The Executive versus Judiciary

Posted by Dr. Gopal Unnikrishna Kurup

 The Executive versus Judiciary

 Independence of the judiciary means that the judiciary as an organ of the government should be free from influence and control of the other two organs i.e. the executive and the legislature of government. The doctrine of Separation of Powers provides for a responsibility to the judiciary to act as a watchdog.

Our constitution  just talks of the independence of the judiciary but it is no where defined what actually is the independence of the judiciary. Art. 50ays down that the state shall take steps to separate the judiciary from the executive in the public services of the state, but how exactly is unstated.

The independence of the judiciary, raises concern about the latent dangers of the judicial independence and there arises the importance of “Judicial Accountability”. Law Commission had recommended for the inclusion of a whistleblower provision, aimed at protecting those making complaints against judges, also dealing with the removal of judges of the Supreme Court and High Courts. Judicial Accountability and Judicial Independence have to work hand in hand to ensure the real purpose of setting up of the institution of judiciary.

Accountability of judiciary also evokes the question of supremacy. Only one that is supreme to the other can enforce accountability. Who is supreme, out of the commonly mentioned: the Constitution, the Parliament, or the Judiciary? The answer is none. The real power is that of the people who are therefor the supreme.The Constitution is a creature of the people. In fact the preamble of the Constitution starts with the words; " We the people of India" have resolved to have this Constitution. .".

People are, in a democracy represented by the  elected members of the Parliament and not by the selected members of the judiciary. It is because of this overriding factor that Arun Jaitley characterized the recent judgement overturning the National Judicial Appointments Commission as unconstitutional, as " tyranny of the unelected"

The Constitution of India,  makes a distinction between statutory law and constitutional law and prescribes a special procedure for amending the latter as incorporated in Article 368. The Supreme Court held ( in Keshavananda Bharati v. the State of Kerala ) that Article 368 does not enable Parliament to alter the ‘basic structure’ or framework of the Constitution. The term basic structure is a vague and general term and the Judges themselves did not offer a common agreed meaning.
    Some included Fundamental Rights and federation in the concept of basic structure while others saw no limit to the amending power of Parliament. The Constitution (Forty-second Amendment) Act, 1976, provided that Parliament had full power to amend the Constitution and no amendment made under Article 368 could be questioned in any Court on any ground. However the latest position is that the validity of the Forty-second Amend­ment was questioned and in May 1980, and the Supreme Court struck it down. There are many who see this as judicial activism

Together with the independence of the judiciary, there must also be accountability and restrictions   In order to ensure smooth functioning of the system there must be a right blend of the two. There has to be  a more explicit definition of what is basic structure of Constitution, in the light of which the latter judgement needs to be reviewed.

The 'Cold Start' and the Stupid Start

Posted by Dr. Gopal Unnikrishna Kurup

 The 'Cold Start' and the Stupid Start

 

 India has adopted dangerous military doctrines. This will compel Pakistan to take several counter measures to preserve credible deterrence, says Pakistan Prime Minister Nawaz Sharif

What this means ,or portends for India, can be seen in the statement of a senior Pakistani official earlier in the build up to Obama- Sharif meeting,  according to which Pakistan’s battlefield tactical nuclear weapons were aimed at offsetting India’s “cold start” military doctrine of lightning fast, all-in offensive using its overwhelming conventional warfare advantage. That was the context of  Sharif’s reference to “credible deterrence.

Whether this, together with his warning of real possible escalation of hostility by India, was an overshot or crying-wolf antic, to push Obama in to mediation between the two countries, India cannot dismiss the mindset of Pakistani establishment which can air such a threat.

We have to constantly remind ourselves of the jihadic growth and spread of Islam and the culture of violence as a means of reacting to situations not to that faith's liking, or for achieving its thoughtless aspirations that are driven by sheer bigotry. A good chunk of the heartland of Arab world is engulfed in internecine and civil wars. If such a calamitous situation has not yet befallen Pakistan,  but it merely remains the epicenter of terrorism of kinds good to them, but bad for India, and bad to them and all the rest, the reason lies in Pakistan's original Indian ethos that in its  dna,  to a considerable extent. Due to centuries of cohabitation with the Hindus  and the derivation of the bulk of Muslim population from conversions of ethnic Hindus, the Islam jihadic temperament, and violence that also deflects in to fissiparous internecine and civil wars have been tempered. Tempered but not conquered, leaving the core susceptible to mutation back to the original bizarre. To the original single pointed blind violence, unheeding of consequences, of the soldier of Allah kind.

