'son of the soil'
(bhumiputra) theory, earlier threatening to evict

South Indians, and now threatening to evict

Biharis and UPites from Maharashtra.
Since this is a very serious issue, i may first refer
to Article 19 (1) (e) of the Constitution of India
which states: "All citizen shall have the right... to
reside and settle in any part of the territory of
India".
Thus, it is a fundamental right of all citizens to
migrate and settle in any part of India, and it
would be unconstitutional to prevent persons
from migrating and settling at places where they
find their livelihood vide 1997 (3) Guj L R 1998
(2012) SC. The only exceptions are Kashmir and
the Northeast due to special historical reasons.
India is one country with one nationality - Indian.
Those who regard Maharashtra as a separate
nation are traitors to the nation, and should be
given harsh punishment. In view of Article 19 (1)
(e) of the Constitution, it is a fundamental right of

non-Maharashtrians to settle in Maharashtra, just

as it is a fundamental right of Maharashtrians to
migrate and settle in UP, Bihar, Tamil Nadu, West
Bengal, Punjab, etc. Of course, if any particular
non-Maharashtrian has done something illegal in
Maharashtra, he can be penalised. But how can
all Biharis be branded 'infiltrators' for some
wrong done by other Biharis?
The 'son of the soil' theory is a theory of
Balkanization of the country, and must be
condemned. Those who have propounded it are
not really concerned about the welfare of the
people of Maharashtra; they are concerned
about their vote bank.
India is broadly a country of immigrants, like the
US. About 92-93% people living in India today
are not the original inhabitants of India. The
original inhabitants are only the pre-Dravidian
tribals known as adivasis e g Bhils, Gonds,
Santhals, Todas, etc; they form just 7-8% of the

Indian population today.

If the 'son of the soil' theory is implemented, 93%
of Maharashtrians would also have to leave
Maharashtra, because they are also not sons of
the soil. The only sons of the soil are the Bhils
and other tribals living in Maharashtra. This
shows that the theory may be fine for capturing
votes, but it would lead to chaos and disaster if
any serious attempt is made to implement it.
Also, the unity of India is required if our country
is to prosper economically. Article 301 of the
Constitution states that trade and commerce
shall be free throughout the territory of India.
This provision guarantees the economic unity of
India, and political unity depends on economic
unity. Thus, a factory in Tamil Nadu is entitled to
sell its goods in UP, Bihar, Maharashtra, Punjab,
Bengal, etc.
Modern industry requires a large market. And

unless modern industry emerges in India, we

cannot be a prosperous nation, because
agriculture alone cannot generate the wealth
required for our people's education, health,
employment and so on. Only united India
provides such a large market. Any attempt to
break up our country will therefore doom our
people to poverty.
It could also be said that the 'son of the soil'
theory offends section 2 of the Prevention of
Insults to National Honour Act, 1971. And being
disrespectful of or bringing into contempt the
Constitution of India is a criminal offence
punishable by up to three years imprisonment or
fine or both. Not just does the theory disrespect
and bring into contempt Article 19 (1) (e) of the
Constitution - hence becoming a crime - it is also
an offence under section 153A of the IPC as it
amounts to inciting enmity between groups of
people.

Assuming that some Bihari authorities did

something wrong, does it justify branding all
Biharis as infiltrators in Maharashtra? Two
wrongs do not make a right. The remedy, if some
illegality is committed by a Bihar authority, is to
file a writ petition in the Patna High Court or the
Supreme Court and not to threaten Biharis living
in Maharashtra. Most Biharis living in
Maharashtra are poor people who have come to
Maharashtra for earning their livelihood.
Also, if Biharis are chased out of Maharashtra,
Maharashtrians living outside Maharashtra may
meet the same fate. Where will all this end? We
saw what happened when rumours were spread
which created panic among people from the
Northeast living in Bangalore and elsewhere.
The time has come for the nefarious designs of
such selfish politicians who only care for their
vote bank, even if the country breaks up, to be
exposed.
Letter to Justice Verma

October 15, 2012

The Honble Justice J.S. Verma,

Chairman, NBSA,
(Former Chief Justice of India)
Dear Justice Verma,

Re:

Allegations against Mr. Salman Khurshid

As you would be knowing, a controversy has been raised by the India Today
Group about an NGO, Zakir Hussain Memorial Trust, of which Mr. Salman Khurshid is
the Chairman and his wife is the Project Director. Ms. Khurshid has made counter
allegations against the India Today Group which made these allegations against
him.
Some senior lawyers met me today at my residence and suggested that since there
are counter versions from both sides, it would be appropriate if the matter could be
examined
by
some
person
of
high
stature.

