The plight of the Indian farmer

farmer

I. Introduction

I learnt early on, to appreciate the struggles of our rural countrymen. When I was growing up, I was told by my mother that my father had fought a big case as a young lawyer- a case that helped the farmers of Maharashtra. Many years later,  he told me what the case was about. In the 1980’s, recovery officials of co-operative banks, moneylenders, financial institutions in the State of Maharashtra had begun using coercive and illegal methods to recover monies owed to them by debt-ridden farmers. My father advised Mr. Sharad Joshi, a legendary leader of the Shetkari Sanghatana (literal translation being “Farmer’s Organization”) to seek the protection of insolvency laws to prevent further recoveries- a legal right routinely enforced by urban persons but never invoked (on that scale) by farmers. The plan was to obtain a settlement with the banks and the government during the inevitable impasse during the pendency of these petitions. Mr. Joshi and my father travelled across the state of Maharashtra, Delhi and Punjab convincing farmers to file these petitions. By the end of it, they had a movement on their hands and my father suddenly had 6,20,000 pro bono clients- all farmers. I was told that at any given point during those days, there were more than a hundred farmers in and around our house and his office was neck deep with work, churning out insolvency petitions. They had their ups and downs through the system of appeals within the judiciary but finally when relief came, it came from the Supreme Court of India. The Supreme Court passed a blanket order- staying all recovery proceedings against all the farmer-petitioners. This created a liquidity problem for the banks who couldn’t write off these loans without their own set of problems. According to the New Internationalist, the Government finally came to the rescue and wrote off loans worth 107 million dollars, some of which, were more than 20 years old.

My sister too, has worked and stayed in villages to educate the rural population, having been student of developmental studies and then working for an NGO called “Aser”. The complexities of the issue being lost on me at a younger age, I also nurtured a curiosity about why when everybody must eat, farmers are so poor? Wasn’t “Jai Jawan Jai Kisan” (“Hail the Soldier, Hail the Farmer”) our country-building war-cry?

This slogan was coined by India’s second Prime Minister Mr. Lal Bahadur Shastri in 1965 in Ramila Maidan, Delhi. Now, in the year 2018, that sentiment has proved to be an empty celebration of people who most likely suffer the most for little in return. This piece however, is dedicated to understanding the policies in place to curb suicides in the region and their efficacy. So the motivation here is more to spread awareness of the issues involved than force a solution on a complex problem.

According to a report by Times of India, the Central Government informed the Supreme Court last year that since 2013, more than 12,000 farmers have committed suicides in the agrarian sector every year. Maharashtra topped the list with 4,291 suicides, followed by Karnataka with 1,569, Telangana 1,400, Madhya Pradesh 1,290, Chhattisgarh 954, Andhra Pradesh 916 and Tamil Nadu 606. Together, these seven states accounted for 87.5% of total suicides in the farming sector in the country -11,026 of 12,602. So when the farmers marched to Mumbai on 6th March 2018, in scorching heat and with limited supplies of food and electricity- they weren’t throwing a tantrum- they were fighting for their lives.

While the mainstream media largely ignored the recent farmer march, social media was lit up with glowing praises for the Maharashtrian farmer community. According to NDTV, the number of farmers reached close to 35,000 as more and more people joined the march on the way since it began. Some media reports pegged the number to as much as 100,000 farmers. They did not want to inconvenience their Mumbai urban brothers and sisters so they decided to enter the city and demonstrate only at around 2 am, so traffic snarls and public safety is not a concern.

“We suffer every day. As their brothers and sisters, we appeal to every resident of Mumbai to not worry about a traffic jam and instead stop their routine work for a few hours on Monday to join us when we march to Vidhan Bhavan to voice our demands.” said Dr Ajit Nawale, general secretary of Akhil Bharatiya Kisan Sabha (AIKS), Maharashtra unit, according to a report by the Mumbai Mirror. This ‘suffering’ he talks about is not the kind India’s urban population can even relate to. It’s the kind that incites a man to take his own life and leave his loved ones forever, from sheer desperation. Farmer suicides due to vicious cycles of loan debts and the inherent risk in farming are now almost routine in rural Maharashtra. Their deaths are now, mere statistics in governmental records invoked by lawyers in Courts to beg them to intervene in matters that are solely within the jurisdiction of the uncaring executive. The Congress and the BJP, have both struggled to balance food prices on the one hand and giving value to the farmer for his produce on the other.

II. What do the farmers want?

So what were the farmers demanding? They, inter alia, wanted the implementation of the Swaminathan Report. The National Commission on Farmers, chaired by Prof. M. S. Swaminathan, submitted five reports through the period December 2004 – October 2006. The Committee’s reports have been succinctly collated by PRS Legislative Research, some of which, are reproduced here:

Some of the main recommendations include:

  1. Distribute ceiling-surplus and waste lands;
  2. Prevent diversion of prime agricultural land and forest to corporate sector for non-agricultural purposes.
  3. Ensure grazing rights and seasonal access to forests to tribals and pastoralists, and access to common property resources.
  4. Establish a National Land Use Advisory Service, which would have the capacity to link land use decisions with ecological meteorological and marketing factors on a location and season specific basis.
  5. Set up a mechanism to regulate the sale of agricultural land, based on quantum of land, nature of proposed use and category of buyer.

With respect to credit and insurance facilities NFC suggested the following:

  • Expand the outreach of the formal credit system to reach the really poor and needy.
  • Reduce rate of interest for crop loans to 4 per cent simple, with government support.
  • Moratorium on debt recovery, including loans from non-institutional sources, and waiver of interest on loans in distress hotspots and during calamities, till capability is restored.
  • Establish an Agriculture Risk Fund to provide relief to farmers in the aftermath of successive natural calamities.
  • Issue Kisan Credit Cards to women farmers, with joint pattas as collateral.
  • Develop an integrated credit-cum-crop-livestock-human health insurance package.
  • Expand crop insurance cover to cover the entire country and all crops, with reduced premiums and create a Rural Insurance Development Fund to take up development work for spreading rural insurance.
  • Promote sustainable livelihoods for the poor by improving (i) Financial services (ii) Infrastructure (iii) Investments in human development, agriculture and business development services (including productivity enhancement, local value addition, and alternate market linkages) and (iv) Institutional development services (forming and strengthening producers’ organisations such as self-help groups and water user associations).

These official recommendations have only implemented by the State Government (who is legislatively competent in matters of agrarian reform) in a piecemeal manner as seen hereinafter.

III. Remedial Governmental efforts

For this blogpost, I researched all the policies implemented by the State Government to help the maharashtrian farmer and prevent such suicides. It’s not that the State has been entirely apathetic, but it was also abundantly clear to me that the Government’s problems lie in a myriad of low policy budgets as well as the incompetent, corrupt and selective implementation of unresponsive policies.

According to some reports, State Governments in our country spend less than the budget allotted for the agrarian sector despite having so much work to do. Cumulatively, State Governments spent 9% less than the budgeted expenditure on agriculture between 2011 and 2015, according to data published by research firm PRS Legislative (pdf).  For things to improve, I have realised that public investment is crucial and indispensable.

The official stand of the Government is that the State has been facing a series of natural calamities like drought, hailstorm and unseasonal rains since the last 3-4 years. These calamities are resulting in low yield which in turn, is driving the farmers to commit suicide.

Budgetary problems

The Government has implemented policies like the “Krishi Samruddhi Scheme” and the “Baliraja Chetana Abhiyan“, to spread awareness and provide counselling to suicidal farmers. These schemes, however, are city-specific and the budget is low; ranging from Rs. 10 lakhs to Rs. 1 crore per year. Village level committees headed by a Sarpanch have also been constituted but only Rs. 1 lakh per year has been placed at their disposal to help the farmers’ families in cases of emergency situations like health expenses, educational expenses, loan instalments etc. which, cause acute financial distress. Here, the budget of the policy practically makes it redundant. To remedy this, the State Government had asked the Central Government for Rs. 4002.82 crores, but the Central Government approved only Rs. 3049 crores, out of which Rs. 2090.26 crores were disbursed to the bank accounts of  37,15,328 farmers.

The Government has also taken the help of the private sector through their CSR projects. Under the Scheme “Baliraja Chetana Abhiyan”, a committee headed by the Collector has been empowered to collect CSR funds from philanthropic corporate houses and utilize the same for “awareness campaigns, revival of social support systems, promotion of community marriages etc.”

Under the National Food Security Act and according to the State Government, the Government has been spending Rs. 80 crore per month (i.e Rs. 960 crores) to about 68 lakh families  in 14 districts of Vidharba and Marathwada by providing highly subsidised rates of Rs. 3 per kg (rice) and Rs. 2 per kg (wheat) subject to a total 5 Kgs per month per person as per the Act.

In 2015, the Government had declared a drought like situation in 15,747 villages in the kharif season of 2015. The Government waived 33% of electricity bills, school fees, land revenue and stayed the recovery of crop loans etc.

Having seen the above numbers, it became further inconceivable to me as to how the present dispensation can justify a cost of Rs. 3,500 crore of a stature of Shivaji Maharaja in Mumbai.

Water

The other problem faced by the farmers is irrigation. The Government, in response, has formulated the “Jalyukta Shivar Abhiyan”  by way of a Government Resolution dated 5th December 2014. This policy has the ambitious goal of achieving “water for all- scarcity free in 2019”. This is the Chief Minister’s flagship programme, which, according to the resolution, envisages- “arresting rain water within the village boundaries, increasing ground water level, creation of decentralised water bodies, rejuvenation of the old water storage structures, creation of new water bodies, restoring the storage capacity, increasing area under protective irrigation by efficient water use, implementation of the Ground Water Act, de-stilling of structures with people participation, creation of water awareness, publicity and sensitisation among the people’s participation in water budgeting.” An ambitious target of making 5,000 villages of Marathwada and Vidarbha Region scarcity free in every year has been set.

For drinking water, the State Government has sanctioned an amount of Rs. 10922.52 lakhs for supply of water by modes of tanker and bullock cart to 2909 villages in Marathwada Region.

Insurance for the farmer and his crops

To mitigate one of the worst causes of farmer suicides due to debt is crop insurance. The Government has has been implementing a Scheme known as the “National Agriculture Insurance Scheme” through the Agricultural Insurance Company of the Union of India since 1999. Various crops are insured under this scheme. For the worst affected regions of the State, 75% subsidy in premium is given to small and marginal farmers for cotton crop and 50% subsidy to other farmers. Compensation is also paid in proportion to the shortfall in the current year’s average yield in comparison with the threshold yield (Guaranteed Yield) for the notified area. The formula is as under:

Compensation = (Threshold yield) minus (current year average yield) ÷ (threshold yield) multiplied (by the sum insured)

The State has also implemented the “Shetkari Janata Apaghat Vima Yojana” to provide insurance cover to the extent of Rs. 1 lakh to all farmers (who have the 7/12 revenue record and are between the ages of 10 to 75 years) in the State for disability/death due to accidents while farming. This Scheme has been implemented since 2005-2006. The insurance premium is paid by the State to the insurance companies directly, covering about 1.37 crore registered farmers in the State.  Prudently, the coverage offered by the State is quite expansive. The following accidents are covered under the scheme:

  1. Road accident/Railway accident.
  2. Drowning
  3. Poisoning during pesticide handling
  4. Electric shock or Electrocution
  5. Lightening
  6. Murder( by unrelated person)
  7. Fall from height
  8. Snake bite, Scorpion bite
  9. Naxalite Violence
  10. Animal bite (Rabies)
  11. Riots
  12. Any other accidents

Under the new scheme (2015-2016) i.e. the “Gopinath Munde Shetkari Apaghat Vima Yojana”, farmers’ families who have died due to such accidents are paid Rs. 2 lakhs. For injuries involving disablement of some kind, they are entitled to compensation between  Rs. 1 lakh to Rs. 2 lakhs, considering the extent of the injury.

Since finance, lending and loan waivers have been a big issue for farmers- the Government has passed a Resolution dated 10th April 2015 which entails the State Government repaying loan amounts of Rs. 33.39 crores to the moneylenders. This has benefited about 36,294 farmers. The State Government by way of Government Resolution dated 24th July 2015, has also decided to partly waive interest of about 713 crores out of the total loan amount of Rs. 946 crores thereby benefitting 37,766 farmers.

