Professional Documents
Culture Documents
Gautam Patel†
*
Text of the first JB D’Souza Memorial Lecture, delivered on 3rd June 2019 at the
Hall of Harmony, Nehru Centre, under the auspices of Citizens for Peace and the
D’Souza family.
†
Judge, High Court, Bombay
1
MEPHISTO IN MANTRALAYA
FIRST JB D’SOUZA MEMORIAL LECTURE | 3RD JUNE 2019
not to speak at all. He wasn’t actually like this, but that knowledge came
only much later. When I began my practice in law, I got to know him
differently: one who lent his name to the many causes in which he
believed: riots, urban issues, intolerance.
If asked to describe him in one word, of the many that spring to mind
I’d choose this one: unflinching. It embraces many things. Dedication;
commitment; courage and fortitude; unwavering fidelity to one’s
principles; clarity of thought and vision; breadth of mind and heart; above
all, a vision of justice in its broadest and most elemental sense.
Bain’s standards defined his life and himself. There was no distinction
between his public persona principles and the ones he applied to his
private life. There are near-legendary stories at a personal level of the
many sacrifices he chose to make.
It is important I begin here because once considered norms that
required no special mention, these are the very qualities that are today on
the brink of extinction.
And nowhere is this truer than the field to which Bain dedicated his
entire life, public administration.
2
MEPHISTO IN MANTRALAYA
FIRST JB D’SOUZA MEMORIAL LECTURE | 3RD JUNE 2019
reach. Our High Courts and the Supreme Court, the critics say, stray
illegitimately into the executive and legislative realms. While this may be
true in some cases, these are usually outliers. For the most part, courts are
careful to stay within their boundaries. It is when executive action is found
again and again to be utterly indefensible and misguided that we see
expansive judicial interventions.
The criticism comes most often, and now somewhat predictably, from
the executive; and we must see this for what it really is: a complaint by the
executive about a court holding that some executive action is unjustifiable
in law. When required to defend the indefensible, the response is to shoot
the messenger and accuse courts of judicial over-reach. There is no
attempt to correct the faulty civic structures and processes that make
judicial intervention inevitable.
3
MEPHISTO IN MANTRALAYA
FIRST JB D’SOUZA MEMORIAL LECTURE | 3RD JUNE 2019
An even-handed application is, alas, also not what we in India see very
much. Indeed, we see it very little. There are always those who ‘get away
with it’, and it does not matter what the it is: duping consumers and
purchasers, financial fraud, jumping queues. We find ourselves admiring
countries to our west and our east for being law-abiding.
Why are we so impatient with our laws? ‘We are like this only’, we say,
attributing to this thing we call the ‘Indian mentality’ our immediate
favouring of individual convenience over collective responsibility. This is
superficial and depressingly fatalistic, suggesting that we were born this
way, that it is our karma, and that we are doomed forever to be a nation of
exceptions and exemptions and provisos to whom the law does not apply.
Especially if you have a motorcycle or a scooter.
If we have so many laws, so very many regulations, how is it that so
much is so utterly anarchic? “There is no enforcement,” we then say. “We
are over-regulated but under-enforced.” What do we mean by this? Do we
want more even more law, and even more terrifying, invasive policing?
Surely that cannot be our solution.
Our search for an answer must, I propose, begin with a rudimentary
understanding of what we are, or, at any rate, what we are supposed to be.
For this, we must turn to our defining document, the Constitution. That
document made a very conscious choice among the very many available
for self-definition. It called us a democratic republic; neither one nor the
other exclusively, but both, together. At its simplest, this means that sheer
majority will not determine an outcome at any level; it is the law, a body of
rules, structures, regulations and norms that are determinative. I read
somewhere of this distinction: a mob catches a thief, and the majority
decides he must immediately hang. That is the democratic voice, the voice
of the demos. But a society governed by the res publica, the public thing or
matter, is a form of government in which the nation-state lies outside
private concerns. So in our thief example, when a mob catches a thief, the
4
MEPHISTO IN MANTRALAYA
FIRST JB D’SOUZA MEMORIAL LECTURE | 3RD JUNE 2019
sheriff, an emissary of the law, rides in, arrests him, and takes him away
from the mob that would have him hanged there and then. And takes him
where? To a court, to stand trial according to the law of the land.
