Sixty-four years after achieving freedom at midnight, India is a story of contrasts. Three eminent writers give their perspectives on where we stand as a nation today…

A fractured freedom

Democracy in our country seems to work only for some. For those who have been left out of the growth story, freedom is still an unfinished business.

HARSH MANDER

In six decades of freedom, India has substantially pushed into the fading memories of history many of the ravages of centuries of colonial rule. Famines are vanquished; India grows most of its own food needs; its cities glitter; graduates from its universities are welcomed the world over; its youthful consuming middle classes attract investment from distant corners of the globe; and its corporate giants stalk the world economy. Its flawed but still robust democracy endures and deepens; and its people organise themselves around myriad causes for resistance and caring, in tens of thousands of sites, which fuel hope and change.

And yet — in vast stretches of this antique teeming land — darkness, unfreedoms and despair persist. On farm-lands, sweat-shops, brick kilns and mines, men, women and children are compelled to toil long hours for dirt wages, often thousands of kilometres from their homes. Even as governments continue in denial, millions work without the freedom to leave oppressive employers, only because they are bonded to them for the loan that helped them survive illness and starvation. Many remain years in debt bondage for a small loan which never can be repaid, because interest rates are 5 to 10 per cent every month compound. Globalised industries have extinguished the livelihoods of masses of small producers — artisans, weavers, tailors, street vendors, farm and fish workers, who are left behind to survive in penury.

Millions of persons are forced into degrading, low-paid work, cleaning human waste or disposing corpses, only because of their birth in disadvantaged castes. They are barred from drawing water from common taps or hand-pumps, or from drinking tea from the same cups as other people. None will eat from their hands; and any hint of assertion is crushed with brutal violence. Even in schools, dalit children are seated and fed separately.

Girls and women often suffer cruelty and deprivation even in the intimate spaces of their families. Wealthy and educated people use modern technologies to efficiently eliminate them, even before they are born. They toil harder, but often eat least and last, and are denied their rights to inheritance, schooling, healthcare and recreation. Their fate is even bleaker if they are single — widowed, deserted, divorced, unmarried — they are stigmatised or harassed even as they struggle for dignified and self-reliant survival.

Indigenous communities have been driven out of their forest homelands; dispossessed of their agricultural lands; crushed by usury; displaced and uprooted by mines, industry and dams; their delicate, humane cultures trivialised; their spirit broken.

Threats to pluralism

Persons of minority faiths have learnt to live as ‘children of a lesser god' — in life-long fear of attack because of their religious identity; of profiling as terrorists or criminals; of facing daily discrimination and distrust when they look for a house or employment; their ghettoes denied public services like drinking water and education.

And then there is the ferment of zones of conflict, in the nation's north-western and north-eastern peripheries, as much as in the central forested heartlands. Here people have taken up arms against the state, for diverse claims of self-determination, ethnic assertion and a more egalitarian society. In these regions, generations have learned to live among uniformed men brandishing arms to coerce them into submission; to survive check-posts and violent home searches; forced disappearances and extra-judicial killings; incarceration and torture. Here the state is in undeclared civil war against its own people; and it often arms renegade civilian groups to lawlessly fight their own communities.

The country's prisons are crowded with people too poor to afford lawyers, charged often with petty crimes, for which the maximum punishment if their crime was to be proved is less than the time they are forced to spend trapped behind jail walls. Beggars' homes incarcerate destitute people for the ‘crime' of being destitute, sometimes for three or even 10 years. Children who have no adult to take care of them are locked for their entire childhoods in loveless and brutalised state institutions. State institutions also incarcerate the differently-abled, the mentally slow, and the emotionally disturbed.

Forgotten

In the shadows of city lights, children, women and men sleep on pavements and under over-bridges, surviving by picking rags, pulling rickshaws or daily wage labour. Children spend their days in waste dumps, roadside eateries or factories instead of in schools and playfields. People pushed out by drought, hunger, caste oppression and unemployment, crowd the city shanties, because we do not plan cities to include the poor, but we cannot survive a day without their cheap labour.

