ALARMING SPIKE IN LEGAL ACTIONS AGAINST JOURNALISTS AND MEDIA IN INDIA

Among the grounds on which exceptions could be made to the free speech right in India, are the security of the state, the territorial integrity of the nation, public order and decency, contempt of court and rather implausibly, friendly relations with a foreign state. As originally adopted, the Indian Constitution guaranteed free speech as an unfettered right. But the various grounds on which “reasonable restrictions” could be imposed were introduced through the first amendment, each with its own specific history.

Right through India’s history though, vigilante action has been the more serious threat to free speech, rather than State action or the legal process. Where state agencies act against free speech, they often do so without appropriate judicial sanction, or under the cloak of special laws enacted to deal with supposedly extraordinary threats to national security.

This has resulted, in concert with judicial infirmities, in a failure to evolve consistent standards in the application of “reasonable restrictions” on free speech. Vigilante actions against journalists and the media have gone by and large unpunished, so that a culture of impunity exists.

Judicial precedents exist, though they are far from being consistently applied, for assessing the legality of restraints on free speech on five specific grounds: sedition, defamation, contempt of court, official secrets and hate speech.

As a collective body, journalists are most under threat in the regions of endemic conflict, such as Kashmir, the North-Eastern states, and the Maoist-insurgency areas in the central forested plains of India.(1)

In recent times, these threats have been manifest in the May 2011 advisory sent out to all media organisations in the North-Eastern Indian state of Manipur, warning against the publication or broadcast of material “directly or indirectly in support of the unlawful/ illegal activities of various organisations”.(2)

The multiple pressures that journalists in Manipur face have led to four mass closures of the press in the last two years. The most recent such protest came in January this year, after the arrest of an editor in the state capital of Imphal, in what appeared to be a police “sting” operation.(3) Just a few months before, threats and counter-threats from rival underground factions had compelled Manipur's newspapers to shut down for three days in protest at the increasingly insecure environment for journalists.(4)

Laxman Choudhary, a reporter for the daily Sambad in the eastern Indian state of Orissa, was arrested on 21 September 2009 on charges of “waging war against the state”. This followed the discovery of a parcel of Maoist literature addressed to him, in the possession of a bus conductor in the hill district of Gajapati in the state. Media reports in Orissa indicated that Choudhary was a popular figure in his home district and had acquired a reputation for exposing police corruption. Orissa’s chief minister was on record within a week of Choudhary’s arrest, sharply criticising the effort to muzzle the press. Yet it was not until 4 December that Choudhary was released on bail, ordered by the High Court of Orissa. He continues to face charges of sedition.(5)

The neighbouring state of Chattisgarh, where the southern districts have been enveloped in the Maoist insurgency since long, has been a challenging terrain for journalists. Journalists here are often threatened, restrained from reporting on major security operations and work under constant threat of legal action under a draconian anti-insurgency law enacted in 2005.(6)

Sedition charges

There have been cases of the use of sedition laws against journalists even in regions where no perceptible threat of insurgent violence exists. The law concerned in all these matters – section 124A of the Indian Penal Code – was in a significant ruling in 1958 by the Allahabad High Court (in the northern Indian state of Uttar Pradesh) held violative of the fundamental rights provisions of the Indian Constitution. Since then, however, the Supreme Court, taking on this case in appeal with a number of others with similar scope, held that section 124A was indeed lawful, though only when invoked to deal with imminent threats to peace and public order. Any wider definition, the country’s highest court held, which made legitimate criticism of governance processes a criminal offence, would be violative of the fundamental rights as guaranteed by the Constitution.(7)

Despite this firmly established judicial position, police and other agencies in India have been using the law on sedition with seeming lack of discrimination -- actions taken with the knowledge that the cases involved will never go through the full process of trial, but would serve the expedient function of silencing critical commentary by the media.

In June 2008, the commissioner of police in the city of Ahmedabad, in the western state of Gujarat, brought charges of sedition and criminal conspiracy against two journalists and India’s largest English newspaper, the Times of India.

The criminal complaint lodged by O.P. Mathur named Bharat Desai, resident editor of the Ahmedabad edition of the Times, and Prashant Dayal, a reporter with the same newspaper. This followed a series of reports between May 28 and 31 in the Ahmedabad edition of the Times, noting serious complaints against Mathur and indicating that the inconclusive inquiries that had followed, made him ineligible for the top police post in the city. The two journalists and the publisher of the Ahmedabad edition of the Times were granted bail pending the full hearing of the case.(8) Though the case has since lapsed into a zone of neglect, it has by no means been dropped.

K.K. Shahina, a reporter with the weekly news magazine Tehelka, was charged with criminal conspiracy to intimidate witnesses, after a story of hers appeared to cast doubt at the prosecution of a prominent Islamic cleric and political figure on terrorism charges in December 2010.

Shahina’s story appeared in an issue of the campaigning journal and website Tehelka in December 2010. It was based on interviews with key witnesses cited in the case made by police in Karnataka state in southern India against Abdul Nasar Mahdani, an Islamic cleric who heads the Peoples’ Democratic Party, active mainly in the neighbouring state of Kerala. Mahdani has been arrested and charged by Karnataka police for conspiracy to detonate a series of low-intensity bomb blasts in the state capital city of Bengaluru, hub of India’s information technology industry, in July 2008.

Shahina’s story cited several of the witnesses named by the Karnataka police as saying that their testimony has been misinterpreted or distorted in making out the charges against Mahdani.

A fine example of investigative reporting in short, was transformed into the basis for criminal prosecution against the journalist who had done the hard work to bring this abuse of power to light.(9)

Security agencies including the police, tend to be more lenient in cases involving the larger and better organised among India’s media organisations. The same cannot be said for the many small publications that take up civil rights issues, especially where they involve the Adivasi population (i.e., India’s indigenous communities) and the Dalits, (i.e., those traditionally disadvantaged by the country’s elaborate caste hierarchy).

On 2 January this year, police in the state of Maharashtra arrested Sudhir Dhawale, in the eastern district of Wardha. Dhawale had visited the neighbouring district of Gondia to attend a convention on Adivasi and Dalit literature. He was on his way back to his home in the state capital of Mumbai, when he was arrested at the Wardha railway station.(10)

Dhawale, editor of a magazine of dissenting opinion titled Vidrohi, and a freelance contributor to numerous other publications, was booked under provisions of the law dealing with sedition and waging war against the State. According to police accounts, the basis for his arrest was the interrogation of a purported leader of the banned Communist Party of India (Maoist), taken into custody a few days prior.

Two other cases of journalists being charged with sedition and related offences in recent times need to be taken into account:
• Lenin Kumar, the editor of a quarterly magazine Nishan, was arrested in December 2008 in Bhubaneswar, state capital of Orissa, after his book “Dharma Nare Kandhamalare Raktara Banya” (Kandhamal’s River of Blood in the Name of Religion) was published. An account of the persecution and terror faced by the state’s Adivasi and Dalit christians, the publication was held to be provocative and intended to disturb the peace;
• E. Rati Rao, the Vice-President of a civil society organisation, People's Union for Civil Liberties in the state of Karnataka, was issued a sedition notice on 26 February 2010 by the police for bringing out an in-house bulletin in the local language. Though the publication of the bulletin, meant for circulation among PUCL members and activists, was discontinued in September 2007, the police found some critical articles about extra-judicial killings published in earlier issues to be sufficient basis to prosecute for sedition.

Defamation

In June this year, the Indian Institute of Planning and Management (IIPM) based in Delhi, filed suit against Caravan, a monthly magazine of political and cultural commentary, for the sum of INR 500 million.(11) Headed by an individual named Arindam Chaudhuri, the IIPM is an establishment that conducts training programmes and a graduate course in business management. It has a high-profile media presence since it has an annual advertising budget estimated at INR 300 million, probably the highest among all educational institutions in India. But there has been widespread public scepticism over the quality of its academic courses.

Caravan had in its February 2011 issue, featured an article titled “Sweet Smell of Success: How Arindam Chaudhuri Made a Fortune Off the Aspirations — and Insecurities — of India’s Middle Classes”. The article was a substantive pre-publication excerpt from a book by U.S.-based journalist Siddhartha Deb, due for publication in July 2011. The IIPM lawsuit names the author, the publisher Penguin Books India and the internet search portal Google India as respondents, other than Caravan, accusing them of “grave harrassment and injury”.

The lawsuit was filed not in Delhi, where both the IIPM and Caravan are based, but in Silchar town in the north-eastern state of Assam, over 2000 kilometres away. IIPM was the second petitioner, the first being a Silchar businessman known to be associated with the institute as a recruiter.

At the first hearing of the case, the civil court in Silchar granted the IIPM a preliminary injunction, enjoining Caravan to remove the impugned article from its website. This decree was issued ex parte, without any pre-hearing notice to the magazine. The article has since failed to turn up in search operations conducted through the Google portal.

This case study vividly illustrates the syndrome that the legal scholar and senior Supreme Court counsel Rajeev Dhavan has highlighted: that “in most civil defamation cases, the real mischief takes place right at the beginning … when injunctions are freely granted to prevent the publication or dissemination of an existing or proposed publication”.(12)

India continues to treat defamation as a criminal offence. A recent case is that of T.P. Nandakumar, a magazine editor in the southern Indian state of Kerala, taken into custody on 3 July 2010, following a complaint lodged by an Indian businessman resident in the Gulf emirate of Abu Dhabi. He was released on bail the following day.

Nandakumar, who edits a weekly magazine called Crime, was under court injunction not to publish any material on the complainant. His arrest followed the posting of an article pertaining to the same individual on the magazine website.

Crime magazine has earned a wide readership in recent years by carrying a number of stories with significant political impact. A story that it featured on the Minister for Education and Culture in the state, led to libel action under applicable civil law.

Media leaders in India have long argued the case for decriminalising the offence of defamation. In a 1995 ruling, the Supreme Court declined to order prior restraint on a magazine’s right to publish a convicted serial killer’s memoirs, despite urgent pleadings by a number of top officials.(13) Prison officials in the city of Chennai in the southern state of Tamil Nadu argued that the memoirs if authentic, were written in violation of rules and their publication would hence be illegal. If inauthentic, then the purported memoirs constituted a serious violation of the right to privacy of the convict. They pleaded that there was also a clear intent in the purported memoirs to defame top police and prison officials in the state.

Without examining the question of the authenticity of the memoirs, the court ruled in this case – popularly known as the “Auto Shanker case” -- that the right to privacy was necessarily subject to certain limitations where compelling public interest was involved. Since several supposedly private details of the individual’s life had already emerged in the public domain as a consequence of his trial for murder, a memoir that provided a different perspective on known facts could not be deemed a violation of privacy. No individual had the authority to stop another from recording his or her account of any sequence of events. And public officials could not argue the case for prior restraint on the grounds that their image and reputation would be damaged by the revelations of a convicted criminal. Adequate remedies, if required, would be available to them post facto.

