Perspective | Oped


Pledge of peace
NWFP CM upholds Ghaffar Khan’s faith in non-violence
by Kuldip Nayar

Amir Haider Khan Hoti became the Chief Minister of the NWFP last month, he proved the point which Khan Abdul Ghaffar Khan had made before partition that a Muslim could be secular without violating the tenets of Islam. Hoti is a fourth-generation scion of the Indian National Congress.

Fall from grace
by Harihar Swarup

and Pakistan have produced many world-class cricketers but rare are the likes of Harbhajan Singh and Shoaib Akhtar to reach the pinnacle of glory too early in their respective careers only to fall as sharply as they rose.


Theatrical MPs
May 3, 2008
Privileges and duties
May 2, 2008
Power to question
May 1, 2008
April 30, 2008
Just deserts
April 29, 2008
State of peace
April 28, 2008
Indo-US interaction
April 27, 2008
Reign of the unruly
April 26, 2008
States must do their bit
April 25, 2008
Enforcing RTI
April 24, 2008
Services and sloth
April 23, 2008
Revolt by Munde
April 22, 2008

Wit of the week


Corruption in judiciary
It needs to have an Ombudsman of its own
by Fali S. Nariman

is another challenge we face both in the government and the judiciary”: Prime Minister in his address to Chief Ministers and Chief Justices of High Courts (April 19, 2008)



Pledge of peace
NWFP CM upholds Ghaffar Khan’s faith in non-violence
by Kuldip Nayar

When Amir Haider Khan Hoti became the Chief Minister of the NWFP last month, he proved the point which Khan Abdul Ghaffar Khan had made before partition that a Muslim could be secular without violating the tenets of Islam. Hoti is a fourth-generation scion of the Indian National Congress.

He pledged “peace”, a message in line with Abdul Ghaffar Khan’s faith in non-violence. It was a tribute to the relentless efforts by Asfandyar Wali Khan. He heads the ANP, which has formed the state government.

Despite America’s pressure, Hoti has brokered peace with the Taliban, clerics and terrorists operating on the northern border of the state. He has released Maulana Sufi Mohammad, Supreme leader of the banned Tehreek Nifaz-e-Shariat-e-Muhammadi (TNSM), after six years in prison.

In return, the Maulana has signed a peace agreement with the government. The agreement says that attacks on brother “Muslims are anti-Islamic”. The Maulana has also given an undertaking that his people would not indulge in violence against the army, the police and all other security forces.

This agreement has begun to work and it is a great victory for a conciliatory approach, which Khan Abdul Ghaffar had preached and practised.

At the oath-taking ceremony Hoti recalled a colonial demarcation, the arbitrary Durand Line drawn by the British in 1893. This line has kept the Pushtu-speaking population divided. It is living in two countries, Afghanistan and Pakistan.

In fact, Ghaffar’s followers, the Khudai Khidmatgars – they were also called Red Shirts – said soon after independence that Pakhtoonistan could be amalgamated into a confederation with Afghanistan.

A referendum was held and the NWFP joined Pakistan. However, a British historian, Rittenburg, collected eye-witness accounts which proved that almost every single person cast at least 50 votes each. I recall the scene at the Congress Working Committee when the party accepted a formula for partition. Ghaffar Khan said with tears in his eyes: Ham to tabhaa ho gaye (we are ruined). Before long we shall become aliens in Hindustan. The end of our long fight will be to pass under the domination of Pakistan.”

Ghaffar Khan at this stage thought of a third option – an independent State of Pakhtoonistan – in the plebiscite which, under the Mountbatten scheme, gave only two choices: whether to remain in India or join Pakistan.

Gandhi did try to intervene on behalf of Ghaffar Khan but nothing came out of it. Ghaffar Khan took the oath of allegiance to Pakistan. But its government’s repression of the Khudai Khidmatgars did not change.

Many years later, in the name of Islam, General Ayub Khan, then Pakistan’s martial Law Administer, tried to make up with Afghanistan, which sympathised with the Pathans, who wanted a unit within Pakistan to be called “Pakhtoonistan.”

Ghaffar Khan and his son, Wali Khan, who inspired the movement, told me that what they wanted was autonomy, not independence.

Pakistan had found in Ghaffar Khan’s past connections with the Indian National Congress a ready-made brush to tarnish the movement and alleged that New Delhi was at the back of it.

