Thursday, November 16, 2017

Adani’s Australia Story: A Battle Over the Politics of Coal and Jobs. By Kabir Agarwal

Note: This is the fifth story in a five-part series that examines how the Adani and Carmichael coal mine has divided the Australian public and in the process, sparked fierce debate on issues such as coal-based energy, energy financing, jobs and the rights of indigenous people. Read the firstsecondthird and fourth parts

In May 2010, Kevin Rudd, the then prime minister of Australia, announced a new tax of 40% to be levied on mining activity. A little over a month later, Rudd had lost his job. The mining industry had come together to launch a fierce campaign in television and print media against the tax. Between May and June, $22 million (AUD) was spent on the campaign, at the end of which Rudd found himself losing popularity and was felled by his party colleague, Julia Gillard. Within a week of being sworn in as prime minister, Gillard reached an agreement with mining companies on a lower tax rate.

“Mining is vital to Australian politics. No government in Australia can survive if it is hostile to mining,” Paul Williams, senior lecturer in politics at Griffith University in Queensland, told me.
That would probably explain why the Adani group’s coal mine has received the backing of almost all political parties in Australia. The only opposition from a political party has come – unsurprisingly – from the Australian Greens party, a party with environmentalism at its core. Since the mine was first proposed in 2010, the Adani project has faced considerable headwinds owing to large-scale protests due to potential severe negative climate impacts, refusal of the traditional owners to part with the land on which the mine is to be built and progressively complicated financial scenarios. But the political support for the mine has been dauntless.

As the protests against the mine were gathering momentum, in August 2016, Matthew Canavan, the minister for resources and northern Australia in the Australian federal government, wrote an opinion piece in The Australian, the country’s largest selling national newspaper, titled ‘Mining is central to Australian history and has a strong future’. He argued strongly for further investment in the mining sector and earmarked the Adani coal mine as having the potential to contribute significantly to the development of northern Australia. “If the mine goes ahead, it will help develop a genuine frontier of our nation,” Canavan wrote.  

The ‘frontier’ Canavan wrote about is the Galilee basin – one of the largest untapped reserves of coal in the world estimated to contain 20 billion tonnes of coal – covering an area of 247,000 square kilometres in Central Queensland… read more:

Hindu Mahasabha Lays Foundation Stone For Temple To Gandhi's Killer Nathuram Godse

The Hindu Mahasabha office in Gwalior's Daulatgunj, where Nathuram Godse is said to have stayed for a week prior to the assassination of Mahatma Gandhi was yesterday earmarked by the far right Hindu party as the site for a temple to Gandhi's killer. 

The Hindu Mahasabha laid the foundation of the temple in the office after the Madhya Pradesh government reportedly turned down their request for land to build the temple, a structure expected to offend millions of people who regard Gandhi as the 'Father of the Nation' and revere him for his lifelong teachings of non-violence and firm stand against social oppression.

"We had sought land from the Gwalior administration for a grand temple in memory of Nathuram Godse. Our plea was denied, so we have decided to build a temple inside our Daulatgunj office in Gwalior, " Jaiveer Bhardwaj, a Hindu Mahasabha leader, told the Telegraph newspaper. It is believed that the gun used to kill Gandhi also came from an unidentified owner in Gwalior. The paper quoted state Congress leader Manak Aggarwal as saying that it was "an insult to glorify a killer."

"The BJP has over 25-26 affiliate-wings which remain engaged in bizarre acts and later the BJP disowns their deeds," Leader of Opposition, Ajay Singh, told News18.

The Sangh’s New Game Plan for Ayodhya

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Western media 'troublemakers' barred from Xi Jinping speech // Believe in socialism not sorcery, China tells party members

China has trumpeted this week’s pomp-filled Communist party congress as an example of its increasing openness and transparency. But a number of major western news organisations whose coverage has irked Beijing were excluded from Xi Jinping’s unveiling of China’s new ruling councilon Wednesday – in some cases for the first time in more than two decades. Those refused access to Xi’s statement to the media include the BBC, the Financial Times, the Economist, the New York Times and the Guardian. Chinese officials offered no formal explanation for the decision.

The Daily Telegraph, which regularly publishes Communist party propaganda in the UK as part of a reported £800,000 annual contract with Beijing’s China Daily, is understood to have been granted an invitation to Xi’s event. In a statement, the Foreign Correspondents Club of China (FCCC) said it was concerned about the exclusions. “The press conference is a high profile news event involving China’s top leadership and it is hard to avoid the conclusion that these media organisations have been singled out to send a message,” it said. “Using media access as a tool to punish journalists whose coverage the Chinese authorities disapprove of is a gross violation of the principles of press freedom,” the group added. Qiao Mu, a former journalism professor at Beijing Foreign Studies University who recently went into self-imposed exile in the United States, said China appeared to have barred those it considered “trouble makers”. The move reflected the frustration of Chinese officials at Xi’s inability to “control the tone of the western media”.  “The situation will get worse ... more and more western media websites will be blocked, and journalists will be expelled or [find it] hard to get visas,” Qiao added. He said that in Xi’s “new era” there was room for only “one voice”. .. read more:

