Splitting open the Goose that lays the Golden Eggs: Responding to the Thomas-Faleiro Arguments - I

Some weeks ago, Eduardo Faleiro roped in the former Justice K. T. Thomas to create the context for a demand for State law to supervise management of Church properties. This two part response to what I call the Thomas-Faleiro argument seeks to complicate the uni-dimensional vision of Justice Thomas, suggest the real reasons for their arguments and argue, invoking the idea of legal pluralism, that what we need is not more institutions and law, but an effective spread of grass-roots constitutionalism.

As with any mechanism, there are at least two ways to engage with the law. One is the method of the mechanic. She will be able to repair a machine, but may possibly be hard-pressed to introduce innovations, or contribute to a further evolution of the mechanism. The engineer on the other hand, is able to resolve this latter lack, intervening in the operation of the mechanism to introduce innovations and also predict the kind of impacts that such innovations would possibly have. In the case of the law, this distinction between the mechanic and the engineer is represented through the distinction between the lawyer and the sociologically-sensitive jurist. The argument of the former Justice K. T. Thomas on the need for a law regulating the assets of Christian Churches in India, represents that of the mechanic. It is the view of a mechanic of the law because it looks merely at the dry letter of the law, ill-illumined by an understanding of juristic notions of ‘Law’ as well as socio-legal realities. It is with this recognition that I would like to delve into a response to the Honourable Justice’s thoughts as well as those of the leader of the enterprise, Eduardo Faleiro. (And let us dispense with the fiction that this initiative was led by the AICU)

The thoughts of Justice K. T. Thomas as expressed in the text of his lecture represent both an opening and a closure. The opening that he presents is that for the Indian State. What Thomas and Faleiro seek to do is to extend the power, and the control of the Indian state over properties of the Church. This opening, I will argue, is potentially tyrannical, since it would lead to a closing of democratic spaces of dissent and control, as well as lead to an impoverishment of our notion of what Law, legality and legal spaces mean. In this sense, the closing that the Faleiro-Thomas maneuver represents is the closing of the multiple legal spaces that exist outside of the legal structures of the State, a closing of the democratic option.

Thanks to being educated largely by Statist theories, most of us are under the firm impression that law can be the product only of the State, and that the spaces of law are only those of the judiciary and the legislature. The fact is however, that our social condition is marked not by a legal monism, but by a legal pluralism. Law and legality abound in various social locations, and State law is just one among these legalities. The modern State has however, since its very inception, attempted to snuff out the life of these legal spaces and the legalities that they produce. Justice Thomas is not unaware of this when in discussing the case of the Church, he cites the Canon law that regulates the operation of the Church. There may be problems with this law, in that it tends to be hierarchical and outside of the realm of the common person, but this is not Justice Thomas’ main concern. This is not his concern since State law shares both these features. His intentions as already expressed above, are to get the operation of this law, and the Church, firmly placed under the law and sovereignty of the State.

To justify this extension of the powers of the State, Thomas suggests that no person or institution can be, or should be outside of the jurisdiction of the Constitution of the State. This is a valid point; constitutional values are the values that provide the bed-rock for governing public morality. Social values may choose to conflict with these constitutional values, but in the course of contestation, they must bow to constitutional values. And yet, Thomas, typically for a lawyer, fails to grasp a crucial distinction; that it is Constitutional values that must proliferate through the Republic of India, not necessarily the legal structures of the State. Such a (State) institution heavy approach, in fact subverts the Constitutional project, rather than enhances it.

Entrenched in his belief in State law Thomas suggests that judicial review is the best and only appropriate form of regulation of the use of Church property. This is, to be sure, a rather naïve suggestion, since it is common knowledge, both to social scientists who study the operation of the Indian judicial system, and the lay person, that the Indian judicial system is the in fact the forum of last resort for any party seeking to genuinely resolve a dispute. The Indian judicial system is in fact a forum utilized primarily by the ‘men with long pockets’; to maintain the status quo, to harass one’s opponent, and delay the eventual resolution of the dispute. In addition, we should recognize that disputes within the Church’s bodies, can already be taken up in a Court of law.

