'If an issue of morality is to be decided by majority, then fundamental right has no meaning'

Maneesh Chhibber : Sun Dec 22 2013, 05:59 hrs 

 

 

Retd Delhi HC Chief Justice and the man behind a landmark verdict decriminalising homosexuality, Justice A P Shah feels the Supreme Court setting aside that order is unfortunate. At this Idea Exchange moderated by Senior Editor (Legal Affairs) Maneesh Chhibber, he also talks about his new assignment as Law Commission chief, where he is looking into electoral reforms, live-in relationships and age of juvenility

Maneesh Chhibber: Can you explain how you wrote your Section 377 judgment?

I wouldn't like to comment on the Supreme Court judgment but that doesn't bar me from speaking about the rights of LGBTs, the Constitutional morality we talked about in the high court case, and the government's position.

Let me start with this — some speak of this as a 'western disease'. First of all, it is not western. Temple imagery and essential scriptures show there is some evidence of homosexuality being practised in this country... The British brought in Section 377 and there is the presumption that one of the reasons was (they feared) their army and daughters would be tainted by Oriental vices... What is so startling is that Section 377 travelled back to England. Later it was repealed, in the sense that their judicial committee recommended that for consenting adults it should not be a crime.

This is the position in almost all of Europe, US.

There are critical nuances of the (Supreme Court) judgment which I would not like to go into, but I would like to tell you about how far it is permissible for the State to legislate on the ground of public morality. What is envisaged by the Constitution is not popular morality. Probably public morality is the reflection of the moral normative values of the majority of the population, but Constitutional morality derives its contents from the values of the Constitution.

For instance, untouchability was approved by the majority, but the Constitution prohibited untouchability as a part of social engineering. Sati was at one time approved by the majority, but in today's world, it would be completely inconsistent with the Constitution... In public morality and Constitutional morality, there might be meeting points. For instance, gambling. That would be prohibited by law, and that's also the perception of public morality.

I think the real answer to this debate is Constitutional morality. And this is the most important point — it has to be traced to the counter-majoritarian role of the judiciary. A modern democracy is based on two principles — of majority rule and the need to protect fundamental rights. The very purpose of fundamental rights is to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities, and establish them as legal principles to be applied by the courts. It is the job of the judiciary to balance the principles ensuring that the government on the basis of numbers does not override fundamental rights.

(Editor's Comment - Does the judiciary have the power to create a new fundamental right?)

I would like to refer to my own notes and preparation. In case of a moral legislation, when it is being reviewed by a Constitutional court, then the rule of 'majority rules' should not count, because if the issue of morality is to be decided by the majority, as represented by the legislature and Parliament, then the fundamental right has no meaning. It is to be decided on the basis of Constitutional values and not majority rule.

About homosexuality being a disease... this is no longer treated as a disease or a disorder. There is near unanimous medical, psychiatric opinion that it is just another expression of human sexuality.

With this, I come to the last part, that 'What is the harm to the LGBT (with this law), that ultimately these provisions are not enforced'. It is true that in the last 150 years there might have been 200 prosecutions... But even when these provisions are not enforced, they reduce sexual minorities to — what one author (in a US judgment) has referred to — 'unapprehended felons'.

Apart from the misery and fear, a few more of the consequences of such laws are to legitimise and encourage blackmail, police and private violence, and discrimination. We could see some evidence that was placed before us, what is called the 'Lucknow incident'. This was a support group to create awareness about AIDS etc, they were arrested, and although they should have been released on bail immediately, they remained in custody for more than two months because of Section 377.

Rakesh Sinha: What was the first thought that crossed your mind when the Supreme Court overturned your ruling?

That it is unfortunate.

Coomi Kapoor: One reason for the conservativeness of the judgments of courts may be the ages of the judges.

I was 62, about to retire (at the time he gave the Section 377

judgment).

Seema Chishti: Do you think the big mistake in the rush for criminal law amendment in the wake of the December 16 gangrape was to not make it gender neutral? If that was made gender neutral, and you recognised man to man harassment, it would take away the need for 377?

There was an urgent need to make certain changes in the existing rape laws, there cannot be two opinions on that. I think it was touched with haste. Not only were there some lacunae but also it should have gone beyond the provisions which they made. Perhaps the government was not prepared to commit to the other reforms suggested by the Justice Verma committee.

Seema Chishti: Given the public mood to 'clean up' things, the Lokpal is being seen as a very important tool. Do you think we are running into a problem? We anyway had a problem about judges appointing themselves, and now we have a Lokpal who sits in judgment over elected persons. Who is going to monitor the monitors?