Believe in socialism not sorcery, China tells party members
One of China’s top leaders has chastised Communist party cadres for putting “ghosts and gods” before Marx and Lenin. Writing in the party’s official mouthpiece, the People’s Daily, Chen Xi accusedsome officials of becoming politically and morally “degraded” and of looking to religion, superstition and – perhaps even worse – western-style multi-party democracy as their faith in socialism faded.  “Some don’t believe in Marx and Lenin but believe in ghosts and gods; they don’t believe in ideals but believe in sorcery; they don’t respect the people but do respect masters,” wrote Chen, who was last month handed a spot on China’s 25-member Politburo.  He added: “As Comrade Mao Zedong pointed out … cadres need to be both red and professional.” 

Members of the officially atheist Communist party have always been required to shun religion. However, activists say hostility to religion has intensified since Xi Jinping became China’s leader in 2012 and began clamping down on potential sources of opposition.  Chen’s article follows reports that Christians in the eastern province of Jiangxi were being told to rid their homes of images of Jesus and the cross and replace them with portraits of Xi. Qi Yan, a local official, told the South China Morning Post the move – which has already seen some 1,000 Xi portraits handed out and hung – was part of an anti-poverty drive that seeks to convince misguided believers that Xi and his political disciples could improve their lot, not the son of God. “Many rural people are ignorant. They think God is their saviour,” Qi said. “After our cadres’ work they’ll realise their mistakes and think: ‘We should no longer rely on Jesus, but on the party for help.’”.. read more:

Jason Burke - Tactical error leaves weakened Mugabe facing end of an era

The final unravelling of the 37-year rule of Robert Mugabe in Zimbabwe began with an uncharac-teristic tactical error. To clear the way to power for his wife, Grace, and her increasingly influential faction, the 93-year-old autocrat sought a decisive confrontation with the only man in the former British colony who had the power to mount a successful challenge to his authority – and he lost.

Emerson Mnangagwa, the former vice-president whose cunning, longevity and toughness earned him the nickname “the Crocodile”, was unceremoniously stripped of his office by Mugabe nine days ago.
The manner of the sacking should have given the oldest ruler in the world and the 53-year-old first lady pause. It did not, and now Mugabe is confined to his official residence in the plush suburb of Borrowdale. The whereabouts of Grace Mugabe are unknown.

Mugabe had intended to fire Mnangagwa face to face in his office, but the former intelligence chief refused to travel the short distance across the Zimbabwean capital for the interview. The president tried again, this time telling Mnangagwa – an aide and collaborator since the two men fought together in the liberation wars of the 1970s – to come to State House, the president’s official residence. Once again, there was no response.

This second refusal was taken as evidence of weakness, one official in the ruling Zanu-PF said, and hours later a government spokesman told a press conference in Harare that Mnangagwa had been stripped of office for “disloyalty, disrespect, deceit and being unreliable”. Mnangagwa, tipped to succeed the ailing Mugabe as recently as August, fled to neighbouring Mozambique... read more:

Wednesday, November 15, 2017

15,000 scientists give catastrophic warning about the fate of the world in new letter to humanity: 'Time is running out'

A new, dire "warning to humanity" about the dangers to all of us has been written by 15,000 scientists from around the world. The message updates an original warning sent from the Union of Concerned Scientists that was backed by 1,700 signatures 25 years ago. But the experts say the picture is far, far worse than it was in 1992, and that almost all of the problems identified then have simply been exacerbated.

Mankind is still facing the existential threat of runaway consumption of limited resources by a rapidly growing population, they warn. And "scientists, media influencers and lay citizens" aren't doing enough to fight against it, according to the letter. If the world doesn't act soon, there be catastrophic biodiversity loss and untold amounts of human misery, they warn.

Only the hole in the ozone layer has improved since the first letter was written, and the letter urges humanity to use that as an example of what can happen when it acts decisively. But every single other threat has just got worse, they write, and there is not long left before those changes can never be reversed. There are some causes for hope, the letter suggests. But humanity isn't doing nearly enough to make the most of them and soon won't be able to reverse its fate.

"Soon it will be too late to shift course away from our failing trajectory, and time is running out," the letter warns. "We must recognize, in our day-to-day lives and in our governing institutions, that Earth with all its life is our only home." A host of environmental calamities are highlighted in the warning notice, including catastrophic climate change, deforestation, mass species extinction, ocean "dead zones", and lack of access to fresh water.