It is true that India sympathised with the movement more articulately whenever its relations with Pakistan would worsen. But the help was minimal.

Had New Delhi really helped the Pathans, Abdul Ghaffar Khan would not have repeatedly said in public: “You (Indians) left us to the jackals; you promised to help us but you have betrayed us.”

In New Delhi in 1969 he said that “India was never serious about Pakhtoonistan (an autonomous State for the Pakhtoons in Pakistan) but used the slogan only as a stick to beat Pakistan with.”

Afghanistan, while expressing sympathy, did not do much to help Pakhtoonistan’s cause. Kabul ran the risk of losing its own Pakhtoon areas if the movement succeeded in Pakistan.

Still Pakistan’s overtures were bound to fail because Afghanistan would do nothing to embarrass its neighbour in the north. Besides giving economic aid, Russia gave all the arms and provided training to the Afghan armed forces.

Ayub’s efforts to win friends and influence India also had the effect of raising doubts about his reliability on the US, Pakistan’s closest ally.  Nothing came out of that exercise.

My thoughts often go back to the time when I visited Charsadda, Abdul Ghaffar Khan’s village, at the invitation of his son, Wali Khan. It was a modest sitting room with austere furnishing to which Wali Khan led me. I also met Begum Sahiba. They were then fighting against the tyranny of Zulfiqar Ali Bhutto.

I recall Wali Khan telling me that the manner in which Pakistan was interfering in the affairs of Afghanistan would one day boomerang and bring the fight right within Pakistan. What he said some 35 years ago has come true.

A historian, Mukulika Banerjee, recalls how on August 21, 1947, a week after gaining independence, “Governor Ambrose Dundas dismissed Dr Khan Sahib’s ministry on orders from Governor General Mohammad Ali Jinnah.

Ghaffar (Bacha) Khan took the formal oath of allegiance to Pakistan and vowed he would not seek to hurt the new state. He sought to lobby Jinnah to grant a significant level of autonomy to the Pakhtoons, but was persistently rebuffed.”

Banerjee also says that in June, 1948, the Khudai Khidmatgar movement was banned by the Muslim League provincial government and its leaders were imprisoned, branded as “friends of Gandhi and Nehru and traitors to Pakistan.”

The Khudai Khidmatgars watched the development with disbelief when the Muslim League, regarded by most of them as a tool of the British, thrived. The Khudai Khidmatgars had given their blood for the Independence movement and undergone repression, but when the time of reward came they were pushed back to prison. Their cryptic remark was “the stick that used to beat us now has a flag on it.”

Hoti knows that the opponents of his policy of peace and pluralism will paint his ancestors as traitors. But he should remember that Dr Khan Sahib, despite a campaign of vilification against him, became Pakistan’s Communications Minister in 1954 and the Chief Minister of West Pakistan, then a single unit, in 1955.

Peace, conciliation and non-violence were the message of Khan Abdul Ghaffar. Hoti has followed the same policy because the NWFP made all the sacrifices for Independence.



Fall from grace
by Harihar Swarup

India and Pakistan have produced many world-class cricketers but rare are the likes of Harbhajan Singh and Shoaib Akhtar to reach the pinnacle of glory too early in their respective careers only to fall as sharply as they rose.

A sheer bad temper and a habit of picking up quarrels at the drop of a hat appear to have cut short their promising careers.

Harbhajan, popularly known as “ Bhajji”, is an off-spinner, becoming the first Indian to claim a Test match hat-trick, dismissing as powerful batsmen as Ricky Ponting, Adam Gilchrist and Shane Warne in a row.

Having the distinction of winning the prestigious Arjuna Award, he was barely 20 years old then.

Shoaib has been recognised as the fastest bowler in the world, earning him the name “ Rawalpindi Express”. He set a world record by clocking 100mph twice.

Bhajji demonstrated his bad temper recently when he slapped his team-mate Shanthakumaran Sreesanth. He was handed over an 11-match ban from the domestic Twenty-20 after being found guilty of the misdeed.

Sreesanth was seen weeping inconsolably in full view of TV cameras. The ban will cost him about 370,000 pounds. After two-hour hearing, he realised “it was a big mistake”, but it was too late.

