Prisoner of Agenda

In Search Of Ambedkar's Parliament

2012-05-18T04:00:26Z

The conceit of India’s Republic is founded on one major premise: equality. It is this premise that underlies the thinking of our Constituent Assembly, and it is this premise that, perhaps in the interest of retaining its collective sanity, led the Constituent Assembly to believe that the elected representatives of the people who were to form Parliament would be not materially different from themselves: men and women of understanding, some learning, stature, maturity, committed, with a sense of purpose and public service, and also with the ability to laugh at themselves.

]]> The problem with the assumption is, of course, that it is utterly wrong. There is no such thing as equality. As an aspiration or an ideal it is like the cup of Tantalus, condemned to be forever just out of reach, and though it is a conceit, it is an essential conceit, for without it there is no basis for the system of governance we adopted. The implication is that every adult is entitled, as a matter of right, to offer himself or herself for election, notwithstanding the notable lack of the many qualities shared by the members of the Constituent Assembly; common sense among them.

A look at the Constituent Assembly Debates (CAD) of over 60 years ago and the Parliamentary proceedings of today shows just how far wrong we have gone, just how wrong the Constituent Assembly’s assumption was. The Assembly’s debates show remarkable intellectual rigour, discipline, intensity, concern for a common future, a shared vision. There is also a certain distancing of the self from the subject, an objectivity, and a sense of proportion. Today, all this seems lost. What else can explain the absurd spectacle of the uproar in Parliament over a 60 year old cartoon and the claim that it insults Dr Ambedkar, and a craven government’s capitulation to populism? The cartoon shows both Nehru and Ambedkar wielding whips over the slow-moving cart called the Constitution, Nehru questioning the glacial pace at which the Constituent Assembly worked. Nothing seems to indicate that Nehru is whipping Ambedkar or that the latter is in any way in a subservient position. Though he was marginalised in his lifetime, nobody questioned Ambedkar’s credentials, and his life was, and remains, an inspiration; a journey towards that ideal of equality that continues to elude us. The cartoon appeared during Ambedkar’s lifetime. There is no evidence that Ambedkar was upset by it. Our Parliamentarians claim umbrage by a proxy that was never given to them and in doing so they do enormous disservice to Ambedkar, his life, his struggle, his work and, most of all, to that monumental creation of which he was the principal architect: our Constitution. In the context of what Ambedkar achieved for us, this cartoon is, perhaps, merely an illustration of what he was up against. It does not detract from the man, or the final product; the cartoon is about the making of the thing, not the makers. Lawyers and jurists write massive tomes on various legal subjects, from civil procedure to income tax. No law has the power, the sweep, the vision of the Constitution. No other legal document is the basis of our continued existence. If you exclude tax, no other post-Independent law has, all to itself, a four-volume treatise — HM Seervai’s monumental work through four editions, dense, committed, unflinching, is as much an explicit critical commentary on the Constitution as it is an implicit testimonial to Dr Ambedkar and the Constituent Assembly.

Cartooning dates back to the Middle Ages when it referred to a preliminary sketch for a larger artwork. In that sense, the stained glass windows of cathedrals, Ajanta’s frescoes and the ceiling of the Sistine Chapel were all based on ‘cartoons’; and, arguably, they are cartoons in that limited sense even now. The modern usage, of humorous or mocking art, coincides with the advent of newspapers and magazines. And such is their power and influence that no newspaper does without them.

Cartoons exaggerate to emphasize: facial features and bodies are bigger or smaller than the actual. Incidents are given an importance they do not otherwise deserve. Typically, they contain text that is short, simple and easy to read and grasp. In the social and political arena they are of special value for, more than any other art form, they force us to confront ourselves and see our foibles and gaucheries. They hold up a mirror to ourselves. This is a distorting mirror to be sure, but within it lie truths about the way we are. In joco veritas: In jest there is truth. Cartoons teach us civility by forcing us to laugh at ourselves.

Except for a 22-month hiatus between 1983 and 1984, Garry Trudeau’s Doonesbury comic strip has chronicled social and political life in America for over four decades. Many of the satires are explicitly political and use existing political players, and their depictions are delightfully wicked. Gerald Ford and Henry Kissinger were faceless voices. George Bush was shown as a floating Stetson hat, Bill Clinton as a waffle, Dan Quayle as a feather with nothing under it and Schwarznegger as a groping hand. One entire series was later compiled into a book called In Search of Reagan’s Brain where Reagan was shown as an “artificial intelligence”. So strong was its reception that some papers moved it to the editorial page. When others (notably the Guardian) dropped it due to space constraints, the protests led to its reinstatement and a full apology.

Berkeley Breathed’s Bloom County ran from 1980 to 1989. In 1987 it won the Pulitzer for editorial cartooning. Breathed’s characters, including the irresistible penguin, Opus, was also irreverent: feminism, cinema, pop culture, cults (Bill the Cat became “Bhagwan Bill”), politics, labour unions and, of course, the US Presidency.

Nobody thought to ban these strips altogether. Certainly nobody who hadn’t read them. And yet that is precisely what our Parliamentarians seek. On television, four politicians were asked if they’d actually read the text book in which the so-called offending cartoon appears. Three had not. One said he was proud of his ignorance. This, it seems, is to be the standard of debate in the house that Ambedkar built.

Cartoons and illustrations have a particular importance in teaching for the very reason that makes them appealing: they simplify, they distil the essence. Harold R. Jacobs wrote magnificent text books on mathematics: Mathematics: A Human Endeavour, Elementary Algebra and Geometry. All make extensive use of cartoons and images: Escher’s drawings, billiard tables and more. Difficult concepts are made easy to understand and hard to forget. There is, too, that superb series of “For Beginners” books, all entirely in the cartoon format, called graphic books. What do they cover? Everything from African History to Zinn, via Chomsky, Dante, Democracy, Existentialism, Linguistics and Relativity and Quantum Physics. “Introducing Books” has a similar series, from aesthetics to Wittgenstein.

Elementary Algebra by Harold R. Jacobs

The Introducing Books series

And let’s not forget Shakespeare. There are at least five titles, including the very difficult Macbeth, Othello and King Lear, in the graphic book format. The text is complete, unabridged. It comes alive and the plays are no longer cold, boring and impenetrable to students: they come alive.

The Introducing Books series

Art Spiegelman’s Pulitzer Prize-winning Maus and Marjane Satrapi’s Persepolis (later an award winning animation film) are graphic novels about the Holocaust and Iran during and after the Islamic revolution. Both are searing, terrifying, unforgettable; both contain important lessons on what it means to be human. None of these is irrelevant because they are illustrated or in the ‘cartoon’ format.

The Complete Maus by Art Spiegelman

Persepolis by Marjane Satrapi

A 10th standard civics text book has this memorable line regarding the right to property: “the right to property is no longer a fundamental right. It is a constitutional right.” What on earth is anyone, let alone a student, to make of this? Or take the phrasing of Article 14: “equality before the law” and “equal protection of laws”. Why two phrases? How do they differ? Why would one not suffice? How do you get this across to a 15 year old student? And Article 19: every citizen’s right to the indefinable “freedom of speech and expression”. Expression of what? A thought, an idea, a story, a joke?

If you could illustrate this, a student would understand it — and never forget it. And then perhaps become a better lawyer. Or a better Parliamentarian. Perhaps of the kind Dr Ambedkar imagined.

A shorter version of this article first appeared in the Mumbai Mirror, Bangalore Mirror, the Ahmedabad Mirror and in the Pune Mirror on Friday, 18 May 2012.

Someone To Watch Over Me

2012-05-04T02:17:40Z

It’s a vision from hell or, at the very least, from Nineteen Eighty-Four, Brave New World, The Handmaid’s Tale or Fahrenheit 451. An award-winning film is slated for its television premiere. At the last minute, the Ministry of Information & Broadcasting — it’s hard to think of a government authority with a more quintessentially dystopian moniker — pulls the plug and insists the telecast be moved to a late-night slot. We must protect our children, we are told.

]]> The Dirty Picture, loosely based on the life of the South Indian film actor Silk Smitha, won three National Awards, three Filmfare Awards, six Screen Awards and, for the telecast, 56 censor snips (36 suggested by the producers and 22 by the Censor Board). It was scheduled for a telecast at noon and 8 pm on 22 April with what our Censor Board calls a U/A certificate, more or less equivalent to the PG-13 certification abroad: unrestricted public exhibition, with parental guidance advised. A day before the telecast, our paternal-minded I&B ministry wrote to Sony TV, advising them to follow the Censor Board’s recommendation to reschedule the telecast to 11 pm.

Why? Because, according to the mutton-headed mandarins who decide these things, there is much in this film that might “deprave and corrupt” our impressionable children; that there is no way to shield our children from such harmful material; and because the law says so.

This law is the Cable TV Networks (Regulation) Act of 1995, and the Cable Television Networks Rules; specifically Rule 6(5) which says that “programmes unsuitable for children must not be carried in the cable service at times when the largest numbers of children are viewing.” Applying this Rule to Sony’s telecast of The Dirty Picture is beyond legal sophistry; it is downright dishonest. The film was re-cut for television, and re-certified, from an adults-only certification to a certificate that permits unrestricted public exhibition though with that small advisory suggesting parental guidance. The I&B ministry’s directive and the Censor Board’s recommendation both render this very specific certification utterly meaningless. Lost in translation is this: that neither the Ministry nor the Censors actually trust a single parent and therefore have taken the “parent” out of “parental guidance”.

What both the Ministry and the Censor Board seem to overlook are the other rules. Rule 6 is something called the “Programme Code”, and it contains many prohibitions. Some of these are truly delectable, others merely ridiculous. Rule 6(a) for example prohibits any programme that “offends against good taste or decency”. I have no idea what this means. As far as I can tell, about 99% of our soap operas fall foul of this exalted standard. Good taste in what? Clothes? Make up? Mangalsutras the size of railway tracks at Dadar Terminus? What is ‘decent’ about stereotyping communities, families and relationships? Many of these soaps seem to be nothing more than a form of emotional pornography, delving in excruciating voyeuristic detail into the minutiae of private lives. None are banned.

Then there’s Rule 6(j), an embargo on programming that “encourages superstition or blind belief”. That should account for another range of programmes. My favourite is Rules 6(m), the ultimate no-no: nothing that “Contains visuals or words which reflect a slandering, ironical and snobbish attitude in the portrayal of certain ethnic, linguistic and regional groups”. Slandering? Ironical? Snobbish? How do these words even find their way into a statute?

But wait. Rule 6 also tells us what cable operators should strive for, and it is “to carry programmes in his cable service which project women in a positive, leadership role of sobriety, moral and character building qualities.” Note that this is applicable to cable operators, not broadcasters; and Sunil, the character in Suketu Mehta’s Maximum City, carries programmes of a very different stripe from what this law requires. Sobriety, moral and character building qualities are not the highlights of these transmissions.[^1]

[^1]: “It starts raining heavily, out of season. “Because of our sins,” reasons Sunil. “Even God doesn’t accept Bombay. God made the world, but he doesn’t accept Bombay.” And Sunil certainly knows about sin. On Wednesday, Friday, and Sunday, Sunil will broadcast a pornographic film on his cable network. The requests for porn often come from his female subscribers.”

