Who will humbly ask CJI whether he is exempted from Code of Conduct?

                           (Edited Picture of PM with CJI. Image Courtesy: PIB) 

                                             

Did Chief Justice of India (CJI) T. S. Thakur breach the Judiciary’s own voluntary code of conduct (CoC) when he ridiculed Prime Minister Narendra Modi’s Independence Day (ID) speech?

The answers to this and certain other prickly questions on judicial accountability lie in the court of CJI. And national enlightenment on these issues can come only if civil society files public interest litigation (PIL) in the Supreme Court (SC).  A Big If indeed.

To best of my knowledge, Vocal NGOs have not yet implored CJI to give verdict on applicability of CoC on him? Has PIL industry petitioned SC to admonish the Executive-Legislature combine to not delay further enactment of judicial accountability law?  

Clarity on this count can also emerge if Modi Government advises the President to seek SC’s opinion on these issues. Another Big If!  

A Layman’s reading of CoC named ‘Restatement of Values of Judicial Life’ (RVJL) shows that Justice Thakur prima facie violated two of its 16 principles when he derided PM’s speech.  These are: 1) “A Judge shall not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination.” 2) “Every Judge must, at all times, be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held.”

Another occasion when CJI deviated from former principle was during the last winter season. Justice Thakur first endorsed #OddEven scheme of Delhi Government outside the Court. He later trashed PIL against the scheme, which rides roughshod over citizens’ right to earn one’s livelihood and physically challenged persons’ right to travel safely. After all, these rights can be interpreted as right to life just as right to fresh air is interpreted to rationalize the scheme.    

Civil Society might well dismiss all this as nitpicking of no consequence in the absence of statutory CoC.

SC had unanimously adopted RVJL/CoC in its full court meeting held on 7^th May 1997. In April 2015, Chief Justices’ Conference discussed agenda item ‘judicial values – a need for re-examination’ and tersely “resolved to reiterate the Declaration of Restatement of Judicial Values, 1997.”

Notwithstanding this reiteration, RVJL enforcement lacks transparency.  Instances of it being invoked against deviant judges are rare. RVJL is not even mentioned on SC’s website!

Compare this with Pakistan apex court. The latter’s website not only hosts its CoC but also disclosed the fact that it has been notified through a gazette.

It is apt to note that Law Commission, in its report on lapsed Judges (Inquiry) Bill, 2005 submitted in January 2006, recommended that CoC to be issued by Judicial Council under the proposed law should be published in the Gazette of India.

LC also recommended that “till such time as the Judicial Council comes to be constituted under the proposed Bill of 2005 and such Judicial Council publishes a Code of Conduct, the Bill must provide that the ‘Restatement of Values of Judicial Life’ adopted by the Supreme Court in its Resolution dated May 7th, 1997 shall be treated as the Code of Conduct for the purposes of the proposed law.”
The Report continued: “It should also contain a provision that the Code of Conduct could be modified from time to time by the Judicial Council by amendments that could be notified in the Official Gazette.”

Administrative Reforms Commission (ARC) echoed LC’s concern for RVJL in its 4th report on Ethics in Governance submitted in January 2007. Under the chapter ‘Ethical Framework for the Judiciary’, ARC observed: “mere prescription of a Code of Conduct is not an end in itself. Along with the Code of Conduct, a mechanism for enforcing the code needs to be evolved. It would be desirable to designate a senior Judge of the Supreme Court as the ‘Judicial Values Commissioner’ (JVC).”

ARC added:  JVC should be empowered to enquire into cases of violation of the Code of Conduct and report the matter to CJI for taking action. JVC should have jurisdiction over the judges of the Supreme Court, and members of other judicial and quasi-judicial bodies. A similar institution should also be constituted at the state level.

Though UPA Cabinet accepted ARC recommendation relating to JVC, it is not known whether the Government communicated it to SC and if so, whether JVC was notified. Google search for Judicial Value Commissioner throws up disappointing result.

When UPA returned to Power in 2009, it decided to substitute lapsed Judges (Inquiry) Bill with the Judicial Standards and Accountability Bill (JSAB), 2010. The Bill incorporated RVJL into proposed judicial standards.

