The summary of the Supreme Court of India’s judgment of homosexual and transgender Indians

On 11th December 2013, the Supreme Court bench comprising of Justice G. S. Singhvi and Justice S. J. Mukhopadhyay delivered a regressive verdict on the subject of constitutionality of S. 377 of the Indian Penal Code, 1860 by upholding its validity, which criminalizes consensual, adult sexual relations between persons of the same sex. The Supreme Court pronounced its verdict after 21 months, in appeal against the Delhi HC’s 2009 judgment in NAZ Foundation v. Government of NCT & Ors., which famously confirmed the constitutionally-protected rights of LGBT Indians and developed an entire realm of jurisprudence on subjects of minority rights, individual liberty, Constitutional morality, privacy, the State’s burden in satisfying a compelling interest for abridgment of life and liberty, substantive due process and Equality.

To appreciate the Court’s opinion, we shall look at all the subjects explored by it in the following parts:

I)                   Scope of Judicial Review(Pages 46-62):

While the Supreme Court recognizes that it is vested with unqualified and absolute authority to declare a law to be unconstitutional, it puts forward the argument of judicial restraint in deference of the principle of separation of powers to tread cautiously in this case. This is all the more disturbing since the Courts have consistently demonstrated judicial activism in an unbridled trend to protect and promote fundamental rights in relation to the environment, expanding the access to justice, human dignity, employment, hunger, education and reproductive rights, amongst others. The Court cites precedents which precisely give credence to NAZ’s arguments in favour of reading down S. 377 to exclude consensual, sexual relations between same sex persons when it recognizes that changing times and progressive, social mores illuminate later generations to the oppressive nature of our past laws (Anuj Garg, 2008), while confounding the public by not disclosing its reasons for disregarding such compelling arguments.

II)                Analysis on S. 377, IPC 1860 (Pages 62-77):

While the Court opined that it has merely expressed its view on the legal validity of the judgment of the Delhi HC in 2009, and not on the constitutional validity of S. 377 per se, the materials referred to in arriving at such opinion reveals the Court’s homophobia and transphobia, and how it has translated into the verdict in a disingenuous manner. For the purposes of demystifying the legislative history of S. 377, the Court relies on 2 provision of the penal code, one of them on rape (S. 375) and the other being S. 377 for no apparent reason, thus conflating the nature of homosexual and transgender sexual relations with rape. This notion is further exacerbated with extensive reference to precedents on S. 377 from the late 19th to early 20th century, which characterize all same-sex sexual relations as violent and “deviant/perverse”, reinforcing fear and loathing against sexual minorities.

The Court’s selective research on the subject overlooks important materials which also inform the social, cultural and legislative history of S. 377, which were held in great regard by the Delhi HC. The Wolfenden Committee Report, 1957 in Britain lead to the abolition of anti-sodomy law in 1967; an integral historical event that the Supreme Court of India couldn’t have inadvertently overlooked but for its apathy towards sexual minorities, given the Victorian-era origin of S. 377. The 172nd Report of the Law Commission of India (2000) recommended deletion of S. 377 on the precise understanding that it operates to persecute sexual minorities.

By its own admission, the Court expresses that “it is difficult to prepare a list of acts which would be covered by the section”, and nevertheless holds that S. 377 would apply “irrespective of age and consent”. Importantly, it states that S. 377 “does not criminalize a particular people or identity or orientation”, rather punishes certain acts (penile non-vaginal sex). S. 377 returns back in greater rigour as not only does it disregard age and consent of persons engaged in sexual relations, but also applies to heterosexual couples now, which renders all persons at risk of prosecution or harassment by their neighbours and police on suspicion of partaking in “carnal intercourse against the order of nature”.

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Hijra activist Laxmi Narayan Tripathi at the Jantar Mantar protests against Supreme Court’s 377 verdict

III)              Apparent deficiency of evidence for Constitutional challenge (Pages 77-79):

The Court expressed skepticism on the authority of the Delhi HC in entertaining the challenge to S. 377 by NAZ Foundation, which issue, in fact, is already settled by the Supreme Court order in 2006 which remanded the matter back to the Delhi HC for “serious considerations”.

On the issue of insufficiency of materials on record to illustrate the patent unconstitutionality of S. 377 in targeting homosexual and transgender persons, the Court simply overlooks all the materials appreciated by the Delhi HC in terms of academic studies, surveys, reports, international jurisprudence and personal affidavits from LGBTI community members and healthcare experts that bore testimony to the personal struggles of the people by bringing to light the violence, stigma, discrimination and harassment faced by the community, dispossession by families and societies, sexuality, mental health concerns for persecuted individuals et cetera. The Court also entirely disregarded the data on health presented by NACO, which emphasized on the dire needs for access to healthcare services for sexual minorities, and the success achieved over the years in reducing the prevalence of HIV as a result of advocating an integrationist policy. It maintains a conspiracy of silence on the times and climate around which the original petition came to be filed by NAZ, when organizations working on healthcare for sexual minorities were hounded by the police, and directly contributes to the silencing of material on record presented by the Respondents.

IV)              Article 14 (Equality and Equal Treatment) and Article 15 (Freedom from discrimination) (Pages 79-85):

The judgment does a great disservice to the institution of the Supreme Court and the relevance of the debate on S. 377 by merely explaining away the intelligible differentia in S. 377 as “carnal intercourse in the ordinary course and carnal intercourse against the order of nature” as constituting different classes. The reasonable nexus between such classification of sexual activity with the object sought to be achieved by the penal statute is again explained away merely as ‘crime and punishment’, in that it seeks to criminalize carnal intercourse against the order of nature, regardless of the fact that the comprehension of such sexual activity is riddled with patent ambiguity and arbitrariness.