This, therefore, accords primacy in our society to this thing we call the
rule of law. It is central to the notion of a republic, and while definitions
vary, the simplest is perhaps the best: the law rules. No one is above it. All
are accountable to it, and under it. And that includes the State, which has
no power outside the constitutional framework to affect the fundamental
rights guaranteed by the Constitution. To ensure this accountability, our
most potent tool is judicial oversight, and that in turn posits access to
courts.
In a country as apparently chaotic as ours, where individual liberty
seems to have become an elitist side-salad, the broader, overarching
principle of accountability requires a closer look. There is, first, the
accountability of the individual to the law, and, second, the accountability
of the enforcers in the implementation of the law. The individual must be
answerable to the law for his daily conduct. The State must be answerable
to the law for the manner of its enforcement.
Jonathan Sumption, a recently retired justice of the UK Supreme
Court begins his 2019 Reith lecture by quoting Aeschylus from the 5th
century BCE, when he tells of Athena, the Goddess of Wisdom, ending a
cycle of killing by creating, of all things, a court. Her justification,
Aeschylus wrote, was this: let no man live uncurbed by law or curbed by
tyranny.
We could go back over a century, to the time of Cicero, 106-43 BCE.
His words resound through time: we are all slaves of the law that we may
enjoy our freedom.
When we believe that we are unshackled, therefore, from the law —
that the law, whatever its form — does not apply to us as individuals, and,
second, that there is no one to enforce it effectively, that is when we begin
5
MEPHISTO IN MANTRALAYA
FIRST JB D’SOUZA MEMORIAL LECTURE | 3RD JUNE 2019
6
MEPHISTO IN MANTRALAYA
FIRST JB D’SOUZA MEMORIAL LECTURE | 3RD JUNE 2019
... the feeling that there is something wrong with democracy, that it is
not working as it should, now clearly derives from some deeper
discontent. The chief failing of democracy in the minds of many is that
their voice is not heard. They see their leaders taking decisions without
consultation, failing to take responsibility for their action, lying with
impunity, living in a bubble — in short, a government cut off from the
world, a system whose workings are opaque.
7
MEPHISTO IN MANTRALAYA
FIRST JB D’SOUZA MEMORIAL LECTURE | 3RD JUNE 2019
He then speaks of the growing influence of the executive, and how the
legislative branch has suborned itself the business of governing.
Parliamentary democracy is founded on two cardinals: the rule of law, as
we have seen, and second, the idea of people as their own legislators,
through the agency of elected delegates. The crucial issue, Rosanvallon
writes, is the relationship between those who govern and those who are
governed. If we are to preserve this, we must specify the terms and the
limits of government action — the circumstances under which it can
legitimately claim to be a government of the people, for the people and by
the people. As he says, our only current method of doing this is by holding
periodic elections.
But what do elections achieve? They only establish what Rosanvallon
calls the democracy of authorisation, the granting of permission to govern.
Elections do not, by themselves determine the relationship between the
governors and the governed, only between representatives and their
constituents — elections only legitimise the occupation of the post.
Power being not a thing but a relation, Rosanvallon argues, the extent
and manner of control over executive power determine whether a society
succeeds or fails as a democracy — whether the power vests in the people
or is exercised over them.
More laws and more regulations are being brought into existence not
primarily for the betterment of the populace, but precisely to augment the
power of the executive in controlling every aspect of the governed. When
legislatures succumb to demands for expanding administrative control,
that is to say, by arming the executive by more apparent lawful authority,
this is an assault on democracy. We have an increasingly illiberal society.
We have bad government.
