Uncharitable and unwarranted criticism showered on the Judiciary for its NJAC verdict is both distressing and perilous

On October 16, a five-judge bench of the Supreme Court in a 4-1 majority struck down as unconstitutional the 99th Constitution Amendment Act, which would have paved the way for the establishment of a National Judicial Appointments Commission (NJAC). The landmark judgment is being widely debated. There is praise from some quarters but there is also a lot of criticism, especially from the government. Most of the criticism has been at the level of politicians versus judges. A few who are in disagreement with the judgment have stretched their arguments beyond reason, and are attacking the Court in uncharitable and less-than-democratic terms. This is both distressing and perilous.  

Let us first look at the manner in which the reactions started coming. The BJP ministers and spokespersons were initially very mild in expressing their opposition to the judgement. The Union minister for Law and Justice initially, over an hour after the judgment was delivered, said that he was “really surprised with the verdict.” He would go through the judgment, talk to his senior colleagues and then decide, he had said. The Telecom Minister also spoke in a similar tone. When asked by a correspondent of ANI if the judgment was a setback to the legislature, Mr Ravi Shankar Prasad replied that he did not see it as a confrontation between the legislature and the judiciary.

By 2 PM, Finance Minister Mr Arun Jaitley called for a meeting of the BJP spokespersons. We are not privy to what transpired but one can be sure by the responses that we later witnessed that the party had decided to attack the judiciary. The same Telecom Minister changed his view; he told the press in the evening: “I regret to say that Parliament’s sovereignty has received a setback today.” Since the Court is “going to hear the so called infirmities and the need for improvement in the collegium system from 3rd November…there is an acknowledgment by the judiciary itself that collegium system needs improvement,” Mr Prasad said.

Two days later it was the Finance Minister himself who came out with harsh words against the judiciary. In his Facebook page, he wrote that the “key to the judgment” was “political bashing.” Taking a swipe, he said that the “Indian democracy cannot be a tyranny of the unelected.” Leaving behind the fact that the Minister himself had lost the 2014 general elections in Amritsar and got into Parliament through the Rajya Sabha route where “elections” are hardly that in the true sense of the word, it was highly unfortunate for a minister and a lawyer of his stature to use such words. Does he mean to say that the decisions of the Judges are of no, or less, value because they are not elected members? And by “tyranny” what does he mean? Does the Supreme Court’s striking down of an act that was passed by Parliament, notwithstanding the majority or extent of support it carried, constitute tyranny? Did the politician in him so badly dwarf the judicial mind which he possesses that he forgot that the Constitution provides for a judicial review? Or was he unwittingly making public his inner desire to amend the Constitution and repeal judicial review altogether so that Parliamentarians’ “sovereignty” can be untouched? And by saying that “it was people like me – the politicians, who fought out and went to prison” and saved democracy, does the minister mean to say that the Judges too should go to prison in order to qualify to become saviours of democracy?

While attacking the Judiciary in such voices, the likes of Mr Jaitley who hold high posts should remember that if any institution of the State still commands some respect and faith it is the Judiciary, more so the higher judiciary.  

Dr Jayaprakash Narayana of the Lok Satta party in an interview to Swarajya magazine opined that it was an “absurd proposition” to say that if “the representatives of Parliament or the government are part of the process of selection (of judges), it vitiates the selection.” The Supreme Court is not against representatives of the Parliament having a say in the process of selection, but is only against political interference to the extent that judicial independence will be compromised. In the Collegium system, the names of the candidates chosen by five senior-most judges of the apex court is sent to the President (read Cabinet) for assent. The representatives of Parliament (the Cabinet) have the power to send back such names if found inappropriate (though only once), and this was a system evolved by the Judiciary, not the Parliament!  

