Free Speech and Its Limits

Mr. Venkatesan's post (see below) yesterday on the ongoing challenge in the SC with respect to James Laine's book on Shivaji returns us to the broader issue of the extent of limitations on the freedom of speech in this country, a matter discussed several times before on this blog (click here, here and here for other posts upon the subject) .

One question raised in the previous post was whether the author James Laine would be willing to withdraw the allegedly objectionable portions of the book. That indeed appears to be the case - the SC judgment in the first Laine case (Manzoor Sayeed Khan v. State of Maharashtra) notes that the author already submitted an affidavit to the High Court in this regard. However, the State said that 'one passage (it does not say which one) hurt the sentiments of the people of all sections of society and that it would not be in the larger public interest to drop the charges'. Only when the State rejected this 'compromise formula' was the matter heard on merits.

In the current issue of EPW, Iqbal Ansari, writing on the Taslima Nasreen case, quotes some passages from her writings and argues that a good case is made out for prosecution under sec. 153A, 153B and 499 - 502 (defamation) of IPC. He basically cites two passages, one from page 48 of her book Dwikhandita:

"If somebody, being inspired by Islam, follows the commandments of Allah and wants to be a true Muslim, then he easily may take oath from the Quran wherein it has been advised not to make friendship with the Jews and the Christians, i e, non-Muslims. If somebody does not follow this, Allah will throw him into the fire of Hell. Not only this, (Quran says) wherever you get non-Muslims destroy them, kill them. Whenever you find a non-believer (who does not believe in Islam) cut his left arm and right leg with one strike and his right arm and left leg with another (Dwikhandita, p 48)."

and a second from page 50:

"...he [Prophet Mohammed] killed people without any hesitation, bathed in the blood of people of other communities, ruthlessly killed the people of other religions, ordered his soldiers to loot the wealth of the Jews and he raped their women, thus he could hoist his victory-flag...What could I say! This is the character of our Scoundrel Prophet. And there is the great fraud named Allah in his (meaning Holy Prophet) jobba (loose garments). The billions of fools all over the world are keeping this Islam still alive. This is nothing but tricks of politics (Dwikhandita, p 50)."

He says that the court "lifted the ban [on her book] on September 22, 2005 [(2005) 3 CALL T436 (HC)] on the ground that though it contained harsh language against the Prophet there was no deliberate and malicious intention of the author of Dwikhandita to outrage the religious feelings of any class of citizens of India (emphasis supplied). The book in the judges’ view did not invite forfeiture as insult to religion was not the central theme or moral of the book, read as a whole. Moreover the author was dealing with the specific religio-political situation in Bangladesh which was a theocracy and not India, which is a secular country. In their lordships’ view Taslima Nasreen was administering a shock therapy not to Muslim citizens of a secular democratic India, but to the citizens of a theocratic Bangladesh which had adopted Islam as a state religion, under whose influence women were being oppressed, whose emancipation is a major concern of Taslima Nasreen’s writings."

He criticizes this judgment as "purely ideological - political rather than rights oriented which makes the judges show overindulgence to Taslima's language and text as being shock therapy for people in stupor in Bangladesh". Ansari takes objection to both form and content - her use of words such as 'ruthless murderer', 'rapist' and 'scoundrel' in case of the former and what he considers a perversion of Islamic tenets in the latter case. Though the acceptability or otherwise of those specific words is debatable, he clearly has a point here.

In the first Laine case(Manzoor Sayeed Khan v. Maharashtra), the Court said that for the purpose of sec. 153A, 'the matter complained of within the ambit of section 153A must be read as a whole. One cannot rely on strongly worded and isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning'.

I have several questions in all of this and hope other readers will pitch in.

1. In the present case, what is the point of asking for deletion of passages if a book is to be considered as a whole (this question is apart from one about the wisdom of the court proposing such 'compromise formulas' in the first place)?

2. If the book as a whole has a theme that may not obectionable at all, is it acceptable to insert passages in between that are outrageous in form or content? If a particular individual in a story were to be virulently inimical to a respected king, prophet or religion, would it be acceptable notwithstanding the fact that the other characters do not share his animosity and the overall theme may be quite benign?

3. How does one decide whether a book is deliberately and maliciously intended to insult somebody or a belief/doctrine? Is there a distinction between discrediting a belief/person and insulting someone?

In a previous post, Mr.Venkatesan quoted Sorabjee as saying thus: "One may legitimately criticize the tenets of a particular religion and characterize them as illogical or irrational or historically inaccurate. But it is not permissible to condemn the founder of a religion or the prophets it venerates as immoral persons or frauds and charlatans. Courts would in such cases probably infer a “deliberate and malicious intention” to insult the religion, particularly if the language is abusive or vituperative."

If abusive or vituperative language alone were the criterion, it would be fairly easy to make a distinction because only form of speech is involved (and words, contrary to context, being relatively immutable per se, future writers will know exactly what not to use or use at their own peril). But if one were to go by content, how can one discredit a belief without that judgment reflecting on the one who propounded it or around whom it is centered? The veneration of religious and historical figures is often founded on faith - to the extent that it conflicts with the present-day understanding of the real world, its claims may be demonstrated to be flawed. And there can be a very thin line between a discredited peddler of faith/myths and a fraud/charlatan. As a hypothetical, would the writings and speeches of people like Robert Spencer, David Horowitz, Ayaan Hirsi Ali and others who basically potray Islamic doctrine as a dangerous and aberrant theology (if you have not read their writings, just google their names and you should come up with a bunch of articles) therefore be permissible?

4. Is factual truth a defense?

For example, Robert Spencer's inferences are based on quotations from the Quran which are all usually referenced (and I take it that they are correct in that respect). To cite another example, it is widely stated that one of the Prophet Mohammed's wives was only six years old when married and nine when consummated. On that basis a prominent religious leader called him a 'demon-possessed pedophile', something one might call an adult in today's world having sex with a child. Could an expression of moral revulsion that is currently acceptable and routinely made to ordinary individuals be permissible about a deity/prophet? Or should deities/prophets be outside the purview of any adverse moral judgment regardless of facts under an accepted standard?

Justice H.R. Khanna, RIP

I learnt today that Justice H.R. Khanna passed away earlier this week. Justice Khanna was one of the greatest judges in our Supreme Court's history, and I mourn his passing. He played an important role in the Kesavananda Bharati case and his individual opinion in that decision helped establish the basic structure doctrine as the majority view. Although he was somewhat skeptical in Kesavananda about implied restraints on parliament's amending power, Justice Khanna was unequivocal in his support for basic structure in the Election Case, where he played an influential role in fashioning the outcome.

Justice Khanna will be best remember for his eloquent dissent in ADM Jabalpur -- a dissent that is as historic as Lord Atkin's opinion in Liversidge v. Anderson. He paid a heavy price for that opinion as he was superceded when it was time for him to become Chief Justice of India. Yet, he left the bench preserving his professional dignity and upholding the highest judicial traditions. As the New York Times of 30 April 1976 noted:

If India ever finds its way back to freedom and democracy, that proud hallmark of its first 18 years, someone will surely erect a monument to Justice H.R. Khanna of the Supreme Court.

Justice Khanna wrote many books. I recommend two: Neither Roses nor Thorns and Making of India's Constitution. The former was his autobiography and gives us a poignant account of the supercession. The latter is a good summary of the framing of our constitution. Justice Khanna, thank you for your service to our country!

Will James Laine emulate Dr.P.V.Narayana?

