Using Ends to Justify Means

Acting contrary to the rule of law may come naturally to the layman in an adverse situation but society has much to worry if the courts adopt that same approach and quote ends to justify means.

In its latest judgement in the Sahara saga, the Supreme Court has dedicated a full paragraph to justify the detention of three individuals for more than 15 months, without support from a single known provision of law. By stating that the detention is a “step taken in good faith” the court has underlined that India’s legal system is riding a tiger here, and that the arrest and continued detention is weighing on the apex court’s conscience.

A human being’s respect for the rule of law is always tested the most when circumstances are most provocative. When you restrain yourself from hitting an adversary physically no matter how badly you may curse him in your mind and wish him dead, you demonstrate respect for the rule of law. You show greater respect for law than for a loved one when you turn her over to the law enforcement agencies when she has violated the law.

Therefore, it is adversity that tests how truly you believe in the rule of law. Besides, the rule of law is primarily tested only when someone is in trouble with the law. If you have not had any problem with the law, you would not approach a court asking to be treated in a legal manner.

Sahara is provocativeness personified. Therefore, how Sahara is treated in our legal system will demonstrate how adherent we are to the rule of law. Sahara claims to have raised monies in cash from millions of small-time investors. The investors cannot be easily traced. This raises serious suspicion of money laundering. India has a law governing money laundering. That law actually enables attachment of assets and bank accounts, and even imprisonment for violators.

Inexplicably, the anti-money-laundering law is not even being used in the case although the highest court of the land is reviewing the facts. Instead, the capital markets regulator, charged with protecting investors (if only they existed) has found fault with Sahara for not complying with law governing raising money from the public. Sahara was asked to refund the monies to the public.

Sahara claims to have already refunded a large sum in much the same way that it claimed to have raised the funds – in cash. Truckloads of paperwork said to support this claim are not even being opened to see if it is a sham – potentially because the outcome would obviously expose the width of laundering of money made in the country’s vast corruption network. The Supreme Court has not gone into whether the investors exist. Instead, it has ruled that Sahara should repay them. Interest is getting added annually at 15 per cent. Three Sahara officials were sent to jail in a coercive step. The court set coercive bail terms, linking the potential release from jail, to repayments to investors.

The court’s own words are enough to underline how badly the populist arrest tarnishes India’s rule-of-law credentials. “This Court feels concerned with the fact that three persons are deprived of their liberty for the last fifteen months and this situation is quite onerous to them…an unprecedented situation of personal liberty…visa-vis majesty of law…It is this legal realism which has compelled the Court to adopt an approach which sounds more pragmatic. It is ‘doing what comes naturally’ approach to the problem at hand.”

What comes naturally? Faced with grave and sudden provocation, the desire to kill comes naturally. It is said temptation comes naturally to even a saint who sees an open door. Acute hunger makes stealing bread come naturally.

The judgement goes on to say: “This case is a burning example where the true dictate of justice is difficult to discern, and the law needed to come down on the side of practical convenience.” Even more chilling is its articulated view: “The process of reaching a right answer in hard cases obviously differs from the process of reaching the legal answer in easy cases.” Chilling, since this is not a layman talking but the apex court saying that the right answer is not necessarily a legal answer if the case is “not easy”.

Chilling, considering that one layman steadfastly refused to let ends justify means in his moral compass, and went on to be celebrated as father of this nation.

(This article was published in the Mumbai Mirror, Pune Mirror, Ahmedabad Mirror and Bangalore Mirror around June 26, 2015)

@somasekhars

MUSTY RUSTED PROCESSES

By Somasekhar Sundaresan

Bad procedures have come to adversely impact delivery of service by the legislature, the bureaucracy and the judiciary. And an eventual breakdown of these would be a breakdown of state machinery.

Yet another session of Parliament is underway. The usual walk-outs, adjournments and protests are being repeated. When business actually takes place, Parliament barely challenges the government to provide meaningful answers to logical questions. Laws that get passed are mostly those already operational in the form of ordinances. No MP disrupting Parliament is really taken to task. In other words, the administration of the supreme law-making body is a mess.

