Tag Archives: Supreme Court

Where the text trumps the context

The tension between a regulator and the courts in interpreting the real meaning and the “facial” meaning of a ruling is not going away anytime soon

By Somasekhar Sundaresan

The United States (US) Supreme Court’s ruling upholding the travel ban imposed by President Donald Trump brings to the fore a core question that often comes up in regulatory proceedings even in India. The question is whether a judge must look only at the text of an instrument or an order under challenge, ignoring all other attendant circumstances.

The US Supreme Court ruling is a watershed and will be discussed for decades. At the heart of the dispute was whether Trump aimed the travel ban at Muslims and if he did, would it violate the US Constitution. In a nutshell, here is what the court considered and ruled.

By a wafer-thin majority of 5:4, the majority of five judges of the US Supreme Court have literally written counters to the views expressed by the remaining four judges to hold that Trump’s face ban did not “facially” name Muslims and should therefore not be seen as aimed at Muslims. Trump ran an election campaign publishing a document called “Statement on Preventing Muslim Immigration”, which called for a “total and complete shutdown of Muslims entering the United States”. He spoke about how “Islam hates us” and that the US has “problems with Muslims coming into the country”. After he was elected, responding to whether he would proceed with “banning Muslim immigration” he said: “You know my plans. All along, I’ve been proven to be right.” When Trump first announced a ban on persons from specific Islamic societies entering the US, his campaign advisors used the term “Muslim ban” when explaining it.

Trump withdrew this ban and made changes to it. To the list was added a non-Muslim society and some exceptions and waiver proposals whereby the US would give waivers on a case-to-case basis. This is what came up for review by the US Supreme Court. Ruling that the travel ban proclamation was “facially neutral towards religion” and that the references to “extrinsic statements many of which were made before the President took the oath of office”, the five judges took the view that they would not hold the travel ban to be motivated by reference to one particular religion.

While the minority of four judges who disagreed have argued extensively with factual evidence to point out how specious the seemingly neutral language in the Trump ban proclamation was, the majority of five judges have ruled that it would not be swayed by the external evidence since they were not to sit in judgement over whether to denounce those statements but were to sit in judgement on whether on the face of it the President had the power to issue such a proclamation and whether it entailed reasonable measures for making it work. The majority of five found the waiver programme to be adequate although the minority of four dealt with how the waiver programme was a façade and that neither the ban proclamation nor the waiver was being put to work as they claimed to work.

Often, in the regulatory environment in India, instruments are written that seem to be drafted in a generic fashion but are effectively instruments that operate as an order that would clearly apply only to specific persons. One such example was a “circular” from the Securities and Exchange Board of India (Sebi), directing that inter-depository transfers should be effected free of cost. One of the depositories challenged it as an “order” (every order is appealable). The Securities Appellate Tribunal (SAT) held that it was indeed an order that was amenable to appeal and disagreed that the order, termed a circular, deserved to be set aside. The Supreme Court of India ruled that any circular that is “referable” to the legislation-making provisions of the Sebi Act would not be an order and cannot be appealed against — the only challenge then would be in a writ petition in the constitutional courts and not by way of an appeal in the SAT.

The SAT is often faced with situations where it has to take this call —whether an instrument is referable to law-making powers or executive powers. “Extrinsic” evidence such as the one that came up with the Trump ban too plays a role. Regulators often speak quite clearly about what they plan to do with the measures they introduce, and one would need to necessarily see the instruments issued, in context. Regulatory design in India, merging legislative and executive functions in the same authority, brings the position much closer to the Trump travel ban proposition. It is another matter that the generic term used by the regulators would read in motherhood terms such as “investor interest”, “policyholder interests” and “depositors’ interests”.

The tension between the regulator and the courts in interpreting the real meaning and the “facial” meaning will remain a long-standing one. It is somewhat like the proverbial priest answering a kid’s question about smoking and praying. When asked if one may smoke while praying, the answer is “no” while whether one may pray while smoking would beget the answer “yes”. One can often be trumped in the process.

