Interviews by Nityanand Jayaraman | Camera by Siddharth Muralidharan
Since March 19, 2012, when Tamil Nadu Chief Minister Jayalalithaa announced that work on the controversial Koodankulam nuclear plant could be resumed, and even before that actually, the protesting villagers have been at the receiving end of a vicious state led campaign to paint their non-violent struggle as a violent one, and to crush their campaign into silence by using harsh sections of the Indian Penal Code. More than 7000 cases of “sedition” and “waging war against the Government of India” have been filed just in the Koodankulam police station. That is probably more than in any other police station in India. Certain sections of the media too have played the role of a willing partner in propagating the State’s propaganda. In pursuing this counter-campaign against its own people, the State Government has placed itself above the law of the land and pursued an openly anti-democratic agenda.
The interview below with eminent legal scholar Dr. Usha Ramanathan and Adv. R. Vaigai, a senior lawyer from the Madras High Court, seeks to explore the seemingly ironical situation of a “Democratic” State whose actions are anti-democratic.
6 mins, 09 s. Published on Youtube on 13 April, 2013
NJ: You told us that constitutional guarantees offers fundamental rights. Why is the government refusing to respect our fundamental rights?
UR: See, the Government over the years, and more recently you can see it in a very in a dominant kind of way… the Government is now using methods for social control… It’s seeing the need to exercise its social and political control for it to go ahead with its agenda. Fundamental rights should be a priority on their agenda for them to recognize it. Since it is not, the easiest way of dealing with it is by going on imposing restrictions, which they’ve done over the years. And now, they criminalize all action. So, it’s no longer…the debate is not even on fundamental rights as far the State is concerned.
NJ: Any examples of, you know, recent things that have happened which,
UR: Of Fundamental Rights, yeah sure! My favorite example of UID or of the NCTC or the National Intelligence Grid, where they’re saying you forget about.. for instance, they say, the poor don’t have any interest in this fundamental rights business, they need food. It’s like you don’t need your rights. What you need is welfare and services. You get your electricity you shouldn’t worry about somebody else’s fundamental rights. If you get your food in time, you shouldn’t worry about your own fundamental rights. Because the State then is a service provider. You forgo your rights and then we’ll see how we’re going to provide you the service. This is a.. there is a certain diabolic nature to the way in which this is debated. You bring corruption and inefficiency to a point where people are so fed up with it and you can get them to give up almost anything, to have the State deliver on some things. That’s one. That’s as far as service delivery is concerned. But, I think the other huge problem is that terrorism has become just a phrase that encompasses everything …(not audible). Fear is a factor for losing fundamental rights. And fear is now being implanted deliberately in the minds of people and the promise that is made is – if you give up your fundamental rights, maybe we can provide you with a little better protection.
NJ: The other issue… the State itself appears to be anti-democratic, where people are fighting for democracy or say that they are fighting for democracy, and the State appears antidemocratic. How is that?
UR: I’m not sure that we should even look for the State to be democratic. It’s not the State, it’s not the Government which is democratic, it is people who are democratic. States, in fact, find it very inconvenient to have to practice democracy. They need democracy to survive as a “democratic State”, because that’s the only way that the game of politics gets played out and there is a certain value that some of them may have for a “constitutional, moral, ethical” in that sense, way of life. But it’s people on whom the burden rests to ensure the democracy is not lost. Therefore, every assertion… we keep saying, if you don’t exercise your fundamental rights you lose them. They vanish. And, it’s therefore become important… when we talk.. I think somebody asked if India is a fake democracy? I don’t think so at all. The fact that there are so many movements all across the country. It’s not like, you know, everyone has to be right to be able to say what they are saying. But, everyone should be able to say it and should be able to find the space where they can discourse a lot of this and to do more than that, you know do things for each other, to find support across classes, castes, whatever – that is the practice of democracy. That is done by people. So if we were to ask, can democracy survive in India? I think so long as the people of India are clear that, and that there are classes among the people of India and there are groups among the people of India who believe in the practice of democracy and keep practicing it, I think we’re alright!
NJ: In the case of Koodankulam, since March 19th, even before that, there’s been a whole lot of language war that has been deployed and now also a war using IPC sections. The Media has also played a very interesting role in this. Overall, what is your reading on this language war that has been played by people like Mr. Narayan Swamy or the Media war that has been used by the State quite effectively. What does it mean for our fundamental rights?
UR: Yeah see, I think one of the things we’ve said about the Media, which is very worrying, is that it is two things is that it’s corporatized, heavily corporatized and it is heavily upper class, whether it is, and it is dominated by those who are not part of the political establishment, but who have access to it, who find various ways of controlling it, like multi-nationals, for instance.
