Congress tries to douse fire, but slips on fire

(First appeared in The Pioneer dated October 31)

RAJESH SINGH

On October 23, The Pioneer published an editorial titled, “Kejriwal playing god?” The editorial cautioned India Against Corruption chief Arvind Kejriwal against going overboard without plausible evidence in his campaigns that targeted public figures for their alleged corrupt activities. At the same time, the editorial also commended him for the good work that he has been doing in raising the level of awareness and highlighting dubious deals of some public figures with believable material to justify the allegations.

 

The editorial drew a flurry of response from indignant readers who took exception to the criticism of the anti-corruption activist. Even readers who did not completely endorse the ‘hit and run’ methods that Mr Kejriwal has adopted, and also did not believe that the IAC leader is himself above board, jumped to his defence. The bottom line was: ‘We have had enough of nonsense from our politicians. Here is a man who has taken on the corrupt in high places, and he has our support.’ There was also a letter writer who said that, if Mr Kejriwal is indeed playing god, the country needs more gods like him. The Pioneer published many of those letters.

 

What does such support indicate? It would be wrong to personalise the confrontation as being one between Mr Kejriwal and the political establishment — more specifically the Congress-led UPA Government. Just as it would be misplaced enthusiasm to see into this a battle between David and Goliath. The support for Mr Kejriwal is in reality a manifestation of the anger that the common man feels over the manner in which the political rulers in the country, now led by the Congress, have been taking the people for granted. It is also a manifestation of the aam aadmi’s frustration at being so helpless as to do nothing while he is trampled all over.

 

Mr Kejriwal’s detractors within the UPA will of course claim that all this talk of anger and frustration is hyped-up nonsense, and that the Congress-led regime is completely tuned in to the aspirations of the people. Well, the sweeping changes that Prime Minister Manmohan Singh made to his Council of Ministers on Sunday do not in any way indicate that the Congress has much regard for public opinion. On the contrary, the reshuffle appeared deliberately designed to cock a snook at such public opinion. It has provided more ammunition to the likes of Mr Kejriwal, besides the Opposition. But then, it seems that the Government is beyond caring anymore; it just wants to hang on to the rest of the tenure, even if it gets mired in further ignominy as the days go by. 

 

The Congress would like us to believe that the reshuffle will provide the much needed momentum to governance and that the new team will lead the party to success in the next Lok Sabha election. We don’t know about that. What we do know is that the Sunday exercise has exposed the party and the Prime Minister to serious charges of buckling under pressure from various lobbies. We know too that being tainted is not an obstacle for a Minister in getting promotions. And, we also know that honest Ministers can expect rewards by way of being shunted out. These are indeed strange ways for a party that swears in the name of the common man and  propriety to demonstrate its commitment to the two. 

 

The dirt over Mr Jaipal Reddy’s shift out of the Petroleum and Natural Gas Ministry has already hit the fan, and Congress leaders have been tying themselves up in knots since Sunday trying to play down the Minister’s transfer. Yet, there are certain facts, and when they are seen in the context of the reshuffle, they do give rise to doubts that Mr Reddy, who by all accounts has been an upright Minister, was removed from the Ministry because he shared an uneasy relationship with an influential corporate house which is engaged in what the UPA regime may believe is crucial to accelerating economic growth. Mr Reddy had held up some key proposals of the corporate house which, among other things, is engaged in oil and gas exploration. He had also turned down the industrial house’s plea to hike rates in its favour. Congress apologists have rubbished the allegation that corporate lobbying led to Mr Reddy’s removal from the Petroleum Ministry. 

 

Fine, but what then explains his transfer? There can be three reasons for a Minister to be shifted out of his Ministry. Because he is incompetent. Or, because he is inconvenient. Or, because he is rewarded with something bigger. The Congress has been claiming ad nauseam since Sunday that Mr Reddy is honest and efficient and that he had done a wonderful job in the Union Ministry of Petroleum and Natural Gas. Therefore, we can rule out the first reason. 

 

The third reason too is invalid here, because Mr Reddy did not get a promotion. As we now know, the Congress did not just decide to punish Mr Reddy by ousting him from the Petroleum Ministry but also to further humiliate him. That is how the affable but knowledgeable Minister ended up with the low-profile Science and Technology Ministry. Had the intention not been to rub in the insult, the Prime Minister could have easily given Mr Reddy a Ministry that befitted the 

latter’s stature. 

 

The only plausible explanation lies in the second reason: That, as Petroleum Minister, he was proving to be an inconvenience to some elements within the Government and outside of it. He had to be removed from the way so that these elements had their way.

 

If the Jaipal Reddy episode has exposed the Government led by the Congress for what it really is, then the elevation of Mr Salman Khurshid has left a bad taste in the mouth. It’s not that Mr Khurshid will make a poor Union Minister for External Affairs. On the contrary, he may well prove to be a most capable one. But Mr Khurshid faces serious allegations of irregularities involving a non-Government organisation which he runs, and those charges have yet to be laid to rest. 