In support of his argument, Thomas refers to the Waqf Act where Muslim charitable properties are monitored by a Government appointed committee. A comparative anecdote in this regards would help us understand the situation a little more clearly. Some time last year, the Goan Muslim community was approached with the suggestion that they too adopt the Waqf (Islamic trust) model for properties held by their religious institutions. The suggestion was stiffly contested, and not only because the managers of these properties wanted to appropriate funds for themselves. On the contrary, there was once more the similar fear expressed of what would giving control to the Government mean for both the community and the institutions? This fear was, in my opinion, well placed. If the Government appoints persons to monitor the operation of Church or Waqf properties, what sort of people would it appoint? Experience suggests that they would appoint those members of the community who are willing to play ball with the political elites that control the Government. What these institutions do therefore, is to extend the power of political elites (like Faleiro and Thomas) over a ‘community’ and their properties. In the case of Goa, the implications of such a capture of power are more than obvious. Real-estate development has already become the primary economic resource for political elites in Goa. Where Church properties are being misappropriated today, the misappropriation in most cases is more diffused. Centralising control, as suggested by Thomas-Faleiro would allow for larger players to benefit, and cut out the small players who currently benefit, if at all. Are Thomas-Faleiro proposing a case of jumping ‘from the frying pan into the fire’?

More crucially though, to return to the idea with which I began this response, and to conclude this portion of the response, the suggestion to place Church properties under Governmental control represents not merely an opening up, but a prising open.. The Thomas-Faleiro argument is no well-intentioned selfless argument for the good of all concerned. It is the attempt of ‘secular’ elites firmly entwined with the State, attempting to break the control and power of the traditional elite within the Catholic Church and bring the Catholic community firmly under the imperial umbrella of the Indian State. Internal sovereignty has no other meaning other than this, the destruction of pluralism, in favour of the total control by the State. Further, it is not insignificant fact that both Faleiro and Thomas belong to this imperial national elite. In the following portion of this response, I will argue in what manner this prising-open for the State in fact represents an anti-democratic, totalitarian tendency, leading to the closure of pluralism in State and society.

(Published in the Herald, Opinionated, 3 Sep 2009)

Follow Part II of the essay on http://dervishnotes.blogspot.com/2009/09/closing-doors-to-democracy-opening-them.html

Judging the Magdalene: Law, Love and the Homosexual

The decision of the Delhi High Court, on the 2nd of July, to read down Section 377 of the Indian Penal Code in so far as it pertains to consensual sexual relations between adults (even when they be of the same sex), was welcomed across the country, and indeed internationally. This reception has good reason. The reading down of the provision decriminalises an activity that many argue is normal, if less common. For those who are not convinced by the normalcy of same-sex relations, the argument has been offered that even if one disagrees with the proposition that homosexual relations are immoral, a criminal identity is hardly something one can thrust on people who are going about their business in the privacy of their homes.

The response to the law however was somewhat distubing. One saw gay activists and others claim to ‘be proud to be Indian’. This pride is somewhat bizzare. Why pride in the country? One can feel a pleasure in knowing that innocents will be no longer branded criminal. But pride? The pride became understandable when one ran through a number of Facebook messages on the 2nd of July. The pride was connected with India having arrived in the 21st century, in having ‘grown up’, and in having ‘progressed’.

The whole idea of progress, the maturation from immaturity to maturity is deeply tied to our colonial past, when the colonised were held to be like infants, who needed to be disciplined by the adult in the relationship – the white colonial master. Indeed, Winston Churchill maintained that the Indians were not ready (i.e. not mature enough) for self-rule. National movements were attempts by colonised elites at recovering their self-respect and showing that they were indeed mature, and progressive. Unfortunately, all too often this meant not charting their own course in history, but following the path of the former colonisers. The welcoming of the decision of the Delhi High Court therefore, I suspect, has less to do with a deep-seated commitment and belief in the rights of persons to a dignified existence, and more with the desire to be like ‘them’. If they can recognise gays, then so must we, else we might prove how ‘backward’ we are! And ofcourse, as the whole idea of ‘India Shining’ showed us, we care deeply about what the West (read world of the white man) thinks about us.

If the decision of the High Court has been welcomed by the secular liberal and assorted others, members of the religious right have been quick to denounce the decision protesting that this decision will only encourage more ‘anti-social activities’. Homosexuality is against the traditions of Islam, Christianity and Hinduism, they scream.