In April 2003 and the following month, J. Jayalalitha, the chief minister of the state of Tamil Nadu, filed a series of criminal defamation cases against The Hindu, a venerable English-language newspaper publishing from the state capital of Chennai (formerly Madras) since 1878. An intent to intimidate and silence was evident. Though the count is still a little confused since the lawsuits were filed in precipitate haste and with little regard for precision or legal logic, it is estimated that upto 17 defamation cases were launched against The Hindu in the matter of a few days.

The Hindu went through a top editorial change in June 2003, but seemingly to keep the pressure on, the Tamil Nadu legislative assembly in November that year ordered the jailing of five among the newspaper’s top editorial functionaries for 15 days, on accusations of a breach of privilege of the house. Articles published in the newspaper, allegedly, brought the legislative assembly into “contempt” and "cast a slur on the chief minister's actions.”

This particular arrest order was halted by the Supreme Court soon afterwards. The defamation cases though, remained. In December, The Hindu filed suit in the Supreme Court, arguing that criminal defamation was an outdated concept, fundamentally opposed to the right to free speech guaranteed by article 19 of the Indian Constitution.(14)

This was an opportunity for an authoritative judicial determination on the application of criminal law in matters involving the purported offence of defamation. But as in several other instances when basic questions are required to be sorted out in judicial deliberations, this opportunity was lost. Jayalalitha in May 2004, following general elections in the state which led to her losing power, announced her decision to withdraw all cases against the media, including those against The Hindu. In September 2004, the government of Tamil Nadu state, now under a different leadership, filed an affidavit in the Supreme Court, with full documentary assurance that the 125 defamation cases filed against newspapers and magazines – including The Hindu – had been withdrawn from the court of the Sessions Judge, Chennai and the Madras High Court.(15)

Exceptions are available under the criminal law of defamation on grounds of “public interest” and “good faith”. The scope of these legal provisions and their application in specific cases though, remain under-explored. Inconsistency of principle among the main actors – from government officials to the judiciary to the owners and top managers among India’s media – is clearly a major obstacle to free speech being accepted as an inviolable right that all citizens enjoy.

Official Secrets Act

On May 17 this year, Tarakant Dwivedi, alias Akela, a reporter with Mumbai city’s top-selling morning tabloid, Midday, was arrested under India’s Official Secrets Act, after he reported on poor security conditions in the western metropolis’ main railway terminus.(16)

The Chhatrapati Shivaji Terminus (or CST, referred to in common local parlance as VT), is a hub of both suburban and long-distance railway traffic, and was among the first targets to be hit in the terrorist attack on Mumbai that began on 26 November 2008. Soon afterwards, the Government Railway Police (GRP), which is tasked with maintaining security at all major facilities of the Indian Railways, procured an array of sophisticated weaponry to deal with future contingencies involving terrorist attacks. On 28 June 2010, the daily Mumbai Mirror newspaper published a report under Akela’s byline, headlined “Leaks in CST armoury put new anti-terror arms under threat”. The report documented how newly procured equipment was being stored in a room with a leaky roof, making their efficacy in an emergency situation highly questionable.

Akela’s arrest, itself conducted under highly suspicious circumstances, is believed to have been direct retribution for this reporting.

Iftikhar Gilani, the bureau chief in Delhi for the Kashmir Times, a newspaper published from Jammu, the winter capital of the state of Jammu and Kashmir, was arrested in June 2002 and charged with serious violations of the Official Secrets Act. Documents found in his possession, that constituted the basis of the charge, were all freely available through various websites dealing with defence and strategic issues. Gilani was detained for seven months and subject to severe torture and mistreatment. This was seen to be a direct retribution for the political activities of his father-in-law, Syed Ali Shah Gilani, who is the leader of the pro-Pakistan political coalition in Kashmir. Iftikhar Gilani himself, is believed to have little to do with active politics. He was eventually released from imprisonment in January 2003.(17)

Hate speech

In a column published in 2006, Anish Trivedi, argued that the dismal performance of many of India’s institutions of governance was a consequence of the policy of affirmative action, which assured disadvantaged communities representation in the staffing of all these institutions. Mumbai city police soon afterwards took up the prosecution of this matter on the basis of a complaint received from aggrieved private citizens. On 28 January this year, a trial court in Mumbai sentenced Trivedi to a six-month term of imprisonment and a fine of INR 25,000.

Trivedi had, even before the formal institution of charges, apologised unconditionally in the same columns where his comment appeared and retracted all the observations made.(18)

The editor and two reporters of Andhra Jyoti, a Telugu-language daily published from Hyderabad and various other cities of Andhra Pradesh state in India, were arrested in June 2009, under a law preventing insults to the dignity of people of lower ritual status in the Indian caste hierarchy. K. Srinivas, the editor of the daily, and two reporters, Kumar Vamshi and N. Srinivas, were picked up from their office by the police, who had no warrant and merely said that they had evidence of an offence under the concerned law.

A few days before, the office of the Andhra Jyoti in Hyderabad and two other cities of Andhra Pradesh, had been attacked by activists of a community-based organisation. The attack, which caused serious injuries to staff members and extensive damage to property, was ostensibly in retaliation for an editorial in the newspaper that criticised the organisation’s leader over his political stances.

Reliable observers then averred that even if the editorial was critical of the individual, there was nothing in it that could be construed as an insult to the community. Following this incident, employees of Andhra Jyoti were joined by various journalists’ unions in a protest demonstration to demand action against those responsible for the attack. The complaint that formed the basis for the arrest of the three journalists arose from certain acts that allegedly took place during this demonstration. An effigy of the organisation’s leader was beaten with shoes by the demonstrators, and later set on fire.

The three journalists were released on bail after a day in detention. Their case, like several others of a similar nature, remains undecided so far.(19)

Aside from a specific law that protects those of low ritual status in India’s caste hierarchy (the Dalits) and indigenous communities (Adivasis) from insult in spoken, written and printed word, the offence of hate speech is covered under article 153A of the Indian Penal Code. There have been few authoritative determinations of the application of this law in matters involving the media. In the case of M.F. Husain, the celebrated painter forced into exile after his canvases representing various figures from the Hindu religious pantheon drew a spate of lawsuits by organised political forces, the Delhi High Court has ruled that intent to cause offence is a key test. The May 2008 judgment by a single-judge bench of the Delhi High Court held that no such intent was manifest in the impugned canvases.

Unfortunately, the authoritative ruling by the Delhi High Court in a spate of criminal cases filed against Husain under article 153A and other clauses of the penal code, failed to deter numerous other litigants. And other courts proved unwilling to follow the judicial determinations laid down.

If the touchstone of possible violence and public disorder were to be used to judge when article 153A would be applicable, then a case that literally called out for prosecution involved Bal Thackeray, leader of the Shiv Sena, a major political party in the state of Maharashtra. In 1993, Thackeray used the party newspaper Saamna to exhort his cadre into a ten-day long rampage of death and destruction in the city of Mumbai (then Bombay). There was little ambiguity here, nor was there any effort to disavow responsibility for the hundreds of deaths that followed, mostly of members of the Muslim religious minority.

In 1998, Thackeray and his party were held directly responsible for the violence by the B.N. Srikrishna Commission of Inquiry, set up shortly after the riots. A petition moved by certain eminent citizens of Bombay had meanwhile come up for hearing and in July 2000, a judicial order was issued seeking Thackeray’s arrest and prosecution. After a series of retaliatory riots by Shiv Sena cadre, the state government finally secured Thackeray’s submission to the law. But the case against him was held void soon afterwards, because it was barred by the statute of limitations.

Contempt of court

In the southern state of Karnataka, 30 journalists from 11 newspapers were charged in March 2003 with contempt of court for reporting on an alleged sex scandal involving three judges from the High Court. The Karnataka High Court ruled that each journalist would be tried separately, but the Supreme Court temporarily suspended proceedings on 18 November.(20) It was learnt that the Chief Justice of India had in consultation with brother judges, informally requested an investigation into the truth element in the stories published by the press. However, the investigating judges – either because of their own diffidence, or because the public had been scared into silence by the threat of contempt action – failed to turn up any firm findings. The Supreme Court shortly afterwards ordered the matter closed.(21)

It remains to be established whether the Supreme Court was acting in defence of the right of free speech, or seeking to quell a matter that could potentially have enveloped the judicial apparatus in scandal. In part because of the indecisive judicial outcome, and perhaps because “truth” as a defence did not work in the case at hand, the power to convict for contempt has been a constant deterrent to the exercise of the free speech right in matters involving the higher judiciary.

In September 2007, three journalists and the publisher of the afternoon daily, Midday, in the national capital of Delhi were convicted on charges of contempt and sentenced to four months of rigorous imprisonment.(22) Irfan Khan, M.K. Tayal, S.K. Akhtar and Vitusha Oberoi were found guilty of contempt by the Delhi High Court, for a series of investigative articles and cartoons published in Midday on the Indian Supreme Court’s orders shutting down small commercial establishments and shops in notified residential areas of Delhi.

The articles and the cartoons in Midday purported to show that Y.K. Sabharwal, then the Chief Justice of India, may have had a conflict of interests in this matter, since his two sons were involved in business dealings with large developers of commercial malls in Delhi. Values in these properties reportedly appreciated after the Supreme Court issued its orders shutting down commercial establishments in residential areas.

The Midday articles were reviewed after publication and found to be factual and accurate by a group of lawyers in Delhi called the Campaign on Judicial Accountability. J.S. Verma, Chief Justice of India for an eight-month term between 1997 and 1998, found the articles credible enough to warrant the rescinding of all judicial orders issued in the matter. Significant public figures such as a former attorney general of India and a former chairman of the Press Council of India endorsed the view that contempt charges against the media should follow, rather than precede an investigation into the allegations against the judge.

Very little action has followed since. The free speech right remains hostage to conflicting judicial interpretations and uncertain ethical commitments by the officers of the state. Media managers and journalists’ organisations have not yet organised themselves to mount a consistent challenge that will establish a framework of rules for the responsible and socially committed exercise of the right.


NOTES AND REFERENCES

1. The challenges facing journalism in Kashmir over recent years of political unrest have been recorded in two situation reports by the International Federation of Journalists, issued in September 2009 and November 2010. These are available at the following links: http://asiapacific.ifj.org/en/articles/blaming-the-messenger-media-under-pressure-in-jammu-and-kashmir and http://asiapacific.ifj.org/assets/docs/126/192/2fe407e-36e8fc0.pdf.

