Ten years ago, the Bench found in favor of Nandini Sundar & Ors against the State of Chattisgarh. The anti-Maoist militia was disbanded. The Naxalites gained a respite and were able to re-entrench themselves. This is an example of naive Sociology combining with virtue signaling jurisprudence to perpetuate criminality and defeat the ends of Democracy and the Rule of Law.
Sundar- the daughter of high ranking Civil Servants who possesses foreign degrees- had previously written a Sociological account of Bastar. A fellow female Indian Sociologist, reviewing Sundar's book, quoted the following lines-
“People want both the Maoists and state, but for different reasons: the former provide freedom from a hated bureaucracy and the latter holds out the promise of welfare on a scale that no one else can provide."
Indians, more especially those whose parents were IAS officers or Judges etc, know very well that everybody in India wants access to 'countervailing power' against, not just the State, but every and any other actor- good or bad. Sundar has relatives who, despite being Judges or high officials, have recourse to the local Don to evict tenants rather than pursue the matter through the courts. But the Judge who uses the local 'Bahubali' has to have countervailing power over that particular gangster. This can be established through Religion or Caste Politics.
Sundar's own Leftist proclivities were encouraged by people of her caste because being a Marxist, or closely related to one, enabled one to exercise 'countervailing power' against anti-Brahmin parties in Tamil Nadu- more especially when the Tamil Tigers of Sri Lanka were still dreaded. Indeed, having a beef eating, brandy drinking, thug of a younger brother is actually very useful in our milieu. But Western Sociologists have pointed all this out long ago. The economic theory underlying the Sociology of segmentary societies, in its application to India, is older than Sundar herself. She did PPE, not Sociology at Oxford. But this also means she does not know genuine Marxist economics of the Soviet- or, after the fall of the Gang of Four- the Chinese type.
By contrast, anyone with a modicum of mathematical knowledge could easily provide themselves with a Marxian Structural Causal Model not just for very poor places like Bastar but also their own tonier neighborhood in Mumbai or Chennai or whatever.
Chinese Marxist theorists, back in the early Eighties, understood that poor countries had to take a different path to Socialism. As Marx said, 'to each according to his contribution'- till Socialism is achieved. Moreover, property rights must be aligned with productivity. The State must take sides with the productive classes and ruthlessly put down crime and terrorism and crazy ideological nutjobs. Its Judges must keep a low profile and do the job they are paid to do.
Sundar writes-
Even as villagers hate the government for what it is doing to them, they want justice from this very government.
This is reasonable. We want the Government to do stuff which is useful for us. We hate it if its actions hurt us. This means better Governance will turn us from enemies of the Government into its loyal supporters.
Even as the Maoists curse the constitution, they invoke its principles when criticizing the extrajudicial killings or the arrest of their leaders.
This is merely tactical. The Maoists want us to tie our hands behind our back so that they can stab us more easily. Sundar does not understand that there is a fundamental asymmetry here.
India’s constitutional democracy, because of and in spite of all its failures, is a predicament and promise that no citizen can escape from”
Sundar should know that extra-judicial killing has prevailed where insurgencies get out of hand. Moreover, the Constitution can be suspended- though ignoring it is easier.
Ten years ago, the Bench endorsed Sundar's flattering picture of it. Awarding judgment in favor of Sundar- and thus helping the Naxals- the Bench grandiloquently said-
We, the people as a nation, constituted ourselves as a sovereign democratic republic to conduct our affairs within the four corners of the Constitution, its goals and values. We expect the benefits of democratic participation to flow to us – all of us -, so that we can take our rightful place, in the league of nations, befitting our heritage and collective genius.
But our rightful place turned out to be 'nanga, bhooka, Hindustan' perpetually passing round the begging bowl or pontificating about its own ghastliness.
Consequently, we must also bear the discipline, and the rigour of constitutionalism, the essence of which is accountability of power, whereby the power of the people vested in any organ of the State, and its agents, can only be used for promotion of constitutional values and vision. This case represents a yawning gap between the promise of principled exercise of power in a constitutional democracy, and the reality of the situation in Chattisgarh, where the Respondent, the State of Chattisgarh, claims that it has a constitutional sanction to perpetrate, indefinitely, a regime of gross violation of human rights in a manner, and by adopting the same modes, as done by Maoist/Naxalite extremists.
The Naxals gained power in the only way power could be gained in that area. Then the State did the same and got the upper hand. Sundar & Co came to the rescue of the Naxals and the Bench, in a moment of great hubris, decided that the Constitution had magical powers. If the State was constrained from doing naughty things then...urm... no naughty things would happen.
