DR Abhishek Manu Singhvi: Candid Corner

JUDICIARY
It is not a mere coincidence or good luck that India is the worlds largest operational
democracy. Amidst the wrecks and ruins of constitutionalism that litter the political
landscape of South and South East Asia, India remains a shining exception. If, despite
numerous problems of underdevelopment and poverty, India remains the sole example of
a newly independent nation emerging from the yoke of imperialism over the last sixty
years with democracy and democratic institutions taking firm and unshakeable roots, it is
largely because of an independent and active judiciary.
Despite the Indian judiciarys numerous scars and blemishes massive arrears and
the ADM Jabalpur judgement of the Apex Court being two of them it has remained the
hope of the common man and the biggest bulwark against oppression and tyranny.
The following collection is a pot-pourri of a functioning judicial system, with its
angularities and achievements, including the bane of the Indian judicial system viz. a
massive backlog of pending cases
(over thirty five million). The role of judges as lawmakers
performing judicial review and reflecting judicial activism is highlighted as also the
commendable responses of the judiciary in times of stress, while occasionally capitulating
into subservience. The collection ranges from the funny to the serious to the mundane:
from the strange laws in Norway and Saudi Arabia to the global divergence of judicial
opinion on the patting of a womans posterior. The judicial approach to celebrities and the
law of privacy, as also important public interest issues like the law of contempt and
Ayodhya, are discussed.

HAMMERING DOWN JUDICIAL CREDIBILITY
4-2-2001, THE PIONEER
The controversy sought to be raised by a former Law Minister regarding Chief
Justice A.S. Anand, apart from everything else, reflects the weakness of the Indian legal
system in being ineffectual and helpless in screening or preventing, at the threshold,
repeated scurrilous attacks on the judiciary by a tenacious and determined band of
petitioners, who, like the phoenix rising repeatedly from the ashes, have decided never
to say die.
Consider the following: A land dispute involving land inherited by CJIs wife
laboriously winds its way up the hierarchical ladder of the Indian judicial system and
finally comes to rest at the Supreme Court. A number of judges deal with the matter and
give detailed judgments with findings of fact and reasoned conclusions supported by
case-law. At each stage, the State Government contests the case vigorously and bitterly.
When, after almost a decade, the judges wife (whose husband by then has risen to be a
judge of the Apex Court and later its Chief Justice) is about to heave a sigh of relief at
getting back what was admittedly her grandfathers property, stray articles appear
casting aspersion on the verdicts. While disagreeing with the CJI on a totally unrelated
matter regarding the process of consultation for appointment of a tribunal chairman, the
then Law Minister fastens on to the land case and purports to cast doubt on the matter.
When few takers are found for the allegations regarding the land case, the focus is
changed abruptly and an attack is made alleging that the date of birth of the Chief
Justice was wrongly stated. Documents are flaunted at a Press conference to support that
view. Despite written protests by the Inns of Court and the General Council of the Bar to
the effect that the correct date of birth available in their records is as stated by the CJI,
legal notices and telegrams are sent to the CJI by one Sundaram from Chennai followed
by filing of a criminal complaint in a magistrates court. Meanwhile, in a pincer
movement, Kalchakra is periodically distributed free in courts and chambers, repeating
allegations not only regarding the land case and the date of birth issue but also
allegations regarding the CJIs tenure in the Jammu & Kashmir High Court.
A three-judge Bench of the Apex Court finds Vineet Narain of Kalchakra, prima facie
guilty of contempt. Several months later, another Bench of the Court (Justices Thomas &
Sethi) holds Sundaram guilty of gross contempt and records that not only is the date of
birth allegation regarding the CJI was false, but, had also been held so by the President
of India under the relevant constitutional provision several years ago and could not
even be raised by the petitioner. Thirdly, allegations regarding the CJIs J&K tenure are
reported in the Press to be identical to those in a PIL filed in the Supreme Court about 15
years ago, which were then considered in detail. They were not found apposite for any
further action and were later withdrawn.
Is this fair? Is this proper? Is there not a point when liberty without discipline
becomes anarchy? The Supreme Court is what it is because of the enormous faith of the
common man in the institution and those who man it.
Is it fair to repeatedly shake the foundations of that faith by such allegations? What
will be the result of the feeling generated that anyone can take pot-shots repeatedly at
Apex Court judges. Already, a new trend of (non PIL) epistolary jurisdiction has started
where a large number of persons, some very eminent, are formally and officially
proffering unsolicited advice in writing to the Apex Court judges on pending cases. As
students, we were taught that writing to judges on any pending matter was the most
palpable and gross form of contempt of court. Not that the contempt power is
necessarily able to protect hapless judges from assailants, who know that their victim is
defenceless because he lacks the elementary weapon of a right of response.

LAWS THAT HIT YOU FROM BEHIND
Judicial adjudication is a complex mix of several factors, including the socio-
cultural setting in which it takes place, the exact state of the law, the approach, the
subjective predilections of an individual judge and, of course, the facts of an individual
case. But divergent, and sometimes opposite, results can be achieved on an identical set
of facts. Italys highest criminal appeal court recently held that a pat on the bottom of a
woman employee by the manager of a public health agency in Northern Italy, did not
constitute sexual harassment. The appellate court, overturning the conviction of the
manager by a lower court which had sentenced him to 18 months in prison and levied a
fine of $ 3800, held the act of bottom patting it appears that bottom pinching was not
involved as isolated and impulsive, and not an act of libido.
The Indian Supreme Court has given dramatically different responses to similar
problems. After former Punjab DGP KPS Gill confronted senior IAS officer Rupan Deol
Bajaj at a dinner party on July 18, 1988, she tried to leave by getting up from her chair, at
which point he slapped her on her (departing) posterior. Allowing Bajajs appeal
against the High Courts quashing of the FIR, and directing Gill to face trial, the
Supreme Court found that the allegations, if proved, would establish the offence of
outraging the modesty of a woman, which it said, included propriety of behaviour,
scrupulous chastity of thought, speech and conduct and freedom from coarseness,
indelicacy and indecency. It added that the essence of a womans modesty is her sex
and from her very birth she possesses the modesty which is the attribute of her sex. Gill
was subsequently convicted of the offence and sentenced, but his appeal is pending and
the sentence is suspended.
In Vishakhas case (1997), the Apex Court adopted a set of detailed guidelines culled
out from the Convention on Elimination of All Forms of Discrimination Against Women
(CEDAW), inclusively defining sexual harassment as such unwelcome sexually
determined behaviour which directly or indirectly includes physical contact and
advances, demand or request for sexual favours, sexually coloured remarks, showing of
pornography and any other physical verbal or non-verbal conduct of sexual nature.
But the last word on the subject must remain with suffering Italian women and not
the Indian Supreme Court. Commenting on the Italian Appeals Court decision, one
Cristina Matranga of the Conservative Farza Italia party said: If 10 different men each
give us one single pat on the bottom, should we go home happy?
The recent Indo-Canadian Legal Forum, comprising the Chief Justices of India and
Canada, senior Supreme Court judges and some lawyers of both the nations, provided
vital insights for Indian lawyers relating to the Canadian legal system. Since the
deliberations were confidential and no record was kept, views were expressed with
great candour and complete informality. The Canadian side was led by Chief Justice
Beverly McLachlin, only the third woman Chief Justice in the world and a remarkably
able, competent and dynamic judge. She was pipped to the post of being the first
woman Chief Justice by the one appointed in Senegal, a few years ago and another, in
New Zealand, a few months before her. She is, however, likely to hold the Guinness
record for the longest serving woman Chief Justice since she was appointed in January
2000 at the age of 57 and, with Canadas judges retiring at 75, is likely to head the
Canadian judiciary till 2018.
Chief Justice Beverlys tenure is heartening in the context of the gross under-
representation of women at higher levels. The reason must have something to do with
the more traditional, conservative and closed club elements of the legal profession,
especially in comparison to business, politics and other professions.

JUDICIAL INDEPENDENCE IN TIMES OF
STRESS AND SOME STRANGE LAWS
11-3-2001, THE WEEKEND GENTLEMAN
Two recent examples from Pakistan and Fiji reflect the long suspected fact that
Constitutional adjudication involving the validity or otherwise of regimes and
governments has never been purely a legal exercise and has invariably been influenced
by the judicial perception of popular will, i.e. the degree of support, sympathy, or even
empathy amongst the citizens for a particular viewpoint. In this sense, judicial
objectivity is a mirage, since, as Karl Llewellyn put it in his classic, The Bramble
Bush, such adjudication is based on realism and emanates from a complex
combination of personal philosophy, popular support and subjective opinion.
There have been several historical examples of judicial decision making going
completely astray and performing a patently erroneous legitimation function in
favour of the entrenched establishment. The US Supreme Court was clearly influenced
by its perception of contemporary prevailing ethos in the second half of the nineteenth
century to hold in the infamous Dred Scott decision that nothing in the US Constitution
barred slavery.
The prevailing ambience of war and insecurity in the wake of the attack on Pearl
Harbour by Japanese fighter aircraft ultimately led the US Supreme Court in the equally
infamous Korematsu cases in the 1940s to uphold the segregation and detention of
Japanese-Americans purely on a race and ethnicity based classification. The war took its
toll on the House of Lords in UK which, in Liversidge v. Anderson, reduced judicial
review of wartime regulations to vanishing point despite Lord Atkins classic dissent
stoutly reaffirming the principle that, amidst the clash of arms, the laws are not silent.
Indian judicial independence reached its nadir during the emergency, when five judges
of the Apex Court in ADM Jabalpur, while expressing a diamond hard diamond bright
optimism in favour of State action and seemingly satisfied with the maternal care
bestowed by State authorities on detenues under preventive detention all over India,
held that such detention orders were completely immune from judicial review (even on
grounds of mala fides) during the operation of emergency! It was left to Justice Khanna to
dissent a dissent which cost him his impending Chief Justiceship of India, but won him
a permanent place in the hearts and minds of Indians and a full length portrait, which
adorns Court number two in the Supreme Court.
Last year, the Pakistan Supreme Court performed its loyal legitimation role to the
hilt when it upheld the legal and constitutional validity of the Pervez Musharraf regime,
astonishingly despite holding it to be an extra-constitutional step of taking over the
affairs of the country by the Armed Forces. It justified this legal and mental
gymnasticism by referring to the extra-constitutional takeover as a deviation for a
transitional period to prevent any further destabilisation, to create corruption free
atmosphere at national level through transparent accountability and to revive the
economy before restoration of democratic institutions under the Constitution. Some of
the sops which the Apex Court offered (possibly to salve its own conscience) included a
reiteration of its power of judicial review despite the emergency proclamation and
despite a new oath, as also the specification of a three-year limit from the date of the
army takeover (Oct 12, 1999) for the Chief Executive for achieving his declared
objectives. It also cast an obligation upon him to appoint a date, not later than 90 days
before expiry of the aforesaid period of three years for holding a general election. Since
more than half that period is over, it remains to be seen, in the event Chief Executive
Musharraf does not decide to oblige the court by gracefully retiring from public life in
October, 2002 (or another Chief Executive decides to replace him in a coup), as to what
fresh legal acrobatics the Apex Court of Pakistan will have to indulge in to legitimise the
fait accompli.
In this context, the recent judgment of the Court of Appeal of Fiji (upholding the
November, 2000 judgment of Judge Anthony Gates of the High Court) to the effect that
the 1997 Constitution is still valid, that the military takeover and the appointment of an
interim government was unlawful and unconstitutional and that all those deposed in the
takeover (including former PM Mahendra Chaudhury) continued to be members of
Parliament is laudatory. The Court has also ordered re-assembling of the last
democratically elected Parliament.
But even the Fijian example unusual and welcome that it undoubtedly is could
not come during, or immediately after, the patently illegal acts of Speight in
overthrowing the Chaudhury Government. Nor can it be deemed that the judgements in
Fiji are reflective as much of judicial independence, as of a changed climate and a
growing public disgust against those who took over forcibly.
My list of strange laws from diverse lands keeps growing. Here is a sample:
NORWAY
You may not spay your female dog or cat. However, you may neuter the males
of the species.
SAUDI ARABIA
It is illegal to kiss a stranger.
A woman may not drive a car.
It is considered an offence if a woman appears in public, unless accompanied by
a male relative or guardian.
Male doctors may not examine women, and women doctors cannot examine
men.
Women may not become doctors.
SCOTLAND
You may not fish on Sundays.
It is illegal to be a drunk, in possession of a cow.
Trespassing on someone elses land is legal.
If someone knocks on your door and requires the use of your commode, you
must let them enter.

JUDGES AS LAW-MAKERS
The CNG case raises the wider issue of the dialectics of decision making between
the three primary organs of Statelegislature, executive and judiciary amidst the
backdrop of the perceived public good.
The myth that judges do not make law was exploded decades ago. Judges have
been doing much more than merely applying the law from the very birth of the
adversarial adjudication system. Judges do not merely interpret the law, nor do they
only iron out the creases. Had these verbal forms of deception been true, there would
have been no Marbury v. Madison in USA more than 200 years ago (declaring the right of
judicial review of legislation) nor Keshvananda Bharti in India (reserving the right to
declare even a constitutional amendment unconstitutional if it offends the so-called,
delightfully vague, basic structure of the Constitution).
The birth of public interest litigation (PIL) in India advanced the frontiers of judicial
activism, even judicial legislation, considerably. But barring occasional aberrations
(where individual judges dealing with PILs may have become bulls in a china shop),
judicial activism has been evolutionary, cautious and based upon some juristic principle.
If PIL is an unruly horse, most of its riders have been skillful judges. Judges do
legislate but they are extremely careful, self- critical and cautious while doing so. In the
first place, they do so only in cases of palpable executive abdication. Secondly, they act
more readily in unoccupied fields, i.e., where legislative abdication, indeed amnesia,
has continued for a considerable period and the subject-matter is not covered by existing
legislation. Thirdly, and most importantly, judges proceed on an in-depth and sensitive
evaluation of public interest, public demand and public need. This is the most amazing
part in many ways. Unelected judges make much more accurate, vigorous and dynamic
articulators of the views and grievances of the silent majority much more than even their
elected representatives or their executive masters.
In our constitutional scheme, an Apex Court order has to be either modified or
varied by the court itself or obeyed and implemented or its disobedience visited with
contempt. Before doing the second, the Apex Court did give a long rope on the first to
successive State and Central Governments. In a sense, the Delhi Government is paying
the price for the accumulated inaction of its predecessors. The courts orders even
apart from strict law and viewed on the touchstone of pragmatism have to be seen in
the context of repeated and generous time limits granted, not complied with and
successively extended.
As far as contempt is concerned, it must be remembered, that it is no mean
achievement of our legal system that in the overwhelming majority of cases, the
directions are implemented in letter and spirit. Flagrant disobedience of an order has
been so rare as to be virtually non-existent. The Delhi Government would be well
advised to keep this historical fact and the non-adversarial, non-confrontational spirit of
the PILs in mind while formulating in its forthcoming explanation to the Apex Court.
Some legal historians have linked the activism which goes with PILs to the Apex
Courts post-Emergency quest for legitimisation, since the Emergency period had seen
the nadir of judicial review with the decisions like ADM Jabalpur. The post-Emergency
PIL phase has also seen three paradigm shifts of focus from physical abuse human
rights PILs in the first phase of the mid-80s (Bandhua Mukti Morcha
and the like) to the environmental PILs (the M.C. Mehta cases) to the late nineties phase
of economic or white collar crime or corruption-related PILs (hawala case, etc.). More
acutely than the other two categories, the environmental PIL category raises direct issues
of short-term sacrifices for long-term permanent gains based upon inter-generational
equity.
Harmonising these short-term and long-term tensions is what political sagacity,
legislative depth, executive alacrity and judicial statesmanship is all about.

U.S. JUDGES AND BACKLOG
In December 2000, in the same week that the Indo-US Legal Forum was scheduled
to commence in New Delhi, the Al Gore - George Bush electoral imbroglio reached the
US Supreme Court from Florida. The visit of the four member US delegation, including
two US Supreme Court judges Sandra Day OConnor and Stephen Breyer, had to be
cancelled at the last minute in view of the lightning paced events in the US Presidential
election.
The same forum was rescheduled to commence on the evening of September 12,
2001, at New Delhi. Same members of the US team, including the same US justices,
arrived a day early while some left USA just a few hours before the catastrophic events
of September 11 morning at New York and Washington. Some of them learnt of these
disastrous events only through the visual and print media after reaching Delhi. Had
their flights been a few hours later, the rescheduled Indo-US Forum would have had to
be postponed again.
Although social events in India in connection with the forum were cancelled in
view of the State mourning in the USA, the visitors displayed steely resolve to ensure
that the official programme suffered minimum disruptions. Despite serious security
issues, anxiety over developments in their country and sorrow at the magnitude of the
disaster, it was important not to let terrorists bring the entire country to a halt.
Therefore, while it could not be business as usual, the even keel of life could not be
allowed to be derailed by a handful of madmen.
One of the major issues discussed at such legal exchanges is the backlog problem
(i.e., the issue of huge pendency of cases) and the solutions thereof. The size of the
problem in India is enormous but, as with most other things in India, unevenly
distributed. In February 2001, arrears at the SC were just 21,936, while all the High
Courts put together had approximately 40 lakh plus cases pending and the 500-odd
District Courts totalled the awesome figure of 2.25 crore plus. A decennial analysis of the
SC shows that while filings and disposal in the SC were roughly equal from 1950 to
1970, it was the decades of the 70s and the 80s which saw the hiatus widen and
although, disposals increased in 1981 to 1990 to 3 lakh cases, the filings were 3,71,000.
More than 50 per cent of High Court cases are more than three years old and the
individual High Court judge has to deal with 5,358 cases on an average p.a. compared to
833 by his SC counterpart and 1,661 by his District Court counterpart. The SC achieved a
remarkable reduction from 1.50 lakh pending cases in 1994 to less than 22,000 cases in
1997. Across the board computerization, disposal of cases on common subject matter by
batching and common classification, a rationalization of registry procedures and a
fundamental attitudinal change were primary determinants of this reform process. A
multi-pronged strategy, if consistently applied for a long time, would yield significant
results at the High Court and District levels.
A disciplined and computerized court administration which is uniform for the
whole country with common classification codes would enable batch disposals. A
national judicial informatics grid should link all the High Courts, District Courts and
Apex Court into an integrated grid. Each court should have two tracks for disposal
some judges to dispose of current filings and some to attack the pending backlog. Cause
and case lists must be rationalized, oral arguments must be limited with brief written
submissions and weekly analysis of disposal figures must be circulated. Structural
reforms would eliminate delays in appointments and the strength of judges must be
increased. Infrastructure must be provided on a massive scale and financial autonomy
must devolve from the executive to the judiciary.
In legislative changes, second appeals must be eliminated and the weapon of costs
must be efficaciously used to combat adjournments and frivolous filings. New fast track
courts are also likely to considerably expedite matters.

ARUNDHATI TO AYODHYA
This past fortnight has been dominated by two As Arundhati and Ayodhya. I
happened to write and/or speak on both in several fora. On the first Arundhati my
feeling was that public opinion was more against her than in her favour. She was not
seen as a disempowered woman who had been a victim of an unjust system which
denied her the basic and fundamental right to free speech and convicted her of
contempt. There appeared to be several reasons for this.
Firstly, the sequence of events showed that the objectors to the Narmada dam had
freely exercised their right to free speech both inside and outside the courtroom over
several years before suffering an adverse 2-1 majority verdict on the merits. Thereafter,
Roy published an article in Outlook which became the subject of severe comment from all
three judges (including the dissenting judge who is now the Chief Justice of India) who
merely issued a warning but did not initiate contempt proceedings. Still later, a dharna
was organized outside the Supreme Court gates where several further allegedly
contemptuous remarks were made. Notices of contempt were issued to Patkar, Prashant
Bhushan and Roy. While the first two denied the remarks and acts or omissions
attributed to them, Roy filed an affidavit in response to the notice criticizing judges for
wasting judicial time by taking note of such allegations while being unable to spare a
judge for the Tehelka inquiry, arbitrarily silencing criticism, muzzling dissent and
harassing and intimidating people like her by taking note of a matter which even a local
police station would have ignored. Roy, thus, appeared to be desperate to become a
martyr, to be hauled up and be convicted of contempt and not a powerless victim of
violation of free speech. Thirdly, even our founding fathers envisaged contempt of court
as a valid and reasonable restriction on the right of free speech and explicitly so stated in
the Constitution.
Fourthly, so long as one concedes that the concept of contempt has a place in
society and in law, so long as such a law exists, it cannot be ignored or never exercised
or never applied. Fifthly, there are few legal systems where freedom of press and free
speech is more comprehensively protected and jealously guarded than in the Indian
legal system, especially by the Apex Court. Sixthly, for every instance of conviction for
contempt followed by a token punishment, there are umpteen examples of discharge
and dropping of such proceedings despite grave provocation: Wah India, Vineet Narains
Kalchakra, Mohd Yunus case and so on.
Two areas of reform are, however, imperative. One, the Supreme Court has to
assiduously cultivate the virtues of consistency in contempt decisions. Judgements like
the P. Shiv Shankars case are not only legally erroneous but create a wholly avoidable
impression of discriminatory application of the contempt jurisdiction. Second, truth
must be seriously considered as a valid constitutional defence to a contempt charge
though sufficient safeguards are required to ensure that frivolous and casual defences
are not allowed to compound and exacerbate actual contempt in the guise of proving
truth.
The Government has no one but itself to blame for the Ayodhya imbroglio. It knew,
for several months, about the March 15 deadline. Instead of issuing a simple warning
that status quo be maintained at the site, the Governments categorical stand that the 1994
judgement permits handing over and use of the undisputed land was repeatedly
asserted by several governments and party members, including the Law Minister. A
present Governor and former BJP Vice-President even challenged the Apex Courts
power to stop puja. This was despite paras 47, 56, 57 and 96(b) of the judgement which,
at the minimum, raised a debatable issue. Prior to the Court hearing, the Prime
Ministers stand appeared to be that puja would be permitted subject to Supreme Court
clearance. No wonder, the Attorney-General did little more than espouse this view in
Court. The Government was shocked and stunned because it did not expect two
responses. One, it never dreamt of such a strong, categorical and comprehensive
rejection of its stand by the Court. Two, it did not anticipate its allies reaction. To cover
up the latter since it is clearly fraught with even more dangerous political
consequences than the former the Government came out with as amazingly
duplicitous canard. It disowned its stand in the Court. The AG should have seen
through this game and not allowed himself to be offered as a scapegoat. In its
continuingly consistent double-speak even after the court hearing, the BJP through its
spokesman Vijay Kumar Malhotra maintained that the stand of the AG was right. No
one addressed a simple issue: while it is true that an AG is a constitutional functionary
entitled to his own considered responses on issues of law, the issue in question is one
entirely of fact the logistics of puja and involves no constitutional or legal
interpretation at all. Secondly, the AG was representing the government and doing no
more than stating its stand. Merely because the allies of the BJP created a subsequent
furore should not have led the BJP to rapidly jettison the courage of its convictions.

COURTING CASES FOR TROUBLED TIMES
Suppose you go to a mythical foreign country, which proclaims itself as a world
power, and makes all the right noises about statesmanship and a new international
economic order.
In one of the State High Courts of the country, you would find an old dilapidated
building done-up with slick new interior, sophisticated woodpanelled courtrooms and
shining new furniture. Then, you would find three judges sitting in three courtrooms
(against a sanctioned strength of six). Each judge has a list of 500 to 700 cases published
each day (running into several pages). Each court deals with not more than 30-35 cases
per day. In 50 per cent of these cases no effective order is passed, and the cases are
simply called out and adjourned for some petty procedural reason.
The 15-20 cases decided are only by way of short unreasoned interim orders.
Ninety per cent of the total list is not even called out.
Late in the afternoon, hectic arguments take place between lawyers and the judges
as to which, out of the remaining 500 cases (say 78, 291 or 343), should be heard by
taking them out of turn. Almost one hour of the entire five-hour day is taken-up in
erudite arguments only on the issue as to why a particular case should be taken up out
of turn, and whether the alleged grounds of urgency are justified.
Ultimately, 90 per cent of the 400 or 500 cases are rolled over to the next days list.
A fresh case filed in this High Court would not be listed for the first hearing for
several months. Arguments have to be heard as to why a new case (for instance, stay of
tender, stay of disconnection, stay of demolition, etc.) should at all be given a first
hearing. If one out of the three honble judges falls ill, or goes out of town, a substantial
part of the work comes to a grinding halt. For those cases required to be heard by a
division bench (i.e., a two judge bench), 66 per cent of the High Court has to stop
working to form a DB. Bail matters of the year 2000 have not even been taken up, much
less disposed of.
No, this is not a Kafkaesque farce, or a Shakespearian tragedy. This mythical
foreign country is the Chattisgarh High Court, where three honble judges are
overburdened and struggling to cope with the workload of 10 against a sanctioned
strength of only six, but (amazingly) an actual strength of only three, right from the
creation of this nascent State two years ago.
Since the judiciary has arrogated to itself the power of judicial appointments, it
cannot escape the blame for this state of affairs. Nor can the Central Government
absolve itself of continuing to remain a silent, supine spectator. If the State Government
whose role in the new constitutional dispensation is limited is delaying any
recommendations, it would also have to share the blame for this deplorable state of
affairs.
How can we be anywhere near Gandhijis aim of wiping every tear from peoples
eyes if we cannot even provide them with a chance of first listing or first hearing (leave
aside disposal and substantive relief) to the ordinary tribal, the poor farmer of
Chattisgarh, the ordinary middle level trader, the anonymous prisoner languishing
behind bars?
MATTER OF PRINCIPLES: Despite the all pervasive cynicism, one encounters
several examples of principled politics, too. A few weeks ago, in UK, I was impressed to
find Tory MP Burrell resigning from the Conservative Party, and then, speaking on the
floor of the Commons in support of the Labour, supported Bill seeking to confer rights
of adoption to gays, which was being opposed by the Tories. Are our honble legislators
from UP listening?
Talking of disciplined civic society, have you ever wondered how, when you are
caught up in a traffic jam in, for instance, London or Paris, there is not a single horn, not
a single person trying to break the queue moving at a snails pace and everyone keeping
his or her share of peace.

CELEBRITIES, PAPARAZZI & THE LAW
23-4-2003, HINDUSTAN TIMES
The Michael Douglas-Catherine Zeta Jones v. Hello Magazine saga is significant apart
from the undeniable glamour of the couple and their memorable performances in
Romancing the Stone and Fatal Attraction (Douglas) and the recent Chicago (Zeta Jones).
In the initial round of litigation after the $ 2 million wedding-of-the-century at New
York in November 2000, the court of appeal vacated an interim injunction by the High
Court, the latter having prohibited Hello from publishing unauthorised photos of the
wedding.
The reasoning was somewhat curious. The court recognised the strong likelihood of
the couple succeeding at the final trial on their claim for breach of confidence. It also
emphasized the need for English Law to recognise the right to privacy, especially in
view of the Human Rights Act of 1998 (operational from 2000), which requires English
courts to give appropriate effect to private and family life, elaborated in Article 8 of the
European Convention of Human Rights.
One judge further recognised a right to privacy specifically not only grounded in
breach of confidence but also to protect those who simply find themselves subjected to
an unwanted intrusion into their personal lives. Even the right to free speech was,
according to the court, subject to the principle of proportionality and, therefore, liable to
be subordinated to considerations of breach of confidence and
privacy.
Yet, strangely, the High Court injunction in favour of the couple was reversed on
the ground that the balance of convenience required that no prior restraint be issued
against Hello whose entire issue would stand scuttled if the injunction continued.
Conversely, it was said, if the rival OK magazine, which had obtained the contract from
the star couple succeeded at the trial, they could be compensated in money. But one may
well ask if this would be true in virtually all cases. If so, what would be the relevance of
all the above observations in favour of the right to privacy if no injunction to prevent its
direct invasion by an intruding photographer could be granted, and only later damages
were an adequate alternative remedy?
After about two years, we now have the trial court judgement, which is even more
curious. Justice John Lindsay, even while accepting that distress was caused to the
couple and noting the strong case for a privacy law made out by one judge of the appeal
court in the earlier order, rejects all claims of privacy. Instead, he holds in the couples
favour on the much narrower ground that the wedding was a valuable trade asset, a
commodity the value of which depended, in part at least, upon its content at first being
kept secret and then of it being made public in ways controlled by the couple.
Thus, directly contrary to the legal position stated in the earlier judgement, the trial
court held that Hello breached the couples commercial confidence rather than the right
to privacy adding that it was for Parliament to enact a comprehensive right to privacy.
There is no reason why persons in the public eye whose activities may be in the
public domain not be entitled to a right to privacy. In the Douglas case the couple had
taken all precautions after granting exclusive rights to OK. None of the media was
permitted access and all guests were instructed not to take photographs. All service
providers to the wedding signed separate confidentiality agreements, and security
checks were stringent.
But why not, one may ask, a right to privacy even in public places? There have been
fairly serious transgressions. Arnold Schwarzenegger and wife Maria Shriver were once
forced off-the-road by two carloads of photographers as they were driving their son to
nursery school. Princess Diana died while being pursued by a horde of paparazzi
photographers. At Tony Curtiss outdoor wedding, the paparazzi hovered around in
helicopters to take photographs.
Depending on the duration, extent and means of intrusion, there is no reason why
public figures should not be left alone when pursuing legitimate private activities, going
about their daily chores or enjoying intensely private moments. A safe distance would
neither affect normal reporting nor inhibit free speech and expression. Perhaps the
partial victory of the Douglases is for the wrong legal reasons.

JUDGE WITHOUT BIAS
The judiciary has taken an unprecedented beating in the last few months. The
nature, diversity and geographical spread of the scandals have given it an all-India and
an institutional dimension: from sex to money, from Delhi through Rajasthan to
Karnataka, from young to senior judges; from appointees under the old Central
Government appointment system to those under the current judicial collegium system.
As controversy erupts Indians start debating, as usual, about new institutions and
new structures. They forget that, ultimately, no system is better than those who operate
it. If disenchantment with the 43-year-old system (1950-1993) of judicial appointments
by the executive (in consultation with the judiciary) led to its substitution by a judicial
collegium of five senior judges, which we are now seeking to replace with a National
Judicial Commission (NJC), there is no reason to suppose that the latter, like a magical
wand, will rid us of our ills or that our disillusionment with it will not start even sooner
than the decade it took us to begin discarding the previous collegium model. Alexander
Popes dictum applies as much to judicial institutions as to politics: For forms of
government, let fools contest, whatever is best governed, is best.
More appropriate to the judiciary are the remarks made by the former Chief Justice
of Australia, Sir Harry Gibbs: Judicial commissions, advisory committees and
procedures for consultation will be useless, unless there exists among the politicians of
all parties (and, I may add, among the judicial and legal fraternity), a realisation that the
interest of the community requires that neither political nor personal patronage nor a
desire to placate any section of society should play any part in making judicial
appointments.
However, the single-most important reason for supporting NJC is not so much its
proposed powers of appointment or transfer of judges (its original raison detre), but the
proposed power of disciplining errant judges. The present system of having the
brahmastra of impeachment and nothing less than this death penalty is clearly
unsatisfactory. Therefore (and secondly), the commission having a graded hierarchy of
powers from warning, suspension, transfer, dismissal, removal to recommending
impeachment would be a salutary corrective to deviant judicial behaviour. Thirdly,
such disciplinary action would have to vest in a body preponderantly peopled by
judges. But if the NJC has anything more than a marginal representation from the execu-
tive, it may fall foul of the basic structure of the Constitution of which independence of
judiciary is an intrinsic and integral part. Powers to police and discipline judges being
with the executive government, which is also the biggest litigant before the courts,
would be a constitutional anathema.
Fifthly, the commission has to be kept as small and tight-knit as possible to avoid
indecisiveness and stalemates. Sixthly, an interesting irony remains, viz., if the basic
structure principle requires an overwhelming preponderance of judges in the NJC, how
is the new system meaningfully different from the existing system of a judicial
collegium? Perhaps the slightly broader-based nature of the proposed NJC (including
inclusion of one senior politician and one eminent jurist or academic), as also its
proposed powers of disciplinary action, are the only (partial) answers.
The crux of the problem lies at the stage of appointment. The remedy, therefore,
must be primarily preventive and not curative. Almost any person, acting in a bona fide
manner, even if not familiar with a particular High Court, would, after a couple of
weeks, be able to identify the five or ten best names from the legal profession deserving
and willing for appointment to the bench from that High Court. Identifying the really
deserving individuals for judicial appointments is thus not difficult. The real problem is
that despite knowing these deserving candidates we play favourites, caste games and
politics. We, thus, end up irretrievably delaying the appointment of deserving names
(who leave in disgust) after which we triumphantly appoint a high sprinkling of second
or even third graders. So long as this problem remains at the appointment stage, no
amount of legislation and no number of new institutions are going to improve the
system.

NOT THE LAST WORD
Two judgments over the last month deserve analysis. The first delivered by the
European Court of Human Rights examined the issue as to whether the German
decision dismissing applicant Sahins request for access to his child, born out of wedlock
breached his right to respect for family life (under Article 8 of the European Convention)
and/or amounted to discriminatory treatment under Article 14. The court dismissed the
applicants claim under the former but upheld his grievance under the latter.
The decision is noteworthy in several respects. First, it is one of the few decisions
focusing on custodial rights of children born out of wedlock as opposed to such issues
arising in divorce proceedings. Second, it reflects the existing position in many
countries, where the law regarding children born out of wedlock leaves it to the person
having custody, normally the mother, to determine whether and to what extent the
father should be allowed to spend time with the child and grants no rights to the father.
Third, these countries have proposed a reform in the domestic law but the European
Court held it to be discriminatory even ahead of the proposed legal reform. Fourth, the
court upheld Germanys objection on the basis that Article 8 requires domestic
authorities to strike a fair balance between the interests of the child and the parents. The
States denial of access was justified because experts in the case had concluded that a
right of access without prior contact between the child and the father was not in childs
interests.
But, dramatically, the court upheld the allegation of discrimination noting that
although the domestic courts had found on evidence that the applicant had applied for
access out of true love for his daughter, those courts gave primacy (as they were obliged
under German law to do) to the mothers wishes and feelings qua the father. As the
European court concluded: Having regard to the fact that these courts were convinced
of the applicants responsible motives, his attachment to his child and his genuine
affection for her, they placed a burden on him which was heavier than the one on a di-
vorced father under the Civil Code.
The second judgement, by the Rae Bareli court in the Ayodhya case is, to put it
mildly, peculiar. Its 130-page copy in Hindi was made available recently and, till page
119, contains narration of facts, summary of rival arguments, citation from diverse
judgements and a summary of legal propositions deduced by the judge at pages 119 to
123. These principles are applied to the facts of the case from page 124 and the Advani
issue is disposed of between pages 124 and 127.
Advani is discharged on two bases: that he asked his security officer Anju Gupta as
to what was going on within the structure and that he appealed to kar sevaks to get down
from the dome. Although several other statements of witnesses alleged that this was
said by Advani to prevent hurt to kar sevaks, it is taken to be one of the indications of
ignorance on Advanis part regarding the events taking place.
This doctrine of ignorance is quite preposterous for the simple reason that all the
leaders were standing together a little distance away from the mosque, and that no one
could reasonably be expected to be blissfully unaware of the obvious and natural
consequences of thousands of kar sevaks attacking the mosque with hammers and sharp
instruments a few yards away. Lastly, on this reasoning, several other stray exculpatory
statements were available on the record of other leaders also, all of whom were,
however, prima facie found liable to face charges. The High Court will now rule on the
validity of this judgement.

LEGALLY IRREGULAR
The Tribunalisation of justice over the last four decades has seen tribunals for
company law, excise and customs, service matters (so-called CATs, SATs and RATs),
income-tax, banking dues recovery, the nascent Competition Commission and so on.
Most of these subjects have been hived off from the erstwhile High Court jurisdiction.
Whether this general transfer of adjudicatory functions from an independent judiciary to
tribunals manned by retired bureaucrats and judges appointed by the executive is good
and healthy for the democratic system is a larger debate and not the subject today. What
is clear, however, is that one set of such tribunals the BIFR and its appellate avatar, the
AAIFR set up to deal with industrial sickness and to attempt to revive sick units, has
failed.
Out of approximately 5,000 references of sick companies registered under the Act
since 1987, an infinitesimal 8 to 10 per cent units have been revived. Approximately 30
per cent companies have wound up and roughly 1,600 cases are pending in BIFR, many
for years.
The government decided to merge the sick companies jurisdiction with the
proposed National Company Law Tribunal and its appellate body. It was also decided
to amend the infamous
section 22 of the SICA Act, 1985, which automatically unfurled a protective umbrella in
favour of companies with pending references in BIFR or AAIFR and prevented any
creditor from recovering any debt or taking any coercive steps whatsoever either against
the sick company or even against the guarantor of the debt, without prior permission.
Section 22 swiftly became a haven for crooks and defaulters.
Ironically, the proposal to abolish the tribunal itself has been pending for three
years. Meanwhile, a Kafkaesque farce continues to be enacted. Despite the BIFR
pendency, against its maximum strength of 14 members, the BIFRs actual strength has
never exceeded eight since its constitution and for a long time now has been only four. It
thus functions with only two benches as against a possible seven.
In the last 15 months, the AAIFR has functioned only for five months (Jan-March
and May-June 2003). No effective hearings have been held for the last 12 months.
Despite that, a new chairman was appointed in the end of 2003, but he has no other
member and, therefore, comes to office and leaves without conducting any hearings in
the absence of a specific power to do so without a member. Those who want urgent
relief against the BIFR orders leapfrog and go directly to the Delhi High Court. But for
many others, the lame duck AAIFR is a blessing in diguise, as they merely need to
register appeals against orders of the BIFR rejecting their registration, which lie in the
registry of the AAIFR with a certainty that they will not be taken up for hearing and
disposal.
So long as the appeals are pending the infamous protective umbrella of section 22
continues to prevent creditors acting against crooked promoters. Everyone is happy.

CLEAR THE COBWEBS
Three recent addresses by the Chief Justice of India have imparted a new sense of
urgency to the old crusade of eliminating inefficiencies in the justice delivery system.
While his addresses two in September: at the Chief Justices Conference and at the
Joint Conference of Chief Justices and Chief Ministers, and one on Law Day on
November 26 reflect his zeal for sober reform and the innovative initiatives underway
at the Apex Court. They also reflect the many miles which the Indian judiciary at the
lowest level and at the High Court level has to walk to ensure fair, impartial, effective
and timely justice to the common man.
Roughly, three crore cases were pending as on June, 30 this year in Indian courts. A
hierarchical break-up illustrates the many-Indias-in-one paradigm even in the judicial
system. While the Supreme Court accounted for only 29,315 of this figure and all the
High Courts together for about 32 lakhs, the subordinate courts had over 2.53 crore cases
pending. Prevention of this lopsided growth in the arrears pattern by attacking the
problem at the base of the pyramid and by duplicating the commendable initiative at the
apex level in the lower courts is, thus, the need of the hour.
Secondly, since average disposal per year at each of the three court levels is roughly
equal to the average institution per year although at the subordinate level, the former
falls short of the latter by about ten lakh per year and at the High Court level by about
1.20 lakh per year it does not permit a reduction of the pending arrears without
surgical intervention.
Thirdly, there is no single remedy or a set of remedies for this problem. The
solution has to be multi-pronged, consistent and applied uninterruptedly for two to
three years as part of one comprehensive game-plan and not through a series of
uncoordinated, ad hoc initiatives which do not yield a synergical result.
Clearly, unfilled vacancies in judicial posts are a major obstruction to expeditious
justice delivery. Here again, while the Apex Court has only one vacancy, the High
Courts have 198 and the subordinate courts 2,101. There can be no medical treatment
despite numerous hospitals but no doctors. These judicial vacancies are particularly
staggering because India has arguably the lowest number of judges per million of
population (up now to 12 or 13 from 10.5) and yet keeps even this proportionately low
strength vacant. It is heartening that at least for the High Courts, the Apex Court
collegium has cleared 98 recommendations since June and 36 other names are under
process. The CJIs declaration that by the end of 2005 there shall be no High Court
vacancy, is commendable, but unless the High Courts are forced to gird up their loins
the subordinate judiciary, which is the backbone of the system, will continue to have
about 15 per cent of its sanctioned strength vacant.
Fifthly, one must ask as to why a number of the laudatory initiatives of the Apex
Court are not fully duplicated at the High Court level and more particularly, with
suitable modifications, at the level of subordinate judiciary. Some of these relatively
simple yet effective reforms at the apex level include compulsory knowledge of
computers for new entrants into the staff of the judicial system, compulsory computer
training for the existing staff, the listing of a new/defect free case within a few days (still
a distant dream in several High Courts), the availability of full information on the
internet in respect of a case filed, including defects in filing and its status in the
adjudication pipeline.
Priority is still not given at the subordinate level and in several High Courts to
certain deserving categories like cases of senior citizens, matrimonial disputes, cases
involving out-of-job labour, group matters, short matters, election disputes and so on.
Computerisation is necessarily a key weapon in the war on arrears but while the Apex
Court is already implementing exciting projects at the cutting edge of advanced
technology, the other courts are still a far cry away.
Some of the Apex Court innovations include the availability of a list of filing defects
of 379 standardised items available on the website, digitilisation of old records,
automatic listing and redistribution of cases among benches, e-kiosks for the common
man to get all information on his case, interactive voice response system enabling a
litigant to access the status of his case on a prescribed phone number, availability of all
case lists on the net, computer-controlled attendance system for court employees, bar-
code based file tracing system, video conferencing facility to ensure instant
communication within the large judicial fraternity, availability of digitally signed
certified copies and so on.
Transparency increases accountability and information dissemination is the key to
transparency. The very welcome announcement by the CJI of the proposed publication
of the annual report of the Supreme Court must be replicated at the High Court level
and eventually at each subordinate court and the data therein must be displayed in a
uniform, prescribed format to facilitate comparative analysis.
Last, but not least, nothing is possible without monetary resources. The Central
Government must urgently increase the meagre and infinitesimal plan allocations of
0.071 per cent and 0.078 per cent of the total plan outlay, respectively, of the Ninth and
Tenth Plans allocated for improving infrastructure in the judiciary. Moreover, the
axiomatic condition of centrally-sponsored schemes that the utilisation of the central
grant is permissible only if a matching grant is provided by the States, renders many
such grants mere paper promises. The judiciary evokes more faith and trust than any
other State organ. Let us not betray the trust.

CHANGING LAWS COURSE
It was Thomas Hardy who said, If you take care of the small things, the big things
will take care of themselves. As we celebrate the 55th anniversary of our republic, its
important to re-dedicate ourselves to that ethical norm, especially in reforming the legal
system.
Most reforms dont require elaborate legislative or structural alteration. There are
millions of cases pending in our courts. Lakhs involve deposits of money in court, for
example, by a private petitioner demanding the quashing of a government bill (part of
which the court has asked him to deposit) or by a private plaintiff seeking injunction
against another where the court directs him to deposit money as security. Such cases
add up, in the Delhi High Court alone, to deposits of over Rs. 55 crore, which are lying
with the courts registrar.
Astonishingly, the major sum has remained with the court, without being
deposited in any interest-bearing account or fixed deposit. The result is that after many
years of litigation, the victorious side doesnt get the money with interest but merely the
amount lying sterile with the registrar. No one has addressed the issue and the registrar
cant make the deposit without an affirmative court order. In seven years, Rs. 55 crore
would have doubled in interest-bearing account and many litigations take considerably
longer than that. Luckily, because of the exertions of a result-oriented judge of that
court, the figure of Rs. 55 crore has reduced dramatically.
However, this was the figure only for one High Court. Add up the figures for all
High Courts and District Courts and one would come up with a staggering number. A
generic order from each High Court in respect of itself and all subordinate courts would
lead to the deposit of these vast sums in productive accounts benefiting everyone and
prejudicing none.
Take a second area where reform is imperative. An Indian observer of a US
criminal court would be surprised to find a proactive prosecution agency plea-
bargaining with an accused regarding offence and sentence. His astonishment would
increase on finding that even the US judge takes a similarly interventionist approach
with the accused to arrive at a plea-bargain settlement. The absence of this system and of
an independent directorate of public prosecutions in India results in highly avoidable
situations, adding unnecessarily to the backlog of cases. In dowry cases, under section
498A of the Indian Penal Code, if spouses decide to put an end to criminal cases, they
find that they cant withdraw the FIR/complaint even by mutual consent. Instead, one of
them has to file a petition to quash the complaint. Not only does this generate additional
litigation solely for the purpose of ending litigation, but the outcome is frequently
negative as legal tests for quashing are stricter.
Third, process serving the act of serving the opposite side with all papers,
without which no judicial proceeding can be ripe for disposal is perhaps the most
common cause of delay in litigation. There have been cases where well-known people
are not even served for two or three years and yet everyone (except the court) knows
their whereabouts. Delayed service engenders irreversible delay at the threshold. Only a
comprehensive interaction with the lower judiciary can develop an appropriate set of
guidelines to deal with this problem.
Fourth, theres the problem of unfilled judicial posts. Although, there has been an
improvement in filling up High Court vacancies, the position in respect of the
subordinate judiciary is still unsatisfactory. In Delhi alone, since 1997, at any point of
time, 25 per cent of all judicial posts have been vacant in the district judiciary and below.
The all-India position is likely to be worse. Despite unfilled vacancies, subordinate
judges are frequently plucked out for deputation as legal advisors for government
departments like the DDA or the MCD. Such vacancies have a prejudicial effect on
backlog, much larger than the percentage of vacant judicial seats.
Lastly, in the context of the annual January celebrations in honour of the Indian
diaspora, a significant measure of social welfare in respect of global Indians, requiring
practical legal mechanisms, must engage our attention. That is the creation of an
international network for provision of legal aid in respect of marital disputes with
transnational connotations. The newly-wed but abandoned wife in a foreign land is the
brutish sight of the Indian diaspora. Conversely, the transitory India-visiting husband,
harassed and embroiled in criminal and civil litigation in India by his antagonistic India-
based in-laws is an equally depressing sight.
Both have neither a cohesive machinery to address or redress their grievances nor
bilateral or multilateral treaty mechanisms to provide legal aid to support litigation in a
foreign country or in India to vindicate their rights. The personal trauma and the mental
scars of torturous marital, custody and alimony disputes need a comprehensive legal,
social and governmental healing touch through efficacious remedial mechanisms.

OUT OF LINE
Two issues, both with strong legal flavour, dominated the news last fortnight. Since
the first Jharkhand is alive no more, it can be analysed in a calmer ambience. But
first, a voluntary disclosure: as I was the counsel who represented the Jharkhand
Government headed by Shibu Soren, you would be fully entitled to discount my opinion
in this column. Indeed, I write this because the case is no longer in the courts, the
political heat had died down and, most importantly, the case raises several issues of
seminal legal importance which I propose to discuss purely from the legal perspective.
The Apex Courts interim order there was no judgment since the order was
passed on the first day at the interlocutory stage before any respondent had filed any
response is a clear example of hard cases being allowed to make bad law. I start with
the assumption that Governor Sibtey Razi made the initial error in calling Soren and
giving him more time than apparently reasonable. It is arguable that even this initial
assumption is not fully justified since a governor has a broad-band of discretion in such
matters and no one is privy to exactly what was produced before, or shown to him, to
enable him to conclude with certainty that Arjun Munda and company had the majority
to form a stable government. But even an original sin cannot justify successive errors.
Even without the Apex Courts intervention, an internal democratic corrective had
already yielded the reduction of the initial long period fixed by the Governor.
The Apex Court was faced with a request for advancement from March 15 to March
10, a difference of four working days. (The real difference would only be three days
since the confidence vote was scheduled for March 11, although the assembly would
start on March 10.) Assuming that the Governor had committed an error, the Munda
MLAs would surely have held together for another few days and the vote of confidence
could not have been avoided by Soren on March 15. But an effective three-day
advancement did create a drastic de facto precedent.
No judgment of any Indian court has previously fixed the time, date and manner of
conduct of an assembly session as did the
March 9 order of the Apex Court. References to the floor test in S.R. Bommais case or the
UP assembly case order are inapposite because they do not stipulate that an assembly
must meet with a single-point agenda at a fixed time and on a fixed date with
videography thrown in. Moreover, they do not do so by an interim order. Several
articles of the Constitution would have to be analysed and dealt with before an
appropriate juristic principle can be fashioned to provide a jurisprudential basis for the
Jharkhand order. The mandate of Article 361 making the President and the Governor
not answerable to any court for the exercise and performance of the powers and duties
of his office or for any act done or purporting to be done by him in the exercise and
performance of those powers and duties is the first jurisdictional bar which the Apex
Court had no time to address in its interim order.
The letter and spirit of Article 212, directing courts not to inquire into proceedings
of the legislature, is another obstacle. Innumerable other provisions of the Constitution
occupy the field and address every conceivable aspect of calling a legislative session and
conducting its proceedings in terms of powers, as the case may be, of the Governor or
the Speaker. All these provisions create a seamless web and reflect the overarching
vision of our founding fathers regarding the boundaries of decision-making between the
respective organs of the State. The interim order of the Apex Court does appear to be at
variance with that spirit, vision and structure of the Constitution.
In the ultimate analysis, every bad precedent originates as a justifiable measure. But
bad law can be tyrannous, not the least because those who misuse it in future may not
always be animated by the same noble objectives which undoubtedly and bona fide
inspire judges of the Apex Court.
The second theme this fortnight the sting operation on Shakti Kapoor is less
legal and more salacious. A lot has been written and said on this spicy subject. I have no
doubt that it exceeds the boundaries of responsible journalism. A sting operation, by
definition, must either unearth an illegality or a matter of vital and genuine public
interest. The Shakti Kapoor incident fails on both counts. However, wrong or right
depending on your perspective you may characterise it as, the incident involved
absolutely no violation of any law, at least by Shakti Kapoor (many believe that the law
of privacy was violated by the concerned channel). Consensual sex between two adults
cannot qualify either as rape, blackmail or cheating. Nor does the succumbing of a tired
and retired actor to the thrusting temptations of a woman inside a bedroom even
remotely qualify as a matter of public interest.
It does nothing but titillate and salivate, albeit temporarily, viewers who can afford
to be moralistic only because they have not been caught with their pants down. It
remains to be seen whether, purely from the commercial viewpoint and the angle even
of the channel concerned, the increase in TRP ratings becomes a permanent threshold or
remains a temporary and transient phenomenon. I suspect that the law of diminishing
returns will start applying quite quickly after the initial novelty wears off and people
begin to appreciate the full ramifications of such intrusive techniques upon the very
concept of privacy, which is nothing but a facet and an intrinsic component of the
supreme constitutional value of life and liberty.

LAW

This section deals with substantive legal issues ranging from the unique to the
bizarre to the comic - in short, many offbeat and unusual legal issues. The legal validity
of Tehelka-like sting operations is supported with more aggressive examples of the same
from the USA. The author leans in favour of the freedom of press as a vital disinfectant
promoting public interest. The jurisprudence relating to the penis is discussed in the
context of a bizarre news report describing a project to initiate a study to map the
varying sizes of the Indian penis to redesign Indian contraceptives! The subject of bodily
harm occurring during wholly consensual sexual activities is analyzed while
propounding a unique and progressive contention to treat as rape those abhorrent non-
penile and non-penetrative sexual acts perpetuated upon the various orifices of children.
Khushwant Singhs defamatory generalization against lawyers as worse than common
prostitutes and a summary of legal arguments against POTA find place in this section.
There is a searing indictment of the Governments decision to release Peter Bleach
as also the unconstitutionality of the demand to have an All India Anti-Cow Slaughter
Statute. The inanities and perversities of the earlier law relating to property tax in Delhi
are highlighted while the present Indian legal position criminalizing the attempt to
commit suicide is supported. The authors outrage and indignation at the way killer
machines - buses and trucks - snuff out innocent young lives translates into concrete
suggestions for a change in the law.
Strange laws from England to India to the USA are listed while the successive and
repeated legal misadventures of the BJP led NDA Government (ranging from the ill-
advised constitutional challenge to the date of the Gujarat elections to the imbroglio
regarding Ayodhya to the opposition to the Apex Courts order regarding disclosure in
respect of electoral candidates) are all discussed. Two columns written after the electoral
victory of the UPA Government in May, 2004 lay down a road map for good governance
and emphasize the virtues of the Employment Guarantee Act. India Shining and the
blatant misuse of State power involved therein comes in for stinging criticism while
electoral reform by way of permitting a None Of The Above (NOTA) vote is propounded
as a desirable electoral reform.

TEHELKA IN INDIA
25-3-2001, THE WEEKEND GENTLEMAN
The vigorous protest and righteous indignation from various segments of the
ruling coalition over the Tehelka tapes is not only misplaced but appears to validate
Orwells description of political language as one designed to make lies sound truthful
and murder respectable and to give an appearance of solidity to pure wind.
Sting operations like Tehelka may be new in India (and hence the consternation)
but they have been hallowed by practice and usage in lands beyond our shores. In 2001
itself, the Phoenix Gazette secured 16000 pages of transcripts of secretly recorded
conversation along with hundreds of audio and video tapes leading to a 146-page
indictment for bribery and violation of electoral law in respect of seven state legislators
who accepted cash from a (fictitious) lobbyist and were recorded as being ready and
willing to support legislation for legalising casino gambling in Arizona. The District
Attorney is relying heavily on the tapes in the ongoing prosecution.
The North Carolina Attorney-General in November 1999 proudly announced his
States selection to conduct a special telemarketing fraud sting operation. Incredibly, the
US Bureau of Justice Assistance provided a substantial grant to the AGs office for the
operation. Once a number has been changed due to fraudulent telemarketing, it would
be forwarded to what is referred to as a mooch line. This telephone line would be
housed in the Consumer Protection Section of the Attorney Generals office and would
be staffed by volunteers who would pose as victims while fraudulent telemarketing
sales pitches are recorded. The tapes produced through these mooch line projects are
supposed to be tremendously helpful to prosecutors all across North America. Clearly,
official sanction to and funding of a sting operation for larger consumer benefit is
viewed as a desirable promotion of public interest. Yet again, a sting operation in
Atlanta netted more than USD 10 million in cash that undercover agents pretended to
launder through a fake firm to catch five Colombian drug traffickers. Amazingly, the US
Securities Exchange Commission, counterpart of the Indian SEBI, helped agents set up
their phony company Airmark by issuing actual licences. This official governmental
involvement was necessary to make it look as legitimate as possible.
Secondly, not only are such sting operations legally valid but the evidence collected
therefrom is fully admissible under the Indian Evidence Act, subject, of course, to the
court being demonstrably satisfied, by anyone objecting to the tapes saying that they are
fabricated, forged or show the image of X while using the voice of Y. Audio, visual and
all other kinds of evidence have never been per se excludible under Indian law and a
catena of Supreme Court judgements held them to be admissible. Unlike the USA,
where the tainted evidence rule applies in some situations, Indian law permits even
illegally procured evidence (e.g. drugs recovered from a person after an illegal police
entry without search warrant) to be used in court, subject, of course, to the satisfaction of
the court regarding its authenticity and veracity.
Thirdly, it is a misconception to assume that since Westend was admittedly a
fictitious firm and no benefit was conferred upon it by the public servants filmed on tape
accepting cash, no prosecution for bribery can lie. Under the Prevention of Corruption
Act, mere acceptance of money from an unauthorised source by a public servant is
sufficient to constitute the offence of corruption/bribery and no quid pro quo flowing
from the public servant to the giver of the money or the benefit is required to be
established.
Fourth, the Tehelka tapes are a significant advance of press freedom by way of
unique and unprecedented investigative journalism over an eight-month period. Press
freedom, in turn, is a cherished fundamental right under our Constitution which has
experienced an exponentially dynamic constitutional jurisprudence all round it. The
constitutional spirit has been to expand all its penumbric areas and subject it only to
highly limited and controlled restrictions. The Tata Press judgement expanded Press
freedom to include commercial free speech i.e. advertisements in yellow pages are
protected not only under the fundamental right to trade and business but also as an
aspect of free speech and expression. Earlier, the Indian Supreme Court had adopted the
New York Times v. Sullivan rule of the US Supreme Court under which any publication
otherwise liable to be sued for defamation would be immune from it, if the person
against whom the publication was directed is a public official unless the latter shows the
publication to be actuated by mala fides.
Lastly, the choice of the internet by Tehelka to display its tapes and the
unbelievable two crore hits it received within few hours shows the efficacy and reach of
dotcom media as against both print and visual media. Tehelka has established a new
milestone in internet journalism as a vehicle for investigative journalism for the future, a
future which is a borderless world where the gift of technology makes both censorship
and even the right to information somewhat superfluous and irrelevant.

INTELLECTUAL PROPERTY RIGHTS
The Basmati order by the US Patents Office (USPTO) raises several interesting legal
and policy issues. A US company Ricetech was ultimately able to secure a US patent for
three strains of rice allegedly superior to Basmati. The first point it highlights is the
inadequacy of the TRIPPS mechanism which allows an injunction in respect of a name
or label which is a geographical indicator (GI) in a manner which misleads the public as
to its geographical origin. Thus Alphonso mangoes cannot be sold as Alphonso mangoes if
they come from Zambia. But this limitation can be simply circumvented by selling them
as Alphonso mangoes from Zambia. WTO and TRIPPS further provide an enhanced
level of protection also, but only to wines and spirits. Thus one cannot sell scotch
whisky from Zambia per se whereas one can sell Alphonsos from Zambia. This is
highly discriminatory and arbitrary and confers protection on a very narrow class of
products from certain European nations.
Secondly, even this level of protection is inapplicable if it is shown that the word,
mark or label in question has acquired generic or semi-generic significance. So US courts
do not give any protection to Champagne on the ground that it is a generic word for all
sparkling white wine. Recently, in a potentially dangerous order, the Federal Trade
Commission in May 2000 declared Basmati to be a generic mark.
Thirdly, since India, despite enacting a Geographical Indications Act in 1999, has
not yet promulgated rules for registration of GIs, reciprocal protection by way of
registration of GIs is not available to India in several countries. For example, although
India has a very successful certification mark for Darjeeling tea in USA, we do not have
it for most other products and thus, are unable to protect our GIs. We also do not have
any Biodiversity Act or a Plant Variety Protection Act.

LONG LINEAGE AND THE LAW
A few weeks back, I was startled to read a front page report in the Indian Express
to the effect that the Indian Government had decided to initiate a study to map varying
sizes of Indian Penis. Apparently, it was to be used to redesign Indian condoms to
combat low usage and high rejection on account of imperfect fittings and frequent
bursts. I was left wondering as to how the multi-million rupee study would discover
and define the paradigm of average Indian penis! Or would we, henceforth, have
condoms sold in different sizes? And would vendors be required to have changing room
facilities to try the condom for a fit before purchase? And how would the tried
article be repacked if found unfit?
The penis has a long lineage and recurring presence in Indian and international
jurisprudence, but it ranges from the sublime to the ridiculous. Most people know that
impotence is a ground for divorce. But what perhaps many do not realise is that there
are judgements, including a special full bench of Madras High Court as far back as 1954,
granting divorce to a woman who claimed that her husband was impotent as far as she
was concerned because her marriage could not be consummated as her husbands male
organ was so abnormally big as to render sexual intercourse with her impracticable and
also positively dangerous to her life.
Recently in Zimbabwe, a manager was arrested when he berated his workers and
told them that they had no brains because they were being led by a President (i.e.
Robert Mugabe) who had a rubber penis made in China. The arrests were apparently
effected under the Law and Order Maintenance Act which makes it an offence to expose
the President to hatred, contempt or ridicule.
The famous giant coffee retailer Starbucks got an unexpected jolt when it was
recently sued for $1.5 mn. by a man who claimed that his penis was crushed by a faulty
toilet seat at a Starbucks restaurant. The victim alleged that he was in a seated position
on the toilet when he turned to retrieve the toilet paper in the back of the seat when the
seat shifted causing his penis to be caught and crushed between the seat and the bowl.
Out of the $1.5 mn. claimed, 1 mn. was claimed by the victim by way of damages for a
crushed penis and $50,000 by his wife for being deprived of his services.

NO NEED FOR POTO
The first objectionable feature of the Prevention of Terrorism Ordinance (POTO) is
the manner of its creation. TADA was allowed to lapse more than six years ago. The
interregnum saw reincarnation of a modified version of TADA, a Criminal Law
Amendment Bill, a report of the Law Commission and other stray legislative initiatives.
Suddenly, we find POTO thrust upon us without Parliamentary discussion, joint select
committee scrutiny or bipartisan debate. An All-India legislative enactment with far
reaching impact on the liberty of the individual and encompassing a draconian
enhancement of the States power apparatus is inaugurated by deliberately bypassing
Parliament barely a month before its sitting. Use of Ordinance modality is proof of
Governments acceptance of the inevitability of defeat in one or both Houses of
Parliament, establishing that the people of India do not want TADA or its progeny,
POTO.
The second objection questions the necessity for POTO at all. India is often
described as an over-legislated but under-enforced or under-policed country. We
already have the wide National Security Act. Almost all States have preventive
detention laws. On the economic front, we have the potent and comprehensive Essential
Services Maintenance Act (ESMA). Specific trouble spots like J&K and the North-East
have special enactments like the Disturbed Areas Act and Army (Special Powers) Act.
All this in addition to the IPC and the Cr. P.C.
The third objectionable feature is the obvious inability or unwillingness of the
Government to learn the lessons of history. TADA had an abysmal conviction rate of
approx 1.5%. The TADA review committee found evidence of its arbitrary and
discriminatory misuse against minorities. While the police abused such powers, the real
Azhar Masoods are unable to be prosecuted or convicted for years (Masood was
released after five years without conviction in the context of the hijacking). Similarly, the
Dawood Ibrahims mastermind terror from beyond the shores of India.
The Indian Evidence Act excludes from evidence confessions made to police and
yet lastly, the ordinance itself (POTO) seeks to make such statements admissible.
Inevitably, this will encourage officials to resort to custodial torture to extract
confessions. Admissibility of such evidence will, undoubtedly, give a boost to the
scourge of custodial deaths.
POTO appears to give the power of determination of bail to the public prosecutor.
If the public prosecutor opposes the bail, it should not be granted unless the court is
satisfied that there are grounds for believing that the accused is not guilty of committing
such offence. Not only is the prosecutor (and not the judge) made the adjudicator for
bail but the burden of proof is reversed by the requirement of proving prima facie
innocence.
POTO also makes the disruption of essential services an act of terrorism.
Possibility of misuse could range from striking employees in a hospital to those who
clean the railway platforms whenever they peacefully protest or strike. Can they really
be termed terrorists?
Finally, the new ordinance provides for punishment for those in possession of
information of material assistance in preventing a terrorist act. This could be used
against journalists who are involved in investigative journalism and seriously threaten
their right to freedom of speech. Section 14 of the Bill makes it an offence punishable
with imprisonment of three years for failure to give the information.
Let us not be digressed from our focus of combating terrorism by reassuring but
misleading forms of deception like POTO.

LAW AND ISSUE OF
CONSENSUAL SEXUAL ASSAULT
Justice Holmes famous aphorism The life of the law is not logic but experience is
reflected in the varying, subjective and often inconsistent approaches of courts to the
issue of consent in sexual assaults. As a general rule, under English law, consent is no
defence to wounding and assault in view of certain specific provisions of the Offences
against Persons Act, 1861. But a large number of disparate exceptions of varying scope
and content have traditionally been recognised under common law.
Obvious exceptions are surgery, tatoos, contact sports and horseplay. For such
activities, violence to the body, including that which causes harm and injury, is
excusable principally because of the consent of the victim.
Should bodily harm occurring in the course of wholly consensual sexual activity be
treated differently? In Slingsby (1995), after a meeting with the deceased V at a club, the
accused S had sexual intercourse with her and buggered her, all with her consent.
Subsequently, also with her consent, he penetrated her vagina and her rectum with his
hands. V suffered cuts caused by a signet ring on Ss hand. V did not realise for some
time that her injuries were potentially very serious. Eventually, V died in hospital of
septicemia resulting from cuts.
The issue was, assuming these facts, was the Crown entitled to prosecute for
manslaughter? The trial judge answered in the affirmative, holding that the deliberate
infliction of bodily harm on another person without good reason is unlawful. He further
held that violence for the purpose of sexual gratification, either of the person suffering
the harm or of the person inflicting it, is not lawful even if the person suffering the harm
consents. However, on merits, the judge ruled that the defendant could not be found
guilty since fisting was not an unlawful or dangerous act. In contrast, the House of
Lords by a 3-2 majority in Brown (1993) considered a case where a group of men had
inflicted wounds or actual bodily harm on each other for sexual pleasure.
The majority somewhat sweepingly decided that sado-masochistic sex is not an
exceptional area where consent would constitute a defence.
But a reading of the judgement suggests that the narrow difference in the Lords
resulted more from a subjective moral world view of the majority (who emphasised the
perverted and deprived nature of the conduct against which society is entitled to
protect itself) while the minority held that the 1861 Act could not have been intended to
cover such sexual acts between consenting adults. If the majority is right, there is no
principled line of differentiation between professional boxing (either as a sport or skill
which also involves violence or as an activity where the purpose is to cause extreme
injury) or, indeed, prize fighting on the one hand and consensual sex involving some
violence on the other.
Indian jurisprudence on the subject is scanty but Section 87 of the Indian Penal
Code appears to be more liberal in recognising reciprocal consent as a defence by
specifically legislating that acts involving consent to violence would not constitute a
criminal act so long as the act is not intended to cause death or grievous hurt and which
is not known by the doer to cause death or grievous hurt.
Clearly the jury is still out on this one.

TRUTH, MALICE AND LAWYERS
Khushwant Singh succeeded in vacating the court injunction obtained against him
by Maneka Gandhi in respect of alleged derogatory references to her and to the late
Sanjay Gandhi in his recently published autobiography, but he is lucky to have escaped
the ire of the legal profession for his sweeping and clearly defamatory generalisation
against the entire community of lawyers. Sample this: A common prostitute renders
more service to society than a lawyer. If anything, the comparison is unfair to the whore.
She at least serves a social need and gives her clients pleasure for their money, a lawyer
does not even do that.
Why is that lawyers are the butt of such ridicule or the subject of such caustic and
cynical societal comments? Part of it must have something to do with the fact that
lawyers are usually sporting enough to laugh at themselves. Thus lawyer jokes abound
and lawyers are usually the first to tell them. Early in my professional career, I learnt
that we are the only tribe which drafts 10,000 documents and calls them a brief. And
that a lawyer is supposed to learn to get on and then get honour and finally get honest,
in that order.
Or Lord Chancellor Broughams definition of a lawyer as a learned gentleman who
rescues his clients estate to keep it for himself. Two more recent ones focus on the two
most popular themes of lawyer jokes lawyers fees and laws delays. The first one
describes a contingent fee thus A contingent fee means, if the lawyer doesnt win your
suit, he gets nothing. If the lawyer does win it, you get nothing. And the second
distinguishes between a bad lawyer and a good lawyer thus: A bad lawyer can let a case
drag out for several years. A good lawyer can make it last even longer.
But clearly such criticism also emanates from a sense of envy of a professional class
which, with even a reasonable degree of success, enjoys an enviable standard of living, a
high degree of societal stature and intrinsic linkages to public life, social activities and
politics. Lawyers have contributed the highest number of those in the vanguard of our
national freedom movement and also the most prominent amongst them. The legal
communitys essential training to fight for bilateral private causes (albeit for a hefty
commercial consideration) transmutes more easily into an energetic and combative
defence of wider social or public interest or political causes than the training involved in
other vocations. Lawyers, thus, become the subject of jokes which any successful
professional class (or indeed ethnic or racial class) are usually subjected to.
Thirdly, the legal profession, more than any other vocation or calling, interacts,
more intensely with ordinary, real life problems, solutions and people resulting in a
more involved love-hate relationship.
This is not to say that the criticism of the legal profession is entirely unjustified or
unthinkable. While the profession need not be apologetic regarding commercial success
and private gain and should instead flaunt it as a stamp of professional excellence, it is
imperative that individual successful lawyers combine this with a regular dose of public
charitable activities (like appearing gratis in legal aid matters, defending genuine social
causes, making private donations and collectively implementing social welfare projects)
to maintain their rightful place in society.
Amidst the din and cacophony of electoral politics, a seminal set of directions by
the Supreme Court for the better protection of the mentally challenged community in
this country appears to have gone unnoticed. Having taken suo motu cognizance after
the tragic death of 25 chained inmates in Tamil Nadu, the Supreme Court last week
directed all State Governments and Union Territories to undertake district wise survey
of all registered/unregistered bodies, by whatever name called, purporting to offer
psychiatric/mental health care and to grant or refuse licenses to such bodies upon
satisfaction of minimum prescribed standards for licensing.
Amazingly, hitherto, commercial shops masquerading as mental asylums or
homes were flourishing without any licensing controls despite a detailed statutory
regime providing for such regulatory licensing. The court also directed the Chief
Secretary at the State/Union Territories level and the Cabinet Secretary at the Central
level to ensure coordination amongst different departments and ministries (e.g., Health
ministry versus Social Welfare ministry) to cater efficaciously and swiftly to the needs of
the mentally challenged, to solve jurisdictional turf problems and to ensure compliance
of the existing statutory mechanisms contained in the Central Acts of 1987, 1995 and
1999.
The court also directed the Central Government to initiate steps to set up at least
one Central Government run mental hospital in each State and Union Territory and
likewise each State Government/Union Territory to set-up at least one such full-fledged
hospital in respective State/Union Territory.
There are many miles to go in the provision of a just social order for the neglected
and forgotten constituency of the mentally challenged but clearly this is a great stride in
the right direction.

