On January 26, 2019, India observed its 70th year as a constitutional republic. The country celebrated the Constitution of India as a document that empowers Indian citizens to chart their own path to progress, in which their rights (‘Fundamental Rights’) are upheld and their development is guaranteed through the state (‘Directive Principles of State Policy’). However, historian Gyan Prakash urges us to revisit that moment in which this document came into being, compelling us to recognise its troubled legacy. While most analyses of India’s 21-month period of Emergency, starting in June 1975, attribute its occurrence to the then Prime Minister Indira Gandhi’s authoritarian and strong-arm tactics as a political leader, in his latest book, Prakash makes a departure from this personality-centred analysis, arguing that Mrs. Gandhi’s “perfidy alone cannot explain the perversion of a system of law and politics” as witnessed during the Emergency, and that “historical forces were at work”. The framers of the Constitution left us with such a strong state that it could deprive citizens of constitutionally guaranteed freedoms at the slightest hint of any threat. And that is what, he argues, exactly happened during the Emergency.
State of exception
Drawing upon the idea of a ‘state of exception’ developed by political theorist Carl Schmitt and later, Italian philosopher Giorgio Agamben, the author explains how the paradoxical “lawful suspension of the law” was written into the Constitution of India adopted in 1950, as its chief architect B.R. Ambedkar felt that the system of constitutional democracy had to prevail over the culture of street protests. Therefore, if and when the state was faced with a threat, it could suspend the law to assume control over a situation. Now that the foreign ruler had left India, and the people were choosing their own government, it was only fair that the state was thus empowered, the framers of the Constitution thought.
Ambedkar’s exhortation that we must abandon the bloody methods of revolution after attaining Independence led him to put in place rules that in the hands of an authoritarian government could turn into a nightmare for citizens. In chapter 2, where the author discusses the framing of the Constitution in detail, he notes how once the nationalists were in power in India following the departure of the British, “they felt no qualms about incorporating the arsenal of executive powers granted by the colonial law”. Ambedkar justified copying a good part of the provisions of the Government of India Act 1935, which retained vast executive powers with the British ruling class at the time of its adoption, saying “there is nothing to be ashamed of in borrowing”. The colonial-era Indian penal code of 1860 was also retained, which included section 124A on sedition, used to quell dissent in colonial India.
At a time when faith in the independence of the judiciary in India has diminished, Chintan Chandrachud provides us with a historical perspective on the uneven legacy of the courts in his new book. He elaborates the course of decision-making in ten ‘forgotten cases’ that may have faded from public memory but left an indelible imprint on the course of justice in India, nonetheless.
With the apex court entering its seventieth year in 2020, the book is timely in its critical assessment of the functioning of the courts. Unlike commemorative volumes, this book demonstrates how the court has not always risen to the occasion to safeguard us from the “indiscretions and misadventures of Parliament and the government”.
What conspiracies are you hatching inside that big, horned head of yours? I can see that you have been contemplating some serious issue for quite some time. Is it the scarcity of fodder that has been bothering you or your master’s tyranny? The having to feed on wall posters, eating out of dustbins, and getting whipped?
I can understand your problem dear, but tell me, is this any solution? You lift your wiggly tail upwards right when I’m about to cross you by And splash hot, thick, yellow urine right in the middle of the road. Now, what point is it that you are trying to get across, eh?
I want you to use a little bit of common sense now. Is your mooing and dunging And peeing in public gonna do you any good? You only end up messing up the streets Our Government lays after much deliberation. You may claim your liberty to raise Your tail as a mark of protest for all the pains that you undergo in everyday life.
But, I will not tolerate your nonsense dear. I can’t take your shit and crap! Oh! How you remind me of these politicians who mess up civilian life for their own cause!