The I&B Ministry and Censor Board statements and directives mean only this: that Indian parents are irresponsible and cannot be trusted to look to the welfare of their children, and that the Ministry and the Censor Board are, therefore, by some statutory figment, in loco parentis. Silk Smitha, Nylon Nalini, Poplin Pushpa and others with fabric-ated screen names are supposedly dangerous — imagine Lycra Lalitha (with a detergent, perhaps?) or Khadi Kavitha — and depictions of their lives will instantly turn a teenager into a sex fiend. Terylene Tulsi, however, is wholesome, never mind the subliminal messages about female identity and marriage, society, class, caste and hidebound values.

Both the Ministry and the censors miss something fundamental: children do not need television to see movies. They’re accessible on the Internet. And with many set-top boxes allowing TiVo style recording facilities, the time of the telecast is irrelevant to almost everyone except advertisers. The control freaks in government are technological dinosaurs caught in a time warp, an age when entire families would congregate to watch the latest episode of Ramayana. No kid today wants to sit down with nana-nani/dada-dadi or puppa-mummi to watch some textile-nicknamed actor’s shimmying rump. The telecast paladins would do well to acknowledge that our children today are a very savvy lot — they’ve got the uncensored version, minus the 56 cuts. This isn’t just a certain social class either: just look at the proliferation of satellite dish antennae across the city from high rises to slums and chawls.

Note to said dinosaur: look at the technology. Your law is obsolete. Your thinking is obsolete. You are obsolete. Obsolete, redundant and irrelevant. So please stop shouting in the wind. If you think you can actually control our viewing, perhaps it’s time to wake up and smell the cappuccino.

Restrictions like these, whether they come from ministers or college professors, are futile. These matters are best left to parents. They have many options. Like using the power button. Or the child-lock feature now standard on almost all TV sets. For those who believe that television is the devil’s handiwork, it’s simpler still: don’t keep a television set. And if that doesn’t help, try the simplest solution of all: don’t have children.

A shorter version of this article first appeared in the Mumbai Mirror, Bangalore Mirror, the Ahmedabad Mirror and in the Pune Mirror on Friday, 4 May 2012.

The Power Of One

2012-05-03T09:07:32Z

When that voice boomed through the school, even at the noisiest of times, everybody listened. By her desk in her small cabin — not for her the large and plush corporate-style offices; this one could barely seat three visitors — there was always her handheld mike and she would swivel around and thunder her will.

]]> People obeyed. But this was never out of fear, because this wasn’t a military establishment or a prison nor was it like one. This was a school and the students could be particularly boisterous. She ran the school with complete focus, a determination that was often bewildering for its resilience, and yet, behind that apparently strong hand was, more often than not, the lightest of hands.

Shirin Darasha wasn’t just a teacher or even just a principal. She was the teacher and the principal, completely sui generis, non pareil, like no other. From Bombay International where she was a teacher she came to JB Petit as the principal. Her appointment to that post was a gigantic leap of faith, an especially enlightened call well ahead of its time. She transformed that school in ways that people did not think possible, often battling alone and against formidable odds, and turned it into something very special, very unique.

She did not teach me; it is a privilege I always missed. But she taught both my daughters and for that my gratitude is beyond words. I do not remember a day when either Aditi or Shyamali were ever unhappy in school, or didn’t want to go to school. Or if there were such days none of us remember them, for they are eclipsed by all the other days. It wasn’t just a single generation either: at least two, perhaps three, generations of students passed through her school.

This is the stuff of legend: transforming lives. Not just one, but the lives of an entire school, and across generations. A school for girls — she would have hated that, so all right, young ladies — JB Petit must have come with an enormous amount of baggage. Cultural differences, the entrenched societal attitudes to women, their role in society, the common perception of women somehow being second to men. For Shirin, this was just about as repellent as you could get. Women, she often argued, were not just equal to men; in many ways they were better. Perhaps it was her training at the East-West Center in Hawaii but very likely more her own mind that guided her hand. The result was astounding. You can still tell a JB Petit student from a crowd. That’s the woman who isn’t cowed. That’s the one who isn’t afraid to learn, to ask. That’s the one who has confidence in herself and the courage of her convictions. That’s the one who, if she sets out to change the world, will.

It wasn’t just students. Her teachers were as much her students as the children and there were, I believe, many innovations in teacher-training she introduced that weren’t even attempted elsewhere. Again, the transformations were astounding: as one teacher said, “she opened new worlds for us. She showed us what we could do with the kids but more importantly what we could get from the kids. She opened doors and walked us through them into a world we had never imagined.”

And then there were the parents, many of them never students in the school. She altered their lives, too, through the children they entrusted to her care. We did things that no parents in other schools did: those nerve-wracking journals and projects of hers, for one, enterprises that involved entire families, regardless of background and education, getting down and getting their hands dirty finding material on stuff as far removed from our worlds as you could get. One day it would be China and the Imperial Dynasties. Another time, perhaps Darfur and Sudan, Bangladesh, Biafra, the Holocaust. The girls revelled in their knowledge and pitied us our ignorance. What choice did we have except to try and keep up, to try and learn as well?

Walking into JB as a parent was sometimes intimidating. This was an explosive kind of place, from the fearsome Appu and, later, the imperturbable Patil, at the gate to the riot of stuff that seemed to leap off almost every wall, the periodic overloud clang of the bell, and often the deafening cacophony of the children. If it was quiet, we knew it would not last long. There was far too much energy here, too much joy, too much noise just waiting to be made. There was freedom here, of a kind you didn’t often find elsewhere, and many of us came to understand that it was this freedom that made the school special for everyone, for our children and for us as parents.

That freedom showed through in different ways. The work the children did, the way they argued, the way they fought for what they believed was right. No JB parent could get away with the simple because-I-say-so. We tried, and our failures were spectacular.

This freedom shone in JB Petit’s annual festival of plays which, for many years, followed a trajectory that set it apart. There used to be huge shows at Patkar Hall, magnificent productions with commercial-grade stage sets, the highest level of performances and production values that would put any commercial play to shame. Pearl Padamsee — another delightful character in the history of JB Petit — and Shirin would bounce around, shouting, cajoling, berating, applauding. Everything was done by the teachers and the students with just a little help from the outside. We went to them all, every year, and always wondered how does she do it? How does she get these full-throated, uninhibited, razor sharp performances from these kids, performances that might compete with the best anywhere in the city?

It was a simple thing: she led, and everyone followed. Of course there were misunderstandings and hiccups, and she had her blind spots (sports being one), but it is, I think, impossible to find a teacher or a parent or a student who passed through that school who does not have memories of pride.

I knew her differently. She was a close friend of our family — a matter of perennial concern to our daughters, not that Shirin ever let that get in her way — and my sister, also from the school, and I have many memories of the times we spent with her. In the mid and late 1970s, we had a house in Lonavla, at the time when Lonavla was still a hill station and not mostly the slum on a slope that it is today, and Shirin often came with us for the weekend. We’d jam ourselves into a Fiat, six or seven of us — don’t ask how we managed to fit everyone plus luggage in the boot plus stuff on the roof rack and still make it there — and swerve through insane traffic for three or four hours. Once there, she’d sit in a deck chair on the broad terrace, basking in winter sunlight, or, during the rains, sit inside and watch the fingers of mist crawl through the house and the waves of rain further out. We teased her quite mercilessly, I think, and my memories of those days are only of her loud laughter, and that of my parents.

Her other great love was New York and there was a time when she’d try and make what we called her annual pilgrimage. She had close friends there, to whom she was utterly devoted and it never occurred to her that she might want to go elsewhere. By itself, with its plays and streets and lights and energy, New York was enough. Very likely she saw a resonance in it, in those days, something that reflected her own thinking and attitudes.

The one thing we did, however, very quickly learn was that it was always a slightly unnerving business to go to a movie with her. Especially one with Robert Redford (her friend Larry from New York was his spitting image) or Paul Newman in it; worse yet if it had both. She’d squeal and cry out in delight every time they were on screen. And she wasn’t going to bother being quiet about it either. And if the movie didn’t have either of these gentlemen and she didn’t like it, she made that known too, with equally unbridled enthusiasm.

The last few years were unkind. We were unkind. The parting from JB Petit wasn’t as it should have been, never mind the reasons. For her, it was the loss of an only child. She’d found faith a few years earlier in Buddhism, and it was perhaps that that kept her going; that, and as she got the hang of it, the Internet and email. But while a faith might provide sustenance of a kind, technology is an always a poor, sad companion, usually only a persistent reminder of loss. Her health deteriorated and the last year or so was particularly grim.

I do not know how to value a life like hers. I am sorry for many things: for not seeing her more often than I did, for not pushing her enough after she left the school to try other things. The regrets are many and the sorrows are profound, and the sense is worsened with the realization, perhaps too late in coming, of what we gained, and of what she gave, without measure, without asking. She used to speak of values. She instilled them in our children who were her children, in teachers, in parents. These are immeasurable, immutable: excellence and the need to constantly strive for it. To have, always, an encompassing world view. The importance of empathy, kindness, understanding, justice and compassion. To see beauty where others cannot. And intelligence: an intelligence of a very different kind — an intelligence about the self, a spiritual intelligence, the intelligence of tolerance and understanding, a cultural intelligence and above all, an intelligence about what it means to be a woman in an increasingly confused world. Yes, as parents we made mistakes with our children and there will be a time later to right those matters. But sending them to JB was not among our mistakes. It was the best thing we ever did and if we could we’d repeat it.

It is too late to say goodbye, farewell, adieu. But this much is necessary. Wherever you are, Shirin, thank you. Thank you for your friendship, for the many happy memories of peace and laughter and joy in my childhood and later, and for what you did for our children and for us.

The ultimate lesson. One person. Countless transformations.

The power of one.

In Memoriam: Shirin F Darasha. d. 2 May 2012

Video Killed The Media Star

2012-04-27T01:09:07Z

O tempora! O mores! Thanks to the nature of these things, we can no longer say what we all know, and are forced into the needlessly elliptical. Therefore and thusly: the recent demise of the political career of a government spokesperson on accusations of his — for want of a better phrase — infelicitous conduct caught on some dull security camera videotape has generated all manner of controversies, from protestations of this being an entirely private matter to accusations of besmirching high office.

]]> No crime has been committed. There are victims, perhaps — family and friends — but they are silent and their concerns are indeed private and not for public delectation. Beyond that, something like this should have no bearing whatever on the person’s work, capability or — forgive me this — the discharging (so to speak) and performance (so to say) of functions and duties, even if as the redoubtable Shashi Tharoor famously wrote, we now know what an Act of Congress really means.

To every man his closeted skeletons; some more than others. We all have baggage, but when we volunteer to enter public life, in any capacity, some of that has to be left behind. And along with it, many rights and entitlements, the most important of which is the level of privacy we so take for granted as private citizens. The latter’s rights are well protected by judicial pronouncement; those of the former far less so; and in that class we find actors, performers, bureaucrats and politicians.

