Appointment of Judges and Independence of Judiciary

Dr M N Buch, 

Dean, Centre for Governance and Political Studies, VIF

Though India is a Union of States we have a judicial system which is hierarchical, from the court of first instance right up to the Supreme Court. In all legal matters competent judicial officers can pronounce judgements on both Central laws and State laws. By contrast, in the United States, federal laws are interpreted and adjudicated upon by Federal courts and State laws by State courts. In India, the Supreme Court is at the apex, but under Article 227 of the Constitution, the power of superintendence over all courts and tribunals throughout the territory over which a High Court has jurisdiction vests in the High Court. At the same time, under Article 141, the law declared by the Supreme Court is binding on all courts and, therefore, the position of all courts, including High Courts vis-a-vis the Supreme Court is one of judicial subordination.

The appointment of judges to these two courts is strictly defined by the Constitution. In the scheme of things there is separation of powers between the three organs of the State which, nevertheless, are equal, that is, the Executive, the Legislature and the Judiciary. In order to ensure the balance of power, the Constitution provides for the Legislature to be constituted through a process of election, the Executive through a process of recruitment governed by an independent constitutional body called the Public Service Commission and the Judiciary to be completely free from interference by the Executive or the Legislature by giving the judges complete independence. Article 124 governs the appointment of judges to the Supreme Court and Article 217 does the same for the appointment of judges of a High Court. In the case of the Supreme Court, Article 124 (2) reads “Every judge of the Supreme Court shall be appointed by the President, by warrant under his hand and seal, after consultation with such of the judges of the Supreme Court and of the High Courts in the States as the President may deem fit… Provided that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted”. In the matter of judges of the High Court under Article 217, the President is required to consult the Chief Justice of India, the Governor of the State and the Chief Justice of the High Court. The Supreme Court, in its wisdom, decided that consultation of the President with the Chief Justice means that a Collegium of Judges to be constituted by the Chief Justice will vet every case and on its recommendations the Chief Justice will give his advice to the President. This is an internal matter of the Supreme Court and need not be commented upon. As it is, there is a move to legislate for the setting up of a Commission for recommending judicial appointments, but this is still only at the proposal stage. Despite opinions to the contrary I would suggest that the system as it has evolved has served us quite well and we should not hasten to alter it.

The process of appointing judges to fill present vacancies in the Supreme Court had begun quite some time ago. Apparently in Septemebr 2013 Arun Jaitley wrote to the then Prime Minister, Dr Manmohan Singh, that the name of Gopal Subramaniam who, incidentally, had to resign as Solicitor General of India in an unconnected matter, was under consideration and, in the opinion of Arun Jaitley and the party of which he was Leader of Opposition in Rajya Sabha, there were strong reservations about this name. As has been reported, Arun Jaitley said that initially Gopal Subramaniam had offered his services to government in the Sohrabuddin case, which was pending before the Supreme Court. When it was decided that the Attorney General would handle the case, Gopal Subramaniam offered to assist the court as amicus curiae and though the court never formally invited him to do so, Gopal Subramaniam acted as if he was the amicus curiae and gratuitously advised the Supreme Court that (1) The investigation of the Sohrabuddin case be transferred from the Gujarat Police to CBI and (2) If Amit Shah was given bail, which had already been granted by Gujarat High Court, he should be restrained from entering the State of Gujarat. The Supreme Court ordered accordingly. In his letter, Arun Jaitley is reported to have said that this indicates the bias of Gopal Subramaniam and, therefore, he is not fit to be considered for appointment to the Supreme Court.