 

His defence so far has raised more questions than it has answered. Critics of the Congress justifiably see in Mr Khurshid’s promotion a deliberate snub to the Opposition and the anti-graft activists who have been demanding a probe against the Minister in the wake of revelations in sections of the media about the NGO’s 

dubious conduct.

 

Given such questionable decisions of the Congress and the Prime Minister, can we then blame the Opposition and Mr Kejriwal for raising the pitch? Should we treat with contempt the voice of the masses that is getting increasingly strident against such skullduggery? Must we ignore the call for a new, hopefully better, order?

Shoot the messenger, trample its rectitude

(First appeared in The Pioneer dated October 17, 2012)

RAJESH SINGH

Union Minister for Law and Justice Salman Khurshid must have deliberated long and hard with his associates over the strategy to adopt during the Press conference that he addressed on Sunday. As he saw it, his personal honour was at stake. We do not know what was agreed upon in those deliberations, but the country saw on that drab holiday afternoon a person shockingly different from that of his public image of a suave, sophisticated and urbane politician. Mr Khurshid was offensive, abrasive, insulting and often not in control of himself. Perhaps he had not meant the Press event to go the way it did; perhaps he was provoked by the doggedly aggressive questioning by reporters of an influential media group; or perhaps it was just that he had decided that the best form of defence is acerbic offence.
The deviation from his established image could have been justified in hindsight had it at least resulted in tangible benefits for the Minister. Sadly, for him, the Sunday episode ended in denting a persona which he had carefully cultivated over the years, and left him further exposed to charges of various wrongdoing.
It is undisputed that Mr Khurshid faced the media on that day with the express intention to dominate and control the proceedings. This is why he began the Press conference by laying down ‘rules’ of the ‘game’ and identifying the ‘core issues’ that deserved his attention. There is nothing wrong in his having done that — which politician does not want the wind to blow his way? Yet, he should have known that he would have to face hostile questions, especially from reporters of the media group which has run a robust campaign against the alleged irregularities in the functioning of a non-Government organisation that he and his wife manage.
The Minister blundered right at the start when he said that he had not wanted to invite the representatives of the ‘errant’ media group for the Press conference but agreed to do so after other media persons advised him against blocking a section of the Press out. He gave away not just his bias against but also dislike for sections of the media that dare to challenge him. He became an even more marked man for reporters of the media house concerned, who were present in full strength at the Press conference, waiting for their chance to pounce.
And Mr Khurshid continued to blunder after that. When the first question was shot at him by a representative of that very media house which he has come to despise, he offered an unconvincing reply. When the reporter persisted, the Minister lost his cool and shouted down the reporter. When asked whether he should quit to ensure a fair probe, he said he would gladly do so if the owner of the media house too resigned!
This may sound rhetorical, but it could well become the tag line of the other Ministers in the UPA Government and Congress leaders who face charges of impropriety. For them, the charges become unimportant; what is crucial is to destroy the credibility of those impertinent individuals and institutions who dare to make the accusations. The Congress has been trying its utmost to do that to the Comptroller and Auditor-General of India since the 2G Spectrum scam broke out. But, the more it has persisted in the futile task, the more shine the CAG has acquired. Another example is the manner in which the Congress members have made a mockery of the Public Accounts Committee that recently went into the report on the 2G Spectrum scam. But the PAC headed by a BJP Member of Parliament remains unsullied while the credibility of the Congress is in tatters.
Clearly rattled by the volley of questions and counter-responses by the media on that Sunday, Mr Khurshid turned not just nasty but also abusive. Displaying his elitist upbringing and the class discrimination that he appears to have nursed in his mind for years — it could not have suddenly exploded out of nowhere — the Minister mocked the persistent reporter and offered to repeat his response in Hindi in case the original English version had been lost on the latter. This was at best a cheap retort that did no good to the Minister’s image. Nor did the fact that he appealed (to no one in particular) to “shut” the reporter up, after the media hound failed to get the message. The Minister’s performance was a perfect example of how to bludgeon your own image.
Mr Khurshid’s arrogance can  be seen from the manner in which he has gone about addressing people who have questioned him and his dealings. In a recent interview, apparently referring to the likes of anti-corruption activist Arvind Kejriwal, he said he would not bow down to “hoodlums in the streets”. Even at the Sunday Press conference, he said that he would not answer questions that had been raised by “people on the streets”. But he has to face the fact: While Mr Kejriwal may not necessarily be seen by many as a paragon of virtue, he now commands more credibility in the public eye than Mr Khurshid does — or for that matter many UPA Ministers do in the wake of the various massive scams that have taken a toll on the Manmohan Singh Government’s image. Moreover, Mr Khurshid forgets that it is the people on the streets who determine the political fortunes of this country.
The Minister himself is what he is because of the people on the streets. The questions that are being asked of Mr Khurshid are not being directed by Mr Kejriwal and company alone — nor just by a particular media group — but by voters across the nation as well. Then, why should he not answer them? Perhaps that’s because the ‘mango people’ living in this ‘banana republic’ cannot demand answers from those who have degrees from institutions like Oxford and are engaged in the ‘service of the nation’. Mr Khurshid can argue that he did offer a credible response at his Press conference to the issues which have been raised regarding the functioning of his NGO, Dr Zakir Hussain Memorial Trust. But that is far from the case. The Minister simply could not provide convincing replies on at least two — and the most contentious — matters: One, the Trust used a forged affidavit to receive clearances and thus more funds from the Government; and two, it made use of a letter supposedly written by a ‘Government official’ much after he had retired.
In a tacit admission that the letters the trust benefitted from may have been forgeries, Mr Khurshid has claimed that the matter must be probed by the Government. In other words, he appears to be saying: ‘My NGO may have used forged letters to its benefit, but since we haven’t forged them, why blame us!’ Coming as it does from a Law Minister, this is amusing stuff.