The public is much more forgiving of politicians’ indiscretions in India than it is abroad, as Messrs Clinton, Sarkozy and others have found. There is, especially in America, a demand for moral rectitude that borders on the ridiculous, the more so when compared to the absence of any such great standard in general society.

Sex and politics has always been a combustible pair. The 1963 Profumo scandal in England for example. John Profumo, then Secretary of State for War, had an affair with Christine Keeler, who was the mistress of someone said to be a Russian spy. Profumo lost his job. Harold Macmillan’s government never recovered from its battering; the Conservative Party lost the next election.

It was not for the affair that Profumo was sacked, but for lying about it to the House of Commons. Lying to protect privacy almost always follows the conflagration between sex and politics, and it is this that is the most egregious. A life lived in the public eye demands that you stick to the straight and narrow and also that if you do stray, you do not attempt the lie you might well get away with in private life. Lord Denning, who enquired into the affair, produced a book-length 70,000 word best-selling report saying that Profumo’s greatest sin was that he lied to Parliament. According to him, it was not so much the issue of whether Profumo had committed adultery as whether his conduct led the ordinary man to believe that he did. That, in short, is what seems to matter: not legality, not morality, but public perception. And the public is entitled to proceed on mere suspicion. As that incredibly funny duo, Flanders and Swann, said, parodying Denning, nil combustibus profumo: there’s no smoke without a fire.

The US standard, since New York Times v Sullivan[^1], is even higher. To prevent disclosure about public official and public figures on the ground of defamation, one must prove actual malice or negligence, and it doesn’t matter whether the reportage is true or false: i.e., the person seeking the gag must prove that the reporter or paper knew the report to be false and acted in “reckless disregard” of the truth, or was negligent. This is an onerous standard; few succeed. In the days of the Internet, where blocking or taking down one site only triggers another one mushrooming elsewhere, is also futile: it simply cannot be done. The Internet has no editor. That is at once both its greatest strength and its biggest weakness, and trying to trammel it is like shouting in the wind.

[^1]: 376 US 254.

What this means therefore is that once you are in public life, different standards and rules apply to you. You cannot take the L out of public and expect to get away with it; if you do choose to wear different hats, be sure to put one over the camera; and Rule No.1: don’t get caught.

This article first appeared in the Mumbai Mirror, Bangalore Mirror, the Ahmedabad Mirror and in the Pune Mirror on Friday, 27 April 2012.

The Pushmi-Pullyu In Law: The RTI Act

2012-04-20T02:53:49Z

Hugh Lofting’s Dr Doolittle children’s books had many wonderful imaginary creatures. One of these was the pushmi-pullyu, a gazelle-unicorn hybrid with a head at either end of its body. When it moved, both ends headed off in opposite directions.

]]> Our RTI Act is beginning to resemble the pushmi-pullyu. In October last year, a Shiv Sena MP introduced a private member’s bill seeking to dilute the RTI Act with an amendment that required every RTI application to give reasons which would be tested for sufficiency. The bill was absurd. Of the post-Independence statutes, the RTI Act is the one that has had the most profound impact on governance. Not one of our many public disclosures — what we love to call “scams” — would ever have come to light but for this Act.

When laws are designed to give power to the people, they also create uncomfortable stressors for those in authority; the RTI Act more than most. In its early days, it was embraced enthusiastically by judges who tended to see it as an important check on errant governments and arrogant bureaucrats. With the judiciary itself the subject of RTI queries, noises are being made about the Act being ‘excessive’. It is not.

In an August 2011 judgement, the Supreme Court spoke of “indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption)” and said these “would be counter-productive”, adversely affecting administrative efficiency and “getting bogged down with the non-productive work of collecting and furnishing information.” It saw possible abuses of the RTI Act, obstruction of “national development and integration”, destruction of “peace, tranquility and harmony among its citizens” and “oppression or intimidation of honest officials striving to do their duty.”[^1]

[^1]: Central Board of Secondary Education v Aditya Bandopadhyay and Others, (2011) 8 SCC 497, para 67

“The nation does not want,” the Court said, “a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties.”

This is an astonishing statement, not least because it is wrong in nearly every aspect. Shailesh Gandhi, one of our Information Commissioners, a man who sold his thriving business to dedicate his life to the freedom of information movement, of which he is a pre-eminent member, decided to do a reality check. Massaging some figures — the number of RTI applications, employees, average time spent and so on — he concluded, using the Supreme Court’s phrasing, that no more than 4.6% of government officials would spend more than 4.6% of their time on answering RTI queries.[^2]

[^2]: What Gandhi said was this: I decided to do a reality check. According to the most optimistic estimate not more than 1 crore RTI applications are likely to be received in 2012 in all the public authorities in the States and Central Government together. The average time to attend each RTI application would be less than 3 hours. This means no more than 3 crore hours spent by all officers. If we assume that an average government employee works for just 6 hours a day for 200 days a year, it would mean he would work for a total of 1200 hours in a year. 3 crore hours divided by 1200 hours is 25000 which means 25000 employees would be required full time. The Central Government and all State Governments have about 1.2 crore employees totally. This means that the total time spent by Government employees would be 0.208%. (25000 divided by 12000000=0.208%). To put this in the idiom of the Supreme Court’s observation, no more than 4.6% officials are spending 4.6% of their time presently on giving information. The Supreme Court’s observation has no connection with reality.

Last week, during the hearings on media guidelines on reporting of sub-judice matters, the Chief Justice of India, heading a Constitution Bench, too said that RTI applications were “going beyond all limits” and said that while it was a “good law”, there must be limits to it. It is hard to agree.

The dynamics of the RTI Act are misunderstood. Most assume — including, it would seem, some judges — that this “information” is something that an authority must sit on till demanded under a properly filed RTI application; and then the authority must get to work collecting and collating the information sought. This is correct, so far as it goes; Sections 4(1)(b) and (c) of the RTI Act require this. But no one seems to have paid much attention to Section 4(2) of the Act, which requires every public authority to constantly endeavour to voluntarily disclose that which is a citizen’s right to know “so that the public have minimum resort to the use of this Act to obtain information.” Implement this, and see the number of RTI queries fall.

What should be our exemplars? Florida’s “Sunshine Law” that dates back to 1967 and has its roots even earlier, from 1909, requires wide public disclosure with very few, narrowly defined exceptions. There are many cases filed regarding this law; but this peculiar notion that sheer numbers of queries constitute an ‘abuse’ of the law is not among them. Where do we need this law? In nearly every aspect of life, from planning proposals and land deals to government contracts and the issue of licenses, and more. It is difficult to think of a situation where an RTI query is not required.

Even when it comes to reportage of matters in court, the US model has enormous openness. The recent three-day hearings before the US Supreme Court on Obama’s health care law are one example: verbatim transcripts were available in the media the very next day.[^3] So were audio recordings, including those of Justice Scalia asking whether being asked to choose between “my life and my wife” was viable.[^4] Later, with typical petulance, he asked if he was required to read all 2600 pages of the files. The media reported this. The public comments that followed show no great delicacy.

[^3]: Day 1 | Day 2 | Day 3

[^4]: See the Day 3 transcript

Courts also forget how the RTI act is abused by the authorities. Every authority makes every attempt, however absurd, to withhold information. Reports of government-appointed panels and bodies are withheld. The CIC orders disclosure, rightly; as it has just done on the Antrix-Devas deal, another matter sought to be shrouded in secrecy. In a Kafkaesque perversion, before courts and tribunals, authorities often refuse to disclose information saying that the citizen should, instead, “file an RTI application”. Translation: before a court, I will refuse to divulge information and say any old thing that pops into my head. Even though this is the same information I am required to give you under the RTI Act.

The RTI demands public disclosure not for any great joy in accumulating paper, but for greater accountability and better governance; and it is not for any authority to decide whether a query is “related” to these issues. After all, knowledge — and therefore information — is power.

A shorter version of this article first appeared in the Mumbai Mirror, Bangalore Mirror, the Ahmedabad Mirror and in the Pune Mirror on Friday, 20 April 2012.

Tadoba Forest

2012-04-12T07:07:08Z

Forest in Tadoba, the Tadoba-Andhari Tiger Reserve, Chandrapur, Maharashtra, India

Live And Let Die

2012-03-30T02:52:46Z

He has been on death row for years. Now, three days before he was scheduled to be put to death, the Central Government has stayed his execution. This particular case, Balwant Singh Rajoana, seems to be peculiar. He was convicted for the assassination of Punjab’s Chief Minister Beant Singh in 1995. He chose not to represent himself. He still does not seek a reprieve. He says he has no grounds to do so, and has no faith in our system. Instead, today, it is the ruling party in the state that urges clemency.

]]> This political tug-of-war — and it is entirely political — distracts from the question we should be asking ourselves: is it time to abolish the death penalty?

In a few weeks, it will be 32 years since five Supreme Court judges in Bachan Singh v State of Punjab held the death penalty to be constitutional, but limited it to the “the rarest of rare cases”, saying “for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”[^1]

[^1]: AIR 1980 SC 898

When are the alternatives foreclosed? Are they ever foreclosed? Bachan Singh was the second constitutional challenge to the death penalty;[^2] and a later case, arguing that Bachan Singh left open the door for periodic review, also failed.[^3] In a 1998 paper, Dr S Muralidhar argued that though the trial court must draw up a “balance sheet” of aggravating and mitigating circumstances and only impose death where there is “no alternative”, this seldom happens.[^44] Invariably, the reasons “turn on the nature of the crime or on the role of the offender in the crime. The background of the offender and the possibility of his reformation or rehabilitation is seldom accounted for.” This is precisely what Bachan Singh did not have in mind.

[^2]: Jagmohan Singh v. State of Uttar Pradesh, AIR 1973 SC 947

[^3]: Shashi Nayar v Union of India, 1992 1 SCC 96

[^44]: Hang Them Now, Hang Them Not: India’s Travails with the Death Penalty; Muralidhar, Dr S; International Environmental Law Research Centre, Geneva, Switzerland; published in 40 Journal of the Indian Law Institute, p.143 (1998)

The arguments against the death penalty (for its abolition) appear to me to be compelling. The Asia Pacific Human Rights Network points out that the recent trend, though not universal, is toward abolition, including in international treaties to which India is a signatory, in the establishment of war crimes tribunals for Rwanda and former Yugoslavia, and the International Criminal Court. In our system, too, there is the same trend. The 1983 Machhi Singh case, of truly horrific contours, apparently watered down the earlier rulings; it actually set out five categories, and if the case fell within any of those, a death sentence was held to be justified.[^4] More recently, in 2008, two judges of the Supreme Court in the Swamy Shraddananda case disagreed on the sentence, and it was referred to a larger bench.[^5] Here, the Supreme Court acknowledged that the manner in which these sentences were being handed down was uneven, that there is “the subjective element” and sentencing “depends a good deal of the personal predilection of the judges”. It spoke of a “want of uniformity” and a “marked imbalance”, lopsidedness, a poor reflection on the criminal justice system, and expressed its reluctance in confirming the death sentence in that particular case. Instead it recommended a life sentence, for the entirety of the convict’s life.