Writing in the online international journal BioScience, the scientists led by top US ecologist Professor William Ripple, from Oregon State University, said: "Humanity is now being given a second notice ... We are jeopardising our future by not reining in our intense but geographically and demographically uneven material consumption and by not perceiving continued rapid population growth as a primary driver behind many ecological and even societal threats... read more:

Tuesday, November 14, 2017

In Dismissing Bribery Probe, SC Equates Request for Recusal of Judges With Contempt of Court // Utkarsh Srivastava - SC is creating a dangerous aura of arrogant infallibility around itself

A request for recusal of a judge is either accepted or refused, with reasons. The Supreme Court, on Tuesday, set the bar on those who seek recusal of judges very high – by making it appear as though they should be prepared to face proceedings for contempt of court as well. This ‘chilling effect’ on seeking recusal was apparent in the judgment delivered by a three-judge bench which dismissed the writ petition filed by advocate Kamini Jaiswal – who sought an independent probe into an alleged attempt to bribe judges to settle a case before the court.

The case was heard by Justices R.K. Agrawal, Arun Mishra, and A.M. Khanwilkar on Monday afternoon. The judges took less than 24 hours to deliver their verdict, which runs to 38 pages. Authored by Justice Mishra, the judgment is a classic instance of how the judiciary can not just stonewall criticism but put its critics in the firing line. Although the bench found Jaiswal’s petition and averments contemptuous, it refrained from initiating proceedings against her and her counsel. The bench orally observed that it was doing so in order to work together for “this great institution”.
Ironically, Monday’s proceedings were not on the merits of Jaiswal’s petition, as both the bench and the arguing counsel ended up debating the so-called issue of propriety of filing two identical writ petitions on the issue – and the extent of guilt of the petitioners in this aberration.

Thus the “tearing hurry” in filing the second writ petition by Kamini Jaiswal, and seeking its hearing in court No.2 on November 9, which set off the current crisis was repeatedly questioned by the bench. Prashant Bhushan answered this by admitting that they did so because they genuinely believed that Chief Justice Dipak Misra’s administrative decision of listing the first writ petition before court No.6 rather than court No.2 was improper, especially because of their plea that he ought to recuse himself both judicially and administratively in the matter. In support of their contention, he pointed out that the Central Bureau of Investigation’s FIR filed on September 19 cast a shadow on the judges who heard the original medical college matter, although it did not name any judges. Justice Arun Mishra, however, equated the “shadow of doubt on the judges” with a contemptuous imputation on the part of the petitioners.

Richest 1% own half the world's wealth, study finds

The globe’s richest 1% own half the world’s wealth, according to a new report highlighting the growing gap between the super-rich and everyone else. The world’s richest people have seen their share of the globe’s total wealth increase from 42.5% at the height of the 2008 financial crisis to 50.1% in 2017, or $140tn (£106tn), according to Credit Suisse’s global wealth report published on Tuesday.

“The share of the top 1% has been on an upward path ever since [the crisis], passing the 2000 level in 2013 and achieving new peaks every year thereafter,” the annual report said. The bank said “global wealth inequality has certainly been high and rising in the post-crisis period”. The increase in wealth among the already very rich led to the creation of 2.3 million new dollar millionaires over the past year, taking the total to 36 million. “The number of millionaires, which fell in 2008, recovered fast after the financial crisis, and is now nearly three times the 2000 figure,” Credit Suisse said.

These millionaires – who account for less than 0.5% of the world’s population – control 46% of total global wealth that now stands at $280tn. At the other end of the spectrum, the world’s 3.5 billion poorest adults each have assets of less than $10,000 (£7,600). Collectively these people, who account for 70% of the world’s working age population, account for just 2.7% of global wealth… read more:

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Monday, November 13, 2017

Pratap Bhanu Mehta - The judiciary has created a crisis of institutional credibility for itself // Alok Prasanna Kumar - This is the gravest crisis the judiciary and the legal profession have ever faced in India

The Supreme Court of India is facing its worst crisis of credibility since the Emergency. With an occasional exception, the quality of the court’s reasoning, the inconstancy of its judgment, the abdication of its constitutional role in some cases, and its overreach in others, are already denting its authority. But the institutional crisis that the Supreme Court has now created for itself will puncture more holes in the authority that it so valiantly tried to exert. It will also create the conditions under which it will be easier to legitimise diluting judicial independence.

The current crisis was occasioned by an order passed by Justice J Chelameswar to constitute a five-judge bench in a petition filed by CJAR that demanded that a SIT be constituted to look into an alleged corruption scandal pertaining to a case involving a medical college. There are two issues: Can the chief justice be part of the hearing, since the scandal allegedly implicates a judgment the CJI wrote, even though he has not been named in the FIR? Second, could a constitution bench be constituted bypassing the chief justice in violation of the current procedure through which such benches are constituted? This is not the place to recount the ugly sequence of events that transpired. But consider the different ways in which the judiciary has now rendered itself vulnerable.

First, there is the vulnerability that arises from the CBI itself. There are issues of corruption in the courts. The judiciary has failed to find a mechanism to deal with allegations of corruption within its ranks. Every justice in the court needs to be above suspicion.

