LESSONS FOR THE JUDICIARY FROM THE FARM LAWS REPEAL FIASCO

    Prime Minister Modi once again demonstrated his shock and awe style of leadership by announcing the repeal of the three Farm Laws on the 19th of this month. Ever since then, many articles have been published about the lessons to be drawn from this year-long tug of war and its predictable denouement. Lessons to be learnt by the government, the media, the Opposition parties, the trolls, the farmers, perhaps even by Greta Thunberg and Rihanna and most certainly by Kangana Runout. But I notice that one important participant in this tourney has been left out of the pedagogy- the higher judiciary. That is a grave omission, for it too has a lot to learn from this misadventure.

   It appears to me that in this entire episode the judiciary has been following Mr. Narsimha Rao's famous doctrine of  "No decision is also a decision."  At least four petitions have been filed in the Supreme Court both against, and in favour of, the farm laws; their constitutional validity has been challenged. Even after one year the Court has not taken them up for substantive hearing and has simply stayed them: it has kept the Damocles sword hanging over the farmers, in the hands of an executive which cannot be trusted even to abide by a judicial order and has in the past overturned some by ordinances. The farm laws have joined a long list of important legislations which have been challenged but are kept in some form of judicial mortuary for years, on ice and developing rigor mortis- CAA (Citizen Amendment Act), Electoral Bonds, Article 370, Kashmir Reorganisation Act, Sedition laws. And with every day of delay in taking a decision on them, the democratic structure of this country becomes even weaker.

  One of the reasons for the SKM's (Samyukta Kisan Morcha)'s obduracy was precisely for this reason:  they did not expect an early decision by the court, and therefore felt that continued protests/ agitations/ blockades was the only option for them. I know there will be legal luminaries who will tell me that the Court has to follow a roster, a first-come-first served protocol for cases, and that there are 65000 other cases pending. My reply to them is that the apex court is not a McDonald franchise, in its care lies the very existence of the nation, and it needs to distinguish between cases of constitutional importance and of individual import. The former have to be given priority over the latter: the concerns of 400 million farming families surely must rank above Arnab Goswami's bail in the roster.

  Day-to-day hearings in the farm laws case ( as in the Ram Mandir case, the reader will recollect) would have saved this nation a lot of grief, bad blood, economic loss, social ruptures and maybe even the lives of a few hundred farmers. A decision- either way- would have probably brought an early end to the protests one way or the other. Both the govt. and the SKM would have had to follow the decision, the govt. because it is constitutionally bound to so, and the farmers because they would have lost public support and legitimacy if they did not. The Supreme Court still commands respect and is seen as the final arbiter of all disputes. Narsimha Rao's doctrine might make sense for the executive but not for the judiciary. 

  The only part of the farmer's movement which received the SC's attention were the petitions seeking to declare the blockades around Delhi as illegal- the symptoms, not the causes! And even here there was much confusion: one bench called the protests a fundamental right, another one described them as akin to strangling the city. Notices were issued to all and sundry, hearings held, the Court's displeasure for the farmers' action made clear. Herein lies the second lesson for our higher judiciary: distinguish between the socio-political dimension and the purely legal one, and engage yourself with the latter and not the former. 

  It is no part of the judiciary's mandate to pull the executive's chestnuts out of a fire of its own making. The agitation was the result of the govt's authoritarian and unilateral style of functioning, it's egoistic belief that only it knows best, and that its brute majority in Parliament entitles it to give a go-by to all democratic practices of consultation, debate and Parliamentary practices. It made the witches' soup, it should have been allowed to stew in it. But the Modi govt. has made it a practice to create an untenable situation on the ground, and then to try and extricate itself by using the judiciary through proxy petitions to stifle any opposition or protest. The courts should see through this pernicious stratagem of trying to find a judicial solution to what is essentially a socio-political issue, and give it a wide berth.

