Shri ram ji

The Finance Minister Pranab Mukherjee with perfect justification and aplomb announced to the House that the Congress led UPA Government had come back to power with a mandate. This mandate is a vote for country’s stability and prosperity. It is a mandate for inclusive growth and equitable development. He then assured the House that the Government has accepted the mandate with humility and a firm resolve to do all that it can for the welfare of the nation.
He did not forget to express his gratitude for the faith reposed in the Government by the people and the responsibility that comes with it. He was conscious of the great challenge of rising expectations of the younger generation. The population is restless for improvement of life and increase of happiness. No sensible person will disagree with the Minister’s analysis of the electoral verdict. Moreover the verdict has immunized the Government from blackmail and restored to it full freedom of action. Its plain duty is to formulate correct policies and execute them with transparency and absolute honesty.
I genuinely want the Government to succeed in realizing its proclaimed targets and in fulfilling its promises to the somewhat uncritical and trusting voters of India. I hope and pray that the Government does not betray this trust.
Unfortunately the rest of the budget speech and the actions of the Government, since it was reinstalled in power, do not provide an adequate assurance that the Government honestly intends to serve the nation. I must hasten to articulate my misgivings.
For many years in the past various countries have been trying to evolve a mechanism to impose on their governments a duty of fiscal prudence. Just as an individual, who keeps spending more than he earns is almost sure to land into insolvency, so also the Government. Populist pressures often produce governmental profligacy. Every democratic government wishes to keep its voters happy very often by spending on them what they cannot really afford. It has been said for long that power corrupts and absolute power corrupts absolutely. Now a new proverb has taken its place: ‘power corrupts but the prospect of loosing power corrupts absolutely’. The temptation to over spend and bribe voters with expensive goodies is irresistible when elections are drawing near. Expensive food is sold cheap, huge subsidies are provided for seeds and fertilizers to farmers, public services are made cheaper and loss producing and enormous debts are written off. The common man is deluded for a while but he faces the evil consequences only after he has given away his vote for short term gains followed by bigger losses.
The Americans tried to achieve this by legislation. Starting in 1985 with the Gramm Rudman Hollings (GRH) Act. In India we started thinking on the same lines nearly 10 years ago. And in 2003 we enacted the Fiscal Responsibility and Budget Management Act, 2003.
It prescribes in detail the contents of the annual budget. The medium term fiscal policy statement should tell the people how the balance between income and expenditure is going to be maintained and how scarce capital is proposed to be spent for productive purposes only.
A fiscal policy strategy statement must explain the scheme of taxation, expenditure, market borrowing and the strategic priorities of the government and the rationale for any significant or novel changes in fiscal management Micro Economic framework statement containing the governments honest assessment of the growth prospect of the economy and the assumptions on which the forecast is based, is a further mandatory requirement.
The more important part is its Section 4. Totally forbidding unaffordable expenses, the Government is mandated to take appropriate measures to reduce fiscal deficit as well as revenue deficit to zero by March of this year. In this year government was required to step into a new era of revenue surplus.
Let us now see what the Finance Minister has done with his budget and his speech discussing his proposals and prognosis. The deficit has not only not been brought down to zero but has instead jumped from 2.5% of the GDP to 6.2%. In other words it has more than doubled. The fiscal deficit is an enormous figure of 4.5 lac crores as against 1.33 lac crores of the earlier year. The framers of the Fiscal Management Act had permitted such a deviation only in case of a threat to national security or natural calamity or some
other cause of the same character as the two specifically mentioned. Every lawyer knows that general words following specific words are always construed as being limited in their characteristics of the latter. Nothing analogous to War or rebellion or a Tsunami has happened in this country. No opportunity was provided to Parliament to understand the governments statutory duties and approve of the governments extraordinary profligacy amounting to criminal breach of trust.
More frightening is the Revenue Deficit. It will grow from about 55000 crores to a wallopping 283000 crores or 4.8% of the G.D.P. These enormous sums have to be procured by market borrowing. Lenders naturally expecting rise of inflation will refuse to dish out money except at increased rates of interest. Nothing may remain out of the borrowed money to spend on creation of jobs and employment or relief to victims of economic distress. Even an incurable optimist will not be sure of being able to augment manufactures, exports or domestic demand. The Finance Minister is thus no longer a prudent manager but a reckless gambler. The Fiscal Management Act is just dead. No justification is offered for its demise. If the market does not provide funds for the gamble it is certain that monies will be raised by printing more paper, a sure way of producing unbearable price rises and public misery.