The Maharashtra Government’s SLP against the Bombay High Court’s order lifting the ban on James Laine’s book ‘Shivaji: Hindu King of Islamic India’ came up for hearing before Justices Arijit Pasayat and P. Sathasivam on February 26. (State of Maharashtra &Ors. v. Sangharaj Damodar Rupawate & Ors. – SLP© 8931/2007).(See my earlier post which also carries links to the relevant judgments here)

At the hearing, Mr.Prashant Bhushan, counsel for the respondent (No.1) pointed out that in the name of protecting the image of Shivaji, large scale violence was unleashed resulting in the destruction of properties, valuable books and damage to persons and properties physically. He also pointed out that in view of the Supreme Court’s three Judge Bench’s decision in Manzar Sayeed Khan Vs. State of Mahrashtra on April 5, 2007, wherein the Court ordered the quashing of FIR against the printer and publisher of the book, there is no basis for the current SLP. It may be recalled that the Bombay High Court had lifted the ban on the book , precisely because it felt it was bound by the SC’s order in Manzar Sayeed Khan.

However, as happened in the case of the Kannada novel Dharmakaarana, the Supreme Court Bench proposed to the respondents that paras 2, 5, 7 and 8 of the Schedule (comprising the objectionable paragraphs in the Book) might be omitted to “serve the interest of justice”. In Dharmakaarana case,(read my previous post which includes the relevant links here) the author, Dr.P.V.Narayana refused to delete the passages in his book, considered to be objectionable, and won the esteem of the liberal India.

In this case, the author James Laine did not appear before the Supreme Court, despite notice being served on him. Therefore, the Supreme Court directed the Registry to issue a fresh notice to him along with the latest order, to respond to the Bench’s proposal within four weeks, as to whether he is agreeable to the suggestion for deletion of the four paragraphs, objected to by the chauvinists.

The Bench added that the suggestion for deletion would not in any way affect the merits of the issues involved which, they promised, would be examined in detail after James Laine (Respondent No.4) responds to the notice, and if necessity so arises. If so, what is the necessity to propose the deletion to the author, which could be interpreted as a surrender to the chauvinist elements which sought a ban on the book?

The Great March For Justice: Bhopal Gas survivors in the footsteps of Mahatma Gandhi

After repeatedly losing their legal battle for justice and fair compensation, the survivors of 1984 Bhopal Gas disaster have rediscovered the power of padayatra, successfully used by Mahatma Gandhi during the freedom movement.

Yesterday, at the HRLN Consultation, Medha Patkar was lamenting that there is no Gandhi today to unite the various people's resistance movements against injustice and exploitation - which provoked Colin to question Gandhi's relevance today. The 800 km March from Bhopal to New Delhi which began on February 20 is a testimony to the abiding faith which a resistance movement has in the techniques adopted by the Mahatma. The marchers' objectives are outlined here. The month-long itinerary of the marchers is carried here.

Dismantling of Environmental Law Protection: A Report on Consultation

The Consultation organized by the Human Rights Law Network for two days at the Nehru Memorial Museum, New Delhi on February 23 and 24 was a rich learning experience about the current judicial trends in environmental law in India. Speakers included former Judges of the Supreme Court, Justice Kuldip Singh, Justice J.S.Verma, Senior advocates Venkatramani, Sanjay Parikh, Colin Gonsalves, Claude Alwares, Medha Patkar, Praful Bidwai and a whole lot of activists, experts, and researchers from across the country. This post aims to give just an overall account of the Consultation, (not exhaustive) for the benefit of our readers.

Before I give an indication of the subjects discussed session-wise, it may be of interest to underline the overall thrust of the Consultation, as articulated by Colin towards the end of the programme. This is the third in the series which HRLN has organized – the first on the Criminal Law which documented the dismantling of criminal law protection with the beginning of fast-track courts, chasing the goal of conviction rate of 60-70 per cent of the cases heard by them. The second was on the dismantling of the labour law protection, beginning with the landmark SAIL case in 2001 as a turning point. Colin pointed out that there were as many as 11 decisions from the Supreme Court against labour in recent times. The latest Consultation only confirmed that the dismantling of the environmental law by the Supreme Court has been in full flow.

In the first session, "Critical Review of Recent Decisions of the Supreme Court," Sanjay Parikh pointed out that though the Supreme Court accepted the Polluter-pays-principle and the absolute liability of a polluter in the given circumstances, but in none of the cases (with few exceptions) either the polluter could be compelled to make the payment and/or to restore the ecology in its original position. The Supreme Court, he said, has failed to implement its own directions in protecting the environment in many cases; still no legal principle of liability has been developed to ensure implementation of polluter-pays-principle for recovering dmages causes to the environment, to the people and for restoration of the ecology. The result is that those who cause damage to the environment are emboldened to continue with violations. They are also now using the argument of sustainable development in their support, which is unfortunately finding acceptance in the Courts.

In several cases, he said, the Supreme Court referred to “carrying capacity” of the environment and that any exploitation of the natural resources should not exceed their carrying capacity or assimilative capacity. It is forgotten that the “carrying capacity principle” evolved in the Stockholm Declaration, 1972 was given up when it was realized that man has immense potential to irreversibly damage the environment and under the wrong notion that the nature has immense capacity to revive itself.

This notion was, therefore, rightly substituted by the Precautionary Principle to put a check on the destroying activities of the human being, namely, warning them that it is safe to err on the side of caution. It is only in one judgement, that is, M.V.Nayudu that this aspect was explained by the Supreme Court. However, in subsequent judgements till 2007, the Supreme court is still talking about the carrying capacity and in that context applying the theory ofr irreversible damage. More shocking, even where experts have found that a particular eco-system has been exploited/neglected in such a manner that it has lost its carrying capacity, still it is subjected to environmental appraisal for further exploitation under the cover of sustainable development.

The idea of the “need” in the context of sustainable development has not been fully and correctly understood, he said. The Supreme Court in the Bombay Dying and Manufacturing Co.Ltd (2006 (3) SCC 434), gave precedence to the dire need of the society over the inter-generational interests, by using the argument of balancing environment and development. The need aspect cannot be taken as insatiable desire of an individual, a society or a nation, which is another form of greed, and are thus allowed to exhaust natural resources without applying the rule of caution.

Parikh concluded that true development can never harm environment, if it is realized that without nature and its resources life has no meaning. We need a simple principle, a simple law for complete protection of natural resources; integrated efforts for their revival and rejuvenation and their use conductive to the nature of these resources, and not the application of sustainable development principle as these resources can no longer bear the onslaught of exploitation; they are in trust with us for the future. If we still ignore, be ready to lose them for ever. The choice is quite clear, he said.

There were sessions on Mining, Forest, Water, Tourism, International Financial Institution and Judicial Decisions, ship-breaking and hazardous waste cases, environment crimes and compensation including the Bhopal Gas case, Resistance and Alternatives, and Urbanisation.

The session on Resistance and Alternatives, chaired by Medha Patkar, proved to be a contentious one when Colin referred to the stagnation in our thinking politically. We are a huge, angry, unsettled population, he said, and asked whether we are thinking of an adequate political response to violence against the people. While he suggested that armed resistance as a collective self-defence option for the people of India needs to be explored, others notably, Sanjay Parikh and Medha Patkar unequivocally declared their disagreement with him, even while sharing his anguish and anger. Medha thus suggested our concern should be to change the polity from outside rather than be a part of politics.

Environmenal Consultation and Expanding the Supreme Court

Two unrelated posts:

First, there will a be a consultation this weekend critiquing the current judicial trends on environmental law at the Nehru Museum, Teen Murti House, Teen Murti Marg, Chanakyapuri, New Delhi. It will be 9:00 am to 6:00 pm on Saturday and Sunday. Speakers include Justice Kuldip Singh, M.C. Mehta, and several other leaders in the country's environmental jurisprudence (from both the bench and the bar). This is part of an ongoing critique of judicial trends in India being put on by HRLN with other partners. Last weekend there was a consultation on trends in labor law that was quite informative and spirited.