Again, recognizing the boundless sea of uncertainty and the probability of misuse of law to the detriment of an individual which has impelled the Court in the past to strike down a law or read it down (K.A. Abbas, 1970), especially in light of the Court’s own observation in this case where it characterizes S. 377 as difficult to construe due to its heavy reliance on the circumstances of a case, the Court simply rules against a violation on grounds of Article 14 without precise reasons. An entire repository of jurisprudence on Article 15 argued by NAZ and expounded affirmatively by the Delhi HC is conspicuous by its absence, which in the least affirms the opinion that the Delhi HC’s observation on sexual orientation as an analogous concept to sex under Article 15 still stands.

Pertinent to note is the Court’s characterization of the queer community in vague terms such as a ‘miniscule fraction’ of the population, shrewdly avoiding using the clearest and legal term as is appropriate in cases where dominant-group interests conflict with individuals or secondary groups: minority. The Court does not once express recognition of LGBTI persons as a ‘minority’, clearly avoiding the trigger of minority-rights jurisprudence well expounded in NAZ (2009) and Anuj Garg (2007). The verdict and the Supreme Court stand as morally and intellectually dishonest in this light.

V)                Article 21 (Right to Life and Liberty) & International Jurisprudence (Pages 85-97):

The Court recognizes that substantive due process has been read into Article 21 of the Constitution by way of Maneka Gandhi, which mandates that the State shall satisfy its burden of demonstrating a compelling State-interest before it can invade into and curtail individual rights, but despite this observation the Court fails to recognize that criminalization of ‘penile non-vaginal sex’ serves no compelling State-interest and is in violation of the right to due process of law.

The Court also makes disturbing remarks about disregarding foreign jurisprudence for applicability in India when it came to appreciating international developments on LGBTI-rights, ignoring that the fundamental Right to Privacy has been culled out from reading foreign jurisprudence into Article 21 of the Constitution of India, right from Kharak Singh (1964), Gobind (1975), Maneka Gandhi (1978) and upto Selvi (2010). The Court’s duplicity is illustrated by its attempt to co-opt the large body of Indian jurisprudence developed to serve human rights of all persons, by emphasizing adverse observations disproportionately to defend its position on S. 377. This is evidenced by clear non-application of judicial thought to Gobind which affirmed that the privacy of the home is sought to be protected by State-intrusion to allow individuals their freedom of expression, howsoever diverse they maybe, which is appropriately applicable to sexual minorities.

The Court defends S. 377 on the grounds that the legislative intent doesn’t sanction persecution of LGBT persons, and misuse by law enforcement agencies does not invite any challenge to the constitutionality of the law itself. This analysis is in direct violation of the Supreme Courts’ own observation in R.C. Cooper (1970) which held that regardless of legislative intent (criminalization of penile non-vaginal sex), if a law directly and inevitably has an adverse effect on a domain it does not intend to regulate (sexual orientation, privacy, public health), the law must be struck down as violative of the Constitution for abridgment of fundamental rights.

Article 21 of the Constitution has been consistently read affirmatively to privilege and expand on the idea of liberty, not its curtailment. Fundamentally, the Court errs in forsaking its duty to protect fundamental rights of its people by creating a wall of hyper-technicality, isolating itself further from the people it is meant to protect and serve.

2012 in review

The WordPress.com stats helper monkeys prepared a 2012 annual report for this blog.

Here’s an excerpt:

600 people reached the top of Mt. Everest in 2012. This blog got about 1,900 views in 2012. If every person who reached the top of Mt. Everest viewed this blog, it would have taken 3 years to get that many views.

Click here to see the complete report.

An Education: The diversity in India’s classrooms is its greatest strength

The Right of Children to Free and Compulsory Education Act, 2009 is the latest example of public welfare laws to be passed by the Parliament. Even though this law promises to make elementary education more accessible to every child, there are several apprehensions as to its actual outcome.

The Supreme Court in its judgment on 12th April 2012 in the matter of Society of Unaided Private Schools of Rajasthan v. Union of India, declared the RTE to be a child-centric law to support its decision in upholding the constitutionality of a provision in the law that mandated private and specified category schools to provide free elementary education to 25% children belonging to a weaker section and disadvantaged groups on admitting them to Class I. Although there are reasons to see why its detractors perceive it as an infrastructure-centric law.

Take for example, the provisions (See S.18 & 19) that necessitate every private school to fulfill a minimum number of criterion, that can be economically burdensome on a lot of financially weaker private schools, to obtain a Certificate of Recognition, without which they risk losing recognition, and consequently, shut operations. (Don’t worry, the children are taken care of. A provision mandates that no school shall be forced to close operations unless the children are transferred to another school, although it is again debatable how many schools are equipped to absorb such children of de-recognized schools).

The other main criticism is directed at the ambiguous procedure prescribed for the admission of reserved category students in private and specified schools (See S. 12 & 13).  Critics say that in the process of outlawing any screening procedures in private schools for such 25% of children belonging to myriad classes of disadvantage (viz., SC, ST, economically weaker section, cultural/linguistic or gender minorities) private schools would now be forced to explore a lottery system in order to ensure that the admissions for the reserved quota of students is based on a purely random selection method, in which case the odds are in favour of children who belong to categories such as SC, ST and the cultural/linguistic or gender minorities who may NOT be poor, and consequently poor families who cannot afford to educate their children have a smaller chance to get in. Yet it is a considerable improvement from until just a couple of years ago when a poor parent couldn’t even dream of affording a private education for his/her child.

I support the rationale in eliminating any screening procedures like interviewing or testing a child, or the parents, which are meant only to profile and eliminate ‘undesired’ candidates.

Why am I upbeat about the RTE then, you ask?

