It’s been almost a year…

It’s been almost a year since I last wrote here, and to say that this period has been “eventful” would be an understatement. After spending seven years in the profession as a litigator in a law firm (which was my first ever job), and dare I say having earned my stripes, I finally went independent as an arguing counsel late last June. These eight months of “independence” have been hectic in a good way and they have taught me quite a few things about myself and the profession.

For instance, despite having been part of a law firm setup for well over half a decade, I have come to realize that my conscious decision to not start a firm of my own and instead opt for a Chamber practice as an arguing counsel appears to have been a prudent one given that running a firm is perhaps more akin to running a business, in that it demands your attention 24*7*365. The significant managerial and administrative responsibilities that come with running a firm would have left me with little or no time to read widely and deeply on the law and outside of it on areas which interest me such as history, politics and economics, all of which I believe add to the practise of an arguing counsel. 

Importantly, the skill set needed to successfully run a law firm, I think, is very different from the one needed to be a good litigator or counsel. One perhaps needs to be a “systems” guy to manage a firm, whereas the practice of an arguing counsel is relatively more of a solo act. That’s not to say that you don’t need the support of a committed team to succeed as an arguing counsel. All I am trying to say is that there may be several gifted individuals who are capable of running a firm as well as appearing in Court day in and day out without there being a dip in their performance, but I don’t consider myself one of them. Therefore, given my love of the law and the Courtroom and my commitment to give them my all, I chose not to experiment with running a firm, and instead decided to focus on honing my craft as an arguing counsel.

The other thing I learnt was that, as an arguing counsel while you can have your areas of core competence, in India you are expected to go beyond your comfort zone(s) because after a point of time, what matters and is valued is your ability to quickly understand the broad framework of a new area of practice and the nature of the forum, assimilate the facts of a case and the issues at play, apply the legal framework to the case and articulate it in a lucid and convincing manner to the forum. In a nutshell, you can or are perhaps expected to be a jack of some and master of a few without being perceived as spreading yourself too thin. Therefore, adaptability at short notice (sometimes barely an hour’s notice) is something you pick up as an arguing counsel.

While one could go on and on, to cut a long story short, each day as an arguing counsel brings with it a unique experience and the opportunity to learn from tremendously gifted peers, regardless of which side they are on. Hopefully, I have a long way to go and don’t stop learning. I certainly hope to frequently share with the readers whatever I learn. 

Off-Topic: The Psychology of Attribution

I tried thinking of examples of professions in this day and age where one can safely and practically say that one is competing only with the self, but I honestly can’t think of any mainstream vocation where one could make this claim without sounding clichéd and impractical.

Despite the overwhelming explosion of information about every profession, the irony is that quite a few of us continue to live in the bubble that cut-throat competition is the sole propriety of only the professions we practice. But that’s just the grass seeming greener on the other side.

Competition is here to stay in most fields until we evolve a more sophisticated and collective model of growth. Until that Utopian evolution happens, all we can do is to insist on rigorous adherence to certain first principles to ensure that trust, mutual respect and civility continue to be valued and observed in inter-personal dealings at the workplace.

Among those first principles, the one which needs to be ruthlessly insisted upon and enforced, considering that it is most susceptible to the pulls and tugs of competition, is “attribution”. Philosophical justifications aside, “attribution” is practically critical for team work and effective leadership.

Instead of highlighting the positives of attribution, it would probably help more to know the downsides in failing to give someone her or his due. When a team leader or a colleague fails to attribute someone for his contribution, it slowly leads to resentment, and gives the impression that the leader or the colleague is insecure about sharing credit with his team members.

Resentment in turn leads to progressive levels of dissent because trust in and respect for the leader or the colleague have suffered erosion. After a point, the leader is bound to encounter frequent insubordination, and if he is perceptive enough, is bound to sense a discernible lack of interest in his team members to contribute to the growth of the workplace.

The probable reason why failure to attribute has flammable consequences is that it provides ample fodder to a person’s sense of being a victim, and self-pity is known to be a self-feeding animal. The problem with self-pity is that a person in the grip of this mindset is rarely alive to his or her faults, for he has firmly entrenched himself in an impregnable cocoon of righteous indignation. Needless to say, all this certainly cannot lead to a conducive and productive atmosphere at the workplace.

Attribution facilitates greater co-operation between team members and the leadership even in relatively selfless professions. Someone I know is in the Indian armed forces, and has probably one of the finest service records, which is strewn with acts of bravery. He told me that more than patriotism, it is a fierce sense of loyalty to one’s Commanding Officer which is largely responsible for several acts of unquestioned obedience and bravery during battle. I was told that it is not just the Commanding Officer’s abilities which inspire loyalty, but also the belief that individual acts of bravery of soldiers would not go unnoticed by the CO. This is important because it is the CO who recommends his soldiers for awards of bravery.

This example is not meant to undermine the importance of patriotism, but incentive does play a key role even in the Armed Forces where most of us would typically expect a soldier to be an epitome of selflessness.

Since attribution and incentive are so deeply connected, the former is indispensable to ensure fairness in distribution of incentives. What is pertinent is that the need for rigorous attribution applies all the more if the workplace is in the business of innovation. Enterprises which are in the business of innovation would do particularly well to have specific and sensitive mechanisms in place to recognize individual contributions. Such recognition, contrary to what one might expect, does not undermine the positives of team work. Instead, it forces people to be careful enough to not accept undue credit, which goes a long way in nurturing mutual respect for each others’ talents.

