Our crimes against our children

Praveen Swami IN THE HINDU JANUARY 21, 2001

By the grim standards of the dystopia India’s children inhabit, S.P.S. Rathore’s crime was utterly ordinary.

In December last, Indians watched in outrage as S.P.S. Rathore, former Haryana Director-General of Police, smirked at the end of court proceedings which saw him receive a six-month prison sentence for sexually abusing a teenager 19 years ago.

Not far from the Chandigarh courtroom where Rathore was convicted, a panchayat in Rohtak gathered to discuss the fate of a seven-year-old girl who had been sexually abused by a retired schoolteacher. The panchayat ordered that the hair of the perpetrator, Sushil Kumar, be shaved off — but asked the victim’s family not to inform the police. It was only three weeks later, after Kumar’s sons threatened the family, that the matter was reported to the police. The child’s story was buried in inside pages of local newspapers; the police say evidentiary issues render it unlikely the perpetrator will ever be punished.

Kumar is not the only paedophile who has not received national attention. Few know the story of a two-year-old raped by a construction contractor in Bangalore, a 10-year-old girl from Valsad raped by her uncle or the Latur teenager raped by three young men in her village and hanged from a jamun tree. Part of the reason Rathore’s appalling crime drew attention was that it fitted neatly with tropes of villainy familiar from pop-culture: among them, uniformed criminals immune from the law and powerful politicians who guarantee them impunity.

But the truth India has shied away from these past weeks is this: Rathore’s crime was, by the standards of our society, utterly ordinary. For the most part, India’s children live in a nightmare; a dystopia founded on our collective complicity and silence. By the Government of India’s account, more than two-thirds of Indian children experience beatings in their homes, schools, workplace and government institutions — beatings which, if conducted in prison cells, would count as torture. Every second child in India, the government says, also faces one or more forms of sexual abuse.

Yet, no government has found the time or energy to enact a law against the abuse of children — leaving the authorities, when they can bestir themselves to deliver justice, to respond using legalisation intended to prevent prostitution, beggary, trafficking and rape. There is no institutional machinery to investigate schools, homes and children’s workplace for sexual and physical abuse. There are no police officers trained in the special skills needed to deal with child abuse. Barring a handful of organisations and individuals working to address the needs of abused children, there is no resource which victims and their families can turn to for help.

Terrifying facts

In 2007, the Union Ministry of Women and Child Development released the thoughtful —and terrifying — Study on Child Abuse in India. More than 12,000 children were polled to arrive at an empirical picture of the scale of beatings and sexual crimes that Indian children endure. Fifty-three per cent of the children said they had encountered “one or more forms of sexual abuse;” 68.99 per cent said they had suffered physical abuse, including beatings. More than a fifth reported severe sexual abuse, including assault, having been compelled to fondle adults’ private parts, exhibit themselves or be photographed nude. Well over half of those reporting severe sexual abuse were boys, the study found.

Popular wisdom holds that sexual abuse takes place when children are in environments outside the supposedly safe confines of their homes and schools. That, the study found, was simply not true. Fifty-three per cent of children not going to school said they had been sexually abused in their family environment. Just under half said they had encountered sexual abuse at their schools. These figures, interestingly, were about the same as children in institutional care who said they had been sexually abused — 47.08 per cent. Most vulnerable were children in workplaces, 61.31 per cent of whom had been sexually abused.

Boys in all but four of 13 States — Gujarat, Madhya Pradesh, Maharashtra and Goa — were found to be more at risk of sexual abuse than girls. In Delhi, a staggering 65.6 per cent of the boys reported that they had been sexually abused.

Most at risk of serious sexual abuse, the study found, were children between 11 and 18 — although the group between six and 10 also reported significant levels of assault. Analysed by age group, the study states, sexual abuse was reported by “63.64 per cent child respondents in the age group of 15-18 years, 52.43 per cent in the age group of 13-14 years and 42.06 per cent in the age group of 5-12 years.” Assam, Delhi and Andhra Pradesh were found to have the highest levels of sexual abuse, with Uttar Pradesh, Gujarat and Goa recording the lowest.

We know, from separate studies, that the use of children in prostitution is also widespread. In their 2005 study, Trafficking in Women and Children in India, S. Sen and P.M. Nair estimated that there are up to half-a-million girl children from across the South Asian region working as prostitutes in India.

Elsewhere in the world, the existence of well-functioning justice mechanisms — and an open public debate on child sexual abuse — seems to have helped contain the problem to at least some extent. In the United Kingdom, a 2000 study by the National Study for the Prevention of Cruelty to Children found that about 16 per cent of children experienced sexual abuse before the age of 16. In the United States, one in four girls and one in six boys reported similar experiences. Horrific as these figures are, they are still well below the levels the Government of India’s study suggests are prevalent in our country.

Victims of violence

Depressingly, sexual abuse is only part of a wider gamut of violence. Sixty-nine per cent of the children polled reported having been physically abused — a term the authors of the Study defined as behaviour manifesting itself in kicking, slapping or corporal punishment at homes, schools, institutions and workplaces. In all the 13 States covered by the study, the incidence of physical abuse directed at children was above 50 per cent — a sign of just how widespread and legitimate the use of force is considered across the country. More than 80 per cent of children in Assam, Mizoram, Delhi and Uttar Pradesh reported physical abuse.

Most of the victims of physical abuse, the Study found, were very young children. Forty-eight per cent of the respondents who reported physical abuse were between five and 12 years old, while 26.29 per cent were 13 or 14. Older children, aged between 15 and 18, seemed to be targeted less for violence; just over a quarter reported encountering abuse. Boys reported encountering violence more often than girls in all States except Gujarat and Kerala. “In all age groups, an overwhelming majority of children (65.01%) reported being beaten at school, which means that two out of three children are victims of corporal punishment.”

The findings of the Study, its authors noted, were broadly corroborated by several other independent studies. Maulana Azad Medical College researcher Deepti Pagare found that over three-fourths of children in Delhi’s Child Observation Home had reported being subjected to physical abuse. Signs of abuse were found on the bodies of about half the children studied by Dr. Pagare. Fathers made up over half the reported perpetrators, and Dr. Pagare found a significant association between physical abuse of children and domestic violence in homes as well as substance abuse. Save the Children and Tulir, in a 2006 study conducted in West Bengal, found that almost three-quarters of child domestic workers had been physically abused. In 41.5 per cent of cases, the perpetrator was a member of the employers’ family.

What needs to be done? For one, India’s criminal justice system simply doesn’t have either the legal instruments or police infrastructure to deal with crimes against children. Despite calls from campaigners and child-rights groups, India is yet to pass a specific law on child sexual abuse — a legislative failure that makes prosecution in many situations almost impossible. Early this year, Punjab and Haryana High Court judges Mukul Mudgal and Jasbir Singh announced that they intended considering guidelines for the prosecution of child abuse cases. However, thoroughgoing criminal justice reforms will be needed for such efforts to yield results. Just 0.034 per cent of the Plan expenditure in 2006-2007 — an appalling figure — was committed to child protection.