REINTERPRETING CHILD ABUSE
Sakshi, Indias foremost NGO dealing with a diverse gamut of gender-related
matters, has raised several issues of legal interpretation in a PIL in the Supreme Court
dealing with the issue of rape.
The scourge of child sexual abuse, as reflected in several cases, usually involves a
series of abhorrent non-penile or non-penetrative sexual acts committed by the
perpetrator not only on the genitalia of the victim but upon all other orifices, especially
of the female child.
Thus, for example, penetrative penile abuse of the girl child in places other than the
vagina (e.g. anus, urethra, mouth etc.) may be coupled with a series of non-penile, non-
penetrative acts involving the vagina (e.g. by finger, object or mouth).
Unfortunately, the interpretation of the penal code provisions dealing with rape
(sections 375 and 376) holds only (non-consensual) penile vaginal penetration to
constitute rape.
Consequently, even the most depraved, perverse and despicable perpetrators of
sexual abuse of a child escape the higher penalty prescribed for rapists (maximum of life
imprisonment or ten years and minimum of seven years) and are charged or convicted
only under the relatively innocuous offence of assaulting or using criminal force on any
woman, intending to outrage her modesty under Section 354 (which provides for a
maximum punishment of only two years and imposition usually of much shorter
punishments than even that).
In some other cases, the offences under Section 377 dealing with unnatural
offences is invoked but that was mainly enacted to provide for homosexuality or
bestiality. Consequently, perpetrators of the most ghastly sexual abuse of children often
walk away with penalties under section 354 (outraging modesty of a woman) which
equates such acts with the offence of bottom patting/picking (KPS Gill, in the celebrated
Rupan Deol Bajaj case, was convicted under Section 354 for the act of bottom patting and
an appeal is now pending).
Sakshi argues, convincingly, before the Supreme Court that modern feminist legal
theory and jurisprudence look at rape as an experience of humiliation, degradation and
violation rather than any outdated notion of penile-vaginal penetration. It, therefore,
seeks an interpretation of rape by the Supreme Court, consistent with contemporary
notions of dignity of women, the right to life under Article 21 and Indias commitment
to several international treaties dealing with elimination of discrimination against
women, whereby all forms of forcible non-consensual/penetration (penile/oral,
penile/anal, object/vaginal, finger/vaginal, object or finger/anal) at least qua the female
child victim would be treated as rape. The Supreme Court is dealing with the matter and
will next take it up in a few weeks.

THE LEGALITIES OF DEATH
The recent British High Court ruling permitting a 43-year-old former social care
worker, paralysed from the neck down, to have her life support system switched off, has
revived interest in the vexed subject of euthanasia and illustrates not only the complex
legal, philosophical, ethical and constitutional issues involved but also the radically
different responses of two cognate common law jurisdictions like the UK and India.
UK still seems to be struggling with consistency. While the English Judge, Dame
Elizabeth, held in favour of the ailing applicant, saying, One must allow for those as
severely disabled as Miss B, for some of whom life in that condition may be worse than
death, the UK courts had only recently rejected the appeal of another applicant Diane
Pretty, also aged 43 and also paralysed from the neck down. The latter has since
approached the European Court of Human Rights where her case is pending. A similar
inconsistency was reflected in Indian jurisprudence in the 1980s. The Delhi High Court,
in 1985, lamented the existence of Section 309 IPC on the statute book (punishing
attempt to commit suicide), calling that section an anachronism unworthy of a human
society like ours but did not strike it down. Soon thereafter, in 1986, a Division Bench of
Mumbai struck down section 309 as ultra vires and violative of article 14 (right to
equality) and article 21 (right to life). The many reasons given in the judgement
included, firstly, the conclusion that Article 21 confers not only the positive right to life
but it also includes the negative right not to live; secondly, the multifarious causes of
ending ones life (physical ailments, affliction by socially dreaded diseases, decrepit
physical condition, loss of all sensory perception, cruel or unbearable living condition et
al) require a sympathetic ameliorative approach and not a punitive one; thirdly, the
historical and cultural heritage of India recognises several forms of suicide like johar
(mass self-immolation of ladies in the face of the enemy), sati (a woman joining her dead
husbands pyre), samadhi (termination of life by self-restraint on breathing), prajopaveshan
(starving unto death) and atmarpana (self-sacrifice).
The Bombay High Court view did not find favour with a Division Bench of Andhra
High Court in 1988 which upheld the constitutional validity of section 309 while
specifically dissenting from the Bombay view.
Similar conflict of view plagued the Apex Court. On this subject, Rathinams case
(1994) was the first to reach the Supreme Court where a Division Bench struck down
section 309 (thus upholding the Bombay view, albeit for somewhat different reasons).
The Apex Court wrote a long and somewhat non-focussed exegesis on the subject,
liberally relying on philosophical and religious texts, academic writings and foreign
precedents apart from constitutional material. It held that section 309 was a cruel and
irrational provision and often results in double jeopardy and double punishment of a
person who has already suffered agony and is undergoing ignominy because of failure
to commit suicide. An act of suicide, according to the Apex Court, could not be said to
be against religion, morality or public policy and attempted suicide has no beneficial
effect on society. It causes no harm to others and hence State interference with personal
liberty on this issue is not called for. Significantly, section 306 (abetment to suicide) was
left untouched since it did not fall for consideration.
A quietus (at least for the time being) has been put on the issue by the subsequent
decision of five judges of the Apex Court to which Rathinam was referred for
examination. Speaking for the Constitution Bench, Justice J.S. Verma, disapproved the
Bombay High Court and also the Rathinam view and affirmed the Andhra Pradesh view.
Both sections 306 and 309 IPC were upheld as constitutionally valid.
The Apex Court held that suicide is an unnatural extinction of life and, therefore,
inconsistent and incompatible with the right to life. Hence, suicide cannot be held to be
violative of the right to life under Article 21. Secondly, the court held that while the
positive may often include the negative (e.g. in respect of freedom of speech, freedom of
association, freedom of movement, etc.), this analogy cannot apply in all cases and all
situations and depends upon the nature of the right involved. Thirdly, Article 21 can be
expanded to subsume all aspects of a dignified life but not its extinction by unnatural
means. The right to life under Article 21 is co-terminous with the end of natural life.
For these purposes, the Apex Court said, physician assisted suicide does not stand
on a different footing.
This last word in the Indian context has much to commend itself, at least till
another larger bench reconsiders the matter and gives more compelling reasons.

NOT SO EASY TO REVERSE CNG ORDER
The CNG controversy rages on. A quick-fix solution is the proposal for an
Ordinance to accord multi-fuel option as against the Supreme Court order regarding
conversion of Delhis bus fleet to a single fuel mode. The answer, however, is not so
simple. Repeated references to an Ordinance may be misplaced since the Constitution
permits resort to an Ordinance only when Parliament is not in session. That would be
the case when Parliament is dissolved, prorogued or adjourned sine die. Currently,
Parliament is merely in recess and shall resume on Monday, April 15.
A resort to suitable Parliamentary enactment during the resumed session is
certainly permissible but the Government would do well to hasten slowly. Article 51 of
the Constitution separates each organ of Statejudiciary, executive and legislature to
its allocated sphere and the last two, in particular, cannot trench upon the judicial
function. The legislature cannot, therefore, simply pass a law reversing a judicial verdict.
That would trench directly upon the adjudicatory function of the judicial branch. It is, of
course, constitutionally permissible for the legislature to remove the basis upon which a
court judgement by the High Court or the Supreme Court is premised and by
altering that legal basis, render it inapplicable or inoperable.
For example, while Parliament cannot simply pass a law saying that the Supreme
Court orders on the CNG issue are reversed or cease to apply, it can pass a new law
empowering the relevant authorities to frame an appropriate scheme to run public
transport in the city on fuels A, B and C and subject the same to certain norms and
parameters.
But the matter would not end there. First, the issue whether the legislation has, in
essence, removed the basis of the judicial verdict or has impermissibly nullified or
negated the verdict itself (as per a catena of judicial precedents like Madan Mohan Pathak
and Prithvi Cotton Mills) is ultimately and finally a matter for judicial decision itself. The
courts, and not the legislature and the executive, have the last word.
Second, and more importantly, even if the new legislation is held by the courts to
be a permissible exercise of power removing the basis of a court judgement, the
legislation would be fully liable to be tested on the touchstone of fundamental rights.
The right to a clean environment has been held to be an intrinsic part of the right to life
under Article 21 of the Indian Constitution. The right to life is also a part of the basic
structure of the Indian Constitution and is unamendable even by a Constitutional
amendment.
It would be arguable that the new legislation violates the right to life by rendering
the provision of a clean environment impossible. The crux of the issue here is not the
ostensible plausibility or desirability of a single fuel regime as opposed to a dual or
triple fuel regime.
The crux of the Supreme Court order on CNG is the fact that use of CNG fuel
automatically ensures attainment of the highest Euro emission norms. The fuel per se
results in such achievement and no further or additional policing or regulation is
required to see that vehicles attain certain prescribed norms.
Given the fact that in India, most of our social welfare measures break down at the
policing and regulation levels, either due to rampant corruption or lackadaisical
implementation, use of CNG becomes a significant methodology to actually achieve
desirable norms which is not possible by use of alternative fuels like petrol, diesel or
even ultra-low sulphur diesel. Each of these fuels is liable to heavy adulteration which
fortunately CNG is incapable of being subjected to. Thus, CNG eliminates the policing
and regulation aspect and goes a long way in ensuring a clean environment and the
achievement of the right to life.
The jury is still out on this one. The battle may begin as early as next week when
Parliament resumes.

DISASTER CALLED PROPERTY TAX
The most outstanding example of creating a dysfunctional system which is
institutionally designed to lead to inequality, frustration, harassment and outrage is that
of property tax.
The conceptual genesis of simple concept of property tax is simple, that is, till
Indians decided to confound and confuse it. Property tax is a tax upon property owners,
to defray certain necessary civic expenses appurtenant to the property e.g., cleaning the
garbage, managing sewerage, keeping roads/pathways functional, provision of water
etc. It is necessarily linked to an area or locality e.g., a road on which several civic
amenities may be provided. Even though not a fee, this fundamental organ of property
tax cannot be forgotten.
Property tax in Delhi has taken leave of these roots long ago. First and foremost, it
is now, in fact, a sales tax on land and property. If A sells his house (including land) to B
for Rs. 100 and B resells it to C for Rs. 1000, property tax will be levied directly by
calculating ratable value on the ever increasing sale price and will necessarily
multiply exponentially with each sale.
The result is that constitutionally, the taxable event is changed to sale i.e., passage
of title from A to B to C & so on, converting the quaint old English property tax into a
sales tax.
Secondly, if two identically-sized buildings stand contiguously on identically-sized
plots cheek by jowl, on what principle of law, equity or historical genesis do you charge
five times more property tax for building A as compared to the adjacent building B? Is it
justifiable even remotely either because of higher rent earned by owner of A or higher
purchase price of A? How do either of these two reasons justify higher property tax for
A in comparison to B standing on the same road, in the same locality and availing of the
same services (or lack of them)?
Thirdly, the foregoing examination becomes laughable and ludicrous when applied
to different floors of the same building, so that flat owner X on the first floor pays twice
the property tax as flat owner Y on the second floor, merely because X has a tenant
paying him higher rent or X has paid a higher price for his flat.
Fourthly, why should property tax at all change periodically with every sale or
every tenancy without any change on the ground or without any addition or
improvement of municipal services.
Fifth, there are strange practical consequences and amazing paradoxes which only
India can achieve. Since property tax is charged on purchase price (for unoccupied or
self-occupied properties) or on rental basis (for tenanted properties), it is invariably
cheaper and more sensible to rent a property than to buy one. Indeed, a landlord or a
property purchaser usually pays much more as property tax living in his own house
than the rental he would have to pay to live in someone elses. This appears to be a
strange way to encourage building activity in this country.
Sixthly, the right hand does not know the left hand syndrome is marvellously
reflected in Government policies on this front.
As any property buyer in India knows, the most important thing when buying a
property is not the property, nor its sale price, not even its location, not the quality of its
location, not the quality of its construction, but the potential property tax payable after
purchase. Since property tax (through rateable value) is directly linked to sale price,
there is a huge incentive to the buyer to understate the true purchase price or the white
price.
Since property tax is a recurring annual liability, a saving on this front is crucial on
a recurring basis. Hence, the grossly understated sale deed values and the flourishing
black money market are found in property deals.
This is all the right hands doing. Meanwhile, the Governments left hand is busy
passing laws like the pre-emptive purchase provisions of the Income Tax Act, specially
designed to eliminate black money from property markets by empowering the IT
department to pre-emptively purchase any property by paying the true owner 15 per
cent over and above the stated declared sale deed/agreement to sell price.
Lastly, all this is theoretical claptrap as far as the really smart house owner or
property-tax-payer is concerned. If you are not a bona fide honest property-tax-payer a
category to which a large class of the Indian population belongs you can arrange not to
get any property tax notice at all or to simply deflate your saleable value to plumb the
depths of ocean. Better still, you may simply file a forged dummy agreement to sell or
other similar document and pay property tax on the dummy sale value while having
simultaneously filed the real sale deed/agreement to sell, but to a different Government
department.
How does it matter. The left hand never meets the right hand. And all this is
virtually an officially provided service with touts and property tax inspectors coming to
your doorstep and offering their services to remove your headaches. Everything in
India, even corruption and stupidity, is organised and institutionalised.

FEAR IS THE KEY
The great philosophers, Hobbes, Locke and Rousseau talked of the social contract
in differing terms. In essence, however, the contract involved the giving up of several
inherent and natural freedoms by the general populace and subjecting themselves to
coercive forms of governance, including taxation in return for safety and security of life
and limb and provision of basic community facilities by the ruler to the ruled.
With the breakdown of the criminal justice system in India, this social contract has
broken down. Two gruesome incidents within the last month only highlight this
malaise. A young middle class couple like you and me was driving in a Maruti on
the national highway. They are stopped, robbed, and the wife is raped in the field in
front of the husband. Thereafter, she is killed. The killers three youths with covered
faces, simply drive off on the highway. Hardly a week ago, a singer and dancer who met
some clients for a prospective assignment, is physically bundled into a car in the heart of
Delhi and gang raped by six persons for hours in a flat in Alaknanda. Thankfully, one
out of the six is arrested.
These examples can be multiplied infinitely, intensified in gory details and
hierarchised in terms of barbarity. Citizens of this capital, you and me, irrespective of
wealth or status, live in perpetual fear for the safety of our children or of our spouses.
When we drive in cars in the heart of Delhi we are told to keep doors locked, windows
shut and not stop under any circumstances, even for a seemingly genuine distress call
on the roads, what kind of society do we have, what kind of law and order do we have,
what kind of mentality have we spawned?
The first necessity is to bring back fear in society. Fear need not be merely a
negative element, fear is a positive aspect of life. There can be no discipline without fear,
no respect without it, perhaps even no love without it. An old Hindi proverb
emphasizes Bhay bin preet nahi (there is no love without fear). A child subjected to no
discipline or a pet dog without any fear of the master yields an anarchical society.
Secondly, there can be no fear and no deterrence unless our criminal justice system
is rebuilt from scratch. Today, if a crime is committed, there is no chance of detection; if
the crime is at all detected, there is no chance of physically apprehending the accused; if
caught, there is hardly any chance of even charges being framed, and much less of there
being a trial; if tried, 95% of the accused are unlikely to be convicted; in the rare and
unlikely case of a conviction, there is a good chance of their not being punished and if
punished, the punishment would rarely fit the crime. At each level of the criminal justice
system detection, investigation, arrest, charge, trial, conviction and punishment, there
are loopholes, corrupt operators, powerful accused, weak victims and the eternal
unending time-frame of the justice system mocking each one of us and ensuring a
fearless society, where every potential law breaker is given an assurance in advance
that the chances of punishment are next to nil.
Thirdly, this reform in our criminal justice system cannot be brought about by
seminars, reports and committees but only by a radical overhaul, a surgical operation.
Remove the lacs of petty offences traffic violations, minor statutory offences involving
fines from the judiciary and give them to a lay magistracy or part time judges drawn
from the citizenry and the legal profession. Use the judges freed of such trivial matters,
along with hundreds of new appointees, to deal with criminal trials on a war footing
across each district court in the country to ensure disposal from start to finish within a
maximum of twelve months, create a separate Department of Public Prosecution (DPP)
manned by young idealistic law graduates and answerable to an independent high
powered committee. Dismantle the top heavy, inefficient and corrupt existing
machinery of public prosecutors. Change the law to have video and audio recordings of
confessions and even of statements by different persons during the course of
investigation so as to render them binding and admissible in the trial. Increase
punishments dramatically, not only for substantive offences like gang rape negligent
driving, child rape, and kidnapping, but also for retractions by witnesses.
Create a comprehensive well-funded witness protection programme which gives
the requisite assurance to fearful witnesses. (Probably 75 per cent of, if not more, open
and shut cases for the prosecution in this country are lost by threatening, suborning and
winning over witnesses years after the crime is committed). Revamp the entire police
force by increasing the thresholds for admission into the force and by increasing their
remuneration and improving the terms of service substantially.
My wish list could go on. The time to act was yesterday. Let us start at least today.

TILL THE COWS COME HOME
It just shows that politicians tend to say the seemingly desirable political thing first
and think of the legality of the issue later. The approach is: Lets give the broad rhetoric
first, well see whether it is at all permissible later.
In the past few weeks, major demands for an All-India Anti-Cow Slaughter Act of
Parliament have been voiced. They have been articulated by no less a person than the
Prime Minister himself and by several other eminence grises of the ruling party,
especially during the campaign in the recent Himachal Pradesh elections. A chief
minister of the national opposition also clarified that he made no such recommendation
but did forward a memorandum seeking national legislation.
It is significant that the debate is not whether there should at all exist any Anti-cow
slaughter legislation in India (several States like Madhya Pradesh, Bihar and West
Bengal currently or in the past have had such State statutes), but whether there should
be an all-India central parliamentary legislation implementing a national ban. In our
constitutional set-up, legislation is divided into three lists in the Seventh Schedule of the
Constitution.
Simply stated, Parliament has exclusive and sole power lawyers (to be able to
charge higher fees) call it legislative competence to enact legislation, if the subject
falls under List 1 and the States have similar exclusive and sole power over topics and
subjects in List 2. List 3 the Concurrent list entitles both Parliament and State
Legislation to legislate on the topics listed therein, subject to the caveat that in the event
of irreconcilable conflict (lawyers call it repugnancy) between parliamentary and State
Legislation, the former shall prevail unless the State chooses to obtain Presidential assent
for its statute, in which case the State statute shall prevail.
The important point missed in the Anti-cow slaughter law debate is that in respect
of topics listed in the State list, only States can legislate and Anti-cow slaughter statutes
have always been held relatable only to List 2.
As far back as 1958, the Supreme Court in Hanif Querishis case, dealt with a Bihar
statute and related it to entry 15 of the State List which reads: Preservation, protection
and improvement of stock and prevention of animal diseases; veterinary training and
practice. Several other Supreme Court judgements including Jhawars case relating to an
Andhra Pradesh State statute have related this power only to Entry 15 of List 2.
The constitutional mandate in Article 48 (directive principles) exhorting the State
to take steps, inter alia, to prohibit the slaughter of cows has also been interpreted to
mean a mandate addressed to the State Governments since directive principles do not
purport to alter the allocation of legislative topics as to who is competent to legislate on
what. Nor has it ever been suggested that such proposed national anti-cow slaughter
legislation can be upheld by relating it to entry 17 of List 3 which deals with prevention
of cruelty to animals.
What were our politicians then talking about? Surely not a constitutional
amendment of List 2 or the Seventh Schedule because the fractured nature of the
existing mandate can hardly justify day- dreaming about a two-third majority (required
for a constitutional amendment) on such a sensitive issue.

OF WOMEN WHO FIT THE BILL
The womens reservation bill is threatening to become the second oldest bill never
to be passed by Parliament, next only to the Lokpal Bill first introduced in the Sixties.
Writing on the subject almost six years ago, I had emphasised the justifiable
apprehension that the proposed reservation would be cornered by elite women, by
wives, daughters, mothers and mistresses of influential and powerful men who will then
use them as agents or nominees of proxy control, thereby ensuring power without
responsibility.
I had suggested a somewhat novel amendment the applicability of the creamy
layer cut off principle as applied in the Mandal judgement of the Supreme Court. In
essence, it would involve the identification of a creamy layer class on the basis of a
composite index of backwardness, education, income and other specified factors and
would be applied to exclude that class of women from being eligible for the reservation.
Alternatively, or along with the creamy layer test, I had proposed a disqualifying
clause disentitling wives, daughters or mothers, either of sitting male legislators or at
least of sitting male ministers from contesting reserved seats.
In the recent renewed attempts for legislation on this subject, another set of
interesting suggestions from the fiery Madhu Kishwar have not received adequate
attention. She attacks the rotational principle of reservation, which would not allow any
candidate to nurture her constituency for long and would snap the bond between the
electors and the candidate even before it is fully formed. Instead, she proposes a change
in the electoral law, obliging every recognised political party to nominate women for at
least one-third of the constituencies. Violation of this mandate would result in two male
candidates losing the party symbol and affiliation for every shortfall in respect of each
woman.
This model has a high degree of flexibility regarding constituency and choice and
avoids the dangers both of a rigid geographical seat reservation as also the unwieldy
rotational principle. But the real problem lies in the strong opposition of a few regional
parties.

LEGAL MISADVENTURES
The Government and the ruling party seem to be lurching from one legal defeat to
another but refuse to learn the lessons of history. Last year, it dissolved the Gujarat
Assembly on the premeditated opinion that Article 174 of the Constitution requires
elections to be held not later than six months from that date. This supposedly valid legal
proposition became the basis for a lot of Election Commission bashing. Five judges of
the Supreme Court rejected it unanimously.
Prior to that, in March 2002, the government had advanced the VHPs viewpoint in
the Ayodhya hearings regarding activity at the site and come in for a lot of flak from its
allies. The three-judge bench of the Supreme Court put a stop to speculation by ordering
a freeze in activity in and around the Ayodhya site and we saw relative peace for a
whole year. Clearly itching for action, the government then moved an application in
February 2003 for the vacation of the March, 2002 stay order and indeed for a
reinterpretation of the 1994 Ismail Faruqui (Ayodhya) judgement. Leading lights
propounded the view, both in and out of court, that the undisputed site could be dealt
with even before any final decision is taken on the disputed site in the High Court
proceedings in U.P. Again, a Constitution bench roundly rejected this interpretation,
which had been propounded by the government and the ruling party repeatedly over
the last 12 months.
Meanwhile, on yet another front, the Supreme Court order regarding disclosure in
respect of assets, educational qualifications and criminal antecedents was sought to be
reversed by a clumsy and clearly evasive piece of legislation which, to boot, was sought
to be legitimised as the product of a consensual all-party meeting (despite a written
objection of the national opposition party). The Supreme Court, a few weeks ago, struck
down the entire legislation as unconstitutional and the Election Commission has now
institutionalised the disclosure requirements.
The last straw was the embarrassing volte face in the Vaiko case. The earlier
governments affidavit in the Supreme Court clearly said that Vaiko was guilty of a
POTA offence because he had been drawing support for LTTE, a banned terrorist
organisation. The latest March 31 additional affidavit says that Vaikos speech does not
attract section 21 of POTA if the speech is properly interpreted and read in the entire
context.... Whether any fresh legal misadventure is proposed or not is yet to be seen.

MIND YOUR LANGUAGE
A very strong case for the inclusion of the Rajasthani language in the Eighth
Schedule table can be made out and not merely because I belong to that State or
because one of the most mellifluous versions of it is spoken in my home region of
Jodhpur/Marwar. Its dynamic former ruler, Gaj Singh Rathore, has taken up the issue
with his usual zeal and it should only be a matter of time before his passion is translated
into reality.
The development of old western Rajasthani as early as the 13th

century from Vedic
Sanskrit through Prakrit and through apbhransh (colloquial) languages has been
chronicled by several Indian and foreign scholars including the Italian, L.P. Tessitory.
Seminal works like Dhola Maru, Meerabais pad, Rao Jaitsis Ranmal Chand of the 13th-
16th century compete with modern day Vijaydan Dethas most remarkable prose of
Rajasthani folk tales and short stories.
Right from the census of 1961, Rajasthani was recognized in the Indo-Aryan sub-
family of languages. In 1961, 1.49 million were recorded as using it as their mother
tongue. Today, the famous Marwarisnot only top industrialists but all those belonging
to the region of Marwar who speak the language, number between 8 to 10 crore.
Not only scholarsfrom Abul Fazl to Ashutosh Mukherjee to Madan Mohan
Malaviya but also Nehru, Rajendra Prasad and Radhakrishnan recognized Rajasthani
as a separate language. Many Italian, German and English linguists including Grierson,
Maclister, Tessitory and Kalog have done the same.
Rajasthani literature in Veer Ras is unparalleled. The language is much older than
the political State of Rajasthan. Col. James Todd in his inimitable Annals and Antiquities,
speaks of the beauty of the language. Encyclopaedia Britannica recognises it. Unlike
Gujarati or Gurumukhi, it is easier to follow since it uses Devnagari script. Indeed, the
renowned Gujarati scholar, Meghani, calls the language of the entire western region
from 1000 to 1500 AD as Marudeshiya bhasha which gave birth to modern day Braj
bhasha, Rajasthani and Gujarati. Several universities teach it up to the Ph.D. level.

KILLER MACHINES
Tejasvi was all of 16 years old. He was a student of St. Columbas School, a
computer wizard on whose projects the school had won prestigious prizes. He was
excited about going to the US for his summer holidays with his father, Krishna Kumar, a
leading lawyer, his mother and sister. Since he knew much more than his father about
surfing the net, he had planned the entire holiday, digging out the best online deals,
choosing the hotels, checking out the locations.
Eyes sparkling, flush with enthusiasm and proud to shoulder manly responsibili-
ties, he accompanied his father to the travel agent that fateful Saturday morning. Krish-
na Kumar was happy to be relieved of the responsibility of planning the trip and quietly
proud that his teenage son who, he had hoped, would soon shoulder the responsibil-
ities of his legal practice was sharing family responsibilities. Krishna Kumar left the
travel agent while Tejasvi assured him that he would return home, a 3 km. distance, by
himself.
Two hours later, he had a crushed pelvis, internal bleeding and was struggling for
his life. Six hours later, he lay dead in his familys arms at AIIMS. The bus which
crushed the tender teenage body of Tejasvi came fast from the left side as he was
alighting from his own bus on the same side. Tejasvi really had no chance, with a crazy
driver trying to squeeze a five tonne monster past Tejasvis bus.
What kind of society do we live in where precious lives are snuffed out with such
casual impunity? All deaths are horrendous, but crimes like murders and rape have a
motive and natural deaths have physical causes. Accidents like Tejasvis shake one
with impotent rage for the sheer futility of it all. But public memory is short and a
procession of tragedies and scandals, each more outrageous than the other, erase and
efface each other. We shout, we fret, we fume and then we forget.
We forget the Wazirabad tragedy where a busload of children perished because of
callous, reckless driving. We forget the Blueline menace that had killed 10 and seriously
injured 17 in the first month of its re-introduction onto the roads. We forget that killer
buses do not stop at red lights, speed at busy hours, run over anything or anyone in
their path, have many drivers without licenses and permits who do not mind driving
drunk and drop commuters off while still moving, thus crushing them under the rear
wheels. We forget that with an average hit rate of one person per day in Delhi in 1995,
the dreaded Redline buses became robotic monsters hungry for human life.
Most importantly, we forget that India heads most lists of global vehicular
accidents per 1,00,000 of population: at 39.6, India is well ahead of South Korea (30.4),
Portugal (28.1), Brazil (22.7), Hungary (22.7), Greece (22.0), Venezuela (20.7), Spain
(20.5), New Zealand (19.5), Belgium (18.4) and the US (18.4).
After each major tragedy, we use our outdated and ineffective laws to prosecute
those ill-trained, foul-mouthed, thick-skinned drivers, occasionally sending one to jail. It
does not really matter if the driver is punished under sections 183 to 187 of the Motor
Vehicles Act (driving at excessive speed, driving dangerously, driving when mental-
ly/physically unfit to drive) with penalties ranging from fine to imprisonment for three
to six months or under section 279 IPC (driving vehicle in rash and negligent manner
upto six months in prison) or 304 A (causing death by negligence upto two years in
prison). The real point is that, as far as public transport is concerned, none of this is re-
ally going to change things.
The real issue is that there is no criminal or automatic civil liability on the owner of
the public transport service. All provisions cited above following normal principles of
criminal jurisprudence fix criminal liability on the driver (or on abettors). First, we
must enhance the prison terms for drivers.
Secondly, and much more importantly, we need a special statutory liability offence,
albeit with a lesser term of imprisonment, for the owner of the fleet. This anonymous
profiteer does not bother who the driver is or whether there is an additional attendant in
the bus or not, so long as the bus runs the maximum number of trips possible in a day
with the highest number of passengers. The owner is interested only in counting the
cash at the end of the day the training or mental attitude of the driver, the quality of
the temporary replacement driver, the condition of the bus, the provision of additional
monitors, controls and safeguards to minimize speeding and dangerous road
manoeuvres are all irrelevant because they conflict with and seriously jeopardies the
owners profit.
Unless the law puts the fear of God into this category of perpetrators, making
them liable irrespective of negligence on the basis of ownership, thus inducing them to
take extra care, it is banal to punish only drivers indeed, the latter are convenient fall
guys for the callous and uncaring owner. Vicarious liability in criminal law is rare but
certainly not unheard of and can be easily legislated. The mental element is not an
unalterable ingredient for every offence and a change in the law in public interest is the
need of the hour.
Third, this principle must apply to all forms of public transport, be it taxis, auto-
rickshaws, metros or any other mode of transport. Last, and not the least, there is no
reason to exclude private car or other vehicle owners from similar special statutory
paradigms designed to fix responsibility on the owner.
At the very least, a specific, high liquidated monetary sum, payable on a no fault
basis by a private vehicle owner for death (and lower sums for serious injury) should be
legislated urgently. This will not prevent tragedies like that of bright stars like Tejasvi
recurring but will, hopefully, bring in an era of accountability and deterrence which,
even if it partially pierces the current ambiance of cynicism and despair, would have
more than served its purpose.

WINDS OF CHANGE
The adage more royal than the king may well apply to the Indian legal system
when compared to the British one. We inherited many features of the British system but
while the British, known for their penchant for tradition and precedent, have radically
altered it, we have remained more royal than the king, resisting winds of change and
keeping our noses buried in the past.
A year ago, the British decided that legal language should resemble ordinary
spoken English because, after all, the users of the justice delivery system were ordinary
users of that language. The Lord Chief Justice issued a new legal lexicon where plaint
was replaced by claim statement written statement by reply or response and
rejoinder and replication were replaced by reply to reply or further reply. The use
of Latin maxims was all but barred: if you could not say something in plain simple
English, it was not worth knowing. This was nothing short of revolutionary in a country
which invented legalese and where Latin is taught and is supposed to reflect erudition.
It was done to demystify the legal system and make it user friendly. Its premise was to
view the legal services sector like any other service sector where the purveyor of the
services, the consumer (i.e., litigant), is king and the other actors (lawyers, judges etc.,)
are service providers who are secondary. In contrast, the Indian legal system continues
to be burdened with arcane legalese.
Secondly, the British Prime Minister has recently announced the even more
shocking decision of abolishing the House of Lords (in its judicial capacity), including
the post of Lord Chancellor, a unique post unequalled in the world which subsumes the
roles of Chief Justice, speaker of the House of Lords and Law Minister, all rolled into
one. The institution will be replaced by a modern-day Apex Court, probably on the lines
of the US and Indian Supreme Courts. Thirdly, the UK now permits solicitors to appear
and argue in courts and for barristers to receive instructions directly from clients,
without the intermediary of solicitors.
Meanwhile, we continue to agonise ad infinitum over simple changes: whether to
curtail oral arguments; whether to change the court dress code for a tropical climate like
India; whether to use senior advocates as part-time judges to attack arrears; whether to
institutionalise law clerks for judges who are overburdened and without any assistance
and so on. Perhaps we will continue debating and continue to be more royal than the
king even after the monarchy is abolished in the UK!

TAKING THE STING OUT OF A TALE
So much has been said and written about the Bangaru-Judeo episode that it is
difficult to be innovative and non-repetitive. But a few points still deserve emphasis.
First, a misconception continues that actual quid pro quo must demonstrably flow from
Judeo and/or the environment ministry to the (real or allegedly fictitious) Australian
Mining Company.
As recently as two days ago, the law minister in Raipur alleged that no application
from any Australian Mining Company was ever made. You will remember that Tehelka
involved an admittedly fictitious defence company called Westend. Does it make any
difference in law if the bribe-giver is fictitious and/or no actual benefit is shown to have
been received by it? Elementary law answers in a resounding no.
Under the Prevention of Corruption Act, mere acceptance of money from an
unauthorised source by a public servant here no less than a sitting Union minister is
sufficient to constitute the offence of bribery and no quid pro quo flowing from the public
servant to the giver of the money is required to be established.
Second, most of the major sting operations globally and many in India are
mounted by government agencies (including the CBI) and, therefore, ex hypothesi,
involve a fictitious bribe-giver. A recent notable example was the trapping by US
agencies of a British citizen of Indian origin arranging for sale of a shoulder launched
Russian-made Igla missile. Incredibly, the US Bureau of Justice Assistance has provided
a substantial grant to the AGs office for an operation to conduct a special tele-marketing
fraud sting operation. Official sanction to, and funding of, a sting operation for larger
consumer benefit is viewed as a desirable promotion of public interest.
Officially mounted sting operations are employed throughout the European Union
against drug-trafficking and child pornography. The CBI and/or the police frequently
send decoy bribe-givers with chemically marked notes to public servants in elaborately
laid traps in India. It is, thus, utterly fallacious to suggest that actual benefit to the
bribe-giver must be demonstrated or that when such sting operations are done privately
be it by Tehelka or any individual or the press they are any the less valid or
admissible.
Finally sting operations are supposed to serve two functions, viz. informational (i.e.,
the investigatory function of identifying individuals engaged or likely to engage in
criminal activity) and behavioural (i.e., deterring individuals from engaging in criminal
activity, where the threat of being caught in a sting operation scares them away from a
criminal opportunity which would otherwise have been alluring). The Governments
and the CBIs conduct over the recent episodes has rendered both rationales ineffective
and redundant.
In the Bangaru episode, the ignoring-the-message, shooting-the- messenger
syndrome was perfected to a fine art. In the Judeo episode, non-filing of any FIR for over
three weeks and ensuring selective leaks about who organised the sting has completely
eroded CBIs credibility. The investigative function has, thus, degenerated into the
messenger targeting function while the behavioural function has been transformed
into deterring the sting organiser from future exposes.

KILLING THE SPIRIT
A spirit, in the sense of a ghost, is a fearful entity generating instant obedience. Few
would dare to disobey what they perceive to be the command of a spirit. But when it
comes to the spirit of the Constitution, as opposed to its letter, breach is the norm and
compliance a rare exception. Two recent examples are significant.
The Model Code of Conduct is a set of rules and guidelines promulgated by the
Election Commission (EC). It has no statutory basis and is neither passed nor approved
by Parliament. It is not specifically mentioned in the Indian Constitution. Yet, for
decades, this voluntary document has governed Indian polity during elections. Its basic
rationale is the vital necessity of maintaining a level playing field between different
contestants during an election. That is considered indispensable for the holding of free
and fair elections, without which there can be no democracy. Therefore, free elections
have been judicially held by the Apex Court along with judicial review, republicanism,
secularism to be a part of the basic structure of the Constitution. This means that it
cannot be taken away or altered even by amending the Constitution.
The code is a remarkable voluntary act of political morality and collective ethics,
embedded as a jewel in politics amidst a sea of chicanery, skulduggery, disloyalty and
expediency. No political formation has seriously challenged its validity and all have
constructively colluded with the EC in maintaining the fiction that the EC has
mysterious inherent powers to promulgate the code. It is an extraordinary example of
constitutional spirit triumphing over letter for a higher object.
But this was perhaps too good to last. The code comes into force after the date of
announcement of elections. The decision to go in for elections at any time before
completion of a full term vests in the government of the day. The genesis of that decision
occurs at least a couple of months before the election and is followed by dissolution of
Parliament and then the fixing of the actual election dates by the EC.
During this interregnum of 60 to 90 days between the governmental decision to
hold elections and the coming into force of the code, is it permissible for the government
of the day, which itself is the decision-maker to go in for elections, to act like a
munificent Santa Claus and to announce daily freebies and sops? Admittedly, none of
this can be done after the coming into force of the code. Can this be simply circumvented
by rapaciously doing so in the month before the coming into force of the code and after
the decision to go in for elections has been taken by the government of the day?
Consider this: if one knows that from next week, a law barring thefts is to come into
force for the first time, would it be permissible to commit as many thefts as possible in
the week immediately preceding the notification of this law, especially where the person
initiating the process of bringing into force the law and the person committing the theft
are the same? And is not the assault on the level playing field gigantic and perverse
when Santa Clauss freebies add up to approximately Rs. 25,000 crores of the taxpayers
money?
Governments cannot fight elections; only political parties are permitted to do so.
But can a government, after declaration of elections spend more than Rs. 50 crores on
daily full-page advertisements in numerous newspapers with the sole purpose of
unleashing a propaganda campaign for the ruling political party? And can each ministry
as well as the Planning Commission be converted into a governmental advertising
agency? If government largesse were usable for fighting elections, the playing field
would be converted into a mountain at one end and a valley at the other.
My second example relates to the constitutional spirit clearly reflected in Article 87
of the Constitution, which specifically provides that at the commencement of the first
session of each year, the President shall address both Houses of Parliament assembled
together and inform Parliament of the causes of the summons. A plain reading suggests
that whenever a calendar year starts, Parliaments first session must be addressed by the
President.
Second, this is the way in which Parliament has invariably functioned since 1952
without exception. Even in years when elections were to be held and a new House
constituted before March 31, Parliament started the calendar year with a session
addressed by the President.
Third, a new parliamentary session, after a presidential address, can conduct a vote
on account or present the budget, after which the House can be dissolved, to be followed
by elections, all within 60 to 90 days. The governments intent to hold elections is thus
not delayed and the constitutional spirit is also fully preserved.
Fourthly, disrespect to both the President and to parliamentary conventions and
established practices are avoided. But the spirit of Article 87 is currently under gross
violation. Article 87 does not use the word new before session though the clear intent
is to start the calendar year with a new parliamentary session and this has been the
invariable practice followed for the last 52 years. The governments constitutional
subterfuge that the previous session of parliament, in December, 2003, was merely
adjourned and not prorogued and hence the January, 2004 session will merely be a
continuation of last years session with no need for the President to address a new
session is hardly credible.
Farewell constitutional propriety, convention, practice and, most important,
constitutional spirit. True constitutionalism can only exist if we give weight and
significance to constitutional silences and constitutional abeyances. It is in the
interstices of such constitutional pauses, not necessarily in the constitutional letter, that
the true spirit of democracy pulsates.

THE CURIOUS CASE OF PETER BLEACH
Peter Bleachs recent release after securing a presidential pardon raises disturbing
questions. Bleach was convicted, on merits, after a full trial, for the serious national
security offence of dropping a huge cache of arms, including rocket launchers, assault
rifles, anti-tank missiles and ammunition in the district of Purulia in West Bengal. He
was convicted along with five Latvian crew members and a Danish citizen, Kim Davy,
and was serving a life sentence with the former, while Davy had escaped earlier from
Mumbai airport.
The first striking aspect of the case is the ex facie dangerous nature of the offence.
One cannot think of any peacetime case in post-independent India when persons have
tried to drop lethal weapons, normally usable only in insurrection and war, into a
sovereign country, India battling terrorism furiously on all its flanks. The Bleach con-
viction was for offences under the Explosives Act, the Arms Act and the Penal Code,
(section 121A i.e. conspiracy to wage war against India). While holding Bleach guilty, the
trial judge underlined the nature and gravity of the offence saying that the nation
itself is at stake and that the event has very serious implications for external and
internal security.
Its obvious that while serious offences like murder have effect only on the victims
family, arms dropping affects the nation and its very fabric. The second point is con-
sequential: since arms dropping during peacetime has never occurred earlier, there is no
question of there being an Indian precedent of a presidential pardon for an offence with
such wide ramifications. Indeed, one would be hard pressed to find any global
precedent in any country, many of which recognise the concept of a presidential pardon.
Third, the case is truly the rarest of the rare because unprecedentedly, two presi-
dents, K.R. Narayanan and A.P.J. Kalam, had earlier rejected Bleachs clemency pe-
titions. Constitutionally, the President means the Central Government. Again, no Indian
or global precedent exists for clemency in respect of so serious an offence after two
considered and doubtless reasoned rejections.
Fourth, given the serious and bizarre nature of the case and its implications for the
country as whole, the least which a democratically elected government accountable to
the people ought to have done is to have practised some transparency and shared with
the nation, in howsoever attenuated a form, the compelling reasons necessitating a
review of its two earlier rejections. Disclosure and taking the nation (or some significant
segments of it) at least partially into confidence would be minimal compliance with
norms of good governance. Fifth, such disclosure would have shown whether there was
any new, fresh material between the second presidential rejection and the present grant
of pardon. Such fresh material alone could justify a third attempt at pardon. If there was
none, the nation is entitled to have some answers.
Sixth, it must be remembered that the case of the Latvians and of Bleach stand on
different footings. The Latvians were found to be hired crew members and were neither
aware of the destination nor were they a part of conspiracy. The principal conspirators
were Bleach and Davy. Indeed, destruction of the case against the kingpin, Davy, if
Bleach were to be pardoned, was the main basis of the earlier two (Central Government)
presidential rejections. Newspaper reports suggest that this was the main contention of
Deputy Prime Minister L.K. Advani while rejecting earlier Bleach pleas.
Seventh, at least the Latvians release led to the Russian government releasing five
Indians serving prison terms in Russia and in the reduction of the prison term of
another. Britain has certainly not given India any such concession and no one knows
whether a tough bargain was even attempted by the Indian side on this score.
Eighth, the constitutional power of a presidential pardon under Article 72 (and
under Article 161 qua Governor) is an extraordinary residual power to be exercised with
enormous responsibility, caution and circumspection. It must advance the harmonious
inter-play of judicial, legislative and executive functions instead of retarding or
disrupting the judicial role. The famous words of US Chief Justice Taft were quoted with
approval by Chief Justice Chandrachud in Indias Apex Court in the gruesome
Billa-Ranga case involving the cruel murder of the Chopra children: The administration
of justice by the courts is not necessarily always wise or certainly considerate of
circumstances which may properly mitigate guilt. To afford a remedy, it has always
been thought essential in popular governments as well as in monarchies, to vest in some
other authority than the courts, the power to avoid particular judgements. It is a check
entrusted to the executive for special cases. To exercise it to the extent of destroying the
deterrent effect of judicial punishment would be to pervert it.
Ninth, and in another amazing aspect of the case, Bleach has flown from India after
clemency while an appeal on his behalf is pending in the High Court at Calcutta. Most,
clemency appeals are made after all appellate avenues upto the Apex Court have been
exhausted. In this case, none of the three principal actors the British government, the
Indian government and Bleach thought it fit to await a higher courts verdict
acquitting Bleach or confirming his conviction. Perhaps the risk of affirmation by the
High Court was all too real and, hence, skilfully rendered infructuous.
Unless the government comes clean and acts responsibly, disturbing questions will
keep recurring. What changed after the second rejection of presidential pardon? Was
Bleach really a secret British intelligence agent, as is repeatedly alleged? And had he
threatened to spill beans that could be dangerous either to the British or to the Indian or
to both Governments? What are the reasons on file for his third time lucky release?
The nation is entitled to know and should not be kept waiting.

FIRING BLANKS AT CANDIDATES
A None of the Above (NOTA) majority vote by voters is the severest democratic
indictment of All the Above (ATA). If NOTA polls higher than candidates A, B and C,
it accurately measures the disgust quotient of the electorate. Why should the ex-
pression of such a frank view not be permitted in the worlds largest democracy?
NOTA reflects maturing of Indian democracy. The Supreme Court has translated
public desire for greater transparency by directing full disclosure of educational
qualifications, financial assets and criminal antecedents. Last week, the Delhi High
Court added a no-dues certificate to this list. The fundamental rationale is increase in
voter-choice and voter-empowerment. A NOTA option is a logical second step and a
vital link in the continuity of electoral reforms reflected in measures like increased
expenditure limits, corporate funding of elections and abolition of the Rajya Sabha secret
ballot.
Second, NOTA is akin to a no-confidence vote. It is an effective means of
communicating voter dissatisfaction. In its first phase, NOTA must remain non-binding,
i.e., not requiring re-election (as in Nevada, US). But second generation electoral reforms
should use binding NOTA to have re-elections and to ensure candidates
accountability. More than 250 million citizens of Europe, Asia and the US
(Massachusetts has had a binding NOTA since 2003) have the right to choose NOTA, in-
cluding in new democracies like Armenia, Azerbaijan, Belarus, Kazakhstan, Kyrgyzstan,
Latvia, Lithuania, Tajikistan, Ukraine and Russia. Some 6,50,000 petition signatures were
collected for NOTA in California though the proposal was rejected. However, Indian
law should provide for re-elections only if certain thresholds are exceeded, e.g., if NOTA
votes exceed 50 per cent.
Third, if free speech and expression are part of a constitutional fundamental right,
free expression of the will of the electors should be recognised as an important compo-
nent of this right. International human rights documents explicitly underline this
(Article 25(b) of the International Covenant on Civil & Political Rights, 1966). Fourth, a
NOTA option is likely to substantially increase voter turnouts. If low voter turnouts is a
negation of democracy, NOTA strengthens democracy immeasurably.
Fifth, NOTA cannot be equated with spoiling a vote. Voters positive and
conscious exercise of NOTA is quite different from the indifferent absentee voter and the
ignorant, erring voter who spoils a vote. Indeed, many voters deliberately spoil their
vote to convey anger because they do not have a NOTA option.
Sixth, the enhanced cost of repeated elections is a small price to pay for a
qualitatively better democracy. Binding NOTA would lead to re-polls only in specific
constituencies. Coalition-era politics has made us far more comfortable with frequent
elections. The economic activity generated around elections would give a periodic boost
to the GDP instead of retarding it.
A non-binding NOTA followed in the second phase by a binding NOTA is all about
accountability, voter empowerment, registering dissent, discontent and dissatisfaction
and, therefore, about the heart and soul of a qualitatively superior democracy.

THE LAW IS A ASS
The existence of silly, outdated laws in India led to a committee recommending
11,000 laws for repeal. Legislative lethargy and bureaucratic wrangling ensured that
only a small fraction suffered the axe. A celebrated survivor is the 1867 Sarai Act which
makes it obligatory for a sarai (inn)keeper to give a free glass of drinking water to any
passerby. The prosecution of a 5-star hotel for failure to provide this facility constitutes a
stark reminder of the potency of such outdated laws.
But India is not alone in the list of those having antiquated laws. English Victorian
laws provide that it is illegal for two adult men to have sex in the same house as a third
person. A bed may not be hung out of a window; and it is illegal for a lady to eat
chocolates on a public conveyance. An MP cannot enter the House of Commons wearing
a full suit of armour and it is legal for a male to urinate in public so long as it is on the
rear wheel of his motor vehicle and his right hand is on the vehicle. Placing a postage
stamp with the monarchs picture upside down constitutes treason.
Californian countries reflect an even more diverse list. Carmel county bars women
from wearing high heels within city limits. One cant ride an elevator with a dog in
Glendale. Los Angeles makes it illegal for a man to beat his wife with a strap more than
two inches wide without her consent, and also renders it illegal to cry on the witness
stand. Pasadena county makes it illegal for a secretary to be alone with her boss in a
room; while San Francisco prohibits elephants from strolling on market street without a
leash.

JUST THE JOB
I must confess that I started my scrutiny of the National Rural Employment
Guarantee Act with considerable scepticism. One might as well have a Poverty Removal
Act and wave a magic legislative wand to eradicate this scourge. The usual demons of
doubt prevailedhow will we get the funds, taxation would have to increase
exponentially, Indias huge population cannot be gainfully employed by legislative fiat,
and so on. I am happy to say that my scepticism has turned to appreciation at the Acts
sophisticated structure.
First, contrary to popular perception, the Act is neither an employment guarantee
nor a legislative sanction for an unemployed dole but a commendable initial effort to
provide partial employment to a carefully targeted group. It gives a guarantee of 100
days employment per year for at least one adult in every rural house-hold, entitling the
person to receive minimum wages for casual manual labour within 15 days of
application, failing which he/she shall be entitled to a daily unemployment allowance.
The limited promise contained in the Act will certainly make it more manageable in
terms of logistics and resources and its success over a limited target group will enable
the expansion of its scope slowly.
The fund inadequacy, argument is seemingly plausible but, on a second look,
untenable. At its highest, expenditure is unlikely to increase beyond 1 per cent of GDP.
Certainly, society would have to bear this cost through marginally increased taxation
and elimination of some subsidies but the cost-benefit ratio of the scheme is clearly
positive. The Act would enable many poor households to cross the poverty line. Even
more significantly, it would decrease rural-urban migration substantially. Women
empowerment would increase but adult males are more likely to benefit. Labour-
intensive works like prevention of soil erosion, restoration of tanks and watershed
development have the potential to transform the rural landscape. Last, but not least, the
Act is a logical next step in the continuing crusade for democratic decentralisation
through empowerment of panchyati-raj institutions.
Our rural economy does not look very good. Government rural expenditure has
declined (as a percentage of GDP) from 14.5 per cent to 6 per cent between the Seventh
and Ninth Plans. Rural branches of banks report a falling credit-deposit ratio from 69
per cent in 1991 to 40 per cent in 2001. The rate of growth of agricultural production has
declined from 3.5 per cent to 2 per cent between the Eighties and the Nineties and real
income growth fell from 4.5 per cent to 2.5 per cent during the same period.
Employment growth fell from 2.04 per cent during 1983-94 to 0.98 per cent during 1994-
2000. Most significantly, per-capita foodgrain availability has declined along with per
capita absorption indicating falling purchasing power of the rural household. It is truly
astonishing that 19 million tonnes of foodgrains were sold in 1992 whereas, despite
population increase, huge foodgrain stocks and burgeoning foreign exchange reserves,
only 8.5 million tonnes were sold in 2000-01. Rural distress, farmer suicides,
malnutrition, food insufficiency and poverty are only symptoms of this malaise arising
from lack of liquid money.
The legislative mandate of the Act is clearly more durable than the manifold
employment schemes already in existence. It creates a legal obligation to provide
employment and a sophisticated mechanism for implementing that obligation. The Act
is not subject to the vicissitudes of executive or political expediency, unlike the scheme
already in operation.
We already have a pilot in Maharashtra which has been a fair success. Studies have
concluded that the State Act has been a major source of livelihood for lakhs of unskilled
rural workers. Activity under the Act peaked in 1986-87 when about 19 crore persons
were employed. In 1989-1990 about Rs. 288 crore was disbursed. The operation of the
Act has seen peaks and troughs, but no one doubts its efficacy and the palpable effect it
has had on rural poverty.
There will always be critics to deter structural legislative reform. India should
increasingly adopt legislative techniques which are avant garde and imbued with the zeal
for social reform. Elevation of universal primary education into a fundamental right was
a step in the right direction. Enactment of the Fiscal Responsibility Act was another. The
Employment Guarantee Act is clearly yet another leap in the use of law as an efficacious
instrument of social and economic change and deserves the unqualified support not
only of political parties but also of diverse sections of civil society.

PUFF PIECE
At first sight, the decision of a Michigan company to not employ anyone, and to
sack those, who smoked either at home or at the workplace, appears to be bizarre. The
company successfully defended its decision on the ground that Michigan was one of the
21 States in the US which do not have statutes prohibiting employers from
discriminating against smokers.
A hypothetical Indian analogue would be upheld to the extent of not being allowed
to smoke in the workplace. After all, smoking is a noxious activity and no fundamental
right to smoke can be posited. It can be subjected to all manner of reasonable
restrictions. Smokers can legitimately be treated as a class apart and hence, validly
classified under Article 14 of the Indian Constitution.
As for not employing even those who smoke only outside the workplace, it could
be argued that a smoker remains a smoker and it is impossible to police him for
surreptitious smoking in the workplace if he is a regular smoker at home. Second, the
insurance and health cover provided by employers is more expensive in the case of
smokers with their inevitable health hazards. But it would still be a close legal call. I
wonder if there are any employers who want to blaze this legal trail in India?
But I would be the last person to support the other part of the Michigan companys
diktat. It applied the same penalty on smokers as on overweight persons. Nicotine
regulation and adipose checking can hardly qualify for common treatment.

NANAVATI COMMISSION AND POTA
The two major events of the last fortnight have been the Nanavati Commission
Report and the judgement in the Parliament attack case. Both have a legal flavour and
both have generated a lot of debate and controversy. Opinions on each vary
enormously. My purpose is not to repeat what has already been written on the subject in
reams but to highlight some of the lesser discussed aspects of these two issues.
The Nanavati report was the ninth such exercise, if one were to count the endless
committees, commissions and inquiries into the
anti-Sikh riots of 1984. The fact that we are still inquiring into a 1984 incident must be a
unique, unparalleled and unprecedented global example of diligent yet unproductive
pursuit of an issue. No other nation can justify endless inquiries of this kind. Given the
enormous time consumed by such commissions, the huge public resources expended
and the relatively innocuous nature of the findings at the endfrequently directing
further probesthe time is now ripe to make a national resolve to have a grand inquest
into all post independence inquests and to stop the practice of creating such sinecures at
the drop of a hat. The only acceptable exception to this would be a legal amendment
permitting fact finding efforts within a strict schedule of three months coupled with a
maximum non- extendable limit of six months. Otherwise, we would be validating my
favourite jest about commissions and committees as a group of the unfit, appointed by
the unwilling, to do the unnecessary.
The anti-Sikh riots of 1984 were a blot on any civilized society, much less the
worlds largest democracy governed by rule of law and a dynamic Constitution. If
thousands died, only a handful cannot be guilty. Nor can such a carnage occur without
police complicity to some extent. It is also likely to have involved local leaders not
necessarily of any one party. The answer to all that is to criminally prosecute wherever
the slightest evidence is available. Appointment of one commission after another is
hardly the answer. Once prosecution is launched, one has to rest content with the
finding of acquittal or guilt. One cannot then appoint another commission and repeat
the procedure ad infinitum. Only the criminal justice system of the country can be made
to deal with acts and omissions which constitute crimes. Inquiry commissions are a poor
and ill-equipped substitute. Those who try to blame the Congress and to score political
points on this carnage forget that out of the twenty-one years since 1984, the Congress
was not in power for approximately ten years and yet criminal prosecutions were either
not launched or not successfully completed.
It is no doubt true that where police officers are involved, laxity and even
negligence in prosecution is inevitable. The answer is not to endlessly lament about it or
set up a commission but to create an independent directorate of prosecution, if not
generally, at least for such carnages. Such an independent agency would be able to
effectively police the police and launch prosecutions.
The anti-Sikh riots issue have spawned so many emotional and political bylanes
that highway issues of monetary succour and rehabilitation have taken a back seat. In
the zeal of political rivals to prosecute a few well known political figures, the
prosecution of several policemen at the level of the constabulary and of local leaders has
taken a back seat. While giving a clean chit to the senior leadership of the Congress
party and to several named leaders and while using somewhat ambiguous language
about others, the Nanavati report really fails the nation in not naming those
underlingslower level policemen and lower level leaderswhose complicity it
nevertheless finds. These are the persons who were responsible for the actual massacres
and they may, amazingly, even twenty-one years and nine commissions/committees
later, go scot-free.
Equally, the zeal of the media and of political rivals to sensationalise big names,
dilutes the desirable recommendation of giving employment to at least one member of
each of the destitute families. The Government should have no hesitation in accepting
this part of the Nanavati report.
Similarly, a recent Delhi High Court judgement directing the Delhi government to
pay a compensation of Rs 1,50,000/- per injured person should be accepted by the Delhi
government in place of the insultingly ridiculous Rs 2000/- offered earlier.
It is only such social welfare measures coupled with the expeditious prosecution of
those who actually carried out this carnage at the grassrooot level which will bring real
relief to the oppressed and restore faith in our criminal justice system and in democracy
itself.
The Apex Court judgement in the Parliament attack case validates another aspect of
POTA repeatedly asserted by those who sought its repeal. The fact that draconian laws
do not necessarily eliminate the disease for which they are designed but frequently
violate human rights was known from as early as the first few years of TADA and its
abysmally low conviction rate coupled with its very high detention rate. That is what led
to a detailed debate on itloudly supported by the then opposition which later brought
in POTAand to its ultimate repeal.
Secondly, the fact that such draconian laws do not usually act as a deterrent was
proved frighteningly true time and again, when incidents like Akshardham, Raghunath
temple, JK Assembly and Parliament attack took place during the existence and
operation of POTA or its similar variants.
POTA notwithstanding, the Delhi High Court acquitted one of the accused and
lowered the sentence on another in the Parliament attack case. In the recent Apex Court
judgement on the subject, confessions recorded under POTA and other evidence
collected under POTAlike telephone transcripts etc.has either been disbelieved or
disallowed. Such impotence of a seemingly complete panacea to terrorism means that no
requiems need to be sung on the demise of POTA.

GOVERNANCE

The issue of good governance is viewed in this section from diverse angles. Good
Corporate Governance is viewed as a concept which has come of age from the bad old days
typified by the remark Can a corporation have a conscience when it has no soul to be
damned and no body to be kicked?
Good governance must necessarily mean good governance for the average, common
man, and in that context, numerous property frauds occurring in a large volume of
property transactions are discussed. The author demonstrates how a small, simple
administrative change coupled with a short substantive legal amendment would
eliminate such property frauds and laments the fact that nothing has been done to relieve
this most painful experience of the common man.
Good governance in the world of theatre is highlighted with reference to examples of
a bygone era while the proposed Political Responsibility Act is debunked as mere idle,
theoretical musing. In contrast, the Fiscal Responsibility Act (enacted by the NDA
Government but notified and implemented by the successor UPA Government) is lauded
as a highly desirable initiative. The farce to which we have reduced pivotal instruments of
Good Governance like the office of Public Prosecutor is highlighted in the context of
Gujarat while the absence of adequate attention to Indian prisoners languishing in
Pakistani jails is lamented.
Bureaucrats are castigated by reference to the rampant corruption prevailing in the
revenue services and the old maxim that if one takes care of the details, the big things will
take care of themselves, is made good by reference to several Indian idiosyncrasies and
policies. The bureaucracys mulish obstinacy and adherence to stupid interpretations is
also emphasised by reference to personal examples. A couple of articles list a New Year
wish list for better governance of India.
GOVERNING CORPORATES SOULFULLY
Good corporate governance (GCG) is what corporate governance does. Lord
Thurlows famous question abounds in legal literature: Did you ever expect a
corporation to have a conscience when it has no soul to be damned and no body to be
kicked? The plethora of committee reports and other material on GCG, especially over
the last decade, reflects an attempt to not only provide corporations with a conscience,
but also to police its heart and soul and to kick it if all else fails. It is to achieve the
Aristotelian golden mean of transparency, accountability, integrity, equity and
responsibility in the running of corporations.
But if these are to go beyond the realm of mere slogans, shibboleths and verbiage,
we have to address some of the nitty-gritty issues and uncomfortable questions involved
in good corporate governance. First of these is of creation, and more importantly, the
vigorous and honest policing, of anti-Insider Trading (IT) codes. These IT regulations
many of which were revised after the report of the second Kumaramangalam Birla
Committee (of which this author was a member) provide codes of corporate disclosure
practices to ensure timely and adequate dissemination of price sensitive information,
trading restrictions on designated employees, creation of limited trading windows
which have to be closed during price sensitive periods (like declaration of annual or six
monthly results) and creation of Chinese walls within a corporate entity separating those
inside certain sensitive department from other public departments. There cannot be
even the beginning of GCG without reducing the pernicious and yet widespread
practice of IT. Second is the entrustment of more powers to the market policeman
SEBI.
Presently, it has no powers to impound documents, to obtain information from
banks or PSUs, no powers to award compensation to aggrieved investors, no power to
levy punitive penalties of up to three times the amount of benefit received by the
concerned corporate and no power to direct the corporate to disgorge its ill-gotten gains.
We cannot police the primary and secondary markets with a toothless tiger, which
seems almost impotent compared to its US counterpart. Third, we have to bring into our
corporate and legal lexicon a word conspicuous by its absence viz. punishment. Fifteen
hundred years ago, a Japanese prince said, in one of the oft quoted works on GCG, Do
not fail to bestow a reward, nor impose punishment. Indias record of punishment for
corporate misgovernance is almost non-existent.
From the 1993 Securities scam to the contemporary UTI scam, no accused has been
finally convicted in our endless time capsule of legal proceedings. In contrast, other
countries like USA and Australia are not paragons of virtue with no corporate
dishonesty or fraud but, instead, are regimes which accept the human propensity to
commit wrong, police such wrongs vigorously and promptly, and arrive at a final
conclusion one way or the other within a short time-frame.
Even before the current spate of skeletons tumbling out of corporate cupboards like
Xerox, Enron, Worldcom, Tyco et al, Australia had banned several directors for over
twenty years for corporate frauds. Milkena far more powerful Singaporean Harshad
Mehta than the Indian one was punished and imprisoned within a few months and
served out his full term. Within a few weeks of the recent spate of accounting scandals
hitting corporate America, President Bush not only formed a corporate task force but
both Houses of Parliament passed law creating a new oversight board for the hitherto
self-regulating accounting industry, quadrupling penalties for fraud up to 20 years and
creating a new offence of securities fraud with punishment up to 25 years.
Fourthly, reform of, and a hard relook at, several established accounting
malpractices is a must. For example, several accountancy frauds occurred because the
auditor supposed to be an independent policeman was (as with Arthur Anderson) also
a management consultant to the same company. Earning million dollars in consultancy
fees involves a serious conflict of interest when the same person has to audit the
accounts and blow the whistle on corporate frauds.
Further, the power of the corporate to appoint and to sack its auditor has
colourfully been described as the most absurd contradiction viz. allowing a thief to
appoint a judge in his own case and giving him the power to sack any judge who gives
inconvenient verdicts.
Good corporate governance is an issue as large as the universe and one can do
more than perform like a fan dancer touching upon some aspects without really
covering them. The only fitting answer to Lord Thurlows question posed at the
beginning was provided by the French philosopher Henry Thoreau who said: It is truly
enough said that a corporation has no conscience; but a corporation of conscientious
men is a corporation with a conscience.

HELPLESS AT THE HANDS OF POWER
This is a true story. It happened in my presence. Till it happened, I always believed
that it could not happen to me or to my family. It illustrates the awesome power some of
our bureaucrats, especially those dealing with revenue departments, wield and the
extent they are prepared to go to abuse them.
My son returned recently after a ten-week stint abroad and my wife and I went to
receive him at midnight. Normally I get an official authorisation entry pass made in
advance but since I was busy, I forgot. Consequently, we waited eagerly at the exit point
for the arrival of our son, without being able to enter the actual arrival hall. He had a
long 15-hour flight with two changes and would be tired.
Two flights (including my sons) came within a few minutes of each other. Between
half past midnight and 2 a.m., or so, approximately 400 or 500 passengers exited in front
of our eyes. Over one fourth more than 100 were carrying laptops. No one stopped
them, nothing happened, they simply walked through.
My son, whose luggage came a little late, had packed his ten-week stays personal
belongings into one large carton along with a suitcase. He was, obviously, stopped on
account of the carton, but then asked to pay duty not for any item in his luggage but for
the laptop slung over his shoulder.
Between 1 a.m., when my son first came out to inform us and 2 a.m., we pleaded to
be allowed inside to talk to the Customs officer. It was only after one hour of
importuning that I was allowed in at about 2.15 a.m. I explained to the Customs officer
that the laptop was more than two years old, that a bare look at the model and type
would show it to be so, that scrolling through the data would prove this and that at least
100 laptops had passed in front of my eyes without even being questioned. The officer
would not budge and was clearly rude with a smirk on his face. I told him that the
machine was so obviously old that no one had bothered to make an export pass for it
when it was taken out by my son who travelled along with us out of India.
Three of the other subordinate officers around the senior man also tried to plead
my case but the senior officer would not budge. I told him curtly to complete the
formalities for detention of the laptop since it was beyond 3 a.m. Perhaps my confident
demeanour displeased the officer and he decided to give me a taste of his awesome
power.
First, he refused to let my son sign the receipt and the detention form under protest,
as per my instructions. I persisted and did not yield. Finally, he relented but after my
son had signed the form under protest and the laptop was sealed for detention and we
were about to leave when he directed the officers to open the rest of the luggage. Despite
vindictive rummaging, nothing could be found, but this process took another 20
minutes. Thereafter, after my sons signature, but before tearing the carbon copy meant
for the passenger, the officer, in a further vindictive mala fide act, wrote that my son had
walked through the green channel and that I had tried to hamper the process of
appraisement. This happened right under my nose. The additions were written
deliberately later after my sons signatures had been affixed to create a record in front of
my unbelieving eyes. We finally left at about 3.30 a.m., tired and benumbed by the
callous approach of these officers.
Two days later, a different officer superior to the one gunning for us, released the
machine immediately and politely upon production of the annual maintenance service
contracts where the machine found mention. He admitted that such conduct by his
colleague was indefensible, but said he would have to charge a token sum of about Rs.
1,000 in view of the note regarding passage through the green channel. I told him of my
serious intention to take the matter relating to his colleagues conduct to the Finance
Minister. But ultimately, such people get away because many of us do not have the time
to pursue them. I have been told by many of my friends of the unnecessary tensions
involved in entangling with the Customs department.
Since I consider myself a man of some status and power in this city, I often wonder
what deal the common man gets at the hands of such blots on our bureaucracy.
But equally, I console myself with the fact that for every such disgraceful officer,
there are many who are compassionate, considerate, fair and patient, as was the senior
officer who saw reason two days after the detention.
Clearly, the legal presumption of regularity of official actions should at least be
erased, if not replaced, by a presumption of irregularity of official actions.

IF YOU TAKE CARE OF SMALL THINGS, THE BIG THINGS
WILL TAKE CARE OF THEMSELVES
This piece might seem like a collection of unrelated or disjointed narrations. It does
not relate to any single topic and is, indeed, a list of events, anecdotes and experiences
linked together only by one theme these are my perceptions where I have tried to
extrapolate some generalisations from daily petty events.
First is the conclusion that success in life must depend very much on ones
approach to life. It is the classic you see a glass half full, I see it half empty syndrome.
Whether you approach an issue positively or negatively makes all the difference and
also determines your station in life. Two weeks ago, at a seven star, spanking new hotel
in Bangalore, when I asked for some peanuts to chew in the coffee shop, the waiter
simply said no, because it was not on the menu. I then asked for some cheese and
pineapple straws and received the same answer. The point is not that the waiter was
rude or abrasive but that it was simply a case of going strictly by the rule book (the
menu in this case), unwilling to take any initiative and reflecting a lackadaisical
approach. Two minutes later his boss, the steward, happened to pass-by my table and
on my repeating the request, I received a pleasant smile, a quick I will see what I can
do and my two items were served within five minutes. It was, thus, clear why the
second man was the boss of the first. It was unlikely that the roles could ever be
reversed in later life.
The second comment relates to shoddy conceptualisation, illogical and silly
planning and lack of attention to detail. India is replete with infinite examples of this
malaise and they cause me immense irritation. Only two recent examples out of a
million I have encountered will suffice to illustrate the point. At many airports and this
happened again at Bangalore though it could apply to several others one finds this
bizarre scenario where there is a sparkling new construction, new infrastructure but no
planning and only one Q for security check. Gates for security check are at least three
in number, cubicles for personal frisking are many, machines for X raying luggage are
more than one, but at the crucial peak hours on the evening when several flights are
taking off, you will invariably find only one door open for security checks, only one
cubicle used for frisking and only one X-ray machine in use. My exasperation and
irritation knows no bounds because no one does anything about it, though, it is there for
all airport administrators, security heads and departmental heads to see.
The same lack of foresight applies to the wonderful flyovers we have all over Ring
Road in Delhi. I think it is one of the best things to happen to Delhi and whoever
thought it up and executed it within record time deserves eternal kudos from the
Dilliwallahs.
I do not also complain of the traffic disruption on account of ongoing construction
at these flyovers since it is inevitable in a congested city and since time schedules have
broadly been adhered to in the construction process. What exasperates me beyond
redemption is the obvious need to plug breaks in the road immediately after you
descend from a flyover. For example, going from Moolchand to AIIMS on the Ring
Road, one can come tearing down the flyover at South Extension market and even
before you have descended fully you will be up to your neck in a traffic jam because
there is a traffic light of the South Extension market cut off lanes. So, the flyover
construction has achieved nothing except shifting the bottleneck from the original
intersection (over which the flyover is constructed) to the red light at South Extension
market. And since the latter red light pre-existed the flyover for decades, it should have
been taken care of before the flyover was commissioned by providing some underpass
or other diversion. It requires no mental acrobatics or technological expertise to note this
obvious problem at several flyovers.
All of us who encounter such conundrums daily can do no more than sigh Mera
Bharat Mahaan.