2. See the coverage in the Imphal Free Press, an English-language daily published from Manipur’s state capital, extracted on July 3 from: http://ifp.co.in/imphal-free-press-full-story.php?newsid=17246.

3. The details of this incident are available in the following statement issued by the IFJ: http://asiapacific.ifj.org/en/articles/ifj-shocked-at-arrest-of-manipur-journalist-in-police-sting.

4. Aside from January 2011, mass closures of the Manipur press have occurred in November 2008 and July and October 2010. Details available in the following statements issued by the IFJ: http://asiapacific.ifj.org/en/articles/manipur-journalists-shut-down-to-protest-threats-from-armed-groups; http://asiapacific.ifj.org/en/articles/manipur-media-shuts-down-to-protest-threats-against-journalist; and http://asiapacific.ifj.org/en/articles/outrage-over-murder-of-young-journalist-in-india.

5. For further details, see: http://asiapacific.ifj.org/en/articles/ifj-welcomes-release-of-two-jailed-journalists-in-india

6. For recent descriptions of the difficulties faced by journalists in Chhattisgarh, see: http://asiapacific.ifj.org/en/articles/violence-against-journalists-continues-in-chhattisgarh-state; http://asiapacific.ifj.org/en/articles/journalists-free-movement-restricted-in-chhattisgarh-state; and http://asiapacific.ifj.org/en/articles/ifj-condemns-death-threats-against-journalists-in-india-s-chhattisgarh-state.

7. Kedar Nath Singh vs State Of Bihar decided 20 January 1962; Equivalent citations: 1962 AIR 955; 1962 SCR Supl. (2) 769; Bench: Sinha, B P. See the discussion in Siddharth Narain, “’Disaffection’ and the Law: The Chilling Effect of Sedition Laws in India”, Economic and Political Weekly, February 19, 2011, pp 33-37 (www.epw.in).

8. Details available at: http://asiapacific.ifj.org/en/articles/ifj-alarmed-at-sedition-charges-in-india.

9. For full details, please see: http://asiapacific.ifj.org/en/articles/ifj-condemns-criminal-charges-against-magazine-reporter-in-india.

10. http://asiapacific.ifj.org/en/articles/ifj-demands-full-details-for-in-arrest-of-journalist-in-india-s-maharashtra-state.

11. The details of the lawsuit were explained in a note from the Caravan editors in its issue of July 2011, available at this writing at: http://www.caravanmagazine.in/Story/1001/IIPM-s-Rs500-million-lawsuit-against--em-The-Caravan--em-.html.

12. Rajeev Dhavan, Publish and be Damned: Censorship and Intolerance in India, Tulika Books, Delhi, 2010, page 112.

13. R. Rajagopal vs State Of Tamil Nadu; equivalent citations: 1995 AIR 264, 1994 SCC (6) 632. Bench: B.P. Jeevan Reddy and S.C. Sen, JJ.

14. The essential details of the cases filed against The Hindu are available here: http://www.cpj.org/2004/03/attacks-on-the-press-2003-india.php.

15. Details available here: http://www.achrweb.org/reports/india/AR05/theme-01-FP.htm

16. http://asiapacific.ifj.org/en/articles/ifj-condemns-mumbai-journalists-arrest-under-official-secrets-act

17. See Iftikhar Gilani’s record of this entire sequence of events in My Days in Prison, Penguin Books India, Delhi, 2005.

18. http://asiapacific.ifj.org/en/articles/ifj-calls-for-debate-following-conviction-of-columnist-in-india

19. http://asiapacific.ifj.org/en/articles/ifj-condemns-arrest-of-journalists-in-hyderabad-city

20. http://www.cpj.org/2004/03/attacks-on-the-press-2003-india.php

21. See Rajeev Dhavan, Publish and Be Damned, as cited in footnote 10, pages 90-1.

22. http://asiapacific.ifj.org/en/articles/ifj-deplores-contempt-sentences-handed-down-by-delhi-high-court-against-three-indian-journalists-and

M.F. Husain and the mob censorship of art

Delhi High Court grants a reprieve for artistic freedom
(Written after the Delhi High Court ruling of May 2008, quashing criminal proceedings launched against M.F. Husain in various courts of the country)

Few realms of artistic or scholarly excellence were spared the fallout of India’s bitter communal polarisation of the 1990s and beyond. Circumstances were especially hazardous for artists and scholars who drew their inspiration from the rich syncretism of Indian folk traditions. And as events have proven, few were more vulnerable than Maqbool Fida Husain, whose work has been an ongoing and intense engagement with popular culture.

Whether Husain is observant or otherwise of the faith he was born into is immaterial. For the cultural police squads that arose on the wave of neo-nationalist zealotry, the name he bears was sufficient cause to question his entire body of work. No person whose overt social identity was quite so alien to the intrinsic and primordial cultural character of the Indian nation -- as it was then portrayed -- could be permitted the audacity to produce a body of work suffused with the iconography of the Hindu pantheon.

The epigraph to the landmark judgment by the Delhi High Court, dismissing the summons issued Husain to answer criminal charges in cases filed from literally all parts of the country, quotes the legendary Pablo Picasso on the necessarily subversive quality of art. “Art is never chaste. It ought to be forbidden to ignorant innocents, never allowed into contact with those not sufficiently prepared”.

Picasso was not, most assuredly, making a case for keeping art in sequestration from the lay public and preserving it as a domain for the specialist. That indeed, would be a spirit impossible to reconcile with his work. More particularly, it would be contrary to Husain’s own creative ethos, which as he explained in a recent interview with the weekly magazine Tehelka, is all about art for the people: “I never wanted to be clever, esoteric, abstract. I wanted to make simple statements. I wanted my canvases to have a story. I wanted my art to talk to people” (Tehelka Magazine, Vol 5, Issue 4, Dated Feb 02, 2008).

Clearly, in Husain’s creative universe, there are no ignorant or unwashed masses needing tutelage.

Ignorance perhaps is not so much the issue as the cloistered mind and a sensibility that allows finer perceptions to be overwhelmed at the slightest sniff of political opportunity.

The arguments for and against Husain have been rehearsed endlessly ever since he became the focus of Hindutva ire in the mid-1990s. That the right to free speech does not constitute the right to cause offence or to inflame social sensibilities is of course a well accepted principle of liberal jurisprudence. But when does an act cease being a rightful exercise in free speech and begin to be a provocation? Does the nude depiction of figures from a religious pantheon, in a manner that is integrally connected with classical iconographic traditions, constitute an offence to social sensibilities? Campaign groups arguing Husain’s case, seeking to end his hapless years of exile from India, have been arguing precisely that.

The riposte, as in many such matters, has come from the ideological obermeister of the Hindutva flock, Arun Shourie.
Prefacing his damning remarks with some semblance of compassion, Shourie recently wrote of Husain: “He is a kindly man, and a prodigiously productive artist. There is no warrant at all for disrupting all his exhibitions”. Indeed, Shourie allows Husain the further concession that his depictions of Hindu goddesses “in less than skimpy attire” could pass muster on grounds of sensibility and inspiration, if only it did not leave unanswered a crucial question: “How come in the seventy-five years Husain has been painting, he has not once felt inspired, not once, to paint the face of the Prophet? It doesn’t have to be in the style in which he has painted the Hindu goddesses. Why not the most beautiful, the most radiant and luminous face that he can imagine? How come he has never felt inspired to paint women revered in Islam, or in his own family, in the same style as the one that propelled his inspiration in regard to Hindu goddesses?” (Arun Shourie, “Hindutva and Radical Islam: Where the twain do meet”, The Indian Express, Delhi, Friday, December 28, 2007).

An artist in a free society is at liberty to choose the motifs that he would like to represent, the cultural lineages that he draws from, and the forms and idioms that he would like to emulate, develop and (if possible) enrich through his practice. In suggesting that Husain should have remained bound by the cultural symbols and traditions of the faith he was born into, or that in the midst of his aesthetic wanderings, he should occasionally have visited Islamic motifs, Shourie betrays a familiar, totalitarian mindset. He also dishonours Husain’s engagement with his craft and with the people of India in such epic political adventures as Rammanohar Lohia’s Ramayan Mela of the 1960s.

Besides, there is an answer to Shourie’s question that is so evident, that it could not possibly have escaped the comprehension of even one so culturally obtuse. Simply put, there is nothing like an equally vivid tradition of iconography in any other cultural tradition that Husain may have been exposed to. To hear Husain narrate the story of his early years as an artist of the people is to realise how deep has been his empathy with the diverse folk traditions of the country. “In 1948”, he recalls in the recent interview, “I exhibited my work publicly for the first time in the Bombay Arts Society show. I had already been painting and practising for years. .. I took the classical images of the Gupta bronzes -- the tribhanga form; the sensuous and erotic colours of Pahari paintings -- its deep maroons, blacks, haldi; and the nine rasas. I wanted my format to be classical, yet retain the innocence of the folk. (Francis) Souza came and asked me excitedly, from where have you got this? I didn’t tell him, I said, you go search it. This is what lies at the heart of the artistic enterprise. .... It is in picking from what has gone before. In India, there have been so many high periods -- Tanjore, Chola, Gupta… Centuries of seeing lie behind that. You cannot reinvent the wheel -- your individuality, your creative eye lies in what you pick”.

But wait, the moral precept of Hindutva is as Shourie very lucidly explains, “deceit towards the deceitful” and “wickedness towards the wicked”. The practical implications of this moral symmetry are clear. If Muslims have the liberty to engage in street protests and demand the withdrawal of cartoons denigrating the prophet of their faith, Hindus enjoy a like privilege.

Muslims worldwide mobilised in February 2006 against a Danish newspaper’s deliberately provocative publication of a series of cartoons representing the figure of the prophet of Islam as an accomplice in terrorism. Far from being an exercise in the right to free speech, the Danish newspaper was by its own boastful claim, engaged in an effort to rub in the superiority of western culture. Clearly, this was the ideological or unarmed component of the “global war on terror” that was then ostensibly being waged between the forces of civilisation and barbarism.

A key issue that emerged from the controversy was that of intent. In all such matters involving rival perceptions of the right to free speech and expression, intent matters. The Danish newspaper had made no secret of its intent to cause offence.

Husain in contrast has never had any intent except to connect to the people in a purely aesthetic form.