Freedom remains fractured and bitterly contested in this land. Democracy works only for some, who thrive in its liberties, security and choice. Others are condemned to life-sentences variously of hunger, homeless, stigma, fear, penury and neglect. The exiles from India's secular democracy are masses of indigent children, women and men. They survive, persevere, hope, resist and sometimes overcome, not because of but despite India's Constitutional safeguards, its glittering growth story, and its powerful state.

Governments today no longer believe that their responsibility is primarily to protect and uphold the freedoms of the disadvantaged. It is instead to facilitate markets, hoping that these will produce wealth and jobs, and one day — we do not know how many generations later — the millions who are left out will walk free and prosperous.

Long decades ago, the people of India gave to themselves a Constitution which promised people liberty and sovereignty. But the business of freedom remains unfinished. There is not one but hundreds of freedom struggles yet to be waged, and still countless more to be won.

Midnight’s Children of the Supreme Court

As the only the institution that enjoys public trust, the Supreme Court these days acts more like a de facto legislature. But there are several institutional constraints ahead if it continues in this path of judicial activism, says VIKRAM RAGHAVAN.

Six judges on our Supreme Court, including the Chief Justice, were born in 1947. Their other colleagues’ birthdays, with two exceptions, also occur in the late 1940s. Thus, the Court now consists almost entirely of “Midnight’s Children”. They belong to our very own “boomer generation,” which was born into freedom’s euphoria and attained political maturity during the turbulent 1970s. Like Rushdie’s protagonist Saleem Sinai, their professional lives and personal destinies have been “indissolubly chained” to their chronological cohort: independent India.

Now, at the height of their careers, the justices among this unique peer group are dominating the news. Over the past year, they have doggedly supervised an unprecedented corruption investigation; ended Salwa Judum’s reign of terror; struck down the vigilance commissioner’s dubious appointment; voided illegal land acquisition and banned unlawful mining; and relentlessly pursued black money.

Behind the activism

What explains this judicial hyperactivity? Is it a post-colonial generation’s intense frustration with their country’s sorry state-of-affairs? This was possibly why the Court apologised last year for its failure to enforce civil liberties during the Emergency. But the Court’s outspokenness cannot be explained by demographics. Nor is it a symptom of what the Home Minister believes to be institutional old-age stress. Rather, the Court’s recent rulings reflect a broader trend of judicial assertiveness that began in the early 1980s.

Our Republic’s founders are partly to blame for the Court’s behaviour. They established a constitutional framework that endows the justices with wide jurisdiction and extraordinary powers. Under that framework, citizens may directly approach the Court in fundamental rights cases bypassing the regular judicial hierarchy. The Court’s assertiveness is also due to its questionable assumption that the Indian Constitution only separates functions, not powers, among the three governmental branches. In other words, there are no watertight divisions of responsibility among the executive, judiciary, and legislature. Since no one seriously contested this reasoning, the Court relied on it to gradually widen its influence over policy-making. It did so even while fighting off attempts by other branches to curtail its jurisdiction.

The Court’s authority and legitimacy increased substantially in the late 1990s given the turmoil caused by short-lived coalition governments. But the return of relative political stability has not diminished the judiciary’s control over key aspects of governance. In fact, the political class now actively facilitates the Court’s “mission creep.” With most legislatures in near-total paralysis, many political issues are litigated before courts of law. Party spokespersons are among the first to comment on judgments, which they frequently spin to embarrass opponents. Moreover, despite the government’s misgivings over judicial activism, its lawyers are understandably reluctant to take on the Court. After all, as Ashish Nandy argues, the Court now commands immense public trust without any charismatic political figures to challenge its record.

