Justice Sawant’s remarks on Anna Hazare

“When the social power is used irresponsibly, or to subvert the constitutional authority, it is hardly distinguishable from terror.”

The Maharashtra state government instituted a Commission of Inquiry under Justice P B Sawant, in September 2003 to inquire into allegations of corruption and maladministration against several people, among them Anna Hazare. The Commission submitted its report on February 22, 2005 and has been placed online (by Sampath Bulusu on June 8, 2010).

It goes into the minutae of the allegations and a cursory reading suggests how the enormity of red tape might cause people—like Anna Hazare—acting in good faith to commit technical violations of the law. Justice Sawant dismisses most of the allegations against Mr Hazare, but finds his trust acting illegally in at least one matter (see pages 269-271). The message is clear and ironic in the light of Mr Hazare’s demand for more bureaucracy and more laws: government encroachment on the citizen’s economic freedom creates a cesspool that criminalises ordinary citizens, that in turn breeds official corruption.

If we see Mr Hazare as an ordinary person—as this blog does—these transgressions are minor, excusable and should not cause us to doubt his personal integrity. Those who believe in the extraordinariness of Mr Hazare, however, should introspect.

That apart, Justice Sawant’s comments on Mr Hazare’s method of fighting corruption need more attention. Given that the latter is at the forefront of a movement to create an all-powerful super-watchdog, it is germane to look into his previous record.

6. There is no doubt that the participation in elections is not the end-all of the citizen’s role in democracy. The mere fact that the citizens have the power to change the government or to replace their representative by another in the next election, does not prevent them from exercising their other democratic rights during the period between the two elections. It is a mistake to believe that the only duty of the citizens in the democratic governance is to exercise their right to vote. The right to vote is only one of the democratic rights of the citizens. The citizens have a fundamental right to participate in the day to day governance of the society.

The mode and manner such participation may vary and may include all peaceful activities from petitioning to the government to taking out processions to register protests or to demand particular actions. The citizens may also undertake constructive activities, with or without the assistance of the government to improve the conditions and quality of the social life. Both the agitational and the constructive activities have become necessary in the present democratic societies, since the so-called democratic societies have limited democracy and that too only in their political life. Beyond the right to vote and the right to contest in the elections,the political democracy confers no other right. In the absence of the social and economic democracy, even the rights to elect and to get elected remain on paper for a majority of the people. With the enormous social and economic inequalities which are growing everyday, the right to vote itself may be manipulated, while the right to contest elections has become the preserve of the wealthy few. Thus, the equality, which is the basis of democracy, does not exist even in the formal political process.

7. This is because the so-called democracy as has been practised, has made no change to the class-structure of the society. On the other hand,it has deepened and widened the class distinctions. The ruling class is not interested in bringing about the social and economic democracy. On the other hand, since it can survive and thrive only on social and economic inequalities, it is interested in perpetuating them. Hence,the work by the civil organisations aimed at reducing the inequalities and their harsh social consequences, becomes all the more necessary.

The agitational activities have however to be carried on by observing certain norms. Not only have they to be peaceful, but also legal. A care has also to be taken to see that they do not lead to anti-social activities or become extra-constitutional centres of power. Such a development will itself encourage lawlessness and spell out the end of the rule of law. The mode of agitation has further to vary according to its object and the social conditions obtaining at the time. Else,it will not only not achieve its object but will prove counter-productive. It has to be remembered that the agitational activities also constitute a social power, which is as much liable to be abused as the political power. When the social power is used irresponsibly, or to subvert the constitutional authority, it is hardly distinguishable from terror.

8. When instead of the system, the individuals are targeted by the public agitation, several untoward consequences follow. As the present inquiry has revealed, while making the allegations of corruption,the complainant Shri. Hajare relies exclusively on the information supplied to him by his workers or on the contents of the representations made to him by the discontented. The information thus made available may not all be disinterested and may be motivated by various considerations, including personal, political and corrupt. In any case, such information coming from whatever source it may, has to be verified at least by giving an opportunity to the person against whom the complaint is made. This is an elementary precaution which has to be taken before making the individual a target of agitation.

