Saturday, December 25, 2010

Sedition and the Indian state.

Dr Binayak Sen was found guilty of sedition in India this week. This has shocked the nation and unfortunately, points to the farce that Indian democracy has become.

Arundhati Roy was also threatened to be tried for sedition on her remarks on Kashmir earlier this year.

The Free Binayak Sen group on Facebook has sent the following text:

Mohandas K. Gandhi On His Conviction for Sedition:
I owe it perhaps to the Indian public and to the public in England to placate which this prosecution is mainly taken up that I should explain why from a stanch loyalist and cooperator I have become an uncompromising disaffectionist and non-cooperator. To the court too I should say why I plead guilty to the charge of promoting disaffection toward the government established by law in India.

My public life began in 1893 in South Africa in troubled weather. My first contact with British authority in that country was not of a happy character. I discovered that as a man and as an Indian I had no rights. More correctly, I discovered that I had no rights as a man because I was an Indian.

But I was not baffled. I thought that this treatment of Indians was an excrescence upon a system that was intrinsically and mainly good. I gave the government my voluntary and hearty cooperation, criticizing it freely where I felt it was faulty but never wishing its destruction.

I came reluctantly to the conclusion that the British connection had made India more helpless than she ever was before, politically and economically. A disarmed India has no power of resistance against any aggressor if she wanted to engage in an armed conflict with him. So much is this the case that some of our best men consider that India must take generations before she can achieve the Dominion status. She has become so poor that she has little power of resisting famines. Before the British advent, India spun and wove in her millions of cottages just the supplement she needed for adding to her meager agricultural resources. This cottage industry, so vital for India’s existence, has been ruined by incredibly heartless and inhuman processes as described by English witnesses. Little do town dwellers know how the semi-starved masses of India are slowly sinking to lifelessness. Little do they know that their miserable comfort represents the brokerage they get for the work they do for the foreign exploiter, that the profits and the brokerage get sucked from the masses. Little do they realize that the government established by law in British India is carried on for the exploitation of the masses. No sophistry, no jugglery in figures can explain away the evidence that the skeletons in many villages present to the naked eye. I have no doubt whatsoever that both England and the town dwellers of India will have to answer, if there is a God above, for this crime against humanity, which is perhaps unequaled in history. The law itself in this country has been used to serve the foreign exploiter. My unbiased examination of the Punjab Martial Law cases has led me to believe that ninety-five per cent of the convictions were wholly bad. My experience of political cases in India leads me to the conclusion that in nine out of every ten the condemned men were totally innocent. Their crime consisted in the love of their country. In ninety-nine cases out of a hundred justice has been denied to Indians as against Europeans in the courts of India.This is not an exaggerated picture. It is the experience of almost every Indian who has had anything to do with such cases. In my opinion the administration of the law is thus prostituted consciously or unconsciously for the benefit of the exploiter.

The greatest misfortune is that Englishmen and their Indian associates in the administration of the country do not know that they are engaged in the crime I have attempted to describe. I am satisfied that many Englishmen and Indian officials honestly believe that they are administering one of the best systems devised in the world and that India is making steady though slow progress. They do not know that a subtle but effective system of terrorism and an organized display of force on the one hand, and the deprivation of all powers of retaliation or self-defense on the other, have emasculated the people and induced in them the habit of simulation. This awful habit has added to the ignorance and the self-deception of the administrators. Section 124-A, under which I am happily charged, is perhaps the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizens. Affection cannot be manufactured or regulated by law. If one has an affection(sic) for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence. But the section under which Mr.Banker [a colleague in non-violence] and I are charged is one under which mere promotion of disaffection is a crime. I have studied some of the cases tried under it, and I know that some of the most loved of India’s patriots have been convicted under it. I consider it a privilege, therefore, to be charged under that section. I have endeavored to give in their briefest outline the reasons for my disaffection. I have no personal ill will against any single administrator, much less can I have any disaffection toward the King’s person. But I hold it to be a virtue to be disaffected toward a government which in its totality has done more harm to India than any previous system. India is less manly under the British rule than she ever was before. Holding such a belief, I consider it to be a sin to have affection for the system. And it has been a precious privilege for me to be able to write what I have in the various articles tendered in evidence against me.

