bachpan ki mohabbat ko... Baiju Baawra... another favourite song

Tu Ganga ki mauj... Baiju Bawra ... one of my favourite songs

Consider entire Earth as One Family! - my latest article from San Francisco, US.

Consider entire Earth as One Family!

[In re Sergio C. Garcia case 04-09-2013]

- I. Mallikarjuna Sharma§

As a lawyer from India, on a temporary visit to the United States, I was very glad to have the occasion to attend the hearing at admission, by the Supreme Court of California sitting at San Francisco, of the In re Sergio C. Garcia case (4 September 2013) that deals with the important matter of whether an immigrant not yet naturalized as a US Citizen can be granted a professional license to practice law in the Courts of California. It seems to be an uncontested truth and settled law that though the California Bar certifies an applicant-lawyer as qualified to practice law, it is only the Supreme Court which has the power to grant him the professional license to do so. As such the crucial question was whether the Supreme Court has the power to grant professional license to practice law to a Mexican immigrant of longstanding residence in United States who has not yet been naturalized by grant of US Citizenship and when the federal law explicitly bars any professional license being granted by any state agency to such immigrants absent any state legislation to the contrary. It was also an admitted fact by all parties concerned that there is as of date no law enacted by the California Legislature enabling such grant of professional licenses despite the general federal bar.

I found the seven judges of the Supreme Court – I was happily surprised to find a majority of judges including the Chief Justice to be females – quite intelligent, inquisitive, pro-active even, welcoming and causing a lively discussion on the various facets of law concerning the subject though not very much impressed by the various counsels representing the petitioner or respondents who appeared not able to rise to the peak levels that this historic case demanded. Especially I was irked by both the Court and the Counsels not treading upon the precious constitutional rights of the petitioner and various constitutional questions involved in the matter and the discussion seemed a bit hyper-technical focusing mainly on the ambit and impact of the federal law, especially Section 1621 of US Code, and as to whether Supreme Court would be covered under the definition of State Agency specified in that Section.

The Constitution of California is very clear on some basic rights of ‘persons’ – obviously including non-citizens too. The right to life, liberty and property is one such fundamental right that is guaranteed to all persons by the people of California, and I did not find the term people defined in the Constitution but I don’t think it could be limited to citizens only. Then it seems to be a settled law in the United States, or at least in several states, that professional license is itself a kind of property right. For example, Nevada Supreme Court, categorically holding that professional license is property, had this to say: “That a professional license is property and is protected by the Constitution is recognized by both Nevada law, State ex rel. Kassabian v. State Bd. of Medical Examiners, 68 Nev. 455, 235 P.2d 327, 331 (1951), and by federal law, Schware v. Bd. of Bar Examiners, 353 U.S. 232, 238-39, 77 S.Ct. 752, 755-56, 1 L.Ed.2d 796 (1957). The Board could not, consistently with the due process clause, deprive Mishler of his license.” [896 F.2d 408, 58 USLW 2514, Alan J. MISHLER, M.D., Plaintiff-Appellant v. NEVADA STATE BOARD OF MEDICAL EXAMINERS; Robert C. Clift, M.D., et al., Defendants-Appellees, para 7]. In this background, the constitutional right granted to persons to own property is remarkable as Section 20 of Article 1 [Declaration of Rights] clearly says: “Noncitizens have the same property rights as citizens.” Further, Section 1 of the same Article 1 categorically declares that – “SECTION 1.  All people are by nature free and independent and have inalienable rights.  Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy” (emphasis mine). I am sure nobody doubts that a professional license is a means to acquire and possess property, even if one may doubt if it is property by itself. Also, the unequivocal declaration that “SEC. 7.  (a) A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws…” in Article 1 points to the inalienable right to life, and life does not mean mere animal existence. The right to livelihood is an indispensable part of the right to life and a person cannot be deprived of such right by any procrastinating methods and practices of law. The Constitution of California is neither limited by nor is in contradiction to the federal constitution of US which also grants several such rights to all persons – not just to citizens only. A broader and liberal discussion with such constitutional perspectives would do a lot more justice to the cause the Supreme Court is seized of.

Here it has to be borne in mind that superior courts – especially the Supreme Court – are not just courts of law but more as courts of justice and courts of equity. Also, though doubtless they are i.e. judiciary is a branch of the State [or of Government], by no means they could be trivialized as state agencies. Then, the universal ideal of fraternity of human beings transcends all the trammels of national law and at least the superior courts are expected to rise to that level. It would be instructive for all of us to keep in mind the wise and emphatic declaration in the famous ancient Sanskrit Sloka [verse] – “ayam nijah paroaveati gananaam laghu cheatasaam, udaara charitaanaam vasudhaiva kutumbakam” [“to consider this is mine, that is others etc. are the deeds of small-minded persons, for liberal and broadminded characters the entire earth is one family”] – and try to act up to the achievement of this great ideal.