Those who criticize the judicial appointment system by saying that judges appoint judges (“permanent priesthood” is how Dr Jayaprakash Narayana put it in his above mentioned interview, “self-procreation” said Dr Abhishek Manu Singhvi in his article in the Times of India) should also add that there exists a provision wherein the candidates to be appointed as judges selected by the judges can be regulated by the Cabinet. The case of Mr Gopal Subramanium being prevented from becoming a Judge of the Supreme Court is a recent instance; it also showed how the Collegium was not sufficiently insulated from political interference (read excesses). One may say to counter this argument that that the Cabinet’s check in this regard is insufficient as the name(s) suggested by the Collegium can be sent back for reconsideration only once, and that if the Collegium sends the same name(s) again the President will have to appoint the said person(s). But this is the same even in the manner how bills are passed in Parliament. The President can send back to the Parliament for reconsideration a Bill only once and if the same is passed in the same form again, the President is bound by law to give his assent to it. Let us for a moment hypothetically think that there is a body that makes law which is above Parliament. If that body were to amend the Constitution to the effect that a Bill once sent back by the President to the Parliament for reconsideration shall not be accepted unless changes were made, would the Parliamentarians have agreed?  

Dr Jayaprakash Narayana said that judges appointing themselves was necessary to maintain independence wass an “absurd logic” because then by extending the same logic even Election Commission, Public Service Commissions, the CAG, etc. would have to appoint themselves. The comparison, I say with due respect, is incorrect. The bodies mentioned by Dr Narayana are not judicial bodies and thus are not, as is the basic structure, required to be separated from the executive and legislature. These bodies get the independence they require from the Constitution itself; removal procedure of an Election Commissioner is same as that followed for a Judge of the Supreme Court, there is security of tenure for members in these bodies, their salaries cannot be changed to their disadvantage, etc. Also, attempts as blatant as in the case of the Judiciary were not made to appoint “suitable,” “committed,” or “ideologically aligned” persons to these bodies. Thus there was no need to change the appointment procedure in these bodies as prescribed in the Constitution. There were serious attempts made by governments to make the judiciary weak and pliable and that is why the system of appointment had to be changed and we got a Collegium system, which none now say is perfect. The Supreme Court itself has said that the system needs to be improved, and that is precisely why they have called stakeholders for discussions on November 3. And if similar attempts are made to make constitutional bodies weak and pliable, the Supreme Court would, as it ought to, set in motion a debate and give suitable directions to the government to amend the appointment procedures.     

In the NJAC as it was passed, there were, at numerical parity with the judicial members, three non-judicial members, of which two would be “eminent persons” who were not even defined properly in the Act, and with a veto power of two. The same veto of two, but against five, existed in the Collegium too whereby a name could not be sent for assent to the President if two of the five Collegium members opposed. Thus, it is not veto per se that the Supreme Court has a problem but the veto that could be exercised by two undefined “eminent persons.”

The NJAC in the form it was passed would have done no better than the Collegium. Lack of transparency was the biggest problem in the Collegium system and where in the Act was a proviso which would have made the procedure transparent? Did the government feel that the presence of the Law Minister and two undefined “eminent persons” would bring transparency? The Act did not mention any new criteria or desirable qualification that would have to be looked at by the selectors. Instead of striking down the Act completely, Dr Singhvi feels that “the judiciary should have given a fair chance” to the NJAC “at least for a reasonable time.” Why should such an Act need a fair chance? It would only have led to another long discussion bringing further disrepute to the Judiciary for a flawed selection process. This was something that the Judiciary least wanted. Its invitation to the stakeholders for offering suggestions to rectify the errors is an open admission by the top court of the country that things are not in good shape, and this must be seen positively. Those shouting “judges appoint judges” must take solace in the fact that the judges are ready for reform.

The article first appeared in The News Minute. 

Thrissur's 78 year old Pen Hospital that has treated Mrs Indira Gandhi's & Mr Kalam's pens

Few metres down the Town Hall Road from the famous Round in Thrissur district of Kerala is the small, single shuttered, seventy-eight-year-old shop were pens from many corners of India reach for repair. For someone walking this road for the first time it is quite natural that the shop may go unnoticed.

Written in yellow bold letters in black background on a small rectangular plate is the shop's name - Honest Pen Hospital. Part of the name plate is hidden by the rolled up shutter. Towards the lower half of an adjacent wall that faces the road is an interesting painting showing a fractured pen being carried on a stretcher by two fountain pens, below which is written: 'Hurry up to Pen Hospital and get complete cure.'

On the entrance hangs a small board with a caption 'Consulting Time.' 9 AM to 6 PM, the board reads.