IV. Unresponsiveness of policy

A lot of the problems faced by the farmers are due to the lack responsiveness of the State Machinery to their needs. For example, it was only pursuant to a specific direction in that regard the State Government began supplying adequate water to Government and Rural Hospitals so that emergency surgeries and medical treatments could be carried out.

Further, the Hon’ble Bombay High Court directed the  constitution of a committee headed by the  Dy. Collector which will immediately visit the site of a farmer suicide and within 10 days,  ascertain the cause of death and disburse compensation to the farmer’s kin. However, the Government Resolution dated 23th January 2006 states that the Tahsildar (an officer under the Land Revenue Code) will visit the site and then submit a report within 7 days to the Collector, who then, in turn will decide within 15 days if the Government will disburse the money to the family of the deceased farmer. The law states that these timelines would have to be “strictly” adhered to except in exceptional circumstances. However, the on ground implementation of this scheme is almost always wrought with bureaucratic red tape and delays. The State has created a two-level monitoring cell i.e. at the State and Divisional Level, with the Dy. Secretary (Relief) appointed as the Nodal Officer to ensure that the farmers are truly the beneficiaries of the schemes.

Fortunately, the Minister of Relief and Rehabilitation has notified certain suicide prone areas within the districts of Marathwada and Vidarbha wherein the Government immediately disburses Rs. 1 lakh if a “Karta” (head) of a farmer’s family commits suicide without seeing whether it the suicide was caused by agrarian distress or otherwise. The investigation conducted after payment into the reasons for the suicide are strictly for “ascertaining the extent of agrarian distress in these districts”.

If you think that Rs. 30,000/- or even Rs. 1 lakh is an abysmal compensation for someone’s death, fortunately the Hon’ble Bombay High Court has, vide its Order dated 21st January 2016  directed the State Government to pay a more realistic compensation to the kin of a farmer who has committed suicide. The decision to implement this order is presently pending with the government even though as per law, this prerogative is not theirs. They have to implement all orders passed. The Court ought to issue contempt against the State Government for non-compliance of its orders.

V. Conclusion 

Curiously, with this subject, even after reading the likes of P. Sainath, I couldn’t really find a panacea. The problem is that there are too many factors across farming traditions to loan sharks. It is important to implement the Swaminathan Report at least in as much as reducing the rate of interest for crop loans, moratoriums on debt recovery (including loans from non-institutional sources), is concerned. The issuance of Kisan Credit Cards to women farmers, with joint pattas as collateral is also a great idea. Developing an integrated credit-cum-crop-livestock-human health insurance package is crucial.

At the end of the day it appears that farmers are more victims than beneficiaries of the free market. There has been a sense of lethargy to use modern farming techniques. This approach entails banking almost entirely on nature to be benevolent. Even if the monsoons don’t rain on their parade, the fact is that farmers take massive loans for fertilisers, tractors, GMO seeds etc. When the crop is ready, he must hire a vehicle (at his cost) to take it to the mandi (quantities of tonnes and quintals). The market is flooded with his product, so most of the warehouses nearby (for which he must once again shell out money) are full to the brim. He can’t take his produce back to the farm, having spent so much just getting it to the market. So, when a Commission Agent quotes a price to the farmer, he has no choice but to accept it and make the best out of a bad situation.

I acknowledge the efforts by the government to remedy the crisis and am fully aware that policy changes can only ever be impacting and not determining variables. However, having gone through various articles on the subject, it is clear that implementation of these policies along with massive corruption of the State machinery has prevented the laudable objectives of the policies from truly attaining fruition.

-Shrinivas Bobde (20.04.2018)

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The Padmavati Controversy: The law on the issue

Padma
Introduction
I have always believed that militant religiosity mixed with right-wing nationalism is a dangerous cocktail to supply to the citizenry. These emotions evoke powerful reactions in people who suspend even their intelligence and empathy to make provision for ridiculous ideas of normative justice. In this light, I believe that the BJP has shamelessly pandered to our country’s worst impulses for the transparent purpose of power accumulation. It’s not ingenious. Several parties around the world have won elections appealing to the country’s intellectual lowest common denominators. It’s a dangerous game that can quickly undermine the idea of rule of law. Yes, I am a Hindu and I am patriotic, but I am also a constitutionalist and believe in the system of laws that our Constitution sets up. Thus, first and foremost, this piece is dedicated to understanding the law on the controversy surrounding “Padmavati”‘s release.
The system of laws set up a statutory authority called the Central Board for Film Certification that must issue certificates to films in accordance with law. Of course, people can challenge the decisions of the Censor Board before a Court of record in our country, but their judgment would be based on precedents, which, will also be analysed here.
The Background
The film portrays Deepika Padukone as Rani Padmavati who was first mentioned in a fictional poem written by Mallik Muhammad Jayasi in 1540 CE. The antagonist in the movie is a shown as Alauddin Khilji played by Ranveer Singh who is enamoured by the queen’s beauty and lays siege to Chittor to acquire her. In order to prevent being defiled by him, it is said that Padmavati and her companions committed mass suicide by burning themselves in a pyre to keep their honour intact. I assume the reader knows of the historic animus that exists between Hindus and Muslims in the fringe religious elements of Indian Society.
I have it from a good source that the initial dismay of the protestors i.e. a romance between Khilji and Padmavati does not exist in the film. The initial controversy was created due to a magazine in Allahabad that ran a picture of the actors who played the roles of Khilji and Padmavati, still in their costume, merely talking to each other. This prompted people to think that there is a romance between them when actually, throughout the whole movie, these two characters are never even in the same room together. This was the categorical statement made by the Counsel for Sanjay Leela Bhansali Mr. Rohan Lavkumar before the Hon’ble Gujarat High Court. The other objections of the protestors include things like Deepika Padukone’s dancing when noble ladies of those times wouldn’t dance for society. It’s laughable.
Thus, it isn’t inaccurate to say that the historical existence of Padmavati is itself in dispute. I understand that she may have existed and revere the sense of sacrifice and honour that women in those days were overcome with, when they in turn overcame their survival instinct to commit mass suicide in fear that they may become slaves of the invaders. It’s touching and grave. It’s also ironic though how “leaders” of modern India as well as modern day “Hindus” pay homage to a woman’s honour by threatening another woman with decapitation for practicing her vocation as an artist.
The Furore 
Initially, members of the fringe political group viz., the Karni Sena had announced a Rs. 5 crore reward for anybody who cuts of Deepika Padukone’s nose and beheads the director Sanjay Leela Bhansali. Thereafter, a BJP office bearer from Haryana said he would double the bounty on their heads to Rs. 10 crore. In a media statement, he said “I want to congratulate the Meerut youth for announcing Rs 5 crore bounty for beheading Deepika, and Bhansali. We will reward the ones beheading them, with Rs 10 crore, and also take care of their family’s needs.” BJP’s Surajpal Amu, the party’s chief media coordinator who made the announcement, also threatened to “break the legs” of Ranveer Singh, who plays the role of Alauddin Khilji. The BJP led Uttar Pradesh government led by Chief Minister Yogi Adityanath, has said it anticipates law and order disruption upon the film’s release. In Gujarat, the ruling BJP has asked the Election Commission to defer the release of the film till after the elections, which would be held next month.
The BJP’s Anil Jain, a senior leader from Haryana, said that though the ruling party is not in favour of the film being released, it does not support the sort of threat issued by Suraj Pal. Obviously, all of these threats are in violation of India’s penal laws. The Ruling party is just not doing enough to reign back their party members and re-affirm to the country that it stands behind the right of a film-maker to make movies rightly embellished for entertainment purposes. I believe that since it’s a not a documentary, it ought not to be held to an ideal where any deviation from empirical history is seen as a deliberate insult to a community.
Case-Laws
Now, let us turn again to the law for answers, for that is what we must concern ourselves with. For the law to take cognisance of the beliefs, customs and wishes of every sub-sect of every religion and give it the religious protection envisaged under the Constitution, is not feasible. Various Supreme Court decisions laid down the law to say that for a custom or a practice to have religious protection under our Constitution, it must form part of the religion’s core tenets and not just a fringe belief. Padmavati’s sacrifice is not Hinduism’s underlying philosophy. Our Constitution, which, adheres to equidistant secularism will not trigger state machinery to protect the sensibilities of any one religious identity.
Interestingly, while deciding the legality of the movie “Satyam, Shivam, Sunderam”, Justice V.R. Krishna Iyer (former Judge of the Supreme Court of India) wisely held as follows:
“Art, morals and law’s manacles on aesthetics are sensitive subject where jurisprudence meets other social sciences and never goes alone to bark and bite because a State-made strait-jacket is an inhibitive prescription for a free country unless enlightened society actively participates in the administration of justice to aesthetics. The world’s greatest paintings, sculptures, songs and dances, India’s lustrous heritage, the Konaraks and Khajurahos, lofty epics, luscious in patches, may be asphyxiated by law, if prudes and prigs and State moralists prescribe paradigms and prescribe heterodoxies.”
The Indian Judiciary has also quite unequivocally presented its opinion on the role of artists (of all kinds) in our society when the Bombay High Court was considering the legality of a movie called “Chand Bujh Gaya”; a feature film produced by Faaiz Anwar. The film dwells on the travails of a young couple -a Hindu boy and a Muslim girl – whose friendship and lives are torn asunder in riots in the State of Gujarat. The Hon’ble Judge held as under:
Artists, writers, playwrights and film makers are the eyes and the ears of a free society. They are the veritable lungs of a free society because the power of their medium imparts a breath of fresh air into the drudgery of daily existence. Their right to communicate ideas in a medium of their choosing is as fundamental as the right of any other citizen to speak. Our Constitutional democracy guarantees the right of free speech and that right is not conditional upon the expression of views which may be palatable to mainstream thought. Dissent is the quintessence of democracy. Hence, those who express views which are critical of prevailing social reality have a valued position in the Constitutional order. History tells us that dissent in all walks of life contributes to the evolution of society. Those who question unquestioned assumptions contribute to the alteration of social norms. Democracy is founded upon respect for their courage. Any attempt by the State to clamp down on the free expression of opinion must hence be frowned upon.”
Another decision of the Hon’ble Supreme Court in a case relating to a documentary film entitled “A Tale of Four Cities” will shed some legal light on the issue. The legendary Judge, Chief Justice M. Hidayatullah speaking for the Court held as under:
“We may now illustrate out meaning how even the items mentioned in the directions may figure in films subject either to their artistic merit or their social value over-weighing their offending character. The task of the censor is extremely delicate and his duties cannot be subject of an exhaustive set of commands established by prior ratiocination. But direction is necessary to him so that he does not sweep within the terms of the directions vast areas of thought, speech and expression of artistic quality and social purpose and interest. Our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read. The standards that we set for our censors must make a substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life and society with some with some of its foibles along with what is good. We must not look upon such human relationships as banned in toto and forever from human thought and must give scope for talent to put them before society. The requirement of art and literature include social life and not only in its ideal from and the line is to be drawn where the average moral man begins to feel embarrassed or disgusted at a naked portrayal of life without the redeeming touch of art or genius or social value.
If the depraved begins to see in these things more than what an average person would, in much the same way, as, it is wrongly said, a Frenchman sees a woman’s legs in everything, it cannot be helped. In our scheme of things ideas having redeeming special or artistic ideas having redeeming social or artistic value must also have importance and protection for their growth.
Sex and obscenity are not always synonymous and it is wrong to classify sex as essentially obscene or even indecent or immoral. It should be our concerned, however, to prevent the use of sex designed to play a commercial role by making its own appeal. This draws in the censor’s scissors. Thus audiences in India can be expected to view with equanimity the story of Oedipus son of Latius who committed patricide and incest with his mother. No one after viewing these episodes would think that patricide or incest with one’s own mother is permissible or suicide in such circumstances or tearing out one’s own eyes is natural consequence. And yet if one goes by the latter of the directions the film cannot be shown. Similarly, scenes depicting leprosy as a theme in a story or in a documentary are not necessarily outside the protection. It that were so Verrier Elwyn’s Phulmat of the Hills or the same episode in Henryson’s Testament of Cressaid (from where Verrier Elwyn borrowed the Idea) would never see the light of the day. Again carnage and bloodshed may have historical value and the depiction of such scenes as the Back of Delhi by Nadirshah may be permissible, if handled delicately and as part of an artistic portrayal of the confrontation with Mohammad Shah Rangila. If Nadir Shah made golgothas of Skulls, must we leave them out of the story because people must be made to view a historical theme without true history? Rape in all its nakedness may be objectionable but Voltaire’s Candide would be meaningless without Cunegonde’s episode with the soldier and the story of Lucrece could never be depicted on the screen.”
I can reproduce, in this piece, several such decisions that display our Judiciary’s progressive views on the rights of film-makers in portraying life through art. The above, however, I think serve us well enough to understand the same.
Whose right is it anyway?
Article 19 (1) (a) of our Constitution guarantees us the fundamental right of “Freedom of Speech and Expression” subject to certain restrictions such as:
 1) Security of State: Thus speeches or expression on the part of an individual, which incite to or encourage the commission of violent crimes, such as, murder are matters, which would undermine the security of State;
2) Friendly relations with foreign states: Not applicable to the present case.
3) Public Order: This ground was added by the Constitution (First Amendment) Act and signifies “that state of tranquility which prevails among the members of political society as a result of internal regulations enforced by the Government which they have established.”
4) Decency or morality: One would be hard pressed to justify the calls for people’s head to be chopped off as either decent or moral. 
5) Contempt of Court: Not applicable to the present case.
6) Defamation: A statement, which injures a man’s reputation, amounts to defamation. Since, this law gives you only a personal right to sue, unless the persons depicted in the movie came back to life and sued under the law of defamation, this is also not applicable.
7) Incitement to an offence: This ground was also added by the Constitution (First Amendment) Act, 1951. Obviously, freedom of speech and expression cannot confer a right to incite people to commit an offence. The word ‘offence’ is defined as any act or omission made punishable by law for the time being in force, which would include provisions of the Indian Penal Code relating to criminal intimidation etc. 
8) Sedition: Not applicable since this is a religious freedom issue.
(Emphasis supplied)
The Hon’ble Supreme Court in the case of Sakal Papers (P) Ltd. and Ors. vs. The Union of India, a Constitution Bench held that the only restrictions which can be imposed on the rights of an individual under Article 19(1)(a) were those which clause (2) of Article 19 permitted and no other. 
Therefore, no other restriction on the freedom of speech and expression are legal.
Conclusion 
If we forget rhetoric for sometime, I believe that the law on the issue settles the debate quite clearly. On even a perfunctory analysis of judgments of the Hon’ble Supreme Court itself (which under Article 141 of the Constitution, lays down the law for the country), it is quite clear that the movie ought to be green-lit with the creative license it deserves.
Thus, while the freedom of speech and expression of the makers of the film are protected under our  Constitutional scheme, the same is not the case for various elements of our country’s political leadership. Their speeches and media statements would squarely fall under the restrictions to freedom of speech and expression that are illegal. The perpetrators would consequently also be guilty under various provisions of the Indian Penal Code relating to incitement of violence, for which, complaints before the Criminal Courts can be filed.
The BJP’s response to the politicians making these inflammatory statements are weak and a disappointing vacillation. I was always proud of India’s rich culture of civil liberties, heterogenous demographic and its liberal discourse on religion. I’m no longer so sure.
– Shrinivas Bobde (23.11.2017)

