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Mainstream, VOL XLIX, No 45, October 29, 2011

Impeach the Magna Carta, not Judges

Saturday 5 November 2011, by K G Somasekharan Nair

A judge of the Calcutta High Court, Justice Soumitra Sen, had been summoned up by the Rajya Sabha on August 18, 2011 to switch on the impeachment process on certain allegations levelled against him. The judge being subjected to impeachment and the members impeaching him scourged at the judiciary with different perspectives apocalyptically. The words of the perspicacious judge under shadow may be ignored as it may be his last subterfuge. But criticisms unleashed by the members of the Rajya Sabha, responsible to the people, may be considered with due importance even though they did it under the protection of privilege inside the House.

Press reports reveal that partaking in the debate, Arun Jaitley, the Leader of the Opposition and a famous lawyer, asked on what authority the judiciary criticises the economic policy of the government. He added no court is competent to say whether a policy of the government is correct or not, courts must not have any manifesto and it is not for the courts to decide how Maoists are to be dealt with or how land acquisition and rehabilitation are to be conducted. He also said, it is not for the Supreme Court to decide whether Pakistani detenus in India are to be exchanged or released as it is a matter of foreign policy. Another member, Satish Chandra Mishra of the BSP, said, clients are entrusting cases with lawyers only after considering their link to judges. He also said, instead of enforcing the law, the courts are making law. Mohan Singh of the Samajwadi Party said, courts are not pronouncing the judgments but are issuing the executive orders and the judiciary believes that its position is above the executive and legislature. Ram Jethmalani, another famous lawyer, argued that the judiciary is to be made convinced of the supremacy of Parliament. Sudarsana Nachiappan of the Congress said that corruption resorted to by Soumitra Sen as a lawyer before being appointed a judge was known to everybody in Kolkata, yet he became a judge. He suggested, in order to avoid such incidents in future, the present practice of selection of judges by judges must be stopped. It may be noted, the current procedure of selecting a junior judge by a collegium of senior judges had been enforced only after 1993 following the judgment in the Supreme Court Advocates on Record Association versus Union of India (AIR. 1194 SC 268) but in 1991 the case of Justice V. Ramaswamy came up before Parliament for impeachment. So overruling the aforesaid judgment and constituting a Judicial Commission is not the remedy for the corruption of judges.

In fact, all criticisms made by the Parliament Members against the judiciary are true. But at the same time, whatever is said and done by the judiciary is just before the law. Then, who or what is responsible for this rapier-shaped condition? That is to be analysed. It needs to be realised that the present system of law, justice and civil administration is not built upon the history, culture or civilisation of India. Everything was superimposed by the super-terrorist, the British King, the emperor of poverty and fanaticism. Brut (Brute) was the legendary founder of the British race and “brut” is nothing but dry wine having high alcoholic content which is meant to be something rough, raw and rude. Moreover, “brute” is any animal other than man characterised by sexuality, vileness and unintelli-gence. The ancestors of the British were grave criminals deported by Roman Emperors. However, widespread hooliganism and looting in August 2011 prove that the people of Britain are still being controlled by their heritage of brutality and criminality mixed up with rude alcoholism.

Britain, like other European countries, had been overwhelmed by the Dark Age until the fall of Constantinople in 1453 and the subsequent Renaissance implanted by the Muslim scholars. Only one historic event before it was the Crusades, that was the self-immolation of all male progenies of Europe for centuries. In that Dark Age, Britain as well as other European countries had been gripped by the octopus-like tentacles of feudalism. Under that prolonged period of feudal anarchy, Barons, otherwise called Lords, were the heads of the administration, supreme commandants of the armed forces, law-makers and judges for concerned domains. Those lousy Lords were uneducated antics and ignorant to say one minus one is equal to zero. While acting as judges those mutton-headed fellows had no law to follow, all cruel absurdities whispered or uttered by them to finish a case was judgment, and a collection of such ridiculous judgments is ostentatiously called the English Common Law. Feudal lords were the stocky Kings protected by the beastly Knights, they were answerable to none and the unaccountability of the judiciary originated in that way. Under the feudal concepts of justice, Lord Judges were capable of pronouncing any erroneous or felonious judgment without fear or favour and thus the principle, independent judiciary, originated. In order to avoid headache, the headless Lord Judges applied decisions in the earlier judgments of their ancestors in similar cases. Thus case law or judicial precedent was evolved in the Dark Age.

