Tag Archives: rule of law

Surgical strike at a chronic ailment

Our regulators have to go beyond procedural reform and gaming of processes to improve rankings on Ease of Doing Business

By Somasekhar Sundaresan

It was a judgement waiting to be written. The conduct of the government in litigating on issues long-decided by courts and clogging the courts, even while mouthing platitudes about how the government must not indulge in frivolous litigation, has been called out by the Supreme Court in a crisp and precise judgement.

The seven-page order, imposing costs of Rs 100,000 on the government (yet again), is a must-read not only for every government department at the Centre and the states, but more importantly for every regulator that doubles up as civil courts and generates litigation by writing orders, even on closed issues, merely because the parties before it are different. Remarkably, in the order (passed in a government service litigation — titled Union of India & Others vs Pirthvi Singh & Others) the Supreme Court has pressed the right button by observing that India suffers badly in the World Bank’s Ease of Doing Business rankings primarily because of such conduct by government agencies.

A quick look at the facts would show what is regular and well-expected from the government, state agencies and regulators. The Supreme Court came to dismiss a bunch of appeals filed by the Union of India in December 2017. The very same issues came up again in a new appeal by the Union of India in 2018, and that appeal was dismissed in March 2018. When dismissing this appeal, the Supreme Court noted that the appeal in question was unnecessary and vexatious since many cases had already been decided in the same manner. To ensure this is taken seriously, costs of Rs 100,000 were imposed on the Central government.

The appeal now dealt with by the Supreme Court had agitated the same issue and was filed in March 2018. The government took no steps to withdraw the appeal despite the earlier misadventure having invited strictures and costs.

The judgement notes: “The Union of India must appreciate that by pursuing frivolous or infructuous cases, it is adding to the burden of this Court and collaterally harming other litigants by delaying hearing of their cases through the sheer volume of numbers. If the Union of India cares little for the justice delivery system, it should at least display some concern for litigants, many of whom have to spend a small fortune in litigating in the Supreme Court.”

The judgement quotes from a 2010 document titled, “National Litigation Policy” as part of a pompously-named “National Legal Mission to Reduce Average Pendency Time from 15 Years to 3 Years”. This document, made under the UPA government has been adopted by the current NDA government with a newer version in 2015, followed by an “Action Plan” formulated in 2017. One of the principles supposed to have been adopted is that the government would be an efficient and responsible litigant. One of the listed traits of an “efficient litigant” is that “bad cases are not needlessly persevered with” while a trait of a “responsible litigant” is “that litigation would not be resorted to for the sake of litigating”. Observing that that removal of unnecessary government cases would save valuable court time that could be spent in resolving other pending cases, the document notes that the “easy approach” of adopting the line of “let the court decide” must be eschewed.

The Supreme Court notes: “…under the garb of ease of doing business, the judiciary is being asked to reform. The boot is really on the other leg.” Having noted the Ease of Doing Business rankings (India ranks among the lowest in contract enforcement year after year, despite the gaming coupled with reform in other areas), the court has really touched upon a critical area. While government litigates blindly, regulatory agencies, that are mini-republics with the legislative, executive and judicial functions rolled up into one entity, are the worst. Regulatory agencies are themselves given the powers of the civil courts and they start the process of prosecuting and ruling all on their own. Often, the quasi-judicial rulings of regulators are upheld in appellate tribunals but many an order gets set aside. These are routinely appealed. Worse, even when earlier rulings are available, regulators persist with repeating their overruled rulings hoping that appeals to the higher courts (in most legislation, it is directly to the Supreme Court) would lead to different outcomes. Even when the court has not stayed the tribunal’s rulings, regulators continue to ignore appellate decisions. There are even cases where a newly appointed regulatory official wants to leave his mark and re-interprets decades-old jurisprudence, which despite failure in appeal, is further carried in appeal.