A Semitic theocratic state by implication is autocratic, and in the case of Islamic one, driven by Sharia law which is despotism by the clergy. Modern principles of statehood become subservient to Sharia, leading to lopsided  and dangerous policies. That, it might have the seeds of self-destruction never enters in to reckoning so long as it is seen as bidden duty dictated by faith. That is the ominous foreboding plausibility that lurks in such utterances. This mindset has to be factored in to India's counter strategy.

The bottom line is that we have to keep our powder dry, more explicitly
, our atoms alert. Pakistan by reliable accounts is the fastest growing atomic weapon power and is headed to the 5th position in the world. The Indian government over the years has never taken the people in to confidence on this issue. It is time that they do that to a great extent.

China Bans Islam.

Posted by Dr. Gopal Unnikrishna Kurup


 China Bans Islam

China, all of a sudden is getting a bitter taste of renewed terrorism. Its Xinjiang and Quinghai provinces in the west are  the hotbeds of rising Islamist fundamentalism manifesting in intolerance of ethnic habits and practices. The fundamentalists  try to impose the Sharia driven agenda on the public. In Qinghai province on Friday, an angry crowd of Muslims smashed windows of a supposedly halal store in Xining city, after pork sausages and ham were found in a delivery van. The sharia based prohibition of alcohol and smoking and insistence on halal food were sought to be imposed on the local people and commercial establishments through such vandalism and force. Many local shopkeepers had stopped selling alcohol and cigarettes since 2012 because they feared public scorn, while many locals had decided to abstain from drinking and smoking as a result of Sharia pushers.

Earlier there was relatively normal religious freedom for the Islamic way in China even though it is a communist country. Muslims were allowed to pray, fast, and go to the mosques with the restriction that they do not preach towards non-Islamic villages.  Chinese imams were allowed to lead congregational prayers and there was  room for Muslims to gather, break their fast together, and pray. And then the jihadists came.

The modus operandy of the jihadists every where is the same. Before a community gets into jihad mode, the first thing they do is call on all Muslims to repent from alcohol, pork and tobacco. It is this spark which begins the process rolling, as small groups of Muslims begin to push that agenda on Muslim communities by using peer-pressure. When this happens, it is a sign that trouble is ahead. Pretty soon they begin to demand a change in laws in order to force the mainstream to acquiesce to their demands. The ball gets rolling and clamor for giving more religious freedom grows, but soon Islam’s ethics begin to come into  conflict with the majority community. The conflict arises because, first, Islam focuses on the outward forms of holiness: Hijabs, beards, no drinking, no pork and no smoking. Secondly, Islam’s concept of ‘peace is different. It is the Muslim understanding of 'justice' and can occur only when Sharia reigns supreme. China understands that spreading Islam starts by peer pressure for observing outward manifestations of religious identity and public scorn towards its violators.

With the spurt in Sharia induced violence and trouble, the reaction by the Chinese government was swift, specific and measured. In China, unlike in India or the west they get it. In the case of alcohol and smoking,  it ordered the freedom and also insisted for the shopkeepers to carry cigarettes and alcohol which gives them the excuse to tell the Sharia mafia ‘sorry’ but that it is a government mandate to allow smoking. The Chinese authorities launched a series of “strike hard” campaigns to weaken the hold of the drug of Islam in China’s western region. Not only  they ordered Muslim shopkeepers and restaurant owners in its troubled Xinjiang region to sell alcohol and cigarettes, but also to  even promote them in “eye-catching displays,”  Alcohol and tobacco, while it is a problem, to the Chinese is the lesser of the two evils. So now establishments that failed to comply were swiftly dealt with and were threatened with closure and their owners with prosecution. So while some might think that China is imposing on freedoms, Chinese government is only  thwarting the jihadist's attempts of imposing their Sharia driven agenda on the public

Muslim government employees and children are also barred from attending mosques and are even prohibited from observing the Muslim fasting month of Ramadan. By that China is telling jihadists that if you want to fast Ramadan, it is fine, but if you want to push your revolution, then a Ramadan-ban is added as a bonus punishment. And in many places, women have been barred from wearing Hijabs and the men are discouraged from growing long beards. China has added several bonus-punishments. In addition to the ban on fasting, China has ordered restaurants to stay open all day during Ramadan . Even wearing the hijab in public, including on public transportation and when getting married in a religious ceremony, was banned in 2014, with fines of about $353 for wearing a hijab in public. In reality, China is cracking down on jihadists who apply peer pressure, and public scorn towards Muslims who decided to smoke or drink alcohol, in order  to promote Islamic revolution.This sends a message, you push your Islamic revolution on us and we will push back to say no Islam altogether. Wherever there is a Muslim revolution, there is a ban on Islam. It does not give a darn to  all the cry babies who complain.