In a parallel development, it seems that CBI very foolishly had earlier recorded a note that Amit Shah should be arrested because this would cause Gujarat Police officers to be intimidated and through them CBI could reach its real target, Narendra Modi. This view was endorsed by Ashwani Kumar, then Director of CBI. Whereas I cannot vouch for the veracity of this report I would not be surprised if it were true because this is how CBI seems to function. Normally one should not interject a personal experience in an essay of the present sort, but I am forced to quote a personal experience in my official capacity as Head of the Delhi Development Authority to show that the notes recorded in the Sohrabuddin case are about par for the course for CBI. I received a letter from CBI in 1978 seeking permission under section 197 Cr.P.C. to prosecute Jagmohan, Ranbir Singh and other officers of DDA in what was known as the Kapashera, Samalkha and Andheria Mor demolition case. Sanjay Gandhi, Jagmohan and others were accused of mischief under section 427 IPC, criminal trespass under section 447 IPC, criminal intimidation under section 506 IPC, read with sections 34 IPC, that is, common intention and 120B IPC, that is, criminal conspiracy. I asked CBI to send me the case diary so that I could take a decision about giving permission to prosecute and after much hesitation and correspondence it was sent to me. I was horrified to find that the supervising officer’s note was also attached, which stated the purpose of the investigation was to bring home charges of criminal trespass, mischief, criminal intimidation, etc., against Sanjay Gandhi and others. This note itself indicated bias because the purpose of any investigation is to arrive at the truth and not try and fit the facts to arrive at a predetermined conclusion. The investigation was obviously tainted.

The case diary itself made strange reading. The demolitions were carried out at the behest of and as an agent of the Municipal Commissioner of Delhi, B.R. Tamta. He, therefore, was the main accused. In the case diary itself the investigating officer recorded that because B.R. Tamta had agreed to give evidence on behalf of the State he was not being named as an accused. Under Chapter XII Cr.P.C. the police has no power to drop from the list of the accused a person against whom there is prima facie evidence, nor can the police add to the list of accused a person against whom there was no prima facie evidence. Regarding pardon, that is governed by section 306 Cr.P.C. The Chief Judicial Magistrate, Metropolitan Magistrate or Magistrate First Class may tender pardon, but only in cases triable exclusively by the court of session or the court of a special judge and only where the offence is punishable with imprisonment of seven years or more. The police cannot tender pardon and in any case the maximum penalty for the offences for which Sanjay Gandhi, Jagmohan, etc., were charged only carried imprisonment for a maximum of two years. In such a case pardon cannot be tendered. I wrote to CBI that sanction could not be issued unless B.R. Tamta was also made an accused in the case. R.D. Singh, Special Director of CBI met me and threatened me with dire consequences if I did not issue sanction, on which I not only threw him out of my office but also finally rejected the application for sanction. The accused were never charge-sheeted or prosecuted in this case, but it did leave a lasting impression in my mind that CBI is not an ideal police force whose objective is to fight crime. Therefore, the attitude of Ashwani Kumar and his officers probably represented the reality of the matter, that is, CBI’s objective was not justice but to fix Narendra Modi so that he could be politically finished.

To return to the issue of appointment of judges, the Chief Justice of the Supreme Court recommended to government that four names, those of the Chief Justices of the Calcutta and Orissa High Courts and Gopal Subramaniam and Rohinton Nariman had the approval of the Chief Justice and the Collegium of Judges for appointment as judges of the Supreme Court. The President ultimately approved three names, but expressed reservation about Gopal Subramaniam. On this Gopal Subramaniam withdrew his assent for the post and in the process made scathing remarks about government. His allegation is that he was amicus curiae in the Sohrabuddin case and on this account he has been targeted by government for denial of the post of a judge of the Supreme Court. According to him, the Government of India is prejudiced against him and further, by denying him the post, has proved that it wants convenient judges on the Bench. He has further alleged that this will affect the independence of the Judiciary and will have harmful long-term effects.