Another implication of Shourie’s moral symmetry was laid out by a spokesman for Hindutva, who reacted in fury to the industrialist Vinay Bharat Ram’s defence of Husain. Would “pseudo-secular intellectuals”, asked the agitated propagandist for Hindutva, show the same “breadth of vision and understanding towards the work of an unknown Hindu artist called Kailash Tewari from Bhopal”. This unknown hero, it transpires, was in June 2007, asked to take down an exhibition for its inflammatory representations of the people of another faith. Asked about the incident, the aggrieved painter argued: “My exhibition titled The Face of Terror depicts the truth. I am not talking about Muslims, but unfortunately all terrorists turn out to be Muslims”. (This specific link is available at http://www.ivarta.com/columns/070625-mf-hussen-paintings.htm; it can also be accessed through the website set up by body of non-resident Indians, with the specific intent of taking down M.F. Husain: http://www.hindujagruti.org/activities/campaigns/national/mfhussain-campaign/)

Thus the many hued richness of Husain’s work, with its characteristic imprint of playfulness, its homage to diverse traditions, and its signature qualities, which are now perhaps the most widely recognised in Indian art, is equated on a moral plane, with the output of a paintbrush hack with political motivations and abundant reserves of social bigotry. It could be said that this is the reductio ad absurdum of Hindutva aesthetics.

The judgment of the Delhi High Court, delivered May 8, 2008 by Justice Sanjay Kishan Kaul, in the matter of Maqbool Fida Husain versus others, dismissing the summons issued Husain in a diverse number of cases filed by individual litigants, is valuable in bringing the focus back on intent and dispelling several of these absurd moral equivalences. There were two grounds on which the petitioners from places as far afield as Pandharpur (Husain’s home village in Maharashtra), Bhopal and Delhi, had filed petitions for the criminal prosecution of Husain: “obscenity” which warrants prosecution under articles 292 and 294 of the Indian Penal Code (IPC), “causing offence to religious sensibilities”, which is covered under articles 295 and 298, and “creating ill-will among communities on religious grounds” which is covered under article 153.

Since “intent” is the point under discussion, it might be good to first take up the charge of “causing offence to religious sensibilities”. Justice Kaul has clearly held that the charge under these sections of the IPC must establish the intent to cause such offence. In other words, the untitled painting rendered by Husain at some point in the distant past, which passed into a private collection and was brought out to the public domain in 2006 under the title “Bharat Mata” as part of an art auction for the victims of the Kashmir earthquake of October 2005, does not establish any such intent. As Justice Kaul observes in paragraph 107 of his judgment: “the impugned painting cannot form the basis of any deliberate intention to wound the religious feelings of the complainants since the figure, on the basis of the identity alleged, represents an anthropomorphic depiction of a nation as also that to hold a person liable under the above said section, mere knowledge of the likelihood that the religious feelings of another person may be wounded would not be sufficient.”

When it comes to the charge of “obscenity” though, the test of intent does not apply. From an extended review of case law on “obscenity”, Justice Kaul concludes that “Knowledge is not a part of the guilty act. The offender's knowledge of the obscenity of the impugned matter is not required under the law and it is a case of strict liability”. In other words, whether he had the intent or not, whether the knowledge existed or not, if an act, an utterance, a song, or a representation by an individual meets the criterion of “obscenity” in a social framework, that individual is liable to strict punishment.

Within this strict standard though, Justice Kaul points out in paragraph 70 of his landmark judgment, that “to fall within the scope of ‘obscene’.. the ingredients of the impugned matter/art must lie at the extreme end of the spectrum of the offensive matter. The legal test of obscenity is satisfied only when the impugned art/matter can be said to appeal to an unhealthy, inordinate person having perverted interest in sexual matters or having a tendency to morally corrupt and debase persons likely to come in contact with the impugned art”.

The complainants against Husain had sought to buttress their charge of “obscenity” on the basis of “the nudity of the figure depicted in the painting and the identity of the figure alleged as ‘Bharat Mata’”. But Justice Kaul concludes in paragraph 72 after weighing all the evidence, that “the alleged identity of the figure has no bearing on the alleged obscenity of the said painting. The alleged ‘Bharat Mata’ painting in issue was at no given point in time either given a title or publicly exhibited by the petitioner. The petitioner had no involvement in any manner with the said on-line auction for charity”.

All these are significant contributions to the right to free expression. But where Justice Kaul perhaps makes his most significant jurisprudential breakthrough for this age of the worldwide web, the internet and all its possibilities of instant communications, is in the matter of jurisdiction. A nonagenarian artist with no greater ambitions than living out the rest of his years in peace and tranquillity, has for over a decade been venomously targeted and forced to flee the milieu that he has loved and flourished in, merely because political circumstances have made his variety of celebratory, eclectic art a taboo. And the wide diffusion of his work through the new modes of communication available, has made it easier for politically motivated individuals to target him.

In this context, Justice Kaul warns that the “criminal justice system”, “ought not to be invoked as a convenient recourse to ventilate any and all objections to an artistic work”. This makes the role of the magistrate who first receives the complaint, not merely “discretionary” but “obligatory”. The magistrate is obliged to “scrutinise each case in order to prevent vexatious and frivolous cases from being filed” and to ensure that litigation is not used as “a tool to harass the accused, which (would) amount to a gross abuse of the process of the court”. Where private complaints are involved, they should typically not be admitted without prior investigation.

There has been a wealth of rulings decreeing that where a multitude of cases arises from a single incident, requiring the respondent to appear in different jurisdictions, the cases should be centralised in one single judicial forum for ease of disposal in accordance with principles that will be consistent internally and would serve as firm precedent. Such a practice would also spare the respondent from undue harassment. By invoking separate jurisdictions and often, different clauses of the law, the forces of social bigotry have ensured for long that Maqbool Fida Husain has become a marginal presence in Indian social life. The May 8 ruling by the Delhi High Court, hopefully, represents the death sentence for this particular strategy for the incessant harassment of artistic creativity.

Second Wind for U.S. Imperialism - Now with Chinese Support

Henry Kissinger, On China, Allen Lane, London, 2011, pp xviii + 586, ISBN 978-1-846-14346-5.

Any work on China today would be a marketable proposition and the author here, with his long record of active engagement with the subject, is most unlikely to suffer critical neglect. Despite the capacious title, suggestive of a compendium of diverse writings drawn from various times, this book is obviously written as an integral whole and has the specific focus of understanding China’s emerging profile in strategic affairs.

It is a story that Kissinger begins by delving into the far reaches of history, where he finds the origins of the “singularity” of China, its “special feature” in having “no beginning” and its unique historical identity, less “conventional nation-state than a permanent natural phenomenon”.

These references to China as a historical entity need to be understood in context, since a similar mysticism often attaches itself to conceptions of India. Nationalist ideologies in their formation, often call upon storied myths, ostensibly from a distant past, to establish a unique claim to identity and existence. Chinese exceptionalism is undoubtedly a factor in its contemporary existence as a nation-state, but there are few nations that are not constituted on some notion of uniqueness. These may influence their conduct in global strategic affairs, though in the growing complexity of today’s geopolitics, “original” constructions of national identity are likely to be less influential than pragmatism and cold calculations of economic advantage.

Kissinger’s primary concern is in addressing the likelihood of conflict –today more real than the possibility of convergence – in the U.S. relationship with China. It is a relationship that is seen as central to the world economy. Evidence comes in the term “Chimerica” coined by the historian Niall Ferguson, a tireless advocate of the need to structure the world in accordance with an imperial logic that embodies what he sees as indispensable western values.

Put very simply, Chimerica refers, in Ferguson’s words, “to the combination of the Chinese and American economies, which together had become the key driver of the global economy” in the first years of the 21st century. “With a combined 13 percent of the world’s land surface and around a quarter of its population, Chimerica nevertheless accounted for a third of global economic output and two-fifths of worldwide growth from 1998 to 2007”.

Early hopes that a global order – a Pax Chimericana to follow the Pax Americana -- could be constructed on these foundations, have since faded. Ferguson himself has written the obituary of Chimerica, since it led as he says, to an untrammelled growth in global economic imbalances, a shocking abdication of fiscal responsibility by the U.S., and the gaming of the system by the Chinese monetary and fiscal authorities.

Kissinger’s worries, considerably different, are stated towards the latter chapters, which go from a consideration of contemporary times, into a prognosis of the future world order. The U.S. and China, he observes, have been “not so much nation-states as continental expressions of cultural identities”. The two are yet to work out a “joint concept of world order” and in working towards this shared vision, Kissinger identifies two divergent strands in the Chinese strategic establishment.

There are the extreme voices, which believe that nothing less than the resurrection of China’s historic role as the cultural and political hegemon in Asia – and indeed the world – will serve to restore the faltering world order. Counter-posed to these are the mellower voices, derived from the Mao Zedong legacy, which foreswore hegemonic ambitions as a matter of principle, and Deng Xiaoping, who arrived at a like conclusion from practical worries about China’s desperate poverty during his time at the helm.

Kissinger is yet unclear about which of these tendencies will triumph. But he believes quite unambiguously, that the future of the Asian landmass and indeed of the world, will depend on how this question is sorted out. What remains to be dealt with, “is to move from crisis management to a definition of common goals, from the solution of strategic controversies to their avoidance”. In the next phase, China and the U.S. should “develop genuine strategic trust” and from there, “evolve a genuine partnership and a world order based on cooperation”.

Symmetry in attitudes would obviously facilitate a constructive dialogue and in this regard, questions could be posed about the current mood within the U.S. strategic community. The two doctrinal strands within China that Kissinger identifies have their counterparts in the U.S. and the divergences there are in fact, becoming ever sharper as economic difficulties multiply and political consensus crumbles. The Project for the New American Century, drawn up towards the end of the 20th century by a far-right group that had decisive influence over the Republican Party for quite some time, is the template for one mode of engagement, based upon a reaffirmation of American exceptionalism and the imposition of a hegemony through the ruthless application of hard and soft power.

There are other, more pragmatic schools of thought, which are now emerging into the light after a long eclipse -- as the U.S. pursued the so-called “global war on terror” in accordance with a doctrine of maximum force.

Kissinger does not directly address the possible implications of domestic discord within the U.S. for strategic engagement and the evolution of a new idiom of cooperation with China. He seems to fall back on pragmatism as the final arbiter, which will prevail as the limits of U.S. power – of both the hard and soft variety – become increasingly evident. He calls upon a large number of historical precedents to bolster the case, beginning with the active U.S. effort to mediate a peace between Mao Zedong and Chiang Kai-shek’s nationalists during World War II.

The communist triumph led to great acrimony in the U.S. strategic establishment and a depletion of expertise as individuals with knowledge of China were compelled to leave official positions, unable to bear the heat. This led, in Kissinger’s narration, to an imbalance of skills – and perceptions -- within the U.S. State Department. The continuing presence of a number of redoubtable experts on the Soviet Union, when the China group had been evicted, meant that policy remained resolutely focused on containment and deterrence of the Soviets, to the exclusion of other lines of potentially fruitful engagement.