In the case at hand, the Supreme Court also noted that the government was blowing up money on 10 lawyers, including an Additional Solicitor General and a Senior Advocate, expending tax payers’ monies wastefully. This too is typical and par for the course with regulators. Engaging senior law officers of the government, and senior private lawyers with respectable names and standing, is the easiest way to project that the frivolous appeal has something unique on facts that would warrant ignoring earlier closed decisions, and overturn, at times, decades of jurisprudence. In the courts of many judges, appeals by regulators perceived to be “experts”, are admitted for the asking, while appeals by private litigants are put to a higher standard, often disposed of at the stage of admission — the wrong assumption being that regulators are more responsible in deciding what to appeal.

The apex court’s observations are a reminder of one serious facet of what ails the justice delivery system. Our regulators have to go beyond procedural reform and gaming of processes to improve rankings on Ease of Doing Business. Conducting a thorough 100-percent audit of all pending appeals filed by regulators to decide what ought to be withdrawn, would be a good way to start.

This column was published under the title Without Contempt in the editions of Business Standard dated May 24, 2018

Fugitive law can victimise the victim

By Somasekhar Sundaresan

The Presidential Ordinance on fugitive economic offenders is highly likely to be celebrated by the masses. Yet, its constitutional validity is suspect. It is yet another law that have the best intentions as its premise but can end up wreaking havoc on the innocent, who may well be victims of fugitives, but would pay the price for unintended consequences.

Here is how this law can cause grievous injury to the innocent. The most serious inroad into the rights of a person who may not be the fugitive but could well be the victim of the fugitive, is contained in the provisions on “disentitlement”. Under this provision, once an individual is declared to be a “fugitive economic offender”, any court in India may, at its discretion, disentitle any company from putting forward or defending any civil claim, if the individual authorised by the company to sue in its behalf, or any promoter of the company, or even any key managerial personnel or the company, or indeed any majority shareholder of the company has been declared a fugitive economic offender.

In other words, the company which would be injured because its promoter ran away, or indeed because its key managerial person ran away, could be the one facing the disentitlement from being able to pursue any civil claims. An example would make it good. Let’s say the managing director, or indeed, a promoter of a company is alleged to have committed a “scheduled offence” — these are offences listed in a schedule to this law — for which the person is issued a warrant and refuses to come back to India, civil courts could rule that no litigation for recovery of even legitimate dues owed to such a company cannot be pursued.

The principle underlying the concept of disentitlement is that one who does not subscribe to the rule of law in India may be denied the protections afforded by Indian law. However, this provision goes beyond the person rejecting the rule of law in India. It has the potential to cause serious injury to persons who may themselves be injured by the rejection of Indian law by the fugitive who has left the country. This would translate into a perverse incentive for law enforcers — grab the headlines and show stringency of action by hurting a company that is operating in India. This approach loses sight of the fact that those within reach are those who subscribe to Indian law and are seeking protection of the rule of law by filing legitimate claims. Likewise, it has no regard to the fact that the ransom of ill-treating those who are in India could have no coercive impact on the fugitive — her decision to turn fugitive would have already factored in the possibility of atrocities being heaped on the company she left behind.

The other perverse incentive endorsed by this law is that commercial counter-parties who have scant regard for the rule of law could start defaulting on their dues to a company whose promoter or key managerial personnel is declared a fugitive. Despite being a solvent company, the company the fugitive leaves behind would face a potential prohibition on the sovereign assurance that validly contracted promises given to the company must be enforced. Open doors, it is said, tempt even saints — once a company’s promoter or key managerial personnel is declared a fugitive, every person who has a contract with the company would be entitled to move applications before courts trying claims for enforcement by the company, asking for the discretion in the new law to be used to debar claims by the company.

To have any individual declared as a fugitive economic offender, an application has to be moved by the authorities asking the competent court to make the declaration that the person named in it is a fugitive. However, even while moving the application, the authority has the power to attach any property listed in the application, for 180 days. In other words, way before successfully getting a declaration that the person named is a fugitive, properties that may not even belong to the individual named, can be attached without any need for the attachment to be blessed by a court of law, so long as the property is identified in the application and the authorities have “reason to believe” that the property represents “proceeds of crime”.

Interestingly, the attachment would automatically run for 180 days without even a warrant. The non-fugitive person who owns the property would get just one week to file his say in the matter, which too would start after the attachment. Another provision in the law explicitly provides that the person other than the fugitive, whose property is so attached, would have to shoulder the burden of proving that the property was acquired without knowledge of it being proceeds of crime.

