THE SOCIAL BLOG

Its soon going to be six years since the Gujarat carnage took place in our ‘Democracy’. The actions we have seen so far have not been surprising. The Chief Minister gets re-elected, none of the people who arranged the attack on the muslims have been prosecuted yet and off late, the Court yells at one person who has been instrumental in getting justice to the victims of the carnage.

Let me begin by re-counting some of the incidents to most of my readers. The Tehelka issue on the Gujarat riots have been quite helpful in helping most of us re-visit the events. For people like Babu Bajrangi, the magazine is his worst nightmare. Surely it should be so when he is caught in the sting operation which giving an account of the Naroda Patiya massacre.

“Kauser Bano, was nine months pregnant that day. Her belly was torn apart and her foetus wrenched out, held aloft on the tip of a sword, then dashed to the ground and flung into the fire. Bajrangi recounts how he ripped apart “ek who pregnant b******d sala”; how he showed the Muslims the meaning of wrath – ‘if you harm us, we can respond- we’re no khichadi kadhi lot”

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Then there’s also 22 year old Sufiya Bano who was raped and burnt in front of her father and when the father and three sons went to save her, the sons were killed and the father beard was cut off.

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Naroda is an open area with a large pit that is actually a cul de sac – a slope leads into it from one side but the other side is a sheer rise that cannot be scaled. Several muslims had sheltered there; the mob surrounded the pit, poured fuel into it and set it afire. Around 200 people have said to have died in it.

Without going further in recounting these horrid tales, it must be stated that the action taken against those who were involved(hindus) in these crimes is as good as nil. On the other hand, the Supreme Court has denied bail to each of the 84 accused (muslims) of the burning of the Sabarmati express and all of them have been in jail for the past six years.

This is the irony of the Indian governance system. We are told that we are a democracy where everyone’s rights would be protected and there shall be no arbitrariness involved but on the other hand, communalism has penetrated so deep within us, that it is evident in the everyday actions of our Government. Most of the muslims in Ahmedabad still live in ghettos with inadequate facilities of water and electricity while Modi and his compatriots manage to come to power on the pedestal of “Gujarat Shining”.

Now when most of these issues are highlighted by Teesta Setalvad in an article, she gets a highly critical reaction from the Court. Well the article highlighted the fact that the Supreme Court had not done enough to deliver justice to the victims of the Gujarat riots and in fact was delaying the hearing time and again and not giving it much importance. This in a country where the Court has held that “Justice delayed is at par with Justice denied”. She also raised the following questions;

• · Can no questions be asked about the systems in operation in the Supreme Court of India?
• · Which matters get automatic priority and which do not?
• · Which matters suffer because of the delays and interim orders of the Supreme Court?
• · Is there no prioritization of cases where issues of personal liberty, denial of basic fundamental rights, mass crimes and impunity to the rich and powerful is concerned?
  If we can ask no questions, we will receive no answers.
• · The time has come to question the basic accountability procedures of the highest court in the land.
  Has the Supreme Court of India lost its soul and is it turning a blind eye to cases related to fundamental rights violations?
• · If so, where then do we turn?

In reply, when the Court was to hear the case on the 16^th of this month, the Court was apparently fuming over the article and went to the extent of asking the lawyers whether they had any association with Teesta and if so, that they wouldn’t be hearing the petition. Well, quite juvenile I must say in a land where free speech is a highly cherished ideal.

So while the we enter the Sixth year since the riots took place, a lot of questions are raised about the efficiency of the administration in maintaining order and securing justice to the victims. In addition to this, it is disheartening to point out that even still we don’t have a law dealing with mass crimes in India and the Communal Violence Bill has not yet been passed. Like I said earlier, the irony of Indian democracy.

(See articles in the hyperlinks provided in the text)

A lazy sunday for me. While I was whiling away my time reading the paper I started wondering if there would ever be a time when the Government would apologise for the great wrongs committed against the poor agrarian people that has led to the naxal problem. Or perhaps the dalits.