Writer and the Fatwa

(First published in The Pioneer, Agenda section, on October 7, 2012)

RAJESH SINGH

February 14, 1989, was Valentine’s Day, just as February 14 every year is. For Salman Rushdie it held little significance, as nothing was going right for him on the personal front. Relations with his wife were strained and the celebrated author was struggling with the emotional fallout of a separation that was still to be formalised. But his professional life could not have been more cheerful. Only five months ago, the British edition of his latest novel had been published, and the American edition was scheduled by the year-end.

Following the booming success of Midnight’s Children released eight years ago, he had become the toast of the literary world, rubbing shoulders with legendary writers, powerful politicians and glamorous celebrities from the entertainment industry. For a writer only in his early 40s then, the fame could be intoxicating. If it was, then Rushdie was soon to be grounded, in fact under-grounded, and purged of that exhilarating belief.
On that day in February, he received an unusual response to his new book which had arrived in the British market five months ago. The message was from Iran’s Supreme Leader, Ruhollah Musavi Khomeini; the book was The Satanic Verses. The then Grand Ayatollah had issued a fatwa — an edict — addressed to Muslims worldwide. It read: “I inform the proud Muslim people of the world that the author of the ‘Satanic Verses’ book, which is against Islam, the Prophet and the Quran, and all those involved in its publication… are sentenced to death. I ask all the Muslims to execute them wherever they find them.” Five months after the book had hit the stands, the religious leader had woken up to the realisation that it had blasphemed Islam to such an extent that nothing less than death to the author would wipe off the desecration.

Noted Islamic scholar Maulana Wahiduddin Khan has in an article published recently in an English language daily emphatically said that the Quran does not provide for any punishment to people who abuse Prophet Mohammed. If he had suggested that to Khomeini in 1989, he would probably have found himself sharing Rushdie’s fate. The Ayatollah had no hesitation in sentencing one Muslim (albeit a somewhat non-believing one) to death; the addition of another of the faith was no big problem for the bearded mullah.
What happens when an author becomes the target of not just one individual, not just one radical outfit, but of anyone and everyone residing in any part of the world that would be even half-willing to execute the fatwa? Whom do you protect yourself from? And how do you do it? Also, what happens to the freedom of speech in a free world inhabited by free people and even freer writers? Where have all those voices and those eager faces that are heard and seen so often in support of free speech, gone? Joseph Anton takes us into that world where some of those answers reside. Joseph Anton is what Rushdie took on as his new name after he went into hiding following the Ayatollah’s edict. Joseph Anton is how he lived the many years since 1989 until he resurfaced after the crisis more or less blew over, in the name that his parents had so lovingly given him. Joseph Anton is Rushdie’s memoir written in the third person; the account of an Inquisition held of a person in absentia, an accused who remains underground throughout the process like a scared rabbit, emerging tentatively but only briefly to maintain a link with the real world.

If he had to be recognised and discovered in those momentous years following the fatwa, he would have been burnt at the stakes; in his absence a bonfire of his blasphemous book did the honours. Had he indeed written something so terrible? Whatever, in the memoir, Rushdie quotes Heinrich Heine, “Where they burn books they will in the end burn people too.” This was a starkly real comment to come from the German Romantic poet and essayist of substance.

But isn’t it all about creative freedom so long as the purpose is not mala fide? Try telling that to the Islamists (or any hardliner with a different terminology). Rushdie as Joseph Anton contemplates: “To be free one had to make the presumption of freedom. And a further presumption that one’s work would be treated as having been created with integrity. He had always written presuming that... it would at the very least be treated as serious work...” Well, it wasn’t, not in many parts of the world — and not in India. This last bit hurt him the most for two reasons. One was the fact that he belonged to India, though he took a British citizenship subsequently; and two, he never imagined that a country which valued free speech so greatly would ban his book — ban it even before the rest of the world woke up to the ‘evil’ written in it. In Pakistan, where his parents shifted after living much of their lives in Mumbai, he had no hope, and so he never felt betrayed by that country. Rushdie writes in Joseph Anton, “Pakistan was the great mistake of his parents, the blunder that had deprived him of his home. It was easy to see Pakistan itself as a historical blunder too, a country sufficiently unimagined.”