Cleve Wootson: The frilled shark is one of the oldest - and creepiest - living species on the planet

Maybe it's time we Homo sapiens re-evaluated our relationship with the oceans of the world. It has been a good few millennia, sure, but our love affair may have been a little rushed. After all, what do we really know about the ocean? Roughly 95 percent of it remains unexplored, and it seems as if every other day we're finding out something new and unsettling.

Old emotions can die hard. So for the unconvinced holdouts, here's a little push, via Twitter: "Prehistoric, Dinosaur-Era Shark With Insane Teeth Found Swimming Off Coast of Portugal"
That sea-dwelling, serpentine conglomeration of nightmare fuel is the frilled shark, one of the oldest - and in the running for the creepiest - living species on the planet. Its prehistoric contemporaries, like Tyrannosaurus rex and triceratops, died out long ago, but the frilled shark is still swimming around deep below the surface of the world's oceans, scientists say.

They know that because of an accident that sounds vaguely like the plot of a straight-to-video horror movie. A group of European Union scientists were trawling the depths of the Atlantic Ocean this month, trying to figure out a way to "minimize unwanted catches in commercial fishing," according to the BBC. Instead, they ended up capturing one of the rarest and most ancient creatures on the planet, one that may have inspired 19th-century tales of "sea serpents."

What those sailors didn't know was that the frilled shark has looked pretty much the same since the breakup of Pangea. Mainly, that look is horrifying. The largest can grow 6 feet long - the size of a tall man. The shark is named after its gills, which have frilly, fluffy edges, but the cuddly factor ends abruptly there. Inside its short-snouted head are 300 more reasons to never go farther than the beach: hundreds of needle-sharp teeth, neatly lined in 25 rows. It uses quick lunges to sink those teeth into other sharks, fish, octopuses and squid.

Humans know very little about the frilled shark because it lives deep in the ocean, off the coasts of Japan, New Zealand and Australia. In its 80 million years on the planet, it has rarely come into contact with humans or been seen or filmed in its natural habitat. Clearly freaked-out 19th-century sailors were the first to write about it. The frilled fish has a remarkably simple anatomy, probably because of a lack of nutrients in its aquatic environment. But there's no definitive answer about why it outlived its Cretaceous Period contemporaries.

So for now, it remains one of those increasingly frequent reminders that some of the creepiest beings in existence are floating beneath what appears to be a serene ocean surface. From time to time, scientists will set out to see what's swimming around in unexplored regions of the sea, then use the internet to show the world what got tangled up in their nets full of nope. For example, earlier this year, an international team of scientists sponsored by Australian museums pulled up some creatures from more than two miles beneath the ocean. They wanted to see what kind of animals live where there is perpetual darkness, crushing pressure and inhospitable temperatures.

They found things like a red crab covered in dozens of thorny spikes that would be quickly sent back to the chef at Red Lobster. And they discovered a coffinfish, a blue-eyed, red-finned trickster that uses "a fishing rod tipped with a fluffy bait on top of its head" to lure prey close enough to snag. So, yes, maybe the beach is the safest place until we know more about what's swimming around in the great beyond. On second thought, even that may be too close.

As The Washington Post's Lindsey Bever reported in September, the high winds and heavy rains of Hurricane Harvey washed "a mysterious sea creature with fangs and no face" onto the shore in Texas. Even the internet struggled to identify what it was. But one thing is certain: Clearly it's time to re-evaluate our relationship with the beach.

State memory: 1917 and Russian memory politics. By MANFRED SAPPER and VOLKER WEICHSEL

‘Russian memory politics represses both the utopia and the violence. It wants neither to know about the perpetrators nor to commemorate the victims.’ The editors of Eurozine partner journal ‘Osteuropa’ reflect on the political meaning of Russia’s official commemoration of 1917.

Word has got out: history politics is about politics, not history. The interpretation of the past serves to define the present and to mark out the future. Russia’s commemoration of the centenary of the February and October Revolutions therefore tells us a lot about how the political leadership in the Kremlin sees itself, about the worldviews of various social groups, and about the values of Russians. 

The same goes for all the other states that belonged to the Soviet Union until 1991. In the Soviet Union, the revolution in October 1917 was considered to be an event of global significance, the beginning of the liberation of human beings from material want, political coercion, violence and war. The exploitation of humans by other humans would be abolished and equality and justice restored. Empires and nation-states alike would be overcome. All nations would be united in a worldwide Union of Soviet Socialist Republics. The ideal of the revolution was nothing less than eternal peace on Earth.

However, the Bolsheviks were never able to get a social majority behind them or their utopia. At the beginning of the communist world movement was a violent power grab that, after the First World War, immediately led Russia into civil war. The spirit of utopia soon began to justify immeasurable violence: mass shootings, camps, annihilation through famine, terror. Official Russian memory politics represses both the utopia and the violence. It wants neither to know about the perpetrators nor to commemorate the victims. It recognizes only one tragedy, which allegedly struck society like a natural disaster – and the state, which alone was able to offer salvation.