On the occasion of India’s 70th Republic Day, it is worth considering how the very foundational idea of a republic, in which supreme power is held by the people, is at risk despite free and fair elections. To arrive at that argument, this article delineates the historical trajectory of India’s Right to Information movement as arising out of the need to address the unfinished agenda of democratisation since independence. It then discusses how the movement has strengthened oppositional politics by expanding the terrain for political participation and has also empowered individual citizens in their struggles to claim their entitlements from the state. By resisting scrutiny under the Right to Information Act and attempting to dilute the law’s empowering potential, political representatives and bureaucrats are subverting democracy itself.
Back in 2014, when the Bharatiya Janata Party (BJP) ascended to power in India, it did so on the promise of running an open government accountable to its citizens that would eliminate corruption. But nearly five years later, and with an election due between March and May, the track record of Narendra Modi’s government on upholding citizens’ right to information has raised doubts about its commitment to accountability.
The BJP’s predecessors, the United Progressive Alliance (UPA) government, led by the Indian National Congress party, were instrumental in passing the Right to Information (RTI) law in 2005. Its aim was to undo the culture of bureaucratic secrecy encouraged by the colonial Official Secrets Act of 1923.
For the first time, the law compelled government departments to provide official information in the form of records or documents to citizens when specific requests were made. This helped to expose corruption in government as state authorities could no longer hide information on the way they made decisions or spent taxpayer’s money. The exposés contributed to the UPA government’s political downfall at the 2014 elections.
Yet, ever since the RTI law was passed, successive governments have sought to suppress it one way or another. In recent years, public authorities affiliated to the central government have denied information to citizens under the law on matters of vital public interest.
The sky remains silent: A witness to the winds growing wild. Rain beats the suspended particles of dust to ground. Leaves on tree tops get drenched. Life seems to come back As if with a sudden throb of the heart. And two broken twigs, each in their own world, Lie miles apart.
The end of a leaflet briefly touches As it topples from the top of a tree, And I take a look at the sovereign duchess Who had once been so prime and so green. There is she fallen, now yellow and rotten, Trodden by careless feet. There will she perish with but longing alive As the season of summer retreats…
Branches of trees stand out bare With only a leaf or two that stare. The beat of my lone heart echoes within, Stirring the void of the sullen self. Moments and memories frozen like mist, Hang above me; heavy is the air. Summer is past, now winter’s to come Nothing remains but for despair…
Look at the sky now. Painted with shades of grey, Even this inanimate sky mourns The departure of innate beauty From human hearts. Save these precious teardrops From heaven and drench Your parched souls…
Her hazel eyes have witnessed utmost suffering. Yet Kholoud Waleed remains stoic as she narrates the story of how her world turned upside down in March 2011, when the Syrian people started an uprising against the country’s dictatorial regime led by Bashar al-Assad. An English teacher in a high school in Darayya, near Damascus, at that time, Waleed witnessed the school being shut down as the regime saw the children studying there as a threat.
“The boys from our school used to hold demonstrations against the government. They wrote graffiti on the school walls demanding the fall of the government. After shutting the school down, many of the children were arrested and tortured by the Army,” she recounts calmly. Her youngest brother, who was a student there, had to drop out as a result. But what happened at the same time in Dara’a, in southwestern Syria, near the Jordan border, jolted her completely. “Twelve children, all under the age of 13, were tortured and two of them killed by the regime for writing wall graffiti against the regime. One of them, 12-year-old Hamza al-Khatib, was falsely accused of raping the Army General’s wife and shot dead,” she continues, anger welling in her eyes.
This was the precise moment when public rage exploded in Syria. In the city of Hama, for instance, half a million citizens demonstrated on the streets demanding change. In May, 2012, Waleed’s brother was picked up by the Army for voicing opinions in favour of the Arab Spring in college.
