A letter to Naseeruddin Shah

 

Dear Mr Naseeruddin Shah

There is more to India than deviance and social problems. The expression of fear that its morals, ideals, ethics and scruples are either debilitated or attenuated is clearly irrational. India’s conscience is and will always be intact.

There are deviants in every society. Villainy, wickedness or malefaction can only exist in an imagined society of perfect quality. There is no such utopia in the world. Not being a utopia does not make a society so distasteful, dreaded or distressing to be demeaned in the way you have done.

There is no mob rule in India. Nor are Indians a fickle crowd. And social norms which define human behaviour are very much in tact. Any kind of verbal abuse which delegitimises our institutions and our culture is inexcusable and is indefensible. India can do without this stigma.

Ours is no tribal or closed society. There is cultural and religious pluralism and accommodation for alternative points of view. We are no dumbed down masses, are alert and alive to our situation, critically understand our circumstances and have never allowed knowledge to become political. Our lives are moderated by the Constitution and the laws and we enforce accountability to wrongs. The moral system which the majority community in this country subscribe too is of moral universalism, an ethic which transcends religion, culture or personal whim. You have assumed the role of a moral entrepreneur and using urban legends have tried to create a moral panic, a role which does not behove you or any other responsible person in your position.

Fear is a primeval emotion. All of us know fear. Phobia is however an anxiety disorder. There is an irrationality to it and a deviance from acceptable individual behaviour. Your phobia is your own making which may require therapy or medication. Treat it. Do not indulge in it nor publicise it to create dismay or dread in others.

The folkways, the ways of living, thinking and acting, which are our perennial guide to conduct and which we consider of central importance embodying as they do the fundamental moral values of our society will make us instinctively stand with your children and defend them should the need ever arise. This is India. And this India does not so act as part of a conscious design but as a visceral reflex to the gruesome and horrifying fictional situation you imagined.

Instead of instilling fear in your children educate and empower them with the India of India which you have forsaken. I as an Indian have always seen you only as the versatile actor who carries a famous name. The fact you are a Muslim never factored in my estimation of you. You have insulted every Indian like me with your comment.

DUSSEHRA and the BATTLE OF MINDSETS

Accusing Lord Ram of not doing justice in banishing Sita, Pratap Bhanu Mehta, describes  (The Indian Express, October 19, 2018) vanquishing of Ravana, rescue of Sita, end of exile and eventual enthronement as “pyrrhic” and portrays  Vijaydashmi as “permanent triumph of injustice”! Mehta, in the same breath mentions Valmiki’s “greatness” in leaving questions relating to Lord Ram’s conduct “hanging” and not “sugar coating” the outcome. Mehta ignored the fact that Valmiki was himself a Hindu and Lord Ram an incarnation of Lord Vishnu. Yet Valmiki did not hesitate in presenting the Epic as he did. Authority, Revelation or Dogma did not constrain him. Hinduism thus celebrates freedom from servitude and subjection to creed and articles of faith. It is victory over prejudice and intolerance.

Valmiki was aware about the worth Hinduism attached to  “pramana” as the means by which a person acquires knowledge. And pramana is not confined to the word or testimony of experts alone but includes perception, inference and deduction trusting the wisdom of the person to reach the right conclusion. Thus even a Pratap Bhanu Mehta will not be called an apostate for describing Lord Ram as being “reduced to pathetic self-doubt over truth” and accusing Him of “not doing justice” which incidentally is a gratuitous denunciation made rather insolently with a half-baked knowledge of the scriptures. Hinduism thus celebrates the autonomy of an individual, gives him dignity and worth and trusts his judgment not forcing him to be part of any herd.

Mehta seems to be oblivious about hermeneutics – the science of interpretation of scriptures – and the use of semiotics including allegories as an aid to interpretation. What is expressed carries a moral meaning, different from what a literal reading may convey, to drive the mind towards lessons of right and wrong as a guide to acceptable standards of behaviour.  The message conveyed is that life can never be purged of conflict between values and criticism of a choice of one amongst clashing and sparring values will is inevitable. One must yet show character and have courage of conviction – cultivate a quality of mind as can face difficulty and pain. As a king deferring to the will of the people is obligatory even if it involves sacrificing personal happiness. Mehta calls this “rubbish” as Lord Ram went into exile “against his subjects wishes” ignoring the fact that at that time his father Dashrath not Lord Ram was king! In resolving an ethical dilemma between two choices neither of which can be called immoral  a king must assume a transformative role as a leader displaying a commitment to the larger good and derive legitimacy from the trust of the ruled rather than merely from his position as king. Hinduism thus acknowledges there cannot be any empirical truths in the real world. It celebrates independent thinking.