For the Russian leadership, the question of how to mark the centenary of 2017 is therefore a political-historical conundrum. How to commemorate events that symbolise the downfall and the destruction of a state, of the Russian Empire? How to remember ideals about which the ruling elite were so cynical, but which still served as the basis for the state and its apparatus? That can’t happen without memory-political inconsistencies. The patron saint of the Revolution, Vladimir I. Lenin, has fallen low. Putin has long blamed Lenin and his nationalities policy for the destruction of the Russian Empire. At the same time, Putin – whose rise is thanks to his career in the KGB and the FSB – is proud to belong in the tradition of the Cheka, the communist secret police, whose centenary is also this year, on 20 December.

The Russian regime’s fixation on the strong state and the mantra of stability, which reflects the fear of any kind of change and which allows all demands from society for reform to be denounced as calls for revolution, leads to 1917 being repressed. The Revolution is no longer to be seen as a caesura. The historical-political guidelines prescribe that the years 1914–1921 be taken as a single phase. In historiographical terms, there are reasons for widening the horizon. In terms of memory politics, however, the aim is to assert continuity between the Russian Empire and the Soviet Union. The longstanding claim of the critics of the Soviet Union – that it was an extension of the Russian Empire with a different ideology – has today been given a positive spin to become Russia’s official state ideology.

The Russian minister of culture, Vladimir Medinsky, set out the parameters of this interpretation back in 2015. Like the dynastic, social and national crisis at the beginning of the seventeenth century, the revolutionary period was a ‘Time of Troubles’ that had led to the loss of Empire. The reason for the downfall of the state was twofold: on the one hand, the defeat of Russia in the First World War; on the other, the split of the elite into ‘Reds’ and ‘Whites’. According to this view of things, the lesson of history is unconditional unity. The ‘Time of Troubles’ – a concept also used by the current regime and its supporters to refer to the 1990s – serves as a warning that justifies the repression of social plurality. When, even in the highest political circles, the Russian Revolution is said to have been a conspiracy of foreign powers against the Russian state, then associations with the campaign against supposed ‘foreign agents’ in civil society are not unintended.

This worldview perfectly matches that of the Orthodox Church. In the central thrust of memory politics and contemporary political thinking, Church and State hierarchies sing in a single, patriotic accord. Their ‘harmonious’ commemoration of the order defeated in 1917 allows it to be forgotten that priests and believers suffered particularly harshly under the Bolsheviks – and also that the Church was deeply connected to the power structures of the Soviet Union. This kind of commemo-ration justifies the authoritarian political order in the same way as Russia’s renunciation of Europe and any kind of self-accountable, liberal thinking. Nothing could be more alien to Russia’s ruling elites than the idea of enlightened, mature people who aspire to be citizens, to take responsibility for the social community, to choose their representatives in free elections and to control the government through the rule of law and the separation of powers. 

Those were the liberal ideals of the February Revolution. 

After seventy years of Soviet rule, a brief interregnum, and almost two decades of Putin, they have been repressed entirely. The shock for the Kremlin was therefore great when the Maidan in Ukraine brought back memories of the revolutionary potential of a democratic upheaval. This text is the editorial to Osteuropa (6–8/2017), ‘Revolution Redux. 1917–2017: Forwards and forever forgotten’.

A Sad Moment in India’s Judicial History. BY SHANTI BHUSHAN // Credibility of Supreme Court Has Come Under Serious Threat . BY DUSHYANT DAVE

'The order made by the CJI’s bench was totally without jurisdiction and is a nullity': Shanti Bhushan
NB: If the highest judicial officer of India is (allegedly) seen to be acting in disregard of the Constitution, we are in a grave crisis. And there is no doubt that certain anti-democratic forces will be only too happy to see the system of constitutional governance degrade itself. It is highly significant that not a single major news portal from the mainstream media has chosen (today) to report these portentous developments. Can we imagine the noise the Sangh Parivar would have made if the boot was on the other foot and the media chose to remain silent? DS

What happened in the chief justice’s court on November 10 raises very serious questions about the future of the Supreme Court of India and the Indian judiciary as a whole. On November 9, the bench of Justice J. Chelameswar entertained a very important writ petition. The petition sought an independent investigation into an alleged act of corruption which may involve members of the higher judiciary. Since this matter pertains to the integrity and credibility of the judiciary, the bench headed by Justice Chelameswar issued notice to the respondents, directed the Central Bureau of Investigation to produce all relevant papers relating to the investigation including the case diary in a sealed cover before the Supreme Court, and listed the matter for Monday, November 13 before a constitution bench of the five senior-most judges of the court (including the chief justice) for further hearing.