Without going into the merits of the Gopal Subramaniam’s charges one cannot help but feel that in making an allegation that government wants to reduce the independence of the Judiciary there is a hint of slander. This is not the first time that government has rejected some names recommended by the Chief Justice of India or denied elevation to the Bench to certain judges of High Courts and to lawyers. In the United States of America, it is a well known practice to try and pack the Supreme Court with judges whose political views are in consonance with the philosophy of the ruling party. Franklin Delano Roosevelt, struggling with the Great Depression and wanting to push the New Deal, wanted liberal judges in the Supreme Court. President George Bush and President Ronald Reagan wanted conservative judges. Certainly Indira Gandhi wanted judges like A, N. Ray who, with Justice P.N. Bhagwati and others forming a Constitutional Bench of the Supreme Court ruled that when a proclamation of Emergency under Article 352 was in force the fundamental rights stood suspended, which meant that the right to life under Article 21 also stood suspended. Of course, the court did not clarify whether this meant that the Executive could arbitrarily and without trial put a man to death, but in effect that is how it can be read. Justice H.R. Khanna, in the lone dissenting judgement, strongly opposed this view and upheld the right to life and further ruled that the fundamental rights could not be suspended. Indira Gandhi never forgave him and he was not elevated to the post of Chief Justice. During the Emergency in the Bhimsen Sachar case, Chief Justice Tatachar of the Delhi High Court ruled that though the fundamental rights may have been suspended, the Code of Criminal Procedure remained intact, section 482 Cr.P.C. gave the High Court the inherent power to secure the ends of justice and, therefore, using the power of habeas corpus, he ordered the release of Bhimsen Sachar, Kuldip Nayyar and others. Similarly, the Gujarat High Court, in the case of Himmat, a journal produced by Rajmohan Gandhi, ruled against censorship and Himmat published without censorship thereafter. The Chief Justices of Delhi and Gujarat High Courts were denied elevation to the Supreme Court. Despite this, what is proved is that even during the Emergency, our Supreme Court and High Courts did not compromise on their independence, especially the High Courts, which proved that the independence of the Judiciary is strong and zealously guarded. Is it Gopal Subramaniam’s case that what could not be done in the Emergency, that is, bringing the courts to their knees has become possible because Gopal Subramaniam has not been elevated to the Bench? He is too eminent a lawyer to be pardoned for even suggesting such a thing.

The method of appointment and the autonomy of an organisation may be interconnected, but they are not inter-dependent. In any case, the scheme of the organisation of the State in India is such that the three major pillars, the Executive, the Legislature and the Judiciary are all autonomous within their own spheres. The Legislature has untrammelled powers of legislation, subject only to constitutional validity, approving the budget, calling the government to account through the collective responsibility of the Council of Ministers and through the various mechanisms worked out for legislative control. The Executive power vests in the President, who exercises it through officers appointed by him, but on the aid and advice of his Council of Ministers. The business of government is conducted according to the Business Rules framed under Article 77. This applies mutatis mutandis to the States also. In the exercise of executive powers, the Executive is autonomous, but subject to accountability to the Legislature and to such pronouncements that courts may make if adjudication is called for. Similarly, the Judiciary is autonomous, appointment of judges is not within the exclusive purview of the Executive, they cannot be removed except through due constitutional process and they are free in the matter of adjudication to pronounce judgement according to law. There is no encroachment on this autonomy nor ever has been. At the same time, the Legislature is constituted through election, a process under a constitutionally created Election Commission of India. Despite this the House is constituted by the President, who also summons it to session. The officers of the Executive are selected by a constitutionally created Public Service Commission, but their appointment is made by the President and protection is provided by Articles 311 and 312. In the case of the Judiciary, the selection is made by the Chief Justice of India and the appointment is made by the President. In all three cases, there is convergence at the level of the President. Article 124 makes consultation with the CJI mandatory, which means that a person not recommended by the CJI cannot be appointed to either the Supreme Court or a State High Court. That, however, does not mean that the President, on the advice of his Council of Ministers, cannot reject a name suggested by the CJI. There would be interference with independence if the President arbitrarily appoints judges. There is no interference if the President rejects a name suggested by CJI. That has happened in the past and may happen in the future also, which is precisely why Article 124 provides for a process of consultation.

Gopal Subramaniam is a legal luminary whose erudition and brilliance is universally recognised. He is eminently qualified for elevation to the Bench, which would be richer by his presence. Conversely his absence from the Bench is not tantamount to jeopardising the autonomy of the Judiciary. This last remark is made because by suggesting that the independence of Judiciary is in danger, Gopal Subramaniam has done no service to government, the Judiciary or even to himself.