[^4]: Machhi Singh And Others vs State Of Punjab, AIR 1983 SC 957

[^5]: Swamy Shraddananda alias Murali etc vs State Of Karnataka, AIR 2008 SC 3040

The largest issue with death sentencing is the sheer irreversibility of the process. If a mistake has been made — and this is not unknown — there is no way to set the clock back, to make reparations. Arguably, this is every judge’s worst nightmare: what if I made a mistake? In arguing for and against at the theoretical level of justice and jurisprudence, we forget the terrible, frightening intimacy of the issue.

Shortly after he retired, Justice Lentin, one of the Bombay High Court’s most humane and just judges, wrote a sparkling memoir of his life and career as a lawyer and as a judge. For the most part a witty and endearing read, it contains one passage of heart-rending pathos. The young Lentin, as a lawyer, defended a man accused of murder. He was found guilty and sentenced to death. While awaiting execution, he sent for Lentin. Visiting him in Thane Jail for the only time in his life, Lentin recalls:

But he was found guilty and sentenced to death. Head high, proud and erect, he took it with bravado, unflinchingly.

While awaiting execution, he sent a message through the jailer that he wanted to see me. It was a forbidding prospect. Again came the message; he wanted to tell me something and that this would be his last request before he was hanged a few days hence. I could not refuse. I went to Thane Jail for the first and the only time. Gone was the high head. Gone was the pride. Gone was the erect bearing. Gone was the bravado. Gone was the huge hulk of a man. Instead, I found a broken man, a crushed, stooping figure who could but whisper and who spent the last few hours of the life left to him reading the Gita he had never read before, praying to a God he had never believed in. I determined never to visit anyone in jail again. I never did. I determined never to do a murder case again. I never did.

This resolve I carried to the Bench. I never tried a murder case and therefore never imposed the death penalty. Frankly, I was afraid to do so. For that is a penalty which can never be recalled.

Lentin did not advocate abolition. But his words raise more basic questions. Can a society that allows the killing of human beings call itself civilised? Should retribution have any place at all in any system of ‘justice’? This is not the world of gladiatorial combat with its thumbs-up/thumbs-down crowd-pleasing decision making. This is not entertainment. In any truly civilised society, whether to allow a man to live or to execute him is something that should be decided not by emotion and politics but by reason; and if we cannot trust ourselves to reason alone, and if the judges of our highest courts are themselves so often in a moral, ethical and jurisprudential quandary, then that is not a decision we should allow ourselves ever to take.

* A shorter version of this article first appeared in the Mumbai Mirror, Bangalore Mirror, the Ahmedabad Mirror and in the Pune Mirror on Friday, 30 March 2012.*

From Myth To Mandamus

2012-03-23T02:08:31Z

It is a scheme unlike any other: four times the capacity of China’s Three Gorges dam, five times the capacity of similar projects in America, six times that of existing projects in India. This is the Indian river interlinking project, one that four weeks ago received judicial benediction from the Supreme Court.

]]> Linking rivers is not new, even in India. Inter-basin water transfer projects have been completed both here (Beas-Sutlej, Madhopur-Beas, Kurnool-Cudappa, Periyar-Vegai for example) and abroad. What this particular scheme proposes is of another order of magnitude altogether. It has two components: the Himalayan Development project will create storage dams along the eastern rivers, the Ganga and the Brahmaputra in India, Nepal and Bhutan (using the goose-neck in Assam to avoid problems with Bangladesh). Then canals will transfer something called “surplus” water from the eastern tributaries of the Ganga to the west; the Brahmaputra and its tributaries will link with the Ganga, and the Ganga with the Mahanadi. The Peninsular component then sends water from east India to the south and west. The Mahanadi, Godavari, Krishna and Cauvery rivers are to be canal-linked. West-flowing rivers to Mumbai’s north and south of the Tapi are to be linked with more dams. And there are similar proposals for the Ken-Chambal, and separately for west-flowing rivers along the Western Ghats.

Similar proposals have been flying around for a very long time. Arthur Cotton proposed something like this in 1881. The British, determined engineers to the last man, listened politely, took it seriously and rejected it on scientific and technical grounds. In 1972, during Indira Gandhi’s environmental putsch, Dr KL Rao came up with another fantastic idea: a 2640 km long Ganga-Cauvery link. This involved lifting water some 12-15 metres using an estimated 7000 MW of power, all to irrigate only an additional 4 mn hectares at an underestimated cost of Rs.12,500 crores (about 150,000 crores at 2002 prices). The Central Water Commission found it unviable. Five years later, Captain Dinshaw Dastur proposed a 4200-km Himalayan canal from the Ravi in the west to the Brahmaputra and beyond in the west; and a another 9300 km “Garland” canal covering central and south India with several dams and pipelines in between. The estimated cost (1979) was 12 million crores, Rs.70 million crores at 2002 values. The project was found by several experts to be technically unviable.

Charles Kingsley’s fairy-tale, The Water Babies found an echo in India’s bureaucracy: we got the water-babus in the National Water Development Agency. The operating premise seems to be this: some areas have too much water. Others have too little. Solution: link them and we can all live happily ever after. Successive governments and one President continued to push it quietly. In 2008, the National Council of Applied Economic Research produced a study outlining the so-called benefits of this project.

Matters would have remained there but for the recent 27 February Supreme Court order in a PIL (“In Re: Networking of Rivers”). Based to a very large extent on the NCAER report, the SC order mandates the project. It directs the setting up of a special committee on river interlinking and what this committee must do. The order is not worded as a request for the Government’s consideration; it is a peremptory command, a mandamus[^1] and it even allows amicus to file contempt proceedings if the directions are not followed.[^2] That is serious.

[^1]: In Re: Networking of Rivers, Para 66

[^2]: In Re: Networking of Rivers, Para 64(XVI)

The order raises far too many questions, none of them comfortable. Should the Supreme Court — or any court — get into matters which are purely within the realm of policy? River linking is about water-sharing and riparian rights. Inter-state disputes and treaties over these rights are matters to be resolved by governments. Our courts have always held that they should not venture into the “treacherous” shoals of public policy. When asked to examine safety and environmental issues in large projects, courts have always said that they are unqualified to decide technical matters and that these are best left to “experts”. What has changed now?

Here’s the problem: the entire proposal proceeds on faulty assumptions: that there is “surplus” water in river basins, that this water is clean and usable, that population pressures and industrial growth have had no impact on rivers, that the unmeasured costs of displacement, environmental damage and rehabilitation are outweighed. There may have been a surplus a century ago, but more contemporary studies show this is no longer true. There is no systematic analysis of the enormous displacement and rehabilitation issues involved, the loss of forest cover (the Panna Tiger Reserve certainly seems destined for destruction) and the ensuing environmental catastrophe. The technical information is not in the public domain. But there is ample material pointing to potential pitfalls: studies from universities and scientific bodies here and abroad — the University of Illinois at Urbana-Champaign, the University of Michigan, SOAS and IIM Calcutta, and more. None of these have entered the thinking.

Shukla and Asthana of the University of Illinois at Urbana-Champaign, say this:

Proposals to interlink the rivers of India also entail massive economic, ecological, and social costs. At the time K.L. Rao first proposed the project decades ago, these watersheds had more water, less pollution, lesser deforestation, and floods that were not so severe or frequent as now. Since then, the Indian population has increased enormously; efforts to aid those afflicted by the problems of displacement and rehabilitation that inevitably accompany such projects must be taken as a prerequisite. Increasingly, the entire socio-economic strata of affected people are more aware of their rights and know how to protest, agitate, and demand their due. Such changed circumstances are bound to create impediments to the execution of the project and offer stiff resistance to it. The involvement of global capital will have its own complications. In recent years, popular awareness, participation, and empowerment in evaluation of such projects has created an awareness of the merits and demerits they offer, along with recognition of alternative solutions. These conditions present a number of challenges.

Even managing water within one river basin can bring states into conflict. Envisaging the interlinking of ten rivers passing through twenty-five states and involving issues of riparian rights between competing nation states may indeed be all set for a modern Mahabharata fought over water. In India, ground water user rights are provided to land owners and there is a general notion that surface water is for consumption locally by user right. Riparian rights are seldom honored. Given this socio-cultural view of water rights, other realistic water sharing scenarios have the potential to exacerbate conflicts, inflate water problems, and present nearly insoluble challenges to interstate and inter-country water sharing. For example, riparian rights and their enforcement are at the root of the previously mentioned disputes involving sharing Cauvery River waters between Karnataka and Tamil Nadu, as well as many of those amongst other states of the nation. If Indians are unable to solve conflicts arising within a basin to share a river, large-scale inter-basin transfers of water by interlinking rivers may lead to water conflicts on an unprecedented scale.

The 2007 University of Michigan study is even more emphatic. It assesses the hydrological and environmental impacts of Ken-Betwa Pilot Link, points to the massive bio-diversity loss, the incorrect assumption of the Ken as surplus basin and the Betwa as a deficit basin. It also indicates the likelihood of the complete loss of tiger habitat in and around the Panna Tiger Reserve, and that the project feasibility study cheerfully states that there will be “nil” impact on wildlife.

Oddly enough, the SC judgement says that if properly implemented “there shall be hardly any financial strain on the economy”.[^4] It’s unclear on what this is based. The SOAS study puts the project cost at upward of US$200 billion, and another puts it at over Rs.5 trillion. Far from the idyllic vision of a “garland” of pristine, flowing rivers, another analysis predicts a less appealing garland of sewers, not so much drought/flood relief as drought and flood translocation. Clearly, the journey from utopia to dystopia is ensured only by myopia.

[^4]: In Re: Networking of Rivers, para 47

The order cries out for review. In a 2005 article entitled “Skinning a Cat”,[^5] Justice Srikrishna, one of our most highly regarded judges, made an impassioned plea for judicial restraint, for putting the brakes on. Those are words of caution and reason and we would all do well to heed them when we talk of these grand products of bureaucratic hubris and madcap engineering.

[^5]: (2005) 8 SCC Journal 3

* A shorter version of this article first appeared in the Mumbai Mirror, Bangalore Mirror, the Ahmedabad Mirror and in the Pune Mirror on Friday, 23 March 2012.*

The Good, The Bad And The Bovine

2012-03-16T03:46:11Z

It would be comic if it wasn’t so insidious. Karnataka proposes to pass into law the Karnataka Prevention of Slaughter and Preservation of Cattle Bill. This isn’t just to ensure the health of livestock (it does exactly the reverse) or control slaughter-houses. It targets specific communities and groups, particularly the poor, Dalits and Muslims.