 

 

 

 

 

 

 

 

 

America Trumped

Professor Lichtman, the man who predicted the last four decades of U.S. presidential elections successfully (including this one) has now predicted that Trump will not last his first term and is likely to be impeached. He bases his informed conjecture on the fact that a proven self-entitled blowhard like Trump, who is used to playing fast and loose with the law and getting away with it, is not now going to adorn a life of probity after getting electoral validation from the newly emerging dumbest developed country in the world. According to him, Trump will continue to run roughshod over the laws of the land as the “Billionaire for rural America”, a paradox that is so unbelievable, that it really shouldn’t be believed. A great point Prof. Lichtman makes is that the inclination to believe that President Trump will somehow be different than the ignorant Trump during his candidacy is entirely misplaced because people, fundamentally, don’t change. The professor likens it to a marriage and scoffs at people who bank on their partners or politicians turning their flaws around post some event that literally has nothing to do with personality development. i.e. marriage and electoral victories, respectively.

The cultural fight between the right and the left wing of the American political theater amazes me. The left liberals are just patently right on the major partisan issues that holds American imaginations and political thoughts i.e. fiscal policy, foreign policy, immigration laws, abortion laws, gay rights, gun control, minority rights, civil liberties, the War on Drugs and the big game changer: Climate Change. Political hacks on the right in the USA have somehow browbeaten scientists on climate change, economists on “trickle down economics”, women on abortion laws and black rights activists on race relations to create a situation where an expert opinion doesn’t mean anything in politicking that’s mainly fact free. Donald Trump has pliantly subscribed to each and every stand of the republican party on these issues except maybe on foreign policy.

I have been nurturing a morbid curiosity with the way Americans fell prey to a woefully unprepared demagogue’s empty promises while riding on popular sentiment against the establishment. That curiosity has now given way to the horrific realisation that a lot of progress made on these issues by the USA’s Democratic dispensation of the last 8 years and since decades before that, can be summarily undone if his dog whistles on race relations and minority rights brings forth America’s worst impulses. Once the the Alt- right, the Ku Klux Klan, the white supremacists and the Neo-Nazis come out unapologetically, it’s going to re-normalize the abhorrent and possibly portray them as if they have a legitimate political cause like everyone else, which ought also be heeded.

The Environment

Let’s begin with something we all have a stake in-the World. Trump wrote on Twitter that “Climate Change is a hoax perpetuated by the Chinese to make the american economy non-competitive”. This is a startling opinion from someone who routinely calls himself “smart”. According to NASA, at least 97 percent of actively publishing climate scientists agree that “climate-warming trends over the past century are extremely likely due to human activities.” After his election, Trump told Chris Wallace that “nobody really knows if Climate change is real”. So “Climate change is a hoax” is going to be Official America’s policy after the World slowly got an American President to say  “I refuse to condemn your generation and future generations to a planet that’s beyond fixing.”- Pres. Barack Obama 

Trump’s pick for Secretary of State is Rex Tillerson, the CEO of Exxon Mobil: a massive multi-national oil company has routinely used lobbyists to buy the Senate against passing legislation curbing climate change (through carbon emissions tax on corporations) or investing in alternate energy development. Tillerson is also very close to Russian premier Vladimir Putin and has received the “Order of Friendship” from the Kremlin. This makes things all the more creepy since the CIA has now confirmed that the Russians didn’t just try to undermine US presidential elections but actively support Donald Trump by releasing the Democratic National Convention’s emails even though both were parties’conventions were hacked. Trump in fact, also publicly, in a press conference invited “the Russians” to hack the DNC and give all the information to the US media who would “love them for it”. A President who has unacknowledged shady ties to America’s foreign enemy adds amazingly to the theater of it all.

America’s involvement in the global conversation about Climate change is very important because the US is the biggest consumers of fossil fuels and it has been to the World’s frustrations that America accepting climate change looks like a child being force fed broccoli. Trump has threatened to do away with the EPA (Environment Protection Agency) because it imposes “too many regulations” on corporations and also undertook to withdraw from the Paris Agreement. The Paris Agreement, is an agreement within the United Nations Framework Convention on Climate Change (UNFCCC) dealing with greenhouse gas emissions mitigation.

 

Moving on, Trump’s pick for the man to head the EPA is Scott Pruitt, the former Attorney General of the oil and gas rich state of Oklahoma who has spent most of his career battling the EPA. He himself believes that the debate on climate change is “far from settled”. Trump released a statement in support of his appointment stating “For too long, the Environmental Protection Agency has spent taxpayer dollars on an out-of-control anti-energy agenda that has destroyed millions of jobs, while also undermining our incredible farmers and many other businesses and industries at every turn.”

Even the Chief Of Staff of the Trump administration’s White House has recently stated that Trump’s position as well as his own is not going to change, that Climate Change is a “bunch of bunk”.

Make no mistake about it, this systemic vilification of environmental agencies and/or treaties and them being seen as a roadblock to corporate America’s interests is going to worsen the ongoing environmental crisis and it’s not a far cry to say that soon we will all be neck deep in water, figuratively and literally.

Make me poor, but make America Great Again

I have always been fascinated about how Republicans get their base supporters i.e. the average red-neck right winger to vote against his own economic self-interest. The Republicans or the Tea Party have never been for the middle-class or for the poor. They don’t want a “big government” for funding programmes that are a safety net for the countries’ poorest; preferring instead to call beneficiaries of such schemes- “lazy moochers”. Which is really weird, because again, its the Republicans who have always preached biblical piety and constantly want to be assured from their candidates about how much Jesus guides their decisions and life. Which becomes further weirder because it’s right there in the Bible, Matthew 19:24:

“Again I tell you, it is easier for a camel to go through the eye of a needle than for someone who is rich to enter the kingdom of God.”

 Jon Stewart once asked a great question to Bill O’Reilly in a debate, which is more relevant now that Trump wants to cut 20 billion dollars from the Food stamp programme, that literally feeds the poor:

“Why is it that if you take advantage of a tax break and you’re a corporation, you’re a smart businessman, but if you take advantage of something you need to not be hungry, you’re a moocher?”

Americans still cringe at the word socialism, as if they are still stuck in a Cold War context where the Berlin Wall is still standing and the USSR still exists. I didn’t know socialism in the way Karl Marx thought of it- as a transition state with end goal of an entirely Communist State-as even a problem anymore. And Socialism in the general sense means every civilized country is inherently socialist because they all have some or other forms of income redistribution. Donald Trump’s carrier deal is socialist because it is pivoted around tax breaks to the tune of 7 million dollars for the corporate. Medicaid, social security, food stamps, they are all socialist programmes. Get over it America, Communism isn’t still a geo-political problem anymore. Bernie Sanders ran on an unapologetically socialist platform and he paid the price for it with the fear mongering right wing media.

First lets look at one of the most basic indicators of who amongst it’s people, the Government is really working for: the Tax code. According to Forbes, Trump’s tax plan will slash corporate taxes from 35% to only 15% losing thereby, 2.6 trillion dollars over 10 years. Other estimates peg it at a loss of 10 trillion dollars over 10 years. Only 1 out of 9 dollars of federal revenue are going to come from corporate taxes when earlier (sixty-five years ago) it was 1 out of every 3 dollars. Trump also plans to cut the tax rate on those offshore profits from 35% to just 10% on cash and only 4% on other assets. So Trump’s ties that are made in China (the country he is manically obsessed with but peculiarly, not with any decipherable value oriented way) will now pay less in taxes. Going on, for hedge fund owners and people who own “pass-through entities”, Trump plans to cut their taxes by two-thirds, which is to just 15 %. He also plans to do away with the Federal Estate Tax and replace it with a “capital gains tax” on the assets when the heir decides to sell the inherited property and not when the deceased passes away.

According to another Forbes report:

“If estate tax repeal happens, it would be a tremendous gimme to the rich (including eventually Trump and his family). In tax year 2015, just 4,918 estates paid $17 billion in estate taxes (less than 1% of federal revenue). More than a third was raised from the richest of the rich—the 266 estates valued at $50 million or more brought in $7.4 billion to the Treasury.

All of this is justified by something the Republicans call “trickle down economics”. So like the Climate change debate and the scientific community, most economists are ad-idem on the issue of “trickle down economics”- simply stated- it doesn’t work or that it works only in theory. Corporations are not benign overlords whose only motivations are to provide employment to the people and pay taxes that help build the nation. The only thing Corporations care about are profits and how to lawyer the tax code to pay as little taxes as possible. This is something Trump confirmed about himself while calling himself a “genius”for avoiding paying federal taxes for a decade because he carried forward a 900 million dollar loss in his tax papers. His tax attorneys however, came on record and said that Trump didn’t know anything about his own taxes or the tax code and would simply sign whatever they put in front of him.

Trickle down economics is the same supply-side economical voodoo that republicans have sold their intellectually challenged base so that they can justify their fiscal policies even in the the land where the top 1% own 90% of the country’s wealth.