Well, infrastructure and economics is not my forte. I will leave the hard issues, or as I like to call them, boring issues, to persons who are qualified to comment on them to suggest changes in that department. I will talk about the soft issues, or as I like to call them, fun issues. There is a more nuanced criticism of the RTE that is couched in a language that purports to be politically-correct, but the dirt behind it is for everyone to see if they choose to.

This is my defense of the RTE’s policy on inclusive education.

The most contentious issue was the provision of the RTE that made it mandatory for a private unaided school and specified school to admit children belonging to a disadvantaged group and from weaker sections to the extent of at least 25% of class strength to Class I, and continues to remain so inspite of the SC order.

The SC declared this to be a reasonable restriction placed on private schools in pursuit of their trade/profession, as is permitted under the Constitution of India. The economic argument against it is understandable, as poorer schools may have to do with 25% lesser funds during the Academic Year. Although RTE  says that the Government will reimburse every private school the amount of expenditure it incurs on the education of every such child that is admitted based on the 25% quota.

The sociological argument against it is the one i have a problem with; one that suggests that children belonging to poorer families won’t “fit in” with children dominantly belonging to middle class to richer  families.

In a country where 700-800 million people are poor and have health-charts that are comparable or worse than several countries in that continent everybody loves to compare its failing benchmarks with, Africa, it is an affront to the elitist schools’ free-market sensibilities to reasonably expect of them to provide free education to a quarter of children in their classes upto elementary level. These so-called bastions of elite education worry that their “standards of performance” will suffer once anyone without merit is allowed to gain admission. Whose standards of performance are we measuring first of all? And if only merit were to be a criteria to deserve an education and be a have-it-all, why does P Chidambaram act like he’s got a big one stuck up his backside?

Perhaps the most acidic expression of distaste towards this step of more inclusive classrooms comes from an article titled “The RTE Act: A cruel and unusual punishment”:

“We live in a deeply segregated and hierarchical society. The poor are regarded with contempt, as lesser beings who are to be kept at bay. We want our maid to clean our bathrooms, but we don’t want her kid in our son’s classroom. The level of hostility  these children will encounter will be no less, more so since most private schools are virulently opposed to the act.

So these children, between the ages of 5 and 14, will enter an environment where they are barely tolerated, and in many cases, treated with disdain – by their peers, teachers, and authorities. Merely outlawing mental or physical harassment in law doesn’t eliminate it in life – especially not in India. Rather than remove “the psychological barriers” that hold these children back, it will likely reinforce them, and at a very tender age.

A recent Outlook story on Dalit student suicides revealed the intense hostility faced by them in places like AIIMS and IIT – which often drives them to depression and suicide. How do we think a six year old will bear up in that kind of an environment? And how much do we think they will learn?”

Notice the tone of the language used. These are loaded-statements about social biases. Yes, one can generally win a TV-debate by exploiting the dark history of racial and class discrimination in Indian society, and its prevalence in contemporary times. But the RTE is not a TV-debate. Even though it may be flawed with various misgivings about the mode of delivery of the service, it is seeking to create a system of opportunity to encourage more children to seek at least elementary education, and with “quotable-quotes” by forthright argumentative Indians such as above, a poor child looses yet another opportunity to see the inside of a elementary school.

These ideas are so redundant they make me want to quote a line from a song by that hack of an activist-turned-rocker (or was it the other way around?), Bono: ‘We’re one, but we’re not the same’. Yeah, take that FirstPost!

It is outright class-discrimination. Observe also how unapologetic the argument appears about the exploits of abuse by our fee-paying kids against the protected ones. It is as good as giving approval to the kind of offensive sensibilities one hopes to educate children against when they are sent to school to become more intelligent persons. Instead of condoning such dangerous and irresponsible acts, the critics would do well to understand that it is primarily a parent’s job to inculcate a sense of civility and harmony in their child to understand and be polite to persons from varied backgrounds.

What’s that? You think I’m crazy? Okay, let’s even assume this argument is born out of the best intentions. Still, giving legitimacy to it will be perpetuating segregation of the worst kind. The critics would rather exhort the Government to increase spending on public education and allow good access to education for poor kids. It’s alright, but it’s never happened. It’s tantamount to saying ‘Separate, but equal’. I’m sure the level of distrust between Hindu and Muslim society post-Independence must have been at its peak, but did that mean their kids studied in exclusive schools?

This brings me to my second point.

As per the proponents of this argument there exist only two worlds in our classrooms that need to reconcile their differences: the rich/middle-class and the poor. Allow me the opportunity to burst your bubble. Following is a list of   persons that all along existed in a parallel universe with you fabulous ones, while you were busy planning to go out for a “cheese pizza” with your hot classmate (these are just some that come to mind at the moment) :

  1. Children that are Muslim.
  2. Children that ethnically belong to the North-Eastern states like Manipur, Assam, Meghalaya, Tripura, Nagaland, Mizoram and Arunachal Pradesh.
  3. Children that belong to socially disadvantaged groups like a Scheduled Caste or a Scheduled Tribe.
  4. Children that are gay and lesbian (If you are bi, stop complaining, that was always a cool thing).
  5. Children suffering from a disability.
  6. Children that are not ‘hot’. (Granted, this might seem like a cosmetic issue, but people around you will testify that teenage bitchiness is as upsetting as classist barbs).

It has always been the case that, generally, children from dominant social positions have ruled the school-hierarchy, (Too much political-correctness itself becomes politically-incorrect, hence, I am merely stating facts from personal experience without taking away the merit from anyone who has been an asset to their schools). While children from   weaker social positions have been often subjected to verbal abuse (being called a terrorist, Paki, cutlet, chinky, Gurkha, chamar, bhangi, homo, faggot, hijra etc.), and very often also physical abuse for exactly this: possessing a distinct identity. Assimilation of diverse identities has always been an uneasy issue all over India (for some without choice), so why this hullabaloo when the same is desired to be achieved at the smallest levels of our system, where such issues can be nipped in the bud?

