26 Jan 2019

Ambarin Khambati & Aditya Prasanna Bhattacharya speak with Dr. Usha Ramanathan 

Dr. Usha Ramanathan is an internationally recognised expert on law & poverty, civil liberties, data protection and privacy et al. She is currently teaching a course on ‘Civil Liberties’ at the National Law School of India University, Bengaluru.

On the occasion of Republic Day, LSPR spoke to Dr. Ramanathan about the pressing law & policy issues with which the Republic of India is grappling today.

INDEX

Q 1 – National Register of Citizens (NRC)

Qs 2 & 3 – Women’s entry into Sabarimala

Q 4 – Bypassing of Parliamentary procedure

Qs 5, 6 & 7 – State clamping down on dissent (in re FIR against Shuja and Sterlite journalist)

Q 8 – Ministry of Home Affairs (MHA) Surveillance Order

1

LSPR: Many proponents have called the National Register of Citizens (NRC) a “well-executed” process. Do you see the consequent statelessness and the over-burdened claims and objections process as inevitable teething problems in what is an ‘ambitious bureaucratic exercise? Or are these fatal flaws in the process?

UR: We need to start with the idea of citizenship that we have here, because we have been changing the idea of citizenship over time, and each time it has become narrower. The last time we did it, we said that if either parent is an illegal migrant, then the child is not eligible for citizenship. This is a very serious thing to say about the future generation, because it is not the illegal migrant anymore, but anybody who is associated with the illegal migrant in a relationship of this nature, will get excluded from citizenship.

I don’t think we can see this too narrowly, because the world has divided itself up into states, and the idea of the human rights had to develop because the relationship between States and their peoples, and because of the power equations between the States and people. But it had to do with the fact that everybody was entitled to some basic rights. The way we are going about this right now is: if you are a non-citizen, especially if they are able to term you an ‘illegal migrant’, then you have no entitlement to rights. So we first create a legal category, i.e., ‘citizens’, and in this case we have asked people to demonstrate that they are indeed ‘citizens’ by producing documents of various natures, including legacy documents. Now, I’m not sure if it conforms to the reality of life, i.e. whether people really keep legacy documents. There are classes of people who may not even be able to get documents in the first instance. Even if they do get documents, their legacy may not be easy to establish. For instance, say if I have moved to Delhi, Tamil Nadu may not be willing to spend the time to find the legacy documents which will allow me to establish my citizenship.

I think one of the most severe problems that is plaguing the NRC is the complete shifting of the onus of establishing citizenship onto the person. Even if records of their citizenship is held in a State system, they don’t speak State-to-State. They ask only the person to produce all the necessary documents, and the State then either accepts or rejects these. This shifting of burden to the individual, and taking it off the State, has been happening quite a lot recently.

Secondly, in Assam, it is without question, a problem of demographic shift. One can empathise with the people of Assam, that the demographic shift makes them feel like a minority in their own land. And since they are a border State, they tend to bear the brunt of it [migration] much more than other States do. But the Government of India, or the State, cannot treat the situation by claiming that ‘the Government of Assam has a problem and we will thus find a solution which will deal with people in a way in which Assam alone will be assuaged, because people who are getting impacted by it too have to be accounted for. I have not seen any statement or any policy which states what responsibility the Government will take for the people who are not able to produce these documents.

In any case, I think the idea of the ‘documentary citizen’ is a relatively recent phenomenon, and I think it comes with all kinds of costs. We need to be very careful when we tread on this path.

2

LSPR: The Sabarimala issue has exposed the fault-lines in the Indian legal discourse. One side says that the Constitution gives primacy to individual rights, while the other backs the concept of group rights. Although the answer can never be straightforward, which side do you see yourself tilting towards?

UR: (Laughing) All your questions are binary! I don’t have a binary answer. There are certain parts of our Constitution which do deal with the idea of people belonging to a group. For instance, tribal communities, scheduled castes etc. There is a certain distinct treatment given to them, because we recognize the difference, and the potential vulnerability of these communities. So when we say that we must take Article 14 everywhere, the way in which we treat tribal communities under Article 14 may need to be different from the way in which we treat the mainstream.