WHERE BABUS BEAT NETAS
The politician is everyones favourite whipping boy. Not without reason.
Politicians as a class have not exactly earned themselves glory in post-independent
India. The idealism of the nationalist movement has been replaced by crass
commercialism and mundane materialism. The depth of vision, a result of both wide
reading and experiential knowledge (not necessarily education) which our politicians of
the forties and fifties possessed, has been replaced with the crude superficiality of
political upstarts who think no end of themselves. Scams, scandals and deviant
behaviour has taken the place of principled politics. Dignity of discourse both within
and outside the Parliament and the State Legislatures has been debased and devalued.
In a sense this decline is a part of the general decline in all aspects of civil society.
But the point I wish to make is that at least politicians have taken the responsibility for
some of this, they have had to shoulder the cross of calumny and infamy and their
credibility has nose dived.
But what of the other major underpinning of our democracy the bureaucracy, the
so called iron frame of India? The decline, debasement and abuse of power in that sector
is much more, but there is no accountability, no shouldering the blame and hardly any
punishment.
Firstly, the politician is accountable, accountable in a ruthless and decisive manner,
at least every five years but more likely every three years. In contrast, the bureaucrat
enjoys what is known as security of tenure.
In the name of independence, it is nothing but a license to continue wrongdoing
since removal, dismissal of a middle level or senior bureaucrat is the closest analog to
eternity, if at all, it ever happens.
Secondly, the politician, who is corrupt, is usually so around election time, and for
the rest of the time his acts and omissions are usually linked to election funding. Not
every politician is a minister and not everyone wields the same pelf or power which
allows the disbursal of largesse. In contrast, for the bureaucrats it is sunshine round the
year and the haymaking need never stop. The power and position whatever it may be,
and at whatever level, continues on a regular basis so long as he is able to cling to a post.
Thirdly, parliamentary questions and Press investigations keep the politician on his
toes relatively much more than the anonymous bureaucracy, which in fact successfully
conceals its wrong doings behind the conveniently devised fictional immunity of civil
service anonymity. Bureaucrats will do everything to their own liking or their masters
bidding but leave the politician holding the hot potato when the scam is unearthed.
The power of the bureaucracy from the apex to the bottom is truly awesome. They
change file notings, give deviant twists to a case, find reasons for not taking a decision.
A large number are eager to accept huge monetary considerations for taking decisions,
whether right or wrong. Then interface with the common man is regular and hence, the
harassment of this common man severe. The collective solidarity acts as a stone-wall
against inquiry and action. Their capacity to stall punitive action against themselves is
legendary. This is not to suggest that the civil service does not possess some outstanding
administrators, men of learning, integrity, depth and dignity. But sadly, these are a
species fast on the path to extinction. This endangered species is not being replenished
or renewed. The new entrants to our civil service are not imbued by any ideals or
notions of public service nor possessed of learning and depth, but motivated by a ill-
concealed predilections for money, power and position.
We have to address ourselves to the reform of this vital fifth estate of the Indian
democracy before it is too late.

A MOUTHFUL OF WISHES FOR 2003
If temptations have been designed only to be succumbed to, New Year resolutions
are made to be broken. But that has never been a hindrance to people making their New
Year wish lists. Here is mine.
Let the government resolve that every activity and project will have two time
limits. If it is not completed within the first, the project head will be warned and
reprimanded.
If the second time limit is violated, then the three top-most officers involved (from
departmental head downward) will be dismissed from their services.
Unless we can find project heads of the Sreedharan kind who completed the Delhi
Metros Phase-I within a record time and stipulated project cost only the fear of God
can ensure that project heads perform.
Incidentally, talking of implementation of strict time limits, one hopes that judicial
vacanciesat least at High Court and Apex Court levels are filled up by
announcement of the names of the successors one month before the retirement of the
incumbent.
Since the last date is known to everyone at the threshold, there is no reason why
this statutory practice is not made axiomatic. Needless to add, my prescription in the
previous paragraph cannot apply to this one.
At the national level, let India make two New Year resolutions: First, to win at least
10 Gold medals at the next Olympics whenever they are held and to whichever sports
they may concern with. Secondly, to move at least 20 notches up the Transparency
International Corruption Index for 2003-2004, which starts with the least corrupt nations.
These two achievements will yield a surge of collective national pride and self-
confidence in every other sector.
At the societal level, let every member of civil society resolve to:
(A) throw garbage in a can.
(B) ensure that the garbage is collected and cleared to a central dump.
(C) apply (A) and (B) above, irrespective of region, activity, or nature of habitation.
At the individual level, perhaps, it is not too onerous for each of us to resolve to do
10 minutes meditation, 40 minutes physical exercise or yoga every day.
One can also try to read, recall or write at least one attractive sentence of poetry or
prose on a daily basis.
At the political level, especially in a year with at least nine, if not more elections
likely, let each political party first resolve to maintain the dignity of discourse and to
attack each other on issues, and not launch personal assaults.
Secondly, let them resolve to deny tickets or slots of any kind to at least 50 per cent
of those, who despite having a criminal record, have been the recipient of such tickets or
slots in the past.
This is on assumption that political compulsions may not permit denial of tickets to
all 100 per cent at one go. So, a start would surely be welcome.
At the marital level, let every married couple resolve individually to lose each
argument in their home. Such loss would mean victory in life, as well as in career. They
can also share romantic moments with each other at least once a week by going out to
some quiet place.
At the economic level, let workers and management of every sector resolve not to
lose a single man-day of work. They would express their displeasure and dissent known
by every other form of democratic expression, except strikes.
But, unlike New Year resolutions and temptations, wish-lists are by definition,
intended to be endless and dreamy.
But if wishes were horses, beggars would fly.

INTO THE ABYSS OF DEBT
4-6-2003, HIDNUSTAN TIMES
There is an old saying in respect of statistics (as indeed, also for certain articles of
clothing), that while what they reveal is interesting, what they conceal is vital. Applied
to the burgeoning debt-trap in which the Indian economy finds itself, that aphorism can
validly be modified: what the statistics of (internal) debt reveal is alarming and what
they conceal may well be terrifying.
As far as the borrowings of the Central and State governments within the country is
concerned, fiscal deficit as a percentage of GDP at the central level alone has consistently
exceeded five per cent over the last five years. The overall fiscal deficit of both Central
and State governments as a percentage of GDP exceeded 10 per cent by 2000-01. Both
percentages are extremely high. In each budget, we forecast rosy pictures and quietly
revise them at the end of the year to align them with dismal reality: In 2001-02, the
percentage was revised from 4.7 per cent to 5.7 per cent. Our commitment to the IMF to
reduce this to 3.5 per cent by 1997-1998 is, thus, a pipe dream. An 11 per cent deficit to
GDP ratio (for central and state governments combined) is the second highest in the
world after Turkey. This debt-trap means that, for example, in 2001-02, over Rs 1,15,000
crore had to be paid out in interest payments.
Fiscal deficits simply mean that we, as a nation, are living beyond our means. It
means that we have to make huge payments of interest to service our debt, leaving little
or no funds for development activity. Debt bonds of even highly industrialised states of
the Union are considered junk by lenders and investors and those states must borrow at
high interest rates (this is true, for example, of Gujarat). Hard decisions, not electorally
convenient ones, have to be taken to ensure that the debt trap does not become a
long-term spiral or vortex like an economic whirlpool which sucks us into a
never-ending abyss. We must applaud, not excoriate, when bold and non-populist steps
are taken for example, when newly-elected Amarinder Singh stopped giving away free
water and power to farmers, involving savings to the relatively wealthier State of Punjab
of about Rs. 1,100 crore per year. Maharashtra should, likewise, cut its huge, but highly
politically sensitive cotton subsidies amounting to about Rs. 450 crore per year.
Fundamental, across-the-board power sector reforms are needed across India, the
deficits of State Electricity Boards alone add up to five per cent of GDP. It means salary
freezes for government employees have to be strictly adhered to. Our declared intention
to raise GDP and Industrial growth to nine per cent (which is the much published object
of the Tenth five-year Plan starting from 2002-03) will otherwise remain a laughable and
distant dream. (Incidentally, our actual growth rate of GDP and of industry was 5.4 per
cent and 4.5 per cent respectively, for the entire Ninth Five-year Plan 1997-2002).
There are, however, some silver linings and some cause for optimism. Our high
debt-GDP rates and debt-service ratio declined substantially over the last decade from
what governments inherited in 1991. Secondly, as far as external debt is concerned,
while it has increased (for example, by $ 8 billion between 1991-92 and 1997-98), foreign
currency assets, including all inflows, have increased even more (by $ 20 million over
the same period), thus increasing our reserves.

OUR BEST BET
Apart from the host of human, social, political and legal issues thrown up by the
Best Bakery case, the age-old issue of who will guard the guardians arises again. What
happens when the primary guardian of law the State Government is prima facie guilty
of collusive prosecution? Or, at the very least, of criminally negligent conduct of a case?
Or, equally likely, of either positively intimidating and suborning witnesses or failing to
provide them security and protection? Not to speak of prima facie involvement of one of
the MLAs of the ruling party.
Add to that the fact that the secondary custodian of public interest and of equal
application of the law the Central Government shares the philosophy, ideology and
perception of the State Government and is unwilling to act except to bandy clichs like
state subject. What happens when the Central Government gets into the business of
protecting the State Government instead of the law of the land?
Yes, there are institutions like the NHRC which can and do generate public
opinion. They are empowered, and should increasingly adopt an interventionist role.
But, as Justice Vermas report during the Godhra riots showed, at the end of the day, the
NHRC remains toothless and powerless as far as striking where it hurts is concerned.
There are the super central agencies like the CBI and the CVC. The latter is only
concerned with bureaucratic corruption and the former, suffers from two serious
limitations: it is under de jure and de facto central control and influence and can normally
intervene only upon a States request or at least with its consent.
That leaves us with two of the biggest myths of Indian polity. First, the
independent public prosecutor (PP), who conducts the prosecution for the State which,
incidentally, is legally given the sole monopoly to conduct prosecutions with an
extremely limited and circumscribed role for any private complainant. Idealistic paeans
of praise have been showered on the office of the public prosecutor by the Apex Court in
the celebrated Paswan case relating to withdrawal of prosecution qua Jagannath Mishra
of Bihar. In reality, the actual functioning of the office of the PP is in inverse proportion
to its majestic origin and glorious conception. Rarely has any other office or institution
been so debased and devalued over the decades.
The second myth relates to the constitutional principle of political accountability of
the executive government (Central or State), which, it is said, must retain ultimate
control over all agencies (like prosecution departments) since they are accountable and
answerable to the people. Well, we all know the truth as far as the operational reality on
that issue is concerned.
Consequently, in extreme situations where there is deliberate subversion of the law
by the guardians themselves, one must begin to think of an independent directorate of
public prosecution (DPP) based on the British model. To make it effective and real, we
should seriously consider giving it a constitutional status and emulate, as closely as
possible, the model of the Election Commission (EC). The Indian EC, by and large, has
acquitted itself well and, indeed, been the envy of the world. Just as the sine qua non of a
functioning democracy is a constitutionally insulated body like the EC, imbued with the
qualities of objectivity, independence and fairness, a constitutional DPP would go a long
way in achieving the other significant virtue of a functioning democracy, viz., fair and
impartial application of criminal law.
Such a DPP would have the same security of tenure as the EC and be answerable
only to the Constitution through Parliament. It need not be entrusted with routine
prosecutions but only with situations like the Best Bakery, one where the normal agencies
of the State are prima facie perceived to have failed. Upon such a prima facie finding a
default by the DPP, it should have the power of assuming charge of the prosecution,
including transfer of the case from the local to another court in the same state or outside.
Theres no reason why this limited role be not entrusted to an independent
constitutional body.

HOSTAGE SITUATION
The recent Supreme Court directive to release Pakistani prisoners in Indian prisons
is welcome and gratifying. But equally mystifying and retrograde is the Governments
stand that they cannot be released unless there are reciprocal releases of Indians from
Pakistani prisons. The Pakistanis in question are not terrorists; they have served their
terms fully and occasionally spent more undertrial prison time than the maximum
sentence provided for the offence charged.
Indian domestic law with which alone we are concerned does not permit their
continued incarceration. We are proud of the rule of law in our country and this eye for
an eye spirit cannot justify precisely the same lawless Indian action as is done by
Pakistan. Prisoners who have completed their terms cannot be pawns or hostages in this
game of reciprocal one-upmanship between warring neighbours.
On the contrary, the Government should unleash a diplomatic and publicity
blitzkrieg to secure the release of those unfortunate Indians in Pakistani prisons,
including ordinary folk who strayed unwittingly over the porous J&K and Rajasthan
borders and fisherman carried unknowingly into Pakistans territorial waters. Every
delegation, every official Indo-Pak interaction and every Track II or III diplomatic event
must vigorously raise a demand for their immediate return.
Their plight should be highlighted at all international and bilateral fora and
Pakistan must be embarrassed into acknowledging their existence and handing them
over. None of this has been done by the Central Government in a coordinated or
consistent manner. The authorities owe an explanation to the nation in this regard.
Indians in Pakistani prisons should be an integral part of our diplomatic initiatives
rather than hostages in a diplomatic impasse.

UNREAL ESTATES
Is anyone aware of how many honest, hardworking middle-class citizens of India
suffer on account of property frauds flourishing simply because our political masters
and administrators have no time to address the issue and make a few simple changes?
Consider this: a person buys property usually a flat in a decent neighbourhood.
Upon execution of the sale deed for a property, he should normally receive and retain
the original title documents of the plot from the seller.
These originals would include the sale deed from the original owner who sold the
plot to the current seller. In case of leasehold property it would be the original lease
document from the lessor (e.g. L&DO or DDA). In cases of ancestral property, the title
may consist of a family settlement or a partition deed or a court decree in favour of the
original owner which would be handed over to all subsequent purchasers.
All such documents ensure that the title being passed by the seller is not defective
because the original documents giving title at the inception were handed over by the
original owner downwards to each buyer. Otherwise, the originals could be given to a
bank (creating an equitable mortgage) to obtain a hefty loan from a bank to the seller.
Naturally, this bilateral transaction between the bank and the seller cannot be known to
the unsuspecting buyer.
Equitable mortgage, an ancient principle of English law, has progressively
developed a strong pro-bank bias which applies with undiminished vigour even today.
It treats the holder of the title documents as the most innocent party against the whole
world and vests the property in the bank till repayment. The law thus ignores all
equities as far as the truly innocent third party buyer is concerned.
The sale deed is worthless unless the buyer gets the documents released from the
bank by paying a second time over, despite having paid the full purchase price to the
seller. The seller is, undoubtedly, the rogue, who may be prosecuted or sued by both the
buyer and the bank but has no interest left in the transaction and is usually untraceable.
Contemporary reality is that the buyer is unable to even ask the seller for the
original documents for the simple reason that there are several purchasers of different
flats and the seller ostensibly says that he cannot tear up the original title document and
distribute it among different buyers. Therefore, at most, the seller shows the original title
documents to the gullible purchasers and may then give each a photocopy of the same.
What is significant is that the seller has already given away the original title deeds to a
bank to receive a huge loan of crores of rupees.
In leasehold properties, the lease deed used to raise the loan from a bank is not
given to the purchasers. When conversion to freehold is sought, sellers frequently apply
to the DDA stating that the original lease is lost or stolen and only a photocopy is
available. DDA rules permit conversion merely by the seller advertising in a newspaper
(falsely) regarding the loss or theft.
Different purchasers, whether related or independent strangers, may live in the
flats or rent them out. Five, even ten years later, some bank official informs the
occupants that the flats are being put to auction sale next week under orders obtained by
the bank against the seller after a long grind through the Debt Recovery Tribunal (DRT).
If our political masters and bureaucrats had the time for creative thought and con-
structive action, a few simple things would bring relief and succour to lakhs of ordinary
citizens suffering devastation of their lifes earnings and expropriation of their only
property by this widespread fraud.
The most urgent reform I would advocate is the creation of a single window,
computerised special department where all mortgages and encumbrances for all
immovable property are required to be registered by compulsion of law. Each city must
have a central data bank in this regard and there must be an all India network. The
registration would show, at the press of a button, whether a particular property has or
does not have a mortgage with any bank. The legal obligation to register such charges
would fall alike on sellers, buyers, banks, owners et al.
Second, any sale/purchase of property anywhere in India must be registered and
legally recognised only after a No-objection certificate (NOC) is issued by the aforesaid
special department certifying the absence of any encumbrance. To avoid forgeries and
frauds, this department and the sale deed registering office must be directly linked by
computer.
Third, special fast track civil and criminal courts alongwith special police cells must
be created to deal expeditiously and efficiently with the primary fraudster (viz., the
seller) who not only can be sued for recovery but also be sent to jail for breach of trust
(section 464) and cheating (section 420).
Fourth, legal presumptions regarding the banks innocence need a careful relook.
Most such cases involve deep collusion between the seller, and bank officials at the time
of the initial loan given against mere copies which cannot, in law, create any equitable
mortgage. Bank officials rarely, if ever, visit the property for physical verification, either
at the time of the initial mortgage or annually at the time of renewals or enhancement of
loan facilities.
Fifth, collusive bank officials take no action against the seller for decades and it is
only when a change of guard takes place or banks balance sheets require urgent
window-dressing that the hapless and truly innocent victims (viz., buyers) are pursued.
The law should create a statutory presumption in favour of such really innocent bona
fide purchasers for value without notice of the fraud.
None of this reform is difficult or even time consuming. It requires only
prioritization and sincerity of purpose. One egregious example of such fraud (not
involving the bank) is the White House standing in the heart of Delhi on Bhagwan Das
Road. The original builder, S. D. Madan, a crook from Dhanbad, is enjoying life in
Canada as a proclaimed absconding offender while flat owners of White House are still
settling the banks dues decades after the flats were purchased. Viva la India.

UNRESOLVED NEW YEAR RESOLUTIONS
On New Years Day, my personal resolutions remain the same and as unachieved
as a decade ago: exercise for an hour daily; keep my weight below 80 k.g; read a new
non-law book every week; memorise my favourite Hindi and English couplets; collect
all my 500 favourite music compositions onto one I Pod; maintain silence whenever
angry, consolidate, but not expand financial, professional, political, social and family
commitments; learn a musical instrument; and master a third language. By any
yardstick, I am a dismal failure, since I have achieved none of these.
Let me see if I can do better by itemising some New Year resolutions for others.
Moving from the personal to the family, my wishlist would be to have each member of
each family wish every other family member good morning and good night everyday,
have at least one meal together everyday, pray or mediate together at least once every
week, and do one act of special consideration or thoughtfulness to at least one other
family member every two days.
Moving to the community, cleaning of ones residential locality at least once every
fortnight coupled with at least one act of good neighbourliness is not too arduous. As a
civic citizen of the city, each of us can decide to avoid at least one act of petty corruption,
which many of us indulge in or authorise by way of petty bribe-giving or by using pelf,
power or privilege. At the regional and national levels, let us resolve irrespective of
political affiliation or party loyalty to generally support and encourage in politics and
life those who have credibility, dynamism, decent family and community virtues, who
are not entirely dependant on politics for survival, and, also, largely say what they mean
and mean what they say.
At the most important level of the nation, let us collectively adapt Gandhijis simple
test before evaluating any act or omission: does it improve the lot of this nation or does
it diminish it? If each of us can achieve greater success in these resolutions in 2004 than
my personal scorecard this last decade, the forthcoming year will definitely be a
memorable one.

THE FOG THICKENS
Winter will leave us in a few weeks and we will soon forget the enormous chaos at
airports due to fog-delayed flights till we suffer the same annual ritual again in 2004-05.
But the intense fog enveloping Delhi every year for about a month not only diminishes
visibility, it also conceals a scandal of squandered public money, idle assets acquired at
huge capital costs, complete lack of planning and coordination and a callous approach to
taxpayers funds.
Consider these simple facts. Fog during winter is a physical climatic phenomenon
over which we have little control. It has to be taken as an unalterable annual fact. But
large parts of the world experience much harsher fog, snow, sleet and blizzard. Yet they
manage to ensure many more take-offs and landings than India with far less fuss and
hassle. This is possible only because they have the requisite technical equipment
permitting such procedures and fully trained personnel to operate them.
The Instrument Landing System (ILS) facilitates smooth operations during heavy
fog, basically by ensuring that the instruments on the ground talk to the instruments on
the aircraft and give the pilot and the aircraft two critical pieces of information: the
touchdown point and the centre of the run away. The evolution of ILS technology was
Darwinian: ILS I permitted landing with visibility over 550 metres, ILS II permitted it
with visibility over 500 metres, ILS III A allows this over 300 metres and the latest
state-of-the-art ILS III B allows it over 200 metres. ILS IIIC is now available and permits
landing in zero visibility.
The tragedy of Indian aviation lies in the fact that we are having the worst of all the
options at this point of time. If, collectively as a country, we were resigned to the fact
that for 30-45 days every year in most parts of northern India we would be prepared to
suffer insufferable delays for hours and even days, we would at least save public money
by not investing in expensive technology.
In such a situation, we would only act if we found that the cost- benefit ratio of
delayed flights, re-routing passengers and putting them up in hotels is perversely high
and unbearable. Incidentally, this cost (for which exact updated figures are not
available) was as high as Rs. 6.5 crore, (for a few days) in 1999 and Rs. 2 crores for eight
days in 1998. It can safely be assumed that it is many times this amount this year.
But India has gone further to ensure that we get the worst of all the worlds. We
invested in ILS I, which is substantially outdated. We then spent more money for
upgradation to ILS II, but trained only 50 per cent of our pilots on this despite the
availability of equipment. What is truly hilarious is that subsequently we have invested
much more on ILS III A mainly to appease the media and the public.
This equipment is lying unused because the corresponding pilot-training for this
advanced equipment has not been done. Second, there is no legal mechanism to
compulsorily extend it to pilots of airlines other than Indian Airlines and Air-India.
Unless other private airlines fall in line, the equipment will remain under-used. (Of
course, if all Indian Airlines flights start taking-off and landing on time by using ILS
IIIA, other private airlines will have to pull up their socks since their passengers will not
tolerate inordinate delays by them). Third, many of the older aircraft, especially in the
IA fleet (like B 737s), do not have the state-of-the-art equipment permitting the new
ground equipment to effectively communicate with the aircraft.
Fourth, the pilot-training to upgrade from ILS I to ILS IIIA itself takes intensive
training of up to two years, so that any initiative in this regard will now begin to show
results only later. Fifth, it requires costly training updates to enable the pilot to retain his
licence. Last, but not the least, we dont even have ILS III C, which is the latest version
and will probably be on its way out by the time we fully implement ILS IIIA.
Meanwhile, Indians must not only suffer physical fog but continue to remain
fogged regarding cost to the taxpayer and the existence, if any, of any comprehensive
policy to deal with this mess.

WHERE THERE IS A WILL......
Winning elections cant be an end in itself. If one wants to make a habit of it, one
must seize the opportunity to provide result-oriented peoples governance. That can
occur only by prioritising achievable goals and then pursuing them with tenacity and
consistency for the full term, undeterred by the tough decisions involved in goal fulfil-
ment. People do not blame one for trying and failing, but for failing to try.
India is so large and diverse that a very lengthy wishlist of governance issues could
legitimately be propounded. On account of constraints of space, I will limit my wishlist
to four. The first is to address Indias demographic crisis by inaugurating a comprehen-
sive scheme of incentives and disincentives, backed by legal sanction, and put it under
implementation instead of leaving it on the drawing boards of the Planning Commis-
sion or the subject of endless seminars and colloquia. The Supreme Court has already
upheld the constitutional validity of such initiatives at the State level by holding similar
partial schemes as not violating fundamental rights since they subserve the larger public
interest of population control and economic development.
There is no reason to throw the baby out with the bathwater by constantly harping
on some aberrations in the implementation of family planning during the Emergency
years. The proposed scheme will necessarily be a non-coercive one, on a national basis,
involving direct and indirect economic, social and political incentives. School
admissions, job opportunities, right to stand for electoral office and a host of other
entitlements should be intelligently and sensitively linked to a two-child and a
three-child norm. It is only the first step which always appears to be intimidating. Once
started, it will be a pioneering initiative for which succeeding Indian generations will
thank this government.
The second item of good governance relates to concrete steps dealing with
criminalisation of politics. The controversy over tainted ministers will remain a matter
of rhetoric and of scoring debating points unless political will is shown to enact a
uniform law. Today, the use of the word tainted begs the question since one is legally
tainted only if convicted and there is no legal standard by which governments can
uniformly apply a rule of exclusion unless a person has been convicted. Consequently,
inclusion of ministers facing some criminal charge is legally unexceptionable. A
challenge can be thrown by government itself to all political parties by proposing,
prospectively and in futuro, a uniform legal model which debars either holding of
elective office or of ministership on uniform, legally binding criteria.
What those criteria should be is a matter of debate. But two things are clear: they
have to fall somewhere between mere filing of an FIR and a conviction and second, they
cant make the laughable distinction made by the erstwhile ruling party between crimes
of moral turpitude and other offences. I would suggest a uniform test of all cases where
a court has framed charges for any offence punishable with imprisonment of at least
three years. Making a distinction between offences on anything other than the maximum
period of imprisonment would be highly discriminatory. A government initiative in this
regard would not only be difficult to oppose but would also highlight the inaction of the
previous government on this score.
A third priority should be a concerted war on the backlog of pending cases. The
nature of the problem and its solutions are well-known and fully documented in endless
reports, committees and seminars. The need of the hour is to make a simple
implementation plan and to implement it uninterruptedly for at least three years. Four
crucial elements, among many others, should find a place in this plan. First, working in
close coordination with the judiciary, all appointments of successors to a judicial post
should be announced at least one month before the incumbent retires. Second, the
judiciary should be given a far greater control of the purse-strings than at present. Third,
every judge in the higher judiciary (and, a little later, in the lower judiciary) should be
comprehensively supported and aided by competent para-legals, law clerks and
students for purposes of research, organisation and expeditious delivery of judgements.
Last, but not least, the arterial bypass for clogged legal arteries, viz alternative or
consensual dispute resolution (ADR or CDR), should be operationalised and
implemented on a war-footing. The results will be there for all to see in a few years. The
dream of getting justice to the common man within two years or so can be converted
into reality without too much of fuss. The government is bound to get the fullest co-
operation from the judiciary, headed by a new chief justice known for his humility,
commitment to reform and zeal to do good for the common man.
Last, a specific focus on beautification of our major and medium-sized cities by
aesthetic plans for rejuvenation of central town plazas, major roads and slum areas is
imperative. We all know how ordinary towns in Europe and the US have a unique
aesthetic appeal. No doubt, the problem is one of cultural and civic habits of South
Asians. But wherever government initiatives have been taken, the local populace has
acquired a vested right in maintaining a clean and aesthetically appealing ambiance.
Pandara Park, Delhi Haat and other parts of New Delhi are examples of civic revival on
a small scale which must be replicated on a national scale.

STUPIDITY KNOWS NO BOUNDARIES
A small incident a few weeks ago illustrates how an object viewed by two different
persons can yield radically different reactions. It also illustrates the mulish adherence to
stereotypes by sections of the bureaucracy. A friend on a holiday in Mauritius purchased
a beautiful globe. The globe is made of semi-precious stones of different colours
mounted beautifully on a golden pedestal. No country names are mentioned and a bare
glance makes it clear to all that the work is a piece of art.
When my friend arrived in Delhi with his precious possession, he was stopped by
Customs. No, there were no duty problems, but it could not be allowed because it did
not correctly delineate Indias boundaries. Repeated entreaties yielded no result. My
tearful friend found the globe being roughly bundled up and kept in a makeshift
warehouse at the airport where rough handling would break it into pieces within 48
hours. He had not even dreamt of Indian boundaries when he first saw the beautiful
piece in a shop window!
It took three days of frenetic visits to superior officers before the globe was released
and that too because the senior-most officer understood the compelling logic of my
friends arguments.
First, my friend told him that the globe was so obviously a decorative desk piece
that it could not possibly have any propagation value. Second, the globe had no
boundaries at all and thus there could be no wrongful depiction of India. The argument
of the junior officers that the stones studding the globe were of different colours and
these de facto represented different boundaries was ridiculous because even within one
country several coloured stones had been used. Third, embedded and inscribed within
the globe is a non-erasable disclaimer from the manufacturers that the depiction makes
no representation regarding territorial sovereignty. Fourth, the import was of one piece
and was not intended for flooding of Indian markets with subversive depictions of
Indian sovereignty. Finally, surely Indian sovereignty, security and integrity must rest
on a firmer foundation than threats from decorative pieces of art.
None of this persuaded eight out of nine eminence grises of the Indian revenue
establishment and it was the pure good luck of my friend that there existed one
reasonable and sensible officer who saw reason and released the globe to the hapless
purchaser.

WHOS RESPONSIBLE?
The current buzzword for reform is the creation of a model Political Responsibility
Act. Such a framework would supposedly make our politicians more responsible. If the
use of this phrase conjures up any images of a magic wand, supposedly solving the
incurable ills of the Indian polity (corruption, criminalisation and casteism) I would be
chary of its use and efficacy. India is already an over-legislated but under-enforced
country and certainly no new omnibus law is going to solve our multifarious and
complex problems. However, individual legislative initiatives on specific issues seeking
to improve ministerial and public servant responsibility are certainly laudable attempts
at good governance and may be referred to as a Political Responsibility Code.
The first of these has been the NDA-legislated but UPA-notified Fiscal Management
Act regulating central governments fiscal and revenue deficits. Why not expand this to
discipline local self-governments, municipalities and panchayats and generate fiscal
discipline at all levels of governance on a truly all-India basis? The US provides a good
starting point with its Local Fiscal Management Responsibility Act mandating
progressive reduction and eventual elimination of deficits at all levels.
Second, instead of a vague and amorphous PR Act, it would be better to lay down
detailed rules and guidelines in the form of principles containing ethical rules of conduct
for different sectors of public life, including MPs, ministers, civil servants, tribunals and
public sector entities. The recommendations of the Lord Nolan Committee in Britain
provide an excellent model. They are based on the seven generic principles of
selflessness, integrity, objectivity, accountability, openness, honesty and leadership. The
recommendations are not mere generalizations but contain details capable of
implementation as rules and regulations.
Third, there is a need to make politicians and bureaucrats in decision-making roles
personally responsible and liable for wrongdoing found (for example) ex post facto by a
court adjudication. Frequently, in a court proceeding, the court quashes the institutional
decision (in respect of a tender, contract, service appointment or the like) but rarely
punishes the true offender (the public servant concerned) who may have been grossly
negligent, corrupt or reckless in taking such decisions. Fixing responsibility in such cases
through a legal mechanism would go a long way towards good governance and
preventing recurrences.
Finally, perhaps it would not be too far-fetched to ask for a global or UN-mandated
and policed PR Act, at the international level. In a unipolar world, with a sole self-
appointed global policeman (the US), is it not time that an international treaty is
sponsored by the UN containing a set of global principles of political responsibility to
promote restraint and balance by superpowers (especially the US) in their non-domestic
activities? No one can deny the necessity of such an international treaty, irrespective of
whether Bush or Kerry wins. Alas, equally, no one can deny the impossibility of its
creation.

DEBT SHOULD HAVE NO DOMINION
One of the three unique features of Budget 2004 along with the creation of a
Manufacturing Competitive Council and an Investment Commission is the notification
of the Fiscal Responsibility and Budget Management Act. This is clearly a marriage of
good law and good economics for good governance.
The bane of our economic management has been the never-ending and ever-
increasing fiscal and revenue deficits. We now join the select group of countries which
seek to control and reduce it by legislation. Revenue deficit is simply the excess of
expenditure over receipt on the revenue side i.e. excluding capital expenditures and
receipts. Its larger, more inclusive counterpart fiscal deficit is the excess of total
expenditure over total receipts (including revenue and capital items) excluding debt
receipts or repayments.
Till a few years ago, the liabilities of the Central Government were Rs. 120,000
crores, six times its annual revenue. Each year this involves an interest burden of Rs.
100,000 crores. Out of every three rupees spent by the Centre, one comes from borrowed
funds. The Eighties saw an explosion of debt to GDP ratios. During the Nineties, there
has only been a marginal increase, but it has hovered around the high figure of 70 per
cent in 2000.
Since this means that one-third of government expenditure will be borne by future
generations, a primary object of the Act is to ensure inter-generational equity in fiscal
management. Since debt servicing seriously inhibits new capital investment and
consumption expenditure while hurting borrowers with high real interest rates, the Act
seeks to progressively reduce both deficits by half per cent of GDP annually and to
altogether eliminate revenue deficits while limiting fiscal deficit to below two per cent of
GDP by a terminal date in 2008.
The Act also seeks to achieve its other object of greater accountability and
transparency in fiscal management by requiring the laying before both Houses of
Parliament with the annual budget of a Medium Term Fiscal Policy Statement as also a
Strategy Statement and a Macro-economic Framework Statement. Every three months, a
review of expenditures and receipts is to be placed before Parliament with detailed
reasons for any deviations from stated figures and remedial measures proposed to bring
matters back on track. The Act also prohibits direct borrowings by the Centre from the
RBI after a grace period of three years (except by way of advances to meet temporary
cash needs).
First, it is ironical that this measure of good governance took so long to be
operationalised, albeit its genesis is found in Article 292 of the Constitution subjecting all
borrowing power of the executive to such limitations as Parliament may by law
prescribe. B.R. Ambedkar, speaking in the Constituent Assembly on its predecessor
Article 268, clearly put the onus on a future Parliament to enact such a law and
specifically contemplated an Annual Debt Act. He virtually expected Parliament to enact
one in the first year of the Constitution itself.
Second, the Act uses the mandatory shall in respect of reduction and elimination
of the two deficits and specifically limits infringements of deficit limits only to cases of
unforeseen demands<. due to national security or national calamity. The intent to
maintain strict fiscal disciplines is thus manifest. Deviations on other considerations are
necessarily excluded.
Third, the structure and language of the Act would render deviations from and
violations of the Act subject to judicial review. Such review coupled with public
awareness is vital because, as a US legislator puts it, A politician thinks of next election;
a statesman thinks of the next generation. Unless courts take a robust and
interventionist approach satisfying themselves that the conditions precedent stipulated
in the Act are fulfilled, these political propensities will not be curbed.
Fourth, unlike a 2004 US proposal, the Act contains no in-built penalties or
consequences for non-compliance. The US proposal, currently under active
consideration, hits where it hurts. It proposes an automatic 5 per cent reduction in the
annual pay of every member of the US Congress that is triggered when the budget is not
balanced in that same fiscal year. If the deficit continues, the pay cut would be increased
to 10 per cent for every consecutive financial year.
Fifth, States have historically maintained greater financial discipline than the
Centre. Till as late as 1986-87, States had primary revenue surpluses. As recently as 1995-
96, the States revenue deficit was less than 1 per cent of the GDP. Fiscal profligacy is
likely to be further curbed at the State-level since States like Karnataka enacted a Fiscal
Responsibility Act even before the Centre. Punjab also has one, while bills are pending
in Maharashtra and Kerala.
Sixth, eminent economists Ricardo Hausmann and Catriona Purfield rightly said,
Public debts have a lot in common with unwanted pregnancies. They are usually the
undesired and delayed consequences of action undertaken with other intents by more
than one person. An important aspect of policing this significant piece of legislation is
the creation of clear and comprehensive rules under the Act, without which its
operational efficacy is bound to be seriously impeded.
Finally, for early detection and quick action, it would have been better to retain the
original proposal in the Bill (deleted from the current Act) of an expert body under the
Act who would have played the role of a monitor. But it was felt that parliamentary
standing committees and other legislative checks and balances would be sufficient. In
practice, however, such mechanisms are plagued by endemic paucity of time, absence of
technical expertise as also the operation of political considerations likely to outweigh
economic ones. Perhaps the working of the Act will lead to some changes and fine tun-
ing. As was aptly put: In respect of debt, just like cancer, it may not be good in the long
run to be symptom-free: it prevents the patient from taking early action.

THROW OUT THE STEREOTYPE
During the past few weeks, the issue of dubious defence deals, ranging from South
African suppliers to a non-existent alleged clean chit to former Defence Minister
George Fernandes has been raised. Sometime earlier, there were several seminars on the
rapidly deteriorating state of our universities as also of non-governmental peer groups
regulating the professions of law and medicine. I could not but help link these two
seemingly unrelated subjects by thinking of the common necessity to experiment with
new and innovative solutions, away from the beaten track. If real panacea is really
intended (and not merely as lip service to cliches and stereotypes) we have to get in sync
with the real world.
Take defence deals first. The fact that defence purchases involve not merely large
but humongous amounts of money and may involve nepotism at some level or the other
is undeniable. But what is Indias response to this malaise? Given the high media profile
of allegations, many of which frequently prove to be false and the political motivations
animating certain issues like Bofors, we proclaim that all commissions in such deals are
banned and that there shall be no commission agents. This is not very different from
saying that because rape is bad and illegal, we hereby ban rapes. Or, for that matter, that
we ban theft or murder. Our pious declaration that there shall be no agents or
commissions in defence deals does not in fact eliminate a single agent or eradicate
commissions but takes them out of the regulatory pale of law and tucks an undeniable
fact of life under the proverbial carpet.
The result is that no seller of defence equipment ever declares his agent and no one
mentions any commission to such supposedly non-existent agent. Both exist but find no
mention in any document. If we want to live in the real world and not kid ourselves, a
simple yet effective innovation would prescribe an appropriate format for the seller
which would require him to declare and state all details about commission agents
address, amounts payable, nature of work etc.
Governmental agencies would at least be able to investigate and police such
declared entities and ascertain, for example, whether they are fronting for any other
person or otherwise pocketing undeclared sums of money. The true and real controller
of such declared entities would either be self-evident or be able to be found out. Other
persons then cannot be agents since all such entities would stand declared.
I am sure that if any well-meaning politician or administrator was to propose this
panacea as I have done to several persons from different walks of life his bona fides
would be put to suspicion by all those who continue to benefit from the existing
Orwellian unreal system.
Turning to the rapid deterioration of, and low-level politics reflected in, most of our
student unions and professional regulatory bodies like the Medical Council of India and
the Bar Council of India, we have, predictably, had national laments, hair-wrenching
and pious sermons but no concrete step and no tangible improvement in more than two
decades. As a nation, we still like to avoid a few simple issues.
Why is it that there is such deterioration in student politics? The answer is simple:
because the best and brightest students shun student politics. Naturally, since nature
does not tolerate any vacuum, the worst and the least deserving monopolise all posts
with the inevitable consequences of criminalisation, casteism and corruption.
Professional bodies suffer a similar fate: the leaders of the respective professions are
hesitant to sully their hands with such politics and the undeserving frequently take their
place.
Why not make rules which prohibit students securing below a certain percentage of
marks from standing for elective office? Indeed, why not stipulate that only first
divisioners (or similar equivalent criteria like national level sportsperson) may run for
president and only those above a certain percentage for vice-president of the student
union and so on. A legally prescribed link and nexus between ones performance as a
student and eligibility to stand for student elective office cannot be dismissed as
arbitrary or elitist since the elective office sought arises only because of ones status as a
student, and excellence in that status should clearly be the single-most relevant and
dominant eligibility factor. A similar paradigm can, I am sure, be designed for
professional peer regulators.
Not only will this vastly improve the quality of the institutions concerned, but
would also be a clear incentive for those with political ambitions to improve their
educational talents and professional standing to be eligible to partake of the loaves and
fishes of elective office. For far too long we have shunned such paradigms on the
specious and misleading plea of elitism and anti-democratic spirit.
It is time that we proclaim and declare that there is no antithesis or contradiction,
whatsoever, between democracy and excellence or decency and that one can and must
complement and cross-fertilise the other.

THE LOWEST OF THE LOW
Statutory punishments are supposed to reflect societys greater or lesser relative
disgust with the crime involved. Thus murder tops the list and traffic offences occupy
the other end of the penal spectrum. In between comes a subjective hierarchy, usually
listing white collar offences with smaller penalties (except in China). I have generally
agreed with the Macaulian Indian model and consider the Chinese one unfair and
unjust. But Gautam Goswamis case forces a rethink.
A remarkable set of ironies causes particular outrage. First, the nature of the victim
more than the nature of the offence. Those poor, starving, uncomplaining, anonymous
rural Indians, sitting amidst flood, drought and penury, waiting patiently with a
begging bowl for government largesse which never comes but goes into the pockets of
Goswami and Santosh Kumar Jha. Second, a brutal reminder of the basic Indian truth
exemplified by Rajiv Gandhis remark that not more than 15 per cent of aid actually
reaches the true target group. Third, the behemoth of a bureaucracy which would have
created a Mount Everest of paperwork to manage the welfare scheme only to benefit
Goswami and his ilk.
Fourth, the level of policing and internal, inbuilt safeguards such schemes involve,
which enable such crooks to siphon-off money with the sophistication required of a
primary school kid with a low IQ (remember, Goswami simply wrote out cheques of
over Rs. 17 crore to a benami entity controlled by Jha and himself). Fifth, the assured fact
that had any poor peasant, affected by natural calamity, applied for assistance of Rs. 100
under any such scheme, he would have been made to make 100 visits over several
months and fill in a mountain of paperwork before being solemnly told by Goswami
and his colleagues that he was unqualified.
Not unlike banks which will drive an ordinary man asking for a pitiful sum as loan
crazy with paperwork before refusing his request while doling out crores as loans to
corporates with a track record of default, who embroil the lender in endless litigation
without repaying a penny.
When the guardians themselves become rapacious blood suckers and there is direct
impact on the poorest of the poor; the blood boils and national consciousness cries out
for exemplary punishment, irrespective of politics or partisanship and without fear or
favour.
A word about the bureaucracy, which is what the Goswami tale is all about. No
doubt there exist outstanding examples of selfless, sincere service, but unfortunately,
this is a breed almost verging on extinction. Why do the toppers in service exams
nowadays opt first for the revenue services and then the IAS and then the IFS? Why
does the bureaucracy reintroduce the so-called single directive (the rule requiring
special clearance before the CBI/CVC can take action against joint secretary and higher
rank officials) in the newly enacted CVC Act after the Apex Court had specifically struck
it down? Has Article 311 of the Constitution, designed to insulate the bureaucracy from
harassment and ensure its independence and impartiality, become the biggest source of
security of tenure for venal and corrupt bureaucrats, who are never convicted or even
sacked?
Politicians are undoubtedly corrupt in this country and a separate system must be
designed to deal with that problem. But politicians are subject to two elements which
uniquely distinguish them from bureaucrats. One, they have to compulsorily and
periodically subject themselves to the scrutiny of the electorate or at least the party
nominating apparatus.
Second, they are subject to intrusive, often vicious, journalistic scrutiny coupled
with parliamentary discussion both of which frequently focus the searing disinfectant of
sunlight on their activities. Bureaucrats have managed to avoid both. It is time that not
only the Gautam Goswamis of the world but also their equally venal colleagues are
given some shock treatment.

OF SPEAKERS AND GOVERNORS
JULY 13-7-2005, HINDUSTAN TIMES
One finds it difficult to comprehend the hullabaloo generated when the Speaker
revised the guidelines regarding tours by Parliamentary Committees. Reading the
guidelines, one can only say that our lawmakers doth protest too much. The time has
come to accept that our legislators, ministers, government servants and some others are
one of the most lavishly pampered classes of citizenry globally, and guidelines to inject a
certain degree of discipline and sobriety in their public dealings not only reflects good
governance but is also the need of the hour.
On a careful second look, the guidelines appear to be unexceptionable. They
provide that Parliamentary Committees should not undertake on-the-spot study tours
unless absolutely necessary for proper examination of the subject and that permission of
the Speaker should be taken. Study tours were otherwise becoming a euphemism for
indiscriminate travel and, given the large number of such committees, cost the national
exchequer an enormous amount. Sub-committees of Parliamentary committees were
undertaking tours in addition to the main committee; thus generating an endless chain
of travel.
The guidelines next provide for use of Government Guest Houses and, where not
available, of Government owned hotels, failing which a good hotel befitting the status
of a Parliamentary Committee<(in a dignified but not ostentatious manner) may be
provided. All too often, the last residual option is, in practice, exercised as a matter of
first right.
Many study tours were being undertaken after recording of all evidence by the
Committee and not before. The guidelines seek to stop this and to direct tours only for
the absolutely minimum necessary period not exceeding 10 days in the whole year.
Intermediate journeys during Committee tours are prohibited and, while providing AC
coaches or shared cars, individual vehicles for each committee member are not allowed.
Gifts from the organization being studiedknown in practice to range from expensive
pens and suitpieces to jazzy electronic itemsare prohibited. Spouses or accompanying
persons are not allowed on government expense except in exceptional medical cases but
may accompany at the members expense. STD/ISD telephone facilities and laundry are
also to be at ones own expense.
The content of the guidelines reflects the practical reality of the acts and omissions
being practiced during so called study tours. How much of the guidelines is actually
implemented or amenable to policing in the context of an ever so eager to please host
organization is an altogether different issue. Our legislators have to realize that the
State picks up all their reasonable tabs and already showers them with innumerable
perks. In corporate terms, their cost to the nation is far more than the relatively
innocuous salaries and allowances they draw. A study or inspection tour also puts them
in the position of examiners who cannot be showered with goodies from the examinees.
Accountability and transparency to their electors and to the nation at large is more vital
than the transient pleasures of a study tour.
Amidst the allegations and counter allegations regarding the role of Governors
and debates ranging from a reinvention of the role of a Governor to the abolition of this
constitutional post altogethercomes a shining example of quiet humanitarian service
by a Governor conducting his gubernatorial activities in a statesman-like manner and
receiving special attention and recognition from the President of India. At the recent
Governors Conference, President Kalam, reflecting his laudable instinct to stray away
from the beaten track, described the role of Governors as the mission of righteousness.
He exhorted the inhabitants of Raj Bhavan not to remain caged in the confines of your
political or any other ancestry. While putting special emphasis on humanitarian
initiatives by Governors, the President pointedly recognized the pioneering and
exemplary contributions of Governor Sudarshan Aggarwal in Uttaranchal, describing
them as thoughtful welfare oriented initiatives in the health and education sectors.
Governor Aggarwal has not allowed his old Rotarian zeal for humanitarian service
to flag despite the trappings of high office. He has initiated a comprehensive scheme for
bright children who are economically weak and require medical attention. A special
impetus has been given to female education. The Himjyoti Foundation is establishing a
school for girls from disadvantaged families from all over Uttaranchal. He has criss-
crossed his hilly State to inspire and initiate innumerable social welfare activities as
instruments of social transformation.
A short holiday in Prague, Budapest and Austria yield the following general
observations off the beaten track. Firstly, the architectural beauty of the first two is truly
breathtaking. For Indians who have had enough of Italy and Greece, these are strongly
recommended, though I saw very few Indian tourists. Secondly, in contrast to our much
maligned Indian Airlines, European airlines on domestic routes provide even water only
upon payment. Thirdly, Prague in late June, was full of Aishwarya Rai and her charms
in international film festivals, splashed across several newspapers describing her as
Bollywood Beauty. Incidentally, Prague is an extremely vibrant cultural centre and is
fast becoming the heart and soul of film, poetry and musical activities for Europe as a
whole. Fourthly, pickpockets continue to be the bane of tourists everywhere, from rich
prosperous Austria to its less developed neighbour, Hungary. Their techniques are
universal and warnings in this regard ubiquitous. Lastly, good old cheating and Mr
Corruption know no national boundaries. A taxi driver cheated us in the heart of Prague
and the Prague Post was raving about the deputy police chief of Prague (who resigned
just a few days before that) who was asked to return approx USD 160,000 by an ex-
convict and colourful former owner of Pragues leading soccer club with the latter
alleging that he had spent a huge amount for the policemans vacations, plane tickets
and other gifts as also a large loan in cash. The ex-police chief admitted close friendship
but denied the corruption allegations.

NATIONAL POLITICAL SCENARIO

The authors diverse activities straddle the world of law, politics and public affairs.
This section on domestic political issues starts with the Telegraph Debate in Kolkata,
where the audience refused to accept the proposition that everyone is equal under the law,
because, albeit theoretically true, this maxim is a travesty of the Indian reality.
Recognising the LoC as the only long-term solution to the Indo-Pak problem, the author
also comes out in support of the Supreme Court order directing disclosure of certain
details by candidates fighting elections. He exposes the hypocrisy behind the much-
abused phrase Cultural Nationalism designed by the BJP as a clever camouflage to
disguise intolerant Hindutva. While deploring the declining moral fibre of the political
class in India, a column points out the genuine talents of Indian politicians deep
knowledge of past practices and precedents, good drafting skills, a superb common touch
and cross party connections. Another unusual column is written in praise of the
Communist Party of India and its leading lights, pointing out that while the author
vehemently disagrees with many of the policies and programmes of the Communists, he
admires them as a unique exception from the normal Indian political class in terms of
academic excellence, a corruption free political history, transparent simplicity, dedication
to ideals and absence of the disease of political defection, all of which plague most political
parties in India.
Opinion and exit polls are castigated as misleading farces. The Mahashtra election
results in 2004 are analysed and the Goa Speakers antics in 2005 deprecated. The
bureaucracy comes in for trenchant criticism and the author debunks this sacred cow,
explaining why it deserves far greater intrusive scrutiny and policing.
The birthday balance sheet for India is drawn up on August 15, wherein the
Indian achievement in building up institutions (e.g. Election Commission, the Indian
Judiciary and a free press) and institutionalising conventions is lauded. The humongous
success story of the global Indian diaspora and the transition from a controlled- command
economy to a market economy are underlined. To the list of major liabilities (viz. the three
Cs of corruption, criminalisation and communalism) are added the three Ps - pelf,
power and patronage. The author ends on an analysis of the Maharashtra polls of 2004
when the Congress succeeded, seemingly against odds.
ARE LEADERS ABOVE LAW?
Calcutta club, in the heart of the city, is probably the best known watering hole
for its elite. More than 2,500 movers and shakers of that city, its glitterati and its
chatterati gathered there recently to watch the Annual Telegraph Debate. Speaking for
the motion In the opinion of the House, India has no law for leaders, was team leader
Kapil Sibal, former Solicitor General Dipankar Gupta, senior Congress MLA Saugata
Roy and Mr. Sumon Chatterji of the Telegraph, a last-minute replacement for journalist
Karan Thapar, who was indisposed. Leading the speakers against the motion was this
columnist, followed by senior CP(I)M leader and womens rights activist Brinda Karat,
former Additional Solicitor General and now Central Minister, S.B. Jolu Mukherjee
and their repressible actor, director and part-time politician, Victor Banerjee. Former
Chief Justice Ahmadi chaired and moderated the debate.
Despite what I candidly and objectively considered to be a sterling performance by
our team, the blood-thirsty Calcutta audience, baying for the blood of politicians,
upheld the motion at the end of a keenly fought two hour long battle, by a majority of
almost two-thirds.
Against the motion, we agreed that it was a central tenet of both Indian and
western jurisprudence that the sovereign who created positive law was bound equally
by it and that no person or class could claim an exemption from it. We listed the
plethora of anti-corruption laws like the CVC, the CBI (created by the Delhi Special
Police Act) and the Prevention of Corruption Act. I tried to describe the legal system as a
behemoth, no doubt tardy, sluggish and turgid, but a creature with a very long trunk,
who would, once it reached you, hold you in its vice-like grip. Examples of former
Prime Minister Rao, Jayalalitha and even the present Home Minister, facing the agility
and tenacity of this legal behemoth were given. Other examples of non-political
economic leaders, like the Hindujas and Bharat Shah, being subjected to the relentless
march of the law were also cited. Charismatic leaders like Sanjay Dutt, and our
erstwhile icons like Azhar and Jadeja, also came up for discussion in dealings with the
law.
We were at pains to point out that amid the ruins of the Constitutions dotting the
landscape of Asia, Africa and Europe, India remained a rare and shining example of
commitment to rule of law and constitutionalism. After all, how could we be a lawless
country qua our leaders when we have given to the world the basic structure doctrine
whereby even our constitutional amendments could be declared unconstitutional. I also
pointed out that India had the most dynamic and activist judiciary of the world, backed
by Article 14 of the Constitution, and its charter of accountability, non-arbitrariness and
non-discrimination; secondly, by public interest litigation which is omnipresent
whenever largesse is sought to be illegally distributed; thirdly, by one of the largest,
noisiest, most vigorous and freest media in the world and, lastly, by a highly public
spirited set of NGOs.

JAYA: MORE THAN A CASE
One can debate the legality of assumption of office by Jayalalitha as Chief Minister
till the cows come home, but the honest and candid, answer to that query is that no one
can accurately or with reasonable certainty predict the outcome of a judicial proceeding
challenging her eligibility to be Chief Minister. One cannot, objectively, deny the fact
that the current situation was not envisaged by the founding fathers of our Constitution,
nor can one say that the view that a person at present not permitted to file her
nomination paper (and hence in that sense disqualified) should be ineligible to be
sworn in as Chief Minister is a perverse or unthinkable view.
But despite the tenability of two views on the subject, let me attempt to summarise
the reasons why I believe that the better view is that Jayalalitha is entitled to be Chief
Minister and that the Governors decision to invite her and to administer the oath to her
is constitutionally and legally not only valid but the preferable option. First, one must
make a distinction between positive law (law as it stands) and normative law (as we
would, on some notion of ethics or morality like it to be). The law as it stands clearly
mandates disqualification for a non-MLA (or MP) if, and only if, (a) he/she has been
convicted and, cumulatively; (b) sentenced to imprisonment of more than two years. The
language of the law, therefore makes it clear that it is only the simultaneous, dual and
cumulative operation of conviction and sentence which will activate and render
operative the statutory disqualification.
Second, while in one (out of numerous) case, Jayalalitha has admittedly been
convicted and sentenced beyond two years, her sentence was specifically suspended by
the High Court as far back as November 3 last year and therefore, arguably, on a fair
reading of the relevant provision, the disqualification cannot operate since there is no
sentence.
Third, another judge of the Chennai High Court, while dismissing Jayalalithas
petition seeking stay of conviction (on the ground that Prevention of Corruption Act
convictions are not, as a matter of practice, stayed by the Chennai High Court) has
judicially held that once the sentence is stayed, the disqualification will not operate and
has further held that sentence and conviction are inextricably intertwined and, therefore,
stay of one is sufficient to stop the disqualification from operating.
Fourth, it is clear that Jayalalitha has not yet been disqualified by any court or after
any judicial adjudication. Her rejection by a Returning Officer has not yet been judicially
tested because of the established legal principle that judicial interference is excluded
once the election process has been set in motion and such challenges can only be ex-post
facto.
Fifth, there is no express constitutional bar to the holding of office as Minister
(including Chief Minister) without ones being a member of any House indeed Article
164(4) expressly recognises the exact opposite.
Sixth, in the absence of an express bar, a person ought to be given the benefit of
doubt and not deprived of her constitutional, legal, civil or electoral rights of holding
office on the basis of any implied interpretative exercise.
Seventh, there is no denying the fact that an overwhelming majority of electors
want her as Chief Minister. No doubt, any victory margin is irrelevant in the face of an
express bar or disqualification. But where there is a reasonable and strongly arguable
case in her favour, the benefit of doubt in a democracy must necessarily be given to a
person who has the solid support of the electorate because democracy is premised on
one fundamental foundation: that the decision of the majority (howsoever erroneous or
tyrannical) is binding.

STOP J&K FLIP-FLOP
That Jammu and Kashmir evokes diverse but passionate responses from Indians
was evident at a panel discussion hosted on the national channel where I happened to be
one of the panelists. Is it right to talk to Musharraf? Is there inconsistency or excessive
variability in government policy on J&K? Is there at all any such policy? What are the
possible concrete solutions to the J&K issue? Who or which political configuration is at
fault? Is all this being done under US pressure?
After the heat of the debate, I thought, I would put my thoughts on paper in as
short, candid and categorical a manner as possible. Firstly, we have to recognise (even
though we need not presently concede it officially) that J&K is a major area of dispute
between India and Pakistan.
No lasting peace is possible without a solution to the J&K problem. It is not Wuler
dam or PoWs or absence of most favoured nation (MFN) status to India by Pakistan that
is going to solve our problems but Kashmir, which is at the core of our differences.
Secondly, of the various possible alternative solutions, ultimate acceptance of the
LoC as the permanent international border may be the only realistic solution.
Thirdly, there is a significant difference in negotiating with Indian groups,
Kashmiri or others, as opposed to negotiation with another sovereign nation like
Pakistan. The former cannot be talked with except within the rubric of the Indian
Constitution which means that repeated reference to or demands for self
determination by the Hurriyat cannot be permitted and cannot be the basis of any
meaningful dialogue.
Fourthly, while another sovereign nation like Pakistan cannot be bound within the
framework of the Indian Constitution, the basic boundaries of those talks must be
delineated by the Simla and Lahore agreements. Further departures can be made from
these basic documents (especially the first) only after hard and tough negotiations where
the main guiding polestar would necessarily have to be supreme national self-interest
and concessions may be given only after extracting reciprocal commitments.
Fifthly, there should be an open mind to depart from stereotypes and consider
genuine solutions which may appear radical at first sight. For example, an Indian J&K
with a much higher degree of devolution and decentralization may be examined,
including repeal of several laws extended to it under Article 370. Enhancing
substantially the autonomy of J&K within the Indian constitutional fold may well have
to be matched by elimination of, or substantially reduced, Central funding to that State
and coupled, most importantly, by Pakistans written bilateral agreement with India to
create a similarly autonomous region in the present PoK.
Sixthly, despite the undoubted desirability of talks between the two countries, the
present Governmental flip-flop must stop, which includes the jingoism of the nuclear
bomb and Shakti missile, the starry-eyed optimism of the Lahore bus ride (preceded by
no preparatory work or negotiation) followed by the astonishment and anger of Kargil.
While, post-Kargil was a period of sulking and stoppage of all conversation,
suddenly unilaterally, a cease-fire was announced. But after a month of genuine cease-
fire, contradictory signals were sent so that most ground observers believe that no real
cease-fire was in operation after the first few weeks.
Equally sudden have been the present denouncement of cessation of cease-fire
coupled with cessation of sulking and the consequent invitation to Musharraf. Such
volte face of policy do not behove a nation like India and send highly undesirable
signals to our friends and foes alike.

THE RULE 184 TRAP FOR GOVERNMENT
The Speakers ruling followed by the decision of the Rajya Sabha Chairman,
admitting motions under Rule 184 and Rule 170, respectively, may have ended the
Parliamentary impasse but raises the question whether the Government was justified in
refusing the Oppositions demand for invocation of these Rules in the first place.
First, admissibility of a motion is no reflection on the merits or content of issues
raised by it. The only question is whether the text permits its invocation. A bare perusal
of Rule 184 (and Rule 170 is almost identical) underlines the width and plenary nature of
the discussion envisaged under it. It permits discussion on any matter of general public
interest.
Second, to even suggest that the continuing violence in Gujarat (including Godhra
and post Godhra) with its serious implications not only on law and order but on the
very existence of the Social Contract and upon fundamentals like secularism (which are
part of the basic structure of the Indian Constitution) does not qualify as a matter of
general public interest would constitute a travesty of the English language reminiscent
of Alice in Wonderland where words mean what I say they mean.
Third, Rule 184 is followed by a detailed and exclusionary Rule 186 which requires
cumulative satisfaction of as many as eighteen conditions before a motion may be
admitted under Rule 184. Not one of the conditions would exclude an Opposition
motion on Gujarat since the motion raises substantially one issue; it does not refer to
the conduct or character of persons except in their public capacity; it relates to a
matter of recent occurrence; does not involve a privilege issue; it does not relate to
a trivial matter and so on and so forth. Ex facie, none of these exclusionary caveats can
be said to be a threshold bar to the admissibility of the motion.
Fourth, it would require Orwellian doublespeak and Kaffkaesque hypocrisy to
suggest that continuing decimation of hundreds of persons, a death toll exceeding the
Kargil war toll, up-rooting of more than 10,000 persons and a complete breakdown of
the protective State machinery can be brushed aside as an internal law and order
concern of a State and not of Parliament.
The issue in Gujarat is not of an isolated murder, rape or crime and, hence, not a
mere law and order problem. Differences of degree do make for differences of kind.
Carried to its logical conclusion, such a perverse interpretation would mean that virtual
civil war or insurrection or complete breakdown of law and order and security in any
part of India would have to be met with stoic silence by Parliament simply because most
parts of India fall within one State or the other!
Fifth, the argument of lack of Central Government competence ignores not only
Article 356 of the Indian Constitution, which is symbolic of Constitutional concern for
Central intervention in State affairs (and must override mere Rules of Procedure like 184
framed under Article 193 of the Indian Constitution) but also completely overlooks the
letter and spirit of Article 355. It is clear that the mandate of Article 355 is in two parts.
First, it shall be the duty of the Union to protect every State from external
aggression and armed rebellion. Secondly, it shall also be the duty of the Centre to
ensure that the Government of every State is carried on in accordance with the
provisions of the Constitution.
In the Constituent Assembly Debates, Ambedkar described the rationale for Article
355 thus: Therefore, in order to make it quite clear that Articles 278 and 278A (present
day Article 356) are not to be deemed as wanton invasion by the Centre upon the
authority of the Province, we propose to introduce Article 277A (present Article 355).
Article 277A says that it shall be the duty of the Union to protect every unit, and also
maintain the Constitution. Similar clauses appear in the American Constitution. They
also occur in the Australian Constitution. All that we propose to do is to add one more
clause to the principle enunciated in the American and Australian Constitutions,
namely, that it shall also be the duty of the Union to maintain the Constitution in the
Provinces as enacted by this law. There is nothing new in this and, as I said, in view of
the fact that we are endowing the Provinces with plenary powers and making them
sovereign within their own sphere, it is necessary to provide that if any invasion of the
provincial field is done by the Centre it is by virtue of this obligation. It will be an act
towards the fulfilment of the duty and the obligation and it cannot be treated, so far as
the Constitution is concerned, as a wanton, arbitrary and unauthorised act. That is the
reason why we have introduced Article 277A.
Article 355 also drives its lineage from Article 4(4) of the US Constitution according
to which the Federal Government shall guarantee to every State of the Union a
republican form of Government. Similar provisions exist in the Australian and Canadian
Constitutions. However, whereas federal intervention in those countries is conditional
and dependent upon State requests to the Federal Government for intervention, the
power is not so conditioned in India. Indeed, it is cast as an affirmative obligation upon
the Central Government. Even in the USA, however, the Federal Government has
intervened unasked for on several occasions.
Sixthly, in any event, a discussion under Rule 184 involves no legislation but only a
resolution with voting. Issues of legislative competence of Parliament are not therefore
apposite in discussions on Rule 184.
Last, even politically, since the Government knows and always knew that it cannot
possibly fall on a 184 motion, it has no one to blame but itself if it has mulishly and
obstinately wasted a whole Parliamentary week on an issue on which there is strong
legal and political justification to demand a 184 discussion.

PLAYING POLITICS WITH LAW
The last few weeks have revived a ferocious debate about the role of unelected
judges to lay down policy perspectives best left to the legislature. An interesting
coincidence has led to a parallel peaking of this debate in countries as diverse as India
and the USA. The unprecedented unanimity of political parties in India to legislate on
the subject of disclosure by electoral candidates can hardly be faulted despite media
hype characterising the move as retrogressive or anti-people.
Firstly, the Indian Supreme Court has repeatedly emphasised in the judgement that
it has jurisdiction to pass orders directing the Election Commission to issue
guidelines/circulars on disclosures only in the absence of parliamentary law. Indeed, the
very text of constitutional provisions unambiguously mandate that the jurisdiction of
the Election Commission on such matters is subject to Parliamentary statutes. Thus,
while the Supreme Court and the Election Commission have jurisdiction to act
interstitially in an unoccupied field, there can hardly be any objection if political parties
seek to occupy such field with appropriate legislation which the Supreme Court itself, in
terms, recognises and anticipates.
Secondly, it is legislation and legislation alone which can have the requisite
certainty, specificity and clarity to ensure fair, impartial and objective implementation
without the grave potential of abuse by the Returning Officer. Take criminalisation of
politics. The Supreme Court Order uses a general phrase clearly suffering from over
breadth and imprecision when it says that criminal cases in which cognisance has been
taken or charges framed be disclosed. Taking of cognisance is vastly different from and
occurs at a much anterior stage than framing of charges. The proposed legislation, after
deep debate by all groups cutting across the political spectrum, is fully entitled to lay
down a clear cut and categorical test (for example) that only cases involving punishment
of (say) over two or three years in which charges have been framed by an appropriate
court should be disclosed. This is a clear objective test capable of impartial and non-
discretionary implementation.
Thirdly, the fundamental fallacy of the media campaign is to assume that any
potential legislation on the subject will necessarily reject or nullify the scope and content
of the issues covered by the Apex Court. There is absolutely no basis for this alarmist
assumption. The Court order has acted as a catalyst for change and the parties have
decided to pass legislation adopting the framing of charges by Court test. Indeed, the
proposed legislation may go far beyond the Court judgement by disqualifying those
candidates against whom charges have been framed while the judgement merely
required disclosure of information.
Fourthly, there is nothing pernicious about the legislature accepting some issues
(as, for example, the framing of charges test discussed above) while rejecting others
(educational qualifications) or adopting a modified model qua still other issues (like
disclosure of assets). The Constituent Assembly debated the issue of educational
qualifications for years and emphatically rejected it as a basis of qualification for
electoral office. The issue is not whether the decision is right or wrong but instead
whether one can deny the grand inquest of the people (viz. Parliament) to decide
whether this should be so or not. Such larger issuesfor example, the possible
disenfranchisement of more than 30 per cent of the population in a poor illiterate
country like India by requiring an educational qualification can only be decided after a
much larger debate amongst those entitled to pass legislation. Moreover, disclosure of
educational qualifications may be an issue more of form than substance since
requirement of any such disclosure will not solve any of our electoral ills but merely
lead to the procurement of BA degrees, already available a dime a dozen, without
necessarily doing anything in terms of upliftment or improvement of the dubious degree
holder. One may only be legitimising the Pappu Yadavs and Bandit Queens of this
world by getting them to hold formal pieces of paper called the BA degrees.
Fifthly, modified disclosure of financial assets by successful candidates (not those
standing for election) to presiding officers (not Returning Officers) is clearly a more
desirable model and the legislature is fully entitled to discuss and implement the same.
Coincidentally, the debate regarding power of courts arose in the USA during this same
period with the US Supreme Court reversing the Ninth Circuit Court of Appeals ruling
which had held that the oath (Pledge of Allegiance recited at several schools and
meetings) of One nation under God is unconstitutional being violative of the
constitutional embargo against State support to religion. Shortly thereafter, by a 5-4
ruling, the US Apex Court ruled that Minnesota laws, similar to those of 9 other States,
which prohibited those running for election as judges from announcing his or her
views on disputed legal or political issues, was unconstitutional as being violative of
the constitutional guarantee of free speech. One of the majority judges held that such
open minded judges without views on important issues would be empty headed.
The Circuit Court ruling on religion (later reversed) and the Apex Court ruling on
elected judges has led distinguished writers in the USA to characterise that country as
one nation under judges. Indeed, some of them went so far as saying that what is
wrong with the USA is the too central a role of judges in governance.

A BIRTHDAY BALANCE SHEET
August 15, when independent India was born 55 years ago is the best day for
introspection and analysis of the Indian balance-sheet. On the assets side, clearly our
vibrant democracy is the most outstanding achievement. Amid the wrecks and ruins of
Constitutionalism, which litter the global landscape, especially the South Asian, African
and South American continents, India shines forth as a model of genuine freedom,
democracy and rule of law.
We may take it for granted, but orderly changes of government every few years
without the slightest hint of military intervention is no mean achievement. Not only is
our immediately western neighbour a telling contrast governed as it is by the three As
of Army, Allah and America but several East Asian democracies, including the so-
called Asian tigers, are nothing but de facto totalitarian regimes where dissent and
discourse are conspicuously absent.
This first achievement would not be possible without the second the building up
of institutions and the institutionalisation of certain conventions. We have a totally
professional apolitical army, an independent Election Commission secretly envied by
several lesser democracies, a fiercely independent judiciary especially in its higher
echelons, a multitude of ruling and opposition political parties whose very number with
its attendant cacophony and chaos is the best insurance against dictatorship, a vast
experienced civil service which provides continuity in governance and a culture of
debate, dissent, discourse and constitutionalism.
The third and extremely significant achievement is a free press, something which
one does take for granted. Whenever I travel abroad, I am struck by the banality and
insipid nature of news and newspapers in several (especially Asian) countries. I have
always been able to accurately measure the true spirit of freedom in a country by a quick
glance at its newspapers. In many nations the only content is either a faithful
reproduction of the speeches of those in power or reporting of economic data and
economic decisions or commercial advertisements.
Even highly prosperous countries display all the characteristics of that famous
oxymoron: a responsible press, which more often than not means a controlled or
supine press.
The fourth glittering feather in our cap and one which is usually ignored or at
least under noticed is the huge global success story of the 20 million strong Indian
diaspora. From Fiji to UK, from Mauritius to the USA, from Surinam to Australia and
from South Africa to Portugal, outstandingly successful Indian faces are like an elixir, an
irrefutable testimony to true Indian potential, a talisman to excellence. There is no sector
which they have not mastered from grocery stores to high tech information
technology, from prime ministership to community leadership. And, there is no
adversity they have not successfully overcome from Ugandan expellees to
discriminated Fijians. Yet their economic success, social standing, academic
achievements, hard work, family and cultural values and continuing bonding with their
country of origin remains an incomparable saga.
Lastly, the mantra of economic liberalisation, the transition from a controlled or
command economy to a market economy, however, slow, imperfect or uncoordinated,
continues to be a revaluation in the making, no less significant merely because it is a
more contemporary phenomenon of the last decade and a half. It is only a faster pace
and consistent direction of such economic reforms which will unleash the true Indian
economic potential.
No balance sheet is complete without the liabilities. Probably, the three Cs as
with Pakistans three As continue to be Indias major achilles heel: corruption,
criminalisation and communalism, in that order. Nothing short of drastic surgery can
reduce these and their underlying causes, which include the three Ps pelf, power and
patronage. Together the Cs and Ps have clobbered and pummelled independent India
for over five and a half decades and will do it for ten more unless wholistic,
multipronged and sustained war is conducted on them through legislation, policing,
education and punishment. A fourth highly under-emphasised failure of the Indian
nation is our demographic crisis of too many birthdays in the literal sense and a scourge
which will never allow us to take our rightlful place amongst the community of nations.
The time for committees and reports on this subject is over long ago, there has to be
concrete action including a comprehensive plan involving a media blitzkrieg to
popularise, demystify and bring into full public domain all forms of contraception. A
massive education campaign will have to be coupled with a carrot-and-stick policy mix
of incentives and disqualifications based on family size. Solutions are known, but they
need to be consistently and strictly enforced on a sustained basis.
At the end of the day, it is Indias unique genius which will ensure that each
August 15 birthday inaugurates a far better India for Indians.