The administration of the executive government is no different. Most ministers of every government are outsmarted by bureaucrats. Shrewd ministers hoodwink other ministers with the help of loyal bureaucrats who outdo not-so-loyal bureaucrats of other ministries. Governments are able to hoodwink Parliament with vague and confusing answers that can barely scratch the surface even with supplementary questions.

The administration of the third arm of the state – the judiciary – is equally messy. There is hardly any focus on the business process of justice delivery, and much of the attention is expended on judicial appointments. Different high courts across the country have different rules. Even within the same high court, different judges can adopt different and unique processes. For example, some judges allow out-of-turn “mentioning” of urgent cases while others simply disallow it whatever be the emergency. Such varied practices are not always written down and found in a single place – the approach of the judge has to be ascertained from the court’s associates.

In a nutshell, how the law-writer, the law-administrator and the law-enforcer govern their own administration leaves much to be desired. A simple look at the law that governs the conduct of their business by the three pillars of the State would show some common trait. They all smell musty and sound rusted – they are really old and written in an era that does not resemble the current ease and means of living life in Indian society. Amendments made every now and then have indeed led to a patchwork. For example, the Lok Sabha’s procedural rules were adopted in 1952 from what governed the Constituent Assembly that wrote the Constitution of India. The Rajya Sabha adopted rules of procedure in 1964. No serious reform to bring it in sync with current reality has been adopted. For example, today, the Right To Information law enables any citizen to ask the questions MPs alone could ask when these rules were written. But Parliamentary procedures do not reflect this reality.

Likewise, the Government of India’s rules for transaction of business and rules for allocation of business were all written in 1961. Indeed the current government has re-done the allocation of business rules. However, all these rules are mired in a different era. It takes scandals of criminal proportions for innovation and change in government processes – the e-auctions for coal and telecom spectrum are cases in point. What is now necessary is a surgical re-write rather than tinkering of existing outdated rules of conducting business. Another example is most of the serious appointments for running of regulatory agencies are conducted by “selection committees” and not by “search and selection committees”.

Achange from the former to the latter should be a no-brainer – most applicants who covet a post are supplicants who would be misfits while those who would fit the bill would also expect to be invited to apply.

The Supreme Court’s rules were recently rewritten to take effect in August last year, but are largely a re-write of the rules first made in 1966. Rules of various high courts are also very old and not homogenous. The civil and criminal procedure codes have barely kept pace with the quality improvements that modern technology could bring upon justice delivery. A World Bank study shows that a suit for enforcement of a small claim across India would involve 46 procedural steps (not counting any appeals). The transaction cost of bringing such a claim in Mumbai stands at 39.6 per cent of the amount claimed.

Clearly, bad procedures have come to adversely impact substantive delivery of service by the three institutions. An eventual breakdown would be a breakdown of the state machinery. That the state machinery “by and large” works can hardly be of solace.

Tweets: @SomasekharS

(This article was published in the Mumbai Mirror, Pune Mirror, Ahmedabad Mirror and Bangalore Mirror on May 8, 2015)


IT TAKES AN EARTHQUAKE

By: Somasekhar Sundaresan

In this day and age, it would be rare not to have experienced a mock fire evacuation drill at least at the work place, but one would most certainly never have had a mock earthquake drill, although it’s quite likely many of us have at least felt a tremor

When it happened, I was in a meeting in a leading five-star hotel in Gurgaon. I felt my chair rumble. A suggestion that we were experiencing tremors and an earthquake was potentially brewing, was duly laughed off. The laughter quietened a bit when the crystal chandeliers, jingling at first, started sounding like chiming puja bells.

But it did not alarm. Some checked the internet and social media to see if there was news about any earthquake, continuing to be seated under the chiming chandeliers. Others sauntered out and got coffee in the corridor. Some felt asking the hotel staff would be a great idea. The chef from the nearby kitchen came to take a look at the chandeliers. Asked if things kept in the kitchen were shaking too, he joked about how there were no chandeliers in his kitchen.

Further down the corridor, one of India’s largest media houses was having an in-house retreat. The journalists were similarly carefree. Some were visiting the toilet, some stood out to get a smoke while others lounged in the corridor of the hotel. When asked if they had any confirmations from their news desks about an earthquake, not many were enthusiastic about finding out.