The continuous vanquishing of Europe in the Crusades pauperised England too and in 1214 King John levied a heavy scutage for plunder and war. England was then divided and ruled by about 170 feudal lords accepting the kingship of John. The majority of them joined together against the King in protest of scutage. When the defeat of the King was certain in the war, Stephen Langton, Archbishop of Canterbury, persuaded the King to come down in terms with the Lords to protect his throne. Thus on June 15, 1215 the King signed and perpetuated an agreement with the Lords to avoid literal surrender. That agreement is known as the Magna Carta by which the King agreed that he will not question the authority of the feudal lords in future and on the contrary it offered a threat which, if violated, would inevitably lead to war.

Thus the Magna Carta, a documented anarchy, became the basic structure of the English Constitution, and by virtue of it the House of Lords, representing the feudal anarchy of the Dark Age in English Parliament, became the highest court of law and simultaneously it protected the law-making authority of the feudal lords. It is true, Britain has opened a jerry Supreme Court in 2009, but that is only an extension counter of the House of Lords. The Magna Carta made feudal lords superior to the King. That is to say the judiciary is superior to the administration. Feudal lordship is acquired by birth, it continues until death, and so the judges in England are lifelong judges. They have no age of retirement.

UNLIKE in Britain, there is no feudalism in America. Because that nation originated out of the street-clearance programme in London. That may be the reason for calling the Americans “clay-eaters”. All landed property of England belonged to the feudal and knightly families and some property owners. Except five-to-10 per cent of the population coming under those three categories, English plebs were destitutes of the world. They were generally mendicants, footpads, ninnies, cuckolds, pickpockets, roughnecks, harlots, sluts, hags and biddies roaming about on streets. The most wicked among them were picked up, called pilgrim fathers, and deported to America many a time. They fought with autochthons, conducted their genocide and snatched away their estates. At last they fought against the English King and got independence. Even after establishing a democratic government, feudal servility sifted up in their blood and they wanted some Lords to check and balance their laws. They laureated lordship upon judges and gave them powers to set aside statutes. That American malignance is called judicial review. Owing to feudal lordship awarded to federal court judges they have no retirement like in Britain. As there is the House of Lords in Britain to consent statutes, there is no judicial review.

In the pretext of mercantile navigation, the British King, head of the realm, head of the Parliament and head of the church, conquered India in 1757 for colonisation, plunder and proselytisation; dumped gangsters, simpletons, burglars, panderers and such other social garbage into India, introduced them as “Lord Justice” and executed English law and judiciary over India. In fact, none of them was a Lord, since all assets of England was belonging mainly to feudal families. Lords, having pleasurable and lackadaisical life, had no necessity to come over to this tropical country for employment on a pittance by pledging life overseas for about one year. So all of them were duplicated ones like Lord Robert Clive. “He was the son of a small squire (Knight’s attendant), and his boyhood had been variegated and unpromising. Clive had attended no fewer than four schools and been unsuccessful at all. In his Shropshire market town he had organised and led a gang of adolescent ruffians who extorted pennies and apples from tradesmen in return for not breaking their windows.” (Winston Churchill, A History of the English-Speaking People, Vol III)

But Indian lawyers slavishly hailed such judicial tomfools as “My Lord”.