Try substituting ‘a Muslim, Dalit or a gay child’ instead of a poor child in the excerpts from the article quoted above, and see if it still makes sense(don’t go verbatim). Also, try asking any of your friends who might belong to one or more of the categories mentioned above, what it was like going through school where they might have been exposed to a hostile environment because of their identity. It is difficult enough for many young adults to understand their distinct identities, and then to face ridicule, insult and discrimination from peers and having come out of it with strength is a different learning experience altogether. If asked, I’m sure many would say school was a bleak time in their life, but would still choose to go through an integrated school and learn valuable life-lessons rather than go through an artificially-created comfortable environment that could push them over the edge once exposed to the world outside school. Our classrooms have been privy to several battles, and they have not fallen yet, which is a testament to the reconciliation of our divisions, at least to some degree. If stories of violence against children who hail from North-Eastern India or who belong to any disadvantaged group of society should teach us anything, it should be that parents are increasingly getting alienated from their children’s lives, and due to  inadequate nurturing and a lack of a sound value-system, the child is prone to victimize other vulnerable groups of children. Home is where things need to be re-visited at, for it to translate into healthy classrooms.

This brings me to my other point. While it is true that a lot of this hate and discrimination is still going around, the children are smartening up too. I’m sure many of us have seen an insensitive remark gone un-forgiven by friends. Just last year, my 11-year old sister realized that one of her friends was being disrespectful to another girl in their friend-circle, because she is Muslim. I don’t blame the child entirely to harbour such ideas, because her mother is known to blurt her stupid thoughts around her. I don’t know what exactly transpired between the girls, but today, all of them still play together, except the problem-child.

All children go through different kinds of trouble at school, some more difficult than others. The point is, we all learn to develop some basic survival skills(some go to Self-Deprecatory Humour Class, while others go radical with Emotional-Eating 101) and eventually turn out as fine adults, so please don’t under-estimate the children because of some dumb problem created by bigots centuries ago. Give them a chance, and they’ll show us they’re smarter than we think they are.

There are a hundred good reasons to segregate children and put each of them in exclusive social-category schools. Do we give in to the worst in our human nature, or do we accept it as a challenge and make it work by re-thinking social attitudes?

But there is an even better argument to make them all go through the hellish period of school together, which is perfectly encapsulated in one of my most loved speeches of all times. When leading Civil Rights activist Dr. Martin Luther King Jr. was assassinated on 5th April 1968, Robert F Kennedy (then Presidential candidate) delivered a speech that reflected on what it meant to live in a diverse society. A few excerpts from ‘The Mindless Menace of Violence’ are reproduced below:

“For there is another kind of violence, slower but just as deadly, destructive as the shot or the bomb in the night. This is the violence of institutions; indifference and inaction and slow decay. This is the violence that afflicts the poor, that poisons relations between men because their skin has different colors. This is a slow destruction of a child by hunger, and schools without books and homes without heat in the winter.

This is the breaking of a man’s spirit by denying him the chance to stand as a father and as a man among other men. And this too afflicts us all. I have not come here to propose a set of specific remedies nor is there a single set. For a broad and adequate outline we know what must be done. When you teach a man to hate and fear his brother, when you teach that he is a lesser man because of his color or his beliefs or the policies he pursues, when you teach that those who differ from you threaten your freedom or your job or your family, then you also learn to confront others not as fellow citizens but as enemies – to be met not with cooperation but with conquest, to be subjugated and mastered.

We learn, at the last, to look at our brothers as aliens, men with whom we share a city, but not a community, men bound to us in common dwelling, but not in common effort. We learn to share only a common fear – only a common desire to retreat from each other – only a common impulse to meet disagreement with force. For all this there are no final answers.

Yet we know what we must do. It is to achieve true justice among our fellow citizens. The question is now what programs we should seek to enact. The question is whether we can find in our own midst and in our own hearts that leadership of human purpose that will recognize the terrible truths of our existence.

We must admit the vanity of our false distinctions among men and learn to find our own advancement in the search for the advancement of all. We must admit in ourselves that our own children’s future cannot be built on the misfortunes of others. We must recognize that this short span of life can neither be ennobled nor enriched by hated or revenge.

 Our lives on this planet are too short and the work to be done too great to let this spirit flourish any longer in our land. Of course we cannot vanish it with a program, nor with a resolution.

 But we can perhaps remember – even if only for a time, that those who live with us are our brothers, that they share with us the same short moment of life, that they seek – as we do – nothing but the chance to live out their lives in purpose and happiness, winning what satisfaction and fulfillment they can.

 Surely this bond of common faith, this bond of common goal, can begin to teach us something. Surely we can learn, at least to look at those around us as fellow men and surely we can begin to work a little harder to bind up the wounds among us and to become in our hearts brothers and countrymen once again.”

If you still don’t get it, watch Remember the Titans now!

Notes –

  1. Summary Analysis of the Supreme Court decision by PRS legislative Research – http://www.prsindia.org/theprsblog/?p=1442
  2. The RTE Act: A cruel and unusual punishment, Firstpost – http://www.firstpost.com/india/the-rte-act-a-cruel-and-unusual-punishment-274965.html
  3. Let’s stop pretending there’s no racism in India, The Hindu – http://www.thehindu.com/opinion/op-ed/article3466554.ece
  4. Full-extract of ‘The Mindless Menace of Violence’ speech by Robert F Kennedy, John F Kennedy, Presidential Library and Museum – http://www.jfklibrary.org/Research/Ready-Reference/RFK-Speeches/Remarks-of-Senator-Robert-F-Kennedy-to-the-Cleveland-City-Club-Cleveland-Ohio-April-5-1968.aspx

Kill the White Messiah

Look into the mirror”. Noam Chomsky’s sobering and instructive words hold good advice to a new generation of ‘Warriors of Light’ who are awakening to injustice in the world we live in. Social justice, much like the neo-liberal agenda, has globalized in the past couple of decades or so. No injustice is too far away to intervene and correct. If the globe is truly universally connected today as they say, you need to introspect how you are connected to the world you seek to change.