Remember how Bhajji received three Test-match ban for racially abusing Australian cricketer Andrew Symonds, calling him a “big monkey”.

Five years older to Bhajji, Shoaib has never been far from controversies. His career has been plagued with injuries, controversies and accusations of bad temper.

After shooting to stardom at a young age due to his devastating pace, he became more interested in glamour rather than cementing his career.

Although he eventually crossed the 100mph barrier, his attitude took its toll on his reputation as well as his fitness. After a poor showing in the 2003 World Cup, he got involved in a verbal spat with the then captain Waqar Younis.

In a triangular series in 2003 in Sri Lanka, he was caught tampering with the ball, making him the second player ever to be banned on ball-tampering charges.

The same year he was banned for one Test and two ODIs for abusing Paul Adams in a match against South Africa.

On April 1, 2008, Shoaib was banned from cricket for five years for breaking the players’ code of conduct. Considering his age, this was thought to be the end of his career.

He was also banned from playing for the Indian Premier League (IPL). On top of this, the Pakistan Cricket Board is now intending to sue Akhtar for Rs 200 million as a result of making allegedly defamatory remarks over his five-year ban .

Harbhajan’s road to glory has not been an easy one. The 20-year-old off-spinner from Jalandhar has been plagued by allegations of a jerk in his bowing action.

He was bad-tempered too. After almost losing his job with Indian Airlines and saddened by the death of his father, Bhajji was reborn as a cricketer.

Training doubly hard, the fiery youngster readied himself for the Australia tour. In the absence of ace leg spinner Anil Kumble, India was desperately on the look out for a strike bowler.

Bowling with high-arm action, extracting good bounce and considerable turn, Bhajji destroyed the Aussies by scaling 32 wickets in the three test series.

His performance had outdone the previous best wicket tally for an Indian in a Test series against Australia, beating legendary left arm spinner Bishen Singh Bedi’s haul of 31 wickets in 1977-78 in Australia.

It is sad indeed to watch the careers of two very promising cricketers — Harbhajan and Shoaib Akhtar — virtually come to a grinding halt because of bad temper. How one wishes they could control their fiery temper.



Wit of the week

It is a memorable moment for Team Isro. The rocket stuck to its path without any deviation and delivered all the 10 satellites in their intended orbit.

— G Madhavan Nair, Head of Isro

I have turned the lights off out of shame. Defiance of the chair has become a disease. I don’t know whatever you are fit to be here. On what basis are people electing and sending you here? Ask yourself if you are serving the country.



— Lok Sabha Speaker, Somnath Chatterjee

When Constitutional authorities like the Prime Minister and the Speaker are covered by the Right to Information Act, there is no question of any exemption.

— E.M.S. Natchiappan, Head, Parliamentary Standing Committee on Personnel, Law and Justice

We want the Prime Minister’s Office and the government to eschew all temptations of being irresponsible towards the plight of the people.



— Sita Ram Yechuri, Politburo member, CPM

It would be in public interest to provide information about parties…to strengthen the fading faith of citizens in leaders.

— A.N. Tiwari, Information Commissioner

Sukhbir is impetuous, young, inexperienced. His performance at the Centre was not up to the mark. He should first learn the trade. It’s like that little boy-Bikram (Majithia). You make him a Cabinet minister overnight and he doesn’t know how to function. It’s not the job of a minister to keep shouting and jumping up and down like a little Jack in the box.


— Capt. Amarinder Singh, former Chief Minister

We have taken the decision (to sack KPS Gill) after discussions with former Olympians, captains and all those who’ve played for India… Gill was there throughout. It was unanimous.



— Suresh Kalmadi, IOA President

Whatever happened was grossly wrong. I got punishment for whatever I did but the Board has always treated me like its child. I hope they will continue to support me. When I come back to play, I will bring smiles to your faces.

— Harbhajan Singh

In so-called encounters the justification offered by the police on Naxals is that if we don’t kill them they will kill us.

— Justice G.S. Singvi, Judge, Supreme Court



Corruption in judiciary
It needs to have an Ombudsman of its own
by Fali S. Nariman

“…. Corruption is another challenge we face both in the government and the judiciary”: Prime Minister in his address to Chief Ministers and Chief Justices of High Courts (April 19, 2008)

I belong to a profession where there is the least transparency – clients do not know what mumbo-jumbo their black – coated representatives argue in court and the general run of people cannot understand the long judgments given from the Bench by men and women in robes.