Everyone holds you in very high respect, and therefore I would request you to hold
an enquiry into the matter thoroughly and make your findings public so that
whoever is innocent is exonerated and whoever is guilty is exposed.

This incident is not just an isolated one, because often complaints are made that in
their hurry to give breaking news, the media, specially the broadcast media, does
not do proper investigation before attacking someones reputation. In this
connection, I may refer to Chapter 2 Shloka 34 of the Geeta where Lord Krishna said
to Arjun For a self respecting man, death is preferable to dishonour

I would, therefore, respectfully request you to hold a thorough inquiry into the
allegations against Mr. Salman Khurshid as also against the India Today Group after
hearing all persons concerned, and make your report public, so that people will
know the truth.
With regards,

Yours sincerely,
(Markandey Katju)
Rid our body politic of communal poison

Indians must defeat all those elements

that promote and thrive on religious
hatred
Though many Hindus and Muslims in India are
today infected by the virus of communalism, the
fact is that before 1857 there was no communal
feeling at all in most Indians. There were, no
doubt, some differences between Hindus and
Muslims, but there was no animosity. Hindus
used to join Muslims in celebrating Eid,

Muslims used to join Hindus in celebrating Holi

and Diwali, and they lived together like brothers
and sisters.
How is it that around 150 years later, suspicion,
if not animosity, has developed between the two
major religious communities on our
subcontinent? Today, Muslims in India find it
difficult to get a house on rent from Hindus.
When a bomb blast takes place in India the
police, incapable of catching the real culprits
(because they have no training in scientific
investigation), solve the crime by arresting
half-a-dozen Muslims. Most of them are
ultimately found innocent in a court of law, but
after spending many years in jail.
This has resulted in tremendous alienation
among Muslims in India. In Pakistan, things are
even worse for the minorities who often live in a
state of terror, scared of extremists and
religious bigots.

WATERSHED

1857 is the watershed year in the history of

communal relations in India. Before 1857, there
was no communal problem, no communal riot.
It is true there were differences between Hindus
and Muslims, but then there are differences
even between two sons or daughters of the same
father. Hindus and Muslims lived peacefully,
and invariably helped each other in times of
difficulty.
No doubt, Muslims who invaded India broke a
lot of temples. But their descendants, who
became local Muslim rulers, almost all fostered
communal harmony. This they did in their own
interest, because the vast majority of their
subjects were Hindus. They knew that if they
broke Hindu temples, there would be
turbulence and riots, which no ruler wants.
Hence almost all the Muslim rulers in India
promoted communal harmony the Mughals,

the Nawabs of Awadh, Murshidabad or Arcot,

Tipu Sultan or the Nizam of Hyderabad.
In 1857, the First Indian War of Independence
broke out, in which Hindus and Muslims jointly
fought against the British. After suppressing the
revolt, the British decided that the only way to
control India was to divide and rule. Thus, the
Secretary of State for India, Sir Charles Wood,
in a letter to the Viceroy, Lord Elgin, in 1862
wrote, We have maintained our power in India
by playing off one community against the other
and we must continue to do so. Do all you can,
therefore, to prevent all having a common
feeling.
DIVIDE AND RULE

In a letter dated January 14, 1887, Secretary of

State Viscount Cross wrote to Governor General
Dufferin: This division of religious feeling is
greatly to our advantage and I look forward for

some good as a result of your Committee of

Inquiry on Indian Education and on teaching
material.
George Hamilton, Secretary of State for India
wrote to Curzon, the Governor General: I think
the real danger to our rule in India is the
gradual adoption and extension of Western
ideas and if we could break educated Indians
into two sections [Hindus and Muslims] we
should, by such a division, strengthen our
position against the subtle and continuous
attack which the spread of education must make
upon our system of government. We should so
plan education textbooks that the differences
between the two communities are further
enhanced.
Thus, after 1857, a deliberate policy was started
of generating hatred between Hindus and
Muslims. This was done in a number of ways.

