Saturday, September 25, 2010

A memoir that’s honest to the hilt

Among the well known lawyers of our times, Fali S Nariman is one of those who have always represented the propertied classes in court. There is hardly an instance when he took up the cause of the poor. In this sense he belongs to a league that sought to turn the Constitution on its head. But Nariman is also among those to whom democracy is merely a political concept and concerns the rights of the individual. He asserts his right to dissent as non-negotiable. He had the courage to resign as Additional Solicitor General immediately after the Emergency was declared, in June 1975.

His memory is intact at 80, and there is a certain honesty when he informs the reader about the context in which he was appointed Additional Solicitor General. Nariman was H R Gokhale’s counsel in an election petition. And when Gokhale became law minister in Indira Gandhi’s cabinet, Nariman became one of the Union government’s law officers.

Those were times when Indira’s establishment loved socialism in the same manner a teenager now likes to wear a T-shirt with Che’s face on it. Nariman was among the lawyers who appeared against the State in the Golaknath case and others of its kind and argued against socialistic laws! Yet the establishment did not hesitate to appoint him. Nor did Nariman think twice before accepting. His distaste for socialism is pronounced. He holds K Subba Rao among the greatest judges of his time. Justice Subba Rao wrote the judgment in the Golaknath case and he set the clock back by holding fundamental rights sacrosanct and un-amendable. Directive Principles, for him, were mere principles to decorate the Constitution!

It is this simple approach to the law and the Constitution that guided Nariman as a lawyer. And the lawyer who asserted his right to dissent when the Emergency was imposed had no hesitation in taking up the brief for Union Carbide Corporation. Those who died and those who suffered the effect of toxic gases did not, after all, belong to the class Nariman represented in Golaknath. The senior counsel may not have taken the brief had the victims been of the landed aristocracy.

Nariman’s defence is different from the usual one that lawyers peddle: that professional ethics demand that he does not refuse a brief. His argument is that he could not have held UCC guilty beforehand and hence he agreed, with an open mind, to defend the corporation which caused the death of so many poor people. And he endorses Chief Justice Pathak’s lament (while approving the paltry $470 million as full and final settlement) that the welfare state had failed to generate a fund to succour the victims. It is sad that he argues in this way. He is forthright in his arguments against the principle of polluter-pays, and says the welfare state ought to bear the cost of relief, at least in the interim stages between an industrial disaster and the final judicial settlement.

The autobiography contains a lot of interesting things about Nariman’s early days in the Bar. There are interesting narratives from his early days and also about the manners of some of the leading names in the profession. The autobiography also reveals his relationship with Bapsi; those who know Nariman well also know that he and his wife are the best of friends too.

Nariman will be remembered for his decision to return the brief to the State of Gujarat (in the dispute on the Narmada Sarovar project where he argued against the rights of Adivasis to live in their own land) after the unabated
attacks against the church and Christians in the Dangs region. But this, as well as his fierce commitment to individual freedom in the wake of the Emergency will fade into the background. The book came out just weeks after memories of Bhopal were revived with the verdict on June 7.

Even if he had chosen another time for the release, the story of his role in the Bhopal case could not have escaped attention. For Nariman is an honest man. He devotes several pages to reproducing the texts of some of the most trenchant criticisms against him for having taken the brief for UCC, his own responses to those in those times; and does convey that even if he does not regret his acts, he may not take up a similar brief another time. It is abundantly clear that Nariman is honest to the hilt and that makes the autobiography what it is. A must-read for every lawyer and anyone who thinks of writing an autobiography. But some would say that honesty is not a virtue. I would insist that it is in these bad times.

Tuesday, September 14, 2010

AFSPA must be scrapped... not only in Kashmir but everywhere... Kashmir is on the boil once again. Amidst images of stone pelting by the youth, which are now becoming regular visuals that the TV channels beam across the country, the Union government, we are told, is now talking to Chief Minister Omar Farooq. The Armed Forces Special Powers Act (AFSPA), a notorious legislation that has been there for over five decades, is now the contention.

