A Striking Chief Justice

By ALBERTINA ALMEIDA

 

India has had 44 Judges as Chief Justices of the Supreme Court including the current one. But not all leave the kind of impression that the recently deceased Chief Justice Altamas Kabir did. During his stint as the Chief Justice for barely a year, and prior to that as Justice of the Supreme Court for about seven-and-a-half years, Justice Altamas Kabir did blaze a trail in terms of understandings of justice and crusading for peace.

 

Not for him the flaunting of Justiceship on the collar, gown and sleeve. Not for him the stiff neck that characterizes many Justices. This Chief Justice was a simple down-to-earth jovial person, who yet was firm beneath his gentleness. I had occasion to meet him on the verge of his elevation as Chief Justice and was struck by this simplicity and also responsiveness. He was prolific with disposing cases with practical judgements that clearly elucidated the rationale: instead of saying the homo sapiens veered from the vertical to the horizontal position to simply say a man fell down.

 

Justice Altamas Kabir’s minority status perhaps gave him the position from which he could understand the conditions of marginalized sections of society. Justice Kabir reemphasized in the famous IR Coelho case judgement delivered in early 2007 (popularly called the Ninth Schedule case) where he held forth on the basic structure of the Constitution and maintained that the Court has preserved its inherent powers to make such orders as may be necessary in the interests of justice as the guardian of the Constitution. “Justice transcends all barriers and neither rules of procedure nor technicalities can stand in its way, particularly if implementation would result in injustice”, he said and emphasized that “It is necessary to cut across technical tapes”.

 

Being the incumbent of the post of Chief Justice when the Nirbhaya case and the protests about it were raging, Justice Kabir, on an occasion a few days after this incident, while inaugurating a Fast Track Court in Delhi, expressed his anguish that he could not be part of the protest given the position he was holding. He was however clear that in the process, one cannot get so carried away that we handle the matter with a knee-jerk response where the solution is worse than the problem.  As a matter of fact, he cautioned against vigilantism. He was speaking in the backdrop of strident demands of castration, death penalty, ‘shoot them’ attitudes that were renting the air in those days.

 

It was perhaps in this spirit that when having to give his considered opinion on reducing the age of a juvenile when it comes to rape murder cases, he did not appreciate the rationale for this and reminded the world that the objective of the Juvenile Justice Act was restorative and not retributive justice. The Juvenile Justice Act, one may recall is meant to ensure that there is justice for a child in need of care and protection as well as a child in conflict with the law so that the child is rehabilitated and does not grow into a destitute or a criminal.

 

The NEET (National Eligibility Entrance Test) case was the last of the cases on which he delivered judgement before his retirement in 2013. The case had the effect of pushing back the proposal for the single all India entrance test for admission to professional medical and dental colleges all over India. It is hugely significant in the context of Goa. It resonated for Goa which has had just an iota of IAS officers precisely for reasons of language and script, when Justice Kabir opined that apart from the right to freedom of religion, is the right of citizens to a distinct language script culture of their own to conserve the same. Difference in language, culture or script has often given those invested in dominant languages, cultures or scripts an edge over students from minority languages, cultures or scripts, in a situation where the standard of the exam is determined by the practices and standards of the dominant.

 

“There can be no controversy that the standard of education all over the country is not the same. Each State has its own systems, pattern of education, including the medium of instruction. It cannot also be disputed that children in metropolitan areas enjoy greater privileges than their counterparts in midst of the rural areas, as far as education is concerned, and the decision of the Central Government to support a single entrance exam would be perpetuate such divide in the name of giving credit to merit”, Justice Kabir opined.  Justice Kabir further remarked in the judgement that in a single window competition, the disparity in the educational standards in different parts of the country cannot ensure a level playing field, thereby highlighting the dangers of a single entrance test.

 

Justice Kabir empathized with marginalized sections of society and is fondly remembered by adivasi groups in Jharkhand where he held the post of Chief Justice of the Jharkhand High Court. His invitation to representatives of marginalized sections of society, including Dalits and adivasis, to attend his oath-taking ceremony as Chief Justice is well remembered.  And so are his efforts to get Supreme Court Judges to engage with their concerns, including the time he got a team of Supreme Court Judges to meet a delegation of sex workers at the National Legal Services Authority, in order to enable them to understand what it means to be in those shoes.