So, India broke his heart, because until the ban, the “presumption of intellectual freedom and respect had been ever present (in the country) except during the dictatorial years of ‘Emergency rule’ imposed by Indira Gandhi...” Disheartened and a loss to understand how to retaliate, he penned an open letter to then Prime Minister Rajiv Gandhi: “What sort of India do you wish to govern? Is it to be an open or a repressive society?” But that ‘secularist’ Prime Minister had earlier rendered null and void through an amendment to the Constitution a Supreme Court verdict giving maintenance to a Muslim woman who was abandoned by her husband. When the Islamic clerics kicked up a row and claimed that the judgement interfered with the shari’ah, Rajiv Gandhi moved quickly to pacify them and negate the apex court’s ruling. How could Rushdie have expected better from that Prime Minister?

Things have got no better since then. One supposes that if a breach in the freedom of speech is not amended strongly enough, it can serve as a precedent for several more to happen. The banning of The Satanic Verses provided a perfect setting for what was to happen in later years. More books were proscribed; foreign authors were barred from entry or from extending their visas; supposedly offensive paintings were vandalised, painters abused and forced to leave the country; cartoonists were threatened and jailed. Rushdie has all but lost hope in India as an idea of a free and tolerant society.
Chained and bound by the fatwa, the author finds an interesting mode to depict his state. The bird, which symbolises freedom, becomes for him in Joseph Anton his metaphor for a juicy target — a sitting duck, so to say, and the duck is a bird, right? Before the storm broke out in the full, Rushdie was vacationing in Mauritius and looking at the birds that flew past the clouds and over the waters. “He should have paid attention to the birds. The dead flightless birds who had been unable to soar away from their predators, who tore them apart... In all 24 of the island’s 45 bird species were driven into extinction,” he comments.

How sad. And now he, like those unfortunate birds, would be the next. “A mullah with a long arm was reaching out across the world to squeeze the life out of him.” And, many years later, in 2001, as the Twin Towers collapsed, “birds were screaming in the sky”. And, in many parts of the world, egged on by religious zealots and consumed by blind hatred for something they neither understood nor wanted to understand, mobs of thousands had taken to the streets in the 1990s and beyond and chanted, “Rushdie, you are dead.” Well, he was in a sense, and out of him was born Joseph Anton.
For all its grim setting, Joseph Anton is not lamentation all the way, nor is it an attempt by the author to project a heroic image of himself during the years of crisis. That would in turn have taken a heroic effort to do — considering the deep fear that had gripped him in those years. It was the fear of not just personal harm but also harm to his son and all those he cared for as family and friend. In fact, the memoir is really a revisit to a nightmare. Yet, there are ample traces of wit in the narration which must be credited to the author’s sense of humour.

Finally, Rushdie confirms to us that minority appeasement by politicians is the same all over the world. He offers a number of instances of that in Great Britain, with so-called leaders falling head over heels to placate the hardliners over the book and condemn The Satanic Verses. One of the Muslim community leaders who spewed venom on him and his writing and inflamed passions was later honoured by the British Government. The poison had spread wide, with several literary giants, after the fatwa, playing safe and suddenly discovering that Rushdie had perhaps overdone the ‘freedom’ bit.
Through this memoir, Rushdie may have hoped to purge himself of the horrors of those days. Maybe to an extent he has managed that, but he has still left behind several uncomfortable questions. Damn these writers, they will not allow us a moment of peace.

It is jeopardous when anything is everything

(First appeared in The Pioneer dated October 3, 2012)

