Comment
Why democrats should worry
THE Indian state inherited a developed, well-knit and organized coercive infrastructure from the retreating colonial state – highly-disciplined armed and police forces and a ‘steel frame’ bureaucracy. The government of independent India not only made full use of this inherited military and police apparatus for managing the crisis created by the transfer of population post Partition, it also used its military power in a war against Pakistan in the state of Jammu and Kashmir and in the operations against the Nizam of Hyderabad and the Communist-led armed struggle in the Telengana region. The extraordinary events of 1947-48 not only legitimatized the men in uniform in the estimation of a democratically elected government, they also strengthened the argument that the British had left behind extremely useful instruments of coercive power for the successor rulers who in turn used it effectively for the maintenance of internal and external security.
Unlike the unaccountable and undemocratic colonial rulers, a real challenge before the political leaders of independent India was how to establish a proper institutional relationship between ‘democracy and military and police forces’. Clearly, the role and authority which the British commander-in-chief exercised in the governance of colonial India as an unquestioned head of the armed forces was not acceptable under a democratic political system. Our political leadership resolved this issue by drawing upon the fundamental traditions of British and American democracies and locating control of the coercive machinery in the hands of democratically elected leaders. Yet, the developments of the last sixty years also provides enough evidence that not only has the manifest and latent authority of the Indian Army and police forces increased in public life, the actual dependence of civil democratic authority on ‘soldiers’ for the maintenance of internal security has undergone substantial change. The days of ordinary policing for the maintenance of routine law and order seem to have come to an end and elected governments, both at the Centre and the state levels, have substantially handed over the management of problems of internal security to army-trained police forces.
A cataloguing of specialized and armed police forces established by the central government will reveal that dependence of our political governing class over such forces has increased because the central and state governments are unable, even incapable, of dealing with internal social discontent and group violence. The Border Security Force established in 1965 now has 2,19,560 personnel. The Central Industrial Security Force, a specialized armed police for the protection of industrial undertakings created in 1969 today has 1,20,000 personnel. The Crown Representative Police, renamed after independence as the Central Reserve Police Force, today consists of 206 battalions handling a wide range of duties covering law and order and counter-insurgency, anti-militancy and anti-terrorism operations. The force plays a key role in assisting states in maintaining public order and countering subversive activities of militant groups, not only in J&K and the Northeast but also the Maoist affected regions in central India. The central government also deploys Rapid Action Force (1992), the Commando Battalions for Resolute Action (COBRA), Indo-Tibetan Border Force, National Security Guard, Sashastra Seema Bal (2001) and the Railway Protection Force and the Railway Police.
Our democratically-elected Parliament has not only extended full support to the creation of powerful militarized police forces for internal security, it has also approved draconian laws for the unlimited exercise of coercive powers by these forces. The Armed Forces Special Powers Act (AFSPA) enacted on 11 September 1958 states: The Centre or state government can notify ‘an area as disturbed under AFPSA and invoke the Act and powers are given to the army, central paramilitary forces, including even junior non-commissioned officers to (a) fire or use force even causing death, (b) destroy any structure, (c) arrest any person without a warrant and (d) search any person without a warrant.’ In the exercise of powers conferred under AFPSA, ‘No prosecution can be launched without the approval of the Centre.’ The states of Jammu and Kashmir as also northeast India, especially Manipur and Nagaland, are not only controlled by the armed forces along with the democratically elected state governments, they are governed by a super-coercive law like AFSPA. Our Parliament has thus legitimatized the extraordinary coercive powers which are exercised by the army and police functionaries over the rights and liberties of citizens under the broad rubric of national interest, security and integrity of the country. It is worth recollecting that Indira Gandhi’s emergency regime with its suspension of habeas corpus was sought to be given a legal veneer under the provisions of the constitution of a democratic Republic of India.
Further, post-independence India launched its democratic journey by placing ‘draconian’ laws on the statute book which provided ample powers to police forces who could ‘detain’ any citizen, sacrificing the rights and liberties of ordinary individuals at the altar of the defence of the state. Our democratic state has always felt a need to create of specialized and well-equipped militarized forces on the plea that anti-insurgency, or anti-naxalism, or anti-terrorism are national threats and they require an extraordinary response. Post the terrorist attack on Mumbai on 26 November 2008, the Indian state sought to strengthen its military and legal capabilities by creating a National Security Agency and enacting fresh anti-terrorism laws. Incidentally, every state government too has extraordinary laws to place any individual behind bars without the right of trial.
