Let me first acknowledge that there is a lot of merit in what Nandy and Tejpal said at the Jaipur literature festival. India has indeed been, and continues to be a deeply hierarchical, unequal society with very little class mobility. And for a majority- who are on the brink of survival, it is nearly impossible to cross over to the fairer side of the green after even a lifetime of hard work and toil. But Nandy and Tejpal are not the first ones to have noticed that caste itself is a form of corruption. Fortunately, our founding fathers were acutely aware of this when they drafted the constitution, which is why they evolved various provisions for safeguarding basic rights for all citizens, and according special protection for those sections that had been suppressed for centuries. This is also why they injected the constitution with an extremely progressive and egalitarian soul in the form of the directive principles of state policy, which go so far as to say:

Article 38 (2): The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.
Article 39 (b): that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;
Article 39 (c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;

In spite of these glorious ideals being enshrined in the supreme document of this country, policies that serve exactly the opposite purpose have been adopted in the name of ‘economic reforms’. Inequalities have actually increased, and poverty still remains alarmingly widespread after 65 years of independence. And the primary cause of this continued mockery of our constitution is the same entity that Tejpal calls a “class-equalizer”- i.e. corruption. Nandy, while giving the example of Sorabjee and himself engaging in an exchange of favours, was absolutely right in saying that our society has a very narrow definition of corruption, and does not recognize many institutionalized forms of the same. However, instead of elaborating on how these forms of corruption should be recognized as such and weeded out, Nandy conveniently assumed that they cannot (in fact, should not) be weeded out, and that to strive for a corruption-free society would be to strive for a dystopia. He then proceeded to sermonize on why corruption should instead be celebrated as a desirable imperfection in our society and how the ‘survival of this republic depends on it’.

But this was not the only statement that one of the most prominent sociologists of India made without any shred of empirical evidence. He started with his now infamous statement claiming that “most people caught for corruption are from the backward classes”, he denied the ‘myth’ of dynastic politics in India, celebrated the rise of Madhu Koda, Mayawati, and even Mrs. Indira Gandhi by describing how they had fought their way to the top. He also said that the amassing of wealth by Mulayam Singh, Mayawati, etc is only borne out of the noble intentions of defending their families from the desperation that their ancestors have faced. For some inexplicable reason, Nandy then claimed that Singapore is the only corruption-free country in the world (even though Denmark, Sweden, Finland and New Zealand all rank above it in the 2011 and 2012 corruption perception index released by Transparency International), and went on to say that “Singapore is a Draconian society” and that he would not like to live there. Well, with all due respect Mr. Nandy, perhaps you would prefer to live in a society that gives the elite (i.e. people like you) a natural advantage over everyone else, but shall we ask the other 90% whether they would prefer to live in the ‘imperfect utopia of India’ (as you call it), or the dystopia of a Singapore or a Sweden or a Finland?

Since Nandy and Tejpal have graciously accepted that their statements were not based on any facts or research, and were simply ‘ideas’ (how can you expect facts at a literary festival, folks!), I have just one simple question for both. Do they really think that the impoverished, oppressed masses of India think of corruption as an equalizing force? The farmer on the brink of a suicide after being denied a loan by a bribe-seeking bank official, the street vendor forced to pay a hafta to the policeman to avoid being beaten, the tribal forced out of his/her land due to a politician-mining nexus, and the Dalit who has to pay a bribe to register an FIR after the rape of his daughter by upper-caste goons. Do Mr. Nandy and Mr. Tejpal seriously think that all these people celebrate corruption, and think of it as an instrument for achieving equality?? Corruption is the abuse of power, and it will always favor the person with deeper pockets. Hence to argue that the powerless are beneficiaries of corruption, rather than victims, is to add insult to the injuries inflicted by centuries of injustice.

The essence of Nandy and Tejpal’s argument is very simple: The status quo suits us (the upper classes), and although we recognize that it is a form of corruption, we will not change it. So you (the lower classes) should stop complaining about corruption, and learn how to work the system. There is of course a clear reason why clever people like Nandy and Tejpal have chosen to advance such a specious argument- the fact that you need to take controversial and contrarian positions in order to stand out in the ‘intellectual’ community in India and abroad. And for them, this statement has served its purpose. They will be invited to more talks, discussions and literary festivals, and there will be endless discussions on television about them. But we would not be serving any purpose if we chose to buy into such baseless rhetoric. A spade needs to be called a spade, and the Nandy-Tejpal argument needs to be called self-serving and completely irrational.

The last few months have been brimming with activism amongst middle class Indians making themselves heard on social media.  Every so often we experience sudden enthusiasm and equally sudden outrage; we publically chronicle both our frustration and celebration. Some would argue this is a good thing — interest in politics and involvement via any channel is a sign of participation and a stepping stone towards developing political awareness. Some would argue this phenomenon leads to a lot of noise, is superficial at best and is no driver for actual social change.  Both viewpoints seem logical – though a lot of the views expressed are perhaps naïve and somewhat emotional, there is a lot that can be made, a lot that can be broken by strong public sentiment. This article is an attempt to look at both sides of the argument and understand why this phenomenon can be seen as symptomatic of a largely positive change albeit with some riders.

Putting the question in context: Some Examples

The most obvious example of an organized movement that has tapped into the opportunity for generating aggressive public opinion using social media is the 2011 anti-corruption movement started by the NGO “India Against Corruption” which centered its campaign around the now-ubiquitous figure of Anna Hazare. Thousands of people gathered at protests grounds throughout India– but perhaps the main impetus came from those participating in the cause via Twitter and Facebook.  Smaller and less organized citizen movements have taken place in the past too where technology has been the used to generate the numbers required for the authorities to take note. Some have met with a degree of success (the Jessica Lall murder case) while some still carry on with no definite end in sight (Irom Sharmila’s fast for the repeal of AFSPA).

While the motives of the Anna Hazare movement were (arguably) noble, there is an ugly side to the herding of opinions on the internet. Consider for instance the aftermath of the recent Assam riots. Although confirmed information about the situation in the state was not freely available, stories of atrocities on both sides which had not been validated were ironically flowing freely and being propagated online. The fact that some of these rumors were highly provocative led to an atmosphere of suspicion, in some cases leading to violent consequences.

A third form of viral propaganda common online revolves around an individual.  Again Anna Hazare’s emergence as the head of a corruption free India comes to mind – this hitherto  little known figure could suddenly do no wrong, and anyone who dared to be circumspect about his intention was considered pro-corruption.  Another obvious example is the Gujarat Chief Minister, Narendra Modi who has hordes of people out for his blood (this group holds him solely responsible for the 2002 riots) as well as a sizable cohort lauding his every endeavor(this group  considers him a beacon of development and even fantasizes about him as the next Prime Minister). The personality traits of the Prime Minister of India, Manmohan Singh have also come under intense scrutiny in recent months. In all three cases these tiny bytes of opinion/information are often not backed by anything beyond the superficial and are the online equivalents of high school bullying or hero worship.

Why now?

It’s useful to think about the peculiarity of this age in the Indian context — why now, of all times is this phenomenon emerging? I can think of three major factors. The obvious one being technological – it’s easier today for the common person to be heard today than ever before. The right to hold and propagate opinions is no longer the sole luxury of the intellectual, the journalist, the business tycoon or the politician. Thanks to the information revolution anyone with an email address, a facebook or twitter account has a readymade audience.