Invisible Children’s YouTube phenomenon Kony 2012 promises to do just that. Except it lies.

Kony 2012 is not only misinforming the hottest demographic in the world it seeks to target, teenagers and yuppies, it is paternalistic and pure old-school Western racism. If anything, it is a classic disinformation programme. Remember the ‘Nurse Nayirah’ incident?

Nayirah, a young nurse in Kuwait, was flown in to the United States’ Congress in 1990 to testify before them the horrors of the atrocities committed during the Iraqi invasion in her country. She recounted stories, as she choked emotionally before Senators and millions of Americans watching, of how the barbaric Iraqi soldiers broke into hospitals and threw babies out of their incubators to die on the streets. In months leading up to America’s involvement in the First Gulf War, George H Bush would invoke Nayirah’s testimony on every platform he appeared as a rationale to seek public support for joining Kuwait in the war. This is just what they needed to claim the moral backing of the American public, and as public opinion polled in favour of the war, the US started wantonly bombing Iraq. As it so happened, ‘Nurse’ Nayirah was no nurse at all – she turned out to be the daughter of then Kuwaiti Ambassador to the United States who was coached to rehearse her testimony. The whole media circus of her testimony and influencing public opinion in support of the war was brought to the American public by one of the biggest PR firms in business at its time – Hill & Knowlton. By the time this knowledge became public, Kuwait was on its way to ‘liberation’, and Americans had once again learnt it the hard way that the first casualty in war is truth.

So how do you make sure if Kony 2012’s moral compass is pointing in the direction of justice? Let’s start with Uganda.

The incumbent Ugandan President, Yoweri Museveni, has gladly accepted ‘structural adjustment programmes” for his country proposed by the World Bank and IMF since the 1980s, that encourage Third World countries with dictators and ‘natural allies of the West’ to keep borrowing more credit. It means ‘growth’ for Uganda in the long-run, achieved by speculative and export-oriented agriculture and liberalizing trade at all levels. It’s no surprise that Uganda is suffering a food crisis too, because that’s how the Washington Consensus works – the Third World, which now imports basic sustenance crops, produces crops for the First World, with scant regard to local temperatures and geographical factors. In a sharp reaction to this inequality in India, journalist P Sainath once remarked – “The dream of the Indian farmer is to be born a European cow“, because the latter are the most food-secure creatures on the planet thanks to the generosity of the former. With the recent discovery of oil reserves in Uganda, it won’t be long before Big Oil kills more Ken Saro Wiwas there.

If economic terrorism isn’t good enough for you, then let’s take a look at Museveni’s downright terrorism. He’s Family International’s ‘key man’ in Africa. Family International is the largest fundamental Christian evangelical organization from the West; the Book of Revelations Nazis, if you will. They’ve had every American President in their pockets since WWII. On the very first day of his job, the American President, including Barack Obama, has presided over the National Prayer Breakfast organized by the FI, where he vows to “end suffering and bring Christ’s message around the world”. That’s why they’ve been instrumental in shaping the world in many ways; be it attempting to crush liberation theology that seeks to connect the poor and the meek to Christ’s original gospels in Latin American countries through the 1980s, funding rebel groups such as the Contras in Nicaragua, lobbying with the US government to support Israel’s occupation of Palestine or simply bringing down ‘un-Godly’ communism in Poland.

There’s no other reason why he’s been described as ‘a new breed of African leaders’ by the West.

One might wonder, with Museveni boasting of a devil’s resume, things are bound to be in shambles in his own country, which is exactly what Kony 2012 doesn’t inform you about. Yes, what Joseph Kony does as the leader of the Lord’s Resistance Army by abducting children and raising an infantry is obviously terrible and sad. Those kids need rehabilitation and justice as much as any other victims around the world, but let’s not lose context, for it helps connect the past to the present and identify the real problems that foster Konies around the world. Like several countries around the world, Uganda’s at war with itself. The ethnic-conflict caused by unbalanced socio-economic factors between the North and the South is an inheritance of British colonialism, which has been left untouched by successive governments post Uganda’s independence in the 1960s. Fifty years of marginalization and deprivation of North Ugandans might be border-line genocidal, and that is exactly what has driven the LRA to take up arms. I am not advocating the moral high-ground of the LRA; I’m merely suggesting the Ugandan problem needs a Ugandan solution, an indigenous peaceful negotiation to come from within, not the West and not anybody. India should know this so well that it should stand up to the world and shout – Story of my life, man!

There is as good a chance tomorrow for some pasty-white kid with a camera to mobilize the world to ‘Make the CPI (Maoist) Famous’ and get NATO troops deployed in the forests of central India to save the Invisible Tribals. I hope when that day comes, we know better. It is good to study other countries’ atrocities and bring attention to them, but it is our primary duty to look at our own atrocities and rectify them. It is the moral duty of the Americans today to call Invisible Children’s bluff and for the Ugandans to ask hard questions to themselves and their government.

The West’s attitude towards Africa, Middle-East and Western Asia is reflected in the words of John Mill Stuart’s (East India Company official) on India– the barbarians are backward and inferior, and for their own benefit we have to uplift them, civilize them and educate them and so on. At the period of its worst atrocities, Stuart described England’s dominion over India as an angelic power, so magnificent that nobody could understand how wonderful they are. That has always been the moral and intellectual content behind colonization.

If you see the White Messiah on your screen again, switch it off, and do the world a favour before you set off to save it – open a book.

