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A historic event has taken place in the Supreme Court of India. There will be no independent probe into Judge Brijgopal Harkishan Loya’s death. This is one of the first judgments to come at a time when the Indian Judiciary stands embattled in a manner not seen since Independence. Those quick to point out the Emergency, may do well to reflect, that while Emergency kept our democracy locked and at bay to pander to an autocratic leader, now and here, as we live and speak, work or laze, fight or make love, a dark cloud looms by which democracy and the rule of law are being artfully and systematically subverted. In hindsight, Emergency appears as a blip and our judiciary came out the stronger of it. It rose to the occasion and reclaimed its independence as well as integrity.

This spirit, which the Indian Judiciary showed at what was then the nadir of the Indian democratic experiment in the mid-seventies, is almost dead. This period is historic, not least for the other significant judgments that are being awaited, or for the unprecedented press meeting called by the Supreme Court’s senior-most judges, but for the very foundations that made our country possible in the first place. We are being uprooted like an old banyan tree might be, but we are by and large comatose, and don’t even feel the tremors. Such is the adversity of our collective situation.

Judge Loya died in 2014 but for some time he stood resurrected. Caravan’s reporter Niranjan Takle is an ordinary person, much like you and me, but what he did was extraordinary. For a moment it seemed that God spoke through him, that God could well be a regular reporter, who must resurrect the dead, especially when it seemed that they had not been properly buried.

Amongst its several rebuttals to the petitioners’ arguments, the bench constituted by the Chief Justice of India to decide the matter, is very keen on reprimanding the petitioners for their lack of bonafides and contempt of court. The bench then negates the evidence relied on by the petitioners. But this was not a criminal trial. The writ petitions only sought an independent probe into a critical case that was in fact mocking the very institution of our judiciary.

Judge Loya was a CBI judge entrusted with overseeing the Soharabbudin Sheikh fake encounter case in which the BJP President Amit Shah was an accused. Any reasonable person going by the murky and sordid history of the case, and what followed thereafter, and as it stands to tragically unfold even now, would assume that there is a rat, and it is stinking as hell. Post the furor over the Caravan article the Supreme Court should have in fact taken suo motu cognisance of the case.

One of the time honoured maxims of the law is that justice should not only be done, but must be seen to be done.

The Supreme Court’s rebuttals have already been politically hijacked and can be dissected as well as Mr. Jaitley has sought to do, but it would be more of Machiavellian legalese. Given the divisive and political overtones the case has assumed, with help in no little measure from social media, the polarisation is complete and evident, just as it is for anything now these days. More than polarisation there is fear. Read FEAR.

None of Judge Loya’s family came ahead when they should have, even if it were to simply negate Caravan’s report in open court. The bench too declined to call the family or the judges who said they were with Judge Loya at the time of his death. These being just a couple of inexplicable positions taken by the bench. There was more than enough prima facie material, which the petitioners had brought on record in support of their plea. To reiterate - an independent inquiry is all that they sought. Nobody was going to be hanged for that. One does not need to be a legal scholar or a hotshot lawyer to understand this, or for that matter, the absolute retreat and silence of Judge Loya’s family in the days when the petitions and interventions were being heard.

The bench has also upbraided the petitioners for undermining the judiciary by casting aspersions on those in the bench and on the other judges whose names came up as part of the hearing. Yet the petitions well within the domain of public knowledge fundamentally argued that if the plea for an independent probe is not granted, it would result in an erosion of faith in the judiciary and within it as well, and does not bode well for the lower judiciary.

The tables stand turned and how. The irony is incredible.

In another situation this might seem like a neat sleight of hand, altogether familiar when it comes to political expediency, but now it is simply scary. The Bar and Bench stand divided like never before and the line of division is glaring and aching. Certainly the atmosphere in the Supreme Court has turned noxious. All along, in spite of all the pressures, our judiciary has always shown that it will be the ultimate leveller and a custodian of our rights and dignity. That modicum of faith is fast disappearing.

