GYANOPROBHA

SOME THOUGHTS ON "MORAL EQUIVALENCE"

Human rights activists have often been taken to task by media commentators, government officials and ministers, and even members of the chat-show public, for being equivocal - or seeming to be - in condemning maoist violence, even while the activists condemn state violence. What seems to annoy these people the most is that almost always, the activists' condemnation of maoist violence appears to be phrased with qualifications. "Of course, we certainly condemn maoist violence," activists often say, adding, "But you have to see this in the context of the violence- especially the structural violence - of the state."

At this point, the activists are accused of slyly approving or morally justifying maoist violence by suggesting that state violence could provide an explanatory context for it. Furthermore, activists are accused of creating a "moral equivalence" between the state security forces and the maoists by demanding that maoist violence be "seen in the context of " state violence. Two commentators accuse activists of creating a moral equivalence "between the damage chemotherapy causes and the cancer it treats".

But what does this term "moral equivalence" really mean? Apparently, this term originates from the title of William James's 1910 essay The Moral Equivalent of War. Not having read this essay, I can't quite grasp the connection between the title of the essay and the way the phrase "moral equivalence" is used. But more helpful perhaps is Jeane Kirkpatrick's use of the term in attacking critics of US foreign policy for seeing "no moral difference" between the the actions of the Soviet Union and those of the US government. Applying this sense to the Indian debate between human rights activists and their critics on the issue of maoist violence vs. state violence, it is easy to see what the critics mean: that the activists see "no moral difference" between maoists and the Indian state in the way each side deploys violence in the furtherance of their aims, when in fact there are several moral differences (at least according to the critics of human rights activists)

1. The state is assumed to be in a morally superior position because it is supposed to enjoy a legitimate monopoly on violence. The maoists on the other hand usurp the right to use violence in furtherance of their supposedly heinous end - the overthrow of the Indian state.

2. The state's actions are supposed to be based on the constitution and the rule of law, whereas the maoists reject as oppressive both the constitution and the rule of law that it defines.

3. The state is supposed to have the backing of the demos, expressed through the electoral process. The maoists have refused to engage in electoral politics. Where they do enjoy support, it is sometimes exacted through coercion and fear, and sometimes earned through winning hearts and minds by exploiting the disaffection of their supporters with the agencies of the state, and sometimes through a combination of both.

Against these arguments, it is necessary to note a few others.

a. The state monopoloy of violence often loses legitimacy when it is exercised with little regard for proportionality, for the dignity of the victims, or when it fails to distinguish between innocent bystanders and active threats. The state often deploys its violence in a manner that forces people to turn to the state's opponents for protection from the state. The state's violence thus turns the alleged cure (or 'chemotherapy') into the catalyst for the cancer by encouraging its rapid spread. In the relatively rare cases when the forces of justice and accountability kick in, it takes years for the guilty to be punished, or for the victims to obtain redress. 'Justice delayed is justice denied' is a trite shibboleth that has apparently been forgotten by those responsible for the administration of justice in India, but realized everyday by those are meant to receive justice. It's possible to argue that the state might commit mistakes occasionally in the heat of the moment. But the patent inability of the state to learn from its mistakes - despite National Human Rights Commissions, comissions of inquiry into actual incidents, and the continued recording by human rights organizations of acts of state criminality -  suggests that the criminality of the state is not an aberration, but a structural feature.

b. I have argued earlier that the state's legitimate monopoly on violence - however necessary it might seem - needs to be exercised with the greatest care to prevent it from degenerating into a monopoly on criminal behaviour. In the case of the Indian state, this care seems to be largely absent. So what we have in, for example, Operation Green Hunt, is a state deploying public funds to violently suppress one group of its citizens - usually the most economically vulnerable and socially and politically the least powerful - whose rights under the Constitution are being violated in order to satisfy the desires of another, far more economically and politically powerful, group of citizens.

c. The state's agents are in a sense even more culpable for any criminal behaviour they engage in than the maoists, precisely because their actions need to be held to a higher standard of legality than that of criminals. The state is supposed to be an upholder of the law and a protector of the citizen. It cannot be claimed in defence of the state that the protection of the citizen from the criminal requires criminal action.

d. Far from asserting that there is no moral difference between maoists and the state, human rights activists are in fact insisting on the precise opposite: that the state - by virtue of its basis in the popular will, as well as by having its actions defined by reference to laws - has, except in the most extreme cases when it is itself under attack (such as in Mumbai last November), the obligation of not engaging in criminal behaviour while protecting citizens. Precisely for the reasons outlined in 1-3 above, human rights activists insist that there is, and should be, a normative difference between the state and the terrorists it fights against. This difference is eliminated when the state engages in indiscriminate criminal behaviour.

Critics of human rights activists, on the other hand, seem to be willing to accept all state actions as legitimate and morally justified if they rid society of terrorists and criminals, irrespective of the context or circumstance. It is the critics, therefore, who are drawing an illicit normative equivalence between the terrorist/criminal and the state by insisting that the best way for the state to deal with terrorists is to become terroristic itself. In practice, as I have tried to argue here, there is no moral equivalence, nor should there be.

THE LEGITIMATE CRIMINALITY OF THE STATE?

In the various discussions on the violence of the maoists that I have viewed on Indian TV, one red line that is never crossed is the unquestioned and unquestionable monopoly of the state on violence. This monopoly is supposed to be legitimate and exercised on behalf of the citizens, even if most citizens are unaware of it. Citizens who would not normally grant legitimacy to individuals to exact retribution by murder or torture are perfectly content to allow the state to make a virtue out of extrajudicial torture or killings. In the frighteningly short span of time since terrorism was inserted by supposedly democratic states and their supposedly free media into the public discourse in an attempt to drum up support for an all-out war on terrorism, citizens in democracies have become inured to states attacking entire countries on the basis of wholly manufactured suspicions, or to kidnapping innocent suspects for torture to extract information, or to attacking and killing civilians in supposedly friendly countries by means of remotely controlled drones in attempts to execute suspected terrorists. They are even prepared to remain silent in the face of the whittling away of constitutional rights guaranteed since the Magna Carta - such as a presumption of innocence till guilt is established in an open court in a fair trial, or the right of habeus corpus if arrested. The old rules are supposed to have changed. Democracies are supposed to be fighting a new kind of war, where the enemy the terrorist does not have any regard for life or for traditional rules of war, and recognizes no restraints on the taking of human life. In such a world - say the pundits of the war on terror - it makes sense to preserve democracies by sacrificing a little of the democratic freedoms in whose name the war on terror is being fought - part of the regrettable but inevitable collateral damage of this war.

Citizens in supposedly democratic countries need to become much more careful about what exactly they are signing up for when they implicitly grant the state a monopoly on violence. Unwittingly and implicitly, they not only grant the state the power to exercise violence on their behalf, but also against themselves. And since - at least initally - the state needs to preserve the figleaf of democratic legitimacy, openness and accountability in the exercise of violence, the legitimate monopoly of violence also demands a great deal more: a legitimate (but not necessarily monopolistic) right to opacity, deception and mendacity. Only occasionally do state criminals receive the punishment that is due under the law, long after the commission of the crime. Taken together with deception, mendacity and opacity, the state monopoly on violence amounts to the acceptance of a legitimate monopoly on criminality. What would be regarded as criminal behaviour among ordinary citizens becomes slightly less so when engaged in by corporate entities like companies, and is increasingly accepted as the justifiable and even virtuous protection of the national interest when the criminal is the state. And since the criminal actions of the state are usually beyond the legal reach of democratic scrutiny, there are rarely any means of knowing when the state has turned into a criminal enterprise, apart from tell-tale signs and anecdotal evidence. Why do citizens need to know this in advance, and not after it has happened? Because they need to arrest the growth of criminality before it becomes an irresistible force, as it has in Pakistan.

I may have created an impression in the foregoing that states start out clean, and only become secretly criminal in the rough and tumble of conducting the affairs of state. There may be good reason to believe that the reality is historically worse than that. I suspect a thorough study may reveal that at least some states were originally criminal enterprises that captured enough power to function as a protector, and over time societies may have evolved systems of laws to keep this genetic criminality in check. It may be that Mafia-like protection rackets are actually proto-states, as the maoists are demonstrating in those areas they control with impunity. Even if the state were not a originally a criminal enterprise, it had none of the attributes of wisdom and neutrality that people normally ascribe to a state. Take the Indian state. After 1947, what did Indian politicians do? Simply take over the instruments and structures of the colonial state that Indians fought for years to eject, change a few words, phrases and symbols, and introduce new commitments to democracy and public welfare that have seldom been taken seriously since they were written into the Constitution. The basic structures and mechanisms that allowed the colonial state to oppress its subjects remained largely in place, including the Penal Code of 1860. Would a more thoroughoing revision of the basic framework have dispensed with the legitimate monopoly on violence? Probably not, but many more safeguards would have been in place that allowed the state to deal with internal and external challenges to security without permanently undermining liberty or criminalizing the innocent. This does not mean that the freedom movement was entirely in vain. It certainly was not for the elites who took the places vacated by the British. But it's useful to recall how quickly it became apparent to the masses after 1947 that very little had changed in the terms of how much influence they had on the actual governance of the country, despite the power to elect their own oppressors, fraudsters and criminals, and occasionally, their own representative.

