Sabarimala: It has become a very difficult problem, Fali Nariman [Watch Video in YouTube]
Fali Nariman had said this in the video:
Nariman was also critical of what he called the lack of “Collegiality” amongst Supreme Court judges.
“The importance of Collegiality amongst judges is a very important thing which I have found lacking. Unfortunately, the difficulty is when Supreme Court judges sit in Benches of three, five and seven. But they don’t sit and discuss as to what is to happen. Or that ‘you write for the majority and you write for the minority’. While that happens everywhere in the world, it does not happen here. They (Supreme Court judges) all come on the same day and pronounce the judgment. Nobody knows which judge has dissented [until then].”
We know that, not so long ago the present Chief Justice of the Supreme Court of India and three other then senior Justices had openly alleged that the then Chief Justice, being the Master of the Roster, was acting arbitrarily and assigning high profile cases to juniors and cold-shouldering the seniority of those peeved Justices! So much for the simmering that goes on within the Justices of the SCI. It also brings out an important point that the puisne Justices are not among equals qua the Chief Justice; secondly that there is an unwritten but a felt seniority and juniority among the puisne justices too. Consequently the only forum where they have a right is to register their opinion on an issue before them when they find themselves as a member in the bench.
From what Mr. Fali Nariman talks of Collegiality, one needs to understand the meaning of COLLEGIALITY. It derives from “Colleague”. Notwithstanding the root of the word, one has to see if a Justice of the Supreme Court of India, who has been vested with privileges and immunities and when being a member of a Constitutional Bench be bound by Collegiality or as Justice Oliver Wendell Holmes described “be as scorpions in a bottle?”
Predominantly a Constitutional Bench is set up to review an existing precedent or in any case to LAY DOWN A BINDING LAW for the times to come. Is it better that each Justice should articulate the legal grounds or the principles or even the weight of the exigencies on which he bases his ruling; or to use his authority as a Justice of that bench and concur with the majority or dissent therefrom and be a footnote to that judgement authored by another Justice?
I believe that the former is better for a democracy which is built by the people brick by brick made of the reasonings given, emphasis laid, and delivered through those binding judgements.
As per an article titled UNDERSTANDING COLLEGIALITY ON THE COURT
by Frank B. Cross and Emerson H. Tiller, “…After a majority opinion author is assigned, he or she circulates a draft opinion, after which other members of the Court circulate bar- gaining statements, agreeing to join the opinion if certain changes are made.Subsequently, a Justice may circulate a dissenting or concurring opinion in hopes of persuading other members of the Court, or affecting the content of the majority opinion, and this action is not
The above is based on the American model, where the ideological leanings are openly stated and mostly reflected in their rulings.
Of course, there is a space where the justices could confabulate on the perspectives and opinions articulated by the justices before delivery of the majority opinion, but doing so in the private would not be an ideal situation as how much pressure could be brought on puisne justices to go with the majority could become a matter of speculation in the media.
Supposing a justice were to take a position and later gets ‘convinced’ by the persuasion of a minority opinion Justice and if it were to tilt the verdict pronounced in the court earlier, the principle of pronouncing in the open court would be a travesty.
Alternatively, if there were to be a lone dissenting Justice and if he were to change his opinion after collegial confabulations the judgement would become a unanimous one, without the point of dissent neither brought out in the judgement nor explained on what line of reasoning the change of mind took place.
One cannot lose sight of the fact that our system is adversarial and in the name of dispensing justice the role of the courts shouldn’t compensate for the inadequacies of a lawyer and thereby make the adversarial system an inquisitorial one.
I personally feel that it would be best to leave each justice to hear and clarify points in the open court but when the pronouncing of the judgement takes place, each should present his perspective and the basis of his/her opinion so that even an observer would feel that justice was indeed done. This collegial confabulation may not be the best for our system especially because of the variegated culture and different priorities of each state.
Archive for November, 2018
Socrates was highlighted and brought to public view beyond the territory in which he lived by two persons, one was Plato and the other one was Xenophon.
Plato is read well, whereas Xenophon is not read much for reasons more than the fact that he did not have an illustrious disciple like Aristotle.
Xenophon is supposed to have been turnpiked by Socrates and asked: How men are made virtuous?
