Constitution, Citizenship & Free Thought | ഭരണഘടന, പൗരത്വം, സ്വാതന്ത്രചിന്ത

On Freedom of Religion in India - Brilliant talk by Faizan Mustafa

In Urdu

Misconceptions about Art 370 - Is the Indian government misleading its people?

"Modi Must Say He Disagrees With Savarkar, Upadhyay" -: Shashi Tharoor

There’s nothing the Modi government can do if the opposition doesn’t want him to

Jawed Naqvi in The Dawn

INDIA’S opposition parties must quickly deal with two problems ahead of the next election. One stems from an irrational fear of Prime Minister Modi, of what tricks he might have up his sleeve and so forth to outsmart the opposition in 2019. This problem is rooted in low self-belief and a battered self-esteem, which by habit doubts the hugely positive ground reality.

The other problem the opposition must overcome is the addiction of some, not all, to the gambling casino that a group of croupiers has turned Indian elections into. The croupiers use everything they have — tantric amulets, charms, horoscopes and the inviolable right to throw the dice — to turn their political quarries into addicts and junkies. The croupiers took a call one day that Narasimha Rao would save the country. They were applauded by punters like Harshad Mehta and cheered by the gang that destroyed a dilapidated mosque to change the discourse from issues important to the people.

The croupiers took the view another day that Sonia Gandhi was a foreigner hence not entitled to lead India. Then they decided that Modi was just right for the country. The casino runners have already reaped more than they invested in the 2014 campaign. And yet, the croupiers run the establishment, which currently is a right-wing establishment. Sadly for them though, the soul of India resides on the left. This is not lazy ideological bumpf but the plain truth, beyond the grasp of TV channels and social media.

What constitutes India’s left and right? If anyone’s agenda is to stop the suicides of farmers they cannot be right wing. If the agenda is to stop the loot of the banks, which were nationalised to prevent them from looting the people, farmers mostly, it cannot be right wing. The constitution in its spirit is a leftist document. It harnessed the spirit of socialism and secularism even before the two words were added in the preamble. Defend it and you are through.

So what’s the antidote to the right-wing establishment the croupiers favour?

A recent answer, a compelling one, may lie in New York. The primary defeat last week of top-ranking House Democrat Joe Crowley at the hands of a 28-year-old political rookie named Alexandria Ocasio-Cortez can be and has been replicated in India. It started in recent memory with Arvind Kejriwal and flourished with Jignesh Mewani and Hardik Patel. It can only consolidate into a great force if Rahul Gandhi and H.D. Kumarswamy forget about seat arrangements and focus on saving the country from an obscurantist establishment. Ocasio-Cortez defied the croupiers, and Indian opposition parties can easily replicate her feat.

We are told that Modi has imposed his rule in blood-drenched Kashmir to influence the course of the coming elections. That’s the fear the best of my liberal and leftist friends have expressed. Will there be a televised stand-off on the borders? Anyone can see the steady evidence to the contrary — from Churchill to Manmohan Singh — that wars don’t win elections while peace often fetches electoral dividends. With all the images of body bags flashed on TV during the Kargil collision, Atal Behari Vajpayee barely scraped through in the 1999 polls, leaving his claims of military victory somewhat undermined.

Vajpayee’s BJP secured 23.8 per cent of the vote, pointedly below its 25.5pc in 1998. Worse, it suffered its biggest setback in electorally crucial Uttar Pradesh. The BJP won only 29 of the state’s 85 parliamentary seats, down from the 57 seats it won in the pre-Kargil contest of 1998.

In the United States, Bush Jr gained an embarrassingly narrow lead over John Kerry despite the claims of victory in Iraq and Afghanistan. Besides, Vajpayee never explained what president Clinton meant when he claimed in an address to the Indian parliament that it was the US that saved the day for India by pummelling Pakistan with a diplomatic démarche served on an utterly perplexed Nawaz Sharif.

Row back in time. While Vajpayee’s vote percentage had dropped despite televised jingoism, in Pakistan, the Kargil goof-up required a military coup to mask the embarrassing endgame. And those who have won popular support since were parties who promised peace with India. It was the same with the Mumbai terror strike. In 2009, shortly after the carnage, amid calls for revenge, Manmohan Singh won his second consecutive term without lifting a finger. It was the Indian people’s less-discussed endorsement of his understated, phlegmatic response to Pakistan. This the croupiers and their in-house media will not discuss.

Instead, the blue-turbaned prime minister headed off to Sharm al-Sheikh to agree on a comprehensive path to peace with his difficult and troubled western neighbour. When Singh lost in 2014 after 10 years in office, it was on account of a weakened control on his own coalition partners.

Therefore, editorial writers and worried experts who warn of a Modi plot in the recent events in Kashmir need to calm down. There’s nothing the Modi government can do to win in 2019 if the opposition doesn’t want him to. The ground reality in India has changed from the day he defeated a divided opposition.

The coming together of arch rivals Mayawati and Akhilesh Yadav in Uttar Pradesh has shown that the opposition holds all the aces. Even in Srinagar, if the National Conference and Peoples Democratic Party can bury the hatchet and invite the Hurriyat to work out a durable end to the self-wounding bloodbath, there is nothing that Modi or his hawkish advisers can do to take the initiative from them. The blood of innocent lives will not go waste if Kashmir can find a solution that undermines the croupiers and elevates the chances for a battered and abused region to join the global quest for peace and justice.