Omar Farooq, we are informed, wants the act to be amended or taken off from parts of Kashmir and the Union Cabinet is divided is what the media informs us. There is also a campaign, in which the media houses are engaged, to endorse Omar’s demand as a face saving formula so that talks are held between the establishment and the Hurriyat. Well. We do not know the truth as such and let me stress here that the AFSPA has to go.

Let me add, in this context, that the AFSPA has to be taken off the law and this has to be done not in small measure but as a whole. I say this because there is a serious problem with such acts in the sense that it gives the army and the para-military forces the license to kill and many men, women and children have been killed for no reason in the fifty years that this act has been in vogue. It is also important to add that such killings have taken place not only in Kashmir but in the North-Eastern States of this country.

One of the aspects of the act is that it provides the right to kill and does not warrant any enquiry into such killings. It also provides for indiscriminate arrests and detentions by the army, when called into operations in civilian areas. The point is that civilian disturbances are political in nature and a solution or a response to such mobilizations will have to be political in nature and not by using the army.

In other words, it is important to realize that the demand to withdraw the AFSPA is NOT to support the mobilization of the people and their demands. It is a different matter that the Hurriyat Conference, now under a spell of the forces that demand separation of Kashmir from India and the Indian State cannot stay with its eyes closed to such campaigns. But then, it is important and necessary that the leaders who raise such demand are isolated from the people and dealt with in accordance with law.

What we see now is situation where the Indian State is doing everything to help those leaders rally the people behind them. The AFSPA, in fact, is one aspect that helps the leaders rally the people behind the demand for an azad Kashmir! The point is that battles for the integration of India will have to be fought in the minds of the people and for this there is no use for repressive and anti-democratic laws as the AFSPA. What we need is a political message that India is a democratic country and the nation will listen to the aspirations for democracy from where it comes.

At the roots of the mass agitation in Kashmir today are the youth who have been cheated and kept out of the democratic process in Kashmir. Recall the elections to the assembly in 1987. Almost all the leaders of the Hurriyat now were candidates of the Muslim United Front (MUF) then. And the Congress, in association with the National Conference, then led by Farooq Abdullah, conducted as much rigging then to defeat all the MUF candidates. And it is from then that the youth in the valley began losing hopes on democracy.

The rest is history. And we did see that the Indian establishment set out on a path where it encouraged all those who picked up the gun and stones before inviting them to talks. And what more do we need to say that this dangerous game, un-democratic in its core, is being played not just in Kashmir but elsewhere too.

Irom Sharmila Chanu, in Manipur, has not eaten a morsel of rice or anything for hat matter, for more than ten years now. She is on a hunger strike, picked up by the police every now and then on charges of attempting to commit suicide, admitted to a hospital in Imphal, and released only to be arrested again. She is on fast demanding that the AFSPA be scrapped and democracy restored in her own region. The Chief Ministers of Manipur, time and again, have endorsed her demand. But then the media has not taken up that demand as it is now taking it in case of Kashmir. The Union Cabinet has not met to decide on that yet.

The message is clear but dangerous. That the Government will even take up the demand for scrapping the AFSPA only when the youth throw stones and burn buildings. Not when a young girl resorts to the Gandhian form of agitation, the supreme form of struggle: Sathyagraha. This is sad and even strange. The government, that exists in the name of democracy, desecrates the supreme ideal of democracy and encourages violent means in agitations. Scrap the AFSPA, not in parts and not in pieces but as a whole and make it clear that Irom Sharmila Chanu made you do that.

Wednesday, September 08, 2010

Jharkhand as a Window to our Democracy!!!

The BJP, or for that matter parties across the spectrum, do not seem to have any sense of shame. If there was any, there was no way Arjun Munda will become Chief Minister of Jharkhand. The BJP has cobbled up a majority with the Jharkhand Mukti Morcha (JMM), the Janata Dal (United), All Jharkhand Students’ Union and a couple of independent MLAs, adding up to 45 in the assembly with an effective strength of 81.