What is the explanation for the growing involvement of coercive police forces in internal law and order issues? Why have the democratically elected governments, whether at the Centre or the state levels, come to depend on the assistance of paramilitary police forces and draconian laws infringing on the rights and freedoms of citizens? Why has Parliament willingly sanctioned extraordinary coercive powers to the political executive for performing its basic and routine functioning of governance based on constitutional values of freedom of citizens? What is the rationale for a democratic government to enact a Preventive Detention Act, Maintenance of Internal Security Act, Prevention of Terrorist Activities Act and other anti-terrorism laws?
Prime Minister Manmohan Singh and the Home Minister P. Chidambaram have repeatedly maintained that ‘Naxalism is the greatest threat to internal security’, while forgetting that these misguided armed Maoist adventurists are completely ‘home grown’ and a product of the social soil of India. True, the accumulated social discontent of the tribals is exploited by the Maoists, but the ‘real’ creators and originators of social turmoil of the tribal belt are the functionaries of the Indian state who have always neglected their problems. In the same manner, many identity-based armed struggles in Northeast India are the result of real or imaginary grievances of the people living in the remote parts of the country. Is military operation the answer? It is a well-known fact that uniform wearing armed forces are deployed when democrats fail to feel the real pulse of the people and redress their grievances. This is the reality.
It is often pointed out that our armed and para-military forces operate under the democratic-political control of elected representatives. This, however, is only one face of Indian democracy. Behind this mask of democratic control over ‘soldiers’ lies the other reality of the growing indispensability of armed forces to manage the internal affairs on the basis of coercion. If over 150 districts are Naxal infested and Northeastern Indian states and Jammu and Kashmir are classified as ‘disturbed’ states, democratically elected representatives must look within because soldiers out of barracks have tilted the power balance in their favour. The Indian situation proves that democracies become weak when disgruntled social groups come out on the streets and armed forces are deployed to crush the people’s movements. Democrats should be worried.
C.P. Bhambhri
The tragedy, and the farce, of Bhopal
THE tragedy of the world’s worst industrial disaster has reached another of its farcical culminations. Marx was wrong – history does not repeat itself, first as tragedy, then as farce. In India, the two are indistinguishable, so swiftly is tragedy converted to farce. Thus, soon after the verdict of the trial court, we heard A.M. Ahmadi, one of the judges who delivered the disastrous judgment absolving Union Carbide of substantive criminal liability, explain his decision by comparing the case to a car accident in which the owner of the car bears no direct responsibility for an accident committed by its driver. A farcical analogy if ever there was one: if the owner knew that the car’s brakes were failing, refused to repair it for reasons of cost, took care not to step into it himself, and used it to transport his workers – then perhaps the analogy would hold. If the delay in the trial court’s judgment is a particular example of an endemic problem, it does not make it any the less serious. The plain fact is that our criminal justice system ceased long ago to have any operative connection with justice: its chronic delays are both cause and symptom of its collapse.
The tragedy of Bhopal extends from the disaster of December 1984 to the utter failure of our institutions to provide redress to its victims. The settlement of 470 million dollars imposed by the Supreme Court in 1989 was essentially arbitrary since the victims were not allowed to represent themselves, and long-term studies on the effects of the disaster had not been conducted (in the event, they never were). The only thing that can be said in extenuation of its order absolving Union Carbide of criminal liability is that it was at least reviewed in 1991. The judgment of 1996 diluting charges against the company represents one of the very worst failures of the institution. The interpretation of law on which it was based was doubtful at best and inadmissible at worst. Yet, it remained unreviewed by successive benches and unchallenged by Parliament.
From the very beginning, in the immediate aftermath of that fateful day in December, two things were clear: that Union Carbide would seek to escape as lightly as possible, with minimal damages and without criminal punishment; and that the American government would back it to the hilt. The power of corporations in the American political system is one of the immutable facts of life, rather like birth and death. The penalties imposed on BP for its oil spill in the Gulf of Mexico do not alter the fact; it is possible to punish a single company without making much difference to corporate dominance as a whole (and BP still has the example of Exxon Valdez to comfort itself with, where the original penalty of five billion dollars was reduced on appeal to 500 million by the American Supreme Court). Therefore, the test was not of corporate responsibility – large corporations have none, for that would cut into profits – nor the value of Indian lives as compared to American, for it is self-evident that the two are not equal whatever noise might be made in public (in an analogous way the lives of air passengers and those who travel by trains are not of equal value to the Indian state). The real test was whether Indian courts and our institutions of power and authority were capable of delivering justice to Indian citizens. They failed comprehensively, and without putting up a fight.
