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12 Aug, 2013
FinePrint: Enter The Sandman

The only way forward is to reform the judicial system so that we may use it for the purpose for which it was definitely not designed i.e. drag India kicking and protesting into the real modern world

Ranjeev C. Dubey

That Ms Durga Shakti Nagpal was suspended and charge-sheeted by the duly constituted Government of India's most populous state for trying to stem the generation of political funding out of the bed of the Yamuna river does not strike me as quite the heart of the wonder that is still India circa 2013. What strikes me as totally weird is that we have not stopped to ask how India can possibly achieve its developmental ambitions when states as humungous and highly populated as Uttar Pradesh give out only 1,900 sand mining licences of less than 5 hectares each across the whole state? 

It's considerably worse where this recent drama is playing out. The Hindustan Times reports that nobody mining sand in the Yamuna and Hindon rivers in Greater Noida has a licence to do so. Ever since the Samajwadi party swore in its Government in March 2012, the district mining department has not issued a single mining licence. It seems mining was legal only in three patches on the Yamuna riverbed till May this year, each of which had been auctioned back in 2011.  As of now, all the sand that is going into the thousands of high rise apartments under construction and widely advertised in the newspapers in the NCR are being built with - if you believe the Government that is - sand purchased from allegedly auctioned sand seized by illegal miners. Yeah, right! 

So long before I begin to talk about zealous officers catching illegal miners, I want to understand why sand is not legally available in Greater Noida. Unless you belong to that perverse group of Green Peace activists who want nothing done at all - the type of guy who don't want thermal power because it pollutes the air, hydro power because it cuts forests and degrades the mountains, nuclear power because it is dangerous or bullock power because methane fluctuating bulls destroy the ozone layer - you have to ask yourself what you expect builders to do. Mouthing colourful allusions like 'sand mafia' leaves us no wiser about the developmental alternatives. And then again, mining in excess of quotas as an accusation I understand. Mining without paying royalty as an accusation I understand. But demanding that buildings be erected without sand mining? 

The truth is that there is perfect method to this madness. When any incoming government hands out no mining licences and waits for the supply to grind to a halt, it is looking to create a scarcity which can be converted to political funding. If you will squeeze those with the infrastructure to mine sand and deny them licences - criminalising their business by not making the stroke of a pen -you will create an environment that will allow you a reasonable negotiated settlement: reasonable from the government's standpoint that is. In squeezing them, you will seize their trucks, send a few to jail, make business impossible and then, when you know how deep the bite sinks, you will discover a price. But in the bargain, as with prostitution or gambling, when you outlaw something we cannot do without, chances are pretty good you will have hard core criminals enter the business too. Not that I am particularly impressed with the 'sand mafia' construct. A villager with a dumpster, a motorized back hoe he hawked his land to finance and 20 years' experience in mining sand but no school leaving certificate, doesn't have that many attractive career choices. For him, it's just a matter of allowing the negotiations to play out till a deal gets made between the miners' association and the state government. When he tries to run his tractor over the bureaucrat who is stopping him, he isn't a hardened criminal: he is a desperately frustrated poor man who thinks the dice is loaded against him in a 'no win' game. 

Now, in this sordid environment where a high pitched price discovery mechanism is playing out, how do the miners view the department which gives out no licences for a year but carried out 2,727 raids, collected Rs 7.72 crore in fines and lodged 39 FIRs (Hindustan Times, August 5th)? How do they especially view the actions of Ms Nagpal who gets active three months after all licences expire and then in the next 11 months earns the state government 17.85 crore in fines, to say nothing of the business disruption (Hindustan Times August 6th). I mean we are not talking bootleg moonshine brewed in a backwoods shack so noxious it's bound to blind someone here: we are talking sand. Will you forgive these people for thinking she is at best a cat's paw in a come-on scheme being run by the Samajwadi Party government? We need to remember that for the average small-time business guy at the bottom of the food chain, all authority is the same and the power of the state is used as often to fill the coffers of the state treasury as it is to fill the personal coffers of those in power, be they  bureaucrats or politicians. Life below the hallowed portals of westernised high education and intellectual sophistication expressed generally in English is mainly several shades of gray. That the same Samajwadi Party is now targeting that same zealous officer is a type of irony gone surreal that you only find in third world reality, never in fiction.

