Govt. Serves Predatory Capitalists, Undermines Justice, Workers’ Rights
Not so long ago, in 2006, Prashant Bhushan, speaking on “The Judiciary – Cutting edge of a predator state,” had commented on “the recent role of the courts in not just failing to protect the rights of the poor that they had themselves declared not long ago, but in fact spearheading the massive assault on the poor since the era of economic liberalization. This is happening in case after case, whether they are of the tribal oustees of the Narmada Dam, or the urban slum dwellers whose homes are being ruthlessly bulldozed without notice and without rehabilitation, on the orders of the court, or the urban hawkers and rickshaw pullers of Delhi and Mumbai who have been ordered to be removed from the streets again on the orders of the court. Public interest litigation has been turned on its head. Instead of being used to protect the rights of the poor, it is now being used by commercial interests and the upper middle classes to launch a massive assault in the poor in the drive to take over urban spaces and even rural land occupied by the poor, for commercial development.”
It is important to remind ourselves that not much has changed in the situation described above. The overall judicial climate continues to remain hostile to the working class and the poor. In that climate, however, it is refreshing to have a few recent Supreme Court verdicts that have given some respite to the poor and the peasantry, and have reminded the state of its Constitutional obligations.
Interestingly, these verdicts have provoked a furious reaction in a large section of the media, and of course in the ruling class parties – both Congress and BJP. In particular, these verdicts have been excoriated for being ‘ideological,’ because a couple of them have been critical of neoliberal economic policies. The critics of the verdict, of course, are silent on the ‘ideological’ content of all those scores of verdicts which have upheld and hailed neoliberal economic policies! In any case, these verdicts do not just expound a moral discourse on neoliberal economic policies; rather, they show how these policies are inconsistent with the principles and promises enshrined in the Constitution.
When progressive verdicts are passed, the Courts – for instance in the case where the Supreme Court ordered an SIT to be set up to monitor the investigations into black money or the Delhi HC order on safety for sewage workers – are often accused of “judicial overreach”; i.e, of encroaching on the domain of the executive.
We reproduce excerpts of these recent landmark verdicts, which are powerful statements on burning issues of our times. We must demand that these judicial orders be implemented by the government without delay. However, just as even the Constitution’s lofty declarations are often blithely ignored in practice, so too, such progressive court verdicts are all too often ignored or circumvented by governments. One of the petitioners in the Salwa Judum case, Nandini Sundar, observed, “In 2008, the court directed them (Chhattisgarh Government) to compensate people affected by the (Salwa Judum orchestrated) violence, ensure that people can return home, ensure that there is a list of missing people and file FIRs, but they have done nothing. They displayed complete contempt for the court.”
Salwa Judum: “The Horror, The Horror”
(Excerpts from the verdict ordering disarming of the Salwa Judum/SPOs/Koya Commando, passed on July 5 by a two-judge Bench of the Supreme Court comprising Justices B Sudershan Reddy and Surinder Singh Nijjar. The subheadings are our own, outlining the main issues addressed by this verdict. The UPA Government and Chhattisgarh Government have spoken of seeking a review of this verdict on the grounds that it would ‘hamper anti-Maoist operations.’ This is highly condemnable. We must demand that this verdict be fully complied with, under suitable monitoring by the SC.)
This case represents a yawning gap between the promise of principled exercise of power in a constitutional democracy, and the reality of the situation in Chhattisgarh, where the Respondent, the State of Chhattisgarh, claims that it has a constitutional sanction to perpetrate, indefinitely, a regime of gross violation of human rights in a manner....
