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India vs India: Can our laws save our nation from disaster?

Fatalist acceptance of the given on the one hand contrasts with the anti-fatalist urge for change.

opinion Updated: Nov 22, 2016 06:54 IST
Gopalkrishna Gandhi
Justice V M Tarkunde Memorial Lecture,Gopalkrishna Gandhi,Indian legal system
A woman talks on her mobile phone as she waits outside a bank to exchange or deposit discontinued currency notes near Guwahati. Fatalist acceptance of the given on the one hand contrasts with the anti-fatalist urge for change in India, writes Gopalkrishna Gandhi.(AP)

Gopalkrishna Gandhi is distinguished professor of history and politics, Ashoka University. This is the full text of the Tenth Justice V M Tarkunde Memorial Lecture he delivered at the India International Centre, Delhi, on November 20. He writes a column for HT here.

It is a singular honour to be asked to give the Justice V M Tarkunde Memorial Lecture and I offer to the Foundation and to Ms Manik Karanjawala my sincerest thanks. It is also a test, for the standards of courage in thought and action set by Justice Tarkunde are mighty tough. No Tarkunde lecturer may tip-toe around the subject or look over the shoulder before speaking. I know I cannot, not from thus podium, follow the advice given in the famous Raj Kapoor song: Ey bhai, zara dekh kar chalo….agey hi nahin, pichhe bhi, daanyen hi nahin, baayein bhi, upar hii nahin, niche bhi…Ey bhai

When thinking of what the subject of a Tarkunde Lecture by one like me should be, I saw that it would have to do with our collective svabhava, with how civil society and the State fare today, in themselves and in their relationship with each other. And Justice Tarkunde’s legal work hovering over the prospect, the title ‘India versus India’ suggested itself. I had not long ago spoken on ‘India versus the Union of India’, but that had a different remit.

Before entering into the theme, I want to say that there is a deep dichotomy, a fundamental two-ness in the Indian psyche which can be seen as an ‘India versus India’ phenomenon. We are as a people steeped in the fatalistic acceptance of anything that happens around us as ‘given by kismet, ordained by karma, etched on our foreheads as the lines of Fate. And so, acceptance, resignation, detachment are seen as philosophically desirable, spiritually advised and pragmatically sensible. On the other hand, India has also been the site of great reforms, of revolutionary changes, campaigns, agitations, movements for change all of which are about anything but quietist, accepting. They militate against ‘kismet’. Fatalist acceptance of the given on the one hand contrasts with the anti-fatalist urge for change. So we have two Indian mindsets at the very taproot of our civilisation. And our present preoccupation with the famine of currency makes me wonder whether we are to admire the great patience being shown by our people or lament the lack of protest among them.

‘India versus India’ sounds like a litigious title. Do I mean by it that despite the money and the strain involved in litigation, despite all the time it takes up, legal action is a favourite Indian habit, amounting to an addiction ? That we, as a people, delight in taking one another, especially relatives, to court or that the Indian State rather routinely fills its already over-crowded jails with more and ever more under-trials, many if not most of them innocent? In truth I believe that to be quite true. If we were to roll all Indians who are plaintiffs and respondents into two giant collectivities we would have India versus India, a Mahabharata of Mahabharatas that neither Ramanand Sagar not Peter Brooks would be able to handle. Next to temples, mosques, gurudwaras, the most favoured place of recourse is the nyayalay. We can be, in a generalisation with exceptions discounted, as a people, vivadi, adalatbaz. Where but in India would private perceptions of the public’s interest or the public’s interest in individual hurt or the travails of an identifiable group, become a whole genre of litigation - the PIL ?