The term “proceeds of crime” is not just the fruits of criminal activity listed in the schedule to the law. It also includes “the value of such property” (meaning despite it being evident that the proceeds of crime were deployed elsewhere, anything equivalent in value may be chased and attached). Besides, “where such property is outside the country”, any other property “equivalent in value held within the country” would constitute “proceeds of crime”. Therefore, all one has to show is that the value of the benefits from “crime” is represented as part of the value of the property being attached regardless of whose hands the property resides in — it would be attached for 180 days, and it is for the owner of that property to show within a week that she did not have knowledge of such property being proceeds of crime.

Finally, what are the crimes listed in the schedule? Apart from the economic offences found in the Indian Penal Code, the provisions that would lead to a “scheduled offence” are generic provisions from company law where fraud is alleged, and inexplicably (following the footsteps of ill-advised amendments to the anti-money laundering law) even violations of takeover regulations. While offences such as insider trading and market manipulation are understandable members of the list of scheduled offences, listing violations of takeover regulations could simply mean that the state just gave itself a tool to come after businesses with a heavy hand if it so chooses.

This is not at all a comment about the colour of any political party in power. The listing of the takeover regulations as a scheduled offence in the law on money-laundering was done by the UPA government. The NDA government has now made it a scheduled offence under this law. In short, regardless of the party in power, you would do well to be careful and beware the long arm of the state.

This column was published under the title Without Contempt in the Business Standard editions dated May 10, 2018

About justice & conspicuous consumption

When a crime is committed, everyone seems to have a view on who has done wrong, and regardless of judicial outcome through due process of law, theories of how justice was done or not done mushroom
By Somasekhar Sundaresan
The Allahabad High Court has set aside the conviction of the Talwars in the tragic twin of teenager Aarushi Talwar and domestic help in The High Court ruled that the evidence was not adequate to secure conviction of the parents. The trial itself could have well qualified for mistrial in other jurisdictions going by the media coverage fed by the investigators and prosecutors, but that is now par for the course with any trial in India.

 

The same public drama that unfolded during trial has erupted all over again. There are those who have no doubt that the parents are guilty of murdering their child. They have come up with cynical arguments such as: “Therefore, nobody killed Aarushi.” Or, “The court has only said evidence is inadequate. They are of course guilty.” Or, indeed, with statements such as “What a successful peddling of innocence through a book and a movie!”

 

Others, with a contrary disposition, make arguments such as: “How could one even dream of accusing parents of murdering their child to begin with? There was no case here.”

 

In short, society is divided largely between those who believe the Talwars were guilty and those who believe they could never be guilty. Almost everyone has a certainty of belief stronger than what any eyewitness could harbour. Of course, there was none in this case.

 

hile this is a physical criminal case involving murder, in the corporate-business-financial sector, such an approach of society is consistently universal. In every single case, everyone in society has a clear view on who has done wrong, in what manner, and regardless of the judicial outcome through due process of law, theories of how was done or was not done mushroom.

 

In most financial sector laws, the enforcement folks do not even have to convince a court of of their story — they themselves can pass orders indicting an accused. In appeal, it is the defence that is on trial — the appellant has to convince the relevant tribunal that the order is not sustainable. Justice, in such circumstances, has become a matter of conspicuous consumption. It is easy to assail a victorious appellant as someone who got away for want of proper evidence — an alias for saying society will treat an accused as guilty even if courts do not believe her to be guilty.

 

Add to the mix, the practice of passing ex parte orders (orders passed without even a hearing) with clear and firm conclusions even before investigations are completed. A regulator can take a public position, however wrong investigations may subsequently prove them to be, and pass orders imposing restraints on the suspect. Having done so, the process of a “post-decisional hearing” and the suspect’s efforts at getting the restraints removed necessarily entails the defence being put on trial. The regulator gets a lot of mileage by attacking the credibility of the defence, without caring to first demonstrate the basis and validity of the unilateral ex parte order in the first place. In the eyes of society, that the state machinery has found fault with someone and believes that she has done wrong, is enough to make the suspect a convict.