Overheard voices narrated a wisecrack about PM Modi taking the Delhi Metro, causing the earth to tremble, and “Does not look like anything major here.” The tremor continued for an eerie length. Back in our respective rooms, the second round lasted longer with lesser dramatic impact — although the presentation screen kept shaking like an old movie because the overhead projector hung from the ceiling. “Aftershocks are normal,” said someone, meaning to be helpful.

No alarms went off. No evacuations were ordered. No loudspeakers asked for people to move out of their rooms and assemble at any rescue area. In short, the hotel had no drill to deal with earthquakes. Worse, every single person around seemed to have his own judgement on what was really going on and what was needed to be done. In a nutshell, no one is prepared on how to handle an earthquake even in the best of hotels and among the best of journalists.

The next time you close your hotel door, look for the fire evacuation drill displayed on the inside. Where your room is, where you are supposed to head when there is a fire, what to do and what not to do, would scream at you if only you cared to read. In many hotels, the first television channel advertises features of the hotel while the very next channel would display a continuous spool of how to react in case of fire. But an earthquake? You will find nothing. Not for us, they think. Earthquakes are expected only in places like Japan, Turkey and California. And they must have it all figured out so why bother?

In this day and age, it would be rare not to have experienced a mock fire evacuation drill at least at the work place. It would be extremely rare to have experienced a real fire accident. But it is likely that one would have experienced some mild form of a quake in a lifetime, but one would most certainly never have had a mock earthquake drill.

Earthquakes are considered even more remote than “spotting a black swan”. In human intuition, they are not meant to occur frequently enough to worry about what to do when one hits. At first blush, one would dismiss it as the Indian bravado against nature. But then, I do know that many in my meeting room keenly wear seatbelts in cars as a safety measure while others do so only because their cars annoy them with alarms until the seatbelt is clicked on. Fire brigade authorities conducted fire-preparedness inspections in multi-storied buildings in Mumbai after a recent high-profile fire.

What would it then take to build the same regulatory response to earthquakes? The Nepal Prime Minister projects that the death toll could touch the five-digit mark. Need it take anything more for legislative policy intervention to induce greater attention to safety regulations around earthquakes?

Tweets: @SomasekharS

(This article was published in the Mumbai Mirror, Pune Mirror, Ahmedabad Mirror and Bangalore Mirror on May 1, 2015)

BEING POLITICALLY INCORRECT

By Somasekhar Sundaresan

One of the indicators which point to the contradictory nature of Indian society is how we possess a high degree of tolerance for pejorative speech while being prickly of comedians who look to poke fun at our cultural stereotypes.

The Parliament is in session again. As lawmakers assemble in Delhi, it is the season for unparliamentary and politically incorrect remarks. Union Minister Giriraj Singh provided a flying start, questioning whether the Congress would have rallied behind Sonia Gandhi had she been black. Speculation about whether he broke into tears unable to handle a dressing down from the Prime Minister is what is making news now.

In the last session of Parliament, Sharad Yadav got mired in controversy talking about how Indian authorities granted permission to Leslee Udwin to interview convicts in prison because she was white. His point that an Indian filmmaker would not have been given the same access resonated with many but his remarks about south Indian women being “saavli” tripped him up and tied him down in knots.

Race and skin colour particularly stand out as sensitivities that the subcontinent is insensitive to. A society obsessed with “fairness creams” – now available for all genders – does not even find it offensive to comment about the colour of the skin. Political correctness in this department is conspicuous by its absence. Kalyan Jewellers, a south Indian merchant, has made an advertisement featuring Aishwarya Rai Bachchan royally lounging on a couch with an emaciated dark skinned child slave holding a larger-than-hissize umbrella over her. Copied from similar portraits of European royalty being served by black slaves, the advertisement has drawn swift and crisp admonition from civil society, publicly requesting Aishwarya to distance herself from slavery and child labour.

She has issued an official statement suggesting that she was not involved in the creative addition of the child slave to her photograph. A statement attributed to her suggests she believes the insertion of the child in the picture to be the “creative” work of her client. It is not yet clear if she took the opportunity of a public platform with Kalyan Jewellers to make a diplomatic point about the issue. Unlikely, since apart from being a skin-colour-obsessed society, “chotus” working as domestic labour is as widespread as domestic violence even among the literate in India.