Prominent role

Three decades of public interest litigation have transformed the Court into a national legal and policy clearing house. Every day, it hears arguments on a wide range of complex questions with significant economic, social, and human development implications. In most cases, the justices can only offer Solomonic solutions. Even so, a large number of Indians are convinced that the Court is an effective decision-maker compared to our dysfunctional legislators and politically cautious executive. The Court’s perceived efficiency is largely due to its numerous interim orders and oral observations. Descending like confetti, they are promptly and uncritically reported by an intensely loyal and obliging media.

Due to its prolificacy, the Court’s printed decisions now occupy 13 volumes every year. Its annual output is greater than the statutes enacted by Parliament and several state legislatures taken together. To be sure, the Court discharges its traditional adjudicatory function in most cases. Yet, in a rising number of matters, the Court acts more as a de-facto legislature or super-administrator, as it did when issuing sweeping guidelines to regulate passive euthanasia.

The Court faces severe institutional constraints if it continues on its present course. These constraints won’t disappear by simply increasing the number of judges. Rather, the Court must be a lot more selective about the cases and issues it chooses to address. It must also consider relying more on other institutions, like the Election Commission, with a proven record of independence and integrity. The Court also needs to urgently reform its opaque appointments process and institute credible arrangements to handle judicial corruption cases.

Changing roles

More importantly, the Court must urgently reshape its jurisprudence to rapidly changing political and social conditions. For instance, since liberalisation began in 1991, the Court has largely refrained from questioning key economic policy and regulatory decisions. But, with increasing instances of rent seeking and regulatory capture, the justices must abandon this reticence.

In the coming months, the Court will determine the Naz appeal. Its decision could become the defining civil-rights moment of our time, as it will impact millions of ordinary lives. In Salwa Judum, the Court ended its practice of largely ignoring human rights violations in conflict situations. Yet, if that judgment’s lofty rhetoric is taken to its logical conclusion, the judges must halt the widespread misuse of preventive detention and national security laws, which they have consistently upheld. The Court must also curb the use of defamation and contempt complaints that seriously affect free speech and expression.

In addressing these challenges, our judges will require more than the magical powers that they, as Midnight’s Children, apparently possess. At stake are their authority and legitimacy as the final, and therefore infallible, arbiters of both law and justice.

Vikram Raghavan is Contributing Administrator, Law and Other Things, a blog about Indian constitutional law and governance.

Governance and accountability

The lack of an authentic will to make things better seems to come in between our ministers and responsible governance…

ABIR PHUKAN

As we are about to complete another year of independence from British rule, we realise how dependent we are on the instincts, on the determination and on the concern of the people we elect to represent us in the Government and in the Opposition.

When a coalition Government comes to power, people wonder whether such a Government will last its term. Till now, the electorate assumed safely that if the Government remains stable, the cabinet also will remain stable. But certain assumptions do not appear to be safe anymore. It is just a matter of time before they would be more worried about a stable cabinet than a stable Government in the Parliament. It is fast becoming a trend amongst Ministers to resign for the wrong reasons. They resign because they are sent to jail or because their conduct in a previous ministry is an embarrassment for the Government. At times they simply decide not to show up for taking oath.

If we look at our early years, we may feel that there was a time when Ministers owned responsibility when they failed to perform. Lal Bahadur Shastri, the Minister of Railways and Transport in the Central Cabinet from 1951 to 1956, offered to resign in 1956 when a train accident in Mahbubnagar, Andhra Pradesh caused 112 deaths. Pt. Nehru did not accept his resignation. Three months later when another train accident in Ariyalur, Tamil Nadu caused 144 deaths, Mr. Shastri again resigned, accepting moral and constitutional responsibility. Pt. Nehru stated in Parliament that he accepted the resignation because it would set an example in constitutional propriety and not because Mr. Shastri was in any way responsible for the accidents.

