Whither our sovereignty?

TEESTA SETALVAD

back to issue

SIGNIFICANT markers have dotted the six decade long evaluation of constitutional governance. For there can be no more effective means of validating Indian constitutional values than creating a yardstick outlining its inherent features and then using this yardstick, not like the proverbial lathi or danda, but a kind of metaphysical, omnipresent marker that helps evaluate and judge our performance.

If our sixth decade were to be marked thus, the Indian national and state executive’s rapacious campaign to grab people’s land in tribal and non-tribal areas, today flanked by Operation Green Hunt and yesterday by its cynical creation of Salwa Judum in Chhattisgarh, would surely head the checklist. Land grabs by the state and corporates, however, is happening as systematically outside this zone too with states like Orissa, Gujarat, Jharkhand, Maharashtra and Andhra dotting the list. Key issues of fundamental rights, adherence to the letter and spirit of the Indian Constitution matter here, not least because Schedule V that protects lands in tribal areas from any incursion, deal or MoU without first navigating a process of grassroots concurrence and sanction, has been systematically transgressed.

 

The second marker would be that of corruption, rather rapacious unaccountability in both the political class, corporate India, the media and our judiciary. The judiciary is often considered that last bastion of a democracy which, when transgressed upon and attacked, can signal the beginning of the end. Contrast this belief to the eerie silence that has greeted the bomb thrown by the Bhushans, Prashant and Shanti, on the Indian democratic landscape.

Though it was the feisty Tehelka interview that set off this journey, with one of the Supreme Court’s most senior and favoured counsel rushing to the court stating that a very statement about corruption in the judiciary was contempt of that institution, the news after making headlines stands carefully suspended somewhere in the stratosphere of public conscience. One article by the redoubtable Justice V.R. Krishna Iyer in The Hindu, a panel discussion on CNBC, and Outlook’s cover story are some exceptions.

Our television channels that have played and replayed the Commonwealth Games story to distraction, have quickly and quietly turned over the page attempting to orchestrate public amnesia on this issue. Worse has been the response from the legal fraternity, that body of the Bar that ought to be the soul for democratic conscience in the country. Krishna Iyer in his epic piece has called this a moment that comes but rarely in the democratic history of a nation. It is a moment that we can ignore to our Constitution’s peril.

 

We have had in the past sixty years moments and periods when constitutional governance has been tested to its limits. Brazen attempts by the executive to ensure compliance to government included efforts to put in place a ‘committed’ judiciary. Two years before the Emergency was declared, the government of the day, in an act that came to represent the worst ever incursion of the executive into the independence of the judiciary, superceded Justices Shelat, Hegde and Grover for the office of the Chief Justice of India. Debates in that historic decade before and after the Emergency revolved around how far the government should, must and did go, and how ill that process boded for constitutional governance.

A precious volume of protest articles collected in a volume, A Judiciary Made to Measure, with a foreword by Jayprakash Narayan contains insight from a veritable galaxy – M.C. Setalvad, K. Subha Rao, M. Hidayatullah, J.C. Shah, C.K. Daphtary, H.V.R. Iyengar, N.A. Palkhiwala and A.G. Noorani. This is a valuable reference reader for those interested in our failure to ensure constitutional governance. More than reading the short protest articles, over and over again myself, I am amazed at the list of luminaries who stepped in and spoke up to save our democratic skins. The bastion of Indian democracy was not left to only a feisty father-son duo, with other eminent members of the Supreme Court bar politely looking the other way. All who felt that what was happening was wrong, stepped in and said so. Why not today?

When moves were made to transgress on our democratic foundations in the seventies, mighty voices were raised, voices that shook the edifices of power forcing them to look down below them and step back a pace or two. If there is one great tragedy today it is the absence of the established successful voice of the legal luminary, that upholder of the bastion of the Constitution. Little wonder that the contract between the pillars of Indian democracy that appears today in place is not one of principle but expediency.