Apart from race, gender is part of the trail of thorns in political incorrectness in India. One had to only read the transcript of proceedings in Parliament when the post-Nirbhaya amendments to criminal law were being debated. Some MPs said the kind of things that convict Mukesh Singh would later say in India’s Daughter (without the attendant denigration). Sanjay Nirupam, quick to defend attacks on his leader Sonia Gandhi, did not think twice about attacking Smriti Irani’s character with: “Pehle to tum TV par tumke lagati thi. Pata hai tumhara charitra”.

Insensitivity is not the preserve of just the lawmakers. Recently, members of the highest judiciary locked horns. The Chief Justice of India organised a judges’ conference over the long Good Friday weekend. When two colleagues pointed out that Good Friday was an important marker for Christians and one of them said he had plans with his family outside Delhi, the Chief Justice wrote back to him questioning his commitment to the judiciary.

Sikhs get commented on as subjects of humour, mainly due to their different appearance, even in court rooms – a former Bombay High Court judge who became Chief Justice had once remarked about how being a sole Sikh in the court, the lawyer before him deserved to win (indeed, in a lighter vein).

A few years ago, Parliament published a newer version of a handbook of “unparliamentary” words and phrases for the guidance of our lawmakers. Writing rules for how to conduct oneself is a race to the bottom – the approach has yielded a silly checklist – outlawed for use inside Parliament are phrases such as “source of amusement”, “communist” and “ringmaster”. Terming the usage of “communist” as unparliamentary can itself be attacked as being unparliamentary.

Political correctness will take a long time to become second nature in India – potentially, never will. Yet, we can be so thin-skinned that comedians have to pay a heavy price for picking on stereotypes in their gigs. Truly another area where India is a land of contradictions.

Tweets: @SomasekharS

(This article was published in the Mumbai Mirror, Pune Mirror, Ahmedabad Mirror and Bangalore Mirror on April 24, 2015)

SOVEREIGNTY OF CHOICE

By: Somasekhar Sundaresan

Freedom to choose finds resonance across cultures and religions, yet individuals are conditioned to feel proud about how they have given up choices that are otherwise available to them

The My Choice video with a voice-over from Deepika Padukone has deeply disturbed many. The crisp and powerful narrative of an individual’s sovereignty has left in its wake many a disturbed husband, father, brother, and of course, mother. 

Mothers have written about how they were filled with hope when their young daughters found the video selfish. A “male response” video has cropped up with a “moral of the story” caption about how men would never promote adultery. Claimants to being “feminists” have endorsed the video while women who disclaim feminism have been quick to disapprove of it. Others have hedged by saying feminism means something other than what the video contains. All these reactions point to one clear fact: the video could not have done better in provoking thought on very important concepts of jurisprudence. 

The allegation that the video promotes illegality is hollow. The words in the script that are accused of promoting “adultery” are: “To marry or not to marry, to have sex before marriage, to have sex outside of marriage, to not have sex: My Choice.” Surely, when an individual marries or chooses not to, she makes a choice. Sex before marriage is a matter of choice. Sex outside marriage may have consequences but it is an outcome of choice. Refraining from sex outside marriage is surely an outcome of choice too. Refusal to have sex inside marriage is likewise a matter of choice. Each of these choices could have consequences, but, nevertheless, they are choices one is entitled to make.

Therefore, the logical message from the video is obviously one of a woman’s sovereignty over herself — the right to make choices and deal with the consequences of choices made. “Sovereignty” essentially means the possession of absolute and supreme authority within a certain space. The government of a sovereign nation has a monopoly over the use of force within that nation. The right to use force over oneself has to reside only in oneself — a fact mostly forgotten in associations and societies comprising individuals. Indeed, one sovereign may sign away elements of absolute sovereignty in a contract with another sovereign, but the terms of signing away is clearly a matter of choice.

The term “choice” can be controversial in law and policy across societies. If legislation against marital rape is India’s bugbear, in the United States, it is the state policy towards abortion. That is a society where the very word “abortion” evokes such sharp reactions that support for the right to abort has to be couched as “pro-choice” to make it palatable. Just last week, on highly-contested facts that point to possibilities ranging from induced miscarriage to killing a prematurely born foetus, Purvi Patel, a Gujarati-American was convicted in Indiana with a potential jail term of 20 years. 