HOW PLURAL IS THE WORD HINDU?
Facts have an inconvenient, harsh and bitter flavour about them, but that is the
nature of truth, and no amount of subjective interpretation can change their core. Let us
see some facts in the light of this contemporary debate involving Hindutva, Moditva,
Gujarat elections, cultural nationalism et al.
No one denies indeed no one can the Catholic pluralism, diversity and all
inclusive nature of Hinduism. Indeed, the word Hindu or Hinduism was not even
applied to religion in the sense it is used today.
Over time, the word Hindu has become a compendious term to describe a large
number of people who geographically lived in the land of the Indus, and who
followed/subscribed to the continuity represented by the Vedas, the Dharamsastras, the
treatise of ancient authors, Buddhists, Jains, Sanatan Dharamis, Arya Samajis, Shaivites,
Vasihnavites and so on. The word Hindu has acquired an all- inclusive religious
connotation.
No one can deny the fact that people who inhabit the sub-continent, even after
converting to Islam or Christianity, continue to share the culture affinity, geographical
identity, a caste bond, linguistic identity and traits of a common regional origin. Even
those who came to India as invaders or visitors, acquired many traits of this common
identity.
If this historical evolution is described as cultural nationalism, there can be no
quarrel or dispute about it. But to say that every Christian, Jew, Parsi or Muslim in India
should treat himself as a Hindu in the name of cultural nationalism is utter nonsense. It
will not only distort but also subvert both history and religion.
For everyone to be a proud Indian is one thing, but for every one to subscribe to a
Hindu Rashtra is nothing but fascism. India is what it is because it has imbibed,
preached and successfully practised the virtues of pluralism call it humanistic
pluralism or pluralistic humanism.
India is not Pakistan. We are secular in recognising and permitting every
individuals right irrespective of the religion he practices. Pakistan is a theocratic State
where people are discriminated on the basis of their religion. This was the essence of
Jinnahs two-nation theory which formed the basis of Indias partition.
Now compare this brand of cultural nationalism propagated by some of the most
prominent NGOs the RSS, VHP, Bajrang Dal as also by senior politicians. This is
not different from fascism or Jinnahs two-nation theory. The RSS was founded by Dr.
Hedgewar and Guru Golwalkar was its presiding deity.
In 1938, Guru Golwalkar published his book. We or Our Nationhood Defined. It is
understandable that it was subsequently withdrawn from circulation since it contained
numerous laudatory references to Hitler and Hitlers Germany.
Here is one sample: German race pride has now become the topic of the day. To
keep up the purity of the race and its culture, Germany shocked the world by purging
the country of the semitic races the Jews. Germany has shown how well-nigh
impossible it is for races and cultures, having differences going to the root, to be
assimilated into one united whole. A good lesson for us in Hindustan (i.e., the land of
Hindus) to learn and profit by.
Veer Savarkar, whose memory was commemorated by the Deputy Prime Minister
in the Andamans recently, and whose statue is now proposed to be installed in
Parliament, proclaimed: If we Hindus grow stronger in time, Moslem friends will have
to play part of German Jews.
Nathuram Godse, the convicted assassin of Mahatama Gandhi, was deeply
impressed and influenced by Veer Savarkars writings. His brother, Gopal Godses
writings and material on Nathuram Godse are revealing.
Nathurams father was transferred to Ratnagiri in 1929-30. Veer Savarkar lived in
Ratnagiri at that time. There was a close interaction between them.
After RSS branch was opened at Sangli, Nathuram assiduously participated in its
activities. Most significantly, he headed their academic department as Baudhik
Karyawaha.
Nathuram Godse allegedly left RSS and joined the Hindu Mahasabha just before
Mahatama Gandhis assassination.
Lastly, the present Chief Minister of Gujarat and senior sanghchalak of RSS, who
likes to be described as Chhote Sardar and would like to appropriate the mantle of that
true nationalist, Sardar Vallabhbhai Patel, should be reminded that when his mentor
was faced on September 5, 1947, with the spectra of communal rioting in Delhi, it was
like the Punjab holocaust. Patel declared in the presence of Nehru and Mountbatten, I
will not tolerate Delhi becoming another Lahore. Patel publicly threatened partisan
Government officials with punishment, and issued shoot-at-sight orders against rioters
on September 7, 1947. Many rioters were shot. And lastly, the RSS was banned in early
February 1948 by Patel, who, despite some differences with Nehru on terming it fascist,
believed it to be misguided and indulging in dangerous activities.

GOING PLACES?
India is a bundle of contradictions. On the one hand, you have all the hype and
rhetoric about India as an ultimate investment destination, as a new millennium giant,
leaping like a tiger, a country unshackling its energies. On the other, we have the
Central Government refusing permission to Chief Ministers to travel abroad.
Juxtaposing the two, one does not know whether to laugh or to cry it would truly be
comic, if it were not tragic.
In quick succession, Digvijay Singh and Ashok Gehlot were refused permission to
travel abroad (the second case is now under review). Meanwhile, Mayawati is granted
permission to examine the joys of Disneyland and the beauty of Switzerland (no doubt
to provide valuable inputs for a heritage corridor behind the Taj). Numerous Central
Ministers travel all over the world. The Deputy Prime Minister leads a huge entourage
and each official is accompanied by his respective spouse. Shinde of Maharashtra was
lucky enough to get permission, presumably after high level political intervention.
The matter is serious because Gehlot leads a State whose Marwari enterprise is a
byword in industry. He seeks to participate in a conclave of leading Rajasthanis of North
America (RANA) which, in a sense, is synergical to the Central Government initiative to
activate NRIs globally. If a Chief Minister has to fight to attend such investment
lucrative events, is it any wonder that India lacks behind China in economic
development?
Secondly, when the Central Government plays favourites with Chief Ministers, it
undermines the fundamentals of Indian federalism which is premised on non-
discriminatory governance. Does anyone really believe that an application for foreign
travel by Chandrababu Naidu would have been dealt with identically?
Thirdly, stories abound about how bureaucrats have used such powers as an
instrument of tyranny, for exercising pelf and maldistributing privilege. Numerous
sitting judges have told me how, in respect of prestigious legal conferences abroad, they
have received not only invitations fully paid for by the host but where India has been
given pride of place in the scheme of things. With no financial implications, ministries
have nevertheless raised silly and irrelevant queries, not once but repeatedly and upto
12 hours before departure time.
In a shocking example relating to a senior sitting High Court judge, different (and
wholly irrelevant) queries kept coming in instalments even after the Law Minister and
the Finance Minister had cleared the proposal; finally the judge was orally told to
proceed abroad and the written permission was (fortunately) received ex post facto! The
basic point is that without such powers and such privileges, there would be no way for
the bureaucrat concerned to underline his importance.
Lastly, one must, never forget that where the bureaucrats personal welfare is
concerned, there are no limits to the scope or speed of decisions taken.
One bizarre example from the field of travel alone will suffice. About five years
ago, it was discovered that in addition to the plethora of free travel passes available to
railway employees (like duty pass, privilege pass, school pass, widow pass, post-
retirement complimentary pass and so on) the Railway Ministry had decided that its
senior-most level (i.e., members of the Railway Board) were not sufficiently pampered.
So they introduced the platinum pass. It was issued to all serving and retired members of
the Railway Board and entitled them to free lifetime travel in AC first class. It was then
extended to wife/spouse, thereafter to all dependents and further companions. Mind
you, this is for lifetime travel.
For good measure, it was clarified that a member of the Railway Board is entitled
to coupe accommodation even when travelling alone and... is permitted to carry a dog in
case a ACI Class coupe is allotted to him exclusively. The fact that it took no time for
the Delhi High Court to quash the platinum pass scheme is not relevant. The fact that it
was created in the first place and was under active operation is more relevant.
Interestingly, the scheme was invented by the same members of the same Railway
Board who benefitted from it. A fine example, indeed, of governance by the Board, of
the Board and for the Board!

TALENTED MR. POLITICIAN
It is easy to cavil at and criticize politicians. It is likely that, more often than not, the
criticism is richly deserved! Many of them ably live up to their reputation of being
corrupt, venal, rude, uncouth, grouchy, insincere and unreliable, if not downright
dangerous. But sometimes, when you take a closer second look at a disreputable
politician to whom many of these adjectives are applied and wonder how and why he or
she is still around or so hugely successful, you realise that there is another side to his or
her personality which is rich in some talent or the other and which is the real clue to his
or her survival and success. The stereotypes and clichs about the politician do not
really do justice to this positive facet.
Some politicians have an enormous knowledge of past practices and precedents
relating to the party, which is invoked at crucial moments either to resolve a genuine
dispute or to provide the party with a jurisdiction principle or plausible basis for taking
action. This comes from a rich and diverse experience coupled with long memories and
a genuine interest in historical events set in an evolutionary perspective.
A second class has good drafting skills though not many of that species exist
which are vital for crucial resolutions, decisions, speeches and formulations. A rare
number is bilingual but good draftsmen even in Hindi or English alone are also much
sought
after.
A third category has cross-party connections, old friendships and associations with
leaders of rival parties, a camaraderie and brotherhood which transcends all other issues
and becomes indispensable whenever express, are to be sealed, coalitions firmed,
arrangements crafted and major disputes settled.
A fourth category has a superb common touch, a solid electoral base even if within
a regional, caste, State or community mould. Some others have the gift of the gab,
suggesting possible formulations for implausible conclusions while still others are there
on grounds of sheer longevity and length of service in the party.
Alas! if only each politician had 50 per cent of these qualities and characteristics
collectively (instead of having only one individually) we would be able to suffer them
more easily despite their insignia of disrepute.

BY GEORGE, THIS ISNT TREASON!
The Defence Minister doth protest too much. He threatens filing treason or sedition
charges against the leader of the opposition and claims to have consulted the leading
legal lights in the country over this. Are his claims legally tenable? Akin to waging war,
treason/sedition occurs when one brings in hatred or contempt, or excites disaffection
towards the government established by law. Punishment up to life underlines the
seriousness of the charge. Disapprobation of the Government to obtain alteration of
policies by lawful means is not sedition. The Supreme Court requires a pernicious
tendency or intention to create public disorder or disturbance of law as a condition.
Criticism of ministers howsoever severe clearly does not satisfy this test.
Second, the issue is not defamation but treason/sedition. The opposition relied on
adverse observations of the CAG whose report listed bungling in defence purchases
including casket purchases. To say that a political opponent is wrong or defamatory is
one thing; to allege treason/sedition is quite another.
Third, such threats to political opponents, alleging some remote nexus of some kind
with national security has been the hallmark of dictatorships and military governments.
India prides itself as a shining example of vibrant constitutionalism amidst the wrecks
and ruins of nascent but abandoned Constitutions littering the landscape.
Fourth, the implicit equation of the Defence Minister or the Ministry with the
nation itself or with its armed forces is reminiscent of Louis XIV (I am the State and
After me, the deluge) and has no place in a free society with a pulsating fundamental
right to free speech.
Fifth, jurisprudence relating to free speech and sedition shows how such threats
seek to take us back to the middle ages. An overview demonstrates (a) the huge primacy
given to freedom of speech and expression (b) the diverse proposals to scrap the offence
of sedition and, frequently, its deletion (c) its virtually defunct nature (d) that sedition is
treated as one of the vaguest offences and (e) that it is usually a tool to curb political
dissent and disagreement
International human rights bodies the African Commission, the Inter-American
Court or the European Court and domestic courts have repeatedly emphasised that
freedom of expression is...vital to an individuals political consciousness and
participation in the conduct of public affairs and that journalistic freedom also covers
possible recourse to a degree of exaggeration, or even provocation.
The history of sedition is a litany of cruel repression of political dissent by the
intolerant and intransigent regimes. In most mature democracies, such offences have
either been rescinded or are defunct. For example, while it remains a crime in Australia,
the provisions have fallen into disuse and a parliamentary amendment has limited
sedition to statements or actions carried out with the intention of causing violence or
creating public disorder or public disturbance.
These have never been used. It is proposed that the offence be further limited to
incitement to violently overthrow the Government or Constitution.
Despite its existence in the Criminal Code of Canada, sedition has not been used
since 1951 when the Apex Court decided the Boucher case involving a Jehovahs witness,
who distributed leaflets titled Quebecs burning late for god and Christ and Freedom is
the shame of all Canada. Justice Kerwin held: An intention to bring the administration
of justice into hatred and contempt or exert disaffection against it is not sedition unless
there is also the intention to incite people to violence against it.
The Indian Apex Court has adopted the poignant words of Madison: When
tending the tree of liberty, it is better to leave a few of its noxious branches to their
luxuriant growth, than, by pruning them away, to injure the vigour of those yielding
proper fruits.
In 1991, the Irish recommended the abolition of seditious libel, noting, As an
offence it has an unsavory history of suppression of government criticism and has been
used as a political muzzle. A new Crimes Act in New Zealand has dropped provisions
for sedition. Even before the fall of the apartheid regime, the South African courts
severely curtailed use of sedition, requiring a direct call for violence or disorder and
saying: We must interpret the language complained of by the light of modern thought
and freedom of speech and not by the light of the restricted ideas of the middle ages.
Sedition remains an offence in Britain despite a Law Commission proposal for its
deletion but it has not been used for more than 50 years. A Magistrates refusal to issue
summon against Salman Rushdie for seditious libel was upheld by the Court of Appeal.
In the US, Jefferson and Madison condemned sedition as an aberration of the principle
of free government. Jefferson pardoned those convicted of sedition and, later Congress
repaid all fines ever levied against those convicted of sedition. In the New York Times v.
Sullivan, the US Apex Court said: No court of last resort in this country has ever held,
or even suggested, that prosecutions for libel on government have any place in the
American system of jurisprudence. The Nigerian High Court struck down sedition
emphasising the need to preserve inviolate constitutional rights of free speech and
maintain free political discussion.
The Inter-American Commission evocatively declared: ...the rationale behind
desacato law (criminalising critical speech) reverses the principle that a properly
functioning democracy is indeed the greatest guarantee of public order. These laws
pretend to preserve public order precisely by restricting a fundamental human right
which is recognised internationally as a cornerstone upon which democratic society
rests... invoking the concept of public order to justify desacato laws directly inverts
the logic underlying the guarantee of freedom of expression and thought....
The singular exception to this global ethic is Malaysia where sedition provisions
have been blatantly abused leading to worldwide condemnation. Kirpal Singh, counsel
for Anwar Ibrahim, was arrested for arguments made in court during Anwars sodomy
trial, the then Opposition Parliamentarian Lim Eng was jailed for sedition for accusing
the Attorney General of mishandling allegations of rape against a Chief Minister;
disqualified from Parliament, prohibited from holding political office and barred from
pursuing his profession as an accountant. The then Deputy PM of Malaysia threatened
to use sedition against any individual who opposed the governments move to compel
schools to teach Science and Mathematics in English. It is for you to judge whether you
want India to be exceptional in this regard like Malaysia.

SCANNER ON THE NEHRU CLAN
It was awkward for me to tell a good friend like Suhel Seth that I found his article
on The Gandhi Curse distasteful. But I know that Suhel, like me, genuinely believes in
Voltaires dictum that one may disagree violently with anothers view but will defend
the latters right to air it.
The fundamental flaw in Suhels article is his attempt to encapsulate events of more
than 50 tumultuous years into the space of a few hundred words. This can only result in
sweeping and totally inaccurate generalisations and over-simplistic conclusions. No
one can claim infallibility for the subjects of Suhels articles, but it is the one-sidedness of
his views which is objectionable.
Secondly, Suhel picks with a pre-determined eye and a pre-disposed mind on
Gandhis choice of Nehru over Patel as a vice competing with, and outweighing the
virtue of Gandhi gaining Independence for India. This represents the narrowest and the
most unidimensional view of Gandhi, his life and achievements.
Thirdly, Suhel dismisses the entire Nehruvian era in one
sentence, as responsible for the Kashmir imbroglio. Nehrus status as a world statesman,
his remarkable achievement of imbuing this nascent nation with the ethos of democracy,
the economic self-reliance achieved by India, the world stature of India as a non-aligned
nation are all too insignificant for Suhel even to mention it.
Fourthly, Indira Gandhi falls for vicious abuse by Suhel who calls her a curse for
the nation, destroyer of institutions and responsible for all of Indias ills.
Apart from the vicious, abusive and defamatory nature of the language used
hardly appropriate even for a critical analysis of a dead Prime Minister but certainly in-
dicative of the authors mindset on the issue Suhel forgets that Indira remained, both
before and after the Emergency, one of the most popular icons on the Indian political fir-
mament. It is totally irrelevant for him that in a democracy, the people re-elected time
and again such an evil leader.
Equally relevant is her commitment to the nation and to national security, leading
the present Prime Minister to publicly hail her Goddess Durga incarnate. What succes-
sive regimes of rag-tag opposition parties could not achieve by ousting Indira from the
hearts and minds of Indians during her lifetime, Suhel wants to do with a flourish of his
pen and the use of purple, but purely subjective, adjectives.
The few prefatory words of praise for Rajiv are predictably submerged under a
deluge of criticism of both Rajiv and Sonia Gandhi. Bofors languishes as a non-issue to
this day, used maliciously by cheap opponents to attack Rajivs seemingly impregnable
image and massive support. Sonia Gandhis single-handed revival of the Congress party
and her impeccable democratic credentials are understandably not discussed. Suhel is
right only in one respect, i.e., in noting the tragic deaths of so many members of the
Nehru-Gandhi family.
What bewilders me is his ostrich-in-the-sand attitude to the fact that these precious
lives were laid down in the service of the nation. Unfortunately my good friends
innuendos for the future reflect poorly both on his style of writing and on the dignity of
discourse in a democracy.

BJP, YOUR SLIP IS SHOWING
Try as it might, the BJP is unable to mask its true face. The BJP has said that Indo-
Pak relations should be improved for domestic harmony between communities. L.K.
Advani added that the root cause of tension between Hindus and Muslims was the
creation of Pakistan. He further said that the BJP alone can find a solution to problems
with Pakistan because Hindus will never think that whatever we have done can be a
sell-off. Finally, K.S. Sudarshan declared with a flourish that India has no minorities.
The sheer effrontery of these statements clearly establishes the following: first, that
Advani and his party see everyone in religious terms. Their first concern is whether one
is a Hindu, Muslim or Christian and not whether one is an Indian. So much for their
avowed nationalism. Second, it negates the very essence of Indias existence: its unity in
diversity, its pluralism and humanism. The basic structure of Indian secularism, as held
by the Supreme Court, is humanistic pluralism. If one talks of policy perspectives vis-a-
vis impact on religious communities, one fails to see India as an indivisible whole.
Third, it validates Pakistans two-nation theory, as Advani too views India and
Pakistan as different communities, different religions and hence different nations.
Fourth, one wonders which sell-off to Pakistan Advani has in mind especially since
Musharraf clarified his disagreement with the Indian position in the India Today
conclave. Is Advani preparing us in advance for an imminent betrayal by suggesting
that Hindus would support a BJP brokered sell-off to Pakistan?
Fifth, Sudarshan needs to re-learn his Constitution that recognises religious,
linguistic and cultural minorities. He propounds a novel lesson in law, politics and
sociology when he denies the existence of Sikhs, Buddhists, Jains, Christians and
Muslims as minorities. This is an indication of what the BJP-RSS would like to do to the
Constitution in the years to come.

THE OTHER POLLS
The chaos and cacophony of elections is the surest sign of a vibrant democracy.
What role do opinion and exit polls play in this democratic process? A non-partisan
debate on this must underscore the qualitative difference between opinion-polls and
exit-polls and the differing impact each has on the democratic process. Opinion-polls are
sample surveys, reporting statistical results of potential future behaviour by voters who
answer certain questions. An opinion-poll is always conducted before a voter has
exercised his franchise, usually several days or weeks prior to voting. It usually asks
more than one question. An exit-poll is conducted upon a voter who has already voted.
It involves no question and seeks to report how a voter has voted.
Keeping this difference in mind, there are several reasons for banning exit-polls and
an arguable, though weaker, case for banning opinion-polls. Democracy is the bedrock
of our nation and of the Constitution. A republican secular democratic nation has been
held by the apex court to be part of the basic structure of the Constitution. Free and fair
elections have also been held judicially to be part of this basic structure. This means free
and fair polls are an unamendable and inalienable feature of our Constitution.
In turn, free and fair elections necessitate a level playing field where the contestants
and voters are not subjected to unfair external influences which vitiate the process of
elections. The Representation of People Act (ROPA) and the Model Code of Conduct
along with several other rules are all designed to ensure this essential fairness in the
electoral process.
In a multi-phased electoral contest and the exit-poll ban argument is relevant with
respect to multi-phased polls only the exit-poll results of a prior poll have a direct
impact on the next poll. For example, the present polls are scheduled for April 20, 26,
May 5 and 10. An exit-poll publication for April 20 suggesting heavy voting for Party A
is bound to create an overall ambiance of victory in favour of that party. Such pre-
declaration of exit-poll results often leads to a self-fulfilling prophecy. Party A may have
strong support in the April 20 polls but may normally be a miserable loser in all the next
three phases. However, an ambiance in its favour qua the April 20 polls may generate a
herd instinct or a bandwagon effect amid voters to follow the likely winner of the
first phase.
This may itself not be pernicious if the April 20 exit-poll results reflected the
complete reality. But exit-poll results are based on fractional samples, generalising from
miniaturised reality. Since they do not even claim to represent the whole truth, their
impact on future polls is bound to distort the electoral process. Vitiation of democracy
and violation of the basic structure is a likely consequence.
Opinion-polls are worse because they generalise not from actual behaviour but
from presumed and predicted behaviour. The fractional size of the sample (e.g. 40,000 in
an Indian electorate of 60 crores) underlines its inherent inadequacy. Many surveys
thrive on much smaller sample sizes! Second, the sample cant be truly representative,
especially in a humungous and heterogeneous society like India. Third, opinion-polls
are conducted well before the polls and their remoteness in time affects their predictive
utility. Several recent polls have quoted widely divergent figures and this reflects their
untenability. Nevertheless, they inexorably influence the voter and create an uneven
playing field.
The strongest argument in favour of polls is the freedom of speech argument
under Article 19(1)(a) of the Constitution. It is argued that the voter is astute enough to
discount such generalisations and that the 19(1)(a) right can only be restricted by law
made by Parliament relating only to subjects itemised in Article 19(2). The best answer is
provided by Part XV of the Constitution and especially Article 324.
It vests all powers of superintendence, control, direction and conduct of all
elections in an independent constitutional authority viz. the Election Commission. In the
Gujarat case, a five-judge bench of the Apex Court read these words very widely and
directed them to be given the widest possible amplitude. It was held that the ECs
discretion would be subject to specific parliamentary legislation on the subject. Since
none presently exists, the EC is free to exercise a very broad swathe of discretion if it
were to conclude that such polls affect the purity of the electoral process. The EC,
arguably, could be held to be acting not in the realm of free speech at all but in the
dialectics of conducting an election.
The Gujarat judgement builds upon and reiterates the established legal position
laid down by the Apex Court on this issue. Statistical studies do cast doubt on the
bandwagon effect, but it cannot be categorically asserted that there is no significant or
material effect of such polls on elections. A level electoral playing field is too precious to
be risked on unsubstantiated data.
For far too long has this issue been addressed by default. In 1998, the EC issued
guidelines banning polls. In a challenge by two magazines, the oral observations of the
Apex Court suggest that they were disinclined to uphold the EC stand. But the
guidelines were withdrawn by the EC and the matter was never constitutionally tested.
Oral observations in a withdrawn proceeding do not constitute the law under Article
141. The Gujarat judgement is of recent vintage. There is no legislation on the subject.
Foreign legislation lies on both sidessome countries legislatively ban such polls,
others dont. The matter is thus ripe for Election Commissions intervention in an
unoccupied field followed, undoubtedly, by a final word by the Apex Court.

NO PLACE FOR HEROES
A striking example of the hiatus between the preaching and practice of the rule of
law was provided by L.K. Advanis yatra. The district magistrate of Patna, Gautam
Goswami, prevented the Deputy PM from holding his rally beyond 10 p.m. Apparently,
the SDO, had granted him permission till midnight ignoring an EC circular of 2000 that
restricted the use of loud-speakers till 10 p.m. Realising the error, the DM politely but
firmly requested Advani to stop. What followed reflects several facets of Indian society.
Indians admire reel-life heroes who stand up for principles and face political and
bureaucratic pressure fearlessly. The angry but incorruptible civil servants of two recent
films Shool and Gangaajal have been adulated by audiences across India. They
symbolise the common mans fight and victory over a system gone rotten.
Yet, when a DM stands up to the DPM to enforce the rule of law, all hell breaks
loose. This is not a comment on any political party or on the DPM alone. The reaction is
predictable: everyone howls about a DM insulting the DPM in this manner. What
should, thus, be an occasion for lauding the triumph of the rule of law becomes an
occasion for criticism and politicking.
Indians lecture endlessly by reference to foreign examples such as Tony Blair and
his wife visiting the police station to bail-out one of their children for a misdemeanour
and paying the requisite fine. We discuss US Presidents allowing the inexorable
application of the law upon their kith and kin. But whenever any real situation arises,
we easily lose opportunities to showcase the rule of law and to elevate society by
example.
No one appears to have stood up for the DM, who was simply discharging his
duty. No one has rewarded him for acting as per law when he said: I did what I was
expected to do as the RO of the Patna parliamentary constituency by the law of the
land.
From time immemorial, we have idealised the rule of law in precept and
undermined it in practice. We have forgotten Ciceros warning that we are in bondage
to the law so that we might be free and that howsoever high you may be, the law is
above you. We ignore Montesqueu who saw liberty as the right to do as the law
permits and we violate William Penns apt words, Law is the insurance we have on
our lives and property. Obedience is the premium we pay for it. In its place, we have a
section of people appropriating for themselves the power to rule, to remain above the
law, to bend the law for their own ends and brazenly break it whenever necessary.
Under the shadow of this unholy alliance of select politicians, civil servants,
businessmen and brokers, it is necessary to celebrate the Gautam Goswamis of this
world. Only then can we move from a functional anarchy or a dysfunctional democracy
to a mature system of governance.

POLL ECONOMICS
Elections have started and everyones talking of the economy. How about viewing
polls not merely as an occasion to talk about the economy but to implement remedial
prescriptions for the economy?
A simple calculation reflects the huge expenditure involved in polls. The earlier
official expenditure limit (for States like UP) of Rs. 15 lakhs per constituency, applied
across the board for approximately 550 seats. Assuming an average of only three
candidates per seat (the actual figure per seat is much more), this would yield an official
expenditure figure of approximately Rs. 247 crores. The current permissible expenditure
limit has increased to Rs. 25 lakhs. Therefore, an all-India figure of official expenditure
of Rs. 500 crore is quite realistic.
The unofficial expenditure is five times as much, giving a total minimum
expenditure of Rs. 2,500 crores. The shamiana construction, catering, civil aviation,
printing, stationery and advertising industries are all electrified by elections. Ad-
expenditure on India Shining coupled with an ad-blitzkrieg by ministries put this
campaign alone at around Rs. 2 billion.
Issues of electoral malpractice and erosion of a level-playing field apart, the effect
of such expenditures on the economy is staggering. Moreover, these figures ignore the
thousands of seats involved in assembly elections. The Orissa, Karnataka and AP
assembly elections alone have hundreds of seats and thousands of candidates. The
expenditure for all elections adds up to a huge figure.
Traditional Keynesian economics may have been replaced with modern theories,
but the enormous multiplier and cascading effect of such expenditures is widely
recognised. The supreme irony is that what governments may not be able to achieve as
growth rates of GDP in years preceding the election may well be achieved by and
during elections by the sheer elephantine scale of their expenditure. Election
expenditure can, thus, become a major short-term cause of economic growth.
Such expenditures cannot take the place of hard investment in social sectors like
education, health or infrastructure development in roads, electricity and water. Nor can
elections become an instrument of economic development or a policy prescription by
themselves. But if Keynes famous aphorism of paying labour to dig holes and to fill
them up as a remedy for recession has any validity, the recurring Indian democratic
festival can be the most innovative addition to economic treatises as a novel method to
boost GDP. Vive le elections!

CRUNCHING UP THE NUMBERS
What are ones personal impressions of the recently concluded electoral blitzkrieg?
Although necessarily subjective, I shall deal with some less discussed aspects. First, the
difference in mood within the Congress in January this year as compared to a few days
before the results (and much more so after the results) is mindboggling. The
disappointment (even depression) in January was followed by an increase in
self-confidence, not suddenly but consistently and incrementally, increasing with each
passing day.
Second, there is not that much astonishment at the Congress-plus results as at the
NDA result. After all, some polls did predict up to 210 for us and several of our internal
assessments hovered slightly above that figure. When people talk of the unexpected
result, I always point out that the surprise element is not so much qua the INC as the
NDA. But even in the case of the NDA, the surprise was relative to the expectation (330
or 303 seats).
Third, everyone I met said that Sonia Gandhis blood, sweat and tears, her
Herculean non-stop jansampark in the blistering summer heat, was most creditable and
reflected an energy, a unity of purpose and a sincerity which was unprecedented. Even
several NDAwallahs privately told this to me.
Fourth, in the inner party circles in which I moved around, our analysis from day
one was that this is not an election of winning or losing seats but an election of net gain
or net loss areas. It was on this analysis that we had openly contended that four swing
states would be crucial to us Tamil Nadu, Andhra, Maharasthra and Bihar coupled
with two states which could safely be counted in the non-NDA bag viz. West Bengal and
Kerala. Fortunately, not one of these six States failed us, although Bihar did give me
some anxious moments.
Fifth, many BJP persons I encountered in the media exuded a palpable mix of
self-confidence bordering on complacency, an arrogance coupled with condescension
and had not an iota of doubt regarding victory. It was reflected in their walk, in their
talk, in their swagger and in their mannerisms. Vitamin P (for power) is truly heady.
Sixth, the defeat for the media in these elections is, in a sense, even worse than that
for the politicians who lost. Everyone knows that the entire media got it horribly wrong
as far as opinion and exit polls are concerned. Almost six or seven polls were done by
each of the major operators. That makes for 35-40 polls, and no one was even remotely
near the truth. They got the total for the NDA wrong by about 60 seats at the lowest. All
except one got the Congress-plus figure wrong by around 40 at the highest. Of course,
individual deviations were much more 100 or even more. They all got Gujarat
completely wrong no one gave the Congress more than five. Four out of five channels
got Bihar exactly in reverse of what happened. No one predicted the NDA figure for UP.
(The lowest predicted was 150 per cent higher than the actual.)
Most importantly, no one predicted (even as a trend) that the NDA would be lower
than the Congress-plus. But more than mere polls, the media had clearly identified a
winner (i.e. the NDA) and right through the elections, its approach towards the
Congress-plus was condescending and patronising. A pat on the back was accompanied
by the favourite line even if you (Congress) dont make it this time, you are sure to
come back in 2009. Their approach to NDA guests was deferential and every comment
was lapped up as the last pearl of wisdom. The Congress version, was, at best, seen as a
rousing battle cry by a losing party.

TAKE IT, AND LEAVE IT
Truth is truly stranger than fiction. Witness the post-election events in India. Sonia
Gandhis remarkable act of self-denial is completely unprecedented because she may
well be the only human to have declined prime ministership three times. The years 1991
and 2004 are there for everyone to see. In 1991, she was importuned incessantly both
before and after the elections. The clear vote for the Congress in 1991 made her prime
ministership an inevitability, as stark as in 2004. She declined, as firmly as now.
What is lesser known is that in 1999, when (but for the last minute withdrawal of a
non-NDA ally) the magical figure of 272 was sewn up, Sonia Gandhi had none other
than the present PM in mind when she visited Rashtrapati Bhawan. There are at least
two reasons for this assertion. First, nothing in the events leading up to her visit to the
President suggests that she was staking a claim for herself. Second, I have it on high
authority from a classmate of Rajiv Gandhi, a close family friend of the Gandhis (who is
not in public life, has shunned the limelight and has no political axe to grind) that this
was indeed the case. A third reason remain unverified only the biography of Sonia
Gandhi or Manmohan Singh will some day reveal the truth. But I can say without
revealing how, that I have a fair idea that this was indeed the case.
Renunciation of the highest executive position in the worlds largest democracy is
unheard of. It has no global, historical or contemporary precedent. In particular, it is an
act of self-denial unthinkable in South Asian cultures, especially contemporary Indian
politics where hunger for and pursuit of power is omnipresent and omniscient. Politics
and public life have become so cynical that some people especially the self-proclaimed
graceful losers find it impossible to digest this unprecedented gesture and, therefore,
respond by attributing motives, alleging ulterior reasons and propounding subterranean
agendas.
First the precedents. Edward VIII renounced a throne, but it was hereditary and not
an elected office. Some friends of the Congress have cited the example of Mahatma
Gandhi, Jyoti Basu and V.P. Singh. The first is the father of the nation. He was the icon
of our pre-independence freedom movement, not the leader of a political party fighting
elections under the Constitution of India. No one was thinking of the PMs chair in 1947
for Bapu, a few months before his tragic death.
Jyoti Basu, a father figure of Indian politics, has been the longest serving CM ever
in India and is widely respected for his integrity, transparency and plain speaking. He
was certainly ready to become the PM in 1996. His example is inapposite for the simple
reason that there was a CPI(M) whip against taking office which could not be disobeyed.
Basu never became a (legal) cotender for the post because his party excluded itself.
V.P. Singhs example is equally misleading because he had already been PM in
1989. His deteriorating health also played an important role when he went
incommunicado in 1996.
Disbelievers cannot accept that Sonia Gandhi has been part of the trappings of
power for decades and the PMs post holds no mesmeric attraction for her. She gave
enough hints of her impending act in her recorded interviews. All her acts since 1991 are
linked by one overriding criterion to strengthen the Congress, to bring it back to power
and to keep the NDA agenda at bay. Her denial list is actually even longer than the three
occasions relating to prime ministership. She has also refused party presidentship in
1991 and again in 1996. It was only the declining fortunes of the Congress in 1998 that
propelled her entry.
The argument of the wannabes as to why she waited so long to announce her
renunciation has only to be stated to be rejected. Sonia Gandhi is the acknowledged
cementing force not only within the Congress but also for others in any Congress-led
coalition. Does anyone seriously imagine that government formation getting allies
support, getting the maximum number of allies into the government, quelling parallel
ambitions within the Congress, allocation of portfolios, common minimum programme
et al, could have been accomplished after May 13 if on that fateful day she had suddenly
announced her act of denial? Her actions are so obviously consistent with her one
overriding goal stated earlier.
Detractors mouthing the dual power centre theory knowingly want to ignore an-
other unique facet of Election 2004. The party president and the PM share a relationship
which is so harmonious and trusting that in itself makes it an unprecedented feature of
Indian politics.
It is truly remarkable that on the one hand the Congress president unhesitatingly
proposed Manmohan Singh as the PM, while Singh would himself have been the
happiest man if the Congress president had donned the mantle of the PM. This unique
harmony is truly a historic maturing of Indian democracy, requiring celebration and
encomium instead of sour grapes and nitpicking by the usual prophets of doom.
Instead, these usual suspects are up to their usual tricks misinformation, hype and
rumour mongering.
Even a concerned President issuing an unprecedented denial regarding the myth
that he raised an objection to the Congress Presidents candidature for prime
ministership has not been enough to stop those who excel only in innuendo and
insinuation. A former law minister not the last but an earlier incumbent has flaunted
his complete ignorance of law by reference to sections of the Citizenship Act which have
nothing to do with the office of the PM. Let us begin to learn the A, B, C, D of democracy
by learning to accept and absorb the peoples verdict.

PRAISING COMMUNISTS
I disagree with many prescriptions, panaceas and perspectives of the two principal
communist parties of India and those of other constituents of the Left Front. Not
infrequently, I find their thinking on significant issues unreal and out of tune with
contemporary Indian approaches. And yet, I cant but help marvel at the fact that the
Communists represent certain themes, precepts and ideals both unprecedented and
laudatory in the context of Indian political reality. So let me praise Communists, but not
communism.
The first is the Communists academic excellence, a trait now perhaps verging on
the brink of extinction in Indian politics. In an era of communalisation of politics and
politicisation of criminals, it is refreshing to find a person with the erudition of the late
Hiren Mukherjee, the academic achievements in higher legal studies of Jyoti Basu and
Somnath Chatterjee, and the presence of youthful academic toppers like Sitaram
Yechury and Prakash Karat. The depth of scholarship, coupled with eloquence,
oratorical skills and a deep abiding patriotism of the late Hiren Mukherjee made him a
legendary political figure. While the earlier trend that the best and the brightest
frequently gravitated towards the communist movement no longer holds true, these
parties continue to have a disproportionately high percentage of the academically bright
in their midst.
The second, the absence of corruption, is linked to the third simplicity in life and
conduct and both reflect a rare characteristic of Indian politics. When was the last time
we found a Communist politician caught in a scam? Jyoti Basu is known for washing his
own clothes. West Bengal Chief Minister Buddhadeb Bhattacharjee lives in a small,
spartan two-room accommodation in Kolkata.
E.M.S. Namboodiripad was born in an aristocratic family at a time when ordinary
Namboodiris would not have dared to rub shoulders with ordinary peasants, lower
castes and untouchables. Yet, EMS lived among the poor for over seven years till 1947
leaving behind his family and one-year-old daughter. After emerging from hiding in
1947, EMS sold the whole of his considerable estate and donated its handsome proceeds
to the Communist Party.
This reflects the continued presence of a fourth theme idealism among several
communist politicians. A.K Gopalan, B.T. Ranadive and P. Sundarayya all reflect this
commitment to ideals and the consistent practice of the simple living and high thinking
model. The first spent many years in jail in post-Independent India and worked
tirelessly to organise the communist movement rushing to aid peasants resisting
eviction in Kerala, to support Marathas fighting for Samyukta Maharashtra and to help
these arguing for Mahagujarat. In the legal fraternity, Gopalan is well-known for
bringing about the first Apex Court precedent interpreting the fundamental rights
chapter of the Constitution in that celebrated Gopalan case bearing his name. Similarly,
Sundarayya discontinued studies when 17 and plunged into the non-cooperation move-
ment in 1930 while Ranadive spent almost a decade in jail espousing communist ideals.
Simplicity, non-corruption, dedication to ideals and learning also explain the other
fifth unprecedented Communist contribution to Indian political culture renunciation of
power and of the loaves and fishes of office. Prior to Sonia Gandhis historic
renunciation of Indias highest executive office, the only examples of renunciation of
power in post-Independent India, especially as a collective political force, are found
among the Communists. It is in the light of this historical backdrop and the persona of
several of their leaders that the rejection of Jyoti Basus candidature for prime
ministership and the current non-joining of the government by Communist parties must
be seen.
Defection is another phenomenon unknown to the Communists. Apart from the
split between the CPI and the CPI(M), one cant think of any Communist defecting to
another political party. Through thick and thin, in power or out of power, with office or
without, a consistent commitment to the party and to its ideology and principles has
remained the hallmark of the Communist politician.
Perhaps I should end with two other known but now forgotten aspects regarding
Communist leaders. One is the obvious affinity to my profession (viz. law) coupled with
a special attraction for the English Bar. Hiren Mukherjee, Jyoti Basu and Somnath
Chatterjee were all barristers, educated in England and had practised at the Indian Bar.
The second is the Communists close association with the Indian National Congress.
EMS started his political career with the Congress and rose to become PCC secretary. He
said that he learnt socialism from Nehru. Gopalan and Harkishen Singh Surjeet were
both active Congressmen in their early years of political activity.

A CONFIRMATION IN MUMBAI
Maharasthra Verdict 2004 has significance well beyond the boundaries of Indias
richest, most industrially developed and second-most populous State. It is wrong to
suggest that the mere existence of a Congress-led government at the Centre led to or
contributed immeasurably to this State victory. If that correlation had any validity, the
NDA-led Central Government would not have lost over 13 State elections after its
installation in 1999. What influences State polls is the nature and image of the Central
Government and it is clear that two unique features of the present Union Government
did contribute directly and substantially to this victory. The first was the unprecedented
act of sacrifice by the Congress President. The second was the installation of a straight-
forward, honest, simple, no-nonsense administrator, Manmohan Singh, as the Prime
Minister.
This unique combination was heightened when contrasted with the negative
politics reflected in the antics of the opposition since
May 13. None of the political gimmickry displayed by the opposition has gone down
well with a public nauseated by political stunts. The repeated obstruction of Parliament
by an opposition fresh from a humiliating electoral defeat, the frequent attacks in foul
and abusive language upon both Sonia Gandhi and Manmohan Singh, the
self-promotional and diversionary yatras in the name of the tiranga and the deliberate
attempt to make issues out of non-issues (a la Veer Savarkar) have all been noted with
strong disapproval by the aam aadmi as examples of destructive politics. All have
contributed to the ambiance of political discourse and the relative images of the
contending political formations in the State elections.
The significance of the victory can hardly be over-emphasised. The single
permanent axiom of Indian politics has been the verity of cyclical anti-incumbency and
exceptions to this rule have only reinforced it. To overcome this verity after five full
years in a bitterly fought election is a staggering achievement. If we add to this the fact
that as many as 122 rebels/independents fought this time the highest ever and
overwhelmingly from the Congress we can appreciate the nature and extent of the
victory whose margin would have doubtless been much higher in the absence of this
scenario.
The Congress-NCP combine has performed better in every sub-region of
Maharashtra except western Maharashtra. Vidarbha has replicated the 1999 results but
compared to the May parliamentary elections, there has been a huge improvement.
Konkan, the North, Mumbai and Marathwada have all done well in larger or smaller
measure. Although western Maharashtra showed a decline of ten seats, the
Congress-NCP combine still won 42 seats (down from 52) and the rival coalition got
only a paltry 17. The impact of the ruling coalition has, thus, been positive through the
length and breadth of the State.
Indeed, without being complacent or patronising, it would not be unreasonable to
suggest that this verdict may sound the beginning of the end of the NDA, or at least the
NDA as we know it. Large parts of the NDA share neither history nor ideology with its
lead partner- the BJP. Indeed, many of its constituents have been created or have pros-
pered on an anti-Jana Sangh/BJP plank. Their convergence has been motivated less by
anti-Congressism and more by a desire for sharing power. The next three elections in
early 2005 do not augur well for either the NDA or the BJP.
Both Jharkhand and Haryana are reeling under strong anti-incumbency factor and
barring a last minute fiasco, should return the Congress and allies with comfortable
majorities. Laloo Yadav always has many cards up his sleeve and cant be written-off
despite the pulls and pressures of a ten-years anti-incumbency. In the unlikely event of a
displacement of the RJD and caste combinations in Bihar make it a more likely
exception to the anti-incumbency principle than any other State its doubtful that the
benefit will accrue to the NDA and is much more likely to go to other major regional
players like Paswan. With three further adversities likely in 2005, followed by elections
in States like Bengal and Kerala where the BJP is virtually non-existent, the opposition
would have little else except dire astrological predictions and conspiratorial gangs of
four to fall back upon for a change of government.
The elections reflect a maturing of Indian democracy. Despite frenetic attempt to
sensationalise and emotionalise issues the tiranga yatra and Andaman yatra are but two
examples the agenda for these elections (viz. development within a secular, inclusive
and pluralistic mould) was set by the Congress and allies and the people did not allow it
to be dislodged or hijacked. Once the agenda is concretised in this manner, there is an
automatic and inherent disadvantage to parties like the Shiv Senathe senior partner in
the coalition and leaders like Bal Thackeray whose brand of politics has always been
that of divisiveness, fear and of exploiting the insecurities of target groups and
communities.
Histrionics, abuse and sensationalism necessarily suffer from the law of
diminishing returns far sooner than substantive issues, and these elections reflected a
refreshingly early rejection of these melodramatic elements. It also proves that the In-
dian polity has consistently disapproved of any brand of extremist politics. Bal
Thackerays foray into these elections, albeit limited, was nevertheless peppered with
both abusive language and intolerant outbursts.
To suggest to cosmopolitan Mumbai, as Thackeray did, that if someone were to talk
to them in Hindi, they should reply in Marathi shows that neither the ageing paper tiger
nor his junior partner, the BJP, has truly understood either the Indian or the
Maharashtrian psyche.

THE FACT OF THE MATTER
One cannot speculate on the division of public opinion over the recent devel-
opments in Goa but if public perception was to be based on facts, the Governors actions
would receive far greater support. Unfortunately, few media accounts have described
the factual sequence as it unfolded.
The fact that the Parrikar government enjoyed the support of only 17 MLAs
(including that of the Speaker) while the then opposition Congress and its allies enjoyed
the support of 18 MLAs was known several days before February 3, the day the
Governor dismissed the government. It was not only the subject of several media reports
but the 18 MLAs had also submitted written representations and had been collectively
photographed. It was on that basis that Governor Jamir had called for a floor test.
On the fateful morning, the 18 MLAs were again photographed and videographed
in the presence of the Governor. The existence of a physical majority with the Congress
was thus undeniable. The only way the incumbents could cling on was to somehow
reduce one MLAs vote from the opposition, thus bringing the two groups to parity and
enabling the Speaker to use a second casting vote and tilt the majority in their favour. To
that effect, a notice of disqualification was served upon one independent MLA, Philipe
Neri Rodriguez, with the incredible allegation that he had supposedly joined the BJP
two years ago. The Speaker insisted on hearing the issue the same day, without giving
any reasonable notice to Neri. The latter understandably refused to go to the Speakers
chamber.
The session started as scheduled at about 2.30 p.m. Suddenly at about 4.30 p.m.,
after two hours of relatively pleasant and controversy-free discussion, just before the
crucial vote was to take place, the Speaker/CM/government of the day sent in marshalls
to physically take Neri away from the House. In the ensuing melee, the Speaker
proceeded to announce an incredible 18-6 votes in favour of the government. The
Governor also proceeded to announce the dismissal of the government.
These are virtually undisputed facts indisputable since most of this is captured on
camera by different channels. What conclusions flow from this? First, it was the
Governor who had called for the floor test and hence he cannot be characterised as being
biased from the inception. Second, the Speaker played the role of an agent of the
incumbent Chief Minister and the government by issuing notice on the disqualification
petition and insisting on hearing it the same day even though it raised an allegation
relating to a period two years earlier. Third, even if Neri could be considered for
disqualification on the day of the floor test itself an unsustainable proposition at the
best of times how could the BJP-led Government ever explain the fact that Neri was
not ever sought to be disqualified for the two long years during which he is alleged to
have been part of the BJP? Everyone knew that Neri was an independent MLA from the
beginning and if indeed he had joined the BJP two years ago, how and why was he not
disqualified earlier?
Fourth, and this is crucial, the Speaker never passed an order of disqualification qua
Neri. There is no such order in existence. Hence all press reports and allegations that the
Governor could not hear an appeal against the Speakers order and that only courts
could intervene are inaccurate, misleading and untenable. There is no order against
which any appeal or challenge could be mounted.
Fifth, what the Speaker did not do is as interesting as what he did do. Not only did
he have marshalls physically remove Neri but he passed an order under the innocuous
and clearly inapplicable Rule 289 of the Assembly stating that Neri was indulging in
disorderly behaviour. Those who saw candid camera find this amazing since Neri was
simply sitting in his seat for two hours and it was the marshalls who generated the
disorder.
Sixth, if democracy is all about majority rule by numbers and if admittedly the Con-
gress and its allies had 18 MLAs, the incumbent governments actions through the
Speaker clearly amounted to an attempted conversion of a majority of 18 into a minority
of six. Faced with this known situation a strategy of the BJP which was an open secret
well before February 3 the Governor had no option but to step in to preserve
democracy.
Seventh, withdrawal of gubernatorial pleasure is an option specifically provided in
Articles 163 and 164 of the Constitution. A wide immunity to this discretion subject, of
course, to judicial review is also conferred by the same articles. Eighth, if the majority
of 18 existed with the Congress and its allies and subsequent developments prove that
it has remained an undiluted majority there is no question of fresh elections being
called. Mid-term elections, with their attendant expense and disruption, must
necessarily be the last option, exercisable only if government cannot be formed in any
other way.
The Governor, undoubtedly, did something very rarely done. But he was only
reacting. The action the original cause emanated from the previous government and
the Speaker. On the wider issue, the time has come to restructure our anti-defection law,
remove the Speaker as the adjudicatory authority from the Tenth Schedule and entrust
this power to an independent tribunal or to normal courts.
Our framers conceived of the Speakers office as independent and impartial.
Experience with Speakers of State Assemblies has proved otherwise and the law reports
are replete with the wrecks and ruins of constitutionalism on this issue. Fortunately, this
disease has not afflicted the Speakers office in Parliament. No doubt the office of the
Governor has suffered a general decline but once the Goa episode is analysed carefully,
it cannot be treated as an example of that decline.

ALL HANDS ON DECK
Given the seeming dissonance of coalition politics, some of the issues debated by us
in the context of coalitions and economic growth at a recent panel in Kolkata may be
usefully elaborated. The common criticism of coalition government that it retards
economic growth due to its disparate and unwieldy nature is a myth. There is no
necessary inverse correlation between economic growth and coalition governance.
Germany is the largest economy of Europe and the third largest in the world. It has had
a long history of coalition governments and the ruling coalition of the Social Democrats
has governed successfully for several years.
The New Zealand coalition of the Labour and Alliance parties has been fairly
successful in boasting economic growth in the island. India itself provides a striking
example: the liberalisation process and rapid growth in an unshackling ambiance has
been a gift of the last decade-and-a-half, precisely the period which marks the growth of
coalition politics and its entrenchment as more or less a permanent feature of Indian
politics.
Several research studies, including a well-known one by the Canadian aid agency
CIDA, have found a direct and strong correlation between coalition government and
decentralisation and, more interestingly, between decentralisation and faster and better
economic development, specifically in India.
What is perceived as the biggest weakness of a coalition government the
bewildering array of views and voices is also, more often than not, its biggest strength.
The essence of good decision-making is a reasoned decision arrived at after receiving all
appropriate inputs from diverse angles. This is also the essence of democracy. The
seeming cacophony of a coalition frequently results in the most informed and eclectic
decision. Thomas Jefferson put in pithily: Difference of opinion leads to inquiry, and
inquiry to truth; and that, I am sure, is the ultimate and sincere object of us both... a
government of the people requires difference of opinion in order to discover truth and to
take advantage of the opportunity that only understanding brings.
The present coalition is a good example of absorbing inputs from diverse quarters.
But then, taking a decision on the basis of what it considers good for the country without
conferring any de facto veto power on any particular component of the coalition. Thus,
the Common Minimum Programme concerns regarding employment were met through
the Employment Guarantee Act which, happily, also had the strong endorsement of the
Left. But where it was felt that the good of the country lay in further opening up the
telecom and aviation sectors or in doing away with restrictive regimes like Press Note
18, (which restricts new foreign joint ventures from embarking on new projects with
new Indian partners unless they have a no-objection from the earlier Indian JV partner),
the government has not hesitated in implementing the decisions. This was done after
wide and in-depth consultations with all coalition stakeholders, despite the
disagreement of the Left and without allowing any one grouping to exercise a veto.
Finally, the nature of the coalition has to be kept in mind when analysing its
decision-making role and its impact on economic development. It is true that the
previous NDA coalition occasionally appeared to reflect greater cohesiveness and lesser
dissent than the present UPA alliance, which is Indias largest-ever coalition. But that
may well be only a left-handed compliment to the BJP and the NDA. A lot of the
apparent coherence arose from the fact that the lead partner of the coalition, the BJP, had
virtually no presence in most parts of India, where it rode piggyback on regional parties
which formed the NDA coalition.
The BJP ruled India with hardly any presence outside the centre, until it won three
assembly elections in late 2003. It aligned with the INLD in Haryana, the BJD in Orissa,
the Akalis in Punjab, the AGP in Assam, the TDP in Andhra and the AIADMK in Tamil
Nadu, all States where it virtually did not exist as a political entity. In contrast, the
Congress remains Indias only truly pan-Indian political party. That leads it to fight for
the same political space as some of its coalition partners. But this somewhat higher
decibel of political dissent mustnt be confused with hard economic decision-making at
the centre.

CAMPAIGN CARCASS
Remember India shining, the phrase that became the most embarrassing two
words of the English language for the previous BJP-led NDA government? Remember
the huge advertisements in all leading newspapers showing a beautiful blue sky,
shimmering green fields and two bold words proclaiming India shining? Remember
the happy couple in a kaleidoscope of colours on prime time TV on every major channel,
reciting the same phrase again and again between January and March 2004? And
remember also the complete excising of that phrase from the political lexicon of all
constituents of the NDA after May 2004? As also the frequent caustic SMSs and cartoons
parodying the phrase Government dreaming, Shining for whom, India shining
because NDA losing, NDA whining, Now India Shining and so on?
Well, India shining has returned to haunt the NDA, in the form of a CAG report
tabled in Parliament two weeks ago, which gives detailed facts and figures proving
conclusively that the NDA committed nothing short of constitutional fraud in funding
the India shining campaign. Since there are no free lunches, someone had to pick up the
huge tab for all those magnificent but smirky and self-congratulatory pats on the back,
on the eve of a major national election. Surely, the BJP or the Samata Party or the Akalis
or any other cash-rich constituent of the NDA would not be prepared to dole out such
obvious election expenses, even if everyone knew that the ads were designed to
influence the voting public in a keenly-fought national election weeks away in the
future. When one was in the saddle in the central government with access to huge sums
of taxpayers money your money and mine why bother with small niceties and why
not dip into this readily available largesse?
There was a small constitutional hitch, though. Since governments do not fight
elections political parties do the then NDA government could not ask Parliament to
appropriate crores of rupees for government advertisements. Equally, governments
cannot draw a penny from the Consolidated Fund of India except under appropriation
made by law, i.e., legislation. If the need arises for an expenditure on a new service or
activity not contemplated in the annual budget, a supplementary demand for grant has
to be placed before Parliament for approval. No expenditure can, thus, be incurred from
the Consolidated Fund on a new activity/service without parliamentary approval. What
is worse, from the NDA governments point of view, specific guidelines of the finance
ministry, made in consultation with the CAG, mandated that even diversion of funds
from one sub-head to another within the same grant already approved by Parliament
could be done only if it involved expenditure on any activity which was brought to the
specific notice of Parliament. In a nutshell, specific parliamentary appropriation of some
Rs. 63 crore would be necessary for India shining.
Since the NDA government could not risk either parliamentary debate or rejection
weeks before a crucial election and since money still had to be found, the then finance
minister (who speaks with such gravitas that even a pleasant joke begins to acquire the
proportions of a Greek tragedy) and the economic affairs department of his ministry,
designed a simple solution. Lest you discount this as the raving of an inimical Congress
spokesperson, let me quote to you the clear findings of a constitutional authority, the
CAG, constitutionally insulated from the vicissitudes of politics. On page 51, the report
says, Campaign material of two advertisement agencies styled as India Shining were
approved in October 2003 for release to various newspapers and TV channels in three
phases, in October 2003 (phase I), December 2003-January 2004 (phase II) and February
2004 or till the model code of conduct for parliamentary elections came into effect (phase
III). An expenditure of Rs. 63.23 crore was incurred during this period on the
programme by reappropriating Rs. 68 crore from the sub-head co-operation with other
countries to a sub-head other expenditure under major head 3605 in demand 31
Department of Economic Affairs 2003-04. The action of the ministry in not obtaining
prior approval of Parliament before incurring expenditure on the said activity, which
was a New Service/New Instrument of Service was unauthorised.
Several issues emerge. First, if an individual were to divert funds in the manner
described above, it would be called embezzlement. Even a charitable and mild
characterisation of the finance ministrys and NDA governments actions in this regard
justify use of the words constitutional embezzlement and fraud. Second, the BJP and
other NDA constituents obviously made no distinction fundamental in any democracy
between government and the ruling party/ruling coalition. They treated taxpayers
property as their personal fiefdom. Third, the amount of Rs. 63 crore approximately
equal to the amount involved in the baseless Bofors allegations against Rajiv Gandhi
clearly created an uneven playing field between different political parties and
undermined the very foundation of a free and fair election, which the Apex Court has
repeatedly held to be part and parcel of the basic structure of the Constitution. Fourth,
the defence of the government before the CAG compounded this cheating of the public
of India. Indeed, the banal inanity of this defence is as shocking as it is naive.
The government argued before the CAG (see page 52 of the report) that the India
shining campaign was intended to imaginatively promote India and thereby foster
trade, techno-economic relations and intellectual exchange between India and foreign
countries, thus demonstrating the nexus with the authorised sub-head co-operation
with other countries!
Whether India was or was not shining, certainly this defence of the NDA
government shows that they considered India to be foolhardy, ready and willing to
swallow anything and everything. They had obviously forgotten yeh public hai, yeh sub
janati hai!

ONE SHAM TOO MANY
So much has been written on the Advani-Jinnah controversy, that I am almost
tempted to skip the subject. But its topicality persists and, having personally spoken on
it widely, heres my take on it.
First, lets look at the clear weakening of L.K. Advani within his party as well as in
the nation. The public humiliation within his party, the RSS and other constituents of the
parivar which he had to suffer, when taking back his resignation, is unprecedented. All
this in the face of a parliamentary board resolution, containing paragraphs on M.A.
Jinnah diametrically opposite in letter and spirit to what he said and meant in Pakistan
and reiterated obstinately in India is unprecedented.
One has to see the kind of posters which have sprung up in Gujarat and the kind of
statements which any Tom, Dick or Harry of any parivar constituent can now freely and
fearlessly make against him, to realise that far from the self-congratulatory lauh purush
tag, his authority and even persuasive weight both as Party President and Leader of the
Opposition are seriously eroded, if not reduced to a vanishing point. Interestingly, the
RSS chiefs statement likening changing political stands to a prostitutes opportunism
left no one in doubt about the intended target of the remarks. And this was well after
Advanis withdrawal of his resignation.
If one adds to that the series of electoral defeats the BJP has faced since May 2004,
the rapid removal of Venkaiah Naidu and his equally rapid re-induction through
demotion, the open defiance of Advani by Uma Bharti on camera and the clear
succession struggle among over ambitious second-line BJP leaders, one can safely
conclude that Advanis days are numbered.
Secondly, the episode highlights the fundamental paradoxes and fault lines in the
BJP as a political party of governance. If anyone had any doubt about Indias worst kept
secret that on any important issue, the last word in the BJP remains with the RSS the
recent fracas should conclusively put that to rest. But a larger issue arises.
For any party to govern as large and pluralistic an entity as India, the hardcore
Hindutva ideology must come up as an insuperable roadblock. So, whenever, the BJP
tries to project the image of a dynamic, progressive modern engine of economic growth
seeking to turn India into a superpower, it immediately comes up against this roadblock
and since the remote button exists elsewhere, the roadblock becomes a wall. The BJP is
then forced to practise the politics of hypocrisy to try to reconcile the irreconcilable.
Many examples exist. A party whose very identity, in fact existence, is defined by
RSS mandated priority issues like Article 370, building of a temple at Ayodhya and a
common civil code, starts its quest for power by expressly keeping them in abeyance.
Within a few years of acquiring power, unmanageable contradictions and
inconsistencies have to arise because the BJP is running with the RSS hare and also
trying to hunt with the NDA hound. Advani made innumerable inflammatory speeches
and provocative statements regarding the immediate necessity to build a temple which
no one can stop during his 1991 yatra as also between December 1 and December 6,
1992 when he starts from Kanpur to reach Ayodhya, and then, with a straight face,
wants the nation and his NDA friends to believe that, that was the saddest day of his
life.
This is the same politics of deception and camouflage which manifested itself in his
remarks during the Pakistan sojourn. It is the same hypocrisy which makes many BJP
spin doctors justify Advanis remarks in Pakistan as an attempt to improve Indo-Pak
relations (and consequently contribute to communal amity within India, which,
according to me, is itself a very communally biased proposition) while remaining mute
spectators to repeated references to Mian Musharraf by the BJPs long-serving poster
boy, Narendra Modi.
Third, a word on the semantics of the issue. It is true that Advanis statement in
Pakistan nowhere expressly states that Jinnah was secular. But reading the statement as
a whole, and the place, time and context in which it was made, leaves no doubt that that
was what Advani meant and intended.
Two subsequent developments prove that point. If that were not what Advani
meant, the easiest thing would have been for him to have said as much upon landing in
Delhi when the controversy was raging at its peak. Instead, he not only gave no
clarification, but reiterated his stand even as he resigned. Second, if Advani had never
meant that Jinnah was secular, then why the hullabaloo for several days? To what do we
ascribe the storm in the BJP and the parivar that threatened to rip it apart? Why the
criticism from old enemy Murli Manohar Joshi and new dissentient Yashwant Sinha and
why the final resolution containing so many critical paragraphs on Jinnah?
Fourth, no reinvention of the BJP can even begin without addressing two issues: the
paradox of its origin and its love for melodrama on non-issues of non-governance.
Whether it is the BJPs repeated boycott of Parliament, or one of its leading lights
threatening us of a shaved pate if Sonia Gandhi became Prime Minister, or the repeated
yatras undertaken by everyone from Advani to Bharti to
Sushma Swaraj, the BJP is rightly being seen as a
party in search of an issue, consumed by a never-
ending thirst for media attention (for the wrong
reasons) with an obstructionist approach to all issues
of governance.

EXTERNAL AFFAIRS

From the judiciary to the field of law, governance and politics, this section puts
together issues of a global nature, ranging from the major to the minor, from the serious
to the comic.
The author starts with his strong desire to see a comprehensive international
criminal court to deal with trans-border crimes and analyses why the Sri Lankan
Constitution is inherently flawed, generating inevitable tensions between the President
and the Prime Minister. The bizarre content of some TV programmes in the USA are
described, including Jerry Springers Bizarre Betrayals show on TV with a stripper
describing in gory detail how she had left her boyfriend because she preferred sex with her
sister. The comic includes the German Chancellors argument in a court that he does not
dye his hair and that the allegation that he does prejudices him politically.
Former Defence Minister George Fernandes threat to file charges of treason
against the then leader of the opposition (Ms Sonia Gandhi) is debunked while the US
Presidential polls and the Presidential debates are analysed with innovative insights. For
example, the common myth that Democratic Presidencies in the US are more sympathetic
to India than Republican Governments is shown to be false. This section also contains
reviews of six books with global themes and a discussion of unusual charges of adultery
against the current Chief Justice of Sri Lanka.
INTERNATIONAL LAWS TO ADVANCE
The recent arrest and pre-trial appearances of the alleged Serbian mass-killer,
Milosevic, highlighted the personality of the accused and his alleged destructive role in
the troubled State of Serbia. But the media hype missed out on the legal aspects of the
proceedings before international criminal tribunals which provide a fascinating insight
into how persons accused of genocide are tried.
The next revolutionary advance of international law is likely to be the
establishment of an International Criminal Court (ICC) to try trans- border crimes.
Preparatory work is complete and the signing of a treaty for an ICC which will be far
busier and in a sense more powerful than the present international Hague Court may
be less than a year away. Unlike The Hague Court, the proposed ICC will have
jurisdiction over individuals and not nation states. It will deal with security matters of
concern to the public at large. But till ICC is operationalised, two international criminal
tribunals are busyone dealing with alleged genocidal deaths of Tutsis in Rwanda,
Africa and the other with deaths in former Yugoslavia.
The former tribunal sits in the beautiful city of Arusha in Kenya the gateway to
the famous wildlife parks of Africa while the latter sits at the Hague in Netherlands.
Each tribunal has judges from several countries and appeals from each tribunal lie to a
common appellate tribunal at the Hague.
A recent decision of the Rwanda Tribunal from Arusha illustrates the key
ingredients required to establish a charge of genocide and is indicative of the likely
defences which the accused from Serbia or Rwanda, including Milosevic, if and when he
submits to the jurisdiction of the tribunal, may take.
Rwanda saw an unprecedented carnage in 1994, involving attacks by one dominant
tribe, the Hutus, against the Tutsis. The Rwandan tribunal commenced hearing in 1997
in cases involving a large number of high dignitaries (including the PM) accused of
genocide during the turbulent period. In a recent judgment involving accused
Bagilishema, the head of a large district, the Tribunal recorded its first acquittal by a 2-1
majority. The principal defence of the accused, which was accepted, was that:
(a) He did not actually participate in the crimes committed upon the Tutsis in the
commune headed by him.
(b) He lacked adequate means to prevent such crimes.
(c) He did what he could within the limits of the means and resources available to
him.
The comprehensive judgment of the Sri Lankan judge, an eminent judge of the
Supreme Court in his own country, reiterates the principle that all that the accused is
required to do is to raise a reasonable doubt regarding his defence but the onus remains
upon the prosecution to prove its case. The Tribunal acquitted the accused after a
detailed examination of evidence in respect of the following:
(a) The conduct of the accused prior to April 1994 in respect of which the
prosecution admitted, and a host of defence witnesses testified, that the accused
was loved by both Hutus and Tutsis, that he was a man of good character and
high standing and had indulged in no acts of omissions, of ethnic bias or
discrimination.
(b) The security resources, including personnel, arms and ammunition in his
commune, spread over 160 sq. km were less than one tenth of those prescribed
under regulations and were inadequate to maintain law and order.
(c) The accused did seek additional resources but the same were never supplied to
him.
(d) After the initial turbulence, the accused did his best to do effective policing with
his limited resources, including conducting arrests and the activation of peace
committees.
(e) Witnesses testified to the accused sheltering and hiding a few Tutsis and issuing
false identity cards to Tutsis to help them flee.
(f) The fact that the accuseds deputy (a Hutu) was openly siding with invading
Hutus and had rebelled against the accused.

INJUDICIOUS ADULTERY
Sri Lanka has done even better than India. Sometime ago, India had its first
attempted impeachment of an Apex Court judge in the
V. Ramaswamy affair.
The event shook the Indian judiciary, the mandatory judicial inquiry by a three-
member judicial committee recommended action leading to the initiation of
Parliamentary impeachment proceedings, but the attempted impeachment was pipped
at the post when the motion was defeated on the floor of Parliament.
But there was high drama for more than two years. A Supreme Court judge was
involved; allegations of financial irregularity and impropriety in respect of purchases
and travel bills were hurled; the same judges father-in-law having been indicted many
years ago on corruption charges made the case worse; fellow brother judges inquired
into his conduct; the Chief Justice of India was under pressure not to allocate work to
Justice Ramaswamy and so on and so forth.
But the Sri Lanka scenario is even more colourful and threatens a constitutional
crisis of far larger proportions.
Sarath de Silva, an extremely amiable, pleasant and civilized human being, known
personally to this columnist, achieves great and early success at the Bar and is appointed
to the Court of Appeal in Sri Lanka.
Soon after, he becomes the President of the Court of Appeal, which is the
penultimate court, just below the Apex Court.
Shortly, thereafter, he is appointed Attorney General (an even higher post in Sri
Lanka) and then catapulted as Chief Justice of Supreme Court, all within a very short
time.
Then proceedings are started challenging his appointment on the ground that his
conduct as an attorney was under probe because he was allegedly living with another
woman when his wife was still alive.
The main counsel for the prosecutor is Ranjit Abhesuriya, another highly civilized
and soft-spoken senior counsel who, along with Sarath de Silva and this columnist, has
served on a common non-governmental association of lawyers called the SAARCLAW.
(The embarrassment of dealing with two friends at loggerheads with each other is
obvious).
An inquiry committee comprising of three Apex Court judges hears the complaint
against their own Chief Justice and Abhesuriya politely argues that since the head of the
Apex Court is the accused, he cannot expect justice from this panel.
Counsel for the Chief Justice pleads Presidential immunity as a defence in respect
of the Chief Justices appointment while Abhesuriya cites judicial precedent to assert
that President Bhandaranaikes actions in this arena are subject to full judicial review.
Meanwhile, a motion for impeachment of the Chief Justice is moved in Parliament.
The Speaker of Parliament, who is also the brother of the President and a leading light of
the main opposition, admits the motion and orders impeachment of the Chief Justice on
grounds of adultery, thus favouring the government.
In the meanwhile, the President purports to dissolve Parliament itself and seeks a
referendum on whether the country needs an altogether new Constitution which is
nationally important and an essential requirement.
Clearly, the last part of this drama is yet to be enacted.

