Justice Alam

Justice Soni addressed a letter ( and not a PIL which would have made him more accountable to justify his charges) to the Chief Justice of India (who ignored the letter); Here is the text of the complaint
http://www.scribd.com/fullscreen/101201442?access_key=key-29i70au7u3kc82uopxax


The speech of Justice Alam is here

The Idea of Secularism and the Supreme Court of India

Justice Soni's petition to Chief Justice against Justice Alam raises the following points.

>> He defied his oath of office in delivering The Gandhi Foundation 2009 Annual lecture on "The Idea of Secularism and Supreme Couurt of India" at London.

The oath goes "...that i will duly and faithfully and to the best of my ability, knowledge and judgement perform the duties of my office without fear or favour, affection or ill will and that I will uphold the constitution and its laws". How his speech violates his oath is beyond comprehension.

>> The assertion by Justice Alam that the case of a minority organization Islamic Academy of Education was referred to a larger bench so that the Court may not be bound by any of its earlier judgements and at the end of the judgement "minority rights appears to be considerably restricted and ultimately Islamic Academy was relegated to back and a non minority private college came to the fore" is a direct allegation against the integrity of the Apex Court in general and the Chief Justice of India in particular. 

Justice Alam outlines his speech in the following words "I will try to cover, very broadly three areas; one concerning community based rights or minority rights and how in recent years the Court has tended to give priority to individual rights and freedoms over community based rights; two how the Court has perceived secularism and how in some of its later decisions it has tended to take a mono-culturist rather than a pluralist view of secularism and third, how the Court has tried to regulate the State's intervention in religious affairs and in the process has itself assumed a highly interventionist role."

By community based rights he means the rights as guaranteed under Article 30 of the constitution (Right of minorities to establish and administer educational institutions) and by individual rights he means the ones guaranteed under Article 25 of constitution (Freedom of conscience and free profession, practice and propagation of religion)

He then gives an example of a Muslim boy who was expelled from a Christian minority school for keeping a beard. His expulsion was upheld by a bench of the Supreme Court but later another bench of the SC overruled the expulsion of the student.

"This single case seems to exemplify the difficulties faced by the Court in dealing with two competing constitutional rights. ..the first Bench obviously gave precedence to the group right guaranteed by the Constitution to a religious minority, in this case the Christian management of the school. The second Bench, on the other hand, deemed fit, in the context of the case, to uphold the right of the individual, the Muslim boy. This deep dilemma seems to run through the decisions of the Supreme Court on the issue of cultural and educational rights guaranteed by the constitution to religious minorities."

Justice Alam draws attention to Kesavananda Bharati case where the Supreme Court has held that the Constitution has certain fundamental features which are beyond the amending power of legislature even and held that Secularism was one such feature.

He refers to  Re.Kerala Education Bill which came to SC under Presidential reference." In dealing with the Presidential Reference the Supreme Court gave a very expansive interpretation of the right under Article 30. It held that the right under Article 30 was not restricted only to institutions set up for conservation and promotion of culture, language or religion. A religious minority could establish and administer an educational institution of any kind depending upon its “choice”. In exercise of the right guaranteed under Article 30 a minority community was free to set up a primary school as well as an institution of higher education teaching Arts, Social Sciences, Natural Sciences or even professional courses"."There was at least one dissenting voice (of T. L. Venkatarama Aiyar, J.). He took the view that Article 30 was primarily intended to protect educational institutions established for the conservation and promotion of the culture, language or religion of a minority group. Aiyar J. held that Article 30 created a purely negative obligation on the State and prevented it from interfering with minorities living their own cultural life as regards religion or language. Aiyer J. observed: “Now, to compel the State to recognise those institutions would conflict with the fundamental concept on which the Constitution is framed that the State should be secular in character.” "

"The two views directly opposing each other and both relying upon the principles of secularism that were manifested in Re. Kerala Education Bill appear to run through the decisions of the Supreme Court on all aspects of secularism."