Judge Loya, who might have been afforded the chance to speak to us through his grave, has been silenced yet again. The questions however will not cease. I often look at his file photos in the news and I always think of him first as a judge and later in any of his filial capacities. Was it not enough that he had sworn to serve the judiciary and through the institution, us, the people of India? His life was exemplary in that regard, and his conduct impeccable, especially when he was assigned to adjudicate the notorious Sohrabbudin case. Do we understand that in failing an upright judge, we have also failed the very institution that is key to our democracy and our constitutional values? It is perhaps the latter that bothers me more and I have a feeling that Judge Loya would have concurred.

There are hundreds of Judge Loyas in our country who have taken the fall in the line of duty when they became a nuisance to the ruling establishment of their time. Judge Loya is certainly not an exception, but his case is. Our judiciary, and we the people of India, were offered a rare opportunity to redeem ourselves had an independent probe been permitted.

We have let that moment pass to our peril.

We stand witness to a new phase of history that has been surely and steadily taking its course, not dissimilar to other previous twisted regimes in the world. In this withering landscape we are adrift and pensive, and for now, our heads must hang in shame.

20th September, 2016, Cuttack: Justice Indrajit Mahanty – the second-seniormost judge of Orissa High Court -- hears cases and gives orders that enrich his brother Biswajit Mohanty, a well-known lobbyist for private educational institutions. Justice I Mahanty's many interim orders are in alignment with the commercial and political interests of his brother. Judges are expected to recuse himself from hearing cases where their kith and kin's interests are involved, but Justice Indrajit Mahanty overrides such niceties without batting an eyelid.

Indrajit Mahanty and Biswajit Mohanty are both sons of Barrister Ranjit Mohanty, and are both inheritors of the Barrister Ranjit Mohanty Group of Institutions. While Indrajit Mahanty is not directly hands-on in the education business, Biswajit Mohanty is chairman of the BRM Trust and runs many private educational institutes such as BRM International Institute of Technology (BRM-IIT). Biswajit Mohanty is also a trade unionist and lobbyist, who heads Odisha Technical College Association (OTCA), which lobbies for filling up more seats in such colleges, along with Odisha Private Engineering College Association (OPECA). OPECA files public interest litigations, writ petitions etc, while OTCA and Biswajit Mahanty maintain a slightly low-key presence. While their lobbying poses as championing the students' rights, bear in mind that more filled-up seats means fatter profits for Biswajit Mohanty and his fellow "educationists".

For the past 7-8 years, OTCA and OPECA are at loggerheads with Orissa state government, which is keen on making the CBSE-conducted Joint Entrance Examinations (JEE) the only criterion for filling engineering seats. The Orissa High Court division bench headed by Justice Indrajit Mahanty has leaned in favour of OTCA and OPECA.In 2014, Supreme Court stayed Orissa High Court's orders for holding a special JEE i.e. OJEE, but in 2014, 2015 and 2016, the high court division bench (which inevitably had Justice Indrajit Mahanty even while other judges, like Justice DP Choudhury and Justice BK Nayak, changed), ordered that a special OJEE (Orissa JEE) be conducted for seats remaining vacant after the JEE (Mains) counselling. 

 

It is strange that although news items regularly appear about what Biswajit Mohanty says about JEE, and what orders Justice Indrajit Mahanty passes about JEE for that particular academic year, the media takes care to avoid mentioning the two brothers names in the same news item! The public may be fooled by this conspiracy of silence, but political parties are not fooled. Recognizing the value of his demonstrated power to sway the high court, BJP lovingly embraced "Pugi-bhai" Biswajit Mohanty in 2015, amist loud drama-baazi.

Being highly educated, intellectual and articulate, Judge Indrajit Mahanty understands the conflict of interest in hearing cases tied up with his brother's business. With open eyes, Justice I Mahanty keeps dishonouring his constitutional oath of office, whereby he swore to serve the country "without fear of favour". Thankfully, whistleblowers are giving us lots of documents to build up a convincing case for impeaching this Orissa High Court judge.

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Making of the Constitution of India - A vision document.

