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Cracks in the framework

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By Neera Chandhoke

The Government of India has reportedly suppressed its own data on current employment, or rather job loss, in the country. It has, thereby, compromised the autonomy and the standing of the National Statistical Commission. This is the latest instalment in the rather sordid story of institutional decay in India, overseen by the leaders of the Bharatiya Janata Party (BJP). This is not to suggest that previous governments did not undermine institutions. The internal Emergency imposed on the country from 1975 to 1977 initiated the process. The government tried to tame bureaucrats as well as the highest court in the land. Postings and appointments were manipulated to suit the ruling dispensation. The BJP government has, however, earned the dubious distinction of sabotaging the autonomy of several political institutions in rapid succession.

Institutional decay occasions worry because it affects ordinary citizens in disastrous ways. All governments, even those which have been democratically elected, betray an inexorable will to power. Expectedly, expansion of government power violates constitutional rights to freedom, equality and justice. The only way citizens can be protected against any arbitrary and unlawful exercise of power is by limiting the power of government. Liberal democrats, always sceptical of state power, have tried to contain dramatic surges of power by charting out of constitutions and institutional design. Institutions, as the embodiment of formal and informal rules, assure citizens that the government exercises power according to some norms that enable as well as regulate state capacity.

 

This makes for good political sense when we remember that most human activity is structured by systems of rules — take the intricate and rule-bound game of chess or cricket. Relationships, households, the economy, society, the games we play and do not play take place and develop within the framework of rules. Human beings are social, but we cannot be social unless we know what is expected of us, and what we should do or not do. Without rules that govern relationships — for example, the norm that friendship is based on trust— we will not know what is worthwhile and what is not, what is preferable and what should be avoided, and what is appropriate and what is expedient.

The Canadian political philosopher Charles Taylor has argued in his famous work, Sources of the Self (1989), that institutions embody ‘strong evaluations’. We learn to discriminate between right and wrong, better and worse, and higher and lower. These evaluations are not judged subjectively by our own desires or impulses.
Institutions, which stand independently of us, give us standards that allow us to evaluate. Following Taylor, we can rightly wonder why political power should be exercised, implemented and executed without rules. Assertions of political power adversely affect our interests and our projects. We should be in a position to judge when this power is exercised fairly or unfairly. Rules in a democracy assure us that justice is synonymous with fairness.

Moreover, rules make our worlds predictable. We know what the boundaries of the freedom of expression are, we know that if the police arrests us tomorrow, we have the right to appoint a lawyer and appeal to the judiciary. Without institutions and rules our life would be chancy, unpredictable and fickle. We would inhabit a space empty of certainties, expectations, aspirations and evaluations.

In a democracy, individuals are governed by institutions, and not by men. If we do not live in an institutional universe, we will be at the mercy of capricious individuals. Democrats would rather be administered by a system of rules we can scrutinise and evaluate. Of course, rules can be, and are, unfair. But at least we can struggle against rules. We do not have to commit murders to get the ruling dispensation out of power. We might have to carry out a thousand peaceful demonstrations, approach the courts, lobby our legislative representatives, engage in civil disobedience, or withhold our vote. In a world stamped by the decline of institutions and the exercise of arbitrary power, the only way to dislodge a government is through violence.

The present government has tampered with institutions by appointing its own people to positions of authority, and by using the Enforcement Directorate, Income Tax authorities, the Central Bureau of Investigation and the police as bulldozers to flatten out any site of opposition. In civil society, human rights organisations have been pulverised by blockage of funds, raids and arrests. The shameful way in which human rights activists have been incarcerated without a shred of evidence testifies to the subversion of the rule of law. The ultimate aim of government action is to dismantle institutions, and the delicate relationship of checks and balances among them. This bodes ill for democracy.

The development contravenes the spirit of the freedom struggle. As far back as the 1928 Motilal Nehru constitutional draft, the leadership of the national movement opted for constitutionalism to abridge unpredictable use of power, and grant basic rights to citizens. On November 4, 1948, B.R. Ambedkar, responding to criticism of the draft Constitution in the Constituent Assembly, clarified that the Constitution provided but a framework for future governments. But: “If things go wrong under the new Constitution, the reason will not be that we have a bad constitution. What we will have to say is that Man was vile.” The Indian Constitution established major political institutions, Parliament, executive and the judiciary, laid out the relationship between them, provided for judicial review, and codified political and civil rights. The constitutional framework does not provide thick or substantive conceptions of how we shall think, and in what we shall believe. It provides us with a thin framework that guarantees constitutional morality, or respect for the Constitution as the basis of political life.