Two other factors come to mind – and these are more to do with the nature of Indian society today. The first is demographic. Just having a mode to communicate is a sufficient condition for the opinion explosion, but whether it’s a necessary condition is not so obvious. A certain level of enthusiasm (and confidence) in a sizable proportion of the population is also a key factor. India prides itself on its “demographic dividend”:  in an era where most western countries are grappling with the problem of aging populations, India has amongst the highest proportions of young people in the world.  This demographic, in the most vocal stage of their lives has found a way to get its voice heard in cyber space.

There is another factor that it would be foolish to ignore — the economics. I’m in my late twenties, and unlike my preceding generation, I find that most of my friends love their life in India. Many who are studying or working abroad harbor serious ambitions of going back to the country of their birth. Part of the reason is because economically it’s an exciting place to be, especially in terms of entrepreneurship.  The other, less idealistic reason is that for the upper middle class Indian, our metropolitan cities are a happy confluence of two worlds:  the consumer culture of the west coexists with the luxuries the elite enjoy in the subcontinent.  The informal insurance provided by a large network of family ties is another attraction.  Yet, there is a lot that is wrong with our country and the young, ambitious and vocal cohort is also impatient. It demands change – perhaps forgetting that any large scale change in a country as diverse as India requires patient deliberation.  This impatience and demand for change can manifest itself as outbursts online.

The Opportunities Social Media Brings

The most obvious opportunity is increased access to information as well as analysis. One can subscribe at no cost to newspapers and magazines online – something that was impossible earlier.  Quality news and opinion pieces were accessible only to those willing to pay – not so anymore, most leading magazines and newspapers promote their content online via Facebook and Twitter. Not just that, we see what others in our network care about and get exposed to a whole variety of themes beyond our limited experiences.

Social media also provides an avenue for participation.  The usual grouse of the middle class in India is that it is not involved in governance. The relative size of the group is so small in a country still largely poor that it really cannot control who gets elected into government (this political impotence some suspect is the basis of much of its bias against politicians). There is also a feeling that given an opportunity this group (by virtue of its higher level of education) could do a lot of good for society – but its hands are tied and its voice stifled because of red tape and corruption.  With the advent of social media, more than any other section of Indian society, the middle class now has an opportunity to organize itself via campaigns and petitions online. How effective these are is questionable and this form of participation might be superficial too. That being said, those who are serious can get connected to previously established groups. For example, “Teach for India” is a successful movement that has managed to attract a number of young professionals to teach full-time in low income schools.  Gathering electronic signatures for petitions has also become much easier than before thanks to websites like “change.org” and “awaaz.org”.

The final, and in my opinion the greatest positive impact that social media can have is to encourage debate and discussion.  Given respect for others’ opinions and logical thinking, dissecting arguments and hearing out people who oppose one’s views can help soften stances. This calibration of world views and moving away from personal axioms has a scientific flavor and should be especially attractive to a country with an obsession for its engineers and doctors. 

The Concerns

While greater discussion is a good thing, if most participants in these discussions choose rhetoric over logic, it can lead to over simplification of issues and polarization of views. The demonization as well as hero-worship of certain public figures is one example of such herd behavior.  It is the multiplicity and diversity of opinions, the historically argumentative nature of the Indian populace that has sustained and nourished our democracy. It will be truly heartbreaking if on every public matter there are just two polarized groups engaged in a shouting match to put each other down – and no individuals in the middle of the spectrum to help facilitate a compromise.  The result can be serious instability. The aftermath of the Assam riots is an extreme example of this form of polarization which should not be taken lightly.

I’ve often been disappointed by the wanton and widespread use of the phrase “something is better than nothing” by my friends and colleagues. This is in fact not true – doing something can be worse than doing nothing in certain situations. Supporting a cause because one can’t think of any other way to contribute is symptomatic of both impatience and laziness -laziness in thought and impatience in action. The romantic notion that large movements always lead to optimal solutions is just that—a romantic notion. In fact, giving in to the demands of large public pressure groups can be regressive. Consider the case of South Korea, where a large number of school textbooks removed references to the theory of evolution in favor of creationist theories because of a successful public petition.  Another case in point is the ”Twitter Revolution” in Egypt whose outcome is not exactly what the idealist had in mind. This is not to say that public petitions and movements are always misguided, but that there are many possible solutions to a problem and it is not necessary that the solution with the most vocal public backing is the best.

Another concern is the inequity in access to social media in India – something that leads to illusionary beliefs about ground realities. Consider some of the basic requirements for posting views online on a regular basis. Literacy is one, continuous access to the internet another – rich and middle class Indians (a group that accounts for a very small proportion of the total population of India) are thus the primary suppliers and consumers of opinions over social media.  The problem occurs when we try to infer population beliefs from this limited sample and claim that what we see online is an accurate reflection of the “mood of the nation”. This is a classic case of “selection bias” – an issue economists have been grappling with for some time now. Put simply:  unlike data in science experiments, social science data is inherently biased (towards those who choose to participate) and therefore making inferences from it blindly, dangerous.

Survey design also matters – a lot.  Some surveys suffer from “leading questions”— the way a question is framed can lead to biased responses.  These two important factors “selection bias” and “survey design bias” are extremely important considerations for any student of politics or economics. Yet, public pressure groups often completely disregard these — for instance, the members of India Against Corruption regularly make statements like “This is what India wants –”, “India has spoken –” on the basis of internet polls which cannot possibly represent the entire population even if their survey designs were miraculously flawless.

Where we stand and where we are heading

Social Media is here to stay. And we are lucky to enjoy freedom of speech and expression (at least in theory). We can also hope that over the next few decades there will be substantial growth in literacy rates and internet access in India.  Given this scenario social media represents a great opportunity to get voices heard and for people to get involved.  It would be foolish to ignore the potential of social media as a political tool in India.  However we must remember the caveats – first, that opinions on social media represent only a small proportion of the population that is self-selecting, therefore making inferences about the whole is dangerous. Second, there is a danger of oversimplification and a tendency to generate public pressure for quick-fix solutions that may be suboptimal and lead to instability.

In the long run there is a real danger of some groups being formed which will neglect these caveats and develop hard line stances based on illusionary beliefs and imperfect sampling. These groups will also actively try to polarize public opinion, possibly using social media to further their propaganda. However I believe the nature of political discourse in India is rich and diverse enough to allow these groups to exist without being engulfed by them. In his book “The Argumentative Indian” Amartya Sen argues that one of the reasons that democracy has flourished in India is the long tradition of argumentation that we enjoy.  Expressing and defending opinions online is the natural evolution of this tradition. Thus in my opinion, even with the formation of pockets of people who hold extreme and hardline stances, on a balance of probabilities the information revolution is going to lead to a more equal and more aware society.

[Cover image attribution: By designbolts.com (Freeiconsweb.com) [CC-BY-3.0 (http://creativecommons.org/licenses/by/3.0)], via Wikimedia Commons] 

]]> http://www.criticaltwenties.in/economicsocialpolicy/opinion-explosion-in-indian-social-media-a-driver-for-real-change-or-just-a-lot-of-noise/feed 26 http://www.criticaltwenties.in/nationalpolitics/the-age-of-instant-gratification http://www.criticaltwenties.in/nationalpolitics/the-age-of-instant-gratification#comments Sat, 11 Aug 2012 07:26:32 +0000 Arghya http://www.criticaltwenties.in/?p=5067 To stop wasting time is an enviable pursuit. Kal kare so aaj kar, aaj kare so ab- is a mantra that has been spewed timelessly by parents, teachers, office bosses, self-help specialists and spiritual gurus. Its impact though has been inversely proportional to its use, procrastination proving a naturally more appealing option than diligence. For modern day middle-class India however, Kabir’s couplet has found an unintended ally: the desire for instant gratification. Want to buy a car? Waste no time and drop by at your nearest dealership and drive away with the car of your choice with no down payment and an attractive EMI scheme. Have no time to wait for news? Choose from a cacophony of 24*7 news channels with second-by-second updates, jostling to break the same news mili-seconds before each other. Or better still, avoid the drama and use your IPhone, IPad or BlackBerry for instant updates through fully customisable apps. In fast-paced, ultra-competitive, post-liberalisation India in a hurry to become the world’s next superpower, why wait when you can instantly satiate?