The investigation relates to an FIR registered by the CBI against Justice I.M. Quddusi (retd.), who is a former judge of the Orissa High Court, and some other middlemen from Odisha, including one Biswanath Agrawal. It is alleged that Agrawal had collected large sums from the proprietors of a medical college in Kanpur for getting them a favourable order from the Supreme Court by paying off some judges. It is a fact that the case at that time was before a bench presided over by Chief Justice Dipak Misra. The relevant paragraph from the FIR registered by the CBI states:

“Information further revealed that Prasad Education Trust filed a Writ Petition (Civil) No. 797/2017 in the apex court. Shri B.P. Yadav, in furtherance of the said conspiracy requested Shri I.M. Quddusi and Smt. Bhawana Pandey who assured to get the matter settled in the apex court through their contact and they further engaged Shri Biswanath Agrawala, a private person, r/o HIG-136, Phase 1, Kanan Vihar, Chandrashakerpur, Bhubaneshwar, Odisha, for getting the matter settled in the apex court. Shri Biswanath Agrawala claimed very close contact with senior relevant public functionaries and assured that he would get the matter favourably settled. He, however demanded huge grati-fication for inducing the public servants by corrupt and illegal means in lieu of the aforesaid help”

The writ asked that a special investigation team (SIT) be constituted by the Supreme Court for investigating this very sensitive matter. The petitition did not ask for an investigation by the CBI as the CBI, being a tool of the Central government, may use this information as leverage. There have been several instances in the past when sensitive cases were heard by the five senior most judges for creating confidence in the general public. Two such cases were the election appeal of Indira Gandhi and the Habeas Corpus case during the Emergency, in which Justice H.R. Khanna had delivered his now famous lone dissent, which also happened to have cost him the chief justiceship. It was on the suggestion of the former attorney general of India, C.K. Daphtary, that the then chief justice, A.N. Ray, agreed that the habeas corpus case be listed before the five senior most judges and not any five judges that the CJI would handpick.

On the Friday, November 10, a seven-judge bench (reduced to five judges just before the hearing began) was hurriedly constituted by Chief Justice Dipak Misra, on which he presided. This bench annulled the very appropriate order passed by Justice Chelameswar on the fanciful ground that the power of constituting benches was solely given to the chief justice as per the Supreme Court rules. It is important to note here that other than the CJI, none of the five senior most judges were picked to be a part of this hurriedly constituted bench. What is most striking is that the CJI does not seem to have confidence in the court’s four senior most judges after himself.

An SC judge’s powers under Article 142: The chief justice forgets that the constitution confers a very special power to the judges of the Supreme Court under Article 142. No other court has been given this power, not even the high courts. This article enables the judges of the Supreme Court to disregard any provision of any law, if they feel this is necessary for doing complete justice in a case before them. This special power has been alluded to and explained in two landmark judgments of the Supreme Court. One is the seven-judge case in A.R. Antulay and the other is the five-judge bench in Union Carbide. It was clearly held that the powers under Article 142 were very extensive and that in order to render real justice in any case, any law, including a parliamentary statute, could be disregarded. There was only one limitation on this power – that a provision in the constitution could not be disregarded.

Now there is no provision in the constitution that only the chief justice can constitute benches. At best, such power can be traced to a rule or convention. Both of these do not bind the Supreme Court in view of Article 142. Therefore, the order of Justice Chelameswar’s bench could not be nullified. In fact, the order of the November 10 bench is totally without jurisdiction and a nullity. This point is covered by the constitution bench decision in the Rupa Hurra case, which clearly held that no decision of any bench of the Supreme Court could be set aside by another bench even if it was a larger bench. The only way to set aside a judgment is either by a review by the same bench or by a curative petition, which can be heard by the same judges sitting with the three senior most judges of the court. Since Article 144 provides that all civil and judicial authorities must act in aid of the court - which means that all other benches also have to implement the orders of a bench - the November 10 bench headed by the CJI could not act in disregard of the order of the Chelameswar bench. Since this requirement is a provision of the constitution, even Article 142 cannot be used as a recourse to circumvent it. Therefore, the order made by the CJI’s bench was totally without jurisdiction and is a nullity.

Conflict of interest: It also needs to be pointed out that Chief Justice Dipak Misra cannot take any decision in this matter because of conflict of interest as the investigation may point to his involvement as well. In the facts mentioned in the FIR, though the name of Dipak Misra is not explicitly mentioned, it must be noted that while the conspiracy was being hatched, the matter was before his bench, and also that the middleman, Biswanath Agrawal, is from Odisha and that the co-accused, I.M. Quddusi was a former judge in the Orissa high court, which is the home state of Dipak Misra. This clearly shows that the needle of suspicion points towards the present chief justice. In these circumstances, the law of conflict of interest required that the CJI not even touch this writ and should have recused himself both from judicial as well as administrative functions in this writ. One must remember that in the Pinochet case, even the House of Lords had to recall its judgment because one lord’s wife had some remote connection with one of the parties in the case.