Religious leaders bribed to speak against the

other community: The English Collector would
secretly call the Panditji, and give him money to
speak against Muslims, and similarly he would
secretly call the Maulvi and pay him money to
speak against Hindus.
History books distorted to generate communal
hatred: As already mentioned, it is true that the
initial Muslim invaders broke a lot of Hindu
temples. However, their descendants (like
Akbar, who was the descendant of the invader
Babur) who were local Muslims rulers, far from
breaking temples, regularly gave grants to
Hindu temples, organised Ram Lilas and
participated in Holi and Diwali (like the Nawabs
of Awadh, Murshidabad and Arcot). This
second part of our history, namely, that the
descendants of the Muslim invaders, almost all,
promoted communal harmony, has been totally
suppressed from our history books. Our

children are only taught that Mahmud of

Ghazni broke the Somnath Temple, but they are
not taught that the Mughal emperors, Tipu
Sultan, etc., used to give grants to Hindu
temples and celebrate Hindu festivals (see
online History in the Service of Imperialism by
B.N. Pande).
Communal riots deliberately instigated: All
communal riots began after 1857; there was
none before that year. Agent
provocateurs deliberately instigated religious
hatred in a variety of ways e.g., by playing music
before a mosque at prayer time, or breaking
Hindu idols.
This poison was systematically injected by the
British rulers into our body politic year after
year, decade after decade, until it resulted in the
Partition of 1947. We still have nefarious
elements that promote and thrive on religious
hatred.

Whenever a bomb blast takes place, many

television news channels start saying that an
email or SMS has been received claiming that
the Indian Mujahideen, the Jaish-eMuhammad, or the Harkat-ul-Jihad-al- Islamia
has owned responsibility. Now an email or an
SMS message can be sent by any mischievous
person, but by showing this on TV and the next
day in print a subtle impression is created in
Hindu minds that all Muslims are terrorists
who throw bombs (when the truth is that 99 per
cent of all communities are peace loving and
good).
During the Babri Masjid-Ram Janmabhoomi
agitation, a section of the media (particularly
the Hindi print media) became kar sevaks.

PANIC IN BANGALORE

Recently, SMS messages were sent to northeast

Indians living in Bangalore and other cities
stating that they had killed Muslims in Assam
and so they had better get out of Bangalore
otherwise they would be massacred. This
created panic. When the Muslims of Bangalore
came to know of this mischief, they organised a
feast for the northeast Indians and told them
that someone had played mischief, and that
Muslims are not against the people from the
northeast.
It is time Indians saw through this nefarious
game of certain vested interests. India is a
country of great diversity, and so the only path
to unity and prosperity is equal respect for all
communities and sections of society. This was
the path shown by our great Emperor Akbar
(who, along with Ashoka, was in my opinion the
greatest ruler the world has ever seen), who
gave equal respect to all communities (see

online my judgment Hinsa Virodhak Sangh Vs.

Mirzapur Moti Kuresh Jamat).
When India became independent in 1947,
religious passions were inflamed. There must
have been tremendous pressure on Pandit
Nehru and his colleagues to declare India a
Hindu state, since Pakistan had declared itself
an Islamic state. It was the greatness of our
leaders that they kept a cool head and said India
would not be a Hindu state but would be a
secular state. That is why, relatively speaking,
India is much better off in every way as
compared to our neighbour.
Secularism does not mean that one cannot
practise ones religion. Secularism means that
religion is a private affair unconnected with the
state, which will have no religion. In my
opinion, secularism is the only policy which can
hold our country together and take it to the path
of prosperity.

(Markandey Katju is a retired judge of the

Supreme Court and Chairperson of the Press
Council of India)
Congratulation Letter To Maharashtra CM

Dear Chief Minister,

This is just to congratulate you on your strong step
in suspending the police officers who arrested the
girl who put up an item on Facebook objecting to the
shutdown in Mumbai on the death of Bal Thackeray,
as well as the girl who supported her.
The Supreme Court (in the appeal coming from the
judgment of the Kerala High Court ) and High Courts
have repeatedly held that such Bandhs and shut
downs are illegal as they paralyze the entire civic life
in the city. Hence what the girls did was in
accordance with the Supreme Court judgment. How
then could their act be called illegal? In fact it was
the policemen who arrested the girls who acted
illegally and committed the criminal offences
mentioned in sections 341 and 342 I.P.C.

In the Nuremburg Trials the the Nazi war

criminals took the plea that orders were orders, and
they were only carrying out the orders of their
superior Hitler. This plea was rejected by the
International Tribunal, which held that such orders
were illegal,and illegal orders should be disobeyed,
and consequently those found guilty were hanged.