Citizens normally grant the state the exclusive right to exercise violence on their behalf, because they assume - with little thought - that this violence is necessary for their own security and well-being. This makes sense when the state is protecting its citizens from external attack, and especially when such attack is unprovoked. But what happens when the state ends up exercising violence on a section of its own citizens, supposedly to protect the interest of the entire nation? Or (to take the familiar US example) when the state engages in criminal operations abroad without the knowledge or permission of its citizens, who are later surprised when the criminality of their state "blows back" in their face?

Take, for instance, what is happening now in India with the civil war over natural resources, presented by the government and the media as a war against so-called maoists. Some citizens feel entitled to choose modes of well-being that depend on the violation of the well-being of other citizens, such as when forests and other natural resources need to be destroyed for mining, dams, roads, electricity generation and other infrastructure. This involves the wholesale, often violent removal of adivasis and others of the poorest and most powerless sections of our citizens from their traditional habitats. Furthermore, when they resist this violation - whether with violence or without - they are regarded as being anti-national or anti-development, as if all citizens subscribed to the same concept of national development.

The resistance of the destitute to further deprivation has become easier to present as a violent challenge to the state because of the rejuvenation of an armed peasant insurrection that was brutally suppressed in the 1970's. This movement lay dormant these past four decades in the forests of the most mineral-rich regions of the country, and has managed to successfully impose its leadership on the resistance of the deprived, by taking advantage of the colossal failure of the state to govern, or to learn any useful lessons from past resistance movements of peasants and adivasis. In its most active areas, this insurgency - now calling itself maoist - constitutes an alternative state bringing to the adivasis and poor peasants its own brutal version of justice, along with occasional rudimentary social services, and protection from the unwelcome attentions of the police and revenue officials, where formerly there was little other than the arbitrary violence and exploitation of the state. The maoists have been known to be unsparing and brutal in spreading terror both among people seen to represent the state, or people, including adivasis, suspected of collaboration with the state. Beyond the fact that they ultimately intend to capture state power, no one knows for certain what their vision of the good society is. They too, in their own way, claim a monopoly on violence in areas they control.

The term 'blowback' has been used in the US to refer to the unintended consequences of violent intervention by the US government in other countries, when the victims commit their own terrorism in US soil. 9/11 was the most dramatic example among many others. In India, we may be facing an internal blowback in the recrudescence of the maoist insurrection. Why Naxals, and why now? By brutally suppressing the naxalite insurrection in the 1970's, the state felt - mistakenly, as it turns out - that they had solved the problems that gave rise to the insurrection itself. Many commentators rightly trace it to lack of "development" and the failure of governance, but still seem unable to to make sense of this, and plaintively ask: why are they against development? Instead, what they should be asking is: what does development mean for them? And what options and stake do they have in our system of development? The fact is that what the Indian elite and middle classes have understood by development has offered very little by way of a viable stake to the masses.

This is what is happening in our country right now: One section of citizens feels entitled to flourish and prosper at the expense of another. The land, rivers, forests, lakes and other common property resources that made up the environment and source of livelihood of the second group now need to be appropriated even more aggressively than before by corporations to sustain the livelihoods, life-styles and wealth of the first. The fact that there are constitutional protections for the second group of citizens means nothing: contrast the tardiness and reluctance with which the state implements the fifth schedule to the Constitution, or the Directive Principles, with the speed with which laws are passed and implemented that enable SEZ's, set up MOU's, pass anti-terror legislation removing the most elementary democratic rights and allows the state to re-conceptualize any resistance to corporate resource-grabbing as terrorism, and implement other investor-friendly measures. In this, the entire legitimate criminal apparatus of the state is deployed to protect the interests of the elites and associated middle classes.

This is actually part of a larger pattern in which the state and its machinery is much more active and enabling when the interests of the rich and the powerful are concerned: contrast the relative neglect of public housing, public transportation, public security, public education and public health, with the efficiency, relative freedom from regulation and the huge scale of investment that enables the private sector in these areas to flourish while meeting the needs for housing, transportation, security, education, health and infrastructure for the tenuously prosperous middle classes and the more securely wealthy elites in our country. And compare how speedily the the state intervenes with its security forces and intelligence bureaus - i.e. its instruments of legitimate criminality - to protect the interests of the elite and middle classes, through measures such as Salwa Judum or Operation Green Hunt, compared to efficiently administering justice against real criminals when the victims are the poorest and the least powerful among the faceless "public". 

Indian democracy seems to be caught in a grim and seemingly unresolvable paradox: We need the guardianship of the state, but we also need to watch the guardians keenly. How does the public exercise control over the state's legitimate instruments of criminality so that they do not turn into full-fledged criminal enterprises?  Indians need to pinch themselves out of their complacency by looking at the suffering of our Pakistani neighbours and imagining their own potential future. It's true that our institutions are much stronger, and that the role of our military is still controlled by civilian authority. But part of the way that terrorism succeeds is by turning the instruments of liberal democracy against itself. It starts slowly, with corruption and venality gradually pervading all the state institutions, ensuring that their services are allocated to the highest bidder. In other words, the protectors of the public masses turn into defenders of private elite interests. When discontent reaches a sufficiently high pitch, the disaffected organize chaos through bombings and murders, through gangs and assassins. The country comes to the boil as the liberal democratic state turns into exactly what it claims to stand against. State terrorism and anti-state terorrism then compete against each other in a mutually self-reinforcing symbiosis.

How far down this road have we already travelled? Unless we are able to find peaceful resolutions to the range of problems that maoists and other extremists symptomatize, we are going to give an increasingly prominent role to our own legitimate criminals till they start operating free from civilian control in ways that we see in Pakistan. Remember, it almost happened in Punjab in the eighties and nineties before we managed to pull away from the brink. It's happening right now in Kashmir and the North-East, and in those states where maoism is rampant. We take state criminality for granted in a way that we do not for ordinary criminality. We know that the laws of the land exist to bring ordinary criminals to justice, even if in practice the laws may work only very imperfectly. But this assurance of the protection does not exist in the case of legitimate state criminality, because the expectation generally does not exist that the state may behave criminally for the public good. Therefore the need for extraordinary vigilance against state criminality is scarcely ever felt as urgently as it should be.

Apart from the slippery slope down which the legitimate monopoly of the state on criminality can take the country, there is another argument that needs to be considered: What would the defender of the state's monopoly on violence do if he or his family were to be attacked by state security forces? Presumably run away, protect himself or his family, or fight back - exactly what the adivasis are doing. But I would love to see him stand up defending the right of the state to exercise violence on his family. This might seem like an ad hominem attack on the defenders of the state monopoly on criminality, but it is not. I am merely suggesting that the concept of the state's monopoly on criminality may seem a necessary abstraction, but in practice it remains highly problematic. The practical problem remains the difficult one of how to constrain it, especially when the temptation to resort to it is the strongest, i.e., during times of political strife and stress. Our country has faced many terrorist attacks in the past, and will probably continue to face them in the future. How can we remain a democracy if we grant immunity and impunity to the legitimate criminals we have employed to protect us? The only permanent safeguard is a fair and speedy system of justice, and building a society based on values of social justice, equal human dignity and equal opportunity. Free market capitalism, unrestrained as it is by notions of social justice and incompatible with it, is inconsistent in the long run with democracy, peace and social justice. Which is precisely why state criminality is so necessary (and therefore 'legitimate') in free market democracies. The freer the market, the more the state needs its armoury of criminality.

Instead of taking such a dim view of legitimate state criminality performing its traditional mandate of protecting the elites against the uppity people, there may be another more "benign" way of seeing this: as a kind of Blairite public-private partnership. The private provisioning of essential services to the elites can be protected from the deprived and ignorant herd at public expense by the legitimate exercise of state criminality. If we can take an appropriately Brahma-like view of time and calmly absorb as the inevitable cost of progress the visions of a few burnt out villages, a few hundreds or thousands of broken, battered bodies each year, of people who will never know what killed them, or why...then there is no need to subtract the screams of burning mothers and their gasping children from the gains of gleaming trains, punctual airports and six-lane highways.