When the idea of appointing a Lokpal was mooted, it was on the lines of the institution of ombudsman in many countries. Ombudsman is not necessarily an anti-corruption body, it's about good governance. In India, administrative committees' reports found that this institution was necessary to fight corruption in high places. We have made a sort of an amalgamation of ombudsman and anti-corruption body, with more emphasis on anti-corruption. I have seen the Bills, appeared before the select committee of the present Lokpal Bill, and had seen the Jan Lokpal Bill conceived by Arvind Kejriwal and Prashant Bhushan. The Jan Lokpal Bill, I feel, is creating a monster.

The first thing is accountability. The other ombudsman institutions are accountable to Parliament, to the legislature. If you create an institution which is neither accountable to the executive nor the legislature, there will be no system of checks and balances.

The Lokpal Bill is not as strong as the Jan Lokpal Bill; thankfully, it's a much more balanced. The whole idea of the CBI being placed under the control of the Lokpal is not really a bright idea. You should not make one institution so strong that it can override all other institutions and constitutional systems.

Seema Chishti: And the judges appointing themselves?

Now, there is a Bill, but it is nothing new. In 1990, such a Bill was introduced by Dinesh Goswami. Unfortunately, the government had to go. There have been two reports of the Law Commission suggesting that there should be a judicial commission. In a 1993 judgment, the Supreme Court read the word 'consultation' to mean 'concurrence', and this is how the primacy is vested in the Chief Justice of India. It has been very strongly criticised. First, it's not transparent, and second, there is no input about the ability of a possible candidate because it's only a judges' committee, sitting in a closed room deciding about appointments, elevations, more like a club. It has encouraged a lot of sycophancy. Thankfully, the government has brought the Bill.

Prawesh Lama: There have been cases of rape law being misused. Recently, an NGO director committed suicide after being accused of assault. Should there be a mechanism to ensure laws aren't misused?

It is Indian tendency to give knee-jerk reactions. After the episode of December 2012, there were reactions. We go to extremes and forget rationality. Also, these laws will not work unless we have police reforms and judicial reforms simultaneously. What is the use of a very strict law if police are lacking in integrity or are inefficient?

Aneesha Mathur: The Delhi High Court has consistently given judgments saying that there should be a re-look at how police are dealing with these laws. Even in the Section 377 judgment, the Supreme Court said that exactly defining an unnatural act is not possible, and we'll have to see how the courts deal with it. What can the judiciary do to ensure there's no misuse?

The judiciary has its limitations. I know of half a dozen judgments of the Supreme Court on improving the present conditions, but there is no change in the situation. One of the criticisms labelled against PIL jurisdiction is that judiciary has to rely on the good faith of the executive. Have the orders passed on PILs changed the lives of ordinary Indians? Judiciary is no substitute for political activism or for legislative processes.

Krishna UPPULURI*: India's Deputy Consul General in New York Devyani Khobragade has been arrested as per the US laws. Can we use Indian laws to prosecute homosexual diplomats?

This would be going beyond the diplomatic limits.

Utkarsh Anand: Do you think Justice A K Ganguly should step down?

I should not talk on this issue.

Utkarsh Anand: A Supreme Court Committee was constituted to inquire into the allegations against him. Should the committee have indicted him while simultaneously saying that we don't have jurisdiction over retired judges?

It was a critical situation for the court. When something leaked in the media, the whole institution came under a cloud. What he was saying is absolutely correct because, even as per the Vishakha guidelines, the case would not fall within the powers of the Supreme Court Committee. But if the committee had simply said that it has no jurisdiction, it would have reflected very badly on the institution. I think the committee was right, the three judges were right. I read the order as an assurance to the people that the institution cares for these matters, though they can't take any action.

Maneesh Chhibber: One of the biggest problems of the judiciary is that it is a most exclusive club. Any transparency law, they are the last ones to implement it. Don't you think this hurts the institution?

I think transparency is the hallmark of any judiciary. All administrative decisions taken by the court should be on the website — how much is spent by the institution, how many cases are disposed of. All this information, and not only about pendency and disposal by the judges but also the entire functioning of the court should be in the public domain.

Ankita Mahendru*: What is your view on the legal process followed by the US in the arrest of Devyani Khobragade.

What I read in your newspaper is that this is the standard procedure. Where we are really missing the point is about the victim. What about the maid?

Amulya Gopalakrishnan: A lot of feminist activists want the rape law to be made gender specific for the victim and gender neutral for the perpetrator. Parliament did not do that. A lot of men who are raped are left out. Is it possible to draft a law like that?

The existing provisions can be slightly amended so as to make them gender neutral. The draft is not bad, it can be improved.

Vandita Mishra: Over the past few years, there has been a weakening of the political executive and the legislature. Parliament has not functioned as it should have. That has led to the judiciary overreaching in many cases. Do you think there are dangers to this?