   The third lesson to be drawn from all this is the eternal truth: the difference between what is legal and what is legitimate: the two are not always synonymous. Hard as it may be for members of the judiciary to acknowledge this, the fact is that in a democracy the sovereign power vests, not in a Parliament, not in a powerful Prime Minister, not even in a Supreme Court, but in the people. A law may be legal but it will lack legitimacy if it is not acceptable to the people. We will perhaps never know if the three farm laws were legal or not because the challenges to them shall abate now with their repeal, but their utter lack of legitimacy has now been confirmed with Mr. Modi's admission that his " tapasya" has failed. The courts can only determine legality, not legitimacy. Which is why they should not get involved in determining the legitimacy of protests, or whether a hundred protesters or two hundred should be allowed at Jantar Mantar, or whether blocking a road amounts to holding a city hostage. Those are not legal issues; even if they are they may raise a question of conflicting rights. These are matters for the executive to address and resolve, and if it cannot do so then it has no right to govern. If the judiciary too gets enmeshed in them it faces the risk of getting dragged down with the executive when the people have spoken.

   No truer word was spoken than when the Chief Justice of India recently observed that the government should not have an adversarial attitude to human rights.. Equally, however, the judiciary should not have an adversarial relationship with the citizens. Just as it itself judges the legality of a law, it should allow the people to determine its legitimacy. And in a country where the Parliament and all other checks on the govt. have collapsed, protests are the only avenue for the citizens to rule on that. This should be recognized and respected.

FOOT IN MOUTH OR STRAWS IN THE WIND ?

   Over these last seven years we have become used to our saffron eminences and their intellectually challenged acolytes spouting all kinds of asinine nonsense: Einstein discovered gravity, Darwin was wrong because no one witnessed an ape turning into homo sapiens, Chandragupta defeated Alexander, India invented plastic surgery and in-vitro fertilisation procedures, Haldighati was a victory for Maharana Pratap, cow urine cures Covid, India achieved independence in 2014 and not in 1947. If these statements did not educate us they at least added a little levity to our despondent existence. But two recent statements, equally bizarre, may give us cause for concern. They come close on the heels of Justice (R) Arun Mishra, Chairman of the NHRC ( National Human Rights Commission) who is unable to control his admiration for the Prime Minister even at international fora,  organising a debate on the subject " Are human rights a stumbling block in fighting evils like terrorism and naxalism ?" In legal parlance this was the ultimate " leading question". We thought that things couldn't possibly get worse, but we were quickly proved wrong.

  Mr. Ajit Doval, the National Security Advisor and India's third most powerful person, told IPS probationers at a passing out function that the new frontier of war was civil society, it was the " fourth generation" of warfare, that it can be suborned, manipulated, subverted and divided to " hurt the interests of a nation", and that the police are " there to see that the land is fully protected." He went on to further expound on his doctrine of democracy ( I am paraphrasing here): that the electoral process is not paramount, what is important are the laws made by lawmakers and the police must enforce them ruthlessly.

  The other declaration, even more alarming, was by the Chief of Defence Staff General Bipin Rawat who opined that it was a " good thing " that the public of Jammu and Kashmir was now ready to lynch terrorists. He did not see the necessity of making a distinction between suspected, hybrid and genuine terrorists. Presumably, the good citizens of J+K would make this judgment themselves just before they strung up these individuals on the nearest lamp-post. He also seemed to forget that there are laws in place to deal with terrorists, and that lynching is not yet an approved form of justice.

  These statements fall into a different category from the Kangana Ranaut and Satyendra Singh ones, and have to be taken more seriously, because they have been made by the two senior most officers of our most important uniformed forces- the police and the army. These two gentlemen are  acknowledged to be very close to the ruling dispensation and never speak out of turn. They are also good weather vanes. That is why the two statements need to be taken seriously and condemned unequivocally.