The bottom line is, attribution, which is at the heart of IP jurisprudence, is the hallmark of integrity, and workplaces which fail to recognize this are bound to implode.  

Off-Topic: Nexus between Creativity and Mentorship

A few hours ago, I was watching one of my all-time favourite movies “Swati Kiranam” (Telugu) starring Mammootty, Radhika and Master Manjunath (of Maligudi Days fame). The film narrates the fictional story of a singing prodigy whose creativity is steadily snubbed and snuffed out by an established classical singer under the garb of mentorship.

For me, the movie has three different take-aways:

1. Those of us who look for role models elsewhere would do well to draw inspiration from the glorious tradition of Indian Classical music which has produced perfectionists of the highest order.

2. Barring exceptions, raw unhewed creativity, without the benefit of mentorship, can only produce a few flashes of brilliance. Mentorship is imperative for consistent creativity.

3. Mentors must protect themselves from being afflicted by jealousy/envy.

“Consistent creativity” may sound oxymoronic thanks to the spirit of mavericism which has come to be associated with creativity. “Consistency” has probably become synonymous with lack of imagination and “standardization”. If “consistent creativity” is re-worded as “disciplined creativity”, it has too rigid a connotation and may not find favour with many.

That said, if one were to set aside all hair-splitting on semantics, and instead were to focus on the essence behind “consistent creativity”, one would understand that what is sought to be conveyed is a sense of responsibility which must go hand in hand with creativity. In other words, the truly talented/gifted ones must utilize their potential to the fullest possible extent, with a broad world view characterising the use to which such talent is put.

Responsibility/duty, contrary to the popular notion, is not a burden on “talent”. In fact, it builds a foundation which helps talent withstand negativity in the form of criticism motivated by vested interest and baser emotions like jealousy. A sense of responsibility gives talent a direction, instead of letting talent dissipate its energies in frivolous myopic pursuits or ego-trips or a game of one-upmanship.

Importantly, a duty-based approach to talent ensures that exhibitionism remains at bay, and the cause or purpose remains supreme. This is critical because talent, if not tempered by duty, is frequently mired in self-obsession and self-edification.

As for mentorship and mentors, the first and foremost qualities expected of them are a large heart and a broad mind, which are alive to and not unhappy with the prospect of finding a protégé who is better than the mentor himself or herself can ever be. Those who cannot keep jealousy at bay must never don the mantle of a mentor because not only does jealousy harm the protégé, it also pushes the mentor down a disgraceful path.

A good mentor, in my opinion, never imposes his or her mentorship on the prospective protégé, instead he recognizes the right of the protégé to accept or reject his or her mentorship. Voluntary acceptance of mentorship, to me, is a sign that the protégé respects both the mentor’s individual capabilities and his ability to act as a mentor. The pivotal role played by such voluntary acceptance is often ignored in a blind pursuit to “collect” protégés.

Voluntary acceptance of a mentor ensures that mistakes committed by the mentor are not interpreted by the protégé as the mentor’s lack of proficiency. Instead, they are treated as errors which are but human, and are hence not indicative/demonstrative of the mentor’s lack of talent. This window of error is necessary to avoid  loss of respect, and consequent ego tussle between the mentor and the mentored.

Unfortunately, these issues, which are integral to human resource management, do not appear to engage our attention as much as they ought to, when we speak of harnessing creativity for innovation. Sustained innovation calls for repeated introspection on how we handle creativity, and re-statement of values which we treat as cornerstones of an ecosystem which promotes innovation.

I look forward to hearing from our readers, especially those who have real-time experience in handling talent in their establishments.

Off-Topic: The storm between the Fest- The Satanic Verses plays Tempest

The Indian media over the last one week, has been flooded with news relating to one man- Booker prize winner Salman Rushdie. As the Jaipur Literary festival took stage, a few authors chose to read from his book “The Satanic Verses” – his work that was banned from release in India in 1988, on the pretext that the contents were hurtful to the religious sentiments of Muslims residing in India.

The controversy surrounding the book really took centre stage, as some authors chose to read excerpts from The Satanic Verses . The readers of excerpts state that they did so, not from the book, but in fact from excerpts available online. The readers of the excerpts, were advised to leave Jaipur for the fear of arrest.

The fact that disturbs me is that while the book is banned for release, sale, import etc. in India, would reading of its excerpts also qualify as an act that would be actionable under law???

One of the issues that bothers me is the issue of access. Although physical copies of the book are unavailable, the presence of its extracts in the internet space, does facilitate access, even though the extent of it may be limited. In this view can reading an excerpt really put one into trouble?

Another aspect is, what about freedom of expression? We know of several authors, painters,and film makers who choose rather provocative subjects. And so long as the readers chose extracts that were in fact not so provocative, should they be really threatened? And more so, in the context of a book, how would one judge what is distasteful to many, separated from the rest of the body of the work that travels with it?

While everyone, including retired Justices of the Supreme Court of India, has had something to say, this issue and the blowing up of it itself has left a bad taste in my mouth.

On one hand, in the world of Intellectual Property we talk of creative freedom, so much so that we have disregarded registration as an essential to enforce one’s rights in a work; On the other, the world of constitutionality talks of freedom of speech and expression. And yet some authors in appreciation, criticism or by reference, referring to a banned book is a taboo..