Notes –

  1. NYT Examiner article on mainstream media manufacturing consent on Joseph Konyhttp://www.nytexaminer.com/2012/03/joseph-kony-and-the-new-york-times/
  2. Pete McCormack, director of Uganda Rising(2006), interviews Professor Noam Chomsky on the impact of neo-liberal agenda on Africa http://www.petemccormack.com/social_005.htm
  3. Better Business Bureau’s current rating of Invisible Children – http://www.bbb.org/us/article/kony-2012-video-sends-mixed-message-to-young-activists-33206

The Goddess of Revolutionary Things

Her talk at St. Xavier’s, Mumbai last month wasn’t a table-thumping speech, but Arundhati Roy certainly knows how to arouse the ‘Call to Arms’ with a voice of reason.

Titled ‘Capitalism: A Ghost Story’, and organized by the Arunadha Ghandy Memorial Trust, Arundhati flogged the foremost ghost of India’s crony capitalism, Mukesh Ambani, for a recent deal he made with Raghav Bahl, promoter of Network18. Arundhati urged citizens to oppose such policies and laws that allow big corporates to gain unethically from unbridled cross-ownership of businesses.

Arundhati Roy with Fr. Frazer, Principal, St. Xavier's College(Anuradha Ghandy in background)

What’s the big fuss about RIL’s deal with Network18?

Ambani will gain indirect control over Network18 and Raghav Bahl will in turn be shepherding RIL’s investment in the network of ETV channels, run by Ramoji Rao’s Ushodaya Enterprises. It calls into question the matter of editorial independence once RIL can control the formerly autonomous media houses.

One can certainly see Arundhati’s point when it comes to big corporate acquiring media houses. As journalist P. Sainath warned, “It only adds to the process of shrinkage of diversity and lends itself to increasing homogeneity in news and entertainment. The fourth estate is now about revenue streams and corporate profits – really just real estate”.

The deal received a lot of flattering coverage in the business media, but whatever critical analysis it was subjected to was reported in the Mumbai Mirror as part of covering Arundhati’s visit to St. Xavier’s. So basically the MM pulled off a “That’s what she said” on its readers. It’s easy to stifle debate by suggesting that it’s coming from a crazy bitch.

Political Prisoners Much?

One would think that Arun Ferreira would be much sought after at the event after having been released on bail from Nagpur Central Jail after 4 years of incarceration without trial. He was acquitted and released in 10 cases in September 2011 that alleged him to be the Chief Propagandist Officer of the CPI (Maoist) in Nagpur, and suddenly re-arrested the very same day. This galvanized his friends and supporters into organized campaigns by Fr. Frazer, Principal of St. Xavier’s College (from where Arun had graduated in Mathematics in 1990) and the Bombay Catholic Sabha, that finally lead to his release.

He didn’t turn up though, much to my disappointment, but the ghosts of his persecution left an impression on Arundhati. She spoke of how the State favours NGO-oriented kind of work in the tribal areas. As long as you distribute fruits and medicines to the tribals or the oppressed, the State is happy. But when you talk to them about why they’re poor, how they can change their situation, the State gets uncomfortable. Arundhati spoke at length about ‘think-tanks’ such as the Observation Research Foundation and NGOs like India Against Corruption, and expressed concerns over how powerful sponsors shape policy for ‘independent’ ground work. All suited for building consensus on the neo-liberal agenda for India’s ‘growth story’.

The Solution

R-E-V-O-L-U-T-I-O-N! If there was ever any doubt within the Arundhati-mania or the Arundhati-haters club about her position on the Naxalites’ ultimate goal of violent over-throw of the Indian State, she settled the matter right there…three times! The alternate solution of peace talks she’s been advocating for years has been muzzled by the State. Operation Green Hunt and the CRPF rendering the Maoist leadership ‘headless’ since 2010 certainly left no doubt about it. She went so far as to make an impassioned plea to urban citizens to support the tribals’ rights to live peacefully in their forests (read: join the struggle). Lots of hollering in the hall at this time.

Whether you hate her or disagree with her, it will do us all some good to bear the results of the State crushing the Naxalites, or of the impending revolution.

If the uprising is successful in overthrowing democracy, India as we know it might become a relic of history. Of course I would love to be optimistic about a classless and casteless society, a land of opportunity for all. But it’s hard to figure whether post-revolution India will turn out to be a Stalinist-Russia or go the Latin American way.

If however, the State pursues its current policy of wiping out the ‘Naxal-infested’ areas, a problem that is still regarded as a conflict arising out of a socio-economic imbalance from many within the Government, Democracy will survive to see the day…but at what cost? India will then go down in history as having betrayed its own people to the point of a most bloodiest-vendetta, more so terrible as they will have killed the very idea of India.

Notes

  1. Outlook’s article on the RIL-Network18 deal – http://www.outlookindia.com/article.aspx?279466
  2. Arun Ferreira’s interview with Outlook – http://www.outlookindia.com/article.aspx?279553

Why the Prime Minister’s Rural Development Fellows Scheme Volunteers should buy Life Insurance

On 13 September 2011, Union Minister for Rural Development Jairam Ramesh announced a brave initiative called the Prime Minister’s Rural Development Fellows Scheme. The Ministry of Home Affairs has identified 60 districts as Left-Wing Extremism (LWE) affected areas, in lieu of which the PMRDF plans to ‘deploy’ around 180 Fellows comprising of working professionals from private organizations and fresh graduates from fields of law, management and medicine to assist the District Collectors in better civic administration for the Maoist/Naxalite ‘infested’ areas.

The Ministry of Rural Development plans on rewarding the Fellows handsomely. For the 2 year contractual agreement that the Fellows will be working in these areas, each will be paid Rs. 65,000 per month for the first year and Rs. 75,000 the next.