After the Emergency, the judiciary took up the role of a protector of human rights of the marginalised and the disadvantaged. If you look at the PILs entertained by courts in those times, they were in the nature of social action, social interest litigation, not really a PIL. Slowly, the court expanded its jurisdiction and then we had (PILs on) good governance, corruption-free government or the rule of law, judicial appointments. But what happened after 2001 is that you could file a PIL about anything under the sun. Many of these PILs are not connected with human rights issues and that is the real danger. Some of the PILs entertained were about monkey menace, sealing of shops, traffic management or role of tourists in wildlife sanctuary. Just see to what extent courts have gone into policymaking. One example is the river linking case. Almost all experts said that it is not feasible. In spite of that, the court issued directions. Nothing happened thereafter, that is a different issue. Judicial activism is for issues for which there was earlier a legislative solution. This could be almost touching judicial imperialism or judicial adventurism.

The other problem is the creeping eliticism in the judiciary. I was shocked to see so much concern about the occupants of the Campa Cola building among the media and judiciary. What about the thousands of families who, for some beautification of the city and Commonwealth Games, are asked to move 20 km away from Delhi?

Maneesh Chhibber: In its review petition in the Section 377 case, the Centre is saying that while lawmaking is the sole responsibility of Parliament, it's the task of the court to judge the constitutional validity of laws. Isn't the executive ceding to the judiciary?

The court has to decide when it comes to a human rights issue. But if it is a policy matter, the legislature has precedence. If the Delhi High Court was right in its conclusion that there is violation of Articles 14, 15 and 19 and 21 — if that is the position — then it is the court which could deal with it, even if there is no amendment in the law. But that does not absolve the government from taking the call and making the amendment. They could have done it when the laws were changed in the wake of the Delhi gangrape case. There might be a lack of political will.

Rakesh Sinha: There is an ongoing debate on the age of juvenility. But child rights workers have concerns too.

We have taken it up, appointed an experts' committee in the Law Commission.

Muzamil Jaleel: What is your view on amendments in the UAPA or the Armed Forces Special Powers Act.

I have spoken against these laws several times. I feel that certain rights should not be compromised. It is the burden of democratic countries that they have to deal with the problem of terrorism, and they have to fight it with one arm tied down.

Prawesh Lama: Shouldn't police officers be punished when they arrest an innocent person and brand him a terrorist?

Apart from action against the concerned police officers, we should have laws to give some remedy to the person who has been wronged by the system.

The Need for Roots brought home the modern era's disconnection with the past and the loss of community

Having recently moved to a Himalayan village, I felt Simone Weil's focus on uprootedness spoke directly to me

• 
• • Pankaj Mishra
  • The Guardian, Sunday 18 August 2013 15.02 BST

An idol of the Hindu god Ganesh. ‘A rare European thinker who was as curious about Hindu and Buddhist traditions as about the Cathars, Weil despised colonialism as well as nationalism.’ Photograph: Sanjeev Gupta/EPA

There has rarely been a day since I first read The Need for Roots, nearly two decades ago, that I haven't thought of Simone Weil – one of my earliest heroines along with Hannah Arendt and Rosa Luxemburg. It was the title that initially attracted me more than the contents. Having recently moved to a Himalayan village after a peripatetic life in the plains, I had begun to feel rooted for the first time, connected to a stable community which, living off the land, neither poor nor rich, and low rather than upper caste, was marked above all by dignity – remarkable in a country where villages had become synonymous with destitution. And when Weil asserted that the central event of the modern era was uprootedness – the disconnection from the past and the loss of community – she seemed to speak directly to my experience.

The range of her admirers – from TS Eliot to Albert Camus – attest to the difficulty of describing Weil. She was a bourgeois Jewish intellectual from France who, in a viciously antisemitic climate, rejected both Judaism and Zionism. A youthful Marxist who fought on the Republican side in the Spanish civil war she, after an immersion in the "icy pandemonium of industrial life", came to believe that "it is not religion but revolution which is the opium of the people". A devoted Hellenist, she despised the Roman empire, implicating it with an oppressive tradition of the authoritarian state in Europe that culminated in Nazi Germany.

A rare European thinker who was as curious about Hindu and Buddhist traditions as about the Cathars, Weil despised colonialism as well as nationalism. "When one takes upon oneself, as France did in 1789, the function of thinking on behalf of the world, of defining justice for the world, one may not become an owner of human flesh and blood." She possessed an ironic view of historians – how they buttress the ideological claims of the hyper-power of the day: "If Germany, thanks to Hitler and his successors, were to enslave the European nations and destroy most of the treasures of their past, future historians would certainly pronounce that she had civilised Europe."