Perhaps in some not too distant future, we will enter a new phase of our politics when the Indian polity will be seen as a contestable market for the service of governance. Each political party could be regarded as a GSP (governance service provider). A coalition or cartel of GSP's could agree to share governance services in a variety of sectors - health, education, internal security, infrastructure, etc. to avail of economies of scale and information. But the competition between different monopolistic GSP's could always have room for the smaller, more agile and low-cost players such as the kind we now call maoists whose USP will always ensure their success in a niche market consisting of adivasis, dalits and poor peasants.

As the Koda scam illustrates, the resources for such GSP's could come from a variety of different channels. Instead of salting away the bribes from the mining companies into tax shelters all over the world, Koda should have set up private security firms like Blackwater or Executive Outcomes, besides investing in his own infrastructural and other enterprises. In fact, Koda would seem to have been a brilliant tax collector! He could even have created his own GSP for the benefit of the companies that paid him. The adivasis too could have been protected by the maoists more effectively, as the Koda revelations show that they too might be turning into another criminal enterprise with the resources to break the monopoly of the state. Perhaps we should not be speaking of criminal enterprises any more, but the markets for various GSP's.

"Into that heaven of freedom, my father, let my country awake!"

 

NITIN, ARE YOU READING THIS?

I have been following the debate on Acorn on the absent voter in the Indian elections. Those who insist that voting is a civic duty (and I agree that it is, but would assert that the conditions do not exist to make it meaningful) have yet to answer the question: How does voting for the least worst candidate between a bunch of thugs and goons help create the conditions for demanding greater accountability, responsiveness and transparency?

Dr. Binayak Sen's case is relevant here. Because he publicly criticized the approach of the Chhattisgarh government in dealing with the problem of maoist terror, he has been in jail for the last two years, despite the fact that (a) there is no difference between the argument he was making and that made by the Chief Justice of India; and (b) that in two years, despite more than eighty odd witnesses, the state has yet to establish its case. This is the BJP's idea of governance: pass a law which criminalizes peaceful public dissent, then throw the dissenters into jail, then throw away the key. Never mind Binayak's record of service to people neglected by everyone else, including the state. Never mind his public advocacy of the due process of law and of clean elections. His problem has been that he was critical of the ugly underbelly of the BJP's style of governance - funding civilians to function as security forces, human rights abuses, neglect of public health and education (to name just a few issues).

The questions of developing institutional mechanisms for fostering the four key P A R Ts of democracy (Participation of civil society in governance and decision-making (not just in elections once in five years), Accountability of the state to the people for its actions, Responsiveness of the state to the needs of the people, and Transparency of all processes of governance to the people who are affected by those processes) are too complex to be settled by means of a vote once in five years. What mechanisms exist for a vigilant citizenry playing an active role in public life? Carefully designed disincentives may discourage abstentions, but may still fail to encourage active participation beyond casting votes. Votes have to be seen to be meaningful, in a sense that has been brought out by this comment from Bobcat in the Acorn discussion:

There is a fundamental flaw in your analysis. You seem to believe that change happens when more people go to the polling booth to vote. There is no good reason to believe that. For one thing, the balance of power between urban and rural areas is dependant on the number of seats falling in each category which in turn is decided primarily by the size of the population in each, not the size of the voting population. So regardless of whether the turnout is 40% or 70%, the number of MLAs/MPs elected from either type of setting will be the same and their ability to influence the political arithmetic too will therefore stay unaltered.

You are right that by exercising their franchise, people can make a difference as to who wins from the constituency. But more people voting will only make a difference if an important condition is satisfied: increased voter turnout is a sign of specific voter expectations that are apparent to politicians and in turn, politicians/parties are distinguishable from one another in some way that makes this difference in voter turnout significant for some politicians/parties but not others. In an election such as the present one without significant issues, there is no telling how those who stayed home would have voted had they ventured to the booth. So loss of the additional 30% or so of voters may very well mean a general loss for all contestants and no particular loss for any single candidate or party. That leaves higher public participation no more effective than lower participation.

But these subtlelties seem to have been lost on other Acorn commenters.

So leaving serious discussion aside, let us read this hilarious comment on the same subject from Mayank Tiwari on the DNA Blog, making the same serious point with greater humour than I can muster (but can only appreciate).

They'll get you! You non-voting naxal
Sunday, May 3, 2009 4:46 IST

Dear Reader,

I am humbled.

Newspapers published detailed articles about the documents you need to have to be able to prove your identity and vote; we explained how the electronic voting machine works, (though they have been around for more than a decade now); we asked you for your opinions and the issues that are close to your heart. Hundreds of hours of sponsored television news debates and talk shows and live reports poured down the tube everyday, but you didn't vote!

Instead you showed us how passive aggressive you are!

Who are you Dear Reader?

Are you a naxal? Well, I think you are.

In India, the middle classes have no constitutional right to boredom or disgust with the system. They are too well fed for that.

The Naxals are the only people who have a right to boredom and disgust with the system (they have earned this right after four decades; the government denies this; says the right was stolen; dispute is on). So if you're bored and disgusted with the system and express it by not voting, then you have to be a naxal. Nothing else explains your behaviour.

You are as much a naxal as Dr Binayak Sen. Okay now don't be all coy. You know who he is. Like you, he is a sympathizer currently lodged in Raipur Jail, waiting to be tried for something that you too, dear reader, one day will be held guilty of --- talking too loudly about a democratic government failing its people.

Surprised? You thought we wouldn't catch on?

Dear Reader, I am no alien to your capricious ways, your sudden need for excitement, your false pretence of boredom; I have seen enough of you. But being in Mumbai only a few months and having seen you in droves holding candles at the gateway monument after 26/11, I confess, I fell into the 'times-they are-a-changing' trap.

And then, maybe a month or so before the D-D day, the incessant drone of the idiot box and the newspapers and the radio and the hoardings took over. Like most papers the DNA too ran campaigns (thankfully we didn't have leadership contests) exhorting you to exercise the one right that appears to be a notch higher than the right to life and liberty. But like a drunken elephant, you refused to move. The middle class is the same everywhere, I guess.

I am aware of your naxal leanings, Dear Reader; make no mistakes. And let me tell you, the government knows that too. They know how much you hate their lot. They know how desperate you are for a system overhaul and they are going to get you! You could have fooled them by keeping appearances and voting. But you did nothing. You showed us how 58 per cent of the voting population, (all of them middle class, secretly naxal, English speaking, anal retentive), can shake up the largest democracy in the world simply by doing nothing. But you haven't shaken anything, let us be clear on that point. You think too highly of yourself, Dear Reader, and you shall pay the price of being a tad too clever for your own good.

What's worse, you and your naxal agenda has been exposed.

The government doesn't need the intelligence bureau to figure out that unlike rural areas, where Naxals have to be physically present to stall the electoral process by violence, the naxal ideas are so deep rooted in urban centres like Mumbai, especially in the middle class pockets, that one doesn't need guns to get people to not vote.

As you read this, Dear Reader, someone somewhere, is making a list of all the times you've gotten drunk and wanted a dictatorship in the country. All the times you've secretly shared your frustrations with the political leadership with friends or colleagues and all the times you've dreamt of slapping a politician on a podium the way Sanjay Dutt slapped Paresh Rawal in Mahesh Bhatt's Kabza.

FYI, Dear Reader, the government may not be able to get you to vote, but it can prove that you're a naxal. The case may take a while to build, but rest assured, it would take less time than the Bandra-Worli sea link. (Visit www.binayaksen.net to know more)

And then, when you're incarcerated for talking too much, you'll have no one to blame, but yourself. No one will raise a voice for you, you middle-class naxal. Even your neighbours won't sign your bail bond (not that you're offence will be bailable in the first place).

You will sign affidavit after affidavit saying all you ever did was do your job but no one will believe you. You will ask your captors where in the world is a simple tax paying citizen a radical communist and they will point to the heart of India on the map.

Dear reader, slowly you will learn how important appearances are. Maybe the solitude of the cell will teach you how to play the game of the happy family in the largest democracy of the world.

Hopefully, the import of what I am saying now will slowly trickle in later. You will realize that in these times of hyper nationalism a naxal is not defined by who he is but by who he is not: a yes man in a capitalist democracy.

Please let me know what you think.

Sincerely,

Mayank

DOES VOTING CHANGE ANYTHING?

Head over to Nitin Pai's  Acorn to read the debate on why we should (or should not) vote.

I have much sympathy with the arguments by commenter TTG, despite his belief in that mythical entity he calls the "free" market.

Why on earth should people go on voting to sustain the pretence that we have a democracy? Well, look at how the BJP and assorted political pundits were caught completely by surprise by the electoral verdict in the 2004 elections. Wasn't that a brilliant example of democracy in action?

It was a brilliant example of elections in action. But what changed for the people who voted the BJP out? Chandra Babu Naidu was chosen Best Chief Minister by the great pundits at India Today right before the elections, where he was trounced convincingly by his rivals in the Congress. But what improved for the people who voted in the Congress? Not much! For the comfortable classes too, not much changed in the way the benefits of our system are routinely captured by them.