Next to it, facing the shop's inside, hangs another board which reads 'Wait for 10 minutes.' This is board which Mr Nazar displays when he is away from the 'hospital' to do some household chores.

Unlike other hospitals, there are no receptionists, nurses, and doctors; there is just one man, Nazar, the pen doctor, who welcomes people walking into his 'hospital' with an appealing smile. Mr Nazar, 58, has been repairing pens for the past 36 years. However, the shop is older than Nazar himself.

Nazar's father, Mr Kaalathodu Koluthu Parambil Abdulla, was the one who founded this 'hospital' in 1937. Before founding this, Abdulla was working as a fountain pen mechanic in Bengal.

"Fountain pen users back then were very less. Swan, Blackbird, Pilot, etc. were the few fountain pens that were available in India, and they were costly. There was a demand for people who could repair these. After basic education, my father went to Bengal, learnt pen repair, and started working there. When pens became cheaper and more people started using them, my father came back to Kerala to do the same work here. Thus was born the Honest Pen Hospital," Nazar recounts.

The shop was first located in Thrissur district's St Thomas College Road. It was in 1959 that the shop was shifted to the location where it currently stands.

Nazar believes that pens have life. "There is some fore of attraction, like that of the magnetic force, between a pen and its owner. Only if you take good care of your pen and love it like your pet will it help you. The more you love it, the better will it help you to shape your thoughts on paper."

Nazar reminisces with pride the early days of this 'hospital' when his father was the doctor. "My father's fingers had some sort of magic in them. He knew pens so much that once he got a faulty pen in his hand, even before the owner could say what the fault was he would diagnose it. He could successfully cure all pen ailments. Few pens would require days of work while few could be cured in minutes."

There were not many exclusive pen repair shops in India and because of Abdulla's mastery in the craft, the Honest Pen Hospital earned a name for itself. Pens from different parts of the country used to come here for 'treatment.'

This shop in the southern state of India had the privilege of 'treating' the Prime Minister's pen. Once when Prime Minister Mrs Indira Gandhi's fountain pen stopped writing it was sent to this 'hospital.' "The pen was special to Mrs Gandhi because it was gifted to her by President of Soviet Union Mr Mikhail Gorbachev. She had it sent to my father through her secretary. My father repaired it and sent it back to the Prime Minister."

The senior pen doctor passed away in December 2010, and the news spread in the city. Nazar recounts a touching incident which shows how much people loved their service.

"Few days after my father passed away, a famous Ayurvedic doctor's son walked into the shop and showed me a fountain pen which my father had repaired. He had a touching story to tell. It was the only pen his father used to write with, he used to prescribe medicines using that pen alone. When its nib became faulty he had it sent to my father. But the nib was not readily available and it needed a week to be replaced. By the time the son had got the pen repaired and taken it to his father, the father had got another pen for himself. The father then asked the son to keep it for himself. Those days it was not common for a pen to be gifted, and the son cherished it so much that he got a wooden box made by a carpenter exclusively for keeping the pen and kept it safely in his locker. As years passed the son got many more pens for himself and he forgot his gift. It was when my father passed away that he got reminded of the pen and brought it to me. Even after so many years the pen worked perfectly."

As Nazar was telling me this story a customer walked in asking for a good fountain pen. Nazar showed him few pieces of the old, famous Doctor brand of pens made in Bombay. These pens are hardly available in ordinary shops as they are out of stock. Having sold the pen, Nazar told his customer to use the pen regularly, or else to wash the nib section and keep it dry. "This is an advice which my father used to give to every fountain pen user and it is because the Ayurvedic doctor's son heeded to this that his pen worked perfectly when we tried writing with it after years," says Nazar. He is continuing his father's practice of giving this advice to every fountain pen user he meets.

Honest Pen Hospital has also had many other celebrity customers. Among them were renowned Malayalm poets Kunjunni Master and Mr Vyloppilli Sreedhara Menon, both of whom were recipients of the prestigious Kerala Sahithya Academy Award. Former President Mr A.P.J. Abdul Kalam too had once visited this shop.