I am really at loss of an opinion- is this a reflection of the fact that we are still where we were, close to 25 years back??? Or, is this just an attempt to make a noise, specially since, we are considered a society that has always been open to interpretations, versions and fables to follow..

Off Topic: The Cynicism and Criticism Surrounding the Indian Anti-Corruption Movement

Warning: This post has nothing to do with IP law, although it may have something to do with the administration of every government establishment, including the Indian IP establishment. (This Post has been edited to correct a few errors in sentence construction and facts)

For 3 months now, the 2011 Indian anti-corruption movement, as Wikipedia calls it, has been occupying the centre stage of Indian politics. 

The face of this movement arguably is Mr.Kisan Baburao Hazare, better known to scores of his enemies/detractors/critics/agnostics /admirers/followers/fans/devotees as “Anna Hazare”.  

Anna’s core group of activists, as on date, consists of:

1. the retired super cop and Magsaysay awardee Ms.Kiran Bedi, who has the distinction of being the first woman to join the Indian Police Service (IPS);

2. Mr.Arvind Kejriwal, an IIT Kharagpur alumnus, one of the most visible faces of the Right to Information movement and yet another Magsaysay awardee;

3. Mr.Shanti Bhushan, a former Union Law Minister and a renowned senior advocate of the Supreme Court of India;

4. Mr.Prashant Bhushan, son of Mr.Shanti Bhushan, and an activist lawyer practicing before the Supreme Court of India. He has been one of the most ardent voices against corruption in the Indian Judiciary.

Two other names which were earlier part of the core group are Justice Santosh Hegde, former Judge of the Supreme Court of India, and Swami Agnivesh, a political activist.

Anna and his team, christened “Team Anna” by the media, run an organization called “India Against Corruption”. One of the primary objectives of Team Anna is to push for a strong anti-corruption legislation called “The Jan Lokpal Bill”, which envisages the creation of a super ombudsman who has the power to investigate and prosecute charges of corruption against, bureaucrats, the judiciary and ministers, including the Prime Minister.

The salient feature of the legislation proposed by Team Anna is that the authority established under this proposed law, namely “Lokpal”, will not be a political appointee. There are several other such features, which is not exactly the point of this post. For a better understanding of Team Anna’s version of the Bill, please visit here.

The version proposed by the Government, which is seen as a boneless spineless wonder by Team Anna and large sections of the population, is available here.

A comparison of both versions of the Bill, as presented by Team Anna, is available here.

Now, to the actual topic of the post. Anna’s movement, in particular, his non-violent fast-unto-death protest has won the “hearts and minds” of people the world over, and accolades have poured in even from ostensibly the most unexpected quarters- Pakistani media and middle class.

Even the Chinese could not remain oblivious to this mass movement.

It so happens that despite the din surrounding Anna and everything that relates to him, criticism about the means employed by him, and the “undemocratic” consequences that his movement may have in the long run, has turned from audible susurration to shrill ululation.

What exactly is Anna being accused of by his critics?

1. His version of the bill is impractical and he has no knowledge of the subtleties and nuances of the law.

2. That he has held the entire Parliamentary (“due”) process to ransom, which is seen as erosion of respect for elected and constitutional institutions.

3. He is seen as being unfair, rigid, intransigent, and unrealistic when it comes to the timelines he has set for the Government to pass the legislation.

4. Apparently, he has set a precedent for all those who wish to employ similar means to blackmail the government to get what they want.

5. He is being deified beyond proportion and justification, which leads to concentration of power in the hands of one person by popular consent, although non-electoral consent.

Let me try and address the accusations in my own insignificant way. I will not address the first issue in this post because I am primarily interested in understanding what is so wrong with the way Team Anna has conducted itself, that people can’t resist plunging into hyperbolic extrapolations of Anna’s movement, and its so-called diabolical and eschatological consequences for the “Pure, Holy and Great Indian Democracy”.

I think the keyword in understanding Anna’s movement is “perspective/context”. Each of the above criticisms, in itself, may be valid and I have no issues even admitting that. After all, dissent and criticism are central to democracy and that is what Anna’s movement itself represents.

But, is it fair or even logical to judge this movement purely on the anvils of the premises underlying these accusations? Or are we looking at a moth-eaten version of the facts and factors which form the launch pads for these criticisms? I am of the honest opinion that the answer is probably the latter...

No legal process, especially a parliamentary process, has an existence in itself without a historical context to it, and students of jurisprudence must know this better because a non-contextual approach to law is quasi or pseudo-Derridean. It is like trying to make sense of applied mathematics by completely divorcing the physics represented by a differential equation. Maths without physics may be “pure”, but it is just numbers unless applied to the real world.

Law too cannot remain detached from history, power politics and popular movements. After all, in a democracy, it is the will of the people that is crystallised and presented as the Constitution. I am a great fan of “due process” myself having seen its beauty at work personally as a litigant (not a litigator), albeit on that rare occasion when it actually works for the benefit of a common person like me.

When Anna sets a deadline for the government to pass the Lokpal Bill, is he doing it because he derives sado-masochistic pleasure out of dictating terms to the Indian State? No. The Lokpal Bill has been placed before the Parliament several times in the past in 1969, 1971, 1977, 1985, 1989, 1996, 1998, 2001, 2005 and 2008, but each and every time in vain! No government, or political party for that matter, has the political will to pass this legislation because it is an openly accepted fact by all parties that corruption is not peculiar to a single party.

