Its interesting how you draw comfort from the fact that this was a one-off incident and that India is far too mature a democracy. Well, all I can say is that I am not too sure where I stand on that point. To answer this question completely may be one may have to consider various related issues as well – like why majority of the legal fraternity believes that (unlike England) our constitution needs a basic structure. But at a general level, I agree we are a democracy and usually, our government acts in a responsible manner. However, I think (and am pretty sure that you agree with me here) that there have to be appropriate checks and balances in place. And which is why I think we need to ask questions like – who ordered the police action, blah blah blah.
With respect to reform of personal laws and the constitutionality of such laws/ reforms I think that it is more a matter of ideology than legality. Its somewhat similar to the right to wear hijab. Consider this – are we being truly liberal by regulating people’s behavior? Because by forcing people not to wear hijab, we are in a way taking away their right to liberty and expression. There are many levels and layers to this debate and lets not digress.
Its not advisable to reduce such complex social/ legal issues to mere cost benefit analysis. I am not saying that you did that but all I am saying is that we may be jumping the gun a little by giving it so much weightage. So, I think while it may be reasonable to conduct a cost benefit analysis, what is more important (and not only an independent consideration) is to understand whether such actions are legal/ legitimate or not. (This bill will be a huge issue in the coming elections and so the cost benefit allocation process is not completely over, is it?) My point is that “cost benefit analysis” can only be truly carried out in hindsight. Wrt this issue, I think that we have not yet reached the hindsight stage.

Ok, I am not really sure if fasting unto death is an attempt to commit suicide – though you make an interesting observation. Suppose I am an alcoholic and a chain smoker and doctors have told me that if I dnt moderate my intake of such substance I will die within 2 months. Due you think that I, in such a case, should also be put behind bars? All I want to understand is that where do you draw the line? Which actions can be conclusively construed to be attempts to suicide?

Anyway, what I do agree with you is that perhaps we may have a “filtering process” for such actions. Not for any other reason but because such actions should be treated as a separate class of rights/ entitlements. However, I (and with me a considerable part of India’s population) absolutely abhor the ‘filter’ that the government used in this case. And like you astutely pointed out, the government should have just ignored Baba and let him be (provided of course till they remained non-violent and were not causing any damage to public property etc). There was no need to filter the protest in such a manner. Politics shrewedness or not, it is just not acceptable. And government has very successfully done that in another case, which has been hitting the headlines in India. Apparently, a swami died a couple of days after fasting to save ganga from illegal mining being carried out in Haridwar. Which one is the greater evil and how do we address such situations, are we comfortable leaving such issues and not protesting against them (and sometimes having to justify our right to protest), has the government shown the required levels of sincerity after common wealth and 2g spectrum scam – my head just starts spinning. I need a beer.

Cheers.

Thank you for your very detailed and pointed response to my piece. I offer, by way of defence, the following points:
1. You say the real issue is whether the state’s action is justified or not. I agree with you that is ‘a’ real issue. And my piece is on another real issue which is on the strategy rather than the justification behind the government’s actions. These are two separate issues and I believe that by writing on the second, I have by no means, tried to belittle the importance of the first. In fact, as I point out, ‘ideally the government ought to have ignored such protests’. The ideally here is not in terms of political strategy but in terms of constitutionality. And later, more expressly I say that the government action may be questionable in principle. So in no way am I defending the government’s action in terms of its justifiability. I am merely saying it was a politically smart move. To conflate shrwedness with justification and attribute such a view to me is erroneous.
2. Cost- benefit analysis: Yes, I agree that a cost-benefit analysis may not be the most appropriate lens to look at state action; however it does provide an excellent framework to understand whether it is a politically shrewd tactic or not. This of course, is without prejudice to the fact, that the actions may not be justified, which is an independent determination that must take place. Let’s take another example- of the Hindu Code Bill, initiated and pushed through by Nehru in 1956. Now in constitutional terms, it is severely questionable, that the personal laws of one community are reformed to the exclusion of others. But in a cost-benefit calculus, as hindsight shows, it certainly proved to be a politically smart move and didn’t have any particular electoral consequences.
3. Fast-filtering: Everyone has a right to protest and should do so in whichever manner they deem fit. If your frame of reference is the law, as I think it is, then it’s counter-productive because fasts-unto-death are nothing but attempts to suicide which are strictly illegal. So the state has a ground to put such people in jail, strictly by the book, which you seem to have full faith in. But I think there is a necessity for protests movements to secure their legitimacy to use the extreme devices at their disposal, such as hunger strikes sparingly. That means it will have more effect when actually used. So the state’s action filters half-hearted protests out. In addition, as I replied to the comment above, I don’t think this is of any precedential value- it was a one-off and India, is far too mature a democracy, that all popular action will be met with force; that is a totally unimaginable circumstance.