Second, the Indian Express reports today that the Cabinet has approved a proposed expansion of the Supreme Court from its current strength of 26 justices to 31 (I can't seem to find today's article, so this is yesterday's discussing the proposal to Cabinet). One can certainly understand the desire to increase the number of justices due to the high backlog before the Supreme Court. In doing so though, I think Parliament should consider a couple of problems that may arise or have already risen from having such a large bench. First, there are already frequent complaints about the quality of justices currently on the court. If the court is to be expanded how can the government ensure there are enough talented people available to fill the positions? I have heard from some that it is getting increasingly difficult to attract top legal talent to the High Courts (and in turn the Supreme Court). This doesn't just have to do with the availability of firm jobs. Justices are forced to retire at 65 and High Court judges even earlier - often in the prime of their legal career. They are then effectively barred from practicing in the courts, while being given very poor retirement packages. These are well-known problems and Parliament should consider addressing them at the same time they authorize any expansion of the Court.

Second, one needs to question if expanding the size of the Court will really address the source of this backlog. This law commission report from 1988 - written around the last time the court was expanded - I think is worth reading right now, to reflect on this strategy. It details how the Court has been expanded in the past in a largely unsuccessful attempt to deal with backlog. It also discusses other alternatives that have been suggested (and largely forgotten) to deal with this high caseload such as creating constitutional and legal divisions to the Court (an idea I personally don't think is a good one, but could lead to a good one). I think the report though rightly highlights the problem of cumbersome procedures in the court that create delay, and how tackling these may increase the efficiency of the court more than the addition of more justices.

An activist's grievance against Supreme Court - Is computer the villain?

Today, Manoj Mitta has referred in the Times of India to the activist, Teesta Setalvad's article in the Malayalam magazine, Mathrubhoomi, which led to the Chief Justice's outburst in the Court against her on February 19. Manoj found it difficult to appreciate the Chief Justice's unhappiness over her article, especially because she had only articulated her grievance as a consumer of justice. Manoj did not examine the adequacy of the CJI's explanation that the Bench could not be blamed for such delays, because the CJI claimed the cases are listed by the computer. I welcome the bloggers' views on whether computerisation could be cited as an excuse for judicial delays affecting the rights of the victims. The link to Setalvad's original article in English (which was translated into Malayalam by Mathrubhoomi) is here.

Reforming the Judiciary, Reforming the Legal Profession

For those of you interested in judicial reforms the Campaign for Judicial Accountability and Judicial Reforms is holding the Second National Convention on the Judiciary and the Poor at ILI in Delhi on Saturday, Feb. 23rd.

Also, in today's Hindu N.R. Madhava Menon has a piece where he argues that when we discuss judicial reforms we should spend more time considering the reforms of the bar and legal profession that are also necessary. He makes ten proposals about changes he views are needed. The first two are:

(a) Legal education should be liberated from the dominant control of the Bar Councils and entrusted to legal academics with freedom to innovate, experiment and compete globally. The National Knowledge Commission has made some recommendations in this regard which deserve attention of the Bar, the judiciary and the government.
(b) There should be compulsory apprenticeship, Bar examination and screening on acceptable parameters before a law graduate, Indian or foreign, can be licensed to practise in Indian courts. Those who want to practise as non-litigating lawyers should have a different roll for enrolment and a separate entry examination, perhaps under a special professional body within the Bar Council.

I know less about his other eight proposals, but in my experience these first two strike me as quite accurate and important. He suggests that the legal profession is unlikely to reform itself. I am curious where he thinks the source of this reform will come from though. Is there need for Parliamentary intervention? Judicial? Or is it just about creating enough media exposure that then the bar will begin to reform?

Also, if someone who knows more can lay out in greater detail how the power structure of the bar in India works I would appreciate it and I know some other readers are also curious. What power does it exactly have? How does it maintain this power? How are decisions made? It seems like this could be a topic for a good ethnography, especially in comparison to the bar in other South Asian countries like Pakistan. I think some of my American lawyer friends were surprised and proud of how vigorously the bar opposed Musharaff in Pakistan. I think that the Indian bar also has some of the same features that would allow it to potentially play a similar role as in Pakistan (although my understanding is that they largely did not respond vigorously to the Emergency). I wonder if the Pakistani bar's ability to respond though was tied to certain institutional and cultural features that also handicap the legal system in other ways.

Pakistan 2008, India 1977

The similarities are too glaring to be missed. In 1977, Indira Gandhi lifted the Emergency, and announced general elections to the surprise of the entire world. What made her announce elections then, when none expected her to do so? It was suggested that she was hurt by the Western criticism of absence of democracy in India, and her own growing unpopularity among the comity of nations. Hence, in order to regain her lost prestige, she announced elections, even though her party was decimated in the entire North India. Would she have done so, if she had an inkling about the rout of the Congress at the hustings in 1977?

Although President Musharaff could have delayed the elections in Pakistan further, he stuck to the schedule more or less in the aftermath of the Benazir assassination. Like Indira Gandhi, he appears to have opted for elections - free and fair - primarily because of the pressure from the West. Look at the extraordinary steps he took to invite the international media and poll observers to cover the run-up to the elections, and ensure that the dance of democracy in Pakistan secured international publicity, irrespective of the low voting percentage and threat from extremists.

Again, in 1977 Indira Gandhi was a victim of the politics of vendetta from the constituents of the newly-formed Janata Party. The Nawaz Sharif-Zardari post-poll alliance - despite the uncertainties ahead - appears determined to reverse some of the key decisions which Mushraff had undertaken during the last few years in his office, though it is by no means clear yet whether Mushraff would also become a victim of vendetta politics, as he has not resigned from office.

The Janata Party had sought to undo the draconian 42nd amendment to the Constitution carried out by Indira Gandhi during the Emergency and restore the independence of Judiciary. The victors in Pakistan elections, at least those owing allegiance to the party led by Nawaz Sharif, want to reinstate the ousted Supreme Court Judges, and restore the 1973 Constitution.

The victorious celebration in Pakistan hailing the return of democracy is reminiscent of similar euphoria across India in 1977.

One only hopes that today's victors in Pakistan don't squander the mandate as early as the Janata Party did in 1980.

Identity and Exclusion: EPW on the Mumbai madness

The editorial in the latest EPW says there are three serious issues thrown by Raj Thackeray's movement against North Indian outsiders. One is the presence of a large army of unemployed youth in Mumbai. This, according to EPW, is a result of reckless pursuit of capitalism causing bad amenities, and unsympathetic bureaucracy. People migrate to Mumbai, because the city has mirages of opportunities. As Dipankar Gupta explains in his Nativism in a Metropolis (1982), the senior Thackeray succeeded in 1960s, because of the prevailing unemployment. So, essentially, the EPW's edit is a confirmation of Gupta's thesis, and its relevance. This is also supported by Sainath's article in The Hindu. But one fails to understand why the EPW poses this as if it is a new development caused by the mindless pursuit of capitalism. (what is this mindless pursuit anyway, and how was the earlier unemployment in 1960s caused?).

EPW's second thesis is difficult to appreciate. It says there is growing diversity in the cities, and therefore, the notion of natives has no relevance in cities. But it admits there is tension between regional identity and cosmopolitanism. This caught the imagination of ordinary Mumbaikar in 1960s, and today the older identity lost to faceless cosmopolitanism. This sense of loss has led to the us vs outsiders syndrome. So, essentially, there has been no difference between the 1960s and now. If the notion of nativism has lost its relevance, then how does it produce tension, when confronted with faceless cosmopolitanism?