The most remarkable product of this age of instant gratification has been Team Anna and its movement to rid India of corruption. Despite being panned widely for its flawed institutional vision, its political naiveté and the questionable company it sometimes kept, Team Anna struck a chord with a people fed up with governmental corruption and apathy because it promised a readymade solution to corruption in the form of the Jan Lokpal, an all-powerful ombudsman who would potentially instil fear into the hearts and minds of corrupt public servants and cow them into honesty. Not only was this simplistic solution made an article of faith for the movement, but it was also sought to be made actionable through an ultimatum to the government: fail to instantly gratify the movement and risk Anna fasting to death, a rallying call that resonated amongst large sections of India sick of corruption and looking for an instant, no-jhanjhat solution for it.

Several other factors too worked in its favour: a shocking series of scams that the government was directly or indirectly involved in, a string of governmental blunders and miscalculations in dealing with its protests in the initial stages, a Gandhian icon whose personal probity and integrity was an ideal rallying point, and a diverse backroom team comprising a widely respected former judge, two senior lawyers passionately committed to the cause, an astute mass mobiliser and a populist, flag-waving former police officer. But above all it worked because it was a movement which demanded instant gratification from the government: a sentiment that middle-class India could identify with from their daily lives, even if it meant equating ridding the country of corruption with ordering a home-delivered Domino’s pizza when the craving for a change from the roti-sabji routine struck.

Unfortunately, the perils of founding a political movement on instant gratification is that one is subject to the same standards that one expects. Having promised a Jan Lokpal Bill, but after a year of coaxing, debating, arm-twisting and protesting, failing to deliver it meant that Team Anna was unsurprisingly hoist on its own petard. Seeking instant gratification but failing to gratify its supporters instantly (over a year literally) meant that time for Team Anna was always running out. So it was not entirely unexpected that the steady stream of supporters would one day dwindle, the continual tactic of fasts would have to come to an end, internal dissensions within the team would surface and Anna Hazare would return to Ralegan Siddhi as its keeper of virtue. But does this mean that the movement has been a failure as many have suggested? Could it have strategised differently in order to sustain longer?

Those who suggest that the movement has failed and have penned obituaries for it, are unconsciously subject to the same desire for instant gratification that they accuse the movement and its middle class support base of. The protests to have India against Corruption’s Jan Lokpal Bill enacted in Parliament have undoubtedly failed because the fact of the matter is that the Bill has not been enacted. But to infer  from this that the movement itself has failed is entirely fallacious. First, the protests ensured that for the first time a public debate on reforming the CBI has taken place, the need for an anti-corruption ombudsman unanimously accepted and corruption firmly established as a key electoral issue henceforth. More crucially, middle class India has come out of its happy closeted existences to the streets concerning an issue of national interest, a development whose significance cannot be understated. As I wrote at the time,

 “Vast numbers of people coming together in Delhi, even more pledging their solidarity and support by organising their own protests in cities across the world, the chaos, the frenzy, the disagreements about next steps, the patent flaws in the drafted statute, everything about the protest conveys the simple human emotion of standing up for what one thinks is right, without sophistry, nuance, or caveats.”

This promise of an easy solution to corruption, without sophistry, nuance or caveats, in the form of a Jan Lokpal may have been a key spur for such spontaneous protests. I doubt deeply the feasibility of a sophisticated, rationalised protest movement at the time, in terms of both its composition and functioning, being able to galvanise the masses the way in which Team Anna did. Paradoxically however, the recipe for its success—the promise of easy-to-grasp instant results—proved to be its undoing; the solution wasn’t as simple as suggested, and even the suggested solution wasn’t very simply achievable. But, on a balance of factors, that was a risk most definitely worth taking, if not taking it meant that the movement couldn’t be kickstarted in the first place.

Second, the movement against corruption is more than, and must be more than protests about the enactment of a Jan Lokpal Bill. It ought to be a wide-ranging effort directed not just at institutional reform but civic reform as well. It requires a much more clever, sustained and long-drawn out struggle than a year-long protest for a legislative enactment. It’s a struggle that doesn’t promise ready answers or instant solutions. But at the same time it’s a struggle that requires mass participation to succeed. Instant gratification-hungry India must be brought on board the politics of patient struggle. If India against Corruption is serious about this task, the ending of the year-long protests came at the right time. The past provides a perfect prelude that guarantees extensive media coverage, funding sources and a degree of public sympathy, if not support.  Attention now turns to the more serious business of finding constructive ways and means to rid the country of corruption. A task that requires all of us to not just to look at our leaders, but at ourselves. And reserve our desires to be instantly gratified to the local pizza delivery company.

[Cover Picture Attribution: This file is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license from Author Hindustanilanguage].

]]> http://www.criticaltwenties.in/nationalpolitics/the-age-of-instant-gratification/feed 0 http://www.criticaltwenties.in/economicsocialpolicy/india-uses-technological-innovation-to-fight-corruption http://www.criticaltwenties.in/economicsocialpolicy/india-uses-technological-innovation-to-fight-corruption#comments Tue, 20 Mar 2012 21:13:59 +0000 Natasha http://www.criticaltwenties.in/?p=4716 A litany of corruption scandals in India have been making headlines for the past year. These scams are being brought to light in such rapid succession that there is now a paper (JanLokpal Daily) and even a hash tag on Twitter #LootLoIndia dedicated solely to breaking this news. This however, in some ways, is heartening. Corruption has been rampant in the country for decades. The very fact that these scandals, once taken for granted, are now considered newsworthy is a sign of new citizen engagement and mobilization.

India’s rapid economic growth has created a new middle-class that refuses to accept the status quo. Urbanization and growth has mobilized a new generation of Indians that expect the fruits of economic development to reach them without being pilfered by corrupt middlemen and bureaucrats. Tens of thousands of Indians rallied around an anti-corruption Bill, the Jan Lokpal Bill last year, hailing its figurehead, Anna Hazare, as the Gandhi of the 21st century. According to a 2011 Facebook report, the Bill was the most mentioned topic on Indian statuses.

Although this revolutionary bill was (unsurprisingly) shelved, change is still clearly afoot. A strong illustration of this point is Bihar, India’s poorest state. Once known as the Jungle Raaj for its lack of governance and rampant corruption, it has now been named the least corrupt state in the country, and even hailed by other countries for its good governance and rule of law. This state has set a strong example for others in the country in using technology to introduce accountability and transparency in governance. The Chief Minister, largely credited for introducing strong political reform in the state, has introduced a system to ensure that the hand-written grievances of citizens are posted on the Internet, and complaints of bribery are loaded onto YouTube to shame corrupt officials.

While other Chief Ministers might not be as bent on fighting the system from which they greatly benefit, a technology revolution in the country continues to build new frameworks to fight corruption. India has a famously outspoken Twitter community, and sites that monitor corruption such as IPaidABribe.com and that publish public and criminal records of politicians continue to flourish. The website that organized the rally around the Jan Lokpal Bill, India Against Corruption, has grown into a veritable force as it continues to promote its cause and engage with the public both online and online.