 

Constitutional governance and adherence to principles of fair, non-discriminatory and accountable governance need to be the baseline non-negotiables for the institutions of democracy put in place to uphold them. The legislature and our representatives at the state and national levels need to be the repository of these principles; vocal articulation of equality and non-discrimination (albeit in non-threatening and even-handed voices) is their fundamental function and duty. Any articulation of individuals from the political class whom we elect on the ongoing Operation Green Hunt, except for rare and isolated exceptions, has not challenged the Indian state’s unleashing of military and paramilitary on its own people. Or, as importantly, questioned the absence of primary and secondary schools, health centres, electricity and even communication facilities or roads in these areas.

Individual politicians from the Left, the Congress, even the BJP, who have articulated this undemocratic form of governance, have fallen by the wayside, isolated by their organizations and structures over whom more basic instincts govern. It is for this reason that governments – central and state – appear to be collectively participating in a paradigm of governance that is, at its most basic level, transgressing on the basic rights of individuals – the right to life, the right to equality, the right to equality before the law – which are the inherent principles of the Indian Constitution.

 

Understanding transgressions of the law often require a tedious process of understanding and enumerating procedure that can then stand the test of having violated lofty and real life principles of fair and non-discriminatory governance. Principles of equality and equality before the law – fundamental and lofty principles of constitutional governance – need to be tested against this checklist of transgressions. Land grabs in forest areas are in some sense being monitored by the Supreme Court in a petition that stretches back a decade, for which an amicus has been appointed. But where delays take place, often no media scrutiny is offered. The Forest Act was enacted by the last government to ensure that land is given to tribals to ensure both their rights and the protection of forest lands. In how many states has such land been given to tribals? Does the media look into this process?

Similar is the story of investigations into allegations of mass murder and criminal conspiracy in Gujarat. The high powered team appointed by the Supreme Court is turning a blind eye to the obvious complicity of high-level police and administrative officials, ignoring documentary evidence like police control room records, station diary entries and the like. The investigation being watched by India’s apex court into the whys and wherefores of the calculated massacre of 2,500 innocent members of India’s largest religious minority after the mass arson at Godhra has deliberately let off those policemen who enjoy political patronage in the state. All this and more has been brought before India’s apex court that has so far made no significant observations about the absence of catholicity in the investigations.

For the Godhra trial wherein the investigators were mandated to look afresh at charges of manufacturing of the chargesheet by the Gujarat government, the Supreme Court appointed team has swallowed – hook, line and sinker – the shaky prosecution thesis forwarded by a state intent on proving the crime before investigations were completed. None of those accused of arson in the Godhra train burning have been granted bail while those mass murderers who enjoy political patronage in Gujarat are free on bail even today. There can be no truer example of discriminatory deliverance of justice than what is currently underway in Gujarat. Silence from the legal fraternity echoes through the corridors, a silence that signals a reluctance to expose brazen transgressions of procedure and content of constitutional governance.

 

Linked to the fashion in which lands are being seized by governments after lucrative deals with corporates have been struck are not restricted to tribal lands. Neither are these transgressions of the Indian Constitution and law the calculated folly of one political party alone. It is the cross-party nexus, or syndicate of beneficiaries across parties, that has made this transgression tantamount to a ganging up of the political class against the Indian people. Orissa, Maharashtra, Chhattisgarh, Jharkhand, not to forget West Bengal and Gujarat. International companies – Posco, Vedanta, etc. – have received some coverage, however belatedly, in our media. It is Indian corporate giants, no less unscrupulous in striking this unholy alliance with the political class, that have so far escaped lightly.

 

Though the Left bastion was made the repeated media focus of cynosure when the violence at Singur and Nandigram took place, the causes of our farmer’s anger at the land takeover, especially after Nano moved to Gujarat, were cleverly sidetracked. Gujarat escapes any comparable or strident media scrutiny especially when it comes to unscrupulous development. One reason is that today, apart from the Ambanis, it is by the mai baap of the Indian corporate world, Ratan Tata of the Tatas, who has thrown the weight of the prestigious Tata corporation behind the makeover of the man and his party responsible for a state sponsored mass carnage in 2002.