“Triumph turned to tragedy” as Mehta mentioned belittling the significance of Vijaydashmi.  It was tragedy for Lord Ram and Sita alone. And it was not only “Sita’s battle and Lord Ram was as much a part of it. For Lord Ram’s kingdom, however, there was no tragedy. Ramrajya –  equal rights alike for the prince and the pauper- still prevailed. After all it was a washerman whose comment led to Lord Ram sacrificing his personal happiness and “practising austerity”  and maintaining his “absolute fidelity” towards her which according to Mehta “amounts to nothing”! The movement away from absolute monarchy and divine right to are more liberal creed and rejection of authoritarianism – Lord Ram could well have cut the washerman’s head – and caste prejudices amounts to “nothing” for Mehta!

Sita’s banishment is called “reducto ad absurdum of the epic”. If there is a single statement running through Ramayana it is of self sacrifice. I fail to understand how this is disproved by Sita’s banishment. On the contrary it is re-enforced. If there is any argument ad absurdum it is that advanced by Pratap Bhanu Mehta.

Mehta’s piece is a typical example of what is known as a “framing effect”. He framed the presentation to concentrate only on Sita. This is but an instance of attribute framing. The author just concentrates on one facet of an entire epic and does not give equal chance or importance to other aspects which alone can complete the picture. Perhaps he wanted his article to be relevant for the Metoo environment of today and compromised accuracy by adopting a shortcut of focussing on one aspect of a complex issue.

The “battle” is duly joined ON Dussehra Mr Mehta. It will surely continue “after Dussehra”. And the battle will be with mindsets like yours. Vijaydashmi has been and will always remain triumph over injustice!

 

PRIYANKA and KIPLING’S ANIMALS!

Indophobia is often a default position.

Cringing Indians apologetic about their roots re-enforce these phobic attitudes.

Why talk about Mill, Macaulay, the Evangelists and others when we have people like Priyanka Chopra to defame, disparage and denigrate India.

Apologists for Priyanka may say that the episode is a work of fiction but the choice of the storyline reveals a normative bias and subscription to beliefs and values antagonistic to India.

Even if we ignore the fact that the give away of the plot was Rudraksha beads – a demonising of religion reminiscent of Macaulay’s odious comment that all that is hideous, grotesque and ignoble about Hindu Pantheon – on the specious plea that Muslims are portrayed as terrorists too, can we ignore the suggestion in the plot that Kashmir is a disputed territory whose fate legitimately depends upon intercession of a third country and while national interest lies in conceding  that position , those who are opposing it are terrorists?? And what is worse is that the sense to oppose this untenable position on Kashmir is shown to be in Hindus only! Do Muslims believe Kashmir is disputed, that Pakistan has a stake in it and a third country shall decide its fate?

While the producers “inadvertently” stepped into a complex political issue was Priyanka Chopra only in a state of partial parousal out of excitement at performance as Alex Parrish and had otherwise no awareness of the storyline?

Or is she one of Kipling’s animals…Kipling after all had more love for animals than humans in Indian homes and perhaps she must be enjoying being feted as a healthy specimen.

No one can fictionalise India.

Priyanka’s forefathers were the white man’s burden. She and people like her are ours!

 

Right to Privacy – Now Public!

Alan Westin who defined privacy as “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others” explained that “just as a social balance favoring disclosure and surveillance over privacy is a functional necessity for totalitarian systems, so a balance that ensures strong citadels of individual and group privacy and limits both disclosure and surveillance is a prerequisite for liberal democratic societies. The democratic society relies on publicity as a control over government, and on privacy as a shield for group and individual life.”

It was, therefore, surprising to have the former Attorney General assert that privacy is not a Fundamental Right. Privacy is a guarantee of due process providing an assurance that the government operates within the law and guarantees a fair procedure.

In fact whether the Constitution was read as a textualist would (Justice Scalia defined textulaism as an interpretation “guided by the text and not by intentions or ideals external to it, and by the original meaning of the text, not by its evolving meaning over time”) or whether it was construed as a Living Constitution that favours a broad not a conservative or mechanical approach “not condemning civilized society to remain under the regimen of its barbarous ancestors” the conclusion is inescapable that privacy is in fact guaranteed by the Constitution.