EPW's third thesis says the cultural symbols and identity marks - produced by these fault lines of nativism - have become reference points for social tensions and "we & You" kind of cultural superiority. Today, Raj has been able to frame an agenda of exclusion - privilege certain identities and derecognise some - because there is growing murmur within Marathi society about the genuineness of his grievances. Correct. If the roots of nativism are ignored, it is bound to lead to such unhappy consequences. That is why the constitution makers, in their wisdom, anticipated the influence of nativism, and provided for Article 16(3). Had Parliament enacted a uniform law to manage such nativist demands in time, the Thackerays could have been nipped in the bud. EPW does not say how nativist demands can be managed, even though it blames reckless capitalism. The answer perhaps lies in taking a close look at our Constitution, and the remedies inherent in it.

I shall cite two more observations to buttress the point that nativism need not be seen as contradictory to national unity. The former Chief Justice M.Hidayatullah said: sometimes, local sentiments may have to be respected or sometimes an inroad from more advanced States into less developed States may have to be prevented. (Though he said it in 1970 -Annual Survey of Indian Law, Indian Law Institute, 1970, p.11), it is actually the reverse which is happening now, if the migration from Bihar to Mumbai is an indication).

The eminent sociologist, M.N.Srinivas has also discarded the argument that the sons of the soil movements are anti-national, called for positive steps to neutralise, nativist movements. He said that for certain categories of jobs, especially the semi-skilled and unskilled, local people should be given preferences as a matter of an all-India policy, and insisted that posts requiring specialist qualifications be filled only on merit and on an all-India basis. (On Living in a Revolution and Other Essays, 1982) ( as cited in T.M.Joseph's Politics of recruitment: Migration and ethnic conflict in Urban India (Bangalore), 1990)

Bangalore, where the natives' out-migration is not as low as compared to Maharashtra, also has had an aggressive nativist movement in the past. In Mumbai, the proportion of marathi population has declined over the years. It was 40 per cent in 1960, now it is just 30 per cent. In Bangalore, 65 per cent are non-Kannadigas. The sense of insecurity among the natives who claim the cities as their Capitals of their States appears to be natural.

More comments on migrants v. natives: A response

There have been more comments in today’s newspapers on the issue of migrants v. natives which require a reasoned response. N.K.Singh says in Indian Express: “the concerns raised by MNS are no different from the apprehensions raised by countries where migrants land — that migrants might usurp local jobs, upset the cultural cohesiveness of society, cause strain on civic amenities and infrastructure. However, successive studies have proved these fears to be grossly exaggerated. Migrants all over the world, and indeed in India, add value and create wealth for sustenance of a competitive economic order. This is equally applicable to more prosperous states like Punjab, Haryana, and Kerala.” One wishes Singh cites the studies which he referred to. He concludes: “Short-term sub-national xenophobia has no place in our ethos, constitution, and developmental compulsions. Managing sensible economics while allaying misplaced apprehensions is the way forward.” Well, there could have been elaboration of what he meant by allaying misplaced apprehensions, and managing sensible economics.

Soli Sorabjee, in his column, obviously makes a general comment on excluding outsiders in every State, and believes that the MNS stands for such a doctrine. But he concedes: "It is argued that the success of Mumbai and Maharashtra has been achieved by the sweat of the toiling Maharashtrian masses. That is partly true. However, that is an iniquitous feature of the working of our economic system, which is detrimental to workers throughout India and is not confined to Maharashtra alone. The claim that Maharashtrian workers should have a better share of the cake, by way of labour welfare schemes, removal of slums, preference for Maharashtrians in employment, merits consideration." Obviously, he is sympathetic to the MNS cause, minus its aggressive face.


Sudheendra Kulkarni, former OSD to the former Prime Minister, Atal Bihari Vajpayee, in his column in Indian Express,(link cannot be provided) says Raj Thackeray fell prey to the temptation of gaining quick political mileage by targeting north Indians as a whole in a crude attempt, perhaps, to score over the Shiv Sena. He says even the protest against north Indians for disrespecting Marathi sentiments is justified. It is clear from his column, that he too disapproves only the aggressive face of his movement.

If you read the report on Raj’s interview to a Marathi daily carefully, it is clear that he is against only the challenge of political mobilization by North Indian leaders in Mumbai. He is against observance of UP-divas in Mumbai (with manifestations of political goondaism, as he calls it.) only because it poses a political challenge to his constituency. This aspect of Raj’s rhetoric should not be confused with the MNS’ other nativist demands, which may be within the Constitutional limits.

Vir Sangvi’s column is critical of the media’s role in the Mumbai tamasha, which I would readily concede. But I would suggest had the media not been there to cover the initial incidents violence, and show them repeatedly (even if it is unethical), Raj would have been desperate, and would have thought MNS might have to indulge in widespread violence to attract national attention to its cause. That would have aggravated Mumbai’s pain further.

Is nativism unconstitutional?

The spate of comments in the media describing the protests of Maharashtra Navnirman Sena against North Indians in Mumbai as unconstitutional made me wonder whether the authors of these comments are really well-informed. The critics of MNS who subscribe to the perception that its platform is unconstitutional include the Leader of the Opposition, L.K.Advani, and almost all editorial writers of major newspapers. The critics point out that MNS’ demands are inconsistent with Articles 19 (1) (d) and (e), the former dealing with the citizens’ right to move freely throughout the territory of India and the latter with the right to reside and settle in any part of the territory of India.

What are MNS’ demands? It seeks, among other things, 80 per cent reservations for Maharashtrians in the BPO industry. Is this unconstitutional? While deploring the use of force by the MNS activists against the migrants, (the violence against migrants is certainly unpardonable, and the MNS activists/leaders should face punitive action under the laws) we should not forget that Article 19 (1) (d) and (e) are not absolute rights, and are qualified by Article 19(5). Article 19(5) has to be read with Article 16(3), which is an exception to Article 16(2).

Article 16(3), which provides for an exception to the ban on discrimination based on residence, gives Parliament alone the right to enact such an exception and only with respect to positions within the employ of a State (as distinct from the Central) government. The only action which Parliament has taken under Article 16(3) was to legislate the Public Employment (Requirement as to Residence) Act of 1957 as well as several other subsequent measures that were related specifically to the state of Andhra Pradesh. The Act aimed to abolish all existing residence requirements in the states and to enact exceptions only in the case of special instances of Andhra Pradesh, Manipur, Tripura and Himachal Pradesh. For these four States, the 1957 Act gve the central Government the power to issue directives setting residence requirements in the subordinate services.

Despite the Constitutional stipulation that only Parliament can set residential requirements, States had managed to circumvent this by issuing resolutions and directives (as against enactments) setting their own preferential policies for state residents. (with the sole exception of perhaps Meghalaya which sought to protect its residents through legislative action as well, apart from executive fiat. The legislature in 1974 passed a residence permit bill which required that those who seek to stay in Meghalaya longer than 4 months secure a special permit, and that only those who had lived continuously in Meghalaya for 12 years or more and who had made the State their fixed and permanent home would be considered true locals – it can, however, be argued that the state law did not violate Article 16(3), as it did not seek to lay down any residence requirement for employment within the State). States did so, primarily to satisfy the aspirations of local groups like the MNS, which sought to articulate such concerns in different degrees. There is a view that even if the States legislate on this - in the absence of a Central law - it cannot be violative of A.16(3.

Thus Maharashtra, West Bengal and Tamil Nadu managed to achieve the objects of Article 16(3) through circulars, and directives, rather than through legislative action, as Parliament alone has the power to enact a law under the Constitution. The object of permitting Parliament alone to legislate residential requirements was to achieve uniformity on the highly disparate policies of the various States, even though such uniformity remained elusive because Parliament did not take this article seriously, as it should have, apart from enacting just one law in 1957 to address the concerns in a few States.