"President Mr Kalam had come to Ernakulam for some function, and the organizers of the event had cut a big shade-giving tree to make arrangements for his welcome. He came to know of it later when he had returned to Delhi after the function. He then asked the organizers to plant a sapling in its place and take care of it. For planting the sapling he came to Ernakulam again, and while he was placing the sapling in the pit that was dug, his pen fell into it and the pen's cap got stuck. He wanted it repaired and his secretary suggested to him this hospital. The President arrived here and I repaired the pen."

Since fountain pen users have fallen drastically and people who like to get their pens repaired have reduced even further, customers have dwindled. "But there are still many judges of the High Court of Kerala, advocates, doctors, and document writers who get their fountain pens repaired from here."

But this 'hospital' also repairs ball point and roller ball pens. As I was speaking to him there were many customers who came to fill ink in their roller ball refills. For those coming asking for a new refill without knowing that the used refill could be re-filled, Nazar informs them of this, despite the fact that what he earns for re-filling is ten times lesser than what he would earn by selling a new refill.

"It is not all about money. Of course money is a factor but I do it more as a form of service. I know how badly people get affected when the pen they use regularly stops working the way they want it to. Most of the service require minor tweaking of the feed and the nib and I do not charge anything for it," says Nazar. I myself had got my handmade Deccan Ambassador fountain pen's ink flow adjusted for which Nazar did not charge anything. He takes solace from the fact that he is keeping alive an establishment which his father had founded.

However, Nazar is disappointed with two things. "People hardly write these days. Most of the work is typed, and the emergence of social media has made people to type rather than write their thoughts. Many great authors who I have had the opportunity to interact with when they bring their pens to me for repair have said that thoughts can be better presented when written. Writing establishes a better bonding with the mind, they say."

Nazar is also bit disappointed with the drastic fall in the number of fountain pen users. "Apart from helping in improving one's handwriting, using fountain pens is more eco-friendly than ball point pens. Also, fountain pens bring sort of a discipline to life. It makes one slow down in this age of pace."

Curious to know which pen this pen doctor himself uses I asked him to show me his pen. "I am not a writer, I do not have a pen. All what I do is pen repair and once I finish working on a pen I write with it to see if it is working well. That's the only writing that I do, so I do not have a pen for myself." When asked if he had any favourites he replied in the negative.

As more and more people were walking into Nazar's 'hospital' for 'treatment' I packed my bag and asked him who would be the next doctor of this hospital when Nazar would grow old. "God alone has an answer," he said.

"I did not want to become a pen mechanic. I wanted to go to the Gulf. But while I was still in school there was some civil case on this property and my father had to often go to the court. I, therefore, had to spend my time here in his absence. I used to write down the customer's name and complaints on a piece of paper, and show it to my father when he returned, and then rush to school. This partly affected my studies, but in the meantime I also developed an interest in repairing pens. We had also set up a pen manufacturing unit and I got interested in that too. But as demand for fountain pens fell, pen making was becoming less economical. Thus we dismantled the unit and started focusing on repair, and also on sales of other pens. But for the civil cases in the court I would have been in the Gulf. It is God who wanted me here, and he will have someone else in mind when I am not able to discharge my duties."

Pen doctor Nazar's children are doctors too, but not of pens like him and his father. Both his children are medical doctors. Only thing he is sure of is that the next doctor in Honest Pen Hospital is not going to be either of them.

(Abridged version, published in The News Minute, can be found here)  

Small acts of inter-religious honour can bring about peace and unity

It has been over two weeks since this year's Ramzan. Though belonging to the Hindu religion, my parents undergo the one-month fast that Muslims do in their holy month of Ramzan every year. This was the fourteenth consecutive year of my parents undergoing this month-long fast.

Few days before the month of Ramzan in the year 2001, my father's close friend (a Muslim) and his family had spoken to my parents about the varied benefits of undergoing this fast, and had kindled the idea of trying to observe the fast in my parents' mind. However, to be frank, the factor that most influenced my parents to try it was the anticipated reduction in body weight which would most probably result, for both of them were, and continue to be, fat.