The incident in Australia marks an important revelation in the progress of a welfare state. To understand that the state program must secure the rights of all is one of the most important facets of the democracy. But while this historic apology has taken place, the aborigines have already started planning their law suits asking to be compensated for it. An apology and further measures for protection was what they deserved but law suits are way too much. The irony of the law I presume.

Coming back to India, the Courts have made it clear that the idea of affirmative action under Articles 15(4) and 16(4) of the Constitution will be only to those communities that are ‘historically wronged‘. This is an interesting classification I must say and to add that the only form of benefit that comes to these communities is in the form of reservations. The greater issue at hand is the mistakes that the government is committing in furthering the interests of the minor rich and sacrificing the lives and means of livelihood of the majority poor. If there is an apology involved, it is in this area. With the series of property amendments to the Constitution, legislations regarding meager monetary compensation and not to forget the thousands of farmers who have killed themselves for the Government doesn’t give a damn about them; surely there is an apology to be given here.

Killing 80 (or more) people in Nandigram was no joke but a serious consequence of this mistake. The naxalite problem is also a related consequence. Perhaps we need a reformed government to re-consider the claims of such groups; because their penury was caused by government action itself and not by any extraneous circumstances. I always believe that society reforms and proceeds towards rationality with time but I think the time of us Indians is way far to come.

Swaminathan Aiyar has written a somewhat interesting piece in the Times of India today. Titled ‘Democracy depends on the unelected’, he raises some appealing issues on the status and working of the democratic process in India and the role of the unelected institutions. (See TOI, Sunday, Editorial 27th Jan, 0

“The Constitution created other unelected bodies such as the Supreme Court and the Election Commission - which are the most respected in India precisely because they keep elected politicians in check.”

These are the last few lines in the Article that sum up his basic arguments in the paper. What is worth to be noted is that Mr. Aiyar bases this on the primary premise by drawing a link amongst what he suggests are the most respected institutions in the Country (The SC, Election Commission and the Army) - that they all are unelected. Theoretically this statement could be true, but I’m not sure with the present state of things in the Country, I’d agree with it.

When the Supreme Court goes on a popularity track, deciding cases it is not authorized to do so, creates new mechanisms to solve issues; it violates the democratic ethos in the Country. When the Court has decided according to the law, it has always gained respect in the eyes of the people. On the other hand, when it has involved itself with political questions and not decided otherwise according to the law, it has lost the respect of the people. The best examples of losing respect that I can give are ADM Jabalpur and PV Narsimharao’s case( JMM Bribery case).

I have written earlier that there is an idea of constitutional limitations prevalent in our Country and the Court is presented with the task to see that the executive and legislatures work within these limitations. Needless to say, the Court itself is bound by these limitations and cannot violate them. Mr. Aiyar rightly points out that the Constitution has created institutions such as the Supreme Court and the Election Commission to limit the abuse of political power - that is the very idea of judicial review that is prevalent in the paramount parchment. However, the ‘most respected institution’ in the Country must exercise some amount of self-restraint in interfering with the democratic process. The more it does so, the more it loses respect.

The second part of Mr. Aiyar’s piece, one that I totally agree with, is about the two pillars of democracy. Mr Aiyar elucidates that democracy stands on two pillars- Constitutional democracy that lays down the rule of law, and popular democracy that elects the politicians.

“Constitutional democracy nurtures dissent, which elected politicians would dearly love to squash if they could”

The essence of democracy is about the right to dissent and be heard and it is the Constitutional democracy that protects this rights, while popular democracy supports the majority with and interplay of money and vote-bank politics. It is very essential in a democracy that the rights of minorities are protected and Constitutional mechanisms do precisely that. The individuality of the rights guaranteed under Part III of the Constitution and remedies for the same under Article 32 are sacred in this nature.

I was a little surprised to see Mr. Aiyar writing like this at first, but after remembering his views on Gujarat and other similar situations, one is expected to get such views from him. On republic day, he seeks to pay tribute to the unelected officials for preserving the democracy, mainly the unelected constitutional framers (Constituent assembly) who gave us the document.