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Published Date: 3^rd July 2014, Image source: http://www.orissadiary.com

National Security: Preemption is Viable and Valid

Dr M N Buch, Dean, 

Centre for Governance and Political Studies, VIF

The Chambers Twenty-first Century Dictionary defines ‘preempt’ in the following words:- “To do something ahead of someone else and so make pointless an action they have planned”. Preemptive action is defined by the same dictionary as an attack “effectively destroying the enemy’s weapons before they can be used”. Preemptive action, therefore, is likely to be resorted to in a warlike situation where it is necessary, in fact vital, to destroy the enemy’s capacity to attack and thereby ensure victory. Under what conditions would the police be allowed preemptive action, which could include destruction of property and causing the death of persons who can be identified as inimical to the national interests?

One of the main differences between the military and the police is that the armed forces have an identified enemy and their objective, in the defence of the country, is to destroy the enemy’s offensive capabilities and to inflict such casualties on the enemy as would make it impossible for him to pose a threat to national security and the territorial integrity of the country. The dictionary meaning of the military is “the armed forces, maintained for the purpose of warfare”. The police, on the other hand, is defined as “a body of men and women employed by the government of a country to keep order, enforce the law, prevent crime, etc”. The armed forces are generally required to act against an external enemy, whereas the police is required to maintain order within the country and, therefore, largely deals with Indian citizens. Under section 23 of the Police Act, amongst the duties of a police officer is to prevent the commission of offences and public nuisances. In order that he may be able to perform his duty, Chapter XI, Criminal Procedure Code (Cr.P.C.) authorises the police to take preventive action under section 149 to ensure that cognisable offences are not committed. Under section 151, Cr.P.C. the police has the authority to arrest a person about whom it has information that he has a design to commit a cognisable offence. The police, therefore, has the legal authority to preempt the commission of a cognisable offence, intervene and take action against any person about whom it has information regarding a design to commit such an offence. To the extent that it preempts an attack to commit an offence such preventive action is also a form of preemptive action.

Coming to Chapter X, Cr.P.C. dealing with maintenance of public order and tranquility, an Executive Magistrate who comes across an assembly of five or more persons which intends to cause a disturbance of the public peace and is thereby an unlawful assembly, can command it to disperse and on its failure to do so can order the use of necessary force, which may include the use of lethal force. This, too, is a form of means of preempting any action by such assembly which could result in break-down of law and order. In continuation of the same authority to prevent disturbance of public peace, an Executive Magistrate may issue an order under section 144, Cr.P.C. directing the person or persons to abstain from certain acts and in order to enforce the order the Magistrate can take such action as may be necessary. This precautionary measure is also a form of preemption because it does result in preventing an offence or disturbance of public peace from occurring.

The scheme of the law is that preventive action is not only permissible, but is also mandated so that public order is maintained and crime prevented. At one level, this mandate is similar to that of the armed forces, that is, to ensure safety and security. But there are differences also and in this regard, the Police Manual drawn up under the Police Act, the Internal Defence and Internal Security Schemes which state what is to be done if the country is facing either a major internal security crisis or an external threat, lay down the procedures, the duties, etc., of the police, the magistracy and the armed forces. However, the doctrine so far as the police is concerned is the use of minimum force, which means minimum effective force, when dealing with a situation pertaining to law and order or general crime. So far as the armed forces are concerned, when facing an enemy, which means an external enemy, the maxim would be to use maximum effective force which would inflict crippling casualties on the enemy while minimising one’s own casualties. Thus, preventive or preemptive action by the police would be measured and aimed at achieving the desired objective without inflicting unnecessary damage or casualties. Preventive action by the armed force would be aimed at causing the maximum damage and maximum casualties to the enemy. The police is governed by the laws of India which naturally place the citizen above everything else. The armed forces are governed by the rules of war in which India comes first and destruction of the enemy is the main objective. Obviously, the police cannot adopt military tactics when dealing with a law and order situation.