Additionally, as internet penetration in India remains poor, groups are looking at other using forms of technology to increase transparency in the country. As more Indians now have more mobile phones than toilets, Stanford’s Program on Liberation Technology is examining the uses of mobile phones in social audit. Perhaps the most inspiring of these innovative programs is Aadhaar, a Unique Identification (UID) project. This is one of the most ambitious programs to have ever been undertaken by the Indian government and has been assigned the Herculean task of creating the world’s largest biometric database in order to assign over billion Indians a Unique Identity Number to ensure intended recipients benefit from government subsidies designed for them.

And yet, it is clear that mobilizing the masses online and promoting transparency through technology is not sufficient to battle corruption. Effective laws, speedy trials, an honest police-force, and the political will to fight corruption are essential elements of the struggle; but shaming corrupt officials publicly and instilling a sense of accountability is an important first step.

India has a long way to go before this movement translates into better governance and improved infrastructure. Yet, news that the government is doing its best to hamper this internet revolution by censoring social media and dragging Google and Facebook to court is a sure sign that the movement is making progress.

[Image credit: Ganesh Bhakt; GNU Free Documentation License]

This time last year, Kim Jong Il, Muammar Gaddhafi and Hosni Mubarak were the most powerful men in their respective countries.

Anna Hazare was barely known outside the state of Maharashtra; Arvind Kejriwal probably not beyond his immediate family.

Justice Kapadia had just promised to cut down on judicial activism in favour of clearing the massive backlog of cases in the Supreme Court of India.

Most people couldn’t spell or even pronounce Kanimozhi.

How things change in 365 days.

Well ok, except for the last thing.

How do we make sense of these tectonic changes?

That these changes have been tectonic can’t be denied. The Lokpal debate and the 2G and Commonwealth Games scams and the Government’s response in tackling have fundamentally altered the way citizens view the institutions of State. It may not be evident to us now. After all, we still put up the same nonsense at Government offices, still have Parliament being repeatedly made a mockery of by its own legislators and feel the effects of ill thought out and poorly implemented policies. On the surface, nothing’s really changed. Or so it seems. But undeniably, and even the most ostrich of persons would not deny this, something has changed in the national discourse this year.

A simple answer in one word: corruption.

Or even more simply, the giving and taking of bribes by government servants for performing their functions.

It’s a partial answer and a very incomplete one at that. Corruption is about as old as the State. To repeat Chanakya’s oft-repeated quote: “…It is impossible to know when a fish moving in water is drinking it…” Yet, this saying offers us only a partial answer of what government is, and not what it ought to be.

Chanakya’s use of analogy was not just to state the obvious in an interesting manner, but to further a complex and nuanced argument. Corruption is almost a given in an institution such as the government, but that doesn’t mean no efforts should be made to minimize or eradicate it. Rather, Chanakya’s analogy was an attempt to uncover the nature of government itself that led it to corruption.

Government (like a corporation) essentially involves dealing with other people’s property and money. How you raise it, what you use it for and who gets what are the basics of governance and the answers differ on the basis of one’s ideology and the needs of a given time, but no Government can function without doing these two essential things; raising money and spending it.

So much for the “is”.

But Chanakya also answers the “ought”; government ought to mean spending the income wisely for the welfare of the people. For, as Chanakya states repeatedly, only in the welfare of the people lies the welfare of the King (or Government if you prefer). It seems obvious enough, yet only in restating and understanding the “ought” do we get to the heart of why corruption has become the issue it has now.

As citizens, this “ought” is fundamental to why we part with our money to the Government (or perhaps our property for due compensation). The compact between Government and citizen should seem so obvious that it doesn’t need restating but it is a reflection of these times that this particular compact has to be restated. What the Lokpal Bill agitation and the Commonwealth and 2G Scam highlight are the very real threats this compact faces from corruption.

For people in their twenties and thirties, it would seem that this is the first time this has happened so.

Those with longer memories would know that the unearthing of massive corruption scandals is nothing new, nor the jailing of MPs, CMs and ministers. Not even judicial activism to fight corruption.

What’s changed this time is that where perhaps corruption was seen as an aberration to the norms of governance, the brazenness and the scale at which the Commonwealth Games and 2G scams were carried out would suggest that perhaps corruption has, far from being an anomaly in the system (to use a Matrix-ism) is in fact, the system itself. That there is no concept of public welfare anymore, and that the government exists to serve its clients – those who can pay the price and no others.

This loss of faith in government explains the agitation around the Lokpal Bill but also the land acquisition agitation in UP. Where the UP agitation was aimed at one particularly egregious misuse of governmental powers to openly benefit real estate developers at the expense of farm owners, the Lokpal agitation was sparked off mainly because it seemed that far from ensuring that a scam of the scale of the 2G scam or the Commonwealth scam never happened, the Government of the day tried to protect the corrupt through a weak and ineffective institution.

It’s easy to dismiss the “civil society” and Anna Hazare as a bunch of middle class busybodies who’ve been given undue importance thanks to a hyperactive “corporate” media.

It’s also demonstrably false.

The crowds streaming into Jantar Mantar and Ramlila Maidan in the middle of the year were not bused in and promised money and food (as many political rallies are wont to). You couldn’t classify and categorize them all under one neat socio-economic or religious label.
Yet, as if almost on cue, when Anna couldn’t “deliver” on the crowds (read “spectacle”) the media turned on him. Hardly the hallmark of a media driven campaign.

Still, what relevance does all of this have to the events of the past year in the law and the judiciary?

It has, I think, fundamentally changed the contours of the judicial activism debate. If one of the underlying premises of the institutional competence argument (as opposed to constitutional competence, more of which in a separate piece perhaps) is that government is capable of doing some things “better”, and therefore the Courts must not “meddle”, the actions of the government over the last year have called this assumption very much into question. The sorry saga of inaction, incompetence and just plain mendacity on the part of the government that was revealed in not just the mega scams but also in such issues as the right to food litigation, the black money litigation and the tax waivers for the F1 race. In the face of such a sorry state of affairs, the option is between institutional encroachment and complete and utter breakdown of the rule of law.

What has happened is that when the citizen’s faith in the government’s ability to act in the public welfare (as opposed to his or her individual welfare) itself stands questioned, the Court has, on the instance of such citizens stepped in to ensure that government acts in such a manner. In one sense, and this merits much more scrutiny than this post can possibly hope to provide, a very discernible shift is obvious in the manner in which the Supreme Court goes about its activism. No longer is activism about merely issuing writs and directions enforcing rights (howsoever defined, and yes I’m aware there’s nothing “mere” about enforcing rights, but bear with me) but also at ensuring that the government complies with its duties and obligations to the public at large.
Two very different cases, the Bellary Mining ban and the CVC case are possibly the best indicators of this (though a more comprehensive study would also include all the PILs not entertained at the threshold itself but this is not the place for it). The dominant discourse in the decisions is about protecting larger public interest and welfare in the face of State and Central Government failure to do the same. A State Government had failed to check the rampant illegal mining and ecological destruction of Bellary. The Central Government had cynically appointed an officer who faced a criminal charge of corruption as the head of the anti-corruption body. These were not instances of the Government choosing a good or bad course of action – it was a case of complete and total dereliction of duty that could not be justified with anything more than a bland ipse dixit.