Anti-communist dogma moreover, was an enveloping force. The rigid and uncompromising mood was symbolised best by U.S. Secretary of State John Foster Dulles’ refusal to shake hands with the Chinese Premier Zhou En-lai, at the Geneva conference on Vietnam in 1954. Kissinger argues with a wealth of quotations, that plausible arguments were continually being advanced for breaking out of the envelope. These drew on more complex calculations, invariably involving the need to gain strategic advantage over the Soviet Union. These possibilities though were thwarted by the intrusion of another dogma of the early Cold War years: that President Tito of Yugoslavia was an exception and communist nations would all in the ultimate analysis, stand together on issues of consequence.

On the other side, as Kissinger tells it, was Mao’s implacable will – “domineering and overwhelming” – and his determination to reinvent China through unending revolution. Most revolutions, Kissinger argues, are “institutionalised into a new system of order” once they are successful. But Mao’s revolution “had no final resting place” and his China was “by design, a country in permanent crisis”.

Soon after the successful consummation of the revolution, Mao plunged into a war in the Korean peninsula, equipped with no more than a cursory guarantee of backing from the Soviet Union and unmindful of the very real threat of nuclear retaliation by the U.S. In 1954, barely a year after the formal armistice that ended the Korean war – and again in 1958 -- he plunged into a confrontation with the U.S. in the Taiwan straits. And in 1962, he launched China into another war, this time with India.

All the while, the relationship to the east remained frozen in suspicion as Japan’s economic reconstruction proceeded rapidly, and the supposed socialist solidarity with the Soviet Union was being shredded by territorial disputes and legacies of history.

Through these escalating confrontations abroad, China under Mao was undergoing a series of internal convulsions – from the “Hundred Flowers” campaign and its very rapid reversal, to the “Great Leap Forward” and the near cataclysm of the “Cultural Revolution”. The dramatic opening to the U.S. happened soon afterwards and it is a process that Kissinger is uniquely positioned to describe, having been among its most active agents.

Mutual overtures between the U.S. and China had been underway for a while. The U.S. used Romania and Pakistan as intermediaries, while Mao himself sent out word through the American journalist Edgar Snow, a close friend from the Long March of the 1930s. Though these initial signals were either missed or misread, the dialogue could not for long be postponed. The U.S. was neck-deep in the Vietnam quagmire and China emerging, clearly disoriented, from the chaos of the Cultural Revolution and a bitter power struggle that saw the ouster of Mao’s designated successor and ideological heir, Len Biao.

From the U.S. point of view, the rapprochement was about outflanking the Soviet Union and fashioning a face saving exit strategy from Vietnam. Though Kissinger does not say so explicitly, the clear inference that his narration points towards, is that Mao was towards his twilight years, keen to end the state of unending strife that he had made a virtue of through his revolutionary days. His priority at the time, may have been to bequeath to his heirs a stable geostrategic location that would enhance China’s opportunities and afford it the possibility of realising its historic destiny. And in making the retreat from the perennial revolution a reality, China counted upon an aphorism devised by imperial strategists seeking from the 18th century on, to fight back the erosion of centralised authority within the “Heavenly Kingdom”: that the friendship of far neighbours could be used to offset the difficulties posed by hostile near neighbours.

There was ample evidence moreover, of a serious rift between China and the Soviet Union. Kissinger does not mention it, but that was the decisive condition which influenced much of China’s global strategy through the 1970s and 80s, when the Cold War gained a renewed intensity with the U.S. defeat in Vietnam, the revival of decolonisation struggles in Africa, the Iranian revolution, the Soviet invasion of Afghanistan and a new turmoil in West Asia.

China itself played the role of armed gendarme in this Cold War configuration by launching a twenty-nine day long military incursion into Vietnam – broader in terms of the deployment of men and material than even its intervention in the Korean war -- that reduced all the border cities in that country to smoking ruins.

Kissinger rather disingenuously describes this military adventure as the “Third Vietnam War”. Deliberately or otherwise, this nomenclatural innovation establishes a continuity between China’s intent in 1979 and the French effort to reclaim the colony it was compelled to vacate during World War II -- which the Vietnamese people defeated in 1954 -- and the U.S. attempt to keep the country safe for global capitalism, defeated in 1975.

Unseen in Kissinger’s narration is the sub-text of the Cold War and the enervation of an already exhausted Soviet bear, in which the Chinese shift towards preserving its hegemonic ambitions in Asia, was actively encouraged by the U.S.
Consequences were quick to follow. Under the oversight of the U.S., then slipping rapidly into a situation of chronic economic deficit, the counterpart surpluses that enabled the U.S. to continue along its pathway towards bankruptcy were held first by Japan (principally), and then by South Korea and Taiwan. None of these countries had any incentive to continue holding these U.S. dollar assets and chose instead, to invest in China. As South Korea, Taiwan and Japan sought to bring their serious payments imbalances with the U.S. under control, China ascended to the status of the largest exporter to the U.S. – and derivatively, to being the largest holder of U.S. government debt.

Early in his work, Kissinger describes a certain self-absorbed placidity as the central characteristic of Chinese civilisation. It was, he said, an attitude that led to seriously offensive references to anybody outside the cultural ambit, as a “barbarian”. The “barbarian” reference recurs in Kissinger’s work, though it has been long known to be a contested interpretation.

In the 1830s, with opium addiction – promoted by a flourishing three-way trade from India – becoming an increasing social concern, the Prime Minister of the Chinese imperial court issued a demand for the banning of the substance. The British foreign secretary, then the deeply egregious Palmerstone, argued that the banning of the opium trade would be an unconscionable curb on the rights of the British traders as long as the Chinese intermediaries continued to engage in it. It was, as a recent history of China by John Keay says, a rationale that would be deeply appreciated by all arms smugglers and terrorists today.

The Chinese imperial memorandum demanding the end of the opium trade was, moreover, thought to be gratuitously offensive, since it flung the deliberate insult of “barbarism” against the British imperial monarch.

The reality is that the term interpreted as “barbarian” in the official translation was understood in the authoritative idiomatic understanding then, as “foreigner”. The tendentious official translation was obviously part of the stratagem of making the case -- for Britain’s domestic constituency, which could be reliably counted upon to react violently to any affront to its monarch – for the Opium Wars by which imperialism sought to impose substance addiction on an entire people for the very pragmatic purpose of global balance-of-payments settlement.

Regarded as a key scholar and statesmen of the 20th century, Kissinger is known in the alternative wisdom, as a cynical practitioner of realpolitik, whose eager complicity in the use of force against Third World targets puts him squarely in the league of imperial adventurers. Though full of information about China, he is fundamentally unable to come up with a prescription that will guide global strategy towards a substantive break from the imperial logic. For all his pretences, he has no real knowledge of the economic substratum of international relations. The continuing accumulation of U.S. dollar assets in China is obviously the most major source of geopolitical instability today. China has relative autonomy in determining how these assets are deployed and it is not evident that the modes that it will choose would be attentive to the need, clearly an imperative in Kissinger’s worldview, to restore U.S. global hegemony to its crumbling perch.

The existential questions that Kissinger poses – of the possibility, if at all, that the U.S. and China would be able to achieve a strategic coherence that would make a new world order possible – could very easily be answered in the negative. The contours of the new world order remain to be determined, not by the Machiavellian deviousness of Kissinger and his ilk, but by the mass struggles of people seeking to build a better future for themselves.

Israel's scowling petulance

There were no standing ovations when U.S. President Barack Obama addressed the annual conclave of the American-Israel Political Action Committee (AIPAC) in Washington DC. The atmosphere was formal and parts of his speech were met with what was described as “stony silence”. Shortly afterwards, Israeli Prime Minister Binyamin “Bibi” Netanyahu rounded off a visit to the U.S. that was, behind the pretence of undying mutual love, all frayed tempers and defiance. His final act, an address to the U.S. Congress, had the more assiduous record keepers counting twenty-nine standing ovations. There was a signal there: he had scored one more than Obama did during his last State of the Union address before the same legislative body.

As the Israeli Prime Minister headed home, the American Zionist magazine -- Commentary -- smugly certified him the winner in the head-on clash with Obama. Using the simple barometer of the volume of applause won, the magazine with a record of loyal service to Zionism, offered the confident prognosis that the “Jewish state enjoys overwhelming and bipartisan support in this country”.

An “ambush” is how Obama’s major speech, delivered just ahead of Netanyahu’s visit, was described in the Zionist press. Netanyahu had been out-manoeuvred and out-flanked when Ariel Sharon, his bitter rival for Prime Ministership and the title of Zionist champion, had vacated the Israeli occupation of the Gaza strip in 2005. Prior to this, Sharon had exchanged letters with George W. Bush, then U.S. President, to make it official policy that Israel could -– in exchange for the Gaza withdrawal -- unilaterally define its borders with a putative Palestinian state in the West Bank.

The U.S. statement of policy then was vague and hesitant, but regarded as a sufficient endorsement of Zionist territorial annexation. This unilateral imposition of a “final status” settlement on Palestine, though, was thwarted by three implacable realities. Iraq erupted in full-fledged civil war in 2005, making nonsense of the U.S. venture to mould the Arab world in a manner of its choosing through military means. The Israeli gambit in abandoning Gaza, always very difficult terrain, in exchange for a free hand in defining facts on the ground in the West Bank, collapsed when its principal author, Sharon, was rendered hors de combat by a stroke in January 2006. And when elections were held in the Palestinian territories soon afterwards, the collaborationist Fatah was banished and the uncompromising Islamic grouping, Hamas, voted to power.

The Bush-Sharon stratagem went into a zone of uncertainty and was only revived when the discredited U.S. President made a long delayed visit to Israel towards the end of his term. A semblance of peace prevailed in Iraq and Sharon’s breakaway faction from the Likud was still in power. Israel had meanwhile earned global odium with an assault on Lebanon that clearly breached all norms of warfare and brought it little military advantage. Bush was greeted with great aplomb by Sharon’s successor, Ehud Olmert, who lauded him as the “superpower president”, whose writ would run through all foreseeable history. Bush’s letter to Sharon assuring him that the West Bank was Israel’s for the taking, was effectively global law.