  • The Constituent Assembly took 2 years, 11 months and 17 days to prepare the Constitution of India. Constitution of America was prepared in 4 months and that of South Africa in 1 year.
  • 296 Representatives including Dr. Babasaheb Ambedkar, Jawaharlal Nehru, Rajendraprasad, Vallabhbhai Patel, Alladi krishnaswamy , Nazuruddin Ahmed, Thakurdas Bhargava, Hridaynath Kunzru, Pattabhi Sitaramaya discussed and adopted the Constitution. These were people of intelligence, eminence and learned scholars of Constitutional law. These people were devoid of any partisan motives.
  • Total 7635 amendments were tabled while 2473 amendments were actually moved to make changes in the draft Constitution in Constituent Assembly.
  • There are 5 volumes of the Constituent Assembly debate each one of more than a thousand pages.
  • This proves that the Constitution was made by a very rigorous thought process and a thorough consideration of democratic and constitutional principles.

What has the Constitution given to people of India which never before we relished during Vedic, Puranic, Mughal or British India?

  • The Constitution of India gave the below to all Indians –
  1.     Total Independence from the British Rule
  2. India became a Sovereign, Republic and Democratic country.
  3.     Modern vision and commitment of India of ensuring the principles of Equality, Liberty, Fraternity and Justice to each citizen in every walks of  Life.
  4.     Affirming to the Fundamental rights - Freedon of speech, Freedom of practice and Propagation of Religion, Right against exploitation etal. -  Part 3 (Articles 12 to 21).
  5. Parliament, Judiciary, Executive became the pillars of Democracy under the Constitution as Supreme Law. With Judiciary keeping check on the acts passed by the parliament whether affirming under the ambit of the articles and basic principles of the Constitution.
  6.      Ensuring equal rights and safeguards to women unlike during any previous rulings in India.
  7.     Idea of glorification of Multi-culturalism under the spirit of National unity and oneness.
  8.     Single-citizenship which enables and safegurds individuals from various states to pursue the opportunities in any part of the country.
  9.     Right of Writ under Article 226 and 32
  10.      Notion of The Rule of Law
  11. Principle of One Man, One vote hence One Vote, One value empowering each citizen with equal basic value, eradicating  the previous   monopoly of power through caste order
  12.    Right to amend the Constitution under Article 368
  13. Federal Structure under normal conditions but Unitary in emergency.

Condemning the Constitution: A Treacherous act and a conspiracy of the Communal forces

  • It is a habit in this country to blame and condemn the Constitution of India for every failure in this country. People usually say that since our laws are weak and have so many loopholes that is why the guilty are not brought to justice. This however is quite far from the truth.
  • The Law in this country is based on the universally accepted principle of natural justice that even if thousand criminals are set free but the innocent should never be punished.
  • If the criminals are not brought to justice it is not because the Law is weak but that the government’s machinery i.e. the CBI, CID, police etc has failed to produce the essential evidences, proofs before the court so as to book the guilty. If sufficient proofs are brought before the judiciary the laws are so strong that there is no way that the guilty can walk free.
  • Also, people generally mistake Acts (Laws) like the Indian Penal Code, Civil Procedure Code etc as the Constitution and hence they blame the Constitution. But there is a difference between the Acts made by the Parliament and the Constitution of India.
  • Some are ignorant and therefore they blame the Constitution. But some ingenious people are deliberately with full knowledge misleading the ignorant masses trying to inflate their minds with the feeling of hatred and disrespect for the Constitution of India.
  • Condemning the Constitution and showing disrespect to it is an act of treachery.
  • It is the worst kind of conspiracy of the Communal forces disguised in the Hindutva i.e. Hindu nationality movement. It is a conspiracy to turn India into a Hindu Rashtra and make India lose its secular character and democratic system.

Constitution day recalls its Chief Architect, Dr. Babasaheb Ambedkar categorically pointing out that Indians lack this kind of Constitutional morality in the below words:

“Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people (Indians) have yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic.”

Oh Indian! Pledge to save the Basic Structure of the Constitution of India!!! Pledge to diffuse in us the Constitutional Morality!!!

Happy Constitution Day!

Guest post by Sumedh Ukey and Pratik Tembhurne.

Sumedh Ukey has done Mtech from IIT Delhi, LLB from Mumbai university and now pursuing M.A. in political science from Mumbai university. He also conducts classes on Ambedkar writings called 'India needs Ambedkar' in Kalyan, East.

Pratik Tembhurne has a B.E in Electronics from Mumbai university. He is currently working for a pvt firm. Politics watcher and constitutionalist.