This means, an otherwise fractious polity which is characterized by an incorrigible schismatic pathology, comes together when it realizes that an anti-corruption Bill threatens its decadent way of functioning. Then how do you get the Parliament to pass the Bill? Are we to go the Maoist way and opt for the gun? Or should we get on to the streets and destroy, pillage and plunder public property like they did in London?

If electoral politics is the only way, then an honest man stands no chance of funding his elections in India. Sample this- the cost of funding a State assembly election in this country today is close to INR 15 crores (INR 150 million) per constituency. Assuming that Anna has the resources to contest elections today, how long would it take before he makes his presence felt in the Parliament? Probably years. 


Not just that, the moment he contests elections, his interests will be termed "political/vested interests". So, if there is a real entry barrier to entering legitimate electoral politics, and one’s conscience does not permit resorting to violence, what is the only option left? A non-violent movement.

When people start waxing eloquent about respecting parliamentary process, I really can’t help give out a mirthless laugh at their naivete because the Government itself has shown the disgusting levels to which it can stoop to, to stifle genuine criticism in the last few weeks. And this is a government that has been rocked by one scam after another, ranging from sports to realty to national security and the nation’s natural resources.

How do we expect this government to hear a common man out, when it has no respect for the parliamentary process or its own duty to the nation? The only mandate it seems to have is to hold on to power, no matter what the cost.

How do you trust or deal with a government which first uses its police powers to break up the first protest at the dead of the night, and then uses a botched-up calumnious campaign to dismantle the second? The bedrock of the parliamentary process is the people’s faith in the government of the day, of which there exists none today.

And yet, we have no qualms about calling this 73-year old man a “senile dotard”, who has “derailed” the parliamentary process. How can you derail something which has been derailed and has been in shambles for decades now? The cash-for-vote scam couldn’t have been a more pungent example of the extent of derailment of the parliamentary process, whose sanctity we are so selectively reminded of now.

Ironically, the amount of rancour that one senses today at the “derailment” of this “hallowed” process by a septagenarian’s non-violent movement against corruption, was and is conspicuous by its absence when the modesty of the Constitution and consequently the will of the people, was and is being serially and brutally violated by the honourable members of our distinguished Parliament.

There also seems to be this grave misconception that there is no room for participation in Team Anna’s version of the Bill. Transparency has rarely been a virtue of any Indian institution, and drafting of legislations is no exception to that. Until recently, solicitation of comments from the public was seen as a favour or a charitable act by the sanctimonious mandarins in the Parliament.

Contrast that with Team Anna’s open call to the public to participate in drafting the Bill, I think the sting out of the allegations of Anna’s “it’s my way or the highway” attitude is taken away.

As for serious reservations about the movement being replicated by nefarious entities with ulterior motives, this movement itself has been a prime example of the fact that the common man has a fair understanding of who he may repose his faith in, and who he may not. The common man knows that not everyone who can turn water into wine, or walk on water, or bring back the dead to life, is the son of Mary born of Immaculate Conception.

One clear example is the Telangana movement, which is slowly fizzling out because people have seen through the true intentions of their “leaders” and the way their “movement” has brought life to a standstill. Compare that with the code of conduct that Team Anna exhorts and urges its volunteers to adhere to, and I think the answer is fairly clear.

I can personally vouch for the unblemished conduct of volunteers, students and participants, having taken part in the protest myself on a Sunday when numbers were mind-boggling. Why is it that we fail to appreciate the fact that Ramlila grounds did not bear the incarnadine hue of Tahrir Square or any other popular uprising in the Middle East?

All these issues aside, we forget that the single biggest denouement of this movement is that it has jolted an entire nation out of its wanton slumber and has encouraged it to pay attention to what goes on in the Parliament, and how laws are made and how their very lives are affected...so much for “derailment” of the Parliamentary process!

When a Vice-President of Morgan Stanley (Hong Kong) takes an entire month off without pay to contribute his mite to the movement and joins the protest at Ramlila Grounds, when a Fakir (mendicant) contributes his day’s earnings to the movement, when students from all over the world plunge into the movement, and when the physically challenged, including visually challenged students, bear the scorching Delhi heat to sit alongside a fasting 73-year old man, I think this is exactly the kind of shock treatment this country has been waiting for a very long time.

Not for a moment am I suggesting that the end justifies the means, but then means justifying the end is a default rule which is to be observed when the entropy of the system is normal. However, when the system spirals out of control and appears to be in a perpetual tail-spin, I think it is movements like Anna’s which restore a semblance of meaning to public life and polity.

I must clarify that I don’t believe that everyone must agree with Anna’s “demands” or his style of functioning; after all, there must be people who don the mantles of keepers of conscience of this movement to ensure that mob mentality or mental slavery does not become the defining trait of the movement, and that reason still guides passion. But let’s not pounce on this man who, instead of basking in the glory of his moment, has returned to his town to resume his work.

If this movement needs to be taken to its logical conclusion, instead of letting it fizzle like the JP movement, let us volunteer with some concrete action, instead of acting like elitist bumptious arm-chaired critics. 

