Spear, armour and socialist democracy

Teary, he stood watching from a safe distance. The strong jack-rod came crashing on the feeble wooded pillars supporting the hut-like shelter that had so far protected him and his juice-drinking customers from the scorching sun. Eight uniformed policemen stood watch to prevent any unlawful interference in law enforcement. Four of the policemen had pistols hanging from their waists in the holsters that hid most but showed enough in prominent display of the backing the brutal jack-rod had. Resist the rod, take the bullet – that simple. The wood couldn’t stand the raw strength of the steel, and soon the juice vendor’s pretty, little juice corner was firewood. He pulled his vest up and wiped his tears.

Right next to the place where this once juice shop lay scattered like butchered carcass, another pair of strong hands was ripping a plastic roof off a vegetable vendor’s roadside shop with Dushshasan‘s sadistic savagery. Juice corner and vegetable shop were not distinguished between. Equality and rule of law, you see. The government had decided to hit the violators hard and undo encroachments and pull down ‘illegal constructions’. And nobody came in the way of law enforcement. Such respect for the law!

The same government was ‘with the traders’ not too long ago. And in the same context – removal of illegal constructions. So, are vegetable seller and juice vendors not traders? Are their ‘constructions’ somehow ‘more illegal’ by virtue of being small? Both the times it was illegal constructions; why slogans for some and jack-rods for others?

Government did everything in its power, including legislating, to protect the great violators then but the same courtesy was not extended to the street vendors. Those who violated the law for sheer profit found government armour and those who did it out of necessity got speared. Socialist democracy?

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The invisible hand

Who decides what one will be? In whose hands does one’s future lie? These are the questions that sound big and ring loud. Let’s try the smallest possible question. Who decides what one thinks? Now, anybody can answer this one. And nearly everyone would come up with a wrong reply, for the most obvious answer is not quite the answer. It is not the thinker who decides what he wants to think. He is only a means to the thought. The thought itself is the product of a number of factors that are not necessarily in control of the thinker.

We have deluded ourselves into believing that we are the doers. Our thoughts and our analyses are primarily determined by our surroundings. And in that sense we are essentially the products of our times.

The fact is that I would not think the way I do if I was born in a different setting, educated differently, was taught by different teachers and had a different value system at the core of my moral fabric. So, even my smallest and most insignificant thought is shaped by a number of influences merged together in unknown proportions.

Now, there could be many who could think the same thoughts about same issues, but that does not mean they derive the same conclusion on account of same or even similar upbringing and circumstances. Only the cumulative effect of all factors is same or similar, but the factors themselves are not. Like two plus three plus two plus three is ten, and so is five plus five, but the factors that add up to the result are individually different. This is why even if two people agree on one thing at one point of time, they would not agree on everything and every issue at all times.

However, people who are brought up in the same setting and even in the same household tend to think differently, which indicates that the cloth soaks according to its own capacity, and does it selectively depending upon the material it is made of. So, what we end up being depends how our core composition responds to the surrounding circumstances, which is why the same social environment and setting has different effects on different people.

The hand that shapes us, thus, remains forever invisible.

So, I would never know what made me as dumb as I am. Alas!

Rang De Basanti, yet again!

I just reproduced my review of Rang De Basanti (particularly for my students) that I wrote quite a while ago. But it still amazes me – as it always did – that the movie was such a big hit! And not only that, it was – and is – also attributed with bringing about a positive change in the apathetic public attitude towards tragedies in general. Now, candle marches are seen and understood in the light of Rang De Basanti. Thankfully, it is the candles that the audience took from the movie and not the guns. Perhaps because there is a limitation to the so-called ‘suspension of disbelief’ – at least so far as this movie is concerned. And I am rather happy that we did not end up believing all that the movie had to say about the current political environment and its projected hopelessness. Indian democracy is bubbling with hopes and dreams, and so far there is nothing to shatter our pink romance.

Rang De Basanti: What a synthetic nightmare!

So, the story begins: an all white woman wants to make an all ‘brown’ documentary on India looking through the lens of a long spent yesterday….so…that would be…I guess…a yellowish-brown, dusty documentary of some sort. Naturally, the Englishmen are not interested in something so ‘untouchable’. Therefore, she is left alone with her idea. Alone, but resolute, she comes down to India to shoot her documentary and auditions actors at Delhi University (National School of Drama is not that far – is it? – especially if one came all the way from the UK). The modern day MTV-India ‘guys’ and ‘gals’ (galz?) audition for it in their characteristic funky styles. Of course, none of them measures up. And then Sue (the English lady) meets these five beer guzzling loud-talkers, who are not much different from the herd of airhead sheep she had already auditioned. But they somehow floor her with their mindless antics. And Madam Sue manages to see in them die-hard patriots like Bhagat Singh, Chandra Shekhar Azad, Ashfaqulla Khan and Raj Guru. None of these are patriots in the least. Talk of being proud of the country, and they would throw those childish pebbles of criticism about population explosion and unemployment and so on. And guess who is playing the iron-willed Chandrashekhar Azad – someone who is so courageous that even after passing out from the University five years back he doesn’t venture out simply because he is a ‘nobody’ outside. And he doesn’t want to be lost in the crowd of millions. He would rather keep splashing in shallow but familiar waters than step out and face the world. Many before this DJ fellow (Aamir Khan) stepped out, and some won, too. But this man is – to say the least – a coward. And he is Sue’s Azad. Anyway, the movie is made and nowhere all along do they discover and sense of unity. They are the same skeptical pack, who take pleasure in criticizing the nation left, right and center instead of trying their hands at improving a thing or two.