Before the religiously inclined make any decision however, it would be worthwhile to have a look at the statements made both by the Delhi Archdiocese as well as the Catholic Bishops Conference of India. Writing on the matter, Fr. Dominic Emmanuel, a significantly placed cleric in the Archdiocese of Delhi in his column in the Indian Express expressed that “the Christian community does not (repeat it does not) treat people with homosexual tendencies as criminals. Nor does it be believe that they can be regarded on par with criminals. Therefore, it has no serious objection to the repealing of Section 377, which incidentally is what the Delhi high court seems to have ruled today in its historic judgment. In other words, it does not object to decriminalising homosexuality, though it fears that doing so might increase cases of HIV/ AIDS”. Echoing a similar position, though in the negative, Cardinal Varkey Vithayathil, President of Catholic Bishops’ Conference of India expressed that “Although decriminalizing homosexuality does not make it moral, people in general may think thereby that it as morally permissible. The government should not give the impression that homosexuality is licensed”. Reference to documents from the Vatican, in particular the Pastoral Letter ‘On The Pastoral Care Of Homosexual Persons’ suggests as well that hatred toward the homosexual is not the position of the Church, but affirms the loving embrace that must be extended to the homosexual. To quote Fr. Emmanuel again, “The Vatican’s stand on this is quite clear: “They [homosexuals] must be accepted with respect, compassion and sensitivity. Every sign of unjust discrimination in their regard should be avoided” (From the Catechism, No. 2358). But one must hasten to add …that decriminalising is not the same as: a) granting legal benefits; and b) accepting it as normal or natural.”

It should be clear that the Church finds itself in a sticky position vis-à-vis the criminalisation of homosexuality. It does not bless the criminalisation of the homosexual, but is clearly concerned with the impression that if decriminalised, the message that will go out to the wider world is that homosexuality is immoral. I do not wholly concur with the position of the Catholic Church; and for that discussion the space of this column is not sufficient. Yet I believe a valid point is being made by the Church when it cautions us against the perils of “consumer culture”. My own perspective on the welcome sexual liberation of the West has been, that while liberation was obtained for the human person from repressive sexual mores, the same person has now been colonised by the culture of consumerism, which sees the human body as just another vessel for consumption and pleasure.

To return to the thrust of the argument though, in this sticky situation, and especially given the larger context of India, it would be wise for the Church to remain within the moral sphere and not dictate the law, or lend their voice to dictation. The sphere of the Church (and religious leaders of other denominations) is ideally the moral sphere. In these days when States are composed of plural societies, we cannot hold on to the proposition that law is the reflection of the morality of society. Or as Cardinal Varkey would like to phrase it, “Criminal laws of a country defend the minimum morals of a society.” Those days, if at all they existed are gone. The notion of law that this proposition suggests was a notion of law suited to societies that were forming themselves into national communities. Nationalism as we know has often had to wipe out entire communities to produce the unity they are so proud of. The law of the State as we would have very often noticed is also unable to deal with the human being owing to the burdens of politics and procedural bureacracy. The moral sphere on the other hand, allows us to place ourselves in the position of Christ when judging the Magdalene. While not necessarily flexible, it is able to stand back from dogmatic positions to recognise the vulnerability of the human condition. It is only in the moral, that the Christian position of Caritas, can truly be realised, not through the violence that is inherent in processes of Statist Law.

(Published in the Gomantak Times 8 July 2009)

Subsequent to publication of this essay, as a blog post, a few of my friends suggested that I ought to have discussed also the Islamic position. Space being a challenge in a newspaper column, please follow the links to queer-friendly religious positions, and one short essay on the possibilities of a gay-friendly Islam.

Revolution and Counter-revolution: Racist imaginations, citizenship and Colonialisms

The 3rd of April 2009, saw a commemoration of Aquino de Bragança at The International Centre, Goa. Aquino de Bragança was born in Goa, and in the heady days of the anti-colonial struggles was drawn into the cause of African liberation, and came to be advisor to Samora Machel, the first President of Mozambique.

While Aquino de Bragança is a figure who must be explored in his own right, I would like to reflect on the words of Fitz De Souza who spoke at the event. Fitz De Souza, also of Goan origin, has been lawyer and politician. Former deputy Speaker of the Kenyan parliament, he was one of those involved in the efforts to draw up a constitutional framework for Kenyan independence. Prior to Kenyan independence, in the course of the anti-colonial resistance in Kenya, he was also provided legal defense to those accused by the colonial administration of participation in the Mau Mau rebellion. Fitz De Souza, then is no ordinary man, and like Aquino de Bragança, played a crucial role in the unfolding of the post-colonial world that we now inhabit.

Rather than play the usual game of mumbling pleasantries, Fitz decided to stick his neck out and castigate the Goan community worldwide, pointing out how they did not play as significant a role in the anti-colonial struggle as they could have. This is true, people of Goan origin, very much like the rest of their ilk in the subcontinent, saw themselves as occupying a definite rung in the racist hierarchy of the 19^th - 20^th century. Not quite white, they nevertheless bought into the propaganda of the ‘Mission Civilisatrice’, believing that since they were Aryan, they would eventually get white status. They believed in any case that they were more than a few rungs higher than the ‘animal-like’ Africans.