In India, both in our cities — perhaps especially in our cities — and in
our villages, we see the staggering failures of good government. There are
many who have been working through various non-profits to address these
8
MEPHISTO IN MANTRALAYA
FIRST JB D’SOUZA MEMORIAL LECTURE | 3RD JUNE 2019
This state is far from supremely effective: it regularly fails to protect its
citizens against physical violence, it does not provide them with
welfare, and it has not fulfilled its extensive ambitions to transform
Indian society. Yet it is today at the very centre of the Indian political
imagination.
9
MEPHISTO IN MANTRALAYA
FIRST JB D’SOUZA MEMORIAL LECTURE | 3RD JUNE 2019
10
MEPHISTO IN MANTRALAYA
FIRST JB D’SOUZA MEMORIAL LECTURE | 3RD JUNE 2019
square foot for planning authorities, even demands for club memberships
for fear of unleashing inspections of harassment, refusal of legitimate
permissions, even taking away of land.
In Francis Ford Coppola’s Apocalypse Now, based on Conrad’s Heart of
Darkness, Marlon Brando playing Colonel Kurtz describes his CIA
handlers like this: “these ... nabobs”, he says. This is an Anglo-Indian word
from the Urdu nawab, possibly from the Portuguese nababo, and nawabs
were governors or officials in Mughal times. The word has been used
since the 1600s to mean persons who acquired quick riches abroad —
usually India — and returned as men of power and influence, often buying
their way into the British Parliament. They were known to have agents and
touts, persons who took bribes for them.
If that has a ring of familiarity, it should.
A necessary adjunct to this use of power is the deployment of
regulations and laws to curtail freedoms. You cannot make your
extractions unless you have an armoury at your disposal, and executive
action succeeds primarily because it uses legislation to give itself vast
powers. We live in an age of censorship: what we read, see, say,
communicate, even what we eat and where and what we drink are now all
subject to regulation.
But go back to the Rosanvallon’s enunciation of the second pillar of
democracy, of the governed legislating for itself. We have not sought any
of these regulations. We have not explicitly voted on them. No system
allows us to do this. We have entrusted all regulation to elected
representatives, but, increasingly, these laws are not driven by what the
demos wants but solely by what the executive demands. I agree we need a
law to prevent anyone from drinking and driving. But do we need a non-
elected governor to decide the limits of how much alcohol we can keep at
home? Do we at all need a ‘license’ or a ‘permit’ to drink, one that
perpetuates the falsehood that we ‘need’ alcohol for ‘health’ and
11
MEPHISTO IN MANTRALAYA
FIRST JB D’SOUZA MEMORIAL LECTURE | 3RD JUNE 2019
12
MEPHISTO IN MANTRALAYA
FIRST JB D’SOUZA MEMORIAL LECTURE | 3RD JUNE 2019
13
MEPHISTO IN MANTRALAYA
FIRST JB D’SOUZA MEMORIAL LECTURE | 3RD JUNE 2019
14
MEPHISTO IN MANTRALAYA
FIRST JB D’SOUZA MEMORIAL LECTURE | 3RD JUNE 2019
15
MEPHISTO IN MANTRALAYA
FIRST JB D’SOUZA MEMORIAL LECTURE | 3RD JUNE 2019
But is it all bad, and beyond repair? I would argue not. There are
small, yet meaningful, islands of hope, individual civil servants and
administrative officers working against all odds to do the right thing. A
superb example in Mumbai, which we do not often notice, is the way the
Municipal Corporation is going about restoring and upgrading parks and
gardens. There are excellent examples: under and around the Matunga
flyover what is called the Nanalal Mehta Garden; another at Nagpada, the
Padmakar Tukaram Mane garden; the refurbishment of Kamala Nehru
Park; even in squashed spaces like traffic island and roadside spaces. I do
not know how this has been achieved, or by whom, but it is remarkable,
and it is indeed ironic that we read so little about this and apparently only
about catastrophic tree-felling across the city.
16
MEPHISTO IN MANTRALAYA
FIRST JB D’SOUZA MEMORIAL LECTURE | 3RD JUNE 2019
If one really wishes to know how justice is administered in a country, one does
not question the policemen, the lawyers, the judges, or the protected members
of the middle class. One goes to the unprotected — those, precisely, who need
the law’s protection most — and listens to their testimony.
