How to avoid burning your hand in Land Deals (Specific Illustrations from UP Revenue Laws)

[DISCLAIMER - Let us have the disclaimer first. The author is not a law graduate – not even a basic LLB. This is not to be construed as legal advice – for that, please consult your family lawyer, or a specialist. I repeat, this is not to be taken as legal advice, and it is being italicized to avoid tortuous liability. That being taken care of, all that can be said that the author has the experience of deciding 2500 plus Revenue Cases in his one and a half year tenure at Court. It was the anguish of seeing well meaning people lose their lands due to legal issues in their deals, that inspired this article. It is also inspired by a quote from one of the instructors in LBSNAA (the IAS Academy) – that the only way to be sure of your land title in India is to get it declared by a Constitution Bench of the Hon. Supreme Court! My effort is to try and see if a sure title is possible without disturbing the Apex Court. Again, this article is meant to be advisory in nature, and it is intended to be edited based on suggested corrections and improvements. So I request persons in the know how of Revenue matters – senior officers of the IAS, and the UP PCS, lawyers, Judicial Officers, and those who have litigated on land matters, to please help improve the article.]

Financial management is one area in which most indian middle class households are a bit unsure. Well, to begin with, most of the 'middle class' used to comprise of pensioned government jobs, and hence, technically, unless one actually had a plan beyond the mundane for the post retirement life, there was no need for financial planning as long as one's expenses were being met by the income. However, with most of the current generation taking up jobs in the private sector, and even the post 2004 entrants to the government services taking up employment under the New Pension System (or as we lovingly call it, the No Pension System!), the need to build a life-scale financial plan is very important now. The markets, and the faith in the markets (both are quite close looped feedback system) are yet to reach a level of reliability. Thus, real estate - primarily, land becomes a preferred avenue of investment. This, as the title suggests, is not an article about investments. It is about a primary introduction to the land laws, and a series of cautionary tales and advice on how not to burn your hard earned money.

Picturizing the Presumptive Title

Imagine a vast, sea like pool, with murky water. Imagine gigantic tables, made of wood, therein. From the surface, you just see the table tops – not the legs thereof. On these tables stand people, going about their business. Unbeknownst to them, some of these tables are standing on other tables, submerged. Some firmly, some precariously so. Some are simply floating adrift. The tables are too huge for the dwellers thereupon to tell which is which, except for those with a very keen vestibular sense, and those who dove under the surface to know the truth. The submerged tables sit atop supporting tables of their own, submerged even deeper – and this goes on till the bed of the pool is there. I know this is a bit odd to imagine, but bear with me.

The current land titling system in most of India is similar. Our sale deeds, our name in the revenue records, our happy existence in our happy homes, is just our act of dwelling on the surface level table tops. As long as the water is there, it really does not matter if it is floating, perched precariously or standing solid. It is presumed that we all are stable. This is the crux of presumptive titling. Presumptive title draws from a chain of transfers and transactions from earlier title holders. This is signified by the submerged tables. The pool bed is the original settlement of land done in the last survey and settlement operations – most probably in the colonial era.

So, imagine there is an even more gigantic suction pump attached to the pool bed, which can, in a trice, suck out all the water from the pool. What happens now? As you guessed it, those tables that stand on a series of firmly placed tables shall remain as they were. Those which were floating, either of their own, or standing on a floater, would go quite crashing down. Those perched precariously, or on weak legged tables anywhere in the series, would teeter, to varying extents. This, in the real world, is the presumption in our presumptive title being tested in a court of law.

So, what inferences can be drawn upon by these analogies. First, and a very simple, take away is – it is always worth the effort to check under water before getting atop a table. Better avoid the creakers, and the floaters. Second, deeper take away is this. A chain is as strong as its weakest link, and a stack of table is as strong as the weakest table leg. So assume that the probability of a random table having a creaky leg, or perching precariously, is P. So, the probability of it not being creaky or “perchy” is (1-P). Suppose there are two tables. The probability of the whole stack being non-creaky, is the probability of both tables being non creaky – that is, table A being non-creaky, AND table B being non creaky. As students of mathematics would know, “AND” probabilities are multiplicative, and hence, the combined probability is (1-P) x (1-P). If a stack has three tables, the probability of non creaky stack is (1-P)x(1-P)x(1-P). For a stack of n tables, it is (1-P)^n. As can be seen, (1-P) is a quantity less than 1, and hence, as the exponential power increases, the probability figure keeps going down – the chances of the stack being creaky increases. In the real world, the longer is the chain of title holders from the settlement in your presumptive title, the more is the chance that it may be defective. One need not go into the mathematics of it at all – most readers would agree that it is their inherent gut feeling too.

Land Records System

So, now that we agree on the need to check ‘under the hood’, let us get familiar with what we are looking for. This is an introduction to the Land Record system, in Uttar Pradesh. However, most states which were under the Mughal and then the British rule in their history, would have a similar system.

At the topmost present level, there are the record of rights (khatauni), field map (shajra) and field book (khasra girdawari, or khasra). Khatauni is a record of titleholders in alphabetical order. The titleholders are recorded, individually, or in case of shared holdings, jointly. It is prepared for 6 years. Next to the name are recorded the plot numbers under the named ownership, their areas, the year in which the rights were generated. In the last column, the orders which affect the other entries, are recorded temporarily, till the 6 year period elapses and the changes so ordered are effected in the main columns. It is, legally, a fiscal record, which shows who is liable to pay the land revenue on the said land parcels. It is also a tenuous proof of title in the land. The shajra is simply a map, drawn to a scale of 1mm = 4m. It shows all the plots in the area, and other notable installations and features of a village. The plots are numbered. The khasra is simply a record of these numbered plots serially. It includes the names of the person tilling the land (or the tenure holder whose name is in the khatauni), details of the means of irrigation, and the details of the crop sown in the three seasons of kharif, rabi and zaid. It is an annual record. It is also a (very very tenuous) proof of occupation of the land.

The khasra entries change every year based on what is sown or built on the land parcel, and on the basis of the records in khatauni. The shajra is quite stable. It is sometimes altered on court orders in Suits related to map correction. However, the most dynamic record as far as we are concerned, is the khatauni.  The record of ownership is being continually changed based on the orders of various Courts. These orders of the courts, before they effect a change in the main entry, reside as remark entries in the last column of the khatauni, till the 6 year period on that khatauni is exhausted. Before residing in the last column, the order is entered in the Mutation register (R6), on the basis of a Warrant (parwana) of the Court ordering the change in the land record – the warrant itself being pasted in a guard file, forming a permanent archive. The warrant itself is originated from a Court file. Thus, going behind the current instant records, there are these few records that trace the history of owner ship on any land parcel – the series of old khataunis – for every six years. In these khataunis, the khata number would change every time, based on the inclusion and exclusion of khaatedaars (account holders / land holders), since the positioning is purely alphabetical. However, the gata number (plot number ) in front of the account holders name should be invariant in a true case. Whenever there is a change, then the previous khatauni should reflect a court order in its last column. The court order should also exist on the R6 (mutation register), and the corresponding warrant should exist on the warrant guard files. The said warrant should also exist on the concerned court files.