This column was published under the head Without Contempt in editions of the Business Standard dated July 5, 2018

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

Three Extremes from 2017

2017 was marked by 3 extreme developments in law – surprising result in the 2G telecom case, changes in Insolvency and Bankruptcy Code and the push given to ‘Money Bill’ provisions of the Constitution

 

By Somasekhar Sundaresan

 

It is that time of the year — as 2017 draws to a close, it is tempting to look at developments in the area of law that impacted business enterprises during the year. It was a year marked by three extreme developments.

 

First, the biggest development that came at the fag end of the year – the all-surprising outcome in the 2G Telecom Scam (or should we now go back to saying “alleged scam case”). A classic example of a judicial overreach in cancellation of 2G spectrum licenses by a two-member bench of the Supreme Court, had led to the apex court correcting the law on allocation of natural resources when ruling upon a Presidential Reference. The Supreme Court had then taken great care not to disrupt the final ruling of the final court of the land in the 2G case, but had pretty much cleaned up the implications of the ruling for all other allocations of resources, doing away with the hard-and-fast rule of mandatory grant of resources to the highest bidder that the two-judge bench had earlier laid down.

 

Cut to 2017. The trial court judge, who through the trial, had pretty much denied every single interim application by every powerful applicant (whether it was from prominent industrialists seeking permission to travel, or from powerful political scions seeking bail) ruled that no case of criminality had been made out. Many commentators had been deeply invested in the idea that if the Supreme Court had already pronounced a bunch of persons guilty of impropriety, the criminal trial was just a formality to reach a foregone conclusion that the dramatis personae were guilty. They are still reeling in shock.  For now, the best way to summarize the situation is that all improprieties need not be criminal in nature although all crimes necessarily constitute impropriety.

 

The last word in the 2G case is not out. Appeals will follow. The zeal with which the earlier government had been attacked politically seems to be dead now. The zeal with which another bench of the apex court would eventually consider the last appeal that may eventually get filed many years down the line, will determine the real final outcome.  However, for this year, leaving merits of the specific case aside, this is a landmark development. The ruling cancelling telecom licenses were seen as bringing in uncertainty in the conduct of business. The ruling in the criminal trial underlines that the uncertainty can be uncertain.

 

Meanwhile, the silver lining is that regulators in the business of direct enforcement (without having to bother with proving themselves to courts of law in the first instance) would do well to learn that merely because they had taken strong positions on an interim basis, they do not have to conclude that violations took place. If the most high-profile case of the land can lead to acquittal, regulators must learn to look at every quasi-judicial trial presided over by them, with an open mind and without the fear of being seen as having sold their souls if they acknowledge that they were initially wrong.

 

Second, the law on insolvency affected business environment most materially this year. The very functioning of the newly-legislated Insolvency and Bankruptcy Code has taken off, with a bunch of cases reaching the apex court rapidly, and the law getting laid down. That even a newspaper vendor can initiate the insolvency process and bring a defaulter to his knees is good for business contracts. However, some extreme measures, however well-intentioned could kill the very efficacy of this law. One of them is the central bank taking charge of recovery decisions by banks — a position brought about through a Presidential Ordinance. The other is an evermore extraordinary Presidential Ordinance by which a blanket ban on anyone remotely connected to a defaulter gets disqualified from resolving any and every insolvent in the country.

 

Earlier, this column has analysed the unreasonable sweep of both these developments, here and here and therefore will not repeat itself. Course correction and tempering is expected, particularly with the latter.   For now, all that stout defenders have to say is: “Don’t expect the course not to be ever corrected — for now we need these imperfections.” Quite apart from this being a sorry position to take, if correction remains elusive, the new insolvency law could be stultified. Simply put, no affiliate of any insolvent anywhere in the world can bid to resolve an insolvent, if this position is not corrected.   And one is not being alarmist at all —indeed, this was the intention behind this latest Presidential Ordinance — since business failure and insolvency of every nature has been automatically stigmatised.

Finally, one would be remiss without reminding that the use of the “Money Bill” provisions in the Constitution of India — the only check and balance being the Speaker of the Lok Sabha, was taken to an extreme this year. Multiple tribunals constituted through Acts of Parliament passed by both Houses of Parliament have been abolished through a chapter in the Finance Act, 2017. In fact, the Foreign Exchange Management Act, 1999, which decriminalised violation of exchange controls by both Houses of Parliament, was re-criminalised through another recent Finance Act. That was not noticed loudly enough, and criminalising any conduct hardly evokes outrage in our society. The abolition and mergers of tribunals through this back door, certified by the Speaker to be worthy of a money bill legislation, will eventually be considered by the Supreme Court.