ITS THE SAME EVERYWHERE
The more things change, the more they remain the same. This aphorism comes to
mind in the context of Indo-US comparisons in the wake of the Enron bankruptcy.
Despite the Indian penchant for self-deprecation and running down of things Indian,
coupled with starry eyed approbation of phoren things and institutions, I was struck by
the similarity of human nature everywhere.
Crony capitalism the practice of bestowing favours and committing sharp
monetary practices amongst a small, incestuous class of buddies and langotia yaars is
as prevalent in the US as in India. Enrons influential friends and benefactors going up
the ladder from Senators through Vice-President Cheney to President Bush himself
would make Ketan Parekh, Harshad Mehta or Flex Industries look inconsequential. The
denial of access to papers and correspondence between Enron and its rich and powerful
friends including a Task force headed by Vice President Cheney to the Congressional
General Accounting Office (GAO) has echoes of similarity with recent denials of access
in India to the Public Accounts Committee of Parliament of papers involving the
Defence Ministry and Defence deals over the last decade. The fudging of accounts of
Enron by Arthur Anderson for several years effectively window dressing a huge debt
laden company as an attractive profit making investment destination for potential
investors, lenders, collaborators and employees is part of a continuing distinguished
tradition of sharp accounting practices, rubber stamping of accounts and issuance of
mechanical certificates by statutory auditors in India.
But the lessons for India lie in the dissimilarities of corrective action which follow
in the US upon occurrence of such common failings. Indian democracy functions on the
principle of preaching, sermonising or making more rules and laws hoping that
combination of these will rectify the malady and prevent recurrence. Consequently,
swift, effective, fair and precise punitive action is virtually non-existent in the Indian
scheme of things. This fundamental omission of punitive consequences applies across
the board, whether to corporate (mis)governance, civil (mal)administration, criminal
actions or political chicanery. This not only emboldens hardcore defaulters but
encourages prospective and potential violators to join their ranks.
In contrast, US democracy functions on the principle that crime, corruption and
chicanery are an established and inalienable part of humanity, as inalienable as the
Jeffersonian right to equality, liberty and fraternity. The US approach is not to wish such
evils away or sermonise about their deleterious effects or harken back to golden era
when such evils supposedly did not exist (all of which is the typical Indian paradigm)
but to apply the stick (and occasionally the carrot) here and now to combat it and root it
out. Crime and corruption abounds in the US but punishment is swift, effective and
deterring. That is why the aforesaid GAO, instead of indulging in a helpless lament or a
long loop of bureaucratic procedures, vigorously decides to sue the administration over
the latters denial of Enron correspondence.
Besides, the legislative organ or the state in the US is extremely potent and is
empowered to inquire into virtually anything and everything, through a series of
senatorial committees, bipartisan commissions and investigating arms like the GAO
which, although headed by a Comptroller General, is fully under legislative
Congressional control. In a nutshell, the legal process either acquits honourably or
convicts and punishes harshly within a certain period of time.
Furthermore, the system operates inexorably with a healthy disregard for
personalities and stature. Thus, Watergate claimed Nixon as its victim and the Monica
Lewinsky indiscretion ran the full length to a Congressional impeachment vote, which
Clinton narrowly escaped.
The elderly President George Bushs granddaughter (and the incumbent President
Bushs niece) was arrested this week for a prescription fraud, i.e., buying a
prescription drug without a prescription.
India has to learn that if folly is an inherent part of human nature, fear of
punishment is an equally integral part of the human personality.

OF HATE CAMPAIGNS
Minorities belonging to the sect or religion to which belong the perpetrators of
terrorism or minorities racially or ethnically originating from a country which is at war
with their host country have, through the ages, borne the brunt of the backlash and the
hate crimes which inevitably follow upon the actions of their religious or ethnic
brethren. Thus, innocent law abiding Germans were subjected to taunts as krauts in the
UK and the USA for many years after the end of the second World War. After the attack
on Pearl Harbour, USA created special exclusion zones in California and Hawais
where 70,000 Japanese-American citizens and an additional 40,000 Japanese aliens were
interned, i.e., preventively detained. Its interesting that in a country with the oldest
written Constitution and a comprehensive fasciculus of due process safeguards, this was
done without any Congressional statute and merely by a Presidential order. The creation
of exclusion zones, and preventive detention even for US citizens, clearly and
incontrovertibly violated the due process guarantees of the 5th and 14th amendments
of the US constitution. When hapless detainees challenged their detention, the US
Supreme Court in celebrated judgments like Korematsu and Hirabayashi, upheld the
executive action essentially on the finding of the existence of an emergency, after
describing in graphic detail the imminent threat of the Japanese advance.
The attacks on Sikhs in India after Mrs. Gandhis assassination, the attack on
Hindus in some Muslim majority countries after the demolition of the Babri Masjid in
1992, the attack on Americans in several Middle East countries after US attacks on
Somalia and Iraq and the recent attacks on Muslims (and Sikhs as extensions of mistaken
identity) in US after September 11, reflect the deep-seated racial, ethnic and religious
prejudices which seethe barely below the surface even amongst educated elite and can
erupt at slightest provocation even against admittedly innocent members of a class seen
to be at fault.

CANDID CAMERA
In view of two successive trips to New York, a second US miscellany may be
excusable. The Iraq war reflects the total self-centered nature of the US political
establishment, premised on unilateralism and accountable to no one except the
premeditated perceptions of a handful of Rambos in the White House. In tandem, some
of its most popular talk shows reflect the debasement of civil society in that country,
which appear to have touched astonishing levels of indecency and obscenity. Jerry
Springers Bizarre Betrayals involves live family audiences watching live confessions on
stage. A recent programme showed a stripper describing in gory detail how she had left
her boyfriend because she preferred sex with her sister. This is followed by the sister
coming on stage and contributing further details, followed by the boyfriend expressing
anguish and hurls at the sister who had stolen his girl. The two girls vehemently justify
the incestuous relationship.
The next episode involves a working woman complaining about her mother having
sex with her husband. The mother arrives to explain why she has always hated her
daughter who is neglectful of her husband as well as her mother. The son-in-law then
confirms his mother-in-laws version. Filthy, abuses are exchanged live on stage. Both
the ladies bare their bosoms and buttocks on stage while live bouncers appear to prevent
the mother-daughter duo from coming to blows. All this is done amid intermittent
audience applause.
Another episode is based on DNA paternity tests where husband-wife or
boyfriend-girlfriend pairs appear on stage and first debate whether the child (whose
photo is on a large screen behind) is actually that of the male concerned. The matter is
resolved with the anchor opening with much fanfare a sealed envelope containing the
result of the paternity test and declaring the male concerned to be or not to be the father.
Where the male spouse or boyfriend is proved not to be the father, a third man who
is alleged to be the father comes on stage. There are fierce altercations, abuses and
accusations after which the woman either reconciles with the spouse or boyfriend or
with the third man and leaves the stage. In some variants, the third man is found not to
be the father and the process is repeated with a fourth male. In one segment I saw that
the true father had not been found till the fifth man and the programme ended with a
promise by the organisers to find him by the next episode and with an expression of
hope by the mother that the same may happen soon!
The entire event involves many additional family members on each side, filthy
abuses, hysterical shouts and allegations, imminent physical blows prevented by
bouncers standing on stage and live audience participation and applause.
Whew! Definitely a case of carrying transparency too far. Undoubtedly, a case of
positively encouraging promiscuity and promoting bizarre societal values. One does not
have to be a Sushma Swaraj to know when the media has definitely gone far too far. But
the continuation and popularity of such shows (not by any means the only one) in
American society, as also the fact that they deal with true stories and real life situations,
is a clear reflection of the current state of its social morals and ethical values.

FOR CHARITYS SAKE
Indian and Asian concepts of philanthropy vary significantly from western ones.
For us, a majority of donations have always gone to temples, Dharamshalas or family
trusts. That is, if the entire estate is not willed to family members or squandered in fierce
family litigation. In the West, huge donations, including entire life savings, have been
made to educational institutions. In time, these institutions have grown to be the finest
and most renowned entities in the world, disseminating knowledge to millions around
the globe, irrespective of caste, creed or nationality.
John Harvard, a young student at Emmanuell College, Cambridge, and part of the
early batch of migrants from Britain to America in the wake of the Mayflower pioneers,
was lucky that a small and virtually insignificant donation of his books led to a fledgling
educational institution near Boston adopting his name and now shining forth globally as
the brightest beacon in the educational field. Even more interesting is the story of Elihu
Yale, a truly remarkable globetrotter. Born in Boston not far from Harvard he left for
London in 1653 at the age of four with his family, in a direction reverse to John Harvard.
He never returned to the US but his huge bequests to the country of his birth led to the
creation of arguably one of the best US universities Yale University. Elihu Yale made
his entire money in India trading in diamonds while setting up the Madras
Corporation, becoming the Mayor of present-day Chennai and then Governor of Fort St.
George. He married Catherine in Madras and separated from her later. Rumours of his
wealth having been amassed by illegal means have been eclipsed by his generous
philanthropy in later life and his colourful global image is summed up in his epitaph:
Born in America, in Europe bred/In Africa travelled and in Asia wed/Where long
he lived and thrived/In London dead.
Is there a lesson for Indian philanthropists and persons of Indian origin
(PIOs)/NRIs?

THIS CRAZY UNIVERSE
My list of legal and non-legal miscellany continues to grow. Over the past few
months, this crazy universe of ours continued to witness crazy events. On my first trip
to New Zealand years ago, I was proudly (and repeatedly) told by the friendly
inhabitants of this breathtakingly beautiful country that it is a country of four million
New Zealanders and 40 million sheep. Well, that figure may now have come home to
roost. New Zealand now proposes to levy a fart tax on farting belching livestock
because, believe it or not, methane emissions created by grass munching cows, sheep,
deer and goats accounts for about half of New Zealands greenhouse gases.
Meanwhile, German Chancellor Schroeder is arguing in a court that he does not
dye his hair and that allegations that he does prejudice him politically. The Chancellors
star witness is his barber who has sworn an affidavit supporting his case. No politician
in India appears to be apologetic about wearing wigs or dying hair. Nor, I might add,
about his baldness.
Finally, the sex capital of the West Amsterdam continues with its progressive
policies. Since 1988, prostitution has been treated as a legal profession; prostitutes have
been paying income tax since 1966 and profession has the status of a service-sector.
Now, Amsterdam boasts of a Hanky Panky School for Prostitutes to teach the worlds
oldest profession how to make more money. Vive le craziness!

WHY COLOMBO SITS UNEASY
It is ironic how, occasionally, the solution can become the problem. The Sri Lankan
Constitution is a classic example of this conundrum. It would be over-simplistic to
ascribe the recent crisis in Sri Lanka to any single cause. Given the tragic violence
suffered by the island State, the social, ethnic and political divisions affecting its
population, the enormous personality clashes between President and the Prime Minister
and the thin parliamentary majority enjoyed by the PMs party (the UNP), one may
marvel as to why it took so long for a constitutional clash to occur.
But any search for a single or predominant cause must hold the origin and structure
of the Sri Lankan Constitution guilty. On February 4, 1948, Sri Lanka became an
independent country and, as a former British colony, inherited its pre-independence
Constitution and a Westminster model of Parliament. On May 22, 1972, a new
Republican Constitution was adopted whereby the President was the nominal executive
and the legislature the supreme instrument of State power.
This position was changed on September 7, 1978, when the current Republican
Constitution came into effect. A significant feature of the new Constitution was the
introduction of the executive presidential system. Inspired by the French and American
models of government, the rationale behind the change in the 1978 Constitution was to
provide for an effective executive that was independent of the legislatures control.
Therefore, the 1978 Constitution provided for an executive President who was directly
elected by the people in a separate election.
The Sri Lankan executive President is the constitutional head of both State and
Government, as well as commander-in-chief of the armed forces. The President can also
summon, prorogue and dissolve Parliament and may continue in power
notwithstanding the dissolution of Parliament. The President is the head of the cabinet
and may hold more than one portfolio. Parliament, on the other hand, is the supreme
legislative authority and has the power to enact laws, including amendments to the
Constitution. Though Parliament can remove the President by an impeachment motion,
the process is complicated and cumbersome.
Even this short summary is enough to highlight the fundamental flaws of this
structure. First, it deliberately creates dual centres of power the President and the
Prime Minister and although the formers powers are vast and clearly superior, the
latter is no figurehead or constitutional cypher. The elementary principle of good
governance that two sources of sovereign power, like two swords, cannot coexist in the
same scabbard was clearly forgotten by the creators of the 1978 Constitution.
Second, while the major inarticulate premise of the constitutional document is the
existence of the same political party at both the presidential and the prime-ministerial
level there is nothing which ensures that this will necessarily happen each time. Good
luck and coincidence produced this synchronicity of political parties at both levels from
1978 till 2001. It was in 2001 that the dichotomy was emphasised for the first time. Since
then, Sri Lanka has been a nation waiting for a constitutional crisis to happen.
Third, the principal blame for this executive presidency model must lie with its
innovator, former President J.R. Jayewardene (JRJ) and with his advisors like Professor
A.J. Wilson. JRJ first mooted the idea way back in 1966 as deputy leader of the UNP.
Projected as the need for the executive to be free from the shackles of parliamentary
control, everyone seems to have forgotten the possibility of a President at war with a
hostile majority in the legislature.
Fourth, it is interesting that while some 33 Third World countries (but none in the
developed world barring the US) have adopted the executive presidential model, most
have suffered coups, martial law, dictatorships and suspension of the Constitution. In
contrast, two-thirds of the Third World countries which have adopted parliamentary
executive system on the British model have had greater success and stability and have
avoided breakdowns of the constitutional system.
The Sri Lankan system cannot be likened to the US one because of the duality
inherent in the twin offices of the President and the Prime Minister. Its closest analogue
is the French model which appears to have been JRJs favourite. Frances volatile history
spawned many Constitutions and the Fifth Republic model was inspired by Charles de
Gaulle to take care of this historical instability. But the Gaullist Constitution has not
been properly tested because the Gaullists continued to command a majority in
Parliament for a long time.
Finally, the remarkable prescience and foresight of the veteran minister and
commentator, N.M. Perera, had predicted down to the last comma and full stop
everything about JRJs 1978 Constitution in 1979 itself. Recognising that the five-sixths
majority which the UNP obtained at the 1977 general election was an untoward event,
Perera observed: It is inconceivable that the next general election will produce the
lopsided configuration that we witness today. It is more than likely that the political
complexion of the next Parliament would be different from that flaunted by the UNP
and its leader, the President of the Republic. How will he function with a hostile
majority in Parliament which can well refuse to carry out his policy?

PAKISTAN SNAPSHOTS
Having visited Pakistan four times earlier over a period of 17 years, my recent visit
did not have the mystery of the unknown syndrome which permeates most of the first
timers visiting our neighbour. But there were several factors which struck me as novel
qua my earlier visits.
Indian visitors are first awestruck by the grandeur of international airports in
Lahore and Karachi. Not only the young Lahore airport, but also the much older one at
Karachi would give a run for the money to any airport in the world. These airports
outstrip every Indian one in every department: from size to services available, from
cleanliness to efficiency, from gadgetry to grandeur, from charm and elegance to
organisational discipline. Indian Governments have clearly underestimated the
psychological consequences of such efficiently organised utilities which are the first
assault on visitors senses and their first interface with any host country.
The second aspect is the support enjoyed by Pervez Musharraf cutting across a
wide cross-section of the population. This stems from the perception that the general is
not personally corrupt and that in his over four years rule, no major monetary scandal
has occurred. That, by itself, is a rarity for most countries of the sub-continent and this
general perception is slowly but surely creating the halo of a platonic benevolent
dictator around the general.
A third factor which reinforces this image are the many appointments made by the
general, of technocrats and professionals enjoying an unsullied reputation. Unfettered
by the compulsions of electoral politics, Musharraf has eschewed crony capitalism and
appointed achievers to key positions. Even the generals critics and rivals commended
the appointment of the young Cambridge educated Attorney General Makhdoom Alam
as being purely merit-based. Incidentally, it was the AGs last minute intervention which
ensured timely issue of visas for a 50-strong Indian delegation visiting Karachi for the
10th SAARCLAW Conference. Such meritorious appointments have been made to
several other key positions.
Fourth, there is an opening up of Pakistani society and the permeation of a
distinctly liberal ethic in the politico-military-religious establishment. One can see it in
the clear absence of distrust on Indo-Pak issues. One can see it in Pakistans media that
write and speak more freely against religious orthodoxy and a conservative status quo. I
saw several TV programmes openly discussing marriage, morals and other issues
hitherto considered out of bounds. There are repeated suo motu assertions of the
negative impact of terrorism in general and how a global war on terrorism is necessary
to rid Islam from the taint of Islamic terrorism. Reform of madarsas and the necessity to
combat religious indoctrination distorting true religion are topics debated with an
openness unthinkable a few years ago.
Many first timers in our delegation were struck by the status of women in Lahore
and Karachi. They wear the best clothes and pursue the latest fashions. They are as
articulate and (almost) as visible at conferences, shopping malls, public places and in the
media as their Indian counterparts. They are ambitious and are entering the legal
profession in large numbers, although women judges at the High Court level are few
and in the Supreme Court a rarity. The only reason Pakistan does not have a Miss
Universe or Miss World is because it chooses not to participate in these contests. We
were interviewed by lady journalists, interrogated by lady rapporteurs, surrounded by
lady lawyers, escorted by lady organisers, and entertained by lady performers, all
belonging to the progressive and assertive Generation Next. Many stereotypes about
women in Islamic Pakistan harboured by Indian first timers were thus shattered.
Sixth, more and more Pakistanis in open public conversation are the first to assert
their admiration for Indian institutions of governance like the judiciary, the Election
Commission of India, the press as true hallmarks of core democratic values. In
comparison, Pakistani institutions have repeatedly suffered ravages at fledgling stages
of their development. But there is genuine envy with which Pakistanis recognise this
truth and with great candour they express it. It is this yearning for openness and
institutional continuity and this admiration for Indian institutions which bodes well for
the future of Pakistani and for Indo-Pak relations.
Many of the old paradigms remain. Several articles of common consumption
continue to be cheaper in Karachi than in India. All kinds of clothes and electronic
equipment are significantly cheaper, sometimes by as much as 50 per cent. The rich in
Karachi and Lahore continue to live more luxuriously than the rich in India (and that is
saying something given the lavish lifestyles of the Indian rich). Kashmir still remains
taboo as a topic in Indo-Pak social intercourse and vegetarians like me continue to find it
difficult to choose as far as cuisine is concerned.
Finally, the significance of NGOs like THE SAARCLAW in the building of bridges
and people-to-people contact cannot be overemphasised. The warmth, affection and
hospitality generated by SAARCLAW conferences over 13 years is palpable and
unrivalled in comparison to any European or American meet of professionals. Each
conference involves embarrassingly generous displays of hospitality and Indo-Pak peace
rhetoric.
Bonhomie becomes so pronounced that other SAARCLAW delegates remind us
that they are Saarcarians and not bilaterals engaged in Indo-Pak dialogue. Serious
initiatives like a legal framework for a Saarc Economic Union, Sapta and Safta, a SAARC
mediation and arbitration centre, a SAARCLAW University and for the framing of
model laws have been proposed. Though progress is slow, the enthusiasm for such
proposals is truly humungous.

U.S. AND US
Is the foreign policy of the US and India being subjected to the personal political
compulsions of George W. Bush and Atal Bihari Vajpayee in an election year for both?
Recent events certainly lend credence to this hypothesis. The US accepted burgeoning
evidence of Pakistans global nuclear proliferation with a whimper. No innocent babe in
the woods would accept non-involvement of Pakistani army Generals in the A.Q. Khan
episode. Yet, no one else is exposed and the entire event is given a decent burial by both
the countries. Pakistan was actually rewarded with a non-NATO ally status. Add to
this the lingering suspicion that the US knows of Osama bin Ladens exact location and
is awaiting a propitious electoral moment to smoke him out.
New Delhis reaction is equally absurd. First, there is continuous hype over Indo-
US strategic relationship and the Strobe-Jaswant dialogue. Then Colin Powell comes on
a remarkably low-key and unpublicised visit to India. No whisper of something as vital
as Pakistans non-Nato ally status is made. Powell hops across to Pakistan and makes his
announcement. New Delhi maintains a dignified silence when the opposition
protests, the government bleats we are disappointed by the US decision. Is the PM so
concerned about the feel good regarding Pakistan eight weeks before elections that
India swallows Pakistans new status with a whimper? Non-Nato ally status is not
merely symbolic; it carries significantly superior access to conventional weapons for
Pakistan. And if this is our strategic relationship with the US, God forbid Indo-US
disagreement.

FRIENDS IN AMERICA
How is the outcome of the US presidential election going to affect India? As far as
the US elections and the Indo-US relations are concerned, the more things change, the
more they remain the same. Not only is there no fundamental shift qua India, but there
are also more similarities in the foreign policy of Democrats and Republicans than
differences.
But here is an interesting conundrum. Traditionally, Democrat presidential
candidates have had larger support in India than Republicans. Ask the average Indian
on the street in India and either he will exhibit ignorance regarding the US elections or,
if interested, he is likely to react more positively to the names of Democrats like Bill
Clinton, Jimmy Carter and now, John Kerry than to the likes of Bush Jr. or Sr. Gerald
Ford, Richard Nixon or even Ronald Reagan. Indians in India have an emotive affinity
towards Democrats. Since India is clearly more left-of-centre than the US, our
subconscious bias in
favour of Democrats is not surprising. The conundrum is that Republican Presidents
have probably been more pro-Indian than Democrats.
Carter, despite being the only US President to visit India in 14 years until Clintons
visit during his second term, hardly took any pro-India initiative. Bill Clinton, perhaps
the most charismatic US President with a huge fan following in India, delivered nothing
for India. He was unyielding on India signing the CTBT and promoted US self-interest
by calling for closer interaction with Pakistan. Clinton imposed sanctions on India after
the 1998 nuclear tests.
High on Kerrys agenda is his near-obsessive singling out of the outsourcing of jobs
to India as the principal cause of US unemployment. He has strongly endorsed the half-
a-dozen US State-sponsored anti-outsourcing bills. He has supported a similar move at
the federal level and wants government to deny tax breaks to multinationals
outsourcing jobs.
Republican presidents, on the other hand, have been less strident on these concerns.
Neither the incumbent president nor his father made signing of CTBT by India a
condition precedent for support to Indias claim for membership of the UN Security
Council. Kerry has done so specifically. Bush Srs term saw considerably enhanced Indo-
US trade. Bush Sr. openly advocated greater trade with India and made the famous
statement, This coming century will see democratic Indias arrival as a force to reckon
with in this world. Some of the closest cultural exchanges between the two countries
occurred during the Reagan era.
Clearly, the Republican practice of unilateralism in foreign policy coupled with
Bush Jrs Rambo-like approach to Iraq in particular, contrasts badly in Indian perception
with the Democrats focus on multilateralism and global co-operation. This is the real
reason for Bushs unpopularity relative to Kerry in India, albeit concrete gains for India
during a future Democratic administration are far less likely than during a Republican
one.

TURN TURTLE
The US presidential election result would be known almost as you read this
although its not known to me as I write this. Let me, nevertheless, like the turtle, stick
my neck out and predict that George Bush is the likely winner. My prediction is based
neither on pre-poll analyses nor on any deep insight of US electoral politics. Instead, it
arises from the premise that presidential debates in the US are great media events and
mesmerize the chatterati (especially in India), but do not make any decisive difference to
the eventual outcome.
Just as electoral candidates the world over use gizmos, ad- gimmicks, film stars and
even booth-capturing, American politician, imitating Oscar nights, have chosen a clash
of the titans approach, replete with glamour and lots of style, but little of substance, to
bolster their chances of success.
The US debates date back mainly to Abraham Lincoln, who, having lost virtually 20
major and minor elections in his life, stubbornly followed presidential candidate
Stephen Dougles all over, shouting from the crowd for a debate. However, debates
didnt translate into a regular poll fixture till the 1960 Nixon-John Kennedy debates.
Although John F. Kennedy succeeded on ideas and ideology, the myth started that it
was the debates that did the trick. In comparison to a pale and sweaty Nixon, Kennedy
appeared young, handsome and articulate. The debates have been a fixture since then.
Its doubtful if debates really benefit confused Americans trying rationally to
decide who will be a better president. First, the audience watching these debates doesnt
appear to be a very large percentage of the voting public. Surveys and statistics suggest
that the viewership had increased from 66 million in 1960 to 80 million in 1980 before
dropping to approximately 40 million in 1996 and 2000. This is about 15 per cent of the
US population. Although the figures for the current contest appear to be larger, a
decisive impact of the debate appears to be a far-fetched theory. Second, surveys have
suggested that there is no proof or material to show that debates sway undecided voters
to make up their minds. They provide a comparative perspective of the two candidates
but dont delve sufficiently deep into policy formulations or nitty-gritty to convert an
undecided voter or indeed to sway a pre-committed voter from one party to another.
John Kerry has consistently been rated higher in the debates than Bush. If the latter
makes it, not only would it perhaps be better for India, but it may constitute a (partial)
validation of this theory. If the reverse is the case, I guess I deserve to meet the same fate
as the turtle ending up as somebodys soup.

MAKE THE CHEER LAST
The Bonhomie between Indians and Pakistanis at an individual level has never
been greater. Yet, there is a lurking apprehension that it may be too good to last or that
some diplomatic gaffe or terrorist attack will vitiate this ambience. On my first visit to
Pakistan in 1987 I have visited it six times thereafter I found the hospitality
overwhelming. At the end of the conference at Karachi, I realised that we were barely a
half-hours flight away from Mohenjodaro. While the temptation to visit it was great, I
remembered, to my chagrin, the city visa rule under which I had been authorised only
to visit Lahore, Islamabad and Karachi. When my hosts realised my dilemma, they
proposed that I take the next mornings flight and return the same evening without
bothering about the visa. To boost my Dutch courage, some of them pointed out that this
was standard practice whenever they visited Delhi without advance planning and
wanted to savour the charms of Agra, Jaipur or Ajmer. I thus committed the only serious
criminal offence of my life and spent one of my most enjoyable days at Mohenjodaro. In
retrospect, I can only ascribe this foolhardy excursion to my irresponsible youth coupled
with a highly under-developed sense of self-preservation.
Speaking for myself, I see no other way of solving the Indo-Pak problem and lets
face it, the heart of that problem remains Kashmir except for both nations to reconcile
to the LoC as the de jure border. Understandably, that cannot happen easily or quickly.
But continued engagement of the two nations in a multi-dimensional people-to-people
paradigm including social, cultural, economic, political and military CBMs will make
co-operation and bonhomie so irreversible that the acceptance of the LoC as the legal
border will become a populist imperative.
In the near future, those CBMs also need to be economic in nature. Increased trade,
accompanied by support structures like most-favoured nation status, Sapta and Safta,
will make the process of engagement irreversible. The more India and Pakistan get
intertwined, the more the political solution is likely to become a fait accompli.
Last, and most important, the leadership of each nation has to be willing to walk
that extra mile (as Egyptian President Anwar Sadat did with respect to Israel) and have
the vision of a statesman who can forgo short-term egos for long-term solutions. I have
little doubt that the Indian political leadership will be able to take that leap, if and when
the time comes. That is because of Indian democracys strength which allows all parties
to rise to the occasion at critical times.
Whether Pakistans leadership can do so, because it is not a functioning democracy
and continues to be dominated by the three As (albeit in periodically varying
proportions), viz., America, Army and Allah, remains to be seen. It is here that forward-
looking leaders like Musharraf remain Indias best bet. No doubt his hands are sullied
with Kargil, but he is a modernist with a good hold on the army and a comfortable
working relationship with the US. More importantly, it appears presently it is only my
subjective belief that he is animated by a desire to go down in history as the one who
started as a military dictator but demitted office as a statesman who brought a lasting
solution to Indo-Pak problems. Even if one were to assume that he is doing it under US
pressure a view not borne out by my feel when I visited Pakistan recently history
teaches us that people start living up to the image they try to create for themselves. For
the good of India and Pakistan, let us hope this is so.

NUCLEAR ISSUES
Apart from the larger issues of Indo-US relations thrown up by the PMs recent visit
to the USA, the nuclear supplies issue has generated a flurry of responses and writings.
The BJP condemns it as a sell out, more specifically alleging that India has given firm
commitments to the USA in return for mere promises and assurances. Some sections of
the Left have criticized it in varying degrees of severityas not taking Parliament into
confidence and not involving them with sufficient transparency. Academicians,
technologists and foreign policy experts have taken varying stands, mostly supportive
and occasionally partially critical. Amidst all this, the reaction of the common man is
largely indifferent, especially because of the thicket of jargon and technicality that the
subject is shrouded in. Some facts have to be appreciated to cut to the core of this debate.
Firstly, the worth of a bargain has to be seen in the context of the options available
to India and the current nature of the status quo and not in an abstract sense. It is an
undeniable fact that the energy mix of this country is heavily skewed in favour of coal
and oil, making us overdependent on these resources and to the consequent vicissitudes
of international oil politics, diplomacy and price blackmail. It is amazing that nuclear
power accounts for barely 3% of Indias energy needs, whereas the global average is
approximately 50%. In several countries that figure is 70%. These countries are able to
stand strong in the face of unfair market and political practices in the oil and coal
markets, precisely because of the availability of alternative nuclear energy at cheaper
rates.
Secondly, it is equally well known that for the past several years, most of our
existing nuclear plantsfrom Tarapore to Kalpakkamhave been floundering because
of complete international isolation as far as supplies of enriched uranium from abroad is
concerned and scarce availability of domestic natural uranium. The mines at Jharkhand
are insufficient to support the additional nuclear energy capacity projected for the
countryagainst even the original paltry expectation of 10000 MW capacity intended by
2000, India has achieved only a third of that figure. In fact, the need is for approximately
20000 to 30000 MW and we are a far cry from that. The only other major source of
domestic natural uranium in Andhra Pradesh has been embroiled in environmental
controversies since it abuts a forest area. This reality has been documented and
specifically adverted to in the Mid-Term Plan Appraisal of the Planning Commission
released only a month ago.
Thirdly, it is in this context of urgent need and very low availability that the Indo-
US declaration and protocol was signed. It is important to remember that it is not a
multilateral treaty. India has not signed the NPT or FMCT or any other UN treaty
changing its existing stand on basic nuclear issues. Under the Indo-US declarations, USA
has agreed to use its best efforts to ensure and arrange nuclear fuel supplies, technology,
raw material et al for India and to push all US allies to do so.
Secondly, the US would take steps to amend its
domestic laws to make this possible and to seek to
amend the Nuclear Suppliers Group (NSG) rules to
enable India would also receive such supplies. The
NSG is the exclusive club of nuclear material
suppliers which operates as a cartel and oligopoly in
denying supplies to blacklisted countries like India.
Fourthly, it is left to India and India alone to
continue with its military nuclear programme and to
decide its size, scope, nature, direction and content.
India remains committed to possession of a certain
size of nuclear arms as a minimum credible nuclear
deterrence. How much material and how many
plants we need to maintain that deterrent is for us
alonefor our scientists, military strategists and
ultimately the civilian government to decide. That
part will be segregated by India. That part will not be
subject to any international scrutiny or any external
supervisory regime. Even the size and scope of that
part of our military nuclear programme can vary in
future according to exigencies and periodic
reassessment of the threat perception.
Fifthly, and as a natural consequence of the
preceding point, USA and therefore, the entire
international community has, for the first time since
Independence recognized India, albeit indirectly, as a
military nuclear power. That is a sea change from the
sanction oriented mindset after Pokharan II.
Sixthly, a part of this is precisely what the NDA
government tried for several years to achieve through
the achinghly long winded Talbott-Jaswant Singh
talks. This is not even denied by the BJP and affirmed
in Talbotts own book. Having themselves failed to
achieve a smaller subset despite several attempts, it is
hypocritical and opportunistic for the BJP to go
ballistic against a better, more comprehensive and
holistic deal achieved in the first year of the UPA
government after a highly successful US visit where
India and the PM were treated with unprecedented
warmth, hospitality and respect.
Seventhly, India has agreed to voluntarily subject
the civilian part of its nuclear programme to
international inspection and scrutiny. In principle,
this is unexceptionable and in view of complete
Indian flexibility and discretion regarding
segregation, cannot by itself be controversial.
However, criticism arises in the context of dual
usinga phenomenon under which the material
used at some of our civilian plants is subsequently
diverted in its depleted, after-use state to military
installations to be used for the atomic bomb. Even
that activity, if desired to be undertaken, is not
inhibited due to the complete unilateral discretion
vested in India to designate civil versus military
installations and to alter that classification at its
discretion. In any event, it is doubtful whether dual
using, leading to manufacture of second grade dirty
bombs by depleted material is a long term policy on
which any mature nuclear power State would rely.

SOCIETY
Social norms, habits, etiquette, rules and regulations define the content and
boundaries of a plurastic nation. This is more true of India than perhaps any other nation
since India has a truly bewildering diversity of languages, ethnicities, religions, colours
and noises. These constitute both its strength and weakness: a unique and indivisible
package deal for Indians.
This section deals with the peculiar Indian trait of not retiring whether from
politics or from the professionsdespite the unique Indian gift to civilisation viz.
Vanaprastha. The paradox of the West actually practising Vanaprastha without either
inventing it or preaching it, while Indians preach it ad nauseam and ad infinitum
without practicing it, is highlighted by the author. A column on Value based education
emphasises the absence of a holistic approach in the Indian educational system, a system
which does not thread together the vital concepts of Jnana, Darshana and Charitra. The
author believes in Acharya Mahapragyas admonition that in our educational system,
memory has been given high value, intellect less and intuition the least.
The author gives a list of the unusual and bizarre - from West Bengals Pankha
puller drawing Rs. 2,250 per month to the habit of serving Indian food with knife and
fork but no spoon - while lamenting the dangerous problem of confusing signages on
ladies loos. He analyses global systems and safeguards designed to prevent intrusive and
irritating telemarketing calls (now also the subject matter of a PIL in the Supreme
Court). There is a frontal attack on the construction industry - especially the juggernaut
of contractors, architects and sub-contractors - with the author recounting his personal
experiences in the light of a well-known Indian saying about the three curses of life.
Changing paradigms in lifestyle and thinking even in the staid legal world are discussed
by reference to Apex Court judges as far apart as Australia and South Africa declaring
themselves homosexuals.
The section has a critical analysis of the demographic crisis confronting India in the
foreseeable future. The author attacks the common Indian perception that population can
be controlled by targets and incentives as a myth and makes several concrete suggestions
for improving demographic governance. He also makes an innovative proposal for
existing court holidays to be restructured for greater efficiency without adding to or
subtracting from the total quantum of holidays. There is an interesting piece on the
considerations affecting the writing of an inaugural newspaper column.
GREAT INDIAN CLING-ON SYNDROME
Two entrenched features of Indian politics and public life which are undesirable
and need to be changed area compulsive resistance to graceful voluntary retirement or
withdrawal and absence of bipartisan support for talent, irrespective of political
affiliation.
Hardly anyone in India retires unless he is forced to do so. Politicians, journalists,
lawyers, doctors, et al, virtually go on for ever unless debilitating disease or old age
makes it impossible for them to do so. No judge leaves before his retirement age and
almost all vigorously offer themselves for post-retirement sinecures.
I know of several judges in the House of Lords who gave up judicial office two or
three years before the superannuation age of 75 to pursue interests like golf, gardening
or travelling to distant lands. I know of top lawyers who gave up law practice in their
late sixties to pursue literature, music or art. There are several former Prime Ministers
and leading Cabinet Ministers in the West who have gracefully withdrawn from public
life in their sixties to live happy lives as uncomplaining citizens.
No doubt the low retirement age for Government servants and judges in India, as
also the lower pension and post-retirement monetary benefits, has something to do with
the different paradigms in India.
But it is also a question of approach to quality of life, coupled with the absence of a
sense of satisfaction and security among our public figures. It was India which invented
the supreme philosophical concept of vanaprastha as an essential stage of life (after
brahmcharya and grihastha) and before seclusion as a recluse in sanyas. Vanaprastha
essentially constituted a gradual and graceful withdrawal from material activities to
other interests of life while the individual was in full command of his mental and
physical faculties.
But vanaprastha is conspicuous by its absence in Indian public life. A case of India
preaching without practice was reminded of the second feature of Indian politics and
public life when I saw United States President elect George W. Bush nominate Norman
Mineta, a Japanese American who is currently serving as Secretary of Commerce in Bill
Clintons Cabinet as the new Transport Secretary in the incoming Republican
Administration.
I believe Bush underlined a key missing element of Indian politics and public life
when he said, Its important to send a signal that this is an administration that
recognises talent when we see it regardless of political party. I wish one could see more
of this in India. It is easy to dismiss it as an example of a different constitutional scheme
in the US which it no doubt is. But it is a reflection also of approach, a thinking process
that seeks to harness and unite talent transcending petty political divides to work in the
national good for public interest. The response of Clinton, Al Gore and Mineta was
equally instructive. When the latter contacted the first two, both the incumbent
President and Vice President gave him their blessings. Mineta accepted Bushs invitation
saying he continued to be a Democrat, proud of and committed to his partys principles,
but that, he must move on from divisive campaigning to constructive governance.

OF SAVVINESS
This is the true story of how one of our domestic servants exemplified the true
distinction between words like education, information, knowledge, wisdom and
erudition. And also, how, all these qualities differ fundamentally from street smartness
or as the Americans call it, savviness.
Sanjay, barely 18 years old, had a slight limp on account of an old accident. He was
completely uneducated, having drifted out of school somewhere after his primary years.
He had been working with his previous employer since the age of 12, since, his father
had a large family to support.
The first thing that struck one about Sanjay was his amazing and supreme self-
confidence. We have an elderly cook who has a natural tendency to boss over all
servants and so subtly recruits them as his kitchen assistants or helpers. Inducement of
tasty morsels must have something to do with his hypnotic powers. From day one,
Sanjay put him in his place. Not only did Sanjay retort tartly whenever the latter asked
him to do any chore of his (i.e., the cooks) but within a few days Sanjay had also
demarcated all jurisdictional boundaries. The fierceness of Sanjays retort meant that the
cook stopped bossing him within a few days.
The second striking characteristic was Sanjays natural leadership abilities.
Although he could read and write only superficially, he was very good with his hands
and soon mastered the operation of electronic equipments in the office. Minor faults
with the printer, fax machine, photocopier, electric kettle, inverter et al were soon being
attended to by Sanjay. By knowing the first few words of the case list and being gifted
with a sharp memory Sanjay was uncannily able to locate several case files whenever
required urgently. These result-oriented abilities coupled with his supreme self-
confidence meant that almost all my peons, clerks, telephone operators, receptionist and
other staff soon started looking upto him for solutions and for help in exigencies. He
would dispense his advice freely and with aplomb and his quick wit and repartee made
him a natural illiterate leader amongst a host of educated persons.
The third quality was his sense of self-preservation coupled with a sense of
anticipation and a great ability to think on his feet and act quickly. He would do his
work but never an inch more and infact liked to be lazy whenever he could. But he
would anticipate my schedule and my activities so well that he would successfully do all
his lazing whenever I was away or otherwise preoccupied. The result was that he
always seemed to be available and working whenever in my vicinity, but would equally
steal the maximum amount of time off by sheer planning.
He could respond well on telephones, remember to give me names and addresses
of those who had telephoned late at night, bark orders to all and sundry (including other
domestic servants and staff), provide instant advice and generally strut around. Several
of my educated staff, including the one with an MA (Pol Science) and also my
accountant were way behind in speed of response, solution oriented approach and in
self-confidence. They could implement instructions to a certain extent but faced with a
slight variation or a new paradigm would invariably revert back for further instruction.
Sanjay just did not bother he jumped into every swimming pool of issues or problems
or questions and invariably managed to swim through.
Long before he had to leave us to attend a family problem in his village, he had
tellingly taught me that education is only a very-very small part of a persons makeup
and character. A large chunk of it has to do with the mysterious genetic code which God
alone writes and the other large part of it has to do with the laboratory of life and
experience. Without the right genetic code and a rich and varied experience, no amount
of education or imbibing of information or other knowledge can endow anyone with
many of the qualities which Sanjay had.

A LOO PROBLEM
Loos are getting more and more complicated. At Delhi Airport, the over
complicated designs on the door of men and women loos have meant that I have
narrowly missed entering the ladies section on more than one occasion.
Why cant people draw men and women figures properly anymore? Is it because in
real life they are anyway indistinguishable? Or because we are heading for a unisex
universe with gender-less concepts. And why have we stopped using simple three letter
words like Men or Women or even the more imaginative ones like King & Queen?
Second, many fancy loos, especially at Paris airport, have common entrances and
even common sink and basin areas for men and women. Within this common area, a
small section is hived off for men to do their thing standing up along with a row of
enclosed toilet rooms (with WCs) for common use by men and women. It all makes life a
little difficult and is hardly the most relaxed or peaceful way of completing ones
ablutions while looking over ones shoulders!

LIVING ON THE EDGE
There are a bewildering array of irritants which average Indians are saddled with
and dream of eliminating from their lives.
Fiercely competing and vying for the top slot are 72-hour electricity breakdowns
(especially when one has scheduled relaxed evenings on a Friday or a Saturday); dry
taps when we are getting ready to go to office; the strong likelihood of self or family
member being eliminated from Mother Earth by a speeding truck, bus or a BMW; the
high probability of meeting a sudden violent death by murder, rape, manslaughter or
assualt coupled with the certainty of the perpetuator either not being prosecuted or
definitely dying a natural death midway between his 20-years trial; the cold comfort
of knowing that if you survive the foregoing, asthma, bronchial infection, lung failure,
skin disease, cancer or a host of other pollution-related diseases will get you; and in any
event you will not get admission to any decent hospital or the hospital treatment will
kill you.
My dilemma of choice is as acute as the unending list of woes of the common
Indian, that bewildered, lost and confused man who, unfortunately does not exist only
in Laxmans cartoons.
Since this list can be multiplied ad nauseam and ad infinitum from the scourge of
the four Cs (communalism, criminalisation, corruption and casteism) to the state of our
fractured consensus in society and the polity, to the absence of any overarching spiritual
vision (as Vivekananda, Aurobindo or Gandhi had) to our exploding demographic crisis
and so on and so forth it is best not to exacerbate my dilemma of choice and to ask a
different kind of question altogether. Despite all this, why do we miss our country when
we are away from it, why do we often feel thankful for the small mercies of India when
some of us travel to certain other countries whose names need not be mentioned.
The candid answer is that somewhere in all this mess, somewhere amidst all this
madness, there is a spirit of India which is indomitable, there is a residuary resilience
which allows us to bounce back and there is a warmth and spontaneity which is real and
palpable.
Though our list of small mercies may not be as long as the other list I talked about
earlier, but it is not inconsequential either. We are and remain a vibrant, throbbing
democracy. The chaos is there but from it emerges true freedom, maybe democracy sans
discipline but true democracy nevertheless, which we all tend to take for granted.
We have to only travel to some of our South Asian neighbours to appreciate the
stark and telling contrast on this one fundamental criterion alone. We have a totally free
Press, perhaps too free because our legal structures are too lax to give any real teeth to
the defamation laws existing on our statute books. A visit to even the developed South
Asian tigers and a cursory look at their newspapers will demonstrate the contrast
between insipid sanitised Press reporting and the spicy diversity which is the essence of
the Indian fourth estate.
Our huge pool of trained technical and scientific personnel and the superlative
scintillating successes of members of the Indian diaspora worldwide have made Indians
hold their heads high.
We have won several wars, we have hung together after a debilitating non-violent
war of freedom from colonial imperialism, we have survived despite back-breaking
poverty and our best and brightest in every field are as good or better than the best and
brightest elsewhere.
All these are no mean achievements. And so we have a right to dream, to dream
that many of the ills of my first list will slowly vanish as we concentrate on the huge
untapped ocean of potential which is manifested in my second list.

SEX, CRICKET AND THE RESHUFFLE
Three seemingly unrelated issues over the last fortnight the alleged Punjab sex
scandal involving government servants, the Delhi High Court litigation involving
cricket and the recent Cabinet reshuffle illustrate and underline the point that
appearances are more important than reality, and core issues can easily be submerged,
camouflaged or lost depending on how the issue is dressed up or an equation presented.
The Punjab scandal can be described as one only if the investigation factually proves
that something happened between an IAS officer and the wife of another.
Numerous factual questions remain unanswered: Was it a case of victimisation by
Haryana Police because of the underlying Punjab-Haryana governmental political
rivalry; did any one at all see the couple committing any indecent act?
But leaving aside the factual thicket, surely the real issue which was lost in the
cacophony is whether there is anything illegal or immoral if two consenting adults have
sexual intercourse behind closed doors?
Legally, there appears to be no bar unless the offence of adultery is made out. For
that, there has to be a witness of the actual act of intercourse between a man and a
married woman whom the former knows, or has reason to believe to be married.
That is why, convictions for adultery are virtually unknown. Even in the unlikely
event when the woman herself is a complainant, criminal conviction, beyond reasonable
doubt, is nigh impossible. This is apart from the larger issue as to whether we should at
all retain as antiquated and anachronistic an offence as adultery where the consenting
female partner is treated as the victim. Clear issues of discrimination would also arise in
respect of the man alone who can be accused of this offence if the same is put to serious
constitutional challenge.
The Punjab officer may have violated some service rule, but that can only lead to
departmental enquiry and action. Many service rules themselves deserve careful review:
Remember the astonishing width and amplitude of the rule in the armed forces creating
the infraction of stealing the affections of an officers wife. The issue would, of course,
be different if sexual intercourse or indecency is committed in a public place.
The second issue, relating to cricket and the courts, is still sub judice before Supreme
Court, but the real issue here again appears to have been submerged in the public and
journalistic outcry about cricket patriotism, cricket jingoism and the perceived
prejudicial effect of the ICC contract on Indian cricketers.
The real issue that Supreme Court still is to finally decide on is whether
international contracts solemnly entered into with non-resident foreign parties by BCCI
or other Indian entities can be injuncted, altered or interfered with by judicial orders of
Indian courts in exercise of writ jurisdiction in an alleged PIL. Equally important is the
issue whether such writ jurisdiction can be exercised in the face of foreign arbitration
clauses in such international contracts, and whether unrelated third parties can activate
the judicial process by way of alleged PIL in respect of private commercial contracts.
For such clinical legal issues, which Supreme Court will ultimately decide, it cannot
help matters if jingoistic slogans regarding Indian cricket and Indian cricketers versus
foreign regulators are injected into the debate. The reader of this column is, of course,
entitled to discount some of these views since this columnist was a counsel for one of the
foreign sponsors in the Delhi High Court.
Lastly, the recent Cabinet reshuffle and the atmospherics of activity, change, hustle
and bustle can easily be mistaken for improvement, progress and development. But
again the real issues are forgotten. This is probably the Prime Ministers 10th or 12th
reshuffle. Is lack of continuity and stability normally the hallmark of chaos and
confusion being dressed up as constructive change and progress?
What exactly is the logic for C.P. Thakur to suddenly vanish from the ministerial
scene and to suddenly make a reappearance? Has an unsuitable boy suddenly become
a suitable boy? And similarly if Shotgun Sinha is not good enough for Health, how is
he good for Shipping? Or is Shipping irrelevant to India? And will the Prime Minister
explain the logic of first unceremoniously removing Mr. Krishnamurthy from the post of
party president and then making him a Cabinet Minister, only to take away this post
equally unceremoniously? Then the Prime Minister takes the unprecedented step of
publicly explaining how he offered an alternative portfolio to Krishnamurthy, but he
declined.
Finally, poor Nikhil Choudhary himself tells the world at large that it would have
been better if he had not been appointed a minister six months ago. Clearly the attempt
is an ingenuous one to substitute form for substance and create a mirage of productive
progress.

LANDED WITH LOOPHOLES
Mr. A, an average, lower middle class, hardworking salaried employee puts his
lifes savings to buy a small flat in a builders apartment block of 10 small flats. Mr. B, a
middle-class self-employed yuppie does the same in another, more up-market locality,
pooling in all his resources and getting a substantial bank loan. Mr. C, a
multimillionaire, non-resident Indian buys the most expensive rooftop penthouse with
glass floors, swimming pool and terrace garden in the heart of Lutyens Delhi, and is
happy that a few millions of his hard earned US dollars have been invested in the city
where he spent his youth and went to college.
All three people come from three completely different sections of the society,
owning three different properties in three different localities, built and sold by three
different builders. They get a nasty shock when three, or even five years after moving
into their flats, living in them or having rented them out and after even having further
sold it respectively to D, E and F, they find one fine morning, an auction sale notice in
one of the leading newspapers advertising an auction sale of their own property!
Frantic inquiries reveal that the title deeds of the plots of land on which the entire
apartment block of 10, 20 or 50 apartments had been built, had been handed over by the
builder of the apartments to a bank to raise a hefty loan five years ago with which the
apartment was constructed.
In law, this handing over of title deeds has created what is called an equitable
mortgage. The bank, some of whose officials may well have even advanced the loan to
the builder in the first place (and have usually retired by now), after attempts to reclaim
the loan, find the builder absconding or simply untraceable or worth no assets. The
bank, therefore, seeks to recover a small fraction of its dues by putting to sale the
property whose title deeds it holds. It is significant that these are title deeds of the land
on which the apartment building stands.
Ironically, each of the apartments sold already have agreements to sell, and sale
deeds executed between the builder and the apartment buyer, and the apartments were
themselves not even in existence at the time the equitable mortgage with the bank was
created.
Indian law provides no real or efficacious remedy to the hapless Mr. A, B or C. They
may sue the builder, they may file criminal complaints for cheating and fraud, but all
that is in the realm of eternity, and adds a new dimension of harassment to an already
beleaguered victim.
The crux of the issue the absence of any official mechanism to check and to ensure
the legality, validity and conclusiveness of the title at the inception, prior to when a
prospective flat-buyer seeks to buy and invest money still has not been addressed.
Simple solutions are available, but not enacted or implemented. A central
computerised land registry office must be operationalised. In any property transaction
land, bungalow or apartment sale this office must issue an NOC, certifying that the
title deeds of the property in question in existence are valid and have not been
encumbered.
All mortgages or their encumbrances of any kind, before having any legal validity
or force, must be compulsorily registered with the same central computerised office. The
computer will ensure immediate checking and tracing, not by reference to names of the
parties, but by reference to property number and location. Innocent buyers would not be
devastated and ruined then. But if such simple legal amendments of a few sections were
done overnight, India would not be India.

EXASPERATING QUESTIONS
Some exasperating questions which one frequently feels like asking in India are:
1. Why are there two Shatabdi trains leaving Delhi for Ambala, the first one at 5.15
p.m., every evening (and going to Chandigarh) and the second one departing at
5.25 p.m., everyday and terminating at Ambala? Having missed the first, I took
the second and found the whole train inhabited by a total of five passengers.
If Mr. Nitish Kumar has funds to spare, I can suggest several more useful
developmental projects for his attention.
2. Why do the vast majority of wedding invitation cards contain programme details
of the groom and bride, and also the maternals and paternals, including the
venue and address for the wedding/reception?
Yet, invariably, they do not contain the senders postal addresses? The few that
do, have it on the envelope which is quickly consigned to the dustbin.
It is maddening if you want to reply regretting your inability to attend.
3. Why are most of the so called young turks in any political party above 50 years
of age?
Take for instance, Rajnath Singh and Pramod Mahajan in the BJP, and even
Digvijay Singh in the Congress (if one can attach the word TURK to this soft-spoken
CM).
Even the original YTs, Chandrashekar and Mohan Dharia, had crossed 50 by the
time they earned this sobriquet, speaks volumes about Indias political gerontocracy.

STARING INTO COLUMN SPACE
An inaugural column raises several issues starting with the very raison detre for its
commencement, its title, its frequency, length, subject-matter and so on. It would be
presumptuous to suggest that this column fills a vacuum or deals with any unoccupied
slot. It does neither since I propose to talk of any subject under the sun.
A column permits one to communicate on a number of issues and articulate
thoughts which are ever present to ones mind but rarely find expression. Law,
governance, politics, current affairs, social trends and, of course, gossip provide
innumerable opportunities to highlight a facet which others may have missed.
If this can be done within the space of 900-1,000 words and if it can set even a few
minds thinking, it would have served its purpose. For the reader, a column avoids the
turgidity, the detail and the length of an article. For the contributor, it allows the making
of a telling point in the shortest number of words provided he avoids flippancy and
superficiality. A monthly column lacks continuity while a weekly one may lead to
repetition and staleness and so I have opted for a fortnightly model.
The choice of title involved some dilemma. I flirted with Candid Corner, As I See
it, Take It Or Leave It, Musings and Reflections before settling for the first. Ideally, I
would have liked to title the column The Sunday Gentlemen, because during one phase
of my teens, I had devoured several Irving Wallace novels, including The Prize, The Seven
Minutes and so on, but none had impressed me as much as The Sunday Gentleman.
Wallace starts the book by describing it as a collection of essays written by him on
Sunday, when he could do and write on what pleased him most. Whereas what he did
and wrote on the other six days of the week was done for commerce or profit and not for
pleasure. This is partly true of my column which permits me to become, howsoever
transiently, a gentleman every fortnight. Needless to add, that should not be
constructed as a confession of ungentlemanly or roguish conduct for the rest of the
week. But since this column will appear every fortnight on Wednesday, I have not used
my favourite title for it.

LAWS COURSE DIVERTED
Lawyers and legal philosophers have long known that judicial decisions, as also
legislation, have frequently been used to legitimise illegitimate political action or extra-
constitutional activity. The infamous Dred Scott decision of the US Supreme Court in the
late 19th century imparted legal validity to the pernicious practice of slavery. Liversidge
v. Andersons decision by the British House of Lords during World War II did the same
for some indefensible executive action in respect of detention. In the Sixties, the Pakistan
Supreme Court legitimised extra-constitutional coups by military dictators by invoking
German jurist Kelsons grundnorm and holding that when political reality and social fact
changes, the law has no option but to recognise the new reality, howsoever illegal and
tainted be its origin and howsoever unconstitutional its existence.
The A.D.M., Jabalpur decision by the Indian Apex Court validated action under
MISA regulations by resort to some legal acrobatics holding (Justice H.R. Khannas
famous dissent notwithstanding) that even mala fide detentions during an Emergency
proclamation would be judicially unreviewable. The US Supreme Court similarly
upheld the segregation, exclusion and detention of US citizens of Japanese descent
during World War II in the infamous Korematsu decision in the wake of the attack on
Pearl Harbour.
Musharrafs Pakistan continues this hallowed tradition. The President assumed
office with a declaration that kept the 1973 Pakistan Constitution in abeyance. Executive
orders by him (called Provisional Constitutional Orders) thereafter required all judges to
take a new oath of allegiance to the Musharraf Constitutional Orders. Most judges fell in
line.
In Syed Zafar Ali Shahs decision, the Pakistan Supreme Court valildated
Musharrafs assumption of power, holding that his keeping of Pakistans 1973
Constitution in abeyance is justified on account of State necessity and he, having
validly assumed power by means of an extra-constitutional step, is entitled to perform
all acts< in the interest of the State and for the welfare of the people. Obviously, the
learned judges were unfazed by the contradiction implicit in the above quoted words.
Now, Musharraf, the President, Commander-in-Chief, Chief Executive and much
more rolled into one, has used the same powers to increase the retirement age of the
Pakistan Chief Justice and his brethren from 65 to 68. This is done a few weeks before
the retirement of the incumbent Chief Justice, Riaz Ahmed. Needless to add, all these
gentlemen were privy to upholding the Generals assumption of power. Vive le
legitimation!

ALL FOR LOVE
Here is yet another ringing reaffirmation of the principle that love hath no
boundaries and beauty lies in the eyes of the beholder. Joanne Rymell, a senior
production manager of the multinational Nestle, left her career and her urban home in
Surrey, UK, and now lives in a beach but with the son of a tribal chief on the Pacific
Island of Ovalauan in Fiji. For the migration, she liquidated her lifes savings and lives in
a one-room hut on the island in the middle of nowhere, with no telephones. She cleans
her teeth with a twig, has a diet of fish (which her husband EPI catches with a spear),
fruits and cocunuts and depends on herbal remedies to cure illness. The nearest hospital
takes a day and a half to reach.

WEDDED TO OPULENCE
The wedding season is on and merrymaking is in the air. So let me apologise for
being a spoilsport. Opulent weddings now support a Rs. 50 billion ($ 1 billion) industry
in India. But what is good for the GDP may not be good for the individual, family or the
community. Indians wishing to make a statement may not yet do an underwater
engagement followed by an aircraft wedding, but they are already going in for imported
flamenco dancers, Egyptian belly-dancers, Dom Perignon in crystal stems and
farmhouses redesigned as the White House. Guests are flown in chartered jets and
helicopters do the Rajendra Kumar Baharon Phool Barsao equivalent of showering rose
petals on the couple. Lavish has acquired a new definition. But crucially, the
quintessential cozy family gathering associated with earlier lavish weddings is now
missing.
Garish, vulgar ostentation and unmanageable size apart, some rightly worry about
a third issue: our mania with extravagance is inversely proportional to our appreciation
or regard for the theological, spiritual or moral significance of the event. This may
extend to rendering not only the actual ceremony and the priest redundant but even
ignoring the bride and groom themselves in the fierce competitive face-off between
corporate families and powerful caste groups on each side.
Fourth, the time is not far away when pre-nuptial written contracts and
post-divorce covenants invade Indian matrimony in an age of prosperity for lawyers
who draft them, but will spell doom for the institution of marriage itself. Fifth, and
perhaps most important, the emulation syndrome which makes not only rural but
middle-class families run up huge wedding debts has a cascading effect down the line,
inextricably intertwined with social evils and pernicious practices like dowry deaths and
the aborting of female foetuses.
The solution cant be a paternalistic law banning or providing for coercive policing
or regulating lavish weddings, although it is interesting that the governments of the
UAE and Vietnam have taken official positions opposing flamboyant weddings and
even imposed fines and punishments upon those who violate such strictures. Only two
paradigms, sensitively and consistently applied, can produce results. The first is
education and information, propagating the adverse effects of such garishness and
converting the social ethic into one of opprobrium for such events. The second is to lead
by example.
Long ago, I had thought that many well-off families should first decide as to what
they would normally plan for their childs marriage. Assume it is two functions
including two dinners for 1,000 invitees at a five-star. If the budget for the entire
wedding is, say Rs. 20-40 lakhs, and the parents or the couple then decide to convert it
into a tea reception, the cost would reduce, maybe, by half. This half (Rs. 10-20 lakhs)
should be used to feed beggars or provide food to an orphanage for a year. Some of
these solutions deserve a try.

HOLIDAY PLANS
With the holiday season on, the recent debate on never ending holidays in India
may be deemed a spoilsport. We work 164 days a year, our weekends, national holidays
and other options give us 201 holidays a year, our national holidays number 17, more
than most other nations, we have too many religious non-secular holidays and so on.
We are comparable only to France (with its penchant for French leave) and the UK, but
far behind the US, China, Japan and Saudi Arabia (the last named gives only two and a
half hours off even on the death of a monarch!). Naturally, these figures do not include
the man-days lost due to strikes, go-slows and dharnas.
The legal profession with its one-month June holiday (two months for the Apex
Court) and its liberal dose of Dussehra, Christmas and spring holidays has been highly
criticised on this account. This is uncharitable since Indian judges at virtually every level
dispose of more cases in one week than judges of other common law cultures do in one
year. Our Apex Court deals with approximately 500-600 miscellaneous cases every
Monday and Friday and a large number of final hearing matters between Tuesday and
Thursday. The House of Lords in the UK and the US Supreme Court deal with not more
than a few hundred cases in the whole year. This, of course, is no excuse or apology for
the scourge of adjournments which are the bane of our legal system.
As far as the lawyers are concerned, what is required is a redistribution and
rationalization of the court holiday schedule to ensure a more efficient working year.
First, I propose the deletion of two weeks from the long two-month summer vacation of
the Apex Court and the relocation of one week each out of this in mid-February and end
August. This simple change will ensure a one-week holiday for every six weeks of work
throughout the year without increasing the current total of holidays. Second, all courts
in a particular city (e.g. the Supreme Court, Delhi High Court and District Courts in
Delhi) must have a common calendar of holidays since practitioners in those courts are
frequently common.
Third, we must increasingly apply the 7.30 a.m. to 1 p.m. pattern of court sittings
(with an half hour break from 10.30 to 11 a.m.) in more and more High Courts (and even
the Supreme Court) across the country during some or all of the summer months from
April to August, subject to regional exceptions and variations. This system has been
working well for many years in States like Rajasthan and is a far more efficient working
pattern for the hot summer months.

BUILDING A FIRM FOUNDATION
How many of us have had the dream of building a home and the nightmare of
actually doing it? Twenty five years after constructing a small farmhouse in the
euphoric vigour and vitality of my youth I made the mistake of repeating my mistake,
except that mid-life blues had by now replaced the V&V. Do I strike a chord amongst
many of you middle class, hard working, busy urbanites when I say that I am now
reminded of the utter truth and deadly validity of the old scriptural saying: You cannot
attain moksha, nirvana or salvation at
least in India, unless you go through three things viz., marry a daughter, be a litigant
and construct a house. God having immunised me from the first two being the father
of two sons and belonging to a legal (not litigants) profession must have decided to
wreak vengeance by subjecting me to the third and by ensuring that not having learnt
the lesson of history 25 years ago, I am condemned to repeat it.
How many times have we heard these common laments: architects do not have
sufficient time; they like to receive the maximum fees upfront and progressively lose
interest in the project; they have an (unofficial) share in most of the activities and
purchases for the project; tenders are long, complicated and designed to confuse the
owner; prices are inflated; jargon and gibberish is used to justify radically different
prices for two essentially similar claims or activities with marginal and insignificant
differences; no project is completed within time; one is lucky if it is completed within
twice the time contemplated; contractors are dishonest; you bat an eyelid and they are
ready to mix materials or use substandard material; they want money invested by you at
the threshold but are reluctant to invest their own even in work contracts as opposed to
labour contracts; they are rude, uncouth and uncivilized; all promises are made only to
be breached and all time schedules/bar charts are intended to be exceeded; and so on
and so forth.
I can safely wager a bet that if a poll is taken, at least amongst the owners/users of
ordinary residential properties (as opposed to industrial, commercial or institutional
projects), the professions which would score lower than even that of lawyers already
abysmally low in public estimation would be those of architects, contractors, engineers
and others associated with the construction industry catering to this segment of the
population.
In fact, it is not surprising to find a flourishing pool of jibes and jabs against the
engineering profession (and I dare say some of it is intended for architects and
contractors also). Sample this: (a) What is the definition of an engineer? Someone who
solves a problem you did not know you had in a way you do not understand. (b) When
does a person decide to become an engineer? When he realizes he does not have the
charisma to become an undertaker? (c) It can get worse. What do engineers use for
birth control? Their personalities.
It is clear that the construction industry (i.e., the segment catering to residential
houseowners) needs a serious introspective look and significant reform before the rest of
the society decides to move in and do it for them more brutally and more prejudicially.
First, there is an urgent need for standardization three or four kinds of model tenders
covering different gradations of consumer demands and requirements, developed by
professional institutional bodies. These must be accompanied by standard price lists of
items and activities detailing the quality variations. Periodical loose-leaf updates must
be made available to reflect the real current market position of the product or activity.
Secondly, an informal multi-member complaints redressal body or perhaps
several such bodies for different areas or regions must be created to permit aggrieved
houseowners to ventilate their grievances and ensure discipline amongst the principal
actors in the construction industry without exposing them to false, frivolous or
vexatious claims. Such redressal mechanism must comprise three or five-member
tribunals comprising not only members of the construction industry but also at least one
Government nominee, one eminent citizen and one member of the consumer
community.
Third, time line delays must involve a monetary penalty stipulation for each weeks
delay and must not only exist as a consumer-friendly clause in the standard form tender
models proposed to be developed but must also provide for expeditious realization of
the amount through the redressal body. Fourth, engineers, architects and contractors
must be mandatorily obliged to supply structural certificates and all drawings extant
irrespective of payment or other disputes with houseowners.
Fifth, all of them must be mandatorily required to provide a written monthly report
of onsite construction activity to each other and to the houseowner which would like a
medical prescription by a doctor serve as a record for ex-post-facto accountability.
Lastly, some kind of rating methodology and a ranking table for contractors, engineers
and architects should be created and should be publicly available.
Unless we bring in TADS Trust, Accountability, Discipline, Service here and
now, we are likely to continue with the typical six phases of a construction project:
Enthusiasm, Disillusionment, Panic, Search for the guilty, Punishment of the innocent
(read houseowner) and Praise and Honour for the Non-Participants (read professional
bodies controlling these professions).
This has proved disastrous for the consumer for decades. Its likely to be the same
for these professionals in the near future. India cant claim a respectable global position
in this sector or talk of substantial domestic or foreign private investment in housing
without radical reforms.

DO AWAY WITH GENDER BARRIERS
The recent interest generated in the India connection of the gay British High
Commissioner to Fiji (formerly deputy High Commissioner at Kolkata) reminded me of
a rarer example of transparency about homosexuality in the rarefied ambience of the
judiciary. Michael Kirby is a judge of the Apex Court of Australia and a great friend of
India, visiting this country at least once every year. Not only is he one of the worlds
foremost authorities on human rights, delivering erudite lectures globally, but he is also
a homosexual with a steady partner of many decades. He has spoken on gay sex and
HIV and has generated substantial global awareness on this closet subject.
An even more interesting example is that of Edwin Cameron, judge of the South
African Supreme Court, who is a self-declared homosexual and HIV patient. He took the
unusual step of disclosing his HIV status to the President of his country when he was
offered the judgeship and, to his countrys credit, was not declined the post because of
the infection. An annual India visitor, often with Kirby, Cameron has done much to
spread awareness not only about homosexuality and HIV but also about Indian law.
Cameron relied, in his own country, on the judgement of Justice Tipnis of the Mumbai
High Court, who directed reinstatement of a worker dismissed from service on the
ground of his being infected with the HIV.
The Lawyers Collective does yeoman service by inviting these two Indophiles for
lectures and awareness campaigns to India. Indeed, the Collective has challenged the
constitutional validity of section 377 IPC in Delhi High Court on the ground that it
forbids/criminalises even consensual sex between same gender partners. The court has
issued a notice to the Attorney General and will be taking up the case next in September,
2003.

A SHAMELESS ENDEAVOUR
When the Kumbh Mela (known locally as Puskarulu) provided giant-sized,
vanmounted condoms to spread AIDS awareness, conservative India tut-tutted in
disapproval instead of approbating the innovation. This is in line with the general
Indian view that self-control and abstinence are the best forms of birth control (and HIV
prevention) reflecting the continuing hiatus and hypocrisy between the hype and hoopla
on population control on one hand and the abysmal reality on the other.
India has to realise that it is only demystification and mass popularisation of
condom use that can yield mass results. Empirical studies establish that only social
marketing promoting behavioural changes can have a lasting impact. Thailand
achieved rare success by providing condoms everywhere, near schools, colleges and
teenage congregation spots. PASMO, a social marketing organisation in Latin America,
used attractive young people in media blitzkriegs to promote its condom Vive, sold at
one fourth the prevailing market prices. Its use of double entendre ad campaigns elicited
the ire of Guatemalan residents but persistence paid and Vive sales rose dramatically
and exponentially. Community-based distributors and peer educators achieved
remarkable results in Uganda, Kenya and Philippines. Indeed, in Philippines, sex
worker educators were assigned to massage parlours and karaoke bars where
commercial sex was practised and this yielded impressive long-term benefits.
India needs to demystify all these concepts sex, condoms, population control and
HIV prevention by a multi-pronged media war making all forms of barrier
contraceptive (condoms, spermicides, diaphragms and cervical caps), socially acceptable
by eliminating all elements of social shame and hesitation attached to the issue.

DEGREES OF SIN
Should the resources of the State be activated against all illegalities in equal
measure? Is it desirable to have State machinery go after the big fish and the bigger
crimes while turning (at least temporarily) a blind eye to smaller irregularities, the more
trivial illegalities? Indeed, can any illegality be termed trivial or small or is such a
description itself an oxymoron?
The logical response to this conundrum is to levy punishment whenever due and to
act more or less in equal measure on all fronts. After all, the law itself provides a graded
hierarchy by providing punishment proportionate to the act or omission from lesser
consequences for traffic offences to somewhat more for adultery and the maximum for
murder. Since an illegality is an illegality irrespective of degree, it is arguable that one
should not advocate as I am doing that we go slow on some categories of the penal
code while pursuing only the gross cases. There may, however, be a need for a second
look at this old established wisdom, not necessarily applicable to other countries and
cultures but certainly relevant for Indian realities.
Take the Municipal and Urban Planning Departments. Usually, they show far
greater alacrity and zeal when they send notices for property tax or for the smallest
statutory requirement or the most negligible excess construction in respect of the
average person, who is basically God-fearing and law-abiding. Sometimes they harass
even the rich and influential for the most trivial excesses to extract more money.
But we all know that the same Municipal Authorities ignore the huge illegal
shopping complex bang opposite this ordinary citizens construction. And examples
abound of actively encouraging and providing protection to builders lobbies brazenly
constructing wholly illegal constructions while going hammer and tongs after the small
or average man.
Similarly, the tax authorities collect an infinitesimal and eminently forgettable
fraction of their total revenue collections from tax raids. Yet, it is an extremely potent
and fearsome coercive power of invasion used against many salaried classes and
professionals, who are, by and large, law-abiding citizens paying huge amounts of tax to
the national exchequer. How many real big time politicians or those operating the
heartlands of Uttar Pradesh and Bihar have the tax authorities raided since Indian
independence?
If Sukh Ram was an exception, it only underlines the rule. Indeed, very few
powerful bureaucrats have been subjected to this scrutiny the few that have,
experienced it after losing power or falling into disfavour. Despite the tax departments
many rhetorical statements about expanding the tax base, the direct income tax
collections continue to load more and more upon the same minuscule percentage of
income tax payers with only a marginal net increase in those who file returns. Even a
moderate increase in the percentage of those who file returns in a highly populated
country like India would exponentially increase tax collections. But that would not be as
sensational as a tax raid or as salacious as reading about it in the next days newspaper
through carefully planted and meticulously calibrated leaks.
These examples can be multiplied ad infinitum and ad nauseam across the entire
penal code. The point I am making is three-fold. First, in an ideal world, with limitless
resources and a totally fair, impartial and unbiased administration, for example, in
certain under-populated Scandinavian countries like Norway and Sweden, equal vigour
and vitality against all defaulters is not only understandable, but necessary. Non-action
against an individual in a small homogeneous society would undermine the social fabric
of such a society. But the same approach may be inappropriate in a huge, diverse and
pluralistic society like India where the big fish have already undermined society.
In the Indian context, it is necessary to discipline the likes of the gangsters depicted
so effectively in Gangajal rather than pursuing the ordinary man and his stray but
condonable deviant acts. To take action against the former is a significant symbolic
message of the rule of law; to do so against the latter is a mockery of the same value and
an excuse for inactivity in areas where deterrent action is urgently required.
Second, why should we prosecute and harass someone like Sachin Tendulkar
who we all agree is, by and large, a model citizen who has (maybe) received a special
favour or pursue a straightforward, hardworking professional who does some
window dressing of accounts to minimise taxes and does not indulge in large-scale
evasion based on money-laundering or drug-money. By doing so, we tend to undermine
the very ethic which we seek to promote. We spread disillusionment and dejection
among the lakhs of salaried class Tendulkars who not only idolise him but themselves
are largely honest, barring the occasional peccadillo. Meanwhile, the really corrupt
bureaucrat or the vagrant politician smirks with complacency and diverts attention from
himself.
Third, we take the easy way out of going after the softer targets and camouflage
it under the equal under the law tag. By such salving of our consciences, we indulge in
discriminatory policing since the smaller criminal and the bigger one form two
separate classes. To treat unequals as equals is itself arbitrary, discriminatory and
violative of Article 14 of the Indian Constitution.
There is, therefore, need to have each government department and activity
overseen by a senior supervisor who could make this equal-unequal distinction and then
pursue only the egregious cases by ensuring that the energies and resources are not
spent fighting minor illegalities of the non-hardcore category.