The central issue was never, and should never have been, the extradition of Warren Anderson, who is, at best, a symbol, but the fixing of responsibility for the disaster on Union Carbide (later Dow Chemicals) as a whole. It was UC’s business to prove that safety regulations in its Bhopal plant met international (read American) safety standards, and that the accident was a result of factors over which it had no control. When it refused to do this, stonewalled requests for information, and refused to allow Indian investigators access to its Virginia plant by way of comparison, the most stringent penalties should have been visited upon it. Instead, the demands of justice were reversed – it was the victims who were required to prove that safety standards had been inadequate. And since they were very soon disallowed from acting for themselves, it was the state that had to do this.
Instead, successive governments allowed Union Carbide to prove its case, such as it was, by default. This was done by deliberately botching the official investigation into the tragedy through various acts of omission and commission – including the decision to indefinitely suspend (in effect, abandon) long-term clinical studies of the victims to establish the true magnitude of the disaster and its possible effects in the future; by refusing to act decisively against Union Carbide from the beginning; by allowing it to distance itself from its Indian subsidiary through a transparent financial stratagem; and by failing to amend the relevant laws to provide a legal template for addressing a disaster of such unprecedented proportions. A mephitic odour of corruption hangs about the whole affair. On one side a corporation with enormous amounts of money capable of buying an enormous amount of influence, on the other side poor, mostly very poor victims; coupled with a desire to attract investments at all costs: the outcome could have been predicted in advance.
During the progress of the case, India was transformed, in the estimation of its elites, from a prototypical Third World country to an economic powerhouse. Yet, through all the steps of this progression, the Indian state maintained an unimpaired contempt for the rights and the fate of the victims of Bhopal. The dispute over the cleaning up of the site at a time when it possesses, in theory at least, incomparably more leverage internationally than it did in 1984, is only the latest example of this tendency. This, at least, has not changed in 26 years: far from learning the lessons of history, our rulers wish for nothing better than to ignore them. Governments bend over backwards to provide corporations, both Indian and multinational, with every possible exemption, not to mention immunity in advance for acts of commission and omission. No matter how high the current rate of growth, investments must be attracted by mortgaging safety and lives if necessary. The nuclear liability bill is more proof of this, if proof be needed.
It is instructive to note that both FICCI and CII are busy lobbying the parliamentary committee on the bill to remove the clauses that suppliers and their governments object to on the grounds that if this is not done Indian companies in the same line of business will be held liable as well.
1 The last time I checked, Indian firms were not, by any stretch of the imagination, major suppliers of nuclear equipment. But in the unlikely event that this should happen, why should they be indemnified for acts of negligence in India, or abroad, any more than non-Indian companies? But no argument is too specious when it comes to laissez faire: Indian corporations and their foreign counterparts have learned to scratch each other’s backs. The bill as it stands is full of holes as Siddharth Varadarajan has pointed out: should it be watered down instead of being made more stringent, we face the possibility of more, and worse, Bhopals, this time without even the fiction of legal recourse.2For make no mistake, legal recourse exists largely in theory. Since the 1980s, the Supreme Court has considerably enlarged its jurisdiction while displaying, in the main, an overriding solicitude for ‘development’. A comparison with the United States is instructive. The American Constitution laid down no guidelines about the powers of the Supreme Court or the extent of its jurisdiction. Both were, in effect, created by John Marshall, its fourth chief justice, through a series of judgments that were to make it the strongest branch of government. The power of corporations in American public life derives partly from a judicial decree that makes them the equivalent of citizens with the same rights and protections.
In India, by contrast, the rights and duties of the Supreme Court were enshrined in the constitution. Despite stray precedents, judicial encroachment upon executive domain is a relatively recent phenomenon. Yet, the Supreme Court has failed to rule decisively against the state when its actions injure the interests of some its poorest citizens (the case on Narmada, the ongoing case on Dantewada) while consistently extending its power to review executive acts in general. Bhopal echoes this pattern. The drift towards the American model is clear – and not necessarily reassuring.