In Koodankulam, I think there is an additional factor. This is the first time we are seeing the State come out and say openly that We have power, and we will decide how we want to use it, and the law cannot bind us. We can use the law to do what we want to do. This use of the Sedition provision, for instance, is a classic case of a State not even needing to hide behind anything, when it is treating itself as in a state of exception in relation to the law. Because, they know even if all the cases fall at the end of the day it doesn’t matter, because they’ve had their purpose served. You can beat people up, you can put them away. It’s a total abuse of a power that actually doesn’t exist, but which they have managed to cultivate for themselves. I think this is the first time… you know, when people ask the difference between colonial times and now. I think in Colonial times, you knew who was on which side. You know who the Colonizer was and who the people of India were. I think after all these years, it is only now, that an ‘us and them’ in this context has gotten created. Koodankulam has actually shown us that.
6 mins, 55s. Published on Youtube on 13 April, 2013.
NJ: We wanted to ask you what is Good Faith exemption in law and how does the State, that is the Executive and Judiciary use Good Faith exemption to violate the law and get away with it?
R. Vaigai: See this Good Faith is something, well it’s a Colonial legacy. Even in Evidence Act, you have a section which says, there are sections which talk about what is admissible evidence, what is acceptable evidence and all. So there is a section which says that official records are presumed to be correct. So you don’t have to, if you produce, for example, your birth certificate – there’s a presumption that the date of birth recorded in the birth certificate is correct as against any other village records or something… But, as far as minor matters like birth certificates, death certificates are concerned it’s fine. But, when it comes with dealing with State issues vis a vis people, larger issues, it becomes a problem. It’s like how in the Koodankulam issue where on the challenge to the Section 144 order, the statement of the District Collector was per se accepted by the court, without asking any questions. There was no, you know, not even one iota of suspicion that was cast on the statement made by the Collector by the court. [Faced with allegations that the State Government was blocking the movement of essential commodities like milk, water and of people seeking access to medicine or medical help, the District Collector asserted that the 7000-strong police force posted outside the protesting villages was merely to ensure law and order, and that no restrictions on goods or people had been imposed.] So its weighs very heavily in legal proceedings on the mind of the court. It grants certain immunity. For example, when we are talking about large scale police violence on people and the court calls upon the police department as to what exactly happened and they produce a certain version of what happened. Prima facie the court is inclined to accept these versions granted by the police. Very often, what happens is when you are questioning police action vis a vis people and supposing it is a private company where a person says that I’ve been assaulted by the police, that is any violence indulged by the police. The policeman comes before the court and says that this was an action that I had to take in the discharge of my official duty. So if it is an action taken in the discharge of official duty, I was forced to take this action. That was the answer given by the police in all the encounter deaths cases. Therefore, not even a charge sheet for murder was ever filed in the encounter death cases, because the answer is – it was an action taken in the discharge of my official duty. Now, fortunately for us the Supreme Court has interpreted the phrase ‘in the discharge of official duty’ to be confined only to legitimate actions and not illegitimate actions. So, there are judgements which say that only legitimate actions can have the cover of immunity and not illegitimate… Supposing a policeman goes into a house for interrogation and rapes a woman. Now interrogation may be a legitimate action, but rape is not. So, there are judgments like that. We have to make use of those judgments in the given kind of situation.
NJ: In the case of Koodankulam, what was the Collector’s Statement and what was the problem with it?
RV: No, the collector’s statement was that there is no problem as far as disruption of essential supplies. It was a very curt statement saying that essential supplies were never cut off and people were receiving all the essential supplies, water, milk and food and whatever ration and all that and electricity and that the situation was normal. It is a very brief statement. Now, as against that was the detailed affidavit that was produced by the people of, I mean, the petitioners who had filed the public interest litigation; who had taken oral versions of the people concerned, interviewed them, and then given the affidavits stating that these are all the things that have happened: like water pumps were not working, there was no water supply in the taps, and there was no milk supply. There were small children who were not allowed to go to school. There were detailed versions given in the affidavits. Despite that, the court is not inclined to, you know, question the Collector on this any further, on the statement. That was the problem.
NJ: With things like Good Faith exemptions or Sections of IPC like Sedition, there’s a mention that this runs counter to the ideals of democracy. Either Sedition survives or Democracy survives. Where does one go to change these things? Are courts the place or are we supposed to resort to other…
RV: No. No. It’s only through the Parliament, not the courts. Courts will only implement the laws that already exist and they have done the maximum as far as Sedition is concerned. They have pointed out that the old concept of sedition cannot survive along with our present concept of democracy. Therefore, sedition will have to be used only in very exceptional cases where a clear case of act of enemy against the State is made out and a clear intention to challenge the State has made out, not otherwise. Therefore, they have read down the sedition penal position to the maximum. It is another matter that it’s being abused by the Executive, but courts have done their maximum. They have pointed out that if sedition has to co-exist with our constitutional provisions and democratic provisions it will have to be a very exceptional situation, and not the routine situation. That the courts have done. Beyond that, you cannot tell the court that the police cannot ever impose sedition charges, because it is antithetical to democracy. That is a solution you will have to ask the Parliament and not the court.
NJ: And the court is not likely to come down heavily on instances where sedition has been abused by the forces? will there be…
RV: We just have to hope that they do come down, because nothing prevents them from not coming down.
This English transcript was done by volunteers in Chai Kadai. Feel free to share, copy, distribute and translate this transcript under this Creative Commons license. Please attribute the video interview to the authors mentioned above.
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