Tuesday, June 22, 2010

The Case of The Red Sari


Javier Moro’s El Toro (The Red Sari) has already entered a life of anticipatory censorship and free publicity even though it has not been published. It is a factualized fiction about our contemporary leader, Sonia Gandhi, who obviously does not want it published. Were this not the case, her lawyer Abhishek Singhvi would not be shooting his legal mouth in what appears to be partisan Congress aggression. The idea is to pressurize Moro with the threat of a civil suit or criminal defamation case or both. Ever since two professors in Denver coined the word ‘slapp suit’, such threats have been portrayed as forms of legal terrorism. On 6 June 2010, an undeterred, and unimpressed, Moro accused Singhvi of terrorism and threatened to sue him. This is one of these cases where few have read the book, but have no hesitation in joining the crusade against Moro to save the leader. I guess they will have to invoke Shahabuddin’s defence to his attack on Rushdie’s Satanic verses: “You don’t have to read it to know it is filth”. If this is the way we want to run the country, we need to introspect.

When Sonia Gandhi entered the public domain, she placed herself in a position of being cartooned, lampooned, written about, caricatured, criticized and portrayed as good and evil. Was it not Soniaji who awakened the slumbering Vajpayee in the with the stinging suggestion that people of his persuasion on certain mateters were traitors or desh drohis. The more public a person you are, greater the possibility of jibes, sleazy portrayals even in fiction and untruth. Morarji Desai lost his case in America on the basis that even if what Seymour Hersh had said was not true, anything said in good faith and promoting public discourse of a public person was not actionable. We have not fully accepted this approach.

Suggestive innuendoes make–believes, fact and fiction parade our imagination. Let not even the wise Yudhishtra cast the first stone. If Moro tries and wants to get into the mind of Sonia Gandhi, especially when she was the bahu of the reigning Queen Empress, Indiraji and consort to her successor. Is nothing sacred? It is precisely because it is sacral that it needs to be explored.

The book has not even been published in Indian territory. The battle for pre-censorship has begun – presumably at Sonia Gandhi’s bidding. So far she is quiet. Her actions in authorizing legal notices talk. Let her speak or forever hold her peace. If she is silent, she must meet the moral and social charge of censorship.

At present she speaks through the legal mambo-jambo of her lawyers. As de facto ruler of a de jure coalition, she has three legal and one illegal option. Legally, she can persuade (command?) her government to impose a customs ban – invoked from time to time from Katherine Mayo’s Mother India to Salman Rushdie’s Satanic verses. The film Nine Hours to Rama was similarly censored by anti-import laws. Examples from the Nehru, Indira and Rajiv eras display such a misuse of laws. Perilously posed in coalition circumstances, Soniaji would hopefully forbear. The second legal option would be to ban and forfeit the book on the basis that it is seditious, divisive, communal obscene or a threat to the sovereignty and integrity of India. Indira claimed she was India. Soniaji would not be that audacious. In any event, the book has not been published; and there is nothing to forfeit. The third legal strategy is to wait for the book to enter India or show that it is about to enter India, file a case for injunction or stay order (as it is popularly called) to stop entry into and publication and distribution in, India. This is called the slapp suit, which defenders of free speech find reprehensible. And, yet, courts willing grant this as Justice M.K. sharma did in the case of a book on Sikkimese Buddhism only to be reversed by Justice Mudgal’s bench in appeal. But such tactics are a show-stopper. The Supreme Court Bar Association (through lawyer K.K. Venugopal) injuncted Kuldip Nayar’s India House through the Delhi High Court. Likewise the publication Khushwant Singh’s memoirs were stayed at the instance of Menaka Gandhi. The story is as endless as it is shameful in the eyes of a free speech activists. Moro has faced such censorship when the Jabalpur High Court stopped publication Lapierre, Shekhar Malhotra and Moro’s It was five past midnight.

Now, we come to the illegal option which is even more omnipresent in India, and contrary to what Arun Jaitley thinks, runs across the political spectrum. This option would invite the Congress lumpen to intimidate everyone. The Sangh Parivar smashed up the Bhandarkar Institute where James Laine worked and destroyed galleries with Hussain’s, and other, paintings. We now know that the Parivar can rent thugs to terrify beer drinking girls in Mangalore. All too painfully, we also know that Bal Thackeray has set up his own brand of censorship in Bombay, now Mumbai. I would sincerely hope that Soniaji would not pursue the illegal option.

The controversy had proved to be a bonanza for Moro and his publisher. Thousands of publicity pamphlets and tons of advertising could not have given the book the publicity and notoriety that it has achieved. This is crores of rupees of free publicity. The book is already in the public domain. It has been translated into Italian, French and Dutch. The English edition is ready. When Spycatcher was injuncted by English judges, since its contents were already in the global domain, the Daily Mirror did a banner headline calling the judges “You Fools!” This is not necessarily what Indian papers should attempt but expresses a sentiment that where the cat is already out the book, (or the egg has already been scrambled – whatever the choice of metaphor), it is futile to injunct its publication which dates back to 2008. Indian judges will not be as tolerant to such a media denigration Clearly, intimidatory tactics were reserved for India. The unshakeable, Abhishek Singhvi, is relentless. He claims there are more than 20 examples which or not substantiated and are in inverted commas – conversations (some in the head) which Moro could not be privy to. But the biography is a fictionalized account reconstructed by Moro’s mind. Moro agreed that the book contain a disclaimer that this biography is not authorized. Like images in Plato’s cave, it is Moro’s glimpse of fictionalized reality, not Soniaji’s experiments with truth. Since the book is already in the public domain (and more so because of Singhvi’s legal strategy) injunctive relief should be refused. So, the issue will be quantifying damages. Foreign publishers in India tend to back down when faced with legal threats. Moro and Roli Books may not. But they may agree to more disclaimers, deletions and the like.