When Xenophon pleaded ignorance, much as the Biblical command of Jesus to Matthew at the customs, is supposed to have stated: FOLLOW ME & LEARN‼️
This Xenophon became Socrates’ follower and wrote many books, which have mostly survived and the one book called Apology deals with the trial of Socrates and the defence.
The interesting part of all this is that Xenophon being the head of 10,000 men of the mercenary band, had gone on a war and was actually absent from Athens at the time of the trial and execution of Socrates. Yet, what Xenophon wrote of Socrates, is accepted by historians as true.
The point I am labouring at is that one need NOT BE A WITNESS to the events to gather facts from those who were present at the scene and present those facts as History. Therefore on a comparative basis, much of the History wouldn’t measure up to the touchstone of historicity if the same yardstick which is applied to Jesus were to be applied to those historical figures.
Like Plato and Xenophon to Socrates, the persons who were in a position to write about Jesus were John and the other 10 disciples who survived the crucifixion. But it was not any of these who brought out the teachings of Jesus as much as the Evangelist Paul. An erudite Jew, with a Roman citizenship. This Paul of Tarsus, earlier called Saul, wrote on Jesus and his teachings by the mid fist century of the Common Era. The evangelism of Paul made enclaves of Christianity in various cities of Greece and the Asia Minor. That is History. A record not disputed. Paul had not met Jesus while Jesus was in the flesh, however Paul says that Jesus appeared to him. This is almost a few years after Jesus’ crucifixion, if we take that as a fact, then Pontius Pilate, who as per historical records was the Roman Prefect in-charge of Judaea executing the functions on behalf of the Roman emperor, was contemporaneous to Jesus historically.
But why was not Jesus’ name not mentioned in the records?
I believe that not only the Roman Prefect was not interested in perpetuating the status of persons who could be a threat to the the Roman Empire; even the Jewish Religious heads were against the memory of Jesus, consequently all records must have been destroyed so as to gloss over the empty tomb issue.
Further, looking at Jesus from the synoptic Gospels, Jesus was then a popular local hero shuttling between Galilee and Judaea, at variance with the established Jewish faith and its informal custodians like the Pharisees and the Scribes and it wouldn’t have been anybody’s case to glorify his deeds in the flesh or to perpetuate the memory of Jesus. In fact the Jews then being under the Roman vassalage, the local authorities were interested in maintaining status quo lest a worse fate befall them. Therefore, to look for contemporary references either in the Roman history or the Jewish history wouldn’t be of much avail.
At least one and a half decade had passed before Paul starts his epistolary venture, before the Gospel writer Mark wrote his Gospel.
Therefore the forerunner to the Gospels were those 13 epistles written by Paul the evangelist to the various branches he had established around Greece and Asia Minor. These pockets of Christian Faith coagulated into the Church. These are facts.
I’d like to excerpt Schopenhauer here from his essay WISDOM OF LIFE:
“We can thus understand how it is that the vainest people in the world are always talking about la gloire, with the most implicit faith in it as a stimulus to great actions and great works. But there can he no doubt that fame is something secondary in its character, a mere echo or reflection—as it were, a shadow or symptom—of merit: and, in any case, what excites admiration must be of more value than the admiration itself. The truth is that a man is made happy, not by fame, but by that which brings him fame, by his merits, or to speak more correctly, by the disposition and capacity from which his merits proceed, whether they be moral or intellectual. The best side of a man’s nature must of necessity be more important for him than for anyone else: the reflection of it, the opinion which exists in the heads of others, is a matter that can affect him only in a very subordinate degree. He who deserves fame without getting it possesses by far the more important element of happiness, which should console him for the loss of the other. It is not that a man is thought to be great by masses of incompetent and often infatuated people, but that he really is great, which should move us to envy his position; and his happiness lies, not in the fact that posterity will hear of him, but that he is the creator of thoughts worthy to be treasured up and studied for hundreds of years.
Therefore, it was the content of Jesus’ teachings which Paul gathered from the Apostles which form the bulk of his exhortations to those pockets of Christianity which Paul established, which formed the kernel and substance of Jesus’ sayings and lent to the appeal and coagulation of the movement called the Church at Antioch.
In the case of Jesus the man, the man Jesus died and His ideas sprouted and spread. Whether he was crucified, buried and resurrected could be a matter of faith but that the Faith led to the discovery of tracing those teachings to Jesus, which is discovery of a fact from an Idea.