It was in his subsequent statement though that I differed with Fitz. He went on to suggest that the British in their ‘complete racism’ planted the idea in the head of the Goans that ‘the Goans were not Indians, but Portuguese, that they were not crooks and thieves (like the Indian Bania) but honest and reliable souls’, on whose clerical shoulders, the Empire was in fact built.

My disagreement stems from the counter-suggestion Fitz offers; that the Goan is in fact ‘Indian’ and that this whole image of their being Portuguese is a racist fantasy that we ought not to buy. I would like to suggest that unfortunately, it is Fitz who in denying the Portuguese-ness of the Goan is buying into a racist imagination. This imagination is racist because it presumes that people occupying a definite territorial area are necessarily one people; and that because they come from the sub-continent of brown people, they cannot really be European. This imagination suggests that merely because the Goan shares the same colour as the people across the political boundary of the former Portuguese-India, they are the same people.

It is a testament to the power of racist imaginations that even a lawyer like Fitz could fall into its easy embrace. The Goan was Portuguese not because the English drummed this charming fantasy into their heads, but because by the LAW of Portugal they were Portuguese citizens. They were citizens who could also vote for their representatives to the Portuguese Parliament. That there may have been a practical failure to wholly realize this legal vision is not denied. However the mere fact of articulation in law is fact significant enough to trigger the imaginations of people. The British-Indian (which for all practical purposes Fitz is) will find it difficult to understand this position, because the British-Indian was always a subject of their Empire. It was their frustration at not being recognized as (white) Citizen of the Empire that eventually led to the Indian freedom struggle.

In a world filled with various ideas, ideologies and desires, it is Law that by and large performs the crucial role of determining what constitutes reality and what fantasy. The Portuguese Indian had been living for centuries within the embrace of a legal regime that gave them significant rights to participate in the Empire. It was by Law then, that they were Portuguese. It was the reality of this legality therefore, that allowed any subsequent suggestion by the British, or indeed, Salazar’s Estado Novo, to be that much more believable. Like Portuguese-ness, Indian-ness too, is an imaginary construction, made ‘real’ primarily through Law. The tenativity of this identity made obvious by that fact that the Pakistani and the Bangladeshi who until recently were ‘Indian’ are today viciously not considered so.

The Portuguese practice, where the Goan was Portuguese, has in fact the potential of upsetting the racist notions that continue to govern our world. Thanks to the operation of law, I can without batting an eyelid, unproblematically indicate that I am Portuguese. I don’t have to be white-skinned, nor do I need to have a drop of continental blood in my veins. By my being Portuguese my mere physical existence upsets racial categories. When like Aquino de Bragança, we can then also include the black-skinned African into this legal category; that is when we exploit the anti-racist potential of this legality to the maximum.

This week, Portugal will celebrate the 35^th Anniversary of its revolt against the Estado Novo inaugurated by Salazar. One of the paradoxes of history, is that at the overturning of a

‘fascist’ dictatorship in fact resulted in the overturning of a liberative discourse vis-à-vis citizenship. The standard line of any 'politically’ Portuguese today is that ‘the past is the past, let us move forward to building new relationships’. Thus anything associated with the Estado Novo is seen as necessarily regressive. Look closely and you will see

them wince when the Goan expresses oneness with Portugal. This is a past that they would like to forget. However, this discomfort is not merely a discomfort with the Estado Novo. The discarding of colonial discourse today allows the Portuguese, once regarded as imperfectly European and not quite white, to now became actively European, and wholly white. The abandoning of Tio António Oliveira’s legal regime of citizenship – admittedly reinforced to support the dream and persistence of Empire – has carried the Portuguese into the racist regimes of continental Europe, where whiteness and distinction from the formerly colonized is at the heart of political and cultural identity. The Revolution it turns out may also well have been a counter-revolution!

The claim for a Portuguese identity should not necessarily embarrass us, since we must claim it as a deliberate act of overturning the racist stereotypes that we surreptitiously nurse at our breasts. If however we claim it, as did (and continue to do) the Goan elite, merely to mark cultural superciliousness, then and only then are we guilty of buying into a racist realm of imagination. On the anniversary of the Revolution, that we in Goa unfortunately missed, it would perhaps be worthwhile to contemplate the mixed bag that Portuguese colonialism has given us, and use these contradictions of this colonialism to make the world a better place.