It is curious to know that even Ambedkar has paid lip service to nativism during the Constituent Assembly Debates. Although he conceded that residential qualifications detracted from the value of a common citizenship, he urged the assembly to recognize that : “At the same time…you cannot allow people who are flying from one province to another, from one State to another as mere birds of passage without any roots…just to come, apply for posts and so to say take the plums and walk away.”

As Prime Minister, Indira Gandhi too acknowledged that nativism had its rationale. She said: “It is true that if a large number of people came from outside to seek employment … that is bound to create tension in that area. Therefore, while I do not like the idea of having any such rule, one has to have some balance and see that the local people are not deprived of employment.” She was of the view that a balance must be sought – a balance that would protect the mobility of citizens and guard against the political disruption which such mobility engenders.

If nativism per se is not unconstitutional, the peculiar articulation of demands by MNS, cannot also be called unconstitutional simply because it is accompanied by an undesirable degree of aggression.

(Myron Weiner and M.F.Katzenstein’s book, India’s Preferential Policies: Migrants, Middle Classes and Ethnic Equality, published in 1981 offers an excellent account of this issue in Bombay, Andhra Pradesh and Assam, and India’s preferential policies in general in comparative perspective)

Roots of aggressive nativism in Mumbai: Myron Weiner revisited

This post is not about the merits or otherwise of MNS/Raj’s violent protest against migrants to Mumbai from U.P. and Bihar. Instead, it looks at the conclusions drawn from the similar nativist protests of Shiv Sena in the 1960s. I find that some of these conclusions are still relevant, and can help us to understand better why parties like Shiv Sena and MNS still find the nativist platform useful.

In my last post, I drew the readers’ attention to a letter critical of nativist protests against migrants, and how Myron Weiner had dedicated his book to this letter writer. But as Weiner admits in his preface, his deepest personal sympathies might be in favour of migrants, but his book took a balanced look at some of the costs and benefits of migrations to the local inhabitants of places to which the migrants moved. It is this balanced discourse which seems to be missing in the media in the wake of the recent Mumbai madness. Here, I am testing some of Weiner’s conclusions, in the light of today’s Mumbai. Weiner’s book studied not just Mumbai, but Assam, Chota Nagpur, Bihar, and Hyderabad as well.

Weiner saw nativism in India as a political response to conflicting forms of mobility: the spatial mobility of migrants and the aspiring social mobility of a social class within the native population. Weiner articulated the positive aspects of nativism thus: “Indeed, when one considers the alternatives (a secessionist or even a revolutionary, class-oriented response), nativism may well be among the least destructive choices, both for the political system and for individuals within it – for in one sense nativism contains within it the seeds of its own destruction, as the principle of reciprocity serves to diffuse nativism.”

One of the conditions for nativism to thrive is that the local population should be immobile relative to other groups in the population. Out-migration from Assam, Maharashtra, Andhra Pradesh, Weiner found, was below the national average. Assamese were/are among the least-mobile linguistic groups in India. Mysore was at the mean, while Bihar was above average. (one needs to compare the 1971 Census figures which Weiner cites in his book with the latest, even though there may not be significant variations)

States with regions with a high in-migration and a high rate of out-migration tend not to have nativist movements. Neither Punjab, nor West Bengal has nativist movements, though they had the largest migrant populations of any states in India (14.2 and 15.7 per cent respectively in 1971). Bengalis and Punjabis were/and probably are among the most mobile people in India. A competitive employment situation locally may be tolerable if there are employment opportunities outside the region.

Areas with nativist movements experienced a rapid growth of educational opportunities for lower middle classes. This perhaps explains why many feel Marathis have made rapid progress in education, during the past two decades, and have improved their employment prospects.

To blunt the appeal of nativism, Weiner suggested adoption of alternatives to protectionist policies for governments committed to increasing the employment opportunities to the local population. Such an alternative, Weiner suggested, would be directed at enhancing the capacity of the local population to compete against outsiders.

Weiner believed that one could hardly fault a government for trying to find policies that would prevent a state from being divided by regional claims, or for pacifying local people anxious over the successes of migrants, or for coopting the platforms of parties winning elections on nativist platforms. However, policies that successfully diffuse social tensions and antigovernment activities also incur costs. The political costs of protectionist policies may be small, but the real losses are the costs in opportunity, those unseen would-have-beens that might have taken place if governments and citizens had been creative and imaginative enough to forgo short-term benefits for long-term gains.

One of the major questions for the Indian government, Weiner suggested, is whether it uses its authority to build an internal common market, with spatial mobility as one of its features, or lends its support to those groups that want government to puruse internal protectionist policies. He concluded: “India seems likely to develop with either set of policies; the question is, what kind of India will it be?”

A hilarious letter which Mr.Raj Thackeray and his followers must read

The following letter written by S.Pushparaman, Tiruchirapalli appeared in the Times of India, January 28, 1973.

There is much talk these days about the “Sons of the Soil”. The advocates and opponents of this theory do not seem to agree among themselves. Perhaps, the following classification might solve the problem of those involved in the controversy.

First, we must not accept the present division of states and districts as they are political and man-made. When we swear by the soil, we must adhere to the natural, geological division. Our earth has been clearly divided into different kinds of soil regions: alluvial, volcanic, etc. It is but natural that sons should work only in their respective mother soils. For example, only those born in the alluvial soil can work in the alluvial region. They may call themselves “alluvians” and proclaim “Alluvial soil for alluvians only”. People of other soil regions may form similar groups. People may be given identity cards with the name of soil clearly printed on it.

To solve the problem of babies born in the air (planes), they should be employed as pilots and air hostesses. Nobody except the sons and daughters of the air should get these air jobs. They should be allowed to stay on earth in a non-classified soil region when they are off-duty.
(reproduced from Myron Weiner’s Sons of the Soil: Migration and ethnic conflict, 1978)
TOMORROW: ROOTS OF AGGRESSIVE NATIVISM IN MUMBAI: MYRON WEINER REVISITED

ONGC and Sudan

Today Steven Spielberg announced he would withdraw as an artistic advisor to the Beijing Olympics and boycott the games due to China’s strong military and economic support of the government of Sudan despite the ongoing atrocities in Darfur. Spielberg’s announcement is of some embarrassment to Beijing which is trying to choreograph a flawless showcasing of its economic and political advancement.

Although most of the western world’s attention I think has rightly been on pressuring China to pressure Sudan over its human rights record in Darfur, it’s interesting to note India’s important involvement in supporting the government of Sudan as well. This is something that hasn’t been covered very much in the Indian media (like a good deal of India’s overseas activity), but I’d be curious to get people’s feedback.

I first came to know about India’s, and specifically ONGC’s, involvement in Sudan through the grassroots divestment campaign in the United States. Universities like Columbia, Yale, and Berkeley have all divested their endowments from ONGC (India’s national oil company) because they feel that ONGC’s investments and operations in Sudan are so morally reprehensible in their implicit support for Khartoum that they no longer want to have any financial connection with the company. Many U.S. states including California, New York, and Texas have followed suit divesting their pension funds from ONGC. The Sudan Divestment Taskforce’s website provides a good overview on who has divested and some of their motivations. Despite these university and state funds being quite large, the divestment campaign has had negligible financial impact on ONGC because it is over 90% owned by the Indian government and only a smaller remaining share is listed on the BSE. Plus, ONGC makes a lot of money in Sudan.

