Monday, August 28, 2017

Justice Oka & the implications of bias.

If you know anything about baseball, you will know that after three strikes you are out. In Mumbai we play baseball with four strikes, and counting. By the time this ends I have no idea how many strikes will be done. Strikes against our Judges, by our Judges and by the usual hand wringing cowards.

I am writing about the very recent controversy in the Bombay High Court where the Maharashtra State, wholly incorrectly, alleged that Justice Oka harbored a serious bias against the State. Therefore, the Government prayed that the case be placed before another Bench for determination. The controversy has developed after this. Do read on.

Let me briefly set down some facts. Justice Oka is a Senior Judge and was sitting in a Division Bench with the newly minted Justice Riyaz Chagla. The case being heard dealt with the Noise Pollution Rules filed by an NGO and the State Government was a party to the case as a Respondent. Justice Oka has indeed in the past, passed several Orders against the State Government. The most famous Order was where he held that the Law that making the possession of beef a criminal offense was a bad law and he struck it down. So, there is a bit of history between Justice Oka and the State of Maharashtra.

The beef law as well as this latest case relating to noise pollution, particularly during Hindu festivals, is something that is close to the heart of the BJP and the Chief Minister. Yes, the BJP and the Chief Minister may be doing all this to create vote banks. BJP and the Chief Minister are well within their rights to do this, but, and this is a big but, the Courts have to hold such cavalier matters in check. This is exactly what was happening. A Petition was filed and Justices Oka and Chagla were hearing it.

Things were not going well for the State Government during the hearing. When the Court resumed after the lunch recess, the Advocate General sought an adjournment to the following day as he was busy in another case. In the meanwhile, on instructions from the State Government, an application was made to the Chief Justice to have the case placed before another Bench as the Maharashtra State alleged that Justice Oka harbored a bias against the State and, as a result, the State Government feared that they would not get a fair hearing. This was strike one.

Now the fun starts. I believe that her Ladyship the Hon’ble Chief Justice Manjula Chellur was catching an afternoon flight. This was Thursday 24th August a day before the Ganapati holiday on Friday 25th. So, without wasting even a moment, her Ladyship the Hon’ble Chief Justice Manjula Chellur allowed the application to transfer the case. I am not getting into details of Justice Oka refusing to recuse himself etc. The Case was reassigned to another Division Bench with Justice Mohta and Justice Girish Kulkarni. This was strike two.

Now the Court was shut for 3 days, Friday to Sunday. The stage is set for much hand wringing. On cue the ‘Middia’ publishes the fact that this application is made. The reports are peppered with quotes from lawyers with the usual clichés, “not done”, “incorrect practice” “shameful” and so on. Basically, just hand wringing.

The very “propah” Bar Association which has as its members the elite Mumbai Counsel calls a general meeting to pass a resolution to show support for Justice Oka. Not to be outdone, the Advocates Association of Western India, which is not so “propah” in the eyes of the Bar Association and is viewed with thinly disguised contempt by the Bar Association also calls for a meeting to express support. This is strike three.

Now, pausing here for a moment you may well ask, what is all the fuss about? Let me tell you. And do remember the three strikes, so far.

Let us deal with Strike one. Can a Government allege bias against a Judge? Basic question. Initially, and I must admit I was totally wrong, I thought why not? Is it not the duty/objective of every litigant to do his utmost to get justice? However, on second thoughts I realized how wrong I was. The Government, whether Central, State, Municipal or even Government Corporations are parties to in excess of 60% of all litigation. Hence can they allege bias? If they do who/how will they ever be heard? Secondly, take for instance litigations relating to Income Tax or Excise. The Government gets smashed in Court in probably 90% of these cases. There are several reasons for this, but irrelevant here. Can they allege bias because their cases are dismissed by the same Judge who has been specifically assigned a workload of tax cases? Obviously not. OK. Let us assume that this application for transfer was allowed [it was allowed initially] what would happen. Justice Oka’s bias would be applicable to all Government cases. Thus, no Government case can be placed before him. So what cases does a Senior Judge get assigned in this circumstance? Trivial Suits between private parties? Is that not effectively killing a Judge?  Therefore, this sort of application by the Government alleging bias is beyond the pale. It should never have been made, nor should it ever have been allowed.