Today the ruling party wants to legislate a thick conception of the good. We are instructed to worship the nation, respect the cow, glorify the coercive arm of the state, and listen on bended knees to leaders. Frankly the discourse is reminiscent of the naïve, and often crude, nationalist scripts authored and acted out by the film star Manoj Kumar in the 1960s. We can avoid watching his films without fear of harassment, but we cannot defy the government without being abused and subjected to violence of the pen and tongue.

The government arrests civil society activists who engage with policy, and vigilante groups attack individuals who dare transport cattle, legitimately, from one part of India to another. Immediately the sympathies of the police and magistrates, some sections of the media and public opinion swing towards the perpetrator, not the victim. The leaders of our ruling dispensation seem to have no respect for the rule of law, nor for the rules that regulate speech in public spaces.

Ultimately institutionalised power that is subject to regulation, and that can withstand the scrutiny of the political public, is meant to protect citizens.

Unfortunately, in the India of today institutions are used to protect the ruling class, and its sins of omission and commission. The people who rule us should know that when the relationship between citizens and the state is governed not by institutions but by individuals, politics takes to the streets. And then a thousand revolts happen. We pay heavily for institutional decline.


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Opinion

The importance of being humane

The Kashmir Monitor

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By Gopalkrishna Gandhi

 

Custodial torture is global, old and stubborn. Dismemberment was a method of torture practised with vigour in ancient India, crushing-by-elephant-foot another. The Arthashastra prescribes mental torture through swear-words with or without physical assaults. Death by a thousand cuts was ancient China’s speciality. The Tang Code (652 CE) describes judicial torture in detail. Ancient Japanese methods of torture numb the human imagination. Their modern avatar in Japan’s World War II of biological and chemical experimentation on humans — prisoners, mainly Chinese — in Unit 731 stop the blood-flow to one’s heart.

 

So, does that mean sadism is an inherent part of human nature? It certainly shows that the inflicting of pain is an inseparable part of human history. More specifically, the history of power, of authority and control.

The practice of custodial power is about men — and sometimes, women — who are in positions of power, even if for a brief while and over a limited terrain, having custody over a powerless person. It is about the use of custodial opportunity to torture the captive’s body and mind. And there, in that arena of wantonness, it becomes something of a sport for the human “Gods” that rule mere humans. “They kill us for their sport,” Shakespeare said of “the Gods”.

Custodial death, when not ‘natural’, is the extreme end-point of custodial torture. The death penalty, notwithstanding ‘due process’, is a close kin to this lawless and heartless game.

In Greece, the pinnacle of culture, Socrates was in 399 BCE sentenced to death by hemlock, which was known to act slowly, incapacitating the person in stages, climbing from the lower extremities limb by limb to the heart. A little further to the east, around 30 CE took place what is ironically the only hallowed case of plain torture. After being stripped and scourged, the victim’s palms, known in anatomy to be among the most sensitive of human limbs, were nailed to the cross’s horizontal beam, his feet to the vertical. “I thirst,” Mary’s son said.

Torturers are invariably sadists. Mary Surratt is not a well-known name. She was the first woman to be hanged in the U.S., in 1865, under due process. Her crime: being part of the conspiracy that led to the assassination of Abraham Lincoln. Minutes before her end, she complained to the hangman that her handcuffs hurt. They won’t hurt long, he said. Peering down the ‘drop’, she then said she hoped they would send her down neatly. Sure thing, they said. Sure enough they botched it. Her frame doubled up. “She makes a good bow,” the hangmen jested. Lincoln must have screamed in his grave.

Hitler’s torturing of his prisoners would shame Satan, if such a creature exists. He was as real as his poison gases, tooth-extractors. Stalin’s, Pol Pot’s, ‘Papa Doc’ Duvalier’s examples would have embarrassed Hell, if such a place exists. The power-centres of these tyrants were hellishly real.

Apartheid South Africa had its torturers trained in Algeria to inflict pain without leaving any signs on the body. Imam Haron, Steve Biko and the Naidoo family are among the better known of the many less known and unknown brutalised by the apartheid regime.

The butchering last October of Saudi journalist Jamal Khashoggi tells us custodial torture and killing are no country’s, creed’s or culture’s monopoly. Nor that of any clime-time. Torture seems to be, like the roach, co-terminus with Time. And co-extensive with homo sapiens.