]]> The bill was introduced into the legislature in 2010, quickly withdrawn by a bumbling government, and then slipped back in. The 2010 bill supplants an earlier — and fairly innocuous — 1964 bill but goes well beyond: it expands the definition of cattle to include all bovines and bans their killing regardless of age and fitness as for draught, breeding or milk. Worse yet: the 2010 act puts beef on par with crystal meth and cocaine — the mere possession of it is to be a criminal offence. Transporting cattle for slaughter is also a crime and if you’re heading in the direction of a slaughter house — which is pretty much in any direction — your vehicle can be confiscated. The penalties in this Bill defy every standard in law and trespass on common sense. Seven years for cattle slaughter; a cognisable offence. But causing death by negligence, as this paper pointed out last week, only invites two years’ jail time— as we learned from the Bhopal verdict. Karnataka cows are truly holier than thou.

The now-beleaguered Yedurappa offered a bedazzling explanation. “Cow slaughter ban is in force in Cuba and Iran,” he said in 2010, and went on, with all the emphasis at his considerable command, to outline the therapeutic advantages of a daily quaff of a holy cow’s micturition; divine bovine urine.

This is not about dietary preference, the conditions in which abattoirs function under the blind eyes and open palms of licensing authorities, or of smuggling and illegality. Governments are notoriously lethargic in implementing animal welfare laws, and a law that sets stricter standards and better supervision would be reasonable. But to selectively choose one and ignore others — there is no similar act about sheep, goats, fish or fowl — is less about animal rights than right-wingery and reactionary politics. It is a surreptitious destruction of entire communities by undermining their lives. Beef is food to many; not coincidentally, Dalits and Muslims. Cattle are also livelihood in many other ways: leather, for one, but also other non-obvious uses such as film, nail varnish, candles and buttons. In fact, it’s the leather industry, with exports estimated well to the north of Rs.8000 crores annually, that most extensively depends on cattle produce. That the Karnataka bill was always aimed at non-Hindus became clear when the Home Minister proclaimed that the bill was “in tune with the sentiments of the majority community”, and followed the BJP’s election manifesto. Yet we do not see these right-wing demagogues roaming around unshod, unbelted or unbuttoned (though far too many are unvarnished).

It’s true that anti-cattle slaughter legal regimes exist elsewhere. 23 states have some sort of anti-cattle-slaughter legislation. Delhi, Gujarat, Madhya Pradesh, Punjab and Rajasthan have total bans. Some states have severe penalties, though none as heavy as Karnataka. And Article 48 of the Constitution sets out a peculiar “directive principle” of State policy: to take steps for, among other things, prohibiting the slaughter of cows and calves and other milch and draught cattle. The Karnataka Bill zooms into the legislative stratosphere and joins Gujarat there when it makes mere possession an offence; but the Karnataka Bill’s penalties seem harshest.

The bill claims support from the 2002 Report of the National Commission on Cattle, another peculiar document. It quotes Gandhi and Vinobha Bhave and starts by saying the Commission sought benediction from the Kanchipuram Shankaracharya (twice).[^1] A foregone conclusion, the Commission’s recommendations included extensive bans and even the inclusion of such bans as fundamental rights.[^2] This bizarre proposal went through despite the fact that one of those who responded to the Commission’s questionnaire was a then sitting judge of the Bombay High Court, with a dissertation on the cow as a Vedic symbol, and who, while generally in support, pointed out that any such proposal was anti-secular and therefore unconstitutional.

[^1]: National Cattle Commission Report, Executive Summary, Chapter II, Para 20.3

[^2]: Recommendation 1: “1. The Prohibition for slaughter of cow and its progeny, which would include bull, bullocks, etc., should be included in Fundamental Rights or as a Constitutional Mandate anywhere else, as an Article of the Constitution. It should not be kept only in the Directive Principles or Fundamental duties as neither of these are enforceable by the courts.”

Back in 1958, considering a Gujarat proposal, the Supreme Court said a complete ban was unconstitutional. Mohd. Hanif Quareshi upheld a butcher’s fundamental right to ply his trade or follow his occupation, and did not permit a ban on slaughter after cattle ceased to be capable of milk production, use as draught animals or for breeding. In a 2005 decision, State Of Gujarat vs Mirzapur Moti Kureshi Kassab, a 7-judge Bench of the Supreme Court upheld a complete ban, reversing its earlier position. The reasons range from an examination of constitutional provisions and amendments to the report of a farm scientist.

All the cases before the Supreme Court — there were three different Quareshi cases and several others as well — seem to have been pitched on the argument of a butcher’s fundamental right to do his job. No one seems to have argued that these restrictions affect personal, individual rights. It is one thing to urge that the agricultural or animal husbandry needs of a particular state demand such protection; it is quite another to even ban imports of beef or cattle products. That exposes the reactionary, anti-secular underbelly of such legislations and blurs the line between law and politics. Implicit in the defence of all these legislations is the notion of cows as symbols of religious identity.

The agriculture argument fails simply because there can be no uniform, across-the-board policy of agricultural needs irrespective of local conditions. If Karnataka and Gujarat believe that cow protection is an agricultural necessity, then, equally, one must look to other areas where there is no such necessity (Kerala, for instance) to see if this argument is at all rational. Cattle demand huge amounts of fodder, and looking after cattle — particularly ensuring they don’t consume incredible amounts of plastic in urban environments only to die agonising deaths — is a difficult and expensive business.

Neither the Commission nor any law adequately deals with the problem caused by an aggressive promotion of breeding. Nobody in his or her right mind could support the factory-farming of cattle or the non-humane way they are killed. But it is preposterous to advocate more cattle breeding and yet not provide measures to put them down when they are old, infirm, sick and become a burden rather than an asset. Keeping cattle is expensive, and many of the old hill forts in Maharashtra — Sinhagad is one — have huge populations of abandoned cattle along their highest reaches, left out in all seasons and uncared for.

And let’s not even get started on the problems of climate change caused by such vast amount of methane production (80 million tons per year globally from the world’s 1.2 billion large ruminants). If the hole in the ozone layer reopens over India, we’ll know why.

* A shorter version of this article first appeared in the Mumbai Mirror, Bangalore Mirror, the Ahmedabad Mirror and in the Pune Mirror on Friday, 16 March 2012.*

Ignoble, Ignorant And Unloved

2012-03-09T04:06:03Z

Law, medicine and theology are said to be the three “learned” professions. Of their practitioners, lawyers have always been singularly unloved. They arouse public suspicion — they are, after all, defenders of criminals and the corrupt and, therefore, believed to be tainted by association. They invite derision and contempt: from popular lawyer jokes to real and imaginary accounts of bizarre courtroom exchanges portraying lawyers as people of limitless stupidity.

]]> Theology and law collide in Sir Walter Raleigh’s The Passionate Man’s Pilgrimage:

“Be Thou my speaker, taintless pleader
Unblotted lawyer, true proceeder
Thou movest salvation even for alms
Not with a bribed lawyer’s palms.”

Speaker, pleader, proceeder and bribed lawyers: these are the ungodly. Jonathan Swift was equally merciless when he spoke of “a society of men bred up from their youth in the art of proving by words multiplied for that purpose that white is black and black is white, according as they are paid.” Jeremy Bentham was even sharper: “what the non-advocate is hanged for, the advocate is paid for, and admired.” Even outside court, a lawyer engaging in any sort of debate is always accused of sophistry, of “twisting words”, of chicanery.

By definition, a litigation practice — far more than non-adversarial work — comes with a very great deal of baggage. In court, lawyers enjoy all kinds of privileges and immunity in the things they say and do, stuff that might well be actionable outside court. At the same time, lawyers have very real problems within their own community. Very few have any resemblance to the popular image of a rich, crafty and dangerous individual. Many struggle very hard on a daily basis and work in the most appalling conditions, and are honest, decent people; and some are truly men and women of great distinction.

Lawyers also have another constraint, one of very long historical standing, imposed by tradition and sometimes by statute, and that is the limit on how they must conduct themselves in the public domain as a community. They do not have all the avenues of redress and methods of protest available to craftsmen’s guilds and workers’ unions. Technically, they are not permitted to strike work. The right to form associations and the right to peaceful, unarmed assembly are constitutional guarantees; but for lawyers, and often for doctors, these rights, when they result in stoppage of work, are said to be unjustifiable. The obvious reason is that the result of a lawyers’ or doctors’ strike affects a large number of innocent third parties — litigants and patients — though they bear no responsibility for the issue being agitated. Lawyers have another, even stronger argument against them, and that is that of all professionals they are uniquely placed to access the justice delivery system to address their grievances. Indeed, there is a statutory prohibition against street-level protests: the Bar Council of India’s Rules on Professional Conduct, framed under the Advocates’ Act, 1961 — which govern all lawyers in India — open with this:

An advocate shall, at all times, comport himself in a manner befitting his status as an officer of the Court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an advocate. (emphasis mine)

In August 2007, the Bombay High Court introduced an amendment to the rules that govern its daily business.[^1] This amendment introduced three new rules. The first, Rule 23A, says that any strike by advocates (and that includes an individual and an advocates’ association) in court or abstention from work in protest is an interference with “the administration of justice”. That’s serious stuff. It implies that lawyers who strike can be hauled up for contempt and that in turn might well result in disbarment (the second Rule says that such advocates will be dealt with “in accordance with law”). The most interesting is the third Rule which deals with “exceptional cases where the dignity, integrity and independence of the bar and/or judiciary are at stake”. In that situation, the association heads are to consult with the head of the judicial institution (the Chief Justice or the Principal Judge), whose say is final. At best, a token strike of one day may be permitted. Correctly read, this exception is limited to situations where the judiciary as a whole is under assault; and it is an exceedingly narrow exception.

[^1]: G.N. No. G/Amend/12387, dated 30 August 2007. Maharashtra Government Gazette Pt. IV-C, Pg.334

The Practice of Law :: Nice bowling action, but is it the justice delivery system? Image courtesy IndiaTVNews.com

The recent violent conflicts between lawyers, police and the media in Bangalore are therefore unfortunate, and for any number of reasons. The causes that precipitated these clashes (there appear to be two separate ones) are entirely irrelevant.[^2] What matters is the way the causes were addressed, and the result; and the result is that we have alienated the police, the media and even our fellow lawyers elsewhere.[^3] The judiciary — and that includes lawyers — is the intelligence that keeps the machinery of government running as it should. It is critical to governance, social stability and economic balance. By taking to the streets, especially when other recourse is readily at hand, striking and protesting lawyers do everyone an enormous disservice; most of all themselves. As a breed, our stock has never been very high. Nothing is achieved by lowering it even further.

[^2]: The two causes are the one in January 2012, when a lawyer was arrested for triple-riding on a two-wheeler in violation of traffic regulations; and the subsequent one in March, which related to the appearance of the mining baron and politician Janardhan Reddy in court. At least one article suggests that the two are linked. The January incident disrupted traffic for seven hours; and, on the face of it, seems to be completely unjustified. There is no exemption from traffic regulations for lawyers; and if the police action was excessive or wrong, there is a legal remedy available. The violent reaction to Reddy’s appearance is altogether murkier and it seems incomprehensible why a particular litigant’s presence in court for a case that involves him should require taking to the streets, or why, given his prominence in public life, the media should not cover it.