Soniaji claims to be, and should act as, a statesman. She should ignore the book in one of those flashes of wisdom that should guide the best in the best of us. An Arab proverb reminds us of that wisdom: “Dogs may bark, but the caravan passes by.” Moro is not canine, but he has barked. Let Soniaji’s caravan pass by.

Monday, June 7, 2010

The Bhopal Gas Tragedy


One generation has gone by. Twenty six years after the fatal gas release of methyl isocyanate on 3 December 1984 in Bhopal 15,000 died, 8,00,000 were exposed to the gas and genetic defects will be handed down inter-generationally. Oddly, Carbide Chairman, Warren Anderson, was arrested in Bhopal but released the next day on 4 December 1984. Carbide’s strategy was evasive. First, it got India’s Supreme Court (SC) to reduce the charges to causing death by negligence to limit punishment. Second, in 1989 the infamous deal included exculpating Carbide from criminal proceedings altogether. Mercifully the Supreme Court lifted the criminal immunity it gave to Carbide in 1992. Third, Carbide (US), denied criminal jurisdiction to India. Fourth, Anderson remained a proclaimed offender. In 2004, Anderson extradition was refused by the US.

The trial, thus, became an Indian affair. With Anderson excluded, 9 UCIL officials – 1 having died during trial – were Indians. Unfortunately it is the Supreme Court which reduced the charge to death by negligence carrying punishments upto 2 years or fine or both (Section 304A). Otherwise corporate liability would have been tested under culpable homicide amounting to murder carrying imprisonment for 10 years (Section 304 Part II). Can a person knowing that death would be caused be pronounced merely negligent? There was more to this case than was permitted to surface.
The multinationals always win, leaving the nationals to take the blame. National corporates resist liability. But few laws in the world give immunity to corporates. Under Indian penal law, a “person” includes corporates and collectivities (Section 11). The Standard Chartered case (2005) tried to settle the law to impose corporate liability by way of fine even where the mandatory sentence is imprisonment. In the Bhopal case, the corporates are missing. It is the officers who have paid the price.
We do not have an effective law against corporate liability, against Indian or multinational corporates even, and especially in cases of ‘mass disaster’ where the killing could have been anticipated but profits were zealously pursued. Multi-national enterprises are gifts to the companies of the North nations to play with and exploit the resources and people of the South even if this results in a killing spree. In the first place, corporates offences relating to hazardous activity of the Bhopal kind have already been treated as cases of absolute liability under the civil law. In criminal law, they should be treated as cases of strict liability with the accused (including corporations) having to show lack of fault. Second there should be a law to inculpate multinationals who control, are in charge of or involved in the activity or its beneficiaries. This has been much mulled over but not enacted due to national and multinational pressure. Greed and profits without full responsibility is not acceptable.
As far as the present verdict of 7th June 2010, it has a design fault perpetuated by the SC which has much to answer in this regard. In September 1996, Justice Ahmadi changed the charges to death by negligence which carried imprisonment upto 2 years instead of 10. As late as 2009-100, Abdul Jabbar of the Bhopal Gas Peedit Mahila Udyog argued that defence witness, T.R. Raghuram, had shown that Warren Woomer (UCIC’s manager) had ordered the shut down of the refrigeration system in 1982 and was fully in charge. Without support from CBI’s counsel, Jabbar’s application was rejected by the Bhopal Court because the Supreme Court’s order of 1996 had tied its hands. This means that the Bhopal Court could order upto only 2 years imprisonment instead of 10 years. This cross has to be borne by the Supreme Court, along with its handing of inadequate compensation in the civil case.
This brings us to the question of the fine, which even on the reduced charge of death by negligence (Section 304A) was unlimited. Now 8 lakhs (one each) is to be collected from 8 persons. Was this the promised end? 8 lakhs of criminal liability for misery by mass death, injury, incapacitation and genetic disorders over a period of almost 26 years. A figure somewhere nearer 10-50 crores would have been appropriate even if the punished claim impecuniosity. The message that this sends out to corporate managers is that the air at the end of tunnel is not financially turbulent.
But, why was the trial delayed even after 1996. Contrast Kasab’s trial in the attack on Mumbai. When India’s justice system wants to work, it does so. When it wants to devote its time to Reliance squabbles, it does so. But cases like Bhopal are given low priority.
The present Bhopal verdict decided what was expected. The Court’s hands were tied by the Supreme Court lowering the charge in 1996. The punishment could have been higher. The multi-national went scot free. The absconder, Warren Anderson, sips tea in New York.