Sickness in Indian Democracy did not start with Modi

Tavleen Singh in The Indian Express


Three words that I got sick of hearing as the Karnataka drama unfolded last week were: democracy, secularism and Constitution. Nearly everyone who spoke them meant only one thing, and this was that the Bharatiya Janata Party must be kept out of Karnataka at all costs. Perhaps, by the time you read this, the BJP juggernaut will have been stopped from finding a toehold in southern India, but it is important that we remember that whatever happens, it will have nothing to do with those three words. 

It is important also to remember that the post-election drama in Karnataka had everything to do with the Congress party’s desperation to keep its own little toe grounded in the state they have ruled for five years. Without Karnataka, our oldest political party has only Punjab and Puducherry left, and this is very bad news. How will Rahul Gandhi continue to dream of becoming prime minister in 2019? How will there be enough funds to fight the Lok Sabha elections if one of India’s richest states slips away? So even the most humiliating compromise with a party derided by Rahul Gandhi as the B-team of the BJP is better than losing power altogether. You realise what a sham ‘secularism’ has become if you remember that during the campaign the (S) in the party’s name was mocked by Congress leaders as standing for Sangh and not secular.

Now let us talk about democracy. Even as B S Yedyurappa was taking his oath of office last Thursday, the president of the Congress party tweeted this: ‘This morning, while the BJP celebrates its hollow victory, India will mourn the defeat of democracy.’ He clearly forgot that if there was one conclusive thing that came out of the election results, it was that it was a mandate against the incumbent Congress government.

On constitutional proprieties the less said the better. They were stretched and moulded last week by most politicians and political commentators to make whichever case they wished to make. What can be said for certain is that the men who wrote our Constitution never envisaged a situation in which the verdict of governors would be challenged by violent thugs on the streets. Or that newly elected legislators would need to be locked up in fine hotels to prevent them from selling their souls for filthy lucre.

It is not as if they need the money. The Karnataka Election Watch and Association for Democratic Reforms analysed the assets of 221 newly elected MLAs and found that 97 per cent were ‘crorepatis’. Of these, 16 had assets worth more than Rs 100 crore. You do not need me to tell you that the main reason why Indians fight and sometimes kill for a ticket to contest elections is because there is no easier way to become very rich very quickly.

This sickness in our democracy did not begin after Narendra Modi became prime minister. But, it is this storyline that has been sought to be disseminated by secular, leftist political commentators in order to disguise their loyalties to the Congress party. It is this ‘secular’ caboodle that uses words like democracy and secularism most often. Sadly, they see the weaknesses in our democracy through tinted lenses. So what happened in West Bengal’s panchayat elections last week has been almost ignored by liberal, leftist commentators. In these village elections, ballot boxes were torn out of polling booths and thrown in ponds, and gangs of armed thugs wandered about violently preventing people from voting. These events escaped the notice of ‘secular’ politicians and commentators who moan endlessly about how democracy has died in the past four years. Rahul went so far as to say in Chhattisgarh that India has become a dictatorship.

To support this ludicrous charge, the Congress president has exalted disgruntled judges who actively harmed the Supreme Court by going public with their disgruntlement. Disgruntled public intellectuals have also sided with the judges and the ‘secular’ media has done its best to provide a platform for their views.

Having lived through that time when there really was a Dictator ruling India, I can report that journalists, writers and poets were jailed for speaking out. It was also a time when disobedient judges got the sack. So the Supreme Court obsequiously went along with the Dictator’s diktat when she ordered them to suspend even the right to life. When the Dictator’s grandson now makes reckless charges, he needs to be reminded of that one period of Indian history when democracy nearly died.

Modi is no match for the powerful elite who lost their vast influence in the public square when he became prime minister. So now when he appears to have lost some of his magic, they have taken charge of the narrative and their message is clear: democracy is doomed if Modi remains in power.

Reimagining Pakistan by Husain Haqqani

Ramachandra Guha: Defining Indian Nationalism versus Jingoism

Pakistan's Floating World

Najam Sethi in The Friday Times

We are informed that the army chief has held a seven-hour long corps commanders meeting. The generals discussed foreign policy issues following the Chief’s strategic discussions in Kabul with the Afghan President. There is no mention of any briefing to the Defense Minister, Foreign Minister or, indeed, the Prime Minister of the democratically elected government of Pakistan.

What’s the point, one might justifiably ask, since the brass is not inclined to brook any civilian interference in running foreign policy. Indeed, it seems that Nawaz Sharif is still paying the price for running afoul of the brass by trying to run India policy, and, despite the ministers’ occasional bravado for the sake of form, no one is inclined to follow suit vis a vis Afghanistan or America.

The second part of the meeting is more ominous. The generals vowed to play their role in making sure that the Constitution is implemented in the country, or words to that effect. This is rich. Parliament is supposed to be the repository of the Constitution and the elected government of the day along with the Supreme Court are jointly supposed to protect it from usurpers and states within states. Yet one usurper is visibly protected by the brass which will not let the law and constitution take their course under Article 6, while the DG Rangers has blithely flouted the writ of the very civilian ministry from which he is supposed to take orders under the Constitution.

By way of explanation – which subtly parades as justification – we are constantly reminded that the blundering civilians have only themselves to blame for this loss of constitutional authority. One argument points to “egg on the face of the interior minister” after his authority was flouted outside a NAB court by an officer of the Rangers and the wretched minister was provoked to fume about “resigning” his office if his constitutional authority was not upheld. (NB: the minister did not have the courage to even think for a minute about sacking the errant General). By this logic, all elected civilians go around doing their daily chores with permanent egg on their face because there is nothing they can do to effectively challenge the writ of the brass on any issue in everyday life. Isn’t it better, at least for the sake of the constitutional record, to protest even if there is nothing concrete one can do about it instead of hunkering down and meekly accepting the “reality”?