 

Little wonder then that colourful use of language often seeks to make up for absence of articulated reasons in such orders. Indeed, even in the Aarushi case, the trial judge who wrote the order buying into the prosecution story, is reported to have taken pride in an interview with Avirook Sen (author: Aarushi; the interview is set out in Sen’s book on the case) in how he flew down his son, whose command over English was put to use to write a good quality order.

 

No one can really predict what will eventually happen to the Talwars in the judicial process. A further appeal is likely to follow — it may or may not succeed. The Supreme Court will eventually rule. That court is necessarily right because it is final. It is not final because it is right. Regardless of judicial outcome, sections of society have very clear and firm views on their guilt or on their innocence.

 

Worldwide, even after final rulings by supreme courts, convicts have been pulled out of prison or even out of death row because of relentless efforts by journalists and television documentaries, whose intrigue about a case refuses to let them accept what meets the eye and what is dished out to selective ears. That a book even got written on this case in India, with an independent resolve to probe facts rather than re-hash the versions given by prosecutors, is the Indian media’s saving grace.

 

That a movie-maker even took interest in a story of this nature to risk a commercial film on it is also not common. For a movie like Talvar, that is accused of influencing the outcome in the appeal, there has also been a movie such as No One Killed Jessica, which spoke about accused being wrongfully absolved (unwittingly, the name has laid down a popular expectation that when there is a crime, if the accused has not done it, the crime never took place). That movie too followed meticulous journalistic work proving how witnesses had lied during trial.

 

Somehow, the sight of a specific person going to prison for a crime seems to warm many an Indian heart as compared with the sight of seeing the evidence stacked up against an accused just not withstanding judicial scrutiny. There is a nice coinage that has been developed for this concept: “collective conscience”.The concept was, for example, relied on to confirm the death sentence for an accused in the case involving the attack on Parliament, even while acknowledging that the evidence and the quality of trial was weak.

 

In other words, if a case shakes up society well enough to have its attention rivetted, the standard of would practically vary. Therefore, the incentive for prosecutors and regulators is perversely weighed in favour of scandalising a case strongly enough for society’s attention to stay rivetted to the lurid details dished out, leaving it open to ignore facts and evidentiary standards. Of course, whether someone going to jail or someone being let off is more acceptable for a society’s collective conscience is a pointer to what kind of society we are as a collective.

 

This column was published under the title Without Contempt in the Business Standard editions dated October 19, 2017

Subversion of law in law-making

The abuse of law in the very making of law may sound deeply ironical. Yet, it is surprisingly common

Subversion of the law in legislation is common. Parliamentary processes are subverted by lawmakers in Parliament, occupants of high office subvert the faith reposed in them by the Constitution, Parliament is subverted by governments, and law made by Parliament is subverted by government departments and regulators while writing subordinate law. This is also correspondingly true of law-making in the states.

Let’s start at the bottom. Regulators are routinely given powers by the legislature to write regulations to “carry out the provisions of” the main law. Since excessive delegation could be struck down as being arbitrary and unconstitutional, the laws also set out some process requirements for writing subordinate law. For example, the Securities Contracts (Regulation) Act imposes a statutory obligation to conduct public consultation on draft amendments to a stock exchange’s bye-laws followed by the formal amendments taking effect when notified in the official gazette. However, routinely, substantive amendments to the bye-laws have been systematically implemented by the capital market regulator through “circulars”, an instrument not even recognised under the law. For form’s sake, every such circular ends with an instruction to stock exchanges to amend their bye-laws but the substantive content is given immediate effect. Often, even the formality of the actual amendment to the bye-law is not implemented but the “law” created through the circulars gets enforced.

Government agencies are notoriously unmindful of the law under which they write rules. They also issue “advisories” and “guidelines”. Unless the rules, advisories or guidelines are challenged through a writ petition and the challenge is upheld, these instruments, however illegal, would operate as “law” and govern the lives of society. Usually such subversions are not challenged unless they cause material hurt. Typically, one would chicken out before the State unless a fight is inevitable. A simple recent example is the successful challenge to the Food Safety and Standards Authority of India’s advisory imposing an obligation to get food products approved before launch.