The Tatas move to Gujarat, after being granted farming land in Sanand near Ahmedabad in 2008, without due process of law in the acquisition of the land, was made worse by the state government’s lure of a near interest free Rs 9,500 crore loan repayable after two decades, at the Gujarati taxpayer’s expense. The Ahmedabad edition of the Times of India exposed this unholy contract by printing the MoU in November 2008, after which the story and the issue died a silent death, not making it to the lofty pages of our economic or business journals, let alone our media commentators.

A significant beneficiary of the state’s largesse, it is little wonder that the formidable corporate giant, the Tatas are today a stakeholder in preserving the public image of the government, even if that means actively participating in subverting constitutional governance. Farmers in Sanand have alleged the illegal takeover of land and the destruction of land records to enable a smooth takeover. In neighbouring Maharashtra, a riveting farmer’s movement has succeeded in keeping Dow Chemicals, a company that took over Union Carbide after the Bhopal gas killings of 1984, from taking over the land and resources.

 

The Gujarat state’s liberal favours to corporate giants have saved crores of rupees in duties for the textile sector to son of the soil Dhirubhai Ambani since the late nineties when politics changed forever, ending the Congress’ unquestioned rule since independence. Political favours translating into uncalculated money power that has been the stuff of legendary journalistic and political gossip, have rarely made it to research or economic and political commentary. A third corporate heavyweight in the state of Gujarat, a relative newcomer that has risen in the power pyramid, the Adani group, is also the chief beneficiary of the western Indian state’s policy of concretizing a significant percentage of its vast coastline, questioned by environmentalists and seasoned developers as a potential hazard of unspeakable dimensions.

State power in that state is being powerfully backed by hard corporate influence and money, a factor that also helps tip the balance of democratic (sic) power! Media stories on Gujarat, therefore, only surreptitiously creep into our consciousness, hither or thither, when journalists on the prowl are able to beat the careful contract of complicit silence executed above.

Himanshu Kumar’s journey, physically and literally, is a story best told by and heard from him. It is a chilling account of despair and loss of hope, though nothing that comes from Himanshu and his wife at all suggests that they have given up. Leaving Delhi eighteen years ago, they made Dantewada their home and watched, on 17 May 2009, the ashram that was their home being attacked and burned down by a cocktail mix of central and state security forces. It is difficult to believe that a couple dedicated to a life of commitment that could bring some food, medicines, accountability and transparency to the hundreds of villages around, are a security threat to the Indian state. It is virtually impossible that what happened to Himanshu and those with and for whom he was fighting for justice in the courts (including an eight month old child who’s three fingers were chopped off), happened without the full-fledged concurrence of the central government and the state government in Chhattisgarh.

Himanshu’s story is only fleetingly told and heard. Recently he embarked on a cycle yatra through several Indian states, spending from 19 August until 8 September 2010 in Gujarat, moving across tribal areas examining the non-implementation of the Forest Act. Entering the state at Shamlaji in Sabarkantha and traversing Panchmahals and Dahod, he was finally forcibly ‘evicted’ from Dharampur in Vapi district when the state did not find such mobilization in its interest.

 

Narrating figures collected by a former MLA from the tribal constituencies, Mohansinh Rathwa, who as chairperson of the Gujarat Assembly’s Public Accounts Committee has been collating facts and figures, Himashu reveals hitherto unexplored information. The fact that these have not traversed the democratic space into public debate – the newspapers, state and national – signal a rigid control over news coverage within and outside Gujarat about the state. Applications received under the Forest Act for over one lakh acres of land by tribals for ownership of their land, have been rejected. Meanwhile a staggering one lakh hectares have been awarded by the Gujarat state to a media house.