Chaudhry Nisar and Shahbaz Sharif are proponents of the “accept-the-harsh-reality” theory of politics. Mian Nawaz Sharif is not. What’s the point of elections and parliament, he argues, if elected representatives have to constantly kowtow to the brass on all matters big and small? The counter argument is that if the elected representatives did a better and cleaner job of government as envisaged in the Constitution, they would have greater political and moral legitimacy in exercising authority vis a vis the brass. In other words, there are usurpers and usurpers rather than usurpers and usurped, depending on who is judging.

Here’s the rub. Whichever way one looks at it, this is not good for the health of both the Constitution and the country. At some point, matters are bound to reach breaking point. When that happens in a hostile neighbourhood with bristling borders east and west, foreign players will be inclined to fish in troubled waters. Political uncertainty is also bad for the business of the economy. Harken the doomsday scenarios of a terrible balance of payments crisis (economic default) sketched by those who have never been in love with “Darnomics”. Now they’re even more worried about what would happen in a vacuum without Ishaq Dar.

Nawaz Sharif is refusing to throw in the towel. He has now become President of his Party by amending the law. If this is in-your-face-defiance of both the brass and the Supreme Court, he is poised to amend the Constitution in March to nullify his disqualification. How will both institutions of the state react to Nawaz Sharif’s capture of office?

It may be recalled that he reacted to his ouster in 1999 by General Pervez Musharraf by lodging a treason case against the general in 2013. This time he may be tempted to clip the wings of the Supreme Court so that it doesn’t usurp the power of an elected parliament.

But whatever one may think of Nawaz Sharif and his corruption, inefficiency and dynastic tendencies, one cannot absolve the brass and the court of their major role in the continuing crisis of state and society in Pakistan. What is more worrying is that neither institution is intellectually or legitimately equipped, singly or jointly, to rule Pakistan better. Indeed, righteous talk of stepping in “to save” Pakistan is misplaced concreteness, as the historical record shows.

There is no option but to let the water find its own level in the floating world of good and bad democracies.

Subramanian Swamy on Dharma, Religion and the Indian Constitution

The courts and matters of faith

Peter Ronald deSouza in The Hindu


We need to make a distinction between matters of conscience and matters of faith


There is an uncanny similarity of argument between the Rashtriya Swayamsevak Sangh (RSS) and the All India Muslim Personal Law Board (AIMPLB) on controversies that have to do with belief. This is illustrated best in their respective positions on the Ram Setu and the triple talaq debates.

In 2005, on the Ram Setu issue, the RSS stated that their opposition to the UPA government’s plan to dredge a canal between Rameswaram, off the coast of Tamil Nadu, and the islands of Mannar, near Sri Lanka, was a “matter of faith and hence required no substantiation”.

Twelve years later the counsel for the AIMPLB has offered a similar argument in the Supreme Court when making his client’s case on the practice of triple talaq. A Constitution Bench of five justices is to decide on whether the practice of divorce by triple talaq is consistent with the protections guaranteed to individuals by the Indian Constitution. In opposition to pleas that the practice be considered unconstitutional, the AIMPLB counsel stated that triple talaq “is a matter of faith. Hence there is no question of constitutional morality and equity”.

This argument that matters of faith be given special status needs to be assessed. Why should matters of faith be given immunity from scrutiny?

Three responses can be offered to this question. Let me, on grounds of brevity, refer to them as (i) the special status of faith, (ii) the issue of validity, and (iii) ethical codes in modern democracies.

Special status of faith

At the outset we must acknowledge that faith, as religious belief, must have special status in any constitutional order. It constitutes the core of an individual’s sense of self and is the basis of a believer’s conscience.

Belief is a matter of personal choice and no external authority, whether state, cultural community, or religious congregation, can tell an individual what her beliefs should be. To do so is to violate the individual’s freedom of conscience guaranteed by most constitutional systems and human rights covenants. But on matters of faith, an important distinction has to be made.

All ‘matters of conscience’ are ‘matters of faith’, but not all ‘matters of faith’ are ‘matters of conscience’. It is only matters of conscience that are protected by the freedom-granting provisions of the Constitution. Matters of conscience are individual-centric. They have an ethical core that guides the choices that an individual makes.
They endow the world with meaning and give the individual purpose. In contrast, the ‘matters of faith’ which the RSS and the AIMPLB are referring to — while they may look similar to ‘matters of conscience’ — are not so for they are group, not individual, centric. They have a component that is based on evidence, whether this is textual, historical, or empirical. In other words, the belief is contingent on the evidence. For example it would take the following form: ‘we believe X because it is said so in our holy book’.

It is the ‘because of’ component that demands analytical and scientific scrutiny of the matters of faith. Does the holy book actually say so? Did Lord Ram really build the Setu?

Further, when matters of faith have harmful social consequences, they must be subject to scrutiny since the Constitution guarantees the individual protection from harm.

This is the basis of all social reform in our history.

When the AIMPLB says that triple talaq has evolved in the last 1400 years, it has inadvertently conceded that the practice is not cast in stone. Let the court’s intervention be part of that evolution.