  The import of Mr. Doval's exhortation goes far beyond a few dozen IPS probationers: it is an attack on civil society, a warning to the govt's critics and an incitement to the police to target dissidents and liberals. I do not know whether his choice of words was deliberate or just unfortunately random, but to term civil society as a frontier of war is shocking, it equates citizens with an "enemy". And to elevate any peaceful confrontation between a government and its citizens to a " fourth generation warfare" is an astounding militarisation of dissidence. It is also a very innovative doctrine: most military strategists will tell you that the new generation of warfare consists of cyber, asymmetrical or algorithmic war. For Mr. Doval to add " civil society" to this list would be inviting ridicule. But somehow I don't think he was being facetious or stupid; he appears to have chosen his words carefully, and his messaging is deliberate.

  For me, this is confirmed by Gen Rawat's statement, which, shorn of its uniformed origin, is nothing but an incitement to vigilantism and mob violence. That the senior most defence officer in the country can say this publicly is condemnable but no longer surprising, for new furrows of illegality are being carved out everyday in this country these days.

  Both prescriptions are in direct contradiction with , and a violation of,  our Constitution and the law of the land. They criminalise freedom of speech, the right to disagree with the govt., the right to protest peacefully. As Aruna Roy points out in a recent article, Mr. Doval is short circuiting the democratic, social and developmental safeguards assured us by the Constitution, and is maliciously painting civil society as a force which is undermining development and nationalism. Moreover, it is clear that he is referring to the " other " civil society which protests the govt's excesses, and not the one represented by the Kapil Mishras, Kangana Ranauts and Swami Narsinghanands, all supporters and purveyors of hate and intolerance.

  In fact, one would have expected these two senior functionaries of the govt. to have done just the opposite of what they did. Given the manner in which most police forces in the states- not excluding opposition ruled states- have run amock of late, using UAPA (Unlawful Activities Prevention Act) and sedition laws with gay abandon, arresting anyone who writes against the govt. on trumped up charges, defying court orders, being selective in their policing, the correct counsel to the IPS probationers should have been one which enjoined on them to work within the limits of the Constitution, abide by the judgments of the courts, respect the rights of citizens and the values of our democratic traditions and history, treat everyone equitably. General Rawat could have redeemed his rapidly shrinking reputation by denouncing vigilantism, reminding his audience that the sovereign right to violence belongs only to the state, and that too only after a due process of law is followed.

  By branding civil society as internal enemies of the state, however, the two have now given a license to the police and other coercive agencies to be even more ruthless and brutal in their treatment of those members of society who incur the govt's wrath and displeasure, including journalists, human rights activists, students, writers, liberal intellectuals, workers, farmers, artists. This is no longer just a dog whistle, it is sounding the bugles for a new war on the most fundamental of  democratic values- the right to disagree. Disagreement is the bulwark of democracy- to crush it is to crush democracy itself. 

  It is difficult to explain why Messers Doval and Rawat have decided to open another front at this time, considering their dismal performance on all other fronts- Kashmir, the Naga Peace Accord, Afghanistan, Ladakh, Arunachal Pradesh, Nepal, CAA, Pegasus, to name just a few. Moreover, the BJP ruled undisputed over social media till just about a couple of years ago, successfully drowning out the voice of civil society. So why now ? My guess is that, as repeated failures of the government in all areas of governance pile up, a significant back lash is building up among the public. The hold and influence of the sold out mainstream media is also diminishing, with independant portals and Youtube channels garnering huge viewership running into millions. The results of the recent by-elections seem to bear this out. Crucial elections in five states are due in just a few months. It is therefore time for desperate measures to instil more fear among members of the civil society, to fire up the vigilantes, and to convey the desired signals to the police. This will be the new template in the coming days. The barometer is falling and the wind is picking up.

  It's an ill wind that blows no good.

THE NUMBERS GAME

   I belong to a generation weaned on the liberal arts, and for whom the three Rs meant Reading, Writing and Rithmetic, not Ramrajya, Rashtrawad or Rohingyas. Very early on in my life I decided that the sciences were not for me, and reaffirmed this by consistently failing in Maths from Class VI to Class XI. ( This was, of course, before our education tsars took the breath-taking decision that mathematics is not required for engineering !) But I do not deprecate mathematics and consider it an important marker for assessing the progress of human civilisation. And so, numbers fascinate me, for they are capable of diverse interpretations, depending on where you are sitting, snoozing or hallucinating. Here are a few which have been of particular interest to me in the very recent past.