Let us examine strike two. Once the application for transfer/reassignment of Judges was made to her Ladyship the Hon’ble Chief Justice Manjula Chellur, should she have even entertained or allowed it? Unequivocally no. Allegations of biased Judges are close to being Contempt of Court. Her Ladyship the Hon’ble Chief Justice Manjula Chellur could have refused the application and told the Government to go on with the hearing. If the State Government was aggrieved by the outcome they could appeal. I see no way that her Ladyship the Hon’ble Chief Justice Manjula Chellur could have allowed this application. But, she did. Strike two. Assuming that the status had not changed, as I have written in the preceding paragraph, this would have been the end of Justice Oka’s career.

Strike three, the actions by the Bar Association and Advocates Association is frankly a reflection on the cowardly times we now live in. To be politically correct, not to offend, to take the path of least resistance. After you have read the unfortunate sequence of events, clearly the slip up, or lack of appreciation of the implications of her Ladyship the Hon’ble Chief Justice Manjula Chellur in allowing the application should be called into question. If any sort of resolution had to be passed, surely it should have been against the Chief Justice and the State Government. What is the point of supporting Justice Oka? He was, and who knows, will probably be dead in the water anyway. No Government cases would be assigned to him. Totally bizarre logic by the Bar Associations. But, as I wrote, this is the times we live in. Why upset the Chief Justice? Why pass “negative” resolutions? Let us all be positive and support Justice Oka even if it is meaningless and does not address the issue at all.

As I write this, the situation has been obfuscated even more. It is time for strike four. The political correctness, the ego in not admitting that a mistake has been made has now come to the fore. As I had written earlier, the case was reassigned to a new bench comprising of Justice Mohta and Justice Girish Kulkarni. Probably on realizing the problem, and or on better advise and or on getting blasted by a Senior Judge, in modification of her earlier order her Ladyship the Hon’ble Chief Justice Manjula Chellur has constituted a Bench comprising of 3 Judges with Justice Mohta joining Justices Oka and Chagla. I am not sure how this has improved Justice Oka’s position. Is he or is he not biased? Will he be assigned Government matters? Even with this modified order, how has the allegation of bias against Justice Oka been removed? Simply by taking cognizance of the application and acting on it in this manner, I honestly believe that her Ladyship the Hon’ble Chief Justice Manjula Chellur has really really muddied the waters.

Let us see how this develops. Let us see how many more strikes this takes. Has the field of bias, forum shopping and assigning of cases to the convenience of litigants been changed forever? Probably yes.

Wednesday, August 2, 2017

And now ----- No more cars !!!

First things first. This post is written with inadequate knowledge. I am not an economist, scientist or environmentalist. My conclusions may appear highly opinionated. And are arrived at based on superficial observations, inadequate and questionable data, and with no scientific research. Oh yes, no pictures.

You would have read that in the UK, following France, motor vehicles with diesel and petrol engines cannot be sold after 2040. In other words the internal combustion engine will be history. That is in some 20 odd years. I would imagine that while 2040 is the date, no one would buy such a car at least 5 years before the ban, so effectively the time for selling cars, trucks and so on will be over in about 15 years.

I am reasonably certain that soon other western European countries like Switzerland, Germany, and Austria etc. will also similarly ban the internal combustion engine. When USA, Japan, China and India get around to doing this is anybody’s guess. But the writing is on the wall.

So, if the internal combustion engine is banned, vehicles would have to be fueled with electricity which would be stored in cells. Not particularly different from the electric cars we have around today. I assume that there would be dramatic improvements in efficiency of the cars as well as cells.

One matter that bears some thinking is the volte face by the many experts [read tree-huggers, Greens, NGO’s, fat cat employees of fatter cat NGO’s etc.]. Initially they led a strident chorus that emissions by petrol engines were really filthy. All problems in the world were attributed to petrol engine emissions. You will remember the alarmist ozone layer threats, the greenhouse gasses, global warming and what have you. The experts claimed that the way forward was diesel engines. Diesel engines emitted far less poisons. Fine. No problems. It became trendy to have a diesel fueled vehicle. Suddenly, in the volte face I was referring to earlier, now the very same experts say hello, diesel is poison, we were better off with petrol.