If you think this is getting confusing, you are in for more. For the invariance of the account holder name and the plot number exists only till Chakbandi or Consolidation operations take place. A brief introduction to consolidation is warranted. Consolidation is one of a series of land reforms brought about post independence to improve the agriculture situation in a primarily agrarian state. Succession to lands, along with sales and purchases, lead, over time, to fragmentation of land holdings. The same person can hold a number of small scattered plots. Needless to say, small plots cannot take advantage of modern methods. Plus a lot of land area is lost in the bunds, pathways and similar accoutrements. So fragmentation is definitely bad. Consolidation is an operation in which all the accountholders of the consolidated area (usually a revenue village) pool together their fragmented land, which is then redemarcated into large, viable plots, and distributed among the account holders as per their original share – the share being ‘moderated’ for the change in quality of land. The more discerning of the readers would acknowledge how much bite is there in the ‘moderation’ – there is a famous saying – the villages in which consolidators have gone once, even the dacoits avoid for 20 years! Let us leave aside the various troubles with the consolidation itself, and assume that a very successful consolidation exercise has been completed. What that does to our land records system is that the plots are now totally different, and renumbered. The relationship between the old plots and the new is shown in what is known as CH-41 – which is a khasra with two plot numbers – old and new. The ‘confirm sheet’ is a bi-color map, mapping the old plot boundaries in a color different from the new ones. The relationship between the old rights and the new one is more tenuous, and it goes through a series of entries, for which a good reading of the Consolidation of Holdings Act and Rules is required. In brief, the rights are entered in Form 2A, Form 10A, Form 23, and in the end, in the form CH-45, which is the new khatauni after the consolidation is over. The CH-45 contains the reference of the original 10A entries in its last remarks column, so that can be thought of as a link between old rights and new. Of course, consolidation exercises last a few years, and all the normal revenue transactions like sale and purchases, and their mutations occur in the consolidation records, just the way they do in the normal revenue records.

I know it has been very confusing by now – current records, historical records, and now this twisting and turning of consolidation. However, we have dealt only with the complete set of revenue records till now. (Yeah, there are no revenue records left after this coverage – if that is a consolation!) However, as I have told before too, revenue records are accorded just a presumptive status. So they are not the only documents with which titles can be proved. Not all buyers apply for mutation of their names into the khatauni. In fact most small purchasers do not. It has its origins in the rather draconian section 168A of the UPZALR Act – which prohibited the sale of small fragments of lands (aimed at the same good as the consolidation process does), and led to vesting of any such purchases into the State. So small residential size plot purchasers chose not to inform the revenue authorities of such purchases. Many other purchasers did not get their names mutated – for example, if the land was partially constructed upon. In the eyes of law, if the sellers held a valid title, then these deed-holder-not-mutated purchasers are the rightful title owners, their mutation status notwithstanding. Thus, in addition to the revenue records, one needs to study all the registered deeds that have been executed in the said lands.

How to Use these Records

Now that we have become familiar with the records (for those who have not become familiar yet, do revise the above sub part again, for what comes is in fact a travelling review of the same system) we can now address the issue of how to research the land we are about to buy.

First of all, take a copy of the current khatauni. It is available for a fee of Rs.15 at all Tehsil offices, and can be applied for online too. See if it bears the name of your seller – if not in the main column, then in the orders column. If the name is in the main column, make sure no orders overturning that are in the orders column.

Then take out all the khataunis prior to that, till you hit the bed rock of survey and settlement records. In this exercise, you might cross consolidation exercises. In such cases, match the khatauni just next to the consolidation with the consolidation CH-45. From the remarks column of CH-45, trace if it matches with the 10A entry. From the 10A entry, you can easily navigate to the old khasra numbers of the titleholders. (This assumes that the land wasn’t bought or sold in the consolidation pendency – that complicates the process – and has to be dealt with the way sales and purchases are to be dealt in normal course, as will be explained shortly.) So, this way you cross the consolidation and continue to navigate prior khataunis on an older plot number on which the holders’ rights existed. In the said process, you shall definitely cross the process of Zamindari abolition. From there, another land record, named as Khewat would join the party. (The modern khatauni is an amalgamation of the old Khewat and Khatauni. The Khewat used to be record of rights in the Zamindari era – it contained the names of the owners and their sub tenants of various degrees – the details are not important here. What is important to know that it did not contain the plot / khasra numbers on which the khewatdaar had rights! Yes! It just had the Khewat number. The old Khasra had a column for Khewat number, and all the khasra entries (plots) that bore a particular Khewat number were under the title of that khewatdaar. So to prove that you are the title holder of a khasra number, you need an extract of the khewat, which shows your name, and then the khasra entry, which bears the khewat number. That was easy. However, to ascertain the total holding of a khewatdaar, you needed to have the whole khasra book, and pick out all the entries bearing the given khewat number – quite a messy prospective. I had to get it done once, a whole different story!) If you have just been bamboozled by the contents of that bracket, or have simply chosen to skip it, there is some partial respite. At the date UP Zamindari Abolition became operation – the date of vesting, the records of the time became sort of baselines. The khasra and khatauni of the Agricultural Year 1359 are very important. They are used to establish if any modern plot is a part of old ponds or lands of public purpose on which no permanent rights could accrue. They are used to certify caste. They are the baseline documents for most sort of litigations, and if you have researched back till 1359 AY, you are on pretty solid grounds. However, sadly, it is not a very strong baseline, and litigation in titles is still allowed to go behind the Zamindari Abolition, into the Zamindari era. So, it is call one must make – brevity and convenience vs accuracy and being foolproof.

That was about following a strand of ownership to the settlement bedrock. Of course, no strand could be expected to be that long – unless we have a Bicentennial man alive amongst us. For the lands would have been bought and sold in the decades that pass, and of course, land holders would die, leaving the land to their successors – natural or testamentary. Both transfers and successions would lead to a mutation order being recorded in the orders column of the khatauni (or the khewat), which would get transferred in the main column of the khatauni (khewat) when the 6 years (4 Years) period of the said document expires. Of course, since we are looking at it backwards, we would see names of our sellers get out of the main column into the orders column, where it would be mentioned how he happened to get that land by purchase / succession from whom. Then going further back, the eponymous ‘whom’ of the last sentence would get their place in the main column, and so we will continue backwards, till even these names get preceded by their predecessors and so on. Now, for all these mutations, there would be entries in the Mutation register. A copy of the same, brought out by a simple RTI application, would verify the authenticity of the same. Uncontested successions do not need court orders – they may be done by the Supervisor Kanoongo (Revenue Inspector) himself. So, to be double sure, get a copy of the Family Register of the said family in the year prior to the mutation, to check if all the valid successors had been mutated. If any names have been left out unexplicably, it is red flag. For all other types of mutation, the Mutation Register would be preceded by a Warrant in the Warrant Guard file, and before that, in the court file in which the warrant originated. All of these can be had for a fee. Tiresome exercise – yes.

After that, the things get a little more tiresome still. Now you must go to the local Sub Registrar office, and apply for the ‘Monthly Index’ of the documents registered in the said revenue village, or in the said plot number of the said village – going back to the consolidation! You have to do this under the RTI. As an officer, if I were there receiving such a request, I would reply that the record is too cumbersome to process, and that you are free to inspect the records. Just inspect them. As patient as you can be. Take an Urdu reader with you, for somewhere around 1950s the records shall change into Persian script. What you are looking for is – any occurrence of the plot number (or its pre consolidation “rights equivalent”), and any of the title holders on the said lands that you encountered on your traverse back in the time to the settlement. Some of them would be expected – if the title of your seller has been derived from a previous sale, that sale deed would be found in there. However, you are looking for registered items which are not a part of the mutations in your traverse. If and when such items occur, note the numbers of the registered documents, and take out a copy of the same.

So now that we have seen the whole canvas of how the land ownership is reflected across the ages in the revenue records, as well as the gamut of registered documents that might affect the title, what exactly do we need to look into when purchasing the land.

First of all, as I said earlier, the lower the number of links in the chain, the better it is. Look for a family held land. That too with only natural succession – testamentary successions by wills can be very problematic, and it is better if they are avoided. If resold land has to be bought, the least number of sales links is the better. Even in successions, the least number of successions is the best.

