US Supreme Court Indian Counterpart British Justice

by Kumar David

In choosing three jurisdictions I have chewed off a lot but my stern Editor will use his pruning blade as needed. My initial target was the Supreme Court of the Uniited States (SCOTUS) since the next period laps Trump’s re-election bid. The reactionary stand SCOTUS has taken by reversing women’s reproductive rights 50-years after Roe vs. Wade and the impending clashes with women, young people and progressives is dynamite.

However India is our big neighbour about whose courts my readers may not be up to date so I begin with a lengthy introduction on the Indian courts. In a Washington Post opinion piece dated 24 March 2020 Rana Ayyub asserted that “The destruction of India’s judicial independence is almost complete”. See https://www.washingtonpost.com/opinions/2020/03/24/destruction-indias-judicial-independence-is-almost-complete/

Ayyub points out that the Indian SC crushed the bail petition of Anand Teltumbade, an advocate for the most disadvantaged communities and instructed him to surrender to the police. He was swept up in a broad crackdown of lawyers and activists accused of supporting Maoist militants (Naxalites) many of whom have been languishing in jail for decades. She says that Teltumbde’s work against the caste system and majoritarian politics made him a target of right-wing leaders, including Narendra Modi. Teltumbade has condemned Modi’s communal politics, compared him to Hitler and accused him of complicity in the anti-Muslim carnage of 2002 which left more than 1,000 people dead in Gujarat when he was chief minister.

I provide below quotes, edited for context, from Rana Ayyub’s Washington Post story.

BEGIN QUOTE:

“Teltumbde’s unfair treatment by our judiciary underscores the loss of independence by India’s institutions. The refusal by the Supreme Court to grant him bail came soon before a former chief justice, Ranjan Gogoi, joined Parliament after being nominated by Modi government. Gogoi delivered some of the most obnoxious rulings in recent times to enable the Modi administration’s majoritarian agenda. His appointment, just four months after his retirement (and after he was accused of sexual harassment), has raised big questions about justice in the era of hyper-nationalism that Modi has come to represent.

In November, Gogoi delivered a big victory to Modi when he ruled on Babri Masjid, an important mosque for Muslims demolished in 1992 by Hindu nationalists. Gogi’s judgment also cleared the Modi government of corruption in a defence deal involving the purchase of Rafale fighter jets. The government was accused of bypassing procedures and compromising national security in an arms deal to benefit an Indian billionaire. Gogoi has been rewarded with a high place in the Indian Parliament putting a spotlight on the unholy nexus between political power and the judiciary.

Recently, Justice Arun Mishra hailed the prime minister as a versatile genius, an internationally acclaimed visionary who thought globally and acted locally. The comment was widely criticized, including by the Supreme Court Bar Association. Mishra refused to grant relief to Teltumbde despite the flimsy evidence. The hall of shame of the Indian judiciary in recent times is sullied with brazen cases of human rights violations.

In February, when Delhi saw horrifying communal carnage that led to the loss of 53 lives, arson and hundreds injured, the Delhi High Court called out the state police for action against BJP ministers who made anti-Muslim hate speeches. The judge who delivered the order was transferred overnight!

The Supreme Court once called Modi a modern-day Nero looking the other way as innocent women and children were burnt in the 2002 in Gujarat. But those days are long gone. The appointment this former chief justice to the Parliament by the ruling government exacerbated the country’s governance and moral crisis. The Gogoi’s appointment strikes a blow at impartiality at the moment when India is heading down an authoritarian path”. END QUOTE

To complicate matters further the Canadian Government said on Sept 18 that it was actively pursuing allegations linking the Indian Government to the murder of a Sikh separatist leader (a Canadian national) in British Columbia. Prime Minister Justin Trudeau told the House of Commons that involvement of a foreign government in the killing of a Canadian citizen was “an unacceptable violation of our sovereignty”. Hardeep Singh Nijjar was shot dead outside a Sikh temple on June 18 in Surrey, a Vancouver suburb with a large Sikh population. Nijjar supported a Sikh homeland in the form of an independent Khalistan and was designated by India as a “terrorist” in July 2020. Canadian security agencies have been actively pursuing “credible allegations” of a potential link between Indian agents and have expelled India’s top security officer. Trudeau said he had raised the matter with Modi on the side-lines of the G20 summit.