Moving up the food chain, the subversions played out in Parliament and State Legislatures are of a higher order. Members of the Rajya Sabha have been known to abuse the conduct of proceedings to stall the government’s attempts to pass legislation. To beat this abuse, the government has been merrily labelling all sorts of draft law as “money bills” (draft law governing taxation measures), which need approval of just the Lok Sabha. The principle is that the people directly vote MPs to the Lok Sabha, delegating to them the power to deal with their money. All other laws need approval of both Houses of Parliament. As a check and balance, the Constitution relies on an occupant of high office, the Speaker of the Lok Sabha, to conclusively certify the draft law as a “money bill”. The Aadhaar Act, which is nothing but legislation that gives statutory status to the Unique Identification Authority of India (just like any law that would set up any other government agency like say, the insurance regulator or the Competition Commission of India) was classified by the government as a “money bill” and happily endorsed by the Speaker, enabling circumvention of the Rajya Sabha.

An abuse to beat an abuse is the order of the day. While this may sound fair to some, it exonerates the first abuse that began the trading of abusive conduct, in the eyes of others. The effects can be disastrous. The Foreign Exchange Management Act, brought in with the specific objective to de-criminalise violation of exchange controls, has been made a criminal law again with an amendment that was not even taken to the Rajya Sabha since the amendment was tucked into a money bill. In other words, a law passed by both Houses of Parliament can get amended solely by the Lok Sabha.

Whether the Speaker’s certification of a money bill can be called into question in the teeth of an explicit bar in the Constitution is now under litigation in the Supreme Court. Truly ironical, since the Supreme Court was party to judicial imposition of the “environment compensation charge”, a fiscal measure that ought to have been done through only a money bill. The charge, applicable on entry of vehicles into Delhi, is nothing but an “entry tax” and if not, a “cess” — something the Constitution reserves for members of law-making bodies directly elected by the people. The courts first imposed the tax and the Delhi government legislated later. Deepening the irony is the fact that a nine-judge bench heard detailed arguments on a constitutional challenge to imposition of entry tax by various states on the ground that such tax violated the constitutionally guaranteed freedom of trade, commerce and intercourse within India.

An abuse to beat an abuse in law-making has a rich history. Prior to the newly elected National Democratic Alliance (NDA) government, the United Progressive Alliance government had felt cornered by the parliamentary standing committee, which was simply sitting on its review of amendments proposed to the Sebi Act. The government used, for the third time in a row, its power to promulgate a presidential ordinance. Since it would fall foul of the analysis in a celebrated Supreme Court judgment on the use of ordinances, the government simply tucked in a single new provision in the third version, to be able to claim that the third ordinance was not a third promulgation of the same ordinance. The NDA government took the cue. Amendments to the land acquisition law were effected thrice through an ordinance.

With Lokayukta (ombudsman) laws, some state legislatures have been cleverer than tax-structuring practitioners who are criticised. Where the law requires a due process to appoint or sack the ombudsman, they would repeal the law itself with a simple majority, or worse, through an ordinance. The office of the ombudsman or the provisions that govern appointments would vanish. New legislation would follow under which an incumbent of the government’s choice could get appointed.

When law-making institutions violate law when making law, they set the tone for the kind of conduct that is acceptable from society. The devil does quote the scripture.

This piece was published in the column titled Without Contempt in the Business Standard edition dated October 25, 2016

Nobel prizes, peace and plebiscite

One must consult the public when making law but law-making cannot be left to the masses

Earlier this month, the Nobel Peace Prize was conferred on Colombian President Juan Manuel Santos. He had brokered a peace deal attempting to end a half-century-old civil war between the republic and the Revolutionary Armed Forces of Colombia, called the “FARC”. The Nobel Prize could be a consolation prize. Just days before the announcement of the Nobel Peace Prize, the people of Colombia voted against the peace deal in a referendum.