As has been admitted by Shri. Hajare, the persons against whom he receives complaints, are not even intimated by him about them. They have, therefore, no opportunity to reply to the charges in the complaints. Shri. Hajare gave two reasons for dispensing with the said basic requirement viz. that this Andolan has no funds to call for the explanations from the concerned individuals, and secondly, his team of lawyers clears the complaints before the agitation is started. The first reason is both strange and indefensible, while the second is as much unjustified.

If the movement against corruption, which he has started, does not have sufficient funds even for the postal correspondence with the persons concerned, certainly he cannot make the targeted individuals suffer on that account. It is further not his case that even his lawyers give an opportunity to the persons concerned to explain the charges against them before they clear the complaints for agitation.

It must be realised that when persons like Shri. Hajare who have come to be respected by the society on account of their laudable work in other fields, publicly accuse any person for his misdemeanour, the people come to believe it intrinsically, and the person concerned earns a social odium for life-time, even if later he comes to be cleared of the charges. There have been cases where persons have been victimised either by public or private complaints, at the strategic moments in their life and career. The blackmailers, in particular, take advantage of such situation.The adequate precautions, which even otherwise are a must, become all the more necessary in such movements.The social power should not become or allowed to become an engine of oppression of the innocent. [Justice G B Sawant Report pp22-24, emphasis added]

Against cash rewards for our world champions

Why we must challenge medieval-style patronage at public expense

You’ve heard it in stories. You’ve seen it in plays and movies. The all powerful king is sitting on his throne. A poet, artist or athlete arrives in his court, and impresses the king with his accomplishments. The king then hands out a reward—gold coins, land and sometimes even his daughter—to the man. You might even remember scenes where the king takes off a pearl necklace from around his neck and throws it around that of the grateful subject.

Times have changed. India is a democratic republic. Unlike kings and emperors its political leaders do not rule over us. They are the representatives we appoint to govern our affairs according to laws made with our consent. India’s treasury is not their personal purse to do with as they please. They are the custodians of the taxes we pay to be used for purposes we have pre-approved. Sadly, this is only the theory. In reality the relationship between the government and citizen is more like the one between king and subject rather than between republic and free citizen.

It is precisely this mindset of giving inams that causes our state governments to shower cash prizes and land allocations on the members of world champion cricket team. Let there be no mistake — it is important for governments to publicly recognise and honour excellence in any field. But it must be done so in an appropriate manner. There is no reason why the Indian taxpayer should spend even a paisa rewarding the Indian cricket team for winning the world cup. The tax rupee has many more pressing uses.

Now it can be reasonably argued that the money thus given away does not pinch the exchequer. What’s a few crores in budgets that run into thousands of crores? This view misses the point. These are not the private funds of the politician giving away the money to bask in the afterglow of India’s World Cup victory, but public funds over which the politician is merely a custodian. The legalistic response that these funds come out of the discretionary budget of the chief minister doesn’t wash, because even discretionary spending must be in the public interest to be justified.

It is not that the Republic lacks ways to honour and reward accomplished citizens. There are the Arjuna awards for sportspeople. Why have them if crores are arbitrarily handed to cricketers? Why hand out crores when there are Arjunas?

There are other ways the state can honour sportspeople. There are tens of stadiums in the country named after Jawaharlal Nehru, a great man certainly, but one whose sporting achievements were modest. Why not rename these stadiums after sportspeople who have done the nation proud? It won’t cost more than a coat of paint to paint a new signboard. Bangalore’s Anil Kumble Circle is in the right direction, but why not name new urban landmarks after them (yes, this can be done only after creating new urban infrastructure)?

There is another reason why inams are unacceptable. They perpetuate the medieval mindset of a government that rules and patronises its subjects, rather than a government that governs and respects its citizens. It is the same mindset that robs people of their dignity by patronising them. It is the mindset that robs people of power by doling out entitlements. The entitlement economy aims to make India a nation where goods are free but people are not. As Ramesh Srivats says “Get a free laptop. But not the freedom to say what you want. A free TV, but not the freedom to see what you want.” It bans websites that you should not visit. It bans books that you should not read. It gives you the right to education but insists that you cannot send your children to a nearby school because it doesn’t have a playground.