THE INDIAN BRAND
It is amazing how the world has moved from branding humans to looking at
humans as brand equity. Historically, not only were cattle branded with a hot iron but
also convicts, slaves and gypsies. Then developed the commercial enterprise with strong
brand equity. A recent Newsweek survey lists the top 100 brands at an aggregate value of
a whopping $ 974 billion: Coca-Cola heads the list ($ 70 billion), which also includes
Microsoft, IBM, Mercedes, Toyota, Sony, Colgate and Bacardi. Although, no Indian
enterprise finds a place, I have no doubt that Reliance, Tata and Birla will soon emerge
as brand names on the international arena.
What India lacks in multinationals is now being compensated at the individual
level. From Bollywood to beauty contests, from sports to spirituality, from politics to the
world of pelf and power, Indian icons stride like Colossus on the world stage. On a
recent visit to Turkey, an Indian friend was quizzed on Amitabh Bachchan by his
Turkish host, who certified his Indianness only after he was able to answer certain
questions on the megastars life and films.
While Aishwarya Rai enthralls the world with her matchless beauty, Lata
Mangeshkar does no less with her mesmerising voice and singing. No wonder
international research institutes are bidding ferociously for the right to analyse her voice
box. Despite the mad materialism of our times or perhaps because of it the frail
Mahatma with his stick and ahimsa remains the unparallel icon of India, indeed the most
visible (along with the Taj Mahal) since independence. Sachin is a one-man industry,
now in the league of top international stars like soccer player, Beckham and golfer Tiger
Woods.
One sympathises with the icons of the bygone era, who were unable to reach such
dizzy heights, not for lack of charisma or talent but because the world they lived in was
different. The tantalising beauty of Madhubala, the captivating charm of Nargis and the
sheer presence of Dilip Kumar could move mountains and melt hearts. Their
effervescence was omniscient and their mannerisms infectious. But they had neither the
information technology revolution nor a media-crazy world to exploit. Neither did they
have commercial consultants to corporatise their incomparable brand equity nor to in-
novate lifetime contracts to generate money. That is why Meena Kumari died in penury
and S.D. Burman passed away popular but penniless. Wilson Jones Indias first world
champion is hardly known because he lived in another era.
Why not draw up a list of Indian icons a list of incontrovertible and indisputable
names of acknowledged outstanding global brand value and request them to
contribute to a common fund, for example to part with one per cent of their annual
sponsorship income. This fund should be carefully built up and used for the economic
support of those yesteryear stars, who, in the evening of their lives, face economic
penury or ruin. Kavi Pradeep of Ae Mere Watan Ke Logon fame is a depressing example,
but also a reason to innovate.

HT DIVIDENDS
The recent Hindustan Times Leadership Initiative was brilliantly conceived and
superbly delivered. Despite the coverage, a few facets deserve mention. Hindustan Times
pulled off a coup by getting top leaders to answer questions from the audience, a rare
occurrence in political protocol at that level. Second, the Frontier Gandhi, Khan Abdul
Gaffar Khans grandson, Afsyandar Khan, described to me in detail, in the presence of
former Army Chief, General V.P. Malik, how the Taliban was born and promoted
during Benazir Bhuttos second term in 1993.
When General Malik asked that question at the next mornings session, Bhutto gave
a long detailed answer to another question but did not specifically answer the Taliban
issue. Third, perhaps the single-most important aspect of the deliberations was Bhuttos
candid admission that during her term, promotion of low-intensity conflict in J&K was a
considered joint decision of the political and military leadership of Pakistan. Equally
significant was the fact that in 2001, her party, the PPP, consciously reviewed this policy
decision and not only discarded conflict and violence qua J&K, but also resolved that the
Simla Agreement is the bedrock for future progress and that if progress on the J&K issue
between India and Pakistan is not immediately possible, progress on all other fields
should be attempted.
This official stand of the PPP is startlingly similar to Indias official stand, we will
be well-advised to bring it to the notice of Benazir Bhutto if and when she becomes the
premier of Pakistan.

OBJECTS OF DESIRE
Objectification of women might be distorted English but how appropriate it is can
only be realised by closely watching some of the leading commercial advertisements in
India and abroad. Its a disease effectively exported from the west and fast catching up
in India. The Skyy Vodka ad in US and Canada displays a womans rear as the epicentre
with her legs spread. A man is shown between her legs holding a bottle the top half of
the womans body is not shown at all.
Indian ads are generally somewhat more restrained but moving in the same
direction. Witness those relating to mens underwear but showing scantily clad women
instead. One ad for a glass company shows a group of men eagerly following a skimpily
clad woman as she walks into an elevator. As she bends to pick up some papers, the
doors shut before the men could see her: Then the punch line: Do you want to see
everything if yes, use *so and so+ glass.
Examples can be multiplied but the issues are simple. One, we all like to see such
titillating images and may even admire the creativity and the double entendres. Second,
the frequent use of female anatomy (legs, breasts and stomach) without even showing
the face, is objectification of women at its worst worse than its milder form of using
women in traditional roles only (i.e. wives and mothers). Third, detailed empirical and
statistical studies establish that men exposed to such overt sexually suggestive ads
featuring females will themselves indulge in greater objectification of women than those
not exposed to such ads. That does not augur well for our law and order, rape and
sexual assault statistics.
But, fourth, one must counterbalance the need to protect women by pointing out
that their cause is hardly helped when several of their gender proudly declare (as was
recently done by an actress trying to make it) that a heroine must necessarily be the
object of lust< I want people to throw coins on the screen.
Fifth, the remedy cannot be pompous pontification or moral policing. Existing
advertisement guidelines not only need to be tightened but, more importantly,
stringently imposed and operationalised voluntarily through mature peer pressure and
through industry associations. External interference or paternalistic laws will not help
the line can be best drawn by a self-awareness of when enough is enough.
Sixth, when we draw guidelines, we have to be careful to be reasonable, balanced
and not lean too much in favour of the so-called exploited and harassed woman. There
is another side of the story, which is best illustrated by reference to the related issue of
sexual harassment. The Supreme Court in Vishakha (1997) did yeoman service to gender
justice by stipulating guidelines, the breach of which constitutes sexual harassment at
the workplace as also violation of fundamental rights including the right to equality to
practise trade and profession and to life and liberty.
But while the guidelines rightly interdict unwelcome sexually determined
behaviour (direct or indirect) including physical contact, demand for sexual favours,
sexually coloured remarks, showing pornography it has an additional catch all: Any
other unwelcome physical, verbal or non-verbal conduct of a sexual nature.
Such wide subjective definitions can and do easily become charters of abuse.
Harmless jokes or jocular winking at the workplace can lead to activation of such
guidelines. More importantly, it encourages false and frivolous complaints by women
seeking to punish or intimidate innocent male superiors.
The US Equal Opportunity Commission dealt with 14,500 complaints of sexual
harassment in 2002 of which 47 per cent were without any reasonable cause up from 32
per cent a decade ago in 1992. Indian figures are not yet available. But the threat of
malicious and false charges is real and can be ruinous. Top blue-chip brands are ready to
sacrifice efficient and innocent personnel rather than risk long-drawn litigation and
adverse publicity.
Finally, there are two major omissions of judicial legislation qua sexual harassment
in India. One, the situation as reflected in the film Disclosure viz., sexual harassment by
a woman occupying a position of power and influence over men in the workplace.
Given the exponential rise of such powerful women, this is an all too real situation
requiring attention.
Second, sexual harassment of men by men is also a growing reality though not yet
recognised in India at all. The same US Equal Opportunities Commission in 2002 had as
many as 15 per cent complaints by men against women or other men, up from 9.1 per
cent in 1992.

BELIEVE IT OR NOT
My list of the unusual and the bizarre continues to grow:
At formal dinners, Indians frequently serve Indian food with a fork and a knife
but not a spoon.
Indians greet Japanese in India with Good Morning or Good Evening; the lat-
ter invariably say Namaste.
The burgeoning middle-class has the latest and most expensive fancy foreign
imported cars but adulterated petrol to run it on.
People are conducting engagement ceremonies in mid-air, marrying underwater.
Some plan to produce children in orbit, but many will ultimately divorce on the
ground.
In 2003, India still has Subodh Mahato, pankha-puller at Kantadih post office in
West Bengal drawing Rs. 2,250 per month, for pulling a fan of two grass mats,
sewn together with a red cloth border that is badly frayed.
Censorship campaigns are mounted at periodic intervals against various films,
TV serials and soaps, while MTV, Fashion TV and Trendz flourish as free-to-air
channels.
Why not scrap CAS or implement it fully, once and for all? Either prepare
comprehensive tariff lists, put a regulator in place, promulgate all regulations
and notify a fixed datesay two months laterwhen CAS will operate
uniformly all over the country without exception or exemption. Till then, the old
regime must continueas it has all these years. Alternatively, scrap the whole
scatter-brained scheme. But why have this limping, lame duck farce of a partial
discriminatory now-on, now-off CAS?

DONT CALL ME, ILL COLLAR YOU
Have you had the privilege and the pleasure of receiving tele-marketing calls on
your land-line and/or mobile numbers? If not, you must be one of the rarest and luckiest
humans on earth. Far from bemoaning your anonymity, you must celebrate your
privacy and hope that this zone of peace and solitude remains inviolable.
I receive approximately two calls daily, usually on my mobile, from sugary sweet
ladies trying to sell me something. Usually, its a new credit card or a new scheme or
add-on or tie-up with some club or organisation of which I am already a member. Oc-
casionally, I am promised an exciting prize or reward if I attend a dinner or cocktail
scheduled for the near future. Sometimes, it is the promise of demonstration of a new
device or product, supposedly of great value and utility, like a new home security
system or a new water purifying system.
All this is in addition to and not in derogation or substitution of a huge amount
of unwanted e-mail, SMSs and direct mail which I receive. May be 75-85 per cent of all
such receipts comprise undesired, unasked for and unwanted marketing
communication. Needless to add, this is apart from the large volume of advertising one
finds on the media, sometimes giving the impression that its volume and content
surpasses that of the main programmes involved. Mercifully, the luxury of turning over
the newspapers pages and of using the remote control is available.
The persistence and indefatigability of the marketers is matched only by the
diversity of what they offer. E-mails appear to specialise in offering augmentation and
enhancement of the dimensions of vital organs of both the male and female species. Di-
rect mail focuses on jackpots, schemes and free use mail order offers while SMSs are
used most frequently by the service providers themselves to
advertise a thousand mobile plans and musical tunes available for downloading.
Its a serious invasion of privacy and severe harassment to be contacted at any time
of the day to sell unasked for products and services. To read a couple of relevant e-mails,
one has to scroll through at least 50 spam mails. Sometimes the callers are rude and
aggressive. More often than not they mislead, highlighting the most attractive part of the
offer and hiding the crux of the issue or the sting in the tail.
India has no specific legislation to deal with such intrusions. It doesnt have a
comprehensive set of rules and regulations. Instead, to add insult to injury, the harassed
receiver of such unwanted attention might be accused of violating the marketers right
to free speech and expression, and in particular, their supposed right to commercial free
speech! Although the Apex Court has recognised the right of commercial free speech in
the context of yellow pages advertising as comprising a part of the general right of free
speech under Article 19(1)(a) of the Constitution, it is outrageous if any court were to
hold that there is any constitutional right in anyone sending me what he likes, when he
likes, and how he likes.
Its time a beginning is made to create a national Do Not Call (DNC) registry. This
does not exist as yet even in the US, where only some states have individual DNC lists.
Once a citizen enters himself on a DNC list, he will not be called by all those sellers and
marketers who subscribe to and are part of the scheme to run such a list. This is
necessarily partial and incomplete as it does not regulate a large mass of those marketers
who are not voluntary subscribers to such a self-denying scheme.
But legislation can easily make this into a centralised computerised national
registry of those who dont want to be called or dont wish to be called by modes A and
B while permitting approaches by modes C and D. A small annual fee would be gladly
paid by persons wishing to be part of this list which would generate the funds for the
provision of this service.
Such legislation or rules and regulations should include the present Federal
Communication Commission (FCC) rules in the US which require, in the case of
telephonic solicitations, for the caller to name himself/herself; the entity on whose behalf
the call is being made; a proper telephone number and address of the calling entity, and
a legally compulsory obligation for the caller to place the called party on a DNC list if so
desired. Violation must entail heavy penalties by way of fines and, for repeat offenders,
criminal prosecution.
Till then, one must continue to bear them with a sense of humour and with an
occasional innovative approach. Since time is money for the callers, my favourite
technique is to see how long I can tie up their phone. I first tell them how glad I am that
they called. Then one can start talking of anything under the sun remotely related to the
product or service being sold. Interrupt them a few times and keep them on hold while
you answer another phone or the doorbell or put the dog out. Finally, if you cant bear it
anymore, tell them that if they telephone again you will sue them and sign off.

A DEMOCRACYS DEMOGRAPHICS
Although a demographic crisis has frequently been the favourite whipping boy of
all sections of Indian society politicians, economists and self-styled intellectuals the
issues arising are often shrouded in jargon and myth. First, the common Indian
perception that population can be controlled substantially by targets and incentives is a
myth.
While large populations certainly inhibit development, the lack of key social
infrastructure like education, female literacy, female health services boost population
growth. Indias war on population has to be preceded by a war on these indicators. No
doubt, India has dramatically improved literacy from an average of 12 per cent in 1947
to 65.4 per cent in 2001, but we are still woefully behind even countries like Vietnam
(1991, 92 per cent), Malaysia (1995, 84 per cent), Indonesia (1995, 84 per cent) and
Myanmar (1995, 74 per cent). States like Bihar fall below the figures for Bhutan and
Nepal.
Government spending on education (as a percentage of public expenditure) in
India is far lower than the modest percentages of Malaysia (15.4 per cent), the
Philippines (18.7 per cent) and Indonesia (9 per cent). A closer look also reveals that the
65 per cent overall literacy rate of India masks a 54 per cent figure of female literacy as
against 76 per cent for male literacy. It is not surprising that the winners in the
population battle Kerala and Tamil Nadu have significantly higher female literacy
(Kerala, 88 per cent) whereas Rajasthan (44 per cent), Bihar (33 per cent), UP (43 per
cent), Jharkhand (40 per cent) all have significantly lower percentages.
So theres a direct negative correlation between improved infrastructure in
education/health and rates of population growth. No amount of coercion or targets can
achieve a reduction in population growth without enhanced focus on these key areas.
Second, any approach has to be holistic and multi-pronged, necessarily encompassing
economic, legislative, social and political initiatives. Ameliorative measures cannot
work, for example, unless one addresses the common problem of one in two girls
marrying before the minimum legal age of marriage i.e. 18 years. Child bearing for long
spans follows inevitably. Similarly, only 44 per cent of Indias 168 million couples in the
reproductive age group use contraception. This is apart from the fact that development
remains the best contraceptive and hence livelihood, poverty, inequality and health
deserve a holistic policy approach.
Some structural factors are unchangeable and one has to simply grin and bear it.
For example, over 36 per cent of Indias 1 billion population is presently in the
reproductive age-group and this is increasing. Even if these persons have micro families,
the next generation will see a huge swelling in numbers before subsequent generations
experience a shrink.
Third, incentive and target programmes do have a role, but have to be carefully
monitored to ensure that they do not go out of hand and sabotage the original object.
Haryana has taken commendable initiatives. The Supreme Court upheld, as a measure
of public interest, a Haryana statute debarring those with more than two children from
contesting panchayat elections. Haryana also has good subsidy schemes for children of
couples opting for sterilisation yielding a tidy sum with interest (Rs. 40,000) at age 20.
UP has been even more innovative. District Magistrates offer gun licences (much in
demand in the wild north) to males opting for sterilisation. The most comprehensive is
the special population project targeting 170 districts in the BIMARU states. The project
will do micro management in these most populous zones to cut fertility rate from 3.4 to
2.1 and spread awareness.
It is easy for incentive programmes to run amuck and generate fear and distaste
having long-term adverse consequences. The abuses during Emergency are well-known.
The gun licence model in UP has already led to an FIR against a farmer who allegedly
got five of his labourers forcibly sterilised. How not to do it is also reflected in the
Chinese example two years ago when a county was ordered to conduct 20,000 abortions
and sterilisations because the one-child norm was being frequently violated. County
officials were found buying expensive ultrasound equipment and carrying it to remote
villages by car to implement the diktat. The long-term consequences of such a
paternalistic, prescriptive and coercive approach in a transparent democracy can be
disastrous.
Fourth, a glaring omission needs to be rectified. Female sterilization accounts for
over three-fourths of contraception prevalent in India. Male methods account for only 6
per cent. This is hugely discriminatory and impacts poor, rural women having virtually
no say in the implementation of a policy. New initiatives must ensure that the overall
results do not disguise such huge internal imbalances.
Fifth, big micro ideas without a micro management approach are doomed to fail.
The NDA governments population policy showcases as its central theme the
unacceptable population discrimination approach. Its crux rests on denying states
representation to Parliament based on their population i.e. taking away the democratic
right of states with very high population growth rates. It is both naive and absurd to
think that this threat of macro disincentives will somehow lead these states to control
their population apart from having questionable constitutional validity.
Finally, the time is now ripe to consider national legislation, after generating broad
consensus, to control population growth. All the individual and state-level policy mixes
should be threaded together in one national comprehensive legislation. It would contain
legislative measures to motivate poor couples to marry late, provide incentives for male
and female sterilization, schemes of national insurance for those adopting sterilization,
provision of benefits to urban slum-dwellers observing the small family norm, denial of
government jobs to those marrying before 18 and so on and so forth. The war must go
on.

SECULARISM UNWRAPPED
Would the French law banning the wearing of religious apparel or symbols by
students in State-run schools infringe the right to freedom of religion? The French law,
which bans large crosses, Jewish skull caps, Sikh turbans as well as Muslim headscarves,
is in effect since this month and promises an interesting legal battle in the light of
Frances international treaty obligations.
International law recognises the right to freedom of thought, conscience and
religion in diverse documents. Article 18 of the Universal Declaration of Human Rights,
Article 18 of the International Covenant on Civil and Political Rights, Article 9 of the
European Convention, Article 12 of the US Convention and Article 8 of the African
Charter all echo the same sentiment.
Barring the last, all other clauses specifically mention the right to manifest his
religion or belief in teaching, practice, worship and observance. Would Sikh turbans be
a clear manifestation of religion and belief? Third, some treaties (for example, the
International Covenant) make this right non-derogable i.e., they cant be suspended even
during a proclamation of emergency. Fourth, jurisprudence under the International
Covenant has specifically held that the observance and practice of religion or belief may
include not only ceremonial acts, but also, such customs as the observance of dietary
regulations, the wearing of distinctive clothing or headgear and other practices integral
to the religion concerned.
Fifth, the issue of first banning Muslim headscarves and later all other visual forms
of Sikh, Jewish or Christian attire by French law asserting equality of treatment under a
secular law, raises the larger question of the meaning of secularism. The positive Indian
concept of Sarva Dharma Sama Bhava (let all religions flourish under a benevolent and
non-discriminatory regime subject to eschewing State-sponsored religious activity) is
replaced by a more antiseptic and negative view of secularism as practised in some de-
veloped western economies. The approach is almost anti-religious in the sense that it
equally limits manifestations of all religions under the so-called secular law. In this
sense, secularism itself becomes a State-sponsored religion.
Sixth, the approach of Indian courts faced with a similar situation would be to
simply apply the constitutional guarantees found in Articles 25 to 28 of the Indian
Constitution by examining whether a practice or activity forms an essential and integral
part of any religion. If it does, its free practice, profession and propagation is
guaranteed. Thus, a Tandav Nritya or procession by Anand Margis is not an integral
part of Hinduism and hence not protected, whereas the wearing of turbans and the
observance of the five Ks by Sikhs would be constitutionally protected since it is an
essential creed of Sikhism, an inalienable part of the religion and not a mere dispensable
ritual.
Seventh, assuming that an act or omission is covered by the freedom of religion
clause in the treaties mentioned above, it can be curtailed only for the reasons provided
in the treaty. The International Covenant, for example, permits such limitations only if
imposed by law and if necessary to protect public safety, order, health or morals or the
fundamental rights and freedoms of others.
It is doubtful if any European or international challenge to the French law could be
justified as bearing any reasonable nexus to any of these parameters, which have to be
strictly interpreted. The Human Rights Committee under the International Covenant has
developed a salutary, cumulative four-fold test to judge the validity of any State
measure alleged to infringe the covenant.
It must be prescribed by law; it must bear nexus to one of the parameters itemised
above; it must be proportional to the need; and it must be applied in a non-
discriminatory, objective and reasonable manner. Applying these tests, the committee
upheld as valid the termination of a Sikhs labour contract following the Sikhs refusal to
wear safety headgear to work. The committee found the safety measure in federal
employment intended to protect the labourer from injury to be reasonable and
unexceptionable.
The test under the European Convention, in contrast, is a three-fold one the first
two legal tests are allowed by an omnibus third: Is the measure necessary in a
democratic society? The Kokkinakis case, arising from Greece, enunciated it pithily when
it recognised the freedom of religion as the foundation of democratic society,
indissociable from pluralism and liable to restriction only under a pressing social need,
proportionate to the legitimate aim pursued.
Looked at from any point of view, Sikh students have a cast
iron case if they choose to challenge the French law before the international human
rights monitoring courts and commission set up under such international treaties. A
Sikh is inseparable from his turban. Unshorn hair is not a mere fetish or a ritual or a
mere practice but is an integral, essential and inalienable element of the Sikh faith itself.
Its protection appears to have no nexus to public safety, order, health, morals or the
rights and freedoms of others. It can hardly be classified as a prohibition necessary in a
democratic pluralistic society. The Sikh cause has received support from quarters as
diverse as the Church of Scotland and the UN Special Rapporteur on Freedom of
Religion and Belief.
The Muslim scarf or the Jewish skull cap or the Christian crucifix is entitled to the
same protection under the same clauses of the same treaties upon a judicial finding that
these articles are as essential, integral and inseparable a part of their respective religions
as a turban is for Sikhs. Muslim headscarves have received diverse treatment in diverse
jurisdictions. Singapore bans it while Britain and Sweden uphold it as reflective of the
diversity of religious expression. The US Justice Department defends the right of
Muslims to wear headscarves. Meanwhile, the French brand of secularism is in for a jolt
from the Sikh community in France.

ANCHORING THE YOUTH
The MMS explicitly depicting oral sex in a leading school has generated predictable
reactions from outraged parents, indignant moralists, a salacious press, a bewildered
police force trying to arrest the first person they can lay their hands on, erudite
sociologists and psychoanalysts micro-analysing the issue. In the collective finger-
pointing, most accusers ignore one finger reverse-pointing at society itself, at you and
me, at our fundamental failures as parents, teachers, administrators and a most
importantly, educationists and role models.
The harsh truth is that in the mad scramble for survival and growth, society, as a
whole, and the family as a unit have lost their moorings. Parents and family members
have no time for their children. And children, especially adolescents, spare even little
time for their families. School workload, tuitions, extra-curricular activities, social and
sporting commitments, the two idiot boxes (TV and computer), fully occupy a teenagers
day and the generation gap ensures that the marginal free time available is not spent
with parents. In any event, the free time available to teenagers and parents rarely
coincide. Joint families have vanished and the creed of individualism coupled with
younger and busier grandparents has eroded, if not eliminated, the anchor of value--
based home education found some decades earlier and touted as the bedrock of ancient
Indian society.
In our urge to create educational factories which mass-produce, robot-like,
matriculates and graduates, we have ignored the far-sighted and fundamental emphasis
on value-based education which many eminent educationists have repeatedly reiterated.
Both former President S. Radhakrishnan who headed the pre-Independence general
education sub-committee of the National Planning Committee established by the
Congress in 1937 and chaired by Nehru and D.S. Kothari appointed as chairman of
the Education Commission in the Sixties (and described by the redoubtable Education
Minister, M.C. Chagla, as a brilliant scientist, a great teacher, an educationist of the
highest calibre and Gods good man) have opined that cultivation of the rational and
scientific temper without moral and value-based educational paradigms is akin to
creating rudderless ships.
The irony is that Indian tradition and culture has shown us the way for centuries. It
encapsulates the three jewels which provide the framework of value-oriented education.
Jnana, Darshana and Charitra reflect a holistic approach, insisting that knowledge of life,
of universe, of mind and of matter must lead to the right perception and the right
perspective, which in turn must lead to right conduct and character.
The educational process is not only incomplete but misleading unless data,
transmuted into a body of coherent knowledge, is then formulated into philosophy
which in turn is translated into conduct and character. Cynics defined by Oscar Wilde
as those who know the price of everything but the value of nothing have tried to play
havoc with value-based education by generating imaginary apprehensions in the name
of secularism and modernisation. They forget that Nehru, Chagla and Kothari were
giant rationalists who saw no contradiction in these themes. There is a vast distinction
between religious education on the one hand and education about religions or the
eclectic principles of the inter-faith movement on the other.
Sadly, as with so many things in India, there is a government but little governance,
much vision but little action. We have to revisit and repackage the norms and paradigms
of value-based education in the new millennium to reclaim our younger generations.
That connectivity has to be established by redesigning our moral science classes to
rescue them from the stereotype jokes they have become. Even during my days as a
student of a Christian missionary school, these classes had lost much of their relevance.
We have to redesign the curriculum and make it interesting, multi-disciplinary,
anecdotal and biographical a veritable journey through the best of our history and
literature. We have to experiment with new ideas and models for example the option
of yoga classes as a taught subject, which I have found in only one school in Delhi. We
do not have inter-faith jurisprudence as a taught subject in most schools whereas it
should be a compulsory subject. But a compulsory subject is not to be taught in an
insipid or didactic manner, unleashing tonnes of reading material and deadening the
entire imbibing process.
With these changes in mind and matter, we also have to re-evaluate ourselves as
role models. When there is a deluge all over, it is unrealistic to expect dry patches. When
there is so much of promiscuity all around us more in urban India than perhaps in
urban America which, relatively, is rediscovering honesty in relationships it is
hypocritical to chastise our teenagers who not only live-in, are shaped by and in turn
shape the same society, but are also relatively more candid and more forthright in their
dealings.
Their conduct and behaviour is bound to be heavily influenced by the profusion of
extra-marital affairs, deceit, dishonesty, hypocrisy and sexual permissiveness pervading
all sections of society. Coupled with the technological marvels of the last decade, both
opportunity and capability to indulge in deviant behaviour have been exponentially
enhanced. Last, but not the least, is the basic truth of the last millennium axiomatic but
usually ignored that women have changed aeons more than men, a fact that both sexes
(and especially Indian men) have neither fully absorbed nor adjusted to.
Not all is wrong or depressing. When I occasionally chair interview panels, I am
struck by the brilliance, the intensity, the intellect and the confidence of our youngsters.
What they need is a little support system and some spiritual underpinning. If that is
done in a non-preaching manner and by reforming and correcting ourselves, the future
is rosy.

MATTERS OF THE HEART
Cardiovascular Disease (CVD) is responsible for 50 per cent of all deaths. India and
China account for the highest number of such deaths per year 2.64 million and 2.85
million respectively. More significantly, 52.2 per cent of such deaths occur in Indians
below 60 years, whereas, the western average is 22.8 per cent.
India can be proud that one of the most famous names in thrombosis research
globally is Vijay Kakkar, director of the Thrombosis Research Institute, London. After
hearing him recently, a House of Commons committee recommended the creation of a
thrombosis research and treatment cell in every major health facility in Britain. Kakkar
has pioneered the use of low molecular haepirin as a successful thinning agent to
prevent and dissolve blood clots, thereby saving millions of lives. Yet another shining
star of the diaspora.

BONE OF CONTENTION
One has to break a leg or an arm or acquire some other kind of fracture to truly
appreciate the life of a disabled person. Having done several legal cases involving
disabled persons and interpreted statutory enactments dealing with physical and mental
disability, I remained only theoretically educated till I fractured my right ankle. Using
crutches and a wheelchair, I realised the general inadequacy of the Delhi infrastructure
as far as ramps and lifts are concerned, even more so in private residential homes than
public places.
Even temporary disability or the needs of our aging population do not figure in our
thought process. Second, having appeared for Indian Airlines and accepted in the Apex
Court the necessity for more ambulifts (happily Delhi has four, but other cities continue
to be deficient), I realised the vital necessity of this contraption for a wheelchair-bound
person when travelling recently by air. Third, one must admire the courage, grit and
determination of people who have excelled by cheerfully suffering such handicaps for
life and yet conquering even new peaks. Jaipal Reddy and Ushma Soni come to mind,
among others. The first is well-known, so let me say a few words about the second.
Ushma is an NRI, settled in London, the child of divorced parents and the only
Briton to have a rare set of twin disorders from birth blindness and brittle bones. The
latter means that if you so much as touch her, she is liable to have a fracture. She has had
hundreds of operations since birth and remains under the care of special handlers, for
funding whom she and her family have to fight an unceasing battle with the British
authorities.
Despite such major handicaps, Ushma has studied up to the post-graduate level
and is a famous orator invited to speak at several fora in Britain. Her zest for life, her
thirst for knowledge and her indefatigable spirit are fast becoming legendary. She is ably
supported by her single mother and a younger sister all of whom collectively represent
the victory of the human spirit over human body.

PATRIOTISM

The authors long held admiration for the Chinese way of thinking, working and
policy making comes through in an article describing the Chinese reaction to the shooting
down of a Chinese aircraft as also the Chinese reaction to international opprobrium after
the Tiananmen Square massacre. According to the author, to be a global player (even if
not a global leader), India has to act, behave and work like the Chinese.
The authors personal association as counsel with the right to fly the flag case is described
in an article dealing with the Supreme Court judgment on the subject. The proposal to
amend the National Anthem is castigated as a hair-brained idea (subsequently, the Apex
Court threw out the public interest petition seeking such an amendment).
INDIA NEEDS A CHINA-LIKE BACKBONE
I have been a strong admirer of China and Chinese foreign policy and have often
wondered why India does not emulate its enemy
No. 1, at least in this respect.
Two recent eventsthe shooting of a Chinese pilot and plane by an allegedly
trespassing US aircraft and the killing of 16 Indians on the Bangladesh border have
confirmed my long held views of India as a soft State with confused thinking on many
issues.
Why is it that when a US Department of State bureaucrat of the rank equivalent to a
Joint Secretary visits India, everyone who is anyone falls over one another to meet with
her and she gets audience with the Foreign Minister and even the Prime Minister? This
is what happened when Robin Raphael visited India during the first Clinton term. In
contrast, China follows a textbook protocol rule both in respect of airport receptions as
also audience with Chinese officials or politicians and adheres to this rule book without
exception.
When China committed the Tiananmen Square massacre, there was an outcry in the
US and economic sanctions and political pressure was contemplated by the State
Department. Without batting an eyelid and without the slightest trace of contrition or
apology, China organised an association of top 20 US MNCs with economic interests in
Chinaall comprising Americans to tell the American President to lay off China and
delink human rights issues and economic issues. Subsequent US protests were muted
and hard punitive actions were virtually non-existent.
Recently, when a Chinese aircraft was shot down and a pilot killed, he instantly
became a national hero and China would not budge from its twin official demands of a
US apology coupled with full compensation for the destruction of Chinese life and
property. The US was ultimately forced to convey regrets a euphemism for an abject
apology and a high level US delegation is presently cooling its heels in China
discussing terms and conditions for release of American personnel and aircraft.
Does any Indian have any doubt as to Indias reaction if a US aircraft had hit any
Indian and killed an Indian pilot? Could India even have behaved like one nation as
China did?
Sixteen BSF personnel were killed on the border and we have not even been
officially confident or bold enough to demand an apology from Bangladesh, much less
reparations or compensations. Statements full of diplomatic legalese are being bandied
about without seeking any concrete action or words from Bangladesh.
Why this difference in approach between India and China? It is too facile to refer to
dictatorship in China and the absence of democratic compulsions in that country. It has
something to do with the way the Chinese view themselves: as a proud, confident and
successful nation and people as opposed to the inferiority complexes from which
Indians suffer. Thirdly, it is the manner in which the Chinese have interpreted and
applied the doctrine of real-politik and Machiavellian supreme selfish national
interest.
On the other hand, India the country of Kautilya who can justifiably be referred to
as Machiavellis grandfather in these matters has never applied his teachings in
international affairs.
We may be a country pressing for a seat in the Security Council but we have to first
learn to behave like one deserving such a seat confident, bold, unambiguous, proud
and acting, at least in the international arena, on the basis of supreme, even selfish,
national interest and a unity and single-mindedness of purpose which we have yet to
display.

FLAGGING OFF A NEW ERA
Fifty five years after Independence, the Government finally appears to be
conceding the right to fly the flag to every Indian, in the fortnight leading upto the fifty
second Republic Day. Despite the official denials in some governmental quarters, and
despite the sub judice nature of the case pending in the Supreme Court, it has to be
plainly stated that this is the gift of Indian courts to the Indian citizen as also the tenacity
and persistence of Naveen Jindal who has fought valiantly for the citizens right to fly
the flag.
It was at Jindals behest that the Delhi High Court decided way back in 1995 that
every Indian citizen has the right to fly the flag. The Governments objections were
overruled. The Government then appealed to the Supreme Court where the appeal is
pending and is indeed shown for final hearing this week. Over the last two years the
Supreme Court passed interim orders allowing Jindal to fly the flag while reluctantly
adjourning the case repeatedly to await the outcome of the Government committees
decision on this issue. The case reflects many ironies and anomalies.
Firstly, it had an industrialist eccentrically claiming a constitutional right to
respectfully fly a flag at his residence and factory and waging a lone battle for this right
over several years.
Secondly, it involved a Flag Code, which comprised mere executive instructions
(not statutory law or delegated legislation) permitting the flying of the flag merely on
certain days or occasions. Indians could, thus, fly the Pakistani flag in India but not their
own. Indeed, Indians abroad could fly their flag but not in India.
Thirdly, the issue had several emotive, psychological, social and historical facets
apart from the merely legal one. Indians, who had been subjected to foreign rule and
domination for so many years appeared to have developed the same feudal mindset
under which a royal distance was obligatory between the ruler and the ruledbetween
the object of veneration and the ordinary subject. Only the former (read Government)
had the right privilege and power to fly the flag as a symbol of State authority and the
same could not be conceded to the average citizen.
Fourthly, the flag was never looked-upon as one of the most significant unifying
factors in a country riven with a bewildering array of cultures, religions, castes,
communities and languages each of which could be abused for divisive purposes.
Fifthly, the global movement of the right to fly the flag by the common citizenry,
which appeared to be entrenched as much in developed nations (USA, UK, Australia
and Japan) as in developing nations (El Salvador and Barbados) or as much in
dictatorships (China and Libya) as in democracies (Canada) seemed to have passed
India by.
Sixthly, the right to fly the flag as an expression of free speech and as a symbol of
freedom of thought under Article 19(1)(a) of the Indian Constitution would transcend
new constitutional and legal boundaries. American Jurisprudence had already held use
of the flag to be an inherent part of the first amendment to the US Constitution (dealing
with free speech) in the celebrated US flag burning cases of the 1960s.
Seventhly, the Constituent Assembly had repeatedly discussed the issue of the flag
as a symbol of national unity and patriotism and Nehrus remarks clearly indicated that
all Indians, wherever situated, should have the right to respectfully fly the flag.
Eighthly, the fact that once the right to fly and display the flag is held to be
constitutionally protected as an integral part of free speech, nothing short of law can
derogate from it and that derogation has cumulatively to be demonstrated to be a
reasonable restriction related to constitutionally specified criteria like security of State,
relations with friendly countries, contempt of court, etc.
Such recognition of this right (not a mere privilege or a mere grace) as a part of our
fundamental right to free speech alone can immunise it from subsequent Governments,
later transient majorities or differently composed Cabinets who may again decide to
casually amend the Flag Code to impose fresh restrictive conditions.

SONG REMAINS THE SAME
The only merit that the recent demand for redrafting the National Anthem appears
to possess is the Apex Courts issuance of a notice on the plea. Arguments against the
demand heavily outnumber contentions in its favour: we cannot go in for periodic
anthem revision whenever new States are created; Sindh s exclusion from India was
well-known to the framers of the Constitution who nevertheless adopted Jana Gana
Mana; Tagore was hardly aiming for territorial exhaustivity and did not name several
other Indian provinces; he was describing cultural and ethnic, not geographical India by
using words like Dravida, Yamuna and Ganga; Sindhis are a major part of the Indian
ethnic and cultural mainstream; how can one possibly redraft an anthem containing
appropriate rhyming references to each and every province and Union Territory of
India; which State can claim the exclusive right to replace Sindh in the National Anthem;
such matters, at best, are outside the judicial domain and fall within the legislative or
political branch. One may add, in support of all these weighty and logical arguments,
that the controversy and divisiveness it would undoubtedly generate just does not
justify making it a national issue.
India doesnt hold any anthem record except perhaps for anthem politics. We
have neither the shortest anthem (Qatars is 32 seconds long) nor the longest (Greece and
Uruguay are the longest in lyrics and music duration, respectively). We dont have the
oldest drafted anthem (Japan) nor the oldest musical score (the Netherlands has a
pre-1572 melody). But we have arguably been having more anthem debate and politics
than any other country.
Tagore composed Jana Gana Mana in 1911. At the Calcutta Congress Session of De-
cember 26, 1911, the first days proceedings began with the singing of Vande Mataram.
Tagores new composition was sung on the second day while discussing the mode and
manner of welcoming King George V on his visit to India. All the leading English
language newspapers reported the next day that a special song of welcome composed
by Tagore in honour of the King was sung at the proceeding. The timing of its first use
and the subsequent press reports led to an abiding controversy that Jana Gana Mana was
an ode to the imperial emperor.
Matters were not helped by Tagores obstinate lack of denial of any press report. It
was only much later, in 1937, that Tagore himself answered a friends query about the
origin of the song. He said that a loyalist friend had asked him to write a song in praise
of the King. Tagore said he felt anger at the presumption about his loyalties and said he
composed Jana Gana Mana to a superior authority, the Dispenser of Indias Destiny. In
conclusion, Tagore said, That great Charioteer of mans destiny in age after age could
not by any means be George V or George VI or any George. Even my loyal friend
realised this, because however powerful his loyalty to the King, he was not wanting in
intelligence.
Those who criticise and politicise this issue are not only unfair to a great nationalist
son of India Tagore, who got the Nobel Prize in 1913, returned his knighthood in 1919
after the Jallianwala Bagh massacre but also miss an essential point. When only the
first stanza of approximately nine lines was chosen as the national anthem on January
24, 1950, in the Constituent Assembly (and not the whole song as composed by Tagore),
our framers were really making a statement that the words of this first stanza correctly
reflect the unity and diversity of India and that they were not choosing Tagores entire
composition or adopting or endorsing the context or timing of its creation.
Any literary and artistic creation was entitled to be chosen by the framers as
depicting the warp and woof of India and they chose one paragraph written by Indias
first Nobel laureate. Even assuming that the original intent of Tagore was to eulogise
King George V, the crux of the matter is that Indias national anthem is not the song
written in 1911, but a set of words extracted from there reflecting the wisdom of our
framers who drafted the entire Constitution, the essence of India. Once we see the
anthem from this perspective, we can realise the futility of the political debate over the
origin of the anthem.
One must, however, lay some blame at the door of our framers, who, on as
important an issue as the national anthem, preferred merely to make a short statement
through Assembly President Rajendra Prasad without setting out in detail the rationale
for adopting Jana Gana Mana. A more detailed itemisation of the reasons would have
precluded speculative and negative sniping later on. But it is undeniable that the anthem
had acquired a unique place in the hearts and minds of the people well before
Independence. A nationalist like Subhash Bose adopted it as the anthem of the Indian
National Army as early as in 1941 and Gandhi fully endorsed it in 1946 saying that the
song had found a place in our national life. Finally, the conscious conferment of equal
status to Vande Mataram while not adopting it as the anthem also makes it clear that the
framers intended the artistic creation and not the context of its origin to be dispositive of
the issue.
Finally, the Apex Courts decision in Bijoe Emannuals case, upholding the right of a
group not to sing the anthem on account of religious or conscientious objection, while
showing it full respect by standing up when it is played, requires reconsideration. The
national anthem is a secular symbol of Indias unity and integrity and individual or
group exemptions should not be permitted because they undermine the very unity in
diversity which such symbols are supposed to represent. Two earlier opportunities to
reconsider that decision have been missed by the Apex Court and the sooner that is
done, the better it is for India and its national anthem.

TRICOLOUR BLIND
Three issues, all with a legal flavour, deserve special attention. First, the rather silly
rule, enacted as statutory law in May 2003, making any use of the national flag as a
portion of costume or uniform of any description... a disrespect to the flag and hence, a
criminal offence under the Prevention of Insults to National Honour Act of 1971. As one
who had argued the flag case in the apex Court, I was naturally taken aback to find that
all costume turnouts involving the flag to cheer the Indian cricket team in the
forthcoming Indo-Pak series would constitute a criminal offence.
Since the Supreme Court had held the right to fly the flag to be a part of the
fundamental right to free speech and expression under Article 19(1)(a) of the Indian
Constitution, I have no doubt that the respectful depiction of the flag on certain types of
clothes vests, T-shirts, caps and especially during momentous national occasions, like
cricket, football or hockey matches between two sovereign entities, cannot be
criminalised. It is likely that the amendment to the 1971 Act in respect of any depiction
of the flag on any kind of clothing would be held to be unconstitutional in a properly
mounted legal challenge. Nor can it be justified in any manner in respect of the
regulatory exceptions provided in Article 19(2), like sovereignty or integrity of India or
public order or decency or morality.
Indeed, the essence of the submissions to the Apex Court, which were accepted by
that court in the flag case, stand nullified by the amendment. Feelings of loyalty,
commitment to the nation, patriotism in a nutshell, the very feeling of Indianness can
hardly be given to us by any document book or Constitution. It is, therefore, axiomatic
that the highest and supreme form of expression of individual pride in the sovereign
nation is reflected in the depiction of the flag. Startling, and indeed absurd, results can
be contemplated if such depiction is absolutely forbidden. For example, an Indian
citizen would be entitled to wear the Pakistani flag on Indian soil but not the Indian flag.
Alternatively, an Indian citizen travelling abroad, as indeed the vast Indian diaspora,
would be entitled to depict the Indian flag at historic sports encounters at their
respective locations, but would be unable to do so in India.
To think that outstanding sportsmen like Rathore or Tendulkar commit a criminal
offence when they wear the Indian colours during historic sports events would be
comic, if not altogether tragic. After opposing the basic right to fly the flag for several
years, it is ironic that the then central government decided to make this draconian and
blanket amendment to the law barely 18 months after the Apex Court judgment on
Republic Day, 2002.
Needless to add, a right to respectfully depict the flag on appropriate clothing does
not mean and include the right to wear the flag on bikinis, posteriors or in other sexually
explicit or suggestive modes. Moderation is the name of the game.
The second issue relates to the occasional murmurings heard regarding the
establishment of an ombudsman who would also have jurisdiction over errant judges. It
augurs well for our system that the Chief Justice of India has nipped the idea in the bud
by categorically stating his opposition to any such move. The idea whatever its
genesis, content and scope is a sure recipe for disaster. Having eroded several
institutions over the years, we should zealously guard the independence and autonomy
of the judicial branch. Any so-called ombudsman policing the superior judiciary of India
would be the beginning of the end of this most vital organ of governance. That is not to
say that judges should be above the law. An institutional entity peopled and run by
judges should certainly be created to provide an alternative mode of action, short of the
death penalty, against errant brethren. But ill-conceived references to ombudsmen for
the judiciary only qualify as examples of the remedy being much worse than the disease.
Last, the somewhat bizarre and undemocratic Crime and Disorder Act seeking to
regulate anti-social behaviour in Britain. It is astonishing that a country with as long a
democratic history as Britain has suffered this draconian Act since 1998 with hardly a
whimper, whereas, India would have thrown it out much earlier. The Act regulates and
punishes anti-social conduct defined in the vaguest manner as that which causes or is
likely to cause harassment, alarm and distress to one or more persons not of the same
household as the person against whom the order is made. The police, local authorities,
registered social landlords and others can apply for orders in respect of acts ranging
from harassment of residents, verbal abuse, criminal damage, vandalism, noise
nuisance, graffiti, joyriding, begging et al. A breach of any of the conditions of an order
passed under the Act is an offence.
One can only explain this unusual piece of legislation as a victory of British
discipline over British democracy. Astonishingly, the burden of proof is the civil
standard of balance of probabilities and not the normal criminal beyond reasonable
doubt test. Hearsay evidence is not inadmissible. Without an extremely fair, objective
and efficient police force, such laws are likely to be a licence for abuse and serious
human right violations. Strangely, Britain has not had any major protests against this
law.
Vive la British civil liberties.

PERSONALITIES

The author rates Bill Clinton as perhaps the most charismatic figure in the world and
demonstrates by reference to seven key attributes how Clinton, more than any other
figure, fulfils the criteria listed by Kozubska in her book titled Keys of Charisma. He
also describes the untimely death of another charismatic figure with whom he had a long
personal association viz. Madhavrao Scindia. He argues that the charismatic Princess
Diana should be seen more as a perpetrator/accused than as a victim. The sudden
untimely death of a true friend and lover of India Lord Gareth Williams, who was
leader of the House of Lords in UK, is lamented. Outstanding qualities of head and heart
in an ordinary man of ordinary circumstances are not forgotten and the authors Yoga
teachers personality is described as a rare gem.

Unmistakable hand of fate
Much has been written about the late Madhavrao Scindia. But two things need to
be briefly highlighted here. The first is the mysterious and inexplicable hand of fate.
Scindia had probably flown more than any other politician in the Congress in aircrafts
big, medium and small and over varying distances. He was scheduled to be on the same
flight in which Sanjay Gandhi died exactly 22 years ago but could not make it due to a
last minute hitch. The second is the sheer futility of it all. I happened to fly from Gwalior
to Delhi on a beech-craft (similar to the Cessna used by Scindia), two days after his
death. The route is similar and so was the time of day (late afternoon). During our flight,
a senior politician with me, who is also highly experienced in flying and knowledgeable
about aircraft, pointed out the cloud nimbuses showing like red footballs on our radar
screen. The cloud nimbus is highly charged volatile and turbulent air pocket and even a
rookie pilot knows that he has to go around it and not into it. Since it shows large and
clear on the radar, it is easily avoidable. The only explanation for the fatal crash can be
that the pilot probably saw two cloud nimbuses somewhat apart and decided to pass
between them but misjudged the distance because the clouds moved close to each other
and he went right into them. The impact and turbulence apparently broke-off the entire
tail (which was found miles away from the main wreckage) after which a plummeting
crash was inevitable. My beech- craft had a pilot with over 8,000 flying hours experience
and co-pilot with over 2,000 hours. Scindias pilot had 1,500 hours experience and the
lady co-pilot was on her first flight.
Wasnt this a wholly avoidable tragedy?

WHATS IN A NAME?
My middle name has almost got me into trouble but seems to be creating
problems for others more frequently. As a young, eager and enthusiastic entrant to the
Bar many years ago, I remember that I was confronted when I was all of two days old
in the profession by a woman lawyer who snorted derisively upon seeing my middle
name on my visiting card and said: You must change your name immediately. I read
the Manusmriti last night and am appalled to find that your namesake had written that
women are always dependant on a manon their father during childhood, on their
husband during adulthood and on their son during old age! You cannot keep a name
like that.
Before beating a hasty retreat, I mumbled something about not being consulted at
birth as regards the selection of my name. I added that my paternal grandmother, who
was reading the Manusmriti when my mother was pregnant before my birth, thought
what a good idea it would be to name the first male child of the family after a great
historical figure who, in Hindu mythology, is supposed to combine the distinction of
being not only the first man, not only the Noah-like saviour of humanity during the
Great Flood but also the legendary author of an important code of Law in Sanskrit,
Manu Samhita or Manusmriti.
A few months ago, I learnt that a public interest litigation was pending in Rajasthan
High Court at Jaipur and that an agitation had commenced seeking the removal of the
statue of Manu in the compound of the High Court building. These reactionsat an
individual level by an advocate and at a collective level in the PIL, as aforesaid raise
the more fundamental question: Can we ignore or wish away or decry ancient historical
or mythological figures who form an integral part of the composite mosaic of our
pluralistic culture merely because contemporary viewpoints of any section of the society
differ from the writings and views of these figures on ground of ideology, philosophy,
religion or approach to life?
Alternatively, are such figures to be seen as an inextricably intertwined part of the
Indian salad bowl which, howsoever unpalatable in the context of evolving mores,
customs and idioms must be judged contextually and indeed found valid in the social
and historical backdrop in which they were written? Unless we can learn, hear,
appreciate, understand and absorb differing viewpoints, can we really call ourselves a
true democracy? Is Mayawati and her anti-Manuwadi brigade listening?

THE CLINTON CHARISMA
Seeing Clinton at the India Today conclave over live video, I realised why and how
he became Attorney-General of Arkansas in his early 30s, Governor of that State while
still in his 30s and completed a two-term Presidency of the US in his 40s.
The man clearly has a hypnotic effect on any audience. His mind races miles ahead
of the moment he is handling. His responses are brief and to the point, yet insightful and
visionary. His body language is completely relaxed and always conveys the feeling that
one is chatting with him and not being lectured to. His memory is prodigious and his
boyish good looks and charm remain undiminished. His command of the English
language is (un-Americanly) faultless.
This is charisma personified. Originating from the Greek word kharis meaning
favour or grace charisma was seen as a gift from the divine. Joanna Kozubskas book,
Keys of Charisma, focuses on seven elements. She lists confidence first, in the sense of
mastery of ones body, behaviour and world, which usually happens only with
alignment of environment, behaviour, skills, values and beliefs. Self-confidence is about
who you are, not what you look like and the crucial ingredients are energy, motivation
and drive.
Vision follows as a close second the ability to see things that do not currently
exist, an imaginative insight inextricably linking vision, values and a mission. The third
key, communication, is vital the ability of the communicator to engage the receiver.
Amazingly, surveys indicate that 55 per cent impact of a presentation is made by body
language, gestures and eye contact, 38 per cent by the tone of our voices and only seven
per cent by the actual content of the presentation.
The fourth key, style, is about the way we do things, requiring most importantly
curiosity and creativity as also the courage to be different. Fifth, charismatic individuals
are movers and shakers they are persistent, passionate about their work, love what
they are doing, delegate, lead by example and are both good leaders and managers of
teams. The penultimate key is visibility: the views of charismatic persons make them
stand out, followers make them visible, personal promotion cleverly handled keeps
them in the pubic eye and fame generates greater responsibility and loss of privacy. But
the musical saptapadi of the charismatic person cannot be complete without mystery, an
enigma, some magic which is really not definable. Status, power and position all have
their own charm and such persons do take care that familiarity does not destroy it.
Mystery preserves it.
Clinton appears to be the most outstanding contemporary persona with Kozubskas
seven attributes. But diverse persons in diverse contexts have also had charisma, in
larger or smaller measure. The list is truly diverse and endless: from Churchill to
Thatcher, from Hitler to Mahatma Gandhi, from JFK to Richard Branson, from Indira
Gandhi to Priyanka Vadra, from Nelson Mandela to Aishwarya Rai, from Madhavrao
Scindia to Liz Taylor.

FRIEND OF INDIA
A true friend and lover of India colourfully referred to as son-in-law of India
because of his Indian-born wife an eminent Briton and a most distinguished
Welshman passed away, recently in Britain. Lord Gareth Williams career followed the
predictable path of the best and brightest in England: called to the Bar at Grays Inn,
Queens counsel, recorder of the Crown court, Deputy High Court Judge, Chairman of
the Bar Council, deputy leader of the Lords, Attorney General of Britain, and, since 2001,
leader of the House of Lords.
Lord Williams was a serious contender for the post of Lord Chancellor, probably
the last before Britain bifurcates the posts of Chief Justice and Law Minister. He had a
most successful trip to India as recently as April 2003. He met and interacted with a
wide cross-section of Indian society, including leading members of the judicial, legal and
political fraternity, impressing them all with his sincerity, humility and outstanding
qualities of head and heart. Having worked as a bus conductor, in an amusement arcade
and as a teacher, he truly typified Kiplings talent of walking with kings but not losing
the common touch.
I had the privilege to introduce him at one function and described him as an FOI,
i.e, a friend of India. I added that he obviously knew of Indias potential a long time ago
since he decided to marry Veena Williams, a leading Queens Counsel of Great Britain
and a truly deserving member of the NRI community the National Reserve of India.
And I could not but help adding that the Sun may well have set over the British Empire
but it could never set over this vast and diverse Indian diaspora.
Lord Williams was all of 62 when he stepped onto the patio of his lovely country
home on a Saturday morning and, without warning, collapsed, having suffered a
massive stroke. He was fit as a fiddle and had not suffered any serious ailment earlier.
The best was, undoubtedly, yet to come in the life of this wonderful man.
Tributes flowed in globally, from colleagues and political rivals, but my own
impression of this warm and affectionate man was most aptly summed up in Baroness
Jays observation: He was a very, very articulate and clever person, but had a warmth
and a twinkle which gave great humanity to his cleverness.

MEDIAS ROYAL MESS
I happened to be in London during the week that the Burrell story regarding Diana
broke. The content and contours of the sleaze are fairly well known since the media,
both visual and print, has been splashing them around for the last month. I wish to
emphasise some other lesser known aspects since they struck me as a visitor to the UK.
The first is the forthright (and by Indian journalistic standards the pungent) use of
language to attack the prima donnas of this salacious drama. Screaming headlines and
analytical lead editorials in almost every tabloid and national newspaper minced no
words and did not beat around the bush either in describing the gory details or while
expressing an opinion. In comparison, many of our exposes are written in almost an
insipid fashion and appear to be evasive. Thus Lee Potters famous column in The Daily
Mail describes Paul Burrell as Dianas husband without the sex and quotes Paul
Burrells own brother to that effect. No one batted an eyelid before reporting and
repeating that Diana used to frequently get pornographic magazines through her butler
for use by her teenage son Prince William, no less a person than the heir to the throne.
And in a scathingly comprehensive criticism of the Queen, the entire royal household of
the Windsors and the Spencers, Lee Potter writes, The Spencers and the Windsors have
proved yet again that those who pride themselves on their breeding do not necessarily
behave with either wisdom or honour. They demand loyalty but feel no need to give it
in return.
The criticism of the queen by eminent members of Parliament was even more
trenchant and perhaps unthinkable.
Veteran leftwinger Dennis Skiner asked for the Queens prosecution for
withholding vital information and obstructing the course of justice just as any
ordinary man or woman in the street would have to face. And liberal Democrat Simon
Hughes demanded payment by the royals of the sum of one and a half million pounds
as costs of the botched and failed prosecution of Burrell, the butler.
The second interesting aspect and a clear morale booster of the Asian men
worldwide is Dianas penchant for serial monogamy but with Asian (and especially
Indian and Pakistani) men. Heart surgeon Hasnat Khan was among the first who was
followed by Indian electronics tycoon Gullu Lalvani. Then came Harrods owner
Mohammed Fayeds son Dodi, the man with whom she died at the Paris underpass. This
may be the most bizarre form of reverse imperialism by Asians with the royals who
ruled them in the past.
The third unusual and as yet unexplained aspect is the broadly and substantially
undiminished popularity of Diana in comparison to her husband Charles. No doubt the
Burrell episode has diluted the seemingly impenetrable shield of aura and charisma
possessed by Diana. But given the fact that Diana was a neurotic, unabashed sexual
philanderer, incapable of a steady or stable family life, at war not only with her husband
and in-laws, but also with her own family and especially her mother, a seemingly
irresponsible mother to her sons, a depressive manic given to mood swings, she still
comes across as a vibrant, fluorescent diva, a waif struck by the cruel hand of destiny, a
youthful star cut short by a tragic accident. In comparison, her husband who has
generally remained a one woman man (Camilla Parker Bowles), has a wide spectrum of
deep knowledge and in-depth interests ranging from architecture, environment to
alternative forms of medicine and the interfaith movement, and the future king of
England has remained trapped in the mould of an accused, a perpetrator and not a
victim.
This proves that in this day and age of the media revolution, the quick bite and the
superficial approach, what matters most is the image, the approach and the appearance,
not the substance or the reality.

THE RARE GEM
My yoga teacher an unpretentious man of moderate means taught me a lesson
of contentment. Once he absented himself, because his servant had absconded with all
his belongings from his one-room bachelor home. When he came the next day, he
laughed-off the incident, telling me that he had not filed an FIR because these things
happen and he did not have the energy to go after his poor servant.
Many weeks later, he again absented himself because his servant had turned up!
He had returned with Rs. 40,000 which were the proceeds of the sale of his stolen
property. The servant had stolen it for his sisters wedding in his village in Bihar. But his
family chastised him for the theft and sent him back to my yoga teacher with the
proceeds. My teacher proceeded to scold the servant, then re-employ him and finally
told him to treat the Rs. 40,000 as a loan for his sisters wedding. Privately, he told me,
that he was not inclined to reclaim the loan! Who said the milk of human kindness has
vanished in this day and age?

ART, FILMS AND
THE LITERARY

The author summarizes some of the fascinating and unique essays in a delightful
book of English essays on diverse topics by JB Priestly. The essays range from
Stevensons forceful arguments in praise of idleness to Chestertons defence of nonsense.
He also analyzes Hewletts brilliant essay on the art of column writing.
The authors love for biography is reflected in his lament on the absence of a memoir-
writing culture in India. Hailshams Sparrows Flight, Mandelas Long Walk to
Freedom and Chaglas Roses in December allow the author to reminisce about the
outstanding memoirs of our times. A unique book, Stovalls The Ultimate Gift,
described as most profound statement in prose made in the simplest language, is reviewed
by the author. The film Lagaan is lauded for its remarkable symbolism and striking
imagery with the author giving seven innovative reasons in its praise.
MISSING MEMOIRS
Since I am an ardent lover of memoirs (within which I subsume autobiographies and
even authorised biographies) and have for long lamented the absence of culture of
memoir writing in India, I was happy that Chief Election Commissioner M.S. Gill
emphasised this significant omission of Indian literary and political writing at a function
at the Prime Ministers residence to release Dr. P.C. Alexanders new book India in the
New Millennium.
I have benefited greatly from, and enjoyed immensely Richard Crossmans Diaries
which held a remarkable mirror to English political life; Lord Chancellor Hailshams
marvellous autobiographyA Sparrows flight reflecting in simple prose whole era of
judicial life in that country and Nelson Mandelas Long Walk to Freedom which is not only
an account of the life of a remarkable man (second perhaps only to Mahatma Gandhi in
the 20th Century) but also depicts the life and evolution of the entire South African
Nation. In India, Mr. M.C. Chaglas Roses in December with its unforgettable bylines God
gave us memory so that we may have Roses in December remains one of the finest examples
of how an autobiography should be written.
And yet, Indian political memoirs are few and far between. If Nehru, who had not
only been witness to an entire era but was capable of felicitous prose, had written a post-
Independence sequel to Discovery of India, Indian political debate would have been
hugely enriched precedents and conventions underlined, and least of all, some errors
and lessons of history which we have not learnt would not have had to be repeated.
One reason for the absence of memoirs in India is probably the inability of the
Indian public figure, including politicians, to be candid without being self-justificatory,
honest without being moralistic and issue-based instead of being personality-based. But
lack of candour, the hesitation to call a spade a spade arises, in all likelihood, from the
fact that they never retire (and never want to retire) from public life or politics. If there is
an urge or desire to occupy a position of pelf or power till the last breath (and hopefully,
even in the next reincarnation), there will be a natural hesitation to write about those
who are still in a position to hand out sinecures or privileges. Unlike the British
politician (or lawyer) who practices Vanaprastha by gracefully receding from the public
eye even when (and because) they are still in command of their mental faculties, their
Indian counterparts (from the land which invented the great philosophical concept of
Vanaprastha) have to be forcefully carried away, thereby, greatly diminishing the
possibility of an objective narrative from a disinterested observer.
Last fortnight, I characterised India as a soft State (on the context of the BSF
Bangladesh border incident) and compared it to the supreme, even selfish, national self-
interest practiced by China.
Non-Performing-Assets (NPA) is a fancy banking jargon for thousands of crores
Rs. 60,841 crores of gross NPAs as on March 31, 2000 to be precise of public money
(yours and mine) squandered by venerable chairmen and petty mandarins of the so-
called public sector banks (which more appropriately should be called anti-public
banks).
In many cases, these funds are given as loans without following procedures and for
illegal reciprocal gratification and consideration. The loans are never repaid, accrue
huge interest and after 10 or 20 years are settled under special Policy directives at an
infinitesimal fraction of the principal (forget the interest). Recoveries are never made
and a new set of Tribunals Debt Recovery Tribunals established under a new special
statute have in no way speeded up the recoveries.

MYRIAD IMPRESSIONS
Lagaan is truly a memorable film, not the least because of its remarkable
symbolism, striking imagery and the diverse levels at which it conveys different lessons.
It establishes unforgettably the victory of good over evil. Secondly, in doing so, it
depicts the feudal exploitation of rural India, not only by the British but by the earlier
Indian rulers as well. Third, it establishes the principle of self-help and validates the
adage, God help only those who help themselves. Had the villagers under Amir Khans
leadership not dared to fight back the British on the cricket field, fortune and luck would
never have smiled upon them.
Fourth, it reflects the innate fairness of many Britishers, who chose to fight the
battle by the rule book despite one of them first imposing an unequal battlefield on the
Indian villagers.
Fifth, it underlines the Anglo-Indian romantic alliances which prospered despite
the troubled ambiance.
Sixth, it tellingly emphasizes the Indian caste system by the initial exclusion of the
Dalit boy from cricket team and then demonstrates how education, reason and logic
alone can triumph over such prejudices.
A fascinatingly original storyline, a taut script, haunting music and unprecedented
directorial skills proved that Indians can make superb films whose four-hour length still
leaves you wanting for more.
An old theory of mine that of mirror-image hypocrisy between Indian and US
politics and societies found validation in the Clinton-Monica espisode. There was the
USA, the worlds oldest democracy with complete freedom in sexual matters, an
unfettered display of promiscuity and philandering both in the media and in real life
with a de facto divorce rate of 50 per cent threatening the very institution of marriage,
tenaciously, persistently and painstakingly prosecuting its President for doing probably
what the vast majority of Americans indulge in without even a second thought viz. an
adulterous fling.
There was, thus, this fantastic paradox between American society as opposed to the
standard it applied to its role model or chief executive.
Conversely, there was Indiathe worlds largest democracy, where there is a
public veil of morality, where open promiscuity in the media or real life is frowned upon
and where limping marriages are suffered endlessly to uphold the sanctity of the
family.
Yet again, this supposedly conservative society is peopled by politicians, from the
very top downwards, whose personal life may be full of amorous liaisons, adulterous
relationship and bigamous marriages, which are open secrets.
And yet, fantastically, while one politician in India may tear apart another for
corruption, incompetence, venality or any other partisan issue he or she will never or
very rarely attack another politician on any issue of personal sexual impropriety.
Whether this is by tacit understanding or part of our social mores is impossible to say.

A NEW CHAPTER ON TERROR
Despite the self-imposed ban on buying new books till I have read and re-read the
ones I already possess, the recent winter break found me succumbing with six purchases
Arnab Goswamis Combating Terrorism, Samuel Huntingtons Clash of Civilisations,
Stephen Cohens India: Emerging Power, Noam Chomskys Deterring Democracy, Ray
Monks second volume on Bertrand RussellThe Ghost of Madness and Rafiq Zakarias
The Man who Divided India.
Since I have been advocating the establishment of an international criminal court as
a vital means of combating trans-border terrorism, I found Arnabs collection of
international incidents illustrating the failure of multilateral treaties in the realm of
terrorism interesting. What emerges is that the failure arises whenever the real nations
exporting terrorism or hosting terrorists do not become signatories of such multilateral
treaties.
Huntingtons book is an interesting philosophical and ideological counterpoint
exploring causes of global conflict, including terrorism. The book, which made its
Harvard author world famous, seeks to demonstrate that the clash of civilisations poses
the greatest threat to world peace. Despite an excessively religion based classification,
the author accepts that the western belief in the universality of western culture is false,
immoral and dangerous. He recognises western intervention in the affairs of other
civilisations as the single most dangerous source of instability. Unless universalism is
renounced, diversity accepted and commonalties sought, Huntington foresees the US,
Europe, Russia and India engaged in a global struggle against China, Japan and most of
the Islamic nations. Interestingly, he endorses permanent Security Council seats for
Japan and India.
Although, impressive in its global sweep, some would prefer Toynbees analysis
based on the clash of waves which deals with the irreconcilable differences of pre-
agricultural societies conflicting with industrial ones and those, in turn, conflicting with
advanced tertiary sector societies.
I could not start Cohen or Chomsky since I was engrossed in my favourite subject
of biographies. Zakarias book on Jinnah proves how men and events conspired to lead
to the tragic inevitability of partition. What is striking is, first, the well-known
completely non-orthodox, non-Islamic character of Jinnah. Jinnah was born a Khoja (an
Aga Khan Shiite sect, not recognised till recently by orthodox Muslim schools as true
Muslims) and converted later to the Ashnashari sect to gain social and religious
acceptability. Jinnah was ignorant of Arabic or Urdu, unable to read the Quran, neither
prayed regularly nor fasted during Ramazan, loved pork and never performed Haj.
Remarkable for a man who established the youngest Islamic theocracy in the
world.
Lesser known is Jinnahs consistent pro-Congress and anti-Muslim League stand
even till the late 1920s. He alienated the Muslim community by his strong opposition to
the Khilafat movement, which sought to restore the guardianship of the holiest Islamic
shrine, the Kabba back to the Ottoman Caliphs. Gandhi was transformed from a leader
to the Mahatma by his strong leadership of the Khilafat movement, which was the first
India wide mass struggle against the British.
Zakaria delineates marvellously the complete volte face by Jinnah from his sulk
during the thirties to the pro-partition two-nation theory proponent he became from the
late thirties to 1947. The blatant opportunism of Jinnah and his radical transformation
from a strong nationalist Muslim to a crass communalist only to gain power and
achieve his dream of becoming Head of State of an Islamic Nation clearly emerges.
Even as late as April 1946, the Cabinet Mission Plan specifically rejected partition
and provided for a loose confederation model States with a very large degree of self-
governance but within one united India. Amazingly, all warring groups, including
Jinnah agreed, albeit reluctantly. Unfortunately, Nehrus assumption of Congress
Presidency from Maulana Azad in July, 1946 led him to an emotional press statement
suggesting that none of the Cabinet Mission Plan would be binding on the proposed
Constituent Assembly! It gave Jinnah the excuse he was looking for to scuttle the plan
for a united India and withdraw his acceptance. Partition then became inevitable.
Ray Monks second volume on Russell is commendable because it painstakingly
researches and catalogues Russells decline from being one of the most amazing and
original intellects of the 20th century to the one succumbing to bouts of egoistic
megalomania, second rate journalism and the championing of trivial and irrelevant
causes from 1920 onwards. Personally, as an alumnus of Russells alma mater and
residence, Trinity College Cambridge, Monks book was saddening to me, since it
demolished one of my icons.

THE ULTIMATE GIFT
Since holiday time is also reading time, Jim Stovalls The Ultimate Gift deserves
special mention as one of the most profound statements in prose made in the simplest
language. A hugely successful man, Red Stevens leaves a will to be executed by his
trusted attorney. After disinheriting several avaricious relatives, the deceased speaks to
his grand nephew, Jason, through a video cassette and promises him a huge bequest if
Jason successfully completes 12 different elements of what Stevans calls the Ultimate
Gift.
Each month, for a year, the attorney produces a new pre-recorded video which tells
the spoilt, rude, idle and arrogant Jason to complete one element of the Ultimate Gift.
The book is the story of how Jason is transformed, as he sequentially sets about imbibing
and fulfilling the Gifts.
The Gift of Work teaches him the dignity of labour, the fact that he who loves his
work never labours and that earning a penny is far more rewarding and uplifting than
finding or receiving five. The Gift of Money teaches that money is nothing more than a
tool it can be a force for good, a force for evil or simply be idle. The Gift of Friends
reminds Jason that it is a wealthy person indeed who calculates riches not in gold but
in friends while the Gift of Learning teaches Jason that education is a lifelong journey
whose destination expands as you travel. He learns, that the desire and hunger for
education is the key to real learning. The Gift of Problems reflects the conundrum:
Problems may only be avoided by exercising good judgement, good judgement may
only be gained by experiencing lifes problems.
As Jason puts it, I finally know that joy does not come from avoiding a problem or
having someone else deal with it. Joy comes from overcoming a problem or simply
learning to live with it while being joyful. The Gift of Family is what we take for
granted some are born into wonderful families; some find or create them. Being a
member of a family is a priceless membership that we pay for in nothing but love.
Family is not so much about being related by blood but about relating through love.
The Gift of Laughter teaches Jason that laughter is a good medicine for the soul and
that our world is desperately in need of more medicine. Faith alone is required to see
into the future and fulfil the eighth Gift of Dreams. The Gift of Giving teaches Jason that,
the only way you can truly get more out of life for yourself is by giving part of yourself
away. Each minute act of kindness or help by Jason reminds him of how a small gift
when it is given can be a magnificent gift as it is received. The Gift of Gratitude teaches
Jason that whenever we yearn to have more in our lives, we should dwell on the things
we already have; in doing so, we will often find that our lives are already full to
overflowing. The Gift of a Day teaches that life, in its essence, boils down to one day a
time when asked to make a list of things to do on his hypothetical last day on earth,
Jason can only list the simplest things. The penultimate Gift of Love is a treasure for
which we can never pay: the only way we keep it is to give it away.
When Jason comes for his Ultimate Gift after one year, curious, eager, expectant
and apprehensive, the video tells him one last time that all the 12 gifts, once imbibed
and then passed on to those deprived like Jason a year ago, is the Ultimate Gift. In the
end, life lived to its fullest is its own Ultimate Gift.