Not voting can also amount to expressing a political opinion - not just apathy. The opinion is that the democracy that we have is corrupt and desperately needs to change, before it can properly function to reflect the will of the people. But Pai and company would have us play the role of the useful idiot voter, so that the illusion that we are a democracy is sustained.

The other reason why the urban elite don't vote is also that they don't need to, precisely because the system is designed to take care of their interests through extra-parliamentary processes. Elections are like travelling by train - it is the only alternative for those who use it. Like the vast Indian railway system, which is generally not designed for speed and comfort, but gets passengers and goods to their destinations somehow,  the similarly vast Indian electoral system has many flaws, but does its job of reflecting the opinion of the politically powerless in the only legal way available to them. The only way the powerless in cities and villages of India can show their power is by voting. That is why they have displayed such faith in it, although how long they will continue to do so is an open question. The urban middle classes know better: the system is rigged to work for them, no matter who votes for which party. So why bother to vote?

The only signs of a democracy we have in our country are elections, but their credibility is undermined by rigging in some parts of the country (especially in West Bengal where over the last thirty-two years, it has been carried to a fine art by the con artists that constitute the parliamentary left wing in the country now). We also have a relatively free press, partly undermined by attempts to silence journalists who try and publish the truth. But we will never have a functioning democracy until we have a state that looks upon itself as the servant of the citizens that elect it to power. To exercise the power of government as the agent and trustee of the citizens, institutional mechanisms need to be devised that will promote the four PARTs of democracy - Participation of civil society in governance and decision-making (not just in elections once in five years), Accountability of the state to the people for its actions, Responsiveness of the state to the needs of the people, and Transparency of all processes of governance to the people who are affected by those processes. These four PARTs are currently either absent or utterly weak.

The changes that our democracy requires will not be brought in by the present crop of politicians, or through the ballot box, until the entire electoral system is reformed. I have said this before, and will do so again: we need a second non-violent independence movement for legal and constitutional reform. This time the struggle needs to be for independence from the criminals, thugs and the corporate and military interests that run our country, and who the Nitin Pais of the world insist are the only alternatives we have.  Of course, a second freedom movement, will not automatically solve anything. No system can be guaranteed to be perfect. But how - except through a political movement - can we get the reforms in the Constitution that are requred to prevent the abuses which are now rampant?

"LET THE LAW TAKE ITS OWN COURSE"

Eight months ago, I wrote a longish comment on the desire of some people to "Let the law takes its course" in the case of Dr. Binayak Sen. It was actually motivated by the preference expressed by certain liberal bloggers for a kind of business-as-usual politics.

Today, I see a much angrier comment saying much the same thing from one Gian Inder Singh on World Sikh News, published under the title  "A Search for An Awakened Soul - Justice & the Indian Middle Class".

Singh has forcefully shown how people who express their blind faith in Indian law and justice - mostly the privileged middle class that almost never has to face violations of human rights and justice that routinely occur in full view of the courts - are in fact blind to its politics, either wilfully or through naivete. He notes that the recent spurt of middle class South Bombay political activism a la Meera Sanyal owes its sudden birth and angry media presence to the terrorist outrage on 26 November, yet it has remained unmoved by the far more numerous deaths of farmers in the same state of Maharashtra, or the thousands of people killed in communal riots in neighbouring Gujarat under the "Newtonian" ("every action will have its reaction") indifference of the super-efficient Modi, the same kind of indifference that was expressed in Rajiv Gandhi's musings about a great tree falling as Sikhs were being slaughtered in New Delhi in 1984. The activism of the Supreme Court, argues Singh, is - with few exceptions - very largely a middle class phenomenon aimed at protecting the interests and reflecting the values of the privileged Indian middle class ("well meaning, honest, beautiful people-like-us who want to do good"), the kind that "love the Nano and forget Singur".

For the Nano-loving, Singur-hating Indian middle class, the Supreme Court must stand above politics, and indeed does so, except in those regrettable and rare instances when it tries to protect the interests of what Walter Lippmann would have called the "bewildered herd". But of course, the Supreme Court reflects nothing so much as the values and attitudes of the Indian middle class: the class that is protected by its own prejudices against seeing the obscenity of a SBI ad campaign that urges a "Nano for every Indian" when "Per capita net availability of food grain has fallen dramatically among Indians since the reforms began: from 510 grams per Indian in 1991, to 422 grams by 2005."

As for those who, like the indefatigable P Sainath, plague our increasingly deadened national conscience, Singh sarcastically predicts that the state will have just one solution: "He can rot with Binayak Sen and both [can] discuss the interface between farm impoverishment, lack of land reforms and rise of naxalism."

The big surprise is that Singh's comment is also an admiring review of an unexpected source of criticism: O. Chinnappa Reddy's recently published "The Court and the Constitution of India - Summits and Shallows" (Delhi, OUP, 2008). Chinnappa was a former Supreme Court Judge, and also sat in the High Courts of Andhra Pradesh, Punjab and Haryana. For a former insider to publish criticism of the very system that raised him is a rare enough event, especially in the world of the judiciary, which is why the work must be taken with the utmost seriousness.

Read on....

A Search for An Awakened Soul - Justice & the Indian Middle Class
by Gian Inder Singh

One of the most meaningless phrases uttered in India at a frequency that is almost stupefying is that "the law will take its own course." It is only matched by the astonishing number of times another meaningless sound byte is delivered: "I have immense respect for the judiciary and the judicial system." Men who utter such words include Narendra Modi after Gujarat massacre, L K Advani after Babri demolition, Mulayam Singh and Amar Singh after CBI cases into their shady deals, Lalu Prasad Yadav after fodder scandal, Jagdish Tytler and Sajjan Kumar as they keep dodging the law in court after court even 25 years after leading bloody mobs to kill, maim, burn Sikhs alive in the national capital.

The higher the court, the more pure their faith in the judicial system. So, the Supreme Court becomes the repository of all objectivity, justice and purest of motives. No wonder that men like Maninderjit Singh Bitta also hail their faith in the judicial system when utter miscarriage of justice is done in Prof Devinderpal Singh Bhullar case. One after the other gross violations of human rights happen right under the nose of India's Supreme Court, but the pretensions of India's ruling elite and the brahamanical Indian establishment about the faith in the judicial system remains ever so high.

The reason is simple. Any decision to recognize the warts is likely to lead to a serious engagement with the issue, and any serious engagement will bring out the hollowness of the sham that the Indian establishment has collectively come to put on when it comes to the ability and the inclination of the courts deliver justice.

When India's middle classes jump to their awakened conscience after 26/11 Mumbai terror attacks, the judicial system too joins them. It suddenly awakens from slumber to find that terrorism is indeed a bad thing, and the mayhem involving the massacre of 180 innocent young men and women at five star hotels and a railway station was unacceptable. "Enough is enough," goes the war cry. The middle class-elite-English speaking-TV friendly people initially wanted the most simple of solutions: Attack Pakistan. Shorn of its frills, it said they have killed our innocent rich, let's kill their innocent poor. And in larger numbers.

Well meaning columnists suggested exporting terror. "We should do to Pakistan what Pakistan has done to us," they said. Forgetting that we are doing it to ourselves. Ajmal Kasab could not even buy new clothes, and he dithered into the world of terrorism. Large sections of India's population cannot even buy two square meals, and the apathy of the Indian state translates into what is shamelessly hidden in the umbrella term "naxalism".

But no, all of this does not awaken India's judiciary. The Supreme Court and the not so supreme courts, all sit tight as India goes on violating human rights. Unacceptable levels of poverty, unacceptable levels of malnutrition, unacceptable level of infant mortality rate, unacceptable numbers of farmers committing suicide, unacceptable number of boots in the Kashmir valley, unacceptable nature of atrocities in India's north east, unacceptable role of India in many of our neighbourhoods does not awaken the middle class or the Supreme Court.

But both respond to similar concerns. 26/11 jolts the middle class; 26/11 awakens the judiciary. See, whose interests have come to converge! The rulers, the middle class and the judiciary's concerns are converging, and converging fast. And one outcome of it all is a meaningless reiteration of a non-fact that the judiciary is always above politics, that the courts have nothing to do with politics and that politics per se is a bad word and a bad construct.

India's Supreme Court, and of course the larger judicial system, has singularly failed to recognize, concede or even engage with the fact that while politics is not about law, certainly not all about law, law is all about politics. It is okay to make great claims about objectivity and neutrality of the law off and on, but everywhere in evolved democracies, there is a clear recognition that politics does determine how our law and the idea of justice functions. Guantonamo Bay was not illegal, it was immoral. When it had to be shut down, it had become illegal because a different politics informed our understanding of such a monstrosity. At one time, the "war on terror" phrase had become the catchphrase for patriotism, now those who are bigger patriots and are recognised as such are banishing the phrase. Obviously, this is recognition that there is always politics attached to our actions. But Indian judicial system is extraordinarily thick-skinned to underline this.