The American Supreme Court through 200 years of jurisprudence has now irredeemably confirmed its belief that Corporations are people, with the same inalienable rights. This has not helped American policy making because Corporate freedom of speech, according to their Apex Court includes the right to have an uncapped influence on elections through money (Re: Citizens United vs. FEC). What makes matters worse is that all this money lost in giving tax breaks to the richest persons and corporations will have to be generated on the backs of middle-class America and further misguided attempts at resource-capture through invasions while ostensibly trying to forcefully import democracies in other countries in an increasingly volatile geopolitical environment, which will further add costs.

The Fairer Sex

Hillary Clinton isn’t the best female candidate but at least she was qualified. I would have preferred Elizabeth Warren personally speaking, but the US really showed the world it’s collective misogyny and sexism when  Trump after literally admitting, on tape, to leading his sex life by grabbing women by the p****y without consent, because he is “famous“, and didn’t suffer electorally. Not having a female President for 50 years is fine, 100 years; weird but never once in its existence is just downright shameful.

His comments on his own daughter Ivanka’s body and her sex appeal are cringe worthy. He once openly and loudly mused about answering “Sex?” to a question posed to him about what is common between him and his daughter, Ivanka. On the View, Donald Trump said, “Although she does have a very nice body. I’ve said, perhaps if Ivanka wasn’t my daughter, I’d probably be dating her”. 

A federal Judge has considered there to have been enough evidence to proceed in a suit filed by a Plaintiff who has accused him of raping her when she was just 13 years old. This allegedly happened at party thrown by his “good friend” John Epstein, a convicted sex offender and a billionaire who is known for his pedophilia. Epstein’s private plane was nicknamed the “Lolita express” for its infamous sex orgies with minors as told by people who have been there. Donald Trump’s own quote about his friend is more telling (as always):

“I’ve known Jeff for fifteen years. Terrific guy, He’s a lot of fun to be with. It is even said that he likes beautiful women as much as I do, and many of them are on the younger side. No doubt about it — Jeffrey enjoys his social life.”

The Plaintiff in the case says “Trump raped her when she was 13-years-old and forced her to engage in sex acts by threatening to harm her and her family,” notes the Independent UK. “She claims the alleged abuse took place over a four-month period at underage sex parties held in New York City in 1994.”  Epstein was also named for alleged sexual misconduct and threats.

John Epstein’s deposition in 2010 according to Vice news, suspiciously led to him pleading the fifth when a lawyer who represented an underage victim of Epstein asked him a very specific question:

Q: Have you ever had a personal relationship with Donald Trump?
A. What do you mean by “personal relationship,” sir?
Q. Have you socialized with him?
A. Yes, sir.
Q. Yes?
A. Yes, sir.
Q. Have you ever socialized with Donald Trump in the presence of females under the age of 18?
A: Though I’d like to answer that question, at least today I’m going to have to assert my Fifth, Sixth, and 14th Amendment rights, sir.

Another anti-woman stance of Trump is on abortion. Look, women should be able to govern the decisions related to their own bodies. Some right wingers in the USA, more famously Pat Robertson and the Late Jerry Falwell even said that  rape victims who are impregnated by such horrible events must recognize it as the “will of god“and ought not to be allowed to abort. Donald Trump during the election campaign suggested that their should a “punishment” for women who decide to abort their babies and then proceeded to spout off nonsense about how some abortions are done post-delivery. When asked about Roe v. Wade, the Supreme Court decision on abortion whereby they ruled that the right to self-determination forms a part and parcel of the Right to Privacy under the Due Process clause of the 14th Amendment to their Constitution, Trump said he would appoint Supreme Court Justices that would be pro-lifers and try to reverse the decision to give back to the States, the right to legislate on this issue. In the final presidential debate held on 19th October 2016 in Las Vegas, this was the exchange between Chris Wallace (the moderator) and Donald Trump:

Trump: I feel that the justices that I am going to appoint — and I’ve named 20 of them — the justices that I’m going to appoint will be pro-life. They will have a conservative bent.

Wallace (to Trump): But what I’m asking you, sir, is, do you want to see the court overturn — you just said you want to see the court protect the Second Amendment. Do you want to see the court overturn Roe v. Wade?

Trump: Well, if we put another two or perhaps three justice on, that’s really what’s going to be — that will happen. And that’ll happen automatically, in my opinion, because I am putting pro-life justices on the court. I will say this: It will go back to the states, and the states will then make a determination. 

I don’t know if Trump genuinely believes that women should be “punished”for aborting their child or if he just said that to appeal to the right-wing bible pounding conservative republican base. Whatever the motivation, demagoguery is inexcusable when it comes to these issues, which even right-wingers thought of, as a settled issue in favor of the progressives.

Race Relations 

Donald Trump is going to appoint Jeff Sessions to the post of Attorney General. The Attorney General heads the Justice Department which is an Executive branch of the Federal Government, and is in charge of enforcing and administering the law in that country. So, who is Jeff Sessions?

He is someone who, in 1986 President Reagan had nominated to be a Judge of the U.S. District Court for the Southern District of Alabama, but testimonies of his outrageous racism scuttled his appointment.  A lawyer who works in the Department of Justice, Mr. J. Gerald Hebert, testified that Mr. Sessions had called the  National Association for the Advancement of Colored People and the American Civil Liberties Union as  “Un-American” and “Communist inspired“. He also “joked” that “he was okay with the Ku Klux Klan till he found out they smoked pot”.  He was also accused of having habitually called a black U.S. Attorney “boy” and in my opinion the most telling comment made by him was against a white civil rights lawyer, calling him “maybe a disgrace to his race” for representing so many black clients.

So Trump’s pick for Attorney General is someone who was too racist for Americans all the way back in 1986 (only 21 years after the abolishing of Jim Crow laws in the USA) nominated when there was a strong Republican dispensation in the White House. He also made the statement “Good people don’t smoke pot”and romanticizes the “War on Drugs“, where all empirical data has shown, is just another way for the systematic subjugation of minorities in America, more particularly African Americans through policies like “stop and frisk”. Sessions also became only the second nominee to the federal judiciary in 48 years whose nomination was killed by the Senate Judiciary Committee.

The War on Drugs has increased an ever-expanding privatized Jail system in the US that has contributed to the shameful statistic which shows that the United States has only 5% of the World’s population but is home to 25% of the world’s prison population. Black people in the US are also 3.7 times more likely to be arrested for say, marijuana consumption and possession than whites even though the rate of usage is the same. So it wasn’t just a War on Drugs, it was an extension of the Jim Crow era but through  selective implementation of the law. “For my friends anything, for my enemies the law”- as famously said by Oscar Benavidez (former President of Peru) albeit in another context.

To exacerbate the injustice of the War on Drugs, while Nancy Reagan famously said “Just Say NO” and through the 80’s when the Official America’s anti-drug machineries and prison systems were getting ramped up, the US was at that time one of the biggest movers of drugs, including  type A heroin (from Laos), cocaine (from Corsican mafia families) and marijuana (Pakistan) from around the world due to the Hughes-Ryan Amendments that were passed in Congress in the year 1974 which required the CIA to report the “description and scope” of covert operations “in a timely fashion” to eight congressional committees. They used narco-money to fund their global machinations against the “Evil Empire” to avoid answering to the legislature while heroin and cocaine moved by them was ending up in the USA and minorities were being convicted disproportionately on drug charges.

Donald Trump’s more renowned racially charged dog whistle was when he headed the “Birther” movement which essentially called into question, the birthplace of President Barack Obama, suggesting that he was actually born in Kenya thereby being constitutionally disentitled to be President. He maintained this stance even after the President released his formal State of Hawaii Birth certificate by then saying he wanted his “long form” birth certificate and attempted to cast a shadow of doubt about the general genuineness of the released birth certificate. This, even though the Governor of the State of Hawaii at that time Linda Lingle, a Republican, said it was not fake. He later went on to even ask for his College records, the implicit suggestion being that a Black man is obviously not being truthful about his stellar college records.

Trump has appointed his former Chief Executive Officer of his campaign Steve Bannon to be his Chief Strategist in the White House after becoming President-Elect. Steve Bannon has been a controversial appointment because he was the Executive of Breitbart News which regularly published overtly racist, anti-semitic, anti-muslim, misogynistic and anti-minority material. During the vociferous election campaign, Breitbart called itself a “platform” for the Alt-right movement-a racist aggressively right wing online community that is now gaining steam in the US. He is also a famous misogynist with gems such as “Would You Rather Your Child had Feminism or Cancer?” , “Birth Control Makes Women Unattractive and Crazy” and “There’s No Hiring Bias Against Women in Tech, They Just Suck at Interviews.” as headlines in Breitbart.

The Guardian in their piece about Steve Bannon asserts that he is someone who has stood for “traditionalism” but as the article titled “Steven Bannon wants to destroy secularism” says- his traditionalism is informed by Julius Evola –”one of the intellectual godfathers of European fascism who promoted a spiritual type of racism – whose reception in Russian under Putin has inspired a traditionalist movement from which Bannon believes there is much to learn.

Trump also suggested that the Central Park Five, the accused in a famous criminal case almost 30 years ago involving five black and hispanic accused who were later exonerated due to the actual DNA evidence, were still guilty. The man who had committed the murder Matias Reyes, in 2002 confessed to the crimes and the DNA evidence proved that he was the perpetrator.

Max Islamophobia 

His other racist and ignorant tirades are directed against Muslims. Now, this is an easy one for most right wing white political leaders around the world. It’s a tired rhetoric that’s increasingly contributing to the theological polarization of the world. Let us forget for a moment that it was America with it’s “Operation Cyclone”, at the height of the Cold War days that created a centralized pan-global political Islamic jihad and provided it with a militant agenda and a rigid ideology to battle the atheist and “infidel” Communist Russians, during the Afghan War. This was the literal birth of the Taliban and the Al-Qaeda (for a better understanding of this, I highly recommend the book “Good Muslim, Bad Muslim by Mahmood Mamdani).

President Reagan and the Zia Ul-Haq administrations islamicized the entire region to fight the Red menace and then Official America later suffered the blow back of the same infrastructure it created.  First it was the Red menace, now it’s the green menace. America needs a threat to perpetuate its military-industrial complex and historically, Republican Presidents have been most prone to pressing the greatest military power on earth into service, to service it’s war based economy. Judging by the amount of lobbyist in his Transition Team, Trump is as likely to be moved by the powerful pleas of big defense corporations as every other American President. He doesn’t want to drain the swamp, he wants to rule it.

Trump has not helped matters much by initially endorsing waterboarding of terrorists or “worse”, calling for America to kill the terrorists’ families and torturing perceived enemy combatants even if it doesn’t help US with information. These promises have spurred many military men and women to wonder if they would obey a presidential order at all, if it came from Trump. Even the former CIA Chief during the hawkish Bush regime Mr. Michael Hayden said-

“All of us in uniform give great deference to the elected officials of the United States. We want to follow their orders, but, there are some cases and I’m afraid, Mr. candidate Trump has suggested some cases, where if he did those things as president, that he said he would do while he was a candidate, there would be a lot of people in an American military uniform, myself included, who would simply have to say, ‘that’s not just gonna happen, sir. I’m sorry. We won’t do that.’ And that would create torque, that would create that crisis in civil-military relations.”

Now that Trump is President-Elect, he had asked his policy advisors to draft a law that will essentially create a registry of immigrants from Muslim countries. The only time this was done before was right after 9/11 when the Bush administration set up a database to track visitors from 24 Muslim countries and North Korea. North Korea’s incongruous presence obviously used as a tool to repel attacks of religious discrimination. I don’t know about American jurisprudence, but the Courts in India would have a tough time looking away if the State, as a policy, begins tracking people of a particular religious denomination for extra scrutiny not based on any intelligible evidence of a possible crime being committed.

Attacks against Muslims in the USA are on the rise since Trump’s election and I don’t think Muslims are going to be have the best time of it all getting redressal from Trump’s Department of Justice if it ever becomes a nationwide phenomenon.

