Saturday, August 1, 2015

Indira Jaising: The courts of this country are on trial, not Teesta // Mrinal Pande: The Lament of the Half Golden Mongoose

The hounding of Teesta Setalvad is timed to coincide with the publicly articulated urge of the Prime Minister to get a "clean chit" from the courts in relation to the ongoing cases in Gujarat, which Teesta has been doggedly pursuing. She is the victim of the pursuit for justice. We are being asked to roll back the clock, consign the 2002 Gujarat carnage to the dustbin of history and replace Teesta Setalvad as the villain, who hounded the then chief minister...Can the collective amnesia on the Gujarat riots, and the view that we must move on be legitimized?

All this could possibly happen if Zakia Jafri and Teesta Setalvad, who are doing everything constitutionally and legally possibe to hold the head of the then government accountable, are checkmated, preferably gagged, and put into jail. 
Zakia's criminal revision petition is not about seeking recourse to justice for one incident of massacre, where her husband was brutally hacked and burnt to death but about the larger issue of command responsibility of the then CM, and now PM, in failing to prevent the killings from taking place.

It is high time this country saw the emergence of the Doctrine of Command Responsibility as a statutory and constitutional imperative, rather than leaving it to the notoriously weak provisions of the Indian Penal Code, which address only crime by individuals and punish only the hand that kills. Conspiracies are not easy to prove, but judging from the attack on Teesta Setalvad, the PM seems worried and insecure that there is an off chance, maybe just an off chance, that some well-meaning judge might accept the evidence pointing out the massive failure of his constitutional duty to prevent the killings. What stands between him and the "clean chit" are the courts and the cases Teesta and some of us are pursuing.

This pursuit of justice is slowly but steadily reaching its climax. Could this be the reason for her threatened arrest? The enormous support and assistance she gave 5,000 surviving witnesses, who unflinchingly recorded their testimonies, helped secure 120 convictions to life imprisonments, including that of a minister in the state cabinet.

I once had a discussion with Teesta in Mumbai at a public meeting soon after the 1992 riots. We agreed that if we had fought the 1984 Sikh killings in Delhi the way we do now the Gujarat carnage, the 1993 killing in Mumbai would not have happened. I can now add that, if in 1993 the Justice Srikrishna Commssion findings were accepted and we had succeeded in convicting even one accused at the top level, 2002 would not have happened. It is this understanding that compels her to continue with the fight against the killers of the 2002 carnage. What we are witnessing is the power of the state and its terrorising arm, the CBI, to mount a raid on Teesta's home and office to prove that she misused foreign funds versus the power of the courts to hold power to account. Who will win this battle? It is the courts of this country that are on trial, not Teesta.

As for the proverbial wine and visits to the beauty parlour, apart from the fact that they sustain the myth of the "five-star" activists, I must remind the courts that they hold their own legal aid meetings spending money meant for the poor in seven-star hotels. There is a record of a protest as regards this lodged by no less a person than a former judge of the Chennai High Court. Will they be swayed by such allegations now to refuse Teesta bail? This is not to admit on my part that money was so spent, but rather to expose the hollow legal nature of the reasons to oppose bail. It is nobody's case that there should be no investigation into the alleged misuse of funds, rather that the investigation be free and fair.

I now ask a basic question, why is there one law for the non-profit organizations and another for for-profit corporates? Why is there no imprisonment under FEMA (Foreign Exchange Management Act) but imprisonment for non-profits for violating norms relating to getting grants from foreign donors under FCRA? The only explanation is that the FCRA is a gateway to crushing human rights, and what is worse, an alibi for an argument that we, the NGOs who take up human right issues are "anti-national". We compromise the "economic security" of our countries, expressions that were reserved for terrorists so far. I call for the repeal of the FCRA and its replacement with a Foreign Contributions Management Act, which addresses only public servants. Perhaps then we will see some justice for Teesta, the woman whose father named her after a river in Bangladesh which flows fearlessly across borders.

Mrinal Pande: The Lament of the Half Golden Mongoose
Is it possible that the State, which is supposed to protect the small fish against the big, may on occasion, would ever sympathise with murderous predatory fish roaming the territory? Is it possible that many may witness the hunt passively because it may be politically expedient? One does not, of course believe in such a degree of idiocy, but during disturbed times the absence of other plausible explanations justifies considering it.