Freed of the popular intellectual's obligation to boost national or imperial egos, she could point out something that was obvious to many Asian sufferers of European colonialism: the shocking nature of Nazi racism lay, she wrote, "in the application by Germany to the European continent, and the white race, generally, of colonial methods of conquest and domination".

In The Need for Roots she distilled everything she had learned from her intellectual struggles with the ideologies of socialism and liberalism, her experience of working-class conditions and the plight of the Vietnamese in France.

In different ways, Marx, Nietzsche and Max Weber had described how human relationships had shifted dramatically in societies built around commerce, industrial capitalism and the colonisation of vast tracts of the world. Life had lost its old moorings in a world where technology greatly enhanced the power of large abstract entities, such as the state and nationalism. Weil brought a different intensity to this sober diagnosis of the human condition.

Uprootedness was a sickness of the soul, a spiritual malaise, but with far-reaching political consequences that left no one unaffected. As Weil wrote: "Hitler would be inconceivable without modern technique and the existence of millions of uprooted men."

Material affluence and political stability in recent decades has rendered less toxic the extensive deracination that began in Europe in the 19th century. Today, it is people from countries such as India, Iran and Egypt who will immediately recognise Weil's insight that the modern promise of individual development, which was realised through the destruction of old bonds, can leave people dangerously adrift and vulnerable to demagogues.

As the years passed in my village, I witnessed poorly educated young men leaving to seek the greater comforts and liberations of big cities. I would see them on my visits to Delhi. Working in sweatshops and living in equally degrading conditions, the promise of the modern world had turned sour for them. These were the men whose disaffection had traditionally seeded militant ideologies or random violence against those weaker than them.

Recent history shows that the social turmoil provoked by large-scale uprootings helps authoritarians more than progressives. In any case, revolution was both undesirable and unrealisable, since technology and industry were unstoppable. What, then, could be done?

Weil aimed at the rehumanisation of the workplace and, by extension, the larger society. As she put it somewhat melodramatically, a civilisation that did not recognise the spiritual nature of work was doomed.

This was not all abstract speculation. Policymakers can draw much from The Need for Roots: such clear prescriptions as that employers ought to provide an adequate vocational training for their employees, education should be compulsory and publicly funded, and include technical as well as elementary education.

But her most original move was to abandon the language of rights – the claims of possessive individuals against others that had provided political philosophy with its syntax since Hobbes and Locke. Instead, she talked of needs, duties and obligations as the basis of a good society – something that would be immediately familiar to Buddhist philosophers but remains marginal in the western tradition of political theory.

As she wrote, "If you say to someone who has ears to hear: 'What you are doing to me is not just', you may touch and awaken at its source the spirit of attention and love. But it is not the same with words like 'I have the right' … or 'you have no right to … ' They evoke a latent war and awaken the spirit of contention. To place the notion of rights at the centre of social conflicts is to inhibit any possible impulse of charity on both sides."

As she saw it, the original advocacy of rights had served the expansion of commerce and a contract-based society in western Europe. But a free and rooted society ought to consist of a web of moral obligations. We have the right to ignore them, but we ought to be actually obliged not to let other people starve, or to let them lapse into destitution.

It should be noted that Weil was not a liberal. For her, there can be no such thing as absolute freedom of expression at a time when "journalism becomes indistinguishable from organised lying", and its consumers don't have the time or leisure to sift truth from falsehood. "There ought to be," she wrote, looking ahead to the age of Leveson, special courts to monitor communications network that are "guilty of too frequent a distortion of the truth".

Indeed, what makes The Need for Roots particularly pertinent today is its critique of the ethic of liberalism that had originally emerged to serve the needs of a commercial society – individuals with highly self-regarding conceptions of their rights. As Weil saw, and we recognise very well in 2013, the extension of the marketplace into the realm of values has severely constrained our moral imagination.

It is easy to criticise some Weil's ideas for being too impractical and occasionally draconian. There is something too sanguine about her view of human nature. As a friend scolded her, shortly before she died of self-induced starvation in Kent in 1943 at the age of only 34: "Man is not pure but a 'sinner'. And the sinner must stink a bit, at the least." Perhaps. But you can only marvel, as Orwell did about Gandhi, at how clean a smell she managed to leave behind.

The Britons leaving the UK to get their relatives in

British citizens are bypassing immigration regulations to get their relatives into the UK, using a technicality that means that if they work in another European country for three months, they can be considered under EU rather than British law on their return. Is this cheating the system or just getting past unfair rules?

Sarah Pitard is a screenwriter from Chicago who had been living in the UK for four years on student visas when she married actor Chris Hall from Swindon, in December 2012.