In that sense, this year has probably set off a subtle yet significant shift in the Court’s understanding of its own role and the manner in which it articulates its role. Apart from being a defender of rights (fundamental, legal and constitutional) and upholder of the rule of law, it has also adopted the role of protector of the public welfare at large. Not that this is a new legal argument that is being made in Courts or that we are speaking of a new and hitherto unseen aspect of judicial review, but in terms of the Supreme Court’s role in the larger polity this is perhaps a significant (and not a few would say, welcome) shift that could take us down new and interesting paths in the history of the Indian judiciary.

Yet, this is no time for the Court to rest on its laurels (hard won though they may be). Although the battle against delays seems a Sisyphean labour at best, the spectre of large scale judicial corruption has never hung heavier over the judiciary. Though the cases of Soumitra Sen, PD Dinakaran and Nirmal Yadav came to light last year, serious action has only taken place this year.

It is no longer a case of black sheep here and there. There is a flock of dark fleece threatening to taint the whole judiciary. Indeed the illegal land allotment to judges, past and present, in Bangalore has exposed more than a few skeletons in closets. The distressing silence on the part of most of the judges involved has only fuelled further doubts about their integrity. The malaise Justice Markandeya Katju outlined with much anguish earlier this year with reference to Allahabad High Court threatens to engulf the entire upper judiciary if not stopped adequately. For the Court to retain its credibility as the foremost defender of the rule of law in this country, it must, to use a Biblical proverb, “remove the speck in its own eye.”

What does the New Year hold for us lawyers and the judiciary?

Definitely a new Chief Justice of India in September (Justice Altamas Kabir according to seniority). The Vodafone verdict, the Right to Education ruling and perhaps most importantly, the order deciding whether or not Home Minister P Chidambaram should be investigated in the 2G scam. The trial will of course continue in the Patiala House court in Delhi and we’ll all receive breathless reports of the proceedings from over-keen reporters some of whom may even have legal training!

The Lokpal Bill will probably be introduced once again in Parliament in April but no one really believes that the Government genuinely wants to tackle corruption at the highest levels. Parliament’s alleged “supremacy” already a hollow doctrine in Constitutional law, has been stripped of even more legitimacy in the light of today’s events.

As the old Chinese curse goes, we are living in interesting times. Despondence seems to be the national mood, despair a national pre-occupation and disappointment (for cricket fans and Sensex watchers alike) leaving a bitter aftertaste at the end of the year.

With all the bleakness above, perhaps I should end on a positive note.

As it turns out, the Mayans were wrong! The world won’t end in 2012.

Happy New Year to all!

1. FDI in Retail

Though the political drama over FDI in retail has subsided, the debates have not. P. Sainath and Gurcharan Das differ on whether the FDI in retail episode was a victory for democracy or whether this is just the beginning of a much longer battle between left and right, the modernisers and the traditionalists, the old India and the new.

Sainath: http://www.thehindu.com/opinion/lead/article2706988.ece;

Das:

http://gurcharandas.blogspot.com/2011/12/when-democracy-won-but-people-lost.html

*******

2. Indo-Pak War of 1971

This week marked 40 years of India’s victory over Pakistan in the Bangladesh War of 1971. Ruchir Joshi recounts 1971 in Calcutta as a young boy and whether the triumphalism which with this event is greeted, was borne out on the streets 40 years ago.

http://telegraphindia.com/1111218/jsp/opinion/story_14895017.jsp;

Raza Rumi looks at how differently the stories of the war are narrated in Pakistan, Bangladesh and India, modified to suit one’s perspective, in this wonderfully evocative piece:

http://www.thehindu.com/opinion/op-ed/article2721164.ece

* I couldn’t help adding this one. One of the finest interviews given by an Indian to a foreign channel, Indira Gandhi, preparing the pitch for military intervention to create Bangladesh:

http://www.youtube.com/watch?v=nRAfs_LPFI4

*******

3. Putin Learns how to Play Hockey

Vladimir Putin was roundly criticised by most sections of the Russian blogosphere and the world media for what seemed like a rigged and patently unfair election that unfolded in Russia last week. The Economist has panned his style of functioning as “out of fashion” and advocated a deep introspection into what Russia needs to compete in a changing world:

http://www.economist.com/node/21538800

Mr. Putin however remains defiant and in an answer to an emailed question in a marathon four-and-a-half hour phone-in session brushed aside talk of emergency meetings in the Kremlin saying he was actually busy learning how to play hockey instead!

http://www.guardian.co.uk/world/2011/dec/15/vladimir-putin-mocks-moscow-protesters?newsfeed=true

He didn’t do too badly, though am not sure whether the goal-tender was in best form (See: http://www.youtube.com/watch?v=1O-Gh4yvWyw)

*******

4. A Head of State is Punished

Head of states, even respected ones, do get punished for their wrongs. As incredible as this may sound to an Indian, a French court this week, handed out a 2-year suspended sentence to former French President Jacques Chirac for corruption at the time he was Mayor of Paris. The rule of law wins out in France:

http://www.guardian.co.uk/commentisfree/2011/dec/15/jacques-chirac-convicted-at-last?intcmp=239

*******

5. The Outsider

As the Iowa Caucus in the Republican Primaries approaches, it’s anybody’s game. Still hanging on, in my opinion, is the most eligible candidate, and one of a very few sane right-of-centre Republicans to remain in America. Jon Huntsman, former Governor of Utah and Obama’s Ambassador to China is still in the running. But he’s Mormon, believes in climate change and has adopted an India girl. Can he really secure the ticket?

http://www.vogue.com/magazine/article/jon-huntsman-the-outsider/

]]> http://www.criticaltwenties.in/nationalpolitics/politics-critical-digest-19-12-11/feed 0 http://www.criticaltwenties.in/lawthejudiciary/turning-the-tide http://www.criticaltwenties.in/lawthejudiciary/turning-the-tide#comments Mon, 12 Sep 2011 05:20:40 +0000 Alok http://www.criticaltwenties.in/?p=3767

I must have presented quite a sight.

Running full tilt past through the gates, past the barriers, the lawns and finally up the stairs towards the Chief Justice’s Court in the Supreme Court. Wearing my black robes, black coat and lawyer’s bands. Sweating profusely, even in the milder heat of March, huffing, puffing and gasping as my legs and lungs protested at the sudden exertion.

It wasn’t even because I was late for a hearing. It was past 10:30 in the morning, but hearings wouldn’t begin for a while because a judgment was to be delivered first thing in the morning. It wasn’t just a judgment, it was the judgment. A most anticipated and eagerly awaited judgment.

The CVC case.

********

2011 will probably go down in the history books as the year of the mega scams. Or more precisely, the year when the mega scams of Governments, State and Centre came to light and a pitched battle was fought over the future of governance in India.

Yet, Anna Hazare, the Lok Pal and fasts-unto-death were still a month away on that warm day in March

What had gripped the nation was the appointment saga of PJ Thomas as the Chief Vigilance Commissioner by the Government, overriding the objections of the Leader of Opposition on the appointment panel and ignoring the pending chargesheet in the Palmolein Case.

As the skeletons from Thomas’ cupboard started falling out, the Government was in a bind. Should it accept responsibility, annul the appointment and admit a mistake? Or brazen it out in the hope that it will all die down quickly and no one will notice that the head of a Government anti-corruption agency is charged with having aided and abetted corruption.

If you know a thing or two about Governments, you will know which course they took.

Of course the appointment was challenged in the Supreme Court. That relentless crusader/charger-at-windmills — sometimes both on the same day — Prashant Bhushan invoked Article 32 and challenged the appointment in the Supreme Court.