[^3]: That a Bar Association should resolve not to represent media is an undermining of the very basis of our judicial system and of the Rule of Law. It is simply not open to lawyers in India to deny any person or group access to justice or withdraw their services. This is in violation of the Rules of the Bar Council of India (Chapter II, Part VI) formulated under the Advocates’ Act, 1961. Rule 11 says this:

>  An advocate is bound to accept any brief in the Courts or Tribunals or before any other authorities in or before which he proposes to practise at a fee consistent with his standing at the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief.

We lawyers pride ourselves on special knowledge, skills and abilities, on uncommon competence. That requires us to excise from the vocabulary of the law we profess to practice all violent action. We must hold to this: law is discourse; discourse demands civility; and the practice of law is the practice of civility. Else, apart from all the many nasty things already said about us, Isaac Asimov’s famous observation might be used too: “Violence is the last refuge of the incompetent”.

*A shorter version of this article first appeared in the Mumbai Mirror, the Bangalore Mirror, the Ahmedabad Mirror and in the Pune Mirror on Friday, 9 March 2012.*

In Joco Veritas: In Jest There Is Truth

2012-03-02T01:10:14Z

At the end of 2008, six people met at the Cardozo School of Law’s moot courtroom in New York. They included the free speech expert, Floyd Abrams; a sitting judge the United States Court of Appeals, Richard Posner; a judge of the New York state Supreme Court’s appellate division; a professor of law and novelist, Bernard Schlink; and a professor of literature. They were there to decide what appeared to be a simple case concerning a loan default.

]]> This case was unusual. For one thing, it was 400 years old. And the lender wasn’t a bank. It was Shylock, the villain of Shakespeare’s “The Merchant of Venice”. Representing Shylock, a major law firm’s partner argued that his client was entitled to repayment, with all accrued interest. He did not, however, press for specific performance — the pound of flesh — saying that, after four centuries of reflection, he had decided against it. His opponent, from another law firm, attacked the agreement itself, saying it was illegal in its inception. Here’s the exchange, as reported by Lizzie Widdicombe in the New Yorker:

“If it please the court,” Kornstein said, “this is a case about an illegal contract.”

“What’s illegal about it?” Judge Rakoff interrupted. “As you well know, there is a virtual obesity epidemic in this country, and to remove a pound of flesh is wholly to the public good.”

The verdict was not unanimous. Five to two, they held for Shylock, some differing on the issue of interest. Judge Posner was particularly harsh on Antonio, saying it was “completely irresponsible” for him not to have insured his cargo.

“First thing we do, let’s kill all the lawyers”. Shakespeare had a thing about law and lawyers. At least 20 of his works feature some sort of legal issue and two of his plays — “Merchant of Venice” and “Measure for Measure” — are centred around trials. The former raises issues of conflict of laws, equity, commercial law, dispute resolution, contract law, insurance and more. The latter involves questions of morality, the rule of law, women’s’ rights, criminal law, and proportionality in punishment. There is a wholly separate line of mock trials regarding the authorship of his plays.

Shakespeare is not the only writer with a fascination for the law. Charles Dickens was another. The trial in Pickwick Papers is still delightful and the one in A Tale of Two Cities is just as relevant to us today as it was then. In Washington DC, the Shakespeare Theatre Company annually presents mock trials from some work of literature. The 2011 trial, from Oscar Wilde’s play “An Ideal Husband” was presided over by three Supreme Court justices, Ruth Bader Ginsberg, Samuel Alito Jr and Sonia Sotomayor.

It is a pity we don’t have such a tradition in India, perhaps because lawyers and judges tend to take themselves far too seriously. Sometimes, a law school will host a re-hearing of a legendary case, as the ILS Law College did in January 2010, when it invited Anil Divan and Tehmtan Andhyarujina to reargue the famous Kesavananda Bharati case in honour of Nani Palkhivala. But we never look to literature for inspiration.

There’s certainly no shortage of material. The Mahabharata, that rollicking roller-coaster epic (or assemblage of epics), has more than enough in itself. There’s the question of the law on wagering contracts (M/s Pandava Bros. V/s Mr Shakuni & 100 ors.), a topic which, incidentally, is also the subject matter of leading cases in law. There are issues of criminal law and “outraging the modesty of a woman”, paternity, rules of engagement in armed conflict, and the Nuremberg defence (“I was just following the orders of my superiors”). One can even see a PIL on environmental law, raising Constitutional issues of environmental protection, intergenerational equity, the public trust doctrine and sustainable development in regard to the destruction of the Khandava forests for the creation of the Indraprastha SEZ.

Nursery tales are another possible source: Cinderella, about child labour; Little Red Riding Hood (abduction, guardianship, habeas corpus); Goldilocks (house trespass, house breaking, the Juvenile Justice Act, theft); or Rapunzel (unlawful confinement, culpable homicide).

Goldilocks :: Minimalist posters for nursery tales. Image courtesy brainpickings.org

Little Red Riding Hood :: Minimalist posters for nursery tales. Image courtesy brainpickings.org

Rapunzel :: Minimalist posters for nursery tales. Image courtesy brainpickings.org

Best of all, there’s Three Little Pigs and the Big Bad Wolf. This might well be a Writ Petition (TLP Rehvasi Sangh v BBW) about slum rehabilitation, encroachments, municipal demolitions, “Wednesbury unreasonableness”, arbitrariness under Article 14 and the right to life under Article 21, which includes the right to shelter (Olga Tellis v BMC is cited by the petitioners). The BBW argues that houses of straw or sticks are ‘unauthorised temporary structures’ liable to be demolished, but that it cannot demolish pukka ones of brick. Judgement for the petitioners, perhaps?

Three Little Pigs :: Minimalist posters for nursery tales. Image courtesy brainpickings.org

*This article first appeared in the Mumbai Mirror, the Bangalore Mirror, the Ahmedabad Mirror and in the Pune Mirror on Friday, 2 March 2012.*

Reign Of Terror

2012-02-23T19:33:08Z

The continuing stand-off between the dozen or so Chief Ministers and the Central Government over the National Counter-Terrorism Centre shows no signs of reaching a solution. The various State heads accuse the Centre of federal over-reach, of having encroached on a field purely within the States’ domain — criminal law — and ask why they were not consulted. The Centre’s responses, that terrorism knows no geographical boundaries and that a dialogue can be retrofitted, have not (yet) placated the angry Chief Ministers, or convinced anyone.

]]> All this dust-kicking appears to be little more than the usual power struggle, and it occludes matters that lie at the heart of our democracy: civil liberties, freedom, and guarantees against state oppression. The perversion that is the National Counter-Terrorism Centre (NCTC), our Union Home Minister’s pet project, is conceivably the single most concerted assault on the Constitution and the rule of law since the Emergency of 1975.

Following the 26/11 terrorist attacks in Mumbai, the Home Minister announced the setting up of a centrally-supervised nodal anti-terror agency called the National Investigation Agency or NIA. A bill for its formation was quickly introduced in and passed by Parliament. On 30 December 2008, with Presidential assent, it became law. A year later, in December 2009, the Home Minister announced that by end-2010 India would have its own home-spun version of an NCTC, following the American model which set one up within 36 months of 9/11. The Indian avatar of the NCTC was designed to surpass its American counterpart in many ways: a raft of existing agencies would be brought under the NCTC, some were to be merged with it, and it was to have very wide additional powers.

Given these operational and statutory minefields, it was reasonable to expect the Centre not only to consult various states — especially those that had been terror targets — before unleashing the NCTC, but also that the new agency would be controlled by a statute. Neither happened. On 3 February 2012, the Union Government’s Home Ministry issued an executive order (office memorandum III 11011/67/05-IS.IV) establishing the NCTC with effect from 1 March. Some say the NCTC derives authority from Article 355 of the Constitution which says it is the “duty” of the Union to “protect States” against external aggression and internal disturbance; but this is an emergency provision. Explicitly, the office memorandum references Article 73, which deals with the extent of the Union’s executive power, and says that such executive power that can be exercised without reference to Parliament, but confined to those matters on which Parliament can legislate, but not those that also fall within the powers of a state’s legislature.[^1] Criminal law and procedure, preventive detention, movement of prisoners and public order are all matters that fall in this common zone.[^2]

[^1]: A.73 reads thus:

>   73\. Extent of executive power of the Union.--    
>   (1) Subject to the provisions of this Constitution, the executive power of the Union shall extend--    
>   (a) to the matters with respect to which Parliament has power to make laws; and    
>   (b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement:     
>   Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws.

[^2]: Items 1, 2, 3, 4 and 12 of List III (Concurrent List) of the VIIth Schedule to the Constitution. Public order and Police are items 1 and 2 of List II, the State List and exclusively within the purview of State Legislatures.

The Central Government’s legal feint-and-dodge, while considerably less than Mr Chidambaram’s original vision, is ominous in purpose and sinister in design. Not established under law, the NCTC sits under the Intelligence Bureau (IB), itself ungoverned by any statute, one originally designed by the British during the Great Game to watch the Russians in the North-West Frontier and said to be the oldest intelligence agency in the world. This means that the IB has no Parliamentary supervision (“oversight”); but the IB also has no powers of arrest or seizure, since that would require a law. Like a Mumbai bhel-puri, the NCTC takes from everywhere: like the IB, it has no governing law, but by executive fiat it derives power under the Unlawful Activities (Prevention) Act, 1967 (UAPA). This law was twice amended in 2004 and 2008 to deal with terrorism, and what this means is that the NCTC can do today what the IB cannot: it can arrest, detain, interrogate and prosecute.[^3] This is far beyond the powers of the American model on which the Indian NCTC claims to have been based.

[^3]: §43A to 43E of the UAPA

The NCTC is far more than a monitoring unit. Its personnel can fly into any state without reference to local police or the state’s home department, arrest any suspect and, in a domestic version of that wonderful American euphemism, perform ‘extraordinary rendition’ by flying the suspects right out to be held for up to four months without trial.[^4] The NCTC notification demands that all state government agencies, including the police, must provide information, documents and reports to the NCTC.

[^4]: §43D(2)(a) of the UAPA

We should see this for what it really is: an attempt to brand every single citizen of this country as potential terrorist. The very real problem of terrorism has, in the hands of this government, became an excuse for the violation of civil liberties and fundamental rights, and by repeatedly raising the spectre of terrorism we are asked to surrender freedoms hard won. Research in Motion, which makes Blackberry smartphones, has buckled to government pressure and allows government-snooping on text messages, emails and calls. The Telecom Department has the means to bypass telephone service providers and directly intercept all phones. And none of this requires judicial permission. There is a reason that the Home Ministry attempted to hijack Nandan Nilekani’s UID scheme: this is the one initiative, unparalleled anywhere, that provides a gargantuan digital database on every citizen and accesses everything, from your blood sugar levels to your flight bookings. That is not Mr Nilekani’s purpose. But it is very much the purpose of a government that distrusts those who put it in power.