 

It is not as if Justice Kabir did not have his share of allegations of various kinds, and the jury is out on the truth or otherwise of those allegations. But that cannot take away from certain sterling qualities of Justice Altamas Kabir emphasized above, that people in positions of power could do well to emulate.

 

(First published in O Heraldo, dt: 23 February, 2017)

Ashpak Bhengre: An Alert Against Manufacturing Consent

By ALBERTINA ALMEIDA

 

Who killed Ashpak Bhengre while he was lodged in Colvale Jail? That is something the police are supposed to investigate and it is not the domain of this author to guess. It is said that a  fellow inmate assaulted him, but many have reasons to think that this fellow-inmate was actually the executer of a contract killing.

 

But what killed Ashpak Bhengre? A cold and calculating State, that is happy to manufacture consent for violation of human rights, by inveighing against someone with regard to whom there is popular middle class disapproval.  And an indifferent society. So Ashpak Bhengre is seen as dispensable. So we slip from no one should  be assaulted or killed even in custody, in fact certainly not while in custody, to some ‘bad’ people can be killed in custody, in a way that it no longer shocks the conscience of humanity.

 

It moves then to the argument that he can be killed by anybody, be it the State through its agents or a fellow citizen while the State glosses over the killing. So somebody decides that some people are dispensable, and the State is either actively complicit or turns a blind eye. This is the kind of attitude we are generally seeing vis-a-vis the death of Ashpak Bhengre in Colvale Jail.

 

Sometimes the State may violate human rights by commission and at other times by omission, that means by negligence, lack of due diligence, and sometimes both. In the case of Ashpak Bhengre, with murder in judicial custody, and the State almost looking the other way, the State can in fact find a way to legitimise torture because of the popular sentiment against him. This way, slowly, by justifying such a death, we provide the opening through which the State can justify all kinds of draconian and undemocratic acts, just as torture of some people begins to get justified.

 

The State then gets emboldened to commit acts that have the effect of asserting a fascist agenda of homogeneity, by repressing freedoms and even taking away life.  It is about giving legitimacy to systemic killings and torture, to justifying murders . We need to call out our prejudices against the person killed in custody that may cloud our thinking on the issue. The State also has to accept responsibility for gross failure of duty of care. We need to stress that torture is always wrong.

 

Today in the country we already have gau rakshaks portrayed as social worker vigilantes, wittingly or unwittingly sanctioned by the State, PM Modi’s recent statement notwithstanding. How much time before decisions about who is dispensable will be taken by these very people or the likes of them? Despite the fact that the basic principle of human rights is that everyone is equal before law, and no human being can be subjected to torture?

Voices need to be raised. Our silence about Ashpak Bhengre’s murder will end up being the proverbial foot in the door, through which the State will then justify the dispensability of political dissenters, those that it has profiled as terrorists, those convicts who are yet to have the opportunity of proving their innocence at an appellate stage.

 

A quick run down memory lane will remind us about Abdul Gaffar who was killed in custody in the mid 90’s. The Government has a long history of introducing draconian laws in the name of countervailing circumstances. Ben Zuratovich has rightly called it the ticking bomb theory. To use the his words in a paper ‘Torture is Always Wrong’, published by the University of Illinois Press in its Public Affairs Quarterly of April, 2008,  “In a ticking bomb scenario, a known terrorist has planted a bomb and the only way to discover its location is to torture the terrorist. Those who advocate torture in such extreme circumstances are apparently not dissuaded by the artificiality of the examples on which they base their moral judgements, or by arguments that the existence of a power to torture in extreme circumstances means that the power will be used in other circumstances.”

 

We cannot forget that torture has an uncanny knack of generating more torture or terrorism and counter-insurgency, if it is not addressed through due process of law. More importantly, we must remember that the Universal Declaration of Human Rights came to be conceived and eventually adopted in 1948 in the face of Nazi fascist torture. India is a republic whose Constitution guarantees the rule of law, whose Constitution under Article 14 guarantees being equal in the eyes of law, equal protection of the law, justiciability for wrongs committed to anyone, and remedies or punitive measures against any person who commits a crime, after giving all parties concerned a fair hearing. By not standing up against custodial murders, we will only be paving the way for a disbanding of rule of law, and a justification of torture by whomsoever it may be, the individual or the State.

 

(First published on O Heraldo, dt:11 August, 2016)