Then there are sale related issues. Till the operation of the UPRC 2006 started on February 11, 2016, the khatauni recorded all the cotenure holders against a plot, without expressing the area share of each of these shareholders. It is inadvisable to buy a cotenancy land. Better to ask your seller to get his land partitioned out under UPRC Section 116 (UPZALR 176), and get your shares and sub plot clearly demarcated out. Ensure that the summons are served on all the recorded tenureholders, so that no one can claim ex-parte judgement later. This has three benefits. Firstly, a suit prior to sale might bring out hidden disputes, before you burn your hands in the deal. Secondly, most land dispute are born out of cotenancy, when some of the parties try to claim meatier part of the undivided land – meatiness depends on productivity, proximity to resources or roads etc. A prepartitioned plot avoids such issues. The third, and the most important thing, however, is the declaration of clear shares and boundaries. This needs to be elaborated in a paragraph of its own.

I, in my capacity as a presiding officer of Revenue Court, have seen unscrupulous people selling unsuspecting buyers more than what their share is in the said cotenancy! Since the khatauni had no shares expressed, and the buyer was gullible, a person with, say, a 2000 square metres right in a plot of one hectare, might straightaway sell a 3000 square metre share to him. Even if the buyer is smart, and insists on researching his seller’s share, he can always sell him 1500 square metres, and then, immediately sell, say, 1200 metres to another buyer. Thus, he has achieved a sale of 2700 square metres on a right of 2000 square metres. This is where the sale deeds – mutated or not, that you have extricated from the Sub Registrar, would come handy. See to it that all the sale deeds record only the shares that were actually available to the sellers, and no ‘over-sales’ of the kind mentioned above have been done. Then again, some sale deeds have special qualifiers that demarcate the direction and location of the land sold from a larger plot. A single tenureholder in possession of the plot has the right to do so. A cotenant holding a plot under cotenancy does not have such a right. Some times the original owner of the large plot sells the buyers small demarcated shares, and leave out pathways between them as unsold commons. Often the unscrupulous out of these buyers try to get hold of these pathways and merge them in their shares. Since such pathways are not public pathways as per definition, no quick remedy is available in such a case. A partition suit would bring out all such private settlements into the public record as well as on the revenue map. Hence, on the pain of repetition, always buy a partitioned out share.

So, to revise, we have traversed the ownership of our seller in the said land, through his own predecessors or previous sellers; we have successfully crossed over areas of consolidation – through the “rights equivalency CH-45 – CH-10A route” (and not the plot equivalency route through CH 41); and in the Zamindari era we have also seen the associated Khewat. For every mutation , we have checked the R6 and the associated warrants and Court files (as applicable). We have noted down all the title holders and their cotenure holders in these records, and we have scoured the Monthly Index of the said Revenue Village from the Registry Office - for the plot number, for its “rights equivalent” pre-consolidation and for the names of the above mentioned title holders and their contenants. Wherever these things occurred in the index, we have taken out the registered documents, and checked them for mischiefs like ‘over-sale’, ‘direction and location demarcated sales’ and ‘sales with paths’. Then we have asked the seller to get his land share partitioned out. So now we are good to buy into the said land. So we buy it.

Possession

Good job. Now we have completed just one of the two major legs on which the presumptive title rests – a solid legal title. However, the second leg is as important, if not more. It is the actual physical possession of the said land. For one thing, mutation requires possession – mutation cases can be dismissed if, in most cases, the non possession is proved. Secondly, in the absence of very clear ground markers, leaving your purchased land undemarcated can keep it vulnerable to even inadvertent ‘honest mistake’ type encroachment, as well as to the mala fide land grabbers. Wait a minute, a part of the occupation goes into the research part too. From an occupation point of view, what land is the best to buy? To answer this, I would let you in on a dirty little secret. Almost none of the current plots are at their exact prescribed locations. Almost everything is shifted a little bit – the fields, their boundary bunds, the pathways between them, the crossroads made by the crossing of these pathway (the last ones are one type of the ‘permanent’ fixed points used to solve measurement disputes). This issue comes to fore more starkly at village boundaries – if the boundaries of the two maps do not coincide. Remember, one milimetre on the map is 4 metres on the ground. Hence, it is always better to buy lands – a) near some permanent markers – like old wells, old roads, any old structure recorded in the survey/consolidation map, b) away from the village boundaries. To do that, you need a copy of the village map. RTI – once again, comes to our rescue.

Government Lands

Once the steps regarding research and possession enumerated above are complied with, you have managed to avoid the repercussions of the shenanigans of the private parties. You, however, still need to be aware of the shenanigans of the state! There are just a few now. One you have already been exposed to – the draconian 168 A ZALR – which prohibited sales of fragments. In case, along your traverse, you find sales of fragments, which have not been subsequently regularized, avoid it. Or ask the seller to get it regularized – it is allowed now, after repeal of the section. Next is the fallout of Hinchlal Tiwari Judgement – any traditional pond has to remain a pond. It has to be redug if it has been built upon. That is what the law says. How to find if your prospective land is infact a hidden pond (or any other land of public purpose)? Just check out the khasra of the 1359 AY, referred to earlier. Another set of laws prohibited unregulated sale of land by the weaker sections of the society. These are section 157A and 157AA of the UPZALR Act and the Section 99 of the UPRC. So if the land in question has ever been in the possession of SC / ST landholders, it needs to be checked if the proper permissions were taken when these lands were sold. How to spot such tenureholders? Firstly, the records of 1359 AY and before contain the caste of the landholders. Thereafter, any landholder who has been let on the gram sabha land on the basis of lease by the Panchayat Land Management Committee or the SDO usually falls under such category. Finally there is the issue of lands in which the government has been a litigant. This includes a) lands with contested rights accrued by unauthorized occupation by a member of the vulnerable section, b) lands which have been exchanged with the gram sabha, c) lands in which government had gained rights by vesting, sealing etc, which was later taken away by a court judgement. In almost all such cases, somewhere somehow, government keeps contesting for its rights, and occasionally wins, leaving a bona fide purchaser high and dry for no fault of his. Activists (blackmailers) of all stripes keep sniffing out for such lands, and then proceed to blackmail the purchasers of such lands. In case the purchaser does not comply, they complain to the authorities, quite self-righteously, and the authorities often err on the side of caution with a huge margin, just to avoid blame.

To Conclude

I guess that to many of my readers, this reads less like a DIY article and more like a satire. Well, to be honest, it is partly that. It is very difficult for a small lower middle class land buyer to do so much research. The article just specifies how much research needs to be done. The purchaser may very well follow it to the extent he is willing, trading off between surety and convenience. Almost all the current purchasers of the land are doing so without even doing the first step, and are, for the most part, doing well. Maybe my view is jaundiced by the extreme cases of human crookedness and tragedy that come to the Court of a Sub Divisional Officer. The satire lies in the fact that such a cumbersome process needs to be resorted to be sure of one’s title in the land. Should that not be our right – to be sure that the land we are buying would not one day be snatched from us, just the way we are when we buy a vehicle or a consumer durable. Conclusive Titling is the only way to get there. It shall come in its own time. First of all, there is the need to raise the status of the revenue records from mere fiscal entries to record of titles in the real sense. It can go further and record the appurtenant buildings, and the owners thereof. Then the process of registry needs to be linked electronically to the revenue records. If the name of the seller is not there in the revenue records, the registry computer should not register a sale by him. It shall force all such floating title holders to get themselves mutated in the records – thus creating a true record of ownership. Secondly, it helps avoid sales by non owners. Thus limiting disputes. That is the only way to circumvent this 5000 words article. That is the only way to peace and progress.