The oddest thing about this word “terrorism” is that it is so closely tied to “liberty”. It comes from the Latin verb terrere, to frighten, and later from the French terrorisme. Nearly 300 years ago, during Maximillien Robespierre’s Reign of Terror, it was used as a means of governance against enemies of the newly-founded state. In a February 1794 speech to the French National Convention, Robespierre said this:

If the spring of popular government in time of peace is virtue, the springs of popular government in revolution are at once virtue and terror: virtue, without which terror is fatal; terror, without which virtue is powerless. Terror is nothing other than justice, prompt, severe, inflexible; it is therefore an emanation of virtue; it is not so much a special principle as it is a consequence of the general principle of democracy applied to our country’s most urgent needs.

Robespierre’s cold, heartless words have no place in a world three centuries later, in a time when the word’s meaning is inverted, when it now references non-state and anti-national elements acting against the state. So what do you call it when the state arms itself with powers to terrorize those it calls its own? The NCTC: the National Centre for Terrorising Citizens.

*A shorter version of this article first appeared in the Mumbai Mirror, the Bangalore Mirror, the Ahmedabad Mirror and in the Pune Mirror on Friday, 24 February 2012.*

Murdering Trees, Killing Cities

2012-02-20T11:33:19Z

In the run up to Mumbai’s municipal elections, of the many to-be-left-unfufilled promises made by political parties, two were common: less corruption and more “infrastructure”. The latter, in our peculiar notion of what makes a ‘world-class’ city, only means more roads, more bridges. No one promised to make our city more liveable. In my constituency, apart from the familiar talk-to-the-hand and offerings for lotus-eaters, there were many odd symbols for candidates: a sewing machine, an LPG cylinder and something that looked like a pasta machine cross-bred with a meat grinder. Not one had a tree or anything that looked like it.

]]> In the last 20 or 30 years, we seem to have developed an odd view of what constitutes urban development: more grey concrete and fewer trees. Mumbai, Pune and Bangalore have all seen this. A 2008 report, based on RTI applications, showed that Mumbai had lost 25,000 trees to ‘development’ projects; and of those said to have been transplanted, no more than half a dozen survived. South Mumbai is a favoured target, as the wanton destruction of trees along Nepean Sea Road showed. As of May 2011, Mumbai is said to have only a little of 19 lakh trees left. In contrast, New York, to which we so like to compare ourselves, has an average of five trees per person despite having more high-rises than Mumbai, and it has, too, a plan to plant — and nurture — a million more (the 500,000th was planted in October 2011).

Bangalore’s story is even grimmer. From 2008 to 2011, the city lost over 7000 old trees to road-widening projects. The traffic got worse. Last July, 17-19 trees were secretly felled on Sankey Road; and though the Karnataka High Court intervened on a PIL, it was by then too late. Road-widening projects proposed in Bangalore will cost that city over 30,000 more trees. And this is in a city that has had a very long history of planned greening. Hyder Ali gave the city the Lalbagh Gardens. During the Raj, Sankey laid out the magnificent Cubbon Park. In the early 1900s, the Wodeyars invited foreign horticulturists to help plan the greenery along the city’s avenues, which at one time had flowering trees laid sequentially so that they blossomed at different times of year. Centuries of creation have taken less than two decades to destroy.

Urban trees :: Red Silk Cotton

Urban trees :: The coconut palm

Urban trees :: Gulmohur, bamboo, and half moon rising

Urban trees :: Haji Ali

Urban trees :: Spathodea

On paper at least we have sufficient statutory protection. ‘Tree authorities’ are supposed to regulate and protect our cities’ trees. There are penalties for unlicensed tree felling.[^1] The reality is very different. At one point, the tree authority in Bangalore just did not exist. In Mumbai, it signed off on every proposal for tree felling, once running through an agenda of nearly two dozen proposals in less than 20 minutes; and in May 2009, approving various proposals for hacking a staggering 4000 trees around the city. The oddest thing about the 2009 approval was that all the main proposals related to water: over 2000 trees were ‘required’ to be felled for the Middle Vaitarna Dam project; and the connection between trees and water seemed to occur to nobody. Even more bizarre was the proposal to cut 111 trees for the Mahatma Gandhi swimming pool in Mahim, making one wonder what, according to our civic fathers, is of greater and more lasting importance. And another 1000-plus trees just had to go for the Bhandup Water Complex.

[^1]: The Maharashtra (Urban Areas) Protection and Preservation of Trees Act, 1975; The Maharashtra Felling of Trees (Regulation) Act, 1964

High Courts intervene, sometimes on their own motion, but few cases actually reach courts; the authorities could not care less, as a 7 November 2011 report from the Mirror’s Pune edition shows: despite a 2009 order of the Bombay High Court, 15 trees in Model Colony were hacked. The garden superintendent claimed he needed time to “study the documents”.

Wider roads do not make for a better city. If any evidence of this is needed, a drive on Mumbai’s Ghatkopar-Mankhurd Link Road, with the Deonar slaughter house and Govandi on one side and the Deonar dumping ground on the other, should be enough. The road is very wide, at least four lanes on either side, solid concrete. The entire stretch is a vision from hell: barren, dry, hard, dusty and polluted, a place of unrelenting hopelessness. You could say much the same about the major roads in Bangalore and Ganesh Khind Road in Pune. None of them had to be like this. But this is the stuff of “world class” cities. Yet, in the latest TimeOut’s cover story on Mumbai, every single expert identified traffic as the city’s most pressing problem, but not one suggested widening roads or killing trees as a solution.

There are many ways to kill trees, and chopping them down is only one. You can, for instance, in furtherance of a traffic congestion problem, widen the road and narrow the sidewalk so that the tree just can’t hold and then wait a few months for it to die. Saving trees is altogether more difficult. In Pune, responding to a PIL to save the trees on the Khind, a senior law officer told us that trees cause pollution because they force cars to idle under them. This would be funny if it wasn’t so tragic. Years ago, there was a proposal to knock down the two magnificent rain trees outside the Catering College at Dadar. These trees were a “nuisance”. They “caused accidents”. Never mind that they were standing there for over a 100 years minding their own business and that, statistically, there was no report of anyone crashing into those trees; they were suddenly ‘dangerous’. The Tree Authority was taken aback by the ferocity of the citizens’ oppositions. That, and an intervention by the High Court, ensured that those trees still stand. But for how long?

City trees are the one relatively low-cost factor to making cities more sustainable. Cleaner air, health, lower ambient temperatures, greenery, shade: we can make up a very long list. We should do what Pradip Krishen did for Delhi, and what they’re doing in New York: map our trees. But to start with, the next time we go past one of our few remaining veterans, let’s at least slow down or even stop to look. For all we know, it might be the last we see of the truest, gentlest friends of our cities.

Update

22 February 2012. On a PIL filed by an Advocate, the Bangalore High Court issed an interim direction prohibiting the felling or pruning of trees for the construction of a multi-level car park near the Legislators’ Home in Bangalore. By then eight trees had been killed.

*A shorter version of this article first appeared in the Mumbai Mirror, the Bangalore Mirror, the Ahmedabad Mirror and in the Pune Mirror on Friday, 17 February 2012.*

The Keeper Of The Faith

2012-02-09T17:26:37Z

It was the first thing that you noticed in her home. The books. There were books everywhere, on every surface, racked, stacked and piled, novels, histories, coffee table books, old books, new books. Even the furniture seemed to morph itself around books. Here was a sturdy old chair, a shaded lamp just so beside it, which could only be meant for reading. By its side another old piece of furniture, a revolving book stand. It was quiet here, as books demand. The books were visibly well-thumbed but undamaged, like good friends, and the furniture was lovingly restored. Books, as they say, are the spine of a house, and if there was one thing Sharada Dwivedi and the house she and her husband Bhagirath had, it was plenty of spine.

]]> Sharada was one of four children, three sisters and a brother, born to parents of singular enlightenment. Her father, D. S. Joshi, joined the Indian Civil Service and rose to prominence as a career civil servant, serving as Cabinet Secretary to the Central Government. Her mother, from a wealthy industrialist family, dedicated herself to many causes: she helped set up Asha Sadan and was, in the 1950’s, president of the Maharashtra State Women’s Council. All four children achieved renown in their own fields: medicine, finance and banking, history and civic affairs and computers.