A proposed standard that has direct relevance to Justice Thakur’s dig at PM’s ID speech is worth pondering. It reads as: “no Judge shall make unwarranted comments against conduct of any Constitutional or statutory authority or statutory bodies or statutory institutions or any chairperson or member or officer thereof, in general, or at the time of hearing matters pending or likely to arise for judicial determinations.”

This stipulation is of no consequence at present as JSAB lapsed with the dissolution of 15^th Lok Sabha in May 2014. NDA Government has disclosed its intent to resurrect the Bill but has not unveiled the revised bill, factoring in suggestions of different stakeholders including Parliament Standing Committee (PSC).

In its report on JSAB submitted during August 2011, PSC recommended: “The Committee feels that Clause 3(2)(f) should be expanded by specifically mentioning that judges should restrain themselves from making unwarranted comments against other Constitutional / statutory bodies/institutions/ persons in open Court while hearing cases.”

The urgency for independent oversight of judicial standards can be driven home well by recalling what legendary Leftist MP, late Bhupesh Gupta, stated during August 1972 while participating in a debate on The Constitution (13^th Amendment) Bill, 1972.

Mr Gupta observed: “The moment you (judges) sit on the Bench you do not become angels or divine creatures. You see, you are either taken from the Bar or you are recruited directly or promoted from below or some such method is there. Therefore, you have all the virtues and vices associated with others. You carry them with you, you carry your past with you, you carry your qualifications and attendant disqualifications, you carry all of them with you.”

Cow Protection row Overshadows Rational Policies

               (Image courtesy: Central Institute for Research on Cattle)

“There are allegedly hundreds of Gosadans and Goshalas in the country, which actually do not exist, in whose names people collect money and eat it up,” stated Bollywood doyen, Prithviraj Kapoor, while participating in a discussion on Gosadans and Goshalas (cow shelters) in Rajya Sabha way back in March 1958.

Mr. Kapoor's comment elicited a wisecrack from the then Deputy Minister for Agriculture, M.V. Krishnappa: “Since cow is a dumb creature so many people are doing so many things in the name of cow.”

Fifty-eight years later, the issue of dubious people masquerading as cow vigilante has now been raised in a similar way by Prime Minister Narendra Modi.

In his maiden townhall with the public held last week, Mr. Modi stated: “I get so angry at those who are into the Gau-Rakshak business. A Gau-Bhakt (cow devotee) is different, Gau Seva (cow protection) is different. I have seen that some people are into crimes all night and wear the garb of Gau Rakshaks in the day.”

It is not known whether Mr. Modi, his bete noire of Chara Gohtala (fodder scam) fame, Lalu Yadav and other leaders have read the Parliamentary and Constituent Assembly debates on all that went wrong in the name of cow protection since the Independence. But what we all know is that the stringency and violence in the name of cow protection is nothing new. It has occurred under all regimes.

The obsessive compulsive disorder (OCD) shown by a section of media especially TV channels’ on exposing publicity-hungry Gau-Rakshaks is relatively new phenomenon. This is diametrically opposite to its stance on Kuta-Rakshaks who pitch for safeguarding stray dogs at the cost of human lives. Though both types of vigilante group directly or indirectly contribute to human tragedies, yet media targets only Gau-Rakshaks. The media overlooks or publishes as space fillers tragic news about Kuta-Rakshaks'-induced killing of babies and kids by dogs. 

Media activist overlook the fact that stray dogs menace is far bigger and serious than cattle menace and there has to be zero-tolerance for dubious Kuta-Rakshaks who facilitate death and injuries to lakhs of Indians every year. Stray dogs outnumber stray cows in the ratio of 3.24:1. Number of stray dogs was 17138349 (1.71 crore) and number of stray cattle was 5287767 (52.87 lakh), according to 2012 Livestock Survey.

If fundamental rights-obsessed media is allowed to have its way, it would ensure that cow meat is served liberally and dog is pampered and protected on every street across the country. Why doesn’t it pitch for substitution of cow meat with dog meat, which is a delicacy? Why doesn’t it demand translocation of some stray dogs in jungles to give justice to animals like leopards that frequently enter human habitations to feast on dogs?  