“Choice” simply means the right to choose from among options. It is known to mankind across cultures and religions as having spiritual sanction — for example, the Bible speaks of god ordaining consequences for choices but never compelling a choice. Hindu thought even presents a range of gods to choose from to suit one’s preferences and attitudes. Yet, societies have conditioned individuals to feel proud about how they have given up choices otherwise available to them, rather than make them conscious that inherent in giving up choice is itself a matter of choice.

In a nation that has developed the image of being the rape capital of the world, it is not harsh punishments in the law that would bring down the incidence of violating women’s rights. It is developing an appreciation of a woman’s sovereignty that would help mould masculine entitlement. The sense of entitlement over a woman is not problematic just from the perspective of masculine entitlement. Parents seek to force their choice on daughters. Brothers seek to force their choice on sisters. Even kids seek to force their choice on mothers. Little wonder then that a script that says “You are my choice. I am not your privilege… I am the Universe, infinite in every direction. This is my choice” can be so unsettling.

Tweets: @SomasekharS

(This article was published in the Mumbai Mirror, Pune Mirror, Ahmedabad Mirror and Bangalore Mirror on April 3, 2015)

PERCEPTION, REALITY AND CLASS

By Somasekhar Sundaresan

Modi’s recent dig at wealthy activists reveals the social stereotypes associated with wealth. Does the economic status of an individual really determine his/her treatment in our country?

The prime minister’s remarks about judges being fearful of the reaction of “five-star activists” while rendering justice has sparked a controversy. Speaking at a conference attended by Supreme Court judges, chief justices of high courts and chief ministers of various states, the PM is said to have exhorted the judiciary to stay “as fearless today as it used to be ten years ago”. “It is not difficult to dispense justice as per Constitution and law. But while doing so, judges must differentiate between perception and fact,” the PM is reported to have said.

Some have focused on the intrinsic element of economic capacity of a person approaching court being relevant for the PM – activists not leading a hand-to-mouth lifestyle somehow becoming less worthy of getting justice from courts. Others have said his reference to perception playing a role in judicial decision-making amounts to contempt of court. As always, there are multiple truths competing for space in the discussion.

As a popularly elected PM, the views on the economic status of a person seeking justice are not out of sync with the political reality of how the Indian society thinks. Ours is a society that pretends to comprise egalitarian individuals despite widespread economic and social disparity being an integral society reality. Deeply embedded in our psyche is the belief that most of the wealthy are undeserving of wealth and all the privileges that come with it. Yet, we celebrate our wealthy and crave to be wealthy even while externally sniggering and ridiculing the enjoyment of wealth.

It should not shock and surprise then any political leader seeking to communicate directly with this society (more so if it were directly over the heads of those in the room) should want to bring in an element of economic class and take a potshot at the wealth of those seeking justice. It can indeed be disappointing for the economically wealthy that a right-of-centre politician too feels the need to use a reference to class in this manner. But they can take solace from the Tamil adage about offering one coconut for the devil when one offers a hundred coconuts in the temple of God. The right wing would in fact relish snide remarks about “champagne socialists”.

Do the remarks constitute contempt of court? Coming from the head of the executive in the Republic of India, one can take it as a symptom of the inter-institutional tension designed in the Constitution. Former Prime Ministers too have expressed views against judicial overreach and judicial activism while judges have reacted with equal zeal to defend the judiciary – more recent example the exchange of views in a public forum between Union Minister Piyush Goyal and Supreme Court judge Justice T S Thakur.

The term “collective conscience” has in fact been officially and judicially recognised by the judiciary in handing down decisions in cases where society has pre-determined the need for conviction and the measure of punishment. Trials relating to Afzal Guru and Ajmal Kasab are prime examples. More recently, we learnt that to manipulate public sentiment, the prosecutor lied about Kasab demanding biryani when in jail (the prosecutor not just confessed but bragged about it). The fake biryani demand was aimed at getting public perception against the need for an expensive trial.

Standing up against this trend in our society is a handful of senior (and to society’s deep regret, wealthy) lawyers. An activist who can afford to spend time and resources of abolition of capital punishment or to care for the wretched lives of Guru and Kasab would mostly have a full stomach and the economic capacity to afford a fivestar lifestyle. However, equally, a brutal majority of “five-star” patrons strongly believed that they should have been sentenced to death without trial.