In 1974, the National Policy for Children declared children a “supreme national asset.” No country in which two-thirds of children report beatings, and half experience sexual abuse, can make that claim with honesty. We must rip away the shrouds of silence that conceal the sheer pervasiveness of child abuse in our society. Our silence and inaction against the paedophiles in our homes, schools and neighbourhoods make us complicit in the horrific crimes being perpetrated against our children.

Source:  http://www.hindu.com/2010/01/21/stories/2010012155080800.htm


Read the latest about  English Law form Weekly Times Law Reports (JANUARY 21, 2010)

Mental illness not exceptional

KH (Afghanistan) v Secretary of State for the Home Department

Challenge to Scottish Act of Parliament fails

Axa General Insurance Ltd and Others v Lord Advocate and Others

Stop and search powers violate human rights

Gillan and Quinton v United Kingdom

Tribunal more appropriate for workplace harassment claim

Veakins v Kier Islington Ltd

Court can use power of substitution to defeat defence to claim

Parkinson Engineering Services plc (in Liquidation) v Swan and Another

Dishonesty not required in establishing fraud

Cavel USA Inc and Another v Seaton Insurance Co and Another

Proving breach of copyright by using another’s images

Regina v Gilham

Employment tribunal can determine enforceability

Industrious Ltd v Vincent

Coroner’s power to leave possibly causative matters to the jury

Regina (Lewis) v Coroner for Mid and North Division of Shropshire and Another

Evaluating DNA evidence from scene of crime

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Miller-Smith v Miller-Smith

Prisoner cannot sue over officers’ unlawful strike

Iqbal v Prison Officers Association

Knives attract high sentences

Regina v Maina Regina v Saddique Regina v Kika

US copyright judgment cannot be enforced in English jurisdiction

Lucasfilm Ltd and Others v Ainsworth and Others

No bias in enforcing same-sex duties

Islington London Borough Council v Ladele

Source: http://business.timesonline.co.uk/tol/business/law/reports/

‘I am very angry with SC saying if Govt tells us to disclose (assets) we will disclose. That’s what Govt wants — it wants to control the judges’


Eminent jurist Fali S Nariman feels that though the Bar has no veto, it has every right to caution judges. In this interaction with The Indian Express Editor-in-Chief Shekhar Gupta on NDTV 24×7’s Walk the Talk, Nariman says the time has come to have a judicial ombudsman and unless a judge has the image of the institution in his mind, there’s no point in being an SC judge

Shekhar Gupta: Hello and welcome to Walk the Talk and my guest this week, well, not only the most respected voices in the business of law and justice and delivery of law and justice in India but worldwide and also if I may say, undoubtedly my most famous neighbour, Fali Nariman, welcome to Walk the Talk.

Fali S Nariman: Thank you, thank you.

Shekhar Gupta: We have planned to do this many times and we kept on thinking of the right moment.

Fali S Nariman: That is because we are neighbours.

Shekhar Gupta: That is because we are neighbours. We take each other for granted. But this is as good a moment as any, to look back on so many years.

Fali S Nariman: Oh, yes. Absolutely. That is correct. We have been law since August 1975 and we have never regretted it.

Shekhar Gupta: And you have been in the business of law now for half a century.

Fali S Nariman: Almost 59 years, to be exact.

Shekhar Gupta: So next year is the diamond jubilee..? But you have seen a lot change?

Fali S Nariman: Yes, of course. I think that is perhaps the sin of the old days, that you look back and say, ah! Those days were much better.

Shekhar Gupta: Fali you are not allowed to say old days because I was going to ask you many questions about how you stay ageless, because you are inspiration to all of us who are getting there.

Fali S Nariman: I am old. I am very ancient, I am very ancient.

Shekhar Gupta: You have seen so many turning points in the history of Indian judiciary, ‘75 to the end of emergency being one and now being another. Both sort of historic but in different ways.

Fali S Nariman: You see the emergency was an entirely different situation and perhaps it was in a sense in retrospect, since it lasted fo4r only a year and a half…

Shekhar Gupta: But didn’t look like a short while then?

Fali S Nariman: Didn’t look like a short while then but it was a good thing for us. It was an inoculation, in my opinion, against tyrannical rule. And I don’t think we will ever, at least for the next 50 years, face that same situation where we would have rule without law. That is where the thing breaks down. Even benevolent rule without law, I think, is an anathema.

Shekhar Gupta: When you see inoculation, what you mean is that it sort of released the antibodies in our constitutional and democratic system>

Fali S Nariman: I think we worked best, you know, be it lawyers, judges, just imagine…

Shekhar Gupta: Don’t forget the media…

Fali S Nariman: And the media. But no that is a post emergency phenomenon, I must tell you. You see, it is the lawyers and judges who reacted admirably during the emergency whereas in the normal course there was much to be said against them.

Shekhar Gupta: Because if those two judgments had gone against the right cause, then it was over?

Fali S Nariman: Yes. And just imagine, nine High Courts struck down emergency laws in each state etc and freed all the detainees and it is only the Supreme Court that shut out the lamps of liberty. But that itself was a great clarion call for all of us, and that helped us along. But I think now the steam has gone out. That steam we had, of consideration of liberty…

Shekhar Gupta: In the legal profession?

Fali S Nariman: In the legal profession, in the judiciary. I think people have forgotten all this. They must be reminded, constantly reminded that …

Shekhar Gupta: That is a serious reprimand from Fail Nariman.

Fali S Nariman: Yes, it is. I am afraid so. People don’t remember all this. They don’t even bother about it. And I keep reminding whenever I have the occasion, reminding the judges also about what happened during those dark days. And it is best always, that is why I like these anniversaries when in June your paper, someone else’s, magazine…pick up all this, what happened on 26 th of June and things like that. It is a good revival of something that was wrong and that people must realize was wrong.

Shekhar Gupta: Fali it was that inoculation of the emergency and the judiciary coming in the limelight as the last sort of guardian of liberties and the rule of law, that then led to a lot of reform that empowered the judiciary. Isn’t it?

Fali S Nariman: Absolutely. And a lot of soul-searching when in the judges who didn’t search their souls at all at one point of time, and that made a great difference.

Shekhar Gupta: So all these collegiums, all this autonomy about appointments ultimately came as a result of that?

Fali S Nariman: Only as a result of that.

Shekhar Gupta: The judiciary got empowered by the emergency just as the media got empowered.