Trump has promised to finish ISIS. I have, in earlier posts bemoaned America’s interventionist foreign policy and their inability to sit one out. The first and basic thing America doesn’t realize is that these are localized tribal matters. Yes, even after the advent of Nation-States. Some right wing politicians have had retarded premonitions about ISIS in California, in an invasion sense. Trump doesn’t understand nuanced sectarian, religious and socio-cultural issues that make up the complex question posed as to the future of the middle-east, to even have an answer for it.

Denouement

It’s not even about how misogyny, racism, bullying, mean and low demagoguery is now normalized in mainstream politics in America, but that Trump stands on sides of Policy talk that are just patently wrong and will get USA and this world into a lot of trouble.

This is possibly the decline of the “American Empire” and the electoral college is solely responsible for it, which, is only a small absolution for the rest of the Country that even considered this “dangerous clown” as aptly named by Trevor Noah (the host of the Daily Show).

I think, though, that Trump himself summed up this year’s election in February 2016, while delivering a victory speech following the Nevada caucuses, Donald Trump proclaimed his love for the various demographics that led him to victory.

As part of that list, he exclaimed, “I love the poorly educated.

Institutional Reforms by the Supreme Court

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The Supreme Court and Institutional Reforms

There have been cases where the Supreme Court of India has been called upon to conduct reforms within constitutional and statutory bodies. It is apparent, as I want to demonstrate in this piece that the Courts have had a distinct and consistent insistence to the manner in which such reforms are to be undertaken. The Supreme Court in S.C. Advocates on Record Assn. vs. Union of India (“Judicial Appointments case”) read down Articles in the Constitution itself to give “primacy” of opinion to the Chief Justice of India along with four senior most members of the Supreme Court to decide the transfers and elevations of Judges to the higher judiciary and thereby also significantly minimizing the role of the executive and the legislature in such appointments. In Prakash Singh vs. Union of India (“Police reforms case”), the Supreme Court passed directions under Article 142 (explained hereinafter) to all State Governments, to implement Police Reforms recommended by various Expert Committees by way of reports that never came to be passed as laws by the political class. Lastly, in the case of T.S.R. Subramanian vs. Union of India (“Bureaucrat reforms case”), the Court, similarly issued directions to conduct large scale bureaucratic reforms within the country. Even on a perfunctory scrutiny of these Judgments, a distinct philosophy of the Court on how institutional reform is to be achieved can be observed. In this piece, I will attempt to cull out this philosophy and its basic precepts from each of these judgments and to conclude that the Court has historically, viewed Political inclusion and interference in the functioning of normatively independent institutions as the main malady afflicting the integrity of such bodies.

Interestingly, in the cases involving Judicial Appointments, the lead petitioner was an Advocate’s Association, in the Police Reform case the lead petitioner was Mr. Prakash Singh who was Chief of the Uttar Pradesh Police, Assam Police and the Border Security Force and finally, the lead Petitioner in the Bureaucrat reforms case was Mr. T.S.R. Subramanian who served in the IAS, where he held the post of Cabinet Secretary (the highest post in the IAS) as well as the post of Secretary in the Ministry of Textiles. So the call for change was from people who had worked within these systems and could vouch for the urgency in implementing change. This also demonstrably shows the failing of our democratic systems whereby meaningful policy changes and reforms are obtained more effectively from a Court of law exercising its extraordinary jurisdictions rather than by the Legislative bodies.

Further, the Bureaucratic reforms case as well as the Police reforms case are both instances where the Court almost simply forced the Government to implement already existing reports by Expert Committees who all resoundingly signalled towards the urgent need for such reforms, which due to lack of political will and general legislative lethargy, never saw the light of day.

Article 142 and the Supreme Court

The Supreme Court of India has plenary powers under Article 142 of our Constitution to pass any orders it deems fit to do “complete justice” in a case to of course, its judicial and subjective satisfaction, even if there is no express law to support the same. The bare Article reads as follows “The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe”

The Supreme Court has been using this power, read along with its power under Article 141 (the law laid down by the Supreme Court is law of the land) to issue guidelines by way of their Judgments, which have the force of law, pending appropriate legislations being enacted by the State Governments. The Court has used this power to direct large scale reforms of the Police and Bureaucracy in the manner seen here.

Police Reforms case

In 2006 the Supreme Court issued directions under Article 142 of the Constitution to implement the police reforms recommended by various committees since 1977 onwards. The main thrust of the reforms suggested by the reports was to prevent political interference in police functions so as to prevent the indiscriminate application of the laws of the land which would, consequently, lead to violation of the rights of the citizens. The Court took the view that, “Having regard to (i) the gravity of the problem; (ii) the urgent need for preservation and strengthening of Rule of Law; (iii) pendency of even this petition for last over ten years; (iv) the fact that various Commissions and Committees have made recommendations on similar lines for introducing reforms in the police set-up in the country; and (v) total uncertainty as to when police reforms would be introduced, we think that there cannot be any further wait, and the stage has come for issue of appropriate directions for immediate compliance so as to be operative till such time a new model Police Act is prepared by the Central Government and/or the State Governments pass the requisite legislations. It may further be noted that the quality of Criminal Justice System in the country, to a large extent, depends upon the working of the police force. Thus, having regard to the larger public interest, it is absolutely necessary to issue the requisite directions.”

The ruling Government at the time viz., UPA-II filed a review petition before the same Court challenging the Police reform judgment as being militantly activist and took the view that obviously policy oriented matters ought to remain within the legislative prerogative and authority of the Government. This argument however, was dismissed and the Judgment attained finality.

Since, here we are only concerned with the directions issued that curb political power exercised on the State police, I will only discuss those that have such an effect. The Court directed all states to set up a body known as the State Security Commission which was “to ensure that the State Government does not exercise unwarranted influence or pressure on the State police” and made the recommendations of this body binding on the State Government. The Supreme Court directed that the composition of the State Security Commission was to be that of among the composition suggested by three different committees i.e. the Rebeiro Committee, the Soli Sorabjee Committee and the NHRC Committee. The members of this body included Judges of the High Courts, Leaders of Opposition, Representatives from the ruling Government and Senior Police officials themselves. The Court made the recommendations of this body binding on the State Government.

The Court also directed all States to set up a Police Establishment Board that would decide all transfers, postings, promotions and other service related matters of officers of and below the rank of Dy. Superintendent of Police. The body, importantly, is to be a departmental body consisting of Senior Police officers. So not unlike the Judges’ case, this judgment sought to give back, the real and pivotal power of transfers and postings back to the Police. For the police to not be completely in the hands of the Home ministry was a drastic but desperately required reform. The State Governments resisted this idea for a long time and implementation of these reforms was so bleak that the Supreme Court had to constitute the K.T. Thomas Committee to oversee the implementation of its own directions. The Supreme Court also adorned the Police Establishment Boards with the mandate to receive representations from officers of the rank of Superintendents of Police and above regarding their promotions, transfers, disciplinary proceedings or their being subjected to illegal to irregular orders. This was also a powerful tool that the Court gave to the Police that directly militated against Political control in discharge of police functions.

The Supreme Court also directed the States to pass an appropriate legislation in their legislative assemblies that would fix the tenure of the Director General of Police to a minimum of two years irrespective of his age of superannuation. His appointment, is to be done by the State Government amongst three senior members of the Police department empaneled for that purpose by the Union Public Service Commission. The role of the UPSC as directed by the Court, was to take away the earlier unfettered power of the State Governments to appoint the Director General of Police based on considerations entirely extraneous to the personal requirements and attributes needed for the top job.

Lastly, the Court also directed that a State Police Complaints Authority and a District Police Complaints Authority be set up to hear complaints against police personnel in cases including custodial injury , death and rape, arrest or detention of citizens without prescribed procedure. Since these bodies are to be headed by members of the higher Judiciary, the Court has entrusted its own colleagues to proceed against police officers rather than the home ministry taking actions against errant officers in such cases. Here too, we see an inherent distrust of the Home Ministry by the Court in adjudicating and effectively disposing off of such cases against the Police.

The Bureaucrats Reforms case

Not unlike the Police reforms case, the Petition in this case was also filed by a few eminent retired civil servants “highlighting the necessity of various reforms for the preservation of integrity, fearlessness and independence of civil servants at the Centre and State levels in the country.” Even here, the Petition was filed on the basis of various reports and recommendations made by several committees appointed for improving the public administration.

Prior to this case, a committee called the Hota Committee had by way of a Report, recommended that an independent Central Service Board, having a statutory character, be constituted for at the Central and the State level for making recommendations on transfers of Civil Servants to the Political Executive so as to prevent them being subjected to illegal or irregular transfer orders. Obviously, the mischief sought to be prevented was to protect Bureaucrats from being transferred for not toeing the line or other such unwholesome reasons. The Court while considering whether to implement this reform, in this case did not feel that it had the authority to issue a positive direction to constitute an independent Civil Service Board without executive control, to be run from outside the Government, as recommended by the Hota Committee. The Government through it’s Additional Solicitor General had already expressed its reservations about such an Order being passed given the facts that the Constitution or the laws enacted by the Central and State Government do not envisage such a situation. The other apprehension of the Government was that since, the Politicians are answerable for the functioning of the Government to the people; any fetter placed on controlling the bureaucracy would hamper such responsibility. So eventually, the Court issued directions to constitute Central and State Service Boards comprising of high ranking in-service technocrats (to bring in more professionalism expertise and efficiency) with a Cabinet Secretary at the Centre and the Chief Secretary at the State Level, whose recommendations, especially relating to transfers, postings and disciplinary actions etc. to the Political executive could only be overruled by reasons recorded in writing.

The Court also undertook to remedy the issue of Civil Servants facing transfers and being posted at “the whims and fancies of the executive head of political and other considerations that are not in the public interest”. Fixing of their tenure would certainly help in such situation and would also mean that a member of the Bureaucracy can achieve their professional targets since “repeated shuffling/transfer of officers is deleterious to good governance”. As such, the Court issued directions to all states and the Centre to ensure that there is a minimum tenure of service for various civil servants.

Judicial reforms

Recently, the Supreme Court in the 4th Judges case, as its being called, struck down the National Judicial Appointments Commission Act and the 99th Constitutional amendment with respect to the same. As already mentioned, it was the Supreme Court, which, in 1993 first chucked out the political executive from judicial appointments on the ground of judicial independence even in the face of allegations from the strict constructionists about going against the letter of the Constitution. It was again, in 2013 that this fight for relevance in judicial appointments to the High Courts and the Supreme Court came back to the forefront. The BJP ran with a UPA-II bill after getting elected that essentially sought the involvement of civil society and the political executive in the committee that was to be adorned with the final say in matters of transfers and appointments. Obviously, this law was challenged before the Supreme Court even before it came into effect, leading to the Supreme Court calling it premature and asking the country to wait for the next Government vs. Judiciary confrontation for longer. After it was properly challenged, the Supreme Court began the tedious and long process of judicially examining the law.

The drama in Court during the hearings of this case weren’t disappointing at all. The Attorney General literally censured the Supreme Court about appointing corrupt judges in the past and the Supreme Court pulled no punches in its responses. The Judgment itself however, was a fell blow to the government’s aspirations to have some say in the matter of appointments. The Constitution Bench of the Supreme Court struck down the NJAC law as being unconstitutional and contrary to the doctrine of basic structure which ensures judicial independence. Justice Khehar, the lead judge in the case wrote, “It would be of utmost importance therefore, to shield judicial appointments, from any political-executive interference, to preserve the ‘independence of the judiciary’, from the regime of the spoils system. Preserving primacy in the judiciary, in the matter of selection and appointment of judges to the higher judiciary would be a safe way to do so”. The Bench thereafter, went on to express their grave reservations about in fact, giving the government any say in judicial appointments and held that to involve them would be to allow them to pick their “favourites  ”. And so, the 1993 system continues.