As I have often said, truth and justice often have very little to do with
each other. Knowing the truth is no assurance of justice.
There is a wonderful line in a book I recently read, of all things a
detective novel set in turn of the century Calcutta. The queen mother of
an eastern state says to an English detective (I am paraphrasing a bit),5
The truth does not entail justice any more than high office entails
wisdom.
17
MEPHISTO IN MANTRALAYA
FIRST JB D’SOUZA MEMORIAL LECTURE | 3RD JUNE 2019
18
MEPHISTO IN MANTRALAYA
FIRST JB D’SOUZA MEMORIAL LECTURE | 3RD JUNE 2019
The world is what it is; men who are nothing, who allow themselves to
become nothing, have no place in it.
19
MEPHISTO IN MANTRALAYA
FIRST JB D’SOUZA MEMORIAL LECTURE | 3RD JUNE 2019
THIS IS THE declining arc of our civic society from Bain’s time to now.
Let me be clear: I am not pillorying all civil servants. I am not accusing a
particular individual. I could, but that would take all night. I comment on
the patterns of conduct that are increasingly the norm. I also do not
subscribe to the theory that our civil servants are especially unintelligent
or incompetent. They are no more so than persons anywhere else. What
seems like incompetence is actually the expansion and consolidation of
executive power. To put it bluntly: this country is being run by
bureaucrats. Correction: it is being ruled by bad bureaucrats.
This will not change unless we have more and more persons from
civil society willing to enter public service clear in their minds that in
being a public servant the emphasis is, first and last, on being a servant.
What we need is more Bain D’Souzas. Ultimately, as we have seen, the
primary responsibility to continually check administrative action is that of
civil society, and it is not a duty it is open to us to abdicate. The loudest
complaints come, I find, precisely from those unwilling to step up to the
plate. This is why we so often hear that plaintive cry, “they should do
something about it.” Who precisely is ‘they’? Why is it never ‘we’ or ‘us’?
It would be interesting, for instance, to know how many graduates of this
city’s several elite public schools have chosen public service.
So whose government is it anyway? Who do our non-elected
administrators serve? It does not seem to be the people. It is not even
elected politicians, for — at least in theory — there is a go-around every
five years. Who then? The answer is plain and does not need spelling out.
These bad governors are our modern day equivalents of Mephistopheles,
and they occupy offices in the very secretariats and Mantralayas that were
once used by true public servants like Bain.
The name Mephistopheles has ancient origins from Hebrew and
Greek: scatterer, disperser, a plasterer of lies, and especially this, not light-
loving. More popularly, the name is associated with the Faust legend from
20
MEPHISTO IN MANTRALAYA
FIRST JB D’SOUZA MEMORIAL LECTURE | 3RD JUNE 2019
German folklore. Faust makes a bargain with the devil, at the price of his
soul. Mephisto is the agent of the devil.
There is a famous wooden double sculpture of the 19th century. On
one side is a haughty Mephisto, French bearded and goateed, his chin
arrogantly high, a sly smile on his face, his chest thrust out. The other side
is Margaretta, who we see reflected in a large mirror with an ornate frame
behind the sculpture. She a woman with her head bowed in apparent
defeat and submission.
As we approach, we see Mephisto. And then, in the mirror’s
reflection, we see Margaretta — and ourselves.
That sculpture is not in some distant museum. It is right next door,
in the Salar Jang museum in Hyderabad.
Our Mephistos are much closer than we imagine.
Thank you.
¾¾¾¾¾ENDNOTES¾¾¾¾
1 Sunil Khilnani, The Idea of India, Farrar, Straus and Giroux; Anniversary
edition, 2017.
2 Pierre Rosanvallon, Good Government, Harvard University Press, 2018.
3 5 U.S. (1 Cranch) 137 (1803).
4 R (on the application of Privacy International) v Investigatory Powers Tribunal and
Others, [2019] UKSC 22.
5 Abir Mukherjee, A Necessary Evil, Vintage, 2018.
6 VS Naipaul, A Bend in the River, Picador, 2011.
21