The issue of validity

The many advances in linguistics, cultural anthropology, gender studies and, of course, the natural sciences can make the probing of the ‘because of’ component of the belief very exciting. For example, a textual analysis of a holy book using a study of old and new grammar, or the etymology of the word, or its placement in a sentence are all ways of arriving at the meaning of the statement.

Textual analysis has advanced considerably and hence is available to determine the validity of the interpretation being offered by scriptural authority. The many schools of Islamic jurisprudence are testimony to this plurality of interpretations.

To that can be added the modern tools of linguistic analysis, gender studies, human rights jurisprudence, and cultural anthropology. The validity of triple talaq must be subject to textual interpretation. Similarly with the Ram Setu claim. It too must be scrutinised by modern science.

Ethical codes in democracies

The most difficult issue in this debate is how to respond to the situation where, after scrutiny, the matter of faith is found to be valid but considered by many in need of change such that it conforms to the contemporary ethics of human rights.

When the counsel for the AIMPLB says that there is “no question of constitutional morality and equity” in matters of faith, he is building a wall, a fashion these days, behind which the orthodox will police their community. Such a wall must not be built. It has no place in a constitutional democracy.

Nissan is an early sign of the downturns and the divisions Brexit could bring

Will Hutton in The Guardian

One of the few advantages of Brexit is that the unfolding debacle may be the trigger for the deep economic, political and constitutional reform that Britain so badly needs. It will only be by living through the searing events ahead that people will become convinced that the indulgent Eurosceptic untruths they have been fed are not only economically disastrous but open the way to forms of racism that most Britons, Leave voters included, instinctively find repellent. Brexit will force home some brutal realities.

Leave voters in Sunderland – 61% in favour – will have woken up on Friday to the news that Renault Nissan, the largest car plant in Europe and a crucial pillar of the local economy, employing 7,000 people, has deferred all new investment until the details of Brexit are clear. The chief executive, Carlos Ghosn, explained that it was not because the company did not value its Sunderland plant, its most efficient. Rather, as a major exporter to the EU, its profitability depends on the prevailing tariff regime, which promises to change sharply for the worse. “Important investment decisions,” he said, “would not be made in the dark.”

It is hard to fault Ghosn’s reasoning. Gaining control of EU immigration is both a matter of personal conviction and a political necessity for Theresa May. But how can that be squared with ongoing membership of the customs union that defines the single market and which requires acceptance of free movement? Concessions can only be minimal without wrecking the EU’s core structures. Moreover, the Tory hard Brexiters, wedded to the notion of a clean break from an EU they detest, are in the political ascendancy.

One senior official tells me that a hard Brexit is inevitable: the best that can be hoped for is perhaps some agreement on the movement of skilled people, but beyond that the future is trading on the terms organised by the World Trade Organisation.

If so, Renault Nissan will face up to 10% tariffs on the cars it ships to the EU. Unless the UK government is prepared to compensate it, a bill that could top £350m a year, it cannot make new investments. The Sunderland economy will be devastated. The same is true for the entire UK car industry. Last Wednesday,Jaguar Land Rover made similar remarks: if the position had been more explicit and fairly reported rather than airily dismissed as Project Fear, the wafer-thin 3,800 majority for Leave in Birmingham might have switched their vote.

Every part of our economy involved in selling into Europe will be affected both by the rise in tariffs and by the new necessity to guarantee that our products and services meet EU regulatory standards, the so-called passport. This doesn’t only apply to the City where 5,500 UK registered firms turn out to hold the invaluable passport, but to tens of thousand of companies across the economy.

The Brexiters insist the losses will be more than compensated for by the wave of trade deals now open to be signed, but trade deals take many years to negotiate. More crucially, there is no free-trade world out there; rather, there is a series of painstakingly constructed, reciprocal entries to markets, the biggest of which we are now abandoning. Liam Fox is delusional, as former business minister, Anna Soubry, declares, to pretend otherwise.

Nor do hard Brexiters confront the fact that alongside China and the US, Britain has accumulated a stunning $1tn-plus stock of foreign direct investment. Nearly 500 multinationals have regional or global headquarters here, more than twice the rest of Europe combined. They are here to take advantage of our ultra pro-business environment – so much for the Eurosceptic babble about being stifled by Brussels – and trade freely with the EU. Britain was becoming a combination of New York and California, with a whole continental hinterland in which to trade. Hard Brexit kills all that stone dead and puts phantoms in its place.

The years ahead will be ones of economic dislocation and stagnation. But the impact goes well beyond the economic. Hard Brexit legitimises anti-foreigner and anti-immigrant sentiment. When Britain’s flag outside the EU institutions is brought down and Messrs Farage, Davis, Johnson, Redwood, Fox et al delightedly hail the sovereignty and supremacy of Britishness, it could signal a new round of street-baiting of anybody who does not look and sound British: expect more attacks on Poles and Czechs from Essex to Yorkshire.

Politicians of right and left are fighting shy of delivering the condemnation this deserves. Rachel Reeves’s remarks at the Labour fringe, warning of a social explosion if immigration were not immediately curbed, show how far the permissible discourse on immigration and race has changed. Britain has moved over the past 50 years from being one of the most equal countries in Europe to the most unequal. The result is rising social tension, with immigration the tinder for enmity and hate. The hard-working immigrants who add so much vitality and energy to our society are blamed for ills that have deeper roots. Brexit has made this harder to say.