“They arrested my brother-in-law as well for holding opinions against the regime. As of today, there is no way for us to confirm whether they are dead or alive…”
Back with a Prophet Mohammed cartoon on its cover, Charlie Hebdo, the French satirical magazine, has resolved to take on Islamic fundamentalists, after a terror attack on its office premises in Paris last Wednesday claimed the lives of 10 staff members including that of its editor, Stephane Charbonnier. In an interview to Vidya Venkat, Professor Mahmood Mamdani, Herbert Lehman Professor of Government and Professor of Anthropology at Columbia University, author of ‘Good Muslim, Bad Muslim: America, the Cold War, and the Roots of Terror’, explained the difference between critiquing a religion and ridiculing it, and why it is one thing to oppose censorship and quite another thing to reprint Charlie Hebdo cartoons in solidarity. Edited excerpts:
In the wake of the Charlie Hebdo terror attacks, there is widespread condemnation of Islam itself. George Packer, in his New Yorker article, for example, had held Islam and its tenets and those believing in them responsible for the attacks. Are we misdiagnosing the problem here?
In my view, George Packer’s is a knee-jerk response. It fails to recognise what is new about the Charlie Hebdo killings. The information we have so far suggests that it was a paramilitary operation. Though carried out by a local unit, decentralised in both planning and execution, the attack was strategised and sanctioned from headquarters. The killings need to be seen as a strategic and organised military attack. As such, it is different from the kind of grassroots demonstrations we have seen in the past, such as in responses to the Danish Cartoons.
Proponents of the Charlie Hebdo brand of humour and satire see the need to share and endorse the culture of “free speech”. Your view?
I support the right to free speech as part of a right of dissent. But that does not mean that I support every particular exercise of free speech or dissent.
The lesson from Paris 2015 is this: until world powers don’t stop digging black gold out of the bellies of Iraq, Africa and Saudi Arabia, the convoluted webs of violence, terror and climate change, will continue to keep us trapped in the times to come
New Year is the time for making resolutions, for turning back on the year that went by and reflecting on what lessons could be learnt from the past so we do not repeat our mistakes. Last year, Paris witnessed one of the worst terror attacks, besides those in Beirut and Baghdad. It also saw the climate change agreement being finalised. Could the latter be an answer to the former?
The thought had originally struck me while I was standing outside the Bataclan café in Boulevard Voltaire in Paris, staring at the bullet holes on the walls of the building at the site of the November 13 terror attack by Islamic State (IS) terrorists. It was the last week of November, and I was in the city to attend the UN climate summit – the 21st Conference of Parties (CoP21) to the United Nations Framework Convention on Climate Change – where heads of states of over a hundred UN member countries were working out a deal to save the earth from the climate catastrophe.
One winter morning in 1968, on one of his weekend ‘birding’ trips, an unsuspecting Theodore Baskaran was crouching by the bund of the Devarayan Lake near Tiruchirapalli, when a skein of bar-headed geese emerged from the skies. Dropping their wings, they landed on the placid waters of the lake, a few meters from where he was.
A fledgling birdwatcher since his college days, Baskaran could recognise them immediately. They were rare visitors to South India, coming in search of food from snow-bound Ladakh. Today, at 66, after more than four decades of bird watching, the retired civil servant recalls this encounter with a feeling close to awe. “Looking at those lovely geese while I was all by myself was a spiritual experience,” he says.
ये आसमान से उतर रही बारिश की बूंदें पानी नही आग की लपटें हैं जैसे, भीग जाने दो मुझे, जल जाने दो मुझे। शायद जुदाई का दर्द बदनसीब परवानों से बर्दाश्त नहीं होता, इसलिए उन में, लौ से बिछड़ने पर, जल के मर जाने का ख़ौफ नहीं रहता।
Come December, it will be 30 years since the Bhopal gas tragedy occurred. The leakage of the deadly methyl isocyanate gas from the Union Carbide Corporation (UCC) factory in Bhopal went down in history as one of the worst industrial disasters in the world. But after all these years, has anything changed in India with regard to adoption of environmental safeguards before promoting industries and related projects? More important, what is the fate of the victims of polluting industries?
According to a January 2013 report of the Indian Institute of Toxicology Research, Lucknow, the soil and groundwater within 3.5 kilometres from the UCC factory site is contaminated with cancer- and birth defect-causing chemicals. “The contamination of soil and groundwater actually predates the disaster,” says activist Satinath Sarangi, who has fought for the cause of gas leak survivors.