This is how Ved Vyas in his great epic Mahabharat muses about an ancient fratricidal war that wiped out entire families. Truth, he finds, absolute truth, is the first casualty. In this epic, the family elders, great generals and diplomats and priests mutely watch the wilful dismantling of Rajdharma by the powerful. Their appalling self serving silence at that point is broken by some of the smallest and seemingly most insignificant and ordinary creatures from the working world and nature, indicting them harshly for relegation of their Dharma. After all it is hardly debatable that while butchering and setting of men, women and children on fire is going on the State must exercise its monopoly of power to intervene swiftly and decisively. And the individual’s right to protection by the ruler must not be sacrificed to the god of popular sentiment.

Towards the end of Mahabharat comes the awesome tale about a strange mongoose sniffing around the area where a jubilant Pandava king, Yudhishthir ( also known as Dharmaraj or the king of Dharma) has just performed the glorious Rajsuya Yagna signaling his arrival on the throne after a long war. The lowly mongoose with half his fur of gleaming gold, comes to the site where the fire sacrifice has been performed and as the amused citizens watch, begins to roll in the ashes. While they are wondering at his strange behaviour, the mongoose stands shaking the ashes off his fur and yells, “Fie upon you, Dharmraj, for this your great Rajasuya Yagna is a sham! If you had really earned the blessings of the Gods, my remaining fur would have also turned to gold. Years ago in the year of one great drought I happened to be in the home of a hungry farmer and saw him and his family feed their last meal to an unknown starving beggar and court death. After witnessing this great act of self abnegation I rolled in the tiny patch where a few grains of the last meal lay scattered, and half my body that touched it turned to gold. I thought the rest of my fur would also turn to gold if I rolled in the remains of your regal Raj Suya Yagna. But nothing has happened. O Yudhishthir, you killed your Rajdharma when you killed your own brothers to get to the throne, so you may mount great and glorious rituals but they will not generate good will. Dharmaraj indeed!”

How the State failed in Gujarat: The mongoose’s ghost is roaming the streets of India once again in the shape of a woman called Teesta Setalvad. She is pursuing justice for the victims of 2002 riots in Gujarat. In a country of over a billion she is among the few to ask the mongoose question: Why did the State, despite its monopoly of power, fail in its most basic duty to protect so many from extreme violence and left them to be slaughtered on the streets as the police watched mutely? She has, understandably, been facing the most suffocating pressures and ugly innuendoes for the past 13 years. 

But she and her brave band of supporters have not allowed that fratricidal carnage to be pushed out of public memory. Make no mistake. The criminal revision petition she has been chasing on behalf of Zakia Jafri, is not just about the riots in a housing society where Zakia’s husband was dismembered and killed by a violent mob. It is about the much larger issue of Rajdharma or what the jurist Indira Jaising calls the Doctrine of Command Responsibility.

According to Hindu scriptures, the final answerability for all great acts of sin or redemption, Paap or Punya, must lie with the leadership in the Rajya; A Raja becomes a Raja only to uphold the Rajdharma and to protect the people, not to do as he wills, says the sage Angiras to Mandhata. It is not Teesta but Rajdharma, that is on trial. We need her as the post Mahabharata war India needed the half golden mongoose.

"The masterminds of the 26/11 attacks are treated like heroes in Pakistan. We are not there yet, but if hidden hands nudge the judicial system to free murderers of the saffron variety, we will be soon"

NB: I am adding a citation from an important book on Nazism written in the 1930's, Behemoth, The Structure and Practice of National SocialismNew York, republished 1963, p 27. The author was Franz Neumann. A pdf file may be read here: < 
(The counter revolution) ‘…tried many forms and devices, but soon learned that it could come to power only with the help of the state machine and never against it… the Kapp Putsch of 1920 and the Hitler Pustch of 1923 had proved this.. In the centre of the counter revolution stood the judiciary. Unlike administrative acts, which rest on considerations of convenience and expediency, judicial decisions rest on law, that is on right and wrong, and they always enjoy the limelight of publicity. Law is perhaps the most pernicious of all weapons in political struggles, precisely because of the halo that surrounds the concepts of right and justice… ‘Right’, Hocking has said, ‘is psychologically a claim whose infringement is met with a resentment deeper than the injury would satisfy, a resentment that may amount to passion for which men will risk life and property as they would never do for an expediency’. When it becomes ‘political’, justice breeds hatred and despair among those it singles out for attack. Those whom it favours, on the other hand, develop a profound contempt for the very value of justice, they know that it can be purchased by the powerful. As a device for strengthening one political group at the expense of others, for eliminating enemies and assisting political allies, law then threatens the fundamental convictions upon which the tradition of our civilization rests…