The use of force, including lethal force, is legitimate for the police, but strictly as permitted by law. For example, under Chapter V,Cr.P.C, when making an arrest, the police may use force if such an arrest is resisted. Section 46, Cr.P.C. states how an arrest may be made. However, whereas under section 46(2), a police officer or any other person making an arrest may use force, this cannot extend to the causing of death of the person to be arrested unless he is charged with an offence punishable with death or with imprisonment for life. In that case, of course, the arresting officer, in order to overpower the accused, can cause death if the circumstance warrants it. A person who voluntarily surrenders cannot be subjected to the use of force. Of course, under the Geneva Convention, even in a war if an enemy surrenders, he has to be treated with courtesy and he cannot be put to death. Killing a surrendered enemy is an offence defined as a war crime.

In the maintenance of public order under the directions of the Executive Magistrate or a police officer, when dispersing an unlawful assembly, both civil and military force can be used. Even when using military force to disperse an unlawful assembly, the armed forces will act on the requisition of an Executive Magistrate, but in doing so, “the commanding officer shall use as little force and do as little injury to person and property as may be consistent with dispersing the assembly and arrest and detaining such person”. The use of minimum force, therefore, is the doctrine for both the police and the armed forces when dealing with assemblies of citizens which may have become unlawful. The action is preventive, but the preemptive portion of it is subject to the principle of use of minimum force.

Unfortunately in India, the choice is not always between civil action and military action because there are shades and nuances of crimes and criminals which one does not find in many other democratic countries where there is the rule of law. Britain is one such a country, but here, too, when faced with an insurgency situation in Ulster, a section of the British police force, designated as the Royal Ulster Constabulary (RUC), was organised as an armed police with paramilitary functions. Even though the principle of use of minimum force continued to apply, the RUC carried out preemptive strikes against the terrorist outfit, the Irish Republican Army (IRA) and where it came to an armed encounter, the RUC did not hesitate to use its weapons to neutralise or even liquidate the militants. Whereas the rules of war did not apply, nor did the normal doctrine of policing when faced with a situation of armed conflict. In India, the police is faced with a whole series of situations in which the civil affairs exist side by side with crimes like dacoity in which armed gangs of five or more people come together in order to loot people and do not hesitate to use their fire arms, militancy which has a political objective, outright insurgency as in Nagaland, Manipur, etc., separatism and terrorism as in Kashmir and a state of near civil war as is found in the Naxalite affected areas. In the last named areas, we have whole districts where civil government has virtually ceased to exist and armed police units have to be deployed in a warlike situation. The Naxalites use ambush as a favourite tactic, they use mines and improvised explosive devices to cause blasts which blow up vehicles and kill or injure large numbers of policemen, they have automatic weapons, they are experts in use of terrain and guerilla tactics and they inflict heavy casualties on the police. In such a situation the laws, rules and procedures which govern the civil police just cannot apply. Whereas in a normal situation the right of private defence is valid only if there is an imminent danger to life and property, in an insurgency type of situation, the right of private defence extends to attacking the insurgents before they attack the security forces. This is preemptive action and where it is not undertaken, ambushes can occur such as the one which killed 76 CRPF personnel in one strike and another which virtually decimated the Congress leadership in Chhattisgarh. Here the tracking down of Naxalites, finding their hideouts and then attacking them in order to neutralise groups of militants is absolutely legitimate, viable and valid. The benchmark governing police action in a normal situation will not apply here. When dealing with militants and Naxalites whose objective is to weaken the Indian State by targeting security forces and government officials, we have to lay down different methods, though always within the confines of law.

There is another area where terrorists, many of them supported by government and nongovernment agencies in Pakistan, commit acts of terror in India. The 1993 bomb blasts in Mumbai, the 2008 attack, again in Mumbai, bomb blasts at different times in Delhi, the German Bakery case in Pune, to quote just a few examples, are terrorist acts in which the objective is to spread fear in India. How does one deal with such cases? A terrorist submerges himself in society and at the appropriate time when the risk of detection is minimum, he strikes. If he has struck, nothing can be done to stop this and, therefore, it is only by intelligence gatherings that one can get an inkling of new terrorist strikes which might have been planned. Here the only way to stop the terrorist is to strike him before he can act. One does not want to comment on the Sohrabuddin case and the Ishrat Jahan case because the courts have taken cognisance in both cases, but one cannot rule out the possibility of the Gujarat Police having made preemptive strikes which seem to have paid off because Gujarat is relatively free of terrorist activity.