Parallels Between Chhattisgarh Today and the
Colonial “Scramble for Loot” in Africa
... we could not but help be reminded of the novella, “Heart of Darkness” by Joseph Conrad, who perceived darkness at three levels: (1) the darkness of the forest, representing a struggle for life and the sublime; (ii) the darkness of colonial expansion for resources; and finally (iii) the darkness, represented by inhumanity and evil, to which individual human beings are capable of descending, when supreme and unaccounted force is vested, rationalized by a warped world view that parades itself as pragmatic and inevitable, in each individual level of command. Set against the backdrop of resource rich darkness of the African tropical forests, the brutal ivory trade sought to be expanded by the imperialist-capitalist expansionary policy of European powers, Joseph Conrad describes the grisly, and the macabre states of mind and justifications advanced by men, who secure and wield force without reason, sans humanity, and any sense of balance. The main perpetrator in the novella, Kurtz, breathes his last with the words: “The horror! The horror!”1 Conrad characterized the actual circumstances in Congo between 1890 and 1910, based on his personal experiences there, as “the vilest scramble for loot that ever disfigured the history of human conscience.” (Joseph Conrad “Geography and Some Explorers”, National Geographic magazine, Vol 45, 1924)
As we heard more and more about the situation in Chhattisgarh, and the justifications being sought to be pressed upon us by the respondents, it began to become clear to us that the respondents were envisioning modes of state action that would seriously undermine constitutional values. ...as a hazy picture of events and circumstances in some districts of Chhattisgarh emerged, we could not but arrive at the conclusion that the respondents were seeking to put us on a course of constitutional actions whereby we would also have to exclaim, at the end of it all: “the horror, the horror.”
Against Branding Human Rights Activists as Maoists
...What was doubly dismaying to us was the repeated insistence, by the respondents, that the only option for the State was to rule with an iron fist, establish a social order in which every person is to be treated as suspect, and any one speaking for human rights of citizens to be deemed as suspect, and a Maoist. In this bleak, and miasmic world view propounded by the respondents in the instant case, historian Ramchandra Guha, noted academic Nandini Sunder, civil society leader
Swami Agnivesh, and a former and well reputed bureaucrat, E.A.S. Sarma, were all to be treated as Maoists, or supporters of Maoists. We must state that we were aghast at the blindness to constitutional limitations of the State of Chhattisgarh, and some of its advocates, in claiming that anyone who questions the conditions of inhumanity that are rampant in many parts of that state ought to necessarily be treated as Maoists, or their sympathizers, and yet in the same breath also claim that it needs the constitutional sanction, under our Constitution, to perpetrate its policies of ruthless violence against the people of Chhattisgarh to establish a Constitutional order.
Problem Rests with Amoral Political Economy
... The problem rests in the amoral political economy that the State endorses, and the resultant revolutionary politics that it necessarily spawns.
... Rather than heeding such advice (i.e that of the Expert Group appointed by the Planning Commission on ‘Development Challenges in Extremist Affected Areas’), which echoes the wisdom of our Constitution, what we have witnessed in the instant proceedings have been repeated assertions of inevitability of muscular and violent statecraft.
The root cause of the problem, and hence its solution, lies elsewhere. The culture of unrestrained selfishness and greed spawned by modern neo-liberal economic ideology, and the false promises of ever increasing spirals of consumption leading to economic growth that will lift everyone, under-gird this socially, politically and economically unsustainable set of circumstances in vast tracts of India in general, and Chhattisgarh in particular.
The justification often advanced, by advocates of the neoliberal development paradigm, as historically followed, or newly emerging, in a more rapacious form, in India, is that unless development occurs, via rapid and vast exploitation of natural resources, the country would not be able to either compete on the global scale, nor accumulate the wealth necessary to tackle endemic and seemingly intractable problems of poverty, illiteracy, hunger and squalor. Whether such exploitation is occurring in a manner that is sustainable, by the environment and the existing social structures, is an oft debated topic, and yet hurriedly buried. Neither the policy makers nor the elite in India, who turn a blind eye to the gross and inhuman suffering of the displaced and the dispossessed, provide any credible answers. Worse still, they ignore historical evidence which indicates that a development paradigm depending largely on the plunder and loot of the natural resources more often than not leads to failure of the State; and that on its way to such a fate, countless millions would have been condemned to lives of great misery and hopelessness.