  2070. This is the year when India will reach Net Zero carbon emissions, per the visionary announcement made by Mr. Modi in Glasgow last week. This is about 20 years later than what the rest of the world has committed to, and the entire global media, when not reporting on Mr. Biden's flatulence episodes, is trying to figure out the significance of this year/ number: what is the hidden reason/ impulse behind 2070 ? Many explanations have been offered.

  Economists have said that this is validation of John Maynard Keynes' famous obiter dicta: " In the long run we are all dead." Because, the way temperatures continue to rise, we will have breached the 2.5* Celsius  red line long before 2070, and the whole of South Asia will have become a continental tandoor by then. The Congress appears to be supporting this, saying that Modi has chosen this date because he cannot meet his targets but has ensured that there will be no one left alive to criticise him 50 years from now, except perhaps Digvijay Singh and Sidharth Vardarajan.

  A contrarian group, headed by Mr. J.P.Nadda, has the exact opposite view: they believe that this confirms Mr. Modi's popularity, shows his confidence that he will be around in 2070 also to showcase the ONE INDIA, ONE ZERO slogan. As evidence they point to Mr. Prashant Nostradamus Kishore's latest prediction that Mr. Modi and the BJP are going to be around for a long, long time and no vaccine is going to help.

  Another school of thought has it that our Prime Minister is more worried about the Muslim population growth reaching Net Zero: he perhaps expects that to happen in 2070, considers it a bigger danger to the world, and has therefore collated the two zeros into one common danger. It's his usual subtle way of telling the world that there are other serious problems confronting us than just climate change. In fact, there are rumours going around that Niti Ayog is considering changing the slogan to ONE INDIA, TWO ZEROS. This has, of course, led to some disquiet in the Yogi Adityanath camp which believes that the second Zero may be a disparaging reference to the monk.

   My own guess, based on my newly acquired knowledge of vedic mathematics, is that they are all wrong. The actual reason for Mr. Modi choosing 2070 does not lie so deep, and is actually quite simple. Mr. Modi's favourite number is 9- you no doubt remember that exhortation on the 5th of April last year to light diyas and beat conch shells  for exactly nine minutes at nine o' clock in the night ? There you have it: 2070 is the only decade-ending year this century that totals 9. Of course, it didn't work with Covid because it takes more than vedic numerology to beat that virus, but it might just work with carbon emissions, what ?

  The other number which interests me these days is 101. This is , of course, the standard " shagun", or gift, for auspicious occasions one is unlucky enough to be invited to and cannot avoid. But it also has other historical connotations. Did you know, dear reader, that it took exactly 101 British merchants in the 16th century to found the first corporate colonial power in the world ? The East India Company was incorporated in London on the 22nd September, 1599, by 101 burghers with a paid up subscription of the handsome amount of 30,133 British pounds, 6 shillings and 8 pence. This is all it took to set in motion events which, less than 200 years later, resulted in the Company establishing its rule over India, which at the time contributed 25% of the world's GDP. How's that for a start-up folks, our very first Unicorn ?

  Which is why we should be worried about the other 101's we are now confronted with. According to a recent Pentagon report the Chinese have established a village in Arunachal Pradesh on territory claimed by us. The village contains- you guessed it- 101 houses. Somehow I have a feeling that this is not a   "shagun" being offered to us; it's more like an an IPO to set in motion another acquisition spree on the East India Company lines- a hostile take over, in corporate parlance. The Indian govt. appears to be waiting for a White Knight to come to our rescue, but he's busy having " bathroom accidents" in the Vatican.