“From 1969 to 1977, Union Carbide used to dump its toxic wastes at 21 spots, most of them unlined pits, inside the 68-acre factory premises. Despite 17 agencies, including government and non-governmental organisations, carrying out studies over the past two decades, a comprehensive plan for remediation of the soil and groundwater has not been prepared,” he says.
On Friday, October 31, when the news of Warren Anderson’s death spread across Bhopal, survivors of the tragedy got together to spit on a photograph of the former UCC CEO, the first accused in the case and a fugitive from justice. Survivors are unhappy with the court proceedings and compensation. “While over 25,000 people have died in the disaster, the government has paid compensation for only 5,295 deaths. The government acknowledged in June 2010 that the compensation it accepted from Union Carbide was indeed inadequate. Following this, both the Central and State governments have filed curative petitions in the Supreme Court seeking additional compensation of $1.2 billion,” Mr. Sarangi says.
Rashida Bee, president, Bhopal Gas Peedit Mahila Stationery Karmachari Sangh, says three generations of gas leak victims have suffered, with their children being born with disabilities but little was done by the government to help victims and to give medical assistance to their families. Through the Chingari Punarvaas Kendra, run by Ms. Bee and her survivor friends, nearly 750 children are now being treated with the money that came with the Goldman Environmental Prize in 2004.
Lessons not learnt
Lessons from the tragedy have not been taken seriously. Environmental activist Nityanand Jayaraman says key lessons such as choosing appropriate sites for projects are violated to this day. “Take the proposed Cheyyur thermal power project in Tamil Nadu, for instance. If the power plant pollutes the land and waterbodies, who will compensate affected local communities?” he asks. “Another example is the Gorakhpur nuclear power project planned in Fatehabad. Located close to dense human habitations, the project has already raised several concerns,” he says.
Disaster response is another important lesson. “In Japan, even small children know how to respond to a disaster such as earthquake, but go to Kudankulam and the local villagers know very little about how to respond to any radiation leak,” he says.
The lack of preparedness in the face of hazardous pollution shows in the case of mercury pollution in Kodaikanal. Mahendra Babu, president, Ponds HLL Ex-Mercury Workers’ Welfare Association, said that in 2001, the Kodaikanal mercury thermometer factory of Hindustan Unilever Ltd. (then Hindustan Lever) shut down, but 36 ex-workers of the factory died from hazardous exposure to mercury. “In the past 10 years, 11 committees, including a Supreme Court-monitored committee, has been set up to redress grievances arising out of the pollution from the factory. No thorough clean-up of the factory site has been done as yet,” he says.
Environmental lawyer and activist T. Mohan says there are hardly any cases of prosecution of environmental crime by corporate firms in India. “In India, ex post facto clearances are being given to projects by polluting firms. Environmental Impact Assessment notifications, which are supposed to be issued prior to the undertaking of projects, are being issued after the projects are executed,” he says. Although the Supreme Court has come down heavily on some instances of violations, government authorities have been quite lax in these matters, he adds.
Mr. Mohan cites the example of the Loss of Ecology Authority (LEA), a tribunal set up to award compensation for farmers affected by polluting industries, to demonstrate how settlement of legal compensation for victims of industrial pollution has not worked out. “The chairman of the LEA resigned a few months ago. The tribunal is rudderless and dysfunctional. Even when compensation was offered to victims of industrial pollution, the sum was paltry. Farmers from Karur in Tamil Nadu were offered as low as Rs. 5-7 a hectare of damaged land,” he says.
With >Anderson dead and having escaped imprisonment, Bhopal gas leak victims continue to suffer. Ms. Bee strikes a note of caution. “The new government should think about the consequences of going head over heels to woo industry without paying sufficient attention to the poor institutional response mechanisms in the event of an environmental disaster.”
Also read the story ‘Dow Shalt Pay‘ published in Frontline magazine in Dec. 2007 on the subject of the aftermath of the gas tragedy, which I had co-authored with the Delhi-based legal correspondent V. Venkatesan. The author bylines aren’t showing in the website for some reason.]