Besides waking up late to the developmental agenda for these zones, the MRD’s official website makes no secret of the fact that PMRDF is launched with the hopes of weaning the influence of the Naxalites amongst the tribal villagers. It’s a tough task to eliminate from public memory the fact that the Naxalites re-distributed more than 3,00,000 acres of forest land amongst the tribal villagers in Dandakaranya(covering parts of Orissa, Chhattisgarh, Maharashtra and Andhra Pradesh) over the course of their revolution.

I’m not skeptical about the PMRDF. If anything, my respect for Jairam Ramesh has notched higher every time he has walked the tight-rope of sustainable development with a lot of sensitivity to its ramifications on human rights. As Union Minister for Environment and Forests he protected the villagers of Orissa from Posco’s forced land acquisitions, prevented large-scale environmental degradation and displacement of the Kondhs in Orissa due to unbridled mining and saved the people of India from a harmful, genetically modified brinjal. For all that and more, the people ought to be proud of Ramesh for steering our ‘growth-story’ in the right direction.

But I have serious misgivings about the success of PMRDF. The timing couldn’t be more wrong.

Due to the pressure exerted by various groups of human rights activists and public intellectuals, the Home Minister had earlier maintained that the Government is always ready for ‘peace talks’. After several overtures on behalf of the Naxalites to drop weapons and come to the table, the Home Ministry had a sudden change of heart and went in an over-drive with “rendering the Naxalite movement headless”. With fake encounters of two senior politburo members, Cherukuri Rajkumar and Koteswara Rao (alias Kishanji), not only has the Government lost all its credibility, but also an opportunity to mediate with the “gravest internal security threat” toIndia. And if the CPI (Maoist) Central Committee’s latest press release after Kishanji’s encounter is anything to go by, the Naxalites consider Jairam Ramesh a collaborator of the Home Minister’s agenda too.

In such a climate of hostility, the PMRDF is nothing short of a suicide-mission. It’s alright to say that the working professionals and graduates who’ll be employed in these conflict-zones have squat to do with the decades of dispossession suffered by the tribals and are coming in as Good Samaritans, and thus we must expect, nay, demand immunity for them from the violence prevalent in the LWE affected areas. In the event that they’re caught in the cross-fire between the State and the Naxalites, it would be arrogant to support the Government’s plan for on an all-out offensive on the Naxalites. (Just a thought – Can the Indian State be so callous that the PMRDF has been engineered in a fashion to sway public opinion in the government’s favour in the event of guerilla attacks?)

This is war. You don’t start re-building the battleground right in the middle of the war. I hope that the 180 individuals who’ll be selected for the Fellowship know what they’re getting into. I personally love this idea of committing two years of your life in an exercise of nation building the way Gandhi saw village-level independence and be handsomely paid for it too; when was the last time fresh graduates felt so valued in a government job then a private one? But I don’t see myself going there anytime soon. As long as this ‘threat’ persists, which even Jairam Ramesh identifies as a socio-economic crisis emerging out of government apathy for decades, it is not only dangerous, but also insensitive to tread on this path considering the degree of distrust between the tribal villagers and the government. Never the less, I would be the happiest person if proven wrong, to see the civil administration successfully ‘winning hearts and minds’ of our tribal communities. Until then, if you’re heroic enough to participate in the PMRDF, you might as well buy yourself some Life Insurance. It’s just good sense.

My two cents: Chidambaram and Ganpathy really need to sit down over a bowl of ant chutney and have a heart-to-heart.

(The descriptions Naxal and Maoist are used inter-changeably in the article. The Maoist struggle as we know it today, has its origins in 1960s Naxalbari, a small village in Darjeeling, Paschimbanga.)

Whose sin is it anyway?

Kaushik Basu, the Chief Economic Advisor to the Ministry of Finance, Government of India, visited KC College in Mumbai on 6th January 2012 to manufacture consent on the subject of legalizing a class of bribes amongst many ideas for readying India for the global stage.

 Many Indians responded with anger when Basu first made this statement a few months ago, in the light of the brewing 2G spectrum scandal. This was soon followed by the czar of the Indian IT industry, Narayan Muthy, giving credence to Basu’s idea and promoting it. There was more anger. It certainly did not help the situation when Law Minister Salman Khurshid, on the SC rejecting the bail pleas for the 2G spectrum case accused, remarked that institutions of  the government had to factor in the “political-economy” that we are faced with today, lest it would have a freezing effect on our investor relations.

 I was very angry at this absurd suggestion too. I wanted to disprove it as much as I wanted P Chidambaram to discontinue as our Home Minister. So when Kaushik Basu published an initial paper on his new theory on his website, I thought it a good opportunity to do some homework. After all, we’re supposed to be living in the age of reason, so let’s try and discuss the merits and de-merits of this “out of the box” idea.

 

 Harassment Bribes

Basu begins the paper with the premise that a disproportionate amount of cases of bribery that take place between government officials and a private person (here, person shall mean a citizens well as organizations) are harassment bribes. For example, a person goes to register his land titles and the government official won’t budge unless he gets some chai-paani.

What Basu states is that, as per the proposed legislation the bribe-giver be given total immunity in lieu of his coerced bribe-offer, and the government official be fined to pay back twice the amount of money that accounted as the bribe money. Hence, once the act of bribery is done, and as per the proposed legislation, the interests of the bribe-giver and the bribe-taker are at a divergence. If apprehended, the bribe giver will have total immunity from prosecution as he was coerced into giving a bribe, while the bribe-taker faces a hefty punishment.

Since a bribe giver is immune from prosecution and is likely to co-operate with the investigating officials in getting the guilty government official caught, this creates a psychological barrier in the mind of the potential bribe-taker to ask for bribes, hence significantly reducing instances of corruption, argues Basu.