Privacy can be best understood by identifying an “intruder”. N A Moreham,Senior Lecturer in Law, Victoria University of Wellington in a scholarly article on privacy quoted Stanley Ben who described an intruder as one who “fails to show a proper respect for persons; he is treating people as objects or specimens — like “dirt” — and not as subjects with sensibilities, ends, and aspirations of their own, morally responsible for their own decisions, and capable, as mere specimens are not, of reciprocal relations with the observer. These resentments suggest a possible ground for a prima facie claim not to be watched, at any rate in the same manner as one watches a thing or an animal. For this is to “take liberties”, to act impudently, to show less than a proper regard for human dignity.”

Denial of privacy thus robs one of dignity. But the right to live with dignity has been held to be a core constitutional value by our Supreme Court and guaranteed by Article 21. And as privacy is an assurance of dignity the guarantee of privacy cannot but be implicit in the Constitution.

Even otherwise as Edward Bloustein says: “The man who is compelled to live every minute of his life among others and whose every need, thought, desire, fancy or gratification is subject to public scrutiny, has been deprived of his individuality …. Such an individual merges with the mass. His opinions, being public, tend never to be different; his aspirations, being known, tend always to be conventionally accepted ones” Visibility itself provides a powerful method of enforcing norms and as Westin tellingly puts it “naked to ridicule and shame they will be put in control of those who know their secrets.” As Moreham said freedom of expression – again guaranteed by the Constitution – would lose much of its value if people do not have the chance to learn to think for themselves and have anything unique, creative and controversial to express. Similarly freedom of action and belief – also guaranteed by the Constitution – will be lost where one is kept under the spotlight and on the stage in perpetuity robbing life of its spontaneity sparkle and exuberance, pillaging imagination of its resourcefulness, curbing individual genius and even idiosyncrasies, and enforcing conformity.

The right to privacy though unspecified is yet clearly reflected in the language of the Constitution and the existing state of law also clearly showed that the society believed that such a right existed. Merely being alive and alert to this fact even without being activist was sufficient to acknowledge the same.

The utter incongruity of the exercise of constituting a Bench of Nine Judges to decide if Privacy was a Fundamental Right at the instance of the Government which denied the proposition is apparent in the wholehearted endorsement of the decision as a vindication of its stance. What then was the need to rely upon the judgments on M.P.Sharma and Kharak Singh to insist that larger benches of the Supreme Court had held privacy not to be Fundamental Right, insisting that the framers of the Constitution had expressly excluded the right from the list of Fundamental Rights and asserting that the right was merely a common law right – an argument of the Attorney General which sat rather uncomfortably with that of the Additional Solicitor General that the right was recognized in different statutes? It could have been conceded that Sharma and Kharak Singh did not lay down the law correctly, that on a contemporaneous not historical exposition of law the want of explicit inclusion of privacy as a Fundamental Right could not be considered decisive and that a common law right was elevated to the status of a Fundamental Right and clearly emerged from the guarantee of Article 21 and other facets of freedom guaranteed by Part III of the Constitution.

Split verdicts often create doubts about verdicts and are open to criticism of policy and expediency trumping law. The Supreme Court spoke in one voice in recognizing the right to privacy. The unanimous decision of the Supreme Court is a momentous moment in India’s legal history decisively showing that existence of the right to privacy as an undisputed reality and vindicating India’s position as a confident, mature and vibrant liberal democratic state.

Amarnath, Terror & Memorial to an Ordinary Indian

One fearless bus driver of Amarnath victims, Saleem Mirza, who saved several lives by continuing to drive till he reached a point of safety despite being under attack was enough to foil the plans terrorists who wanted still larger casualties much as Brigadier Usman, the highest ranking officer of the Indian Army martyred in the Indo-Pak was of 1947 after resisting all pressure to opt for the Pakistani Army was enough to shame the Pakistani Army. The separatists and Pakistanis are yet persisting with the delusion of dismembering India. Every attack on India, however, brings forth the valour of an ordinary Indian and affirms that as a country India will remain indomitable. Every Indian has made himself count against aggression of enemies and artifices of conmen. And it is in this spirit of the ordinary Indian that India resides It is time we raise a memorial to the ordinary Indian and celebrate the everyday humdrum life of our fellow countrymen because it is that mingling, in the shared joys and common frustrations, in our fears and unfulfilled aspirations and in the realisation that India alone is home that India truly resides. The common man remains the crucible of all identities and is the quintessence of the country. We relate to the him, identify with him and will fight to preserve him. He may be a Saleem who save Hindu pilgrims or be a Shail Devi a frail old widow who saved Muslims from marauding mobs. Such memorials can be the sacred spots dotting the country for every Indian to pay homage be developed as tourist attractions and help foster a truly unique Indian identity. This could well be be the modern equivalent of Adi Shankar’s uniting holy spots across India through Jyotirlings, Shaktipeeths and Vishnu Dhams. We have spent a lot of time celebrating differences, It is time there is an acknowledgment of the nationalist identity based on a civic bond and commonalities.