The judiciary – especially the higher judiciary – has put itself up on Cloud Nine, wrapping itself in a cloak of inviolability. How are Judges appointed? Why are they appointed? What are their short-comings? How are these dealt with? This is met with the condescending answer: “It is none of your business to ask us questions – we know what is best for the system”.

Any attempt at exposure is visited with retribution in the form of imprisonment or fine for contempt of court. The media – the journalists – find themselves greatly constrained: reminiscent of a story – a true story – related at a conference held in the garden city of Bangalore many years ago. A prominent American journalist there recalled how he had been “cited” by a US court for reporting a pending case in colours too fanciful and garish for the presiding Judge. He brashly told the Federal Judge “We want no accommodation from you. The First Amendment is on our side. We will fight it out.” The Judge quietly responded, “Have it your way – but remember, who the umpire is in this battleground”!

Despite one or two recent judgements of our Supreme Court, the umpire in India still has a dark and forbidding countenance

And regrettably – with a few and honourable exceptions – the fraternity of the Higher Judiciary in India tends to stick together when anyone speaks of any wrong doing amongst one of them – even though they themselves are convinced of that wrong doing. There is, what I would respectfully describe as a Spirit of Trade Unionism, that pervades the Higher Judiciary.

I saw this happen when a few years ago there were reports about two or three sitting Judges of one of the High Courts in the South; they had been reportedly “found” by some journalist in a shady joint outside the city. Reports of this were published but were attempted to be scotched. But the Chief Justice of India then very rightly directed the Chief Justice of another High Court to personally investigate the matter.

When that Chief Justice of the other High Court took on the job, contempt notices had already been issued to a large section of the Press in the city so that they were not quite sure whether if they revealed what they knew to the Inquiry Judge – it may not be used against them!

The so-called “scandal” by that time had blown up out of all proportion – by rumours. Everyone – almost everyone – seemingly knew, but no one would tell. Since the leading newspapers in the country were hauled up for contempt they went to the Supreme Court. I was appointed amicus by the court and a wise Chief Justice – Chief Justice Khare – saw through the veil of secrecy. He passed an order staying all proceedings in contempt.

I am afraid that the media’s role in judicial corruption – so far as India is concerned – has drawn a blank. We have to try different measures to root out judicial corruption.

Stopping work being given to errant Judges is an ad hoc measure. It is time a system of transparent judicial self-regulation is institutionalised – not left to be dealt from case to case, by a group of Judges in a High Court or by a group of Justices in the Supreme Court.

What do you do in when a Judge on becoming CJI and occupying the Office for just there weeks after which he has to retire because he has reached the constitutional age of retirement of 65 gets the Registry of the Supreme Court to place on his board out-of-turn a couple of cases that had been then pending – know as the Vansapati Scam cases – and after a brief hearing holds that there was no case for the accused to answer, and acquits all of them? That’s what he did. That’s what happened – some years ago.

But at that time – more importantly – what was the response of the Supreme Court of India? What did it do? What did the successor Chief Justice of India – Justice Kania do? He did what all right-thinking Judges should do. Without fanfare, he quietly directed that the Vansaspati cases in which judgments were already rendered be put up for review and recalled – on merits. He constituted a Bench of three senior-most Judges, had these matters reargued, reheard – and the result was of course a reversal of the judgment – but strictly on merits. The Supreme Court did this all on its own and in open court and it brought great credibility to the functioning of our country’s highest court.

But contrast this with the problem that was faced when very recently – and I say this with a sense of responsibility though with a tinge of great sadness – when a former otherwise very able and very competent Chief Justice who also retired (just before the present Chief Justice took over), had, in a Bench, decision (presiding over that Bench) enforced strictly the development control laws in Delhi.

Premises were ordered to be rigorously sealed, houses were directed to be pulled down that were not in accordance with the rules etc. All this excited much attention but it was all to the good. But then – after a while – there were allegations openly made in the Press (with documentation) suggesting that there had been more to it than met the eye.

The allegations were to the effect that whilst stopping commercialisation of residential areas this particular retired Chief Justice had three commercial companies owned by his sons running from his official residence in Delhi. The records of the Registrar of Companies bore witness to it. A member of the Bar (dutifully) complained that this was “scandalous” and that since it maligned a former Chief Justice of India, it necessarily tended to lower the image of the judiciary in the eyes of the common man.