If the awam seems to be an adept in litigation , the State is on board as well, keeping hundreds of thousands of lawyers in silk, keeping attorneys general, advocates general, solicitors general, their additionals alternatives, and a platoon of public prosecutors and standing counsel ceaselessly, sleeplessly and thanklessly occupied. Together they keep notaries public ready with ink-pad and stamp paper, clerks in the kindergarten of the law but post-Docs in the legal system, tippety-tappetyiing away on their Remington or Olivetti typewriters, rolling out vakalats, affidavits, counters, anticipatory bail applications, now in panic over the famine of fifties, twennies and tenners and the most prized of all , the blue note ‘ ikk sau da note…please…bas…thank you, soniye…’. The precarious car slots for the judges outside courts beside a mayhem of mis-parked cars, autos, Media OB vans, motor-cycles, fruit-juice, tea and chat vendors all around and oh, threading their course with grim determination through the tangled mass of dismayed men women , those streams, streams upon streams of starched white shirts, shiny black coats and gleaming shoes, heading towards the equivalent of suryodaya on a foggy morning in Kasi, which is that moment when, in the hall there is a sudden hush , chatter ends, laughter freezes, all stand, the Judges enter, take their seats, and as the case on top of the day’s listing begins, there comes to be intoned, the mantra of mantras, litigant India’s one and true suprabhatic Aum, which is ‘Milord…’ And we have India versus India.

‘Our laws and our courts have led to decisive, courageous interventions.’ (Pradeep Gaur/ Mint)

But our laws, our courts, judges and lawyers are not about litigation alone. They have led to decisive, courageous interventions. They have nursed foresight, gestated evolution, protected the intelligence that conserves and the wisdom that reforms. Husnara Khatoon v/s the State of Bihar gives an example. India has been notoriously sluggish in the matter of prison reforms , on the condition of prisoners. Kapila Hingorani’s petition on behalf of several prisoners won for 40,000 of them release. India versus India stood in Husnara in the shape of a thirst for insaf versus a fatalistic surrender to kismet. Our laws and our law courts have judged issues on the claims of two faculties which make humans of the homo sapien – IQ and MQ, the intelligence quotient and the moral quotient , better known as the human conscience. With a bandaged arm, elbow in sling, wrist in a compress of crepe, every digit on the palm wearing, like medallions, square or round patches of band-aid , the bruised yet trusting Indian salutes India’s pre-eminent site where India’s IQ meets India’s MQ--the Indian judiciary.

Every society through each generation knows men and women of high IQs and also men and women of high MQs and, very significantly, men and women, with both high IQs and high MDs, showing thereby that if it feels great to be smart but it also feels good to have a sense of right and wrong. Such persons are few in number, but they are there. Among them some, even fewer, add courage to their conviction. They express their views without hesitation. No agar-magar stops them.

Ever since Gandhi used the phrase ‘keeper of my conscience’ or ‘conscience-keeper’ for Rajagopalachari, it has been overdone. That is one among the minor hassles Gandhi has created. Because of him now, every blunder is a “Himalayan blunder’, every hollow promise is ‘a post-dated cheque’. And poor old Western civilisation has become forever ‘a good idea’. Overuse however is no reason to not use the phrase ‘conscience keeper’ when it is right to use it, necessary to use it. Individuals need conscience keepers because their consciences frequently doze off. Nations need conscience keepers because their consciences only occasionally wake up.

Jayaprakash Narayan was one exceptional conscience keeper to our beloved India – a country at once wise and foolish, loving and murderous, offering shelter, sanctuary, sharanam, ashraya but also distancing, abandoning, expelling, a country at once varied and yet bonding , so united and so hopelessly divided as to become a spoonerist’s special : diversity in unity…I mean… …university in diversity…sorry…. unity in diversity. JP had humour aplenty in him to laugh at that but he was essentially the most earnest man I have ever met. He knew how India could be at war with a part of itself , a part of India at war with India. He said to Kashmiris – these are not his exact words, but a paraphrasing of what he said – ‘Countries, people, behave in strange ways. You know Pakistan and what it did to you in 1947-48. You know India and what it did for you in 1947-48. You and I can be proud of the Indian officers and Jawans who laid down their lives here, staving the invaders off. Later, things have happened between India and you that should not have happened. I am ashamed of those. I know you mistrust India. I can understand why. India sees Kashmir as part of its map, whereas it should have seen India as part of Kashmir’s mind. Your shikaras, your bokharas, your walnuts, your carpets, your summer breeze, your winter snows have gone into India’s consciousness . but India’s great Constitution, its independent judiciary, its free media, its resurgent womanhood, has not enter your minds. This is not your fault, it is India’s. The way Sheikhsahib was treated, the way your elections turned into farces, hurt your izzat, your Kashmiriyat is all shameful. But, please, please do recognise the fact that India is a Republic, whose conscience though often asleep, even comatose, can be and is awakened. If shown its error, India can correct its methods. I will do my best to help it do so. Trust India, trust me. Do not, and I repeat, do not go with some delusive dreams which could become the most horrible nightmares.