This is really a grey area. If R&AW were to arrange a bomb blast in Karachi which buries Dawood Ibrahim under the rubble of his own house, it would be hailed as a successful preemptive strike. The same action against a known terrorist or criminal in Mumbai or Ahmedabad might invite a charge of murder against the Maharashtra or Gujarat Police. Where does one draw the line? Let us at least be aware of the fact that this nation is under attack by terrorist organisations based in Pakistan, there is real fear of possible militant activity which might erupt if Afghanistan goes the Taliban way, there is insurgency of the Naxalite kind which has seriously undermined the authority of government in large parts of India and there is a degree of extremism, which threatens public order and public safety, all of which need to be countered. If we accept such activity to be anti terrorist, then there will be an element of preemptive action.

We have to develop the capability of distinguishing between preventive action under normal circumstances which is perfectly legal, preemptive action under certain other circumstances which may be on the border line but still compatible with civil norms and yet another set of actions in which the war is carried proactively to those elements which are trying to destroy our national fabric. Here the rules of engagement will have to be different in order that the security forces, operating under great handicaps, would be given a fair chance to take on and neutralise those who are trying to damage India. In other words, we would have to draw up fresh rules of engagement which permit preemptive strikes, avoid civilian casualties so that innocents are not caught in the cross fire and yet effectively neutralise anti national forces. The drawing up of the new guidelines is the real challenge for the Ministry of Home Affairs, the Intelligence Bureau, the Research & Analysis Wing and the National Security Adviser.   

The Justice System and the Secular State

Dr. M.N. Buch

Visiting Fellow, VIF

Gujarat has been touted around as a State steeped in communalism, with a government which is right wing, extremist Hindu, anti Muslim and totally communal in outlook. The Congress, on the other hand, projects itself as the party which is secular, pro-minority and, in particular, totally protective of the Muslims. The pro-Muslim secular stance of the Congress formed the main plank of its election campaign in the recent elections in Uttar Pradesh, the end result of which was that the Congress got only twenty-six seats in the State Legislative Assembly and trailed behind BJP to emerge as number four in the electoral race. By contrast in the allegedly communalised State of Gujarat the Mephistopheles of Indian politics, Narendra Modi gave tickets to and was able to have elected over a hundred Muslim candidates in local government elections. Anti Sikh riots took place all over the country in 1984 and at that time the Congress ruled at the Centre and in many other States in India. Not a single conviction has been obtained for these horrendous riots in which in Delhi alone three times more Sikhs were killed than the Muslims in Gujarat in 2002. The entire Hindu Pandit population of the Kashmir Valley was driven out and they became refugees in their own country. Not even one of the culprits of this ethnic cleansing has even been prosecuted, leave alone been convicted. The Pandits even today are either living in refugee camps or are scattered throughout the country. Neither the activists who claim secular credentials nor government has raised a finger to help these refugees.

In 1992-93 the worst rioting post Babri Masjid demolition occurred in Maharashtra, notably in Bombay city. The State was then under Congress rule. No one has been convicted for these riots and the Commission headed by Justice Shri B.N. Srikrishna gave a very categorical report, in which officers who failed in their duty were identified and named, but has been completely ignored by government. Both the Congress and NCP in their election manifestos promised to implement the recommendations of the Srikrishna Commission, but nothing has happened in this behalf despite the fact that it is a coalition of the Congress and NCP which is in power in Maharashtra.

The latest in the series is the complete break-down of law and order in four districts of Assam, with Bodo tribals being in direct conflict with Muslims. Allegedly these Muslims are illegal migrants from Bangladesh whose presence is resented by the Bodos, which has resulted in direct ethnic conflict. Several hundred villages have been burnt down and lakhs of people displaced. There have been Bodo casualties also but, as happens in many communal conflicts, it is the Muslims who had suffered the most. Even the international community has taken note of what has happened in Assam, with unfavourable comments about how we have handled the situation. The Chief Minister of Assam, who is a Congress man, had at an early stage reacted to press reports that Assam was burning by stating that the media had exaggerated as usual and that only three districts were aflame. Considering the size and population of an Indian district the Chief Minister virtually confessed that an area containing a population of five to six million people was seriously affected and that he considered this as a fairly minor event. This could only be expected of a Chief Minister who, in order to win the election, had played the contrary communal card by ignoring the Muslims to win the Hindu votes which might otherwise have gone to the BJP. Can such a government be considered secular?