When the couple applied for their marriage visa the UK Border Agency returned their form saying they had not enclosed payment details. The couple maintain that these details had been included, but by that time it was too late for them to re-apply as Sarah's existing visa was about to expire.

"Our visa was refused and when I calculated how many days I was allowed to stay in the UK it turned out we had 48 hours to leave the country, otherwise I would have been banned for 10 years.

Continue reading the main story

“Start Quote

If it is a cheat then we will cheat so that we can stay together for the rest of our lives”

Chris Hall, with his US wife Sarah Pitard

"I called Chris who had just left for a big theatre tour, and I said 'You gotta come back - meet me at St. Pancras'," Pitard recalls. "And we just shot out on the Eurostar and landed in Paris. I had never even been to France."

Under UK law, Hall was only able to bring his wife, a non-European Economic Area (EEA) citizen, in to Britain if he met the £18,600-a-year base earnings requirement.

But UKBA would not count some of his income as it comes from freelance acting work. So despite being married to a British citizen, Pitard was not allowed back in to the country.

A friend, though, knew of another way of getting a spouse in to the country.

The method they went on to pursue is known as the Surinder Singh route, named after an historic court case. It involves leaving the UK and working in the EEA for about three months.

By exercising your rights under European freedom of movement, your status as a European citizen takes priority over your status as a UK citizen, and when you return to the UK you are allowed to bring your Non-EEA spouse without having to meet the £18,600 minimum earnings requirement which applies to Britons.

In simple terms, EEA citizens have stronger migration rights than UK citizens, since they can bring in family members from outside Europe in this way.

"My friend said it's not publicised - it's really hard to find on the UKBA website, you pretty much have to know about it in order to find it," Sarah tells me. "They don't make it easy because they don't really want anyone to know about it."

It is therefore easier for someone from France or Germany living in the UK to bring in their Indian or American partner or relative, and each year around 20,000 non-European family members come into the UK this way.

Sonel Metha, of Reading, is currently living and working in Dublin in order to bring her parents across from Australia. They were blocked from moving to the UK by new rules on dependent relatives introduced in July 2012.

"It's the only route that's open to us and I think it's left open because the government can't close it," Metha says.

In migration terms EEA citizens have stronger rights than UK citizens

Although she knows the route is completely legitimate, she is expecting trouble when she arrives in the UK with her parents and tells the Border Agency official that she is using the Surinder Singh route.

"It will be clear that my parents are coming to settle in the UK. I'm absolutely expecting questions. I'm expecting the immigration officers to deny my right to be able to do that, but I'll have all the evidence with me to show that I have exercised my treaty rights in Ireland," Metha explains. "And paperwork printed out from the UKBA website which says that this route is something that British citizens can avail of."

Guy Taylor, of the Joint Council for the Welfare of Immigrants, says that as other immigration options are closed off an increasing number of people are using the Surinder Singh route.

"One person I spoke to yesterday is working in an arcade in the south of Germany with his Russian wife," Taylor says.

"There are people who are working in Portugal, Spain, France. A lot of people going to Dublin - obviously because of the language.

"It's hard to estimate exactly how many people are doing this because so many don't declare they're going. There are Facebook groups about people trying to share flats and actually co-ordinating on this."

But he added that a whole new group of people are now falling foul of immigration rules.

"For the first time, we're seeing immigration rules hitting white British people and there's a lot of anger about that because this is an infringement on British people's rights, not just about immigrants."

But David Goodhart, director of think-tank Demos and author of The British Dream, a book about post-war immigration, believes the Surinder Singh route should be closed.

"I would regard that as a loophole. When different European countries are trying to place restrictions on the number of people coming from outside Europe, it seems bizarre that those people who are not British citizens find it easier to bring people in from outside the EU than British citizens," he says.

"To have rules about controlling people coming into the country from outside Europe, just made fun of by a European regulation - it should be stopped."

The Immigration Minister Mark Harper declined to be interviewed for BBC Asian Network/Newsnight's report and instead issued a statement:

"The EEA family permit is not a 'loophole'. It reflects the current requirements of EU law and would not apply if someone went abroad to a member state for a short time just in order to circumvent the immigration rules. An application will be refused if it cannot be proved the British citizen was genuinely engaged in employment."

This somewhat contradicts the UKBA website which says that it does not matter if the only reason a British national goes to another member state is to exercise an economic Treaty right so that they can come back to the UK with their family members.

Those using the route argue they have been forced into a corner. In Paris, Chris Hall says he is not in the least ashamed.

"We're doing this because we have no other options. So we're going to go ahead with it and if it is a cheat then we will cheat so that we can stay together for the rest of our lives."