Off Topic: Lessons to Learn from Japan

It started off with 100, then 300, followed by 900, and if latest reports are to be believed, the expected death toll is over 10,000 from the Killer Tsunami and Earthquake that rocked Japan last week. 

The magnitude of destruction and havoc wreaked by nature on that resilient nation is unfathomable and is beginning to assume eschatological proportions with each passing day, making it certainly one of the worst natural catastrophes in modern history.

About 1,00,000 Japanese troops have been pressed into service, approximately 2,00,000 people have been evacuated from affected areas and about 2,15,000 people are in shelters. It goes without saying that food, water and electricity are in acute short supply. 

Even for the richest nation in Asia, a calamity of this malevolence poses a mounting humanitarian and financial crisis at an unprecedented scale, which is best reflected thus:

"We have requested funeral homes across the nation to send us many body bags and coffins. But we simply don't have enough," 

Notwithstanding all this, the loss of lives would have been even more exponential had it not been for Japan’s preparedness for a mega-disaster such as this. From what I gathered from news reports:

"If there is any place in the world ready for a disaster of the scale and scope of this historic calamity, it is Japan," 

According to Stacey White, senior research consultant at the Centre for Strategic and International Studies, Japan has shown the rest of the world just how many lives can be saved with a reliable warning network, a state-of-the-art infrastructure and a strong government response.

According to Toshitaka Katada, a professor at Gunma University's Disaster Social Engineering Laboratory, the Japanese government, for several decades now, has made protecting citizens from disasters, a state responsibility. He says:

“Local administrative bodies are trained to quickly issue alerts and evacuation orders and distribute food and blankets at shelters.”

Japan’s most prized asset- technology- has been employed to bolster the preparedness of a country that experiences close to 1500 tremors a year. Japan is today considered the world leader in quake-proofing technology.

Law too has kept pace with technology. In 2007, a law was passed which mandates tougher quake-proofing of new buildings. According to one news report:

“Under the law, skyscrapers, factories, power stations, bridges and railway stations must be built or retrofitted to withstand stronger tremors, so that a magnitude-five quake would now normally cause little damage.”

If a number of lives have been saved by these quake-proofed buildings, I think it tells us that rule of law plays a critical role because a hospital or a school is less susceptible to quake if the quality of quake-proofing has not been compromised on by a state machinery which has zero tolerance for graft. (I wonder how effective this law would have been in India considering that our government swears and lives by graft...)

For those interested, the 2005 UNISDR Japan Country Report neatly sums up Japan’s preparedness to face disasters. It makes for compulsory reading at a time like this.

I would love to go on a rant on how unprepared we are as a nation for natural disasters, but I guess that is old news. I fondly hope we draw some lessons from Japan and prove to ourselves that we, as a nation, are not as incorrigible as we think we are.

Anyways, one just prays that in this hour of grief, Japan digs deep into its legendary never-say-die spirit to rebuild itself and to show to the world what is it that makes Japan the awe-inspiring success story that it has been for the better part of its history.

On an aside, the one entity that has proven itself immensely useful is Google. Google’s person-finder application and its crisis response project have done for Google what a million corporate social responsibility initiatives couldn’t have. This, for me, is true innovation.

(P.S: Please watch the youtube video links on the blog on the tsunami that hit Japan)

Off-Topic: Populism: The Bane of Academic Writing

“A Court which yields to the popular will thereby licenses itself to practice despotism, for there can be no assurance that it will not, on another occasion, indulge its own will. Courts can fulfil their responsibility in a democratic society only to the extent that they succeed in shaping their judgments by rational standards, and rational standards are both impersonal and communicable.”

So goes a paragraph from Page 328 of Fali Nariman’s “Before Memory Fades” where he quotes Justice Krishna Iyer’s judgment in Mohinder Singh Gill v. Election Commission, who in turn was quoting Alan Barth from his book Prophets with Honour (1975).

As I read this para, I just couldn’t help thinking that this thought is so true of almost every endeavour in public life, which includes academic writing.

Academic writing, for me, is not within the realm of the strictly personal. It is, by its very nature, a public activity, not just because it is directed to an audience, but also because it relates to the very audience.

At the outset, let me state that when I refer to academic writing, I do not restrict myself to journals/publications. So long as the topic of discussion is public policy, this rule applies to all fora, mainstream and alternative.

Academic writing is a notch above journalism in the sense that where the topic of writing requires the audience to elevate its thought, (as condescending as this may sound) academic writing must help the audience go beyond the obvious and the superficial, instead of dumbing down the subject. If advanced mathematics requires a better equipped student, why shouldn’t the same apply to readers of academic writing?

Not for a moment am I suggesting that that one must not observe simplicity in articulation, even if the subject of articulation is an esoteric thought. I am simply saying that let not the diktats of an “audience” dictate the logic of a proposition.

I think we must never lose sight of the fact that academic writing first and foremost demands honesty which in turn demands spine or let’s call it “vertebracy”.  This includes the spine to probe an idea, even if the audience or readership finds the idea boring or politically incorrect.

Slowly but surely, this golden rule of academic writing appears to be taking a back seat in the Indian IP discourse since other considerations such as molly-coddling the audience have begun to take precedence. This is bad news, without doubt. Why?