Recently, on July 10, 2011, two trains met with accidents. One was the Kalka Mail which derailed at Fatehpur, Uttar Pradesh and the other was the Guwahati-Puri Express which derailed after a blast at Rangiya, Assam. While Kalka Mail left 67 dead and about 250 injured, Guwahati-Puri Express left at least 100 injured. On a day when two train accidents created a lot of news and during a time when the Railway Ministry itself is facing a severe financial crisis, the absence of a full-fledged cabinet minister to accept responsibility probably saved some embarrassment for our present Government. However, being in charge of Railways, our Prime Minister asked a Minister of State for Railways to visit the site of the train blast in Assam. Our Minister, reportedly, not only refused to visit the site but told the media that the Prime Minister is the Minister for Railways and besides there was no point visiting the site as the track had been cleared.

The Prime Minister is a Rajya Sabha Member from Guwahati and has represented Assam in the Upper House for four consecutive terms since 1991.

There was also a time when, instead of attacking the “communalist forces” and being on a constant high on “secularism”, our leaders used to make efforts to unite the nation as a whole. The Hindu dated of July 14, 2011 in its column “This Day that Age” referred to an article published in its edition of July 14, 1961 about a conference on ways to promote national integrity and secularism. Asking all Chief Ministers to give “highest importance” to the matter, Pt. Nehru asked them to study the problem in their respective states and give suggestions to eradicate communalism and promote integration. A National Integration Conference was held in September 1961 which was convened by Nehru. What was visible then was a clear will in our leaders to create a better society for the citizens, a better place to live.

Coming back to the recent past, two days after a reshuffle of our cabinet (perhaps to set things right), three blasts in Mumbai within a span of 10 minutes killed 17 people and injured 131. Mumbai has been the target of serial terror attacks in 1993, 2002, 2006, 2008, 2009 and now on July 13, 2011. Nothing, in so far as the previous attacks are concerned, have reached any logical conclusion. Some who are suspected are yet to be arrested, some who are arrested are yet to be charged, some who are charged are yet to be convicted and those who are convicted are yet to be taken to the gallows.

Sad state of affairs

As if we expected something different, our Home Minister tells us that there was no intelligence input on the attacks. You may interpret this as an intelligence failure or as insufficient warning by the terrorists. The Home Minister also claims our security measures have improved since 26/11 and the terrorists have struck after 31 months. Isn’t it remarkable? Thirty-one months and not a single blast in Mumbai. One is compelled to think that security measures having improved, terrorists must have had a lot of difficulty in choosing their targets. Well, no. They targeted Zaveri Bazar for the third time and Dadar for the second time. Besides, look at the help that the victims got. Some of the injured were lucky to get rides to hospitals on the back of a truck or on motorcycles. Meanwhile, the Chief Minister was unable to reach the top police officers of the State for 15 minutes.

It took America a decade to get hold of Bin Laden, the alleged mastermind of the deadly 9/11 attacks. Amongst other measures that they took, reportedly, CIA recruited a doctor, who, while pretending to give vaccinations for Hepatitis B in Abbottabad where Laden was staying, made a nurse visit Laden’s house to collect DNA samples from his family so that it could be compared with the sample of Laden’s sister who died in Boston in 2010. Though it is not confirmed whether the Doctor succeeded in getting the DNA sample we saw the strong reaction of a nation to a terror attack. It is certainly too much to expect India to go after the enemy with such precision. But is it not time we reacted in a way to ensure that the enemy does not keep coming after us with such precision and ease?

Notwithstanding the repeated failures of the Government to prevent bomb blasts, our leaders, without fail, after every blast in Mumbai, praise the spirit of Mumbaikars in getting on with life. What it is that impresses the leaders so much in watching Mumbaikars get on with their lives is very puzzling. What is so unnatural about it? Are they expected to remain indoors for a while and mourn and grieve and not go to work? Many cities in Pakistan, Iraq and other countries are routinely bombed. Even people in such places get on with their lives. Everyone who is keen on living must get on with life. And every Government which is keen on fighting terror must act.

Abir Phukan is an Advocate, Supreme Court of India.