RAJESH SINGH

In the middle of August this year, the Chief Minister of West Bengal, Ms Mamata Banerjee, said that judicial verdicts were purchasable. “Many times favourable verdicts are given in lieu of money. Why should that happen? This is very unfortunate”, she stated. Her remark had triggered a furious row, and it would have perhaps invited some legal action had it not been for the fact that she made the controversial statement on the floor of the West Bengal Assembly and, therefore, she enjoyed immunity from judicial arbitration.
While that issue has died a quiet death, the question of whether Members of Parliament and Legislative Assemblies should enjoy such absolute immunity from court action over even their most outrageous statements (or actions), remains as relevant as ever. This, despite the fact that the courts have time and again, in case after case, determined in unequivocal terms that immunity from legal action which these elected representatives have over what they say in the House is complete.
This is where things stand at present. But we do not know what the future holds. After all, the Supreme Court has over the years interpreted in fresh ways many laws that govern the relationship between the legislature and the judiciary, even going to the extent of arbitrating decisions of the Speaker of the House. Before that first happened, it had been assumed that the Speaker’s actions in Parliament and State Assemblies were supreme and unchallengeable in a court of law. But now that is no longer so.
The courts have in many instances set aside the Speaker’s rulings — for instance on matters of defection or suspension of members from the House or bar on members from voting. In fact, the courts have held that, while they will not entertain any plea against ‘procedural irregularities’ in the House, they shall most certainly admit petitions that challenge the Speaker’s action on grounds of ‘illegalities that go against the scheme of the Constitution’.
Still, there is nothing to indicate as yet that the judiciary will go to the extent of adjudicating on statements made by MPs and MLAs in the House, because that would be seen as snatching the right to free speech from these representatives. It is a right that they have been given — and in no uncertain terms at that — under Article 105(2) of the Constitution of India. Here is what the Article says, “No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.”
The operative word here is anything — which has been held by the courts as equivalent to everything — and the judiciary has fallen back on that single word every time it was faced with a petition challenging a remark made by an MP or an MLA on the floor of the House.
Let’s take just one instance: The case of Tej Kiran Jain and Others versus N Sanjiva Reddy and Others, as an illustration. The verdict was delivered by a full bench of the Delhi High Court in August 1969 — yes, the issue had begun to crop up as early as that.  The plaintiffs had filed a suit claiming that, in the course of discussions in the Lok Sabha the defendants had made certain defamatory remarks against Jagadguru Shankaracharya of Puri, which were calculated to harm the spiritual leader’s esteem in the public eye. The issue to be dealt with was whether Article 105(2) indeed guaranteed complete immunity in respect of anything said by a Member of Parliament. The bench upheld that notion and said, “Plain reading of the Article goes to show that as regards anything said by a Member of Parliament in Parliament… the Constitution has guaranteed full protection and provided complete immunity against any proceeding in a court of law. It is significant that while clause (1) of Article 105 starts with the words ‘subject to the provisions of the Constitution’, there is no such limitation so far as clause (2) of Article 105 is concerned.” That pretty much settled the matter.
But the judiciary made an interesting and nuanced interpretation of the Article in the infamous PV Narasimha Rao versus State case in 1998, which related to allegations of bribery of certain Members of Parliament to help out a minority Government headed by Narasimha Rao. The Supreme Court was faced with a piquant situation: Can MPs claim immunity from prosecution under the cover of Article 105(2) on charges of bribery connected with their vote in a no-confidence motion against the regime? In a majority decision, the apex court held that MPs accused of taking bribe and then voting had immunity under the Article from legal action because their ‘action’ (of voting) in the House could not be questioned. However, the court added, those who allegedly took the bribe but abstained from voting, could not have that Article’s protection because they had not indulged in any ‘action’ in the House that would have given them immunity!
Why has the Constitution provided for such blanket immunity to elected representatives? It was to ensure that members are free from all limitations and constraints in raising before the House any issue that they believe assists them in better representing and serving the people who have elected them. It was believed that the fear of judicial action over what is said in the House would deter the elected representatives from taking up contentious matters that concern the people.
The intent of the framers of the Constitution was indeed beyond reproach. But then, they too must have not imagined that our Parliament and the State Assemblies would one day turn into a ring of physical brawls, where members literally try to outbox one another, uproot mikes and hurl them around like atomic weapons, snatch away important documents, tear them and scatter the bits in a show of triumph. The framers of the Constitution would never have imagined that a day would come when the vilest of comments would be made on the floor of the House by members against their colleagues and also against those unfortunate ones who not enjoy the privilege and protection that they do.
In the given situation where courts have their hands tied down by constitutional provisions, it is left to the collective wisdom of the House to take appropriate action against obvious and blatant wrongdoings that members indulge in on the floor of Parliament or the State Assemblies. Unfortunately, there are too few instances of that having happened to instil confidence in the people. There must be fetters to anything.

Judges must not lose sleep over such matters

(First appeared in The Pioneer dated  September 19, 2012)