Over the past month, I’ve been researching on the judiciary and its role in the modern day Indian democracy. While I am in the process of writing a paper on the same, what you’d find below are some preliminary deliberations on the theme.

In the 17^th Century, when King James I stated that his will was supreme, Lord Coke replied by quoting Bracton, a medieval scholar monk, “Rex non debet esse sub homine sed sub Deo et Lege” - “The King ought not to be under any man, but under God and the Law”. The story of this exchange is said to have echoed through the years as a symbol of judicial courage in establishing the principle that all those who govern are subject to the supreme law.

In the Indian context, this would reflect upon a well established notion that all the three branches of the government are subject to the powers and limitations of the Constitution. While the Court has consistently harped on this doctrine for over seeing the functions of the executive and the legislature, it has somewhere down the line failed to realize that it itself too is a part of this doctrine. In the above statement, I specifically refer to judicial activism which I think is wrong. Wrong because if there does exist a theory of constitutional limitations, then there is no justification for the usurpation of legislative law- making power when all it is meant to do is to interpret and apply the law. In Vishaka  and Vineet Narain, the justification that they gave was that they were merely filling the gaps as the legislative and executive had failed to do their duty. Most may argue that this process was the need of the hour and is right even if unauthorized, but I disagree. In a democracy, the Court is never meant to be a popular institution, it is the legislative that is the people’s representative and they alone have the mandate to make the law and this power in no way can be exercised by unelected representatives. If the legislative does not perform its duty then they can always be thrown out in the next election process.

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Liberty v. Security

A Review of the Posner- Balkin debate

I had the good fortune of listening to the Posner – Balkin debate on the above topic online and must say certain very interesting questions have arisen from it. The debate may be heard/ seen online here and before I proceed on certain important aspects about the debate, I’d like to give a brief about the speakers.

Jack Balkin is a Professor of Constitutional Law at the Yale Law School.

Eric Posner is the Kirkland and Ellis Professor of Law at the University of Chicago Law School.

While the dialogue extended to various aspects of liberty and national security, below si my own review of what the two luminaries talked about civil liberties.

Eric Posner comes up with this ‘strangely interesting’ argument at the start of his debate the Executive is in the best position to judge an emergency and thus take further actions to tackle the situation at hand. He puts a lot of faith in the Government process and argues that the creation of rights is a political process and may be curbed when required. His faith extends to the fact that he denies any intentional misuse of such power by the Government. An analogy that he draws is We give the police guns as an example of power granted and not that is abused. Even if we agree with this argument in theory, it surely is flawed in light of incidents like Guantanamo and Abu Gharib and I don’t think Posner would mean that such abuses were still required and right by the Executive. 

Another definitive counter was given by a commentator Praedor stating

“Rights are NOT a service the government provides. They are not something that the government allows. They are inviolate and are what the government serves. The Constitution and Bill of Rights isn’t about giving government power, it is all about limiting the government’s power in the Founding Documents. These documents are not limits of what the people can do, but rather documents that strictly limit what government can do…and you cannot simply legislate rights away. ALL attempts to do so are, by definition, unconstitutional.”

While Eric takes this belligerent approach in his argument Balkin looks at rights from a wholly different perspective. He argues that civil liberties is always considered to be a moving target and with time the protection of individuals will only increase. It is not possible to comprehend a situation where in human existence and the protection of rights would be the same as were 3 centuries ago. Civil liberties also play an important role in producing the structure of governance that we have unlike Posner who called its existence a ‘political process’.

The debate deals with vivid aspects of the National Security State, surveillance and the protection of rights, more importantly the right to privacy. Towards the end, the debate turns a bit political in the sense that they look at the Bush administration’s competence as a stable executive and draw comparisons to the era of Nixon and Kennedy in the cold war.

I found this dialogue very informative and recommend it to all my readers. I would also recommend Posner’s article ‘The credible executive’ to further understand the views presented in the dialogue.