“India sees Kashmir as part of its map, whereas it should have seen India as part of Kashmir’s mind”  (Waseem Andrabi /HT Photo)

This was India versus India trying the non-litigious road of mediation.

And at another end of the country he told the diverse Naga people, similarly, something like (again not his exact words but certainly his message) ‘ You are a proud, self-respecting people with a distinct culture and history. India, its hinterland particularly, is so wrapped up in its own sense of glory and greatness, real and imaginary, that it does not have the time or the temperament to appreciate your heritage enough. Just as it has branded all south Indians as Madrasi, it has branded all of you as Naga. It does not even know that the Naga are many people, at least 17 distinct people, with distinct cultures, language, dress. Most Indians think of you in terms of red and black shawls, spears and Republic Day parades. That is India’s loss, not yours. India can be mulishly adamant but somewhere it knows how to correct itself, rectify its erros. India can go wrong, India cannot be evil. Trust it, not those further to your north or east, who tell you to look in their direction. That way lies a steep fall into an unknown valley’.

This was again India mediating India.

JP was asked by the Indian state to help solve the problem of dacoits in the ravines of Madhya Pradesh. He got through to them, which was no small success. They wore belts of bullets, their palmss were red, their fingernails, black. They were ferocious , yet trapped. Trapped, yet ferocious. The state had ronged them in but was yet afraid to touch them. A giant among the daku asked JP if they can trust the state. What guarantee could he, JP, give them that if they surrendered. Will they, on surrendering, not be tried for multiple murders and hanged ? JP said he could not guarantee that they would not be , he could not speak for the Indian state. But this much he said he could guarantee them : If after having been promised amnesty due to Jayaprakash’s mediation a surrendering dacoit is hanged, Jayaprakash will die with him. That was enough. The bullet belts were unloosened, guns dropped. To be fair to the Indian state, it kept its word to JP. To a lesser man, one who was no conscience-keeper , it may not have.

Kashmir, Nagaland trusted him. The denizens of Chambal’s ravines put their faith in him. The south of India, too, curiously, bonded with him. He was, after all a socialist. The south never saw him in terms of a Hindiwala who without knowing the next thing about, say, Tamil, still insists on their speaking to him in his language, a typical India versus India signpost. JP was not the shallow politician who would go all vanakkam-vanakkam in Madras and then in Hyderabad mix up his Tiru-s with his Garu-s He knew his India, north-south, est-west. He knew its boundaries and neighbours as well. He knew the India that could hurt its many Indias, the many Indias that could harm India. Conscience is not a mushy heart ; it has a taut mind.

And yet what did the State do to the same JP when he raised his voice against corruption, against dictatorship ? Vinashakale viparita buddhi, JP said softly as he was led to the van taking him to prison, in 1975. What the state did was shameful but what civil society did was worse. In utter cowardice it watched in silence and then went about its business. In Faiz Ahmed Faiz’s immortal words persons of conscience are inconvenient and unwelcome to the State and to society. They suffer at the hands of both the King and his loyal subjects.

Hakim-e-shahar bhi, majma ‘e-am bhi

The Governor and the populace, both, send

Tir-e-ilzam bhi, sang-e-dushnam bhi

Calumny’s keen arrow, insult’s hurtling stone

Such rare people , so rare as to be countable on the fingers of one hand, personify more than the word ‘conscience’. Their restless conscience stands four square against its envious opponent, calm cunning, its clever rival, conformism.

When their comments are addressed to or are about seats of power, they suffer victimisation, persecution, and worse. Even fewer have the greater courage – temerity, almost – to speak their minds not just to the sovereign but to society, to their own samaja. If the sovereign can be vengeful, society can be vicious. If the state can prosecute, society can victimize. Its weapons are ridicule, calumny, spite. Those who speak up against an unjust State are brave ; those who speak up against an unkind people are braver.

