Obviously obvious-oblivious–conspicuously noticeable matters

Shafeeq R. Mahajir

Obvious = clear, self-evident, plainly visible, conspicuously noticeable, unmistakable, beyond doubt, unconcealed.

Obviously = clearly, evidently, unmistakably, undeniably, incontrovertibly.

Oblivious = unaware, unconcerned about things happening, heedless, unmindful, indifferent.

Obviously Obvious-Oblivious = undeniably indifferent to and unmindful about self-evident, conspicuously noticeable matters unmistakably perceived and understood.

Now, preliminaries out of the way, what in blazes am I, a talking dictionary? You see, precision in speech ought to be a lawyer’s forte. I must be clear. To the reader, and others, those out to find something from which they can try to hang me, and the judges before whom the hangsters (yes, term I just coined!) will take the matter…unless “accelerated justice” remains fashionable.

Satyameva Jayathe is the motto. Parliament still hears… alleged lies. How alleged? Look up Parliament’s record of privilege motions for lying to Parliament. MPs routinely accuse each other of lying. We elect people to steer the country, not lie to each other. Since accusations fly across the spectrum, and none are impeached for lying to parliament, we take it neither group wants the other impeached for fear tomorrow the boot might be on the other foot. Alternatively, the allegation of lying is itself a lie…which brings me full circle. Obviously, we are oblivious to the obvious: either someone has lied, and could grace a “Correctional Facility” or someone has lied that someone else lied, in which case that someone ought to be a “State Guest” at such facility. The “State Guesthouse” being empty of either variety, leads to conclusion lies are “in”, as fashionable. Lies are intended to deceive. Any act fitted to deceive, is fraud, s.17(4), Indian Contract Act.

The President addressing the Houses read out a speech which asserted his government (sic) has taken a decision as regards a citizenship-related issue. The Prime Minister said the matter had not even been discussed. The President reads out the speech only after it is cleared by the Cabinet. For it to be cleared, the Cabinet not just discussed the matter, it approved it. Is a lie obvious, or are we oblivious to the obvious?

Voter IDs via which government is elected are, says government, not proof of citizenship. Election manifesto? Sabka Saath, SabkaVikaas. PM’s speech? Ram Mandir, done. Article 370, done. CAA, done. Is this government doing what it was elected to do? Or other things fulfilling long-standing demands of a “cultural organisation”? Secularism is sought to be jettisoned. Inclusiveness is sought to be replaced with fascism. In the process, oath on Constitution is involved. The “firangi Samvidhaan”.

What is breach of trust? 1947, people came together to found a nation, on agreed principles. Obviously some of them had other ideas. Slowly they pursued their agenda, got into position, and struck. Coup d’état. What ought to have happened then? When two antagonists are arrayed against each other, one powerful the other not, the law steps in…well, ought to step in, as equaliser, ensure both follow Constitutional imperatives, ensure level playing field.

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 But…allegedly spake BJP’s Jaitley: “by judicial verdicts post-retirement jobs are created”… “pre-retirement verdicts are influenced by desire of post retirement jobs”. Level playing fields are passé, jettisoned as colonial vestige with convention, with propriety, with process. Principles are out, agenda is in?

Case for impeachment? Yes. Great! Proceed. Sure, but… Who impeaches whom? Judges can be impeached by Parliament. Parliamentary steps can be overturned by judges. Enter…the glass house syndrome. Jesus addressed the multitude thus: “Let him who is without sin amongst you cast the first stone.” Game over. Is something obvious, or are we oblivious to the obvious?

One of the cornerstones of a functioning democracy is an independent judiciary able to freely and impartially exercise its role as protector of rule of law andguarantor of constitutional and human rights. As final arbiter, enforcer of constitutional limitations on government, an independent judiciary protects individuals against state power.

In South Africa, the judiciary is empowered to provide remedies to citizens and permanent residents whose constitutional rights have been violated even by private actors, and not just the state, an important role in South Africa where an independent judiciary is relatively new. Apartheid-era judiciary had acted as extension of executive power through enforcement of repressive, racially biased legislation. CAA demands judicial activism, not convenient “judicial restraint”.

South African judiciary is re-defining jurisprudence, important in transformation into an open and inclusive constitutional democracy. Viewed in the light of current, citizenship-related controversial legislative measures, the independence of India’s judiciary must not only be protected, it must also capture and maintain public confidence. Loss of confidence in the judicial system due to perceived lack of independence and impartiality derogates from effective working of the justice system and is destructive of rule of law.

Vested with important, wide ranging powers, the judiciary must be“accountable” to minimum standards of ethics and obvious perceptible impartiality. From perspective of citizens, perceptible non-prejudicial court behaviour is non-negotiable. Enforceable rules are mandatory to promote judicial ethics: rules visible to and enforceable at the instance of the public, confidence in the administration of justice is both maintained and enhanced.

In Canada, Judicial Independence is guaranteed by its Charter of Rights and Freedoms, Schedule B, Constitution Act, 1982. According to the Canadian Judicial Council, “when someone believes that a judge’s behaviour is of serious concern, or a judge is not fit to sit on the bench, a complaint may be made to the Canadian Judicial Council.” Under s.63(2) Judges Act, any member of the public may make a complaint about inappropriate conduct of a judge by writing to Canadian Judicial Council. By procedure, complaints are screened by Chairperson/Vice-Chairperson, Judicial Conduct Committee, comments sought from the judge the Chief Justice. If serious enough, matters are referred to a Panel of five judges, usually after fact-finding investigation by independent counsel. The Panel can cause formal investigation to determine whether to recommend the judge’s removal from office.

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What is India’s response to cascading local judicial, political, and politico-judicial events? Obviously obvious-oblivious?

Given the glass house syndrome, where Home Minister or Prime Minister or parliamentarians stand accused of lying, accusations flying from both sides show at least one side definitely lying, what falls as judicial responsibility? When does pro-active judicial conduct affirmative of constitutional principles become judicial over-reach? Can judges remain oblivious ofthis? Can judges, aware of the obvious, legitimately not exercise power vested in them to be exercised? When does “judicial restraint derogative of constitutional imperatives” qualify as judicial abdication? When does a judge merit impeachment? If majority of Parliamentarians are not displeased, do citizens have any remedy? Is the dictum ubi jus ibiremedium of Ashby vs White also passé?

Act includes omission, General Clauses Act s.3 (2). Words referring to acts extend also to illegal omissions, Indian Penal Code s.32. Whoever does any act…with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt …is said “voluntarily to cause hurt”, Indian Penal Code s.321. Whoever does any act so rashly or negligently as to endanger human life or personal safety of others shall be punished with imprisonment of either description for a term which may extend to three months…, Indian Penal Code s.336. Recall videos of people in uniform hurling veritable boulders. UP has put up posters. See any uniforms there? Someone is obviously oblivious to the obvious.

A parliament or judiciary obviously oblivious to obvious national concerns and constitutional imperatives, not only does not sub-serve national interest, it nonchalantly allows Constitutional values and principles to be undermined, to great national detriment.

Allegedly Mander was asked, “Is that what you think of us?” What people think is not material. Why they think that, is. Recall, act includes omission. Ouch.

Jai Hind

Shafeeq R. Mahajir is a well-known lawyer based in Hyderabad

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