Fali S Nariman: Absolutely. I think the media today is fulfilling a tremendous role. Post emergency, it is a very very important role and I don’t care if sometimes someone is maligned, someone says something about nasty about Mr X, Y or Z. that you have to take because, I mean, if you don’t like the heat of the kitchen, as Truman said, then you must get out of it.

Shekhar Gupta: And that applies to the judiciary as well.

Fali S Nariman: That must apply to the judiciary as well.

Shekhar Gupta: Have you got a sense lately that the judiciary has shied away from facing the heat?

Fali S Nariman: Yes and no. But I must tell you that the contempt jurisdiction which we used to exercise, the judiciary used to exercise quite frequently before, is now diluted. I was very sorry to find those Madras advocates on the question of whether the former Chief Justice should have retired and had reached a superannuation age, and that poor man was sent to jail. I don’t like that sort of thing and I think that has set the tone now. They are much more considerate of criticism now than they were before.

Shekhar Gupta: Yes, but when I say shying away from the heat, the heat today is on declaration of assets, the heat today is on the antecedents of certain judges. Is the judiciary engaging or is the judiciary shying away?

Fali S Nariman: it is not engaging, unfortunately. I must tell you that I admire some of our younger judges, judges in the High Court for instance, who have had the courage to say, “No, we must declare our assets”. One of the judges of the Delhi High Court has said so. And, I mean, he could have very well taken the moral high ground that oh, we are superior to everybody, we don’t have to do anything.

Shekhar Gupta: So, he deserves to be saluted?

Fali S Nariman: Absolutely. A large number of judges in this High Court, I find, are extraordinarily good.

Shekhar Gupta: And Karnataka High Court, Punjab High Court…

Fali S Nariman: Even Karnataka High Court, Punjab High Court and the Bombay High Court, I think, all the younger people are extraordinarily good…

Shekhar Gupta: All these people who dared to say something different, who dared to break from the pack on declaration of assets.

Fali S Nariman: Absolutely, and I don’t see why there was that criticism of that particular judge, I forgot his name, of Karnataka, who said…

Shekhar Gupta: Shailendra Kumar.

Fali S Nariman: Shailendra Kumar, yes, who said I will declare my assets. Well, good enough. Doesn’t matter if he wanted to steal the limelight a bit but that was the breaking point, if you ask me, that was when every body said, oh! My God, now we are really breaking down so, lets gather forces and move with the tide. And that was a good thing. Sometimes, out of lla this comes out a lot of good.

Shekhar Gupta: What is with the younger judges, you know, you are a veteran but a very young veteran, do you think there is a revival now? The new crop of judges…

Fali S Nariman: I have great faith in the young people of this country, particularly if you ask me, the younger students…

Shekhar Gupta: Law students, particularly?

Fali S Nariman: Law students. Whenever I go to these colleges and lecture and so on and so forth, I find the response is so magnificent…and I find they know much more than some of us know, lawyers of 10 year, 15 year experience don’t know. When we go we have to be really prepared. And I am told that even in medicine it is the younger doctors, younger people who are extraordinarily good.

Shekhar Gupta: You have talking at these new colleges now…

Fali S Nariman: Yes, I have been talking at these new colleges now. I went to Jhodpur recently and we found in that law faculty the students were extraordinarily receptive, they knew much more than many of us knew and they kept themselves son the ball, use the internet, something I don’t use…

Shekhar Gupta: And you don’t have to. You have got internet in your head.

Fali S Nariman: No, no, I should use it much more but I leave it to secretaries to do that.

Shekhar Gupta: Because Fali, in old days at law faculties were…you could hide once you had finished college for a few more years if you didn’t have anywhere to go and you do a little in campus. But it is tough to get into law colleges.

Fali S Nariman: I must tell you at the Government Law College in Bombay , which is 150 years old, there is a Latin maxim­­–because all maxims are Latin, there are no Hindi maxims or English maxims—which meant that ‘nothing defile the temple’. I like that, that nothing defile the temple of the law which I think is a very great vision. I don’t decry the present rung of judges but t6he older judges had much more vision of that particular aspect because after all especially in the highest court where you have the power of life and death over people, you have to be seen to be extraordinary in character, in integrity, in competence, everything.

Shekhar Gupta: That is why all these salutations and my lord and wigs and all that…

Fali S Nariman: But I must tell you something. You see, take a gentleman like Mr Venkatachala. H ow do we remember him today? Most people know him, of course, because he is one of our living legends. Because only because, Chief Justice Pathak, when he deliberately went to Karnataka to find out who would be a good choice for the Supreme Court and looked at No 1, No 2, No 3, No 4 and then found from the bar that the best choice would be No 5 who is Justice Venkatchala . That is how he was brought to the Supreme Court and became one of our most distinguished Chief Justices.

Shekhar Gupta: So he was head-hunted?

Fali S Nariman: He was head-hunted. You must head-hunt. In the final court, you must head-hunt. And perhaps that is one of the great things. Infact, when I was at the bar in 74-75, I had gone to Kerala and I can mention names today, I appeared before a man called Justice Irady, who later became a judge of the Supreme Court.

Shekhar Gupta: We know him as the man who headed that tribunal on river waters.

Fali S Nariman: And who never leaves. You are right. But at that time, his demeanour was so good, competence was good, I lost the case but I found him very good so, I came back and told Justice Ontwalia , whom we knew very well here in Delhi, that I was before a particular judge named so and so and do you know what Chief Justice Reddy told him that brother why don’t you go to Kerala this weekend, have a look, find out from the bar–the bar is the best judge of judges. The bar unanimously proclaimed that he was good and he was brought here and for a whole year after that, he kept saying that Nariman brought me to the Supreme Court. It is true. It is absolutely true. And this is what people should do. You have to travel in order to find out good material. You can’t do on paper work, you can’t do it in your room…

Shekhar Gupta: So, you have no anxieties about bar associations running these campaigns against judges.

Fali S Nariman: No, no anxieties. They will be all scotched up if they are not worthwhile, if they are not bona fide…

Shekhar Gupta: Because, you know, the other side would say that at this rate the bar has a veto on who gets appointed as judge.

Fali S Nariman: No bar has no veto, bar has no vote. But the bar has the right to warn, the right to caution as in the present circumstances we have been doing. You must caution, ultimately the decision is theirs but they must also realise that they are only passersby, they are only passengers in this big ship called the Supreme Court. They are not people who are permanently there. The permanent thing is the institution. Unless you have the image of the institution in your mind, there is no point being a judge of the Supreme Court.

Shekhar Gupta: I mean, let me make a sort of make a little disclosure. We haven’t chosen this old monument with any purpose. It is called Chor Minar , just happens to live in our neigbourhood or we seem to live in its neighbourhood.

Fali S Nariman: Quite appropriate to have a lawyer here.