 For one-track media, reading the Constitution, different state laws on cow preservation, different judgments and related policies for rational debate is an anathema.

Reverting back to Parliament debates, a notable instance is the marathon discussion that followed the bloodbath in Delhi after violent cow protection agitation outside Parliament on 7th November 1966.

Leftist MP Bhupesh Gupta drew Parliament’s attention to the role played by RSS magazine, Organiser, in fueling the agitation. Drawing MPs attention to the weekly issue dated 7th November 1966 circulated a few days before the agitation, Mr. Gupta stated: “Read the editorial here and see the picture of the cow in tears or the mother in tears. Well, I am an agnostic and an atheist, but I too have some sentiments. Now, the sentiments of our people are likely to be aroused in the matter of cow protection.”

Another MP Niren Ghosh stated: “This Government can easily come forward with a Bill to ban cow slaughter, but they cannot come forward with a Bill to ban man slaughter. So I demand ut a judicial inquiry should be held into the entire affair, into all aspects of the matter including the shootings, killings and lathi charges that have taken place, so that truth could be established and these things might not be repeated.”    

Participating in another discussion on cow protection during April 1970, K. P. Subramania Menon stated: “we in India have also been accustomed to worshipping pigs? The pig, the Varaha, is one of the ten avatharas, and there are so many temples devoted to the Varaha. So, I would like to know whether the Government will think of bringing forward a legislation prohibiting pig slaughter along with cow slaughter.”

The mother of all cow agitations is the varied interpretation of Constitution’s Directive Principles of State Policy. Its Article 48 says: “The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.”

Add to this the fact that the power to legislate on cow slaughter/protection comes under the domain of the State List. State Legislatures can thus enact laws on this subject under Article 246(3) of the Constitution.

All States and Union Territories except six currently have laws that either ban or restrict cow slaughter. The exceptions are Arunachal Pradesh, Kerala, Meghalaya, Mizoram & Nagaland and Union Territory of Lakshadweep.

The members of the Constituent Assembly differed on drafting of this Article 48. On 19th November 1949, Prof. Shibban Lal Saksena, for instance, contended: “Prohibition of cow slaughter throughout the country can by itself fire the imagination of the common man in India. I wish the ban on the slaughter of cow, which is the Kama Dhenu the mother of plenty, had been made absolute, and given a place in the Fundamental Rights.”

Rev. J. J. M. Nichols Roy countered: “There would be a great deal of disturbance and unrest if this article would be interpreted to mean that all cattle should be prevented from being slaughtered at all times and under all circumstances. This would act against the fundamental rights. I think that this is not the meaning of this article.”

Nehru Government first interpreted Article 48 way back on 20th December 1950. It did so in a circular titled ‘Imposing a complete ban on the slaughter of cattle, raises legal and economic questions’ issued to the States. The Union Agriculture Ministry's circular stated: “what is really intended is not a total prohibition of all cattle slaughter but prohibition of slaughter of cows, and calves and other milch and draught cattle only. The directive is thus subordinate, and in a sense, ancillary to two important provisions in the article, viz., (a) preserving and improving the breeds of cows and calves and other milch and draught cattle, and (b) prohibiting the slaughter of the above. Milch and draught cattle would cover only cattle capable of giving milk or of being employed for draught purposes or in other words ‘Useful’ cattle. A total ban on the slaughter of all cattle is thus not an obligation imposed on the States by the Constitution.”

Explained the adverse effects of the total ban on the slaughter of cattle, the Centre hoped that the States thus do not impose legal restriction on the slaughter of useless and unproductive cattle.

The Circular concluded: “States which have already passed legislation totally banning slaughter are requested to take early steps to reconsider it. Without first providing a sufficient number of Gosadans to cater for all the unproductive and useless animals, it is inadvisable to impose a total ban on the slaughter of cattle.”

Article 48 has been interpreted by the Supreme Court too in its judgments on slaughter of cows and other animals.