In a nutshell, the money bill envelope has been pushed to the farthest extreme. One could well be mistaken – a newer extreme may be achieved next year. Work on the Finance Bill, 2018 ought to have started in the cold corridors of North Block. Watch this space.
This was published as the Without Contempt column in the Business Standard editions dated December 28, 2017

States challenging Central Law embellishes Federalism

By Somasekhar Sundaresan

A Bench of the Supreme Court is reported to have criticized the Government of West Bengal and its advocate for filing a writ petition challenging the mandatory introduction of Aadhaar.

According to news reports, a judge is reported to have asked the lawyer how a state can challenge law made by Parliament. Taking the cue, it is learnt that West Bengal Chief Minister Mamata Banerjee’s lawyer agreed to get the individual who is the Chief Minister to be the petitioner instead of the state government.

According to this report in Bar and Bench, the judges are reported to have asked:

How can a State challenge a law made by the Parliament? You are challenging the vires of the Act.”

To protect the litigation in substance, finding fault with form, the Court is reported to have suggested,

“Let an individual come, let Mamata Banerjee come. But how can the State come? Tomorrow, what if the Centre challenges a law made by a State?”

This exchange may have been handled expeditiously had petitioner not displeased the Court by countering its observations. The move would have also suited the West Bengal Chief Minister, as it would give her direct political mileage. However, it begs the question if there is indeed any basis for a perception of illegality or impropriety in a state government challenging a law made by Parliament.

Interestingly, the answer, subject to some nuance, is clearly in the negative. There is no bar on a state government challenging law made by Parliament in the Supreme Court. On the contrary, under Article 131, the Supreme Court has exclusive original jurisdiction, to the exclusion of all other courts, over disputes amongst Central government and state governments, as indeed between state governments, where questions determinative of the existence or the extent of legal rights are involved.

In fact, the notion that challenges to law made by Parliament should be circumscribed, came up during the Emergency when Article 131A was inserted to provide that only the Supreme Court could deal with challenges to such legislation. Right after the Emergency, this provision was repealed. That temporary limitation was one of the forum, and not of the eligibility of the party who could litigate.

Then there is the age-old issue of whether a writ petition under Article 32can be pursued by a non-individual, but that does not seem to have been the basis of the change of form of the challenge to Aadhaar by the West Bengal government. The discomfiture appears to have been the seeming impropriety of a state government taking on law made by Parliament. That concern, even from the standpoint of propriety, appears misplaced.

Besides, if public interest litigation filed by individuals can be considered to be “appropriate proceedings” under Article 32, it would stand to reason that a state government (which would be held to a greater standard of propriety in its conduct) too should be able to move court. Of course, a petition without merit can be thrown by the court as it would throw out any petition that is without merit. A state government would be taking serious political risk if the apex court were to stricture it for indulging in frivolous litigation.

In fact, the recent history of the United States is rich with examples of states challenging law made by the Centre. Early this year, US President Donald Trump issued an executive order banning entry of persons from specified Muslim nations into the United States. A total of fifteen state governments – California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia and Washington – chimed in with the state government of Hawaii, to challenge it.

Even the equivalent of a “Union Territory” – the District of Columbia (Washington DC, which is like our National Capital Region) – challenged the travel ban. By a sleight of hand, the US President’s team replaced the travel ban under challenge with a new ban, adding a couple of non-Muslim nations to the list of banned sources of travellers and the fight has been reset to the first round again.  Hawaii is leading the fight again, and there is no reason why the other states would not join hands.

A state initiating litigation against the Centre in a court of law, over a constitutional issue, would embellish the robustness of the health of a federal democracy. Likewise, if for example, a State Legislature were to make law that is in the domain of Parliament, it would be a matter of robust federalism that the Central government challenges such law. The Supreme Court would be the right forum for resolving such disputes.

Indeed, there are various types of inappropriate use of judicial time for inter-governmental disputes and propriety would demand that those are not indulged in. For example, the income-tax department often files writ petitions challenging decisions of the Settlement Commission; the Enforcement Directorate is known to have challenged the Reserve Bank of India’s decision to compound offences under exchange controls; a former Union Finance Minister announced to the media that he had advised the capital market regulator and the insurance regulator to approach a court of law to litigate and resolve a turf war over unit-linked insurance schemes that were accused of also being mutual funds.