(Published in the Gomantak Times April 22nd 2009)

(This essay has been profoundly influenced by the works of Dr.Boaventura de Sousa Santos. For these works and the inspiration, many thanks.)

Legalising Arbitrariness: The tale of Goa’s sordid descent into legal collapse

What is law? When is it to be respected, when should it be challenged and when should its purported authority be flouted? These are questions that have plagued the Goan citizen ever since the movement against the large scale degradation of the Goan environment in the name of development began. This is a question that needs to be answered if we are to bring some relief to the State. Happily, the circumstances over the past few days provide us with a route to an answer to this question.

The Law is the covenant by which we agree to be governed. The covenant assures us that through the operation of law we will be assured security, peace and predictability through which we can continue with our lives, unhindered and able to develop our capacities and potentials. This covenant binds all the parties to it, State, government and citizens; no one can be outside this covenant. If they are, then they need to be brought into the embrace of this covenant. As long as the Law assures us security, peace and predictability, this Law is to be respected and followed. When the Law does not do so, when we see it being unpredictable, and resulting in a disturbance of the order around us; when the law perpetrates inequality, inequity, injustice, then it is clear that the Law, this covenant must be renegotiated and a new Law brought into place.

Goa is clearly in the throes of a crisis. The State is like a beast, a bull run amock. It cannot be controlled, it does what it wishes and the Law cannot bind it. On the contrary, it seeks to undo the Law so that it is unfettered to do as it pleases. For the State, now, it is the voice of man that replaces the abstract voice of Law. This voice is used to bind the citizen, so that what we increasingly have is a strange kind of tyranny under Law.

Take for instance the case of the Regional Plan process. What is the law under which this entire process has been initiated? What provisions of the law govern the process through which village committees are constituted and then go on to fulfill their tasks under the Regional Plan process? The answer is none. There exists no law, what governs the Regional Plan process is the word of the Chief Minister (who may be here today and gone – God willing – tomorrow) and the word of bureaucrats with their own vested interests. Because there is no law, the process in each village has been different. Some have 5 member committee, other 16, some have met with the Gram Sabha, some have not. Some have prepared ward maps others have not. It is an entirely arbitrary process. Arbitrariness as any student of law will tell you, is something that the Law abhors and strikes down. And yet the same merrily continues in Goa. Law is dead.

The Law to avoid arbitrariness indicates that there must be a process, clearly laid out and applicable to all, without exception. The proposed amendment to the Goa Panchayati Raj Act is a wonderful example of how the State of Goa seeks to ignore this golden principle and institute options through which the voices of the men that control it, rather than the Law, may prevail. The Panchayati Raj system is about including the voices of the people to a greater degree and making their voice binding on the village executive, i.e. the Village Panchayat Secretary. What do the proposed amendments do? They allow the State via its many executive bodies to compel the Secretary to do its bidding. Even more horrifying are the powers granted to the State executive under Section 244 C which allows the Executive to transfer proceedings from one authority to another without clearly indicating on what grounds it does so. It’s a case of if-at-first-you-don’t-succeed, try, try again! If it looks like one authority will not give you the perverted decision you want, simple, just transfer the matter!

The straw that breaks the camel’s back however, has to be the ordinance approved to save the Cidade de Goa. Ordinances are to be resorted to only in the case of emergency. Normal procedure is to pass changes to the Law via a legislature. A fundamental norm of parliamentary democracy was flouted in the instant case. This particular ordinance is shocking in its audacity. That it has been instituted to save just one hotel – Cidade de Goa- is bad enough. What is worse is that once written into the law books, this exception will be extended to all illegalities and irregularities in Goa. Ofcourse, this largesse of the State will be extended only to those who can purchase the State, not for the much touted, but much sinned against, common man. What the ordinance essentially does is to say that if you somehow managed to evade laws and agreements, and got approvals, permissions and licenses from the State, then if you are rich and influential enough (which is how you got those permissions in the first place) we will forgive you. On the contrary, given the number of State dinners that take place at the hotel Cidade de Goa, we will award you handsomely!