India (through ONGC) is probably either the second or third largest foreign investor in Sudan’s oil sector. ONGC has invested over a billion dollars with stakes in several oil fields. (see ONGC's website here and here) This is important to the Sudanese government’s survival because oil revenue constitutes over half their budget, and more importantly insulates them from having to respond to the needs and grievances of their people more directly (i.e. some variation on the resource curse problem). The Indian government has also actively promoted other Indian multi-nationals to invest in Sudan (especially since other foreign competition is fairly weak in the country due to sanctions from the United States and Europe). To their credit some Indian companies have refused to invest in Sudan. ICSA India Limited, which develops software used in the power sectors, publicly left Sudan recently citing as a reason for leaving the “undesirable policies of [the] Sudanese Government.” The company stated their intent to not pursue future projects in Sudan. I’d be curious if other Indian companies have taken similar stands either in Sudan or elsewhere.

It seems Sudan and issues like it will only grow as India and its companies take on more of a global role. My friends in Bangladesh tell me that people there watch Indian investments by Tata and other companies with great wariness. Many of ONGCs operations are in countries where Western companies have refused to go or cannot go because of political considerations (Iran, Syria, Libya, Burma, etc.). All of this takes place in the context of a race for resources with China across Africa and elsewhere. Burma broke its MOU with ONGC for a natural gas pipeline last year in favor of building a pipeline to China. It should also not be minimized that Western countries and companies have refused to give India and China a share of resources in more politically stable countries where the best resource deposits were locked up through contracts years ago.

Although certainly there will be future competition for resources and all countries including India will have to do business with less than perfect governments, the question is what are the limits? In the United States, laws like the Alien Torts Claims Act and the Foreign Corrupt Practices Act have been used in attempts to check U.S. companies overseas activities in U.S. courts. This approach has had only modest success at best, but has served as at least a minimal check on some of the U.S. companies’ worst abuses. Further, since the U.S. frequently uses sanctions against countries like Sudan or Burma this limits how involved U.S. companies can be involved in some troubled areas of the world. Of course, this approach is debatable and there are still plenty of countries, like Saudi Arabia, that the U.S. freely does business with despite their records.

What course will India take in balancing economic and human rights concerns in its foreign policy? At this point, it looks like it’s not even an issue being debated. Prime Minister Singh recently announced he is for duty-free imports from all of Africa. This could be a great thing for the development of countries in Africa and help alleviate poverty there. Singh though seemed to have announced it only in the hopes of securing oil contracts on the continent. By pledging that the whole continent would receive the same duty-free import favor from the Indian government there was no sense that awards or penalties should be given by the Indian government to countries depending on how they treat their people. Of course, one can argue who is India to sit in judgment of whose governments are doing a good job? Alternatively, one can say who is India to support governments that repress their people? This isn’t easy clear-cut stuff. What I hope to see in the years to come though is a debate about how India wants to approach these issues because there is no neutral position when it comes to trade – you are always supporting someone when choose to trade with them, and that’s a choice.

On a related note, the Chadian government which recently repelled a rebel invasion on its capital (much of this is a result of a spillover affect from fighting in neighboring Sudan) announced it can no longer take refugees from Darfur. In 2011, Southern Sudan will vote if it wants independence (if they do vote, they will likely say yes and re-spark the civil war between the north and south – the country’s principle oil deposits (including ONGC’s) lie between the north and south). Meanwhile, UN troops try to hold the peace in both Darfur and the South. Amongst these troops is a large Indian army presence (who are joined by Chinese engineers). Ironically, the Indian army is only a short flight from ONGC’s oil fields, which keep pumping money into a political and humanitarian crisis that doesn’t seem to go away, and the Indian military has been tasked with controlling through the UN.

Oa bit of a side note, the U.S. law on whether U.S. states can undertake divestment campaigns such as this (that might end up angering the Chinese or Indian government) is still unsettled and a bit of a personal research interest. However, in this case the U.S. federal government passed the Sudan Divestment and Accountability Act in December 2007, which basically endorsed these state divestment actions thereby signaling to the courts that they should not strike down divestment legislation as adversely affecting foreign relations. There has already been an interesting case challenging Illinois divestment legislation (National Foreign Trade Council v. Giannoulia, 2007 U.S. Dist. Lexis 13341 (N.D. Ill. 2007) although it has limited precedent value for a few reasons (including the passage of this act). [I would be interested to hear if there are any cases on Indian states involvement in foreign relations – I know the separate lists in the Indian Constitution describe which spheres of activity the states and central government are respectively in charge of (and foreign relations is central), but now many traditionally local and state activities can have foreign relations implications as U.S. jurisprudence is discovering.]

When Women Rule

The emergence of Hillary Clinton as one of the two potential Democratic Party nominees for President has kindled interest about women in leadership positions in the US. This is of course nothing new to India where Indira Gandhi ruled for 16 years and now, her daughter-in-law remains the most powerful person in the country. Nicholas Kristof, in his weekly column in the NYT, argues that women in many countries including India have been mediocre PMs/Presidents and have not done much to address the urgent needs of women in these countries (Q: was Indira Gandhi really a mediocre PM?). He thinks that democratic politics is responsible for the problem, the iniquitous treatment of women being fostered by public prejudice:

“In monarchies, women who rose to the top dealt mostly with a narrow elite, so they could prove themselves and get on with governing. But in democracies in the television age, female leaders also have to navigate public prejudices — and these make democratic politics far more challenging for a woman than for a man.

In one common experiment, the “Goldberg paradigm,” people are asked to evaluate a particular article or speech, supposedly by a man. Others are asked to evaluate the identical presentation, but from a woman. Typically, in countries all over the world, the very same words are rated higher coming from a man. In particular, one lesson from this research is that promoting their own successes is a helpful strategy for ambitious men. But experiments have demonstrated that when women highlight their accomplishments, that’s a turn-off. And women seem even more offended by self-promoting females than men are.

This creates a huge challenge for ambitious women in politics or business: If they’re self-effacing, people find them unimpressive, but if they talk up their accomplishments, they come across as pushy braggarts. The broader conundrum is that for women, but not for men, there is a tradeoff in qualities associated with top leadership. A woman can be perceived as competent or as likable, but not both.

“It’s an uphill struggle, to be judged both a good woman and a good leader,” said Rosabeth Moss Kanter, a Harvard Business School professor who is an expert on women in leadership. Professor Kanter added that a pioneer in a man’s world, like Hillary Rodham Clinton, also faces scrutiny on many more dimensions than a man — witness the public debate about Mrs. Clinton’s allegedly “thick ankles,” or the headlines last year about cleavage.

Clothing and appearance generally matter more for women than for men, research shows. Surprisingly, several studies have found that it’s actually a disadvantage for a woman to be physically attractive when applying for a managerial job. Beautiful applicants received lower ratings, apparently because they were subconsciously pegged as stereotypically female and therefore unsuited for a job as a boss.

Female leaders face these impossible judgments all over the world. An M.I.T. economist, Esther Duflo, looked at India, which has required female leaders in one-third of village councils since the mid-1990s. Professor Duflo and her colleagues found that by objective standards, the women ran the villages better than men. For example, women constructed and maintained wells better, and took fewer bribes.

Yet ordinary villagers themselves judged the women as having done a worse job, and so most women were not re-elected. That seemed to result from simple prejudice. Professor Duflo asked villagers to listen to a speech, identical except that it was given by a man in some cases and by a woman in others. Villagers gave the speech much lower marks when it was given by a woman.
Such prejudices can be overridden after voters actually see female leaders in action. While the first ones received dismal evaluations, the second round of female leaders in the villages were rated the same as men. “Exposure reduces prejudice,” Professor Duflo suggested.

Women have often quipped that they have to be twice as good as men to get anywhere — but that, fortunately, is not difficult. In fact, it appears that it may be difficult after all. Modern democracies may empower deep prejudices and thus constrain female leaders in ways that ancient monarchies did not.”(Click here to read Esther Duflo’s study.)