What is the way forward now? If the Supreme Court of India is to be saved, in my opinion, a bench with all the judges must take stock of the situation and consider the legal position dispassionately and wisely. (Shanti Bhushan is a former Union law minister)

Credibility of Supreme Court Has Come Under Serious Threat . BY DUSHYANT DAVE
Chief Justice Warren E. Burger of the US Supreme Court made a profound statement that “A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people and it is for the subordinate judiciary by its action and the high court by its appropriate control to ensure it.”
That is why it was once correctly said, “If you once forfeit the confidence of your fellow citizens you can never regain their respect and esteem.” Law Commission in its Fourteenth Report had fore-warned, “If the public is to give profound respect to the judges the judges should by their conduct try and observe it; not by word or deed should they give cause for the people that they do not deserve the pedestal on which we expect the public to place them.”

It is important for citizens, particularly those in the legal system, lawyers, judges, jurists and law students, to understand the seriousness of the matter involving CBI’s FIR dated September 19, 2017, and how independent investigations into it are being stalled by the highest judiciary… read more:

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Saturday, November 11, 2017

Confrontation in Supreme Court Of India bodes ill // Prashant Bhushan on the CJI’s ‘Extraordinary Interest’ in a Matter Directly Concerning Himself

The events that unfolded in the Supreme Court on Friday (November 10, 2017) were unbecoming of it. While some may call it a ‘constitutional crisis’, it was, in realty, a public display of loss of faith amongst brother Judges. The constitution of an extraordinary Constitution Bench took the lawyers by surprise as the proceedings were unprecedented to any Constitution Bench proceedings so far in the history of the Supreme Court. It was Friday, a miscellaneous day in the Supreme Court and most of the lawyers had left the Court by noon. 

As SC Hears Bribery Petition on Monday, Further Improprieties Come to the Fore
All 3 judges on the bench hearing the matter ought to have recused themselves 
After Yesterday’s Action Packed Hearing, CJI Constitutes Bench To Hear Kamini Jaiswal’s Petition
Exclusive: Ex-Arunachal CM’s Explosive Suicide Note that BJP is Refusing to Probe
A Sad Moment in India’s Judicial History - Shanti Bhushan
If the Supreme Court is to be saved, a bench comprising all its judges must take stock of the situation and consider the legal position dispassionately and wisely

Around 2.55 pm, the lawyers and media personnel were shocked to hear about the constitution of an extraordinary Constitution Bench scheduled at 3pm. The lawyers were in fact eagerly waiting for a Constitution Bench comprising of the first five senior Judges which was scheduled to sit on Monday and its approach to the whole issue. “What was the need for such a sudden constitution of a new bench?” “What are the issues? Why such a Constitution Bench with different set of Judges, when a Bench of comprising of five senior most Judges was already constituted whether rightly or wrongly?  What if the same issue is considered by the forthcoming Monday Constitution Bench?  If Justice Chelameshwar’s order is improper, but why can’t that issue also be considered by the Monday Constitution Bench?  Is there any disqualification for The Chief Justice to constitute the Bench?” were some of the questions that confused the lawyers.... read more:

Prashant Bhushan on the CJI’s ‘Extraordinary Interest’ in a Matter Concerning Himself
An extra-ordinary development took place in the Supreme Court today (Friday, 10 November 2017). On 19th September this year, the CBI had registered a very serious FIR, alleging that there was a conspiracy to bribe judges of the Supreme Court, in connection with a Medical College case which was going on before the Supreme Court. Immediately after that FIR, the CBI conducted raids and arrested some people, including a retired judge of the Orissa high court and recovered about Rs 2 crores in cash. They also arrested a middleman from Orissa who had been engaged to influence the Supreme Court Judges. We don’t know what further investigation the CBI has done, but given the seriousness of this matter which affects the independence and integrity of the judiciary, we felt that this is a matter which could not be left in the hands of a caged parrot of the government, namely the CBI. This needs to be investigated by an independent, fair body which will do a thorough investigation and it should be monitored by a former chief justice of the Supreme Court.

So a petition was filed (by the Campaign for Judicial Accountability and Reforms, [CJAR]) seeking an SIT monitored by the Supreme Court and headed by a former chief justice of the Supreme Court. This petition was mentioned for hearing on November 8, 2017, before Court 2 (Justice Chelameswar and Justice Nazeer). The mentioning took place before Court 2 for two reasons. First, Court 1 was in a constitution bench and therefore mentioning for urgent listings were before Court 2; second, the Chief Justice was directly involved in this matter (since he was hearing the medical college case) therefore, he ought not to have heard this matter either on the judicial or the administrative side. Court 2 directed that this matter should be placed on Friday before his bench. But thereafter, at lunchtime, I received information from the registry that the Chief Justice (Justice Dipak Misra) had passed an order listing it before some other bench. Later we came to know it was Court 6 (Justice Sikri and Justice Ashok Bhushan).