PS –

1.       One issue that the original article missed was the issue of forced dispossession. Middle class bona fide land owners are much troubled by muscled parties forcibly occupying their property. Civil Courts have their own pendency issues to deal with, and justice is time taking. Most go to the Police – who are almost as clueless as what exactly to do in such cases. The speedy remedy is available only under Section 145 CrPC – under which the police can help you. The section allows an Executive Magistrate to deliver possession to the rightful possession holder (which need not be the rightful title owner – the magistrate cannot decide the title – only a civil / revenue court can do so). It even allows him to deliver possession to the displaced party in case a forcible dispossession in the last 2 months is proved.

Now question comes how to prove your possession. For the magistrate has two options – to give possession to some party, or to attach the property to a receiver under Section 146. Attachment can be resorted to in cases of – a)imminent threat of breach of peace if the land is left in either party’s possession, b) it becomes clear that none of the party was originally in possession, c) it does not become clear which party was in possession. Usually, it is the third case. There is no CCTV camera hovering over all properties that can record possession. It is usually the word of one party against other. So most cases lead to attachment until a competent civil court decided on the issue. That leads back to the square one. I, in my tenure as a Magistrate, gave out only one possession. The evidence was quite rock solid. The awarded party had names in the consecutive voter lists (a public document) between the names of parties which dwelt in the adjacent homes – both ECI and SEC lists. They had a number of registered letters delivered to them at the said address – utility bills and the like. The other party had plain words. The weight of clear cut evidence was much appreciated. So if my readers want to ensure that their possession creates a trail of reliable records, keep collecting and archiving all the official papers you receive at your address, and ensure your names in the electoral rolls occur at the correct house number. Another way is to take photographs or videos of your ‘possession’ – say you tilling your fields, or sitting on your front porch, with a copy of the day’s newspaper in your hands, and mailing the photographs and videos to some official email id – the photograph of the day’s newspaper proves that the photo / video cannot be older than the date the paper was published – and the time stamp on your email proves it is not later than the dispatch of the mail. This is the way I suggested my litigants to prove their possession! It is fool proof. It does sound paranoid. Better be paranoid rather than dispossessed.

The Other Khaki - a Postal Surprise

The welfare state is a big giver. For some reason, it seems to prefer beneficiary based schemes to infrastructure based schemes. Which defies electoral logic - since broad based schemes involving public goods benefit the whole electorate, while the budgetary constraints prevent more than a tiny number of the electorate from getting the benefit, while it does sow resentment in the rest of the non beneficiary population. Still, there may be that perversion of the American Dream - for the want of a better term, it can be called the 'Indian Dream' - while the American version holds the promise of a good life if one works hard and brings oneself to a level, the Indian version promises access to the state munificence once one is able to get oneself labelled socioeconomically 'weak or backward'. Just, for some reason, the propensity of the State to spend on individual beneficiary program is very strong. Stronger still is its distrust of its same beneficiaries. That is why after taking umpteen number of affidavits and certificates, in triplicate, it sends its employees to verify the antecents mentioned in the scheme documents. Of late, for quite good reasons, it has developed a healthy suspicion of its own employees as well. Hence, now senior officers are sent in to verify the employees' work!

So it was on a similar verification run. One particular beneficiary was proving too hard to locate. For one, the address was in one of the most congested locations of old Meerut city, and the twists and turns in the lanes were good enough to get one lost. Plus these impoverished localities are full minor delinquents like power thieves and revenue defaulters, and hence, the general level of cooperation being extended to us was quite low, as the interrogated persons suspected us of looking for these delinquents in the garb of checking beneficiaries. The official vehicle did not help - for the lanes were too narrow to bring it in, and for it kept on scaring the delinquents who might have been helpful! We had asked the shopkeeper, the washerman and the barber. Some had told us that the number of the house given in the address was larger than the total number of houses in the area. Great! It appeared that we had detected a fraudulent beneficiary who had slipped through the first level of investigation, and was about to mark it so. That's when, as an afterthought, I asked this confectioner about the whereabouts of this beneficiary, before striking her off the list. The confectioner nodded his head in the negative, as was expected. However, a man on a bicycle who was dealing with some papers at the adjacent shop asked me to repeat the house number. That I did, and then the person led me through an even narrower lane, on his bicycle. There she was, at the very end of this lane, our beneficiary, very much poor, and very much eligible; whose name was nearly about to be struck off the benefits list because of her anonymity and inconspicuousness, in the eyes of her close neighbours, and it was not some minor benefit, but a well built concrete 1BHK flat by the Urban Development Authority! The cyclist told us that the erroneous house number was there because of the proximity of the house to the next equally crammed colony, whose number series was put on this house despite being in a wholly different locality. The person we were unable to find for more than an hour; whose neighbourhood service providers were oblivious to her existence, was located by this person in 2 minutes flat. This woman was about to lose a house (or atleast about to find it a lot more difficult to get her name restored after filing an appellate application and supplying evidence of her existence), but for this saviour on the bicycle.

He was the local postman!

In this age of instant messengers, Skype and 4G cellular telephony, the good old postal department may appear anachronistic to the layman. The recent closure of its more glamorous, T out of P&T, half - the Telegraph, was widely read as the beginning of the end. The department has rejuvenated itself with a variety of new verticals - banking, life insurance (this is one of the best 'government' insurance on the offer, by the way), premium delivery services, and of course, philately. However, there is one area in which the department, by the very nature of its core job, can become the mainstay.

As I have said earlier, the welfare state likes to give. For giving, and for a lot other purposes, the welfare state needs a lot of data. Personal level data. The current system is centred on the Revenue Tehsil. In almost all states, the Tehsildars and SDMs are the issuers of caste, income, and residence certificates. SDMs and Tehsildars are the Electoral Registration Officers (EROs) and Assistant EROs. For the certificates, the field verification is done by Village Record Keepers ( Lekhpal) and for Electoral works, a variety of ground level workers are deputed. However, Lekhpals are no good in urban area investigation. That is because of two reasons – firstly, all their records are connected to agriculture and agricultural land. It is during the thrice a year field study that they check out all the sown holdings, and in that process come to know the who’s who of the rural society. There is no agriculture in cities, and hence, no such investigations happen. Secondly, Lekhpals are appointed per Revenue village – and most cities comprise of one (or in some cases like Meerut – two) revenue villages. So, for a population over a million, there are just two chaps, supposed to know how much each of these millions persons earns, where each of these million persons sleeps at night (in other words – is normally resident), and what is each of these million persons’ parentage. The task seems Herculean at best, and yet my city Lekhpals are doing that, everyday – putting their signatures on various sorts of certificates, filling out all sorts of surveys for various beneficiary oriented schemes, relying on dubious hearsay. Similarly, our election BLOs, and our Census enumerators also have to rely on hearsay. In their day job – teachers, or as anganwadi workers, their duties are essentially static service delivery – they are at their school or daycare centre, and the clientele comes to that place. The surveys allotted to them are of the nature of mobile data gathering – going to the clientele, and collecting information. When static service deliverers go out to the field to collect data, they have to rely on hearsay. They ask around in the neighbourhood – and some neighbourhoods are pretty distrustful of the government machinery – and they give information not as per fact, but so as to manipulate the outcomes. So fictitious names get added to the electoral rolls, incomes are understated to avail benefits earmarked for lower income groups, wrong addresses are shown for persons who would like to avoid identification. It would any day be a much better job if a mobile service provider, who really knows his clientele literally by their seats, did this kind of jobs.