Shekhar Gupta: So, Fali now many judicial appointments run into controversies, many sitting judges run into controversies on issues not of ideology, legal views, views on the constitution, quality of judgments but straightforward issues of personal integrity and professional integrity.

Fali S Nariman: This is one of the very disquietening things of today. In the older day there were problems as you said, not of integrity, never of integrity or hardly ever of integrity but only because you are a landlord judge and you are a tenet judge and things of that sort. Just the proclivity of a judge towards a particular view…

Shekhar Gupta: During the emergency it was said that the judges are pro-rich.

Fali S Nariman: Yes, yes, of course the progressive judges, the so-called progressive judges. That was a very bad time and that was a very bad occasion. I think over all, Mr Kumaramangalam was responsible for that.

Shekhar Gupta: He himself was very ideological.

Fali S Nariman: He was very ideological. He said we must have people who look forward and forward looking, and the moment he said forward looking, everybody steeped up and said, “I am forward looking”. But it all arises because distinction in the age limits of the High Court and the Supreme Court. If they equal it out, if everyone retired at 65, High Court or Supreme Court, you require much persuasion to bring up a Justice Gupta or Justice Nariman from the High Court and say please will you come to the Supreme Court because you are best. Otherwise, it would be, “My lord I am very well qualified, I should come and so on…”

Shekhar Gupta: So, you mean people get compromised just to get five more years?

Fali S Nariman: Just to get five more years. And unfortunately, nowadays people are not like Justice Wanchoo. Whenever some judge went to call on him, send his card in, he would come out and say, yes Mr so and so. And that person would say I am Mr Nariman and shake hands, I am judge of such and such court. Yes, Mr Nariman. Thank you Mr Nariman for coming. Good Day. Finish. No conversation about how isd your court doing or what are the judges doing or who is a nasty fellow and who is not. You make your own assessment. You travel a bit. The trouble with our Supreme Court is, our judges, they don’t travel, they don’t see places except to deliver one or two speeches.

Shekhar Gupta: And what is the reason for it. They are overworked?

Fali S Nariman: They are fantastically overworked, I must tell you that. People must come and see how overworked they are. They have far too much work. So, unless this institution of a collegium is institutionalised, unless you have an office, a registrar, somebody like that to receive complaints, to find out in the zone of consideration, how many people are good, what is their qualification and so on, how will you choose them. Not on paper, not because I tell them or you tell them.

Shekhar Gupta: How do you reduce the workload on them?

Fali S Nariman: Very difficult. Because we entertain everything and I don’t blame them. Today the greatest problem with our courts, High Courts particularly, is the problem of caste. Because if you are such a such caste lawyer before such a such caste judge, you will either lose or win depending upon your caste.

Shekhar Gupta: Does it actually happen?

Fali S Nariman: It happens.

Shekhar Gupta: It is not just a perception.

Fali S Nariman: No. And therefore, in the Supreme Court all that is got rid off for the simple reason that there will be a bench of atleast two, one from one state and another from another state.

Shekhar Gupta: Maybe, it would be very tragic if you start now looking for caste balance in our Supreme Court benches.

Fali S Nariman: Oh! My God, that will be a disaster, no doubt about it. We have to be a little more liberal, we have to look forward…

Shekhar Gupta: But are you saying if we are not careful, we may get there?

Fali S Nariman: We may, we may. It is unfortunate but we may. Infact, you see, I don’t know, nowadays competence is just one thing but integrity is the most important factor. In our days, it used to be assumed that if you are going to be a judge, are you competent. Nobody said anything about your integrity.

Shekhar Gupta: Because integrity was taken for granted.

Fali S Nariman: Integrity was taken for granted. Members of the bar are also responsible for this lack of integrity.

Shekhar Gupta: Why do you say so?

Fali S Nariman: Because we are the people who negotiate in certain courts with certain judges, in High Courts etc, we have known that, there have been case4s about it recently. I mean they negotiate with them and find out how a particular judge is behaving or not behaving. Is he likely the person to accept some favours in return for something and so on? And that is what our bar has to…

Shekhar Gupta: But some of the campaigns in the past, there is committee on judicial accountability, it did look like, you know, an impression was growing that almost no judge can get in sort of unblemished. There were campaigns against two sitting CJI’s.

Fali S Nariman: There were, yes. Sometimes we overdo it. But it is better to overdo it than not to do it at all.

Shekhar Gupta: But do you think that the higher judiciary, the Supreme Court bench, the CJI, they have missed a trick. That they could have embraced this whole idea of declaration of assets more willingly.

Fali S Nariman: They missed it so badly, you are absolutely right. I don’t know, maybe perhaps it is because of too much work that they haven’t given that thought to it. Because of they had given that thought to it, confidence of the public in the higher judiciary is still so high and we can’t have it reduced now for God’s sake otherwise what are we going to renown as it is. People are not bothered about our politicians too much. In fact, it is because they say they suspected politicians that we got all these distinctions about declaring your assets and there were all the brave…..You see, now there is this passion for integrity which has to be so because in all walks of life we are not just bothered with how competent you are a person who is corrupt. It is a change in values; I think perhaps television is responsible for it. Maybe, I am not too sure but perhaps it is. Because, you know, the press was a very sturdy institution, in my opinion, but now it is all these media and there being no FCC like in the United States to control the media at all. I mean we don’t only go for news but gossip and wrong things and insinuation.

Shekhar Gupta: So what you are saying is that, you know, if you now say that the first qualification of a judge should be that he should be honest, then you are lowering the bar.

Fali S Nariman: You are lowering the bar. Man, the first thing should have been that is he worth the handle, is he competent enough to handle cases in the Supreme Court.

Shekhar Gupta: Because integrity is to be taken for granted.

Fali S Nariman: Integrity was always taken for granted.

Shekhar Gupta: When did it change? Was there a turning point?

Fali S Nariman: I don’t know. I think it is after the emergency. Emergency shook the institution like nothing else did. When Keshavan Bharti , you know, the great constitutional case of 13 judges where six judges signed the order and the other seven refused to sign or it was the other way round seven signed the order and six refused to sign. That marked the turning point of the breaking of the court, in my opinion, which was very unfortunate but that is how it was.

Shekhar Gupta: And it has never quite recovered from that.

Fali S Nariman: It has never quite recovered from that.

Shekhar Gupta: But in this particular case, assets declaration, you know, the Chief Justice and the higher judiciary, did they make it look like they were being sort of dragged, kicking and screaming.

Fali S Nariman: Yes. That is unfortunate. It should have come off their own bat and nobody would have said ‘yes, yes, these assets should be disclosed and should also be put on the website etc. But now the horse has bolted from the stable, you can’t go closing doors. Now the whole thing is there.

Shekhar Gupta: When you talked to them, did some of tem regret it that they lost an opportunity?

Fali S Nariman: Some of the judges do.