Obama assumed the U.S. presidency just days after Israel had yet again chosen to test the world’s tolerance for war crimes, with a brutal and barbaric assault on the Gaza. He suffered the public humiliation of his Vice-President, Joseph Biden, when Israel chose the occasion of an official visit to announce new construction projects in occupied territory. Obama had to make his peace with the Zionist lobby in the U.S., while at the same time fulfilling a vow that the Iraq misadventure would end under his watch. The formula he offered, was that Israel should allow a Palestinian state within the borders of 1967, subject to necessary land swaps and a fair deal for the people made refugees several times over since the ethnic cleansing of 1948.

There was nothing Obama said that went against the spirit of the agreed statement issued after a meeting between Netanyahu and U.S. Secretary of State Hillary Clinton, in November 2010. Netanyahu was furious all the same, rejecting any possible return to the 1967 lines, simply because those were “indefensible” borders for Israel.

At an early moment in Netanyahu’s recent address to the U.S. Congress, a voluble protester was herded out of the visitors’ balcony after causing a momentary stir. Netanyahu recovered from the passing discomfiture to affirm that the atmosphere of freedom he saw in the congressional hall was indeed a boon to all humanity – a far cry from the “fake parliaments” of Tehran and Tripoli.

Israel’s Prime Minister, who leads a parliament that has been described by human rights groups as the most racist in the country’s history, repeatedly invoked the trope of shared values, that made an alliance between Israel and the U.S. an indispensable force for positive change in one of the world’s most benighted neighbourhoods.

Even as Netanyahu spoke, though, evolving realities in the Arab world were making nonsense of his self-serving propaganda. On May 10, observances of the nakba -– or day of dispossession -- by Palestinians in Syria led to a storming of the border fence maintained by Israel in the occupied Golan Heights. Several were killed in the Israeli armed action that followed, though the message imparted by the brutal Syrian regime, then facing a mass uprising for democracy, was not lost. Israel’s best interests lie in crushing the movements for democratic change in the Arab world, except when a peripheral country such as Libya is involved. Arab dictatorships are Israel’s best security guarantee. When the Arab world wakes up to democracy – as Palestine showed in 2006 and Egypt is now demonstrating – Israel would have reason to fear for its continuing existence as nation structured on racist principles, that has nonetheless managed to retain its democratic veneer.

June 2, 2011

Elections 2011: One Clear Message; Several Ambiguities

Over seven days of polling between April 4 and May 10, five Indian states, together accounting for over a fifth of the membership of the two houses of parliament, had general elections to their legislative assemblies. The long drawn out process of balloting left everyone – candidate, voter and interested bystander – restless for final closure. And when the counting of votes started early on May 13, the results flooded in with the momentum of a fast-moving sporting encounter.

Analysts did not have to spend too much time parsing the results that emerged for a dominant message. Quite simply, the implosion of the Left Front in West Bengal, a state considered its impregnable bastion, was so dramatic that it overshadowed every other message. For the left parties, there was little mitigation even in the near miracle of Kerala where they almost beat the iron law of incumbency disadvantage, operative for the last seven rounds of assembly elections.

Though written off at various points during its 34 years of uninterrupted rule, the Left Front (LF) in West Bengal had managed to script one epic triumph after another. It managed a smooth transition from the leadership of Jyoti Basu, the patriarch who led it through nearly a quarter century, and won two consecutive state elections under his handpicked successor. But when things started falling apart, the disintegration was rapid and almost catastrophic.

In the days of reflection that will inevitably come, the leadership of the Communist Party of India (Marxist), the leading party of the left, will wonder what went wrong. As a party, the CPI(M) has seen its fortunes plunge from stratospheric heights to virtual rockbottom in five years. In May 2006, the last time the same five states of the union went into general elections, the left won two of them. It had at the time, 58 seats in the Lok Sabha, the lower house of parliament. And the Congress-led coalition, the United Progress Alliance (UPA), which ruled at the centre, was crucially dependent on its support in every legislative and policy initiative.

Today, the left has none of the major states under its control, since the north-eastern state of Tripura, which sends two members to the Lok Sabha, counts for little in national politics. Its strength in the Lok Sabha is down to 24 and the UPA has no need to seek its support in anything it undertakes.

The LF built its base in West Bengal with its visionary reforms in the agrarian sector, of which the most important were connected with the land - the registration of unrecorded tenancies and the distribution of land held above a legally notified ceiling. Towards the last years of Basu’s stewardship of the LF, the stimulus was beginning to fade. Under acute threat, the left managed to consolidate its monopoly on power because of disunity and disarray in opposition ranks. The Congress then faced what seemed an existential threat from the BJP and tended to look on the left as a friendly opponent. And the most significant leader of the Congress in West Bengal, Mamata Banerjee, was so bitterly alienated by this ambivalence that she chose to break away and seek an alliance with the BJP, rather than be part of it.

Coming to power just in time to capitalise on these multiple fissures in the opposition, Basu’s successor Buddhadeb Bhattacharya won a massive triumph in 2001 and followed up with an equally impressive victory five years later. He was not content with electoral trophies though and was restless for change, for diversifying the economy and setting it on a pathway to rapid industrialisation.

In effecting the course change, the CPI(M) set its cadres to work in enforcing a policy of dispossession, or turning over large tracts of land in a densely populated state to business houses whose patronage the state government seemed rather too anxious to cultivate.

Opposition ambivalence ended in 2008, when the left walked out of its alliance with the UPA at the centre, over an abstruse geopolitical issue that did not strike much of a chord with the majority of the electorate. The Congress now had an incentive to team up with Mamata Banerjee’s breakaway Trinamool Congress, which had in the years since separation, grown to be a far larger and better organised political force in West Bengal. The final defeat was foretold by the outcome of the 2009 Lok Sabha polls and successive rounds of local body elections. When the decisive moment arrived, the defeat proved more crushing than anything that even the most percipient had foreseen.

The creditable performance in Kerala comes as small solace to the left. Led by V.S. Achutanandan, the sole survivor of the group that walked out of the National Council of the parent party to set up the CPI(M) in 1964, the left (which goes under the name of the Left Democratic Front in Kerala) was not given a ghost of a chance. The LDF was riven by deep factional animosities through its five years in authority, almost entirely originating within the CPI(M). But in the media spectacle that emerged, the underlying story was lost: that the LDF had provided a level of efficiency in administration that the state had not seen in years. And for this, the people of Kerala were inclined to credit Achutanandan’s leadership – which many among the newer generation thought rather hidebound and rigid, but was ultimately, about an unswerving sense of probity and political commitment. Again in a suggestion of its inability to feel the public pulse, the CPI(M) leadership first sought to isolate Achutanandan, before conceding him a ticket for reelection.

The two main national parties, ironically, had rather modest stakes in these five states. The Congress had only an indirect stake in the two largest of the five: riding piggy-back as it were, on the fortunes of powerful regional parties in West Bengal and Tamil Nadu. It scored a win in one and went down to a humiliating defeat in the other.

The Tamil Nadu verdict conforms to the pattern established since at least 1991, when the two main regional formations have alternated in power, each election bringing a decisive shift. The swing this time has perhaps been stronger than before, with a powerful new ingredient being added to the mix by the brazen nepotism in the family of the incumbent chief minister, M. Karunanidhi. Kalaignar, as he is known in tribute to his literary gifts, first took office as chief minister in 1969 and at 87 has quite possibly contested his last election. He has a legacy that will unfortunately now, be forgotten as the people of Tamil Nadu seek to grapple with his least welcome political bequest: a dysfunctional family, squabbling bitterly over the spoils of office.
Expectations that the United Democratic Front (UDF) that the Congress leads in Kerala would win comfortably, were demolished and the Congress performance in terms of seats won has been decidedly worse than its main coalition partners’. The Muslim League and the Kerala Congress – both junior partners in the UDF – have scored a much greater success rate in seats contested and will almost certainly demand a commensurate share in the allocation of ministerial responsibilities. This does not suggest a smooth course ahead for the UDF ministry that will shortly be sworn in.

It is only in Assam, where it won an unprecedented majority of over two-thirds of the seats at stake, that the Congress did itself some credit. Its main opponents, the BJP and the Asom Gano Parishad, were once allies in state politics, but this time managed to fight each other to a state of paralysis by their brazen over-use of the xenophobia card in a state where the issue of illegal migrants has always been politically touchy.

The BJP which once showed the conceit of actually seeking to spread its roots into Tamil Nadu, Assam and West Bengal, contested several of the 800 odd seats that were at stake, allowing its ambition to overwhelm rational calculation. Nobody quite knows how many seats it contested, which is an eloquent comment on its ambition, rapidly evaporating, of being the sole and singular representative party of a true Indian sense of nationality. What is germane here, is that the number of seats the BJP has won will not touch the double-digit figure.

The 2011 assembly elections underline further that the BJP will remain narrowly based in its geographical spread, since minority baiting, the key to its dominance in the few states it governs, is precisely what drives potential partners away in other parts of the country.

Political Corruption and Social Anxieties: Lokpal Bill as a Magic Wand

At a mid-April public discussion on the proposal for a tough new statute to deal with corruption, J.S. Verma, former Chief Justice of India, raised a red flag. Certain of the ambitions of the draft bill to create a Lokpal, or ombudsman, with wide-ranging powers of scrutiny and sanction, were simply out of order. Indeed, the draft bill in circulation, he feared, would likely impinge on features held to be part of the “basic structure” of the Indian Constitution.

Since these words of caution came from a jurist of high standing, the media paused briefly, took note and then moved on. There was little reward in unravelling a complex question of constitutional practice, when quick and easy entertainment was available elsewhere. An accomplished political blackmailer had launched a smear campaign against another eminent jurist, Shanti Bhushan. And that was where eyeballs were more likely to focus.

A later public consultation came out with the definitive suggestion to keep the higher judiciary outside the Lokpal jurisdiction. Alongside J.S. Verma, another former Chief Justice, M.N. Venkatachalliah, was party to this proposal, which came with the explicit recommendation that a tough new mechanism of accountability be instituted for the judiciary, though one mindful of its autonomy. Despite this caveat, the cyber-space and blogosphere, which have been major arenas of mobilisation on the Lokpal bill, were soon suffused with chatter about how judges were intent on remaining above scrutiny.

Impatience and a degree of intolerance are dominant moods of the current phase of anti-corruption activism. It is a mood that induces a certain disregard of democratic proprieties. The favoured metaphor of the flock gathered around Anna Hazare during his five-day fast, was of corruption as a “cancer” eating into the core of the democratic process. Radical remedies were called for, even at possible risk to basic principles of democratic governance.

For the corporate media, public accountability stood triumphant the moment the government gave into Hazare’s demands. Others who have been engaged in democratic accountability as a grassroots cause, worried about the prospect of imminent defeat.