 I had a discussion with my colleagues in the Postal Service. The department, too, is suffering from short staffing from lack of recruitment commensurate with the retirements, coupled with the rise in work load with the times compared to the work content designed one and a half century ago. Very much like our Revenue Department! Hence, they would really not like this suggestion of saddling their overburdened staff with this work, from which they have been strangely kept bereft. May be because they were the only mode of communication and hence categorized as ‘essential service’. Or may be because being an arm of the Union Government, they simply went under the radar of  the District Election Officers, or the District Registrars (usually Collectors), who work under the States. However, being under the Union Government gives them an additional advantage – impartiality. The state government machinery at the lower level faces the worst of the bottom dweller politics. Hence they are quite vulnerable to their threats. All (and I mean all) of the wrong electoral roll entries or false certificates which I have detected in my tenure, were the outcomes of pressure from some two bit fellow with the ruling party colours on his letterhead. Central departments can stay aloof from the local politics, and hence, impart the degree of visible impartiality which is needed in such exercises.

There has been a growing murmur within the state government about the need for a dedicated information and statistics cadre – given the rise in work volume and the need for the fidelity of the data. Why not vest this authority in a department of the Central government? As I have detailed out earlier, the Postal Department has been very adventurous in diversifying its post office based offer basket – into banking and insurance. However, the postmen based infrastructure, if properly and adequately strengthened, and vested with the responsibility of keeping the state records correct, can become a real game changer. The postman used to be an important part of the society, and has been immortalized in the arts – Rajesh Khanna riding that bike and singing the immortal ‘Dakiya Dak Laya’, in ‘Palkon ki Chhaon Mein’, or the adorable Thanappa in ‘The Missing Mail’ by RK Narayanan. As a keeper of the records, he might regain that bygone glory. That is his concern. My own eyes, however, since that day, have taken to this dream, that, someday, thousands of his colleagues would make the strides of this welfare state very surefooted – just the way that solitary postman was on his beat in the narrow lanes of old Meerut! 

On Election and Religion

So we just wrapped up the second phase of elections to the upper two tiers of the Rural local bodies; the last phase to be held in my subdivision. It was peaceful, although the papers would not say so; the worst part of our job is that the biggest of our achievements are 'non happenings' - the riot, the booth capture or the caste battle that could have been. While an even more blood-fraught election to the lowest tier remains still to be seen through, and the 'guest duties' in other subdivisions remain, still, as I sit at the ballot box receipt centre, waiting for sweet peace-out, all sweated out and disheveled from two days of almost non stop work, I can afford to reflect upon it with some satisfaction. It won't be a long article - thumbing out on a phone is not as easy as typing on a computer. Just a couple of interesting realizations that I had.

Firstly, there is this ironic realization that how the foundations of the famed Indian democracy - the elections - are steeped in so much authoritarianism. Elections are the ultimate manifestation of vaunted 'steel frame'. Ever since I have joined the service, I had seen magistrates and police trying to keep the peace the 'peaceful way' - that is coaxing and begging with the troublemakers. This policy of appeasement keeps peace at the cost of justice - by robbing the silent Peters to pay the vocal and disruptive Pauls. Officers euphemistically call this deference to street politics 'respect for democracy'. However, in reality, it is just a capitulation to political powers who have a big say in the service conditions of the law and order machinary. However, come election, this hold is somewhat weakened by the model code of conduct. Plus, the consequences of any disruption during the election is quite great. So rusted law and order machinary of the state gets oiled and greased well. Street politics is not pandered to, as a policy. The street politicians who fail to realize this learn it the hard way through swollen posteriors! Never seen such widespread use of Sections 129 to 132 of the CrPC. The rod of the State is used quite well to plant the flag of democracy in what Dr. Ambedkar rightly called India's essentially undemocratic soil.

Second was realization of how deeply is the tolerance of intolerance ingrained in our society. Yes, that is a paradoxical term - tolerance of intolerance. Yet, it is what it is. Tolerance in our society is not born out of an inherent goodness of heart, but out of the cold war era doctrine of 'mutually assured destruction' - when one's adversary is so strong that conflict is too costly to justify it, and tolerating each other is the best survival policy for both. Liberalism is mostly, by it's inherent nature, not muscular. So it is mostly the sane liberal voices that are stomped out, and the ground is left bare for the uneasy teeth bared, fists clenched equilibrium between the intolerant biggies. That is why the average urban Indian finds that he has to face restrictions on many of his personal choices; restrictions hard to imagine in any other country which calls itself civilized. Yet, paradoxically, he finds that he has to acquiesce to tolerance of all stupid whimsical acts, if those acts are in the garb of expression of religious or caste expressions. Mostly, as agents of the State, we are forced to turn a blind eye to the plight of the people we have sworn to serve, in order to allow assorted hooligan groups their 'democratic right' to wave their ritualistic d*cks in our collective faces - of the society and the State. (It being the onset of this festival season, I, along with the rest of the 'State', am, in a way, preparing for that, once more!) Well, at least for the State, during elections, the shoe is on the other foot! The law and order machinary suddenly transforms into a ideologue group of itself. The model code is our holy book, and its interpretation is very flexible, much like what is done with the religious books. So like religious zealots we go about destroying their posters, their camps, their offices, their convoys. I got the opportunity to use the public address system on my vehicle to threaten 'whomsoever it may concern' with very dire consequences! We charged into habitations at nights with convoys of force, sirens blaring, to show that we meant business. However, what was surprising was the acquiescence of the generally hostile public. Overheard a village elder tell his young charges - "Chunaav mein police prashasan ke saamne na padiyo! Pagla jaave hain saale." (Don't get in the way of the law and order machinary during elections! They go f***ing mad.) 

Pretty much the way we speak of these pesky religious processions!

[D*cks = Ducks - seriously ;) ]

Is the Pen heavier than the Sword??

First of all, let me explain the long absence from writing. I would blame my job. In this vast canvas of activities, both economic and some uneconomic, the government has the mandate to do the residuary work – anything which the market or the society finds too unrewarding to be bothered with. Within the residuary activities given to the government itself, the Revenue Administration takes care of the residuary tail. Things which no department owns as its own tend to roll up to this door. One of my batchmate in the Police said – everyone’s bastard is the Police’s baby! In this state, we share this responsibility with the Police. Then there are some issues which do not become even the police’s babies – these changelings are always crying for attention, often more than our own legitimate ‘babies’. Needless to say, as long as one’s conscience is awake, one cannot say one has completed one’s work for the day. So these are the moments, when one has smothered the conscience, that one can get some time to write!

The issue that made me smother the conscience this time is this strange belief which our society and State have incorporated in their working. For the want of a better term, I’d call it the Doctrine of offense and reaction. We as a nation labour under the idea that giving offence to a person is a greater wrong than any violent act the person so offended commits. Religionists offended by art, political persons offended by political acts, ‘aam junta’ offended by a ‘non-responsive’ administration – the acts of violent reactions to supposed offences keep on growing, and keep on occupying a major chunk of the working hours of the Administration. If my memory serves me right, this trend has grown exponentially in the past ten years, and seems to be getting stronger every day. How did it start? May be some kind hearted, lazy, or politically dominated police officer or magistrate, on an off day, chose to overlook some act of vandalism sometimes back as an acceptable reaction to the offence given. May be it was just a tactical move by some innovative official – it was easier to silence that one source of offence than to do the right thing and chasten the hooligans. Anyway, that tactical mistake has now grown into strategic proportions – the society now speaks of various laws that curb various non-violent activities that may be deemed offensive by particular sections of the society. It has now seeped into official language of the law and order machinery – how, during ‘this festival’, ‘that section’ of people can be offended, by ‘this thing’, and being a state of ‘religious fervor’, they can be expected to ‘do anything’, hence care should be taken that nobody offends them (this is an English translation of phrases in an official letter in Hindi – I am not kidding!) So, as a State, by our action, as a society, by our inaction, we have created this monster of intolerance and accepted it as fait accompli.