Shekhar Gupta: Because they gave the political class a handle.

Fali S Nariman: Yes, they said you wanted us to do it. Quite frankly the law minister looked, if I may say so without meaning nay disrespect, a bit foolish when he had to withdraw the bill about protecting judges. All parties across the board said ‘No,no. No exemption for anybody. Let them disclose then we will see how it is to be done’. Infact, I think we have today the need of a judicial ombudsman, a judicial ombudsman, above the Chief Justice. Yes, maybe, above the Chief Justice.

Shekhar Gupta: And how does that work?

Fali S Nariman: A judicial ombudsman to whom complaints could be made in private, never public. That gentleman or lady or group, who ever they are, will look into them. You, of course, have to have people of unimpeachable integrity, competence…

Shekhar Gupta: So, it is a presidium over the collegium.

Fali S Nariman: Yes, a presidium over the collegium. You have to. Look at what is happening today. You have to. Because either the collegium has no time because they are very good people, they are extraordinarily important people but they have no time to consider whether Shekhar Gupta is better than Fali Nariman or Fali Nariman is better than Shekhar Gupta from the High Court. Why do they not have? Because they don’t go and ask the bar there, they don’t go and ask the bench there, they don’t have any methodology. You see, once we decided it has to be done by the judges themselves, that is their recommendation, it should have been institutionalised. That is you must have an office, you must have a letter head saying “In the office of the collegium of the Supreme Court’. It is separate from the Supreme Court with a director, registrar who will gather information, find out…

Shekhar Gupta: And some transparency…

Fali S Nariman: …transparency, data will come in and then on that data you can perhaps discuss, otherwise, what is the use of my saying you should come in and you shouldn’t. one of the best judges in Bombay Justice Pangsia , I can name him, he is retired now, didn’t come to the Supreme Court only because some of the Bombay judges who were there a year in the Supreme Court said no we won’t have him where as Manoj Mukherjee, Judge of the Supreme Court, a very eminent judge told me once that Pangsia is our best judge in the High Court. So, I said go and tell your Chief Justice and he said I have already told him but they didn’t appoint him.

Shekhar Gupta: Because of groupism?

Fali S Nariman: Because of groupism. So, it is not that this is happening for the first time, it has happened before.

Shekhar Gupta: So, this ombudsman is a wonderful idea, it is a fascinating idea. Has it been done elsewhere, overseas?

Fali S Nariman: No, I don’t think so. But a judicial ombudsman is the need of the our, in my opinion, having regard to our state of affairs.

Shekhar Gupta: Elaborate a bit more on how it will work? Does the CJI report to him in some way?

Fali S Nariman: No, he doesn’t do any such thing. Infact, people–because this is a participatory democracy—disgruntled people, people with good intentions, bad intentions will keep prying this gentleman, lady or group with all sorts of complaints. Now it is the job of the office of the ombudsman of the Supreme Court to inquire into the complaints against High Court judges, Supreme Court judges. Keep it to ownself, there is publicity. Then quietly again, consult the Chief Justice, ask him what he feels about it, take his views into account and then move in a particular manner saying that no, we think, that something should be done.

Shekhar Gupta: But then won’t every litigant lawyer who loses a case go to the ombudsman, making it a one more court of appeal.

Fali S Nariman: He may but it is better than to go to the press or media and say this judge is this and this judge is that. I am afraid, we have to institutionalise something.

Shekhar Gupta: So the time has come?

Fali S Nariman: Time has come I am afraid. Because, you see, with due respect, we don’t have the giants of the bar today, we don’t have the giants of the bench also.

Shekhar Gupta: There is one right here.

Fali S Nariman: No, no. I am not, I am not. Not at all

Shekhar Gupta: The giant of giants then?

Fali S Nariman: That is good of you but no. I don’t have that…

Shekhar Gupta: So, are you saying that this is the idea whose time has come and maybe the higher judiciary would do well to take the lead here instead of again looking like being dragged, kicking and screaming?

Fali S Nariman: You see, I am very angry with their saying that if government tells us to disclose we will disclose. Why? Why should they ask the government? Either you want to disclose it, disclose it or if you don’t want to disclose it, say it is wrong and strike down the law. You have powers, immense powers.

Shekhar Gupta: It was unusual for the Supreme Court to say ‘if the government wants’.

Fali S Nariman: I was very disappointed because that is exactly what the government wants. It wants to control the judges.

Shekhar Gupta: That is exactly what the political class wants to hear.

Fali S Nariman: Yes. And I am very regretful that that sort of a statement…

Shekhar Gupta: Did you pull the leg of some of the judges saying why have you done this? Admonish them?

Fali S Nariman: Let’s leave that for another occasion.

Shekhar Gupta: But Fali I know I don’t want to talk in detail about the Diakaran issue. But it is unusual for you to put yourself signature on a petition. You almost never do it.

Fali S Nariman: You are right. I never do it but I will tell you something. The reason I did it was, I mentioned it on television the other day, not because I know this gentleman, I don’t know him at all. I have never appeared before him. I have heard stray reports but that is nothing. That doesn’t mean I should put my signature. There were three or four senior advocates, whom I place great reliance, of Madras who told me certain things which shocked me about this particular gentleman. Now it may be wrong or it may be right, therefore, I only put my signature to a letter which said, ‘Please investigate, sir, before you appoint him’. Because as I told you, we (bar) have no power to veto, no power to appoint, we have only the ability because of our stature, because of what we are at the bar, to tell the judges please have a look and then if you want, do it. Besides, if there is such a clamour against him, then drop him. There are 500 other judges of the High Courts whom you can appoint.

Shekhar Gupta: Many would say clamour rises because of caste, because somebody is from the underclass….

Fali S Nariman: Maybe, maybe. You are quite right. Discount all that. Take that into account, I am not saying don’t. If you take that into account and say this is totally worthless but why should very senior advocates put their name and stake their reputation to these charges.

Shekhar Gupta: And some of the people who have done it are people who you trust in Madras ?

Fali S Nariman: Absolutely. And now we have Karnataka, the whole bar has passed some sort of a resolution this morning. Now…

Shekhar Gupta: Are there particular lawyers that you respect in that. Are there particular names that you think are eminent people and they don’t do this flippantly?

Fali S Nariman: You take a man like Mr Arvind Dattar , top class lawyer in the Supreme Court, Shri Ram Panchoo, a very good mediator, he has done a lot for Madras bar, and people like that. Now if these are people who are so eminent then you must trust them. And I was only a spokesman for them and the reason why I was their spokesman was not because Mr Justice X or Y is brought here, therefore, I oppose him. I don’t oppose anybody. I only oppose that you are really introducing something which you may regret later. So, please be careful.

Shekhar Gupta: And which may then weaken the institution?

Fali S Nariman: Totally weaken the institution.