Custodial torture is about the here and now. As I write and the reader reads this, we can be sure that not far from wherever we are, someone is being tortured by somebody. I am not referring to criminals torturing their captives, but of that somebody who has ephemeral custody, semi-legal, pre-legal, legal, over that someone’s body and mind.

India has practised and continues to practise the ‘third degree’ with impunity. Let only him deny it who has cause to hide it.

But if torture is real, human revulsion with torture is also real. And it has shape, definition. It has scope.

Meeting on December 10, 1984, the UN General Assembly stirred the world’s conscience. It adopted the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Better known as the UN Convention against Torture, it sought to prevent torture around the world. More specifically, it “required states to take effective measures to prevent torture and forbade them from transporting people to any country where there is reason to believe they will be tortured (refoulement)”. Most significantly, the Convention made state parties to undertake that “no exceptional circumstances whatsoever” will be “invoked to justify torture, including war, threat of war, internal political instability, public emergency, terrorist acts, violent crime, or any form of armed conflict”.

In other words, it foresaw every possible subterfuge and subversion by states.

India took 13 years to sign the Convention, but sign it did, on October 14, 1997, during the 11-month-old Prime Ministership of I.K. Gujral. Hat’s off to him. He did what Rajiv Gandhi, V.P. Singh, Chandra Shekhar, P.V. Narasimha Rao, H.D. Deve Gowda could not, did not, do. But signing is only the first step. Unless a convention is ratified and followed or preceded by domestic legislation that commits the ratifying party to compliance, the original signing carries no meaning. India has not ratified.

India’s non-ratification of the Convention is both surprising and dismaying. What is the constraint? A state which signs the Convention has to have a domestic law on the subject to outlaw and prevent custodial torture. Without such a law, there is no meaning to signing the Convention. And so, late as it was, the UPA II government introduced a Prevention of Torture Bill in the Lok Sabha in 2010 and had it passed in 10 days. The bill as passed by the Lok Sabha was referred to a select committee of the Rajya Sabha. The committee gave its report recommending the Bill’s adoption later the same year. Citing National Human Rights Commission figures of reported torture cases, the report said the figures showed custodial torture was rising. It also pointed out that the number of reported cases being only a fraction of actuals, the situation was serious.

But that Bill was unlucky. It lapsed with the dissolution of the 15th Lok Sabha. And was not revived by the 16th, the present Lok Sabha. Ratification of the Convention remains in limbo. Custodial torture remains in position.

In reply to a question (May 11, 2016) whether the government was planning to ratify the Convention, the Minister of State for Home did not answer either in the positive or negative but spoke of amending Sections 330 (voluntarily causing hurt to extort confession) and 331 of the Indian Penal Code. The nature of these amendments has not been delineated and so, almost nine years after the report of the Select Committee and 21 years after signing the Convention, India is yet to legislate a law that will outlaw torture an enable it to ratify the Convention.

 

What is the constraint? Why is the Indian state unwilling to say, ‘no custodial torture in India’? The answer can only be that the power over a captive’s body and mind is not easily given up.

Senior advocate Ashwani Kumar, former MP and Minister, moved a PIL in the Supreme Court in 2016 asking it to get Parliament to move forward in the matter. After a full day’s exclusive hearing in the case, the court has reserved its orders. Can the Supreme Court indeed “nudge” Parliament? It knows best, in its wisdom and experience. This much, however, one can hope: In a matter that concerns ‘life and liberty’, the Supreme Court is the guardian of the Constitution’s guarantees. And when the one being guarded says, ‘I thirst,’ the guardian can only bring to its parched lips the waters of life. Whatever be the outcome of Mr. Kumar’s PIL, it is imperative that the democratic opposition makes the ratification of the Convention and a new anti-torture legislation part of its common programme. The 17th Lok Sabha must take a stand on this matter. It has a choice: to join the civilised world in moving away from ancient barbarism or stay in the dungeons of blinding, benumbing brutality.

(The Hindu)

 

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Opinion

Volatile Kashmir needs careful handling

The Kashmir Monitor

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By  Jagdish Rattanani

The deaths of 44-plus CRPF jawans in the suicide bombing in Pulwama last week raises many questions and changes many things in Jammu and Kashmir. The anguish and outrage at the suicide bombing has been voiced and felt across the nation. The social media is full of demands for tough retaliatory action. There is need for this rhetoric to cool as the government weighs its options and considers its actions. Some, like the withdrawal of MFN status to Pakistan, are unlikely to make much of a difference. Low intensity cross-border action has been attempted (and even owned up) before by this government; but it clearly achieved little. There remains the risk of an escalation in a situation that is already tense and volatile. All parties have come on one page to condemn terrorism in all forms and the support being given to it from across the border. But the coming Lok Sabha elections add a new dynamic to the situation and will influence the way the conversation pans out in the coming months.