Tagore’s famous poem ‘Where the mind is without fear’, when read or recited in the original Bangla , has a resonance that goes beyond its great ring in the English translation : Chitta jetha bhoy-shunno…(Where the mind is without fear)…uchcho jetha shir…( and the head is held high…). Uchcha shir , we have as when Sakshi and Sindhu win medals for India at the Olympics, whenever Saina soars. And when Dilip Tirkey, the great hockey champ and an MP, sets about organising a tribal village hockey tournament for villagers from Odisha, Jharkhand and Chhattisgarh and says : “The region should develop as a cradle of hockey instead of a nursery for Maoists. The youth of the region should pick up hockey sticks instead of guns.” My shir is uchcho when I read that. Also when Uday Kumar designs the fantastic font of the Indian rupee, combining the Roman R with the Nagari Ra , the Dollar-Pound-Yen double dashes drawn across it. And when an academic of the distinction of Nayanjot Lahiri is awarded, for her magnificent work on Ashoka , the American Historical Association’s Richards Prize for the best book in South Asian history. An uchcho shir is only natural when these wonderful things happen.

But as to bhoy – Boy, O Boy! The Indian mind is not bhoy-shunno ; it is bhoy-purno today. Just consider how cloven we are. A Kashmiri Pandit in the Valley, in his own home, knows bhoy, a Kashmiri Muslim in Jammu is in khauf, a Naga in Manipur, a Manipuri in Manipur itself, is in fear. And when the Cauvery fever climbs, Kannadigas in Chennai and Tamilians in Bengaluru are in fear, real fear. Karnataka number plates vanish from Chennai roads, TN plates from Karnataka. Dalits in Bihar have been in bhoy of organisations like the Ranvir Sena, since they can remember. Senas are a factor in Indian life, political, social, cultural. What music one may hear, who may or may not act in films are all subjects of Senaic preoccupation in Mumbai and in Mangalore. To them may be added the devotional fervour of an earnest group called the Hindu Sena which organised a yajna at Jantar Mantar some weeks ago for Donald Trump’s victory. Our one and only official Sena, our Army , of which we are all justly proud, with the Navy and the Sir Force is needed to protect us from external aggression, to defend us. Who are the other non-official Senas guarding ? Who are they fighting ? India versus India is all one can say, by way of answer.

Being in a minority in India is not an ethnic condition as much as it is a circumstantial state. You can be in a majority one moment, in a minority the next, You can be in a majority in the bus terminus, in a minority in the bus. You can be an Indian while boarding a train, and can become a Hindu or a Muslim on the journey in one moment if your phone or your radio gives a certain type of news during the journey. You carry your minorityism in you, you carry your bhoy in you. A divisive India, a suspicious India, a fearful India is in potentiality always, and in reality often, pitted against a diverse India, the India that trusts, helps, supports. There, India becomes its own adversary, India versus India. Acharya Kripalani said famously once and I quote from memory : ‘Gandhi ne ek badi ghalati kari. Usne hamein sikhaya ki bairiyon se kaise dosti karein. Usne yah nahin sikhaya ki apnon se kaise dosti karein’.

Partition re-drew India’s map. Polarization is re-drawing India’s mind. Extremists on both sides of the Hindu-Muslim divide are at it, vigorously. India versus India is nowhere more visible today than in the recent re-invoking of the demand for a Uniform Civil Code. At a public meeting in Chennai yesterday, Dr Faizan Mustafa, Vice Chancellor of the NALSAR Law University in Hyderabad reminded his audience that those organisations asking for a common civil code now are the same or descended from the ones that had vigorously opposed the Hindu Code Bill in 1949. Protecting certain customs and practices in Hindu society but wanting those in Muslim society to be done away with, is a contradiction that the ‘uniformists’ must address. The surge in the Hindu right of compassion for Muslim women would have sounded less unconvincing had it been accompanied by a simultaneous concern for gender rights in India as a whole. The Indian state and the ruling party at the centre should be uniform about reform. Equal representation should be a call along with uniform laws. Are Muslims represented anywhere near their proportion to their population in our Parliament, our Assemblies, in the bureaucracy, police and judiciary ? Whether they are Hindu or Muslim or whatever, opponents of triple talaq should also oppose the obscuring of Muslims from the Indian polity, Indian society.