In Sabarimala, it’s not only about a streamroller application of Article 14. What should also concern us is that we have little interest in history, or in culture, or in the equities that come within this. It is a very strange time that we are passing through where we are asking all those who are specially protected to join the mainstream, but the mainstream does not want to be the mainstream. It’s saying “we want to exclude ourselves from being that. So the idea of gender equality is being completely disconnected from the idea of history, and constitutionalism as a mainstream phenomenon.

So I don’t quite get where this anxiety is coming from. And actually as a woman I must say that I find this male anxiety of women entry into male spaces an intriguing phenomenon. Why are men so afraid of women? As a person who’s belonged to the Hindu community for a very long time, and who has seen the pantheon unfold before her, I find it very odd that the same God sitting in Sabarimala, as a bachelor God, wouldn’t want to meet women of a certain age. But the same God sitting in another place doesn’t seem to have that anxiety. So we seem to not only have a pantheon, but also within that pantheon, every God seems to have their own preferences depending on their geographical location. So it doesn’t seem to make composite sense.

In addition to this, what I find interesting is the tribal assertion that has come now. They are saying, “This is actually our area, and we have let you be here. And we don’t actually believe in this gender inequality. So if you don’t know how to be equal, then maybe it is time for you to leave.”

So it’s not just a cultural question, but also an interesting constitutional question about how equality can be brought in. In fact, it is more about how discrimination can be allowed to remain in society.

3

LSPR: Many have questioned the effect of the Supreme Court’s verdict on Sabarimala, because there is no tangible attempt to comply with anything the Judges laid down as law. Do you still think that there is some inherent value to the judgment nonetheless? Is it valuable because it has stoked the debate on the ground?

UR: Honestly, I think that is the only place where the Supreme Court judgment is not valuable. If you want to stoke a debate on the ground, this is not how you do it. There is no room for a publicly reasoned, rational debate right now. So I don’t think that is an inherent value in the judgment.

What I find interesting is that when the Constitution bench of 5 judges had sat, and they were giving decisions on various issues, almost every decision had a strong and witheringdissent. And many a time, when I read these judgments, I notice that the majority opinion does not reflect what the dissent has said, and the dissent does not address the reasoning of the majority. So they don’t address each other. This is strange, as when we say it is a dissent, it must be a dissent to the majority, not a standalone opinion. But I don’t see that at all. So this complete compartmentalisation of each judgment, even within the same case, I think it has been an unfortunate phase in the process of judgment delivery. It’s created a lot of complications because of that.

4

LSPR: In light of the recent slew of Bills passed by the Lok Sabha (and some by the Rajya Sabha), some have argued that Parliament is no longer a body which carefully deliberates, but simply passes laws. First, what do you think the role of the Parliament in the Indian polity should be? Second, how do you remedy the present situation?

UR: It’s not just that they have passed a slew of legislations. Several phenomenon have occurred, which we cannot allow to continue. First, the attempted redundancy of the Rajya Sabha, which is happening very often. It is being done through devices which although available in the Constitution, are available for a very particular reason. For instance, the device of the money bill. The liberal use of the money bill , when a party which is in power has a majority in the Lok Sabha, to side-line the Rajya Sabha, is not a healthy way to pass legislation. Legislations have to be deliberated and debated upon.

See, it’s also important to remember that it is only in Parliament that you must have these two bodies. In the States, you do not need to have a Legislative Council. The importance of the Rajya Sabha is also that it is a continuing body, so there is an awareness of the kind of legislation that the earlier Governments have passed as well. So you can use this to strike a healthy balance, and taking away this balance is a bad idea.

Secondly, Parliamentary Standing Committees are important deliberative spaces. And it’s not important just because Parliamentarians themselves deliberate. It is important because Parliament gets an opportunity to listen to people who are outside Parliament, and are actively working on these issues. And mostly, there are contesting claims. Parliament can listen to all sides, and then decides the best course of action. And Parliament has the ability to access information. It can ask the Government to provide information, and when properly provided, it can act on this information. And when we say Parliament is a ‘deliberative’ body, it’s not just about deliberating within Parliament, but also deliberation with everybody else. Deliberation includes learning to hear what is happening in the complex country that is India. That is being short-circuited, which is unfortunate.

Thirdly, and this cannot be ignored, laws are not made in a vacuum. Laws are made because there is an issue, and that issue needs to be addressed. If the various views on that issue are not heard, considered, taken on board, then laws just become an instrument, and loses its normative quality altogether. And that is extremely undesirable.