In its perhaps its first verdict dated 23rd April 1958, the Apex Court ruled: “we uphold and declare that the Bihar Act (Bihar Preservation and Improvement of Animals Act, 1955 ) in so far as it prohibits the slaughter of cows of all ages and calves of cows and calves of buffaloes, male and female, is constitutionally valid and we hold that, in so far as it totally prohibits the slaughter of she-buffaloes, breeding bulls and working bullocks (cattle and buffalo), without prescribing any test or requirement as to their age or usefulness, it infringes the rights of the petitioners under Art. 19 (1) (g) and is to that extent void.” 

The Court gave similar ruling with regard to relevant cow protection laws of Uttar Pradesh and Madhya Pradesh.

Indira Gandhi regime articulated Supreme Court verdicts in a statement to Parliament on 3rd September 1976 (Emergency era). As put by the Statement, “The Supreme Court has interpreted the effect of article 48 of the Constitution relating to prohibition of slaughter of cows and its progeny, as follows :—

(a) That a total ban on the slaughter of cows of all ages and calves of cows and calves of she-buffaloes, male and female, is quite reasonable and is in consonance with the Directive Principles as laid down in article 48 ;

b) That a total ban on the slaughter of she-buffaloes, or breeding bulls or working bullocks, as long as they are capable of being used as milch or draught cattle, is also' reasonable and valid; and

(c) That a total ban on the slaughter of she-buffaloes, bulls and bullocks, after they cease to be capable of yielding milk or of breeding or working as draught animals cannot be supported as reasonable in the interest of the general public and is invalid.”

When Janata Government (in which BJP in its earlier avatar of Jan Sangh was a force to reckon with) came to power, it also articulated constitutional and legal position on the issue whether the Centre intends to bring a law to ban slaughter of cows. In an answer to Parliament question on 20th December 1978, the then Agriculture Minister, Surjit Singh Barnala, stated: “The subjective of preservation, protection and improvement of stock comes under Entry 15 of List II of the Seventh Schedule to the Constitution and as such this is a State subject. Therefore the question of the Central Government bringing forward a comprehensive Bill in this regard does not arise.”

Notwithstanding all governmental and judicial interpretations of Article 48, the politics of cow protection remains an emotive topic. It is here pertinent to mention about a national committee set up by Congress Government to go into entire gamut of cow protection in 1967. As put by an official statement dated 5th January 1967, “Government have also decided to set up a Committee which will be composed of representatives of the Central Government, the State Governments and the Sarvadaliya Goraksha Mah-abhiyan Samiti and some experts. The Committee will go into the question of cow protection, examine inter alia all the suggestions of the Goraksha Samiti on this subject, and having considered the matter in all its aspects namely, constitutional, legal, economic and others, present to Government appropriate practical recommendations for their consideration. The suggestions of the Samiti which the Committee will thus consider, will include the one for a total ban on the slaughter of cow and its progeny.”

The Committee, which was supposed to give its report within six months of its formation, perhaps never submitted it. Participating in a Rajya Sabha debate on the issue during December 1978, S. W. Dhabe stated: “The Committee was appointed in 1967. The Committee did not give a report...Thirteen years have gone. The Committee had to go into all aspects of cow protection in this country—constitutional, legal and economic. In spite of this, such an important matter is by-passed. I will appeal to the Government to make a statement in this House. Shri Barnala should also persuade the Prime Minister that it is no use making a show of it. They can issue executive orders or guidelines to the Kerala and West Bengal Governments to save the situation.”

The analysis shows that our leaders and their supporters have paid more attention to cow politics and less to implementation of policies that can benefit cows, dogs and other animals, apart from providing peace and security to public.

It is here pertinent to cite a rational policy that neither politicians nor the dominant media like to discuss, leave aside demanding its implementation. The policy is: National Conservation Strategy and Policy Statement on Environment and Development that was released by Ministry of Environment, Forests and Climate Change (MOEF&CC) in June 1992.

It says: “The overriding impact of adverse demographic pressures on our resources and ecosystems due to poverty and overpopulation of man and livestock (cow included) has to be highlighted. Unless there is a curb on population growth and even a reduction of such populations and a corresponding improvement in land use policies, the current trend of over-exploitation and ecological degradation is not likely to improve.”

The policy paralysis is manifested in ugly sight of cows, dogs, pigs and rag-pickers rummaging through waste dumps across the country.