   And how can we ignore that other 101- our ranking on the Global Hunger Index ? This may be roughly equivalent to the number of calories your average Indian child consumes in a day, but is Delhi worried? No, sir, for that would be a sign of weakness. Our robust response has been, instead, to turn off the tap on NREGA and let the unpaid wages accumulate to Rs. 7000 crores, thus ensuring that even more millions will now go to bed hungry, without even that one meal which NREGA made possible. Just so that there is no confusion about its intent, the govt. has also announced that the Garib Kalyan Yojana, which provided free food grains to more than 80 crore people, will be discontinued from 30th November. Quite clearly, for our rulers, man does not live by bread alone.

   There are other numbers too: for example, 99, which according to a BJP spokesperson was the period for which India was given independence on lease by the British; 1200000, which is the number of "diyas" lighted in Ayodhya on Diwali by the UP govt. to demonstrate that oil is well with the prices of mustard oil; and 2014, which is our new year of Independence according to the eminent historian Kangana Motormouth. But I'll keep them for another time, I have no wish to addle your brains any further with more mathematics. I have it on good authority that five out of four people don't like maths. As the triangles commented about the circle, it's so pointless, na ?

REMEMBERING G.S BALI-- THE OFFICERS' MINISTER : A PERSONAL EULOGY

   

                                            

I have always believed that politicians, in many important ways, are better human beings than bureaucrats. They can be far more empathetic, sensitive and genuinely helpful than us "bandh gala" types, throttled by our training, self centeredness and inflated sense of importance. G.S. Bali, who passed away in the early hours of 30th October in a Delhi hospital at the age of only 67, exemplified my thesis to perfection, as no other politician I have known in my 35 years of service.

  One knew Mr. Bali, of course, as a young fire-brand Congress politician from Kangra, long before I had a chance to work with him directly in the dawning years of this millennium. I was posted as Transport Secretary with Bali as my Minister. He also held charge of Tourism. When I visited him for the first courtesy call he jokingly informed me that the Chief Minister (the late Virbhadra Singh) had sent me to his Department to keep a check on him ! (The CM and Bali did not always see eye to eye on many issues). In a few months, convinced that I was not doing a Pegasus on him, he manoeuverd things to have me allotted the Tourism charge also. Thus began a unique relationship that prematurely ended in a lonely AIIMS (All India Institute of Medical Sciences), Delhi, ward on a cold autumn morning.

  Mr. Bali was by no means your conventional Minister. He was a supercharged bundle of energy, a man on a mission, brimming with ideas, always on the move- in Delhi in the morning, in Nagrota by the evening, and in his Shimla office the next morning, having inspected a dozen buses en route! He did not depend on his officers with the usual passive attitude of most Ministers who wait in their offices for the files to come to them. He did his own legwork, checking buses and "nakas" late in the night himself, stopping at the favourite dhabas of the HRTC buses to see if his passengers were being ripped off, going to the depots and bus stands himself to meet the union leaders to hear their grievances. He even had his personal mobile number painted on all HRTC buses so that any aggrieved passenger could call him up at any time of the day or night. And they did, with gusto! Bali took all the calls himself, and many a Divisional Manager or Regional Manager, rousted from their beds by the Minister from a sound sleep, have as a result been banished by their wives from their bedrooms for ever. By his hands- on approach, Bali endeared himself to the travelling public and workers equally. My main job, as I saw it, was to apply the brakes on his warp speed style of functioning !

  A widely travelled man, he welcomed new ideas and innovative projects and lent them his full support. Some of the more successful ones from our tenure include conceptualising the ropeways to Rohtang pass, Bijli Mahadev and Triund; introduction of Volvo buses on long distance routes; the Jakhu ropeway; modern bus stands such as the ISBTs (Interstate Bus Stands) Shimla and Kangra on PPP (Public Private Partnership) mode; the Tourism Department's Home Stay scheme (a phenomenal success- there are now about 3000 registered home stays and an equal number of unregistered ones in the state). But sadly, the one mega project which could have been his lasting legacy for Himachal was sabotaged by petty politics and never saw the light of day.