Dog meat festival at Yulin, Guangxi

 

People of Yulin, Guangxi province, cherish summer solstice tradition but animal rights groups denounce event as inhumane

• Jonathan Kaiman in Beijing
• guardian.co.uk, Tuesday 18 June 2013 15.36 BST

Chinese volunteers rescue dogs destined for dog-meat restaurants. In China, dog meat is prized as a nutritious wintertime dish. Photograph: Quirky China News/Rex Features

Residents of a small city in southern China plan to hold an annual dog-meat festival on Friday amid intense criticism from animal rights groups, which have denounced the one-day event as unsafe and inhumane.

Residents of Yulin in Guangxi province consider the festival an ancient summer solstice tradition. Many cherish their city's dog-meat culture, which involves the mass consumption of dog-meat hotpot served with lychees and strong grain liquor.

Animal rights groups say 10,000 dogs are slaughtered during the festival each year, and that many are electrocuted, burned and skinned alive. Pictures posted online show flayed dogs, dogs hanging from meat hooks, and piles of dog corpses on the side of the road. In China dog meat is prized as a nutritious wintertime dish that doctors can prescribe to treat maladies such as impotence and poor circulation.

 Dog meat being prepared for sale in Yulin, Guangxi province. Photograph: Quirky China News/Rex Features

Activists have tried to block the event on numerous occasions through open letters and street protests. Some have implored the UK and US governments to interfere with the festival via online petitions. "Please help us stop the Yulin Festival of eating dogs in Guangxi province. It is bloody and disregards life," a petition on the US White House website was titled.

"They use knives to kill the dogs which are alive," it said, according to the South China Morning Post. "Then people would like to burn the dogs, which are conscious, so they can eat them." The petition was recently taken down because it failed to meet the 100,000 signature threshold required to elicit a response from the Obama administration.

 Chinese diners tuck into dog-meat hotpot in a restaurant in Yulin, Guangxi province. Photograph: Imaginechina/Rex Features

According to an open letter by the Hong Kong-based NGO Animals Asia, many of the dogs consumed during the festival are strays and abductees. Some are transported to the city on filthy, overcrowded trucks, significantly increasing the risk that they carry rabies and other contagious diseases. Yulin officials claim that the dogs are raised by local farmers.

"Stolen dogs without quarantine certificates are cruelly slaughtered and sold to restaurants at very low prices," Master Huici, assistant director of the Hebei Buddhism Charity Foundation, told the state-run Global Times newspaper.

Yulin officials did not pick up the phone on Tuesday afternoon, outside of working hours.

Last month Chinese border officials seized 213 bear paws – an expensive ingredient in traditional Chinese medicine – and arrested two Russian citizens for trying to smuggle them into the country in vehicle tyres.

If socialists really did run the show, working people would benefit

 Rather than having to engage in debate, an opponent can be dismissed as extremist

 Owen Jones in The Independent

Having just moved to north London, I was perturbed to be woken on Tuesday morning by a whirring sound in the distance. When I glanced at the Telegraph's front page later that day – which revealed that multi-millionaire Tory donor Adrian Beecroft had accused Vince Cable of being a socialist – I realised it must have been Karl Marx spinning violently in his Highgate Cemetery grave. The great man shouldn't take it to heart: Beecroft strikes me as the sort of bloke who would accuse opponents of privatising the first-born for being a bit "pinko".


Beecroft's smear on the good name of socialism was triggered by Cable's description of his proposals to shred Britain's remaining workers' rights (not least by allowing bosses to fire at will) as "bonkers". Given the contents of Beecroft's report for the Conservative Party, the certifiably non-socialist Lib Dem was being rather mild-mannered.

We are in the most protracted economic crisis since the late 19th century because of a financial collapse and the Government's decision to suck demand out of the economy, and yet our economic elite still attempts to scapegoat people's rights in the workplace. I doubt that the Confederation of British Industry – fervent supporters of Beecroft's plans – believes it for a second, of course: they are merely class warriors attempting to exploit a crisis to push policies that would otherwise be politically impossible.

But it does demonstrate how "socialist" is regarded as the ultimate insult by much of our wealthy elite, who have been in a virtually uninterrupted triumphalist mood since Margaret Thatcher defeated their political opponents in the 1980s. Similarly, an increasingly hot-tempered David Cameron routinely slams Ed Miliband for being "left-wing" at Prime Minister's Questions; it was once fashionable for the media to label the Labour leader "Red Ed". It is much like the term "liberal" in the United States: in the 1950s, even Republican President Dwight D. Eisenhower described himself as such, as did huge numbers of American voters. Liberal US scholar Lionel Trilling once felt able to dismiss conservatism as "irritable mental gestures". But now "liberal" is largely hurled as a term of abuse in US political debate, with few mainstream politicians willing to associate themselves with the label.