Women’s lack of killer instinct is often blamed for their failure to rise to prominent leadership positions. Political leaders in India have sometimes cited this reason for not allotting party tickets to women when faced with male opponents. On a related matter, a paper came out last month that looked at gender differences in competitive choices. A blog in the NYT that I reproduce in its entirety explains why it is interesting and how this one differs from the other run-of-the-mill studies on this subject:

“The conventional wisdom holds that men and women have different abilities when it comes to competition (a view that’s certainly being challenged in the current Democratic primary). Labels like “lacking the killer instinct,” “peacemaker,” and “avoiding confrontation” are commonly assigned to women in competitive environments, while the supposed male knack for thriving in competition is cited as a reason for the persistent wage gap between the sexes.

But is an enhanced or decreased competitive drive a result of biology, or simply a culturally instilled trait? University of Chicago professors Uri Gneezy and John List and Columbia professor Kenneth Leonard performed a controlled experiment to test this question, and published their results in the new working paper, “Gender Differences in Competition: Evidence From a Matrilineal and a Patriarchal Society.”

Their method consisted of studying two distinct social groups: the Maasai in Tanzania, a “textbook example of a patriarchal society” in which women and children are considered “property,” and the Khasi in India, who are matrilineal, meaning female-dominated through inheritance laws, household authority, and social structures — though still distinct from “matriarchal,” since, as the authors point out, “the sociological literature is almost unanimous in the conclusion that truly matriarchal societies no longer exist.”

Gneezy, List, and Leonard tested the competitive drives of 155 subjects, male and female, by gathering groups of men and women from both tribes, offering them money in exchange for participation in an experiment, separating them into individual rooms, and then giving them tasks like tossing a tennis ball into a bucket 10 times. Each subject was told that he or she was competing against an unnamed rival in another room, and was given a choice of payment options: receive either a) “X per successful shot, regardless of the performance of the participant from the other group with whom they were randomly matched;” or b) “3X per successful shot if they outperformed the other participant.” Their results are summarized as follows:

Our experimental results reveal interesting differences in competitiveness: in the patriarchal society women are less competitive than men, a result consistent with student data drawn from Western cultures. Yet, this result reverses in the matrilineal society, where we find that women are more competitive than men. Perhaps surprisingly, Khasi women are even slightly more competitive than Maasai men, but this difference is not statistically significant at conventional levels under any of our formal statistical tests.

While plenty of studies have contrasted the competitive drives of men and women, few, if any, have isolated subjects who’ve spent their lives blissfully free of Western (and Eastern, for that matter) cultural biases about gender. Now if we could only test how the Khasi women fare in corporate law firms…”

So is this then about nurture rather than nature? The final word on that is uncertain largely because a clear distinction between the two does not exist. The authors conclude as follows:
“…policymakers often are searching for efficient means to reduce the gender gap. If the difference in reaction to competition is based primarily on nature, then some might advocate, for example, reducing the competitiveness of the education system and labor markets in order to provide women with more chances to succeed. If the difference is based on nurture, or an interaction between nature and nurture, on the other hand, the public policy might be targeting the socialization and education at early ages as well as later in life to eliminate this asymmetric treatment of men and women with respect to competitiveness. Our study suggests that there might be some value in this second avenue...” In light of the women's quota debate, that is something to think about.

IPT on Torture Feb. 9 and 10

For those interested in criminal justice and torture there is going to be an Independent People's Tribunal on Torture, Extra-Judicial Killings, and Forced Disappearances this weekend (Feb. 9th and 10th from 9:00 to 6:00 and 9:00 to 4:30) at JNU (Life Science Auditorium) in Delhi. There are about 90 speakers coming from most of the states in India including a lot of victims or family members of victims, such as Dr. Ilena Sen, the wife of Dr. Binayek Sen the imprisoned PUCL Chattisgarh activist. I can't seem to find the schedule online, but happy to forward the soft copy I have to those interested.

Article on the Forest Case Controversy

EPW has an article on the ongoing forest case (T.N.Godavarman v. Union of India) and its implications. It traces how the SC, taking recourse to ‘continuing’ mandamus, has assumed complete administrative control over the day-to-day management of this issue. The authors say that the SC has embraced highly questionable ideas, its actions reflect a lack of proper understanding of the issues involved, some of its orders cannot be implemented, and in various instances, its directions have positively caused harm to the environment. They argue that the SC’s ongoing intervention has centralized authority in its hands at the expense of the states and the MOEF (Ministry of Environment and Forests) whose capacity to intervene has atrophied ‘as all their attention is diverted towards either circumventing or zealously anticipating the court’s orders’. They conclude that this ‘jurisprudence’ is faulty:

“The Godavarman case offers strong evi­dence to suggest that judicial overreach not only hurts the process of governance by undermining the role of the executive, but also the content of governance by pro­ducing flawed judgments, i.e., interpreta­tions of the law that are both unsound and impracticable. This happens for several reasons, including inadequate application of mind in the hurry to produce “land­mark” judgments, and the impossibility of a central court knowing the complexities of conditions and laws across such a di­verse country.”

This case has become a cause célèbre for all those concerned about the current trend of PIL cases. For those interested, one of the authors, S. Lele has written a commentary in June outlining the complexities of this issue.

In a somewhat related matter, the SC has come out with guidelines to ‘filter’ PIL cases. The news item suggests that it is an ad hoc exercise meant to check the case load. There is no mention of whether this is the outcome of J.Katju’s recent cri du Coeur – if it is, it is bound to come as a disappointment. It appears that the pronouncement will only relegate a few minor issues to a secondary status and does not signify any major change to the system as it operates today.

Update: Thanks to Tarunabh for providing a link to the official document of the Supreme Court regarding the new PIL guidelines (click here to open it).

Free speech, multiple proceedings and chilling effects

The Supreme Court has dismissed an application by painter MF Hussain 'for immunity from prosecution in any court in the country except in Delhi'. Multiple proceedings against Shilpa Shetty, Khushboo and MF Hussain recently have seen the abuse of a procedural loophole to punish them for speech acts even before the crime can be established.

Here is an argument why this procedural loophole is unconstitutional:

1. All criminal acts that have 'speech' or 'expression' as constituting actus reus need justification under Article 19(2) as a 'reasonable' restriction.

2. This applies not only to substantive laws but also procedural laws.

3. Irrespective of the content of the speech, the possibility of multiple legal proceedings against a person in several parts of the country (that the current law on criminal jurisdiction allows) has serious 'chilling effects' even before the speech is made [Chilling Effect - 'a situation where speech or conduct is suppressed or limited by fear of penalization at the hands of an individual or group']. This is a restriction on Article 19(1).

4. The restriction is unreasonable because -
(a) no state interest is served by having the same act tried in several jurisdictions. Because no person can be convicted of the same act twice, even if two courts find him/her guilty, only one punishment will sustain. Therefore, in reality, the speech acts only amount to procedural harrassment.
(b) multiple proceedings waste precious judicial time. what 10 different courts can do, one court can do equally well. Public resources are also wasted because such multiple proceedings inevitably lead to a case-by-case Supreme Court intervention (like for Shilpa Shetty and Hussain) ordering transfers - a one time solution will save precious judicial time.
(c) all this, of course, besides the harrassment of the speaker EVEN BEFORE THE SPEECH IS FOUND TO BE CRIMINAL, and the chilling effects of such restriction.

Remedy:
An exception to be carved in the jurisdiction clauses of the Criminal Procedure Code for all crimes that are constituted by 'speech or expression'so that a criminal case in such crimes can be filed only at the defendant'splace of ordinary residence (if in India), or in Delhi (if outside India). This must be irrespective of the content of the speech.