The legal case against Thomas was cut and dried. The CVC was created to tackle corruption. To appoint a man facing corruption charges flew in the face of 150 years of administrative law laid down repeatedly by Courts. Any lingering doubts about the illegality of the appointment would be removed on a plain reading of the Vineet Narain judgment. The Government’s case was about as airtight as a colander.

And yet, and yet.

So many times before, the Supreme Court, when given this opportunity to strike a firm blow for citizen’s rights and against governmental corruption had faltered. Most notorious perhaps were the ADM Jabalpur and the PV Narasimha Rao cases. Of more recent vintage, the Lalu Prasad Yadav case.

Recent history didn’t bode well for this case either.

Prashant Bhushan was still facing contempt charges for having accused Justice Kapadia (as he then was) of “financial corruption”, though he has since attested to Kapadia’s integrity and accepted that the accusation was incorrect. They probably didn’t exchange very cordial New Year’s Greetings.

Kapadia himself had made his skepticism of PILs loud and clear. Costs had been imposed ruthlessly, and intolerance for roving PILs grew.

What would happen to this PIL when Bhushan was arguing before the Chief?

The legal case was crystal clear, but would the Supreme Court interfere all the same?

*********

We got the answer that 3rd of March, 2011.

I thought I had missed the judgment, but when I walked in, the Chief was still reading out the main arguments. Then he discussed the cases cited. The tension rose in the courtroom. He was drawing the distinction between “judicial review” and “merit review”.

The Vineet Narain case. The facts against Thomas.

Then comes the kicker we’re all waiting for.

“..the institution is more important than individuals…”

Oh yes! No wait… wait a second.

“For the above reasons, it is declared that the recommendation made by the HPC on 3rd September, 2010 is non-est in law.” (a pause and an aside) “that is void and non existent in the eyes of law”.

Oh Hell yeah! Kapadia’s put this one in the stands!

There’s a sigh of relief that goes around the courtroom. A senior counsel shakes his head in admiration. “Fantastic judgment” he mutters.

He’s setting out guidelines now, but the main deed’s been done.

I can distinctly remember feeling euphoric as I walked out of the Chief’s Court that day.

****

It is easy to be cynical when it comes to corruption. The range of responses runs from “if I don’t do it, someone will” to “Nothing happens without corruption in India” – all encompassing cop outs for personal non-action.

Let’s be clear about this: the institutional nature of corruption notwithstanding, there is always scope for individual action. Ultimately, it is a matter of choice. One chooses to take the bribe. One chooses to offer a bribe. One chooses to look away instead of acting against either bribe giver or taker.

When someone claims “they had no choice”, what they mean to say is, “I don’t want to face the consequences of not giving a bribe.”

It is what Prime Minister Manmohan Singh means when he says “coalition compulsions”.

History will judge PM Singh much more harshly in light of Kapadia’s judgment.

The underlying premise of Kapadia’s judgment is clear; it is no use calling yourself “clean” or “honest” if you are unable or unwilling to defend an institution from corruption. A man accused of (even if ultimately found innocent of) corruption will have neither the credibility nor the authority to function as the head of anti-corruption body. Likewise, Kapadia also seems to be saying (though obviously not in so many words, but the import is clear), anyone who claims to be personally honest is not fit to hold a position of authority or power within an institution if he is not able to stop corruption therein.

Personal action against corruption comes with its consequences. Not all of them benign. From conscientious officers whose lives and careers are shredded by their superiors for not looking away to the RTI activists who are routinely murdered for asking inconvenient questions, fighting corruption is a dangerous affair.

A high Constitutional functionary is not entirely immune to consequences either. It is hard to imagine Justice Kapadia having won too many admirers within the Government for his strong and uncompromising stand against corruption. A post-judicial appointment to a plum and prestigious position, the pot-of-gold at the end of the Supreme Court rainbow for many judges, is unlikely to be offered to him by the ruling dispensation.

The choice before Kapadia was clear, just as it was to Manmohan Singh. Kapadia made his choice. So did Manmohan Singh.

History will judge one far more kindly than it will the other.

]]> http://www.criticaltwenties.in/lawthejudiciary/turning-the-tide/feed 5 http://www.criticaltwenties.in/nationalpolitics/anna-hazare-and-the-iberian-scorpion http://www.criticaltwenties.in/nationalpolitics/anna-hazare-and-the-iberian-scorpion#comments Wed, 17 Aug 2011 07:29:54 +0000 Arghya http://www.criticaltwenties.in/?p=3701 Scorpions, in Iberian folklore when ringed by flames, would sting themselves in the back and die. Whereas several saw this as an early example of animal suicide, others believed that in panic, the scorpions became their own worst enemies. The Government of India by arresting, dithering and then releasing Anna Hazare in the last twenty-four hours has, much like the scorpions of folklore, come across as panicky at best and suicidal at worst. By doing so, it has united a previously fractured civil society, bolstered the Gandhian credentials of Anna, invited comparisons with its own shameful behaviour during the Emergency, and contrived to fashion itself as the common object of hate for protesters of all stripes, with or without causes.

The argument used by the government to pre-emptorily detain and arrest Anna Hazare and his aides, i.e. that it was upholding the letter of the law and preventing a breach of the peace, is specious. While no government can be faulted for adhering to the rule of law, when the law it purports to uphold, contains restrictions on the constitutional right to protest to such an extent that it emasculates the said right completely, upholding such a law can be morally problematic. Any government in the world is capable of decreeing any inconvenient activity illegal by passing a self-serving executive order. Per se, such an argument adds little in the way of justifying such action. Further, as in the public protest by Baba Ramdev, it was apparent that the government allowed the protest to go on in defiance of the permission given to it (the law), and upheld it only when it became clear that the protesters could not be deterred through negotiations. For a government and a nation for whom the rule of law is more akin to a tradable commodity rather than a sacrosanct virtue, any sudden resort to it to justify an action, must be viewed with utmost scepticism.

The legal argument notwithstanding, the political judgment shown by the government in first arresting and then releasing Anna Hazare, is curious. In the three intervening months between Anna’s first fast in April and now, much water has flown under the bridge. Significantly, at certain times in the past three months, Team Anna has been roundly criticised by civil society itself for its authoritarian approach as well as the substance of its draft Bill, which has been panned for its flawed institutional vision. Instead of capitalising on these differences, the government has, on the contrary, inadvertently bridged them by arresting Anna, which has been perceived by all and sundry as an attack on democracy and the constitutional right of protest. By doing so, it has also lost the moral high ground of being a reasonable government that is willing to negotiate and open to compromise with civil society campaigners, albeit through constitutionally entrenched parliamentary channels.

The government’s action is especially surprising given the actual nature of the two draft bills prepared in the course of the last three months. Whereas the government’s draft has its share of problems, as it reserves the majority power of appointment of Lokpal members, circumscribes its jurisdiction to prospective acts (2G and Commonwealth scams excluded) and has significant penalties for complaints found to be without substance, the civil society draft is equally if not more problematic as it naively seeks to create an all-weather institution, a go-to behemoth for all of India’s problems. It is inexpertly drafted, pays little heed to the constitutional principle of separation of powers and the time-tested necessity of checks and balances to ensure that power is not used irresponsibly. Some of these defects have been pointed out by Aruna Roy and other members of the NCPRI as well as Justice JS Verma, a former Chief Justice of India, both prominent members of civil society. However, despite these deep flaws, not once has the government attempted to show the public that its own draft, legally and institutionally, proposes a wiser solution. No attempt to widen the already existing fissures in civil society has been witnessed, nor has there been any criticism of Team Anna, barring discussion regarding the inclusion of the Prime Minister and the higher judiciary, on the unworkable and arguably unconstitutional provisions in their draft, whose wholesale adoption is the cause behind the proposed fast in the first place. Either this is extraordinary political naïveté on part of the government, or perhaps, it does not want a strong, anti-corruption institution after all, despite vehement promises to the contrary. Either way, debates on the substance of the law have been conspicuous by their absence and the government’s willingness to allow this to happen is particularly surprising.