ACT BEFORE THE CURTAINS FALL
At the recent inaugural function of a theatre festival, I couldnt help but lament the
sad state of theatre in India. As far as Hindi theatre is concerned, the quality we saw a
few decades ago is missing. The intensity and appeal of plays like Mukhya Mantri and
Mahabhoj is just not found in contemporary theatre. Having been fortunate to meet
theatre pioneers and giants like Om Shivpuri, Sudha Shivpuri, Mohan Rakesh, Manohar
Singh and Surekha Sikri at our home in my younger days, uncomplimentary
comparisons with the current theatre scene are inevitable. Alkazis Tuglak especially
the open-air version on the ramparts of Purana Qila still shines in my mind as an
excellent example of a bygone era.
The principle reason for the decline of the theatre culture is money or rather the
lack of it. Corporates have all but given up sponsoring good theatre. Even an
infinitesimal fraction of the adherence of corporates, if used for theatre sponsorship,
would signify boom time for this declining art form and would yield significant
publicity for corporates. But a faster, consumerist pace of life and, of course, the mind-
boggling quantum leap and reach of the idiot box have concentrated all resources
into one form of advertising/sponsorship. There is need for private sector India to do
some introspection and make a paradigm shift in social responsibility to support as
pristine an art form as theatre.
Second, State support for such activities cannot be over-emphasised. The Sangeet
Natak Akademi has failed to popularise a vibrant theatre culture in the country.
Covering two major art forms sangeet and natak in a resource-strapped context has
meant that neither music nor theatre has received the attention each individually
deserves. The National School of Drama (NSD) has fared better, though, over the years
even this has suffered a decline in the quality of its productions. It has been unable to
impart the requisite momentum to the theatre movement in India. There is a need to
avoid duplication and fragmentation of scarce resources and to enhance State support
for theatre through a single agency preferably the NSD. With an all-India policy
perspective and infusion of funds, the NSD should popularise and promote a
nationwide theatre culture.
Third, the delineation of a comprehensive National Cultural Policy by the
government conspicuous by its absence today in which theatre is given its long
overdue recognition will also go a long way in rectifying the imbalance.
Fourth, is the problem of playwrights. Fewer and fewer good writers for theatre are
available. Ancient Indias outstanding literary creations were mostly written for theatre,
of theatre and by theatre playwrights. Kalidasa is the most outstanding example, but
Bhasa, Bhavbhuti and Ashwaghosh are equally significant. Despite exceptions Vijay
Tendulkar and Girish Karnad among them the irresistible gravitational pull of
Bollywood for Directors, actors, and playwrights alike has meant a denudation of
theatre world and a consequent decline in quality.
The lure of lucre is fully understandable. Even in the Sixties and Seventies, pioneers
of the Dishantar theatre group like the Shivpuris had to move westward, not because or
lack of love for theatre but because economic survival itself became an issue in Delhi.
Last, but not least, is the development of a theatre culture in this country. Delhi
lacks miserably Interest in and sensitivity to theatre is present in larger measure in both
Mumbai and Kolkata and in some of our smaller towns. With multiplexes, shopping
malls and restaurants mushrooming like rabbits all over the country, some minimal
imaginative intervention to make theatre a part of this development may suffice to
create the beginnings of a theatre culture in our otherwise indifferent urbanites. Special
theatre facilities and zones in each such complex would at least acknowledge the
existence of this neglected constituency.
The time when Indira Gandhi herself expressed the wish to see Mohan Rakeshs
Adhe Adhure in the Seventies and sat through the full show may not be easily replicated.
Nor can we hope to have long queues waiting to pay $ 100 and more for huge London or
Broadway Productions like Miss Saigon, Phantom of the Opera et al. But at least a start
would have been made.

IDLE WORSHIP
Every year in the last week of December, I try to dedicate myself to the laudable
activity of doing nothing. This year I chanced, upon a wonderful collection of English
essays on several topics. J.B. Priestly endorses the solid occupation in doing nothing,
our minds immaculate vacancies and declares: All the evil in this world is brought
about by persons who are always up and doing but do not know when they ought to be
up nor what they ought to be doing. The devil ... is still the busiest creature in the
universe ... There is still plenty of energy in the world ... but most of it is misdirected...
Any fool can be fussy and rid himself of energy all over the place, but a man has to have
something in him before he can settle down to do nothing....he must have reserves to
draw upon<.
Robert Louis Stevenson, who died in the year in which Priestly was born (1894),
wrote a forceful apology for idlers: Idleness<.has as good a right to state its position as
industry itself... Many make a large fortune who remain underbred and pathetically
stupid to the last.... Extreme busyness, anywhere, is a symptom of deficient vitality; and
a faculty for idleness implies a catholic appetite and a strong sense of personal identity<
As if a mans soul were not too small to begin with, they have dwarfed and narrowed
theirs by a life of all work and no play.
Constraints of space allow me to deal only with a few other essays. G.K.
Chestertons defenece of nonsense has a masterly insight into nonsense and
spirituality: Religion has for centuries been trying to make men exult in the wonders of
creation, but it has forgotten that a thing cannot be completely wonderful so long as it
remains sensible. So long as we regard a tree as an obvious thing, naturally and
reasonably created for a giraffe to eat, we cannot properly wonder at it. It is when we
consider it as a prodigious wave of the living soil sprawling up to the skies for no
reason, in particular, that we take off our hats... a man is a quadruped begging on its
hind legs, a house a gigantesque hat to cover a man from the sun.. This simple sense of
wonder at the shape of things, and at their exuberant independence of our intellectual
standards and our trivial definitions, is the basis of spirituality as it is the basis of non-
sense. Nonsense and faith...are two supreme symbolic assertions of the truth.
Last is Maurice Hewletts brilliant essay on the art of column-writing. Describing
how a shaven tree trunk was transformed with flowers, drapery and streamers from a
crude emblem a maypole to a happy fantasy, he turns to the column writer, The
essayist... must hang his pole or concept, not with rhyme but with wise or witty talk. He
must turn it about and about.. that you may see its shapeliness enhanced, its proportions
emphasised, and in all the shifting lights and shadows of its ornamentation discern it
still for the notion that it is...But since then, the maypole has gone out of use. The
modern essayist has had a column reared for him instead, which he is required, not to
drape, but to fill...It has been, however, the opportunity of the babbler, the prater, the
prattler and the agreeable rattle... you may write on something or nothing; you may
grind axes on your column, or roll logs on it. But you must fill it.
Hewlett ends with a comment on the ideal mix between literature and journalism:
Journalism loves the particular, but literature must hold fast to the general. Journalism
accepts the ephemeral..but literature has its eyes on posterity, expresses the spirit of fact
rather than the body of it... Hard work, but the only way to serve your two masters is to
turn your column into a maypole and pace out your dedicatory dance.

TRAVEL
Given the authors passion for travel, what is surprising is not that there is a section
on Travel but that it is relatively short. The authors global ranking of desirable locations
on the criteria of natural beauty puts New Zealand (South Island) in the first place
followed by Western Canada, Norway and Switzerland. He considers his travel education
incomplete, having not yet seen large parts of the globe including Africa, South America,
Arctic and Antarctica, all of which are on his short-term future hit list. The US airlines
are classified as the global worst while the universality of pickpockets and corruption
across national boundaries, race, ethnicity, caste and colour is emphasized.

EAST OR WEST, HOME IS BEST
My recent trip to Alaska and the Canadian Rockies the reason for the one-month
gap in this column - brought back tellingly the same thought as my New Zealand and
Australian trips last year: these regions have elevated environmental consciousness,
sustainable tourism and preservation of natural beauty to an unprecedented level. The
result is an amazing blend of casual and fun-loving outdoor living and camping coupled
with strict unobtrusive self-discipline on these subjects. These regions contain endless
miles of picture postcard natural beauty, snow peaked mountains, crystal clear blue or
green lakes, thick forested slopes, gushing water falls, swirling rivers and rivulets, all in
one mind blowing scene after another. Though under-populated by Indian standards,
the place is full of campers, domestic visitors and international tourists and
accommodation is not easily available. Yet, there is not a vestige of litter, not a speck of
dust, not an iota of pollution, as if not a hair is out of place in the painting of a beautiful
woman. Boats or ships which take you out to see shoals of sea otters, seals or even
whales automatically maintain the prescribed viewing distance from these beautiful
mammals without any policing and without even any clamour by the hundreds of
tourists to go closer. Not a single vehicle emits any noxious gas. No camping ground
is left dirty or even disheveled. The steep Canadian $1,000 fine for littering advertised
occasionally, appears almost redundant and superfluous. A ski resort had a host of
condominiums, each having several large luxury apartments, fully furnished with every
conceivable amenity. The entire condominium was self-serviced, without a soul in sight
and all apartment users would use and leave it as they found it, after picking up an
entry key from a central service agency far away from the condominium itself. Again,
there was no dirt, no litter and nothing vandalised, malfunctioning or missing.
In stark contrast, the US airlines and airports must be one of the worst in the world.
It is maddening for me to alight at any US airport after a 12 or 16 hour flight and search
for two dollar coins or notes to get a luggage trolley. At no airport in the world outside
the USA have I had to purchase a luggage trolley (or rent a cart as the Americans call
it) from a dispensing machine. Most US international airports have no left luggage
facility and the few that do are prohibitively expensive. The check-in and sales agents of
the leading US airline I was using were sour, dour and bent upon harassment instead of
facilitation. After travelling without objection over three continents all the way to
Alaska, these agents made me unpack my checked-in luggage on my return journey
because it was overweight by 2 kg, despite protests that my luggage was the same and
the excess would be due to my heavy jacket which I had packed into the checked-in
luggage.
The two huge checked-in suitcases had to be reopened after checking because of an
additional second security check mandated by federal regulations under which my
luggage had been identified as part of a sample check. The second reopening was
necessitated because the federal security check has to be done by separate federal X-ray
machines which are not film safe, so that harassed and irate passengers have to reopen
their luggage and grope frantically for any film or video film packed into the luggage.
On change-over at Amsterdam, the same airliner arbitrarily decided that due to paucity
of cabin luggage space, my hand baggage be checked-in along with similar ones of 12
other passengers. This was done despite our collective protests and all the hand
baggages were found missing on arrival at Mumbai airport. They were recovered 72
hours later but after considerable harassment.
Stewards of this US airliner refused to help even old people on the specious plea
that they cannot touch any luggage. Vegetarian meals were missed despite prior
computer confirmation and protests were met with the laconic reply that a complaint be
made to the catering department.
Indeed, the warmth and hospitality of good, old, inefficient, and unpunctual Air
India is unmatchable.

AMERICAN GRAFFITI
Since I have retuned recently from a short trip to New York, a US miscellany would
be in order. What struck me first was the complete absence of India from the visual or
print media of that country. Apart from the ubiquitous PIO, we are not even a blip on
the US radar screen. While every other continent gets some space and profile, Asia is
generally under-represented, with China hogging whatever little limelight is cast on this
continent.
A second feature was the proud proclamation by some of the top US law firms in
New York of their scrupulous avoidance of even the remotest possibility of nepotistic
practices affecting their recruitment policy. Although there exist several family
partnerships in the American legal and business sectors, some of the top blue chip
attorney firms do not even entertain applications for employment in the firm from any
relative of any partner. As a result, the top firms hardly have any relatives of the
founders, whose name the firm still carries.
The third aspect was the blind spot which the American nation as a whole had
regarding the Iraq issue. Although dissent in respect of George Bushs Ramboism on
Iraq was visible and not negligible, the ambience was overwhelmingly one of a nation
going to war. All television channels were full of programmes advising citizens on how
to stock up homes and offices in the event of biological or chemical warfare. Police and
para-military forces were visible all over. A siege complex, almost comic in a nation as
vast and powerful as the US, was tangible.
France and Germany were subjected to the vilest abuses in the media. Senators and
Congressmen cancelled all travel plans to those countries to show solidarity with the
mother-land. France was called a country of cowards and traitors with an extremely
black World War II record. Figures highlighting the huge resources expended by the US
in World War II were cited and the manner in which the French were now paying back
the Americans was lamented. Calls were issued for the boycott of all French
manufactured goods. Vive Le Wimps and French chickens were frequent allusions.
Amidst all this, I read a brilliant contribution by Robert Fisk in The Independent.
Writing shortly after Hans Blix had dampened the spirits of the warmongers in the Bush
cabinet, Fisk pointed out that while the British do not like Saddam Hussein, they do not
wish to embark on endless wars with a Texas Governor-executioner who dodged the
Vietnam draft and who, with his oil buddies, is now sending Americas poor to destroy
a Muslim nation that has nothing at all to do with the crimes against humanity of
September 11.
Fisk also demonstrates convincingly the premeditated character of the Iraq
campaign, its predominant object being the expansion of Israeli hegemony in the area.
Richard Perle, one of Bushs most influential advisors, was apparently campaigning for
the overthrow of Iraq long before Bush became the President.
A 1996 report A clear break: A new strategy for securing the realm calling for war
on Iraq, was prepared for the then incoming Israeli Prime Minister Binyamin Netanyahu
and authored by the same Richard Perle.
Lastly, I was amused to find the passage by the State of New York of a law banning
the use of mobile phones in all public places. The latter was defined to include
museums, libraries, theatres and auditoria. Not only speaking, but receiving or making
of calls would attract an instant $ 50 fine. Any takers in India?

MAURITIAN KALEIDOSCOPE
Mauritius is a country of beautiful beaches, sugarcane plantations and diverse
international textile brands. On my first visit, I was struck by the paradoxical feel of the
place. It is a country with a British look, a Francophone ambiance and a very Indian feel.
Its roads are like British motorways, the architecture is English and its signposts are
replicas of the blue road signs in the UK. The British model is also prominent in the
governmental and bureaucratic structures. Yet, the Francophone ambiance is
undiminished and strikingly tangible, first in Creole, a bastardised version of French,
and second in the continued ownership of large sugarcane plantations by those of
French origin (notably not British) who are third generation Mauritians. The Indian feel
is also obvious about 80 per cent of Mauritians are of Indian origin, an overwhelming
majority (60 per cent) being Hindus, descendents of people brought by the British as
indentured labour, and Muslims (20 per cent) mainly from Gujarat, Tamil Nadu and
Kerala.
Secondly, the very Mauritian identity of this bewildering array of Indians,
Africans (Creoles), Chinese and whites is notable. Despite wide cultural, political and
economic differences, these different races and religions have co-existed with virtually
no communal discord for centuries. All were imports since Mauritius was an
uninhabited island (except by the now extinct dodo bird) when first discovered.
Thirdly, there is wide cynicism in the common man about his political masters.
From the driver to the hotel staff to the man on the street, I found a striking unanimity
that all top politicians of Mauritius are corrupt and that corruption is far less as you go
down the hierarchy. Most believe that many major industries are owned benami by the
top politicians. The whites despite their insignificant number control the economy
(mainly sugarcane) and are set to rule the political system through pliable Prime
Ministers. For the first time, Mauritius has a PM not of Indian origin under a creative
arrangement whereby the two principal political opponents joined hands to form a
government with Aneerudh Jugnath getting the first shot at prime ministership and
then handing over the baton to Paul Berenger for the remainder of the five-year term.
Most people, however, believe that it was a clever move by Jugnath to promote his son
as the next PM by arranging with Berenger to have him as the current Deputy Prime
Minister.
Fourthly, one hears Hindi film songs, good Hindi with a pronounced Bhojpuri
accent and sees all the cultural symbols of India the temple, the mosque, the bindi and
the sari. Yet, most people of Indian origin have never visited India and have hardly any
knowledge about it. Some of the older generation occasionally visit India but have only
a nodding acquaintance with Mumbai, Delhi or Chennai. The younger lot prefer to go to
Europe, especially France, and they are much more at ease with the French language,
French music and continental food rather than with Indian culture. Hindi gets left
behind as a third language in schools, behind French and English. This is despite the fact
that the small island of Mauritius (roughly 50-70 k.m.) has as many as 60 per cent of its
population of 1.2 million congregating at one of its temples on Maha Shivratri.
Fifth, the beaches are breathtaking and very clean, sparsely populated and
wonderfully unpolluted. The top hotels of this island for which tourism is the third
most important activity have all got large private stretches of the beach but the public
beach is also clean. Water sports are popular and Bollywood stars are familiar names
here. Mauritius is a place for rest, recreation and relaxation and was a marvellous retreat
from the heat of Delhis June after the political heat of the last four months.

SPORTS

Indias low global position in the world of sports 60 years after independence and despite
having moved centre stage as a major global economic power house, is lamented. The
history and evolution of the Olympics Games is summarized and the thrill and the
excitement of soccer over cricket is discussed.

GAMES PEOPLE PLAY... EVERY FOUR YEARS
The Olympic torch will travel through Delhi on June 10, and remind us of the
Olympics scheduled for August 2004 in Athens, Greece. Curiosity led me to discover
some interesting facts about the Olympics. The first modern Olympic Games were held
in 1896 in Athens and the 2004 games return to Greece for the first time since then.
However, the original Olympic Games were first held sometime in 776 BC in
ancient Greece in honour of Zeus. Only Greeks were allowed to participate and hundred
oxen were sacrificed at the festival. The ancient games focused almost entirely on
chariot-racing, horse-racing, running, wrestling and boxing. The scope of the modern
games has expanded immeasurably.
Colorado has been the only State to turn down the Olympics. In 1927, the Winter
Olympics were scheduled for Denver when 62 per cent of residents rejected it on
grounds of pollution and a fear of large masses invading their small town.
We know that the five rings of the Olympic flag represent the five significant
continents. But a lesser known fact is that the five colours of the rings were chosen
because at least one of them appears on the flag of every country.
Although women were first allowed to participate only as late as the twentieth
century, they appear to be making-up for lost time because the Olympic flame is lit at
the ancient site of Olympia with parabolic mirrors by women wearing ancient style
robes. With the number of activities and medals rising exponentially, the gold medals
made entirely of gold were last awarded in 1912.
Though, the Winter Olympics are held separately, the Paralympics Games are
always held with the main Olympics. India will truly absorb itself in the spirit of
Olympics only when we host the Games. Let us hope our third bid for the 2014 games
succeeds.

SOCCER FOR CRICKET BUFFS
For a cricket buff uninformed of soccer, Euro 2004 has been a study of contrasts. A
cricket enthusiast watching parts of the worlds second largest soccer extravaganza is
entitled to some stray observations. First, unlike cricket, the soccer coach is a veritable
live wire, continuously gesticulating, beckoning and directing his team. One cannot
imagine John Wright, the Indian cricket coach, doing the same to Sachin, Sehwag and
Ganguly. Secondly, the soccer referee covers as many kilometres as the players
themselves. Cricket umpires are virtually stationary and a small hop by them is curious.
Movement by cricket umpires might well be a useful exercise in judging some catches or
LBWs but is just not the done thing.
Thirdly, there is virtually a complete absence of technology in soccer. TV cameras
and replays are not used to judge if the ball crossed the goal line before the goalkeeper
grabbed it. In contrast, the third umpire in cricket, with the aid of the latest gadgetry,
has entirely appropriated the task of difficult decisions. Fourthly, seemingly unusual
and even unfair, is the rule in soccer permitting any player to join or exit a game at any
time during the match itself. Any such privilege to a tired bowler or an unsure batsman
would be a bonanza. Lastly, penalties in soccer are instantaneous. In cricket, most penal
actions are ex post facto.
Euro 2004 is a welcome breeze of change in this cricket-crazy sub-continent. I
would put my bet on Greece or Holland. Rooney of England and Ronaldo of Portugal
seem to me to be the stars of the future and not a shoddy Beckham, a failing Zidane or
an unsuccessful Totti. But my real question is: when will we ever see even one Indian in
this galaxy?