The margin of defeat had been narrow: 50.2 per cent to 49.8 per cent. Even if the peace deal had won the referendum it would be obvious that nearly one half of the nation was against it. When 260,000 people have been killed in five decades, it would be natural that public emotions against forgiveness could be high. It is easier to declare war than to make peace embracing an enemy. The political campaign that actually scuttled the peace deal related to two primary features. FARC leaders who would confess to war crimes in a special tribunal would get an eight-year sentence of “restricted liberty” — stopping short of going to jail. For the next two elections, the FARC would have a token reservation of 10 seats in the 268-seat legislature.

In successfully opposing these features, a deal that would have enabled removing land mines, locating “disappeared people”, replacing cocaine agriculture, rehabilitating child warriors, and more importantly, bringing to an end a half-century civil war, was defeated. One would have thought that even if unwilling to forgive, the people of Colombia would have been willing to pay even an expensive price to secure peace. Opposition to the peace deal could have also been based on the premise of getting maximum political capital without serious intent to derail peace. Yet, in the making of history, one has to be careful about what one wishes for. Strident political opposition in the belief that momentous changes provide a chance to build political visibility without much expense (or damage) can actually lead to inexplicable outcomes.

Referendums are a complicated business. They require boxing highly nuanced and complicated situations into the binary compass of a yes-or-no vote. Each side can overstate the risks and rewards of the outcome. In situations where there can never be a single correct answer (and life is full of them) referendums can go horribly wrong. In the case of Colombia, if the will of the people was indeed not for peace on these terms, even the deal would eventually not have been honoured, and civil war could have broken out later when suppressed resentment would have festered long enough for new eruptions.

Take the Brexit referendum. A marginal vote in the United Kingdom as a whole supported leaving the European Union (51.9 per cent to 48.1 per cent) — a true reflection of the values a majority of the people of the UK support. However, Scotland had voted emphatically to remain in the EU (62 per cent to 38 per cent) — a true reflection of the values an overwhelming majority of the people support. The Scottish were out-voted by those in England and Wales. Only two years earlier, the Scots had chosen to remain in the UK with a highly-divisive-although-decisive vote (55.3 per cent to 44.7 per cent). Now, they may want another referendum on whether to stay in a UK that is not part of the EU.

This is why in almost every political system law-making is not left to the masses on the street. One must consult the public when making law but law-making is the job of lawmakers. The masses are free to choose law-makers and empower them to make laws. Their role stops there. Mature political systems have an Upper House (Rajya Sabha) with diverse indirectly elected representation to be a check and balance on the directly elected representatives of the masses in the Lower House (Lok Sabha). To ensure that those in the Rajya Sabha do not get deluded, the purse strings are held only by those in the Lok Sabha. All matters involving taking out or bringing in money into the treasury are passed by the Lok Sabha even if the Rajya Sabha has a diametrically opposite view — more about that in the next column.

In Australia, perhaps fearful of being seen taking positions on a controversial subject, a non-binding plebiscite has been suggested for determining if gay marriages should be made legal. In other words, although the people of Australia have voted Members of Parliament, the MPs want the masses to provide inputs. This may be a smart move for politicians on both sides of the divide, who could then say they only followed the diktat of the people. In republics that have a robust constitution, even if the masses desire to change it, they would have to follow the constitution in how they change it. The extent to which basic features can be tampered with would also fall for interpretation by courts that are charged with interpreting the constitution.

Picture the Income Declaration Scheme, 2016, to give amnesty for past tax violations being put to vote in a referendum akin to Colombia placing controlled amnesty to the FARC before her people. Likewise, picture a proposal to convert the Siachen Glacier into a no-man’s land to seek a mutually face-saving cross-border peace deal with Pakistan being put to a referendum. An electorate that voted a government into power impressed with an anti-black money campaign would likely have rejected an amnesty. If spun well, it may have supported the scheme too. Yet, urban Indian voters who may be happy to grant amnesty to tax violators would be highly likely to consider vacating Siachen as an unthinkable non-negotiable slight to their national pride.