Meanwhile, a lot of diplomatic work remains to be done in getting the international community to name Masood Azhar, the founder and leader of the UN-designated terrorist group Jaish-e-Mohammed, as a terrorist who must be brought to justice. The JeM was declared a terrorist organisation by the US state department way back, precisely on December 26, 2001. Britain had proscribed it even earlier, in March 2001, and followed it up by banning its splinter group Khuddam Ul-Islam in October 2005. Nothing much has clearly moved on that front.

 

Amid the terrible turn of events, reports of attacks on Kashmiri traders and students across India are very disturbing. A series of reports have been flowing in on the social media over the last few days. Not all of them are true.

The CRPF has officially denied at least one alleged incident in Dehradun. On the other hand, Omar Abdullah, former J&K chief minister, has met Union home minister Rajnath Singh to express concern about the intimidation of Kashmiris. He has asked for a nodal officer to be appointed to respond to the threats to Kashmiris. The home ministry for its part lost no time in issuing an advisory to all states and Union territories to ensure the safety and security of Kashmiris across the nation. Targeting Kashmiris who have nothing to do with terrorism or the attack on security forces in their home state is precisely the kind of divide that the terrorists would like to see. This is playing right into the hands of those who wish to break the country, and build the narrative of a nation divided. What is required, therefore, is some cool heads and calm thinking.

Matters have also turned worse with false propaganda that is being directed to incite passions. As the CRPF itself has pointed out in an advisory: “It has been noticed that on social media some miscreants are trying to circulate fake pictures of the body parts of our martyrs to invoke hatred while we stand united. Please do not circulate/share/like such photographs or posts.” In fact, the CRPF moved fast to curb misinformation, and publicised its helplines to help reporting of attacks against Kashmiris elsewhere.

In Kashmir, there has been much talk of the BJP’s muscular policy. About 10 days before the Pulwama attack, the Prime Minister spent a day in the state, and met newly elected sarpanchs. At a gathering in Srinagar, he said: “We will tackle every terrorist in a befitting way. We will break the backbone of terrorism in Jammu and Kashmir and fight it with all our might.” This was a reiteration of the BJP’s muscular approach that has been in play for some time, fitting into the narrative it offered when breaking the alliance with then chief minister Mehbooba Mufti of the People’s Democratic Party in June last year. Yet, the approach has coincided with rising violence, more terror attacks and the alienation of the people. After the Prime Minister’s address in J&K on February 3, the state’s political parties were highly critical. Just a day before the Pulwama attack, Ms Mufti held a press conference to criticise what she called the BJP’s “hideous agenda” through the governor, who now runs the administration. Her exact words: “We acted as a major hurdle for the BJP to implement its agenda in Jammu and Kashmir. However, since the time it toppled the democratically elected government, the party is trying to rule the state through the governor and is making strenuous efforts to alienate the Muslims of the state.” If these statements tell us anything, it is about the slide in the situation — in innumerable ways — that have raised the hackles of people.

Violence has been on the rise and in many ways far worse in the last year. The number of terrorist-linked incidents was reported at 614 in 2018, almost three times than those in 2014 and 2015. The total number of terrorists killed in 2014 was 110. In 2018, 257 were killed. But the death toll of civilians and security forces killed also rose — from 75 in 2014 to 129 in 2018, according to figures submitted by the government to the Lok Sabha. It would appear that the rough and tough approach offered by the BJP is not working too well.

The swift developments after the Pulwama attack and the focus on the nature of the response runs the risk of India failing to ask some hard questions on its intelligence methods and mechanisms in J&K. This is clearly a massive failure of intelligence. Those at the helm must be made accountable. Some tough questions must be asked on how a massive collection of arms was put together in a village and let loose so easily by a very young attacker. If this is the nature of attacks to follow, it changes the picture in Kashmir — it will make every citizen suspect, every vehicle a source of trouble, and make handling the situation that much more difficult. Even though it is difficult to prevent every attack, there should be some capacity to have credible intelligence inputs. These are difficult times, but we must not shy away from asking difficult questions. Given the huge budget for intelligence, we can and must do better.

Finally, the freedom given to the security forces to act is not freedom to make the lives of ordinary people more difficult. Great care must be taken not to alienate ordinary Kashmiris. They are the worst sufferers in this endless cycle of violence and nobody has a greater stake in peace than the ordinary people who simply want to be allowed to live and go about their lives in this cruel weather.