Last year, the state governments of Bihar and Jharkhand were rebuked by the Supreme Court for a dispute going back to 2004, over sharing of the guest house and state government office between the two states after the separation of Jharkhand from Bihar.

But a challenge to legislation made by Parliament by a state government, or for that matter, a challenge by the Central government to law made by a State Legislature hardly appears inappropriate.

The author is an advocate practising as an independent counsel.

This column was published in the Bar & Bench on November 9, 2017

Last resort shouldn’t turn into first choice

By Somasekhar Sundaresan
The of India is reported to have blessed a settlement between a litigating lender and a corporate borrower after the process for insolvency under the newly-legislated had been set in motion.

 

The parties settled their differences and their settlement terms were approved setting aside the process, using the court’s powers under of the  This is a material development and points to the need to take a close re-look at some of the policy choices made in the new bankruptcy law, which is now about nine months old.

 

First, the process brings on par with lenders, who may have thousands of crores in loans to a borrower, any operational creditor (say, supplier of furniture) who claims dues of just over a lakh of rupees, in the legal capacity to trigger the “resolution process” under the code.  The grounds on which the National Company Law Tribunal might refuse to set the process in motion are limited — for operational creditors, the primary ground is the existence of disputes before the claim is made. In other words, only uncontested dues on which there is a default would lead to the being attracted. The case in the was not of an operational creditor but of a financial creditor, but that does not matter for the analysis here.

 

Second, once the resolution process is set in motion, a moratorium kicks in. No debt can be enforced on the company against whom the claim was made. While this might seem normal about “bankruptcy protection” it works well only for companies that are truly bankrupt. For companies that are solvent but have bona fide disputes over claims made by counter parties, this results in a prompt trigger of pariah status. If your promises cannot be enforced against you, no one would transact with you. This is all the more reason for the setting of the process into motion to be done with a great deal of care and caution. Until a recent ruling by the National Company Law Appellate Tribunal, various benches of the National Company Law Tribunal, which administers the new law, had taken a position that unless actual litigation had been initiated, no claim of any operational creditor could be regarded as disputed.

 

Third, not only would a moratorium kick in, but also an “interim resolution professional” would stand vested with all the powers of the board of directors of the company. The powers of the board of directors would stand suspended forthwith. The moratorium and the change of control are certainly fantastic features to handle the best interests of stakeholders of a truly insolvent company but they are certainly poisonous and not medicinal for a company that is solvent but can be threatened with initiation of the resolution process. Therefore, the very threat of a possible initiation of this process leads to coerced recovery that could in fact hurt a larger segment of lenders, who truly have the long-term financial interests of the company at heart.

 

This is why HDFC Bank Managing Director Aditya Puri’s statement that resorting to the insolvency courts is not the best solution unless the borrower is a wilful defaulter makes immense sense. In his reported words, this is a law of “last resort” and not the “first thing”. The capacity of any goods or services provider — an operational creditor — to set such a serious process in motion as the first thing, is worrisome. Once the moratorium kicks in, even the financial creditors of a company for which a moratorium has kicked in, would get hit and be unable to recover their dues.

 

Indeed, the creditors’ committee that is supposed to work during the moratorium could comprise a majority of creditors, who see a future in the company and can drown out the voice of the lone creditor who does not. Therefore, theoretically, if one does call the bluff of an aggressive operational creditor or a disgruntled financial creditor, and stays the course, the initiation of the resolution process can eventually come to mean nothing. However, this is theoretical and not practical. Once the world at large rearranges its view of a company whose promises cannot be enforced and has to deal with a chartered accountant or company secretary acting as a resolution professional without experience in running a business, even a reasonable view of creditworthiness of a doubtful debtor has to change to a perception of a bad debtor.

 

In this context, the coding in the law that entails no roll-back once the resolution process is set in motion is a hard and blunt weapon of last resort, which can cause more injury than warranted when used as the first resort. When the uses “for doing complete justice” and takes on record the settlement terms between a creditor, who has set the resolution process in motion and the debtor on whom a moratorium has kicked in, it is because really unjust and unintended consequences can emerge from the working of this law.