As the great American judge Benjamin Cardozo had said: “The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by. The sooner we recognize this as a society, the better off we will be.”

But will India's Supreme Court ever muster up the courage to do so?

This is the Supreme Court that takes up cases of ban on polythene bag on suo moto basis, that hauls up politicians for their failure to stop someone from splashing paint on hill sides and calls it Rape of the Rocks, but it cannot stop the demolition of Babri mosque, it cannot take suo moto notice of the Sajjan Kumars and Tytlers, or of Narendra Modis or of rapist and murderer self-styled godman like Gurmeet Ram Rahim.

But off and on, one or the other good soul engages with these issues and puts India's judicial system to shame. The system that India's politicians and the ruling brahamanical elite love to praise. Who praises whom is always a good indicator of who serves whom. If the politicians praise the judicial system all the time, surely it is not serving the common man. It is this simple fact that the scintillating new book "The Court and the Constitution of India: Summits and Shallows" by O.Chinnappa Reddy (Oxford University Press) has brought out.

Reddy is the right man to intervene. He is an insider, a former judge of the Supreme Court of India (1978 to 1987) and he was a judge of the High Courts of Andhra Pradesh, and of the Punjab and Haryana prior to that. He is the youngest of the legendary quartet of Supreme Court judges (along with Justices V.R. Krishna Iyer, P.N. Bhagwati and D.A. Desai) who, some three decades ago, changed the course of India’s judicial and political history by seeking to radically transform the Court, in the words of Upendra Baxi in his brilliant foreword to this book, “from the Supreme Court of India into a Supreme Court for the Indian impoverished.”

Reddy's is a judgment on those who deliver judgments for a living. India's top court has been found wanting at crucial times and in crucial cases. Its eagerness to send Arundhati Roy to jail is matched by the near apathy about the killers who roam free. The judicial response to the terrorism on the poor of India being wreaked by the neo-liberal policies has been a poor statement of the politics of law. The judges are sharing the ivory towers with the politicians and claim neutrality because they do not go out for dinner with the local councillor but they have failed to descend to the crowded mud huts and littered pavements to see how their words about participative justice and people’s participation in the judicial process are hollow and meaningless.  

Reddy has narrated in detail a few samples, including the 1967 Supreme Court verdict in the Golaknath case (denying Parliament the right to amend fundamental rights) which he called “a tragedy” whose effect “was to stop Constitutional progress and fossilize the Constitution.” The Emergency-era decision of the Court in the ADM Jabalpur case—holding that our life and liberty were gifts of the State that could be taken back by it at its pleasure—is “dreadful and calamitous”, an instance in which the Supreme Court of India “touched the lowest point that could ever be touched by any court with a conscience.” The decision of the Court in punishing the late E.M.S. Namboodiripad in 1970 was “a serious blot in the Supreme Court’s history.” Justice Reddy takes the view that the Court should not have punished Arundhati Roy. “The demolition [of the Babri Masjid] took place with the Supreme Court almost a mute spectator. The Court failed to take any positive steps to save the situation.” The 50 per cent limit on reservations imposed by judicial fiat “may indeed be considered an amendment of the Constitution by the judiciary which, of course, is beyond its competence.”  

There is a scathing criticism of the Supreme Court cases on Hindutva and on the decisions restricting the right to strike and bandhs; and on matters internal to the judiciary, including current processes for appointment of chief justices. The greatest figures in the judicial pantheon are not spared clinical scrutiny —the late Y.V. Chandrachud, Chief Justice of India for some eight years, is described as having “failed to achieve anything exceptional”; and Chief Justice M.N. Venkatachalliah is described as a judge for “whose judgments one would search in vain.” Whether or not one agrees with his views, his book is a welcome move towards greater openness of judges in discussing the role and work of courts.

The utter blindness of India’s Supreme Court is in keeping with the class that talks of neutrality of law as if the judges exist as human beings outside the purview of values and thought processes that all other human beings are impacted by. The ideals of not be partisan is stretched to claim that there is no place for politics in law and justice. This is nothing but complete hypocrisy of those who know very well that law and justice are heavily political entities and constructs and it is better to recognise this than to be part of the sham.

No wonder India’s middle classes also walk the path shown by the Supreme Court and the self-appointed town hailers of the majesty of the law who demolish mosques, gulp millions in fodder scandals or talk of cutting the hands of Muslims but praise the majesty of the law that always takes its own course. If it has no intention of taking the course of justice to the people, naturally it takes its own course. A course that India’s middle classes being nursed on neo-liberal values and capital love to take themselves on.

So a Sarabhai wants to fight elections and an ABN Amro bank executive wants to change society. Both have a skewed understanding of politics. Sarabhai wants to ask Advani why he did not take up issues of Gandhinagar’s rural areas in Lok Sabha and why he did not spend all of his Rs 10 crore of MP Local Area Development fund. ABN Amro’s Sanyal is angry that Mumbai is not getting enough money from the Centre even though it contributes Rs 95,000 crore to the central kitty of taxes. Sanyal was jolted by 26/11, having failed to be jolted by farmers’ suicides, malnutrition deaths, female foeticide, Gujarat riots or anything else. Sarabhai says she too was jolted by 26/11, and has expressed surprise that slums in Gandhinagar do not have toilets.

How much does it take our good citizens from the middle classes to discover the lack of toilets in slums?  

All these are well meaning, honest, beautiful people-like-us who want to do good. They too, lest you fail to notice, have full faith in the majesty of the judicial process, the neutrality of India’s Supreme Court and the hidden truth in the law’s ability to take its own course. Their politics is simple. It starts with 26/11, or the debate on reservation, or the Jessica Lal case. Of and on, they may sign a petition for building a new India of equal opportunities, and their mantra will be to end the quota system. They will all hail the Supreme Court, and their faith in the neutrality and merit of India’s judicial system will be strengthened. An odd fodder scam will not bother them much, they can always make up by making fun of a Bihari politician in laughter challenge programmes.

They cannot see Hindutva politics but like Navjot Sidhu’s corny jokes. Ideological fights are petty politics for them. They do not believe in the politics of Left or Right; they claim to believe in some higher form of politics in which the ideal is divorced from politics.

They love the Nano and forget Singur. They wish you well. They want everyone to have a Nano at least. They have no problems with State Bank of India issuing advertisements saying “A Nano for every Indian” at a time when India’s per capita food intake is the worst in a decade.

India’s Supreme Court cannot and does not engage with the fact that farmers in India are committing more and more suicides ever since the country’s growth rates are rising. ABN Amro contributes to such a growth pattern. Sanyal works for ABN Amro. There are many Sanyals, and there are many ABN Amros. Sanyal does not come into politics because of suicide rates, Sarabhai is not jolted by the fact that a farmer has to buy food grain from the market for his family. What does not bother the middle class good people does not bother the Supreme Court either.

The official figure of the number of farmers who have committed suicide in India between 1997 and 2007 now stands at a staggering 182,936. It is not enough to jolt the Indian middle class, or the Supreme Court. It is jolted by 26/11.

A country in which a large majority depends on farming, millions of small and marginal farmers are net purchasers of food grain. They cannot produce enough to feed their families. Hunger among those who produce food is a very real thing.

Per capita net availability of food grain has fallen dramatically among Indians since the reforms began:  from 510 grams per Indian in 1991, to 422 grams by 2005. That’s not a drop of 88 grams. It’s a fall of 88 multiplied by 365 and then by one billion Indians.

But we love the progress that India is making. India’s middle classes want to take the country ahead and make it a global power. They are enthused by the progress. Their spirit is not dampened because of the fact that the average poor family has about 100 kg less today than it did just ten years ago; their spirit is lifted by the fact that the neoliberal model that pushed growth through one kind of consumption also meant re-directing huge amounts of money away from rural credit to fuel the lifestyles of the aspiring elites of the cities and countryside. That’s why when private banks like ABN Amro opened the highest number of branches in India ever, India’s national banks shut down the highest number of branches in rural areas. That’s why there were so many people at the five star hotel when 26/11 happened. That’s why so many editors called the five star hotel their second home. That’s why India’s middle classes saw the Taj in Bombay as the icon of India. They cannot and do not want to see that it is an icon of a class. Just as for another class, one of the prominent slogans of freedom struggle was “Tata Birla Hai Hai.”

It is good that people get jolted by something. That India’s law and courts that always take their own course get jolted by something. Mumbai got the attention with 180 deaths on 26/11. It is also the capital of the state which saw, as per official data, 40,666 farmers’ suicides since 1995. Of course, with very little media attention.  