In fact, I believe that I have tendered a service to India and England by showing in non-cooperation the way out of the unnatural state in which both are living. In my humble opinion, non-cooperation with evil is as much a duty as is cooperation with good. But in the past, non-cooperation has been deliberately expressed in violence to the evildoer. I am endeavoring to show to my countrymen that violent non-cooperation only multiplies evil and that as evil can only be sustained by violence, withdrawal of support for evil requires complete abstention from violence. Non-violence implies voluntary submission to the penalty of non-cooperation with evil. I am here, therefore, to invite and submit cheerfully to the highest penalty that can be inflicted upon me for what in law is a deliberate crime and what appears to me to be the highest duty of a citizen. The only course open to you, the judge, is either to resign your post, and thus dissociate yourself from evil if you feel that the law you are called upon to administer is an evil and that in reality I am innocent, or to inflict upon me the severest penalty if you believe that the system and the law you are assisting to administer are good for the people of this country and that my activity is therefore injurious to the public weal.

Saturday, December 18, 2010

A song by indigenous group of people: Orissa, India

"Gaon chodab nahi" -
This is a song from Orissa, India. A glimpse of what mis-directed development is doing to the tribes in the state.

Thursday, December 16, 2010

India's hypocrisy on human rights?

A series of articles debate the Indian State's hypocrisy on human rights, in the context of China's peace activist winning the Nobel.

Many believe that India went ahead to endorse the Nobel peace prize, only to "prove" she is not afraid of China, than to stand up to the spirit of recognizing and encouraging dissent.

Here is a piece in the Economic Times, analyzing what would New Delhi do, if Irom Sarmila were to be awarded the prize. Irom, the poet activist from Manipur has been on hunger strike for a decade.

Another article speaks for Arundhati Roy winning the prize. How would the State react, if Roy, given her stance on Naxals and Kashmir has upset the establishment.

It can be countless others in the country who silently protest human rights abuses in the so-called democracy that India is, how will the State react to the recognition of these struggles?

Thursday, December 9, 2010

NYT: Poem by Liu Xiaobo - China's Nobel Peace Laureate

Liu Xiaobo, a poet and literary critic, is the recipient of the 2010 Nobel Peace Prize. China has forbidden him to travel to the award ceremony, which will be held on Friday in Oslo. This poem was translated by Jeffrey Yang from the Chinese.

Published: December 8, 2010
New York Times

from “Experiencing Death”

I had imagined being there beneath sunlight
with the procession of martyrs
using just the one thin bone
to uphold a true conviction
And yet, the heavenly void
will not plate the sacrificed in gold
A pack of wolves well-fed full of corpses
celebrate in the warm noon air
aflood with joy

Faraway place
I’ve exiled my life to
this place without sun
to flee the era of Christ’s birth
I cannot face the blinding vision on the cross
From a wisp of smoke to a little heap of ash
I’ve drained the drink of the martyrs, sense spring’s
about to break into the brocade-brilliance of myriad flowers

Deep in the night, empty road
I’m biking home
I stop at a cigarette stand
A car follows me, crashes over my bicycle
some enormous brutes seize me
I’m handcuffed eyes covered mouth gagged
thrown into a prison van heading nowhere

A blink, a trembling instant passes
to a flash of awareness: I’m still alive
On Central Television News
my name’s changed to “arrested black hand”
though those nameless white bones of the dead
still stand in the forgetting
I lift up high up the self-invented lie
tell everyone how I’ve experienced death
so that “black hand” becomes a hero’s medal of honor

Even if I know
death’s a mysterious unknown
being alive, there’s no way to experience death
and once dead
cannot experience death again
yet I’m still
hovering within death
a hovering in drowning
Countless nights behind iron-barred windows
and the graves beneath starlight
have exposed my nightmares

Besides a lie
I own nothing

Monday, December 6, 2010

U.S. Class Action Suits for Bhopal Victims

Federal class action lawsuits for Bhopal victims
Priti Patnaik
New York, July 2010

Far away from the heat and dust of Bhopal, two federal class action lawsuits are under way here in New York City.

The Bhopal cases filed in the U.S. have had a circuitous history, not unlike in India.

The cases, Sahu Vs. Union Carbide et al, are civil cases filed in the United States District Court for the Southern District of New York. Plaintiffs are seeking remediation to address personal injury and damage to property. They are also fighting for medical monitoring. They claim that UCIL’s Bhopal plant produced hazardous wastes during its normal operations that contaminated the soil and drinking water of local communities. These cases are different from the claims arising soon after the 1984 disaster. Those initial claims were thrown out on grounds of forum non conveniens – a doctrine where the district court refused to take jurisdiction over the matter citing a more appropriate forum available to the parties.