And then comes the sharp turn, which, as per the movie, stirs the revolutionary youth in this otherwise hopeless lot. The death of their friend in an MIG air crash. A fighter pilot is called a ‘careless novice’ by the Defence Minister in the film so that the veil on murky defence deal could remain intact. Now, that’s the most unconvincing part.

No politician would dare call a fighter pilot a ‘novice’ especially when the media has already reported that the person lost his life in preventing the aircraft from falling over the populated areas. Even a fledgling politician would have enough political wisdom as not to touch the patriotic nerves of the people and that too when the media is talking of corruption in defence deals. But here the politician blames the pilot. The pilot’s mother and our heroes stage a candle march to India Gate. The protest is in thick media spotlight. And the Defence Minister, as though he were the Prime Minister, calls for the use of force. Another highly unconvincing drama unfolds.

At India Gate, with media reporting live, no government would dare to as much as interfere – leave aside use force against – a peaceful candle march. A brutal lathi-charge follows, which is calculatedly shot by the director to bring back the memories of the British rule, particularly the lathi-charge that claimed the life of Lala Lajpat Rai. No peaceful protest, no matter how scathing or unreasonable, has ever been muffled with such brutally in post independence India – at least not in Delhi, and certainly not at India Gate. It is illogical to even conceive of such an action in a democracy because those who rule today have to go begging for votes tomorrow and they cannot afford to have public sentiments against them. No parallels between the Raj and independent India can be drawn in this respect. But that’s not all, in his zeal to paint things in British India colours, the movie sends the deceased pilot’s mother into coma after sustaining injuries in the lathi-charge in the true Lala Lajpat Rai fashion. And then comes the uprising in the true freedom struggle manner. The movie compares the two utterly different stories frame by frame – one real, the other fictional – in an unconvincing attempt to see one in the light of the other; or, worse, to see the fictional one as the retelling of the original and real one. The injured mother makes the freedom fighters in our young rusted guns come alive and they turn into real life Bhagat Singh, Raj Guru, Asfaqulla Khan and Chandrashekhar Azad.

Their weapon of choice – violence. Result – Defence Minister dead. But the death doesn’t really ‘kill’ the Defence Minister; it makes him an immortal martyr, which forces the boys to go live on air to tell the real story. And a baffled government responds with what would be a political suicide even in an autocratic country. While the boys are on air, the government orders its black cat commandos to kill them. And they do. While the world’s biggest democracy listens, the boys – unarmed and defenseless – are killed. That’s how fantastically far does the movie take it to tell us that we need such hardcore revolutionaries to change our nation, that things are as bad as they were under the British regime, that problem of corruption is so hopelessly bad that desperate sacrifices are the need of the hour. The movie makes several blunders. It is not a realistic movie at all, but is only as good as any regular bollywood potboiler – Aap Kar Suroor, Kkrish, Main Hoon Na, take your pick. In fact, it’s far worse. The others make you dream and smile, this gives you a nightmare to shriek your guts out in horror. We have no demons to fight other than ourselves and you don’t shoot yourself for being bad, you improve yourself gradually. We don’t need to shout slogans or kill those who govern us or be lathi-charged against to improve things. All that one needs to do is cast vote.

Modern Indian history stands witness to the fact that even the strongest Prime Minister the country has ever seen could not do anything but bow before the will of the people expressed democratically – remember emergency and its political consequences? Mr. Mehra needs to get his history right and also get his eyes checked if he has problems seeing what stares right in his face. The most interesting part, however, is that the movie is a hit and was also sent for an Oscar. Now, that’s India for you. Our politicians are no political novices. They don’t muffle dissent by force, they celebrate it. That’s the way to kill it and they know it only too well. Good Morning, Mr. Mehra.

This is the reproduction of Legal Scanner (Movie Review) I wrote for LAWYERS UPDATE (August 2007 issue). It is being reproduced here for the benefit of my students as an extension of the discussion we had during my lectures at Indian Law Institute.

The ‘Judicial Adventurism’ Judgment is Judicial Adventurism

Supreme Court’s ‘Judicial Adventurism’ judgment could not have come at a more inopportune moment and in no worse form than obiter dicta. At a time when the walls of Parliament are still trembling with the parliamentarians’ deafening cry for ‘judicial accountability’ and when the Indian legislature seems to be bent upon ‘reining in’ the judiciary that has been fiercely independent all these years, a two-judge bench asks its own ilk to take note of the threat held out by the legislature.