Javed Akhtar’s unfortunate comment shows just how entitlements cause divisiveness and lead society down the path of competitive intolerance.

Far more than any external threat or domestic challenge, it is this mindset that holds India back. If the person handing out the pearls believes he is the ruler, it is implicit that the person taking inam is subordinate and subject, not a free citizen.

Sunday Levity: What did you learn from Gandhi?

The morals we draw

The father gathered the two little girls around him. Since they had disturbed him while he was reading a book on Gandhi, he decided to tell them about the Mahatma and more specifically, why he had a large framed photograph of the man in his study. So he told them the story of India’s independence and why it was unique among all such struggles. He told them that non-violent struggle, “not listening to the orders of the bad guys” was about thinking different. And if they looked carefully, they’d see “Think Different” written at the top right corner of the said photograph.

As usual, he asked “So, what’s the moral of the story?”

Instantly the Little Airy replied “Don’t listen (to orders).”

It figures, the father thought.

Experimenting with compulsory voting

Let’s find out whether it works

This blog has long argued that for governance to improve more citizens must vote. So what should we make of the Gujarat state’s decision to make voting compulsory in all local body elections?

Constitutional and philosophical reasons apart (see Pratap Bhanu Mehta’s op-ed for this) this is an interesting experiment and it will be valuable to see what it leads to.

Narendra Modi, Gujarat’s chief minister and a proponent of compulsory voting calls it a “historic move to strengthen democracy” that will take “drawing room politics to the polling booth level.” But Mr Modi might be making the OMIPP—mistaking correlation for causation.

High voter turnouts might bring about responsive accountable governments because voting rate is a sign of an engaged electorate. But forcing everyone to vote might not have the same effect, because the people are merely forced to queue up and press a button on the voting machine—they are not being forced to “engage”. A non-engaged, apathetic electorate when forced to vote, might vote randomly, whimsically or spoil the ballot.

So compulsory voting might be equivalent to introducing a political wild-card without necessarily improving governance outcomes. The effect might vary ward by ward, constituency by constituency and region by region—it’s hard to answer the question of “who will it benefit?”

The experiment should be allowed so that we can add empirical evidence to the list of criteria we use to assess whether the idea of compulsory voting is a good one.

Territory is not a big deal

People are.

From a liberal nationalist perspective, it is impossible to agree with Jaswant Singh’s judgement that territorial integrity of pre-Partition India was worth preserving at the cost of having “Pakistans within India”. His praise for Mohammed Ali Jinnah and his criticism of Jawaharlal Nehru and Sardar Vallabhbhai Patel is based on this notion. Yet a constitutional arrangement where citizens come in different types based on their religion and where different types of citizens have different rights and entitlements might not even preserve the territorial unity it set out to preserve. It would be impossible for such a state to achieve stability in its domestic politics and consequently, it would be impossible for such a state to operate with the unity of purpose necessary to protect its geopolitical interests. Indeed, it would be difficult to pin down a definition of its interests in the first place.

Territorial unity is meaningless unless it defines a state that realises individual rights and freedoms—the foremost among them being equality. Nehru might have had his faults—but his uncompromising stand on a liberal democratic constitutional structure was not one of them. If anything, his fault was that his liberalism didn’t go far enough to respect fundamental rights when they got in the way of his social reform project. [For a more detailed response to Mr Singh’s contentions, see GreatBong’s post]

Should this warrant Mr Singh’s summary expulsion from the BJP? Well, that’s the BJP’s call. It is entirely within its rights to take action against a member who it sees has having strayed from its values. Of course, you would expect the biggest opposition party in the world’s biggest democracy to do this with due process, decorum and dignity. That it didn’t speaks of the type of office-bearers it has. It also begs the question of the kind of values the BJP has when you consider that it stood behind a thug who spewed communal venom but thought it fit to expel an urbane statesman who expressed a heterodox intellectual opinion. If the BJP’s leaders wish to face the electorate with such a prospectus, then it is entirely their call. [See Rohit Pradhan & B Raman on this]

But nothing justifies the Gujarat state government’s decision to ban the book. That it is silly and impractical should not subtract from the fact that it is an assault on the freedom of expression. Under Narendra Modi, Gujarat has been among India’s better governed states. Even so, it is presumptuous for Mr Modi to impose his likes, dislikes and political compulsions on the the aesthetic and intellectual life of Gujarat’s residents.