Socialism used to be a term the Labour Party was more than happy to champion. In its historic 1945 manifesto, Labour announced that it was "a Socialist Party, and proud of it", with the ultimate objective of establishing a "Socialist Commonwealth of Great Britain". But the word hasn't made an appearance in a Labour Manifesto since 1987. Curiously, Tony Blair repeatedly spoke about socialism in his early days as Labour leader but, given that no one really believed he was a socialist, it was more a case of "the lady doth protest too much". For Blair and his adherents, if there was a rare, sentimental need to dust off "socialism", it was to mean nothing more than platitudes no decent person would disagree with, like "community" and "fairness".

The reason "socialism" came to be seen as a swear word was twofold. First, Thatcher made it abundantly clear that she was at war with what she regarded as socialism. In her memoirs, she described post-war Britain as a "socialist ratchet" and, reflecting on the 1983 general election, she argued that "socialism was still built into the institutions and mentality of Britain". In her mission to "create a wholly new attitude of mind", as she put it soon after her first election victory, she appeared to crush "socialism" into the dust.

In what was fortunate timing for Thatcher's acolytes, the Soviet empire began disintegrating as her project reached its climax. Although almost all socialists abhorred Stalinist totalitarianism (by the 1980s, at least), these were regimes that described themselves as "actually existing socialism". Their collapse was portrayed as the final discrediting of socialism, and the ultimate vindication of capitalism.

Beecroft's use of "socialism", then, relates to a theory called the "Overton window", which describes what is seen as politically acceptable at a given time. Rather than having to engage in a debate over the merits of bosses being able to dismiss their workers at will, an opponent can be dismissed as a "socialist", which – for Beecroft – is code for "extremist" or "someone with views outside of what is politically acceptable".

The irony of it all is that socialism, of a sort, is actually flourishing in Britain – for wealthy people like Beecroft. The taxpayer bailed out the banks that caused the crisis, allowing them to carry on much as before, courtesy of public money. Private companies such as "welfare-to-work" business A4e leech off the state, as do private contractors throughout our public services. Indeed, our NHS is set to become an even more lucrative opportunity (at taxpayers' expense) for private health care firms like Care UK than it was under New Labour.

The taxpayer splashes out three times more subsidies on private train companies than they did on publicly owned British Rail. Private landlords get away with charging extortionate rents, knowing that the state will pay billions subsidising them through housing benefit. Wealthy individuals enjoy tax relief on their pensions worth billions. Socialism for the rich is thriving while, for everybody else, it is capitalism red in tooth and claw.

If socialists really were running the show in Britain, they would be building a society run by, and in the interests of, working people. Our banks – propped by the British people – would be taken under genuine democratic control, forcing them to operate in the interests of society as a whole. Our booming wealthy elite would be forced to pay a fair share of tax (or, in some cases, any tax whatsoever). After the disastrous failures of market economics, real socialists would be taking our utilities – such as the railways and rip-off energy companies – into social ownership: not old-style, statist nationalisation, but democratically run by workers and consumers. They would bring down welfare spending, not by kicking people at the bottom, but by building social housing, introducing a living wage, and creating jobs. And they would be reversing the scandalous lack of rights that workers have in the workplace, which is what ensured that wages were declining for many before the crash had even happened.

Instead, we have a government (of which Vince Cable is a pillar) ruthlessly forcing working people to pay the immense cost of getting capitalism out of its mess. Beecroft may feel frustrated that it is not politically possible to adopt his attacks on workers' rights wholesale, but he can rest assured that this is a government that stands for people like him – and those pesky socialists could not be any further away from the corridors of power.

'Freedom' an instrument of oppression

This bastardised libertarianism makes 'freedom' an instrument of oppression

It's the disguise used by those who wish to exploit without restraint, denying the need for the state to protect the 99%

• 
• • George Monbiot
  • guardian.co.uk, Monday 19 December 2011 20.30 GMT
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Illustration by Daniel Pudles

Freedom: who could object? Yet this word is now used to justify a thousand forms of exploitation. Throughout the rightwing press and blogosphere, among thinktanks and governments, the word excuses every assault on the lives of the poor, every form of inequality and intrusion to which the 1% subject us. How did libertarianism, once a noble impulse, become synonymous with injustice?

In the name of freedom – freedom from regulation – the banks were permitted to wreck the economy. In the name of freedom, taxes for the super-rich are cut. In the name of freedom, companies lobby to drop the minimum wage and raise working hours. In the same cause, US insurers lobby Congress to thwart effective public healthcare; the government rips up our planning laws; big business trashes the biosphere. This is the freedom of the powerful to exploit the weak, the rich to exploit the poor.