RAJESH SINGH

It is not often that the Chief Justice of India takes swipes at sitting judges of the Supreme Court over verdicts they have passed. So, when Chief Justice of India SH Kapadia remarked recently at a function that “judges must apply the principle of enforceability before propounding legal principles and passing orders”, the statement generated a great amount of buzz. He was referring to a ruling by Justice BS Chauhan that fundamental rights also included the ‘right to sleep’. Justice Chauhan and Justice Swatanter Kumar formed a two-judge bench which in its verdict on February 23 had slammed Delhi Police for its brutal midnight action against followers of Baba Ramdev who had gathered at Ramlila Maidan in Delhi. Justice Chauhan had said that a citizen had the right to sound sleep because sleep is fundamental to life.
While not criticising the judge’s interpretation that the right of a citizen to sleep is part of his fundamental rights, Chief Justice Kapadia nevertheless said, “Right to privacy had been made a fundamental right. Now we hear that right to sleep is also a fundamental right… If we lay down a policy and the Government says it cannot implement it, can we enforce it by resorting to contempt jurisdiction?” In making those remarks, the Chief Justice has re-opened a debate on the extent to which the scope of the ‘right to life’ and ‘personal liberty’ as enshrined in Article 21 of the Constitution can be expanded. The matter of enforceability flows from that widening canvas, because the larger and more broadbased the ‘right to life’ gets, the more difficult it can become for the new interpretations to be implemented effectively.
Interestingly, much the same apprehensions that Chief Justice Kapadia has expressed now were raised by former Union Minister, commentator and author Arun Shourie more than a decade ago in his book, Courts and their Judgments. In the chapter titled, From “life” to “life with dignity” to the pay if Imams, Mr Shourie writes, “…If orders are of such sweep that they cannot be implemented, or if no one seriously follows them up to ensure that they are implemented, the orders will boomerang on those who gave them.” It is almost as if the author is referring to the February 23, 2012, ruling on the ‘right to sleep’. In any case, his observations indeed were in the context of the growing ambit of the ‘right to life’.
It is true that the Supreme Court has been constantly expanding the reach of fundamental rights, but as Chief Justice Kapadia has pointed out, such expansion must always and necessarily connect to the core constitutional philosophy of Article 21. Any deviation from that principle is bound to result in verdicts that are not just non-enforceable but also legally suspect. In the present case, for instance, what about the right of the homeless to sleep on pavements or in public places? Justice Chauhan has said that such acts did not have the cover of the fundamental right to sleep. The question is: If indeed the ‘right to sleep’ is a fundamental right, why should the homeless — who deserve the right as much if not more than the better-off — be deprived of a sound sleep wherever they can afford to do so? Such tricky issues lay bare the difficulty of enforceability that both Chief Justice Kapadia and Mr Shourie have referred to.
Eight years ago, the Supreme Court ruled on the legal enforcement of the ‘right to food’ as a fundamental right under Article 21. In response to a petition by the People’s Union for Civil Liberties, the apex court in various interim orders on a host of public welfare schemes related to food such as the Mid-day Meals Scheme and the Antyodya Anna Yojana said that the ‘right to food’ and the ‘right to nutritious food’ are the fundamental rights of every citizen of the country. While there is nothing disputable about this contention, the fact of the matter is that the sweeping scope of this verdict, even if interim, has made it difficult for authorities to enforce this. This is despite the various panels that the apex court has set up to monitor the implementation of its elaborate orders.
The race to expand the meaning of Article 21 has its origin to a large extent in the Kharag Singh versus State of UP case. Mr Shourie quotes in his book from the ruling of the Supreme Court in that case to demonstrate how suddenly the meaning of life and personal liberty acquired larger and even larger proportions. To begin with, Article 21 says, “No person shall be deprived of his life and personal liberty except according to procedure established by law”. In the Kharag Singh case, Mr Shourie says, the judges held that personal liberty as in Article 21 is used as a “compendious term to include within itself all the varieties of rights which go to make up the personal liberties of man other than those within the several clauses of Article 19 (1).”
The author then goes on to say that soon after, ‘speedy trial of cases’ came to be added to the scope of Article 21. It did not end there; a succession of judgements — right to a protected (clean and eco-friendly) environment, right against solitary confinement, right against delayed execution, right against public hanging, and also the right to expeditious police investigation — emphatically enlarged and gave a brand new interpretation to the matter of fundamental rights as envisioned under Article 21.
But if we look back dispassionately and study the situation, very few of these rulings have been effective in practice. For example, speedy trials are still a chimera and delayed executions (especially of terrorists) are the norm.
Similarly, while dealing with the Unnikrishnan case of the early 1990s, the Supreme Court had opined, “Though right to education is not stated expressly as a Fundamental Right, it is implicit in and flows from the right to life guaranteed under Article 21…” This is yet another classic instance of a ruling that not only tested the flexibility of the scope of Article 21 but also came to be observed in breach more often than not. What else can explain the arrival, despite this verdict, of a special Act to serve the purpose — the Right of Children to Free and Compulsory Education Act, better known as the Right to Education Act — which came into force earlier this year? The Act in fact accords primary education a legal status which is on par with the right to life and personal liberty under Article 21.
Clearly, the Supreme Court has over the years come to conclude that it is not just the personal liberty and life that have cover under Article 21, but nearly everything else that is needed for these two to be effectively implemented. In other words, as Mr Shourie remarks in the book, the state has progressively come to be “under a constitutional mandate to provide facilities that are needed for citizens to be able to partake” the new expanded rights. Mr Shourie puts it succinctly when he comments, “From what was intended to protect persons against arbitrary arrest and restraint, against physical coercion by organs of the State, Article 21 has become the device… for requiring the state to provide in effect every thing that would make a person’s life a life of dignity and fulfillment… The point is about liability, about enforceability.” Precisely so.
Thus, we are back to square one. The ‘right to sleep’ is destined to turn out to be as uneforceable a ruling as the many others made by the Supreme Court in the preceding years to enlarge the scope of fundamental rights.

Crafting an alternative history

 