When, armed with the imaginary stick of ‘judicial corruption’, the legislature appears to be in a mood to make the judiciary pliant, the last thing that Indian judiciary can afford is to be seen as a scared lot. Higher judiciary is a citizen’s final line of defence against violation by the state, and if the supreme custodian of the Constitution, and the ultimate protector of Fundamental Rights, throws its hands up, it makes the situation hopelessly helpless.

So far as the judgment itself is concerned, it stands on trembling knees, to say the least. The ratio decidendi of judgment is in some 1350 words while the obiter dicta is couched in around 3340 words, making the obiter dicta more than double the size of the ratio decidendi and dwells upon a crucial constitutional question without the Bench being called upon to do so.

The effect of the judgment was that a Supreme Court Bench of the same strength declined to hear a PIL it has been hearing for several years concerning the rights of the sex workers. Delhi High Court too refused to hear a PIL on account of the decision. Though the observations were made obiter dicta but had a similar effect as a binding decision would have because of the nature of the issue concerned. Constitutionality of judicial actions cannot be debated in obiter dicta simply because even a light reference to the constitutional position of an act or issue by a Supreme Court bench could have a far reaching effect.

The Bench remarked: If there is a law, Judges can certainly enforce it, but Judges cannot create a law and seek to enforce it. This observation clearly implies that the primary function of the courts is to enforce the law, which is true to a larger extent. But the laws are not enforced simply because they are the ‘laws’ because if that were the position, all laws would be constitutional simply because they are ‘laws’ in the sense that they were passed in accordance with the constitution and by following the procedure enshrined therein for the purpose. But that is not the position because the laws must not violate the fundamental rights. The Supreme Court and the High Court, therefore, are not just the enforcers of the law but also the protectors of the fundamental rights, and if the need be they are empowered to legislate in order to protect the fundamental rights. So, judges certainly ‘can create a law and seek to enforce it’. This is because there can be violation of fundamental rights without there being a violation of any existent law and in order to prevent such violation a law may be required and the courts cannot say that they cannot afford any protection unless the legislature enacts a law. On many occasions the Supreme Court benches larger than this bench have held to that effect. By expressing a view that appears to be diametrically opposite to the view held by larger benches, the judgment seems to have violated the doctrine of precedent.

Among the instances of ‘judicial adventurism’ the Bench cites ‘age and other criteria for nursery admissions…the kind of air Delhites breathe… the legality of constructions in Delhi…identifying the buildings to be demolished’. Who will protect the rights of the children, our right to clean air and who would pronounce upon the ‘legality of constructions in Delhi’, if not the courts? Would the courts say that they are helpless if the elected governments do not protect the fundamental rights of the citizens? Who is the supreme constitutional protector of our fundamental rights – the executive, the legislature or the Supreme Court? The courts cannot refuse to protect the fundamental rights even if the elected governments turn a blind eye to it. This is where even a breakdown of constitutional machinery can be declared by the superior courts.

Worse, the Bench sounded the warning by referring to President Roosevelt’s threat to reconstitute the US Supreme Court with six Judges nominated by him when the US Supreme Court started striking down a series of legislative enactments during the 1930s. The threat was never carried out, as “this threat was enough,” observed the bench making it clear that if the Indian Supreme Court did not take a more pliant approach, it could face a similar situation. “The politicians will then step in and curtail the powers,” says the Bench. So, our ever so brave Supreme Court is suddenly interested in self-preservation? And this, when the Supreme Court next door has defiantly upheld the supremacy of the constitution in a nation where constitutions have meant little to the ruling class.

Occasionally, there has been a certain amount of judicial overreach, but not enough to warrant a judgment of this kind. Making such blanket observations on such an enormously important constitutional issue in obiter dicta is arguably ‘judicial adventurism’ of the most astounding kind.

This is the reproduction of an article I wrote for LAWYERS UPDATE (January 2008 issue). Hope this answers some of my students’ queries regarding ‘judicial adventurism’. It’s an opinion piece and is not ‘sweet’.

Alternative truth

The other day while delivering a lecture I happened to talk of cause and effect. Of course, nothing new about it. But suddenly I found myself talking of multiple causes to a single effect and realized that it is very much possible that all the factors that contribute to a certain effect may not be visible and the invisible might as well have the greatest impact on the final result and we might still be sifting through the visible factors and then finally end up attributing the result to the cumulative effect of all factors. And that would be a credible ‘scientific’ inference based on verifications and cross-verifications. However, since the inference is scientific in nature, it would be considered unimpeachable unless disproved scientifically.

This implies that in view of a scientific inference, we’ll be blind to the actual cause-effect relationship and may even declare any alternative explanation ‘imaginary’ or ‘superstitious’.

The fact is unless we know everything about everything we cannot claim to conclusively know anything. Our knowledge, therefore, is nearly always limited and forever questionable. So, there is always a possibility of there being an absolutely new explanation for age old happenings unseating longstanding, conventional, scientific conclusions. Quite amusing, isn’t it?