Media,Law & the case of Roys

The editorial “The Morning Knock”  in The Indian Express (June 7, 2017) on the CBI raid NDTV founders Prannoy Roy and Radhika Roy was disappointing. The newspaper failed to make a fair assessment. The editorial raises the issue of media-transparency – the “why” behind the editorial – and the need for accountability on the part of the media itself.

The editorial, correctly stated that the “media house is not expected to be above the law” but proceeded to invoke the epithet “caged parrot” for the CBI and draw upon the “relics of a dark time to which no one wishes to return”. The illustrations given would have been justified if the facts of the case in question showed that the raid was unwarranted. The newspaper, however, chose not to commit to this position yet suggested the possibility of raid being of questionable intent! Any search for information which confirms one’s preconceptions is nothing but cherry picking – using information which confirms one point of view while ignoring all data which can contradict it. And having itself acknowledged that “ownership of most media today is defined by vertiginous web of cross-holdings involving corporates and entities for whom media is not primary business” the newspaper would have done to maintain the difference between the interest of the media from the commercial interests of the media owners which it chose not to do.

The editorial raised what it called “disquieting questions”. The CBI, it said, stepped in seven years “after the event”! “Event” is a value neutral description and is inapposite considering the subject of the editorial. It is interesting to note the absence of any word (criminal?) modifying the noun “event” and attributing to it any quality  (crime?) as to justify initiation of an investigation. If it was an “event” seven years is a long period of time for it to be worthy of interest or attention but if the event was a “crime” the passage of seven years is irrelevant and the more disquieting issue is its being hidden for the period.

The editorial next regrets that “there is no original investigation”. Investigation, however, follows and does not precede registration of information concerning commission of an offence. And if “original investigation” is the key how can the newspaper without even touching the facts of the case leave aside investigating the same call the initiation of the process “disquieting”?

ICICI, the editorial says, has not complained and the loss is described as a “private loss” to be decided by the “law of torts” with which the government is not expected to “weigh in”. Firstly, the concept of locus standi is alien to criminal law and anyone can put the criminal law into motion unless contra-indicated by the statute. Secondly even private banks perform public duties and their officials can be prosecuted for corruption or otherwise abusing their authority. Thirdly, even torts can be simultaneously be criminal wrongs and there is no bar to proceed under the latter. In fact as banks have the power to create money, shape economy and manipulate investments the need for accountability and control is higher in “events” involving banks which consequently cannot be called “private wrongs” to individual victims (to which law of torts applies) but “public wrongs” which need to be prosecuted on behalf of the society and placed clearly in the realm of criminal law.

The editorial contradicts itself by saying, “disputes concerning defaults bigger by order of magnitude are being heard by courts and the government has made no attempt to short circuit the process by letting the CBI loose.” The grievance thus shifts from an “event” to a “private wrong” to eventually a wrong which many others have also committed a plaintive attempt following this change in perception at seeking parity in illegality and perpetuation of criminal order – something which does not behove a newspaper which proudly proclaims “journalism of courage”. The newspaper should be more concerned about those left out rather than those reined in. Besides how can the newspaper complain simultaneously about “letting CBI loose” AND its being a “caged parrot”? Did the newspaper want the CBI to be caged in rather than being free to investigate the wrong. Does this not entail conviction being replaced by preferences and position on principles shifting with the personalities involved creating the very crisis of credibility for the newspaper which it apprehends is being faced by the CBI? Besides “disputes” of “bigger defaults” are weasel words stripped of specifics which can be manipulated according to one’s biases and written without threat of contradiction with no means of knowing which disputes and defaults the editorial had in mind to test whether its opinion was in fact correct.

Any tampering of information by the government is wrong. However a correct portrayal of it by the media is as equally mandated. And both need to be wary of giving it a spin manipulate opinion rather than inform it and allow it to reach its own conclusions about the issues which confront it. The case of the Roys is a test not only of the “commitment” of the CBI to investigate fairly as the editorial rightly opines but its reporting by the media is equally a test of its commitment to transparency and reliability of information purveyed by it.

The “SPECIAL” Coal Case – Ministers and Scamsters!