Shekhar Gupta: Not just the Supreme Court but judiciary itself.

Fali S Nariman: Because we can’t get rid of a judge once we appoint him. I mean, almost you can not. The impeachment…..

Shekhar Gupta: and then maybe the political class may start thinking of easier ways of doing that.

Fali S Nariman: I don’t want this institution of ours where I have practiced continuously since 1972 to become some sort of a shop or bazaar, for God’s sake. I would rather stop practice. Because otherwise they would say look like you are also part of it. Why are you complaining? You won such and such case. You must have done something. And believe me, it is when you win something that you realise that something hanky panky has gone on. I will tell you something. A judge from Bombay High Court, one of the judges who were not given any work by Chief Justice Chetartosh Mukjerjee, I was asked to appear before him in a review. A decree had been passed for rejectment and this was a review. Anyway, we went there and the judge ate out of my hand. He said, yes, yes, you are right, it should be reviewed. Mr Rane, very brave member of the bar from appellate side was very angry and he told me outside that this judge is corrupt. He has taken money and I believed it because when the matter came to the Supreme Court, I was appearing for these clients, and the court immediately called upon me and said Mr Nariman what do you have to say. I said I have nothing to say and sat down. So, they admitted the appeal. This is the sort of thing that happens when you are in the driving seat, when you are the person who has won the matter that you realise why you have won a case you should have lost. And…

Shekhar Gupta: And then you figure something did something?

Fali S Nariman: You figure something did something. Then I said Chetartosh Mukjerjee, then Chief Justice of Bombay High Court was right who did not give these judges any work because of this scandal at the bar.

Shekhar Gupta: So, in terms of the history of Indian higher judiciary, this is a moment of crisis?

Fali S Nariman: This is a moment of crisis, I am afraid.

Shekhar Gupta: How big is it? Is it one of the biggest or is the biggest after the emergency?

Fali S Nariman: It the biggest after the emergency and it is unfortunate that it is brought on. It could have been avoided. This is a lack of preparation, lack of homework, if I may say so without meaning disrespect, to the five good judges of our Supreme Court, the first five…

Shekhar Gupta: The collegium?

Fali S Nariman: The collegium, yeah, that you must do much more homework when you recommend the name. Once the recommendation has gone out, it will be very difficult for them to withdraw it.

Shekhar Gupta: It will look one more loss of face.

Fali S Nariman: One more loss of face or you are giving in to the bar like that, which is not correct also.

Shekhar Gupta: And then this will embolden maybe in some cases bar with the wrong motive.

Fali S Nariman: Yes, quite right.

Shekhar Gupta: So, it is best not to expose your flank like this?

Fali S Nariman: You should not.

Shekhar Gupta: What is your advice now to these five wisest judges in India , among the five wisest in the world, the five busiest in the world on how to get out of the situation?

Fali S Nariman: You see, in the first place as I said before, while the system is there, make it work properly. Each of you, or one of you atleast, whenever you want to fill a place from the High Court, please go there, find out from the bar what their impression are. You need not do it publicly, you just go there, find out from everybody concerned because you never know who will say what. Make an assessment yourself, because ultimately they are wise people, as you said the five wise men, they should really do it and perhaps a woman in addition would help.

Shekhar Gupta: That is one problem, Supreme Court not having a woman judge.

Fali S Nariman: We had one, an extremely competent one. But then we must have another. There is absolutely no doubt about that. All the world courts have women as judges.

Shekhar Gupta: So, even if it requires a little bit of affirmative action, we should do it now.

Fali S Nariman: Yeah, we should do it now. There is no doubt.

Shekhar Gupta: Because just the presence of a woman there would bring in a different kind of balance and sensitivity?

Fali S Nariman: I think so.

Shekhar Gupta: You forgot to mention something else. Something you said just a few minutes back.

Fali S Nariman: What?

Shekhar Gupta: Maybe time has now come for the collegium itself to push the idea of a judicial ombudsman and not to hide from it.

Fali S Nariman: I hope so.

Shekhar Gupta: And not to see it as a threat or as an encroachment?

Fali S Nariman: no, not to see it as a comedown or as a check on their power and so on. Because after all it was a court invented scheme of things—we didn’t trust the government that is why the collegium came in.

Shekhar Gupta: And because we still don’t trust the government we would rather have our own ombudsman.

Fali S Nariman: That would be better than a national commission even because National Commission would have the same problem. What do you do with the leader of opposition and the prime minister? What would they know? What would they bother? They will listen either to me or the Chief Justice and make their choices. But here is somebody (Ombudsman) who is concentrating only on the judiciary. He knows what it is, he asks for information, Intelligence Bureau reports…

Shekhar Gupta: And it isn’t only one person, it can be a presidium of three…

Fali S Nariman: It can be, like the Election Commission.

Shekhar Gupta: And that truly is a most original idea and I know this will be talked about now…

Fali S Nariman: It may be criticized and all but something is better than nothing. Because here they are caught on the wrong foot and it is a bit of loss of face. I mean, if I was a member of the presidium or collegium, I would also feel a loss of face. I had myself recommended Mr X and how can I withdraw that recommendation. So there has to be a very cogent reason.

Shekhar Gupta: And a little bit of an, if I may use the expression, fig leaf as well because then they don’t have to step back, the ombudsman can take that call.

Fali S Nariman: That is right. He can take that call and also communicate. There should be a channel of communication between the ombudsman not as a superior but as someone, I mean, who has that authority…

Shekhar Gupta: And that is much better than the law minister or the law secretary?

Fali S Nariman: Yes, of course, for better than what we ever had. Let’s hope something like that happens.

Shekhar Gupta: So, Fali, what I can say is that anytime one has a conversation with you, one learns something new and one goes back thinking. I think what you said today of this new idea of judicial ombudsman should get the country thinking, certainly should get the judiciary and the legal circles thinking. Before I conclude, tell me how do you keep your body and mind getting younger and younger as years pass…?

Fali S Nariman: Oh! My God, I am just coping. I will let you into a secret. I am taking less and less work, much less work than I used to because there is no point in showing that I am the greatest…

Shekhar Gupta: But you are taking a lot of burdens.

Fali S Nariman: You have to…

Shekhar Gupta: I mean you could just be sitting back and writing memoirs.

Fali S Nariman: Something like that, yeah. But you have to do something. If you are worth the candle, you have to do something.

Shekhar Gupta: And, when do you start writing your memoirs?

Fali S Nariman: That is an open secret.

Shekhar Gupta: Well, I mean when you do think of that, you remember you have a neighbour who can come and help you, reading the notes at least.

Fali S Nariman: Thank you.

Shekhar Gupta: Thank you very much, Fali.

Fali S Nariman: We will walk one more talk.