This is not to detract from the blackmail involved in indefinitely fasting for the passage of a particular draft of a statute. A distinction must be drawn here between a fast for the passage of a strong Lokpal bill, as had happened in April and the passage of the Jan Lokpal Bill drafted by Team Anna, as is happening now. A key aspect of the democratic process is the room for reasonable disagreement. By adopting a method of negotiation that scuttles this room completely, Anna’s fast refuses space for actual differences of opinion amongst people and holds the government to ransom. Tomorrow, mining barons from Bellary, Hindu fundamentalists from Kandhamal and land mafia from all over the country could kick up large crowds and have analogous protests wanting their versions of the mining bill, the communal violence bill and land acquisition bill passed. Modern Indian democracy is not the rule of the mob. Anna’s latest salvo takes the country dangerously close to that path.

In the final analysis, it is however the government that has allowed the situation to come to such a pass. By allowing the debate to degenerate into a simplistic corrupt government v. non-corrupt civil society polarisation, it has ceded vast amounts of space to civil society and the opposition. At the same time by using coercive measures unwisely, it has been hoist by its own petard. Time and again, it has been caught out, and has bungled— with the sudden constitution of the ad hoc joint Lokpal Bill drafting committee, the flip-flop over Baba Ramdev’s protest and now the continuing dithering over Anna Hazare’s latest fast. Embattled by controversy, it seems that the government is set on emulating the scorpion of legend by plotting its own end. Ancient Iberian myth meets modern day Indian reality, Delhi, Circa 2011.

For a nation that is so fervently marred and tainted by instances of widespread corruption, it must take a lot of grit and audacity to stand up against a particular malpractice and challenge the system. For those who dare to undertake this daunting task, the need of the hour is to provide them effective protection and avert circumstances that may be life-threatening. It is in such a circumstance that a “whistleblower” legislation becomes an issue of intense deliberation. In common parlance and for the purpose of understanding the aim and object of the corresponding legislation, a whistleblower may be defined as a person who makes a disclosure in public interest and who is entitled to receive protection by the State. The concept of protection to whistleblowers is quite akin to the need for devising an effective Witness Protection Programme (WPP).  It has been witnessed on numerous occasions that witnesses end up turning hostile at crucial junctures in criminal trials that rely heavily on circumstantial evidence thereby rendering the proceedings redundant and inflicting a severe jolt to the ends of justice. The purpose of a witness protection program is to afford protection to witnesses who are of utmost importance to a particular trial and for them to give their testimony in the Court of law without any fear and apprehension as to any danger to their life, limb or loved ones.

A similar purpose is sought to be achieved by whistleblower legislation. Persons making disclosures with regard to alleged malpractices or acts of corruption in their respective departments require necessary protection at the hands of the State so that they do not forbear from making such disclosures due to fear of meeting an untoward consequence from those benefiting from such indulgences. Whistleblower legislations have been enacted in numerous countries in the preceding two decades, Uganda being the latest to have enacted the Whistleblowers’ Protection Act in April 2010.

Even though the Bill of 2010 (introduced in the Lok Sabha) does manage to invoke substantial hope, it certainly is not the first attempt towards legislation for the protection of whistleblowers. Prior to this, endeavors were made in form of the Public Interest Disclosure (Protection of Informers) Bill, 2002 which was drafted by the Law Commission of India, and also in 2006 when the Whistleblowers (Protection in Public Interest Disclosures) Bill was presented in the Rajya Sabha. The Bill of 2002 was the upshot of a request made by then Chief Vigilance Commissioner (CVC) Mr. N. Vittal to draft a Bill encouraging the disclosure of corrupt practices by public functionaries and protecting persons making such disclosures. The 2006 enterprise was spurred by the murder of Mr. Satyendra Dubey who was Deputy Engineer with the National Highways Authority of India (NHAI) and associated with the “Golden Quadrilateral” Project. Mr. Dubey met an untimely fate when he complained to the Prime Minister’s Office (PMO) alleging irregularities and corruption by the NHAI officials and contractors in the aforementioned project. An uproar by IIT alumni across the nation and a public interest litigation (PIL) filed in the Supreme Court with regard to the murder of Mr. Dubey and the need for protection of whistleblowers got the then ruling NDA (National Democratic Alliance) government into action and the outcome was the Bill of 2006.

The disconcerting facet vis-à-vis both the Bills were that neither of these saw the light of day and were stuck in limbo without any hopes whatsoever of getting concretized into legislations. Meanwhile, with the enactment of the Right to Information (RTI) Act, 2005, a new breed of whistleblowers emerged and the pressing need for a legislation for their protection manifested itself with an escalating number of RTI activists succumbing to disclosures made by them with regard to departmental malpractices in public services.

Nearly four years later, attempts have resurfaced to ensure protection to whistleblowers in the form of what has been ceremoniously coined as “The Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010”, popularly known as the “Whistleblower Bill”. This Bill comes after whistle blowing having claimed yet another life, that of environmentalist Amit Jethava who campaigned for the cause of the lions of the Gir Forest Reserve in Gujarat against illegal miners.

Though most certainly a welcome move, the Bill comes with its fair share of loopholes. What is most perturbing about the provisions of this Bill is the vesting of wide amplitude of powers in the Central Vigilance Commission (CVC). The cause of worry is two-fold. Firstly, the CVC is circumscribed in its powers and functions by means of the Central Vigilance Commission Act, 2003 in so far that it can neither register a criminal case itself nor order the Central Bureau of Investigation (CBI) to investigate. This inherent limitation was recognized by the CVC itself when it sought to widen the ambit of its powers so as to give effect to the Public Interest Disclosure and Protection of Informers (PIDPI) Resolution, 2004 in letter and spirit.  Secondly, and a factor that is far more disconcerting, is the recent spurt of allegations of corruption that have raised serious concerns over the integrity of the office of the CVC, the supposed watchdog for corruption in the country. With the constitutionality of the appointment of former Central Vigilance Commissioner Mr. P.J. Thomas having been upheld by the Supreme Court, it seems unlikely that such an institution can be entrusted with the duty of protecting persons who wish to unearth the roots of corruption from the system. Also, section 10 (2) of the Bill declares that the Competent Authority shall give “suitable directions” to the concerned public authority or public servant who has allegedly victimized a person making a disclosure. Though on paper, it seems like a provision in good measure; in actuality it is difficult to ascertain how “suitable directions” would deter a person who can go to the extent of killing someone who tries to uncover an alleged malpractice.

Having voiced the aforesaid concerns, whether or not the Bill meets its expectations would be clear once it becomes an Act. Till then, only speculations would do the rounds doing no good to the purpose sought to be met by the Bill. Though still pending in the Lok Sabha, the Bill invokes immense hope with respect to the enactment of a concrete legislation for the protection of whistleblowers.  Whistleblowers are entitled to protection not only as citizens of society but because of what the nation would owe to them if the disclosures made by them are adequately acted upon. In such an event, the legislation should find its way to the Gazette as soon as practicable; if not for anything else then as a tribute to those who have lost their lives unearthing the misdeeds of those responsible for the culture of all-pervasive corruption in India today.