This conjunction of the economically and socially noxious horrifies not only me but also many Tories. Scotland’s Ruth Davidson, a bevy of ex-ministers, some in the cabinet and a large number of backbenchers are keenly aware of the slippery racist, culturally regressive and economically calamitous course their Brexiter colleagues are set on and are ready to fight for the soul of their party. George Osborne is positioning himself as their leader. It is an impending civil war, mirroring parallel feelings in the country at large.

Beyond that, the referendum raised profound constitutional questions. In other democracies, treaty and constitutional changes require at least 60% majorities in either the legislature or in a referendum. Britain’s unwritten constitution offers no such rules: a parliamentary majority confers monarchial power so a referendum can be called without any such framing. Article 50 is to be invoked without a parliamentary vote: a change of government in effect without a general election.

In good times, the constitution interests only obsessives. Suddenly, Britain’s constitutional vacuity is part of a deep national crisis. The economic and political structures, along with the biased media, that delivered this are rotten. The question is whether the will – and political coalitions – can be built to reform them. If not, Britain is sliding towards nasty, sectarian decline.

Challenges to Modernity - M J Akbar

The curious case of convenient liberalism

 Swapan Dasgupta in Times of India
15 December 2013, 03:20 AM IST

 Last week, liberal opinion that enjoys a virtual monopoly of the airwaves pilloried the Supreme Court for what some feel was its most disgraceful judgment since the infamous Habeas Corpus case of 1976. The decision to overturn the Delhi High Court judgment taking consensual same-sex relationships outside the purview of criminal laws has been viewed as an unacceptable assault on individual freedom and minority rights and even an expression of bigotry. Overcoming fears of a virulent conservative backlash, mainstream politicians have expressed their disappointment at the judgment and happily begun using hitherto unfamiliar shorthand terms such as LGBT.

Indeed, the most striking feature of the furore over the apex court judgment has been the relatively small number of voices denouncing homosexuality as ‘unnatural’ and deviant. This conservative passivity may even have conveyed an impression that India is changing socially and politically at a pace that wasn’t anticipated. Certainly, the generous overuse of ‘alternative’ to describe political euphoria and cultural impatience may even suggest that tradition has given way to post-modernity.

Yet, before urban India is equated with the bohemian quarters of New York and San Francisco, some judgmental restraint may be in order. The righteous indignation against conservative upholders of family values are not as clear cut as may seem from media reports. There are awkward questions that have been glossed over and many loose ends that have been left dangling.

A year ago, a fierce revulsion against the rape and murder of a young woman in Delhi led to Parliament amending the Penal Code and enacting a set of laws that extended the definition of rape and made punishment extremely stringent. It was the force of organized public opinion that drove the changes. Curiously, despite the Supreme Court judgment stating quite categorically that it was the responsibility of Parliament to modify section 377, there seems to be a general aversion to pressuring the law-makers to do their job and bring the criminal law system into the 21st century. Is it because India is bigoted or is there a belief that there are some issues that are best glossed over in silence?

This dichotomy of approach needs to be addressed. Conventionally, it is the job of the legislatures to write laws and for the judiciary to assess their accordance with the Constitution and to interpret them. In recent years, the judiciary has been rightly criticised for over-stepping its mark and encroaching into the domain of both the executive and the legislatures. Yet, we are in the strange situation today of the government seeking to put the onus of legitimising homosexuality on the judges.

Maybe there are larger questions involved. The battle over 377 was not between a brute majoritarianism and a minority demanding inclusion. The list of those who appealed against the Delhi High Court verdict indicates it was a contest between two minorities: religious minorities versus lifestyle minorities. Formidable organizations such as the All India Muslim Personal Law Board and some church bodies based their opposition to gay rights on theology. Liberal promoters of sexual choice on the other hand based the claim of decriminalised citizenship on modernity and scientific evidence. In short, there was a fundamental conflict between the constitutionally-protected rights of minority communities to adhere to faiths that abhor same-sex relationships and the right of gays to live by their own morals. Yet, if absolute libertarianism was to prevail, can the khap panchayats be denied their perverse moral codes?

The answer is yes but only if it is backed by majority will, expressed through Parliament. Harsh as it may sound, it is the moral majority that determines the social consensus.

There is a curious paradox here. On the question of gay rights, liberal India prefers a cosmopolitanism drawn from the contemporary West. At the same time, its endorsement of laws that are nondenominational and non-theological does not extend to support for a common civil code. Despite the Constitution’s Directive Principles, the right of every citizen to be equal before the law is deemed to be majoritarian and therefore unacceptable by the very people who stood up for inclusiveness last week.

For everything that is true of India, the opposite is turning out to be equally true.

A detailed interview with Imran Khan. Excellent!

Interview with Imran Khan Part 1

Interview with Imran Khan Part 2

Overcome by a sense of betrayal

Prem Shankar Jha

The Hindu

 

People are beginning to believe that democracy, in which they had faith all these years, is part of the problem and, therefore, cannot be part of the solution

The torrent of anger that erupted all over the country after the 23-year-old physiotherapy student in Delhi — whom the media named ‘Nirbhaya’ — was raped and thrown out of a moving bus has obscured a profoundly disturbing anomaly: the rape was a criminal act committed by individuals. But most of the anger of the public has been directed at the government. Barring a few lapses, the Central and State governments acted promptly, and with commendable efficiency. The Delhi police captured the alleged rapists within hours and the government spared no expense in its attempt to save her life.

The police also showed an uncharacteristic restraint in dealing with the protesters. To control the crowds with a minimum of violence, policemen put themselves repeatedly in harm’s way. A constable, P.C. Tomar, laid down his life doing his duty. Many others were injured.