Shekhar Gupta: Absolutely. So wonderful of you to find time and so wonderful of you to actually stand up and be counted in this situation. We need more people like you. Thank you.

Fali S Nariman: Thank you.



JANUARY 20 , 2010

The Congress-and Nationalist Congress Party coalition government in Maharashtra on Wednesday passed a resolution which makes it mandatory for all taxi drivers to speak, read and write Marathi to get taxi permits and also that they must have been residing in the state for 15 years. The State Cabinet’s decision is likely to have far reaching repercussions for other states in India, and could trigger similar divisionary and disturbing decisions.

The latest Cabinet decision for taxi permits is bound to affect migrants from North Indian states of Uttar Pradesh and Bihar as most taxis in Mumbai are being driven by people from these two states.However, the Maharashtra Chief Minister Ashok Chavan has clarified that the decision is only for new permits and old ones won’t be affected.It is pertinent to mention that in the recent past migrant taxi drivers have been targeted by the Maharashtra Navniramna Sena for allegedly taking up the jobs of locals.

The decision appears to fly in the face of a recent Supreme Court ruling. In an apparent reference to the recent violence against north Indians in Mumbai, Supreme Court Justice Markandey Katju, in his judgment, in Hinsa Virodhak Sangh  Vs Mirzapur Moti Kuresh Jamat & Ors ( 14.03.2008) reminded the divisionary forces

“ ……

41.It must be remembered that India is a multi-cultural pluralistic society with tremendous diversity.  There are a large number of religions, castes, languages, ethnic groups, cultures, etc. in our country.  Somebody is tall, somebody is short, somebody is fair, somebody is brown, somebody is dark in complexion, someone has Caucasian features, someone has Mongoloid features, someone has Negroid features, etc.  We may compare our country with China which is larger in population and size than India. China has 1.3 billion people while our population is 1.1 billion.  Also, China has more than twice our land area.  However, there is broad homogeneity in China. All Chinese have Mongoloid features; they have a common written script (Mandarin Chinese) and 96% of them belong to one ethnic group called the Han Chinese.

42.On the other hand, India as stated above, has tremendous diversity and this is due to large scale migrations and invasion into India over thousands of years.

43.People migrate from uncomfortable areas to comfortable areas.  Before the coming of modern industry there were agricultural societies and India was a paradise for these because agriculture requires level land, fertile soil, plenty of water for irrigation etc. which was in abundance in India.  Why would anybody living in India migrate to Afganistan which has a  harsh terrain, rocky and mountainous and covered with snow for several months in a year when one cannot grow any crop?  Hence, almost all migrations and invasions came from outside into India (except in recent times when some people have gone to other countries for job opportunities).  Most of the migrations/invasions came from the North-West, and to a much lesser extent from the North-East of India.  Thus, people kept pouring into India, and it is for this reason that there is so much diversity in India.

44.As the great Urdu poet Firaq Gorakhpuri wrote :

In the land of Hind, the Caravans of the peoples of

The world kept coming in and India kept getting formed

45.Since India is a country of great diversity, it is absolutely essential if we wish to keep our country united to have tolerance and respect for all communities and sects.  It was due to the wisdom of our founding fathers that we have a Constitution which is secular in character, and which caters to the tremendous diversity in our country.

46.Thus it is the Constitution of India which is keeping us together despite all our tremendous diversity, because the Constitution gives equal respect to all communities, sects, lingual and ethnic groups, etc. in the country.

47.The architect of modern India was the great Mughal Emperor Akbar who gave equal respect to people of all communities and appointed them to the highest offices on their merits irrespective of their religion, caste, etc.

48.The Emperor Akbar held discussions with scholars of all religions and gave respect not only to Muslim scholars, but also to Hindus, Christians, Parsis, Sikhs, etc.  Those who came to his court were given respect and the Emperor heard their views, sometimes alone, and sometimes in the Ibadatkhana (Hall of Worship), where people of all religions assembled and discussed their views in a tolerant spirit.  The Emperor declared his policy of Suleh-e-Kul, which means universal tolerance of all religions and communities.  He abolished Jeziya in 1564 and the pilgrim tax in 1563 on Hindus and permitted his Hindu wife to continue to practise her own religion even after their marriage.  This is evident from the Jodha Bai Palace in Fatehpur Sikri which is built on Hindu architectural pattern.

49.In 1578, the Parsi theologian Dastur Mahyarji Rana was invited to the Emperors court and he had detailed discussions with Emperor Akbar and acquainted him about the Parsi religion.  Similarly, the Jesuit Priests Father Antonio Monserrate, Father Rodolfo Acquaviva and Father Francisco Enriques etc. also came to the Emperors court on his request and acquainted him about the Christian religion.  The Emperor also became acquainted with Sikhism and came into contact with Guru Amar Das and Guru Ram Das (see `The Mughal Empire by R.C. Majumdar).

50.Thus, as stated in the Cambridge History of India (Vol.IV  The Mughal Period) Emperor Akbar conceived the idea of becoming the father of all his subjects, rather than the leader of only the Muslims, and he was far ahead of his times.  As mentioned by Pt. Jawahar Lal Nehru in `The Discovery of India, Akbars success is astonishing, for he created a sense of oneness among the diverse elements of India.

51.In 1582, the Emperor invited and received a Jain delegation consisting of Hiravijaya Suri, Bhanuchandra Upadhyaya and Vijayasena Suri.  Jainism, with its doctrine of non-violence, made a profound impression on him and influenced his personal life.  He curtailed his food and drink and ultimately abstained from flesh diet altogether for several months in the year.  He renounced hunting which was his favourite pastime, restricted the practice of fishing and released prisoners and caged birds.  Slaughter of animals was prohibited on certain days and ultimately in 1587 for about half the days in the year.

52.Akbars contact with Jains began as early as 1568, when Padma Sunder who belonged to the Nagpuri Tapagaccha was honoured by him.

53.As mentioned in Dr. Ishwari Prasads `The Mughal Empire, the Jains had a great influence on the Emperor.  A disputation was held in Akbars court between the Jain monks Buddhisagar of Tapgaccha and Suddha Kirti of Khartargaccha on the subject of Jain religious ceremony called Pansadha in which the winner was given the title Jagatguru by Akbar.  Having heard of the virtues and learning of Hir Vijaya Suri in 1582 the Emperor sent an invitation to him through the Mughal Viceroy at Ahmedabad.  He accepted it in the interests of his religion.  He was offered money by the Viceroy to defray the expenses of the journey but he refused.  The delegation consisting of Hir Vijaya Suri, Bhanu Chandra Upadhyaya and Vijaya Sen Suri started on their journey and walked on foot to Fatehpur Sikri and were received with great honour befitting imperial guests.  Hir Vijaya Suri had discussion with Abul Fazl.  He propounded the doctrine of Karma and an impersonal God.  When he was introduced to the Emperor he defended true religion and told him that the foundation of faith should be daya (compassion) and that God is one though he is differently named by different faiths.