Voices or faces which have the undivided attention of stakeholders from within and outside the country have a responsibility towards the subject and the stakeholders. This responsibility requires us to conduct ourselves with utmost honesty sans a smidgen of exhibitionism. The moment the proponent puts himself before and above the cause, I think objectivity and reason are the first casualties.

In the process, opportunities which could be put to fantastic use to engage people in a meaningful discussion and thereby goading them into action, are squandered because we are scared of losing them or disenchanting them. 

Anyone who has the best interests of the people at heart must not worry about people’s short-term perceptions of her or his ideas. Ultimately, if one is right or at least honest, people are bound to come around and give some thought to what is being said.

Anyways, I’ll end my rant here hoping that sooner than later the Indian IP debate or discussion turns the corner for the better.  

Standards in Public Life II: The Corrupt Public Servants (Forfeiture of Property) Bill

That establishment of higher standards in public life is a cause that I strongly believe in, is clearly reflected in an earlier post. 


Although legislative cogitation alone cannot be a silver bullet in raising the bar in public life, it can, nevertheless, be employed effectively to prevent standards from plummeting. We already have Section 21 of the Indian Penal Code which defines “Public Servants” and spells out certain offences peculiar to this breed (“babudom”), besides the Prevention of Corruption Act (POCA), 1988 which builds on Section 21.

During my limited research on this topic, I also learnt that more than a decade ago in 1999, the Law Commission of India in its 160^th report, under the Chairmanship of Justice Jeevan Reddy, had proposed a bill by the name “The Corrupt Public Servants (Forfeiture of Property) Bill”. The forwarding letter of the report states that the subject of the report was taken up by the Commission suo motu indicating the serious levels of decadence that had come to plague the Establishment and continue to make their presence felt in every sphere of public life.

The Commission acknowledges that the POCA too provides for forfeiture of property earned in excess of the income, but notes with dissatisfaction that forfeiture follows conviction of the offender. Instead, the report proposes to draw inspiration from the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1997 (SAFEMA).

In justifying the need for the proposed law, the report quotes the Hon’ble Supreme Court’s observation from DDA v. Skipper Construction, a judgment delivered by Justice Reddy himself:

"... a law providing for forfeiture of properties acquired by holders of 'public office' (including the offices/posts in the public sector corporations) by indulging in corrupt and illegal acts and deals, is a crying necessity in the present state of our society. The law must extend not only to — as does SFEMA — properties acquired in the name of the holder of such property but also to properties held in the names of his spouse, children or other relatives and associates. 


Once it is proved that the holder of such office has indulged in corrupt acts, all such properties should be attached forthwith. The law should place the burden of proving that the attached properties were not acquired with the aid of monies/properties received in the course of corrupt deals upon the holder of that property as does SAFEMA whose validity has already been upheld by this Court in the aforesaid decision of the larger Constitution Bench. 


Such a law has become an absolute necessity, if the canker of corruption is not to prove the death-knell of this nation. According to several perceptive observers, indeed, it has already reached near-fatal dimensions. It is for the Parliament to act in this matter, if they really mean business."

The report is very candid much to one’s surprise for it notes thus:

“When a public servant is paid bribe of, say, a lakh of rupees, it is paid for the reason that the payer gets at least 10 times the benefit, if not more, and that benefit is the loss of the State and the people........ There is no respect for public money and public funds in the minds of many in the administration; public money is nobody's money.”

On the state of affairs where politicians are involved, it says:

“The Prevention of Corruption Act has totally failed in checking the corruption. In spite of the fact that India is rated as one of the most corrupt countries in the world, the number of prosecutions — and more so the number of convictions under the said Act is ridiculously low. A corrupt minister or a corrupt top public servant is hardly ever prosecuted under the Act and even in the rare event of his being prosecuted, the prosecution hardly ever reaches conclusion.”

As for the inadequacy of the existent framework, it notes that although forfeiture of property is not a new feature in Indian penal law, such forfeiture comes only after conviction. Therefore, the report opines that the measures proposed in SAFEMA must be adopted to tackle corruption as well. 


SAFEMA reverses the burden of proof on the offender wherein he has to show how the property forfeited was not obtained through ill-gotten wealth. This extends to his relatives as well and the word “relative” has been defined broadly to include all “near relatives”.

Further, the report introduces the concept of implied trust and breach of trust from a different perspective- according to it, the property bought by the offender using the bribe paid to him in lieu of breach of his duty belonged to the State in equity.

Incorporating the above features, the Bill proscribes holding or possession of properties acquired through illegal means. A Competent Authority is identified which has the power to call upon a person to account for the property, regardless of it being situated within or outside India. 


Further, the Authority has the power to seek disclosure of information from any authority, bank or organization and failure to do so would attract punishment. The Authority is also vested with certain powers of a Civil Court.

The power to attach property pending proceedings is the highlight of the Bill. The Bill bars jurisdiction of Courts with regard to grant of injunctions against the Authority but clarifies that Article 226 is still open to the aggrieved party.

Interestingly, the report notes that no party had objected to any provision of the Bill, and yet one wonders why the Bill has not become an Act.

Will the powers that be move their celestial derrières and bring this Bill back into the spotlight?

Standards in Public Life I

Slightly over a month ago, The Hindu carried a short article about the Chief Election Commissioner, Mr. Navin Chawla, seeking an amendment to Article 324 of the Constitution. Specifically, he had urged for an amendment to clause 5 of the Article to bring all election commissioners on par with each other and to make a case for his call, he cited two instances, one involving the leonine T.N.Seshan and the other involving Chawla and his own predecessor, Mr.Gopalaswami.