The judgment rendered by the Special Court betrays complete ignorance of the constitutional fundamentals of a Parliamentary form of Government.

A minister is responsible to Parliament for whatever goes on in his department, whatever the extent of delegation and whether he is personally involved or not. It is this accountability, which provides legitimacy to governance and justifies retention of confidence of the Parliament and consequently consent of the governed. It is thus the minister alone who is the final decision making authority and remains liable to account to Parliament for all mishaps and operational failures of his ministry.

There cannot, therefore, be a presumption that a Minister does not know what is happening in his ministry. The presumption, in fact, is to the contrary because his office is predicated on the affirmation of the principle of accountability, which negates the supposition that he need not know the affairs of his ministry. And an emphatic reiteration of this principle arises where power is exercised by the minister personally as in that event there is no displacement of authority to take decisions and of the consequential liability for the same.

In the case where the Coal Secretary has been convicted, he merely recommended allocation of coal blocks but the eventual approval was granted by the Minister of Coal who also happened to be the Prime Minister.

Yet the Special Judge records in his order, “there was no reason in the facts and circumstances of the case for the Prime Minister as Minister of Coal to presume that the guidelines issued have not been complied with. It is not only apparent from the record but it is certainly permissible to draw a presumption in the overall facts and circumstances of the case that Prime Minister as Minister of Coal proceeded to consider the recommendation of the Screening Committee on the assumption that the applications must have been checked in MOC for their eligibility and completeness or that the guidelines must have bee duly followed even by the Screening Committee.”

Moreover he conflated the PM with the Government of India. He framed an issue thus: “Whether dishonest representation continued before the PM and thereby cheating Government of India.”

The PM is NOT the government of India and the comment betrays complete lack of understanding about what the government is.

Even where functions entrusted to a minister (or PM) are performed by an official there is in law no delegation because the official’s act is constitutionally that of the minister.

And should an official may act in a manner the minister disapproves, the minister has then to act to show his disapproval of the same and should he choose not to so act despite having the opportunity, the reason and ability his omission becomes part of the blameworthy act itself. In the instant case the minister did not so act. If the civil servant is culpable so will the minister.

Thus not the secretary alone but he along with the Prime Minister can be liable to the Government of India.

In fact in the instant case the responsibility was more onerous on the PM for the Special Judge himself records that “the fact that the then Prime Minister of the country Dr. Manmohan Singh thought it appropriate to retain the charge of Ministry of Coal with himself only, clearly shows as to how important the work of said Ministry was.” If it was admittedly very important for him how can it be presumed in his favour that he left it to the discretion of the Screening Committee to make recommendations and then blindly follow them? The presumption would be that he was alert and was fully informed!

The wrong becomes more significant still as the concerned minister was also the Prime Minister. Mr Parakh, however, has written that “on the 20th August 2004, the Prime Minister approved allocation through open bidding. He wanted a cabinet note on this. After the Prime Minister’s approval, we received a note from the Prime Minister’s Office (PMO), enumerating the possible problems in moving to open bidding. It is understood that this note from the PMO was based on an unsigned note given by the MoS to the PMO.” Instances such as these are cited to prove The PM’s innocence – the fact that he was helpless. This reputation enabled him to a get relief from the Supreme Court too. However no matter how good a person one is, if the act (or omission) is criminal goodness of disposition provides no amnesty from prosecution. The fact remains that the PM did not remove the minister, who he was entitled to do, and altered the decision to align with that of the minister! Apart from the fact that omission to act, being intentional, had a behavioral dimension, which took away from it the badge inactivity and firmly attached it to the unfolding criminality of conduct, the issue transcended from one of individual ministerial responsibility to one collective responsibility of the council of ministers for which, again, the PM is ultimately responsible.

If the secretary, as the head of the permanent civil service can be prosecuted, the PM who heads the political executive cannot be immune. In matters of policy the responsibility is always of the political executive. And where the political executive allows faulty implementation of policy, the wilful failure to act will make its liability joint with the civil servant. Let there be nothing arbitrary in drawing the bounds of criminality and never play favorites with the accused. Law after all is not to be like “a spider-web through which big flies pass while the little ones get caught.” Once the political executive is reigned in the permanent civil service can never go astray. If however law provides possibility of wagering a chance to defeat the system immunizing some and randomly targeting others it will remain a failure both instrumentally and normatively and the systemic rot will remain endemic.

(THIS HAS BEEN PUBLISHED AS AN OPINION IN BLOOMBERGQUINT   ON 28TH OF MAY, 2017)