From the Ruins of Empire
By Pankaj Mishra


 RAJESH SINGH

Once in a while comes along a book with whose content you may thoroughly disagree but still relish reading, simply because it offers a compelling intellectual argument. This is one such book. Seventeen years ago, Pankaj Mishra took us on a roller-coaster ride with his delightful Butter Chicken in Ludhiana. If there could be a truly desi book written in English, it was this chronicle of travel in small town India. It had the feel and smell of the country and its people that only the legendary RK Narayan could bring out through his writings. At that point in time, few people would have realised that there lurked in Mishra’s mind an idea that covered a domain larger and more ambitious in scope than the mere idiosyncrasies of small town Indians. Perhaps it did not then, because Mishra went on to craft a novel titled The Romantics and then wrote some more travel pieces. But all of these writings, though vastly different from one another, had a common thread: The eagerness to explore the shifts and twists in the cultural history of people in the course of their socio-political journey. And, that desire has been given full expression in his latest offering.
The author’s determination to re-look at the history of the East by cleansing it of a Western perspective is admirable — though he does claim that his aim in the book is not to replace the “Euro-centric perspective with an equally problematic Asia-centric one”. To attain that he has deftly managed the travels and thoughts of two 19th century Eastern travellers-thinkers: The Persian Jamal-al-Din-al-Afghani and the Chinese Liang Qichao. Both these men of thought had been disillusioned by the imperial powers of that time which had been recklessly stripping countries they had colonised of their wealth. Worse, the imperialists had been rendering body blows to the cultural ethos of these unfortunate nations. The choice of these travellers is not accidental; Mishra has deliberately used them as sutradhars to pursue his belief that such thinkers, marginalised by the rulers and thereby projected as inconsequential, had in fact left a sustained impact on the people and even to some extent determined the course of events that unfolded in the decades to come.
Given the scale of the enterprise that the author has chosen to undertake and the scintillating manner in which he has achieved that, it would not be an exaggeration to say that From the Ruins of Empire is as important a book of our times as the recently published Why Nations Fail by Daron Acemoglu and James Robinson. If the latter takes us into the intricacies of how some countries have become rich while others have lagged behind, seeking pointers from ancient culture to history to governance for the phenomenon, Mishra’s work explores facets left unattended by historians and academics largely because it would be too much of a trouble to question those presumptions and develop cogent arguments against them.
In his many interviews in the wake of the book’s release, the author has emphasised that the time had come for all of us, especially in the East, to emerge from the stranglehold of the Western theory. In a conversation with Belen Fernandez, an author and columnist, Mishra stated that the West had seen Asia “through the narrow perspective of its own strategic and economic interests, leaving unexamined — and unimagined — the collective experiences and subjectivity of Asian peoples.”
Given his vehemence to revisit history in search of the ‘alternative truth’, it comes as a bit of surprise and significant disappointment that, when it comes to India, he should succumb to the very premise that he seeks to demolish. For instance, he deals with the 1857 mutiny in much the same manner that British historians and their Indian counterparts by and large have done. The author believes that the rebellion that almost succeeded had been an “eruption” of an “anti-West xenophobia, often accompanied by a desperate desire to resurrect a fading or lost socio-cultural order”. But surely the mutiny was more than just that; it was an expression of a larger desire among Indians to be masters of their homeland and their destiny. While it is true that the assorted rebels drawn from the west to north were not as well organised or equipped to take on the might of the British, it is also a fact that even with such handicaps they did manage to capture major towns and even Delhi where the Mughal ruler symbolically reigned and headed the revolt. If they could not hold on to those gains, it had to do with their failure to win support from a broader spectrum of the people and the intelligentsia of the time.
A more refreshing perspective, which Mishra would have done well to factor in his book, is offered in Operation Red Lotus. Written by Parag Tope, a descendent of the legendary Tatya Tope who played a stellar role in the mutiny, the book demolishes with new material many established beliefs about the uprising. It can be said that Parag Tope’s opinion is overly subjective, given his family connection. But then, it is no more subjective than those of al-Afghani and Qichao, who had their own reasons to be sore about imperial rule.
The other jarring point in the book is the short shrift that Mishra gives to ‘radical’ freedom-fighter Aurobindo Ghose, who later metamorphosed into a spiritual leader and came to be known as Sri Aurobindo. He does acknowledge Aurobindo’s eminence, but only just, picking some of his sundry quotes like, “Bengalis were drunk with the wine of European civilisation”. It is not a remark that must have made him popular in his home State, and perhaps explains why he has been gently set aside when the country’s history is discussed. Apparently, for the author — like for the British — Sri Aurobindo was a mere footnote in the pages of history, while the likes of Rabindranath Tagore were the central figures. It is true that Tagore influenced the country’s political philosophy immensely, but he had one ‘advantage’ which Sri Aurobindo lacked: A greater acceptability in the West following the Nobel Prize for literature that he won. Suddenly, he was an international figure and had a global platform to propagate his views. Still, it cannot be forgotten — and Mishra ought to have taken it into account — that Aurobindo’s contribution was not merely restricted to political awakening; he showed the path to ‘intellectual spiritualism’. That legacy still lives on in the Auroville Ashram in Puducherry.
Despite these warts, one has to heartily agree with Mishra’s concluding remarks in his book: “The hope that fuels the pursuit of endless economic growth — that billions of consumers in India and China will one day enjoy the lifestyles of Europeans and Americans — is as absurd and dangerous a fantasy as anything dreamt up by Al Qaeda.”