As conceived in the most current draft of the bill, the Lokpal will be an agency with powers of investigation and prosecution. It would also in certain respects – as in issuing sanction for contempt – have the powers of a court of law. In prosecuting alleged cases of corruption, the Lokpal would have the authority to determine how many special courts should be constituted to fast-track the trial process. In setting up these special courts, the government would be obliged to submit a potential list of presiding judges to the Lokpal, which would determine who among them meets the standards of integrity required.

It does not take great legal acumen to see that these clauses between them, violate the principle of the separation of powers, held to be a “basic feature” of the Indian Constitution. And in its haste to gather these powers within one institution, the Lokpal campaign seems willing to blithely trample over another basic principle of the rule of law: the presumption of innocence.

The term “political class” has acquired a certain currency in recent times, pointing to a growing credibility gap for the practice of democracy in India. “Politics” has become the quasi-monopoly of a defined class. The electorate for all the belief and commitment it shows everytime it lines up at the polling stations to vote, has no real option outside a narrow slate of candidates – chosen through dynastic processes, or as part of a patronage transaction, for a cash consideration, or perhaps in recognition of services rendered well beyond borderlines of legality.

The Lokpal campaign has responded to this reality of Indian electoral politics with a proposal that effectively would suspend the presumption of innocence for the “political class”. Nobody would be spared the searching scrutiny of the Lokpal, not even the Prime Minister.

Earlier inquiries on ethics in governance have advised against bringing the Prime Minister under the jurisdiction of a watchdog, simply because the Westminster system of parliamentary democracy runs on a simple principle: that the Prime Minister is accountable to the people, through their elected representatives. If there is the slightest hint of a taint over his or her functioning – sufficient to invoke the scrutiny of an ombudsman – then Parliament would have the first right to insist on a prime ministerial resignation. Reasonable suspicion of wrongdoing – rather than conclusive proof -- is sufficient to trigger the resignation of a Prime Minister.

This is a principle that has often been lost in practice, pointing to yet another credibility gap in India’s democracy. But it is not clear that the solution proposed by the Lokpal campaign, with its distinctly authoritarian overtones, is best suited to this challenge.

Like it virtually discounts judicial reform as an autonomous possibility, the Lokpal campaign seems equally dismissive about the potential for overhauling the manner in which elected legislatures function.

A clause in the draft bill reserves for the Lokpal the right to prosecute legislators accused of receiving a monetary consideration for something done purportedly in an official capacity. This is seen as a long required antidote to the constitutional immunity that elected representatives enjoy, even for the most blatant acts of malfeasance. In the “cash for votes” scandal involving Jharkhand Mukti Morcha members of Parliament during P.V. Narasimha Rao’s term as Prime Minister, the Supreme Court held that the situation though far from happy, was the undeniable reality enjoined by the Constitution.

This patently unsatisfactory situation has led to at least some efforts to arrive at firm definitions of where parliamentary privilege ends and the abuse of power begins. Yet, as with the judicial reforms agenda, this debate is likely to get swept aside and submerged in the public fervour over the Lokpal as a magic wand that will banish the growing malaise in India’s system of governance.

Crystal-ball gazing is always a hazardous pursuit. But it seems fairly safe to predict that a Lokpal bill of the sort that is currently in circulation, is unlikely to make it to the floor of Parliament for even a preliminary debate.

In the remote eventuality that a bill embodying the spirit of the current draft is passed, a prolonged turf war is virtually foretold, with judiciary and executive leading the charge against the Lokpal. It is always wise to be prepared for remote possibilities. And if a bill of the sort that is currently in public discussion were to pass, it would be a monumental abdication of responsibility by Parliament, and a surrender to the populist mood.

A Lokpal bill, passed into law in the current shape, would be a tribute to the very same infirmities of the electoral process that the anti-corruption movement seeks to fight.

A paralysis of governance would be inevitable – an outcome that could be averted only if the Lokpal were to rapidly descend into the same swamp it seeks to retrieve other institutions from. The middle-class revolt that has fuelled the current mood of activism over corruption, could then assume different dimensions, potentially deeply corrosive of the basic principles and processes of representative democracy.

Free Speech and Its Perils: Ninth IFJ Press Freedom Report for South Asia

It is my honour to place before you the ninth press freedom report for South Asia, prepared by the International Federation of Journalists on behalf of partners and affiliates in the region, known collectively as the South Asia Media Solidarity Network (SAMSN). As with the last five years, this year’s report has been supported by UNESCO and we place on record our appreciation for this. Unlike in the early years of this exercise, when we tended to focus on journalists’ safety as a single indicator of press freedom, we have in recent years been seeking to present a whole range of issues that have a bearing on the broader scenario of journalism as an activity in defence of human rights.

The 2011 edition of the South Asia Press Freedom Report (SAPFR) records that over the year under review, the hazards journalists faced in most countries in the region tended to be less lethal than earlier years. Yet, the sharp deterioration of an already bad situation in Pakistan far outweighed the relative improvement in the other seven countries. Again, even if there was a lessening of the threats to life that journalists faced, the challenges of securing decent wages and working conditions remain. To these could be added major concerns regarding professional standards, the uncertainties of the environment for news gathering as conventionally understood and the pressures that have been generated on codes of practice for journalists by the media industry’s changing commercial strategies.

To provide a brief and synoptic overview of the situation in the eight countries of South Asia.

Journalism remains a hazardous pursuit in the context of Afghanistan’s unending insurgency. The emerging power-sharing compact among the country’s more powerful political figures seems premised upon each of them having a stake in the media. Despite growing rapidly, the media in Afghanistan remains dependent on some form of subventions for survival, either from international donor agencies or local power lobbies.

Unlike in years immediately past, when the most dangerous parts of Pakistan were those that felt the spillover effect from Afghanistan most acutely, the year under review saw Balochistan assume that position. The northern part of Pakistan also remains dangerous and the sources of violence here are less predictable and the range of threats greater. Investments in safety remain an area of priority for Pakistan’s journalists, though few among the country’s media groups seem inclined to make the necessary commitments of resources.

Bangladesh is another country coming out of a long background of authoritarian military rule and seeking a pathway towards stable electoral democracy. Disagreements still run deep within civil society and the media community on the legacy of the country’s war of liberation and these are played out occasionally in an accusatory tone in media reporting and harsh retaliation by the political authorities. Frequent warnings are issued by governmental authorities about their intent to enforce a code of ethics for journalism. Bangladesh’s media community though has responded constructively and with some unity of purpose to these challenges.

Sri Lanka and Nepal are both coming out of years of conflict but along rather different trajectories. The political leadership in Sri Lanka continues to acknowledge the imperative of national reconciliation but there have been occasions when journalists have been prevented from attending the proceedings of the commission that is the main instrumentality of the process. As during the years of conflict, the cross-community dialogue remains weak, since the English and Sinhala language media are not seen to be providing adequate coverage to testimonies rendered in Tamil to the commission.

Nepal’s politics has remained unsettled and despite journalists’ bodies having succeeded in achieving far reaching legislative changes in the period of the interim constitution, these remain to be consolidated in practice. As in Sri Lanka, impunity for the worst crimes against journalists through the years of the war and the unsettled truce that followed, remains an overwhelming reality. Despite having secured a law that protects their entitlements, Nepal’s journalists continue to work for poor wages. Investments in quality and skills, though enjoined on media houses by the law, remain low or non-existent.

Bhutan and the Maldives, the two smallest countries in the region, are both in the process of political transformation, from an absolute monarchy in one case and a state of one-party rule in the other. Both face the difficulties of sustaining plural media in a context of modestly developed business infrastructures and low levels of advertising spending in the economy. Bhutan, where the government remains by far the largest advertiser, has seen a vigorous debate over the ad placement policy that would best serve the public interest and ensure a relatively open and plural media environment.

The Maldives has sorted out this issue by floating an official gazette that will be the sole medium for publishing government ads, a response that the country’s journalists believe is the worst possible in the circumstances. The Maldives has instituted credible constitutional and legal measures for defending press freedom. A regulatory body with the authority to decree an appropriate code of conduct for the media has been created by law, though sharp disagreements remain over the composition of this body. The Maldives president and parliament meanwhile, remain deadlocked over the future of the state-controlled media.

Despite having the largest industry and the longest established traditions of media freedom in the region, India has not always been able to set an example to be emulated in terms of media practice. As this report is produced, India’s journalists are in the midst of a campaign to ensure that the proposals of the most recent wage board for journalists and other newspaper employees are fully implemented. The wage board model of determining working conditions for newspaper workers, which has been adopted in other countries of the region, is under threat in its place of origin.

India’s journalists confronted serious ethical issues over the course of the year and came up with a credible analysis and understanding of the threat that the newly prevalent practice of “paid news” poses to the integrity of news gathering.

Ongoing conflicts and insurgencies in the north-eastern states of India, Jammu and Kashmir and the central Indian region, continue to cast a long shadow over journalism. Media communities have mobilised strongly to deal with these problems and are now more inclined to establish strong linkages with colleagues in the national capital and other major Indian metropolises, where the “national news agenda” is determined. This networking has also extended to forging global linkages and seeking international solidarity actions.

There were other events in India which pushed the issue of transparency to the foreground of public debate on the media. I need only mention the Radia tapes in this context and we provide a brief analysis in this report of that episode in the career of the Indian media.

In part, the mere fact that transparency in the media industry came to the foreground as an issue, was testimony to the growing power of the new media and the ability of India’s growing community of bloggers and cyber-activists to influence the course and content of public debate.

Finally, this report is about the imperatives of maintaining and expanding regional and national networks that track media rights violations and build organised power to defend and promote press freedom, freedom of association and the right to speak out.

Anna Hazare and his children

Anna Hazare’s hunger fast for probity in politics captured the news agenda and unleashed a nationwide fervour. Declarations of victory may be premature since the real work of drafting a law is only just beginning. Corruption is not an abstract evil that can be combated by the virtuous few. It is about imbalances of power and the subversion of democratic goals by elite manipulation. Dealing with corruption is about deepening participatory democracy, rather than disdaining politics as the fount of all iniquity.


Kisan Baburao Hazare began his fast unto death on April 4 with the very specific intent of getting the Union Government to pass a law. India is a culture that respects the ascetic: one who renounces material comforts and in the extreme instance, refuses all nourishment. “Anna” Hazare as he is respectfully called, was clear about the evil he was combating. Decades had been spent in desultory debate about the need for an ombudsman that would exercise oversight and ensure the financial probity of the institutions of governance. Yet the goal remained as distant as ever. Meanwhile, the ethical deficit in governance had multiplied and acquired a dimension that threatened the very fabric of democracy.