5

LSPR: The Election Commission recently asked the Delhi Police to file an FIR against Mr. Syed Shuja, who said that he can show how Indian Electronic Voting Machines (EVMs) can be hacked. Similarly, an environmental journalist working on Sterlite was interrogated by the police and later deported, for interviewing locals affected by the pollution caused by the Sterlite plant. What is your opinion on the State using State machinery to clamp down dissent?

UR: I don’t see a problem in the idea that the State’s machinery speaks to people who are protesting. The problem is, this ‘speaking’ is becoming an interrogation, because they are seen as wrongdoers. There is an environmental issue in Sterlite, there is no doubt about that; and a large number of people are unsure about EVMs. So it makes sense for the State to listen to these people. So to speak to them is one thing, but to interrogate them changes that power equation. I think an increasing trend that we’ve been seeing over time is that the State feels it should be protected from the people, and that it should be left free to do what it sees as best for the country. This is a phenomenon that reduces the ability of State to make decisions which are more prone to be right than otherwise. It is not wrong for the State to have ambition, for instance that we should economically progress and that no one should die of starvation, is a good thing for a State to have. But, where the State feels like anyone who opposes what it wants should be seen as an adversary, this situation should not just be addressed but also attacked. It is just to do with power and has got nothing to do with reason.

Challenging the State functions is also seen as a way to create anxiety among people. But anxiety does need to be created so that the State, and others, will find answers to allay that anxiety. But producing that anxiety cannot itself be a fault. I’m talking about public policy and law anxiety which are necessary parts of creating a good democracy.

6

LSPR: How should civil society respond when State misuses their authority under law, and stifles their voice?

UR: Civil society means all of us as a people, and the idea of a people speaking to the State, which existed, for instance, during the National Movement, has dramatically reduced since then. There is now far greater trust that the State will act for us, so we wait for the State to act for us. Yet, there are institutional arrangements which we can use. There are 3-4 things we can do. Those who see that there’s a problem speak out. When there is clampdown on speech, more people speak up, because clampdown on speech is not something a State is entitled to do, and should not be doing. Then there are a few people who take this to the Court so that the Court gets an opportunity to restore the balance. Sometimes the Court does do it and other times it does not, and the Court also shares the same kind of approach to people that the State has; in which case people have to find other means. This is why we keep saying that the freedom of speech and expression is among the most important freedoms that we have. If you can’t say it, no one will know it. If you’ve read George Orwell, this is the idea of the uniform person, who just follows orders. To quote Rousseau, “Obedience is not the duty of the citizen”.

There are times when we need to find ways to train the State, just like we need to train the Court sometimes, to understand what people mean when they see freedom and liberty for themselves. When that gets forgotten, jogging that idea along is a responsibility we can never give up. If we all accept the clamping, keep quiet and see what happens, think about what a life without freedom and liberty means. Today, I might accept the clamp because it doesn’t affect me. If you accept the clamp because it happens to somebody else, one day it could reach you, especially deprivation of liberty. To contrast it to extreme poverty, there it is very difficult to find empathy. But when it is about freedom and liberty, it can happen to anybody.

7

LSPR: You have been involved on the ground level in studying the Thoothukudi violence. The media reports say that the crowd set things on fire and the police only shot at them in response. To what extent is this true, and in what circumstances do you think it is justified for the State to use violence against its citizens?

UR: I was part of a team that visited the area and spoke to a large number of people. In Thoothukudi one of the striking things was the way in which the legal profession responded. You don’t see that too often. About 100 lawyers got together and went out and offered their services to people who were being picked up by the police and put in various places. Magistrates worked overtime to hear all these cases, and give bail in many of these cases. A Magistrate went from the District Court Complex into the police station where he was told people were getting beaten up. Once he went there he was told that he could be any Magistrate but had no jurisdiction there. But there the role of the legal community was quite remarkable. Both Magistrates and lawyers were seeing that there was something being done to the people of the city, and the villages in that area, and they responded.