 

Our Members of the Legislative Assembly (MLAs) and Members of Parliament (MPs), barring some notable exceptions, and there are a few, have failed in their primary role of upholding the Constitution. The executive wing, the government itself – central and state – be it Chhattisgarh, Maharashtra, Orissa or Gujarat, appears to be on the same page. The contract is not a social one, to uphold the principles of equality, equality before the law and non-discrimination, but a calculated one made more sinister because it has not been put up for transparent, democratic scrutiny. In the absence of transparency from government, it appears to be a dangerous ploy to sell Indian common resources, land and minerals in the villages, and land in the cities, to the highest bidder. At moments of such democratic crisis, that only leaves us with the crucial third pillar of parliamentary democracy, the judiciary.

Where have our courts stood on their primary mandate of upholding the principles of equality before the law, in a timely and real sense for the people? In a historic verdict, the Salwa Judum, a central-state sponsored army, was castigated by India’s Supreme Court. The litigation that has highlighted the brute human rights violations by the Indian state continues before the apex court, even if every effort to ensure justice has also invited state terror with victims being abducted and kidnapped by security forces, and attempts being made by the central and state governments to influence their testimonies. Despite this the fact that hearings before the Supreme Court of India offer a channel intervention for the victims reveals the windows of opportunity still prevalent within Indian democracy.

Another significant marker for the sixth decade of India’s Constitution is that of a democratically elected chief minister being investigated and hauled up for masterminding a criminal conspiracy to commit mass murder of his own people. This investigation was mandated by and is being supervised by the Supreme Court of India. The process of ensuring justice for mass transgressions and failures of the state – where even the central government after 2004, despite political averments, did nothing to intervene – has happened under the watchful monitor of the apex court that appointed a Special Investigation Team (SIT) for the purpose. Despite the process being kept alive by victim survivors and rights groups, the officers within the team were chosen unilaterally by the Gujarat state. Though accused of mass violations and transgressions, the amicus curiae in this case remains silent.

 

A year into the investigations, after survivors and legal rights groups pointed out the deliberate failures in investigations, and after several fraught hearings, two officers were dropped. The officer who heads the team was also accused of non-accountability for simply not being present in Gujarat for the historic investigations. While monitoring these investigations and trials, the apex court has stopped short of ensuring efficacious and timely remedies. Between 2002-2008 when the case languished before the apex court, attempts were made to destroy some documents. Today, when the investigation into the high and mighty responsible for the genocidal carnage in Gujarat in 2002 has reached a historic stage, when parts of that investigation mandated by the Supreme Court of India are found wanting and faulty by the same court, why does no outcry from legal luminaries follow this transgression of the Indian Constitution?

 

A mention of the Bhopal verdict and what followed is important for several reasons. First because, by turning the spotlight on accountability for mass deaths on the corporate class, it exposed the chinks in the Indian political class and judiciary that struck an utterly unfair deal over the corpses of the victims. The process of delivery of the judgement and media coverage that followed brought out the best in our media, though the stories came almost 25 years too late. A lesson to be learned is how the cause of justice delivery could have been more ably helped, had the same electronic media cared to turn so sharp and sustained a spotlight, over the past ten years of its own existence? Does the story become a story only after it dies a systemic death?

Behind the headlines, systemic issues that straddle both the Bhopal story and story of the Babri Masjid land dispute verdict, is a crucial procedural question, and also a constitutional one, which escapes our scrutiny, deliberately or otherwise. In the course of justice delivery in Bhopal, the judge was changed over three dozen times. Under our criminal law this means starting from ground zero, from scratch. During the hearing of the Babri Masjid land dispute, the judge was similarly changed over a dozen times. The discretion of appointing and transferring judicial officers lies with the law and justice (sometimes home) department of our states. A clear and motivated nexus between the state executive who, while being the prosecution in these cases, wants to abort not ensure justice delivery, gets established. Why does this seemingly trivial but fundamental issue not figure in our national debate?