Cricket Reform

After conducting Police, Bureaucratic and Judicial reforms, the Supreme Court then turned its eyes on the next most important thing in our country- Cricket. It took unto its docket, a Petition arising out of an appeal from a judgment of the Bombay High Court which took a prima facie view that the BCCI rules have been flouted to favour a few important persons within and outside the BCCI machinery. This gave the Supreme Court an opening to go into various aspects of BCCI’s opaque functioning and took upon itself the onerous job to overhaul the entire Cricket administration. The Court appointed the Lodha Committee, headed a former Chief Justice Of India Mr. R.M. Lodha to recommend how this overhaul should be done. When the BCCI did not accept the various reforms recommended by the Lodha Committee, the Supreme Court passed an Order directing them to comply. One of the main reforms was the barring of any government minister or bureaucrat from being a cricket administrator or holding a post in the BCCI. So, folks, I don’t think I’m being a cherry picker when I say the Courts don’t like politicians much, or at least not in anything except politics.

Conclusion

There has been a lot of talk about judicial activism and policy paralysis because of it. It’s always desirable for a country to have an informed citizenry that uses its parliamentary and legislative assemblies to impact policy and social change. It’s not impossible for the Courts to sway to perils of the Messiah complex, which would be as dangerous.

However, as the Political class undertook the slow dismantling of the country’s notions of what statesmen are meant to be, the Judiciary took up the challenge and became the activist’s sweetheart. Filing a petition in Court is now the easiest way of policy change or to implement existing law. As far as Judges themselves go, it could be easily argued that the expansion of their jurisdictions in various areas of law has almost always been necessitated by the State’s apathy in matters of governance. This however cannot be a solution; it’s a workable arrangement while India figures out how to suitably hold its politicians to better standards. The exclusion of politicians from bodies or the curtailment of their functions in such bodies can only solve portions of the problem. The bigger problem of misgovernance and corruption need to be addressed at the societal level because your institutions are as good as the components that drive them.

Part-I “Non- Human Persons”

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Animal rights has been the next logical spiritual conversation we are having now as civil society and every legislation, judge-made law and policy has, recently, been conforming to correct notions of animal welfare. In this piece I want to congratulate the Government of India for its revolutionary role in animal jurisprudence through the Ministry of Environment and Forests. The actions of both this bodies, analysed hereinafter took the conversation further and concluded by giving us new tenets of animal activism that can reshape the karmic cycles of our times.

Part-I: The Non-Human Persons Doctrine

The first world has already realized now that aquatic animals such as dolphins, whales etc. ought not to be imprisoned in Sea World type pools just to be amusing to us for a couple hours. Apart from being patently selfish and unfair, it is now a settled question of animal behavioural science that these animals go through untold suffering while imprisoned in these pools. Studies can now, empirically tell us of the darkness that envelopes the mind of a caged sentient being that’s capable of astounding levels of emotional intelligence. The collateral damage has also been human life, since handlers bore the brunt of the animals’ frustrations. The killing of veteran handler Dawn Bracheau was the third death involving the Killer Whale Tilikum of Sea World. I recommend the movies “The Cove” and “BlackFish” for a more intricate understanding of the issues involved.

India’s first “Sea World” was slated to release in the year 2011 wherein the State Government of Maharashtra had approved a Rs. 509 crore project to build India’s first oceanarium here. According to a NDTV report, it was slated to be the second major theme park in the State after Essel World, the ninth in the country, and was projected to earn Rs. 309 crore by the end of 10 years. The project was sent for an “in-principle” approval to the Central Government.

Now, we all know of how easily vested interests can compromise institutional and state integrity in a third world circumstance. Policy can be determined by considerations entirely irrelevant to morality or good governance. But I proudly present to you, an instance where the system worked for something as abstract (in a realpolitik worldview) as dolphin welfare.

In May 2013, the Ministry of Environment and Forests, a central body, issued a Government Circular that bans:

“any person / persons, organizations, government agencies, private or public enterprises that involves the import [and] capture of cetacean species to [use] for commercial entertainment, private or public exhibition and [other] interaction purposes whatsoever.”

And in a statement released by the Central Zoo Authority, this was said, and said so well:

“Cetaceans in general are highly intelligent and sensitive, and various scientists who have researched dolphin behaviour have suggested that the unusually high intelligence compared to other animals means that dolphins should be seen as ‘non-human persons’ and as such should have their own specific rights and it is morally unacceptable to keep them captive for entertainment purposes.”

I am not a big believer in the notion that the State is necessarily a true representation of either our moral compass or our human aspirations but I for one, was pleasantly surprised at how a rich Multinational Corporation’s ambitions to introduce Sea World in India was so eloquently scuttled by an enlightened idea of a few officers within the system, backed by the power of the State machinery. I don’t know who within the system worked on this file, or how they were raised, but there had to be money on the line in allowing the project but they didn’t- because they weren’t going to let Sea World happen in India… not on their watch. Respect.

 

The Idea of India and the Beef Ban

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On 26th January 2015 I witnessed the Republic Day parade for the first time. I saw the twenty one gun salute to the President of India by the President’s Bodyguard,the intense ceremony surrounding the arrival of our Prime Minister and the Indian Army’s regiments intermittently issuing their respective war cries (like“Ayo Gorkhali”of the Gorkha Regiment translated as “Here come the Gorkhas”) while marching with near impossible synchronization. All this meant that the cold and the rain wasn’t the only reason we felt goose bumps. We felt patriotic.

As a younger,more idealistic man, I had intellectualized Nationalism and Patriotism to be dangerousideas which allow old men to make wars for young men to die in- as an idea that’s inherently against global inclusivity. Jean Nathan, the American FreedomFighter once said-

“Nationalism is an arbitrary veneration of real estate over principles.”

And sure, we should work towards a World Government with international rule of law. Once however, I gained a more nuanced understanding of international relations and of the peoples that make up this world, their ambitions and political dreams- I realized that the World is only going to break up further along geo-political,theological, and ethnic lines. The motivation for most socio-cultural groups isto have political autonomy and above all- land.  High and lofty notions of world unity are justifiably scoffed at by men who know of the massive mistrust and suspicion with which countries view each other. The song “Imagine”by John Lennon shall forever remain a beautiful idea packaged in a groovy tune,but nothing more.

So what of this massive land mass we call India? Was the patriotism I felt justified? After much thought, the answer came back resoundingly in the affirmative. We all know of the usual suspects that plague our country viz. corruption, communalism,wealth disparity etc. This essay however, is dedicated to elucidate all the reasons we should be thankful of the Indian situation and what we must be careful of.

The idea of India has been a complex one. Some may call it an ambitious and elaborate social experiment. Pluralism is desirable but is a daunting political obstacle.It requires a nation of enlightened tolerance in order to co-exist. To stay united, India would have to keep the spirit of secularism alive and dominant.The fringe elements of the right-wing propaganda machinery must be kept at bay.This hasn’t been an easy fight.

The historian Ramchandra Guha in his Book- “India after Gandhi” wrote-

“Notably, India’s existence has been a puzzle not just to casual observers or commonsensical journalists; it has also been an anomaly for academic political science, according to whose axioms cultural heterogeneity and poverty do not make a nation, still less a democratic one”.

Don Taylor a British Journalist in 1969 wrote an encouraging piece wherein he stated-

“The key question remains: can India remain in one piece-or will it fragment? When one looks at this vast country and its 524million people, the 15 major languages in use, the conflicting religions, the many races, it seems incredible that one nation could ever emerge. It is difficult to even encompass this country in the mind-the great Himalaya, the wide Indo-Gangetic plain burnt by the sun and savaged by the fierce monsoon rains, the green flooded delta of the east, the great cities like Calcutta, Bombay and Madras. It does not often, seem like one country. And yet there is a resilience in India which seems an assurance of survival. There is something which can only be described as an Indian spirit. I believe it no exaggeration to say the fate of Asia hangs on its survival.”

Throughout this essay I would like the reader to keep this idea of the Indian spirit in mind,the way Don Taylor thought of it. It would be an ambitious yet stimulating exercise to try and arrive at certain conclusions that point to why the “Indian spirit” of secularism has not yet given up.

Secularism has many variants with its own subtle nuances, philosophies and distinctions.However, I would argue that the most important test of a Nation’s secularism isthe way it legislates and the way it implements its policies. Since the French form of secularism viz., the Lacite is the most militant version of secularism, it would serve us well to compare it to ours. The French have interpreted secularism to mean that any overt expression of religious identity is undesirable and ought to be banned. So we have the burqa and the turban banned there.

On the other hand and according to Amartya Sen, India adheres to something known as equidistant secularism. This means that every arm of the State is to be equidistant to any one religious identity. The second and most important aspect of Indian Secularism is the freedom of religious expression, in which aspect we differ from the French. Here we must underscore the word “freedom”. We have the freedom of bursting crackers, the annual mass-slaughtering goats etc. because these things are a part of our religious culture.

We have survived testing times and separatist movements because we allow minorities to profess their faith in the open. In fact, egalitarian secularism (which our constitutional scheme clearly reflects) allows for affirmative action by the State to promote any backward ethnic, religious or socio-economic groups and make provision for their reservation in areas of education and employment. Now if we turn to the other aspect of equidistant secularism, we see that the State Machinery while allowing for freedom of expression, ought not to affiliate itself with any one religious group.

To sum it up, what I’m saying is that the secularism that has invigorated the Indian spirit allows freedom of expression of their religious beliefs (subject to reasonable restrictions of course) while the State itself doesn’t affiliate itself with any one religion.

 It is in the second area that the present Government is faltering. There were two charges levelled against Mr. Modi during the vociferous pre-election politicking. One was that he sees institutions not as necessary for the system of checks and balances but more as impediments to imposing his will in the country. The other was that once he comes to power- all the anti-Indian-Spirit regressive right wing elements will come crawling out of the woodwork spouting ridiculous communal nonsense. Since the subject at hand limits us to the second charge, suffice it to say- it was vindicated. While Mr. Modi has not himself said anything communal, other communal persons seem to find this a far more conducive political environment to make divisive statements and maybe even see India as one step closer to being a “Hindu Rashtra”.

Pertinently, the banning of beef finds a reference in our Directive Principles of State Policy contained in Part IV of our Constitution. More specifically, Article 48 states as under:

“Article 48:Organization of agriculture and animal husbandry The State shall endeavor to organize agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle”

Now, Part IV of our Constitution is not enforceable in a Court of law but nonetheless are the sum total of the aspirations of our founding fathers with respect to what our country should look like in the future. So any law in consonance with the principles elucidated therein aren’t easily assailable in a Court of law. Appositely,the challenge to the banning of cow beef has been upheld in the Supreme Court of India. So in all, the banning of cow beef is quite legitimate, even legally.

However,recently, the BJP led State Government in Maharashtra has also banned bullocks and bulls (worshipped by Hindus). Further a piece in The Guardian said that “Critics say tougher anti-beef laws discriminate against Muslims, Christians and lower-caste Hindus, who rely on the cheap meat for protein, and fear they could pave the way to a nationwide ban that would threaten thousands of jobs. Several thousand, mainly from the Muslim community, will be rendered jobless in the beef trade and related industries like leather goods, leaders of the business community say.”

 Since the water buffalo isn’t worshipped by the Hindu Community, it is legal to slaughter it, which also doesn’t make sense since all sentient life has sanctity and God does not selectively love one more than the other). The Beef traders in protest of the ban, have vowed not to cull Water Buffalos. I would be slow to entertain any contention that the Beef Ban was done for anything else but to appease the Hindus.

As such, it is my submission that the Modi Government has done serious violence to the Indian spirit by using the Sate machinery to legislate its religious taste on an issue, which is always dangerous. Intelligent Policy-makers are also aware of the various undesirable consequences that follow the banning of any desired commodity- the criminalization of those who were beneficiaries of the commodity before it was banned, the miscreants generated by their consequential unemployment, the black market created to meet the demand and the police corruption and harassment of the community at large, in the implementation of the misconceived policy etc.

Further and most importantly, by affiliating itself to the religious sensibilities of one community without considering the plight of the minorities, the BJP has done great violence to the Indian Spirit. This is not equidistant secularism and frankly it opens the floodgates in a sense, because by that same logic, Muslims could demand a ban on pork. Where do you draw the line without doing injustice?I think Mr. Modi should come down heavily on anyone in his party/government that makes divisive statements. He or his Chiefis Ministers of whatever state should immediately investigate and take strict action any crime that’s obviously communal in nature and generally allay the fears of this whole country that India is indeed finally fragmenting. Most importantly however, the BJP ought not to enact laws that cause grave prejudice and harm to any community, just to appease the saffron brigade because that is not what the “Indian spirit” is about.