 

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Opinion

Need to win hearts and minds

The Kashmir Monitor

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By  Amulya Ganguli,

One of the most disturbing aspects of the February 14 terror attack in Pulwama was that the suicide bomber was a local, Adil Ahmad Dar, who lived in a village near the Jammu-Srinagar highway where the attack took place.

Although indoctrinated as a fidayeen by the Pakistan-based Jaish-e-Mohammad, Dar’s act as a jehadi underlines the vulnerability of impressionable Kashmiri youths to insidious anti-India propaganda by Pakistani terror groups nurtured by the Deep State comprising the country’s army and an espionage agency.

 

In this particular instance, Dar was apparently “inspired” to kill himself by the Taliban’s “victory” signified by American withdrawal from Afghanistan. If anything, the tragedy emphasises the inter-linked international dimensions of Islamic terrorism.

From Syria to Afghanistan/Pakistan to Kashmir, the jehadi mindset is primed among the youth by the mythical Islamic Caliphate’s war against the kafirs (infidels).

Unlike West Asia and even in the Afghanistan-Pakistan region, Indian democracy provides a safeguard against a Messianic struggle, which is why an overwhelming majority of Indian Muslims, including those in Kashmir, remain committed to the democratic system.

As much is evident from the recent panchayat and municipal elections in the state even if the polling percentages in the Valley were low.

However, it is undeniable that a section of Muslims in the valley continue to remain alienated notwithstanding the government’s attempts to reach out to them via the negotiations carried out by the Centre’s representative, Dineshwar Sharma.

But if his efforts have failed to defuse the situation, the reason perhaps is the government’s reluctance to implement some of the recommendations to improve the conditions made by the Dileep Padgaonkar Committee.

These included reducing the army’s visibility, addressing human rights violations, reviewing the Armed Forces Special Powers Act (AFSPA) and lifting the Disturbed Areas Act.

In essence, what these initiatives were expected to do was to reach out to the hearts and minds of the ordinary people whose commitment to the Indian state cannot be doubted as the continuing relevance of the mainstream parties like the National Conference and the Peoples Democratic Party show.

What is required to defang the terrorists and wean away the misguided youth from their self-destructive path is a gesture which will have a major impact.

One of them is to consider freezing the AFSPA (former Congress minister P. Chidambaram wanted it to be scrapped altogether) and to give a cast-iron guarantee that neither Article 370 nor Article 35A will be touched. The former confers a special status on Kashmir and the latter relates to citizenship rights.

It is only such “big ticket” reforms which can end the sense of alienation among the youths who are cynically exploited by Pakistan’s Deep State.

An outreach of this nature will confirm that the government does not regard Kashmir merely as a law and order problem, where all that is needed is a harsh crackdown on the malcontents.

Arguably, the Bharatiya Janata Party (BJP) may not find it easy to change its longstanding stance favouring dispensing with Article 370. But it has to be remembered that Atal Behari Vajpayee did put Article 370 in cold storage in 1996 along with his party’s demand for building a Ram temple and introducing a uniform civil code when he was looking for allies to form a government.

Vajpayee had also called for looking at the Kashmir issue within the parameters of insaniyat (humanity) rather than of the Constitution.

Such broadmindedness is the need of the hour to dissuade deluded young men like Dar from the path of nihilism. Otherwise, more and more of such brainwashed youths will leave their kith and kin to court untimely death.

Equally, scores of security personnel will be in danger of losing their lives because official policies have failed to assure the discontented people of a state with a distinct cultural ambience that they are the nation’s cherished citizens.

It is only when the Kashmiris are visibly mollified that Pakistan’s “isolation”, which the Centre is currently seeking, will be complete, for a fully integrated Kashmir will negate Pakistan’s hope of avenging its Bangladesh defeat and recovering the “K” in the country’s name.

India has dealt with rebellious outbreaks in different parts of the country from the Northeast to the Maoist belts in central and western areas with a fair amount of success. There is no reason why it cannot achieve the same in Kashmir with a patient understanding of the grievances affecting the state, especially when it has national-level leaders like Farooq and Omar Abdullah and Mehbooba Mufti with their political and administrative experience.

True, the jehadi factor makes it difficult for a government to adopt a sane attitude because of the irrational pseudo-religious fervour of the militants. But an overt demonstration of being sensitive can enable the government to enlist the overall support of Kashmiri society and enable the elders to rein in the rebels.

 

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