The British legal system enforced in India was the idiotic English Common law. But there was a story of Law of Equity which was a collection of kingly decisions on property dispute among subjects. However, except Queen Victoria who plundered India comprehensively using the Indian Penal Code of 1860 and built up a strong Britain, her predecessors like the demented King Henry VI, the fornicating King Henry VIII, his illegitimate daughter Queen Elizabeth, the padded King James I, slaughtered King Charles I, the exiled King Charles II, the absconded King James II, Germanic Kings George I and II, and the lunatic King George III were ignoble. Their subjects ignored them. So the Law of Equity is a product of the Victorian age. Regarding statute law, until the end of the 18th century Britain was ignorant of the written and codified law. While Warren Hastings was the Acting Governor General of Bengal for 1772-85, “In order to draw up a civil and penal code based on Indian customs, Hastings had translations made of the ancient Hindu law books and this led to the study of Sanskrit by European scholars”. (H.G. Rawlinson, A Concise History of the Indian People)

The ancient Hindu Law, called Smriti, emerged from the irreligious and materialistic sruti or veda. If looked upon Smritis now after 30 or more centuries of its origin, so many defects can be noted. But Smritis are not fully objectionable, as told by the anti-Hindu fanatics promoted by the proselytisation mafia. When Europeans were living as apes, cannibals or barbarians, Smritis provided here a well-oriented civil society with strong institutions to maintain the administration of justice. There are 57 Smriis categorised into 18 most important, 18 important and 21 ordinary. These codes were applied in various territories of India for various periods of history and assured rule of law. In addition to Smritis, Apastambha Sroutha Sootra, Sukraneetisara, all 18 Puranas, Ramayana, Mahabharata, Arthasatra of Kautilya, Kural of Thiruvalluvar, Mrichchakatika of Soodraka, Mudrarakshasa of Vishakhadatta etc. contain details of the administration of justice. The basic difference between the English Common Law and Hindu Law is its written and codified form. Hence there was no case law in India. Judges were selected and appointed by the Kings on written standards and they dismissed and punished corrupt judges according to the written law which made judges accountable. Above all, there were lawyers in ancient India. The study of Sanskrit by the Europeans and English translation of Hindu law and literary works resulted in legal, scientific and literary Renaissance in Britain by the end of the 18th century. It produced romanticism in English literature and science and technology for the industrial revolution. At the same time Parliament, with an irresponsible and unrepresentative House of Lords, started to make statutes. But they could not eliminate the case law system or to create a responsible judiciary due to the threat of the Magna Carta.

After independence, the intellectual slaves of the Whites in India imposed British parliamen-tarianism over the nation against the warning and will of Gandhiji. As a complementary move, they enforced Anglo-American constitutionalism constructed on the pillars of the Magna Carta. Unaccountable judiciary, case laws to interpret statutes, judicial review to quash statutes are the principal features of the Magna Carta enforced against the ideas of Raja Rammohun Roy. The position of the judges above the government, Parliament, and practically above the whole people (The Sovereign) is the other aspect of the Magna Carta. So the judiciary has powers to interfere in policy matters, issue executive orders and penalise the government of the people. But draftsmen of the Constitution forgot another phase of the Magna Carta, that is, life tenancy of the judges. The system of collegium for the selection of judges is necessary for the Anglo-American constitutionalism of feudal tradition transplanted in India artificially. Because in India there was no feudalism except landlordism. People have no feudal ancestry and so there is no hereditary Lord Judges. On that reason senior judges have every right to decide their judicial successors. There is no meaning in blaming that practice as the “Uncle Judge Syndrome”. Remember, powers are given to utilise. It may be noted, such a powerful judiciary like the one in India is existing only in Britain and in America and nowhere in the world including countries in the European continent. “It is sometimes said that in England and in America, but not on the continent, the Judge is King. We have seen that in some respects this assertion is valid.” (Gwendolen M. Carter and John H. Herz, Major Foreign Powers)

Of course in India also the judge is King. “Contrary to common belief, there is no provision in our Constitution for the impeachment of a judge. The impeachment is provided for the President, of none else.” [Subash.C Kashyap, Our Constitution, National Book Trust, India, 2010. p. 235] But the people, if they decide, can impeach and banish the Magna Carta together with Anglo-American constitutionalism and British parliamentarianism, and reconstitute the nation in accordance with the will of Gandhiji who could see the ultimate truth: British Parliament is a sterile woman and a prostitute.

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