-Shrinivas Bobde

 

The Modern Day Crusades

15crusades-facebookjumboIntroduction

We all know that the cross and the crescent have been locked in an epic war for theological supremacy through the ages. I want to say that no other peoples but the two adversaries have a stake in the outcome, but that simply isn’t true. With the emergence of concepts such as nation-states, democracy, nuclear weapons, world government and diplomacy, the battle-field has evolved much from the times of spears and shields. In this essay, it is my endeavour to bring out the historical perspective required to analyse what has have now become modern day crusades. The foremost clarification is that this essay only deals with the active players in the New Age Crusades and any apparent oversimplification or generalization that grows stark in the light of contrary instances, is unavoidable.

Before this ambitious task is tackled, it would be appropriate to briefly summarise the Social Construct Theory.This theory attempts to understand the origin and necessity of our human institutions. When we attempt to live in small groups of people, informal rules of morality work well e.g. you don’t kill my son, I won’t steal your goat, no one should rape women etc. But when we live as a society with millions of people having a single socio-cultural identity, it is argued that two precepts inevitably emerge- i) a Constitution forming a government and ii) a religious scripture forming a religious community. Both these precepts are used by society to coalesce a large community along accepted rules of social morality. Since the surveillance powers of the government are limited, it is important to have a sky-god which can see everything you do and judges every action on the touchstone of the religious morality propounded by His messenger. For an incentive-sanction based morality, the after-life punishment i.e. Hell is generally all our worst fears with a lot of fire while Heaven is beautiful with good people and floating clouds.

Now, according to some sources there are about 4,200 religions in the world. Assuming all of them are monotheistic, the followers of one religion are atheists for all the 4,199 other religions. Each religion has declared a divine origin for itself, thus making it unamendable and inflexible. Each religion has also declared itself the absolute keeper of genuine spiritualism and the correct way of life. Naturally, when you feel like you are a part of something omnipotent and all pervasive, you militantly guard that belief and any claim antithetical to your own is a spiritual annoyance. In light of this, the two religions under scrutiny here viz., the Christian West (along with its variants) and Political Islam- have battled it out for Theological Supremacy since time immemorial.

The Doctrine of Separation of Church and State

The Doctrine of Separation of Church and State calls for distance between any one religions from the State machinery. In my opinion, the definitive reason why the Christian-West have had ostensible legitimacy with their “War on Terror” is because of this enlightened doctrine and its application with the advent of western democracies. This being an ambitious statement, I realize that I would have to draw this conclusion only after showing my working towards it.

It would be trite to say that after a favourable conquest, the conqueror’s greatest victory is the power to legislate and enforce his laws on the land and its people. With western Constitutions separating State from religion, God-men lost the ability to lay down or enforce law. The Priests and the Mullahs became substantially less influential. Since the basis of law was no longer an unamendable and unchallengeable religious text, peoples could have an open conversation about civil liberty issues like women enfranchisement, abolition of slavery(permissible in The Bible and Quran), and prohibition of cruel and unusual punishments. People, after much normative debate, finally fall on the right side of all these sociocultural questions. The arch of history began bending towards justice.

Certain Islamic fundamentalists have either called for insertions of Shari’a in already existing secular Constitutions or like the ISIS, Al-Qeada and Boko Haram- have called for the formation of a Caliphate from where the battle to take over the Western world can be launched. So we can safely conclude that there is indeed something known as Political Islam i.e. the idea of an expansionist Islam governed by a Caliphate who uses Islamic principles as an aide/basis to Constitution-writing.

Now to be fair, I must say here that notwithstanding the fact that Official USA is equidistantly secular and cannot have a clarion call for Christians to wage war against Muslims, the undertones of such a thing are apparent even with the most cursory look at their political dialogue. The American right wing regularly calls for wars against Islamic countries using a divisive rhetoric that relies on fear mongering against the“evil and barbaric Muslims”. The Republicans have always defended “enhanced interrogations” against “enemy combatants” and aren’t afraid to be trigger-happy with drone strikes against the “terror network” in sovereign Islamic countries. Illustratively, Sarah Palin (former Vice Presidential candidate for the Republican Party) recently said “water boarding is the way we (Americans) baptize terrorists.” and the audience greeted it with thunderous applause. So 15crusades-facebookjumbothe battle for theological supremacy though sublimated, also exists in the right wing of the West.

Unfortunately, the Political Islam that is gaining international popularity isn’t made up of the progressive Muslims of Ijtihad but of the militant fire-brand textualists. So while Political Islam by its very definition holds religion close to State, the Western ideals of Separation of Church and State, due process, secularism,freedom of speech and expression, egalitarianism have managed to show that societies based upon such ideals are more desirable. In conclusion, if legislative dominance is the prize of the conqueror and the World is the battlefield, I’d hope the West wins.

The Rise of Political Islam

The most fascinating aspect about the fire-brand Political Islam making headlines these days, is that its ideological source and infrastructural origin can be traced back to Western interventionism.It can be contended based on empirical history that the rise of Political Islam can be credited to the predominantly Christian-West, demonstrably as follows:

i)                   Anecdotally, in 1928 a professor names Hassan Al-Banna formed the Muslim Brotherhood for the purpose of making Muslims reflect within themselves and seek for progress within the parameters of Islam. It was to provoke introspection that was a reaction to the near hegemony and rapid progress of the west in the spheres of industry, development and jurisprudence.Thus, culturally, Muslims who worried about being marginalised in the international sphere issued clarion calls to mobilize Islamic opinion. This,however, is an indirect consequence of Westernism.

ii)                 It is established history that the West, led by the US has directly contributed to the creation of a centralized infrastructure of Islamic fundamentalism when it suited their own global machinations. Al-Qaeda owes its existence to the efforts of unenlightened US foreign policies intending to draw Russia into Afghanistan. The CIA had launched the astronomically expensive “Operation Cyclone” with the less than secret object of training and arming the Pakistani and Afghani mujahedeen to fight against the Socialist King of Afghanistan.The Americans recruited Mujahedeen fighters from all corners of the Islamic world for the war against the apostate infidels and communists. The American seven resorted to aiding drug lords in Afghanistan and Pakistan to fund these CIA Operations when congressional oversight in the Senate forced them to declare the operational ambition prior to disbursing of funds for the purpose. Osama Bin Laden and his group of mujahedeen were referred by American politicians as “Freedom Fighters” when they initially answered the CIA’s call to resist the Russians in Afghanistan in the early 70’s. Thefirst six-year assistance package (1981–87) under Operation Cyclone amounted to US$3.2 billion. Finally, it was none other than USA’s Former National Security Advisor Zbigniew Brzezinski who was famously quoted as saying “Now we have a chance to give them their(the Russians) Vietnam”. The Brezhnev Doctrine being in force at the time,Russia did finally intervene in support of the King and against the mujahedeen and ended up bleeding there for nine whole years. It is a thorough vindication of political karma that the Americans have now bled in Afghanistan for 14years; fighting with the very same infrastructure they created. In fact,international commentators now have a terminology for when CIA’s misadventures in the global arena eventually end up harming American interests, people or property-“Blowback”. “Blowback”is a CIA term first used in March 1954 in a recently declassified report on the1953 operation to overthrow the government of Mohammed Mossadegh in Iran.According to Chalmers Johnson, “It is a metaphor for the unintended consequences of the US government’s international activities that have been kept secret from the American people.”

iii)               As far as internal matters of Islamic countries is concerned, the Western world has a long history of inter meddling. It could be convincingly argued that the British were a major contributor to the confusion in the middle-east. After World War I, the British had successfully beaten the Ottoman Turks and as a result had modern day Israel, Gaza Strip, parts of Jordan and the West Bank under their direct administration. This lead to the British Mandate of the middle-east which meant that they were to keep those lands in trust for the international community. The British arbitrarily drew lines across the sand in a self-serving manner, making contradictory promises to the Arab-clans about the borders that they were about to draw before the end of their Mandate of the Middle-East. The first official document that intended to create Israel was a British declaration known as the Balfour Declaration of2nd November 1917 asserted the following:-

“His Majesty’s government view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavours to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country”

The UN(dominated by the West) resolved that the Jewish State of Israel was indeed legal and Israel declared itself independent in 1948. The rest is inimical and bloody history. With the emergence of the Third Reich in Germany under Adolf Hitler and the harsh anti-Semitism still raging in Europe, I do not think the idea of Israel was a bad idea and I do believe that all peoples deserve to have land and the autonomy to govern it.  I support the two-state theory and advocate peaceful co-existence, but it would be foolish to ignore the Palestinian perspective which is informed by the unceremonious usurpation of their land and power under a Western mandate. The American conviction of supporting Israel strategically and militarily does not help the divide between the West and the Arabs either.

iv)               After World War II and the resounding victory of the Allied Powers, the US emerged as a powerful global player. This gave rise to doctrines like “American Exceptionalism” which in my opinion has only loosely justified American interference in global matters. American Exceptionalism is the notion that the United States of America is “qualitatively” different than other nations. Democracy has been America’s greatest export and certain middle-eastern countries’ forced import in recent times. American Exceptionalism means that America is now such a force in this world economically, culturally and militarily and it cannot “sit one out”. Ideological requirements of“Americanism” like egalitarianism, individualism, due process and the like are no doubt concepts that could help the world order positively, but selective adherence to them by the Americans internationally, have discredited their exceptional status and reduced them to tokenism in order to justify much unilateral violence. The War in Iraq started with being a pre-emptive war under the threat of Iraqi WMDs, then became about disposing off of a Dictator for the Iraqi people, and finally about “sowing the seeds of Democracy”. This whole time, the world knew it to be about the Military-Industrial Complex and Halliburton.

In the context of America contemplating military intervention in Syria in favour of the Free Syrian Army because chemical weapons were used by the Syrian Government, the President of Russia Vladmir Putin said: –

“It is extremely dangerous to encourage people to see themselves as exceptional, whatever the motivation.”

Putin called for accepting the proposal of Syria wherein the Government has agreed to place all of its chemical weapons in international control for subsequent destruction. He argued that this is better than a military intervention. It was absurd to see the ex-constitutional law professor from Harvard Mr. Obama as a warmonger and the rabid ex-KGB spy Mr. Putin as the peaceful voice of sanity and reason. The debate of continued American intervention in the middle-east has thrown up many issues that need discussion. The foreign policy of America in the Middle-East as it has evolved is to militarily occupy another sovereign nation-state and then stay on for a disproportionate amount of years hoping to set up a favourable democratic government with the values America sees as acceptable to Western sensibilities. Some political scientists have said that the US has a war-based economy and it is true that the American war machine is too easily pressed into service. Almost every Post-world war President has requested the Senate for permission to go to war which leads to the inescapable conclusion that the Industrial-Military complex in the US is more influential than lofty notions peace and non-alignment. It is trite to draw out a causal relationship between occupation of Islamic holy lands by the West and the attacks that the West has to face in return. For the sake of some necessary brevity in this case, I will not mention every instance of US interference in internal matters of countries of Latin America, Africa or the Middle-East; but suffice it to say, American lives (in the form of hostage taking or terrorist attacks on US soil) have had to pay for USA’s self-appointed role as the World Policeman.

– Shrinivas Bobde

A Redefinition of Democracy in the Egyptian Context

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There is a peculiar debate going on in the world today. Political scientists will hardly find such a rich environment of clashing political ideologies. My attempt at analysis of this political theater is two-fold. One is where I attempt to conclude that Egypt’s complicated relationship with democracy is largely due to their historical fight between Islamists and moderates. The second argument is to draw a distinction between democracy’s structural tenets as opposed to its fundamental tenets.

Before I am accused of it, I may clarify that my normative sensibilities, and consequentially, my value judgments of what is right and wrong, are what you would call “Liberal”. So any accusations of an ideological bias are already admitted.