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§ Lawyer practicing in High Court of Andhra Pradesh, Hyderabad, A.P., India; now on temporary visit to the US; C/o Mr. Paul Gilbert, Board Member (Mobile: 6502306240), ACLU-Mid Peninsula Unit California, at Mountain View - 94043 (CA). 

Editorial, "Weren't Indians? Condemn Chauvinism!' in LAW ANIMATED WORLD, 31 August 2013 issue, Vol. 9, Part 2, No. 16.

WEREN’T INDIANS? CONDEMN CHAUVINISM!

It was shocking to learn about the disgusting statement of one V. Prakash, a lawyer, a founder-member of Telangana Rashtra Samiti (TRS) and perhaps a dissident now having formed the Telangana Vimochana Samiti some time back, in an interview on TV5 (see the pic above) that Telanganites were never Indians before 1948, India committed aggression against the free country of Hyderabad in 1948 and annexed it though afterwards they [Hyderabadis] got reconciled to it. It is to be doubted whether this Prakash was a bit mentally imbalanced by his regional chauvinism. Anyway, it needs severe condemnation by all right thinking Indians, not just Telugus of the State. It is true, no doubt, that the Nizam of Hyderabad declared independence of the Hyderabad State in August 1947 by issuing a firman announcing that “Hyderabad would remain independent and not join the Union of India but the Government of India rejected the firman, terming it a "legalistic claim of doubtful validity". His minister Kasim Razvi unfurled the Asafia Flag and declared that the flag was the emblem of the suzerainty of God on earth” and all of us know that this Kasim Razvi was a protagonist of Choudary Rahmat Ali’s Osmanistan [which in Razvi’s conception included the Seemandhra districts too] proposal and the leader of the atrocious and hated razakars, fought tooth and nail by the valiant Telangana people in their glorious struggle against Nizam monarchy and feudal oppression and for a people’s state in Greater Andhra [Vishalandhraloa Prajarajyam]. The Nizam could not withstand the military assault [termed ‘Police Action’] of the Union, meekly surrendered and compromised to protect his status and assets to a great extent by becoming a Raj Pramukh in independent India. The corrupt and inept ruling party catered to his interests instead of punishing the people’s enemies who were cruelly suppressing the ‘Join Indian Union Movement’ launched by the revered Swami Ramananda Tirtha and militantly carried on by a vast majority of the people cutting across all parties/sections. That’s why many, including TRS officially, call for the marking of 17 September as Hyderabad Liberation Day, hence it sounds strange that an important separatist leader should stoop to such a low, ignorant level and so calls for this editorial condemnation. §§§

Editorial - "66 years of Independence: Pluses and minuses" - in LAW ANIMATED WORLD, 15 August 2013 issue, Vol. 9, Part 2, No. 15

66 YEARS OF INDEPENDENCE: PLUSES AND MINUSES

Even if we accept the popular conception that 15 August 1947 is the real independence day, and not a black day to mark and mourn the largest ever communal massacres in history due to the horrible mess of partition made by the British imperialists and their native lackeys, the sixty-six years of freedom ‘enjoyed’ by us does not present that happy scenario for the people of this country. Not that we haven’t made any progress nor that we have met with failures only and no significant achievements. No, we don’t take that stark negative view but yet are constrained to comment that whatever considerable growth we achieved since independence has not been commensurate with the needs and expectations of the people, nor is that much remarkable in comparative assessments in Asia or the world over, though much euphoria is now being made that we have become an Asian superpower next to our bigger neighbor China. Though we could reduce the share of the poor, as per official figures, from a high of 50% in 1951 to a low of 22% in 2012, the absolute number of the poor has steadily increased and as per World Bank reports, India is the abode for about one-third of the world poor. Likewise in literacy and health spheres, our growths are much below the world averages and India has the world’s largest illiterate population as also the highest rates of child and rural malnutrition, not to speak of the rampant diseases and child mortality figures staring us in all their fury. Even today we don’t spend even up to 2% of the GDP on public health and rank at level 136 in the world human development index [2013], steadily declining from 119 in 2010 and 134 in 2011 – now standing much below Singapore [at 19], Sri Lanka [92] and China [101]. Obviously, all this due to the rising inequalities and inequities in the developmental processes and the nasty corruption indulged in and cruel exploitation/oppression perpetrated by the ruling classes, political parties, businessmen, bureaucrats, so-called public servants, et al, with dirty corruption, grisly greed and other divisive tendencies spreading in all sections of the society too. And we feel that nothing but a revolutionary upsurge of the people for radical systemic changes to establish a socialist welfare state can achieve just, equitable and sustainable growth to bring real relief to the downtrodden millions. §§§

Editorial, TERRIBLE BLOW: TRAGIC CONSEQUENCES, in LAW ANIMATED WORLD, 31 July 2013 issue. Vol. 9, Pt. 2, No. 14.