Finally, Bhopal makes it evident that the collapse of the criminal justice system has emptied our democracy of any real meaning. It must be reformed, and some of the remedies are obvious: thoroughgoing reform of the legal code to begin with. Reform of court procedure to eliminate delay and gratuitous obstructions. A synchronized intake of judges, and a reformed procedure for training them. Reform in the laws on contempt of court and impeachment. An institutionalized mechanism for reviewing judicial performance from top to bottom in order to weed out corrupt, inefficient and ignorant individuals. A national judicial commission, properly constituted, to select judges for high courts and the supreme court, subject to confirmation by Parliament.
None of these changes are likely to have much effect if the police apparatus remains unreformed: this must be done by setting up an independent institutional mechanism to investigate the abuses that have become a normal part of its working. Statutory penalties for malpractice, negligence and shoddy investigation, including dismissal, might be enacted. Police officers could actually be trained in criminal investigation, and promotion made dependent on performance of duties as reflected in completed investigations and convictions (this should apply to public prosecutors as well). They must be insulated to some degree at least from external pressure, and conditions of work and housing for ordinary policemen improved.
Merely to write these simple and often reiterated prescriptions is to succumb to a sense of deja vu. For our elites, the undemocratic character of our institutions is scarcely a thing to be altered when it has served them so well so far. They work for the rich and that is all that matters. The current administration contains a number of ministers whose relationship to corporate interests is an unacknowledged scandal. Its agriculture minister is wedded to the interests of prosperous farmers and agribusinesses, as his actions testify. Meanwhile P. Chidambaram has achieved the difficult feat of making a worse fist of the home ministry than Shivraj Patil. His advocacy of a military solution to Maoism is a threat to the very fabric of our freedoms. Given that the police find it difficult – and even redundant – to distinguish between combatants and noncombatants in adivasi regions, it inevitably follows that the army will find it equally unnecessary. Its record in Kashmir and the North East is far from reassuring; the nature of its brief makes abuses inevitable. The day it takes the field against some of our most oppressed and marginalized fellow citizens is the day when the erosion of civil liberties reaches the point of no return.
The growth of Maoism is a symptom of the historic failure of the Indian state – and by extension, the middle class that controls it – to devise anything resembling a just and equitable order. The failures of this particular government, on Bhopal, on Dantewada and a host of other issues, are the failures of the political system as a whole. They are symbolized in a prime minister morally compromised at every turn, by his own acts and those of his colleagues. None since V.P. Singh has adopted so elevated a moral posture; none has betrayed it more consistently in the actual policies of his government. The aspiration of being a great power means less than nothing as long as 42 per cent of all Indians live on less than two thousand rupees a month, a third or thereabouts suffer from chronic energy deficiency (which means, in plain words, that they are half-starved), and half of our children are malnourished.
3These bare statistics signify that the economic policies adopted by the state before and after 1991 bear most heavily on the poor – the majority of Indians who pay the costs and are excluded from any share of the fruits, thanks to its social policies or lack thereof. The enormous fortunes amassed by Indian businessmen in which we are vicariously expected to rejoice are the obverse of a process of exclusion that began to operate from the inception of the republic.
The real significance of India’s progress lies in other indicators – the proscription of democratic dissent in the name of security, the erosion of civil liberties, the unchecked and arbitrary power of our police apparatus, the subversion of laws, an unchecked contempt for the rights of the unpropertied, the eagerness to make war on them in the name of combating Maoism, the complete subservience to corporate influence. The portents could not be worse. If the republic is to survive at all, its institutions must to be radically reformed – the time is now, tomorrow will be too late.
Shashank Kela
Footnotes:
1. The Hindu, Chennai, 16 June 2010, p. 1.
2. ‘Putting victims at the centre of liability law’, The Hindu, Chennai, 18 June 2010, p. 11.
3. These figures are taken from a World Bank study which estimates the number of Indians living at less than 1.25 dollars a day (2005 prices at purchasing power parity); from the National Nutrition Monitoring Bureau’s data based on a study of nine major states, cited in Angus Deaton and Jean Dreze, ‘Food Nutrition in India: Facts and Interpretations’, Economic and Political Weekly, 14 February 2009, p. 53; and ibid., pp. 49-52.