With face blackened, UPA tries whitewash

(First published in The Pioneer dated August 22, 2012)

RAJESH SINGH

The Congress-led UPA Government has developed a visceral dislike for the terminology, ‘presumptive or notion loss’ to the exchequer, after the massive 2G Spectrum scam broke out in the public domain. So, out of respect for the regime, let us for the moment keep aside the figure of Rs 1.86 lakh crore that the Comptroller and Auditor-General has computed as the notional loss to the public coffer because the Government distributed a number of coal blocks to private players without going in for competitive bidding. That may be an approximately true enough figure or it may not. Instead of thus getting into an argument over this number, let us look at the Government’s justification for not having opted for the auction route.
The first defence of the UPA regime — and that of the Congress in particular, since the Prime Minister is directly under attack as he held the coal portfolio during the period when the Government decided to distribute the blocks like one-time feudal lords gifted away property to their favourites — is that the auction route would have taken a tortuously long time to materialise because auction would have needed changes in the Mines and Minerals (Development and Regulation) Act. Since the Government was keen to enhance coal production at the earliest, it decided on the direct allocation, goes the argument. This is a flimsy explanation to cover up for the fact that the Government was pre-disposed to the non-auction route, and that is why it dragged its feet on bringing about the changes in the relevant provisions of the MMDR Act. A look at the sequence of events will expose the regime’s lie. But first, let’s see how the facts played out.
Within six weeks of coming to power in May 2004, the UPA Government headed by Prime Minister Manmohan Singh made public the concept of competitive bidding for captive coal blocks. The Government went to great lengths to publicise its intent as part of its ‘determination’ to revamp and professionalise the coal sector. Two weeks after the declaration of this noble intent, the Coal Secretary prepared a comprehensive note on the subject.
The impression that gained ground was that the competitive bidding process would be approved. But, suddenly and mysteriously, a note materialised from the Prime Minister’s Office that detailed the ‘disadvantages’ of allotting coal blocks through competitive bidding.
The brave Coal Secretary (unusual for a bureaucrat) rubbished the note and drew attention to some ‘pressures’ that were being applied on the steering committee formed to study the issue. But his courage came to naught. The Union Ministry of Coal had made up its mind against auctioning the blocks on the pretext that competitive bidding would need changes in the law, and that such changes would be a long-drawn process. By the end of 2004 and early 2005, it had become clear that coal blocks would be awarded directly by a panel constituted by the Government and that competitive bidding would be considered on a prospective basis at a later date.
Having arrived at such a conclusion, the Government showed no hurry in moving to amend the MMDR Act. Had the UPA sincerely worked from the start of its first innings in office to bring about change in the legislation, it had a good chance of success. It took an entire two years for the Government to move on the issue of amendments. It was only in March 2006 that the Prime Minister’s Office, after having virtually cleared the route for direct and less than transparent allocation of coal blocks to a bunch of private players, decided to put in place the process of competitive bidding. Had the regime been serious, in the two year period (2004-06), it could have pushed through the needed amendments. But it used up the time to promote allocation of the valuable natural resource without competitive bidding. It began bolting the stable after the horses had escaped.
Even so, it was another two years before the Government brought to Parliament the Mines and Minerals (Development and Regulation) (Amendment) Bill. It was only towards the latter half of 2010 that the Bill became law. In other words, it took two years from the time amendments were proposed to their becoming law. It is clear from these facts that the Congress-led regime was less than enthusiastic for whatever reason in selling off the coal blocks to the highest bidder.
The Government can now argue that the delay in getting the amendments passed by Parliament was because it was busy ironing out differences among various stakeholders. But that does not sound convincing. The fact is that even today industry is unhappy with the amendments. The Federation of Indian Chambers of Commerce and Industry has, for instance, said the new provisions would make mining of coal and minerals “unattractive”. This, it claimed, is because of the rule that coal mining firms have to contribute 26 per cent of their profits to a development fund. FICCI also said that the tax burden on the coal sector as a result of the changes in law could rise to 61 per cent.
The other defence put forth by the Government has been that the allocation of blocks without an auction had been taken in the larger national interest. We are yet to be told what that ‘larger national interest’ was that has been adequately served. But the CAG offers us a glimpse of how the ‘larger interest’ has not been served. Three brief quotes from its report will tell the story:
1. The process of bringing in transparency and objectivity in the allocation process of coal blocks got delayed at various stages and the same is yet to materialise even after a lapse of seven years.
2. Out of 28 producing blocks as on June 30, 2011, in case of 10 blocks, there was time overrun ranging from one to 10 years.
3. The Coal Controller’s Organisation did not conduct any physical inspection of allocated coal blocks to ascertain the actual progress as per the MMDR Act, 1957.
To top it all, even the avowed purpose of the Government in directly allotting coal blocks to private parties without competitive bidding, does not seem to have been achieved. There is no indication that the UPA’s action has boosted coal production in any way, since many of the blocks are reporting little output. In fact, the CAG notes that the “de-reservation of Coal India Limited blocks did not yield desired results.”
Neither the Comptroller and Auditor-General of India nor the people in general are opposed to  private players having a major role in the development of the coal sector. Indeed, without the wholesome participation of the private players, the coal industry has no future. As the CAG notes, “Captive coal mining is a mechanism envisaged to encourage private sector participation in coal mining.” But such participation must happen in an environment of transparency and without loss to the public exchequer.