If a policeman is issued an illegal order by his

superior (whether political or police ) it is his duty to
refuse to carry out such illegal order, otherwise he
must be charged for a criminal offence, and given
harsh punishment. For instance, if a policeman is
given an order by a superior to commit murder,
dacoity or rape, he must not obey such order. It
seems to me that the delinquent police officers who
ordered the arrest of Shaheen and the other girl, and
those who implemented this illegal order,
succumbed to the pressure of the hundreds of
hooligans who came to the police station. What kind
of policemen are these who succumb to hooligans?

You have therefore acted correctly in taking strong

action in the matter.

I am informed that in recent years hooligan gangs

have flourished in Mumbai and other parts of
Maharashtra, and they have terrorized people living
in the state. Some of them profess a separatist
ideology. In my opinion these should be crushed with
an iron hand, and it is your duty, as the Chief
Minister to do this, as Chanakya has advised in the
Arthashastra, and Bheeshma Pitamah in his
upadesh to Yudhishthir in the Shantiparva of
Mahabharat.

Regards
Justice Katju
Letter to West Bengal CM

Dear Mamataji,
You must have learnt that the Chief Minister of
Maharashtra has ordered the suspension of the
police officers who ordered the arrest of the Mumbai

girl who posted on Facebook her objection to the

shutdown of Mumbai on the death of Bal Thackeray.
I request you to do the same to the policemen who
ordered and implemented the arrest of Prof.
Mahapatra of Jadavpur University and Siladitya
Choudhari, and you should immediately withdraw
the cases against them and apologize to them.You
should also immediately restore Damyanti Sen, the
upright police officer, whom you wrongly
victimized,and you should openly apologize to her
for your wrong. We are all human beings and we all
make mistakes, but a gentleman is one who realizes
his mistake and apologizes. You should also
apologize to Tanya Bharadwaj whom you insulted on
the CNN IBN show.

I can assure you that if you do so you will go up in

the esteem of the people of West Bengal, and
indeed the whole country.

From what I could gather during my visits to

Kolkata, your Ministers and bureaucrats are afraid to
speak out their minds fearlessly before you, and are
terrorized by your unpredictable and whimsical
behaviour. To say the least, this is a very unhealthy
state of affairs, and you will not be able to remain as
Chief Minister for long unless you change your ways
and become more tolerant.

Kautilya has said in the Arthashastra that a

successful ruler is one who appoints good advisers,
and listens to their advice. Of course, after listening
to their advice it is ultimately for you to take the final
decision, but your advisers should feel free to
express their opinions fearlessly. In this connection I
may mention that Sardar Patel, the first Union Home
Minister, told his Secretaries (senior I.C.S. officers )
that they should express their views freely, even if
their view is totally different from his own, and he
would never take offence. In fact if they do not
express their views freely they were of no use to
him. This is the way you should also conduct
yourself.

It is still not too late for you if you listen to my advice

and change your ways. I am your well wisher, and
would like you to do well, and in fact, if you
remember, I had praised you at one time. But of late
you seem to have become increasingly intolerant
and whimsical, which is only going to land you in big
trouble.

Regards
Justice Katju
Release of Sarabjit Singh : Letter to H.E. The Pakistan President and H.E.
The PM of Pakistan

To
H.E. The Pakistan High Commissioner to India
Janab Salman Bashir Saheb

Your Excellency,

I request you to convey my following message to

H.E. The President of Pakistan and H.E. The Prime
Minister of Pakistan :

Your Excellency,

You must have heard that Ajmal Kasab has

been hanged in India. I wish to respectfully point out
to you that his case is totally different from that of
Sarabjit Singh who has been on death row in
Pakistan for 21 years in connection with the Lahore
bomb blast in 1990 which killed 14 persons.

About Kasab there is no doubt about his guilt, as he

was caught red handed. However, there is grave
doubt about the guilt of Sarabjit Singh. So the two
cases are not similar.

No doubt your Courts have convicted Sarabjit, but I

have carefully perused the evidence in his case and
have found serious flaws in the prosecution version.

His name was not even in the First Information

Report. The main prosecution witness Shaukat
Salim later retracted his statement and said it was
given under police pressure. As regards his alleged
'confession', we all know how 'confessions are
obtained in both our countries (by third degree
methods ). Sarabjit's own version was that he had
gone illegally to Pakistan for doing illegal liquor
trade, and was arrested there and later falsely
implicated in the bomb blast case.