What about our friends from the Left? Undoubtedly the Left Front Government in West Bengal had a popular image of secularism, so much so that in 1984-85 the Sikhs as a community publicly honoured the then Chief Minister, Jyoti Basu, for ensuring security for the Sikhs and maintaining communal harmony. It is also a fact that West Bengal remained relatively free of Hindu-Muslim conflict during the Left Front rule. Towards the end this image had begun to change and that is because massive land acquisition in Nandigram largely affected Muslim cultivators and the Trinamool Congress was able to project this, at least partially, as the anti Muslim policy of the Left Front. The fact that this was not true is not really relevant in the electoral politics of the India of today. However, in Kerala the Left Front had no inhibition whatsoever in playing the communal card and when it suited LDF it allied itself with the Indian Union Muslim League. Surprisingly in a State in which the BJP has a poor political presence RSS is quite strong, partly because of communal Muslim politics¸ which is why there have been a number of communal clashes in Kerala, especially in the old Madras Presidency Malabar District (now divided into several districts). LDF did little to oppose such communalism, which does not speak well for its secular credentials.

Let us revert to Gujarat. No one can be an apologist for what happened in 2002 and in one letter to the Prime Minister I have said that had I been Governor of the State I would have strongly advised the Chief Minister and actually ordered the Chief Secretary and the Director General of Police to restore order immediately. I would have also gone around the State and if I saw any rioting I would have ordered my escort to fire on the mobs and disperse them. This would not have gone down well with the Government of India and would have probably resulted in my immediate removal, but nevertheless this is how I would have interpreted Article 154 of the Constitution which vests the executive power of the State in the Governor and also acted according to the oath sworn by me under Article 159 which required me to preserve, protect and defend the Constitution and the law. I would have seen it as my duty to remind the Chief Minister that the law required him to maintain law and order and I would certainly consider it a breakdown of the Constitution if the State itself became a party to lawlessness. At the same time it is equally a fact that neither in Delhi, nor in Maharashtra, nor in Assam, nor in Rajasthan during the recent conflict between Jats and Meos has any worthwhile judicial action been initiated and large-scale conviction of wrongdoers obtained. No doubt Nitish Kumar in Bihar, who is truly secular, has been able to take effective legal action. Otherwise Gujarat is the only State in India where six successful cases have been fought against the perpetrators of the 2002 riots and a large number of people have been convicted. This is as true of the Best Bakery case as it is of the Naroda Patiya case in which thirty-two persons, including an ex-minister, have been convicted. A great deal of credit must go the Supreme Court which has forced the Gujarat Government to act, has activated the Gujarat Police which bore the brunt of the investigation and set up an impartial Special Investigation Team (SIT) which has spearheaded the investigation. Everyone is considering the convictions as a set back to Narendra Modi. I disagree with this because the Gujarat Government has, however reluctantly, gone along with investigations, has not obstructed them, nor interfered with the course of justice. Even in the Sohrabuddin case, where the ex-Minister of State for Home, a DIG and other police officers are facing murder trials, the Gujarat Police has not destroyed the evidence and, therefore, the relevant SIT has been able to proceed with the investigation. The encouraging thing about Gujarat is that a largely Hindu Supreme Court, an overwhelmingly Hindu Gujarat Police and the SIT set up by the Supreme Court, Hindu judges such as Jyostna Yagnik have brought justice of the victims of the 2002 riots and convicted a large number of persons involved in these riots. So long as we have this example we can be assured that India has institutions which are secular, though unfortunately none of these are political. Real secularism requires the political class to also be on board.