Mining and “Predatory Forms of Capitalism”
...Predatory forms of capitalism, supported and promoted by the State in direct contravention of constitutional norms and values, often take deep roots around the extractive industries. In India too, we find a great frequency of occurrence of more volatile incidents of social unrest, historically, and in the present, in resource rich regions, which paradoxically also suffer from low levels of human development. The argument that such a development paradigm is necessary, and its consequences inevitable, is untenable. The Constitution itself, in no uncertain terms, demands that the State shall strive, incessantly and consistently, to promote fraternity amongst all citizens such that dignity of every citizen is protected, nourished and promoted. The Directive Principles, though not justiciable, nevertheless “fundamental in the governance of the Country”, direct the State to utilize the material resources of the community for the common good of all, and not just of the rich and the powerful without any consideration of the human suffering that extraction of such resources impose on those who are sought to be dispossessed and disempowered. Complete justice – social, economic and political - is what our Constitution promises to each and every citizen. Such a promise, even in its weakest form and content, cannot condone policies that turn a blind eye to deliberate infliction of misery on large segments of our population.
Policies of rapid exploitation of resources by the private sector, without credible commitments to equitable distribution of benefits and costs, and environmental sustainability, are necessarily violative of principles that are “fundamental to governance”, and when such a violation occurs on a large scale, they necessarily also eviscerate the promise of equality before law, and equal protection of the laws, promised by Article 14, and the dignity of life assured by Article 21. Additionally, the collusion of the extractive industry, and in some places it is also called the mining mafia, and some agents of the State, necessarily leads to evisceration of the moral authority of the State, which further undermines both Article 14 and Article 21. As recognized by the Expert Committee of the Planning Commission, any steps taken by the State, within the paradigm of treating such volatile circumstances as simple law and order problems, to perpetrate large scale violence against the local populace, would only breed more insurgency, and ever more violent protests.
...Instead of locating the problem in the socioeconomic matrix, and the sense of disempowerment wrought by the false developmental paradigm without a human face, the powers that be in India are instead propagating the view that this obsession with economic growth is our only path, and that the costs borne by the poor and the deprived, disproportionately, are necessary costs.
Tax Breaks for the Rich, Guns for the Poor
...On the one hand the State subsidises the private sector, giving it tax break after tax break, while simultaneously citing lack of revenues as the primary reason for not fulfilling its obligations to provide adequate cover to the poor through social welfare measures. On the other hand, the State seeks to arm the youngsters amongst the poor with guns to combat the anger, and unrest, amongst the poor.
Tax breaks for the rich, and guns for the youngsters amongst poor, so that they keep fighting amongst themselves, seems to be the new mantra from the mandarins of security and high economic policy of the State.
What the mandarins of high policies forget is that a society is not a forest where one could combat an accidental forest fire by starting a counter forest fire that is allegedly controlled. Human beings are not individual blades of dry grass. As conscious beings, they exercise a free will. Armed, the very same groups can turn, and often have turned, against other citizens, and the State itself. Recent history is littered with examples of the dangers of armed vigilante groups that operate under the veneer of State patronage or support.
Such misguided policies, albeit vehemently and muscularly asserted by some policy makers, are necessarily contrary to the vision and imperatives of our constitution... The creation of such a miasmic environment of dehumanization of youngsters of the deprived segments of our population, in which guns are given to them rather than books, to stand as guards for the rapine, plunder and loot in our forests, would be to lay the road to national destruction.
... To pursue socio-economic policies that cause vast disaffection amongst the poor, creating conditions of violent politics is a proscribed feature of our Constitution. To arrive at such a situation, in actuality on account of such policies, and then claim that there are not enough resources to tackle the resulting socio-political unrest, and violence, within the framework of constitutional values amounts to an abdication of constitutional responsibilities.
...To pursue policies whereby guns are distributed amongst barely literate youth amongst the poor to control the disaffection in such segments of the population would be tantamount to sowing of suicide pills that could divide and destroy society.
Our constitution is most certainly not a “pact for national suicide.” (Aharon Barack, “The Judge in a Democracy” (Princeton University Press, 2006). In the least, its vision does enable us, as constitutional adjudicators to recognize, and prevent, the emergence, and the institutionalization, of a policing paradigm, the end point of which can only mean that the entire nation, in short order, might have to gasp: “The horror! The horror!”
Central Government: Equally Guilty
We must at this point also express our deepest dismay at the role of Union of India in these matters.
