The 4th ‘Vibrant Gujarat Global Investors’ Summit, organized by the Gujarat government on 12-13 January 2009 in Ahmedabad, and the statements by some prominent Indian corporate leaders, have spawned protests, analysis, debates and questions about corporate accountability, complicity, responsibility and rights in Indian democracy. At this biennial event, ‘Jai Jai Garvi Gujarat’ has been showcased as an ‘ideal investment destination, both for Indian and foreign investors’, where prospective investors have ‘only Red Carpet and no Red Tape and it is where investors can sow a rupee and reap a dollar as returns’ (see Official portal of Gujarat Government).
Bringing together business leaders, investors, corporations and policy makers by a democratically-elected government, exploring business opportunities and signing memorandum of understandings are legitimate economic activities. However, the projection of the Chief Minister of the State, Narendra Modi, as the next Prime Minister of India by corporate cheerleaders is much more than mere economic activity. It is turning a blind eye to gross abuses of rule of law, and knowingly assisting a political leader and his government to continue committing them. It is becoming party to a specific political vision in a manner that incurs responsibility and blame. Such corporate leaders thus become complicit with a government and its leader in serious human rights abuses. It is negative and unacceptable.
Our understanding is continuously emerging and developing about where to draw the line between corporate conduct that should be stopped, and conduct that reflects a legitimate business choice or at most could be criticised in policy or ethical terms. Even if we do not offer companies the certainty about their legal liability for such complicity, we can certainly point broadly to thresholds of action and behaviour beyond which the businesses will be at least in a zone of potential public liability and legal scrutiny. On this basis, we can suggest that the corporate must, at a minimum, avoid this sort of conduct.
Six decades ago senior company officials were convicted for actively helping the Nazi regime to commit some of the worst war crimes imaginable. These business leaders, often working through their companies, supplied poisonous gas to concentration camps, knowing that it would be used to exterminate human beings; actively sought slave labour to work in their factories; acquiesced or helped in the deportation, murder and ill-treatment of slave workers; donated money to support the criminal, and enriched their companies by plundering property in occupied Europe. Reports of business participation in regressive political regimes did not stop with the end of World War II. The proposition that thriving trade and business investment can help to raise people’s standard of living has not allayed concerns that businesses can also do considerable harm. With this development, there should also be a spotlight on corporate conduct across the state – some of which stretches back over the last six years – and calls for accountability.
Gujarat today is also the place of some of the worst human rights abuses, which often have devastating effects, not only on individual victims and their families, but also on the communities and societies in which they are taking place. Abuses that are an infringement of a flagrant nature amount to a direct and outright assault on universally recognised rights. These abuses include, for example, killings of minorities, enforced disappearances, encounters, extrajudicial executions, prolonged arbitrary detentions, and torture. Remember the communal violence in March 2002, in which 2,000 people, mostly Muslims, lost their lives and an armed attack on Akshardham temple in September 2002, in which 37 Hindu devotees and three security personnel were killed. Police and other security personnel, believed to be responsible for widespread violations of human rights against the Muslim minority, especially the youth, in Ahmedabad and elsewhere in Gujarat, continue to operate without fear of investigation or prosecution. Remember the case of Sohrabuddin Shaikh, where the Gujarat state government admitted in the Supreme Court of India that senior state police officers, who were part of an Anti-Terrorist Squad (ATS), were directly involved in the killings of a 38-year-old man, Sohrabuddin Shaikh, and his wife, Kausar Bi, in 2005. After his killing in 2005, the ATS branded him as a terrorist member of Lashkar-e-Toiba (LET), an armed organisation in Kashmir, and accused him of conspiring to kill senior leaders of the Bharatiya Janata Party, including the chief minister Narendra Modi.
The Government of Gujarat remains unrepentant for its failings to protect the Muslim minority, and to ensure that victims obtain justice, truth and reparations. Several credible organisations have reported that a climate of alienation and fear has been deliberately fostered among the Muslim minority in Gujarat since the violence in 2002. These reports have also been corroborated by the findings of a central government-appointed high level committee led by a former Supreme Court judge, Rajinder Sacchar (the Sacchar Committee), and mandated to look into the ‘social, economic and education status of the Muslim community in the country’. Commenting on the committee’s findings, which had been tabled before the Indian parliament in November 2006, one of the committee members, Prof. T. K. Oommen, stated that Gujarat continues to reel under a state of ‘economic apartheid and ghettoization’ of Hindus and Muslims and that ‘ever since the 2002 riots, the polarization of communities in Gujarat has acquired a physical dimension’.