One Hasan Ali Khan stud farm owner living in Pune had in the UBS bank, Zurich as on 8th December, 2006 a credit of more than eight billion US dollars equivalent to about Rupees 36000 crores. He pays income-tax in India on a declared income of rupees thirty lakhs a year. Investigations started in the year 2007 have disclosed that his account started with an initial deposit of US dollars 1.5 million in the year 1982. He was introduced to the UBS Bank by the notorious Adnan Khashoggi, a friend of an equally notorious Chandraswamy. Initial Singapore deposit was then transferred to Zurich, where by 1997 it had grown to 6.5 billion US dollars. In the next four months it rose to a little more than 8 billion dollars. Hasan Ali Khan was thus making deposits in this account of approximately 3500 crores a year. His last deposit in the bank is expressly marked with the legend “Arms sale”.
What is astonishing that this influential offender has never been arrested. It speaks volumes of his powerful connections. There is also reason to believe that he has other conspirators, two of them are Tapurias of Calcutta. The case was being treated as a simple case of tax evasion but in 2007, fortunately for India the Enforcement authorities asked for assistance from the Swiss under the Mutual Assistance arrangement existing between the two countries. The Swiss complained that the Indian authorities had enclosed with their request some forged documents and also wanted to know whether the Indian investigation was into an offence of money laundering. An affirmative answer from India would have brought
about the necessary disclosure of persons involved in this stupendous fiscal scam. Since April, 2007 till today the Indian Government has not responded to the Swiss querry. It should be plain to every one that at the highest level this investigation is sought to be frustrated because the persons involved are too powerful and the disclosure of their names would shake up the government and destroy its credibility.
People are entitled to ask why instead of borrowing phenomenal amounts of money from the market were not effective steps taken to get at these funds and the crooks who hold them. Why Hasan Ali Khan is going about as a rich tycoon and a welcome socialite?.
Another startling fact which has now come to light is that the German Government by hefty bribing of one of the bank employee has managed to get information about these powerful offenders. Some are in Germany, some in USA and some in India. It is said that of all the countries of the world the deposits of Indian criminals are the highest. They are of the order of about 1500 billion US dollars an amount, if retrieved, would wipe out our national debt domestic and foreign and allow this country to have tax free budgets for many years. Finance Minister Prahab Mukherjee would have become God for the people of India. The question is why did he miss this great honour?.
The behaviour of the Indian authorities has to be contrasted with what the Government of United States had done to this very bank. They threatened to arrest the officers of the bank available in the United States. The Bank has agreed to disclose the names of all
and they have already disclosed a large number of names to the U.S. Government. The bank has further paid a huge penalty of about 750 million dollars. U.S. Government has only agreed that further arrest and prosecution of its officers will be deferred during such time that the Bank is continuing its disclosures.
In the meantime the Swiss authority have already declared that no request for assistance has emanated from India. This fact has come to the notice of the SEBI and RBI. Both the authorities had taken some adverse steps against this bank. Government has on the contrary reversed these actions and done illegitimate favours to it. A very strong suspicion to say the least exists that the Government is determined to see that the bank does not make any embarrassing disclosures. To save face and to create some pretence of some action being taken a complaint has now been filed in the end of December last year against Hasan Ali Khan u/s 16(3b) of the Foreign Exchange Management Act, 1999 and a show cause notice has been issued to him on that complaint.
Transparency International India publicly lamented the apathy of the Indian government in seeking information from the German Government about millions of dollars of unaccounted money
belonging to the people of India lying in Liechtenstein a small country near Germany. The complaint now filed against Hasan Ali is perhaps a half-hearted response to what was becoming serious public embarrassment caused by the highly respected N. G. O.
A group of citizens then took the matter to the Supreme Court invoking its jurisdiction to compel the authorities to enforce the law against powerful offenders and to seek restitution of India’s stolen wealth. In these proceedings the Government was compelled to file a somewhat cursory Affidavit in reply to the Petition. They disclosed that from February 2008 they have been asking German Government through their diplomatic channel for this information. They maintained that there has been some correspondence too between India and Germany. They have also admitted that information has been made available to the Central Government on 18th of March, 2009 about Indians involved. However, the Government is determined to conceal this information from the people. The excuse is that the Germans have provided this evidence on condition of strict confidentiality. This is a most ridiculous claim. Germans are not interested in hiding the names of Indian criminals. What is the use of having the names of criminals, if you cannot use them? This kind of confidentiality is a false pretext and a continuing fraud. There is reason to believe that the names disclosed include some occupants of the highest decks of executive power. The disclosure will shake the government out of office and land some ostensibly respectable people behind the bar, assuming there are some honest policemen left. Even when compelled by Press disclosures to seek information from the Germans the route for seeking it was dishonestly selected to allow the defence of confidentiality to be set up against the owners of the stolen wealth to shield the thieves. This is not just routine evasion of tax but laundering the proceeds of criminal activity.