The fact of the matter is, it is the financial assistance being given by the Union that is enabling the State of Chhattisgarh to appoint barely literate tribal youth as SPOs...
...The fact that even now it (Union of India) sees its responsibilities as consisting of only issuing of advisories to the state governments does not lead to any confidence that the Union of India intends to take all the necessary steps in mitigating a vile social situation that it has, willy-nilly, played an important role in creating.
SPOs: Cannon Fodder
It is also equally clear to us that in this policy, of using local youth, jointly devised by the Union and the States facing Maoist insurgency, as implemented in the State of Chhattisgarh, the young tribals have literally become cannon fodder in the killing fields of Dantewada and other districts of Chhattisgarh.
...The State of Chhattisgarh has itself stated that in recruiting these tribal youths as SPOs “preference for those who have passed the fifth” standard has been given. This clearly implies that some, or many, who have been recruited as SPOs may not have even passed the fifth standard. ...It is shocking that the State of Chhattisgarh then turns around and states that it had expected such youngsters to learn, adequately, subjects such as IPC, CRPC, Evidence Act, Minors Act etc. Even more shockingly the State of Chhattisgarh claims that the same was achieved in a matter of 24 periods of instruction of one hour each. Further, the State of Chhattisgarh also claims that in an additional 12 periods, both the concepts of Human Rights and “other provisions of Indian Constitution” had been taught.
...they (SPOs) are obviously being put in volatile situations in which the distinctions between self-defence and unwarranted firing of a firearm may be very thin and requiring a high level of discretionary judgment. Given their educational levels it is obvious that they simply will not have the skills to make such judgments; and further because of low educational levels, the training being provided to them will not develop such skills.
The State of Chhattisgarh claims that in providing such “employment” they are creating livelihoods, and consequently promoting the values enshrined in Article 21. We simply cannot comprehend how involving ill equipped, barely literate youngsters in counter insurgency activities, wherein their lives are placed in danger could be conceived under the rubric of livelihood. Such a conception, and the acts of using such youngsters in counter-insurgency activities, is necessarily revelatory of disrespect for the lives of the tribal youth, and defiling of their human dignity...
[Verdict by SC Bench of Justices B Sudershan Reddy and Surinder Singh Nijjar on July 4]
State’s “Violent Support” for “Predatory Capitalism”
... Increasingly, on account of “greed is good” culture that has been promoted by neo-liberal ideologues, many countries face the situation where the model of capitalism that the State is compelled to institute, and the markets it spawns, is predatory in nature. From mining mafias to political operators who, all too willingly, bend policies of the State to suit particular individuals or groups in the social and economic sphere, the raison d’etre for weakening the capacities and intent to enforce the laws is the lure of the lucre. Even as the State provides violent support to those who benefit from such predatory capitalism, often violating the human rights of its citizens, particularly its poor, the market begins to function like a bureaucratic machine dominated by big business; and the
State begins to function like the market, where everything is available for sale at a price.
Fly in the “Free Market” Ointment
The paradigm of governance that has emerged, over the past three decades, prioritizes the market, and its natural course, over any degree of control of it by the State. The role for the State is visualized by votaries of the neoliberal paradigm as that of a night watchman; and moreover it is also expected to take its hands out of the till of the wealth generating machinery. ...the prevailing wisdom of the elite, and of the policy makers, is that reduction of tax rates, thereby making tax regimes regressive, would incentivise the supposed genius of entrepreneurial souls of individuals, actuated by pursuit of self-interest and desire to accumulate great economic power. It was expected that this would enable the generation of more wealth, at a more rapid pace, thereby enabling the State to generate appropriate tax revenues even with lowered tax rates.
Further, benefits were also expected in moral terms – that the lowering of tax rates would reduce the incentives of wealth generators to hide their monies, thereby saving them from the guilt of tax evasion.