In the specific context of Gujarat, and otherwise as well, business is a major actor, and is gaining greater than ever reach and power. Complex relationships between businesses and individuals, communities and governments mean that business operations do impact immeasurably on human beings. Some businesses now wield considerable political influence and possess more economic power than government officials. Many have developed close business and political relationships with those in power. Thus, corporate and company have to face questions of complicity, as they have business operations in regions where gross human rights abuses are occurring, and they fail to intervene with the authorities to try and stop, or prevent, such abuses. They are silent onlookers. How could corporate be silent when abuses occur in or around its business operations, such as when its workers from a particular religious group are arbitrarily detained or killed, or an armed group kills civilians in an area where the company is operating? Their silent presence is proudly portrayed by the perpetrator to communicate approval, and encouragement, of their model. Greater the economic and commercial influence wielded by a company, more is the likeliness of corporate finding themselves in such situations. Presence and silence might be neutral in law, but it has great political, moral and ethical values.
Closely related to the question of silent presence is the concern that companies are considered complicit because they are benefiting commercially from a business relationship with those who commit gross abuses. The so-called ‘red carpet’ business environment – infrastructure, access to resources, absence of trade unions – are often a result of a rights-free setting. Even though the corporation today may not in general incur legal responsibility solely for making profit in a business environment built on abuses, in reality and practicality, seeing their enthusiasm and pro-activeness to appease certain political regimes, the passive economic benefit quickly slides into a more active contribution that enables, exacerbates or facilitates gross abuses.
Our companies can open their eyes to other experiences. The different degrees to which businesses contributed to the perpetuation of apartheid in South Africa and the associated gross human rights abuses illustrate the complexities of analysing whether company conduct is sufficiently close to human rights abuses to be said to have enabled, exacerbated or facilitated the abuses. The South African Truth and Reconciliation Commission (TRC) concluded that business was central to the economy that sustained the apartheid state. It distinguished three levels of moral responsibility. Companies that actively helped to design and implement apartheid policies were found to have had ‘first-order involvement’. This included, for example, the mining industry which worked with the government to shape discriminatory policies, such as the migrant labour system, to their own advantage. Companies which knew that the state would use their products or services for repression were considered as having ‘second-order involvement’. This included more indirect assistance, such as banks’ provision to covert credit cards for repressive security operations, or the armaments industry’s provision for equipment used to abuse human rights. This contrasted with more indirect transactions that could not have been reasonably expected to contribute directly or subsequently to repression, such as building houses for state employees. Finally, the Commission identified ‘third-order involvement’, i.e. ordinary business activities that benefited indirectly by virtue of operating within the racially structured context of an apartheid society.
Corporations have common defences and excuses: we are carrying out a legitimate business activity; if we did not go there, another company would have done; we are nowhere near the place where the abuses occurred; we had no control or influence over the actions of the government, so why should we be blamed; we are just abiding by laws; we are a socially responsible company and have spent a lot of money to improve the humanitarian and developmental well-being of the community.
However, with the emergence of a broadening concept of corporate responsibility in our interconnected world, these defences are weak and outdated. We are all seen in some way to be implicated in the harm being inflicted in often distant lands, whether it is fuelling the loss of rainforests by buying furniture made of tropical wood, or encouraging child labour by buying footballs made in child sweatshops. With this heightened sense of moral responsibility for the fate of others, even the distant, indirect and most complex actions of businesses have to be closely scrutinized. Mary Robinson, former United Nation’s High Commissioner for Human Rights, asserts that ‘business decisions can profoundly affect the dignity and rights of individuals and communities’.
While there are many situations in which businesses and their officials are the direct and immediate perpetrators of human rights abuses, allegations are frequently made that businesses have become implicated with another actor in the perpetration of human rights abuses. In such circumstances, human rights organisations and activists, international policy makers, government experts, and businesses themselves, now continuously use the phrase ‘business complicity in human rights abuses’ to describe what they view as undesirable business involvement in such abuses. Just as the concept of impunity in the sphere of human rights has taken on a multi-faceted meaning, much more sophisticated and colourful than its strict historical-legal connotation, in the context of business and human rights, the concept of complicity is now used in a much richer, deeper and broader fashion than before. It is critical to develop such tools of accountability, which can have a significant impact in terms of improving business practices. The work of the corporate should not be to only nullify or limit the concept of complicity to situations in which legal liability may arise or be alleged. The law too is changing and evolving rapidly, and complicit conduct, for which businesses may not face legal responsibility today, may well attract legal liability in the future, as the law responds to developing concepts of moral responsibility. Businesses should therefore be guided as much by the Indian constitution, public policy and ethical considerations as by market-place realities, and beyond a technical appreciation of whether they currently could face allegations of legal liability or legal sanctions.