54.The Emperor received instruction in Dharma from Suri who explained the Jain doctrines to him.  He discussed the existence of God and the qualities of a true Guru and recommended non-killing (Ahinsa).  The Emperor was persuaded to forbid the slaughter of animals for six months in Gujarat and to abolish the confiscation of the property of deceased persons, the Sujija Tax (Jeziya) and a Sulka (possibly a tax on pilgrims) and to free caged birds and prisoners.  He stayed for four years at Akbars court and left for Gujarat in 1586.  He imparted a knowledge of Jainism to Akbar and obtained various concessions to his religion.  The Emperor is said to have taken a vow to refrain from hunting and expressed a desire to leave off meat-eating for ever as it had become repulsive.  The Emperor presented to him Padma Sundar scriptures which were preserved in his palace.  He offered them to Suri as a gift and he was pressed by the Emperor to accept them.  The killing of animals was forbidden for certain days.

55.If the Emperor Akbar could forbid meat eating for six months in a year in Gujarat, is it unreasonable to abstain from meat for nine days in a year in Ahmedabad today?

56.Emperor Akbar was a propagator of Suleh-i-Kul (universal toleration) at a time when Europeans were indulging in religious massacres e.g. the St. Bartholomew Day massacre in 1572 of Protestants, (called Huguenots) in France by the Catholics, the burning at the stake of Protestants by Queen Mary of England, the massacre by the Duke of Alva of millions of people for their resistance to Rome and the burning at the stake of Jews during the Spanish Inquisition.  We may also mention the subsequent massacre of the Catholics in Ireland by Cromwell, and the mutual massacre of Catholics and Protestants in Germany during the thirty year war from 1618 to 1648 in which the population of Germany was reduced from 18 million to 12 million. Thus, Emperor Akbar was far ahead of even the Europeans of his times.

57.Emperor Akbar himself abstained from eating meat on Fridays and Sundays and on some other days, as has been mentioned in the Ain-I-Akbari by Abul Fazl.

58.     It was because of the wise policy of toleration of the Great Emperor Akbar that the Mughal empire lasted for so long, and hence the same wise policy of toleration alone can keep our country together despite so much diversity.

59.     We may give another historical illustration of tolerance in our country.  In the reign of Nawab Wajid Ali Shah of Avadh, in a certain year

Holi and Muharrum coincidentally fell on the same day.  Holi is a festival of joy, whereas Muharrum is an occasion for mourning.  The Hindus of Lucknow decided that they would not celebrate Holi that year out of respect for the sentiments for their Muslim brethren. On that day, the Nawab joined the Muharrum procession and after burial of the Tazia at Karbala he enquired why Holi is not being celebrated.  He was told that it was not being celebrated because the Hindus out of respect for the sentiments of their Muslim brethren had decided not to play Holi that year because it was a day of mourning for the Muslims. On hearing this, Nawab Wajid Ali Shah declared that since Hindus have respected the sentiments of their Muslim brothers, it is also the duty of the Muslims to respect the sentiments of their Hindu brethren.  Hence, he announced that Holi would be celebrated the same day and he himself was the first who started playing Holi on that day and thereafter everyone in Lucknow, including the Muslims, played Holi, although it was Muharrum day also.  It is this kind of sentiment of tolerance which alone can keep our country united.

60.     We are making these comments because what we are noticing now-a-days is a growing tendency of intolerance in our country.

61.     Article 1(1) of the Constitution states India i.e Bharat is a Union of States.

62.  It may be mentioned that during the Constituent Assembly debates some members of the Constituent Assembly were of the view that India should be described as a Federation.  However, instead of the word “Federation” the word “Union” was deliberately selected by the Drafting Committee of the Constituent Assembly to indicate two things, viz., (a) that the Indian Union is not the result of an agreement by the States, and (b) that the component States have no freedom to secede from it.

63.     Moving the Draft Constitution for the consideration of the Constituent Assembly on November 4, 1948, Dr. Ambedkar, Chairman of the Drafting Committee explained the significance of the use of the expression “Union” instead of the expression “Federation”:-

“It is true that South Africa which is a unitary State is described as a Union.  But Canada which is a Federation is also called a Union. Thus the description of India as a Union, though its constitution is federal, does no violence to usage.  But what is important is that the use of the word “Union” is deliberate.  I do not know why the word “Union” was used in the Canadian Constitution.  But I can tell you why the Drafting Committee has used it.  The Drafting Committee wanted to make  it clear that though India was to be a federation, the federation was not the result of an agreement by the States to join in a federation, and that the federation not being the result of an agreement, no State has the right to secede from it.  The federation is a Union because it is indestructible. Though the country and the people may be divided into different States for convenience of administration, the country is one integral whole, its people a single people living under a single imperium derived from a single source.  The Americans had to wage a civil war to establish that the States have no right of secession and that their federation was indestructible.  The Drafting Committee thought that it was better to make it clear at the outset rather than to leave it to speculation or to dispute”.

64.     The Drafting Committee thus clearly attached great importance to the use of the term “Union” as symbolic of the determination of the Assembly to maintain the unity of the country.  This was evident from the discussions on draft article 1 in the Assembly on November 15, 1948.

65.     Thus India is not an association or confederation of States, it is a Union of States and there is only one nationality that is Indian.  Hence every Indian has a right to go any where in India, to settle anywhere, and work and do business of his choice in any part of India, peacefully.

66.     These days unfortunately some people seem to be perpetually on a short fuse, and are willing to protest often violently, about anything under the sun on the ground that a book or painting or film etc. has hurt the sentiments of their community.  These are dangerous tendencies and must be curbed with an iron hand.  We are one nation and must respect each other and should have tolerance.

67. As the great Tamil Poet Subramaniya Bharati wrote :

This Bharatmaata has thirty crores of faces!

But her body is one.

She speaks eighteen languages!

But her thought is one

68. The great Tamil poet Kaniyan Pookundranar wrote :

All places are my own places

All people are my own kith and kin

69. Similarly, the great poet Saint Tiruvalluvar in Chapter 74 verse 735 of Tirukkural wrote:

That alone can be called as a prosperous country

which is free from separatist tendencies

and people who harm its sovereignty.

70. In the Shanti Parv of Mahabharata Bhishma Pitamah tells


Republics have been destroyed only because of internal

divisions, it  is  only  when  there  are  internal

divisions  between  the people,  that an  enemy can

destroy it, hence a republic should always try to

achieve, unity  and good relations between its people.”

In the same Shanti Parv, Bhishma Pitamah also said :

The intelligent authorities of a republic should suppress

Those leaders of factions who try to divide the people.