As for the first incident, those interested may read this judgment of the Supreme Court interpreting Article 324(5). I then searched for literature to understand the constitutional underpinnings of the Election Commission of India, when I stumbled upon the fifth Report of the Committee on Standards in Public Life in the United Kingdom.

 This report discusses threadbare the standards to be expected of political parties beginning with the seven principles of public life to be observed by holders of public office- selflessness, integrity, objectivity, accountability, openness, honesty and leadership. It occurred to me that in the backdrop of the current fiasco involving Shashi Tharoor and a few other political bigwigs whose names are bound to surface over and over again, this report assumes greater significance.

Selflessness- According to the report, holders of public office should take decisions solely in terms of the public interest. They should not do so in order to gain financial or other material benefits for themselves, their family, or their friends.

Integrity- Holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might influence them in the performance of their official duties.

Objectivity- In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit.

Accountability- Holders of public office are accountable for their decisions and actions to the public

and must submit themselves to whatever scrutiny is appropriate to their office.

Openness- Holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands.

Honesty- Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.

Leadership- Holders of public office should promote and support these principles by leadership and example.

Sounds very utopian given the situation here, right? Makes one wonder if there'll ever come a time when these ideals/virtues are taken seriously in this country. If someone were to talk of applying these ideals in public life in India, somehow I get the feeling that the speaker is bound to be scoffed at and ridiculed, with some of us saying “you can’t survive in politics if you believe in these”. Stand Corrected! “you can’t survive in Indian politics if you believe in these” is more like it!

What else would explain the failure of people of like T.N.Seshan in elections? What explains the fact that the majority of Indians preferred Nehru over Patel for the post of the Prime Minister? Some might say that both Patel and Seshan lacked charisma(!) I'd like to know what have charismatic leaders done for us or even themselves? Shashi Tharoor oozes oodles of charisma (and this speech is proof of that), but with all due respect to him and his “unblemished record of public service”, his short stint in the Union Cabinet is replete with PR goof ups! 

As for Nehru, his aspirations of becoming a global statesman were cut to size by a shrewd peasant with a silly name called Mao Tse Tung, which indirectly caused Nehru’s untimely death. And let’s not forget that ultimately the country had to pay the price for their charisma in the form of loss of dignity and territory. So much for charisma...

But then, the point is not to vilify any of these undeniably great leaders. The point is that people need to start probing beyond mere face value and should restrain themselves from falling for looks or accent or lineage or anything else superfluous to the task at hand. What must matter is the person's ability to bring tangible and lasting change for the good in the lives of those he represents, if he is given an opportunity to walk the corridors of power.

The person must know how to get the best deal for his people, both in the short and long runs. More importantly, the question must be, does the person have it in him to take a strong call in the interests of his electorate even if it (the electorate) does not agree with his stance? Not surprisingly, these questions do not figure in our discussions because they are not issue-centric, they are individual-centric.

There’s a reason for this which most of us might find unpalatable and politically incorrect. Democracy in India has a different meaning altogether, our interpretation of “Live and Let Live” rarely finds parallels anywhere else other than in the sub-continent. We seem to think that as long as we are given a free hand to do whatever we want and in any manner we want, we live in a democracy. What this means is that every possible tradition which defies logic, and every atrocity thus far perpetrated must be allowed to continue, in the name of democracy. 

The moment the State steps in to straighten things out, it becomes draconian and dictatorial. Probably, most of us need the concept of a State only to keep this huge piece of earth together under one name so that we get a larger territory to continue the same (rotten, decadent and parasitical) way of life. (This again seems to explain why we keep electing a Government which has mastered the art of keeping almost everyone happy by doing nothing at all and just letting things be.)

It appears that this way of life or thinking is common to the people of this part of Asia, meaning India, China, Pakistan, Bangladesh, Sri Lanka, Nepal, Bhutan and to a nominal extent Taiwan. Last April, Jackie Chan seemed to think on these lines only to be voted the least trustworthy celebrity of Hong Kong.

Not for a moment am I suggesting that this pattern of thinking and living is inherent to our culture, which some think is fashionable to do. The past can be blamed only to an extent; beyond that, we are accountable for the consequences of our actions because, culture is transient since people are transient.

If at some point in our history, invertebracy has crept in and has firmly entrenched itself in our national character, it does not give us or anyone the right to paint our entire past and heritage with the same brush. The true test of our core nature would be this period of transition that we are not just witnessing, but are participating in as well.

If I sound like I have problems with democracy, then either the reader has not understood my point or I have not been successful in communicating my point clearly. All I am saying is that unless people stop equating democracy with chaos and unfettered reign of the individual’s whims and fancies, democracy will be a monumental failure in India in the times to come.

If people have problems with the State imposing discipline on them, then they must learn to discipline themselves, because there is no way discipline can be altogether thrown out of the window.

Do I sound like a martinet? Oh I know the reason, it’s the word “discipline”... 

Of Bhishma and Gandhi, Duryodhana and Jinnah

Living alone, sometimes, has its benefits. It gives you the luxury of pursuing the randomest of thoughts, interests and ideas without having to worry about what others may think (of course, this applies to only those of us who are affected by others’ views. For the lucky few who give a fig about what others think, life, for the most part, is a bed of roses).