The newspaper report was put up before a Bench of two Judges of the Delhi High Court, who promptly issued notice suo motu (“on their own”) to the editor of the publication, and to the printer and publisher of the newspaper for scandalising the court – even though it concerned a retired Judge – a Judge no longer in office. Perhaps they were right because stories about what a Judge did whilst he was sitting Judge even when he has retired is really to besmear the image of the Judiciary as a whole.

The newspaper also carried a cartoon by a cartoonist, which depicted the former Chief Justice of India in his robes holding a bag with currency flowing out – with a man sitting on the sidewalk saying: “help – the mall is in your court” – which the Judges of the Delhi High Court also thought was aimed at lowering the image of the judiciary. Of course it was. So the Bench of the two Judges of the Delhi High Court issued notice to the editor, printer, publisher, cartoonist (the whole lot of them) to show cause why action in contempt be not taken.

The matter was bravely argued for the newspaper by one of our courageous senior lawyers Mr.Shanti Bhushan. He said that the material brought on record was ample proof of the fact that the sons of that particular retired Chief Justice were beneficiaries of sealing of commercial premises, and his plea pointed to the impropriety of a Chief Justice sitting on cases and passing sealing orders of premises in which commercial activity was being conducted to promote (as he put it) his own sons businesses.

The Bench of two Judges of the High Court said that “all this tended to erode the confidence of the general public in the institution itself” – besides, they said that “it was a slur on the other Judges of the Supreme Court who were parties to the order passed by the then Chief Justice of India.”

Well, when news of this, and of this case got around, please notice the reaction of two distinguished former Chief Justices of India: Justice Verma and Justice Khare. They said openly, and this was widely reported that the facts did require investigation by an independent body – that the former Chief Justice of India must submit to such an inquiry and clear his name.

Regrettably he did not clear his name except for an article he wrote in the Times of India. But how was this individual treated? How does one treat one’s erstwhile colleague who has fallen from grace – was he left severally alone by his peers? Regrettably he was not. On occasions when this gentleman was invited to official parties sitting Judges of the court treated him as one of their old trusted senior colleague and dealt with him as if no such allegation had ever been made!

It is a common human failing amongst us all: that we treat all persons with civility – even those who may have indulged in some questionable conduct. Men and women who are otherwise upright in their own behaviour think it bad form to slight someone or ignore someone against whom even credible charges have been levelled.

So to continue with the story the Judges of the Delhi High Court held that clients of Mr. Shanti Bhushan - editor, printer, publisher and the cartoonist – were all guilty of contempt and posted the matter for punishment after ten days. But thank God we have a Supreme Court. Before the matter could be put up for sentencing in the High Court of Delhi, a Bench of two Judges of the Supreme Court (presided over by one of its very senior Judges) admitted the statutory appeal and directed that the punishment imposed by the High Court would not be executed without leave of the Supreme Court – there the matter rests.

But grateful as I am to the Supreme Court, I must confess these are just sporadic fire-fighting measures. In my humble view this is not how judicial corruption in high places should be tackled. There is another way. Such measures have to be institutionalised. And they can be only institutionalised without damaging the general credibility of the judiciary as a body by having in place (with almost immediate effect) an office called the office of “Judicial Ombudsman”.

It can be filled by one, two or three persons – preferably one. The holder of this office would be the recipient of all complaints. The Judicial Ombudsman would make a report in writing, even taking up matters on his own, to the sitting Chief Justice of India with regard to the particular judge – either of the High Court or the Supreme Court – against whom the complaint is made, after making due inquiries, and upon receipt of that report it would be incumbent on the Chief Justice of India to see that no work was assigned to that particular Judge until all the present dilatory processes of the current law of impeachment are gone through.

I believe this is the only way in which we can accommodate the need for keeping clean and bright the image of our High Judiciary.

Once people know that legitimate complaints are being entertained in confidence, they will be made to the authority concerned in confidence. And once they see something is done we will no longer have to see the sorry spectacle of scandalous and un-substantiated allegations being made openly in the press about individual Judges.

Based on a recent address the writer delivered at the Transparency International’s Annual Function in New Delhi.


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