Therefore, does perception play a role in judicial determination of proceedings? Sure. Is this reality preyed upon? Sure, almost every retired judge has his share of stories about receiving anonymous letters. Is that bad for society? Sure. Does that last answer change depending on the economic circumstances of those seeking to influence perception? Not at all.

Tweets: @SomasekharS

(This article was published in the Mumbai Mirror, Pune Mirror, Ahmedabad Mirror and Bangalore Mirror on April 10, 2015)

NET NEUTRALITY – NOT BLACK AND WHITE

The debate on unhampered access to the internet is a complex one, and should be approached only after we’ve understood aspects of the country’s regulatory climate and internet services market 

Net Neutrality” is the new buzzword. Particularly in the world’s most populous democracy that has a penchant for jargon. That too, right after the United States’ Federal Communications Commission has published the “Open internet Order” to adopt net neutrality as formal policy in that country, and the Telecom Regulatory Authority of India seeking public comments on a consultative paper.

What exactly is “net neutrality”? It has come to mean different things to different people — much like the story of the blind men and the elephant. What the US FCC has adopted as its version of net neutrality would be instructive to understand the concept. Essentially, net neutrality entails the law governing internet access containing prohibitions on blocking, throttling and paid prioritisation in terms of ease of access to the use of the internet. It also entails transparent terms of access to the internet, mobile phones and fixed landlines. 

Therefore, a broadband service provider would need to be prohibited from blocking or slowing down the access to specific applications used on the internet. It would mean a prohibition on “hoarding” broadband speed and creating “fast lanes” requiring specific sources of content to pay more for internet access by customers. What would this translate into in simpler English? Essentially, it means a ban on unreasonable discrimination in accessing the internet. 

For example, a broadband service provider cannot block access to content that is not legally banned. Let’s say India’s Daughter had not been banned — your internet broadband service provider would not be entitled to make a value judgement and impose a ban of his own. Likewise, the broadband provider cannot discriminate against internet traffic on the basis of who generated it. For example, a competitor to Star TV providing internet access cannot prevent access to Star Sports’ internet coverage of the Cricket World Cup even while Twitter updates of the same tournament would be available. Likewise, a broadband provider cannot charge Star Sports an extra fee to speed up streaming of coverage of the Cricket World Cup or to slow down access to Twitter updates on the matches.

While the intended principle is laudable, one should also guard against the medicine becoming more painful than the ailment. The US FCC had a deeply divided resolution when it adopted its net neutrality order. Three out of five commissioners voted for it while the remaining two voted against. One of them, Indian American Ajit Pai is a publicly vocal advocate of market forces being good enough to guard against unreasonable discrimination.
The internet is the public infrastructure on which many a new business enterprise has been built. It has been an egalitarian leveller of the marketplace by demolishing entry barriers to competition. Imposing hurdles on speed of access to the internet by small start-ups would entrench the big boys and prevent disruptive competition. Yet, the business of providing internet access is itself a competitive market, although one would need a license to get into this business.

In India, the proposal of an internet access provider to charge for usage of a free communication platform that only needs Wi-Fi connection and circumvents the need for a mobile communication platform, has sparked off a raging controversy on whether this country is violating net neutrality. If this were offensive to customers of that service provider, they could always shift to another provider who does not impose such charges, retaining the same mobile number. If multiple service providers get into a cartel to impose such charges, the competition regulator could step in and impose crippling penalties on members of the cartel. 

Likewise, net neutrality does not mean there can be no discrimination at all among customers — a customer who is willing to pay for a better spectrum or a higher broadband speed gets that even today. So long as any customer is allowed to sign up to the package, there is no case for a ban. Killing discrimination absolutely would mean killing competition among service providers. Neutrality can only mean that no discrimination should be unreasonable and arbitrary. It necessarily entails a subjective regulatory judgement and can present morality choices like the one between smoking up in a prayer hall, and praying even when smoking up. Complex.

Tweets: @SomasekharS

(This article was published in the Mumbai Mirror, Pune Mirror, Ahmedabad Mirror and Bangalore Mirror on April 16, 2015)