Well. The Governor, M.O.H.Farooq, was left with no option than to invite Munda as Chief Minister. It is another matter that the ruling side will consist of such manipulators as Shibhu Soren; and Madhu Koda will continue to remain a MLA and with more than Rs. 6000 Crores (as held by the CBI sometimes ago), he will be able to render this arrangement unstable if he wants. Governor Farooq, however, could not have thought so much ahead and refused an invite to Munda.

Now. Why did I invoke the sense of shame here in the beginning. I did so because the BJP, as recently as a few months ago, called off its relationship with Shibhu Soren and his JMM, pulling down the Government. It happened in May 2010. The BJP did that because Soren’s party, even while running the government in Ranchi with the BJP, voted in support of the Manmohan Singh Government in Parliament. And stung by a sense of morality (or whatever else), the BJP declared that it shall not sup with Soren. After having tried bargaining with the Congress, Soren quit as Chief Minister on May 30, 2010.

The Congress did try help Soren in a lot of ways. That game began sometimes when Manmohan Singh was in trouble over the 123 deal with the US. After the Left parties withdrew support and Singh was asked to establish his majority in the Lok Sabha, Soren was approached, indulged and even made Chief Minister of Jharkhand by the Congress party. As part of that deal, the Congress ditched Madhu Koda, got him to resign as Chief Minister and set up the CBI to find out what was known to any perceptible Indian then: That Koda had amassed several thousand crores while being Chief Minister of Jharkhand. For those unaware, Koda was an independent MLA who remained Chief Minister of Jharkhand thanks to the Congress party’s support.

Soren seemed to enjoy all that the CBI did to Koda (and also the fact that the CBI stopped troubling him) but the fun ended when Koda managed to ensure Soren’s defeat in an assembly by-election. The winner was Koda’s protégé and an independent. If anyone doubted the power of wealth in our democracy, here was an instance where Koda’s wealth was good enough (or bad enough) to defeat Soren in his own backyard. Soren wanted his son as Chief Minister, the Congress prevaricated and the BJP stepped in. But Soren played foul again and his stint at the Chief Minister’s office ended thus on May 30, 2010.

The BJP has found it fit to engage with him again and party chief, Nitin Gadkari pulled all the stops to clear the path for Arjun Munda become the Chief Minister again much against the claims from Raghuvar Das, another powerful leader from the BJP. Reports add that Gadkari pulled the stops, this time, from Moscow! The BJP chief may have gone to Moscow for reasons best know to him and others in the party. But then, we also know that Moscow, in the past couple of decades, is known to have turned into a hub for the Mafiosi of all kinds.

I am inclined to wonder as to whether there could be a link between Ranchi and Moscow. For, we now come across reports, day after day, of how the mines and the minerals in Jharkhand, Chattisgarh and parts of Orissa, Madhya Pradesh and West Bengal are being plundered by fly-by-night operators and fictitious mine contractors. It is only common sense that Koda’s riches (to the tune of thousands of crores) was brought about by way of facilitating this loot and plunder. It is also common knowledge that the Moscow based Mafiosi is known to be plundering wealth from many parts of the world.

The point is that a short stint in power in Jharkhand will guarantee access to resources in multiples of hundreds of crores and the BJP is already known to have displayed its willingness to have in its midst such men. Think of the Reddy brothers in Karnataka who have the clout to defy even the Chief Minister B.S.Yediyurappa. They have a strong supporter in the BJP’s top rung: None other than Sushma Swaraj. I will wonder as to whether Gadkari’s efforts, to pull the stops, in Arjun Minda’s favour is to counter Sushma Swaraj.

Well. The people of Jharkhand, despite their long and glorious history of struggle for a separate State, seemed to have been condemned to suffer. And the potential for making tonnes of money by way of looting the mines and the minerals in the region is what makes both the ``national’’ parties push, whatever is known as shame, under the carpet. It is difficult to call this democratic and pride ourselves in that name.