SCOTUS

(Supreme Court of the United States)

Oh dear the previous section on India was longer than I had planned, but I let it drag on because I reckoned readers may not be aware of this side of the story in our giant neighbour and may find it interesting.

Now to the Supreme Court of the US. Appointment is for life and if you get a bad-egg you are stuck with him, or her, till the bloke retires or the grim-reaper visits. The most ‘rightist’ judges on the bench at this time are Clarence Thomas and Samuel Alito. Thomas, a bad egg, and his wife are accused of accepting gifts from corporate lobbies and joy rides on their planes that if it had occurred in Lanka would have warranted impeachment. The Los Angeles Times quite openly declared on August 10, 2023 “Supreme Court Justice Clarence Thomas’ corruption is intolerable”.

They secretly accepted a long list of luxury trips from a cadre of conservative billionaires. The New York Times did say on February 26, 2016 “Supreme Court Justice Clarence Thomas secretly accepted a long list of luxury trips from a cadre of conservative billionaires”. The other reactionary judge on the court Samuel Alito is alleged to have accepted favours from corporate interests. Judges Alito and Thomas think they can accept lavish gifts without undermining the integrity of the Court. As an example look at:-https://www.latimes.com/opinion/story/2023-08-10/supreme-court-justice-clarence-thomas-corruption-gifts-propublica-ethics-congress

See also:-https://www.afj.org/article/justice-alito-cant-originalism-himself-out-of-corruption-charges/

The grading of judges from most liberal to most reactionary in the public mind is:

Sonia Sotomayor

Elena Kagan #

Ketanji Brown Jackson

John Roberts (Chief Justice)

Brett Kavanaugh #

Amy Coney Barrett #

Neil Gorsuch #

Clarence Thomas

Samuel Alito

# These four judges were nominated by Trump and he often refers to them as “my judges”.

The United Kingdom

Next a few words on the mother of all parliaments. George Jeffreys (1645-1689) known as the Hanging Judge was notorious for his cruelty and corruption. In “The Bloody Assize of 1685 he was sent to Somerset to try captured rebels after the Monmouth Rebellion. Estimates of the number he executed for treason varies between 160 and 1,380. It is arguable whether Jeffreys deserves his reputation as the “hanging judge” or whether King James II failed to use the royal prerogative of pardon.

The famous “Impeachment of Warren Hastings” (or to be precise the failure to impeach) is a complex issue of competing visions of empire. Hastings as Governor-General was tried in England 1788 for ‘high crimes and misdemeanours’ against the people of India. The prosecutor was the erudite political thinker Edmund Burke. The trial “was an act of imperial soul-searching” and though Hastings was acquitted it was a warning to imperial proconsuls that they could be called to account.

It was the first human rights trial of modern times but raised profound cultural issues. Hastings was curious and learned about Indian culture and famously declared: “I love India a little more than my own country”. He launched a cultural renaissance, was fluent in Bengali and Urdu and founded the Calcutta Asiatic Society under the chairmanship of the renowned Orientalist Sir William Jones who helped the flowering of Bengali culture.

A profound clash emerged between two visions of scholarship which resonates to this day; one led by Hastings, respectful of indigenous customs and traditions and labelled “Orientalist” by the other. The other a Westernised brand of liberal interventionism. I don’t know how many people know about this clash.

Hastings “rediscovered” the subcontinent’s classical Hindu and Buddhist past. His patronage promoted the revival of Sanskrit, the ancient classical language, and rescued it from the narrow confines of a corrupt and oppressive Brahmin priesthood. Under the Governor-General’s patronage, the Asiatic Society pioneered an ambitious programme to translate Hindu religious classics like the Bhagavad Gita from Sanskrit into English and the local vernaculars. Hastings’s introduction to the first ever English translation of the Gita said passages of it were “elevated to a sublimity which our habits of judgement find it difficult to pursue.”