...there is a fly in the ointment of the above story of friction free markets that would always clear, and always work to the benefit of the society. The strength of tax collection machinery can, and ought to be, expected to have a direct bearing on the revenues collected by the State. If the machinery is weak, understaffed, ideologically motivated to look the other way, or the agents motivated by not so salubrious motives, the amount of revenue collected by the State would decline, stagnate, or may not generate the revenue for the State that is consonant with its responsibilities. From within the neo-liberal paradigm, also emerged the under-girding current of thought that revenues for the State implies a big government, and hence a strong tax collecting machinery itself would be undesirable. Where the elite lose out in democratic politics of achieving ever decreasing tax rates, it would appear that state machineries in the hands of the executive, all too willing to promote the extreme versions of the neoliberal paradigm and co-opt itself in the enterprises of the elite, may also become all too willing to not develop substantial capacities to monitor and follow the money, collect the lawfully mandated taxes, and even look the other way. The results, as may be expected, have been disastrous across many nations.
In addition, it would also appear that in this miasmic cultural environment in which greed is extolled, conspicuous consumption viewed as both necessary and socially valuable, and the wealthy viewed as demi-gods, the agents of the State may have also succumbed to the notions of the neo-liberal paradigm that the role of the State ought to only be an enabling one, and not exercise significant control. This attitude would have a significant impact on exercise of discretion, especially in the context of regulating economic activities, including keeping an account of the monies generated in various activities, both legal and illegal. Carried away by the ideology of neo-liberalism, it is entirely possible that the agents of the State entrusted with the task of supervising the economic and social activities may err more on the side of extreme caution, whereby signals of wrong doing may be ignored even when they are strong. Instances of the powers that be ignoring publicly visible stock market scams, or turning a blind eye to large scale illegal mining have become all too familiar, and may be readily cited. That such activities are allowed to continue to occur, with weak, or nonexistent, responses from the State may, at best, be charitably ascribed to this broader culture of permissibility of all manner of private activities in search of ever more lucre. Ethical compromises, by the elite – those who wield the powers of the state, and those who fatten themselves in an ever more exploitative economic sphere – can be expected to thrive in an environment marked by such a permissive attitude, of weakened laws, and of weakened law enforcement machineries and attitudes.
... India finds itself in a peculiar situation. Often celebrated...as an emerging economy that is rapidly growing, and expected to be a future economic and political giant on the global stage, it is also popularly perceived, and apparently even in some responsible and scholarly circles, and official quarters, that some of its nationals and other legal entities have stashed the largest quantum of unaccounted monies in foreign banks, especially in tax havens, and in other jurisdictions with strong laws of secrecy.
Elite Citizens’ Disconnect
...If the politico-bureaucratic, power wielding, and business classes bear a large part of the blame, at least some part of blame ought to be apportioned to those portions of the citizenry that is well informed, or is expected to be informed. Much of that citizenry has disengaged itself with the political process, and with the masses. Informed by contempt for the poor and the downtrodden, the elite classes that have benefited the most, or expects to benefit substantially from the neoliberal policies that would wish away the hordes, has also chosen to forget that constitutional mandate is as much the responsibility of the citizenry, and through their constant vigilance, of all the organs of the state, and national institutions including political parties.
Powerful People Yet to Be Interrogated
... It also became clear to us that in fact the investigation (by the Union of India) had completely stalled, in as much as custodial interrogation of Hassan Ali Khan had not even been sought for, even though he was very much resident in India.
...during the continuing interrogation of Hassan Ali Khan and the Tapurias, undertaken for the first time at the behest of this Court, many names of important persons, including leaders of some corporate giants, politically powerful people, and international arms dealers have cropped up. So far, no significant attempt has been made to investigate and verify the same. This is a further cause for the grave concerns of this Court, and points to the need for continued, effective and day to day monitoring by a SIT constituted by this Court, and acting on behalf, behest and direction of this Court.
...the Union of India has been unable to answer any of the questions regarding its past actions, and their implications, such as the slowness of the investigation, or about grant of license to conduct retail banking by UBS, by reversing the decision taken earlier to withhold such a license on the grounds that the said bank’s credentials were suspect. To this latter query, the stance of the Union of India has been that entry of UBS would facilitate flow of foreign investments into India. The question that arises is whether the task of bringing foreign funds into India overrides all other constitutional concerns and obligations?