  I refer to the Ski Village project, a US$ 400 million venture (at the time the biggest Foreign Direct Investment in the Tourism sector in India) proposed by a company owned by the grandson of the legendary Henry Ford.. The project, located above Palchan near Manali, envisaged a ski lift going up to 10000 feet, an international class, 5 star hotel and cottages, a traditional handicraft village, a heli- pad and upgradation of the Bhuntar airport at the company's expense. If implemented the project would, at one stroke, have lifted Manali from the over-priced slum it has become to international stature.

Both Mr. Bali and I were sold on the project and we put in long hours processing it: ensuring environmental safe guards, obtaining approvals, coordinating with other departments, devising clauses to secure the interest of the local populations. I even trekked up the line and length of the ski-lift for three days to ensure an alignment involving minimum forest land and trees. Even Mr. Virbhadra Singh, the Chief Minister, was excited about the idea and supported it whole-heartedly.. And rightly so, for it would have put Himachal on the international tourist map and would have benefitted the state immensely in terms of employment, taxes and branding.

  But it was not to be, for in 2008 elections were held and the government changed. The new BJP government headed by Mr. Dhumal decided, in the time honoured traditions of Indian political culture, that the Congress could not be allowed to take the credit for such a project, nor could it be allowed to stand as a Congress contribution to the state. Opposition to the Ski village was whipped up, a committee of loyal officers was tasked to find reasons for cancelling the MOU, and the project was buried. It will take another man with the vision of Bali to resuscitate such a project, and there are not many of them around these days.

  Bali was a social networker par excellence- he knew everybody, but everybody, from the Secretaries to Govt. of India to the owners of Sukhdev and Pahalwan  Dhabas in Murthal , from film stars in Mumbai to industrialists in Chennai. And he took pains to nurture these relationships. A hard taskmaster as a Minister, he nonetheless gave officers the respect due to them, no Minster past or present had more friends in the bureaucracy. He never forgot a birthday or a marriage anniversary, and at times of distress always appeared from nowhere to offer his help.

  Seven months after my retirement my younger son met with a horrendous accident in Chennai. He was on ventilator support in a hospital ICU for one month. Neerja and I had to rush to Chennai, a place where we knew no one: we didn't even know where we would stay. At times like these the famed IAS network becomes like a gaping fishing net, and develops a hole through which a sperm whale could swim through: it was of no help to me. I rang up Mr. Bali: he was in Chennai on the next flight, got in touch with his contacts and ensured that suitable arrangements were made for our stay and transportation: he stayed in touch constantly thereafter. In 2007, when I myself was in IGMC Shimla in critical condition with a spinal injury, he prevailed upon the Chief Minister to spare the state helicopter to evacuate me to Delhi. It was not needed finally, but he spared no effort to requisition it. Bali was not a transactional man- once you earned his trust and he took a liking to you, he was your friend for life, always giving far more than he took.

  He was hospitable and generous to a fault. After every trip abroad he would distribute bottles of scotch and perfumes to all his officers as if they were going out of production. During the winter session of the Vidhan Sabha in Dharamsala, he appointed himself the co-host for the bureaucracy since his own house was located just a few kilometers away in Kangra. He always threw an elaborate party for us officers at his place, with the finest single malts, cognacs and tandoori dishes. Many have been the nights Neerja and I have spent at his place, listening to his rip-roaring accounts of politicians and officers, known and unknown, for he was a treasure trove of gossip and spared no one!

  I now understand why he was always in such a hurry, a dynamo working overtime: perhaps he sensed that he didn't have much time left. His sudden departure is like the creation of a black hole- a star collapsing into itself. Where he once glowed, is now emptiness. Mr. Bali lived every minute of his life to the full, abundantly if not always wisely. He still had much to do and to give, but it seems to me that, like in everything he did, he was in a hurry to go. Nothing describes his life better than these lines by the poet Edna St. Vincent:

" My candle burns at both ends;

  It will not last the night.

  But ah, my foes, and oh, my friends-

  It gives a lovely light !"

 And much warmth. Goodbye, Minister.