Warren Hastings was the most popular of all British Governor-Generals among his Indian subjects. But he alone of all colonial administrators in India was put on trial for crimes against humanity, in a seven-year-long impeachment in the British Parliament, led by the great Whig orator and philosopher, Edmund Burke. Given his respect for Indian sensibilities, it’s ironical that the charges against him focussed on his alleged persecution of Indian subjects.

Edmund Burke, in his historic, four-day-long opening speech – an unrivalled model of parliamentary invective – accused Hastings of having “gorged his ravenous maw…feeding on the indigent, the dying and ruined”, like “the ravenous vulture…devouring the carcasses of the dead.” “I impeach him in the name of the English nation, whose ancient honour he has sullied,” Burke thundered. “I impeach him in the name of the people of India, whose rights he has trodden under foot, and whose country he has turned into a desert.” But Burke was wrong.

The great Whig historian and imperial policy-maker, Thomas Macaulay, though critical of Hastings’s alleged abuses of power, conceded that “he made himself beloved by both the subject many and by the dominant few” and “enjoyed among the natives a popularity…such as no other governor has been able to attain.” During his own years in Calcutta half a century later, Macaulay could still hear “nurses sing children to sleep with a jingling ballad about the fleet horses and richly caparisoned elephants of Sahib Warren Hosein”.

Hastings left British administration in India on a sounder footing than ever before. The corrupt excesses of the Company’s servants had been significantly curbed, French and other military threats had been resoundingly beaten off, and the “Company Sahib” was now the dominant power in the subcontinent.

Hastings survived in semi-retirement till the grand old age of 85. In 1813, both Houses of Parliament rose spontaneously to give him a standing ovation when he gave evidence on new legislation about India. In a letter which would be his last political testament he warned his successor, the Marquess of Hastings (no relation), that Indians had been misrepresented “as sunk in the grossest brutality and defiled with every abomination”, thereby justifying British attempts “to reform them, nay to ‘coerce’ them into goodness”. Instead, he exhorted his namesake, “it will be better to leave them as they are…” He concluded with a plea for racial equality, remarkable for its time:

Hastings’s sympathetic, “Orientalist” approach to India lost out to a Whiggish, Westernising sense of imperial mission, summed up by Burke’s dictum that “it was the duty of a British Governor to enforce British laws, to correct the opinions and practices of the people, not to conform his opinion to their practice”. Half a century later, British administrators led by Macaulay put this precept into practice with anglicising reforms designed to create a new class of “Brown Sahibs”. Warren Hastings would not have approved.

Despite its failure, the Hastings impeachment was an act of imperial soul-searching unparalleled in history. For seven long years, British MPs and peers examined and debated every minute detail almost every document that had crossed the desk of their Indian Governor-General. Many were inspired by hostility to the East India Company, whose tentacles were corrupting British politics. But there was also very genuine concern for the human rights of the Company’s Indian subjects and how their treatment reflected on British justice. Hastings was eventually acquitted and his impeachment trial was a warning to all future imperial proconsuls that they could be called to account by Parliament.

Impeachment in the UK today

: Whilst historically judges were removed by impeachment (and constitutionally still may be), the 1701 Act of Settlement provided that a judge of the High Court or the Court of Appeal may be removed by both Houses of Parliament petitioning the Sovereign. This is the procedure today and was described in the first edition of Erskine May. Hence the impeachment procedure is relatively simple and the buck is passed to the Sovereign. (There are in fact quite a few to-and-fro steps between the Commons and the Lords but too boring to detail here). My point is that a US style impeachment trial is largely avoided.

Sri Lanka

It would be sensible to assume that the Executive Presidency will sooner rather than later be abolished in Lanka. An expert who promised a few months ago to write a short proposal for a new constitution to place before the likely governments to be elected in a year or two (the JVP-NPP option or some UNP-Ranil-Sajith option) has backed out and gone silent. However a new constitution is a necessary and it is a great pity that proposals to replace JR’s vile contraption have not been published. To her credit Chandrika did make a genuine attempt in 2000 which was scuttled by RW’s short-sighted greed and the hostility of reactionary sections of the clergy. Lanka however cannot duck the issue forever.