India’s Supreme Court and India’s middle classes want to develop India at a rate much faster than the politicians want to. So the Supreme Court has no compunctions in raising the height of Narmada Dam, and the middle classes want India to have giant corporate hospitals, sky scrapers, flyovers, a Burj Dubai in every town. Talking about networks of small dispensaries is passé, talk rather of the possibility of medical tourism. Let the poor villager die of something as simple as gastroenteritis.

This is our vision of development, and this is how it operates in tandem with the so-called apolitical judiciary. Look Mama, we're world class. Our Supreme Court is devoid of all politics, and 26/11 has awakened our soul. After 9/11, we were all Americans. Now we are all truly Indians. The rest may well commit suicide. Be sure, the Supreme Court will take no suo moto notice. And if a quill moves, the law will send P Sainath to jail. He can rot with Binayak Sen and both discuss the interface between farm impoverishment, lack of land reforms and rise of naxalism. And yes, we do have a jail reforms programme if you think we are apathetic to the rights of the prisoners.

Awakened conscience of a Sarabhai or Sanyal would surely not need the two measly votes of Sainath or Binayak Sen. The middle class has risen above politics, just like our Supreme Court. The ideal is being achieved. Its growth rate matches our ambition to see India as a super power.

THE DEATH OF ORTHODOX ECONOMICS AND THE VALUE OF KNOWLEDGE

In my less charitable moments, I’ve often said that economics must be the only discipline where the practitioners believe that if there is a divergence between theory and the real world, it’s the real world that should be changed to conform to the theory rather than the other way around.

Well, here is a timely confession from Professor Willem Buiter, an eminent practitioner, that bears this out. In a blog posting unelegantly titled The Unfortunate Uselessness of Most State of the Art Academic Monetary Economics, he launches into the attack with all the subtlety of a flying brick:

The Monetary Policy Committee of the Bank of England I was privileged to be a ‘founder’ external member of during the years 1997-2000 contained, like its successor vintages of external and executive members, quite a strong representation of academic economists and other professional economists with serious technical training and backgrounds. This turned out to be a severe handicap when the central bank had to switch gears and change from being an inflation-targeting central bank under conditions of orderly financial markets to a financial stability-oriented central bank under conditions of widespread market illiquidity and funding illiquidity.  Indeed, the typical graduate macroeconomics and monetary economics training received at Anglo-American universities during the past 30 years or so, may have set back by decades serious investigations of aggregate economic behaviour and economic policy-relevant understanding.  It was a privately and socially costly waste of time and other resources.

Most mainstream macroeconomic theoretical innovations since the 1970s ... have turned out to be self-referential, inward-looking distractions at best.  Research tended to be motivated by the internal logic, intellectual sunk capital and esthetic puzzles of established research programmes  rather than by a powerful desire to understand how the economy works - let alone how the economy works during times of stress and financial instability.  So the economics profession was caught unprepared when the crisis struck.

Skip the technical parts if you don’t understand them, you’ll still benefit from the overall message. But do read the comments, which represent a wide range of responses, many quite interesting in their own right. Though most praise or support the writer, there are a few comments that take issue with the good professor. One of them quotes a joke that captures the insight with which I began this post: “An economist is someone who, having heard that something works in practice, then ripostes “Ah! But does it work in theory?””. Another – rather miffed by the attacks on Anglo-American orthodoxy, accuses him of hypocrisy:

What has Herr Buiter ever contributed, academic-wise, to a literature that can help us understand the current predicament? How have Professor Buiter's theories helped us forecast the recent disaster? His hypocrisy is revolting (check out his lecture notes for students and you'll see the sort of crap he was teaching).

To some extent all disciplines suffer from a tendency towards orthodoxy - a gradual blindness of vision and intellectual arteriosclerosis. But in the case of economics, the arrogance of power that has accompanied this blindness and unwillingness to change has ensured that it will take something of the scale of the current financial catastrophe to unseat the theory – and perhaps not even then. The only protection against this is to be humble enough to accept constructive criticisms, and the listen to serious dissenting voices.

I wonder what economics departments are thinking of teaching students, now that the emperor’s nakedness is so gobsmackingly obvious to the crowds. I keep encouraging my students bent on studying economics at university to take other social sciences (psychology, sociology or social anthropology) or a humanities (history, philosophy or literature) course to accompany their studies in economics. Dismayingly, I find that it is rare for even the brightest to seek connections between the different disciplines that they study, unless (as in the case of mathematics, perhaps) they have to. Touchingly (or perhaps cynically), they think that the same lucrative career paths are going to be open to them as they were before for economics graduates. My guess is that the hold of the orthodox economics on public life has been so pervasive that the deflation of the discipline is going to take a while. Meanwhile, prepare for a prolonged period of misery and economic distress as economists figure out that their discipline, while it may be passably good at explaining the past, is useless in dealing with the future.

This is in fact the message being purveyed by the iconoclastic Nassim Nicholas Taleb, who seems to have made it his vocation to take the pants off the economic profession. It's hard to dismiss a man who speaks several languages, has written three books, managed a hedge fund, is comfortable with using skills of mathematical modelling and philosophical argument, and, to top it all, seems to have reduced his opponents (academic economists) to incoherence or silence. The dissatisfaction with orthodox economics itself seems to be developing into an orthodoxy, but the recent catastrophe in macroeconomic management seems to have imparted  particular pungency to Taleb's message. His message is that economics has a terrible record of predicting the future, because most economic events happen in what he calls 'extremistan' (as opposed to 'mediocristan'), where single and often unprecedented events can often have catastrophic consequences. The standard practice of estimating probabilities of future events on the basis of past events is almost never a good idea in extremistan. It is therefore a good idea (says Taleb) to be an "empirical sceptic", not to rely too much on generalizations, but on trial and error based on experience and empirical evidence, and finally, not to take risks with possibilities whose outcomes are likely to be random and unpredictable. All this of course has he effect of dethroning economics from its self-appointed pre-eminence as the physics of the social sciences. 

All these controversies, and the circumstances that have given rise to them, have imparted a fresh impetus to the need to ask old questions: what is worth knowing, what is worth teaching. yet by some strange and tragic irony, it is those disciplines where one can ask the old questions that are being called upon to justify themselves, precisely when the so-called "practical" sciences of economics have failed spectacularly to yield urgent answers to questions from the real world.

DIALOGUE ACROSS THE DIVIDE

Scanning the news channels during my trip home in the short vacation that we get at the end of January, I found this discussion on NDTV, with a group of Pakistani journalists and human rights workers.

Amidst all the other depressing news about Ram Sena and functionaries within the Indian judiciary publicly abjuring their duty to uphold the constitution by denying human rights to those accused of terrorism, this discussion affirmed my faith in the ability of people (as opposed to governments) to struggle for peace.

Many politicians and their disciples in the media nowadays seem to have the least interest in promoting positive peace. Why should they promote peace, when defending their countries to the last drop of someone else's blood pays such rich dividends for them - at least temporarily? The politicians are able to grandstand, and the media enjoy good circulation as their columns reverberate with the patriotic thunder of polarized opinion. Even though one can detect the influence of right-wing nationalist ideas on public opinion, it's clear from this discussion that the Indian government has not acted, as the US government did after 9/11, out of fear and rage. Indeed, it is constantly attacked in the press and media for showing restraint in the face of the gravest provocation. Perhaps this restraint is a virtue born out of necessity, as it comes from a sober assessment of our capacity to sustain a military confrontation with Pakistan. Army commanders in India apparently were wary of the battle readiness of the armies they command. But the restraint has actually allowed for a more successful and calibrated reaction to the Pakistani involvement in 26/11 than would have been possible if we had gone in for a precipitate military reaction.

The representatives of the right raise some sensible points as well. Chandan Mitra asks which Pakistan should the Indian government be negotiating with - the civilian government, or the military, or the ISI? It's clear from his reaction that if he were in power, he would assume that the Pakistani government is run by the Lashkar-e-Toiba, and act accordingly. And indeed, it's been clear at least since the Kargil confrontation that the Pakistani state does not speak with one voice, or even act as one agency, on matters concerning India.

Some of the most sensible and conciliatory comments in the discussion come from Air Marshal Tipnis, the former chief of the IAF at the time of Kargil. The spirit that prevails in the discussion, and that captures what I most remember about this discussion, is summarized by Mahesh Bhatt's declaration at the end. I was also impressed by the courage of the Pakistanis in speaking so critically of their own state in what their government, and much of Pakistani public opinion, still considers to be enemy territory.

View it, and hope that there are no more terrorist attacks from across the border.