In their complaint filed in 2004, plaintiffs Janki Bai Sahu et al, have said that UCC and its former CEO, Warren Anderson, should be held liable for their injuries on the grounds that they were “direct participants and joint tortfeasors in the activities that resulted in the pollution, that UCC worked in concert with UCIL to cause, exacerbate, or conceal the pollution and that UCIL acted as UCC’s alter ego, justifying piercing the corporate veil”.

Richard L Herz, Earth Rights International, co-counsel in the Sahu case, said, “The aim is to establish that UCC and Warren Anderson are liable for the pollution that has contaminated the plaintiffs' drinking water and that of thousands of their neighbors.”

At present, UCC maintains that the company cannot be held liable for the actions of the Indian subsidiary. “By requirement of the Government of India, the Bhopal plant was detail designed, owned, operated and managed on a day-to-day basis by Union Carbide India Limited (UCIL) and its employees,” Tomm F. Sprick, Director, Union Carbide Information Center said in an email. The company has chosen to “recharacterize 20 years of its association with UCIL, as a period of minimum involvement,” H. Rajan Sharma and lead counsel in the Sahu litigation said.

Plaintiff lawyer, Mr Herz cited company documents dating back to 1973 demonstrating UCC’s involvement with the Indian subsidiary. “UCC was intimately involved in all aspects of the Indian operation that caused the pollution that continues to contaminate drinking water in Bhopal. It transferred technology that was inadequate, approved plans for design of the plant and participated in the creation of the toxic landfill that ultimately failed,” he said.

The journey of these cases through U.S. legal system has gone on for the better part of this decade, but it is imperative for the Indian government to act immediately. On June 24th 2008, the Indian government communicated to the district court that they would cooperate with any clean up by the UCC. “But that has not proven to be sufficient,” Mr Sharma said.

In the past, the District Court which is the lower court, was of the opinion that a US court may have trouble issuing a binding enforcement for an environmental clean up in another country, because the court believed this could interfere with the sovereignty. “Although the Plaintiffs do not believe that such concern is warranted, for this reason, the Union of India’s participation has been sought in the action,” Matthew K. Handley, Attorney, Cohen Milstein Sellers & Toll PLLC said.

In light of the recent judgment in India, the government must take concrete steps to address the issue. There are fundamental reasons for doing so. “For example, the government should intervene in the New York litigation based on the fact that it owns the land on which the Bhopal plant is located and which is now badly polluted,” Mr Sharma added.

Notwithstanding yet another attempt by the reconstituted Group of Ministers (GoM) on Bhopal, the Government of India should now be a “party” to the cases currently in litigation in the U.S. to push for faster resolution. Not holding UCC liable would mean that the Indian government will have to pay up to clean the site. And that essentially means the Indian taxpayer. Further, it would amount to giving a public subsidy to a company that allegedly perpetrated one of the worst industrial disasters in the world.

Further, UCC, now a wholly owned subsidiary of The Dow Chemical Company, may be held liable under a principle known as piercing the corporate veil. In the past, the district court has said that there was no evidence that UCC was directly responsible for the actions occurring in Bhopal. Usually a corporation is solely responsible for its liabilities. But under exceptional circumstances, the corporation may be held responsible for the liabilities of its shareholders and directors and in this case a subsidiary, thus piercing the corporate veil.

So how critical is it to pierce the corporate veil in this case? “While piercing UCIL’s corporate veil is one of our claims, it is only an alternate approach. We believe that UCC was directly involved in the operations of UCIL and had oversight over implementation, cleanup and training at UCIL. Even if this were not the case, however, UCC’s domination of UCIL should give rise to a piercing of the corporate veil claim and will make UCC liable for its Indian operations,” Handley said.

Besides, unlike before, ‘forum non conveniens’ can no longer be an escape route. Actions of the company are under the jurisdiction of the District Court since UCC was incorporated in the state of New York. Also, UCC has been criminally indicted in India and will never suggest that the case be moved to India. United States District judge J.F. Keenan presided over the case in the 1980s when the case was sent to India on the grounds of forum non conveniens. He said that the court was convinced that the Indian legal system was in a far better position than the American courts to determine the cause of the tragic event and thereby fix liability. He continues to preside over the on-going cases at the District Court now. This district court is an influential one, under its jurisdiction are the major financial centers of New York. Usually, a publicly traded company whose shares are traded on NYSE falls under the jurisdiction of this district court.