The Bird Flu Attack: Focus on a less-talked about Bill

The bird flu attack in West Bengal has raised the question as to who was responsible for not taking prompt steps to contain the epidemic - Centre or the State Government. The State Government has admitted that the local people did not take much notice and report it to the proper authorities when it started happening. Anisur Rahaman, West Bengal Minister for Animal Resources has said in this interview that the moment the Government got to know of it on January 8, it initiated action. But he attributed the delay to procedural formalities that have to be observed. The State Government began the culling operations only on January 16. The delay of eight days appears to have taken its heavy toll.

Indeed, there is a Bill pending in Parliament, precisely to address such situations. The Prevention and Control of Infectious and Contagious Diseases in Animals Bill, 2005, was examined by the Standing Committee on Agriculture (2006-07), which has recommended its adoption with certain amendments in its 31st Report, presented to both the Houses of Parliament on May 16, 2007. Curiously, the Bill has not yet been passed in the subsequent sessions of Parliament despite its urgency. The Bill's summary, prepared by the PRS, is here.

According to the Bill, as infections and contagious diseases are not restricted to specific state borders, and can spread across the country, a Parliament legislation applicable to the length and breadth of the country alone can meet the needs of the situation. Ineffectiveness of the legal and other measures to control animal diseases also has, in many cases, a human health angle. The Bill aims to create awareness about the diseases and popularization of vaccination. The law would help notify infectious diseases and to implement control measures in the entire country. The Bill has been drafted by virtue of Article 253 in order to fulfil the requirements of International Animal Health Code.

The Standing committee report says there are more than 100 diseases which are communicable from animal to man and some of them are very dangerous. Therefore, it is important to set up containment labaratories at regional levels. But there is only one at present: the High Security Animal Diseases Laboratory at Bhopal. It is one of 10 such labs ranking 6th in the world. The Bill fixes the responsibility to identify the diseases from which the animal is suffering on the Veterinarian. The minimum requirement, according to the report, is one veterinary surgeon for 5000 animals. But India suffers from very poor infrastructure.

Had the Bill been enacted in time, it would have been possible to test its effectiveness in containing the ongoing epidemic.

The mystery of Sethusamudram affidavit unravelled

Everyone knows how the Union of India had to withdraw its own affidavit in the Sethusamudram case in the Supreme Court, as the Government felt embarrassed by Paragraph 20 of the affidavit, which averred that there is no scientific basis to the claim that the Adam's Bridge was a man-made structure, and that the epic Ramayan, which the petitioner cited in support of his claim, was just a mythology. Following the withdrawal, two of the ASI officials, who drafted the affidavit were suspended. The Government implicitly admitted that the way the two officials drafted the affidavit was contrary to the Government's stand on the issue, though no one knows what is the Government's stand.

Intrigued by this, I filed an application under RTI seeking to get from the Culture Ministry, a copy of the order by the Secretary, Union Culture Ministry directing an enquiry into the matter; a copy of the report submitted by the Director General, ASI, after the enquiry, and a copy of the suspension order.

The Culture Ministry, duly forwarded my application to the ASI, the competent authority. The ASI's Central Public Information Officer (HQ) replied to me that the matter is still under investigation, hence excemption, under Section 8(1)(h) of the Right to Information Act, 2005, may apply.

I preferred an appeal against this decision, saying that the enquiry has already been completed, and the two ASI officials Chandra Shekhar and V.Bakshi had been suspended only after the enquiry. Therefore, S.8(1)(h) of the RTI Act cannot apply if the enquiry is already complete. I also said that even if the enquiry/investigation was incomplete, the information which I had sought could still be given as it would not impede the process of investigation or apprehension or prosecution of offenders.

The first appellate authority, R.S.Fonia, Director, ASI, accepted my stand that information sought by me was not covered under the Section 8(1)(h) exception of the RTI Act, and directed the CPIO(HQ) to provide the information requested by the me within seven days under intimation to him. The appellate authority's direction was issued on December 13, 2007.

In a clear violation of the RTI Act, the CPIO (HQ) and the Culture Ministry not only failed to furnish the information to me as directed by the first appellate authority to date, but appear to contradict the appellate authority's stand that my application was not sub-judice. In the ongoing case in the Supreme Court, the Court has not issued any direction to the Union of India not to reveal the reasons for the suspension of the ASI officials. The UOI has only sought further time to file its revised affidavit.

While the doors are open to me to approach the Central Information Commission for an appeal against the non-reply within the stipulated time by the ASI and the Culture Ministry to my application, I think it is possible to read into this non-reply the following things:

1. The Government has certainly something to hide in this, as if in its view, the suspension of these two officials was justified, then nothing prevents it from sharing the reasons for the suspension.

2. It also raises a fundamental and disconcerting question on how the Government resolves the conflict between professionalism, rooted in a secular-scientific philosophy and a standpoint born out of populism. As the suspension shows the Government sacrificing the former for the sake of the latter, the reluctance to share with the public the reasons for the officials' suspension is quite obvious.

Symposium on SEZs

The Seminar's latest issue is on SEZs, a subject which has engaged the attention of our contributors recently.

In the Problem, posed by Aseem Shrivastava, an independent economist in Delhi, (who himself is a critic of SEZ) it is said: " The SEZ story cannot be grasped in the fullness of its implications unless and until it is placed in the wider context of policies for rapid urbanization and upgradation of Indian cities.... There are large loopholes in the SEZ law which leaves the door wide open for land being acquired for real estate speculation... The diversity of resistance to the SEZ policy across the country offers encouraging conclusions for the resilience of democracy in the country."

The package includes answers to FAQs on SEZs, an interview with Commerce Minister, Kamal Nath (who says SEZs have nothing to do with land acquisition) and a few insightful articles, mostly critical of SEZs. Of these, Kannan Kasturi(independent researcher and writer on law)'s article on "Of Public Purpose and Private Profit" will be of interest to us. The author agrues that when powers of eminent domain are exercised, we need to ensure that the law looks at the entirety of loss of rights of all the affected people, not just of those owning or occupying property. Further, the loss of rights because of an acquisition needs to be compensated by the granting of new rights through resettlement and rehabilitation, not just by monetary compensation.

The article by Manshi Asher and Patrik Oskarsson, who are currently researching the implications of SEZs in different states of India, is based on their recent field investigation in Gujarat, where the SEZ experiment has been ostensibly successful, without any murmur. The authors suggest that a fragmented society polarized around caste, religion and class makes the possibility of opposition by the 'losers of resrouces' even more difficult in a business-oriented Gujarat.

Aseem Shrivastava observes that by shifting the very mode of governance towards the corporate sector, they will render unaccountable and opaque decision making which will have long-lasting and widespread consequences for the citizens of the country.
Jonathan Jones, a doctoral candidate at the Department of Political Science, University of Florida, Miami, has included a Tableon some key social movements against SEZs across India in West Bengal, Goa, Karnataka,Maharashtra and Orissa.

Vasudha Dhagamwar, Founder and former director, MARG, Delhi, says there are two separate and two seemingly contradictory lessons to be learnt from Goa. First, activists may not always represent the people; so, go slow on the opposition. Second, if the idea behind a SEZ is to convert land to non-agricultural use and provide non-agrarian employment, Goas has done it already by having a sizeable tourist industry and absorbing people in the non-agrarian sector. So, go slow on SEZ. 15 SEZs in a state as small as Goa appears an overkill. Even if a SEZ in Goa employes only an average of one lakh or even 50000 people each, they will open up so much employment that Goa will be swamped out of recognition (Goa's population is only 9 lakh). If a single industry SEZ is allocated 250 acres of land and a multi-industry SEZ is allocated 1000 acres then the landscape of Goa will change beyond recognition and it will no more be a top tourist destination, the author observes.

All in all, the issue is a must-read for us, who are keenly interested in the SEZ controversy.