What is going on in the State of Goa is the systematic institution of arbitrariness. What the examples above represent is the insertion of arbitrariness into the law and legitimization of this arbitrariness. Unfortunately however, it is only going to delegitimise the Law. Further what the political establishment doesn’t seem to realise is, that arbitrariness, is opposed to the spirit of capitalism. Predictability of the system has been identified by many scholars, not least of whom being the venerable Max Weber, as a fundamental requirement for capitalism to take root. In destroying the basis of a predictable system, in the name of Capitalism and ‘Development’, what the State is doing is laying the basis for is a total destruction of economy and enterprise in the State. What it is creating scope for is private profiteering, and this is very different from capitalistic entrepreneurship.

The length, strength, and duration of the protests against the State and its combination with the profit interests of a few indicate that the people are tired of this nonsense. It is in this context that we have to realise that the actions of the State are the desperate attempts of a crumbling regime. The State of Goa will have to be rearticulated soon. I say State, since it is not just the Government in power, but the whole political complex that prevails – Government and Opposition- that is guilty of these actions. Every time a genuine objection is presented before the State that should be protecting us, the rules of the game are ‘legally’ changed. This change would not be so problematic if it weren’t for the fact that these changes are being wrought to methodically destroy all systems of law and order to institute chaos within the State. This state of chaos will be such that those with brute power will win. What these forces don’t seem to realise though, is that two can play a game.

(Published in the Gomantak Times 4 March 2009)

Two cases in Calcutta

A tale of two cases and two options…

This column is being written immediately on my return from Delhi, where I spent the time between the last column and this. My stay in Delhi was to enable my presence at the inaugural conference of the Law and Social Sciences Research Network held between the 8th and the 11th at the Jawaharlal Nehru University.

While present at the conference, the participants were made aware of a rather interesting story. This true story involves the case of one Hans Dembowski, who subsequent to his research and the award of a PhD degree published a book, via the Oxford University Press titled Taking the State to Court – Public Interest Litigation and the Public Sphere in Metropolitan India. This book was concerned with the issue of governance in metropolitan India, and sought to elaborate the manner in which the Indian courts are playing a vital role in making public institutions more accountable.

Unfortunately for him however, two lawyers of Calcutta High Court, one of them being a government pleader, initiated a contempt petition before the Calcutta High court stating that the book contains "scurrilous derogatory and scandalous remarks against this Hon'ble Court" and has "scandalized and/or tended to lower the Authority of this court". Acting on this petition, the Calcutta High Court in an interim order ensured that the national and international circulation of the book was stopped. Dembowski hangs in limbo ever since.

Closer home, just prior to my departure from Goa, I was made aware of another petition that had been accepted and acted upon by the High Court of Calcutta. This one is a petition filed by Fomento Industries against Seby Rodrigues, where Fomento, represented by Sujay Gupta, former editor of Gomantak Times and now in the employ of Fomento claimed it was being defamed by Seby. Among the other prayers to the Court, Fomento made to the Calcutta High Court was a claim of Rs. 500 crores from Seby for the damages caused by the blog http://mandgoa.blogspot.com/ that he manages.

The admission of both these petitions by the Calcutta High Court is rather disturbing, since it really amounts to participation in a suffocation of the rights of debate and discussion. In the first case what the interim order represents is a suffocation of the right to academic debate. In the second, in terms framed by Pravin Sabnis, what we have is in fact an assault on the rights of a journalist, a person who documents social processes.

The question that emerges in both cases is, is there something desperately wrong with India’s judicial processes and institutions? Does one suffocate the circulation of an eminently academic work that raises questions and honestly seeks answers and promotes debate? Should the Calcutta High Court have taken up an issue that could, and perhaps should have, ideally been dealt with in Goa? Initiated a process without the participation of the defendant?

As a socio-legal scholar other questions also flood my mind. What is the relationship that a superior court of this country ought to have with procedure? Is it procedure alone that a Court like the High Court of Calcutta must bear in mind, or must its imagination also be animated by some knowledge of, and a respect for the workings of society?

Attending the public meeting in response to the defamation suit filed by Fomento, one got a sense of the workings of this society. A society that is in fact not working. A society that is simply not in communication within itself.

Did Fomento in fact initiate a dialogue with Seby prior to filing this suit in the High Court of Calcutta? Was this dialogue attested to by some form of written communication? Ideally, Fomento ought to have; in such a case displaying its commitment to an open society, and arming itself against the now widely prevalent accusations that it is seeking to harass an activist who is raising valid questions about the nature of mining in Goa.

For all the challenges that Goa has been dealing with, every challenge is an opportunity for dialogue. Unfortunately it seems that at almost every turn, this opportunity is being rejected in favour of the legal; a route that is really in confrontation with the social.

(Published in the Gomantak Times 14 Jan 2009)