Rightwing libertarianism recognises few legitimate constraints on the power to act, regardless of the impact on the lives of others. In the UK it is forcefully promoted by groups like the TaxPayers' Alliance, the Adam Smith Institute, the Institute of Economic Affairs, and Policy Exchange. Their concept of freedom looks to me like nothing but a justification for greed.

So why have we been been so slow to challenge this concept of liberty? I believe that one of the reasons is as follows. The great political conflict of our age – between neocons and the millionaires and corporations they support on one side, and social justice campaigners and environmentalists on the other – has been mischaracterised as a clash between negative and positive freedoms. These freedoms were most clearly defined by Isaiah Berlin in his essay of 1958, Two Concepts of Liberty. It is a work of beauty: reading it is like listening to a gloriously crafted piece of music. I will try not to mangle it too badly.

Put briefly and crudely, negative freedom is the freedom to be or to act without interference from other people. Positive freedom is freedom from inhibition: it's the power gained by transcending social or psychological constraints. Berlin explained how positive freedom had been abused by tyrannies, particularly by the Soviet Union. It portrayed its brutal governance as the empowerment of the people, who could achieve a higher freedom by subordinating themselves to a collective single will.

Rightwing libertarians claim that greens and social justice campaigners are closet communists trying to resurrect Soviet conceptions of positive freedom. In reality, the battle mostly consists of a clash between negative freedoms.

As Berlin noted: "No man's activity is so completely private as never to obstruct the lives of others in any way. 'Freedom for the pike is death for the minnows'." So, he argued, some people's freedom must sometimes be curtailed "to secure the freedom of others". In other words, your freedom to swing your fist ends where my nose begins. The negative freedom not to have our noses punched is the freedom that green and social justice campaigns, exemplified by the Occupy movement, exist to defend.

Berlin also shows that freedom can intrude on other values, such as justice, equality or human happiness. "If the liberty of myself or my class or nation depends on the misery of a number of other human beings, the system which promotes this is unjust and immoral." It follows that the state should impose legal restraints on freedoms that interfere with other people's freedoms – or on freedoms which conflict with justice and humanity.

These conflicts of negative freedom were summarised in one of the greatest poems of the 19th century, which could be seen as the founding document of British environmentalism. In The Fallen Elm, John Clare describes the felling of the tree he loved, presumably by his landlord, that grew beside his home. "Self-interest saw thee stand in freedom's ways / So thy old shadow must a tyrant be. / Thou'st heard the knave, abusing those in power, / Bawl freedom loud and then oppress the free."

The landlord was exercising his freedom to cut the tree down. In doing so, he was intruding on Clare's freedom to delight in the tree, whose existence enhanced his life. The landlord justifies this destruction by characterising the tree as an impediment to freedom – his freedom, which he conflates with the general liberty of humankind. Without the involvement of the state (which today might take the form of a tree preservation order) the powerful man could trample the pleasures of the powerless man. Clare then compares the felling of the tree with further intrusions on his liberty. "Such was thy ruin, music-making elm; / The right of freedom was to injure thine: / As thou wert served, so would they overwhelm / In freedom's name the little that is mine."

But rightwing libertarians do not recognise this conflict. They speak, like Clare's landlord, as if the same freedom affects everybody in the same way. They assert their freedom to pollute, exploit, even – among the gun nuts – to kill, as if these were fundamental human rights. They characterise any attempt to restrain them as tyranny. They refuse to see that there is a clash between the freedom of the pike and the freedom of the minnow.

Last week, on an internet radio channel called The Fifth Column, I debated climate change with Claire Fox of the Institute of Ideas, one of the rightwing libertarian groups that rose from the ashes of the Revolutionary Communist party. Fox is a feared interrogator on the BBC show The Moral Maze. Yet when I asked her a simple question – "do you accept that some people's freedoms intrude upon other people's freedoms?" – I saw an ideology shatter like a windscreen. I used the example of a Romanian lead-smelting plant I had visited in 2000, whose freedom to pollute is shortening the lives of its neighbours. Surely the plant should be regulated in order to enhance the negative freedoms – freedom from pollution, freedom from poisoning – of its neighbours? She tried several times to answer it, but nothing coherent emerged which would not send her crashing through the mirror of her philosophy.

Modern libertarianism is the disguise adopted by those who wish to exploit without restraint. It pretends that only the state intrudes on our liberties. It ignores the role of banks, corporations and the rich in making us less free. It denies the need for the state to curb them in order to protect the freedoms of weaker people. This bastardised, one-eyed philosophy is a con trick, whose promoters attempt to wrongfoot justice by pitching it against liberty. By this means they have turned "freedom" into an instrument of oppression.