This situation of deepening iniquity called for little less than an extraordinary remedy. A good and moral man had to vow self-abnegation rather than acquiesce in persistent evil. Dormant sensitivities of nobility in the human race would be stirred to the surface by one man’s personal example and long-needed correctives applied.

Beyond the moral dimension is the reality of Indian politics, where the institution of a Lok Pal (which could be rendered as “servant of the people”) has been discussed for over four decades. Public reassurance in the face of rampant corruption, has been an objective of various governments. The Administrative Reforms Commission (ARC) chaired by the civil servant turned politician Morarji Desai had recommended the institution of such a body in a report submitted in 1966. The body has since wrapping up its tasks in the mid-1970s, been rebranded the first ARC since its efforts were finally deemed inadequate and required the institution of a second body with a similar mandate in 2005. In the fourth of its reports submitted in 2007, the ARC II had addressed the issue of “ethics” in governance, again underlining the need for an ombudsman that would address public worries and grievances over the performance of the institutions of governance.

That the proposal has failed to acquire any material form despite official homage and public concern, is partly about the reluctance of successive governments to accept the fetters that a Lok Pal would impose upon ministerial autonomy – a flimsy alibi at the best of times, since governmental autonomy has been no source of sustenance, but has indeed, been the enemy of the public interest. To accord the apparatus of governance the measure of autonomy it has in India is to surrender all norms of democracy – except in the purely ritualistic sense of having masses of people line up at polling booths once every five years to cast a ballot in favour of a corrupt clique that will rule with no accountability, till an opportunity arises to throw it out.

Leaving aside these insubstantive difficulties of principle, a problem that had attracted serious attention is about how best an oversight body could be structured and its procedures defined, to ensure that it would be an enhancement, rather than a positive burden, on the efficacy of the other institutions of governance: legislature, judiciary and executive. Indeed, rather than create a body that could potentially impede the performance of an already creaky administrative system, there have been several suggestions about reforming existing institutions as a way out of the crisis of mal-governance. Why add to an already confusing multiplicity of institutions, with another one potentially as corruptible as all the others, when the reform of existing institutions – the civil service, the police, the judiciary and the legislature – is still a possibility?

Numerous ideas have been floated in each of these limited spheres. And the translation of these ideas into practice has needless to say, proven difficult, because each of these domains is enormously complex, with entrenched interests that will resist any change. Further, there has been no effort to knit together these discrete endeavours into one overarching, grand narrative or programme of reform. ARC II was probably one such attempt. And the voluminous reports that this commission has produced are a valuable compendium of possible changes in law and practice that would make the administrative apparatus more responsive to public needs.

Legislature, executive and judiciary is how the triumvirate of governance is understood. But the relationship between these three pillars can be grasped only through reference to what is regarded as the fourth, in a gross misreading of the origin of the term that has now become commonsense. The media or the “fourth estate” is now understood as the indispensable pillar of democracy without which all three other institutions would fail to perform with any degree of responsiveness.

“Fourth estate” as a term has its origins in pre-revolutionary France and in the hostile reference, by an individual who greatly feared the forces of disorder, to newly literate scribblers who threatened to disrupt the harmony of the three recognised estates of the church, the landholding aristocracy and the trading community. Though it has its origin in a revolutionary context, the “fourth estate” has since had a rather ambivalent career, being in part an agency for positive change but in greater measure, an instrument of social conformism. Political theorists have in recent times equated the daily ritual of reading a newspaper to a manner of referendum on nationalism, an affirmation of a sense of belonging without which the sustenance of the political compact that makes the nation-state a stable and durable aspect of an individual’s life, would be virtually impossible.

This function of the “fourth estate” is sustained on the foundation of a certain definition of what constitutes “news”. For the Indian media, “news” at one time used to be the words of wisdom that politicians spouted. The country was fresh in its encounter with what was called “freedom” and it seemed that the media owed the duty of loyalty to those elected to govern. A few years into India’s life as a free nation, the media strayed from the course of unquestioning loyalty. Business interests were involved and the so-called “licence-permit raj” that was being created under a newly independent nation’s quest for development, seemed antithetical to personal liberty – indeed the fount of all political corruption.

That challenge to the authority of the political leadership was quashed by recruiting the poor to the cause of eradicating themselves. “Garibi hatao” as a slogan defeated the worst machinations of the business barons, partly by recruiting the poor to an electoral cause that gave the Congress party a massive parliamentary majority, shortly after it had broken from its moorings in tradition and Gandhian paternalism. The political advantage had shifted and new sources of finance had to be tapped, new networks of patronage created. Ground rules that had guided earlier generations of politicians were proving irksome and had to be altered if not jettisoned entirely.

The targeting of “corruption” as an abstract evil without any real form – begins from around this time. Unlike the fabled monsters of Indian mythology that embody all evil, but have a form that can be seen and felt – and can hence be vanquished in physical combat -- “corruption” was seemingly an ailment of the spirit. It was something to be dealt with not through institutional reform and the widening of participatory politics, but by the moral force of a few good men who could move multitudes.

At the vanguard of this campaign against “corruption”, was Jayaprakash Narayan (“JP”), a man who renounced the possibility of high political office to be with the people, to be the voice of conscience and rectitude when the Indian State was straying dangerously from its democratic commitments in Kashmir and the North-East. It was a time of deepening economic strife and people rallied to his banner in large numbers. Yet his movement lacked the ideological cohesion and organisational strength to withstand a harshly repressive State response. And despite regrouping and securing a historic electoral mandate, the forces that JP marshalled proved unequal to the task of wide-ranging political reforms.

Anybody with an inkling of the historical background would see that Hazare’s programme is potentially a great deal more vulnerable than JP’s. And yet, though clearly dwarfed by JP, Hazare and the close allies he has gathered, believe that they have achieved a major triumph, when the process has really just begun.

Hazare cannot obviously be dismissed as an ephemeral phenomenon that will vanish just as swiftly as it has appeared. Note must be made though, of the discord that has arisen soon after Hazare’s fast was declared a resounding success and a moment of awakening for the nation, over his praise of Narendra Modi, a particularly divisive figure. Hazare’s appreciation of Modi it turns out, was premised on a very narrow parameter: that as chief minister of Gujarat, he had successfully implemented rural development policies.

Few among his flock seemed to notice, but this endorsement of a divisive political figure, even if limited, represented a dramatic constriction in the vision of a man who had just a few days before, been determined to take on the multi-headed monster called “corruption”. “Corruption” could be construed as a narrowly defined set of offences that involve money transactions. On a wider scale, “corruption” could be understood as a small sub-theme on a larger failure of the Indian State, to live by its republican commitment to ensure the fundamental rights of all citizens. Corruption is about disparities of power and the subversion of formal laws that promise equality and opportunity, by entrenched relations of privilege and inequality.

Since being represented as the focus of patriotic loyalty in the early years of Indian freedom, the “State” was in quick time transformed in elite perception to being the fount of all iniquity. As global winds of neo-liberalism blew across Indian shores, the “State” began to recast its role in minimalist terms, to see itself as an agency that was most useful when it intruded least into the lives of ordinary people. Exceptions would be granted for people so needy that they had to be sustained through subsidies and other measures of support granted by the State. But in general terms, that government was deemed best which kept its discretionary authority within strictly defined limits.

As the State went into retreat with the neo-liberal reforms of 1991, the opportunities for elite aggrandisement multiplied. The daily “news” agenda, once about affirming loyalty to the political leadership, was transformed rapidly into a celebration of individual achievement, of the acquisitive instinct and the growth of personal wealth. The other side of this story, of rising inequality and of the numerous excluded sections seeking to assert their right to a share in political power through the electoral process featured in the “news” agenda as a sidelight, an interesting curiosity.

2004 was in some manner, a year of awakening, when the political consequences of living in a bubble of self-delusion became rudely apparent. In the years that followed, the battle against poverty was restored to the political agenda and accorded a priority not seen since the transient euphoria of the “Garibi Hatao” days. But as a process, the economic empowerment of the poor has not been free of friction. There is little discord over the need to frontally address poverty – this is indeed regarded by most political formations as a self-evident virtue. It is quite another question though, if the economic substratum that has been built and consolidated through the years of neo-liberalism, can support the ambitions of a direct attack on poverty.

If the first years of the millennium were a period of rising ambitions for the great Indian middle class, the years since 2008 perhaps mark the transition to an age of anxiety. The celebration of wealth and individual achievement continues to dominate the news agenda, but there is an uneasy awareness that inflation is already out of control and could soon be rampant. To retain its position in the hierarchy of income and wealth, the great Indian middle class could soon be required to accelerate the pace of its acquisitiveness – to run faster on the treadmill of economic competition to merely remain where it is. It is evidently a self-defeating exercise and this growing awareness is unleashing a mode of political behaviour marked by deep anxiety and seemingly irrational rage. It is a mood in which ordinary and modest individuals seeking to make a statement of conscience, could suddenly be invested with messianic qualities. And symbols of belonging become more important than the substance.

Perhaps the most striking aspect of Hazare’s hunger fast was the manner in which it completely captured the news agenda. Unlike Irom Sharmila, the Manipuri woman who completed ten years on hunger fast some months back and is being force-fed in an Imphal hospital because the State simply will not countenance the popular demand of dismantling the ensemble of repressive laws in force, Hazare’s was a cause that the media proved eager to adopt. For the “fourth estate” today, the news agenda is driven not by loyalty to the political leadership, but a deep disdain for all the processes and institutions of representative democracy. In this respect, it has tapped into the mood of a brewing revolt by the elite, which sees its material security and privileges threatened by economic uncertainties and is impatient with a political system that is much too messy, noisy and disorderly.

The most striking visual representation of Anna Hazare’s “movement” – as it has been christened by the media -- was a portrait of Bharat Mata in the vivid hues of modern calendar art, holding the national tricolour securely in a left-handed grasp while the other hand bestowed a silent benediction on all who had turned up to bear witness to his act of conscience. Under this dominant motif were the subsidiary images of Mahatma Gandhi, Bhagat Singh and other martyrs in the cause of the nation’s freedom.

These are images that normally pass without comment since they are all considered integral to the canon of belonging. All Bharat Mata’s children belong and have a rightful place under her benign gaze. That place is accorded to each individual on merit, on virtue and on his commitment to the abiding values of the “nation” as the nurturing mother. It is a process in which the elite discourse as represented through the media, has a determinant role. “Politics” which dredges up the worst and puts them in positions of authority, is where all iniquity originates. And no institution constituted through politics can be trusted with the public good, free of the oversight of a body established on foundations of virtue. That is the paradoxical and self-defeating message of Hazare’s movement. And as defeat becomes an imminent reality, those who have invested their emotional fervour and intensity in the “movement” could react in ways that cannot yet be predicted.