 

For the long-term health of the effectiveness of the bankruptcy law, it would have been better to help the new law build its core strengths by generating capacity and getting the resolution professionals and bankruptcy professionals to build bandwidth and gain competence before unleashing the burden of handling the entire society’s corporate debts on them. The burden of private corporate debt recovery could have been held back from imposing itself on the enforcement machinery until the immediate task of serious financial debts working itself through. The Supreme Court, which has powers to intervene and roll back a moratorium in the interests of justice, having used this power, it is time for a serious and quick rethink and pilot short amendments to make this law effective with a review scheduled for after two years.

 

This column was published in the Business Standard’s editions dated July 27, 2017 under the title Without Contempt

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.

Tweets: @SomasekharS

BOYCOTT SOCIAL BOYCOTTING

By Somasekhar Sundaresan

Picture your community ostracising you even if you hadn’t committed a crime. Your ‘crime’ could simply have been offending someone’s sentiments. Devendra Fadnavis wants to do away with such social boycotts.

Maharashtra Chief Minister Devendra Fadnavis deserves kudos. One is not talking about his engaging in open letter conversations with journalists – that would need a separate column. The CM is driving a law to punish “social boycotts” inflicted by the parallel and more real “legal” system that controls society. The law is bound to provoke controversy, and with it, would emerge public discourse that would create greater awareness.

The new law that is being championed by Fadnavis seeks to make it a crime to socially boycott any member of society. If there were a single most-hurtful action that could be inflicted upon any human being, it would be to ignore his existence. Man is a social animal and typically depends on others in his social community. Even if he were reclusive by nature, he would need to acquire something that he just has to consume. That would entail interaction with other members of society. If he were a persona non grata and everyone around him were to pretend that he did not exist, he would have a living death.

Even a jail term may not break the will of a human being to live, but when a person comes out of jail -even if he had gone in just as an under-trial – and faces the stigma that makes him unemployable, unmarriageable and even an untouchable, he is sure to contemplate suicide. Now picture your community ostracising you even if you had committed no crime against the law of the land. Your “crime” could simply have been offending someone’s sentiments. The consequences can be devastating.

Examples of disputes of this nature abound. Some have even spilled into the courts. A Parsi priest was not allowed to offer prayers in a temple owned by the community’s panchayat. The next-of-kin of a dead Bohri activist was not given land for burial in the community burial ground. A panchayat in Maharashtra imposed a “fine” on a married couple for getting married despite belonging to the same “gotra” (two humans having the same ancestral lineage of a common “clan” – typically the clan being founded by an ancient rishi of millennia-old vintage). A mountaineer who is reported to have summited Everest and his wife have been allegedly boycotted by his community because the wife wears jeans, and does not wear a mangalsutra around her neck or a bindi on her forehead.

Getting such a law passed would not be easy – which is what makes the initiative even more laudable. The intended law was talked about early this year. It has taken much longer than anticipated. Originally, one heard that the law would impose a sentence of seven years’ imprisonment while now the prison term is said to be five years. Like with the law against domestic violence, the anti-social-boycott law would come up against deep-seated prejudices inherited across multiple generations.

Besides, merely criminalising undesirable activity would not by itself address the social evil. “A law would not be enough to stop such practices,” Fadnavis is reported to have said. “Social awareness is also necessary.” Even a debate about the law would ignite introspection in society about how indulging in social boycott is inappropriate. One may laugh this off by arguing that the nationwide outrage against khap panchayats was of no real consequence to the elders who sit in panchayats in Haryana or Tamil Nadu. However, truth be told, the outrage was not without impact. Rome was not built in a day.

The law will also come up against religious extremists of all faiths. It will be argued that the freedom to practice religion includes the freedom of the religious followers to ostracise. Even the European Court of Human Rights bought that argument and refused to interfere when a Church-owned school excommunicated a nonconformist teacher. In 1962, the Supreme Court held the Bombay Prevention of Excommunication Act, 1949 to be unconstitutional. The CM could either skirt religious boycotts to play safe, or take the bull by the horns and risk a constitutional challenge all the way to the Supreme Court. In the process, he would achieve his desire to create greater awareness and introspection that the debate would provoke.

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