Then Justice Alam refers to a recent interview given by Professor Amartya Sen who stated that in 1991-92 the Indian State was over-extended in certain areas and under-extended in some areas like education and healthcare. The vacant space in the two areas was filled up by private investors. A large number of private colleges, teaching professional and job oriented courses came up in different parts of the country. Admission in these colleges were taken without much regard to merits and mostly on payment of large amounts as donation /capitation fee. This development, on the one hand, had caused much distortion in the system of higher/professional education in the country and on the other hand there was growing pressure from the private investors in the area of education to gain legitimacy.

The question arose whether Education could be treated as any other occupation Then the Supreme Court  prohibited capitation fee by any name whatsoever and devised a scheme for admission into private professional colleges in terms of which the private management could fill up only fifty percent of the seats and the remaining fifty percent would go to students recommended by the state government purely on the basis of merit. A question then arose how the two quotas, one fixed in St. Stephen’s College and the other in Unni Krishnan would work out in the case of minority institutions.

It was in this context that reference to the Islamic Academy arose. Let me quote from Justice Alam - "A minority organization, called Islamic Academy of Education brought the issue to the Supreme Court and its case was referred to the larger bench. Here a number of non-minority private colleges also joined the issue who were mainly interested in getting the Unni Krishnan scheme of admission undone. Ultimately Islamic Academy was relegated to the back and Pai, a non minority private college, came to the fore."

"Pai was heard by a bench of eleven judges so that the Court may not be bound by any of its earlier judgments. In Pai it was for the first time the question of minority rights was not considered independently and it got mixed up with cases of non minority private colleges."

Justice Alam does criticize the decision. But then over next three years two more benches looked into the case to clear doubts and anamolies arising out of this judgement.

"It also needs to be pointed out that the three decisions indeed brought about a basic shift in the Court's position in regard to the right of the religious minority to establish educational institutions but the greater and equally significant shift was towards privatisation of education"

We have not yet heard the last word on this with recent SC ruling on RTE. But now it has gone beyond minority rights.

From Justice Soni's petition against Justice Alam

>>Mr.Justice Alam feels that money spent on Hajj subsidies is nothing as compared to millions spent on Hindu fairs etc..
>>Mr.Justice Alam's sarcastic assertion "Amidst all this a majority of Indians honestly believe that they live in a secular country" expresses his wilful belief that India is not a secular country.

Now Justice Alam says "For every Muslim going for Haj, the Government of India spends, from the tax-payers money, a substantial amount as air fare subsidy". He also mentions the crores that are spent in Kumbh Melas and other fairs. In his words (I fail to detect any sarcasm )-
"Amidst all this a majority of Indians honestly believe that they live in a secular country. And they feel quite comfortable in the thought."
"From the random illustrations presented before you it is not very difficult to see the position of religion and the nature of secularism under the constitutional scheme in India. As regards religion, the Constitution of India provided for a model that was already lived by, almost to perfection, by one of the greatest Indians of all times. For, who could be more deeply religious and at the same time more secular than Mohandas Gandhi? The Indian Constitution, unlike the First Amendment of the United States Constitution does not have any provision proscribing the making of any law respecting an establishment of religion. It recognizes religion as a source of law. With a view to protect minority rights, it confers affirmative social and cultural rights on religious groups. It guarantees the freedom of religion but enables the State to regulate religious practices on certain limited grounds."
"Thus under the Indian Constitution secularism involves a plural establishment of religion with the State maintaining a principled distance or, as some call it, equidistance from all religions. The Court is called upon, in a variety of ways, to oversee and regulate the principled distance that the State ought to keep from religious establishments and the nature of State intervention permissible in religious affairs."

As far as Justice Alam's criticisms of Manohar Joshi case( setting aside disqualification by Bombay High Court of candidates elected on basis of 'hindutva' and SC's rulings on saffronization in Aruna Roy case or observations on Shah Bano case are concerned, they reflect the secular view point. As new cases come up Supreme court will have the opportunity to set right many things.

As far as charges levelled against Justice Alam for favouring Teesta Setelvad, Javed Akhtar,etc. less said the better.