These random thoughts seem to have a pattern to them, in that, they occur when you least expect them; I say so because they seem to come to the fore when your mind tries to focus on something else important and precious at hand. The mind then, being boundless in its capacity, stores this random thought at the back so that it may be mulled and chewed over at leisure.

One such random thought which occurred to me when I was in Divine presence, is the striking similarity in certain critical aspects between the lives of Gandhi (oh not Rahul or HRH "Madam" Sonia, but Mohandas Karamchand, the “original” Gandhi) and Bhishma (of Vyasa’s epic poem “Mahabharata”), Jinnah and Duryodhana (strangely, these two have never needed introductions).

Before I proceed any further, I must clarify that this is not remotely an attempt at sounding philosophical, I have no such pretensions. Rather, this is probably an illustration of how relevant history (I don’t consider it as mythology) can be, according to me, regardless of the age or era we live in.

Let’s begin with a bit of bittersweet trivia. “Mahabharat”, the serial, that grand magnum opus of Baldev Raj Chopra (not the horrendous imitation by Ekta Kapoor. May Lord Balaji Save us from Balaji Telefilms!), is one of the finest products of India’s syncretic traditions. Why? The script of the series was written by two extremely creative and talented individuals who come from different faiths (do I hear someone say antithetical?), but were bound together by art- Dr.Satish Bhatnagar and Dr.Rahi Masoom Reza. I remember these names distinctly having devoured the entire series bit-by-bit, episode-by-episode, for over 7 times now and still counting. (Sometime in the future, I shall write in detail about my obsession with this epic and its brilliant depiction by the Chopras).

A couple of months ago, in the course of a formal rendezvous with certain members of filmdom, we were told that Satish Bhatnagar was afflicted with the disease most common to his ilk- penury. Apparently, he was or still is in such a pitiable condition that he barely has the resources to make ends meet, leave alone afford his medical expenses.

To my joy, it was revealed that Bollywood’s so-called “brat” Salman Khan had come forward to put Dr.Bhatnagar out of his misery. Indians, most of us, for all our vaunted culture of giving, really have no sense of philanthropy or gratitude.

Guess that’s enough trivia for one post. Moving to the heart of the discussion, what parallels can be drawn between the lives of the “characters” in question? Let’s begin on a macabre note- their deaths. None of them had peaceful deaths (Sanskrit beautifully calls a peaceful death “Anaayasa Maranam”- when people pass away in their sleep), barring probably the exception of Bhishma who saw his life’s dream being achieved, and he passed away in the presence of the One he worshipped- Krishna. 

But then even Bhishma did not live long enough to enjoy the fruits of his life’s penance, which is something Gandhi had in common with him. Further, while Bhishma was killed by someone he dearly loved, Gandhi too was assassinated by one of his people.

Both these individuals were known for their indomitable will power and also, their legendary (and at times controversial) obsession with their life-long vows of celibacy. Both saw celibacy as a condition precedent to achieve their personal and social objectives. 

While Bhishma saw celibacy as a way of pleasing his father and abdicating his claim to the throne in favour of his future step-brothers, Gandhi strongly felt that if he could master his senses and carnal instincts, he could wrest for India its independence from the British. While the former had to face taunts of being a eunuch, the latter was derogated as being “hypersexed”.

If Bhishma felt thoroughly helpless before Duryodhana’s arrogance, dogged obstinacy and intransigence towards mending fences with his cousins, Gandhi thoroughly failed in convincing Jinnah about the futility and dangers of the idea of Pakistan. If Bhishma’s motherland had to suffer partition to satisfy Duryodhana’s insatiable hunger for power, Gandhi had to bend backwards to placate Jinnah and yet had to remain a hapless spectator to the bloody spectre of Partition.

If Bhishma had to pay the price for his undying allegiance to his vows with his life, Gandhi too had to do the same. If one of the strongest causes of the Mahabharata war was the outrage to Draupadi’s modesty, the cause which propelled Gandhi was what he saw as outrage to his Motherland’s modesty. Or some might say that Gandhi had to pay with his life for the outrage of the modesty of the women of one community.

What about parallels between Jinnah and Duryodhana? Most of the similarities have come out above, but what remains to be pointed out are again their deaths. Jinnah died of tuberculosis and Duryodhana died a gruesome death bleeding on the battlefield fending away nature’s scavengers.  

Is there a point behind these comparisons? What is the moral of these lives? Holding on to one’s values is not the same as holding on to one’s vows because after a point, it becomes difficult to ascertain if these vows have come to represent a person’s values or his ego or worse, his fixation with his image in the eyes of those around him.

Why do I say this? In their final years, both Bhishma and Gandhi felt powerless and helpless for none paid heed to their words and they felt like mere props or relics from the past whose presence was needed to further certain vested interests. This leads us to wonder if Gandhi's fasts were his way of reinforcing his place in the larger scheme of things, and if they had the incidental effect of bringing about peace and amity between rioting factions.

It cannot be disputed that holding an entire nation to ransom with threats of fasts-unto-death reflects nerves of steel, but if it has the effect of rendering secondary the interests of the nation, it is best to turn a blind eye to such not-so-selfless displays of will-power.

On a lighter note, does God run out of ideas at times? What else would explain the oft-quoted dictum “History repeats itself”?