Understanding transgressions of the equality and non-discrimination principles of our Constitution requires a tedious process of comprehending processes of justice delivery and accountability. Just as the executive in India is transgressing by failing to reveal the contents of MoUs signed with corporates, especially when they poach on private and public land, the judiciary in India is failing by being utterly unaccountable procedurally.

Questions raised by this author three years back on the principles of listing by the apex court registry had incurred the wrath of a former chief justice. The question refuses to go away, however. We have faced tremendous hurdles, especially deliberate delays by the court, citing non-availability of time for the Special Bench constituted for hearing the Gujarat cases. The matter was not decided for six years between 2002 and 2008. Each time we had to bring the matter up, reminding the august court that ‘justice delayed is justice denied’.

 

In contrast the speed with which a Special Bench and Constitution Bench have been set up on pleas of private educational institutions suggest and show that the matrix of public interest needs to undergo thorough public scrutiny. Surely the business interests of private educational institutions, charging crores of rupees in capitation fees, cannot be dubbed as national or public interest? Which are the cases that should receive priority before the Supreme Court? Can cases of mass rights violations be shunted back for want of court time? When hearings in cases like the Bhopal gas tragedy and Gujarat mass carnage get shunted off, surely victims and rights groups have the right to ask procedural questions on delivery of justice?

 

From the exposures of defence deals in government over the past decade, to money influencing which questions are raised in Parliament or our assemblies, only one small section of the media remains at the heart of the battle to deepen democracy and accountability. It is those individuals and media organizations that have brought the stories of Binayak Sen’s callous incarceration in Chhattisgarh, Irom Sharmila’s heroic ten year long protest in Manipur, Zakia Jafri and other victim survivors’ valiant struggle for acknowledgement and justice in Gujarat to the national consciousness.

The list of the avariciousness of the political class is extensive and varied. This has included a desire to influence and control the media. This influence is wielded through influential financiers of television channels, an expensive and cumbersome medium that is shaping how we think and what we think. While the vast Indian middle class, too huge a number to be relegated to the wings, watches and devours the news offered to us, there are no platforms and spaces where we can question its content or delivery. We have no idea of the financiers of media institutions; a well-informed guess that it is those powerful organizations who are beneficiaries of favours from the political classes, who today influence what we see as news, for how long and when.

We have no independent knowledge, barring market and advertising jargon, of how TRPs are measured. The discerning viewer knows that ‘paid news’ is now an irrevocable part of the democratically accepted package, no matter that we have never democratically questioned the composition and structure of our powerful media institutions – who owns them, and what are the changes that such ownership brings. Remember, these are questions vital for the public sphere if we accept that media shapes and makes not just how we think, but what we think.

 

Four years back we had, in a well-researched cover story on just how selective this media is in its choice and portrayal of news, tracked how a three lakh strong mela (festival) of tribal workers protesting violations of their rights in Jharkhand never made it to the national news. We had analyzed why and how the rape and killings of the Bhotmage family at Khairlanjee near Nagpur could never become a Jessica Lal like candlelight vigil story for our channels. The most basic transgressions within this form of television journalism arise out of a scant knowledge of the principles of constitutional governance.

India is too vast, too diverse, too vibrant to make the sweeping observation that this checklist has been reduced to a unreal pinpricks, when serious and fundamental transgressions are accorded cosmetic surgery like treatment, and substantive corrections not put into place. The picture of gloom has episodically been brightened by robust voices of democracy and dissent, clear and articulate, even if they today do not have the overt backing of the highly placed and powerful. The powers and means available under the Right to Information Act have further emboldened these voices who bravely fight this, even risking their lives as recent killings in Maharashtra and Gujarat have shown. Hope, scattered though it is, surfaces in abundance. Despair arises from the failure of the lofty institutions of the constitutional ideal lending meaning to that hope.

top