Finally, yes I haven’t faced a lathi charge. So I am guilty as charged. But my right to write incidentally about lathi charges and protests is as much as your right to write incidentally about the law. And our collective right to write about politics. So let’s not go any further down this line.

No I don’t think it will. I think the action was specifically directed at this fast-unto-death by Ramdev especially after the failed deals; I don’t think this would either deter political protesters who feel strongly about their causes and neither do I think would the government use force with every such protester. We should see this very much as a peculiar case in peculiar circumstances.

I appreciate the points that you have raised. A very well written post indeed.
Although I think that you have missed the real issue at hand. The real issue is not whether beating non-violent protestors is a “politically astute” move or not. The real issue is whether the state at can do such a thing in the first place. In other words, whether such actions can be termed to be repressive (and illegal, an action that reeks of state absolutism) and do they discourage the people from stepping out and voicing their opinions.
Prefrace: I dnt know for certain what were baba ramdev’s real intentions. Nor will I claim that i have figured it all and have all the answers – because, let be honest, we dnt have access to primary sources of information. And the mere fact that he is an excellent entrepreneur is not something that i hold against him in any way until he is proven conclusively and finally guilty of tax evasion (or any other crime) by a competent court of law.
1. “Ideally, the government should have ignored the hunger strike by Swami Ramdev” Again, if I have understood you correctly, you say “ideally” not because you think that the government ought to let people exercise their personal rights but because it would have been a politically shrewd move. Agreed, you then admit “Protests such as these are common in a democracy and more often than not key to its vitality and good health”, but it is interesting that concept of liberty of an individual or a group of individuals has found no space in your blog when you are trying to justify the government’s actions. What I wish to understand is why are not people questioning – who ordered the police to lathi charge people? Did the order flow from appropriate authorities? And if indeed it came from an appropriate authority, were there adequate reasons for the state to take such an action (please remember, ordinary citizens have sustained injuries)? Was there legitimate exercise of discretion by such appropriate authority? Because it just baffles me, to be honest. The only question that kept coming to my mind when I saw the news flash was “How dare the state attack its own citizens without provocation?”
Just because something makes political sense doesn’t mean it should be executed. I would want to believe that what distinguishes India today from a China/ Libya is exactly this. Freedom of speech, freedom of expression and protection against arbitrariness – our political and personal liberties. After all the democratic theory draws strength from the theory of individual liberty and freedom, and on that night, it was these concepts that were trampled upon.
2. “But the government’s Plan B, of forcibly breaking up the strike, while questionable in principle, was undoubtedly a politically clever strategy, whose benefits far outweigh its costs.” Really. I dnt think that you have taken every aspect into account. One cost for instance (and quite a major one that too) you have brushed aside is – what kind of precedent this sets for people? Basically what this tells me is that irrespective of the manner in which I protest, the state is still likely to use force if that helps the state politically/ or if the state doesn’t agree with you. Well, sorry sir, but I’d rather not be a part such utilitarianism because last I read the Indian constitution it granted me the right to protest. Secondly, cost benefit analysis is not an ideal scale to justify/ condemn actions of the state. For instance, using cost benefit analysis the actions of even Nazi germans could be justified but (and I hope you agree with me here)whether they are acceptable in civilized society is another thing altogether.
Nonetheless, why should there be a “fast filtering” process at all? Is it legal? Because clearly, the very people who were satyagrahis during the british raj and then went on to be a part of the constituent assembly did not think such a “filtering” process should be in place. And why should every group of protesting citizens have to accept the brutalities of the state and undergo this baptism by fire kind of process to exercise their rights. I really want to ask – have you ever even been hit by your teacher with a wodden ruler? Remember how that used to sting? Now multiply that sensation a thousand times and just try and feel that pain on your head – your skull would crack. And wait, it doesn’t end here. Simultaneously try and feel the same amount of force on your shin, hips and arms. Because obviously, once the police corners you…Anyway. Clearly, you dnt really know what a lathi charge is! So please dnt brush it aside in such a nonchalant manner.
I mean think about. Because then tomorrow someone else using your arguments will come along and say –ok, lets have a “filtering” process for voting as well (to ensure that only people who really wish to vote and believe in who they are voting for should vote, and hence, strengthen our democracy.) .
I understand that you are a lawyer. And a litigation lawyer that too. Well then sir, I am sure you must have mooted at law school. And remember how sometimes at moot courts the judges used to grill us on jurisdiction and other such issues, without going into the merits of the case. Well, I think, this is one such case.
I offer no opinion on the latter part of your entry

P.S.: And you know what was a politically smart move: running away from the Delhi thullas. That was smart. Bloody smart. : )

P.S.: And you know what was a politically smart move: running away from the Delhi thullas. That was smart. Bloody smart. : )