When asked to comment on the cases that are in progress, Sprick of UCC said, “Neither Union Carbide nor it attorneys will discuss matters currently in litigation. This was in response to an email query sent to defendant lawyer William A Krohley, partner at Kelley Drye & Warren LLP.

At present, plaintiff lawyers have been allowed limited discovery but have not been allowed to conduct depositions or interrogations. Reaching the jury trial stage in the case is at least two years away at the earliest. This is assuming plaintiffs are successful. (See time-line). If the verdict of the jury trial at the District Court is in favor of the plaintiffs, UCC can choose to appeal against the verdict at the appellate court. But UCC will then have one final opportunity.

Appeals from the Southern District of New York are taken to the United States Court of Appeals for the Second Circuit, an appellate court. The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals. It appears the appellate court has, in the past, largely agreed with the stance of the plaintiffs and believes they have a valid claim. The final word will be of the appellate court. Amen.


A version of this story was carried in the Financial Express, India.

This was originally filed in July this year in New York. I loved the fact that I could access all court documents simply by showing my NYU student card. This is impossible in India.

Here is an update in late September 2010 from Court was unconvinced about the principle of piercing the corporate veil. The New York Law Journal also reported that papers revealing UCC's general knowledge of UCIL's operations were too insufficient to show that UCC worked in concert with UCIL.

Saturday, December 4, 2010

Foreigners can't file human rights suits in America?

In a major setback for people queuing up at American courts to seek justice, denied in their own home countries, one American court ruled that businesses may not be held liable for their actions overseas.

Here is an October article in The Economist on Alien Tort Claims Act. The second circuit Court of Appeals in New York ruled on September 17th that corporations could not be held liable under the Alien Tort Claims Act for breaches of international law abroad.

The article is optimistic, that if not America, another country will take up the "baton" as it were.

Predictably businesses will be relieved. In fact Dow Chemicals used this measure to throw out the Bhopal claims in the past. But plaintiffs in the Bhopal case, are now using another approach. More on that, soon. (Clearly it is more complicated because Dow is incorporated in the U.S. and the problem has political-diplomatic dimensions.)

The revolution will be tweeted

You would have already read this near-scathing take on Twitter by Malcolm Gladwell in The New Yorker on how the Revolution will not be tweeted. I agree to many of the points he makes on the exaggerated successes of twitter, but it comes off as a very old media argument. I mean, wake up and smell the technology.

The Indian media is in the midst of a super denial: caught on tape some journalists are "heard" "prostrating" to accommodate powerful corporate interests. Predictably, this was blacked out in the mainstream media - one cannot distinguish one newspaper from another - many media groups have blood on their hands. But few nondescript twitter-ers, many possibly not from the media at all, have kept the issue burning and alive.

This is, but just one example. Give it time. Microblogging will not change the world, but it may do so incrementally.

Disclosure: I am a self-confessed compulsive twitter-er, so I may not be completely objective about this.

Hari Kunzru on the privatization of public space

This is super sensitive take on net neutrality, the use of language to produce identity, privately held networks of public space and the role of writers in all this.

Hari Kunzru's address at the European Writers Conference in Istanbul in November.

"New technologies of communication and distribution of information have already changed the space in which we, as writers, live and work. The transnational networks are now the place in which we make our writing, where we research, where our work is archived and where we reach our readers. They are not, it goes without saying, a natural space, but one whose protocols and conventions are set – by engineers, by administrators, and by the companies who own the infrastructure and make the equipment we use to access it. It’s already the case that without access to the internet, people are denied participation in much of world culture. I think the production of this new space is too important to be left to engineers, administrators and corporate executives. We, as writers ought to help set the terms. Of those three groups, our natural allies are the engineers. We should be talking to them. What kind of information space do we, as writers, want to occupy? Where do we want to live and work? What values should be embedded in that space, what protections, what sanctions?

Issues such as net neutrality (the equality of all information traffic), censorship, data collection, personal privacy, and the lack of a persistent archive are of great importance to us. But there are two major tendencies emerging, both of which are having a profound impact."

India's environment minister - too much of an activist?

Read a WSJ story on Jairam Ramesh. A politician doing his job!

Finally, corporates are made liable for the laws they have been skirting around for years. As of now the minister has blessings from the Congress leadership. God speed to him.

I would still be looking out for corporates wars and political slants in many of the licenses being revoked on environmental grounds. I think most journos like Jairam Ramesh.