The Delhi High Court and the State government took the pent up grievances of women’s associations and other human rights groups to heart and acted speedily to meet their demands. The former set up five special courts to hear the backlog of rape cases. The Lt. Governor made it mandatory for police stations to register all complaints of rape and other crimes against women. So why did the media and the public spare no effort to shift as much of the blame as possible on to the shoulders of the state?

 

Smouldering anger

The answer is that the rape acted as the trigger for an older, and deeper, anger in people — one that has been smouldering for years in their hearts. This stems from a profound sense of betrayal. Democracy was meant to empower them. Instead, in a way that few of them understand even today, it has done the exact opposite.

Empowerment requires the rule of law. People feel empowered only when they know that they have rights, and that the institutions of government exist, first and foremost, to enforce them. The rule of law is, however, only another name for justice. Empowerment therefore requires justice. The bedrock from which the anger that erupted on December 17 sprang is the denial of justice. In spite of being a democracy for 65 years, the Indian state has not been able to create something that people value even more than material benefits: a just society. It has achieved this unique feat by making both its elected legislators and its bureaucracy, not to mention its lower judiciary, immune to accountability. It has therefore become a predatory state that the people have learned to fear.

The hallmark of the predatory state is the universality of extortion. In India, we regularly lump extortion together with bribery under the generic title of corruption. In doing so, even the most ardent of reformers inadvertently conspire with the predators to hide the true, ugly, face of our democracy. Bribery and extortion are, in fact, two entirely different forms of predatory behaviour, and have markedly different effects upon the relationship of state with society.

Bribery is voluntary. The bribe giver chooses to give money or favours to influence a choice, steal a march over rivals, or hasten (sometimes delay) a decision. Bribery harms the economy and society cumulatively over a period of time by preventing optimal choice, increasing cost and lowering the quality of the product or the service rendered. But it has limited political impact because it is a voluntary transaction between consenting adults and the injustice it does is confined to a small circle of rivals.

Extortion is an entirely different form of predation. It requires no contract; no negotiation; and therefore no element of consent. It is a simple exercise of brute power by an employee or representative of the state over the citizen. Its commonest form is to deny the citizen the services to which he is entitled until he agrees to make a ‘private’ payment to the functionary in whom the power of the state is vested. Every act of extortion is a fresh reminder to the citizen of his or her impotence. This becomes complete if he or she is denied redress for the abuse of power.

In India this has been all-but-denied not simply by law but by the Constitution itself. Article 311 of the Constitution reads: “No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.” It makes it clear that this injunction applies to not only civil but criminal cases as well. For the Central services, the empowered Authority is the President of India; for the State civil services, it is the Governor. This has meant that no prosecution can by initiated without the permission of the Central or State government. As the dismal experience of the Central Vigilance Commission has shown, in civil cases this permission is rarely given.

 

Complaints against police

One set of figures illustrates the impunity with which civil servants can break the law. According to the National Crime Records Bureau’s annual report Crime in India 2007, between 2003 and 2007 citizens filed 282, 384 complaints of human rights abuses against the police. Of these only 79,000 were investigated; only 1,070 policemen were brought to trial and only 264 — less than one in a thousand — were convicted. All but a handful stayed on at their posts, free to wreak vengeance on those who had dared to complain against them. It is therefore a safe bet that the actual number of such abuses is at least 10 times the number reported. It helps to explain why a girl who filed a complaint of rape with the police in Lucknow about two months ago was raped by the Station House Officer, then repeatedly by the investigating officer, but could not muster the courage to get the latter caught, and report the former till she felt empowered by the protests in Delhi.

The Constituent Assembly lifted Article 311 almost verbatim from a clause in the Government of India Act 1935 whose purpose was to protect British civil servants, notably the police, from incessant harassment by sharp-witted Congress lawyers. But the 1935 Act did not put the civil servant above the law. This was because he could be held accountable, as Edmund Burke had shown, by the British Parliament. In independent India, however, this restraint was destroyed by the progressive corruption, and criminalisation, of the political class that it now serves.

The root cause of both is the lack of any provision in the Constitution for the financing of elections. In Britain where the average constituency covers 380 square kilometres and has around 60,000 voters this is a nuisance. In India where the parliamentary constituency covers 6,000 sq km and holds 1.3 million voters it has proved a catastrophe.

In the 1950s, the need for funds was met to a large extent by the rising industrial class and by the Princes. But when these two began to desert the Congress in favour of the Swatantra Party and the Jana Sangh in the 1960s, Indira Gandhi banned company donations to political parties and abolished the privy purses. After that the only way in which political parties could stay in the game was to break the law.

Over the ensuing decades, two sets of predatory networks have developed to finance, or otherwise influence, elections. The first is of criminals who provide the muscle to intimidate voters; the second is of local money-bags and power-brokers who rally support for candidates belonging to one or the other party in exchange for favours when it comes to power.

As these have become more entrenched, they have virtually eliminated intra-party democracy at the grass roots and progressively reduced the number of constituencies in which State and Central party leaders can bring in fresh candidates chosen on the basis of merit. In the current Parliament, for instance, at the last count 159 MPs had criminal charges pending against them. Another 156 are second generation ‘princelings’ whose parents established the clientelist networks that now serve them. The State Assemblies are even more closed to new aspirants: 44 per cent of the MLAs in Bihar, 35 per cent in West Bengal and 30 per cent in Gujarat face criminal charges. The proportion of ‘pocket boroughs’ is also higher in the States than at the Centre.