CANDID CORNER
MISLED ON QUOTAS
I am not discussing here the merits or demerits of the proposal to have reservations for
backward classes in educational institutions. On the issue of whether there should be
reservations at all, and, if so, for whom and to what extent, entirely sincere and honest
differences of opinion can exist between entirely reasonable persons. What I seek to emphasise is
that what happened recently is not as startling or explosive or bizarre as has been portrayed in
the media.
Pursuant to apex court judgments (not dealing only with backward classes) which limited the
scope for reservations in educational institutions, Parliament debated the matter threadbare.
There was rare unanimity that the law should be amended to enable the provision of some
reserved seats in educational institutions for backward classes. Since the onset of the coalition era
of governance in the last 15 years or so, agreement to pass even ordinary laws by simple
majorities has been a scarce measure. Fractured consensus has been the order of the day.
The 93rd constitutional amendment which enacted Article 15(5) to the Indian Constitution in
mid-January this year was passed not only by two-thirds majority but with near unanimity. It
empowered governments to provide for reservations in educational institutions for backward
classes. There was thus supervening constitutional support for such reservation. In any
democracy, and especially in parliamentary democracy, the will of the people has to be deemed
to be the will expressed by the peoples representatives in Parliament. Whether you and I like it
or not, the people of India, with virtual unanimity, constitutionally sanctified reservations for
backward classes in educational institutions.
Had the Centre passed any law to bring into effect this constitutional mandate, it wouldve
been nothing but consequential action pursuant to unopposed constitutional amendment.
Protests at such implementation would be akin to unanimously approving the purchase of an
expensive car in January 2006 and then objecting to its use in April 2006.
But the media went to town saying that the HRD Ministry had made a proposal to
implement such reservations. The HRD Ministry has been engaged with various ministries on
this proposal for several months including the Law Ministry but that had not caught anyones
fancy. In the British Indian form of cabinet governance, proposals leading to legislation or
involving policy perspective changes, have to get approvals/inputs from diverse departments
and ministries before the cabinet approves it. It becomes the governments decision/policy only
after such cabinet approval. Thereafter, it is officially announced or; if legislation is involved, it is
then processed into a bill resented to Parliament.
Strangely, none of this had occurred with the reservation proposal when it caught the media
eye and came into public glare. The proposal had not even been scrutinized by the cabinet. But
the media presented it to the nation as the fait accompli of a finally implemented decision.
Everyone assumed not only that it was final government policy but that it was already under
implementation.
As matters stand, the cabinet has taken no decision whatsoever on the matter. Indeed, the
matter is not presently pending with the cabinet. If, and when, the cabinet accepts the proposal
(and it is entitled not to accept it), a law may be required for implementation, which, in turn, will
have to go through parliamentary debate and enactment.
This just shows the power of the media.
No place to pass the buck
SALMAN KHANS conviction for violation of the Wildlife Act shows that when a vigilant
citizenry and sensitive civil society supervise the prosecution process, the criminal justice system
can be just, conclusive and efficient. Salman evoked the ire of Jodhurs Bishnoi community
incidentally my hometown and birthplace which has for centuries created legend and folklore
for their sincerity and commitment to the cause of ecology, sustainable development and animal
welfare. They were committed to the cause of ahimsa much before Gandhiji galvanised the
concept into a potent anti-imperialist weapon. The Bishnois are the original global
environmentalists for countries. It was they who created the original chipko movement by
clinging to trees decades ago when forests were threatened with decimation.
When the Bishnois found Salman with all his money, glamour and glitz going for illegal
hunting and brutally killing species listed endangered and protected in the Wildlife Act, they
kickstarted the prosecution process and ensured a sustained monitoring which made it
impossible to try any of the manipulations frequently witnessed in high voltage trials in India.
I find it ironic when Indians make a habit of complaining about everything. They complain
about the suborning of the criminal justice system in Jessica Lalls case or the Nitish Katara case
and equally complain when Salman is convicted within a reasonable time-frame after a full trial
without hostile or perjured witnesses. With passage of time, we tend to think of this merely as the
killing of animals which should perhaps not lead to harsh punishment for humans.
After 40-odd years of Project Tiger and expenditure of huge funds, Indias tiger population
has declined. This is because we have never handed down exemplary punishment to illegal
hunters and poachers. Let us, therefore, applaud, not denigrate, our system when (occasionally)
it works.
RESOURCEFUL ALLOCATION
State funding of elections is a term much bandied about. Equally it is a much misunderstood
term and means different things to different people. To some, it involves direct disbursal of
monies to candidates wishing to stand for elective office. To others, it involves payment of
monies to political parties who in turn may use it not only to contest in the elections but also to
run the political party. For many, it involves no disbursal of monies, but only provision of
assistance in kind viz. for petrol, vehicles and the like. Some countries provide government
services free of charge to candidates during elections while others provide only indirect subsidies
such as tax incentives and reliefs.
The basic object behind state funding remains two-fold, viz. reducing illegal funding of
elections and increasing equal opportunity for political participation. It would be illusory to think
that state funding would improve or even appreciably affect these two parameters; it is only a
beginning which, over time and coupled with a multi-pronged holistic electoral reform package,
can be useful.
The Congress-led UPA government has recently suggested a move in this direction. The
Congress party has responded with a concrete proposal for state funding. It is an elementary
model, which may be usefully built upon. It is premised on the principle that disbursals would be
in kind or as reimbursements towards admissible heads of expenditure. Cash assistance is not
envisaged. The disbursal would be through the political party concerned and not directly to
candidates. It is designed as state funding of elections and not funding of political parties as such.
The party could use the funds allocated for a list of admissible heads of expenditures by its
candidates in national and state elections but the inter se allocation by the party over the different
heads would be left to the discretion of the party concerned.
The model would allocate funds as follows. Since there are 540 Lok Sabha seats with varying
official expenditure limits permissible, an average upper figure of Rs. 25 lakh per parliamentary
constituency is assumed. The total for all Lok Sabha seats would then work out to Rs. 235 crore.
Similarly, multiplying the number of seats in the legislative assemblies of each of the 30 states
and union territories by different monetary figures permissible as maximum official expenditure
depending on category of state concerned, the total permissible expenditure on all state assembly
seats would aggregate Rs. 373.60 crore. This total figure of Rs. 608.60 crore would then be
disbursed to political parties both recognised national and state level parties, by taking the
average of the number of total votes polled by the party in the last three general elections as a
base point and calculating the percentage of votes polled vis-a-vis the total votes polled. The
funds would be allocated to each party in the same proportion as the vote percentage in the
above formula.
The admissible heads of expenditure over which such state funding would be utilisable
include provision of paper for printing election literature, voter identity slips, postage stamps,
electoral rolls, loudspeakers, telephone, petrol, diesel and airtime on the national broadcaster and
private channel. This could be the basis for constitutions with other political formations.
Some of the surrounding support structures which may be looked at in the next and larger
phase of electoral reform (with which state funding has to be harmonised) would include not
only continuance of political donations by corporations (as presently permissible) but making
such contributions tax deductible. They could also be excluded from the present permissible limit
of allowable election expenditures.
A more revolutionary reforms could be the abolition of MPLAD grants to MPs and MLAs
(currently in disrepute) and the utilisation of these funds in an enhanced programme of state
funding of elections.
Lastly, state funding could in future be made subject to compliance by political parties of
requirements of furnishing regular periodic accounts, intra-party elections, strict observance of
electoral expenditure limits and full disclosure as per all prescribed forms.
Mass appeal
How does an AICC session look and feel from the inside? For one, it is a huge affairthe
recent Hyderabad plenary (which means AICC plus PCC members attend) was planned for
10,000 people but had over 17,000 attendees. Secondly, since it is a party (and not government)
affair, ministers take second place and sit as commoners whereas party office bearers sit on the
dais. Thirdly, there is an instant feeling of bonding since thousands of persons from all parts of
the country with no apparent commonality converge under the uniting bond of the party.
Fourthly, contrary to popular belief, politicians are not all or always pompous and stuffy but are
constantly pulling each others legs and cracking jokes.
The most palpable and tangible emotion is the outpouring of support and respect for the
party president. Sonia Gandhi is a most disciplined soldier of the party apart from being its
leader: punctual to a fault, cajoling and controlling speakers to be brief, paying attention to
details and sitting patiently through the entire proceedings. The constitution of the party is
scrupulously adhered to and efforts are made to see that every Congress worker is given an
opportunity to have his or her say.
PARTY HOPPING FREELY
The last fortnight has been predominated by the Supreme Courts Bihar judgment. In a sense,
the factual matrix of the judgment had been rendered infructuous even before the completion of
the arguments. The court was unable to schedule a final hearing earlier, and the Election
Commission was in full swing, preparing for fresh polls in Bihar. The rest became infructuous
when the court declared in its earlier short order that it would not stop elections, which rendered
status quo ante in Bihar a physical impossibility. Post-judgment, most of the legal consequences
have been worked out: Buta Singh had resigned, Nitish Kumar is comfortably ensconced and the
chances of the judgment being reviewed are remote.
My problem with the majority judgment is its impact on the future and not so much on the
facts of the present case as found by the apex Court, which, in any case, have worked themselves
out to a new equilibrium. The first problem is with the very general and sweeping conclusion of
law by the majority to the effect that defections, horse-trading and manipulated majorities cannot
and should not be a relevant consideration for the governor in dissolving the assembly.
If one were to forget the facts of the present case, one could easily have a peculiar future
scenario where, despite irrefutable proof of corruption, defections and horse-trading, perhaps
even on camera, the governor cannot, as a matter of law, recommend dissolution. Indeed, not
only is he to be a mute spectator to proven examples of defections, but parts of the majority
judgment would, albeit unintentionally, encourage and provide legitimacy to such activities
under cover of Presidents rule! Indeed, Presidents rule following an inconclusive election would
then become the best way to cobble together a government through defections!
There is, no doubt, the ex post facto penalty of disqualification by the speaker in respect of
such defections. But that is hardly an equally efficacious alternative. First, the Tenth Schedule is
only curative and not preventive in nature. The judgment, on the other hand, goes against the
spirit of the Constitution in general and of the Tenth Schedule in particular, which stigmatise
defections as immoral and hence illegal.
Second, the penal consequences of defections can only follow upon the speakers
adjudication and the last decades experience and jurisprudence provides a large list of examples
where speakers have taken several years to decide such cases. In the interregnum, the alleged
defectors can merrily enjoy the fruits of their defection.
Third, the anti-defection law cannot and does not deal with the case of defectors forming a
new government joining it as ministers, resigning their earlier assembly seats and re-contesting
for re-election within six-months. In most cases, they are re-elected, especially in light of their
ministerial positions. Even if the odd defector losses out, the loaves and fishes of office have been
enjoyed for at least six months. Therefore, the mandate of the apex Court is simplistic both in its
exclusion of defections as a consideration to which the governor may advert as also in its
reference to the anti-defection law as an adequate substitute.
The fourth problem is that the majority judgment does not even deal with the principal
contention of the respondent government (accepted by the minority) that the governor had
repeated in two reports that no party had approached him to form a popular government and
none had claimed the support of a majority in the House. The dissenting judgments give details,
facts, dates and other data to point out that at no point had the JD(U) or any other party claimed
majority or asserted any right to form a government. If that be so, the entire argument of the
petitioners that the governor mala fide scuttled a plan of the JD(U) to form the government would
be rendered baseless.
In this regard, two crucial sets of dates have not been given adequate interpretive weight in
the majority order. Presidents rule was imposed on
March 7, 2005. Significantly, as early as on April 22, 2005, the governor had sent a report stating
that none of the political parties, either individually or in any pre-or-post-election alliance, could
or had staked a claim to form a government. In this April report itself, the governor had
discussed reports of imminent defections pursuant to use of illegal inducements. It was a month
later, on
May 21, 2005, that the governor sent the impugned second report that led to the dissolution on
May 23, 2005. In this second report, the governor was really reiterating both his earlier points, viz.
no party had staked a claimed to form the government and that illegal steps to induce defections
were going on. The majority judgment appears not to give sufficient weight to the first report of
April, which is a strong factor to negative mala fides.
Last, but not the least, the judgment bristles with logical inconsistencies. If the court had
decided to proceed to adjudication despite announcement of fresh polls it should have either
stayed the electoral process or warned that a possible future judgment in favour of the petitioners
would lead to a revival of the old assembly. Conversely, if the apex Court believed that events
had overtaken the hearing, it would have been entitled to dispose of the entire case as
infructuous and academic. Not adopting either mode typifies the inconsistency and converts the
court proceedings virtually to advisory jurisdiction.
If indeed the court was so concerned with deciding issues that it deemed necessary, the
original scheduling of the hearing should have been placed on an immediate fast track to obviate
supervening events.
THE POINT OF POWER
The invitation was unique and so was the topic. Katha, a profit for all NGO, working in
the areas of language, culture and translation and known for its endeavours to spread the joy
of reading, knowing and living had invited me to address their International Utsav in a session
titled Power, Glory and Lies.
I had never been invited to speak on as provocative a topic as this. The structure of the Katha
conference was itself alluringly open ended. The topics ranged from Stereotypes and Leopard
Spots to Rogues Gallery? The Good, the Bad and the Ugly to Words on Fire, Frozen Tongues.
So I went to listen as much as to speak I was also plagued by self-doubt had I been invited as a
crafty practitioner of the topic of my session?
In any case, the invitation triggered a chain of thought on the topic through the idiom of the
Katha. It is easy to be sanctimonious and moralistic about Power, Glory and Lies. It is easy to
preach on the subject and even easier not to practise what one preaches. If truth be told, these
three elements are inextricably intertwined as three crucial dimensions of the Katha of life itself.
No greater Katha, in size, dimension, scope and subject-matter exists than the oceanic theme of
the Mahabharata. It is at once supreme itihaas and unparalleled kavya. It is at once incomparable
philosophy and a unique confrontation with ethical dilemmas. Its centrality and uniqueness lies
not only in celebrating the radiant heritage of India but also in preserving this legacy of the Asian
people as a whole. It is a remarkably sprawling and capacious, encyclopaedic edifice to which
poets, acharyas and thinkers brought their diverse offerings< making it a rare meeting ground of
different traditions, styles and viewpoints.
Duryodhana knows what is right and proper but is honest enough to say that he has no
inclination to follow it or to refrain from what is wrong. The predicament of Duryodhana is one
through the ages a dilemma of power and glory. Lies come in different sizes and colours.
Philosophically, the truth of truths is that truth has many parts and many facets. Byron asked,
And after all, what is a lie? Tis but the truth in masquerade. And I defy historians, heroes,
lawyers, priests To put a fact without some leaven of lie.
The greatest upholder of truth and righteousness, Yudhisthira, when faced with imminent
defeat at the hands of Dronacharya, was advised by Krishna to say something to demoralise
Drona. Yudhisthira uttered loudly, Ashwathama is dead and then added, almost inaudibly<
man or elephant. The inaudible tailpiece was meant to appease his conscience for uttering a
deliberate and motivated lie. No doubt Yudhisthira stooped to conquer, for everything is
supposedly fair in love and war Samuel Butlers light-hearted quip is also relevant:
Any fool can tell the truth,
But it requires a man of some sense
To know how to tell a lie well.
As time passes, this realisation of the ephemeral nature of power and glory sets in. The
Arabic saying that Glory may be a fire but tomorrow it will be ashes or Thomas Grays words,
The paths to glory lead but to the grave, struck Emperor Ashoka after the huge massacres at
Kalinga, when he saw the futility of it all. He realised that Glories, like glow-worms, shine
bright from afar, but when looked at from near, have neither heat nor light (John Webster).
Ashoka did not abandon his empire. He simply became a great emperor by becoming a great
human being: he abandoned ego and aggrandisement; war and violence.
Krishnas approach is relevant even today in the Kurukshetra of politicians. Krishnas dictum
of detachment must mean that glory and power may be the consequence, but ought not to be
the motive of our actions. This is also the essence of the Gita. The dilemmas and the ultimate
goal of human life are best summed up by Arjuna when he says, I desire not power nor glory; I
do not wish to go Heaven, nor rebirth. All I want is to be able to end and eradicate the afflictions
and sufferings of fellow human beings. Krishna tells him to eschew such escapist sentiments.
Power and glory are necessary to ameliorate the sufferings of humanity and to fight
injustices. For Krishna, power is but a means to do service. That is why Krishnas Gita is a
continuous clarion call for doing ones duty, to do battle in the real world, without which the
wrongs and injustices of the world cannot be righted. Hence Krishna commands us even to go to
war for peace. While the Ramayana concentrates on Maryada, the Mahabharata summons us to
the battle of life.
One must end with the Gandhian values of Ahimsa. Mahalviras message of non-violence and
Buddhas call for compassion and understanding. The ultimate realisation is that power and
glory can never be the ultimate values of life. Even as a means to an end, one must follow
Coltons warning about falsehood, viz. A falsehood is often rocked by truth, but she soon
outgrows her cradle and discards her nurse. It is ironical that Ahimsa Parmo Dharma, viz. non-
violence being the supreme virtue, is part of a stanza of the Mahabharata, the greatest book of war.
In answer to Yudhisthiras query, Bhishma says that a man is relieved of sorrow only by
eschewing violence in all forms and all aspects, viz. thought, word, deed and (interestingly, he
adds,) eating. Bhishma insists that all four must coexist. He emphasises that a quadruped cannot
possibly walk in a balanced manner on only three legs.
Interestingly, it is considered that to indulge in self-praise for self-aggrandisement, is
violence against ones own self. However, resort to this lesser verbal violence may well prevent
the more ghastly spectacle of physical violence. If only and it is a big if Draupadi would have
avoided the same verbal non-violence in not allowing her by-now infamous words (that the
progeny of the blind is also blind) to escape her lips, perhaps the Mahabharata would not have
taken place at all.
A LAW IN TIME, SAVES LIVES
As the year closes, two legislative enactments one Indian and one foreign, deserve special
mention. The Civil Partnership Act of UK 2001, in force from December 5, 2005, is not only
revolutionary within the Anglo-Saxon legal world but more comprehensive than matrimonial
codes even for heterosexual couples. It runs to 264 detailed sections and 30 schedules, and
addresses every conceivable issue of same-sex marriage, providing for eligibility, parental
consent and a detailed non-religious registration procedure. The latter includes notice, objections
and waiting period, dissolution of partnerships, void and voidable partnerships, separation,
orders regarding children of the family adoption, property division and disputes between
partners, civil and tort claims, guardianship, issues of domestic violence, pension and insurance
claims, survivorship, testamentary and intestate succession among others.
Although Scandinavian countries and a few other nations like Belgium, Germany and
Canada have similar legislation, the British detailed version reflects a strong political will to
legitimise such marriages and provide for equality of treatment. Any couple, not within the
prohibited degrees listed in the first schedule, above 16 years of age and not in a pre-existing
marriage or civil partnership, can seek registration.
Different parts deal differently with England, Scotland and Northern Ireland; for example,
parental consent is required if a person from England or Wales is 16 or 17 whereas none is
required in Scotland. Each partner must give a weeks notice of intent to have a partnership at
his/her respective residence and after a fortnights waiting period, can be registered.
Interestingly, this period can be shortened where former spouses undergo a civil partnership
consequent upon gender change, independently recognised under the Gender Recognition Act,
2004.
Even overseas relationships of a similar nature registered under suitable legislation of those
countries, are recognised in Britain. Spouses who contribute in cash or kind to the matrimonial
aome get a proportionate share and a judge can pass appropriate orders of division of such
property, including its sale adoption by any one spouse is permissible, so long as no prohibited
degrees of affinity are involved. Divorce is available on grounds of irretrievable breakdown of
partnership i.e. unreasonable behaviour, separation of over five years (two years if both consent)
and so on.
The attention to detail in the UK Act is commendable. Provision is made even for change of
name pursuant to registration. The partnership is as sacred as marriage terminable only by
court dissolution/annulment or death. Older law stigmatising same sex relationships have been
repealed. Guidelines for educational institutions sensitively address the sexual orientation of
children and direct teachers to provide support and prevent activities like homophobic bullying.
Such comprehensive measures have been enacted despite the impact assessment report
accompanying the Act that estimates that only 11,000 to 22,000 persons will be registering under
the Act by 2010. This is a far cry indeed from the intrusive penal provisions of the Indian Penal
Code, which criminalises even private consensual homosexual activities. This is a challenge. The
factual position has already changed so much in India that legal change may soon become
inevitable or irrelevant.
The Criminal Procedure Code Amendment Bill 2005, passed recently by both Houses brings
in two outstanding changes, both long overdue. The most important is the automatic release of
undertrials who have undergone half of the maximum punishments leviable for the alleged
offence; such persons can now be released on their own bond, without even surety. Hopefully,
the shameful, often horrific instances of persons rotting in remote jails, without trial, for periods
longer than the maximum they would have been awarded upon conviction, will not now be
repeated.
The second significant change is the availability of plea bargaining (PB). An accused can avail
of this, after the filing of a charge sheet, through an affidavit/application and the defence and
prosecution can thereafter come to an agreement. The agreement would be subject to court
approval and must be shown to be voluntary. The affidavit it is not usable as evidence of guilt
and habitual offenders are barred from invoking PB. Supplementary provisions provide for
compensation for the victim. PB would undoubtedly speed up the criminal justice system and
also provide for a less penal and more remedial approach, especially from the point of view of
the victim. In the present all or nothing approach i.e. neither a conviction nor monetary relief,
the victim has nothing to gain. The challenge, however, is to administer the system properly and
without taint or corruption. It should not be allowed to become a scheme where rich offender
buy their freedom from poor victims of egregious criminal activity.
Third, while the new provision of informing at least one persons of the details of an accuseds
arrest is desirable for minimizing custodial violence/torture/death, there is still no foolproof
safeguard available for getting to know the actual and correct time and place of arrest, from
which stage alone all the D.K. Basu panoply of safeguards against custodial excesses begin to
apply. The simplest way of avoiding such procedural safeguards is to show the time and place of
de jure arrest much later than the actual, de facto arrest and to commit illegalities in the
intervening period.
While mandatory judicial inquiry into custodial death and compulsory medical checkup in
all rape cases within 24 hours are welcome changes, the non-operationalisation of autonomous
directorates of public prosecution (DPPs) at the central and state levels is a deficiency that
requires urgent rectification. While confiscation of the property of an accused evading court
summons was too draconian and rightly not enacted, temporary attachment of property, subject
to later presence, would have been a reasonable substitute, given the endless evasion of court
summons by influential accused.
A HEROS HALO
As I saw Tendulkar strike his 35th ton, I asked myself, what makes heroes outside politics?
What do people like Lata Mageshkar, Shah Rukh Khan, Rahul Dravid, M.F. Husain, Mother
Teresa and many others have in common? At first blush, charisma seems to be the answer, but it
is an incomplete one. Many of the names cited above do not possess all or even many of the
seven key elements of charisma, viz. self-confidence, vision, communication, style, dynamism,
visibility and an enigmatic mystery, in the sense in which, for example, Bill Clinton or Aishwarya
Rai or Richard Branson has charisma. There is something much more than more charisma that
makes a national icon, a hero.
Clearly, excellence in ones chosen field of endeavour is a sine quo non. The nation respects
you because you have reached the peak. But that achievement has to be accompanied by a
detachment, an effortless ease that sets you apart from the dog-eat-dog model of achievement.
You should have achieved your milestones not only by means fair and not foul, but also not at
the cost of anyone elses career.
A hero must also elevate national prestige and pride in some form or the other. It is not
enough to succeed individually but your success should bring name and fame to the nation as a
whole. Only then would the destinies of millions of Indians be inextricably intertwined with that
of the hero. Every peak that the hero scales then becomes an achievement for the nation as a
whole.
There also has to be an element of public service intrinsic to the heros persona. The icon need
not be engaged in social service but must always be ready and seen to be ready to serve larger
social welfare causes by contributing his/her talents whenever required.
There has to be a statesmanlike quality about the hero. He has to be above petty politics or
internal squabbles peculiar to his guild and must always display a magnanimity of approach that
raises him above his peers. That can happen if and only if his approach is naturally fair and
straightforward and not the result of a put-on act.
Humility is a highly underrated virtue but no hero of mine can ever qualify unless he reflects
this as an inalienable part of his personality. Have you ever seen Sachin Tendulkar or Rahul
Dravid throw a tantrum, create a scene, fight with the umpire or otherwise throw their weight
around? When Tendulkar is given out wrongly perhaps more times in his career than many
other leading batsmen he has walked back with dignity and detachment that reflects his
resilient spirit and ingrained tolerance of a contrary viewpoint.
There has to be grace, a harkening back to old world values of the perfect gentleman who
fights like a tiger but who is compassionate in victory and dignified in defeat. Sunil Gavaskar
remains a rational hero so many years after his heyday because he reflects that grace. His
compliment to Tendulkar on the latters 35th milestone was not only couched in beautiful prose
but reflected the grace and civilised values of a true hero.
With this fairly long list of attributes of a hero outside politics, it makes one wonder what to
look for in heroes in politics.
From the bottom up
Whenever we try to reform an institution by creating new models or new legislation or new
rules, we tend to forget the trite saying that an institution is only as good as the person who runs
it. That is also partly the sentiment that Alexander Pope conveyed when he said, For forms of
governance let fools contend, whatever is best governed, is best.
So much has been written and said about the devaluation of the constitutional office of the
governor. What really matters is the person who occupies that office and his/her sense of
propriety, sobriety, balance and public service. The incoming UPA government retained several
previous gubernatorial appointees, most of whom continue to discharge their constitutional
duties impartially and gracefully. The incumbent governors of Karnataka, Himachal and
Uttranachal are cases in point. Each has struck a constructive relationship of public service with
the chief minister and is viewed as a reliable friend, philosopher and guide.
Conversely, new UPA gubernatorial appointees in states with non-UPA governments have
also developed similar relationships of constructive partnership. We have a scholar governor in
West Bengal whose sobriety, grace and simplicity reflects the Gandhian heritage to which he
belongs. In Rajasthan, we have a governor who has drawn on her rich experience of Maharashtra
to give a fillip to social welfare projects focused on women empowerment and has succeeded in
getting the state government to start several concrete initiatives. In particular, the Mahila
Swayam Siddha project is underway to create kendras (one in Jaipur and one each in each of the
six divisional headquarters in Rajasthan) to provide residential training to rural women
belonging to the economically weakest segments. The training would include e-learning,
computer training, medical first aid, training in teaching through distance education and de-
addiction.
After training, the women would be given certificates and would then be located in their
original villages or homes as Community Health Volunteers (CHVs). They would provide local
and immediate healthcare assistance one CHV for every 100 families and form the core of
targeted programmes of de-addiction from alcohol and eradication of other social evils at the
grassroots level. Studies have universally found that the density of health workers has a great
influence on life expectancy. The CHVs ready availability on the spot and the cultural affinity
and trust at the local level is the key to the success of this project. Most importantly, it empowers
rural women, the backbone of any fundamental reform in India.
ABORTED REFORMS
We frequently and justifiably complain about innumerable committee and commission
reports remaining unimplemented for decades, unceremoniously decorating dusty shelves. The
frenzy surrounding the creation of a commission is matched perhaps only by the amnesia that
follows the delivery of its report. A closer look at the institutional reasons for such delay in
implementation of such reports is educative. Law Commission reports provide an interesting
paradigm for analysis of this problem.
The Law Commission of India is periodically constituted (and reconstituted), for a duration
of three years, under executive orders based on a statement by a minister in Parliament. Its
function is to analyse and review any particular subject of law and to suggest changes to that
subject in public and national interest. It makes recommendations for law reform in diverse areas.
It is headed by a retired judge of the apex court, although it may be (and earlier more frequently
used to be) headed by a former chief justice of India. We now have the 17th Law Commission
functioning. Over 192 reports have been submitted by successive Law Commissions.
Unlike several other committees that are nothing but euphemisms for distributing sinecures
at State expense, the Law Commission does serious legal research. It does so within a time-bound
period and is not an open-ended inquiry commission that seeks self-serving extensions
encroaching upon eternity. Its 192 reports over the last 50 years are a veritable storehouse of
invaluable material on vital areas of law reform. It has no political agenda and the subjects
covered by it are seemingly boring, yet hardcore public interest issues, ranging from proposed
amendments to the Indian Evidence Act, the Registration Act, Transfer of Property Act and so on.
Nevertheless, a large number of its reports languish, consigned to the dustbin of history.
First, the order constituting a Law Commission issued by the law ministry contains a clause
stating not only that the commissions report shall be laid before each House of Parliament but
wrongly and unnecessarily adding that until it has been so laid, the same shall be treated as
confidential. The result is that several months and even years are spent before a detailed Law
Commission report is available for public consumption report is available for public
consumption or debate because the process of tabling before each House of Parliament simple
though it sounds can take months. With the lapse of time, the subject-matter of the report also
loses topicality and urgency.
Second, the perception that not tabling such reports first in Parliament will constitute a
breach of parliamentary privilege is misconceived. There are several rulings of the speaker two
of the Fifties in particular that specifically hold that where a body (like the Law Commission) is
constituted by the government outside Parliament or even on the basis of a statement by a
minister in Parliament (as the Law Commission is), it does not constitute breach of parliamentary
privilege to put its report in the public domain before parliamentary tabling. Only if a body is
constituted pursuant to parliamentary resolution would it be obligatory to present its report first
in Parliament.
Third, it is wholly inconsistent with the letter and spirit of our Constitution [especially the
right to know under Article 19(1)(a)] and now the Right to Information Act to treat Law
Commission reports as State secrets! Even the venerable Official Secrets Act (OSA) would not
attempt to do so because the reports of the commission are not documents prepared elsewhere
and handed over under section 5 of OSA for keeping them confidential. The reports of the Law
Commission are prepared by the commission itself.
Fourth, thanks to some administrative changes, we now have an obligation on the ministry
concerned to provide an annual statement giving reasons for the delay in implementing
recommendations of various Law Commissions, to be laid before parliament at least once a years.
The latest August 2005 statement makes distressing reading.
About 64 reports, out of 192 (i.e. about one-third) remain unimplemented. For a large number
of cases, the ATR does not give the date when the Law Commission gave its report. Some of the
cases where this information is available shows that reports of the Fifties and Sixties still remain
unimplemented.
Sixth, one of the main reasons for non-implementation is the fact that many salutary
recommendations for law reform involve subjects in the concurrent list of the Constitution (list 3)
where Parliament and state legislatures both have powers to legislate, subject to parliamentary
supremacy. Wherever such a recommendation is involved, consultation with the state
government is mandatory. A large number of state governments just do not bother to respond for
years! In such a situation, there is no logic in adopting a self-defeating interpretation and doing
nothing. What is required is consultation not concurrence. No state government has a veto
power. A simple healthy convention can be developed that where state governments do not
respond within three months, subject to one extension of another three months, it shall be
deemed that they approve of the suggested reform measure. Only such approaches can preclude
recurrence of the bizarre situation where the
69th report of the Law Commission on the Evidence Act was submitted almost
30 years ago in 1977 but was returned by the government to the Commission in 1995 on the
ground that several years had lapsed, rendering it virtually unimplementable. A fresh report was
made by the Commission in 2003. Incidentally, that also remains unimplemented! Hopefully,
there will not be a bizarre second referral back to the Commission on this subject after decades.
India has excellent institutions, frequently manned by committed persons. We owe it to
ourselves not to validate the lament of Barnett Cocks: A Commission is a cul-de-sac down which
ideas are lured and then quietly strangled.
HOLD THAT BALANCE
The original, bypass to circumvent the clogged arteries of the legal delivery system was
arbitration, a dispute resolution mechanism by which parties chose to submit themselves to the
binding verdict of arbitrators. Over time, arbitration itself became clogged with litigation vices,
viz. issues of access, backlog, costs and delay. New bypasses emerged to arbitration: mediation,
conciliation, lok adalats and so on. In tandem, the old 1940 law of arbitration was sought to be
amended to bring in the latest paradigms of domestic and international arbitration legislation. A
brand new legislation, modelled on the UN Model Law, Uncitral, was enacted in 1996.
This is the story of how India achieved the amazing feat of bringing in the major vices of the
old law, by a process of judicial (mis) interpretation, without removing the angularities of the
1996 law. The first of these vices is the revival of the scourge of the old law viz. the error apparent
doctrine. Shorn of legalese, this means that under the old law, after consuming many years and
not insubstantial costs in arbitration, the resultant award was challengeable on the ground of
patent error.
In practice, courts scrutinised every award on the merits, as if sitting in appeal over the
award, to see whether they (i.e., the courts) would have given the same award had they been the
arbitrators. The consequences were disastrous there was hardly any difference of opinion which
could not be characterised as error apparent. Arbitration merely became pre-litigation litigation,
where a litigant spent years in interminable court queues after years of arbitration. If he survived
the first challenge to the award before the first court, there would be further appeals up to the
Supreme Court. Success after a total ten-year average time paradigm would involve a further few
years in enforcement.
To address this issue and to minimise court intervention which the apex court had itself
described as a situation to make lawyers laugh and legal philosophers weep< (with
proceedings being) highly technical accompanied by unending prolixity< (and) unforeseeable
complexity the 1996 Act sought to minimise judicial intervention both pre- and post-award.
The merits of the award were made unchallengeable, except on the narrow ground of public
policy. Challenges to the award were restricted to procedural issues like denial of opportunity
of hearing or issues of jurisdiction like arbitrators deciding issues not referred to them. Even
the ghost of error apparent had been buried.
It is, therefore, astonishing that in 2003, in direct contravention of parliamentary intent and
earlier apex court jurisprudence interpreting public policy in the narrowest possible manner, a
two-judge bench of the apex Court (in Saw Pipes) specifically brought back error apparent into
India. It did so despite the larger bench strength of earlier contrary apex court judgments on
public policy. Saw Pipes drives a coach and four through the letter and spirit of the 1996 Act.
Every award is now being challenged in courts on merits. Most objection petitions against
awards are testimony to this. Public policy is not even paid lip service.
This position is made worse by the second vice. Under the earlier law, an award by itself was
not a decree and had to be converted into one by an order of the court, after the award holder
applied to make it a rule of the court. The new Act eliminated this and deemed the award itself
to be a decree. The 1996 Act also rightly thought it fit that there should be one substantive stage
of objections to the award on the limited grounds of the Act and till those objections were
decided, the award/decree should not be enforced. Since objections were available on limited
grounds, the process was expected to be over quickly and it was thought advisable that the
award/decree be not enforceable in the meanwhile.
The prevailing reality is just the reverse. Armed with full-fledged objections to the award on
merits permissible under the Saw Pipes mandate, every judgment debtor has an automatic and a
huge incentive to challenge the awards since they cannot be enforced once objections to it are
filed. Saw Pipes further ensures that those objections will take an eternity to be decided.
The third issue of concern is the recent judgment of the apex court in Shinetsu Chemicals,
holding that even in an international arbitration (where-at least one party is non-Indian) being
conducted on foreign territory, the Indian courts retain jurisdiction to at least prima facie decide,
prior to commencement or during arbitration, that the arbitration agreement is null, void etc.
How a tribunal beyond Indian territorial jurisdiction would be subject to Indian court jurisdiction
pending such decision remains mysterious. Grave contradiction between an Indian court holding
the agreement, for example, to be void and the foreign tribunal holding otherwise is likely.
Finally, will the foreign proceedings remain stayed during Indian court proceedings, which
include appellate recourse up to the Supreme Court?
Lastly, the one-month-old seven-judge apex court judgment in Patel overrules earlier
detailed Supreme Court law to allow fairly wide judicial scrutiny even at the preliminary stage of
appointment of an arbitrator. It is strongly arguable that at the time of appointment, the scrutiny
should be minimal and cursory, especially since the 1996 Act requires all issues to be decided, in
the first instance, by the arbitrators. Judicial scrutiny, if any, is to be reserved for the post-award
stage.
The tread of apex court decisions spells the demise of contractual intent in arbitration and
dilute the autonomy of the arbitral process, both pre-and post-award. Most of the changes, if at
all, could only have been brought about by Parliamentary legislation. Judicial change in this
manner is necessarily patchy, ad hoc, case specific and does violence to the seamless web and
spirit of the 1996 Act.
TEMPLATE OF JUSTICE
The enormous press coverage of the change of guard in Jammu and Kashmir is in stark
contrast to the sedate and quiet change of guard last weekend at the apex court with Chief Justice
R.C. Lahoti handing over the baton to his successor Yogesh Kumar Sabharwal. That is the way it
should be: justice, in certain ways, must remain a cloistered virtue. But there was one
commonality: both changes are marked by continuity.
Our legal system remains a behemoth and the three crore arrear backing syndrome remains
its bugbear. Overnight solutions are not possible but it is undeniable that the winds of reform
have been blowing fast and furious over the judicial system. Let us look at the Lahoti era in that
light.
The moribund National Judicial Academy at Bhopal in particular; and continuing legal
education in general, got a big boost over the last two years. About 17 programmes were
conducted, with over 700 judges of the lower judiciary and high courts participating in seminars,
workshops and interactive sessions and being exposed to new ideas, subjects, technologies and
avant garde trends in law. A busy schedule of 24 further events over the next 12 months from July
2005 stands already chalked out and is under active implementation.
A unique feature has been the commencement of a summer retreat for apex court judges at
the academy. Here almost a dozen judges of the highest level interact intensively with experts
from different fields over five days. A far cry indeed from the times when protocol and
pomposity would make this a highly unlikely event, at least for the higher judiciary.
Apart from the momentum and synergy imparted by such gatherings, several practical
programmes are underway to enhance the efficiency of the judicial family. For example, any
judge anywhere in India, can now seek research assistance on any complex or new area of law
from a special call created at the academy. A researched response is supplied expeditiously by e-
mail at no cost. The countrys 14 state-level judicial academies, functioning thus far in a patchy,
non-coordinated manner, are now gearing up around a broadly uniform module and are in
constant interactive exchange with the central academy. This will work to ensure synergy of
programmes across India
A comprehensive Information and Communication Technology (ICT) national plan has
already been drawn up by an expert committee (set up at Justice Lahotis initiative) in less than
six months and is now being implemented. It has time-bound schedules, all within five years, to
achieve comprehensive computerisation of the entire justice delivery system, the grand design of
an IT network for the judiciary, creation of an IT grid linking the apex court to all courts in India
and building infrastructure and manpower support systems for the above.
Alternative or consensual dispute resolution ADR or CDR outside the traditional justice
system, by mediation, conciliation and other methods, has also received considerable impetus
and dynamism by the setting up of an apex court committee to create modules of implementation
at different high courts, in addition to the already successful lok adalats. The movement on this
front has been slower than the first two initiatives but a national ADR plan in the offing.
A relatively lesser noticed achievement has been the rationalisation of pension schemes for
judges and some of their allowances. A judge of the apex court who has served as a judge for less
than a minimum number of years frequently the case with direct appointees to the apex court
will now, for the first time, receive the same pension as any other judicial retires. Some
allowances have also been enhanced, giving judges additional cash in hand. This is as it should
be successful members of the bar who opt for judgeship and run a honest ship should feel the
pinch a little lesser.
A fourth aspect appointments over the last 30 old months reflects a mixed bag. Ninety-six
new appointments have been made and, additionally, 56 additional judges confirmed as
permanent. That is no mean achievement. But Justice Lahotis declared objective of not leaving a
single judicial vacancy by his departure in the Year of Judicial Excellence, 2005, has not been
achieve. It is commendable though that the apex court collegium has functioned expeditiously
and harmoniously with hardly any recommendations languishing at the apex level. Perhaps the
speed and quality of recommendations from the high courts needs to be looked at and
streamlined by the new CJ.
The relationship between the bar and bench has never been better and the president of the
bar has publicly acknowledged the former CJs sensitive response whenever the bar sought
remedial responses. Intra-judicial squabbles or raging judicial controversies have also been
avoided. The collegium has not merely lamented the lack of power but done what it could with
available powers to discretely send a message to errant and wayward judges to mend their ways
without creating a hamstrung institution or unnecessary publicity.
The message has largely been imbibed that sober, hardworking and honest judges will be
given recognition and supported and errant ones controlled. A striking contrast is provided, on
the one hand, by the simmering, festering sore involving a former Chief Justice of the Punjab and
Haryana High Court which continued for several years and, on the other hand, the expeditious
settlement of the Guwahati High Court grievances by the present collegium.
Justice Lahotis successor is known for his pregamatic and result-oriented approach. The
strength of the apex court is its undiluted commitment to change with continuity and maintain
continuity with change. Having retained public confidence over the last six decades amid the
ruins of declining institutional morality, one is in no doubt that the apex judiciarys tryst with the
people of India will never be betrayed.
CASHING IN ON PERKS
Should our MPs be given a hike in salary and perks? Our legislature certainly deserve a hike,
but its form, manner, periodicity and conditionality has to be worked out in a comprehensive
manner.
It is undeniable that an MPs salary in India, at Rs. 12,000, is much below the global average.
A Canadian MP gets a basic salary of $ 70,000 per month, along with a non-taxable expense
allowance of $ 25,000 and a housing allowance of
$ 12,000. In Britain, the annual salary for each House of Commons member is
57,485. Most also claim between 100,000-150,000 for office expenses. That for each US
Representative and Senator is approximately $ 162,000 per annum. But the figures are
misleading. The countries mentioned above monetise all perks India, however, has always
provided perks in kind in most spheres of public employment, be it the bureaucracy, judiciary,
public sector, executive or the legislature. The foreign figures given above reflect a lump sum
monetary amount with no or insignificant additional perks whereas the Indian figure has to be
aggregated with an army of freebies additionally provided by the government to MPs.
The monetary cost of these perks is by no means negligible. An MP gets a monthly
constituency allowance of Rs. 10,000, office expenses allowance of
Rs. 10,000 a daily allowance of Rs. 500 for attending sessions and committee meetings (at an
average of 200 days in a year, this totals over Rs. 1 lakh), 50,000 units of electricity free per year,
free residential accommodation in prime New Delhi areas (depending on location, the equivalent
rent for such premises would range from Rs. 75,000 to Rs. 1-3 lakh per month), two rent free
phones and 1 lakh free calls per year, over 40 free business class air journeys annually with
spouse to any Indian destination, unlimited free rail journeys by 2-tier AC with spouse and
comprehensive free healthcare.
Additionally, an MP gets a hefty Rs. 2 crore per year constituency development grant (Rs. 10
crore for a Lok Sabha term or Rs. 12 crore for a Rajya Sabha term) with the power to spend that
money in approved projects in the state or in his constituency. He or she can also sanction 100
phones connections in a year, 160 LPG connections and two seats in a central school.
The first priority for any review of salary structure must be to monetise the perks. The second
imperative is that this be done by an independent salary commission with judicial, political,
technical and citizen representation. Estimates of the monetised value of the above perks puts
them at over Rs. 2 lakh per month.
Third, an option must be furnished to our legislators whether they desire these perks in kind
or prefer the monetised equivalent. An overwhelming proportion is likely to opt for the latter
option. All future salary hikes must be linked to this monetised base, comprising cost of legislator
to country.
Fourth, the same independent commission must calculate the loss of parliamentary hours per
session on account of boycotts or obstructions. This should be used to apply a cut, equal to 75 per
cent. of the lost time, across the board on all MPs vis-a-vis their total cost to country monetised
package. A fair and non-discriminatory effect of this cut is a matter of details to be worked out by
the commission but its principle needs to be accepted and applied.
Indeed, the general principle of monetising perks across the board for all sections of public
employment and not only for MPs must be accepted and implemented. It would eliminate a
double hypocrisy that of the lament of allegedly woefully inadequate remuneration in our
public employment as also allowing a large number of the recipients to gladly accept the
monetary equivalent and lead happier lives with higher carry home cash.
Power women
The Amendments to the Hindu Succession Act, giving equal rights to sons, and daughters, is
no less revolutionary than Nehrus reform initiative in personal Hindu law. The amendments
change the status quo on one of the bastions of Hindu law. Nehrus attack on the Hindu personal
law right to multiple wives, male predominated succession and so on evoked huge opposition in
1956; its a reflection of the rapidly changing times and increasing appreciation for womens
empowerment that these amendments have passed with considerably less hue and cry.
Henceforth, all inherited property would be inheritable by both males and females alike.
Large agricultural lands, ancestral houses and all other types of movable and immovable
properties would be liable to be partitioned at the instance of the female, irrespective of marital
status, and divided accordingly.
The earlier position probably infringed the constitutional prohibition against gender-based
discrimination found in Article 15 of the Indian Constitution. This change had also been
advocated in the 174th Law Commission report. Several states like Kerala, Andhra, Tamil Nadu,
Karnataka and Maharashtra had already conferred these rights on women by state amendments.
With the Domestic Violence Act passed and the Control of Contagious Diseases Bill and
National Plan of Action for Children Bill in the pipeline, these amendments reflect the UPA
governments work at its activist best.
SOMEONES RESPONSIBLE
At a recent seminar on ethics in business, I started with the lament that business or
professional ethics has today become an oxymoron. Despite the hectic legislative activity over
better corporate governance over the last decade, Lord Thurlows caustic comment remains as
true as ever: Did you ever expect a corporation to have a conscience, when it has no soul to be
damned and no body to be kicked?
What is ethics in business or in professions all about? As with good governance in general, it
is about injecting the core values of transparency accountability, integrity, equity and
responsibility in corporate governance. It seeks to ensure that corporate vehicles do not become
an impervious device for obtaining individual profit without individual responsibility. Corporate
social responsibility is not only about philanthropy but about ethics a sense of shared
participation, of responsibility not only towards shareholders but towards stakeholders in
general and society at large. It is about a sense of shared values, more nurtured from within and
less imposed from outside.
Unfortunately, for every example of ethical corporate functioning, numerous corporate scams
and scandals litter the moral landscape. For every corporate innovation like echoupal, leveraging
information technology to aggregate and align farm outputs, there are numerous Enrons and
Tycos. For one successful social forestry project or women empowerment scheme, there are
several Harshad Mehtas symbolising corporate rapacity.
The sad truth is that sermonising cannot substitute for effective mechanisms of punishment.
The US enacted the Sarbanne Oxley Act within 90 days of Enron. It is an Act more instructive and
draconian than the global corporate world has ever seen. Few people know that the Enron issue
was triggered by three women who blew the whistle on significant wrongdoing in the company.
They were thus insiders with outsider ethical values. They could do so only so because of a
comprehensive whistle blower statute in the US which gave them complete immunity for
revealing illegal activity. We are still struggling with our whistleblower statute in the aftermath
of the Dubey killing by the Bihar construction mafia. Unlike the US, we forget the mandate of
the Doubters dictionary, which defines ethics as a matter of daily practical concern, described
glowingly in commercial terms by those who intend to ignore it.
We have also avoided addressing unpleasant issues like the role of professionals (especially
accountants and legal advisors). Ancient jurisprudence described them as bloodhounds. Slowly,
case law started using the milder term watchdogs. Recent corporate scams have led them to
being described as lapdogs. Enron and Tyco could not have occurred unless these professionals
cooked the books with a flair and a zest which would put the chefs at Taj Hotel to shame. What
about serious and direct conflict of interest? Arthur Anderson, which went down with Enron,
were not only auditors but also management consultants to Enron. Fees from the latters activity
far outstripped fees for the former. Pointing out wrongdoing unearthed as an auditor is naturally
difficult if that risks losing ones management consultancy contract.
This brings one to the strange power of corporations to hire and fire auditors. Any objective
outside observer would be justified in describing this as akin to the power of an accused to fire
the judge trying his case in view of an imminent finding of guilt! Unless we address these core
issues and provide for special, expeditious policing coupled with severe penal consequences, we
well continue to live in our make believe, self-congratulatory world.
As far as the professions are concerned, they have to contend with declining morality in
every sphere, from which they cannot be possibly insulated. Our budgetary deficits may be
controllable we now have a Fiscal Management
Act but our moral deficits have assumed alarming proportions. They encompass all sectors of
life from law and medicine, politics and public life and from media to business. The
fundamental distinction between profession and business is forgotten. A famous Harvard
professor and jurist emphasised three unique elements of a profession that distinguish it from a
business: the ideas of organisation (originally guilds), learning and a spirit of public service.
The single-most important reason for this state of affairs is the absence of value based
education (VBE). Mass-producing matriculates and graduates, we have forgotten that the
cultivation of a scientific and rational temper without VBE is akin to producing rudderless ships.
We have also forgotten the fundamental distinction between religious education and education
about religions and ethical principles of the inter-faith movement. Theres a crying need to
repackage the norms and paradigms of VBE to reclaim our younger generations.
In the crusade to reconstruct our patriotism, revitalise our public morality and reclaim our
national character, we have to remind ourselves of the seven deadly sins itemised by Gandhiji.
He listed them as politics without principles, wealth without work, business without morality,
education without character, pleasure without conscience, science without humanity and
worship without sacrifice. We have covered some parts of the journey but many miles remain.
THRASH IT OUT AGAIN
A social welfare legislation of far-reaching impact not only for women but for Indian society
in general is the recently enacted Protection for Women from Domestic Violence Act, 2005. The
Act provides a comprehensive remedial and rehabilitative framework to deal with domestic
violence, defined to include both commissions and omissions involving physical, sexual, verbal,
emotional and economic abuse. The complainant can only be a female who is or has been in a
domestic relationship (with the respondent), which, in turn, is defined as living, or having lived
together at any point of time when the two are related by consanguinity, marriage or through a
relationship akin to marriage, adoption or living as part of a joint family. The complaint is
maintainable irrespective of whether the complainant has any right, title or interest in to the
shared household and irrespective of the nature of that shared household, be it leasehold,
freehold, jointly or individually owned.
Protection Officers (PO), NGOs running shelters and charities for women and shelter homes
can be notified by the government and are registerable under the Act. Upon receiving
information regarding domestic violence, police officers, POs and other entitles can provide
shelter to the complainant in a shelter home, provide medical aid and enable the filing of a
separate criminal complaint for dowry-related harassment under section 498A of the IPC.
Upon application, a magistrate is required, preferably within three days, to commence
hearing for any payment of compensation/damages arising from domestic violence and to try to
complete it within 60 days. Such compensation shall be without prejudice to any subsequent
claim by the complainant in a civil suit. The magistrate may initiate counselling as also take the
assistance of welfare experts. The proceedings can be held in camera, if so desired by the parties
or by the magistrate. He can secure the complainants residence in the shared household. After
hearing, the magistrate may, by a protection order, restrain the respondent from committing or
aiding or abetting any act of domestic violence, entering the employment premises or school or
other premises frequented by the complainant, communicating in any manner whatsoever with
the complainant, alienating any assets, including bank accounts or lockers used or held or
enjoyed jointly by the parties or singly by the complainant, causing violence to dependents, other
relatives or anyone assisting the complainant and, finally, from committing any other act as
specified in the order.
The magistrate can also remove the respondent from the shared household, restrain him
from alienating or encumbering or renouncing interest in it, directing the respondent to secure
the same level of alternate accommodation (including payment of rent) and direct return of stree
dhan and other property of the complaint. The monetary relief grantable includes loss of earnings
of the complainant, medical expenses and any loss caused due to the destruction or removal of
her property. Custody orders regarding children can be granted.
One can hardly conceive of a more comprehensive legislative scheme to deal with the
problem. The social context of India also justifies this kind of surgical legislative intervention.
One cannot forget that every six hours in India, a young married woman is burnt alive, beaten to
death or driven to commit suicide. A recent study reports that at least 45 per cent. of Indian
women are slapped, kicked or beaten by their husbands. There is an annual increase of 9.2 per
cent. in cases of domestic violence, while a large number of cases go unreported.
However, good intentions are not enough. The path to hell is frequently paved with good
intentions. The entire edifice of this Act is premised upon good, honest, sincere and objective
police officers, magistrates, service providers on the one hand and reasonable, genuinely
aggrieve complainants on the other. Given the experience of the use of section 498A in the past,
reasonable apprehension can arise that a new daughter-in-law can use this as a vicious
instrument of oppression. Second, the Act has to be operationalised and made meaningful not
only for the already empowered articulate city woman whose relatives have frequently used
section 498A as an instrument of torture over the entire family but for the lower income
woman, including those in semi-urban small town settings and, most importantly, the voiceless
rural woman living in a patriarchal, panchayat dominated agricultural setting.
The Act does not permit filing of complaints, for example, by a tormented mother-in-law or
sister-in-law where the perpetrator is the daughter-in-law. The definition clause is, therefore,
subjective and highly amenable to misuse. Sexual abuse includes conduct of a sexual nature that
abuses humiliates, degrades or otherwise violates the dignity of woman, emotional abuse
includes ridiculing, humiliation, name calling and insults and economic abuse is defined as
deprivation of all or any economic or financial resources to which the aggrieved person is
entitled under any law or custom< All manner of subjective expectations of the aggrieved
person can be read into the last part of this definition.
Despite its enormous scope, the Act does not cover those relationships where the parties have
not lived together, e.g. long-term dating couples living separately. Second, if domestic violence
should be gender neutral, it cannot exclude, as the Act does, same-sex live-in relationships. The
Act ignores the already overburdened nature of our magistracy. It is also deficient in not
providing sufficient deterrent to prevent and punish false complainants.
The bottomline is fair invocation of the Act and objective and honest implementation. Given
the Indian genius for distortion and misuse, one hopes history will not repeat itself.
SUPREME COURT PLUGGED IN
Every once in a while, we have a pleasant exception which validates the norm encapsulated
in my favourite gag: A committee is a group of the unfit, appointed by the unwilling, to do the
unnecessary. The most recent shining exception is the report of the apex courts committee on
implementation of Information and Communication Technology (ICT) in the Indian judiciary
chaired by retired Justice Bharuka.
The report owes its genesis to the initiative of Chief Justice Lahoti in proposing an ICT reform
cell in the Supreme Court. This was done at the last CJs conference. Thereafter, an e-committee
was constituted through the GoI in December 2004. The committees terms of reference were
comprehensive. These included obtaining updated status of computerisation in all high courts
and lower courts to making a specific diagnostic study of existing IT applications in certain
specified high courts and subordinate courts. Also mandated were the formulation of a national
policy on computerisation of the justice delivery system, designing of an IT network, creating an
IT grid linking the apex court to all courts in India, drawing up a time-bound action plan and
building infrastructure and manpower support systems for the above.
Based upon similar work done in Karnataka by Bharuka when he was a high court judge
there, the committee has done remarkable work in a very short period of time and already
submitted its main reports in May and August 2005. It has provided a comprehensive action plan
for diverse initiatives: provision of computers with internet access in court complexes, laptops for
judges, ICT training and extension of computer facility from the filing counter to the judges
chamber and all sections of the registry, facilities for video-conferencing between undertrials and
courts, digital archiving, the use of advanced ICT tools including biometric facilities, gateway
interface with other agencies and manpower training.
This exercise is refreshingly different from the norm of endless committee terms and lax or
non-existent implementation. First, since it was the chief justices initiative, it did not get bogged
down by bureaucratic delays but was kickstarted expeditiously. Second, it involved a hands-on
chairman with long and direct experience of this specialised subject, and thus proceeded in a
focussed manner. Third, the entire exercise was completed in six months or so an occurrence so
rare as to be (pleasantly) shocking. Fourth, the main report is followed by a very specific action
plan, with specific timelines for each task and a specific costing of each activity. Fifth, it is
significant to note that the total five-year implementation period, spread over three phases, is
estimated to cost only Rs. 854 crore, an insignificant sum when seen in the context of the huge
public interest involved and the wasteful expenditure reflected day in and day out in several
paradigms of governance. What is now required is a strong, constructive judiciary-government
partnership in implementing the specific recommendations of this report within the stipulated
five years.
A tom-tomming superpower
IT is amazing how the US continues to openly declare its intention to flout not only all
known canons of international law but also all norms of civilised behaviour and boundaries of
sovereignty. The latest example is its belligerent response on the use of unclear energy by Iran.
When Rambo Bush declared that all options are open, including military ones, one could scarcely
believe that the UN let it pass with barely a whimper of protest and formal denial.
Consider the facts, Iran wishes to develop several facilities using nuclear energy to reduce its
excessive reliance on oil. It opens up all its facilities to the most comprehensive and intrusive
inspections possible by the International Atomic Energy Agency (IAEA). The inspections do not
reveal any rogue or surreptitious bomb or bomb in the making. Despite years of American
attempts at blocking Iranian initiatives to develop nuclear energy facilities for peaceful purposes,
Iran has bent over backwards to comply with all IAEA requirements. It is a signatory to the
nuclear Non-Proliferation Treaty (NPT) and complies with its mandate. Last November, under
pressure from Germany, France and Britain (EU-3), Iran even agreed to maintain a voluntary
freeze on its uranium-/+ enrichment activities while negotiations took place over a package of
political and economic incentives and in respect of its nuclear programme. It has, however,
rightly insisted that the talks and the freeze cannot be strung out indefinitely and that Irans
rights under the NPT must be recognised.
After over a six-month delay, the offer now made to Iran by the Europeans, under direct US
influences has rightly been termed by Iran as an insult. The offer requires Iran to dismantle a
number of programmes, including uranium enrichment (the heart of any peaceful nuclear
initiative) and rely entirely on EU-supplied fuel. Iran hasnt done anything unreasonable in
rejecting this offer and restarting its uranium conversion plant, which runs under IAEA
supervision to produce feedstock for its uranium enrichment plant which itself remains under
the IAEA seal.
The implication of such bellicose stands is also that any action against Iran will set a
precedent for future moves by the US to shut down similar NPT sanctioned programmes in other
countries. In that event, even the NPT becomes irrelevant because even those who adhere to it,
despite its clearly discriminatory approach, are liable to be policed and circumscribed by the US
contrary to the terms of the NPT. Ironically, all this is happening while the US is adding a new
generation of nuclear weapons to what is already the worlds largest nuclear arsenal, in flagrant
breach of NPTs explicit mandate that existing nuclear power progressively disarm.
Unless there is global uniting and a recast and restructured UN to stop such international
dada giri, we might as well sing a requiem for international law and the UN.
COURT ARREST
The French have a saying: The more thing change, the more they remain the same. I got that
feeling recently when I appeared, after more than a decade, at the district court of Gurgaon in a
keenly-contested case.
The court complex had lots of chairs scattered across a large hall, demarcating the territories
of lawyers who sit and consult their clients in the open. The building was somewhat less
dilapidated and the walls were less paan-stained than those of the district court systems of Bihar,
UP and even Delhi. Yet, the atmosphere was sultry, humid and oppressive, even in the open.
Touts could be seen operating openly at a distance. The actual courtroom on the first floor was
being run by a lady judge seated on a slightly raised platform. Her large room had a solitary fan
(that too in the center of the room and not above her) and she had about 60-70 cases to deal with.
There was no computer, no gleaming filing cabinet and certainly no air-conditioner. Well before
my turn came to argue the case, I was feeling weak and by the time I finished, I was perspiring
profusely, I did not even have the sense of humour to attribute my sweat to hard work!
The judge was most admirably dealing with several things at the same time: her ahldaar stood
at the entrance of the courtroom, shouting out the name of the next case/litigant; her typist
furiously typed the evidence of a litigant with hardly any interference from the judge; and she
herself heard and arguments in another case. Some aggressive-looking litigants, a few dangerous-
looking criminals, some hefty policemen and several burly and dominating lawyers completed
the picture.
I found the judge to be intelligent, with a quick grasp of the issue at hand. She was also
remarkably patient and polite, not only in my case but in the vast majority of cases she heard. She
also dictated, in reasonably good English, legal orders which appeared unexceptionable.
None of the above is new or unknown. With variations of degree, this can be the story of
most of our district judiciary, which includes the district and sessions judges as also the civil
judge/magistracy below them. Here are people who, by law, are given the divine power of life
and death over their brethren (a death sentence by a sessions judge is subject to confirmation by
the high court) and exercise unlimited pecuniary jurisdiction on the civil side (meaning they can
hear suits involving billions of rupees up to an unlimited extent). Here are people who, in many
cases at least, are sincere, hardworking and intelligent. They still have some idealism left. Yet,
what conditions do we make them work in? I cannot imagine the sheer physical torture of that
judge, sitting six days a week in that courtroom, trying to apply her mind to enormous stakes in
such an oppressive ambiance.
More importantly, what has been the ground level effect of all the committees, commissions,
reports, seminars and pious declarations, over the last two decades, on the subject of improving
court infrastructure, as for as an actual functioning district court is concerned? What has
happened in real terms to the several orders of the apex court in terms of improving libraries,
computers, furniture, housing, transportation, courtrooms, stenographers, staff and so on at the
actual ground level of the district judiciary? How can India think of competing with China and
give tall lectures on globalization when it cant provide a district court, in even the most
prosperous part of India, air-conditioners?
The many Indians in one is not at all less in the judicial sector: imagine telling a high court
judge (leave aside a Supreme Court judge) to function in remotely similar surroundings and
there would be all kinds of mandatory orders, contempt proceedings and PILs to put an
immediate stop to what would rightly be considered a menace.
If that be so, is it because we treat our district judiciary with a contempt which they certainly
do not deserve, simply because that segment of our judiciary is not as vocal and assertive as the
higher judiciary? Should we wait till the district judiciary, the backbone of the system as far as
the common mans interface with justice delivery is concerned, start going on strikes and then
given pious lectures on why judges should not strike? Or should we demean them so much in
front of the lawyers, litigants and police who daily appear before them that they are left with no
dignity and no moral authority, without which the common man cannot possibly have any faith
and respect in the dispute adjudicatory system.
What is worrying is that similar disease afflict so many parts of our system. After over three
decades of endless press hype , committees, projects, allocations, pilot programmes and reports
on Project Tiger, we now learn that there has been a net reduction in the tiger population over
this period and that this reduction is not marginal but drastic! One can only hope that the huge
amounts of money earmarked for the commendable and laudatory Rural Employment Guarantee
Scheme do not get similarly hijacked without reaching their targets. It is thus problem that of
actual, physical implementation where India needs surgical intervention, including harsh,
punitive action for non-achievement, within a mandatory time frame.
A NATION CHEATED
The two major events of the last fortnight have been the Nanavati Commission report and the
judgment in the Parliament attack case. The Nanavati report was the ninth such exercise, if one
were to count the endless committees, commissions and inquires into the anti-Sikh riots of 1984.
The fact that we are still inquiries into a 1984 incident must be an unprecedented example of
diligent yet unproductive pursuit of an issue. No other nation can justify endless injuries of this
kind. Given the enormous time consumed by such commissions, the huge public resources
expended and the relatively innocuous nature of the findings frequently directing further
probes the time is now ripe to make a national resolve to have a grand inquest into all post-
Independence inquests and to stop the practice of creating such sinecures at the drop of a hat.
The only acceptable exception to this would be a legal amendment permitting fact-finding
efforts within a strict schedule of three months coupled with a maximum non-extendable limit of
six months. Otherwise, we would be validating the notion that commissions and committees are
only a group of the unfit, appointed by the unwilling, to do the unnecessary.
The anti-Sikh riots would have been a blot on any civilised society, more so on the worlds
largest democracy governed by rule of law and a dynamic Constitution. If thousands died, only a
handful cannot be guilty. Nor can such a carnage occur without some police complicity. It is also
likely to have involved local leaders and not necessarily of any one party. The answer to all that is
to criminally prosecute wherever the slightest evidence is available. Appointment of one
commission after another is hardly the answer. Once prosecution is launched, one has to rest
content with the finding of acquittal or guilt. One cannot then appoint another commission and
repeat the procedure ad infinitum. Only the criminal justice system can be made to deal with acts
and omissions which constitute crimes. Inquiry commissions are a poor and ill-equipped
substitute. Those who try to blame the Congress and to score political points on this carnage
forget that out of the 21 years since 1984, the Congress was not in power for approximately ten
and yet criminal prosecution were either not launched or successfully completed.
It is no doubt true that where police officers are involved, laxity and negligence in
prosecution is inevitable. The answer is not to endlessly lament about it or set up a commission
but to create an independent directorate of prosecution, if not generally, at least for such
carnages. Such an independent agency would be able to effectively police the police and launch
prosecutions.
The anti-Sikh riots issue has spawned so many emotional and political bylanes that highway
issues of monetary succour and rehabilitation have taken a back seat. In the zeal of political rivals
to prosecute a few well-known political figures, the prosecution of several policeman at the level
of the constabulary and of local leaders has taken a back seat. While giving a clean chit to the
senior leadership of the Congress and to several named leaders and while using somewhat
ambiguous language about others, the Nanavati report really fails the nation in not naming those
underlingslower level policemen and lower level leaderswhose complicity it nevertheless
finds. These are the persons who were responsible for the actual massacres and they may,
amazingly, even 21 years and nine commissions/committees later, go scot free.
Equally, the zeal of the media and of political rivals to sensationalise the big names dilutes
the desirable recommendation of giving employment to at least one member of each of the
destitute families. The government should have no hesitation in accepting this part of the
Nanavati report. Similarly, a recent Delhi High Court judgment directing the Delhi Government
to pay compensation of Rs. 150,000 per injured person should be accepted in place of the
ridiculous
Rs. 2,000 offered earlier.
It is only such social welfare measures coupled with the expeditious prosecution of those
who actually carried out this carnage at the grass-roots level which will bring real relief to the
oppressed and restore faith in our criminal justice system and in democracy itself.
The apex court judgment in the Parliament attack case validates another aspect of Pota
repeatedly asserted by those who sought its repeal. The fact that draconian laws do not
necessarily eliminate the disease for which they are designed but frequently violate human rights
was known from as early as the first few years of Tada and its abysmally low conviction rate
coupled with its high detention rate. That is what led to a detailed debate on it loudly
supported by the then opposition which later brought in Pota and to its ultimate repeal. Second,
the fact that such draconian laws do not usually act as a deterrent was proved frighteningly true
time and again when incidents like. Akshardham, Raghunath temple, the J&K assembly and
Parliament attack took place during the existence and operation of Pota or its similar variants.
Pota notwithstanding, the Delhi High Court acquitted one of the accused and lowered the
sentence on another in the Parliament attack case. In the recent apex court judgment on the
subject, confessions recorded under Pota and other evidence collected under it telephone
transcripts etc. have either been disbelieved or disallowed. Such impotence of a seemingly
complete panacea to terrorism means that no requiem need to be sung on the demise of Pota.
NO PROFIT FROM OFFICE
Is the Congress Party wrong in claiming that the Chairpersonship of the National Advisory
Council (NAC) is not an office of profit? Even if it is, is it impermissible to exempt it by law? did
anyone act illegally or unethically in the recent alleged Ordinance controversy? Was the
machinery of government being suborned for the personal benefit of Mrs. Sonia Gandhi?
Now that the din and dust has settled down, the legal and constitutional aspects as also the
political and perceptional aspects deserve to be dispassionately examined.
It is astonishing that our founding fathers used the phrase office of profit in over ten places
in the Constitution but chose not to define it. In this, they inadvertently did us a disservice
because the phrase has become grist to everyones mill and is attributed different subjective
meanings by each person. Article 18 prohibits any Indian citizen from accepting any title from a
foreign state while he holds any office of profit or trust under the state. Articles 58 and 59
prohibits any Presidential candidate from holding an office of profit while Article 64 similarly
disables a Vice-President. Article 158 does so for the office of Governor while Articles 102 and 191
complete the picture for MPs and MLAs.
An analysis of apex court judgments suggests that more than one of the essential conditions
of office of profit are not legally fulfilled by the membership of NAC. It is trite law that the sine
qua non for incurring disqualification is that (a) it must be an office under the Central/State
Government (b) the office must be one of profit (c) the office must not be exempt from
parliamentary or state law.
The NAC is not a department or organ of the government. It exercises no sovereign or state
functions. None of its recommendations are binding on the government. It makes suggestions to
the government in respect of the implementation (or lack of it) of the CMP. Its monitoring is
limited to advisory and recommendatory functions regarding the CMP. It allocates and
distributes no funds, no licenses and no government largesse. It makes no appointments.
The first crucial condition is thus not fulfilled. Mrs. Bachhan occupied what from its title itself
is part of the UP government i.e. the UP Film Development Corporation. Mr. Shibu Soren was a
part of an organ of the State itself i.e. the Jharkhand Autonomous Council. Both had substantive
sovereign powers of distribution of funds. The cases are as radically different as chalk and
cheese.
Secondly, the same case law has repeatedly warned that what is or is not an office of profit is
necessarily to be decided on a case by case basis, applying the law to the various factual details of
the functions of that office. Generalisations are just not possible. It is ridiculous to suggest that
because Mrs. Bachchan or
Mr. Soren were holding such offices, the NAC becomes such an office or that each of the 44
persons of different political parties including the Speaker are necessarily holding that office.
Thirdly, the specific factual nature of each unique case is underlined by the Constitution
which mandatorily oblige (by article 103) that any such issue must be referred to the President,
that the latter shall seek the opinion of the Election Commission on it and that such opinion shall
be binding on the President i.e. the Central Government.
Fourthly, the Oppositions argument that Congress practiced the politics of vendetta which
rebounded on it is absurd and mischievous. Article 103 above shows that there is precious little
discretion in anyone. The ECs order is like a judicial order passed after hearing detailed
arguments and containing detailed reasons and findings. The charge of the BJP spokesperson is
thus not against the Congress but a grave, motivated and unfair charge against an independent
constitutional authority like the EC. It is not only highly irresponsible but shows lack of
understanding of the Constitution. But slinging mud at constitutional bodies is not new for the
BJPthey have used intemperate language against the EC before.
Fifthly, assuming that Mrs. Gandhi is covered as office of profit, what is legally or ethically
wrong in seeking to exempt that office? The Constitution gives an untrammeled power to do so.
Indeed, caselaw recognizes that there cannot be any disqualification so long as thee is an
exemption. Since 1959, when the Parliamentary exempting Act was passed, thousands of offices
have been added by different central and state governments to the list of exemptions. Political
dishonesty and duplicity reached a peak when the UP legislature recently added 79 such offices
retrospectively to the list of exemptions even as the Samajwadi Party waxed eloquent against
Mrs. Gandhi and the Jharkhand Assembly passed similar legislation amidst chaos while Mr.
Advani preached principled politics!
Sixthly, the charge that an Ordinance was being passed only to protect Mrs. Gandhi is even
more ludicrous. No one has alleged that there is even a draft of an ordinance focusing exclusively
on Mrs. Gandhi. Indeed no one has seen any such draft Ordinance. Several political parties
including SP and BJPwere admittedly clamouring for exempting legislation since their
perceived losses were many more than those of the Congress. In this scenario, legislationby
way of Ordinance or otherwisemight well have been discussed. Is it ethical, fair, just proper or
responsible for the Opposition to actively demand legislationthe SP did it in writingtill a day
before a news report is published and then to do an immoral volte face castigate the government
for proposing single person legislation and circumvention of Parliament?
Seventhly, the hullabaloo about an Ordinance. Even once passed, an ordinance has to be
replaced by an Act of Parliamentit is not permanent and imperishable. How then is Parliament
circumvented? The exemptions would have lapsed had Parliament not approved the Act, may be
after a few months. Was the Government permanently escaping Parliamentary scrutiny? And if
the Constitution specifically permits somethingthousands of Ordinances have been passed by
Parliament and State legislatures over the last 60 years by different political formationshow can
the Government be accused of acting unethically or illegally?
To such duplicity, hypocrisy and immorality of the Opposition, there could be only one
answer and Mrs. Gandhi gave it. The lady who first gave up Prime Ministership in 1991yes 15
years agoand gave it up again in 2004 can hardly be even thought of as coveting NAC
chairpersonship or MPship. It is much more difficult to be in politics and do public good while
practicing renunciation than to do so as an ascetic. No wonder the Opposition does not want her
back in Parliamentafter all, no other party has such a leader!
SEEKING CLEMENCY IS A RIGHT
Why do I think that the stand of the Congress on the Afzal-death sentence is the only logical,
correct and sensible one? Not because I happen to be spokesperson of that party and have a
tunnel vision on that count. Also not because I had something to do with the formulation of that
stand.
What is our stand? It is that clemency pardon, reprieve and the entire gamut of post-
conviction processes available to a convict have been a part of our Constitution from its
inception. Specific provisions provide for it. More importantly for over 55 years, these provisions
have been applied and operationalised in hundreds of cases. Some persons have benefited
through the application of these principles, others have not.
The process by now well-established, constitutionally and legally involves the central
government, the Home Ministry in particular the prosecuting agency of the relevant state or
Union Territory, and the police force concerned. Last, but certainly not the least, it involves the
President of India Over the years, practice, procedure and convention have led to an established
cycle of decision-making in this field, and no political party, individual, NGO or anyone else has
any role to play in it. It is only up to the central government and the President to decide.
Even after a decision, yet another avenue is provided by way of further legal challenge to the
decision. However, case law holds that the scope of judicial review in respect of issues of
clemency and the like is extremely circumscribed. In this thicket, for all and sundry to offer
gratuitous advice to akin to letting loose a political bull into a constitutional china shop.
Hence, the Congress stand in favour of a hands-off policy. A demand for no right to even
claim clemency of Afzal made by the BJP and many other sections of the parivar is the same
as seeking compulsory hanging. It means that as far as Afzal is concerned, Article 72 of the
Constitution that provides for clemency stands repealed. It means that even the possibility of the
central government and the President considering his plea stands excluded, irrespective of the
merits of his plea. Such a stand has nothing except subjective ipse dixit to commend it.
Equally, the stand that Afzal must necessarily and as a matter of inalienable right be granted
clemency made by almost all sections of the political spectrum in J&K, including the Congress
government in that state is untenable because it eliminates all discretion and application of the
guidelines regarding clemency. It imposes a result, irrespective of the merit or otherwise of
Afzals case. That claim cannot be justified on the basis of local J&K sentiment because the
sentiment in India may well be radically different. In any event, such public opinion and
sentiment is notoriously fickle and non-measurable like the weather it changes daily and even
momentarily. The consequences of operating our clemency provisions at the mercy (no pun
intended) of such subjective a decipherables can be disastrous.
As Aristotle said, each extreme is a vice; virtue lies in the middle. The Congress middle path
is thus clearly the most virtuous. The fact that the party took it and has stuck to it, despite
discordant voices at the state level, is something to be appreciated and applauded. It reflects and
adherence to the rule of law and to constitutional principles and practices.
Several peripheral issues may now be commented upon. Clemency is being used mainly in
the sense of communication of death sentence to life imprisonment. It is not intended to suggest
pardon. The latter upsets the conviction itself and removes the stigma of guilt, whereas the
former is only to do with the sentence, not the guilt itself.
Second, the demand by several persons opposed to the death penalty in principle for
communication of Afzals sentence is not germane to the debate. The death penalty is a part of
Indian law, and unless it is altered by legal or constitutional amendment, it is a given which
every judge of every Indian courts is bound to apply, whenever the relevant legal tests are
fulfilled. Personally, I endorse the present Indian legal position as the best of both worlds. Death
penalty exists, but only to be applied in the rarest of rare cases.
Third, the common argument of those whom support Afzal relates to the alleged infirmities
in the trial, to alleged errors in the judgments of the courts and to other merits of the case. It has
been well-established for decades that the clemency provisions have nothing whatsoever to do
with the merits of the case. Article 72 creates no appeal from the apex court to another
adjudicatory body above the apex court. The Central Government does not and cannot scrutinise
the legal errors of the apex court or other courts below. It is entirely possible for clemency to be
granted despite the absence of any legal errors on grounds of disease or family circumstances.
Conversely, it is entirely possible for clemency to be denied despite the existence of several
egregious legal errors, on the ground that there are no special equitable circumstances justifying
clemency.
IT PAYS TO BE NICE
Lest be characterised as a habitually negative reviewer of films, cosmic justice has delivered
the wonderful Lage Raho Munnabhai (LRM) close on the heels of the dreadful Kabhi Alvida Na
Kehna (KANK). Not since Lagaan have I seen: more powerful and evocative film where a message
has been masterfully entwined with quality family entertainment. LRM is a challenge. We liked it
because we do not find its essence in real life, and yet, its operationalisation in todays society is
not so difficult as to seem impossible and unattainable.
Sequels frequently turn out to be damp squibs because they tend to be repetitive and
generate so much deja va as to become boring. LRM has managed to convey essentially the same
message as the previous Munnabhai the vitality of good deeds and a basic faith in the essential
goodness of humankind while portraying a completely different story line, with new actors and
new situations Director Vinod Chopra is obviously a supremely confident genius who is not
scared to innovate and deviate from time-tested formulae.
LRM is a lesson in communication. It creates a paradigm on which communication experts,
public figures and political parties can reinvent themselves. It shows that positive thoughts and
energies once released into society can create as seamless web that can out do and outstrip any
mega advertising campaign or any political movement. It shows how much common ground
exists and can, in fact, be created at short notice in seemingly divided societies so long as the
connecting element is positive energy.
The heart and soul of that commonality is the ideal of paying back to society in however
small a measure, both at the individual and collective levels. Paying back to society, in turn, need
not involve grandiose development projects or the creation of a political or social movement. It
need not involve rallies or hotly-contested elections. Deeds done at the micro-level, as public
service, immediately create a connectivity far more effective than rhetoric on as Munnabhai
puts it hriday parivartan.
It is simply not possible for most of us to be anywhere near a mahatma. For Mahatma
Gandhi, there was no boundary or limit to the upkeep of a principle. One is not entitled to make
an selfserving exception to that absolute and unchangeable principle. Yet, for even those who
otherwise try to operationalise Gandhian values in real life, it may not always be possible to
speak out the absolute and total truth, as Munnabhai advocates.
But where LRM scores is in its demonstration that small, individual acts of consideration and
public service can generate an enormous groundswell of public opinion which can propel
everyone to the right result. It also teaches us that there could be no greater politician than
Gandhi, who had this uncanny instinct to instantly identify and address public opinion-led
issues, generating immense momentum. That is a lesson that both journalists and the political
class would do well to remember.
Cost to the nation
Whenever the issue of salary and increase of allowance of MPs comes up there is a cynical
reaction from the general public. There is either trenchant criticism at our allegedly profligate
elected representatives or a lament at their supposedly low productivity. The general ambience is
one of an undeserving class pocketing an undeserved jackpot. Likewise, the political class also
bears a generally apologetic and furtive look while perforce legislating for themselves these pay
hikes.
I have argued earlier that rather than looking at individual items, we should calculate the
aggregate of all benefits and perks which each MP gets to arrive at his Cost To the Nation
(CTN). Some recent estimates of CTN per MP are as high as Rs. 38 lakh per annum. That works
out to Rs. 3 lakh per month. It is high time that an independent pay and allowances commission
be formed to periodically carry out indexing and revisions on this subject. Self-legislation, even
where entirely justified and overdue, becomes a highly defensive and avoidable exercise. The last
2006 legislation that increased the amounts for legislators makes it clear that such a commission
alone shall do this exercise the next time round.
If logic alone is applied, the cynicism and criticism is unjustified or, at any rate, highly
exaggerated. The JPC report of May 2006, on which the last increase countries such as Australia,
Austria, Belgium, Canada, France, Germany, Italy, Japan, Singapore, Britain and the US is higher
(and sometimes significantly so) than the Indian figure for legislators. We may be just ahead of
Bangladesh and possibly Sri Lanka, and that, too, not on many indicators.
Nor does the public outburst take into account the fact that many of our legislators hail from
humble economic backgrounds. They have to discharge a large volume of public duties that
inherently involve unavoidable expenditure. A large amount of travel, constant correspondence,
research and secretarial assistance are inalienable components of a legislators public life.
Perhaps the real, if unspoken, premise of this predictable reaction is the behalf not entirely
unfounded that public life in India has become so immoral that no legislator needs State
support by way of enhanced salary and allowances. Like all generalisations, this is untrue but it
hides a germ of truth that should leave our legislations thinking.
LOSING THE SONG FOR THE WORDS
Vande Mataram has been in the news but for the wrong reasons. Most people are reacting
but also for the wrong reasons. That is because few are aware of the history surrounding the
song. The fundamental fallacy is to confuse the song and its exalted status on the one hand, with
its compulsory singing on the other.
In The Biography of a Song, Sabyasachi Bhattacharya points out that the song can be dated to
sometime between 1870 and 1875. It is clear that the first two stanzas were written earlier by
Bankimchandra Chattopadhyay and the later portion added when the author published his
novel, Anandamath, in 1881. Thus, the author himself made a distinction between the first two
stanzas and the later portion.
The song is one that India is justly proud of. It was the vanguard of the freedom movement;
it inspired and enthused a whole generation of Indians, including pathfinders like Tagore (who
sang it first in 1896), Aurobindo and Gandhi. It soon transformed into a slogan by itself, a slogan
of anti-imperialism.
In actual fact, the first two stanzas have no religious motif or symbolism at all. They are a
soul-stirring ode to the motherland and reflect one of the finest tributes to nationhood and
patriotism. The subsequent paras continue in the same vein, barring two references to Hindu
Goddesses Durga and Kamla, i.e., Lakshmi.
Divisive British policies and Jinnahs growing opposition to the song led to the setting up of a
committee headed by Nehru, acting on Tagores recommendation, to give a special status to the
first two stanzas in 1937 and to encourage its singing while clarifying that there was no
compulsion to it. Thus, the first two stanzas must be sharply distinguished from
Chattopadhyays novel. Moreover, the element of compulsion was eliminated by a resolution as
far back as in 1937. The last day of the Constituent Assembly led to Vande Mataram (the first two
stanzas) being adopted by a non-voting resolution as Indias national song.
Post-Independence, the status of the composition as Indias national song, with all its
attendant prestige and special status, was an established fact. It has been sung with joy by large
congregations. The few who have objection to its recitation have avoided singing it but without
furore and controversy. Compulsion in singing has been a non-issue.
Interestingly, in 1996, the BJP supported UP government sought to issue a circular to make
the singing of Vande Mataram compulsory. The then BJP PM, A.B. Vajpayee, clarified that this was
not so. This is a party that is now trying to cash in on pulp patriotism by declaring its singing
mandatory in several BJP-ruled states. The BJP must also answer why it did not declare its
singing to be compulsory during its 1998-2004 tenure?
Obviously, because Vande Matarams national status and its non-compulsory singing status
have gone hand in hand and been an irrevocable fact now for over 70 years, since 1937. The
circular issued recently by the UPA government did not use the word compulsory. On top of
that, the moment that controversy arose, the seven decade position was orally confirmed that
singing was not compulsory.
Vande Mataram has stood the test of time. It has been accepted and absorbed by Indians for
decades. The supreme irony is that those who want us to show that we are patriotic Indians only
if we sing Vande Mataram compulsorily, do Vande Mataram the greatest disservices because they
evoke a resistance to it that is not existent when millions sing it spontaneously and voluntarily.
Destroying faith
I am not a film reviewer though I love watching thrillers and murder mysteries. I am not
inadly fond of Shah Rukh or Amitabh (as may wife is) or Abhishek (after all, I took that mane
much before it became famous or common) but I rate them both highly (my favourities are Sunny
and Saif). I am not all averse to Rani or Preity (though I prefer Juhi and Mumtaz). I was
nevertheless horrified to find a horrible and shallow offering Kabhi Alvida Naa Kehna being
eulogised ad nauseam by the media.
Maybe I am dimwitted but I would like the bright TV participants who were constructing the
most complex philosophical models on the basis of this film to answer a few question. Was
KANK trying to teach infidelity or extra-marital sex to Indians to those who wrote and lived the
Mahabharata? Was there any story or content in KANK? If infidelity was to be portrayed, was
KANK a patch on Fatal Attraction or Arth or Unfaithful? Each of those films had a story, solid
content, an extrapolation from everyday human events.
In contrast, KANK presented a inconsolable weeping Rani. What torture did Abhishek subject
her to? What was so heinous about Preity conduct that made life unbearable for SRK? Perhaps
Karan Johar wanted the audience to assume all such minor details. And what stopped SRK from
marrying Rani after separating from their respective spouses?
All KANK had was the glitter of New York. It was all hype without matter. It was plain
boring. But it shows what hype can do. By sheer advertising power, the nation was made to
discuss, analyse and dissect a banal and highly forgettable movie. Fortunately, most discussions
were a thousand times more tolerable than the movie itself.
PICKING ON NOTHING
On our nations 59th birthday, there are many things we cannot be proud of. Indeed, we have
enough things to be ashamed, of. This is not a report card of the nation but looking at one facet
alone parliamentary democracy. A first-time visitor to Parliament may well be forgiven for
being bewildered and disgusted with the chaos and cacophony witnessed in the two Houses.
Indias temple of democracy is often the hub of pettifogging, shouting and wramgling matches.
Automatic opposition to anything and everything is common. Boycotts and interruptions reduce
parliamentary time and efficiency by over 50 per cent at great cost to the nation. This excludes the
more extreme examples of some state assemblies where hurling of chairs and chappals and the
occasional fisticuffss is known to occur.
This is larger issue of a fractured consensus. The lack of grace and magnanimity is an
inevitable consequence of a societal and political divisiveness. The binding agents at each level of
society have vanished; the divisive factors of caste, creed, community, politics and personal
ambition alone are visible. The products of this ambience must necessarily be small minds with
inflated egos.
Amid this depressing scenario, I witnesses a touching scene in Parliament the other day
which reaffirmed my faith in Parliamentary democracy and made me think that, perhaps, all is
not lost.
Early Sunday evening, I was besieged by calls from a TV channel asking me to be ready to
react to a major, sensational story which it proposed to break that night. Since they would not
disclose the contents in advance, I refused. Just before the start, I was told the story that of a
sitting Union Home Minister allegedly having been recorded having conversations with a gang
leader incarcerated in a UP jail, seeking favours for the ministers son-in-law.
I refused to comment till Monday despite the tenacity and persistence of the channel. I then
saw that the whole nation saw a recorded conversation being played ad nauseam, politician
bashing ad infinitum, didactic sermonising by all and sundry. In the midst of all this, I saw a
diminutive, dark minister; unable to speak English, desperately trying, in accented Hindi, to
defend his honour and going black and blue with denials while journalists thrust intrusive and
provocative questions at him. Lack of an instant answer was construed as established guilt.
I had never seen, met or heard Manikrao Gavit. The next day, I saw him for the first time in
the Upper House. He rose and read from a handwritten piece of paper in somewhat incoherent
Hindi, protesting his complete innocence but insisting on stopping discharge of governmental
business as a minister till completion of the inquiry.
And then unfolded something which almost brought tears to my eyes. Shared Yadav, a
senior Opposition leader rose and made a robust defence of the minister. His words, were
evocative and powerful he said he had known this man for years and Gavit could not have
made five paise in his life nor hurt a fly Sushma Swaraj contrary to her partys strong attacks
on Gavit for hours on Sunday night rose to say that she had spent 10 days with Gavit as part of
a parliamentary delegation and bad no hesitation in saying that even to the naked ear, the voice
on tape was not his. She said that she did not even want an inquiry against the minister she was
convinced and would certify then and there that the man was innocent.
There are many lessons here. One, the need for responsible journalism. The visual media
lives for the moment. The need for sensationalism and for instant answers is, in turn, driven by
the mad demands of competitive journalism, which, in turn, is dependant on the completely
vague and subjective methodology of TRP ratings. Gavit necessarily had to be exposed in order
to have a Sunday scoop. The channel didnt think it appropriate to investigate further and verify
the tapes.
Second, politician-bashing is easy and makes instant heroes out of those who do it. NGOs,
commentators and analysts not only make a living out of it not only do they get publicity not
only do they build substantial and lucrative careers but they can exhibit a higher morality which
rarely attempts to differentiate the bad from the good apples. It is deemed irrelevant that they
have very little experience of governance themselves and very little knowledge about the simple
lives of several legislators.
Third, the disastrous effects on the life and reputation of individual politicians. How many of
us know that Gavit is an eighth-time elected legislator? That the man is simplicity personified?
He cannot speak English and is not a sophisticated urban icon. He does not come across as a
suave or savvy politician. Is that the reason that he confirms our worst notions of criminally?
Would the media have been equally self-righteous, intrusive and aggressive with media savvy
politicians?
Fourth, it is imperative for civil and political society to rise above pettiness as it did for
Gavit and speak up for decency honesty and simplicity, irrespective of political divides. This
realisation must dawn that that all persons in public life are not corrupt or venal. That hundreds
of legislators come from simple backgrounds and continue to live simple uncomplicated lives but
connect hugely with the masses in their constituencies. The fact is that all generalisations
including this one are wrong and may even be dangerous.
And finally, the media, commentators, political parties and civil society must cease to
mistake a moment to be eternal reality. Everyone has to start thinking in short and mediumterm
paradigms in terms of impact of actions and reject the instant-coffee nature of contemporary
society.
THE RIGHT TO NOT DISCLOSE
Like other liberal members of civil society in favour of transparency, my first reaction to the
Cabinet decision approving amendments to the Right to Information (RTI) Act was that it
circumscribed the Act and represented an avoidable curtailment of the disclosure process. An
analysis of the sequence of events preceding the original enactment and the recent amendment
has led me to conclude that my initial reaction was predictable but erroneous what the original
enactment never gave could not possibly have been taken away by the amendment. One may
have different views about what ought to be the ideal level and scope of disclosure in any RTI
Act over-expansive, striking a balance or restrictive. But the facts make it abundantly clear that
Parliament never intended to allow file nothings to be made available for inspection in the
original enactment. Therefore, the amendment, which makes such file notings available for social
and development purposes, is a liberalising amendment in comparison to the original enactment.
The following sequence of events is significant and something that most people are unaware
of. The previous government created and notified an earlier version, the Freedom of Information
Act, 2002, in 2003. This enactment specifically exempted minutes or records of advice including
legal advice, opinions or recommendations made by any officer<during the decision-making
process<. from disclosure. File nothings and opinions were thus not required to be disclosed.
The present government enacted a more comprehensive RTI to replace the earlier 2002
enactment. Even critics have called the RTI 2004 as one of the most progressive RTI versions of
the world. The original version of the 2004 draft, emanating from the National Advisory Council
(NAC), sought to define information in section 2(e) to include, among other things, specifically
file nothings. After detailed discussion, it was decided to drop the specific reference to file
notings. The RTI bill was then introduced in the Lok Sabha in December 2004 with the definition
section reflecting this conscious deletion of file notings. The Bill then went to the Parliamentary
Standing Committee and the Group of Ministers. The committee and the GoM maintained this
deletion and the enactment as finally passed by Parliament did the same.
The present amendment approved by the Cabinet specifically permits disclosure of file
notings on social and development issues. It is, fact, a progressive pro-disclosure development
that gives for the first time ever, a specific statutory right to seek disclosure of even file nothings
for these two categories.
Why then the hullabaloo? It depends on how you look at it. The denial of file notings as
disclosable material, which was maintained by the original enactment, was reiterated by the
Department of Personnel in its frequently, asked questions (FAQs) section on its website once
the law became operational. While deleting the earlier reference to file notings, the original
enactment had not gone to the extent of affirmatively saying that file notings shall not be
disclosable. Quite clearly, however, the deletion of file notings from the definition of
information was intended to achieve the same result.
The absence of a specific negative prohibition in the original enactment was, unfortunately,
used to hold that file notings would, by interpretation, fall under the normal meaning and scope
of information and of file. The decision in Satyapals case, delivered by the Central Information
Commission on January 31, 2006, held so. Consequently, when the latest amendment was made,
allegations of circumscribing the level of disclosure followed.
Having established that parliamentary intent had never been to provide any access to file
notings and Parliament must be deemed to reflect the will of the people one can support the
decision to have limited access to file notings only on development and social issues on several
other grounds. Firstly, the admitted position is that several leading proponents of this right
functioning democracies and developed nations exempt file notings from disclosure. This is
true in the US, Britain, Australia, the Netherlands, France, Canada and Ireland. Such countries
have found that untrammeled disclosure through RTI Acts seriously inhibits free, fearless and
frank advice. Officers take recourse to ambiguity and ambivalence or simply do not opine on file
or do so in highly insipid, non-productive and guarded words. If the entire deliberative process is
to be made public, serious reflection on the reputation of officers would also lead to public
controversy. Disclosure can also frequency be the basis of harassing officers.
Those in the Opposition who now criticise the proposed amendment consciously deleted file
notings disclosure. They are merely protesting for effect. Disclosure for social and development
issues opens up a vast vista of possibilities which can be responsibly exploited by responsible
citizens.
Public interest always involves balancing of competing public values. As Aristotle put it:
Virtue is the mean between two extremes, each of which is a vice. Unrestricted disclosure of
everything versus no-file-nothing disclosure are two extremes which must reflect Aristotelian
vices. Reasonably wide disclosure of file notings in two fairly wide categories is the UPA
governments virtuous mean.
CITY LIMITS
We Indians are justifiably proud of our rich cultural and agricultural heritage. Many of our
forts, though not as famous as European ones, are comparable to the best around the world the
Jodhpur for being a striking example. Our palaces the ones in Baroda, Jaipur or Hyberabad, for
instance are world-class. The Taj Mahal is one of the wonders of the world.
But take a quick second look at the cities housing these monuments and you will be
disgusted by the filth and squalor in their immediate vicinity. I can hardly think of any urban
conglomeration of a reasonable size in India where the inner city is not a picture of abject neglect,
degeneration, decrepitude and filth.
This urban degeneration takes many forms. From Kanpur to Kanyakumari, from Calcutta to
Coimbatore, from Shimla to Siliguri, we have, as in so many other spheres many Indias within
one. There is mixed land use everywhere. Hitherto residential areas have become fully
commercial, dotted with tailoring shops, beauty parlours, coaching institutes and what have you.
There is lack of proper sewerage everywhere. Open drains emit a stench that would make
hardy Indians, leave alone foreign tourists, blanch and faint. Shockingly ugly electricity poles
stand right outside the most aesthetic havelis. Overcrowding is the rule of the day. The traffic in
the most valuable heritage zones reflects a jumble of vehicles of all sorts, collectively generating a
cacophony which renders quite contemplation or aesthetic enjoyment impossible. Outside the
cleanest of religious monuments temples, mosques or others, which insist on all forms of
cleanliness within their precincts are the most nauseous garbage heaps. This list can go on but
the point is clear.
There are several factors that contribute to this disgusting state of affairs. However, one of
the major causes is the Indian (and indeed Asian) habit of blaming everything on the
government, of externalizing the cause instead of doing ones own civic duty.
As a people and a culture we are full of extraordinary contradictions. The Indian
philosophical and spiritual thought has always extolled the virtues of cleanliness of shauch in
every sphere of life. Yet all our honourable sermons on cleanliness stop at our doorstep and have
nothing to do with our neighbourhood, community, society or country. By contrast, the Western
individual, arguably maintaining a lower standard of personal hygiene (by Indian standards),
applies the concept as much within as outside his home.
It is interesting that this duality, this inconsistency between preaching and practice, exists in
so many unrelated aspects of Indian life. For example, the concept of the four stages of life
brahmacharya, grihastha, vanaprastha and sanyas is uniquely and innovatively Indian. Vanaprastha
stands for the prerogative to pursue ones interests, hobbies and talents while one is possessed of
ones mental and physical faculties, even while slowly withdrawing from the material rat race. In
actual fact, vanaprastha is practised by several Westerners lawyers judges, politicians who
choose to voluntarily retire before the prescribed supperannuation age to pursue their passion for
travel, charity or sport, I cannot count, even on the fingers of one hand, any significant Indian
examples.
Turning back to our cities, what is the solution? The time for complaining and setting up
committees is over. The Central and State Governments should intervene directly to clean up
selected portions of, say, 50 targeted cities. This could be done by creating aesthetically pleasant
zones in small parts of the town center or in some major part of the city. Dilli Haat, the Pandara
Park restaurant complex, and the proposed pedestrianisation of Connaught Place an small but
extremely significant examples from Delhi and deserve emulation everywhere.
The real lesson from these town beautification projects is that once the area is pedestrianised
or otherwise beautified, the entire community acquires a pride and a vested interest in keeping it
as it is Littering stops, social responsibility rises exponentially and the project becomes a role
model for imitative multiplication. But it is important to extend such initiatives to places far from
Delhi, to all mid-size urban centers across the length and breadth of India.
Finally, all such initiatives should try to include schemes for a plaza in the city centre. Such
plazas, like India Gate in Delhi or Victoria Memorial in Kolkata, ultimately become the lifeline of
the city and the heart and soul of collective bonding for its citizenry. Almost all European cities
even non-capital ones have a plaza, which is a model for emulation.
We tend to mock at such initiatives as either too elitist/Western or too difficult to implement.
None of these stereotypical paradigms is correct. History will not blame those who tried and
failed; it will blame those who failed to try.
Visit at your own peril
In the face of the exalted Indian tradition of hospitality - of atithi devo bhava, which equates a
guest to the divine comes a jarring note of insensitivity from the breathtakingly beautiful
environs of Almora district. In the quiet solitude of Binsar where the sound of silence is so
eloquent that one can hear ones own unspoken words I found the following notice at a
government rest house:
Music not allowed in vehicles; do not throw lighted cigarettes or matchsticks, it may start
forest fire; camp fires not allowed; liquor strictly disallowed; non-vegetarian food is prohibited;
electricity is not available; hot water will not be provided during April to July; do not waste any
water; do not tip any individual. Doubtless true on most points, but not the most tactful or
hospitable of invitations to a state reliant on tourism.
GRATEFULLY YOURS
Invited to speak on the cultivation of a Thanksgiving attitude, I started by emphasising that
attitudinal change is the most significant form of change. If altitude, not aptitude, determines
altitude, viz. how high you soar, then an attitude of gratitude (A-of-G) can clearly allow us to
soar as high as we like.
An A-of-G of nothing but a state of mind. It is learning to be happy with what you have,
while pursuing all that you want. Hence, if the only prayer in ones life is a thank you, it would
suffice.
One cannot have this attitude unless one starts recognising the supposedly small graces of
life. Easier said than done, it is necessary to be grateful for the grace of better understanding, to
be happy to want what one has, rather than seeking to have whatever one wants.
In a nutshell, the mantra for an A-of-G is to pause whenever one is in the midst of any
extreme problem of daily life and then think of the thousands far less fortunate than oneself.
Looking for the good in every situation generates this attitude. As was put tellingly: I was once
distraught because I had no shoes, until I met a man who had no feet.
A third, more activist aspect is to indulge in positive acts of Thanksgiving. It has its origins in
the US (from 1621) and Canada, which have national holidays every year on that day.
The basic aspect of Thanksgiving involving as A-of-G, transcends national boundaries.
Agricultural festivals in diverse countries and cultures are nothing but simple acts of
Thanksgiving reflecting spontaneous A-of-G. Indias Makar Sankranti, Onam, Pongal, Baisakhi or
Chinas August Moon festival are manifestations of a collegiate, societal A-of-G. Jainisms festival
of forgiveness Kshalnayapna is another aspect of the same theme.
The challenge is to rediscover, reinvent, reincarnate and re-establish this quality in our daily
lives, especially from childhood. A national Thanksgiving day one that is Inditanised an
Aabhar Parv or Kritagyata Divas can be considered. Indeed, the ideal should be an annual
global Thanksgiving Day. The year 2000 was so declared by the United Nations.
It is also necessary to develop school-based initiatives and modules to help children learn
and develop and A-of-G at an early age. Thanksgiving opens changes a childs personality. A
child may be resentful or negative, or; alternatively, he may be thankful. Thankful children want
to give and radiate happiness. William Faulkners analogy Gratitude is a quality similar to
electricity; it has to be produced, discharged and used up to exist at all emphasises this giving
aspect.
The manifestations of an A-of-G can be diverse and extreme; Eklavyas offer of his thumb to
Dronacharya as guru dakshina; Karnas withdrawal of his vow to kill Arjuna (at Kuntis
insistence), but reiteration of his decision to fight the Pandavas because of his deep-seated sense
of gratitude towards Duryodhana, a man whom he otherwise considered evil; Krishnas washing
of Sudamas feet in remembrance of many kind deeds by the latter.
In my twin professions law and politics gratitude is not only not a normal feature, but it
may be a rare aberration. Hence we must harken back to an attitude of Thanksgiving and
gratitude, which is rightly described as the mother of joy.
Law upheld
The US Supreme Courts decision last week, striking down the creation of special military
tribunals to try detainees, is rightly hailed as a victory for human rights and the rule of law.
The court held that no domestic legislation authorised the setting up of such military
tribunals, which were intended to function separately from both the established civilian judiciary
of the US and US military court martials. It castigated the procedure of such tribunals, which
effectively excluded the detainee from his own trial by not allowing him knowledge of evidence
against him. The process was held to violate not only US military law but also the Geneva
Conventions.
The court asserted that it was its duty in both peace and war, to preserve constitutional
safeguards of civil liberty. It also stated that even if one assumed that detainee Hamdan was a
dangerous individual, capable of causing immense harm to and death of innocent civilians, it was
still incumbent on the executive to comply with the rule of law.
These statements are reminiscent of the celebrated dissent of Lord Atkins in Liversidge V.
Anderson in Britain during the Second World War, immortalised in his words that amidst the
clash of arms, the laws are not silent.
The US court eschewed the approach of three majority judgments that have become
synonyms for judicial abdication. Liversidge in Britain; ADM Jabalpur in India (holding that even
mala fide exercises of State power during a state of Emergency would not be judicially reviewable)
and Korematsu in the US (upholding segregation and detention of persons of Japanese descent in
special camps).
But the judgment is based only on interpretation of relevant domestic US statutes, holding
them as not authorising creation of such tribunals. Whether, if specific language in such statutes
had authorised trials by such commissions, the US apex court would have held such statutes
unconstitutional remains open and perhaps doubtful. I have no doubt that similar excesses in
India, even during war-time, would be struck down by the Indian Supreme Court.
The judgment also reflects the new alignments on the court. It reversed the court of appeal
that spoke through Justice Roberts, now the sitting chief justice of the US apex court, who,
therefore, did not participate in the apex courts decision. Justice Stevens, writing for the
majority, was joined by Justices Souter, Ginsburg and Breyer, all known centrists or liberals, as
also by Justice Kennedy, the liberal who is increasingly providing the swing vote to create 5-4
majorities after the retirement last year of Justice OConnor. Justices Scalia, Thomas and Alito,
who wrote the dissent, continue to form the conservative core of the present court.
TRIALS & TRIBULATIONS
A few day ago, I was offered a legal brief to seek bail in the Supreme Court for a person
whose case has acquired a considerable amount of notoriety. Since the court versions were on,
the monetary fee quoted by me was considerable and substantial. Presumably because the stakes
were high, the instructing advocate readily agreed to pay the steep fees. However, a day later I
said no and told the advocate that although I had no conflict of interest and was available on the
relevant day, I just felt a certain amount of personal hesitation, a large twitch of the conscience
and a feeling of guilt, I was thus forgoing a very large fee for a few minutes appearance and also
refusing a brief despite having had similar doubts about the correctness of may cause on earlier
occasions but not having taken the same action.
All arguments of logic only highlighted the unsustainability of my stand. I have always
believed the lawyers neither choose their clients (or causes) nor judge them. That, after all, is
what judges are for. Nor do lawyers have the wherewithal and material that a judge has
(including the benefit of full oral adversarial arguments) to judge their clients ex parte at the
threshold. If lawyers started projecting their value judgments into the causes they represent,
those accused of heinous crimes would never get legal assistance.
Even two of the accused in a seemingly open and shut a case as that of Indira Gandhis
assassination were ultimately acquitted (one by the high court and the other by the apex court).
That could not have been possible if revulsion at the deed in question had precluded any lawyer
from taking up the brief. Such examples are in plenty. Finally, the essence of what my legal
training and experience have taught me is that there are hardly any situations in real life that are
absolutely black or white the vast majority exhibit large shades of grey, which make it possible
to give benefit of doubt to an accused. The ability of a lawyer lies in exploiting those areas of grey
within permissible limits of law of get that benefit of doubt for his client.
The other problem is that if you refuse a brief once on such considerations, how and where
do you draw the line in the future? The purist or the logician will gleefully rub his hands every
time you accept a brief of dubious validity or messy facts and prove how inconsistent and
arbitrary you are.
After much thought and introspection, I have come to the conclusion that the norm must
remain in taking up briefs irrespective of your personal predilections or beliefs. One cannot be
true to the dharma of ones profession be it law, medicine or engineering unless one does it to
the best of ones ability, irrespective of the lack of faith in the cause one represents or the
despicable and dispensable nature of the patient one is obliged to treat or the Nazi origins of the
autobahn one is asked to engineer. A Chinese wall however artificial and however temporary
has to be created to isolate personal disgust from professional objectivity.
I am still left with my existentialist dilemma of how to justify what I did only a few days ago
and how, if at all, to create a dividing and defining line for the future between acceptable and
non-acceptable briefs? I can only furnish a subjective conclusion. Although one must lean
strongly very strongly in favour of the norm elaborated above, if one finds that personal aversion
to the merits of the cause one is asked to represent is so humongous as to disable one from doing
justice to the brief one has accepted, it is best to refuse it at the outset.
The test must thus harken back to ones professional dharma, viz. an inability to discharge that
dharma fully and without inhibition. Subjective likes and dislikes on such issues would play
havoc with the discharge of professional functions and duty.
Anyway as far as the case in question is concerned, I am happy to say that it satisfied even
the above test that I am now retrospectively applying.
Assams fortune
Having appears in every High Court of the country (except one) more than once, my maiden
appearance at Guwahati High Court was like a milestone in my legal career. But since the case
did not take off, I was able to spend some part of the day seeing the city, interacting with the
media and spending time with Chief Minister Taran Gogoi.
What struck me about Gogoi was the remarkable combination of graceful age and experience
with youthful progressive ideas. Here is a CM who not only pulled off one of the most
remarkable repeat victories for an incumbent government (the first time since the early Seventies
and despite dire prophesies of imminent defeat) but who, for the first time ever in India, had the
foresight to engage the main group of separatist. Bodos more than two years before the 2006
assembly elections thereby paving the way for their ultimate electoral alignment with the
Congress and their active participation in the mainstream by being stakeholders in governance.
It is clear that his easy, laidback manner conceals a sharp and analytical mind, which reflects
the enviable experience he has had in almost every level of decision-making. Starting his career
as Lok Sabha MP, he has been joint secretary seconded to Rajiv Gandhi, general secretary, AICC,
minister of state and later of the central cabinet, PCC chief of Assam and finally CM of his State.
He brims with ideas about infract acture development and urban renewal in Assam and has
surrounded himself with efficient young ministers who are prepared to experiment. As I left
Assam, I had no doubt that the State had a great future to look forward to.
SURRENDER TO THE MEDIA
The insistence of the Mahajan gang of friends to approach the police not directly but through
the media is an interesting development. It is part of an increasing tendency to use the media for
diverse purposes. Is this desirable? Or healthy? Is it a compliment to the media which, at first
blush, it appears to be?
When the youngsters and/or their parents in the Mahajan episode decided to speak up, they
went first to a TV channel. A variety of their explanations were telecast in some form or the other
though the actual interviews were not. Mahajan acolyte Sudhanshu Mittal also suddenly surfaced
in several channels giving his detailed version of events. Some months ago, another channel had
several hours of live and recorded exchanges between a father on the one hand (a senior serving
bureaucrat) and his son and daughter-in-law on the other, trading serious charges relating to the
custody of the bureaucrats grand-daughter. The charges ranged from kidnapping and adultery
to verbal and physical abuse. No one thought of calling the police.
This trend of surrender before the media (or is it one of media in surrender) is bad both for
the media and the dramatis personae in these human dramas. The latter tend to get carried
emotional and causal statements. They are invariably without legal assistance. Unintentionally,
they provide, a live recording of careless and casual statements which can frequently have
serious consequences. Contradictions abound and offend depict the individuals concerned in a
much worse light than intended by their deliberate media self-exposure.
The media, on the other hand, is driven, first and foremost, by TRP and viewership
considerations. In this competitive race for hype and novelty, truth and objective fact is obviously
the first casualty. The anchor must necessarily turn on the emotional and subjective screws.
Salacious innuendo adds vital spice to the media cocktail. The media become an obstruction to
police investigation. Indeed, the policing agencies and more importantly, the adjudicatory body
are influenced, howsoever subconsciously, by the enormous media hype and the seemingly
overwhelming public opinion it claims to project.
But both life and law have repeatedly taught us that appearances and usually deceptive and
that finite situations and solutions are usually heavily outnumbered by grey areas which are
more likely to be ignored by the quickfixes that instant media provide.
The sub judice rule has thus virtually perished only its formal burial and the singing of an
appropriate requiem for it remain.
In most high profile criminal cases, the media free-forall has a direct effect beneficial or
prejudicial to the accused as the case may be on the threshold and primary adjudicatory body,
especially on issues of bail and undertrial incarceration. It is difficult, if not impossible, to get a
completely fair, unbiased, impartial adjudication on issues of bail in the charged atmospherics
created by an omnipresent and omniscient media.
The media can also selectively create a hero or an icon without being careful about the
human values it is projecting in the process. I have held for long that if an established goonda
from the badlands of Dhanbad decided to reinvent himself, he only has to anonymously migrate
to Delhi, after which, if he intelligently throws a few high profile parties for six months, he would
be lionised by the visual and Page 3 media and become an established icon of Delhi, His past,
his origin his history, his career path as also his human failings will quickly be ignored or
forgotten in the glare and glitter which the media creates and magnifies. I can think of more than
one candidate who fits the bill on this count.
This also creates an uneven playing field between those who know how to misuse the media
and those who do not. A bureaucrat or politician in the first category gets away with murder
while a sincere and hardworking member of the second category gets left behind in both
progress and prosperity. Most disturbing is the propensity of the media to demand and generate
expectations for instant answers and solutions and to convince the media audience that what
they are witnessing at the moment of its occurrence is the ultimate truth. In this, the media not
only eliminates a long-term perspective, it virtually makes medium-term thinking irrelevant and
short-term planning superfluous. Instantaneous reactions and quickfixes supersede all else.
No external standard or law can cure or regulate this. We will eventually have a content
regulator but that will not, and cannot, be a panacea. It is only introspection, not individually but
collectively, by the movers and shakers of the media as also of society, which can evolve a set of
informal guidelines, which, over time and by voluntary observance, will form a bedrock of
conventions. Thats a far more solid foundation than any coercive law. That is a foundation
which alone will show that Indian media has truly come of age.
INJECT THE TRUTH SERUM
Three unconnected institutions the gubernatorial office, the Income Tax, Appellate Tribunal
and Air India Illustrate different facets of public interest and how it can be promoted or
prejudiced by acts and omissions that are not always what they seem.
Having written earlier in these columns about the commendable charitable work being done
by the Governor of Uttaranchal and the public recognition accorded to this work officially by no
less a person than the President, I was surprised to read allegations regarding misuse of his
official position by him to raise funds for his favourite charities. A closer examination reveals that
the charities in question have truly done yeoman service in a selfless and compassionate manner
and that, till date, there has been absolutely no complaint about any misuse of funds.
Sometimes, a crusade intended to be in the public interest may itself prejudice public interest.
This appears to be the case here. Given the best of motives, the press report about the Governor
may well inhibit the activities of the Himjyoti Foundation and that would be a real pity.
Sixty-seven Uttaranchal students receive scholarships of Rs. 25,000 annually for the full
duration of their professional engineering and medical courses. Eighty others are given between
Rs. 5,000 and Rs. 15,000 annually. A total of 175 Tsunami-affected children get Rs. 600-800 per
month for five years. Five girls who lost their parents to militancy in J&K are ensured college
education at Rs. 25,000 per year. Over the last two years, Rs. 5 lakh per year has been given to the
Tribes Institute at Dehradun providing educational support to 100 North-eastern students. A
project fast nearing completion is that of a boarding school for girls from impoverished families
in Uttaranchal where they will receive free education. These are no mean achievements.
Perhaps the Governor would have been well advised not to continue to formally head the
charity after assumption of office as Governor and not to writ on his official letterhead in respect
of its charitable activities. But, at best, it can be called an error of judgment. The objective facts
about the Foundation speak for themselves. An excessively narrow and pedantic view of the
matter should not be allowed to irreversibly prejudice public interest. Given his resignation from
an executive role in the Foundation, the matter must be allowed to rest there.
From the morass of the venality and corruption which surrounds many revenue services
especially the income tax services emerges the shining example of the Income Tax Appellate
Tribunal (ITAT). Set up in 1941 to hear appeals from orders of Commissioner of Income Tax
(Appeals), the ITAT, has 63 benches spread over 27 Indian cities, mostly state capitals.
When institutions have the right leadership and put their head down to get on with their
jobs, public interest can be promoted. First, over the last few years, the tribunal has successfully
reduced the pendency of its caseload from over 2 lakh pending cases to around 1 lakh cases as in
April 2006. Even in busy cosmopolitan cities like Mumbai and Delhi, disposal of appeals is being
done within two years, a substantial reduction from the over 7-10 year disposal paradigm
prevalent earlier. Appeals of smaller or individual non-corporate assesses are taken up and
disposed off within a few months.
There was a time when the ITAT had the reputation of being the most efficient tribunal in the
country. Eminent jurists like Nani Palkivala not only started here but practiced regularly for
several decades before the ITAT. From the late Seventies onwards, the tribunal began to suffer a
decline but there has been considerable improvement in the recent past.
The internationally renowned tax guru, Prof. Klaus Vogel, has lauded to the sophistication
and dynamism of Indian jurisprudence relating to Double Taxation Avoidance Agreements. In
doing so, he has specifically referred to recent decisions of the ITAT and not only praised them
profusely for their technical excellence but also opined that they serve as a model. This, indeed,
is objective accolade and appears to be well deserved.
While some of the hullabaloo by Air India pilots and employees over the hiring of foreign
commanders (i.e. the head pilot flying the Air-India flight) to the exclusion of and at the cost of
available competent Indian commanders may be ascribed to internal politics of the national
carrier and to inter-personal ego problems, the entire issue cannot be wished away as frivolous.
There appears to be some truth in the basic charge that Indian co-pilots who are at the
threshold of attaining commander status are not allowed to proceed to or obtain the requisite
training or flying hours that will make them eligible to be commanders. But Air India appears to
persists with selecting relatively junior pilots arbitrarily to proceed for training, excluding senior
pilots from command training. This engineers an artificial shortage of Indian commanders who
can command big jumbo on long international flights.
This artificially engineered shortage is then used to hire foreign commanders. These
foreigners, hired on special contract basis, are outside the normal financial rules and regulations
of the carrier. Their salary and allowances are exorbitant and much higher than that obtained by
their Indian counterpart commanders. Their leave and off-flying hour regimes are much more
liberal. Indeed, serious allegations have even been made that these foreign pilots are hired
through benami recruitment agencies set up abroad by some senior Air India officials themselves.
The system naturally results in a far higher outgo by the Indian exchequer, in a
discriminatory and dual regime qua Indian pilots and in a high degree of demoralisation amidst
regular Air India pilots and employees. Only a thorough inquiry by an independent government
audit team can establish the truth. If found even partly true, it would merit stern action beings
taken expeditiously.
BAHAI NEEDS SUPPORT
Bahaullah, the Prophet founder of Bahai faith, founded the remarkable Bahaii faith which
now has about 6 million followers across 230 nations who belong to a myriad (2100 is the
estimate) ethnic, racial and tribal groups. Indias pluralistic tradition has understandably made it
the largest Bhaii concentration in the world its 2 million Bahai population is followed by the
second largest grouping of 3.5 lakh Bhais in the country of Bahaullahs origin Iran.
The Bahais are a peaceful community and believing in the oneness of God, of mankind and
of religion. The basic object of the faith is to safeguard the interest and promote the unity of the
entire human race as well as foster the spirit of love and fellowship among men. Their founder
strived for world peace and the unity of mankind by founding a new system of global
governance, establishing the equality of men and women, advocating universal compulsory
education and charging its followers with individual and social transformations.
Yet in Iran today, the Bahais are a severely discriminated and harassed community.
Ironically, while Christians, Jews and Zoroastrians are recognised minorities in Iran, Bahais, who
aggregate a larger minority than all other minorities of Iran put together are not even recognised
as a minority. There appears to be a systematic, de jure persecution and discrimination against
them by the Iranian State. Bahai youth are formally and officially denied admission into colleges
and universities in Iran. Those in the course of education are dismissed midstream from
university. Consequently, Bahais set up college classes in followers homes. In 1998, Iranian
officials raided 500 homes where such classes were held, arrested several teachers and
confiscated high value equipment, books and furniture.
Bahai holy sites have been systematically razed to the ground. In June 2004, a heritage
buildings on a Bahai holy site was destroyed. The Iranian town of Yazd witnessed invasion of
Bahai homes beating up of Bahais and desecration of graveyards with the connivance of the
local administration in late 2004. No question of punishment of the perpetrators has even arisen.
More similar incidents of physical brutality have been reported and some documented in
reported submitted to the United Nations. Ten Bahai women were arrested and charged with the
crime of holding religious classes for children and youth. They were hanged. Over 200 Bahais
have been killed since the early Eighties. Over 1,000 Bahais have been imprisoned. They have
been deprived of pensions, fired from jobs and subjected to organised, official State
discrimination. A memorandum drawn up by the Supreme Revolutionary Council of Iran in 1991
on the Bahai question specifically called for them to be dealt with in a way that their progress
and development shall be blocked. Some reports asserted that after executing Bahais by the
firing squad. Iranian officias would demand payment for the price of the bullets from the
victims families.
More recently, Kayhan, the official Tehran daily newspaper has carried as series of over 30
articles, all extremely critical and defamatory of the Bahais Radio and TV broadcasts have joined
in condemning Bahai beliefs. An anti-Bahai society the Hojjatieh, specifically committed to the
destruction of the Bahai faith receives full government support.
The Bahais are a significant minority in India. The architectural marvel of the Lotus Temple
in Delhi is testimony to their commitment to unity in diversity. The lotus has deep-rooted
significance in the art, cultural and religion of India.
As a minority community in India, the Bahais are not unjustified in expecting help from
official authorities here to convey the plight of their community in Iran, to appropriate authorities
in that country through appropriate channels. India would clearly do the same, if the need arose,
for some of the other minorities in India who are also present as small minorities in Iran. The
Bahais have a right to similar official intervention.
Pall pal
Elections Be they municipal, national or those of professional bodies and associations are
always an experience with much to learn from. Elections to the Supreme Court Bar Association
(SCBA), which I unsuccessfully contested recently, reflected the worst and best traits of character.
I ascribe my loss of the peculiar declaration system under the SCBA rules, where a large number
of SCBA members including the supporters of a candidate are still unable to vote, unless the
candidate has started sufficiently early to gather and file declarations from such members before
the unusually early deadline of February 28, for a May 5 election. But I enjoyed the diverse traits
of human behavior that I enjoyed the diverse traits of human behavior that I came across in this
period. Even if one were to ignore a losing candidates explanation for the loss, the fact that so
many unexpected faces, with no demands, voluntarily came forward to help, was an interesting
comment on human kindness. A second category comprised the hard-boiled electoral class,
which surfaces only during election time seeking to underscore its importance as organisers,
vote-getters and scaremongers. A third is the downright crooked class of those who use pressure
tactics to extract monetary or other gain. The most interesting is the fourth class the ones with a
straight face and great enthusiasm and warmth. These are the ones who assure a candidate that
their vote is all for the candidate. One knows well enough that this isnt true. Yet one marvels at
the hypocrisy and their smugness in assuming that they have fooled the candidate, though the
latter is fully aware of the treachery and betrayal but must play the electoral game with a fixed
smile pasted on his face and pretend to accept these declarations of fealty. Elections are therefore
interesting because they represent, graphically and poignantly, the entire range of human
emotions, from good and bad.

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