That atoms existed was an Idea even before it was discovered and proved and its structure hypothesised though chemistry. Likewise, Jesus was a discovery and that discovery is a fact that its origins are not concentrated at one point does not take away the fact that it was historical.
If Imran Khan could rely on the revelations made by the Angel Gibrel to the Prophet Mohammed as ‘facts’ and implicitly believe in those facts as historical, he should at least concede to the fact that Jesus, Isa Nabi, for him and refrain from questioning the Historicity of Jesus.
I may not agree with the belief that Jesus was merely a prophet, but Mr. Imran is bound to believe as a fact that Jesus was born, lived a Prophet and would return.
At least each man is to be judged by the same yardstick which he uses, for Jesus said:
1 Judge not, that ye be not judged.
2 For with what judgment ye judge, ye shall be judged: and with what measure ye mete, it shall be measured to you again.
3 And why beholdest thou the mote that is in thy brother’s eye, but considerest not the beam that is in thine own eye?
(Matthew Chapter 7)
‘Did he know her?’ Son asked.
‘Not in the biblical sense’ the father said.
‘Then what is she MeTooing about?’ Son asked.
‘He wanted to know her – in the biblical sense’ the father answered.
‘So what’s wrong in the asking?’ The Son asked.
‘She felt that it was in that asking that her modesty was outraged!’ The father answered.
‘Outrage of modesty in the asking?’ The Son lamented and added: “ Did she say No?”.
‘Outraged, not in the asking, but that he thought of her the type who could be asked.’ Said the father.
‘Now she has to prove to her paranoid spotlight syndrome of her youth that she didn’t mentally succumb later on to that asking, the answer for which was kept in abeyance then! – the father added.
An unuttered NO of the youth, haunts her well past her youthful body‼️
There was this Captain of a ship which set sail from a port to another somewhere in the Middle East. On the way, a storm brewed and all the passengers, the crew and the Captain realised that their journey was in jeopardy and escaping with their Lives became their ONLY PRIORITY. Bad Times don’t support our pet theories and ideologies, consequently, the Captain of the ship issued an edict as follows:
So the shipmaster came to him, and said unto him, What meanest thou, O sleeper? arise, call upon thy God, if so be that God will think upon us, that we perish not.
The Shipmaster was the Captain of the ship proceeding to Tarshish from Joppa and the sleeper was Jonah, a Jewish Prophet, running away from the instructions of his God to proceed to Nineveh.
The Captain says: O sleeper? arise, call upon thy God, if so be that God will think upon us, that we perish not. The Captain’s personal beliefs notwithstanding chides the sleeping Jonah to call upon HIS GOD and doesn’t even ask the sleeping Jonah to identify his religion or the name of the God he worshipped.
The prayers sought was for the storm to subside but the answer came from Jonah, who felt penitent and told the Captain to throw him overboard. Sure enough the crew, Captain and the passengers threw Jonah out and sure enough the storm abated.
Well it is not uncommon to say that God had plans, rather other set of plans to deal with the errant Jonah. Doctrinally that ‘plan of God’ is odious to my ears and thought. God is God and Time is in His hands. God could do anything, so why plan? Plan is a forethought of a
possible future. When it is God who creates ‘future’, where would be the necessity of a Plan? Plan is an anthropomorphic idea laden with the deficiencies of human understanding. Why ascribe that to God?
God send a fish which swallows Jonah and he his transported to another location and he finally lands up in Nineveh.
The point of this blog is that, when absolute necessity arises in one’s life one may surrender to the will of God, whom he or she believes. But as a Captain of a ship, having the responsibility of the ship, the goods in the ship and the human lives involved it is the DUTY OF THE CAPTAIN not to ascertain the names of the gods those humans worship but to exhort every human in his ship to pray to HIS OWN GOD. That full-throated participative prayer is what a Captain is to exhort and hope for a relief.
The prayer was not answered in the way it was imagined. Till Jonah was offloaded, the storm did not subside. The proposal itself came from the person who was to suffer the consequences of his own proposal. That is how the prayers of those who called their own God’s was answered.
My best example for Secularism is the Captain of that ship caught in the storm with Jonah.
Getting human participation retaining their own beliefs is more important than proselytising humans in distress or cataloguing them during distress.
Like that Captain, leaders ought to shed the divisive distinguishing mapping of people and exhort them to give their best.