Yesterday (Thursday, November 9, 2017) a similar petition was filed by Kamini Jaiswal, in which again, an urgent mentioning was made. It was heard at 12:45 pm (Friday) by Court 2. Court 2 passed an order saying that since this was a very serious matter involving the independence and integrity of the judiciary, it should be heard by a bench of five senior-most  judges of the Supreme Court on Monday the 13th. They also directed that all the material collected by the CBI should be deposited with the Registrar who would then place it before the five judge bench hearing the matter. When our matter came up on Friday before Court 6, I told the judges that there was already an order referring this matter to a constitution bench of five senior judges and therefore it should be tagged along with that. I thought that they had passed an order tagging the two matters (CJAR and Kamini Jaiswal). But thereafter at 2:45 pm I received a call from the registry saying that there was a seven judge bench constituted in the Chief Justice’s court and I should immediately come to Court 1... When I went there, I found that there were seven chairs and then two chairs were removed and eventually five judges came, which included the Chief Justice but none of the other senior judges of the Supreme Court… read more:

No One Should Be a Judge in his Own Cause
Nemo judex in causa sua, a dictum that translates to “no one should be a judge in his/her own cause”, is widely considered a pre-requisite to a reliable, trustworthy judicial system. This principle is meant not merely to prevent a potential wrong-doer from condoning his errors by judging the validity of his actions, but also, and more importantly, to preserve public confidence in the sanctity and independence of the judiciary.  Sadly, on Friday, a five-judge bench of the Supreme Court left this very foundation of our judicial system in tatters...

NBThe citation below is from a book on Nazism (published 1942): Behemoth, The Structure and Practice of National Socialism; by Franz Neumann, p 27. A PDF file may be read here: DS. 

(The counter revolution) ‘…tried many forms and devices, but soon learned that it could come to power only with the help of the state machine and never against it… the Kapp Putsch of 1920 and the Hitler Pustch of 1923 had proved this.. In the centre of the counter revolution stood the judiciary. Unlike administrative acts, which rest on considerations of convenience and expediency, judicial decisions rest on law, that is on right and wrong, and they always enjoy the limelight of publicity. 
Law is perhaps the most pernicious of all weapons in political struggles, precisely because of the halo that surrounds the concepts of right and justice… 

‘Right’, Hocking has said, ‘is psychologically a claim whose infringement is met with a resentment deeper than the injury would satisfy, a resentment that may amount to passion for which men will risk life and property as they would never do for an expediency’. When it becomes ‘political’, justice breeds hatred and despair among those it singles out for attack. Those whom it favours, on the other hand, develop a profound contempt for the very value of justice, they know that it can be purchased by the powerful. As a device for strengthening one political group at the expense of others, for eliminating enemies and assisting political allies, law then threatens the fundamental convictions upon which the tradition of our civilization rests…(emphasis added)

See also
The law of killing - a brief history of Indian fascism
Ajmer blast case: Two including a former RSS worker get life imprisonment

Very short list of examples of rule of law in India

Madhavan Palat: Utopia and Dystopia in Revolutionary Russia. Lecture commemorating the centenary of the Bolshevik revolution

Utopia is a place or as it literally means, a no place, in Thomas More’s Greek pun, one that does not exist,  cannot exist, but ideally should come into being as the good place, the Eutopia. Many utopian projects, be it beauty that never fades or the return to Eden, cannot be realized because nature does not permit them. But utopia was a dream, it provided orientation and hope, it allowed people to think that life could be beautiful, happy, just and inspiring rather than ugly, miserable, oppressive and squalid. The ideal was ahistorical and the vision was static; outside time, it did not belong to the past, the present, or the future; as a concept it was and is often still regarded as dogmatic and closed. As a place it was located beyond normal life, isolated and secluded, the better for creativity and purity free of the miasmas of our polluted world. It entailed more often than not an extraordinary journey to a remote abode, to an island far away, to a forgotten settlement in the empty steppe, to a remote mountain retreat.

But from the end of the eighteenth century, in the course of the revolutionary convulsions of the age, it was increasingly imagined as something that could be made to happen, more as the good time than as the good place, an euchronia rather than utopia or eutopia. As human society acquired ever more resources to control and transform the natural world, to shape it according to its wishes, utopia seemed a possibility.

More than anybody else H.G. Wells summed up the distinction between the earlier utopias and the modern one. From an ahistorical ideal it was transformed into a historical pursuit, as a historical future. From a static vision of a place fixed in time and space, it became a dynamic objective. It imagined the human species as mobile and cosmopolitan, liberated from the fetters of the local and the provincial. It privileged individualism over the communistic ideal so beloved of his predecessors, especially Thomas More and Plato. In his forceful style he anticipated Max Weber’s contrast between bureaucratic standardization and stability on the one hand and charismatic transgression for change on the other. “Each man and woman, to the extent that his or her individuality is marked, breaks the law of precedent, transgresses the general formula, and makes a new experiment for the direction of the life force. It is impossible, therefore, for the State, which represents all and is preoccupied by the average, to make effectual experiments and intelligent innovations, and so supply the essential substance of life.”

The Russian avant-garde and the cultural intelligentsia generally, soaked in Nietzsche, would have concurred… Download the full essay here

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