The world might not be inherently just, but it is, most definitely, inherently logical. Illogical constructs cannot be sustained for long – no matter how appealing they may sound or feel. That is why the most well-meaning, ‘let them have cakes instead’ type, judicial pronouncements, enhancing the ‘scope of the right to life’, fail. The doctrine of offense is as unsustainable, as it seeks to curb something which is not a physically manifested phenomenon (offense), instead of the more logical, physically manifest phenomenon (violent reaction). Psychology has had a long debate on whether psychologists should try to understand thoughts or behavior. It has been largely settled that, being manifest, behavior, if monitored and measured, gives the discipline of psychology objectivity and the freedom from personal bias that any discipline wanting to call itself a ‘science’ should possess. Now, law never claimed to be a science. However, even law cannot be just without these two attributes – objectivity and freedom from personal bias. That is why, like the psychology debate, the only logical solution to the question whether the law should proscribe ‘thought crimes’ or ‘action crimes’ should have only one answer. Not only is the idea of criminalizing ‘giving offense’ illogical, it also flies in the face of the most Fundamental Right to Freedom. While the readers of polity might say that this right is subject to ‘reasonable restriction’ by the Constitution itself, only a practitioner, whose responsibility is to enforce that reasonable restriction (yours truly!), knows how difficult it is to define what’s reasonable. When the reasonableness is not defined, the line between the right and wrong, between the victim and the offender gets blurred, and mischief mongers, of all political hues, who gain from general anarchy, start infesting these murky zones. Within these legislative grey areas, the executive erects temporary barriers, as per the personal tastes and the political interests of the incumbent – what may be deemed permissible by one person on that chair, may be deemed proscribed by another person. When someone aggrieved by any such decision moves to the judiciary, the same subjectivity continues, at a larger scale. A single order from the higher Judiciary may draw the lines at location much different from where some Collector or SDO might have drawn them, in their best judgement. As I have described, the dwellers of these murky zones are not your average law abiding citizens, but the persons who generally look for, and revel in, lawlessness. Hence, enforcing these judicial orders becomes another headache for the executive. A single ‘Black Swan’ judgement can rip apart ages of peace cobbled and patched up by the executive. Courts have held that customary religious practices should not be deemed public nuisance. Courts have also deemed noise from religious places as nuisance. This is just an example of legal tightrope walk the State has to do in order to mollycoddle religious (and other, often illogical) sensibilities.  Besides the fact of moral and legal unsustainability of this doctrine, there is the additional fact of fiscal unsustainability. The State does not have just enough force and firepower to prevent all the ‘offence-giving’, especially as the threshold of what is deemed offensive is being continuously and competitively lowered. In 1971, one Company of trained and motivated force could stop two battalions and one mechanized infantry brigade at Longewalla. In this year, I have used one Company of force to keep the peace in a single village during a religious procession. I have also used the same strength of force to allow Food Safety teams to collect two samples of cooking oil from suspected adulterators! If this is not tragicomically unsustainable right now, I’m sure the limit is not too far.

Another idea that goes along with the doctrine of offense is the concept of communal and emotional issues. From my experience of speaking to the most rural of rural populations, I can say with full surety – none of these so called ‘offensive’ issues really comes from an emotional reaction. All this violence is not impulsive, but instrumental. Most of it is well thought and carefully rehearsed political agenda. Judging particular sections of population as ‘religious fanatics’ or ‘emotional idiots’ is insulting their intelligence. In most cases, it is a studied game theory response – the most profitable strategy in the face of the present state policy. People now brandish this threat of taking offence very openly – in order to further illegal acts under the garb of public sentiments. Installing a small religious structure overnight, or putting a small bust or statue of some ‘Mahapurush’ (hero) is the weapon of choice for grabbing choice lands otherwise inaccessible. Even the police and the administration have got well versed in the religious rituals and algorithms – and are now using it to good effect! Recently an illegal religious structure that was being put up thus, solely for the purpose of taking offence and then gaining political mileage, was removed because the administration, with its knowledge of religious rituals could logically argue that since steps A,B, C etc have not been completed yet, your structure is not religious yet, despite it appearing so, and hence, logically, you are not allowed to take offence on its removal! This argument, and some other steps, which shall form the subject of a post retirement book, led to defusing of a situation which could have otherwise easily been this month’s national headline. In many enforcement related cases, where the State might has already been atrophied by the unofficial moratorium on near lethal force, the doctrine of offence is being used as a weapon of last resort against the most restrained use of force, for which even the excuse of being ‘terrorized by the State’ would not hold water. Those being enforced upon would push their ‘leader’ to the front – so that even a push or shove that happens, when the police has abandoned their guns and batons, can be deemed ‘offensive’ to the group as a whole, giving the ‘victims’ an excuse to run riot across the city, giving the administration a new issue to control. One can see the effects – how taking action against godmen has become so difficult. The doctrine of offence has become a threat to the sovereignty of this State itself.

The mandate of the State is to be the monopolist in the exercise of legitimate force. The powers that benefit from anarchy do not hold back their punches, and pursue their agenda with full scale violence. Violence may not be active – it may be passive – as in road or rail blockades, which are incorrectly labelled as ‘peaceful’ protests by our anti-establishment press – incorrectly because although the perpetrators are not indulging in active violence, the effect is the same – someone dying in an ambulance stuck in the blockage, someone losing money in the delays – plus there is the implied threat of real violence if, say, the loco pilot chooses to do the right thing and runs over the ‘protesters’! As the situation stands, the State has already lost a lot of its effectiveness by unilaterally abjuring from real forceful enforcement. If this doctrine of offence is allowed to proceed to its logical conclusion, the society would stagnate – for every step taken in a new direction scorns the status quo, the reverend, the unoffendable. Sigmund Freud has said - “The first human who hurled an insult instead of a stone was the founder of civilization.” Every stone hurled in reply to an insult is thus a retrograde step, back to our beastly past, a slow unweaving of the fabric of civilization – and we just do not know what the tipping point might be!

The Servant of the People

This may be my most politically incorrect article. Well, to hell with it, for what is ‘politically correct’ but a politically correct way to address a hypocrite.

What is the need for a State of any kind? Usually, this is the first thing which is taught to any freshman civil servant. While the more evolved explanations are quite abstruse, and, in my humble opinion, pretentious, the basic explanations point to just one reason – to create a source of legitimate force to right the wrongs.

Righting the wrongs itself is a tricky topic, unless we are clear on what constitutes right or wrong. In my view – wrong is the absence of justice. What is justice? In the most simplistic way, justice can be framed in three paradigms – one, where everyone has in proportion to one’s ability / might; two – where everyone has equal, and three – where everyone has in proportion to one’s need. All three systems have a logical self-containment, and a good set of moral arguments to bolster them. In fact, all three are actually practiced, if imperfectly, in various social institutions of the modern society – the first in most free economy markets, the second, in most modern welfare states, and the third, in most modern families. The first system is highly sustainable in itself – the strong will continue to corner most of the resources, and the weaker shall keep perishing. It has been described as the system of ‘matsya nyaya’ (literally – fish justice – the big fish shall eat the small). Needless to say, it is an inherently violent system. However, the other two paradigms of justice are against natural order of things – the stronger persons under the matsya nyay paradigm shall end up losing, and weaker end up gaining, and hence, there shall always be a tendency of the relative losers under the system to fight and take away what was ‘naturally’ theirs to begin with. Thus, there is the need for the presence of some deterrent force which may prevent the strong from preying on the weak, on the threat of violence. To make the plot more interesting, we add to this the human touch. While the small fish of the sea may be easy prey for the bigger ones, weaker humans often have a tendency to unite and resist the depredations of the stronger. Such resistance is often bloody and violent.