RAM JETHMALANI

The great legal Philosopher and Reformer of the 19th Century Jeremy Bentham produced his greatest work “ The Theory of Legislation” in the first half of the 19th Century. The book propounded the great Principle Of Utility a veritable working Manual for law makers all over the world.

“ THE PUBLIC GOOD ought to be the object of the Legislator, GENERAL UTILITY ought to be the foundation of his reasonings. To know the true good of the community is what constitutes the science of legislation; the art consists in finding the means to realize that good”.

The lesson was simple yet profound. Elaborating this principle he propounded that nature has placed man under the realm of pleasure and pain. To these man owes his ideas, judgments and determination of his life. Evil is pain or the cause of pain. Good is pleasure or productive of pleasure. The criminal law prescribes a series of punishments for different acts and omissions. Every punishment produces pain at least to him on whom it is inflicted. Punishment, therefore, is an evil. Its only justification is that it prevents a greater evil or produces in some other or others or the general public much more pleasure. From these two principles he had no difficulty in formulating the principles on which a rational Penal Code should be constructed.

The High Court of Delhi earlier this month produced a memorable judgment declaring a Section of the Indian Penal Code of 1860 as constitutionally invalid. Lord Macaulay and his fellow Commissioners who framed that Code had presumably not taken Bentham’s teachings seriously, at least when they introduced their notion of Victorian morality into this section and made it part of our criminal law.

Voluntarily having intercourse against the order of nature with any man, woman or animal is declared a serious crime for which the punishment may well extend to 10 years and fine or both. As judicially interpreted and noticed by the Delhi High Court sexual activities hit are the following:

1. Intercourse by a man with a woman other than vaginal; such as involving the anus, mouth or any other orifice in the human body;

2. Intercourse with any male involving the anus or any other orifice;

3. Act commonly known as practice of bestiality.

Section 377 by its marginal note classifies all three as ‘unnatural offences’ and the text of the Section stigmatizes the intercourse as carnal and against the order of nature. Macaulay did not know that the fish, iguana lizards, roosters, dogs, cats, horses, rabbits, lions and many other species mount others of the same sex. Even cows in heat are known to mount other cows. Homosexual behaviour is so rampant in non human species that it is difficult to justify the epithet unnatural for this behaviour.

Bentham rightly dismissed these acts as offending good taste. Neither he nor any other rational person would see in these actions any element of producing the evil of pain. Of course my assumption is that intercourse is by free consent and does not involve minors who are incapable of consenting to remain untouched by the Section.

The Delhi High Court judgment is full of learning and references to literature on psychiatry, genetics, religion and Court judgments delivered in other jurisdiction, particularly the United States and Canada. It refers to the report of the British Wolfenden Committee and the Sexual Offences Act, 1967, by which English law de-criminalized homosexuality. It fortifies its conclusions by the 172nd report of the Law Commission which also took the same view: ‘Section 377 in its present form has to go’.

Many years ago, when my friend Soli Sorabjee was the Attorney General he and I both attended a meeting of the faculty and students at Harvard. I distinctly remember both of us having told our audience that the Indian Government is seriously engaged in deliberations and in all probability the law will be substantially amended and brought into conformity with the new enlightened attitudes in which now pervade world of genetics, crimes and criminology.