But what began as a mere attempt to reduce weight went further. Right from the first year they started feeling physically and mentally relieved after few days of fasting, and when thirty days of the fast was coming to a close they felt the need to also perform charity, something on the lines of Zakat al-Fitr, which, under Islamic tradition, is a compulsory charity that needs to be done by every Muslim to provide means for the poor to celebrate the opening of fast every day. Every Muslim was bound to do this, and the Prophet Muhammad said, "The fasting of the month of fasting will be hanging between earth and heavens and it will not be raised up to the Divine Presence without paying the Zakat al-Fitr." The mandatory charity entwined with holy Ramzan was thus, to my understanding, a deliberate attempt by the great Prophet to evanesce class divisions in the Islamic society. Right from time immemorial religions have linked man's social responsibilities to God(s), and the fear of God makes him to shoulder them, seeing it as a moral duty, which otherwise he would have probably neglected. My parents did this charity for few years, though it was discontinued after few years since we shifted our residence.

However, what has not stopped is the month-long fasting. And because this was the fourteenth year that my parents were fasting the incident got reported in a Malayalam daily in Kerala, on July 16, three days before the last day of Ramzan. Since then, my parents say, there have been few changes, which I feel are profound. 

My mother talks of how her non-Muslim colleagues express wonder upon her observing such a strict fast, as Hindus and Christians have comparatively very liberal means of religious fasting. But what is remarkable is not this. She talks of her Muslim colleagues showing great happiness in the fact that a Hindu couple is observing a Muslim religious practice, of a Muslim colleague of hers who had hitherto not spoken to her congratulating her for observing the fast. My father talks of how a Muslim shopkeeper in the neighbourhood invited him to his home as a mark of respect. My father was also told by a Muslim friend that the Mullah in a neighbourhood mosque, in the course of his sermon, spoke of my parents to show how people from other religions were showing an interest in Islamic religious practices. It seems the Mullah also asked the gathering to support my parents if they were in some need. 

I was not at home when all this had happened. When I returned home from Madras, I got to hear of all these developments. During my evening walk in my hometown, I always pass by a Muslim man's home who by profession is a painter of bill boards and number plates of automobiles. I see him working every time I walk that road. On seeing the report in the newspaper he delightedly showed it to a friend of mine and my father's, which my friend told me when I met him few days back. During my walk the next day I met the man. He was sitting on a concrete slab and eating fried groundnuts. He immediately rose, smiled at me, and walked to me saying that he had seen the report about my parents fasting. He immediately offered to me the groundnuts that he was having in his hand. Here was a man who I was seeing for over eight years, who hardly even smiled because we did not know each other (though we lived quite close by), but now was walking up to me and speaking jovially. I think it was something great. 

A small act of observing a religious fast of one religion by people belonging to another religion has evoked this sort of a response. I was wondering how it would be if we all did such small acts. During British Raj we have known about instances where Muslims used to celebrate Hindu religious festivals and vice versa, of Muslims not having beef and Hindus not having pork to honour each others religious beliefs and sentiments. The other day I was hearing a lecture of Senior Advocate and Member of Parliament Mr. Ram Jethmalani saying how in his childhood days in Sind, his birthplace, which was then, before partition, a part of India, Hindu families would buy new clothes for the year during Ramzan and Muslims would do so during Diwali. And that by doing so as children they all learnt to see people from other religions as one. He also spoke of how, during the communal riots that took place during partition, Muslims in his neighbourhood protected Hindu families by telling the rioters that there were no Hindus in the houses of that area, which made many Hindus, including him escape death.

For quite some time now religion has been used only, or at any rate primarily, as a means for dividing people. We are walking a path were divisions based on religion and caste are being made more and more conspicuous. Few lay the dangerous trap and most of us unwittingly fall into it. The attempt to polarize the hanging of Mr. Yakub Memon is the latest and perfect case in point. Of all that was happening I was amazed by the demand made by a "leader" of the Samajwadi Party in Maharashtra that Mr. Memon's wife should be made a Member of Parliament.   

"Everybody is agreed about the necessity of this (communal) unity. But everybody does not know that unity does not mean political unity which may be imposed. It means an unbreakable heart unity... We shall both (Hindus & Muslims) be voted irreligious savages by posterity if we continue to make a futile attempt to compel one another to respect our religious wishes." - Mahatma Gandhi. (p.244, Communal Unity, India of My Dreams)

Let us all respect every man without looking at his religion. Let us take that extra effort to learn the goodness in other religions, and also talk about those when we do about ours. Let us put to practice the good of all religions. Let religions remain but divisions made using them fade.