 

Predatory state

The perennial need for money lies at the roots of the predatory state that India has become. Today, its ruling class consists of corrupt politicians who are served by an extortionate bureaucracy and police that are shielded from public wrath by nothing less than the Constitution of India.

In earlier decades, people’s anger was held in check by their faith in the democratic system. They therefore gave vent to their demand for accountability in the state by turning out to vote in ever larger numbers and regularly overthrowing incumbent governments. Only in recent years has it begun to dawn on them that democracy has become a part of the problem and cannot therefore be part of the solution. The protest is therefore moving closer to the borders of revolt. This has been apparent in the Maoist uprising that began in 2005, and has driven the state out of large parts of 83 districts in the country.

The Anna movement last year was another turning point because it was the first time that the urban middle class took to the streets. December’s mass protests in Delhi were the second time. History teaches us that this is the point at which the state usually begins to crumble. Were this to happen in India, it would not lead to the emergence of a more just and accountable Indian state but to its disintegration.

There is still time for our Central and State leaders to remember that no society that has lost its sense of justice, and, therefore, its moral legitimacy, has survived for long. But they are beginning to run out of it.

 

(The writer is a senior journalist)

A modern-day knight made to suffer a medieval punishment

The United States Constitution is one of the few really great documents ever compiled by politicians. It is crisp and short and clear, and it is on the side of the citizen rather than the state. I keep it by my desk.

Just after the news that Fred Goodwin was to be stripped of his knighthood, I happened to be riffling through it, and my eye fell on this sentence from Section 9: “No Bill of Attainder or ex post facto Law shall be passed”. A Bill of Attainder was a device of the powerful in pre-modern England. If the King and his government decided that they did not like someone, they would get him “attainted” (which means “stained”) by Parliament. The Bill would punish him for some supposed offence without giving him the chance to be heard in court. It stripped him (and sometimes his descendants) of his lands and titles. It was a political device.

An ex post facto law, of course, is a law that enables someone to be punished for an offence which, when committed, was not an offence. It is therefore blatantly unjust, and also, often, political.

Poor Fred Goodwin must wish he were an American citizen (although, since the US Constitution also states that “No title of nobility shall be granted by the United States”, he would not have got a knighthood there in the first place). He has been, in effect, attainted. And he has been subject to ex post facto judgment. What he was doing with the Royal Bank of Scotland when he was knighted in 2004 was considered fine and dandy by the then British government. Now he is being punished, because the wind has changed.

Indeed, Mr Goodwin is being even more unfairly treated than those rebel earls who were attainted under the Tudors. At least they had a chance for their case to be debated in Parliament. Mr Goodwin’s good name was stained for ever by the Honours Forfeiture Committee, stuffed with senior civil servants (almost all of them knights or dames, needless to say). He had no right to be consulted, represented by lawyers, or considered by Parliament.

The committee is repeatedly described by politicians as “independent”, but since it is governmental, it cannot be so. In reality, it acted only because of pressure from the Prime Minister. It waived its own strict rules about the criteria according to which honours are withdrawn, and replaced them with much vaguer ones. Under the chairmanship of the new head of the Civil Service, Sir Bob Kerslake, supported by the new Cabinet Secretary, Sir Jeremy Heywood – neither of whom, presumably, has any experience of this sort of thing – it decided that RBS played “an important role in the financial crisis of 2008-2009”, and therefore Sir Fred should revert to just plain Fred.

If that is the criterion, The Right Honourable Gordon Brown MP should not lose just his seat, his place in the Privy Council and whatever commemorative gold fountain pens he may have received for making boring speeches in Davos. Attainting is too good for him. Since we are reverting to medieval punishments, a bit of good old hanging, drawing and quartering would seem appropriate.
One must, I admit, be realistic. Governments often find themselves in tight corners, and the overhang of bankers’ pay, bonuses and gongs into the era of recession is one such for the Coalition. It is part of the role of senior civil servants inconspicuously to help their masters out of such corners. It is the job of the cabinet secretary, in particular, to be like Jeeves with Bertie Wooster. He must help his boss divert the indignant aunt of public opinion with the necessary fibs, flattery and brainy schemes.
So yesterday I asked Lord Armstrong, cabinet secretary under Mrs Thatcher, and the man who recommended that the traitor Anthony Blunt be stripped of his knighthood, what he thought. Picking his words with mandarin care, Lord Armstrong told me that, if he had been asked to consider Sir Fred, “I should have said that this goes beyond the criteria.” The Government would be within its rights to change the criteria, he went on, and the committee could help it do so. But this should happen before any individual case, and with the agreement of the Palace, to avoid embarrassing the Queen. Otherwise, the problem is publicly dumped on civil servants, whose committee then becomes – my phrase, not Lord Armstrong’s – a kangaroo court. Then I asked the same question of his successor, Lord Butler of Brockwell, and his answer was virtually identical.

Since honours are not jobs, and are conferred by the gracious pleasure of the Sovereign rather than any contractual process, it may be that Mr Goodwin has no legal redress. Besides, he may prefer to remain quiet. But if I were him, armed with his still considerable private collection of good old British banknotes and with no more reputation left to lose, I would try to go to law. I would seek judicial review of the process by which I had been attainted. I would invite Sir Bob Kerslake to tell the court what 10 Downing Street had said to him before the whole process got under way. And if the judges found that the committee had behaved improperly, I would then apply to the Honours Forfeiture Committee to have Sir Bob and his colleagues stripped of their knighthoods.