Thursday, September 02, 2010

A new Chief Information Commissioner for Tamil Nadu

Along with the report of Mr. K.S.Sripathy being sworn in as the Chief Information Commissioner of Tamil Nadu, the media also reported the arrest of three persons. RTI activists V.Madhav, Siva Elango and Gopalakrishnan were picked up from outside the Raj Bhawan, detained through the day in two different police stations, and released before dust. As it is the arrest was without charges and the law does provide for such actions by the police.

There are two aspects that are of concern in this. First that the issue that led the three men to protest has been discussed and talked about in the public domain for some weeks now and yet we found only three men to even protest. Let me recall the subject matter in brief.

The post of the Chief Information Commissioner fell vacant on Monday, August 30, 2010 and hence it was imperative for a new person to be appointed to that post. The RTI Act, 2005, lays down that the post shall be filled up by a committee consisting of the Chief Minister, the Leader of the Opposition and a minister chosen by the Chief Minister himself. In this case, the committee then meant Chief Minister M.Karunanidhi, Leader of the Opposition, J.Jayalalitha and Finance Minister K.Anbalaghan. The fact is that the Act, for all its radical protestations, lays down that the CIC shall be a person whom the ruling establishment of the day wants. Be that as it may.

The Act also provides for the appointment of a retired bureaucrat as much as it provides for the appointment of a journalist or a public personality of repute. In other words, Chief Minister M.Karunanidhi could have chosen anyone as long as the chosen one did not hold any office of profit. It could have been a scholar or a writer or anyone for that matter. But then, it was widely held that Sripathi, serving as Chief Secretary until August 31, 2010, was going to be the chosen one.

A meeting of the committee was scheduled on August 23, 2010 for this purpose. But one of the three, for obvious reasons, decided to skip the meeting and held that she was not provided with the panel from which the CIC was to be chosen. She could have attended the meeting and recorded her opposition to Sripathy’s name and even then the outcome would have been the same. The Act, after all, does not warrant a consensus in the committee. But then, Jayalalitha opted to tread her own path and just as it has happened in the past, she invented some reasons to not attend the meeting. And this she did, notwithstanding the fact that the activists (including those who protested on September 1, 2010) conveyed to her their apprehensions.

Well. If the first one to throw a stone in this context was Karunanidhi, when he decided to have Sripathi as the chosen one, Jayalalitha did not lag behind by way of staying away from the meeting on August 23, 2010. And Finance Minister Anbalaghan too behaved in a manner that he is used to for over the years. The list of the guilty does not end here. And I will argue that the various other political parties and such organisations that claim to be committed to democracy are a lot more guilty than anyone else.

As for instance, the Left parties, the PMK, the DMDK and such others as well as the PUCL and such platforms could have mobilised their cadre and their followers to demonstrate in protest against the manner in which Sripathi was appointed. Instead, it was left to three young men to do that. While I salute the three men who did what they could do, it is a sad commentary on the state of our democracy that none in the political establishment thought it necessary to protest. Not even the Congress party whose president, Sonia Gandhi, had spearheaded the process to enact the RTI Act, 2005.

As for the second cause for concern, I have the following argument. It is true that Sripathi, as in-charge of the DVAC and subsequently as Chief Secretary, Government of Tamil Nadu, had acted against the spirit and the ideals behind the RTI Act. He had worked hard and with a lot of zeal to ensure that the act was defeated. But then, I do hope that he displays the same zeal, in his new incarnation as CIC, to defeat the designs of those who seek to frustrate the RTI and its spirit.

My hopes are based on the experience of T.N.Seshan. Despite a lot of other things and many undemocratic acts, Seshan as Election Commissioner did something that brought small little changes in the election system. Something that lent some hopes that the democratic edifice was not going to crumble. And particularly so when the party system is already collapsing and the media getting caught, increasingly, in the culture of ridicule than any campaign or debate.