As it may be seen, both the enforcement of matsya nyaya and the conduction of the more ‘evolved’ systems of justice require the use of violent force. One thing about violence, when it is used, is that it is materially destructive. It may throw up a victor, and a vanquished; but both end up losing something – and the losses may spread to persons who are not even party to the violence. So, while the threat of violence was necessary to sustain the society, the act of violence itself was destructive. It is a classic conundrum, very aptly described by the great poet Ramdhaari Singh‘Dinkar’ in his poem, ‘Shakti aur Kshama’ (Power and Mercy)

सहनशीलता, क्षमा, दया को

तभी पूजता जग है

बल का दर्प चमकता उसके

पीछे जब जगमग है।

 – the crux of which is – in order for one’s abjuration of violence to be seen as sincere, the threat of violence must be very real and credible. Thus, there was a growing realization of the need for a repository of violent might so strong that its threat of violence would be universally credible – and hence, universally obeyed. This was the bloody origin of the ‘State’ – an institution into which we, as a society, vested our right to indulge in violence on our behalf, as we ourselves, as individuals or as small groups, abstained from it. It may be seen that states are the legitimate repositories of coercive power – not only against their subjects, but even against their external counterparts. In both these arenas – internal and external, the actual use of violence is gradually declining – internally by the reliance on the penal laws, and externally by the doctrines of mutually assured destruction – thus, the credible threat of violence is making the world go round.

Over the time being, the system of deciding that who shall man the apparatus of the state changed. Initially, in the days of monarchy, the offsprings of the incumbents were expected to man the apparatus after them. Gradually, some form of representativeness was involved, and thus, in today’s world, most of the advanced civilizations have some or the other form of democracy – where all the key posts of the State are manned by representatives of the people. Almost all the persons in the employment of the state are now deemed to be ‘public servants’. This whole piece deals with what, in my opinion, was that supposed to mean, and what it has been wrongly construed as by the majority of persons – mostly lay persons, but also some of the intelligentsia with vested interests.

There was recently (around a year back) a ‘debate’ in the pulp media about redesignating the important offices of the State in a more deprecating style – for example, making the Prime Minster into the ‘Prime Servant’, the Chief Minister into the ‘Chief Servant’, and a host of analogous inanities. The logic given was that the holders of these offices were ‘public servants’, and hence they should wear their ‘servitude’ on their name plates! There is the increasing use of calling the State revenues “tax payers’ money” – although, by that analogy, the restaurant revenues should be called “diners’ money” and the movie hall earnings, “patrons’ money”. The idea is to run down everything connected with the state - and the idea met with quite a strong approval – from people who felt that their public servants were getting too masterly in their relationship with the public, and that there was a strong need to cut them to their size. Is the public opinion right in this case? My own vested interest as a civil servant aside, I feel this idea stems from the fact that most of the public as well as public servants have forgotten the dichotomy between the public offices of the state, and the holders of those offices.

To explain the above mentioned idea, we shall expand upon anther question posed in public debate around the same time – is the Parliament above the ‘people’, or below them? We can expand upon this question and make it into a wider one – Is the State above the people, or below it? While it may sound like a value based argument, in which you can take either side depending on your orientation, in reality, there is only one logical answer, which rests on the fundamental function of the State. In today’s world, the State is expected to do much – including things like feeding supplementary food to malnourished babies, to operate Railways and Airlines, to manufacture bottled water and what not. However, deep down, the raison d'etre of the state remains the same – to be the monopolist in the exercise of legitimate violence, in order to make the existence of the modern society possible. All the other functions of the welfare state, or the nanny state, may be equally important to you, according to your location in the political spectrum from left to the right. However, this fundamental function of the state is not dependent on the ideology – it is an absolute fact. Seen in this light, there can remain no question about whether the State is above the people or below. For if the State is not above the people, there is no reason for the existence of the State. Multinational NGOs can do well to ‘serve with a smile’ and bring us all the welfare we need. However, the big arbiter, who is supposed to keep the people away from an internecine war, must, by the very reason behind its existence, stay well and truly above the citizenry.

What then about the democracy, and what then about the public servants? Therein lies the dichotomy which has been ignored for long – the dichotomy between the office and the holder of the office. The person holding the office of the Prime Minster is a public servant, but the PMO is not subservient to the people of India. All the IAS officers in the country are public servants – however, the Collectors and District Magistrates are not subservient to the people of their Districts. The idea of being subservient here means ‘taking orders from’. The procedure about who takes orders from whom is laid out clearly in the Constitution, the Rules of Business and similar enactments. This dichotomy is still clearly evident in the Courthouses of the country. The seat of the presiding officer is usually a few feet above the ground, where the parties and their counsel stand. It signifies the majesty and the supremacy of the Court over those who have assembled before it to resolve their disputes. It is made clear that it is the Court which is above the public, and not the presiding officer. Rules against contempt of Courts are made simply to reinforce that absolute authority. According to the rules, even the presiding officer may, by a behavior unbecoming of the office, commit contempt of his own court! Unfortunately, in India, contempt of Courts is the only offence in which an assault against the state is viewed more seriously than an assault against any lay person of the public. Most developed nations have laws to prevent assault against their law enforcement officials. ‘Cop-killing’ is an offence which is deemed much graver than simple murder in the United States, as it is acknowledged that the assault on the law enforcement machinery of the State is more dangerous than the assault on any private person.

Much of what is wrong with the country today can be ascribed to the waning power of the State. The State had but two basic duties – to the common people – it promised basic safety of life and limb, and to the economy, it promised the enforcement of contracts. In both these areas, the sword arm of the state has been weakened to the extent of ineffectiveness. For reasons described in the later paragraphs, the deterrent power of the police has been steadily eroded, and hence, the preventive aspect of crime control is compromised. Even in the punitive aspect, the investigation is often steered by back seat drivers, and, in case of rural crime, it has to content with various caste and identity groups, which shall stop at nothing to ensure that guilty of their ilk shall never be found out. This pressure politics may often take the shape of faux Gandhian ‘protests’ – alleging that the police is picking out on particular castes – which, in a way is unavoidable, since most rural crimes have a caste angle to them. In any case, any exercise of the state might in the performance of state duties is painted as a ‘people versus state’ conflict in the popular discourse. Similarly, in the case of contract enforcement – the ultimate sanction that any court can provide against a defaulter is the recovery of the judgement dues as ‘arrears of land revenues’. Now, the exaction of land revenues was a serious business some 60 years back. A lot many of the movements during our freedom struggle were sparked off by it – the Bardoli Satyagrah for instance. Even the blockbuster Oscar nominee ‘Lagaan’ had the Hindi word for this tax as its title. In those days, for not paying up the arrears of land revenue, one’s properties could be attached and sold off in the market, and one could end up locked up in the revenue lock up at the Tehsil, till the dues were paid up. Hence, when a court ordered the dues to be collected as ‘arrears of land revenue’ – it used to mean serious business, and hence, the money would usually be paid up by the defaulter before it came to this serious step. However, these days, the collection of land revenue dues has become a very placid affair. The Collection Amin goes to the person’s house, knocks on the door and begs for the dues to be paid. If the defaulter’s heart melts, he may pay out a part of the dues. Else it shall be collected the other day. The only weapons left to the collection authorities are ‘naming and shaming’ of the defaulters on the Tehsil notice Board, and denial of their Arms License clearances! (It is a big deal in Uttar Pradesh.) No doubt more and more people commit all sorts of crimes and defaults – they are beginning to understand they can get away with it.