Would the Bench still make this type of mistake now? Perhaps. But, in that case, it will be ignored.
The big mistake made by the Bench was to ignore the principle of 'proportionality'. The fact is the Naxal threat in Bastar was similar to the Khalistani threat in Punjab. It is noteworthy that when Naxals killed Judges in Bengal, the Bench was perfectly happy to endorse massive extra-judicial torture and killing. But Delhi is far from Bastar and so the Bench feels it can safely virtue signal using overblown rhetoric.
The State of Chattisgarh also claims that it has the powers to arm, with guns, thousands of mostly illiterate or barely literate young men of the tribal tracts, who are appointed as temporary police officers, with little or no training, and even lesser clarity about the chain of command to control the activities of such a force, to fight the battles against alleged Maoist extremists.
The Bench could order better training and clarity in the chain of command. That would be a proportional response.
As we heard the instant matters before us, we could not but help be reminded of the novella, “Heart of Darkness” by Joseph Conrad, who perceived darkness at three levels: (1) the darkness of the forest, representing a struggle for life and the sublime; (ii) the darkness of colonial expansion for resources; and finally (iii) the darkness, represented by inhumanity and evil, to which individual human beings are capable of descending, when supreme and unaccounted force is vested, rationalized by a warped world view that parades itself as pragmatic and inevitable, in each individual level of command.
These worthless cretins didn't get that Conrad was writing about White people killing and torturing Black people so as to get rich. Why pretend tribals fighting for the Government are different from those fighting for the Naxals?
Set against the backdrop of resource rich darkness of the African tropical forests, the brutal ivory trade sought to be expanded by the imperialist-capitalist expansionary policy of European powers, Joseph Conrad describes the grisly, and the macabre states of mind and justifications advanced by men, who secure and wield force without reason, sans humanity, and any sense of balance. The main perpetrator in the novella, Kurtz, breathes his last with the words: “The horror! The horror!”1 Conrad characterized the actual circumstances in Congo between 1890 and 1910, based on his personal experiences there, as “the vilest scramble for loot that ever disfigured the history of human conscience.” 2 3. As we heard more and more about the situation in Chattisgarh, and the justifications being sought to be pressed upon us by the respondents, it began to become clear to us that the respondents were envisioning modes of state action that would seriously undermine constitutional values.
Did these cretins think constitutional values prevailed in Naxal dominated areas? You can't undermine something which does not exist.
This may cause grievous harm to national interests, particularly its goals of assuring human dignity, with fraternity amongst groups, and the nations unity and integrity. Given humanity’s collective experience with unchecked power, which becomes its own principle, and its practice its own raison d’etre, resulting in the eventual dehumanization of all the people, the scouring of the earth by the unquenchable thirst for natural resources by imperialist powers, and the horrors of two World Wars, modern constitutionalism posits that no wielder of power should be allowed to claim the right to perpetrate state’s violence against any one, much less its own citizens, unchecked by law, and notions of innate human dignity of every individual.
This is nonsense. A State has a perfect right to put down rebellions or insurgencies on its own soil. No country is an 'Imperialist power' with respect to its own territory.
The Bench wields power. By this argument, no Indian is bound to respect the Bench's decisions if they feel it conflicts with their 'innate dignity'. It is noteworthy that a senior advocate, Prashant Bhushan, who vilified the Bench in the most scurrilous terms- declaring it to be corrupt, incompetent and politically biased- was let off with a tiny fine. Contempt of Court is justifiable because the Bench is contemptible and doesn't care who knows it.
Why did India fail to develop in the manner of China? There are 3 reasons
1) Unlike the Chinese Marxist theoreticians, India's public intellectuals did not embrace the correct economic theory. They preferred to believe in magic. Create rights and remedies will appear by themselves. There is no need for a 'numerus clausus' principle- i.e. strictly limiting the number of property and other rights. You can just go on creating more and more by magic.
2) Edward Lim, who had worked with the Chinese found that in India it paid better in terms of money and reputation to block development rather than to facilitate it. The Sundars and Guhas of the world have their eye cocked on the Western Academy. They gain by screwing up India.
3) Judicial interventions delay everything. In particular, they prevent timely land acquisition and proper compensation and resettlement.
The Judges and public intellectuals claim that their vigilance makes things better. Three decades have passed and we must tell them in no uncertain terms that they were fools. They harmed the country without enhancing their own reputation. We now feel contempt for both the Bench and the Academy. Why? Both were shit. We couldn't say so because, after all, they were Brown, but the fact can't be gainsaid. These cretins start babbling about 'Heart of Darkness' when they should be confessing the real problem is their own 'Brain full of Shit'.
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