We know of her as a chronicler of the city, a city historian, an advocate for heritage conservation. But she had no formal training in history or architecture or design or urban planning — she studied commerce and library science. What she had was a passion for her city. That, with her commitment to excellence, and her refusal to be cowed or bullied, put her very quickly at the vanguard of the city’s heritage conservation movement. She did more than document the city’s past; she uncovered its present: buildings and precincts and artefacts that are all around us, cultures and histories that tell us who we are. Her writing and publishing — she had her own imprint — came late, but it was prolific and, particularly with Rahul Mehrotra, she mapped the city, then and now, as no one has ever done. [*Bombay: the Cities Within*][1] is a book that gets under the city’s skin and shows us the many cities within the city. It is only one of her many books, and the range is wide: railways, sacred tanks, princely lives, the Taj Mahal hotel, cosmetics, automobiles, most recently on stained glass (appropriately titled “Stories in Glass”) and the one that remains closest to my heart, the book on the Bombay High Court’s building, released on the 125th anniversary of its completion. That book wasn’t possible without her, and the first section of it is entirely hers: the text, the sourcing of old photographs, the delineation of the history of an institution with which she wasn’t otherwise concerned. [1]: http://www.flipkart.com/books/8190060260?_l=gWxQa0snNjHUHKJhnj_y0w—&_r=WCqjoqr3ItX25haOTu2dLA—&ref=4a28a1d7-076b-44a4-a023-1f1903093104 “Bombay: The Cities Within by Sharada Dwivedi and Rahul Mehrotra” We in the High Court saw the passion with which she threw herself into the project, and we wondered why. This building matters to lawyers and judges, but it seems to be little more than a magnificent pile for everyone else. Sharada saw it differently, as an integral part of the city’s design, an interface between sea and city, between the happy chaos of the bazaars to its east and the solemn business of law to its west, an institution that reflected, too, the many spirits of the city. She seemed to know, with a familiarity and confidence that shamed us, about odd furniture in court (a lockable chest for a judge’s lunch box, strange high-backed chairs, bannisters and railings), narrow stair-wells that seemed to go nowhere, the ermine cloaks of English judges, the weird and wonderful carvings on its walls, the quirky engineering and design, the violent reactions to the building when it was commissioned, about its evolution as an institution. She got Noshir Gobhai to photograph it, and together they showed us a High Court we’d never seen before though we walked its corridors every day. At the end of it, some said they’d done far too good a job: the book showed a luminous, stately, splendid building that the casual visitor was unlikely to find. And that was what she did: she saw and recorded and told of things we did not see but which were all around us. She wasn’t one to be bullied, especially not in her field and had courage quite at odds with her small bird-like frame. She stared down imperious judges and arrogant ministers and supercilious bureaucrats; courage, she showed, has nothing to do with largeness of body and everything to do with largeness of mind. But there wasn’t a mean bone in her body: if she cut a bully to size, she also made those not in authority feel like princes. Her work was as much about the city’s future as it was about documenting its past. With others, she fought tirelessly to protect the city’s heritage, and it led her to wider concerns about urban planning and architecture. For those who took up planning issues, Sharada was often a refuge, quietly supporting, encouraging, unwavering in her convictions. Shyam Chainani and the Bombay Environmental Action Group counted her among their most committed supporters. One evening, a few weeks after we lost the Mill Lands litigation in the Supreme Court, I dropped in to see her. It was a tough time for all of us, lawyers, NGOs, professionals, who believed that a planned makeover of the Mill Lands area was critical to the city’s survival. In her house, we talked about other things, and she laughed and the smoke-husky effervescence in her voice made things look a little better. A little later, I told her of our sense of dismay and despair. She listened quietly and then said, “you mustn’t let it get to you. These things happen. Come, I want to show you something.” She led me to the little balcony of her fifth-floor flat at Churchgate. It is a small, quirky affair, little more than a perch, but she loved it for all that. “There’s a little nest in that tree there,” she said. “And every now and then it gets knocked down, and those birds, they start all over again. They just keep coming back. That’s all we need to do. Just keep coming back. Because if we stop doing that, we’ll lose the city.” And then she burst out laughing. “You know what they say: guts and glory! Guts and glory!” Cities are anthologies of stories: Bangalore, with its fabulous parks and the once graceful MG Road area; Pune’s Koregaon Park, East Street and Main Street and camp, Ahmedabad’s links to textile, fabric, architecture and design, Delhi’s overabundance of centuries of history and colliding cultures, Kanpur, Lucknow, Kolkata, Chennai, Pondicherry, Cochin. Few cities, though, are blessed to have a *sutradhar* to tell those stories; Bombay, Mumbai, Maximum City, City of Gold, was blessed with one. I do not know if we will ever find another. In a city that every day seems to find new ways of disfiguring itself, mean-spirited uglinesses masquerading as architecture erupting like pustulent sores at every turn, Sharada continued to find areas of grace that we too might find if only we cared to look: late evening on Marine Drive, the park at Charni Road that no one seems to notice but which has truly lovely trees, the stately facades of buildings at Kala Ghoda and Fort and Ballard Estate, the steps and tanks at Banganga, temples, dhobi ghats, parks. Sharada showed us what to look for, how to see it, and why, to ensure our future, we must preserve our past. She was the keeper of the faith, someone who truly believed in her city. She loved her classics — and, with a surreptitious joy and a self-deprecating laugh, trashy soaps on television. [An article here a few weeks ago][2] on Lewis Carroll’s *Hunting of the Snark* delighted her. We met a few days after it appeared, and she launched gleefully into a word-perfect recitation of the poem, segueing a few seconds later into Jabberwocky: [2]: http://www.prisonerofagenda.com/cabbages_and_kings/guess_what_youve_been_snarked.php “Guess what, you’ve been snarked” > Twas brillig, and the slithy toves did gyre and gimble in the wabe All mimsy were the borogoves And the mome raths outgrabe Beware the Jabberwock, my son! The jaws that bite, the claws that snatch … The day after she passed was Dickens’ 200th birthday, something in which, too, she would have revelled, marvelling at all the wonderful commemorative events and happenings around the world to mark that event, and excitedly sharing it with everyone around her. It didn’t really matter if you were interested or not; her many enthusiasms were contagious. How do you measure a life like this? Awards, money, positions, recognition: they all sound cold and empty, without value in memory. The best-lived lives are those to whom the trappings of success are unimportant, lives that touch others with grace and humour and kindness, lives that earn the goodwill of the rich and the poor alike, the famous as much as the unknown. By that measure, Sharada had wealth beyond counting.

*A shorter version of this article first appeared in the Mumbai Mirror, the Bangalore Mirror, the Ahmedabad Mirror and in the Pune Mirror on Friday, 10 February 2012.*

The Assault On Ideas

2012-02-02T19:34:43Z

In America, there is a furore over SOPA, the Stop Online Piracy Act in Congress, and its sister law in the US Senate, PIPA or Protect IP Act. Google, Wikipedia, the Electronic Frontier Foundation and Wired protest. In India, Kapil Sibal leans on a slew of intermediaries and social networks to censor user content, ostensibly to prevent libel and blasphemy. A short while later, making its mind known much too early, a court demands that 21 websites do the same. At the Jaipur Literary Festival, a gaggle of Rip Van Winkle fundamentalists threaten writers over an issue 24 years old.

]]> The manner in which SOPA and PIPA claim to pursue perfectly legitimate objectives (preventing Intellectual Property theft and piracy) is dubious: rewarding service providers for overblocking user content (the vigilante provision), making them liable even for inadvertence, shutting down entire sites instead of only removing the offending content and, most tellingly, imposing liability merely for providing information. Of these many events, the fracas over Rushdie’s The Satanic Verses would have been the only one that isn’t directly related to internet free speech but for the fact that the entire book is freely available on the internet, thus making India’s ‘ban’ on its importation utterly meaningless.

Each of these controversies, though seemingly unrelated, is a concerted attack on that most fundamental of liberties, free speech. Each tries to stifle dissent. Each demands conformity and submission. These events are borne of a fear; a fear of ideas. Each is an assault on one idea in particular: the idea of liberty.

Ideas, as popular literature and film tell us, are resilient; they are contagious; and they are bullet-proof. But ideas are also subversive, for each idea is a challenge. Some ideas are more radical than others; these are a frontal challenge to an established order. This makes them dangerous, and men of radical ideas, from scientists to messiahs, have always been persecuted: Galileo and Copernicus, Martin Luther, the suffragettes, followers of Darwin. And yes, the origin of Christianity, like the history of many faiths, lies in a radical idea and a persecution.

II

Two ideas today are joined at the hip. The first is the liberty of speech, and the second is the internet. Of all the ideas of our time, none has had the power, impact and influence of the internet. The internet is not a thing, not an entity, not even just a network of networks; it is an epidemic of ideas that has changed everything. The one truly democratic medium, it gives everyone a voice, a means to express ideas. As a vehicle for free speech, it is unstoppable. 100 years ago when sound came down a wire, our world changed. Less than 30 years ago, when an exact replica of paper fed into a machine in Rio emerged a few minutes later in London, it changed again. With the internet, we learned to type, click, swipe and gesture. Now the next evolution is already at our doorstep: eye-tracking software and smartphones that can exchange data using light. What’s next? Direct communications of thoughts — and ideas. How will they police us then?

III

The internet is also about writing. Not just writing in its most obvious form, but text, for everything on the internet, whether it’s an image or a soundtrack, is digital text. The proliferation of textual representations of ideas is a freedom that will not be contained. Therefore, those who would corral it must fall back on nonsensical assertions of public order and morality, ignoring conveniently the fact that there is no evidence of any riot ever having started because of a Facebook post or a tweet.

Words are unsettling. They challenge, they question, they mock, they deride, they taunt. They give shape to subversive ideas. For those in authority, this is an uncomfortable state of affairs. What SOPA/PIPA, the court summons and the Indian government demand is self-censorship; a minute screening and verification of user-generated content. Every service provider must now check and assess every single bit of data put out by every user. This isn’t just technically impossible; it’s designed to substitute the policeman’s baton for discourse, to force submission. Consider the consequences: someone at Facebook or Twitter must decide, as an absolute standard, what is a permissible and what is prohibited, what is jest and what is serious.

Free speech is not about the comfort of conformity or the tranquillity of the familiar. It is about the tolerance of discomfiture, the acceptance of disorientation, about learning to live with discomfort. There is a very real danger to playing nice, to saying only that which does not offend, to steering clear of questions, doubts and aspersions. Free speech is not the right of musclemen and fanatics to block all views other than their own; it is the right of every person to doubt, to offend, to blame and it carries with it the right to respond in like coin. It does not include the right to threaten, to burn, to attack, to ban.

IV

The Preamble to our Constitution contains an absolute: Liberty of thought, expression, belief, faith and worship. The restrictions, which must be ‘reasonable’, come in Article 19(2), and not one of them is related to ‘blasphemy’. A ban is, by definition, unreasonable and is possibly far more than a ‘restriction’. Any government that says that it is unable to maintain public order because of something said or written is a government that is, at the very least, incompetent; and nothing in the Constitution entitles a government to ban or block any text on the ground of ineptitude. An abdication of duty or an inability to perform are feeble excuses for curtailing fundamental freedoms.

Permitting caricature, criticism and even jest is qualitatively different from advocating illegality and criminality. Proponents of bans are given to conflating these and lumping, say, a mocking of a faith with the propagation of child abuse. What is forgotten here is that internet users are not beyond the reach of the law. If, as the proponents of SOPA and PIPA claim, they are unable to reach sites in foreign jurisdictions, the answer is not to hammer sites within reach and to stifle innovation but to adapt the law to meet technological challenges. Restricting speech for having hurt someone’s feelings or sentiments — religious or otherwise — is an antiquated notion that has no place in an increasingly plural and divided world. To refer to an outdated UK law on blasphemy — without mentioning that it has since been repealed[^3] — and to advocate, therefore, that we should adopt that abandoned standard in India does singular disservice to cardinal freedoms. There is much to offend everyone everywhere, on the internet, in print, on television, and none of it is illegal. One could easily make allegations of vulgarity and obscenity against every ‘item number’ in every film or contend that our saas-bahu television soaps are nothing but emotional pornography, constantly regurgitated. Should they be banned because they ‘offend’ some sensibility somewhere? Yet our laws permit the filing of complaints, however frivolous, on the ground of injured feelings. This is, again, an assault on free speech and on the right to express an idea, made worse by the glacial grinding of our judicial system. Does free speech include the right to steal? No. Does it include the right to offend? Short answer: yes. Should the ban on importation of The Satanic Verses be lifted? Certainly. Those who are offended by it are entitled to write and rail against it. They may destroy their own copies of it; or they may just choose to read something else. But nothing justifies a small group of fundamentalists forcing the government to dictate what everyone else can and cannot read, write, think and see. If there is one thing free speech and the internet demand it is a thicker hide. That means less policing, not more, and more tolerance, not less.

[^3]: Criminal Justice and Immigration Act 2008, §79

V

Those who would institute policing see free speech a mere bromide, forgetting that it is fundamental to civilization. Take away free speech and you imprison minds, reduce living to existence. And the less we fight them, the more these things gather momentum: just a few days after Jaipur, a local group protests an academic symposium on Kashmir; succeeds in having it called off; and now there’s the news of another protest against Taslima Nasreen’s latest book.

For many of us, free speech is as much a faith as any formal religion, and every ban is an affront to that faith. The difference is that we do not advocate violence in the protection of our belief, nor do we deny to anyone the right to criticise and condemn; for to those of us who believe in free speech, every text is sacred.

*A shorter version of this article first appeared in the Mumbai Mirror, the Bangalore Mirror, the Ahmedabad Mirror and in the Pune Mirror on Friday, 3 February 2012.*