The Delhi High Court judgment for which I have already paid my respectful compliments to its scholarly Chief Justice and his companion Judge is substantially based upon the citizen’s right to privacy and a life of dignity. The Court correctly concluded that these rights can only be subordinated to some overriding public interest. Counsel for the Union of India could not point out any and the Court rightly rejected his feeble argument that it is a law which in some remote way promotes public health. The submission was in the teeth of the view of the American Psychiatric Association presented to the United States Supreme Court in 2002 in the case of Lawrence v. Texas :

“According to current scientific and professional understanding, however, the core feelings and attractions that form the basis for adult sexual orientation typically emerge between middle childhood and early adolescence. Moreover, these patterns of sexual attraction generally arise without any prior sexual experience.

Thus, homosexuality is not a disease or mental illness that needs to be, or can be, ‘cured’ or ‘altered’, it is just another expression of human sexuality”.

Now the view for which the Additional Solicitor General canvassed was the view of the Home Ministry with which the Ministry of Health did not agree. To the best of my knowledge it has never happened that in a public hearing before a High Court two departments of the same Government made conflicting and irreconcilable submissions. I hope before the Supreme Court the Government will put its house in order. I can trust the Attorney General to do so.

What further surprises me, is that the most effective 8th Respondent namely the National Aid Control Organization (NACO) did not seek the assistance of Bentham’s powerful argument which any Court should normally consider almost conclusive. Some one should have done it any way.

Unfortunately homosexuality in India as in many other countries attracts intense antipathy which may well be called Homophobia. In popular language it means fear and dislike of homosexuality and of those who practice it. The word, which may have been coined in the 1960s, was used by K. T. Smith in 1971 in an article entitled “Homophobia: A Tentative Personality Profile. In 1972, George Weinberg’s book ‘Society and the Healthy Homosexual’ defined it as “the dread of being in close quarters with homosexuals.” Mark Freedman added to that definition a description of homophobia as an extreme rage and fear reaction to homosexuals.

It must be emphasized that the Delhi Judgment does not recommend homosexuality or even approve of it. I am revolted by it without denying that all males usually in early adolescence go through a phase of it particularly in societies where the free mingling of the two sexes is taboo. In most cases it is not a free preference but a forced choice when better alternatives are scarce. I am sure my revulsion is shared by the two Judges. But we are sensible enough not to compel others to experience the same feeling or at least put on a false mask. It is obnoxious arrogance to claim that my

conduct is natural and others violative of nature. It is pure tyranny to send others to prison because their tastes are not mine. The Constitution of India does not tolerate such tyranny.

No legislator or ruler can tell those who obey his laws “I am one of the elect, and God takes care to enlighten the elect as to what is good and what is evil. He reveals himself to me and speaks by my mouth. All you who are in doubt, come and receive the Oracle of God;” thus wrote Bentham.

A short reference to the history of homosexuality is called for. During the Greco Roman period, there is ample evidence to show that homosexual behavior between men as well as between women was common - and within clear conventional limits – approved. Literature dealing with the customs of Jews and earlier Christians however, does reflect a general aversion to homosexual behavior which was seen as an emblem of decadent paganism – godless, debauched, and heretical. For both Jews and early Christians, the Old Testament story of the destruction of Sodom became the foundation text of ‘homophobia’, even though neither Jews nor early Christians, including Christ himself, unanimously interpreted it as a text condemning homosexual behavior.

During the next thousand years between the fall of Rome and the beginning of the Renaissance the Roman Catholic Church condemned any nonprocreative act between persons of either sex. Pope Gregory IX called sodomites ‘abominable persons- despised by the world and dreaded by the council of heaven’. In the late 13th

Century the first case of a homosexual being burnt at the stake came to be staged. Even Protestantism was as rigorous in its condemnation.

In the 19th Century homophobia turned into hysteria. Lord Macaulay imported it into India. Homophobia is thus a western product which was unknown to sexually free India. The Delhi High Court can take credit through its judgment that India is going back to its enlightened roots. Oscar Wilde and his boy friend Alfred Douglas had already shocked the Victorian Britishers. They initiated the end of Homophobia.

Our earth is a crowded planet and can not sustain more humans. Semitic religions condemn pederasty because it does not add to the population. Malthusian wisdom which I endorse fully is a credit item in the balance sheet of homosexuality.

( RAM JETHMALANI