How communal is Narendra Modi? To his opponents he is the communal devil incarnate, who is unrepentant about what happened in 2002, who refuses to apologise to the Muslims and whose ministers interfered with the maintenance of law and order during that crucial period. But is there another side to Modi? In the State of Gujarat in 2002 the whole of Saurashtra remained largely peaceful and the district administration and the police intervened strongly and effectively to keep the area peaceful. This was true of Kutch also. North Gujarat, mainly Sabarkantha and Banaskantha Districts, remained peaceful despite the substantial Muslim population there. The Central and Southern Districts of Gujarat, in particular Ahmedabad, Kheda, Baroda, Panchmahals, Bharuch and to some extent, Bulsar and Surat were the focus of rioting. This region has had communal conflict even during British days and the worst communal riots in the history of Gujarat occurred in 1969 in Ahmedabad when Hitendra Desai was the Chief Minister. I had written to Dr. Manmohan Singh when he became Prime Minister that the history of this part of Gujarat is such that regardless of which party in power, this region will remain prone to communal tension. I suggested that a person of the calibre of P.S. Appu, IAS should be asked to hold a free ranging administrative enquiry into the causes of communal unrest in these districts and to look into why the district administration and the police did not react strongly and positively to a communal situation. If the root cause of Hindu-Muslim animosity could be identified and then removed Gujarat would be peaceful. Narendra Modi was a phenomenon but he was not the cause of communal strife in these districts of Gujarat. The underlying cause is much older and deeper. The Prime Minister responded favourably but did nothing and, therefore, we still do not know why this region of Gujarat has Hindu-Muslim animosity.

Narendra Modi has not reached out to the Muslims as such, but he has kept RSS, VHP, BKS and the Bajrang Dal under strict control since 2002, which is one reason why rabble rousers such as Pravin Togadia dare not open their mouths in Gujarat. Since 2002 there have been no communal riots in Gujarat and whatever his detractors might say, Gujarat is a relatively corruption-free State with a service oriented, efficient government which has accelerated the pace of development. Whereas there is no special effort to bring the Muslims on board, Muslims have not been denied the fruits of development and many of them have prospered. Whereas the Muslims are hardly ever likely to forgive Narendra Modi for the 2002 riots there are many of them who believe that one must not remain in a period mourning for the past and must move forward to a new future. That is why paradoxically Gujarat is the one State with a BJP Government where at least some Muslims have participated in local government elections and a small section has even voted for Narendra Modi’s party. They certainly did not do so for Sonia Gandhi’s allegedly secular Congress in Uttar Pradesh.

Amongst so-called secular parties there is a mistaken notion that any secularism which is not pro Muslim loses votes. The vast majority of the people of India are Hindu and if a polarisation of their votes takes place in which the present fragmented Hindu votes become concentrated, can we ever keep extremist Hindu parties out of power? Therefore, India’s best bet is the politics of genuine secularism in which government follows policies which give equal opportunities to all communities, without singling out one for opprobrium and another for appeasement. Narendra Modi says that he does not speak for any community but is concerned only about the ‘asmita’ of five and a half crores Gujaratis. Is it not about time that political parties begin talking about the ‘asmita’ of 110 crores Indians without dividing them into religion, caste, class, or region?

The Bharat Ratna is an individual award given to individuals who have achieved high distinction and merit in the service of the country. The George Cross is the highest gallantry award during peace time for defence personnel and for civilians during war and peace, which the British can give. It is an individual award and is equivalent to the Ashok Chakra in India. However, because the people of the Island of Malta stood collectively with the British against the Germans in the Second World War and exhibited the highest degree of gallantry under massive bombardment, the Island of Malta was collectively given the George Cross. On this analogy the Supreme Court of India deserves the Bharat Ratna for the manner in which it has upheld, protected and enhanced the status of the Constitution of India and in particular the secular nature of this republic. My respectful submission to the President and to the Government of India would be that in the Republic Day awards to be announced on 26^th January 2013 they may collectively award to the Supreme Court the Bharat Ratma as a token of gratitude of this nation for being the one pillar of the Constitution which has remained true to its salt. No greater tribute could be paid to what I consider the best Supreme Court in the whole world.