Unlike Mr Singh’s expulsion, the Gujarat government’s ban is not an internal matter of the BJP. It must be challenged in court. If the ban is symbolic, its revocation will be more than that. It will set a precedent.

Finally, let’s be clear—as The Acorn wrote in 2005, Jinnah doesn’t matter (and there’s some empirical evidence too). The debate over Jinnah’s legacy is taking place on the wrong side of the border he created. For India, the question of whether or not he was a secularist is pointless—Pakistan is an Islamic republic. Besides, Jinnah’s fear of majoritarian rule was hardly based on principle—if it were, his Pakistan wouldn’t deny its own minorities the protection against majoritarianism that he sought in pre-Partition India.

Unsurprisingly, it is in India that fundamental rights—equality of all citizens the first among them—provide a bulwark against majoritarianism. This hardly means that the situation is perfect. Rather, it tells you how important it is to be intolerant to any attempt to erode, abridge or subvert those rights for reasons of low politics or high policy.

That’s why those who disagree with the argument in Mr Singh’s book must oppose any attempt to ban it.

Amartya Sen’s wrong idea of justice

Social justice is not justice, and it is dangerous and wrong to conflate the two

It’s not out yet, but we are at imminent risk of being drenched by a book on the principle of justice written by an celebrated expert on…economics. Now, no one would give too much credence to a book on nuclear physics written by a professor of English literature,if not for the Law of Indian Expertise (LIE). That law says that an Indian who has achieved distinction in one area is immediately considered an expert in all others. If you have a Booker or a Nobel, you will immediately be taken seriously by many people on almost anything…including nuclear physics.

According to the Times of India Amartya Sen’s latest book, “The Idea of Justice”, is “his most ambitious book yet.” When Rashmee Roshan Lall asked him to summarise his key argument, Dr Sen’s response was incomprehensible.

Justice is a complex idea (I was not surprised that it took me 496 pages to discuss it), but it is very important to understand that justice has much to do with everyone being treated fairly. Even though that connection has been well discussed by the leading political philosopher of our time, John Rawls, I have argued that he neglects a couple of important connections. One neglect is the central recognition that a theory of justice has to be deeply concerned with systematic assessment of how to reduce injustice in the world, rather than only with the identification of what a hypothetical “perfectly just society” would look like.

There may be no agreement on the shape of perfect justice (and also perfect justice will hardly be achievable even if people did agree about what would be immaculately just), but we can still have reasoned agreement on many removable cases of manifest injustice, for example, slavery, or subjugation of women, or widespread hunger and deprivation, or the lack of schooling of children, or absence of available and affordable health care. Second, analysis of justice has to pay attention to the lives that people are actually able to lead, rather than exclusively concentrating only on the nature of “just institutions”. In India, as anywhere else, we have to concentrate on removing injustices that are identifiable and that can be remedied. [TOI]

Hasan Suroor’s report in The Hindu is more helpful. It says Dr Sen has argued “that there was no such thing as “perfect” justice; that justice was relative to a situation; and that instead of searching for “ideal” justice, the stress should be on removing the more visible forms of injustice such as subjugation of women, poverty and malnutrition.”

It is unjust to criticise Dr Sen’s book before reading it. But it is not unjust to criticise what he says about its contents.

Going by what Ms Lall and Mr Suroor write, he is engaged in the dubious enterprise of conflating “justice” with “social justice”. This is a dangerous argument: for delivering justice is the basic function of the state, and to do this efficiently, a parsimonious definition of justice is necessary. The simplest definition of justice is the redressal of a violation of rights. On the contrary, Dr Sen’s definition is expansive—covering everything from gender inequality to poverty to malnutrition. The more you ask a justice delivery system to do, the less efficiently it can do it, everything else being the same. Since Dr Sen professes to be concerned with practical delivery of justice, he contradicts his own objective by enlarging the scope of what justice should mean.