It is for a reason that in the 67 years after the Constitution took effect in India, there have been just two real referendums and that too in small regions and under controlled circumstances. In Goa, after an Indian military invasion drove out the Portuguese, a referendum was held not about whether to join India but about whether to join Maharashtra or to be a Union Territory. Goans eventually got full statehood only in 1987 — a move that the current Delhi government is working hard to emulate.

In 1975 (the year of the Emergency) the Indian military moved into Sikkim (then an independent country although a protectorate) to arrest the king and take charge before a referendum was held on whether to join India. A 97.5 per cent vote to abolish the monarchy and merge with India emerged. In Kashmir, a recommended plebiscite has been rendered impossible by both India and Pakistan. Neither nation will vacate the portion it holds for the plebiscite to be fair. The demography of Kashmir on each side of the Line of Control has been differently but indelibly altered. No Nobel Prize will get awarded for peace here in the foreseeable future, even as a consolation prize.

This edition of the column Without Contempt was published in the Business Standard on October 11, 2016

HYPER-NATIONALISM AND SOCIETAL INTOLERANCE

A video that purports to show a hyper-nationalistic group forcing someone who did not stand up for the national anthem to leave a movie hall in Mumbai has gone viral.  In October 2014, I wrote about the law on the national anthem and connected dots with the position in nationalistic societies like the United States and Israel. Here are the two pieces consolidated in one place.

WORSHIPPING FALSE GODS

 

October 24, 2014

The lack of awareness of the law on the national anthem among law enforcers is disturbing.

It is a controversy brewing into a storm. This paper reported a patriotic mob turning its fury against a foreign national who did not stand to attention when the national anthem was played in a city movie hall. Dismissing both the mob and the victim, police officers are reported to have discouraged the couple against filing an official complaint, by suggesting that not standing up for the national anthem could amount to a crime.

The national anthem, and the lack of awareness of the law around it, is turning it into a social nightmare. In August this year, a Kerala magistrate had refused bail to a student of philosophy who had refused to stand up for the anthem. The magistrate is reported to have commented that his alleged crime was worse than murder. The local police took the incident as a cue to go through his Facebook posts, and charged the kid with sedition. The kid eventually got bail from the High Court, but only after spending a month in jail, with he next few years of his life consigned to legal proceedings.

In 2004, dealing with public interest litigation, the Madhya Pradesh High Court directed that the movie Kabhi Khushi Kabhi Ghamshould not be screened in any movie hall unless the national anthem scene embedded in the film were deleted. The grouse was that the anthem would be insulted if viewers did not stand up when it played in the movie. The court directed the film’s certification to be revoked unless this cut was made. On appeal, the Supreme Court set it aside. The court took on board instructions from the Government of India that clarified that the audience was not expected to stand to the national anthem if incidentally played in a film. The Court ruled that standing to the anthem in the midst of a movie “would create disorder and confusion, rather than add to the dignity of the national anthem”.

Way back in the 1980s, the Supreme Court had intervened firmly and clearly to hold that three Kerala kids belonging to the Jehovah’s Witnesses sect had done no wrong when they refused to sing the anthem, which they believed would violate their freedom to profess their religious faith. The students would stand to attention for the anthem but refused to sing along. The school, in response, rusticated the kids. (The clash of beliefs of this sect with social themes worldwide is legendary. The judiciary in the UK has had to rule on members of the sect refusing blood transfusion, which has also inspired a recent book The Children Act, by Ian McEwan.)

The Kerala High Court found the case to be in favour of the school while the Supreme Court directed that the kids be re-admitted to school and be permitted to continue without hindrance. Allowing the appeal with costs, the Supreme Court sighed in closing: “We only wish to add: our tradition teaches tolerance; our philosophy preaches tolerance; our constitution practices tolerance; let us not dilute it.”

Yet another lunatic example of the anthem being used to foment trouble was a private criminal complaint against Shashi Tharoor for exhorting an audience to place their right hand on the heart when singing the anthem. He was being American, seeking patriotic zeal right after the Mumbai terror attacks, apparently. He was discharged only last year. The complainant surely did not know much about the Rashtriya Swayamsevak Sangh’s chest salute.