Be that as it may, he has already spent over 21

years on death row, where one does not know when
he may be hanged. This is enough to drive any one
mad. I sincerely urge you to show mercy and
excercise your power of pardon in his case.

In my previous 4 letters to you pleading for his

pardon I have quoted Portia's speech on mercy in
Shakespeare's Merchant of Venice and the poem of
the great Urdu poet Faiz.

I earnestly request you once again to pardon him

and send him back to India

Regards

Justice Markandey Katju

(Chairman, Press Council of India

Former Judge, Supreme Court of India )

Response of H.E. The Pakistan Ambassador to India

Thank you Justice Katju. Your message will be

forwarded to Islamabad.
Regards
Salman Bashir
A jury of their peers

Media freedoms come with responsibilities.

A stronger Press Council, composed of media
professionals, would be the best regulator

The Indian Express carried a report about two

television reporters, from India TV and ABP
News, accused of blackmail for allegedly
trying to extort Rs 20 lakh from a person by
threatening to implicate him in a false case of
rape (Two television reporters accused of
sting and blackmail: Rs 20 lakh or we air sex
tape, November 9). Earlier, Jindal Steel
alleged that Zee News attempted to extort Rs
100 crore from it. There are other allegations
of such practices by media personnel. Paid
news is apparently a common practice.
Madhu Kishwar, a senior journalist herself,

said on Rajya Sabha TV that many media

people are bribable and manipulable.
When I spoke of regulating the media, there
was a hue and cry in a section of it, which
painted me as some kind of dictator who, at
the behest of the government, wanted to gag
or muzzle the media and crush media
freedom.
Although I have expressed my views earlier, I
would

like

to

give

comprehensive

clarification.
There is no such thing as absolute freedom. In
our Constitution, Article 19(1)(a), which
provides for media freedom (as part of
freedom of speech), is subject to Article 19(2),
which states that the freedom in Article 19(1)
(a) is subject to reasonable restrictions in the

public

interest.

Thus,

there

cannot

be

freedom to defame, incite religious riots, or

extort and blackmail.
There is a difference between control and
regulation. Where there is control, there is no
freedom; while under regulation, there is
freedom but it is subject to reasonable
restrictions. I am in favour of regulation and
am opposed to control. The question arises:
who is to do this regulation? I am opposed to
regulation by the government, but am in
favour of regulation by an independent
statutory authority like the Press Council of
India.
The Press Council has, apart from its
chairman, 28 members, 20 of whom are
representatives of the press (six owners, six

editors, seven working journalists and one

from a news agency). These 20 members are
not appointed by the government but elected
by the press. Of the other eight members, five
are members of Parliament and there is one
person each from the Bar Council of India,
the UGC and the Sahitya Akademi. Decisions
in the Press Council are taken by majority
vote and even I have to respect the verdict of
the majority.
If the Press Council Act is amended and
broadcast media comes under the Press
Council (which can be renamed the Media
Council), it can have an additional 20
members from broadcast media. Hence, 40 of
48 members will be media representatives. If
this media council decides to take penal
action by majority vote against a media

person or media house, it will be a judgment

by ones peers and thus a form of selfregulation.
It may be mentioned that the Bar Council can
suspend the licence of a lawyer, but Bar
Council members are themselves lawyers.
Similarly, the Medical Council has doctors as
its members and can suspend a doctors
licence. The proposed media council should
have the power to suspend the licence of a
media person or outlet, but such a suspension
should be by majority vote of the media
council.
This media council must be statutory and
have penal powers, including the power to
suspend licences. The News Broadcasting
Standards Authority, which professes self-

regulation, is a non-statutory body with no

penal powers and is therefore toothless.
The Press Council has only the power of
admonition or censure and no power to
impose a fine or suspend a licence. I have
advocated enlarging this body and making it a
media council with penal powers, but the
penal power should not be exercised by the
chairman or the government, but by a
majority of members. It will thus be a
judgment by ones peers. What reasonable
objection can there be to this suggestion?
Objecting to it implies that some media
houses do not even trust their peers.
Those who accuse me of trying to crush media
freedom can see my track record. I have
fought for media freedom every time it was

threatened, whether in Jammu and Kashmir,

Maharashtra,

the

Karnataka

legislative

assembly, Uttar Pradesh, Bihar, etc. I was the

strongest critic of the arrest of the cartoonist
Aseem

Trivedi,

and

Virbhadra

Singhs

statement that he would break the camera of

a media person. I genuinely believe that the
media should be broadly free, and I have
appreciated the good work done by the media
in exposing scams. There are many excellent
journalists who are doing a good job.
At the same time, I have also said that
freedom

comes

responsibility.