Then comes his reported contention that “justice is relative to a situation”, which is slippery and dangerous. Justice is the response to an objective evaluation of a deviation from a normative code—for practical purposes, a written or an unwritten constitution. In a rule-of-law environment, justice cannot be “relative to a situation”, but rather, has to be uniform across situations. If violation of rights is objective, how can the redressal be relative and just at the same time? (It’s like saying that justice should be, as a norm, different for a poor burgler caught stealing from Mukesh Ambani’s house and well-fed burgler caught stealing from mine.)

Dr Sen’s line is dangerous because it threatens to reduce the importance of individual rights and freedom, and supplant them with the discourse of social justice. It is dangerous because the premise of justice being relative befits an environment where the law of the jungle prevails, where the more powerful can make subjective decisions that the less powerful have to accept as justice. In a rule-of-law enviroment, the more powerful might still violate the rights of the less powerful, but it can’t be passed off as “justice”.

Related Post: Dandaniti, Arthashastra and Andre Béteille’s observation on Indian constitutional morality

Reading the Arthashastra: The rule of law

The science of punishment and the science of government

The concept of dandaniti, variously translated as the science of punishment, the science of chastisement, and in Dr Shamasastry’s translation, even as the science of government may be better understood to be the imposition of the rule of law. Dandaniti is central to Rajdharma—the morality of governance—and is discussed at length in the Shanti Parva of the Mahabharata. In the Arthashastra, Kautilya suggests why and how the rule of law ought to be applied.

That sceptre on which the well-being and progress of the sciences of Anvikshaki, the triple Vedas, and Varta depend is known as Danda (punishment). That which treats of Danda is the law of punishment or science of government (dandaniti).

It is a means to make acquisitions, to keep them secure, to improve them, and to distribute among the deserved the profits of improvement. It is on this science of government that the course of the progress of the world depends.

“Hence,” says my teacher, “whoever is desirous of the progress of the world shall ever hold the sceptre raised (udyatadanda). Never can there be a better instrument than the sceptre to bring people under control.”

“No,” says Kautilya; for whoever imposes severe punishment becomes repulsive to the people; while he who awards mild punishment becomes contemptible. But whoever imposes punishment as deserved becomes respectable. For punishment (danda) when awarded with due consideration, makes the people devoted to righteousness and to works productive of wealth and enjoyment; while punishment, when ill-awarded under the influence of greed and anger or owing to ignorance, excites fury even among hermits and ascetics dwelling in forests, not to speak of householders.

But when the law of punishment is kept in abeyance, it gives rise to such disorder as is implied in the proverb of fishes (matsyanyayamudbhavayati); for in the absence of a magistrate (dandadharabhave), the strong will swallow the weak; but under his protection, the weak resist the strong. [Arthashastra I:4]

In other words, Kautilya eschews a harsh imposition of punishments in favour of their measured but efficient use.

Now it is not known whether Ravikiran Rao referred to fourth chapter of Book I of the Arthashastra but his article on counter-terrorism policy in this month’s Pragati but some of his arguments reflect the Kautilyan view—especially the need to have a co-operative citizenry.

Beyond terrorism, there is abundant evidence that the modern Indian state is failing in its practice of dandaniti. In this week’s Economic & Political Weekly, Andre Béteille has an excellent essay on constitutional morality in India, where he says that the people of India “are destined to oscillate endlessly between the two poles of constitutionalism and populism without discarding the one or the other”. When even the chiefs of India’s famously disciplined armed forces brazenly disobey orders issued by constitutional authority, and internal security is almost entirely cast in the framework of competitive communalism, you know that the pendulum is well into the populism phase. A swing back towards constitutionalism is way overdue.

Even if Prof Béteille is right and endless oscillations are destiny, the modern day dandaniti should aim to keep their amplitudes small.

Related Links: The reading the Arthashastra series archive.