And here it needs to be said Muslim responses to the uniform civil code idea’s revival will be greatly strengthened if Muslim opinion acknowledges, in all fairness and objectivity, that in the matter of post-divorce maintenance and security, a great deal of improvement within the Muslim fold is indeed overdue. Likewise, Muslim aspirations for equal opportunities in the Indian polity and in its social and economic organisations need to be paralleled in the Muslim community’s eagerness to end the huge disparities in itself. The rich-poor divide in India’s Muslim population, the gulf between the Persian-Arabic-Urdu speaking Muslims and , for instance, the Tamil or Malayalam speaking Muslims is phenomenal. And in action taken against terror suspects it is the poor Muslim who has to prove innocence first. Reform is needed in each section of society and in every generation.

If the swagger of dharmagurus in Hindu India more than meets its match anywhere it is in the disproportionate hold of Islamic clerics in the life of the Muslim population. The grip of religious leaders on the thoughts and fears, suspicions and frictions of ordinary Indian of all denominations is increasing and threatens to widen divides and deepen obscurantism, superstition, bigotry and patriarchy.

The illiberal majority’s minority baiting must not be matched by illiberal minority silence or inaction in areas where reform is due. Homogenising diversity is not a step in equality ; it is a design in domination. Equally, keeping much-needed reform out is not a step in minority self-protection ; it is a sign of regressive self-isolation. Freedom and evolution go together. India is versus India when one Indian community bullies another Indian community into conformity or submission. India is versus India when one Indian community bullies its own constituents into conformity or submission.

In the ethnic enervations of India, the most important contestations of India get overlooked. These concern the individual indian. Dr Ambedkar envisaged the individual as the basic unit of the Indian polity, not the village or the panchayat. He saw in India every Indian, and in every Indian, India. Can an individual sue himself or herself ? Can India really be versus India ? India has shown it can. In matter after matter , Indians have demanded and got relief from India. And yet they have not got their due.

The individual citizen has been accorded dignity in Shreya Singhal, where the Supreme Court struck down Section 66A of the Information Technology Act which was going to invade privacy, in NALSA where the court recognised transgender people as a third gender; and in Novartis where on an appeal from a judgment of the Madras High Court, the court struck down a patent granted to Novartis over a cancer drug. If the Indian is India then that India has won in these cases over the India which diminishes the individual.

The Courts however are as fallible as any human institution and I would be failing in my duty to the veracity of Justice Tarkunde if I did not place on record my disappointment over some other orders in which the Indian who is India has been disregarded. In Bombay Dyeing v. Bombay Environmental Action Group , for instance, a PIL filed by the Bombay Environmental Action Group (Bombay Dyeing appealed to the Supreme Court) the judgment had the effect of depriving several Mumbai residents access to parks and recreational spaces.

India’s ecological integrity does not seem to be a worry to most politicians, entrepreneurs, administrator. The networking of rivers is a matter in which I had hoped our Courts would see what is clear, namely, that rivers are not just streams but a whole set of inter-dependent and unique natural properties which need to be conserved, not an un-explored grid that needs to be architected. Here , the court issued a mandamus to the Central government to link India’s rivers, at the potential cost, as Shyam Divan has pointed out, to India’s ecological integrity. India versus India could not have found a more powerful negative example than in this order.

India is exploited, misused, disfigured by India. Our tobacco, guthka, plastic and construction lobbies seem to enjoy an indemnity unheard of anywhere else in the world. All of them strike at the heart of life. The sources of our breath, of the water we drink and give to our children to drink contain either their products or their effluents or their debris or all of them. We are breathing toxins, drinking the most harmful substances that can be imagined. As Chennai which choked on its own real estate jungle knows from last year’s experience, we are being sucked into our own chortling sewers. Nowhere is India its own enemy as in its losing battle against the despoliation of its physical environment.

We need chastising. We are all, because of not doing enough, not doing it in time, sinning against our own children and grand children. India is cannibalising itself. Who will file a PIL for India’s natural resources ? Will India sue itself?

First Published: Nov 21, 2016 17:15 IST