TERRIBLE BLOW: TRAGIC CONSEQUENCES

The decisions by the UPA Coordination Committee as well as the Congress Working Committee to grant statehood to Telangana region by bifurcating Andhra Pradesh is no doubt a terrible blow to the dreams-come-true Telugu unity state and is fraught with tragic consequences not only to the Telugu community but also to the entire people of the country. Obviously, the decisions have been taken in haste out of base electoral considerations keeping in view the forthcoming general elections by a ruling party and ruling coalition which have but a slender majority in the Parliament and unfortunately not only the separatists but even the so-called integrationists among several parties were guided by unethical and greedy considerations of power and pelf rather than the interests of Telugu people in particular or Indians in general. Though it appears as a closed chapter now and the division of the state is going to be certain, there are yet optimistic persons dedicated to the good of the state/the country who yet think that the steps taken by the ruling party/coalition are still retractable and strongly feel that in any case no ruling party/government should take such disastrous decisions in such hurry in the run for political power, especially when the general elections are round the corner. There is a powerful and popular backlash to these decisions and moves in the so-called seemandhra region and though it is not certain how long that is going to continue and how far pressurize the ruling party/coalition to rethink their decisions, yet it is an indicator to the immense discontent of Telugu people and the imperative need for the ruling party/coalition to postpone their moves till the next general elections are over to reconsider the problems more minutely. Especially, they should table the Srikrishna Committee Report and cause an in-depth discussion of its contents in both Houses of the Parliament to prepare for whatever government comes to power next to be able to take wise and as-far-as-possible-consensual decisions on this intricate problem rather than giving rise to all-round anarchy for their selfish ends – it must be noted that deleterious fissiparous movements like the Gorkhaland, Vidarbha, Bodoland agitations have sprung up again immediately on the announcement of these calamitous decisions, which does not bode well for the unity, integrity and destiny of the nation. §§§

Editorial: "Electoral Rights: Apex Blunders" in LAW ANIMATED WORLD, 15 July 2013, Vol. 9, Part 2, No. 13 issue.

ELECTORAL RIGHTS: APEX BLUNDERS

No hesitation we have to say that our Supreme Court has seriously blundered in two recent decisions – 1. a judgment against the statutory right of elected representatives to continue in post till their appeals against convictions have been disposed of and 2. an order against not only statutory but also  basic rights of prisoners, convicts or under-trials – as regards their electoral rights, thus upsetting the longstanding right enjoyed by prisoners to contest elections from prisons and thus actively participate in the democratic political process. The former, praised by several persons including civil rights activists, on the mistaken belief that the Apex Court has acted as a democratic cleanser in denying undue privileges accorded to undeserving MLAs/MPs by Parliament, may be rejected on the simple ground that when a constitution bench of the Court had earlier given detailed reasons to support, if not technically rule on the validity of, the provision and explained the need for such a right, it was not proper for the learned two judges to interfere in the matter, and they should have, in all humility, left it to another constitution bench for final decision. But the second order, very cryptic, is more lamentable, devoid of any proper discussion and extends the bar of electoral rights to even under-trials who are to be presumed innocent till proven guilty. The Court failed to note that great national leaders were elected from prisons when they were convicts/under-trials; in fact the strategy of the Irish Sinn Féin movement was to ‘vote them in, to get them out’; Netaji was elected to Calcutta Mayoralty in 1930 when he was a convict prisoner; and many such elections of jailed leaders post-independence. Also convicts are granted electoral rights in many developed democracies – “In Canada and South Africa, the courts have struck down legislation disenfranchising prisoners and thus there are no current restrictions on a prisoner’s right to vote ... In Europe … 18 countries allow prisoners to vote without restriction …” The ECtHR decision published in this issue clarifies that even convict prisoners should have voting rights, which of course could be limited by law but only in a manner proportionate and fair. As such we very much regret this unwise decision pronounced without a detailed study and discussion of various aspects of law and fact and history, and we hope both these constrictive and harmful-to-democracy decisions would be forthwith stayed and then overruled by a constitution bench on review or the Government of India itself proceed to make necessary statutory/constitutional changes to assert the electoral rights of prisoners and of legislators as regards their appealed convictions §§§