Maybe none of this matters. Maybe Fred Goodwin is such a disgraceful fellow that we are all entitled to kick him around as we please. But I cannot help thinking that the provision against attainder is in the US Constitution for a good reason. It is to stop whoever happens to be in power at any one time from taking it out on whomever he dislikes who isn’t. The fact that the victim may be unmeritorious is not the point. The point is that the rule of law is what distinguishes us from the beasts. Fred Goodwin got knighted because of crony capitalism. It does not make things better if he is un-knighted by crony anti-capitalism.

But let us look ahead, and think, as David Cameron has done throughout, politically. By shaming Mr Goodwin and creating the pressure that made Stephen Hester give up his bonus, the Prime Minister has placed himself on the side of pubic opinion. He has made it easier for him to attack bonuses in future. He has blunted a Labour attack which had tried to make him seem incapable of responding to public outrage. So far as it goes, all this will help him.

But one of the odd things about being populist is that it generally does not make you popular. It is often the way that the mob, seeing leaders who try to ape it, grows disgusted. The most successful politics is the unpopular action which is then proved right, not the popular action which later looks a bit tawdry.

The other question is one for what The Times, when it appealed to them, used to call “top people”. If, after all this, you are a chief executive wondering whether to locate your big company in Britain, will you feel welcome? If you are a businesswoman asked to rescue a government enterprise, a civil servant wondering whether to try to become a permanent secretary or leave for the private sector, or a scientist called on to run a quango, will you think, “Well, I may get less money, but I shall command respect, have the loyalty of ministers and be knighted if I do the job well”?

I think we know the answer.

A decade ago, Ecuador was a banana republic, an economic basket case. Today, it has much to teach the rest of the world

Could Ecuador be the most radical and exciting place on Earth?

• 
• • Jayati Ghosh
  • guardian.co.uk, Thursday 19 January 2012 19.02 GMT
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President Rafael Correa's approval ratings are in excess of 70%. Photograph: Guillermo Granja/Reuters

Ecuador must be one of the most exciting places on Earth right now, in terms of working towards a new development paradigm. It shows how much can be achieved with political will, even in uncertain economic times.

Just 10 years ago, Ecuador was more or less a basket case, a quintessential "banana republic" (it happens to be the world's largest exporter of bananas), characterised by political instability, inequality, a poorly-performing economy, and the ever-looming impact of the US on its domestic politics.

In 2000, in response to hyperinflation and balance of payments problems, the government dollarised the economy, replacing the sucre with the US currency as legal tender. This subdued inflation, but it did nothing to address the core economic problems, and further constrained the domestic policy space.

A major turning point came with the election of the economist Rafael Correa as president. After taking over in January 2007, his government ushered in a series of changes, based on a new constitution (the country's 20th, approved in 2008) that was itself mandated by a popular referendum. A hallmark of the changes that have occurred since then is that major policies have first been put through the referendum process. This has given the government the political ability to take on major vested interests and powerful lobbies.

The government is now the most stable in recent times and will soon become the longest serving in Ecuador's tumultuous history. The president's approval ratings are well over 70%. All this is due to the reorientation of the government's approach, made possible by a constitution remarkable for its recognition of human rights and the rights of nature, and its acceptance of plurality and cultural diversity.

Consider just some economic changes brought about in the past four years, beginning with the renegotiation of oil contracts with multinational companies. Ecuador is an oil exporter, but had benefited relatively little from this because of the high shares of oil sales that went to foreign oil companies. A new law in July 2010 dramatically changed the terms, increasing the government's share from 13% to 87% of gross oil revenues.

Seven of the 16 foreign oil companies decided to pull out, and their fields were taken over by state-run companies. But the others stayed on and, as a result, state revenues increased by $870m (£563m) in 2011.

Second, and possibly even more impressively, the government managed a dramatic increase in direct tax receipts. In fact, this has been even more important in revenue terms than oil receipts. Direct taxes (mainly corporation taxes) increased from around 35% of total taxes in 2006 to more than 40% in 2011. This was largely because of better enforcement, since the nexus between big business and the public tax administration was broken.

Third, these increased government revenues were put to good use in infrastructure investment and social spending. Ecuador now has the highest proportion of public investment to GDP (10%) in Latin America and the Caribbean. In addition, social spending has doubled since 2006. This has enabled real progress towards the constitutional goals of free education at all levels, and access to free healthcare for all citizens. Significant increases in public housing have followed the constitution's affirmation of the right of all citizens to dignified housing with proper amenities.

There are numerous other measures: expanding direct public employment; increasing minimum wages and legally enforcing social security provision for all workers; diversifying the economy to reduce dependence on oil exports, and diversifying trading partners to reduce dependence on the US; enlarging public banking operations to reach more small and medium entrepreneurs; auditing external debt to reduce debt service payments; and abandoning unfair bilateral investment agreements. Other efforts include reform of the justice system.

One exciting recent initiative is the Yasuní-ITT biosphere reserve, perhaps the world's first attempt to avoid greenhouse emissions by leaving oil underground. This not only protects the extraordinary biodiversity of the area but also the habitats of its indigenous peoples. The scheme proposes to use ecotourism to make human activity compatible with nature.

All this may sound too good to be true, and certainly the process of transformation has only just begun. There are bound to be conflicts with those whose profits and power are threatened, as well as other hurdles along the way. But for those who believe that we are not condemned to the gloomy status quo, and that societies can do things differently, what is happening in Ecuador provides inspiration and even guidance. The rest of the world has much to learn from this ongoing radical experiment.