The philosophy student in Kerala and the foreign national in the Mumbai movie hall have intellectual issues about standing up for the anthem, just as the Jehovah’s Witnesses have religious issues with it. But they cause no disruption to those differently-minded.

The lack of awareness of the law – for sure, on the part of the mob, and sadly, also on the part of the law-enforcers, worshipping false Gods – is disturbing. The only real legal provision relating to dishonour to the anthem is Section 3 of the Prevention of Insults to National Honour Act, 1971. It criminalizes intentional prevention or disruption of singing of the anthem. Surely, someone who does not subscribe to the notion of standing to attention, without disrupting or preventing others, would never be guilty.

Twitter: @SomasekharS

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WHEN ANTHEM CAN BE ANATHEMA

October 31, 2014

The conflict between nationalism and its expression is universal, even in nationalistic states like Israel and the US.

Last week’s column on Indian law on the national anthem drew reactions in two extremes. One was of being pleasantly astonished to learn how liberal Indian law can be. The other was of finding the very idea of not doing what is dear to the rest of society, abominable.

National anthems conjure imagery of national honour and pride. A former Reserve Bank of India governor M. Narasimham had a unique hobby collection: a repertoire of national anthems. The eyes of every foreigner lighting up when he would quote from her nation’s anthem at social gatherings was a sight to behold. Surely, it stood him in good stead as an economic diplomat, as India’s executive director to the World Bank and the International Monetary Fund.

No matter how alien a nation, it is widely considered courteous to stand at attention to her anthem when it is played. It can, however, be a prickly issue, debated and decided as per individual discretion. At the famous Madison Square Park address in New York by Prime Minister Narendra Modi, the United States’ national anthem was rendered before he took stage, and it appeared that he would stand only for the Indian national anthem. However, it was played yet again after he took stage and he stood through it with a frown, and then stood for the Indian anthem with a beaming smile.

Reactions to last week’s column even from lawyers have been divided on strongly emotive lines. The fault line is akin to Indian secularism. “Psuedo-liberal” – cry the nationalists, for whom not standing to attention is just unacceptable rudeness. To them, any reason for not falling in line is just plain hot air to justify rudeness. “Hyper-nationalist” – cry the liberals, for whom standing to the national anthem just before watching a movie like Humshakals is in tself an insult to national honour.

The lay of the land in other homelands points to a universal tension on the issue. The United States has a law that says every person “should” face the flag and stand at attention when the national anthem is being played. Yet, the US has an overwhelming lease of constitutionally-guaranteed freedom of expression. The US anthem law is considered to be only an advisory provision, and not mandatory. If intended to be mandatory, the law would have used “must” instead of “should”, say US lawyers. Dealing with cases involving criminalizing the desecration of the US national flag, the US Supreme Court ruled that the right to burn the flag as a means of expression reflects the freedom that that nation stood for.

Yet, the court of public opinion keeps the issue alive. Media polls point to public opinion on American streets lending support to laws that would criminalize insults to national honour, and politicians keep trying to introduce a law criminalizing it all over again. Israel, the epitome of nationalism for many Indians, presents an interesting situation. Akin to Islamic republics and kingdoms, Israel is a Jewish state. Its national anthem sings to the yearning of the Jewish soul.

Just two years ago, Justice Salim Joubran, an ethnic Arab who made it as judge of the Israeli Supreme Court, did not sing the anthem after being sworn in and just stood through it. Rightwing Israeli Prime Minister Benajamin Netanyahu candidly acknowledged the judge’s sentiment, at least in public. Last year, a member of the Israeli Parliament Hanin Zuabi rushed out of the room immediately after being sworn in because she did not want to stand when the anthem was being sung. Leaving the room was considered rude by some. Others considered it more polite than sitting through it or standing without singing it.

There is a new Indian trend with anthems. Various state governments have started adopting state anthems, which can give poetic license to divisive parochialism. But the right to have a state anthem is itself reflective of the freedom of expression. Yet, the right not to stand to a state anthem, if it conflicts with one’s feelings for a united India, is also protected by the freedom of expression.

Craving to criminalize a contrarian view by fettering the freedom that makes India a Republic is in itself an anti-national sentiment.

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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