GOVERNANCE IN INDIA - HARRASSMENT OF CRITICS OF THE RULING PARTY

The letter below from a retired judge in Karnataka to a senior police official narrates a flagrant example of the kind of governance for which Indian state governments have become notorious.

Supporters of the ruling BJP in Karnataka may well claim that one instance does not prove a trend. But when certificates of good governance are being showered on one particularly notorious BJP Chief Minister by Anil Ambani, Ratan Tata and Lakshmi Mittal, one has to wonder whether one is watching a re-play of the accolades heaped on the hapless Chandra Babu Naidu just before he was trounced in the general elections in 2004. Those who have not surrendered completely to short term amnesia will recall that Naidu was voted the Best Performing Chief Minister by the Shining India enthusiasts in the media and industry in 2004, immediately before the elections.

But where can one turn for better examples? There are similar examples of the harrassment of journalists in neighbouring Andhra Pradesh, where the Congress is in power. The BSP, where Mayawati has been accumulated tens of millions of rupees since her rise in politics as a representative of the oppressed, and where her supporters have recently killed a state employed engineer who refused to part with cash for her birthday bash? The CPM in West Bengal, which has turned election rigging into an art form and managed to remain in power for the last 31 years, while its politicians have fattened themselves at public expense beyond their wildest dreams as representatives of the oppressed labouring classes?

Here - thanks to John Dayal -  is the complaint made by retired Justice M F Saldanha on behalf of B V Seetaram to the Inspector General of Police in Managalore, Karnataka, narrating the circumstances of the journalist's arrest in more detail. As the video clip shows, Mr Seetaram is a well-known journalist whose "crime" was to have criticized the RSS - one of the family of organizations associated with the ruling Hindu nationalist right wing party - in one of his papers

The Inspector General of Police
Western Range
Mangalore

This is to record the shocking and savage, not to mention absolutely brutal treatment, accorded to Shri BV Seetaram, Editor of Karavali Ale and four other publications by the Police Dept. This case will be taken up through the Courts, through the respective Governments at the State and at the Centre, the National and International Human Rights Tribunals, the Press Council of India and such other Forums as is required. Never in the history of any country, not even in dictatorships has an Editor being handcuffed, chained, and been escorted by four heavily armed policemen, four police officers and 25 police constables when produced in Court. Not even the most dangerous and violent criminals have been publicly portrayed in this manner for which Transparency International will claim exemplary damages quantified at Rs. 10 Crores from the State Government.

The Home Minister of the State who has turned a deaf ear to every communication pointing out that there has been a total and complete breakdown of the law and order situation in the districts of Dakshina Kannada and Udupi and who has encouraged and protected the police officers who have been responsible for this state of affairs, will have to accept the personal responsibility for the incidents in question. From what is recorded below , it is very clear that everything that has happened was preplanned and executed in keeping with instructions that came directly from the State Home Ministry. On every single occasion where there has been gross police inaction or execuses, attacks on minorities and targeting of citizens, the subordinate police officers have openly admitted that they have been carrying out the instructions given to them from this quarter.

On the evening of Sunday 4th January B.V. Seetaram and his wife were proceeding from a temple towards Kundapur in their car. All of a sudden six police vans with about a dozen officers and over 30 armed police intercepted the car. Seetaram was told that he is under arrest and when he asked to be shown the warrant he was roughly told that there is no need for a warrant. What your department overlooks is that everything that had transpired there was overheard by me over Seetaram's mobile phone as he had phoned me in panic, I tried to speak to the Police officers who squarely abused me! What transpired thereafter has also been similarly communicated by Seetharam to me and to several others because your brilliant officers forgot to take away his mobile! At one point, Seetaram's car was escorted to some lonely roads and it is very clear that the plan was to stage a fake encounter and kill both of them. The only problem for the police was that there was continuous passing traffic and after trying several areas for about two hours the encounter plan was postponed.

This incident is extremely serious because it is very clear that the police department was acting according to a plan from the highest quarters as otherwise six police vans and over 30 armed police could not have converged at that spot. The police are trying to put out the version they were asked to execute a non-bailable warrant in a petty defamation case relating to the year 2006. Such execution would have taken place at Seetram's residence or office both of which are in Mangalore and not on a public road in an obscure part of Udupi District which incidentally is the home town of the Home Minister Dr. Acharya and of his Doctor son..After several hours the Police produced an old Warrant in a petty Defamation case, and arrested Seetaram though he volunteered to attend the Police Station and the Court the next morning. What was the desperate urgency that night, in a case of the year 2006? Why was an objection raised for grant of Bail- Seetharam,s wife had told the Police that he is a patient of chronic Diabetes. Did the Police want him to die in the lock-up? We will get the answers to these questions in the Court room. Ultimately Seetaram landed in hospital, else the Police would have killed him in keeping with their plan.

On the morning of 5th January 2009 Seetaram was virtually dragged out from the hospital. He was handcuffed in the hospital itself and then chained and dragged to a police van in the presence of a crowd of over 2000 people. Four heavily armed policemen escorted him as though he was a violent criminal or a dreaded terrorist. He was paraded from the public road through the Court premises to the Court room by an army of 4 police officers and 25 constables. The Court in its entire history has never witnessed such a spectacle that was arranged by the State Government in the home district of its Home Minister Dr. Acharya. Seetaram's lawyer raised a very strong objection that he is the Editor of five well known publications and a law abiding citizen and that the police were deliberately torturing and humiliating him. Citing a Supreme Court decision his lawyer pointed out that there is serious infringement of human rights and that the handcuffs and chains must be removed. The police officer present told the Magistrate that he is a dangerous criminal and that the police have registered another 5 cases against him and that even if he was released on bail the next police officer from the Bajpe Police Station would arrest him on the spot since the Mangalore SEZ officers had lodged some complaint in respect of some other articles.

Though Seetaram was offered bail on a personal bond he told the court that he is not availing of it for the following reasons :

(a) That having regard to the dangerous situation created by the police and the State Government his life was in danger .
(b) That the police had already tried a fake encounter the previous evening and that they would not stop at their attempts to kill him even in the lock-up or in the jail.
(c) That his health was precarious and he required hospitalization.

The Court then remanded him to judicial custody and directed that he be kept in hospital with appropriate security.

There is a rule of law in this country and since the law and order situation in these two districts has totally and completely broken down we shall insist that the Home Ministry of the Central Government takes corrective action even if necessary by deploying central forces to these two districts. The situation prevailing in these two districts is far worse than Khandamal in Orissa even at the height of the atrocities there. This is virtual state terrorism.

According to the statements made in the Court room your department has registered 5 offences against Seetaram in relation to one and the same Article published a long time back on the ground that it has disrupted communal harmony. Please immediately make available the list of offences registered by the police department against Seetaram and other members of his staff and above all at whose instance this is being done. There have been four attacks on his office and residence by anti-social elements during the last three months 113 incidents wherein the newspaper bundles have been burnt and 87 attacks on newspaper vendors. Though the police refuse to register complaints generally, 23 of the offences have been registered at different places but the incidents have only increased thereafter culminating in the present attack on Seetaram. The Press and the media are not likely to take these incidents lightly as they undermine the very constitutional process and the basis of democracy.

Sd/- Justice M.F. Saldanha (Retd.)
Chairman.

GOVERNANCE IN INDIA - CRIMINALS OUT ON BAIL, BINAYAK SEN REMAINS IN JAIL

In a comment on the state of governance in India, Sherna Gandhy, a senior journalist based in Pune, writes:

Complacent public

After the terror attacks in Mumbai, mass opinion was against politicians. The slogan "enough is enough" resonated the city. But barely a month later Sanjay Dutt who was arrested for having connections to the bomb blasts in Mumbai 15 years ago is being considered for nomination as an MP from Lucknow.

The Congress Party too has selected Baba Bodke who has a criminal record as a candidate. Both Dutt and Bodke are out on bail. But Dr Binayak Sen, a social worker, has been languishing in jail without bail for last 19 months. He was booked for 'aiding' Naxalites - a crime that he apparently did not commit.

So, what politics and what justice are we talking about? When is 'enough' really 'enough' for India's complacent and ineffective public and media?

Kuldip Nayar makes a similar point in an extended commentary on governance in India:

Criminals constitute one fifth of the total strength in both parliament and state assemblies. One criminal was brought to the House last year to vote for the ruling United Progressive Alliance (UPA) which was facing a no-confidence motion. The rules are such that a candidate or an elected member is not disqualified until he or she is convicted. That may be the reason why a horde of criminals is getting ready to contest the Lok Sabha elections, scheduled to be held in the next three months. Corruption knows no bounds and the nexus between politicians and the dishonest is firmer than before.

The latest Rs70,000 million scandal in IT firm Satyam is partly the fallout of land contracts and other deals which the Andhra Pradesh government has given it. Two sugar mills in Uttar Pradesh also benefitted and have been transferred to a company close to the apprehended owner B. Ramalinga Raju.