 

Background

It would serve me well to provide a factual context before talking of principles. In 2011, for the ouster of President Hosni Mubarak; young Egyptians partook in the recent Arab spring. Egyptians were in a peculiar situation wherein vide a Constitutional restriction, the People’s Assembly played the only role in appointing the President. As such, all elections concluded without any opposition. Election institutions and the judiciary were firmly under the thumb of the president. Egypt was stuck in a farcical presidential democracy. Even after clarion calls for constitutional reforms by civil society, the 2005 elections were a sham. The subsequent arrest of Ayman Nour (of the opposition El-Ghad Party) after he called for re-elections was seen as a vindictive move by an autocrat and Ayman Nour was declared a “Prisoner of Conscience” by the West. Thus, the President once again managed to remain immune to the democratic concept of term limits. The situation triggered the exciting political phenomena called Revolution! They tweeted, blogged and Facebooked of ‘Revolution’ till the air was soaked with the conviction that they definitely deserved better. Hosni stood trial, like a commoner! Democracy had a new bride.

Egypt, like most countries has a conservative population and a liberal-moderate population. Again like most countries, both sides have had to fight it out for supremacy in the political sphere. This fight takes place in the form of gaining a majority in political representation in Houses of Parliament and in court battles for judge-made law. The USA too, has witnessed a cultural war that continues till today. The historic John T. Scopes trial is a good example of the latter. In 1925 the Tennessee legislature passed a law that made it illegal for teachers to teach evolution in state-funded schools. When the biology teacher admitted to having taught evolution (out of allegiance to scientific temper and while upholding rational thought, which is the mandate of his vocation), the stage was set for a battle between rationalists and right-wingers. The great Clarence Darrow, a rationalist lawyer faced off against William Jennings Bryan, the conservative. After much politicking and rage-filled rhetoric, the trial concluded in favour of the conservatives; but not before Clarence Darrow put Bryan on the stand and made him admit that a literal interpretation of the Bible and its fundamental tenets viz., the virgin birth, the atonement of our sins through His death, the bodily resurrection of Christ etc. is not sustainable in the realm of life and logic. The legal battle was lost, but Bryan was publicly ridiculed and died a few days after the trial. The cultural battle was won by the rationalists. Thereafter, it was in 1973, at the historic Supreme Court case Roe vs. Wade regarding abortion that liberals saw a resounding victory of their ideology, even legally.

In Egypt’s context, the fundamentalists did enjoy sufficient influence but were kept at bay by General Abdel Gamal Nesser’s regime during the 1950s. Nasser’s successor, Anwar Sadat gave them sufficient political and cultural autonomy but Hosni’s regime was wary of Islamists. The Islamists after biding their time finally saw an overwhelming validation of their ideology when the Muslim Brotherhood’s Mohammed Morsi got elected by a 52% majority in 2012.

Interestingly, the Muslim Brotherhood was formed in Egypt in 1928 by a professor named Hassan Al-Banna. Originally, the society was formed for the purpose of making Muslims reflect within themselves and seek for progress within the parameters of Islam. It was to provoke introspection that was a reaction to the near hegemony and rapid progress of the west in the spheres of industry, development and jurisprudence. Significantly, the Muslim brotherhood, as against common perception is not inherently anti-democratic. In fact, the Brothers faced massive persecution at the hands of General Abdel Nasser when they called for transfer of power to a civilian government in the 1950s. The Brotherhood is actively involved in the democratic process of some Muslim countries. So when they formed the government after Egypt’s historic election, they had all the makings of a legitimately elected civilian government. However, they obviously did not share their predecessor’s wariness of Islamists, which goes to the root of my argument set out hereafter.

 

Religion, exit stage Left

Now, before I proceed with my argument, it would be pertinent to acknowledge that religion has and always will be linked to politics. It is only now that the distinctions between politics and religion are made out to be so stark despite the inter-linkages that persist to this day. We must not forget that religion stepped in during the post-enlightenment period as an important tool to discipline the working classes in Europe. The theory of religion as a social construct for the purposes of morality enforcement of a population is established. Islam too had a particular language which enabled a Sultanate to coalesce a community i.e., discipline bodies of people for a larger political goal that needn’t necessary be about textual implementation of religion. True, there will be the ulema, or the rabid Anjem Choudhary who would wish for a textual interpretation and application of religion, but such an exercise has always played second fiddle to a more multi faith accommodation. Thus, when we talk of secularism as a concept, we talk about something based across a wide spectrum and the nature of which is peculiar to the country of which you speak. The Ba’ath Party of Iraq, the Islamic Republic of Pakistan may be ostensibly secular but don’t have “equidistant secularism” like India purports to have adhered to.

In the case of Theocracies; the reason they fail is because Religion must be restricted to guide a person’s morality and way of life, not criminal or civil jurisprudence, let alone entire Constitutions. When it enters the space of Constitution writing, it is what I like to call Koranic overreach. Although today, we only see Koranic overreach, we have seen Biblical overreach when there were economic territories and nation-states based on their interpretation of the Bible. Vedic overreach never fructified as India declared itself a secular democracy on independence.

Islam contains directions about fiqh (jurisprudence) but in my submission, as a religious text it must remain within the realm of falsafah (philosophy) and irfan(mysticism) from where it seeks to guides a person’s soul toward equanimity and provokes self-development/realization. In view of this, I would like to forward the argument, that this failure to restrict religion to the realm in which it’s supposed to operate is a purposeful omission of power-hungry people. It is my belief that religion induces suspended intelligence in a person. A person who is whipped into a religious fervour suspends his rational thought, natural morality and sometimes even overcome the most powerful emotion- the self-preservation instinct. So when you mix two powerful emotions like Nationalism with religiosity, you have an obedient proletariat that rarely believes in dissent and is not easily provoked into independent thought by free thinkers. A strong cultural identity is also inherently against inclusivity and promotes suspicion of other cultures.

Principles apart, a puritanical interpretation of old scriptures also creates practical issues. We see that aberrations of punitive state action (e.g. stoning of adulterous women) is peculiar to theocracies and monarchies and in those countries where there is an attempt to impose the Sharia in its textual form and where the internal debate within schools of jurisprudence is held in abeyance. Muslim scholars have yet to have a consensus about the legitimacy of Ijtihad; a concept that places logical reasoning on a pedestal and attempts to reconcile the literal words of Islamic fiqhwith post-modern sensibilities. The interpretations of the Sharia within Wahhabis andSalafists sects contain penal actions which are against the conclusions of criminal jurisprudence which we have arrived at after centuries of moral debate and spiritual (r)evolution. To verbatim apply the Old Testament or the Koran in current times is a complete failure to have a nuanced understanding of how societies change and evolve over time.

For their part, Monarchies too have almost no reference to utilitarianism as defined by men like Bentham and Mills. The United Kingdom, a western, supposedly progressive country still panders to a fairytale- literally. The hedonistic lifestyle of one single family just to satisfy their need for a symbolic and titular head seems outdated. To me, the Queen is a political redundancy.

Down with Morsi

Thus, in the context of Egypt, when Morsi took power, there was a wave of hope and faith as democratic and constitutional reforms were promised. It takes a lot to snap people out of the inertia of a well-deserved victory dance and bring about a vicious cycle of resentment and anger in just one year. But stagnant infrastructural projects, widespread sexual assaults on women, the slow and insidious Islamisation of the laws and the Constitution angered the secularists and the general population. The Muslim Brotherhood’s democratically elected President turned rogue and made Religion the master and Politics the slave. References to Sharia were inserted into the Constitution. Comedians were arrested under vague penal provisions for voicing dissent and the moderates felt completely left out of the political scene. Terrible anti-Semitic remarks were made by the President himself where he referred to Zionists as pigs and requested Egyptian mothers to nurse their children on hatred against the Jew. The rise of Islam under the aegis of Morsi within the political scene offended the modernist perception of a Democracy which many young Egyptians felt they deserved and fought for.

Fifteen million people signed a petition for the President’s ouster. Many more took to the streets to protest. They did not want to wait for election time. They yearned for a pluralistic society and feared the Islamisation of a civilization. The secular-minded Army stepped in after Morsi failed to meet General Al-Sisi’s 48 hour deadline to end the protests. That failure was because instead of having an open dialogue with the protestor’s, Morsi adopted a confrontational tone and began to whip his supporters into a religious fervour.

Structure versus philosophy

Through again, political evolution, we now know that democracy on one hand is the following:

a) A physically demarcated territory; (consisting of)

b) Elected representatives; (restricted through)

c) Term limits; (after which there are)

d) Regular and frequent elections; (paving way for)

e) A smooth transition of power to the new civilian government; (which ought to consist of)

f) An independent Judiciary, a free and fair election commission, an un-gagged media (and lastly)

g) That Generals should respect the Constitution and be obedient to the orders of the Commander-in-Chief, typically part of the civilian Government’s Executive branch.

For the sake of arguments, let us call these requirements- ‘Structural requirements of Democracy’. I now request you to intellectually compartmentalize the above requirements.

Now, kindly consider the following requirements of a democracy:

a) The right of peaceful protest

b) The Doctrine of Separation of Church and State

c) Freedom of Speech and Expression

d) Equal Protection under and before law (Some democracies even seek to proactively protect and promote minorities)

e) Due process of law

I don’t think it is an ambitious argument to say that the most important of all ingredients in a Democracy is the will of the people being shaped through open debate, and the said will being implemented by the ruling elite. Let us call these tenets the ‘Fundamental requirements of Democracy’.

Thus, I admit that violence was done on the Structural Requirements of Democracy by compromising some such requirements, viz., ‘b)’, ‘c)’, ‘e)’ and ‘g)’. That is, the Army stepped in to overthrow a democratically elected President before his term limit, in a slightly violent coup. Yet significantly, each and every Fundamental requirement was either decimated by Morsi’s regime or was upheld by the “Tamarod” (Anti-Morsi protestors) which is Arabic for ‘Rebellion’.

Another example that will throw light on the issue is the Indian Emergency declared by the then Prime Minister of India, Mrs. Indira Gandhi. The Emergency was explained away by using hardly plausible constitutional and democratic arguments. The Maintenance of Internal Security Act (that gave the government powers of a police state) was a parliamentary act passed through procedural integrity. Each arm of the government functioned normally without any overt overreach. The Supreme Court even held that the law passed the litmus tests of the Indian Constitution. But if any of the 80,000 political prisoners, who were jailed without a trial, were asked about what model of government they thought they lived under, you would not hear “Democracy”. At best it can be said it was the darkest hour in Indian Democracy and at worst, it wasn’t a democracy at all- it became an Autocracy.

The laws of the country are the sum total of the moral consciousness of a society with regard to an issue. That being the case, one would argue, what would happen if the majority of the population believed that women should not be able to drive and a parliamentary act was passed to that effect? Subsequently, if the Supreme Court of the country declared the law illegal on grounds of inequality (not guaranteed under that Constitution), which institution has done violence to democracy, the parliament or the Supreme Court? The answer is hidden behind perception. To a structural based democrat, it would appear that there is judicial overreach but to a philosophical democrat, democracy was upheld by the Court.

So finally, we are constrained to ask, from where does a truly democratic government gain its legitimacy? I would conclude to say that the Structural requirements merely afford a government the infrastructure from where it would operate to uphold its Fundamental tenets. These tenets/requirements go to the root of the philosophy and ideology behind ‘Democracy’. The lackluster arguments of the Muslim Brotherhood sound vacant because they argue on a purely structural based legitimacy while flat out refusing to acknowledge the violence they did on its fundamental tenets.

The military excesses in Egypt that have occurred subsequently cannot be overplayed to the level to which pseudo-pacifists have. The Army has declared that it is in the process of combating anti-state actors who are a part of the fundamentalist fighters present in some parts of the Arab Spring. It is unfair to deny an institution i.e. the Egyptian Army, which has an infrastructure of intelligence gathering, its own war on terror when civil society has merrily allowed the Bush administration to be a world police state brining about regime changes using military force and occupation.

Significantly, the Egyptian people during the earlier elections had the option between Morsi on one hand and a relic of the Mubarak regime on the other. Thus when we speak of a democratically elected President, we must hold this fact close to provide some context. Another aspect worth mentioning is that contrary to conventional coups, the general wasn’t declared the Head of the interim government, it was the Chief Justice of the Constitutional Court.

In view thereof, when elections are held after stabilization, it is my hope that the successor government will re-impose the faith of the people in their country by holding structural as well as fundamental democratic concepts close to their functioning, both of which I’m sure the people of Egypt have fought and died for.

Shrinivas Bobde