The problem with the foregoing critique is that it somehow diminishes the very brave actions of a very young and possibly idealistic officer. That the "structure" of the sand mining business in Greater Noida reduces much public discourse rendered from a high moral standpoint to a farce is a no brainer.That said, what do we want our young bureaucrats to do? In this environment, do we want bureaucrats to apply these unfair laws or do we not? What can be more admirable than the honest performance of a public duty? I would argue that this officer's decision to apply the law at risk to herself, regardless of the merits of the law, is the only defensible, sustainable, choice for any zealous bureaucrat to take. If instead, every bureaucrat decides to evaluate the merit of a law before applying it, we would end up with a nation of conscience objectors.  

Other societies have been there before. By way of a single illustration, allow me to take you to the fate of the later Ming Dynasty, undoubtedly a high point in Chinese history. Why did the Ming Dynasty fall? When you get past the patchy tax collection and the corrupt bureaucrats, it came down to the neo Confucian philosophy of Wang Yangming who, during the reign of the emperor Wan Li (1572-1620), set forth the proposition that everyone has an "innate knowledge of the good". In demanding that people act on their beliefs, he demanded that every individual including those in government must make a moral judgment on everything they did or didn't. This was not so far from European Individualist Humanism which mercifully never informed European history. This exaggerated moral responsibility really meant that the Ming government became hostage to individual moral choices as officials each decided who would act in what way based on what that individual believed was correct. So simple governance choices were really moral choices and it became impossible to find a middle ground, which lies at the heart of political compromise. Government was undermined, terminally so. Within twenty years of the emperor's death, the dynasty was destroyed by incoming Manchu invaders. By way of an aside, the Americans claimed that every German citizen had the same moral obligation in the conduct of their public duties during the Nazi regime and several German officers were convicted of war crimes for this reason: mercifully, the Americans have never asked the same of its own citizens. Quite the contrary, as Edward Snowden will be happy to advise you! 

So while the lady's application of an unfair law is to be admired, especially given the intimidatory lawless environment in the cowbelt, the fact is that as a society, we have to ask who the good guys here are and who the bad? If sand miners were "people like us", they would be a little harder to demonise. The underlying assumption that there is some sort of unholy nexus between politicians and sand miners is to be tested. The construction industry is asking for sand: someone has to supply it. Those capable of supplying it are incapable of getting a licence. In steps those who don't care about licenses and they are trying to buy their way out of the sovereign consent void. Lost in the din are fundamental questions about the structure of our society. If the government will not govern, then what can any businessman do? The businessman can go to court but then, how often do you want the court to intervene and compel the government to do its basic job i.e. govern and regulate. 

This is also true of bureaucrats. If bureaucrats must face penal consequences for trying to do their job, where will they find their recourse? It seems that India circa 2013 has decided that the courts of law are a one-stop shop to address all governance ills. There must undoubtedly be a desperation in this because it is no state secret that the courts have their own very pressing problems to address before they can wipe the tears of the rest of India. Court's delays and a certain procedural dysfunction is the least of them. At the very least, a zealous bureaucrat suspended for doing her job could find herself navigating through the labyrinths of first CAT and then the courts for several decades without conclusion. So what do we do to remedy this double whammy? Neither the fate of the Lokpal Bill nor CIC's ruling that political parties are subject to the Right to Information Act lead us to believe that the political classes are straining at the leash to reform themselves. Perhaps we are at that point of inflection where we can all solemnly agree that the only way forward is to reform the judicial system so that we may use it for the purpose for which it was definitely not designed i.e. drag India kicking, protesting and screaming into the real modern world. 


(The author is managing partner of the Gurgaon-based corporate law firm N South. He is the author of "Winning Legal Wars" and "Bullshit Quotient: Decoding India's corporate, social and legal Fine Print". He can be contacted at

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