hand-in-hand

Evidently,

media

with
owners

accustomed to having a free ride and making

a lot of money (through advertisement
revenue, etc), or who are using their media
house to protect their other businesses where

they are under suspicion of malpractice (one

newspaper owner is said to have several other
businesses, like sugar factories, coal blocks,
etc), do not want any kind of regulation. If
this attitude continues, I am afraid it will be
counterproductive and may ultimately result
in the severe curtailment of media freedom.
Indian Media - Wake Up Hanuman!

The test of every system is whether under it the

standard of living of the masses is rising or falling.
The same applies to the Indian media too.

If freedom of the media is helping raise the standard

of living of the Indian people, it is a good thing and
must be supported. If, however such freedom is
keeping the Indian people backward and poor it is a
bad thing and must be suppressed.

It follows that freedom of the media has by itself no

value, and it will have value only if it helps improve

the lives of the Indian masses. And the lives of our
people will improve if scientific ideas are propagated
and backward and unscientific ideas like casteism,
communalism, and superstitions are combated.

Today the Indian people are facing terrible

problems---massive poverty (it is estimated that 7580 % of our people are earning 25 rupees a day),
huge
unemployment, sky-rocketing prices
(vegetables cost about Rs. 40 a kg. ), lack of any
proper healthcare for the poor people, child
malnutrition (about half our children are
malnourished), farmers suicides (about 47 every day
for the last 15 years, making a total of about 250,000
a world record of farmers suicides ), etc

And yet our media (particularly the broadcast

media ) devotes 90 % of its coverage to lives of film
stars, cricket, and glamour. A few years back the
Lakme Fashion parade was covered by 512
accredited journalists, at a time when the farmers
who grew the cotton worn by the models in the

Fashion Parade were committing suicide one hour's

flight away in the Vidarbha region. Only one or two
journalists covered those suicides locally.

Is this a responsible way in which our media has

been behaving ? Is not our media behaving like the
French Queen Marie Antoinette, who when told that
the people have no bread said that they could eat
cake.

Amitabh Bachchan's 70th birthday, Kareena

kapoor's affairs, Sachin Tendolkar's 100th century,
Rahul Dravid's retirement from cricket, Dev Anand
and Rajesh Khanna's death, Rakhi Sawant's
swayamvar, etc-----these are depicted as the real
issues facing the nation, not poverty, not
unemployment, not price rise, not healthcare, not
malnutrition.

Several T.V. channels show astrology, which is pure

superstition and humbug, and therefore tends to
perpetuate backwardness of our people. In my

opinion there should not be any freedom to show

such superstitions.

The corporatization and crass commercialization of

the media is no doubt largely responsible for this
irresponsible behaviour. While corporates may have
a legal right to own and run the media, this freedom
has to be coupled with responsibilities. There cannot
be freedom to to defame, incite religious, caste,
regional or racial riots, , extort and blackmail, hold
media trials, practice paid news, etc Hence a
balance has to be struck between freedom and
responsibility.

A section of the media has misunderstood me and

depicted me as some sort of tyrant who wishes to
muzzle or gag the media at the behest of the
government, when the truth is that I have been
throughout my one year as Chairman of the Press
Council fighting for media freedom, and raised my
voice of protest against attacks against media
freedom and media persons, whether in J&K,
Maharashtra, U.P. , West Bengal, Karnataka, etc. I

strongly criticized the arrest of the cartoonist Aseem

Trivedi, and the threat of a senior politician to break
the camera of a journalist.

At the same time I have been constantly advising

media people to act responsibly and in a manner
which will benefit the Indian people. This they can do
by spreading scientific ideas among the masses as
scientific thinking is the only way out to solve the
country's huge problems.

I regard the Indian media as Hanuman, and I regard

myself as Jambawant. The Indian people are Lord
Rama, and it was the duty of Hanuman to serve
Lord Rama. However, Hanuman forgot his powers
and duty because of the curse of a sage. Like
Jambawant, I have been reminding Hanuman (the
media ) of its duty to Lord Rama (the Indian
people ).. The Indian media has to serve the Indian
people, and if it does so it will win the respect and
admiration of the people.

-Justice Katju