One state chief minister who has been repeatedly accused of corruption is Uttar Pradesh's Mayawati, a dalit leader. She is already facing the charge of accumulating disproportionate assets. Only a week ago her MLA killed an engineer for refusing to fudge figures to give him money for Bahujan Samaj Party that she heads. She is reportedly converting black money into white through donations during her birthday celebrations.

Justice, figuring at the top of the preamble of the Constitution, is distant from people. When there are millions of cases pending in law courts - many for more than a decade - justice is almost denied. The judges are not even above board. A former Chief Justice of India has said 15 per cent of the judiciary is corrupt. Serving Chief Justice K. G. Balakrishnan has disclosed that he is getting more and more complaints of judges taking bribes. Investigation agencies are already processing a few cases in which a Supreme Court judge is involved.

A retired Chief Justice of India, when asked by his colleagues to face an inquiry, has kept quiet. His sons used the official residence for their property business. The government has expressed its helplessness in the case. He should personally volunteer a probe to save the judiciary from ignominy. The process of impeachment is so cumbersome that the government is considering an amendment to the Constitution. The earlier proposal to set up a National Judicial Commission would have laid down a concrete procedure to deal with dishonest judges. But the Supreme Court does not favour such a body.

Justice also means "social justice". The Supreme Court has spelled it out to mean elimination of inequality of income and status and standards of life, and to provide a decent standard of life to the working people (Nakara Vs Union of India). Yet the fact remains that two-thirds of India's one billion population lives in poverty and one fourth goes without food at night. The fin-ancial meltdown has pulled the lower half still further downwards. Even the verdict on social justice has not in any way decreased the distance between the rich, cited in Forbes as the wealthiest in the world, and the poor who wallow in denial and drudgery of nothingness.

Referring directly to Dr. Binayak Sen, he adds:

The ruling UPA government has brought back the Prevention Of Terrorism Act (POTA) through the backdoor. The Vajpayee government had framed the law to detain the critics without trial. Home Minister P. Chidambaram promised a 'fair balance' between human rights and tough laws. He should prove it by precedent. Dr Binayak Sen, a member of the People's Union for Civil Liberties, has been under detention for 19 months. He should be released immediately. He is a practising doctor, detained on the ground that he was carrying messages of Naxalites to their sympathisers. Even if this is true, the crime is that of ideological difference.[Emphasis added]

[It is with the last statement that I have a problem. This is the kind of defence Dr. Sen can do without. Firstly, because it is not true, since the evidence and witnesses have not substantiated such a charge. Secondly, if true, the act would have been a crime under the existing laws, especially as long as the naxalites refuse to acknowledge the Constitution and operate within the laws of the country.]

Antara Dev Sen asks how the increased co-ordination between the state and the centre required to deal with external and internal terrorism can be achieved when states are allowed to get away with judicial abuse of the kind that Dr. Binayak Sen's case exemplifies. The answer may lie in the newly created National Investigation Agency, but will it be capable of investigating how Dr. Binayak Sen's case has remained unresolved for 19 months despite none of the evidence supporting the charges so far?

In a strange and rare case, two men who were arrested on charges of being Al Badr terrorists appealed to the CBI for an investigation. The CBI concluded that the men were innocent and has asked for action against police officers of the Delhi Anti-Terrorist Squad responsible for their arrest and harrassment. The CBI also revealed that the men were in fact intelligence operatives.

How far are we from becoming a banana republic? The fact is that strengthening the four PARTs of democratic governance - Participation of ordinary people in public life; Accountability of elected officials, Responsiveness of government executives and departments to the citizens they serve (as opposed to rule), and Transparency of government processes - is among the most effective ways that people can develop a stake in the system. And as Sen argues in her article, only by ensuring better governance can terrorism be beaten in the long term.

THE INDIAN EXPRESS ON DR. BINAYAK SEN

In a series of three articles (Part 1, Part 2 and Part 3) in The Indian Express, Vinay Sitapati raises important questions about the continuing trial of Dr. Binayak Sen on charges that the former Attorney General Soli Sorabjee has termed illegal, and that Binayak's lawyer Rajeev Dhawan has termed "the single biggest blot on freedom for bail that we have seen in a while".

The first one to have highlighted the flaky nature of the evidence that the prosecution had brought to bear upon the case was Saikat Datta at Outlook India, in an article in December 2007, soon after the refusal of his bail plea by the Supreme Court. Another article that focused on the legal aspects appeared in Tehelka, and was written by Shoma Chaudhury. But Sitapati has been the first mainstream media writer to have shown in detail how the case against him is very dubious.

In an interview with Karan Thapar Binayak's wife Dr. Ilina Sen mentioned an incident that clearly showed how the prosecution shamelessly tries to introduce fake evidence, but I don't know if this was noted by the court or whether the judge passed any strictures against such an attempt. I do know that at one point, the defence lawyers protested by saying that this trial may as well be conducted by the police, for all the even-handedness being shown by the judge.

I cannot help gaining the impression from my distance that the independence of the judiciary is a fiction behind which the executive seeks to hide its attempts to influence it all the time. Thank goodness for a relatively free and vigilant press! Otherwise we might have become close to becoming a banana republic where it's too dangerous ask: Isn't it the state itself which is largely in contempt of the law in a case like Binayak's?

As I have noted earlier, the statements by Raman Singh and Ravi Shankar Prasad appearing in the first article by Sitapati seem to indicate that a decision may have been taken by the BJP in Chhattisgarh on political grounds not to release Binayak, but to keep him in jail for as long as possible. They are all using the judicial process to prolong the trial to the maximum extent, perhaps even to secure a guilty verdict.

Of course the case needs to be fought in the courts. But his entitlement to bail, which is supposed to be independent of his alleged guilt (as Sitapati has argued), is now being denied by the state on the basis of a presumption of guilt. Apart from the cases Sitapati cites of people being released on bail during their criminal trials, there is also the much less publicized case of traders implicated in a case of supporting maoists in Chhattisgarh under the Chhattisgarh Special Public Security Act being released before the elections. In my brother's case, the refusal of bail is effectively acting as a sentence of indefinite incarceration. So where is the recourse to justice that all of us are entitled to by the Constitution?

My family and I are at our wits' end to know what to do, and where to turn. It strikes me that the only way to get justice is to seek to publicize his case as much as possible so that public opinion puts some pressure on the BJP to at least release him on bail and even perhaps drop the charges against him. This is an election year, and they may be sensitive to the risk of being seen as being intolerant of people like my brother. Their losses in Rajasthan and Delhi in the recent elections may sensitize the leadership of the BJP somewhat to accusations of abuse of human rights. This is why I regard Sitapati's articles as so valuable.

On the other hand, I sometimes wonder to what extent politicians (and the elites in whose service they always stand ready) are sensitive to public opinion. As Sitapati himself has pointed out elsewhere, the BJP are so closely connected to their extremist fringes that they may be incapable of making distinctions - in practice if not also intellectually - between being anti-Salwa Judum and being a maoist terrorist. The success of Narendra Modi in securing the Chief Ministership of Gujarat seems to have given him a cachet out of all proportion to the quality of governance and justice that is actually available to ordinary people in Gujarat. The ignominy that should have been his due after the riots of  2002 has been erased by his electoral success.

The lesson that the BJP and perhaps even other politicians seem to have drawn from this is that Muslim baiting pays dividends, and in my brother's case, anyone who can be tarnished as a maoist sympathiser is fair game. If popular anger at maoist and jihadi violence can somehow be directed at figures like Afzal Guru or Binayak Sen, then perhaps they can ignore the accountability for governance and justice and quality of life that elections are meant to provide.

The popular anger that politicians sensed right after the Mumbai outrage was directed at their ineffectiveness in tackling terrorism. In such circumstances, it is difficult for politicians - in a hurry to make up to the public for their previous callousness - to moderate the desire for security with that of justice, as Manmohan Singh has pleaded. It is much easier to pass tougher and more draconian laws to show that the politicians have responded. Unless we are extremely careful, we may, in the process of protecting our national security, as we undoubtedly should, slide quickly towards becoming a banana republic where torture (already alarmingly well tolerated by Indian public opinion) and imprisonment without trial, mistrials, and high incarceration rates will all become frighteningly common, and where constitutional safeguards will be widely violated in the name of national security. Venality and corruption will prevent any justice for the innocent.

That is why the warning contained in the Indian Express articles and the editorial yesterday needs to be heeded urgently: "when the the law is made tighter, there must be attendant thought to the possibility of misuse. Tough times need, not just tough responses, but tough monitoring as well." As previous historical experience repeatedly shows, without relentless vigilance to the possibility of abuse, the state will end up behaving pretty much like the terrorists they are supposed to be protecting us against.