While that nonsense has been going on, we have this, literally earth shattering news that by 2040 the internal combustion engine will be banned. Why I brought this volte face business up was because if we have another volte face, and the experts say actually electric cars are poison and we really need the internal combustion engine, where will we be. Anyway, leave that thought in your mind while I plunge into my rant.

This decision on the ban of the internal combustion engine and the rise of electric cars got me thinking. Before going further, I have still to come to grips with how dramatic this decision really is.

Firstly, according to experts, they estimate that the consumption of oil will fall by approximately 200,000 barrels per year, year on year till 2040. I am unsure if this number of 200,000 is just for the UK or is a global figure. But the number is not the point, the principle is. There will be a year on year fall in oil consumption. Of course, it is not only the internal combustion engine that consumes oil; several other uses for oil exist. So on cars alone there would be a big reduction. Now, where does this leave our traditional oil producing countries? Saudi Arabia, Iraq, Iran, Kuwait, Venezuela, Qatar etc. etc.? Do those countries go broke and have domestic turmoil? If they do not go broke but have a more painful survival with a vastly and rapidly contracting economy, what happens to the large number of migrant workers there?

Jobless? Presumably.

And then they return home? Presumably.

And what happens in India? India has literally millions of people in the Gulf. They all come back and then what happens to their jobs in India?

Do we have massive unemployment?

Do we have a rise of the ISIS in the Gulf?

Will Kerala – which already has a fledgling ISIS – have a full on ISIS problem?

Think about that!

What about transport? By this I mean the huge business of transporting oil. Ocean going oil tankers, road going tankers, and, pipes. What would happen? Would the traditional oil tankers be a thing of the past? Sailors, shipping yards, ship builders and all the industry auxiliary to shipping – pumps – what would happen?

Fine, all that I have written about in the preceding paragraphs is vastly depressing. How about something a little more positive? Yes, pollution would fall and we would have less sore throats and chest disease.

To run all those electric cars you would need electricity, naturally. Electricity is finite. By this I mean that there is an installed capacity for electricity production. You have electricity generators that operate on nuclear fuel or water or wind or coal. You have to build plants, which is time consuming and expensive. You have to build windmills, and, wind farms which have their own challenges. So, unless someone gets started on building electricity capacity right now we will never be able to meet the rapidly increasing demand for electricity by the electric cars. Imagine in Mumbai if we have electric BEST busses, silent, rather than the cacophony causing bus we have now. Imagine all trucks and busses similarly electric and silent.

If we are to have all these electric plants built what would all the Jholawallas say? Especially if new plants were to be nuclear? That should keep lots of Jholawallas quite busy. What would they say to the millions of wind farms that would dot the hillsides or pepper the oceans? What about the favourite topic for all Jholawallas, rights of the downtrodden to land which has been forcibly usurped by rich corporates to set up wind farms. Aaha! I see a new business model here! Let’s make a project report and get funds to protest this new menace..

Of course, we already have our Jholawallas protesting saying that the tribals are being oppressed/cheated/exploited [fill in your favourite adjective here] by the filthy rich corporates who are mining coal in mineral rich India. The coal being used to fire thermal power plants to fuel us rich electric car owners.

Diversion of rivers to drive Hydel plants. Hmmmmm. Now that should be fun too. You can protest destruction of rivers, forests and, needless to say, the poor dis-housed tribals.

So at the end of the day the cynical me asks, is this a grand scheme to keep Jholawallas perennially busy? Formulate a grand scheme – let’s ban petrol, now let’s ban the internal combustion engine – and then protest. Keep writing proposals for more and more funds?

What company shares should you sell? Where would our Indian oil companies BPCL, HPCL, Indian Oil, and, Reliance be? What would happen to Maruti? What company shares should you buy? Suzlon?

So what really is worse? Diesel, petrol, electricity?

So many questions?

My mind is spinning.

Any thoughts?