When one returns from a long break from work, one is tempted to take it easy, switch gears slowly, and settle into a rhythm in due course.

Except if you’re a judge of the Supreme Court.

In which case, you charge right back into the front pages of every newspaper with hard hitting judgments and wide ranging orders.

To recapitulate, just this week:

Special Investigation Team set up to probe black money stashed abroad

Chattisgarh Government directed to disband the Special Police Officers (better known as the Salwa Judum)

Allahabad High Court’s quashing of Land Acquisition by Greater Noida Industrial Development Authority upheld

Monitoring of Investigation into Cash for Votes Scam

Whew. This is what an activist Court looks like folks. The Court is telling the Government how to do its job, whether it is in “getting” black money back, or how to fight the Naxalite/Maoist problem, or how it should acquire land for “public purposes” under the Land Acquisition Act.

It is of course a different matter whether or not this is a good thing.

The issue of judicial activism has been done to death here and elsewhere and the arguments, after a point of time, are just the same old re-treads – competence v enforceability of rights; institutional integrity v immediate need; so on and so forth.

The situation that the Supreme Court, and India, in general, finds itself in, however, cannot be easily bracketed within any of the existing parameters of the debate. Rather, what is propelling the Supreme Court’s activist drive (and to a great extent, other High Courts such as the Karnataka High Court and the Delhi High Court, as well) is the impression of a severe case of governmental paralysis that has gripped our polity.

There is no dispute that severe problems currently buffet the Indian State from all sides and in all sorts of ways, but there seems to be no will on the part of the political executive at the Centre to take any action to steady the ship.

Whether it is corruption, black money, Telangana, unjust land acquisition, depletion of forest cover, you-name-it-we-face-it, the Government’s reaction seems to be to run around in circles like headless chicken. In some cases, they know what to do, but won’t do it for lack of political will. In others, they know what to do, but go ahead doing the exact opposite for short term political/economic gains. In others, they have not the first clue on what to do.

So far, the Supreme Court has stepped in to remedy the situation in two of the three types of cases I just pointed out. The black money case is a classic instance of where the Government just does not have the political will to seriously pursue the persons fronting for the illegally obtained wealth stashed abroad. As Justice Reddy’s reasoned order makes it clear, far more effort was spent in convincing the Court that nothing could be done or something was being done, than actually going out and doing this things to prosecute individuals with suspicious foreign bank accounts. It is no wonder that Justice Reddy, among the more soft spoken and temperate judges of the Supreme Court, should have completely lost his rag during some of the black money case hearings.

With land acquisition, we have the Court finally stepping in to call the Government’s bluff about “public purpose”. This was a particularly egregious case where the Greater Noida Industrial Development Authority invoked the “emergency” clause of the Land Acquisition Act to deny farmers a hearing before acquiring land to be handed over to private developers to build luxury apartments. This is not a first for the UP Government mind you, but one could say that this is so obviously and blatantly stealing from the poor to give to the rich that the Court had to put its foot down. It is ironic, but exactly the same fears were voiced by Justice VD Tulzapurkar in his minority judgment as far back as 1985 in Bhimsinghji v Union of India (in the context of the Land Ceiling legislation).

The enactments involving large schemes of social engineering like abolition of Zamindars, agrarian reforms nationalisation of undertakings and businesses and the like, where avowedly the benefit of the community or public at large is the sole consideration are distinguishable from the instant case, where “industry” has been expressly defined to include business, trade or profession in private sector and where power has been coffered upon the State Government to allot properties acquired under the enactment to individual businessman, trader or professional to enable him to carry on his private business, trade or profession, that is to say, where the legislation is a fraud on State’s power of eminent domain, such a provision of putting a maximum limit on compensation payable in respect of the acquired property irrespective of its extent will have to be regarded as confiscatory in nature.

Then, the majority — comprising CJ YVChandrachud, and Justices MN Bhagwati, V Krishna Iyer, and AP Sen — brushed aside such fears as being everything short of hallucinatory, but now, in retrospect, the views of India’s finest judges of all time seem, frankly, deluded.

The current wave of activism among the judges is at least a year old and can probably be traced to the time when Justice Kapadia took over as the Chief Justice of India fifteen months back. His now-tainted predecessor monopolized fresh PILs that challenged Government power or inaction and let them languish in the doldrums of delay. In his last year as the CJI, it was an open secret that this was being done to get a favourable post-judicial posting — to pick a body at random, the National Human Rights Commission — along with the perks and power that go along with it.

Justice Kapadia, is however, cut from different cloth and has brought a strict, no-nonsense approach to the business of manning the sentinel on the quie vie. PILs were spread among the various Benches that he constituted, ensuring that such matters go before judges who have an impeccable record of honesty. So far, he hasn’t been let down as the Supreme Court’s monitoring of various issues, be it the implementation of the NREGA, the right to food and shelter, corruption in high places or the rights of tribals has attracted much appreciation and very little opprobrium.

Ideally, the site for the resolution of such complex and intractable problems should be the halls of Parliament or the domain of the Executive. Ideally, the manner in which such problems should involve careful deliberation, balancing as many interests as possible, and without compromising the interests of the worst off. Ideally, the results of governmental action should inspire confidence in the public at large that their democratically elected government is capable of solving the intractable problems of the day. Yet, as we see everyday, the situation is not even close to being far from ideal.

Contrary to academic and popular belief, judges are aware of their limitations and their lack of power. Overreach makes the judges and judiciary look silly, and sixty odd years of judicial history has ingrained this much at least into judges. Writ courts can only monitor, but not investigate. They can only call for reports, but cannot compel compliance. They can strike down egregious actions of State, but cannot fully restore those irretrievably wounded by such actions to full health, in body or mind. Much of what is said by judges during argument, by way of observation, — and often (mis-reported) by the media — is a tacit admission of this powerful powerlessness. Oxymoronic perhaps, but that is the only way to describe a judicial body that has the power to lay down the law of the land, protect fundamental rights against governmental encroachment and do complete justice, but cannot always ensure that its orders are not casually disobeyed by lower level officials.

Let’s be very clear about this. India’s democracy is by no means safe, secure or stable. It is being constantly subverted and undermined in a hundred different ways every day. Yet, every day, someone fights back against this subversion and undermining knowing that failure would bring the institutions of democracy down to dust. Democracy is not just a formal commitment to periodic elections based on universal suffrage, but something bigger and more meaningful, and most importantly, something worth defending.

The battles that the present activist Supreme Court has picked up go to the very heart of such a rich conception of democracy;
How should a democratic state fight to protect democracy without subverting it? What’s is the role of the State in ensuring that economic growth is equitably distributed? How to ensure that the political process is not subverted by illegally accumulated wealth?

As Justice Reddy puts it so eloquently, these are fundamental, existential questions that have to be grappled with and cannot be wished away or put into a SEP-field. Among the major organs of the State, only the judiciary seems to understand that this is what is at stake, and why it has do something to prevent utter and complete breakdown of the institutions of democratic governance.

Maybe, if things improve, we won’t need a Supreme Court that has to keep an eagle eye on governing institutions. Maybe, it will go back to resolving intractable family disputes and gigantic corporate battles and when certain families are involved, do both at the same time. Maybe, the case load of the judges will leave them worrying less about what public interest compels them to do, and more about what the precedents and principles have to say about it.

Maybe.

For now, though, the sentinel’s strong, stentorian “qui vive” is comforting.