When we look at the episode of burning, we can’t start from there. We need to understand that it was a protest that was building up for some time, and that it had gone on for 90 days. You have the company Sterlite going to the Madurai Bench of the Madras High Court and asking them to ask the administration to impose Sec.144 of the Criminal Procedure Code [Power to issue order in urgent cases of nuisance and apprehended danger]. This is extraordinary because the protest had been on for such a long time and there had been no incident even resembling violence. It started in villages and spread across from one village to another, at a time when the company was starting to expand. That’s what alerted them. The experience of the villagers was that the morbidity rate was increasing, the water had become completely contaminated, the agriculture, which was their basic occupation, had been affected. What they wanted to do was to take a memo and give it to the Collector. This shouldn’t have happened and in fact the Collector should have gone around from village to village to find out what their problem was. But of course that didn’t happen. The High Court saw some pamphlets and asked the Company to go the administration. The evening before the 100th day, when all the villagers had planned to congregate at the Collector’s office to hand over the memo, the Collector issued Sec. 144 orders. But interestingly the next day, when Sec. 114 orders had been issued, the Collector, the Tahsildar, the Deputy Collector, and the Deputy Tahsildar all left the place that day. Does it make any sense at all? You issue Sec. 144 orders, apprehending trouble, and then all the civil officers walk away from the town. The people asked, if they had intended violence would they have taken their infants along, packed their lunches? Is this how preparation happens for wreaking violence?

There are many theories about burning of the cars. Many people said that when they went the cars were burning in the Collectorate, even before they reached. Now somebody has to investigate and find out who caused the arson. Who is going to investigate? The blame has already been put on the protestors without doing any investigation. What is very clear though is that there was targeting and killing of the people. You see a sniper standing on top of a building and shooting down into the crowd. You see a policeman standing on top of a van and shooting people. Whatever else you may say, this is not the job of the police.

This has raised a lot of questions about the relationship between the administration and the Company. So long as the State does not attempt to find out why the four civic administrators walked away from the scene and left it to the police to do what they would; and so long as the State doesn’t conduct (proper) investigation into what the problems were that the people were facing, then all the questions that you ask will remain unanswered. There will be distrust everywhere, but there will be no answers.

8

LSPR: The Ministry of Home Affairs Surveillance Order authorizes 10 Central agencies to access any information from any computer. The MHA has claimed that this is crucial for ‘national security’. Can you give us more insights into this contested terrain of ‘national security’?

UR: The Government explained that they were just formalizing what was in practice so that nobody other than these agencies will do it, and that they were giving it a certain openness. I don’t think it’s untrue that these agencies were already doing it. There is a power that has been taken by these agencies, and it’s an unanswerable power. Many of these agencies are unanswerable anywhere, not to Parliament, not to an RTI. All of them protect themselves from being viewed. So this is like an open declaration. But what they have said is not just about general surveillance. They can enter any computer, they can monitor it, they can decrypt anything on it, see whatever they want, and presumably draw any conclusions they want. So this belief that only by taking away the liberties of the people can you maintain national security; you could turn the question around and ask why national security? If it is not for preserving the rights and liberties of the people, what do we do with national security? Is the nation only the territory or is the nation the people and the territory? I think this is a phenomenon that has overtaken us, where certain kinds of issues become issues where you cannot contest whatever action is taken. One such issue is corruption, and the other is national security which the State has been using since the 1980s. The colonial State used the protection of the State from the people of the State as a national security issue. It seems that that’s where we are headed now, where a State has to be protected from the people.

Look at where the national security issue actually is: You are asking all the people in this country to get databased in multiple places. These databases are not invulnerable. Not only are they not invulnerable, in the case of the UID, they’re being held by companies. All our data is being held by companies who have links with the CIA, the French Government, Department of Homeland Security, and we don’t seem to see that as a national security issue. In fact, when Edward Snowden spoke up in 2013, and showed that India was among the countries being surveilled by the National Security Agency in the US, the Indian government at that time just soft-pedalled the whole issue. This told us that we can’t rely on the State to protect our interests against these kinds of agencies who want to snoop on us all the time. The State wasn’t willing to speak up to protect us as a people, so we need to speak up as a people. Think about the kinds of projects that have been coming in since 2008-09 till now. The idea of personal information as a national resource for economic exploitation has been growing, which basically means that people are not even subjects, forget citizens; we are just objects for a business enterprise. All this compromises national security. It compromises the individual. Yet, we use the language of national security to produce all this information.

Image Sources: National Herald, Deccan Chronicle, Hindustan Times, Indian Express, DNA India, NDTV.