Inflection Point 2011
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First, in a manner unprecedented in India, we decided to apply the same law to both the powerful and the powerless. For India, this is deeply shocking and I am not being rhetorical. Our society is structured around the fundamental principle that if you are powerful, you are above the law. If you flag down a VIP car flying down the wrong side of the road, you would expect the irritated politician to thunder "don't you know who I am?" VIP's expect not to be frisked at airports. Movie stars expect not to be caught at customs carrying jewellery. Bureaucrats don't stand in railway reservation lines.To now say that if you take or pay a bribe, you will go to jail is a disturbing, indeed alarming, movement of the goal posts. The greatest impact on this paradigm shift is seen in the 2G case in which MP of ruling party allies, heads of India's largest corporations and political organisers of international sports events were sent to jail. Naturally, all major paradigm shifts bring new issues and I've written about some of these too (Judicial Collateral Damage). That said, no one will deny that if the same laws apply to everyone, a lot of very powerful people will have to clean out their act. The long result will be a fairer, more egalitarian society. It won't happen first thing in the morning, but the shift has begun.
Second, 2011 saw Indians become orders of magnitude more serious about doing something about corruption in high places. Corruption management in India has long been best described in that delightful Indian word 'tokenism'. Since we did not want to fix the problem, we would earn brownie points by catching a DTC bus conductor here and a well-past-the-best-before-date politician like Sukh Ram there. If a smoking gun led to someone genuinely powerful, it was understood that the effort would degenerate into a theatre of the absurd such as Bofors. Since I've also written about this recently (Scam Mela and Systemic Scamming), I will pass on with the observation that since corruption is ultimately about funding elections, the long term impact of these events may well be a fundamental change in the manner in which we finance our democracy. I wait for a pragmatic debate on this subject to begin.
2011's third major change is our changed attitude to the manner in which we rob rural and tribal Peter to pay urban Paul: I speak of course of land acquisition. This has always been a brutally unfair law on which I have had a lot to say over the years (especially Land Acquisition Angst and Pandora's Real Estate Box). At the time of writing, the new land acquisition dispensationis still a work in progressand as a nation, we are addressing three issues: (a) the price at which we compulsorily acquire agricultural land, (b) the mechanism by which we acquire this land, and (c) the purposes for which we may with justification acquire this land. Early symptoms suggest that we are now overreacting in the other direction — a sure fire recipe to kill industrial development — but be that as it may, in changing this law, we would have substantially changed the basic structure of our society.
The final big picture shift is in the nation's handling of its "law and order" situation. If I didn't love this very charming Indianism quite so much, I would have called it the state's abdication of its sovereign function. The Government of India delights to engage in self-indulgent excesses far removed from its job — hotels, airlines, booze shops and handcraft stores - sometimes at great cost to the exchequer. Yet, when it comes to essential sovereign functions — and what can be more sovereign than maintaining infrastructure or policing the people — the government is completely dysfunctional. In recent years, human rights activists have had much to say about the havoc that government sponsored private armies have wrecked in Chhattisgarh. The result has been a rising cycle of violence and counter violence. We got away with this privatisation of sovereign duty in the past — and "terrorist infested" Punjab is a case in point — but in truth, can a modern civil society fund one side of a raging undeclared civil war? On 5th July, 2011, the Supreme Court of India ruled on this question in Nandini Sunder versus State of Chhattisgarh.
In this case, the court was invited to determine if the state should be allowed to recruit 'Special Police Officers' in "Maoist infested" areas, to arm and fund them and to then prevent their activities from being registered as crimes. No, said the court, and for a variety of reasons. First, to do so was to violate the constitutional rights of the people the state was recruiting. Poor uneducated and negligibly trained tribal youth could not be exposed to the inherent dangers in counter insurgency operations, nor could they be exposed to the risk of retributive killings after their appointment ceased. Second, these tribal youths were themselves responsible for human rights violations — looting, arson, violence — because arms in the hands of the illiterate and the untrained endangered society generally. Third, the court observed that it is the duty of the State to protect the fundamental rights of its citizen. To pay an "honorarium" of Rs 3000 per month, and outsource this responsibility to those manifestly incapable of discharging this burden, is illegal.
The long term consequences of this judgment aredebatable. On a practical level, to declare a reactionary counter insurgency group illegal is not to repress the insurgency, leave alone address the conditions that led to the insurgency in the first place. Astute political thinkers have criticised the judgment for its ideologicalleanings. Doubtless, the judgment is not at a loss for rhetorical expansiveness with catchy quotations such as Cicero's "Laws cannot remain silent when the canon's roar". It delves deep into Joseph Conrad's Heart Of Darkness. It tries to explain the violence in Chhattisgarh. It even condemns the "amoral political economy that the State endorses, and the resultant revolutionary politics that it necessarily spawns". It castigates the "culture of unrestrained selfishness and greed spawned by modern neo-liberal economic ideology, and the false promises of ever increasing spirals of consumption leading to economic growth that will lift everyone, under-gird this socially, politically and economically unsustainable set of circumstances in vast tracts of India in general, and Chhattisgarh in particular". It condemns the State's "subsidies to the private sector, giving it tax break after tax break, while simultaneously citing lack of revenues as the primary reason for not fulfilling its obligations to provide adequate cover to the poor through social welfare measures. On the other hand, the State seeks to arm the youngsters amongst the poor with guns to combat the anger, and unrest, amongst the poor. Tax breaks for the rich, and guns for the youngsters amongst poor, so that they keep fighting amongstthemselves, seems to be the new mantra from the mandarinsof security and high economic policy of the State".
If it wasn't for the paper on which it was printed, I would have put the lot down to the work of Arundhati Roy! But be that as it may, the fact of the matter is that the court has held — and I just have to quote the judgment here — that "the constitution does not support the institutionalisation, of a policing paradigm, the end point of which can only mean that the entire nation, in short order, might have to gasp: The horror! The horror!" A legal principle has been decided and as its consequences percolate down into national consciousness, we would have changed another fundamental basis on which our democracy deals with underprivileged communities.
Ultimately, all these four changes are about equality before the law, indeed equal protection of the law. If we can actually get to that point of political, administrative and judicial equality, we would have ushered in a real democracy in India.
The author is managing partner of the Gurgaon-based corporate law firm N South and author of the pioneering business book Winning Legal Wars. He can be contacted at [email protected]