The most patronizing part of Basu’s paper is where he imagines that once the proposed law comes into force, the aam-aadmi will record some evidence of the bribery – a secret photo or jotting down numbers on the currency notes handed over and so – so that the victim can immediately turn in the evidence for swift action. Do we really need a new law to motivate us to be more proactive in being more diligent while dealing with government officials? What’s stopping us now from doing that?

Institutional details

Basu then goes on to critique the existing anti-corruption law in the country, The Prevention of Corruption Act, 1988. The overtones of the language in the paper clearly suggest Basu’s disapproval of the Act considering the act of giving a bribe as abetment of the offence of bribery.

Section 12 of the POCA 1988, the provision that punishes offences described u/s. 7 or 11, goes as follows –

“Whoever abets any offence punishable under section 7 or section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine”.

S.7 and S.11 deal with acts of public servant when they accept gratification or a valuable thing for an official act.

S. 24 of the POCA, 1988 states the exception to the rule of prosecution for punishing acts of bribery, and goes as follows –

“Notwithstanding anything contained in any law for the time being in force, a statement made by a person in any proceeding against a public servant for an offence under sections 7 to 11 or under section 13 or section 15, that he offered or agreed to offer any gratification (other than legal remuneration) or any valuable thing to the public servant, shall not subject such person to a prosecution under section 12”.

Basu is gracious enough to cite this provision, and it is exactly at this point in the paper that you begin to see through the propaganda. When there’s already a provision of law (S. 24 above) that protects a bribe-giver in instances of harassment bribes in a situation when he is willing to turn a witness for the prosecution, then why do we need a new law that presumes all government babus to be corrupt and give the benefit of the doubt to the aam-janata? It’s just good politics, silly! The government loves to act like the Messiah who gave power to the people. By reposing such faith in the incorruptibility of the ordinary citizen, the government is running a massive disinformation campaign to engineer a citizen versus the government official revolt, the results for which are likely to climax in a big agenda election campaign.

Non-Harassment Bribes

Basu then goes on to discuss the occasional cases of non-harassment bribes, where the bribe giver benefits from offering a bribe to the government official as he has something substantial to gain. Should the bribe giver be given full immunity be given in such cases? His answer is ‘No’.

This proposed law will have to answer a big question – how does the prosecution come to the conclusion that ‘harassment’ occurred or not? Does it get any more circumstantial than this? Will this new law make it easier for persons like those accused in the 2G spectrum case to get away because of the presumption of guilt going against the public official? The current procedure of following the due process of law in determining the guilt of the accused only after a thorough investigation is our best bet, for the offence of corruption has surpassed the categorization of a ‘white collar crime” due to its pervasiveness in our system. We need to consider both the parties, the bibe-giver as well as the bribe-taker as equally guilty.

This brings us to Basu’s bias against the public servant. He advances the argument while discussing non-harassment bribes that the punishment meted out to the bribe-giver should be substantially lesser than that given to the bribe-taker, as the public servant is tasked with the moral responsibility of being the guardian of public resources, hence his punishment should be more severe. So in Basu’s world there is no such thing as Big Industry “lobbying” with the governments. He just came short of suggesting that A Raja bullied Ratan Tata into paying up a bribe. What’s interesting to note here is that the hierarchy of the act of bribery reverses when you go from the bottom to the top. As middle-class citizens, many of us would be aware of the reluctance of the authorities to act unless offered some chai-pani(it’s disgusting how the popular reference for bribes in our national language has come to mean money for basic sustenance), while it is hard, if not impossible, to imagine A Raja arm-twisting Ratan Tata into stashing away crores of rupees in NGOs managed by him and his family members. With the 2G scandal investigations and trial it is now amply clear how a PR Executive(that designation commonly passes for a lobbyist) orchestrated political negotiations between the Congress and the DMK to allow A Raja to occupy the seat of the Minister of Communications and Information Technology. In Basu’s worldview when Eve accepted the Devil’s temptation in the Garden of Eden, it is Eve alone that shall be punished for her sins. We need to factor in the “political-economy” of the situations in which these acts were committed, and have quick reforms to deter Eve from succumbing to temptation again. Let the Devil run amok, that’s okay.

Just as the public servant is tasked with the moral responsibility of protecting public resources, shouldn’t it be our moral responsibility too, to not abet the breach of such responsibility? I guess that is a whole different debate how we as an increasingly “developed” society demand our Rights, but shirk off our Duties.

Caveats

Basu suggests that if the proposed law comes into existence it will also make it difficult for the serial-briber to operate. It moves ahead on another preposterous presumption that the serial briber now will have to weigh the cost of:

a)      Loss of credibility amongst the corrupt circle of officials with whom he lobbied with to get his plans to fruition; against

b)      The gain of getting his money.

I certainly don’t think so that Basu is ignorant of the modus operandi for such shoddy deals, with a new category of agents coming into effect to safeguard the high and mighty, in exchange for some big compensation for the big sacrifice they’re willing to make – the ubiquitous fall guy. All our notorious Prime Ministers have survived their terms by ‘activating’ a sleeper-agent whenever it suits their interests. Manmohan Singh would himself be the greatest case-study on this subject.

Basu’s game theory can be turned on it’s own head, where he says that human ingenuity is so great that no matter how many plugs we put into to stop corruption, people will almost invariably find a way around it. If the instances of high-level bribes continue plague the system, it will be inspite of this law, not despite it.

Notes – 

1. See Kaushik Basu’s paper on “Why, for a class of bribes, the act of giving the bribe should be treated as legal” – http://www.kaushikbasu.org/Act_Giving_Bribe_Legal.pdf

 

2. Unblanking the Tapes, Outlook cover-story – http://www.outlookindia.com/article.aspx?269665