The most important cause of this this development is that the whole sword arm of the state has gone weak, due to a multiplicity of reasons. Since the ‘engagement’ with the ‘public’ by this arm is mostly in an adversarial situation, the arm gets mostly bad press. However, the situation has worsened in the decade gone by. Now, the press actually tries to have its cake and eat it too. Both sides of the argument are being taken equally well, without any sense of contradiction or cognitive dissonance. In case of the August-September riots in Muzaffarnagar, a lot of criticism was heaped on the administration for not taking ‘hard steps’ to stop the rioters. Hardly a week after these riots, when instigators tried to do a Mahapanchayat in Meerut, the administration clamped down on the riot instigators. Those aggrieved by the crackdown resorted to pelting of stones on the policemen. The police responded with a few aerial rounds of fire (not allowed by manual, manual insists on firing for effect), and some weapons were trained on the rioters. The press showed this as “Bullets vs. Stones – is this just?”. It was as if they expected a duel, instead of riot control! However, the thing which is most influential in weakening the hands of the field staff in law and order situations is the adverse scrutiny by the judiciary and judicial bodies. Increasingly any use of force is being deemed excess; any loss of life on the sides of the troublemaker is deemed an aggression on human rights. Unsubstantiated media reports are being taken as basis for suo moto cognizance of cases. The judicial machinery, even at lower levels, is exercising its prerogative under CrPC to register cases of murder against the District Officials, when the police reject such motivated FIRs. While it is true that few of these cases do result in any conviction, but then, it is hardly the culmination in conviction that an official has to worry about. The slow movement of cases in the judiciary, with one carrying the tag of a ‘murder accused’ is punishment enough for a crime which has not been committed. These trials may go on for decades together, and the newer personnel are noticing how their seniors who took the call to use force have fared. After all, the bargain is quite clear – get transferred / suspended for inaction, versus get implicated for murder by taking action. The choice is not so difficult to make. To reverse this, the attitude must change, on the part of the judicial bodies. When a Court decides to register a case of murder on the law and order machinery, it must ensure that indisputable evidence has been brought on the record by the complainant. It is not a case of Judiciary versus the Executive, but of State versus anarchy. After all, the prerogatives and writs of the Judiciary run through the arms of the executive only.

Another reason why such tendencies are on a rise is because the state is deemed to be unresponsive to genuine grievances addressed peacefully. This has a certain degree of truth. There are certain constraints, budgetary and human, which prevent the state machinery from delivering to full satisfaction. Hence, peaceful submissions may not be getting full response. Hence, people resort to marches, rallies, stone pelting and other sorts of disorders to grab the attention of the State. However, even this mode of grievance redressal is not good. It is true that disorder has been successful in attracting the attention of the State to the problems, but the growing reluctance to quell these disturbance by the ‘stick’ has been leading to a disproportionate amount of ‘carrot’ being diverted to those creating disturbance. This leads to even greater deprivations to all others. Now the others are in even more dire straits, and they have an example of the successful wresting of state favours by disorder. Thus, it only foments more disturbances, and treating even the ‘just cause’ disturbances with kid glove is wrong.

One big effect, and also a cause in itself, of rise of law and order disturbance is the rise of intracity ‘warlords’. Basically starting as small time leaders of political / criminal world, they have occupied the ‘muscle power vacuum’ left by the State. When rioters ran amok all across India during the riots related to some statement by a fringe Godman in Punjab, the administrative machinery chose to play safe, for all the reasons given above. It was a call given by a 'great political leader', to ‘teach the rioters a lesson’ in a way that is the trademark of his 'great party' that brought the disturbance to a halt the next day in the city of Mumbai! This sort of awe should be commanded by the State, not by political leaders indulging in muscle power based politics. When power has been ceded to these people, invariably it would lead to situations which would be deemed as law and order violations by the State, but for these people, it is simply business as usual. Ironically, these leaders are often more efficient in quelling riots, since they are not as amenable to Human Rights inquiry, as the state is!

One side effect of the democratic politics of the country is that the political leadership of the nation is directly responsible to the people. That is a very good thing, as it makes the top echelons of the government sensitive to the issues of the lowest stratas of the society. However, here also, there is an increased sense of confusion between the office and the public servant occupying it. There is a perverse pressure to appear sensitive, at the cost of being professional. In every scene of crime or calamity, the thing which seen is the rank of highest official who has ‘visited’ the place. Even the media dedicates disproportionate attention on who visited / did not visit the site of crime / calamity. One thing needs to be borne in mind – the officials – either elected or appointed, are no deities, whose mere appearance on the site will lead to dispensation of some boons or the righting of all the wrongs. The laws of the nation have defined roles for everyone – the crime scene is to be investigated by a Sub Inspector of Police – and the higher echelons are there is simply see that he does that in the right spirit and manner. The appearance of the Superintendent, the Collector, the Commissioner or the Minister himself does not speed up the investigation – on the contrary, it impedes it, as the local police get busy in arranging for the high profile visits. Moreover, these high profile visits to site have two distinct perverse effects. Firstly, all the victims of similar crimes expect that the same courtesy be extended to them as were extended to the Joneses next door – and there aren’t enough man-hours in the top echelons of the government to satisfy that want – even if the people at the top left all their other jobs and worked 24 hours a day, doing just site visits. Hence, it would lead to resentment. Secondly, and more importantly, once the public starts to parley with the Collectors and Commissioners ‘on equal terms’, they start to equate themselves to them in a hierarchical sense. They actually start treating the professional subordinates of those officials with contempt – what is the status of a lowly SI, when one has spoken with the DIG of police himself! My call against ‘treating of public as equals with higher official’ may sound quite offensive to a majority of the readers, but the truth is that I write this in the context of rural northern India, which is deeply hierarchical – and the subordinate of any peer is treated as subordinate, and any subordinate is treated with disdain – it is seen in the way the servant boy at the tea shop is treated by them. While our sentiments may get hurt by the deeply feudal tenor of the article – it must always be borne in mind that we are referring to a society where genuine rape cases are being swept under the carpet in the name of ‘panchayati samjhauta’ (informal village agreements), while the new draconian women laws are being used to fix opponents in the Panchayati elections! It is a society with 16^th century sensibilities, but exposed to modern technology, modern political awareness and modern laws – a very dangerous cocktail.

In the end, it boils down to a simple question. If every action of the State is seen as a state versus people clash, then for whom is the State working? The trouble is, the beneficiaries of state actions tend to stay silent, rather than speak out. There is no rigid class of the beneficiaries of state action – everyone gets some benefit from it. In the billions that live here, even if one looks out for the interest of millions, there will always be thousands whose vested interest will be under threat. By choosing to highlight merely these conflicts, the media has always made its anti-establishment credentials clear. What is lamentable is the silence of those whose interests were being defended by any particular action on any particular day. Perhaps they assume it is their right to get the said services, and they would not be wrong. However, in the end, it is a democracy, and the organs of the state must be nurtured by the masses. For already, the people are beginning to realize the ineffectiveness of the threat promised by our penal laws, and have started taking recourse to primitive violence to right their wrongs– just the way it was in the days before the rise of States – for the human need for justice does not wait for ineffective mechanisms to rejuvenate. Now is not the time to emasculate the State further, but to empower it to tackle this descent into anarchy, and to reverse it. For a ‘servant’, the nation does not need a fawning butler, but a strong charioteer.